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On order of the Court, the application for leave to appeal the February 26, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to hold appellate proceedings in abeyance is DENIED. | [
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On order of the Court, the application for leave to appeal the February 28, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 21, 2019 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the January 2, 2019 order of the Court of Appeals is considered. We DIRECT the Ingham County Prosecuting Attorney to answer the application for leave to appeal within 28 days after the date of this order.
The application for leave to appeal remains pending. | [
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Ronayne Krause, J.
Plaintiff-appellant, the estate of Diana Lykos Voutsaras (the Estate) appeals as of right the trial court's order granting summary disposition in favor of defendants Kenneth M. Mogill, Mogill Posner & Cohen, Kern G. Slucter, and Gannon Group, P.C. (collectively, the Mogill defendants). This appeal arises, in relevant part, out of the Estate's action against the Mogill defendants for professional malpractice in their services as expert witnesses. The trial court held that a party's own expert witnesses, regardless of any duty to their client, are shielded by witness immunity. We hold that licensed professionals owe the same duty to the party for whom they testify as they would to any client and that witness immunity is not a defense against professional malpractice. Therefore, we reverse and remand.
I. STATEMENT OF FACTS
The underlying litigation involved the foreclosure of a commercial mortgage and note made by Diana and Spiro Voutsaras and held by Gallagher Investments (Gallagher). The Voutsarases hired the law-firm defendants to represent them in the foreclosure proceedings. The Voutsarases, on the advice of the law-firm defendants, filed a counterclaim against Gallagher and a third-party claim against some of the principal actors involved with Gallagher for malpractice. The law-firm defendants then hired the Mogill defendants to provide litigation support and ultimately serve as expert witnesses at trial. Kenneth Mogill was considered to be a preeminent authority on legal ethics in the state of Michigan, and Slucter and Gannon Group were experts in the field of real-estate brokerage and best practices in the field. Ultimately the law-firm defendants informed the Voutsarases that their litigation strategy was bound to fail, and the trial court granted summary disposition against the Voutsarases.
Diana Voutsaras passed away in January 2015, and the Estate then brought the present action against the law-firm defendants and the Mogill defendants. The Estate claimed that the law-firm defendants failed to advise Diana Voutsaras of a favorable settlement offer and that the law-firm defendants deliberately concealed the fact that the Voutsarases' claims were frivolous in order to drive up their costs before trial. The Estate claimed that the Mogill defendants breached their duty to Diana Voutsaras by failing to properly investigate the facts required to formulate their opinions, failing to understand the applicable standards, and failing to provide a competent professional opinion. Noting that the ability to sue one's own expert witnesses was an issue of first impression in Michigan, the trial court engaged in a broad reading of prior witness-immunity standards and granted summary judgment to the Mogill defendants on that theory. This appeal followed.
II. PRESERVATION AND STANDARD OF REVIEW
A. PRESERVATION OF THE ISSUE
An issue is preserved for appellate review if raised in the trial court and pursued on appeal. Peterman v. Dep't of Natural Resources , 446 Mich. 177, 183, 521 N.W.2d 499 (1994). The Estate argued that whether a party may sue his or her own expert witness was an issue of first impression in Michigan and that the trial court should follow caselaw from sister state courts on that matter. The trial court agreed that this issue was an open question in Michigan but determined that defendant Mogill was entitled to witness immunity because that doctrine is broadly construed and because the policy considerations underlying the doctrine would be advanced by its application in this case. The issue is preserved.
B. STANDARD OF REVIEW
This Court reviews de novo a trial court's decision to grant summary disposition.
Bowden v. Gannaway , 310 Mich.App. 499, 503, 871 N.W.2d 893 (2015). A court may grant summary disposition under MCR 2.116(C)(7) "because of ... immunity granted by law ...." "A party may support a motion under MCR 2.116(C)(7) by affidavits, depositions, admissions, or other documentary evidence." Maiden v. Rozwood , 461 Mich. 109, 119, 597 N.W.2d 817 (1999). This Court also reviews de novo the applicability of legal doctrines, Husted v. Auto-Owners Ins. Co. , 213 Mich.App. 547, 555, 540 N.W.2d 743 (1995), aff'd 459 Mich. 500, 591 N.W.2d 642 (1999), and claims of immunity, Denhof v. Challa , 311 Mich.App. 499, 510, 876 N.W.2d 266 (2015).
III. ARGUMENT
A. DUTY OF AN EXPERT WITNESS WHO IS A LICENSED PROFESSIONAL
The Estate claims that defendants owed to Diana Voutsaras a legal duty and that defendants breached that duty. Duty is "the legal obligation to conform to a specific standard of conduct in order to protect others from unreasonable risks of injury." Lelito v. Monroe , 273 Mich.App. 416, 419, 729 N.W.2d 564 (2006). As will be discussed further, our decision in this matter is limited to a claim of professional malpractice, which "arises from the breach of a duty owed by one rendering professional services to a person who has contracted for those services ... predicated on the failure of the defendant to exercise the requisite professional skill." Broz v. Plante & Moran, PLLC , 326 Mich.App. 528, 535-37, 928 N.W.2d 292 (2018). "Generally, to state a claim for malpractice, a plaintiff must allege (1) the existence of a professional relationship, (2) negligence in the performance of the duties within that relationship, (3) proximate cause, and (4)
the fact and extent of the client's injury." Id . at 537-38, 928 N.W.2d 292.
The trial court granted summary disposition to defendants solely on the basis of witness immunity. Defendants now argue on appeal that regardless of witness immunity, the Estate has failed to show that defendants owed a legal duty to Diana Voutsaras. "An issue not addressed by the trial court may nevertheless be addressed by the appellate court if it concerns a legal issue and the facts necessary for its resolution have been presented." Sutton v. Oak Park , 251 Mich.App. 345, 349, 650 N.W.2d 404 (2002). We are not satisfied that this record presents us with the facts necessary to resolve this issue. Nevertheless, we presume for the sake of argument that defendants are subject to claims for professional malpractice by the Estate and breached their professional duties to Diana Voutsaras. However, we do not decide those questions, and we leave for the trial court to determine in the first instance whether, in fact, defendants owed or breached a legal duty to Diana Voutsaras. We address only whether defendants are immune from liability related to that duty, if any.
B. WITNESS IMMUNITY AS A DEFENSE TO MALPRACTICE
1. MICHIGAN CASELAW
Defendants and the trial court rely on our Supreme Court's opinion in Maiden , 461 Mich. at 109, 597 N.W.2d 817, for the proposition that all witnesses enjoy total immunity for any relevant testimony provided during judicial proceedings. Our Supreme Court observed that "the duty imposed on a witness is generally owed to the court, not the adverse party," so a breach of that duty "does not give rise to a cause of action in tort by the adverse party." Id . at 133-134, 597 N.W.2d 817. Our Supreme Court continued:
[W]itnesses who testify during the course of judicial proceedings enjoy quasi-judicial immunity. This immunity is available to those serving in a quasi-judicial adjudicative capacity as well as "those persons other than judges without whom the judicial process could not function." 14 West Group's Michigan Practice, Torts, § 9:393, p 9-131. Witnesses who are an integral part of the judicial process "are wholly immune from liability for the consequences of their testimony or related evaluations." Id ., § 9:394, pp. 9-131 to 9-132, citing Martin v. Children's Aid Society , 215 Mich.App. 88, 96, 544 N.W.2d 651 (1996). Statements made during the course of judicial proceedings are absolutely privileged, provided they are relevant, material, or pertinent to the issue being tried. See Martin v. Children's Aid Society , supra ; Rouch v. Enquirer & News of Battle Creek , 427 Mich. 157, 164, 398 N.W.2d 245 (1986) ; Meyer v. Hubbell , 117 Mich.App. 699, 709, 324 N.W.2d 139 (1982) ; Sanders v. Leeson Air Conditioning Corp , 362 Mich. 692, 695, 108 N.W.2d 761 (1961). Falsity or malice on the part of the witness does not abrogate the privilege. Sanders , supra . The privilege should be liberally construed so that participants in judicial proceedings are free to express themselves without fear of retaliation. Id . [ Maiden , 461 Mich. at 134, 597 N.W.2d 817.]
We find Maiden only partially applicable, for several reasons.
First, the policy considerations in Maiden were clearly focused on the freedom witnesses must have to give damaging testimony without any fear of possible reprisal. We agree with defendants and the trial court to the extent that such policy considerations extend beyond witnesses who are formally or functionally adverse. In other words, any witness called by any party enjoys immunity based on the substance of that witness's testimony or evidence. Therefore, to the extent the Estate may assert that the Mogill defendants gave testimony that was unfavorable to Diana Voutsaras, such assertions unambiguously run afoul of the witness-immunity doctrine in Michigan. However, whether witness immunity protects the Mogill defendants from giving professionally incompetent testimony, which might or might not be favorable, was clearly not a matter considered by the Maiden Court. As our Supreme Court recently explained, to derive a rule of law from the facts of a case "when the question was not raised and no legal ruling on it was rendered, is to build a syllogism upon a conjecture." People v. Seewald , 499 Mich. 111, 121 n. 26, 879 N.W.2d 237 (2016).
Additionally, the witness-immunity doctrine at issue in Maiden addresses only actual testimony. That immunity necessarily extends to any other materials or evidence prepared by the witness for the intended benefit of the court. See Denhof , 311 Mich.App. at 511-520. Nevertheless, the Estate's complaint appears to allege that the Mogill defendants provided expert opinions for the benefit of Diana Voutsaras or her attorneys in addition to intended expert testimony for the court. Furthermore, the Estate alleges that the Mogill defendants not only provided incompetent opinions but failed to undertake reasonable skill and care in forming those opinions. As previously discussed, we presume that the Mogill defendants owed Diana Voutsaras a duty of professional care; the Estate essentially alleges a perfectly ordinary claim of legal malpractice, asserting that the Mogill defendants breached that duty of professional care.
To the extent that the Estate's claims rest on the Mogill defendants having provided damaging testimony or evidence intended for consideration by the trial court, the Mogill defendants are clearly protected by the doctrine of witness immunity. However, we find nothing in Maiden , or in any other Michigan caselaw, suggesting that any other claim of professional malpractice by a client is precluded merely because the professional was expected to provide expert testimony. We decline to parse which particular claims in this matter are immunized. We hold only that the Mogill defendants are not absolutely immunized from professional-malpractice claims where they already owed a duty of professional care merely because part of their retention included the provision of expert testimony.
2. OTHER JURISDICTIONS
Although not binding, authority from other jurisdictions may be considered for its persuasive value. Abela v. Gen. Motors Corp., 469 Mich. 603, 607, 677 N.W.2d 325 (2004). We have considered the extrajurisdictional caselaw provided to us by the parties, and we find, on balance, that the most persuasive precedent supports our conclusion.
In Briscoe v. LaHue , 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983), the United States Supreme Court, whose holdings are obviously binding on this Court, held that the common-law standard of witness immunity was not abridged by federal law and therefore that a police officer could not be held liable for perjured testimony given during the plaintiff's trial. The Court proceeded to lay out the policy reasons behind witness immunity, holding: "A witness's apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability." Id . at 333, 103 S.Ct. 1108 (citation omitted). The Court explained that "the truthfinding process is better served if the witness's testimony is submitted to 'the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies.' " Id . at 333-334, 103 S.Ct. 1108, quoting Imbler v. Pachtman , 424 U.S. 409, 440, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (White, J., concurring in the judgment). This case merely reaffirms that a witness must be immune to the consequences of providing damaging testimony, which in turn must extend to a party's own witnesses.
In Mattco Forge, Inc. v. Arthur Young & Co. , 5 Cal.App.4th 392, 6 Cal.Rptr.2d 781 (1992), the California Court of Appeals held that California's "litigation privilege" statute did not bar a party from bringing suit against its own expert. In that case, the plaintiff (Mattco) engaged the defendant (Arthur Young) "to perform litigation support accounting work" in the underlying action. Id . 6 Cal.Rptr.2d 781, 5 Cal.App.4th at 395. After the dismissal of that suit, Mattco brought suit against Young, alleging, in part, professional malpractice, negligence, and breach of contract. Id . 6 Cal.Rptr.2d 781, 5 Cal.App.4th at 396. The California Court of Appeals determined that the policy considerations behind the litigation privilege-freedom of access to courts and the encouragement of truthful testimony-would be best served by allowing malpractice proceedings against expert witnesses:
Arthur Young was not a "neutral expert," but one hired by Mattco. If an expert witness's negligence and breach of contract cause dismissal of the party who hired that expert witness, that does not expand freedom of access to the courts. Applying the privilege in this circumstance does not encourage witnesses to testify truthfully; indeed, by shielding a negligent expert witness from liability, it has the opposite effect. Applying the privilege where the underlying suit never reached the trial stage would also mean that the party hiring the expert witness would have to bear the penalty for the expert witness's negligence. That result would scarcely encourage the future presentation of truthful testimony by that witness to the trier of fact. [ Id . at 404, 6 Cal.Rptr.2d 781.]
The California Court of Appeals found the distinction between one's own witnesses and adversarial witnesses to be of unique importance, because the policies underlying witness immunity "can logically apply ... only to trial testimony of adverse witnesses" and thus were immaterial to "a pretrial dispute between a party and its own expert witness that arose during discovery." Id. at 406, 6 Cal.Rptr.2d 781.
In Murphy v. A A Mathews , 841 S.W.2d 671, 672 (Mo., 1992), the defendant engineering firm was retained by a subcontractor to prepare claims for additional compensation. The firm testified at arbitration, and the subcontractor was awarded substantially less than what it was seeking. Id . The subcontractor then filed suit against the engineering firm, alleging that the engineering firm "was negligent in its performance of professional services involving the preparation and documentation of [the subcontractor's] claims for additional compensation ...." Id . The Missouri Supreme Court observed that witness-immunity decisions generally entailed statements made "directly in the judicial proceeding itself or in an affidavit or pleading, and all of the statements were made by adverse witnesses or parties." Id . at 677. It concluded that witness immunity was not properly applied "to bar a suit against a privately retained professional who negligently provides litigation support services." Id . at 680. The court reasoned that the policies underlying witness immunity would not be served by protecting "professionals selling their expert services rather than as an unbiased court servant." Id . at 681. Furthermore, subjecting professionals to liability for negligence would encourage skill, care, and prudence and would discourage "extreme and ridiculous positions in favor of their clients in order to avoid a suit by them." Id . The court also emphasized the role expert witnesses play in case preparation, providing advice and advocacy, and even playing as much of "a role in the organization and shaping and evaluation of their client's case as do the lawyers." Id . at 682. It therefore permitted the action against the engineering firm.
In LLMD of Mich., Inc. v. Jackson-Cross Co. , 559 Pa. 297, 298, 740 A.2d 186 (1999), the plaintiffs hired an accounting firm in the underlying action to calculate their lost profits. At trial, a critical mathematical error in the firm's calculations was revealed during cross-examination of the firm's chairman. Id . at 299, 740 A.2d 186.
The chairman had not personally prepared the lost-profits calculation and could not explain the error. Id . The trial court granted a motion to strike the chairman's testimony. The next day, the plaintiffs accepted a settlement offer for $750,000; the firm later recalculated the lost profits at $2.7 million. Id . The plaintiffs then sued the firm for breach of contract and professional malpractice. Id . at 300, 740 A.2d 186. The Pennsylvania Supreme Court held that witness immunity did not bar the action but emphasized that it arrived at this conclusion because the gravamen of the action was negligence in formulating the expert opinion rather than dissatisfaction with the substance of the opinion. Id . at 304-307, 740 A.2d 186. In particular, "[a]n expert witness must be able to articulate the basis for his or her opinion without fear that a verdict unfavorable to the client will result in litigation...." Id . at 306, 740 A.2d 186. However, "immunizing an expert witness from his or her negligence in formulating that opinion" would not serve the purposes behind witness immunity. Id . Rather, "[t]he judicial process will be enhanced only by requiring that an expert witness render services to the degree of care, skill and proficiency commonly exercised by the ordinarily skillful, careful and prudent members of their profession." Id . at 306-307, 740 A.2d 186. Thus, the court held that the accounting firm was not entitled to witness immunity. Id .
The Connecticut Superior Court (i.e., a trial court) followed LLMD of Mich., Inc. in Pollock v. Panjabi , 47 Conn.Supp. 179, 781 A.2d 518 (2000). In Pollock , the plaintiffs retained a spinal biomechanics expert to perform experiments relating to the underlying personal-injury action. Id . at 180, 781 A.2d 518. After pretrial voir dire of the expert, the trial court ruled that the expert's opinion was not credible and was not admissible at trial. Id . at 182, 781 A.2d 518. The trial court granted numerous continuances so that the expert could perform additional experiments, but the expert repeatedly failed to follow the conditions set forth by the trial court. Id . at 182-183, 781 A.2d 518. Ultimately, the plaintiffs brought suit against the expert and a kinesiologist hired by the expert alleging, in part, breach of contract and negligence. Id . at 183, 781 A.2d 518. The Connecticut Superior Court held that the defendants were not entitled to invoke witness immunity, determining that the
policy reasons undergirding the absolute privilege accorded witnesses are not implicated here. This is not a case in which the right of a witness to speak freely, in or out of court, is involved. While conduct, objects and experiments may have communicative aspects, the plaintiffs do not complain about what [the spinal biomechanics expert] said or about anything [the kinesiologist], who never testified, said or communicated. Rather, the plaintiffs complain of the defendants' failure to perform work, as agreed upon, according to scientific principles as to which there are no competing schools of thought. [ Id . at 188 (citation omitted), 781 A.2d 518.]
The court concluded that the gravamen of the plaintiffs' claim was to "hold the defendants accountable for not doing what they agreed to do," which did not undermine the witness-immunity policy of ensuring that witnesses could speak freely. Id. at 194, 781 A.2d 518.
We find these cases to be the most persuasive. However, additional state courts have allowed a party to sue its own expert, determining that the policy considerations underlying the doctrine of witness immunity would not be furthered by application in those cases. See Boyes-Bogie v. Horvitz , 14 Mass.L.Rptr. 208, 2001 WL 1771989 (Mass. Super., 2001) (holding that witness immunity did not bar an action against a friendly expert who was negligent in valuing a marital asset); Marrogi v. Howard , 805 So.2d 1118, 1131, 2001-1106 (La 1/15/02) (holding, in a case in which the friendly expert made numerous errors in estimating the plaintiff's billings and in which summary judgment was granted on the basis of the expert's deposition testimony, that "claims in connection with a retained expert's alleged failure to provide competent litigation support services are not barred by the doctrine of witness immunity"); Hoskins v. Metzger , 102 So.3d 752, 753 (Fla. App., 2012) (holding that it was erroneous for the trial court to dismiss an action against a friendly expert on the basis of witness immunity when the plaintiffs were alleging that they lost at trial because of the expert's appearance at trial and "his inadequate testimony").
3. WITNESS IMMUNITY AS A DEFENSE AGAINST MALPRACTICE
It bears repeating that the Maiden Court prefaced its discussion of witness immunity by ruling that the medical examiner was an adverse witness to the plaintiff. Maiden , 461 Mich. at 133, 597 N.W.2d 817. Witness immunity protects all witnesses, including experts retained by a party, from suit for testimony or evidence premised on the damaging nature thereof. However, we note that a common theme in the cases discussed earlier was whether to extend witness immunity to ordinary professional malpractice claims. We find no Michigan law suggesting that witness immunity already precludes a claim by a client against a retained professional for the negligent performance of professional services. We are persuaded by the reasoning in the above cases that witness immunity should not be further extended. When a duty of professional care exists such that a malpractice action may be maintained, witness immunity is not a defense to a malpractice action except, as noted, insofar as the action is premised on the substance of the professional's evidence or testimony intended to be provided to the court.
IV. CONCLUSION
We conclude that the trial court erred by construing the doctrine of witness immunity too broadly. A professional's client is not precluded from maintaining a professional malpractice action by witness immunity except to the extent the action is premised on the substance of evidence or testimony prepared for the benefit of the court. We decline to address any other issues, such as the specific duties owed in this matter or the extent to which plaintiff's specific allegations actually implicate witness immunity. We reverse the trial court's grant of summary disposition pursuant to MCR 2.116(C)(7), and we remand for further proceedings. We do not retain jurisdiction. An important public question of first impression being involved, we direct that the parties shall bear their own costs. MCR 7.219(A).
Swartzle, P.J., and Sawyer, J., concurred with Ronayne Krause, J.
On October 2, 2017, Ingham Circuit Court Judge Matthew J. Stewart entered a stipulated order of dismissal following a settlement agreement between plaintiff Kathleen Gaydos, as the personal representative of the estate of Diana Voutsaras, and defendants Gary Bender, Richard Cascarilla, Lindsay Dangl, Vincent Spagnuolo, and Murphy & Spagnuolo, P.C. (collectively, the law-firm defendants), who were Diana and Spiro Voutsaras's attorneys in the underlying litigation.
See note 1 of this opinion.
That statute provided, in part: " 'A privileged publication or broadcast is one made: ... In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 ....' " Mattco Forge, Inc. , 5 Cal.App.4th at 402, 6 Cal.Rptr.2d 781, quoting Cal. Civ. Code 47(b). | [
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Ronayne Krause, J.
In this workers' compensation matter, defendants appeal by leave granted the decision of the Michigan Compensation Appellate Commission (MCAC) that, in relevant part, declined to reform a "voluntary payment agreement" (VPA) between the parties. There is no dispute that the VPA constitutes a contract or that it contains a mathematical error. The MCAC concluded that the magistrate lacked the equitable authority to reform the parties' contract. We hold that the MCAC's determination was correct, but we choose to exercise our own equitable authority to reform the VPA. We therefore affirm, but we order the parties' VPA reformed and the matter remanded to the MCAC for entry of the corrected VPA.
I. FACTUAL BACKGROUND
On June 4, 2007, plaintiff was injured in a work-related automobile accident. Plaintiff was then employed by defendant Charlevoix Abstract & Engineering Company (Charlevoix). Defendant Accident Fund Insurance Company of America (Accident Fund) was Charlevoix's workers' compensation insurance carrier. Nonparty Harleysville Insurance Company (Harleysville) was Charlevoix's automobile insurance carrier.
Initially, Accident Fund voluntarily paid benefits to plaintiff, but it eventually ceased payments, whereupon plaintiff commenced a workers' disability compensation claim. Accident Fund promptly reinstated payment of plaintiff's weekly benefits. Shortly thereafter, plaintiff obtained a $450,000 judgment in a civil action against the driver of the other vehicle involved in the accident. Plaintiff only received $100,000 from the other driver, reflecting the limits of the other driver's insurance policy. Consequently, plaintiff collected the remaining $350,000 from Harleysville. Eventually, Accident Fund again discontinued plaintiff's disability payments, and plaintiff sought to reinstate those benefits.
The parties entered into negotiations, and they ultimately agreed that Accident Fund could set off $100,000 from plaintiff's future benefits pursuant to MCL 418.827. However, the parties were unable to agree whether Charlevoix or Accident Fund could set off the $350,000 recovery. Plaintiff and Accident Fund entered into the VPA on April 3, 2012. Under the VPA, Accident Fund would pay plaintiff $494.50 a week, but that amount would be "redeuced [sic] to $264.53 for 54.23 [weeks] beginning 3/29/12 based on Franges of $100,000.00 3rd party settlement." The parties also agreed to litigate the consequences of the $350,000 recovery. The word "Franges" in the VPA is a reference to Franges v. Gen. Motors Corp. , 404 Mich. 590, 274 N.W.2d 392 (1979). Franges set forth how to apportion credit to a workers' compensation insurer when an employee receiving benefits also receives a money judgment against a third-party tortfeasor.
However, Accident Fund then discovered that the VPA contained a mathematical error. Stated briefly, Accident Fund argued that the VPA's " Franges worksheet" had made improper use of the benefits it had thus far paid to plaintiff. As a consequence, the remaining calculations derived from that amount were also wrong, culminating in an impossible result of negative 54.2328 weeks before full resumption of weekly workers' compensation benefits. Accident Fund provided a corrected Franges worksheet, which showed that plaintiff's temporary reduction of benefits should have been for 131.7464 weeks, instead of 54.23 weeks. Defendants filed a motion to modify or correct the VPA.
The magistrate resolved the matter of the $350,000 recovery, which is not at issue in this appeal. The magistrate also determined that the VPA did in fact contain a mathematical error but that he lacked equitable jurisdiction and therefore could not modify the parties' agreement. However, the magistrate also stated that he would have modified the agreement if he had the power to do so and that "the correct Franges numbers to be applied ... would be a future weekly rate of $264.53 for 131.7464 weeks into the future before resumption of full weekly benefits." On appeal, the MCAC affirmed the magistrate's ruling that he lacked equitable power or authority to modify the VPA. The MCAC declined to address the magistrate's "dicta" detailing how he would have modified the VPA given the power to do so. Nevertheless, the MCAC did observe that the facts in the matter were essentially undisputed.
We likewise observe that nothing in plaintiff's brief submitted to this Court appears to challenge the magistrate's finding that the VPA contained a mathematical error and acceptance of Accident Fund's calculations as correct. To the contrary, in his brief submitted to the MCAC, plaintiff affirmatively conceded that "if the MCAC reverses the magistrate's ruling on the jurisdictional issue," the correct calculation would be a reduction of weekly benefits to $264.53 for 131.7464 weeks. We therefore treat as an established and undisputed fact that the VPA did contain a mathematical error, and Accident Fund's recomputation is objectively correct.
II. STANDARD OF REVIEW
In the context of an MCAC appeal, inquiries "into the nature, scope, and elements of a remedy," including an equitable remedy, are questions of law reviewed de novo, as are questions regarding the proper construction of the Worker's Disability Compensation Act (WDCA), MCL 418.101 et seq. Auto-Owners Ins. Co. v. Amoco Prod. Co. , 468 Mich. 53, 57, 658 N.W.2d 460 (2003). We begin by reviewing the MCAC's decision, not the magistrate's decision. Omian v. Chrysler Group LLC , 309 Mich. App. 297, 306, 869 N.W.2d 625 (2015). "[A] decision of the [M]CAC is subject to reversal if it is based on erroneous legal reasoning or the wrong legal framework." DiBenedetto v. West Shore Hosp. , 461 Mich. 394, 401-402; 605 N.W.2d 300 (2000). Because defendants specifically asked the MCAC to review the issues raised on appeal, those issues are properly preserved. See Auto-Owners , 468 Mich. at 65-66, 658 N.W.2d 460.
III. EQUITABLE POWERS OF WORKERS' COMPENSATION MAGISTRATES
The primary issue presented on appeal is whether the MCAC correctly determined that the magistrate lacked the equitable power necessary to modify the VPA. A contract is legally enforceable even if procured by fraud or mistake, and thus "plenary relief traditionally rests exclusively in equity...." Solo v. Chrysler Corp. (On Rehearing) , 408 Mich. 345, 352, 292 N.W.2d 438 (1980). We conclude that the MCAC correctly determined that the magistrate lacked equitable jurisdiction and therefore lacked the power to modify the VPA.
"Long ago, we recognized that the right to have equity controversies dealt with by equitable methods is as sacred as the right of trial by jury." Madugula v. Taub , 496 Mich. 685, 705, 853 N.W.2d 75 (2014) (quotation marks, citation, and brackets omitted). "That is, '[t]he cognizance of equitable questions belongs to the judiciary as a part of the judicial power, and under our Constitution must remain vested where it always has been vested heretofore.' " Id ., quoting Brown v. Buck , 75 Mich. 274, 285, 42 N.W. 827 (1889). Thus, an administrative agency possesses the jurisdiction to address any questions within its remit, but "it must be borne in mind that it is an administrative tribunal only and not a court possessing general equitable and legal powers."
Mich. Mut. Liability Co. v. Baker , 295 Mich. 237, 242, 294 N.W. 168 (1940) (quotation marks and citation omitted). "In the absence of an express legislative conferral of authority, an administrative agency generally lacks the powers of a court of equity." Delke v. Scheuren , 185 Mich. App. 326, 332, 460 N.W.2d 324 (1990).
This Court has specifically observed that the MCAC's predecessor, the former Bureau of Workmen's Compensation, "lack[ed] the requisite jurisdiction of a court of equity to undertake the task of reformation of [an] insurance policy." Auto-Owners Ins. Co. v. Elchuk , 103 Mich. App. 542, 546, 303 N.W.2d 35 (1981), relying on Baker and its progeny. Elchuk was also consistent with Scott v. Grow , 301 Mich. 226, 3 N.W.2d 254 (1942), in which our Supreme Court observed that " 'jurisdiction to reform written agreements' " " 'is exclusively vested in courts of equity' " and not in courts of law. Scott , 301 Mich. at 238-239, 3 N.W.2d 254, quoting Bush v. Merriman , 87 Mich. 260, 268, 49 N.W. 567 (1891). "Equity has exclusive jurisdiction to rescind an agreement on the ground of mutual mistake." Solo , 408 Mich. at 353, 292 N.W.2d 438. Consequently, it is well established that the relief sought in this matter, modification of a contract, is strictly equitable in nature, and the magistrate, as a member of an administrative tribunal, had no equitable jurisdiction.
Nevertheless, some confusion may have resulted from this Court's observation that "[w]hile the [MCAC] has no equitable jurisdiction , it is well established that it may apply equitable principles in appropriate instances to further the purposes of the [WDCA]." Lulgjuraj v. Chrysler Corp. , 185 Mich. App. 539, 544-545, 463 N.W.2d 152 (1990) (emphasis added). To the extent Lulgjuraj can be understood to suggest that the MCAC may exercise equitable powers, such as the power to reform a contract, Lulgjuraj unambiguously conflicts with well-established and thoroughly settled caselaw from our Supreme Court to the contrary. Our Supreme Court has explained that equitable jurisdiction is not precisely the same as equitable relief and that parties sometimes conflate "equity jurisdiction with equity jurisprudence." Solo , 408 Mich. at 353, 292 N.W.2d 438. Nevertheless, "[e]quity has exclusive jurisdiction to rescind an agreement on the ground of mutual mistake." Id . Because Lulgjuraj was decided before November 1, 1990, it is not strictly binding pursuant to MCR 7.215(J)(1), and even if it were, we would be required to ignore it in favor of any conflicting Supreme Court precedent. See Paige v. City of Sterling Hts. , 476 Mich. 495, 524, 720 N.W.2d 219 (2006).
In summary, the MCAC correctly determined that the magistrate lacked equitable jurisdiction and therefore lacked the power to reform or modify the VPA.
IV. THIS COURT'S POWER TO MODIFY THE VPA
Defendants argue in the alternative that we may exercise our own equitable powers to reform the VPA, and they urge us to do so. We agree that we have the power to grant the requested relief, and because both the existence and nature of the mistake is undisputed, we exercise our jurisdiction to do so.
We unambiguously have the power to grant the requested relief. Our Supreme Court "has repeatedly invoked its equitable powers to relieve a claimant from a settlement procured by fraud," and it found no reason why it should not do the same in the case of a contract founded on a mutual mistake of fact. Solo , 408 Mich. at 352-353, 292 N.W.2d 438. We have the discretionary power to "enter any judgment or order or grant further or different relief as the case may require" in the interest of justice. MCR 7.216(A)(7). Furthermore, "the policy against double recovery by the employee" is "repugnant to the very principles of workers' compensation." Maner v. Ford Motor Co. , 196 Mich. App. 470, 479, 493 N.W.2d 909 (1992) (quotation marks and citation omitted), aff'd and fully adopted by the Supreme Court 442 Mich. 620, 502 N.W.2d 197 (1993). Because there is no dispute that the VPA contains a mistake, and there is no dispute about the correct calculation, we order that the parties' VPA be reformed to reflect the correct calculation.
V. CONCLUSION AND RELIEF
We affirm the MCAC's conclusions that modifying the VPA is equitable in nature and that the magistrate lacked the equitable power to do so. We order the parties' VPA reformed to reflect the undisputed correct mathematical calculation, and we remand to the MCAC for entry of a corrected VPA. We do not retain jurisdiction. In light of the relief we hereby grant, we deem no party to have prevailed in full, and therefore direct that the parties shall bear their own costs of appeal. MCR 7.219(A).
Swartzle, P.J., and Sawyer, J., concurred with Ronayne Krause, J. | [
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On order of the Court, the application for leave to appeal the March 21, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. The motion for stay is DENIED.
Cavanagh, J., did not participate due to her prior relationship with Garan Lucow Miller, P.C. | [
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On November, 19, 2018, the Court heard oral argument on the application for leave to appeal the May 11, 2017 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Cavanagh, J., did not participate in the disposition of this matter because the Court considered it before she assumed office. | [
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On order of the Chief Justice, the second motion of defendant-appellant to extend the time for filing his brief is GRANTED. The brief will be accepted as timely filed if submitted on or before September 6, 2019. | [
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On order of the Chief Justice, the letter request of defendant-appellant to withdraw his application for leave to appeal is GRANTED. The appeal is dismissed with prejudice and without costs. | [
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On November 19, 2018, the Court heard oral argument on the application for leave to appeal the April 4, 2017 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
McCormack, C.J. (concurring.)
I concur in the Court's order denying leave to appeal because I agree that MCL 769.1k(1)(b)(iii ) distinctly states a tax and that the appellant has not established that the statute lacks an intelligible principle or violates the nondelegation doctrine. Even so, I write separately because it's unclear to me that the statute does not prevent the judicial branch from "accomplishing its constitutionally assigned functions." Nixon v. Administrator of Gen. Servs. , 433 U.S. 425, 443, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977).
My concerns about the constitutionality of MCL 769.1k(1)(b)(iii ) are underscored by the troubling letters submitted by amicus curiae Michigan District Judges Association (MDJA). They describe the pressures they face as district judges to ensure their courts are well-funded. For example, one city threatened to evict a district court from its courthouse because it was unable to generate enough revenue. Another judge noted that the same city suggested that judges eliminate personnel if they could not generate enough revenue to cover the operational costs. A third judge recounted that his local funding unit referred to the district court as "the cash cow of our local government."
The MDJA contends that MCL 769.1k(b)(iii ) creates a conflict of interest by shifting the burden of court funding onto the courts themselves. In the MDJA's telling, MCL 769.1k(1)(b)(iii ) incentivizes courts to convict as many defendants as possible. The "constant pressure to balance the court's budgets could have a subconscious impact on even the most righteous judge." MDJA Brief, p. 16. They believe that the statute thus violates the Fourteenth Amendment, because the "possible temptation," Tumey v. Ohio , 273 U.S. 510, 532, 47 S.Ct. 437, 71 L.Ed. 749 (1927), of raising more revenue by increasing the number of convictions infringes defendants' due-process rights.
The MDJA could be right. The United States Supreme Court has consistently overturned convictions where the presiding judge had any form of pecuniary interest in a defendant's conviction. E.g., Tumey , 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (in which a "Liquor Court" judge was also the mayor, and his judge/mayor paycheck came directly from court costs for convicted defendants); Ward v. Village of Monroeville , 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972) (overturning traffic convictions because a substantial portion of village income came from fines, fees, and costs imposed against defendants by the village mayor in judicial capacity; mayor's executive responsibilities for village presented a "possible temptation" when adjudicating traffic offenses). No matter how neutral and detached a judge may be, the burden of taxing criminal defendants to finance the operations of his court, coupled with the intense pressures from local funding units (and perhaps even from the electorate), could create at least the appearance of impropriety. Assigning judges to play tax collector erodes confidence in the judiciary and may seriously jeopardize a defendant's right to a neutral and detached magistrate.
These issues have not been squarely presented in this case, and I am not comfortable answering them today and without a fully developed record. But I expect we will see them brought directly to us before long.
I recognize that denying leave to appeal in this case will allow our current system of trial court funding in Michigan to limp forward-at least until MCL 769.1k(1)(b)(iii ) sunsets next year. Yet our coordinate branches have recognized the long-simmering problems. The interim report of the Trial Court Funding Commission shows a potential way forward that promises to address these (and other) concerns. I urge the Legislature to take seriously the recommendations of the Commission, before the pressure placed on local courts causes the system to boil over.
Bernstein, J., joins the statement of McCormack, C.J.
Cavanagh, J., did not participate in the disposition of this case because the Court considered it before she assumed office. | [
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On order of the Chief Justice, the second motion of defendant-appellant to extend the time for filing his brief is GRANTED. The brief will be accepted as timely filed if submitted on or before August 9, 2019. | [
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On order of the Chief Justice, the motion of defendant-appellant to extend the time for filing its reply is GRANTED. The reply will be accepted as timely filed if submitted on or before May 17, 2019. | [
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On order of the Chief Justice, the motion of defendant-appellant to extend the time for filing its reply is GRANTED. The reply will be accepted as timely filed if submitted on or before May 15, 2019. | [
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On order of the Chief Justice, the motion of defendant-appellant to file a reply in excess of the page limitation is GRANTED. The 26-page reply submitted on April 8, 2019, is accepted for filing. | [
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On order of the Court, the motion for reconsideration of this Court's November 21, 2018 order is considered, and it is DENIED, because we are not persuaded that reconsideration of our previous order is warranted. MCR 7.311(G). | [
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On order of the Court, the application for leave to appeal the March 30, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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Swartzle, J.
Defendant, Josephus Anderson, agreed to testify truthfully against his brother in exchange for a lighter sentence. At trial, defendant testified that his brother committed a home invasion, but at a subsequent hearing on a motion for new trial, defendant testified that his brother did not commit the home invasion. Logic compels that defendant provided false testimony at some point, at either the trial or the hearing, and as a result, he breached the agreement. Because the prosecutor had the right to rescind the agreement, we affirm the trial court's granting of the motion to rescind. We remand this case, however, for resentencing proceedings consistent with this opinion.
I. BACKGROUND
This is the second time this case has been on appeal in this Court. The underlying facts are stated in People v. Anderson , unpublished per curiam opinion of the Court of Appeals, issued December 8, 2015 (Docket No. 323587), pp. 1-2, 2015 WL 8285117. Pertinent to this appeal, a jury convicted defendant of first-degree home invasion, MCL 750.110a(2) ; assault with the intent to commit armed robbery (AICAR), MCL 750.89 ; resisting and obstructing a police officer (obstruction), MCL 750.81d(1) ; and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. The trial court sentenced defendant to concurrent prison terms of 51 to 240 months for the first-degree home-invasion conviction, 81 to 180 months for the AICAR conviction, 330 days in jail for the obstruction conviction, and a consecutive prison term of 24 months for each felony-firearm conviction. On appeal to this Court, defendant challenged his convictions and sentences. This Court affirmed defendant's convictions but agreed with the prosecutor that defendant's sentencing variables were improperly calculated on the basis of judicially found facts. Anderson , unpub. op. at 3. Therefore, this Court remanded the case to the trial court for correction of defendant's presentence investigation report and judgment of sentence. Id . at 4. Further, the panel instructed the trial court to determine whether it would have imposed a materially different sentence under the sentencing procedure described in People v. Lockridge , 498 Mich. 358, 870 N.W.2d 502 (2015). Id .
While defendant's first appeal was pending, he entered into an agreement with the prosecution to testify against his brother, Willie Eddie Anderson II, at Willie's trial in exchange for shorter sentences. Defendant testified at Willie's trial that the sentencing agreement required him to testify truthfully that Willie participated in the home invasion for which defendant was convicted. Defendant then testified that Willie participated in the home invasion, and Willie was ultimately convicted for that participation.
Following defendant's testimony, the trial court in this case entered an amended judgment of sentence reducing defendant's sentence to 120 days for the first-degree home-invasion, AICAR, and obstruction convictions and to 24 months for the felony-firearm convictions, consistent with the sentencing agreement. Subsequently, Willie moved for a new trial in his case. At a hearing on Willie's motion, defendant testified that he perjured himself at Willie's trial and that Willie was not involved in the home invasion. The trial court ultimately denied Willie's motion, and this Court affirmed Willie's convictions and sentences on appeal. See People v. Anderson , unpublished per curiam opinion of the Court of Appeals, issued October 19, 2017 (Docket No. 331466, 2017 WL 4699734 ). Nevertheless, in response to defendant's testimony that he perjured himself at Willie's trial, the prosecutor moved to rescind the sentencing agreement and resentence defendant. The trial court granted this motion and reimposed defendant's original sentences.
This appeal followed.
II. ANALYSIS
We review a trial court's decision on a motion to rescind a sentencing agreement for an abuse of discretion. See People v. Cole , 491 Mich. 325, 329-330, 817 N.W.2d 497 (2012). "Whether a trial court followed an appellate court's ruling on remand is a question of law that this Court reviews de novo." Schumacher v. Dep't of Natural Resources , 275 Mich. App. 121, 127, 737 N.W.2d 782 (2007).
A. RESCISSION OF THE SENTENCE AGREEMENT
On appeal, defendant first argues that the trial court erred by granting the prosecutor's motion to rescind the sentencing agreement. We disagree.
Defendant testified on the record that the sentencing agreement required him to provide truthful testimony in the case against Willie in exchange for lesser sentences. By his own admission, however, defendant perjured himself at Willie's trial. Thus, defendant's own testimony establishes that he breached the sentencing agreement. Moreover, even if defendant is to be believed that he perjured himself at the hearing on Willie's motion for a new trial-rather than at Willie's trial-defendant still breached the sentencing agreement. According to defendant's testimony at Willie's trial, his sentencing agreement required him to testify truthfully in the case against Willie, not just at Willie's trial. Therefore, regardless of whether defendant perjured himself at Willie's trial or at the subsequent hearing, the record is clear that defendant breached the sentencing agreement.
By submitting a sentencing agreement to the trial court, the prosecutor and the defendant enter into a contractual bargain. Because the defendant and the prosecutor are equally entitled to benefit from the agreement, when the defendant's breach prevents the prosecutor from reaping the benefit of the contractual bargain, the prosecutor has a right to rescind the agreement. See People v. Siebert , 201 Mich. App. 402, 413-414, 507 N.W.2d 211 (1993). Thus, because it is clear that defendant breached his promise to testify truthfully in the case against Willie-either at Willie's trial or at the hearing on Willie's motion for a new trial-the trial court did not abuse its discretion by granting the prosecutor's motion to rescind the sentencing agreement.
B. DEFENDANT'S RESENTENCING
Because defendant had already been convicted and sentenced at the time he entered into the sentencing agreement, upon rescission of that agreement, the proper course of action, generally, would have been for the trial court to reimpose its original sentences. But the original sentences in this case were subject to this Court's remand for reconsideration of the sentences in light of several scoring errors. The trial court, however, never had the opportunity to address this Court's remand order because the parties entered into the sentencing agreement during the pendency of the first appeal. Thus, after granting the prosecutor's motion to rescind the agreement, the trial court was required to address this Court's remand instructions before imposing any sentence.
As noted earlier, in defendant's first appeal, this Court instructed the trial court to determine whether it would have imposed a materially different sentence under the sentencing procedure described in Lockridge , 498 Mich. 358, 870 N.W.2d 502. Under this procedure, the trial court must first grant the defendant an opportunity "to avoid resentencing by promptly notifying the trial judge that resentencing will not be sought." Id . at 398, 870 N.W.2d 502 (cleaned up). If the defendant does not so notify the trial court, the trial court should obtain the views of counsel on whether the defendant should be resentenced. Id . The defendant's presence is not required when making this inquiry, and thus, the trial court need not hold a hearing. Id . Once the trial court has made its decision whether to resentence the defendant, the trial court must "either place on the record a decision not to resentence, with an appropriate explanation, or vacate the sentence and, with the defendant present, resentence" the defendant-again, with an appropriate explanation on the record. Id . (cleaned up).
After granting the prosecutor's motion to rescind the sentencing agreement, the trial court in this case reimposed the original sentences without inquiring whether defendant should be resentenced in light of the earlier-noted scoring errors and without explaining its decision on the record. Thus, we must remand this case for the trial court to follow the procedure set forth in Lockridge . Contrary to defendant's argument on appeal, because his presence is not required to make the initial determination whether he should be resentenced, the trial court is not required to hold a hearing on remand unless it decides to resentence defendant. Accordingly, defendant's claim that his counsel was ineffective for failing to request a hearing with defendant present is without merit. See People v. Sabin (On Second Remand) , 242 Mich. App. 656, 660, 620 N.W.2d 19 (2000). Moreover, because we remand this case for the trial court to follow the Lockridge -remand procedure, we need not address defendant's claim that his counsel was ineffective for failing to request that procedure in the first instance.
Thus, we affirm the trial court's rescission of the sentencing agreement but remand for further proceedings consistent with this opinion. We do not retain jurisdiction.
Riordan, P.J., and Ronayne Krause, J., concurred with Swartzle, J.
Because defendant and his brother share a last name, we use Willie's first name throughout this opinion to avoid any confusion. | [
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On order of the Court, the application for leave to appeal the February 26, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 14, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the February 14, 2019 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 25, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 30, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 20, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the August 21, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the August 30, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Viviano, J., not participating due to a familial relationship with the presiding circuit court judge in this case. | [
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Boonstra, J.
In this interlocutory appeal, the prosecution appeals by delayed leave granted the trial court's order denying the prosecution's motion in limine to preclude defendant from presenting a delegation defense to the jury. We reverse and remand for further proceedings.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Because this appeal presents a question of law that hinges on statutory interpretation, we will only briefly discuss the factual background of this case. It is undisputed that defendant is a formerly licensed veterinarian whose license to practice veterinary medicine in Michigan was revoked in November 2015. In 2016, the Michigan Bureau of Professional Licensing received complaints that defendant had performed "spay and neuter" surgeries without a valid license. An investigation revealed that defendant owned a business called "Spay Neuter Express." Dr. Duane Fitzgerald, a licensed veterinarian, worked for Spay Neuter Express as an independent contractor and was designated as its attending veterinarian. Dr. Fitzgerald described the business as "an ambulatory service that serves remote areas or rural areas for spaying and neutering people's pets ... set up in a mobile home that has been converted to a surgical facility."
Defendant was charged with three counts of the unauthorized practice of a health profession, MCL 333.16294, related to performing veterinary surgery in December 2016 while his license to practice veterinary medicine was revoked. During defendant's preliminary examination, Dr. Fitzgerald testified that on December 16, 2016, defendant performed many of the surgeries that had been scheduled for that day and that he and defendant performed their respective surgeries in the same general area. Dr. Fitzgerald stated that he did not oversee defendant; he agreed that he did nothing to ensure that defendant was performing the procedures properly and that he did not check to see how many procedures defendant had completed. He also believed the animals on which defendant operated were defendant's patients, not his. Dr. Fitzgerald was aware that defendant's veterinary license had been suspended or revoked. He characterized defendant as a competent surgeon who possessed the knowledge and skills to perform veterinary surgery.
After defendant was bound over to the circuit court, he moved to quash the information on the ground that Dr. Fitzgerald, a licensed veterinarian, had properly delegated to defendant the surgical tasks that he performed. In response, the prosecution asserted that a delegation defense was unavailable as a matter of law and moved to preclude defendant from presenting such a defense to the jury. After an evidentiary hearing, at which Dr. Fitzgerald testified consistently with his preliminary examination testimony, the trial court denied the prosecution's motion, stating that there was not "anything within the statutes or rules that say, 'You cannot perform a surgery' " and that it was "a question for the jury."
This appeal followed. The trial court granted the prosecution's motion for a stay of proceedings pending the resolution of this appeal.
II. STANDARD OF REVIEW
We review for an abuse of discretion a trial court's ruling on a motion in limine. Bartlett v. Sinai Hosp. of Detroit , 149 Mich. App. 412, 418, 385 N.W.2d 801 (1986). However, we review de novo as a question of law matters of statutory interpretation. People v. Thomas , 263 Mich. App. 70, 73, 687 N.W.2d 598 (2004). Further, when "delegation of authority ... [is] a legal nullity, the question of whether [the] defendant's actions constitute illegal conduct is one of law to be decided by the trial court." People v Ham-Ying , 142 Mich. App. 831, 836, 371 N.W.2d 874 (1985). A trial court abuses its direction when it makes an error of law or operates within an incorrect legal framework. People v. Everett , 318 Mich. App. 511, 516, 899 N.W.2d 94 (2017).
III. ANALYSIS
The prosecution argues that the trial court erred by failing to hold as a matter of law that defendant may not present the defense of delegation in this case. Given the specific acts alleged in this case, the undisputed expert testimony, and the language of the relevant statutes, we agree.
"The primary goal of statutory interpretation is to ascertain and give effect to the intent of the Legislature." Thomas , 263 Mich. App. at 73, 687 N.W.2d 598 (quotation marks and citation omitted). In order to discern legislative intent, this Court first looks to the language of the statute. People v. Borchard-Ruhland , 460 Mich. 278, 284, 597 N.W.2d 1 (1999). "When construing a statute, the court must presume that every word has some meaning and should avoid any construction that would render any part of the statute surplusage or nugatory," and "[i]f possible, effect should be given to each provision."
Id . at 285, 597 N.W.2d 1. "This Court must look to the purpose of the statute ... [and] the harm it is designed to remedy, and apply a reasonable construction that accomplishes the statute's purpose." People v. Stone Transp., Inc ., 241 Mich. App. 49, 51, 613 N.W.2d 737 (2000).
Veterinary medicine is an occupation that falls within the purview of the Public Health Code, MCL 333.1101 et seq . A veterinarian is "an individual licensed ... to engage in the practice of veterinary medicine." MCL 333.18805(3). Persons who are not licensed "or otherwise authorized" are prohibited from practicing veterinary medicine. MCL 333.18811(1). MCL 333.18805(2) provides:
"Practice of veterinary medicine" means:
(a) Prescribing or administering a drug, medicine, treatment, or method of procedure; performing an operation or manipulation; applying an apparatus or appliance; or giving an instruction or demonstration designed to alter an animal from its normal condition.
(b) Curing, ameliorating, correcting, reducing, or modifying a disease, deformity, defect, wound, or injury in or to an animal.
(c) Diagnosing or prognosing, or both, a disease, deformity, or defect in an animal by a test, procedure, manipulation, technique, autopsy, biopsy, or other examination.
Under the Public Health Code, the unauthorized practice of a health profession, including veterinary medicine, is a felony:
Except as provided in [ MCL 333.16215 ], an individual who practices or holds himself or herself out as practicing a health profession regulated by this article without a license or registration or under a suspended, revoked, lapsed, void, or fraudulently obtained license or registration, or outside the provisions of a limited license or registration, or who uses as his or her own the license or registration of another person, is guilty of a felony. [ MCL 333.16294.]
MCL 333.16215 provides certain exceptions to the statute criminalizing unlicensed practice, stating in relevant part:
(1) Subject to subsections (2) to (6), a licensee who holds a license other than a health profession subfield license may delegate to a licensed or unlicensed individual who is otherwise qualified by education, training, or experience the performance of selected acts, tasks, or functions where the acts, tasks, or functions fall within the scope of practice of the licensee's profession and will be performed under the licensee's supervision.[ ] A licensee shall not delegate an act, task, or function under this section if the act, task, or function, under standards of acceptable and prevailing practice, requires the level of education, skill, and judgment required of the licensee under this article.
* * *
(7) An individual who performs acts, tasks, or functions delegated pursuant to this section does not violate the part that regulates the scope of practice of that health profession. [ MCL 333.16215(1) and (7).]
Defendant argued in the trial court, and argues on appeal, that there is no specific statute or administrative rule prohibiting the delegation of veterinary tasks (including surgery) to an individual whose license has been suspended, noting that the Board of Veterinary Medicine has promulgated a rule regarding delegation that does not preclude the delegation of tasks to unlicensed individuals. See Mich. Admin. Code, R 338.4911. Defendant's argument ignores the fact that MCL 333.16215(1) prohibits a licensee from delegating an act, task, or function that, "under standards of acceptable and prevailing practice, requires the level of education, skill, and judgment required of [a] licensee...." At the motion hearing, unrebutted expert testimony by Dr. Dwight McNally, a licensed veterinarian who sits on the State Veterinary Board and was qualified as an expert in veterinary medicine, established that the "acceptable and prevailing practice" for veterinary medicine does not allow for the delegation of surgery to an individual who is not licensed at the time. Moreover, because defendant's license was revoked for providing substandard care to animals upon which he performed spay and neuter procedures, a determination has been made that defendant does not meet the requirements of a licensee regarding "the level of education, skill, and judgment" required, not only to practice veterinary medicine in general, but to perform the specific task that forms the basis of the charges against him.
Our conclusion is supported by the fact that veterinary technicians, who are defined as persons who have obtained licensure as a veterinary technician, MCL 333.18811(2), and who "practice ... veterinary medicine based on less comprehensive knowledge and skill than that required of a veterinarian" under the supervision of a veterinarian, MCL 333.18805(1), are explicitly prohibited from performing as a surgeon, MCL 333.18811(3). If a licensed veterinary technician may not perform surgery under delegation, then it follows that an unlicensed person acting as a veterinary technician may not either. While we recognize that practice as a veterinary technician is a "subfield of the practice of veterinary medicine," MCL 333.18808, this suggests a legislative intent that the practice of veterinary surgery not be delegated to individuals who are not validly licensed practitioners of veterinary medicine. See Stone Transp., Inc ., 241 Mich. App. at 51, 613 N.W.2d 737.
This Court's reasoning in Ham-Ying is both relevant to our conclusion and persuasive. In Ham-Ying , 142 Mich. App. at 833, 371 N.W.2d 874, the question on appeal concerned "the extent to which a licensed physician may delegate tasks to a physician whose license has been suspended." In that case, the defendant-physician's license had been suspended, but he continued to refill prescriptions for patients. Id . After being charged with the unauthorized practice of medicine, MCL 333.16294, the "defendant argued that he had been delegated proper authority by a licensed physician to dispense refill maintenance medication pursuant to MCL 333.16215." Id . at 834, 371 N.W.2d 874. The Ham-Ying Court held that delegation was improper, explaining that although the defendant had the requisite education, training, and experience, the conduct that had led to the suspension of his license demonstrated that he did not possess the requisite judgment of a licensee and that the licensee's duties could not be delegated to him as a matter of law. Id . at 836, 371 N.W.2d 874.
We recognize that the Public Health Code is more explicit in stating that the prescribing of controlled substances can only be done by a licensed physician and that such substances may only be dispensed by a licensed physician or pharmacist. See MCL 333.17751. But we conclude that a reasonable construction of the relevant statutory language concerning the practice of veterinary medicine compels the same conclusion. See Stone Transp., Inc ., 241 Mich. App. at 51, 613 N.W.2d 737.
We also are not persuaded by defendant's citation of Dep't of Consumer & Indus. Servs. v. Hoffmann , 230 Mich. App. 170, 583 N.W.2d 260 (1998). In Hoffmann , this Court stated without elaboration that a veterinarian could delegate the practice of chiropractic medicine on horses to a licensed chiropractor who did not possess a license to practice veterinary medicine. Id . at 179, 583 N.W.2d 260. However, the Court focused its analysis on whether the defendant in that case had, in fact, been properly supervised. Id . at 179-180, 583 N.W.2d 260. In any event, the defendant in Hoffmann was a properly licensed chiropractor; in other words, the issue was whether a properly licensed healthcare provider could practice his or her form of medical treatment on animals, and the Hoffmann Court concluded that one could, if one was qualified to do so by education, skill, and training and was supervised by a licensed veterinarian. Id . at 180, 583 N.W.2d 260. That a validly licensed chiropractor may possess "the level of education, skill, and judgment" necessary to perform chiropractic tasks delegated by a veterinarian, MCL 333.16215(1), does not alter our conclusion that defendant did not meet those criteria regarding veterinary surgery under the circumstances of this case. The trial court abused its discretion by denying the prosecution's motion in limine, because Dr. Fitzgerald could not, as a matter of law, delegate the task of veterinary surgery to defendant. Bartlett , 149 Mich. App. at 418, 385 N.W.2d 801 ; Everett , 318 Mich. App. at 516, 899 N.W.2d 94.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
Borrello, P.J., and M. J. Kelly, JJ., concurred with Boonstra, J.
People v. Langlois , unpublished order of the Court of Appeals, entered March 15, 2018 (Docket No. 340477).
The revocation was upheld by this Court in 2017. See Dep't of Licensing & Regulatory Affairs v. Langlois , unpublished per curiam opinion of the Court of Appeals, issued February 14, 2017 (Docket No. 330451).
The trial court also denied defendant's motion to quash on July 17, 2017.
The Public Health Code defines "supervision" as
the overseeing of or participation in the work of another individual by a health professional licensed under this article in circumstances where at least all of the following conditions exist:
(a) The continuous availability of direct communication in person or by radio, telephone, or telecommunication between the supervised individual and a licensed health professional.
(b) The availability of a licensed health professional on a regularly scheduled basis to review the practice of the supervised individual, to provide consultation to the supervised individual, to review records, and to further educate the supervised individual in the performance of the individual's functions.
(c) The provision by the licensed supervising health professional of predetermined procedures and drug protocol. [MCL 333.16109(2).]
Langlois , unpub op at 1-2. | [
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On order of the Court, the application for leave to appeal the November 2, 2017 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the January 23, 2018 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 7, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. | [
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On order of the Court, the motion for reconsideration of this Court's May 1, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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On order of the Court, the motion for reconsideration of this Court's April 3, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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On order of the Court, the application for leave to appeal the January 10, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the July 6, 2017 order of the Court of Appeals is considered and, it appearing to this Court that the case of People v. Straughter (Docket No. 156198) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. | [
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On order of the Court, the application for leave to appeal the August 1, 2017 order of the Court of Appeals is considered, and it is DENIED, because the defendant's motion for relief from judgment is prohibited by MCR 6.502(G). | [
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On order of the Court, the application for leave to appeal the December 27, 2016 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on whether to grant the application or take other action. MCR 7.305(H)(1).
The appellant shall file a supplemental brief within 42 days of the date of this order addressing whether the trial court abused its discretion by declining to grant a new trial on grounds of newly discovered evidence, and in particular, whether the trial court erred in concluding that the newly discovered evidence would not make a different result probable on retrial. In addition to the brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellee shall file a supplemental brief within 21 days of being served with the appellant's brief. The appellee shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant. A reply, if any, must be filed by the appellant within 14 days of being served with the appellee's brief. The parties should not submit mere restatements of their application papers. | [
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On order of the Court, the application for leave to appeal the August 24, 2017 judgment of the Court of Appeals is considered and, it appearing to this Court that the case of People v. Urban (Docket No. 156458), --- Mich. ----, 913 N.W.2d 335, 2018 WL 3339540 (2018) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. | [
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On order of the Chief Justice, the motion of defendant-appellant to extend the time for filing his supplemental brief is GRANTED. The supplemental brief will be accepted as timely filed if submitted on or before July 27, 2018. | [
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On order of the Chief Justice, the motion of defendant-appellant to extend the time for filing his supplemental brief is GRANTED. The supplemental brief will be accepted as timely filed if submitted on or before August 10, 2018. | [
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On order of the Chief Justice, the motion of defendant-appellee/cross-appellant to extend the time for filing his supplemental brief is GRANTED. The supplemental brief will be accepted as timely filed if submitted on or before August 9, 2018. | [
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On March 3, 2018, the Court heard oral argument on the application for leave to appeal the September 15, 2011 judgment of the Court of Appeals. By order of March 30, 2018, the Court of Appeals opinion was vacated and the case was remanded to that court for reconsideration. On order of the Court, the Court of Appeals opinion on remand having been received, the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Bernstein, J. (dissenting).
I respectfully dissent from the order denying leave to appeal. After hearing oral argument on the application for leave to appeal, we vacated the Court of Appeals opinion and remanded the case to the Court of Appeals for reconsideration. In particular, we directed the Court of Appeals to determine whether the defendant is entitled to relief under MCR 6.508(D).
In this case, defendant raised substantive claims of ineffective assistance of counsel, arguing that his trial counsel had failed him in numerous ways. On remand, the Court of Appeals concluded that trial counsel's performance had been defective only in his handling of an MRE 609 issue; this was in contrast to the trial court's conclusion that trial counsel had also erred by failing to investigate or call potential alibi witnesses as well as potential medical experts. The Court of Appeals determined that the trial court had clearly erred by finding that trial counsel had erred in these additional respects. In so holding, the Court of Appeals credited trial counsel's testimony at the evidentiary hearing and found that trial counsel's strategy was reasonable.
I write separately because it seems clear to me that the Court of Appeals is the one that has committed legal error here, not the trial court. The Court of Appeals refers to ample, well-grounded caselaw for the proposition that appellate courts should not " 'second-guess [defense counsel's] strategic decisions with the benefit of hindsight.' " People v. Hewitt-El (On Remand) , unpublished per curiam opinion of the Court of Appeals, issued May 8, 2018 (Docket No. 332946), p. 7, 2018 WL 2121478, quoting People v. Dunigan , 299 Mich. App. 579, 590, 831 N.W.2d 243 (2013). However, in giving trial counsel deference, the Court of Appeals completely fails to acknowledge the deference it owes to the trial court's factual findings.
"Findings of fact by the trial court may not be set aside unless clearly erroneous. In the application of this principle, regard shall be given to the special opportunity of the trial court to judge the credibility of the witnesses who appeared before it." MCR 2.613(C). As this Court has previously stated, "if resolution of a disputed factual question turns on the credibility of witnesses or the weight of the evidence, we will defer to the trial court, which had a superior opportunity to evaluate these matters." People v. Sexton (After Remand) , 461 Mich. 746, 752, 609 N.W.2d 822 (2000). Moreover, in this case, the same judge presided over both the trial and the post-conviction evidentiary hearing, and was thus the only one who had the opportunity to assess the credibility of all of the relevant witnesses.
Curiously, despite the fact that the clear-error standard of review is as well settled as the standard of review that applies to ineffective assistance of counsel claims, at no point in its opinion does the Court of Appeals give the trial court's factual findings the deference they are due. Although lip service is paid to the notion that factual findings are only clearly erroneous "if the reviewing court, upon review of the entire record, 'is left with a definite and firm conviction that a mistake has been made,' " Hewitt-El , unpub. op. at 4, quoting People v. McSwain , 259 Mich. App. 654, 682, 676 N.W.2d 236 (2003), the Court of Appeals completely fails to engage in any analysis of how the trial court's findings were clearly erroneous.
Despite noting that review of the entire record is warranted, the Court of Appeals only focuses on trial counsel's self-serving testimony, neglecting the parts of his testimony that were vague, inconsistent, and found not to be credible by the trial court. Although caselaw instructs that factual findings are only clearly erroneous when an appellate court is left with a definite and firm conviction that a mistake has been made, the Court of Appeals does not begin to explain how the trial court's credibility finding was mistaken in the first place, much less how the Court of Appeals is possessed of the definite and firm conviction thereof. The Court of Appeals opinion fails to even acknowledge the trial court's contrary credibility determination; instead of grappling with the proper standard of review, the Court of Appeals effortlessly glides right over what it leaves out, acting as if it is merely filling a space where nothing previously existed.
That the Court of Appeals disagrees with the trial court's credibility determination seems clear; what is less clear is where in the law the Court of Appeals finds the authority to substitute its own credibility determination for that of the trial court. Because I would apply our well-settled caselaw and the plain and unambiguous language of our court rules to the facts of this case, I would find that trial counsel's performance was deficient in multiple regards.
Despite having previously noted that "[a]llowing the jury to learn that defendant had previously been convicted of armed robbery five times substantially increased the risk of unfair prejudice to defendant, particularly where defendant was presently charged with armed robbery," Hewitt-El , unpub. op. at 6-7, when addressing whether trial counsel's performance was prejudicial, the Court of Appeals merely notes that the prosecution had a strong case. No mention is made of this substantial risk of unfair prejudice. Here, the prior convictions that were admitted were identical to the one defendant was being tried for, and were thus highly prejudicial. See People v. Snyder , 301 Mich. App. 99, 106, 835 N.W.2d 608 (2013). Excluding these prior convictions would have materially improved defendant's odds of acquittal, especially where defendant was the sole witness in his own defense, and his credibility was thus of utmost importance. I would find that defendant has established a reasonable likelihood that, but for trial counsel's deficiency, he would have been acquitted. See MCR 6.508(D)(3)(b)(i).
McCormack, J., joins the statement of Bernstein, J.
The trial court specifically noted: "While [trial counsel] believes he performed strategically and without errors, this Court finds that his opinion of himself is inflated and unreasonable and if not for the numerous aforementioned errors, there is a reasonable probability that the proceeding would have been different." | [
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By order of June 2, 2017, the application for leave to appeal the March 21, 2017 judgment of the Court of Appeals was held in abeyance pending the decision in In re Hill, Minors (Docket No. 155152). On order of the Court, leave to appeal having been denied in In re Hill, Minors on April 6, 2018, 501 Mich. 1047, 909 N.W.2d 260 (2018), the application is again considered and, it appearing to this Court that the case of In re Ferranti, Minor (Docket No. 157907-8) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. | [
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On order of the Court, the application for leave to appeal the February 1, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the March 15, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal prior to decision by the Court of Appeals is considered, and it is DENIED, because the Court is not persuaded that the questions presented should be reviewed by this Court before consideration by the Court of Appeals. | [
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On order of the Court, the motion to add issues is GRANTED. The application for leave to appeal the December 12, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 1, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the motion for reconsideration of this Court's May 1, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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On order of the Court, the application for leave to appeal the November 21, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 12, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 20, 2017 order of the Court of Appeals is considered. We DIRECT the Oakland County Prosecuting Attorney to answer the application for leave to appeal within 28 days after the date of this order. The prosecutor shall specifically address whether, in light of People v. Johnston , 478 Mich. 903, 732 N.W.2d 531 (2007), the trial court properly assigned 15 points to Offense Variable (OV) 1, MCL 777.31, and 5 points to OV 2, MCL 777.32.
The application for leave to appeal remains pending. | [
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On order of the Court, the application for leave to appeal the December 1, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the December 12, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the January 11, 2018 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the November 8, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 27, 2017 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). The motion to remand is DENIED. | [
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On order of the Court, the application for leave to appeal the October 17, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 12, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the November 15, 2017 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the motion for reconsideration of this Court's April 3, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously.
Wilder, J., did not participate because he was on the Court of Appeals panel. | [
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On order of the Court, the application for leave to appeal the September 12, 2017 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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On order of the Court, the application for leave to appeal the September 12, 2017 order of the Court of Appeals is considered and, it appearing to this Court that the case of People v. Straughter (Docket No. 156198), --- Mich. ----, 910 N.W.2d 297 (2018) is pending on appeal before this Court and that the decision in that case may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decision in that case. | [
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Per Curiam.
This case is before us on remand from the Michigan Supreme Court. Previously, defendant Eric Swager appealed in this Court as of right, asserting that the trial court erred by denying his motion for summary disposition on governmental immunity grounds under the governmental tort liability act (GTLA), MCL 691.1401 et seq . In our prior opinion, we reversed the trial court's decision and remanded for entry of summary disposition in Swager's favor on the basis of our conclusion that reasonable minds could not conclude that Swager was "the proximate cause" of plaintiff Kersch Ray's injuries. Ray v. Swager , unpublished opinion of the Court of Appeals, issued October 15, 2015 (Docket No. 322766), 2015 WL 6087208. Ray sought leave to appeal in the Michigan Supreme Court, and the Michigan Supreme Court, after hearing oral argument on the application, announced a new framework to clarify the process for determining "the proximate cause" in the context of the GTLA. See Ray v. Swager , 501 Mich. 52, 64-65, 903 N.W.2d 366 (2017). The Supreme Court vacated our decision and remanded for reconsideration in light of its decision. Id. at 83, 903 N.W.2d 366 . On remand, because issues of material fact remain that preclude summary disposition, we affirm the trial court's denial of Swager's motion for summary disposition, and we remand to the trial court for further proceedings.
On September 2, 2011, 13-year-old Ray was struck by an automobile driven by Scott Platt. The accident occurred at the intersection of Freer Road and Old US-12 while Ray was running with the Chelsea High School cross-country team. Swager-the team's coach-was running with the team that morning. As the team approached the intersection in question, they encountered a "red hand" on the pedestrian signal, indicating that pedestrians should not cross the road. See MCL 257.613(2)(b). Although the eyewitness accounts vary, there is evidence that Swager said something to the effect of "let's go," and the team crossed the street. Ray, who was in the back of the group, ran into the road, and he was hit by a car driven by Platt.
Following the accident, Ray filed the instant lawsuit. Swager moved for summary disposition on governmental-immunity grounds, asserting that he was entitled to immunity as a governmental employee under MCL 691.1407(2) because he had not been "grossly negligent" and because his conduct was not "the proximate cause"
of plaintiff's injuries. The trial court denied Swager's motion, concluding that the case was "fact laden." Swager then appealed as of right in this Court, and we reversed the decision of the trial court and remanded for entry of summary disposition in favor of Swager. Specifically, we concluded that Swager's verbal remarks could not reasonably be considered the proximate cause of Ray's injuries within the meaning of the GTLA, considering the other more immediate and direct causes of Ray's injuries, including Ray's own conduct of running into the street and the fact that Ray was hit by a car driven by Platt.
The Michigan Supreme Court vacated our decision and remanded for reconsideration under a framework that clarifies "the role that factual and legal causation play when analyzing whether a defendant's conduct was 'the proximate cause' of a plaintiff's injuries under the GTLA." Ray , 501 Mich. at 64-65, 903 N.W.2d 366. The analysis under this framework begins with determining whether the defendant's gross negligence was a cause in fact of the plaintiff's injuries. Id. at 65, 903 N.W.2d 366. Provided that a defendant's gross negligence was a factual cause, the court must then consider whether the defendant was a proximate-i.e., legal-cause by addressing foreseeability and whether the defendant may be held legally responsible for his or her conduct. Id. at 65, 74, 903 N.W.2d 366. In addition to considering the governmental actor's conduct, it must also be decided whether there are other proximate causes of the injury. Id. at 65, 74-76, 903 N.W.2d 366. Determining if there were other proximate causes requires consideration of whether any other human actor was negligent because "only a human actor's breach of a duty can be a proximate cause." Id. at 72, 903 N.W.2d 366. "Nonhuman and natural forces" may bear on the question of foreseeability and intervening causes for purposes of analyzing proximate cause, but they can never be considered the proximate cause of a plaintiff's injuries for purposes of the GTLA. Id.
Once the various proximate causes have been determined, the question then becomes whether, taking all possible proximate causes into account, the government actor's gross negligence was the proximate cause of injury. Id. at 83, 903 N.W.2d 366. This requires "considering defendant's actions alongside any other potential proximate causes to determine whether defendant's actions were, or could have been, 'the one most immediate, efficient, and direct cause' of the injuries." Id. at 76, 903 N.W.2d 366. The relevant inquiry is not whether the defendant's conduct was the immediate factual cause of injury, but whether, weighing the legal responsibilities of the actors involved, the government actor could be considered "the proximate cause." Id. at 71-72, 903 N.W.2d 366.
Considering this standard in the context of the current case, we conclude that there are material questions of factual dispute that prevent us from assessing the actors' respective negligence, weighing their competing legal responsibilities, determining the proximate cause of Ray's injuries, and resolving Swager's claim to governmental immunity as a matter of law. In particular, from the record before us, it appears there are three persons whose conduct could potentially be considered a proximate cause-Swager, Ray, and Platt. See id. at 64-65, 903 N.W.2d 366. However, the record before us is not uncontested with regard to the facts and circumstances surrounding the actions taken by these individuals. Instead, there are numerous accounts of the accident in the record before us, and these accounts differ widely in terms of the configuration of the group of runners, precisely what Swager said, and to whom he said it.
In our previous opinion, we concluded that these factual disputes were not material because, even if Ray heard Swager, Swager's verbal remarks were simply too remote to be considered the one most immediate, efficient, and direct cause of Ray's injuries given that Ray ultimately ran into the street under his own power and was then struck by a car driven by Platt. Ray , unpub op. at 3-4. However, under the standard set forth by the Supreme Court, these factual disputes now preclude summary disposition. For instance, one of the main points of factual contention is how far Ray trailed the group of runners. Ray's location relative to the rest of the group bears on whether he even heard Swager, whether Swager's instruction applied to Ray, whether Ray had a duty to independently evaluate the safety of the road before crossing, and whether Ray could be considered negligent in relying on Swager's remark. Whether Swager's instruction applied to Ray-and how far Ray trailed the group-is also material to determining whether Swager was grossly negligent in giving this instruction and whether it was foreseeable that Ray would follow Swager into the road without looking. Aside from the actions of Swager and Ray, there are also factual disputes regarding Platt's conduct, including debate about whether he accelerated as he approached the yellow traffic light despite the presence of numerous runners in the area. In short, given the myriad variables affecting the actors' respective negligence and legal responsibility, and in light of the factual disputes relating to these issues, we cannot conclude as a matter of law that Swager was not grossly negligent and that this gross negligence did not constitute the proximate cause of Ray's injuries. See MCL 691.1407(2)(c). Consequently, Swager was not entitled to summary disposition based on immunity granted by the GTLA. See Poppen , 256 Mich. App at 354, 664 N.W.2d 269. Therefore, we affirm the circuit court order denying Swager's motion for summary disposition.
Affirmed and remanded for further proceedings. We do not retain jurisdiction.
Saad and Hoekstra, JJ., concurred.
See Poppen v. Tovey , 256 Mich. App 351, 354, 664 N.W.2d 269 (2003) ("If the facts are not in dispute and reasonable minds could not differ concerning the legal effect of those facts, whether a claim is barred by immunity is a question for the court to decide as a matter of law.").
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Markey, J.
Diane Nash, as personal representative of the Estate of Chance Aaron Nash, sought certain documents and information under the Michigan Freedom of Information Act (FOIA), MCL 15.231 et seq ., from defendant, the city of Grand Haven. Following an in camera review of documents that the city claimed were subject to the attorney-client privilege and a bench trial related to 12 documents the trial court identified during its in camera review as requiring further explanation, the trial court ordered the city to produce some documents to plaintiff and ruled that others were exempt from disclosure because they were subject to the attorney-client privilege. The trial court concluded that plaintiff prevailed in part on the FOIA claim but was not entitled to attorney fees. Plaintiff now appeals by right. We affirm.
The instant case is one of a series of lawsuits related to the death of Chance Aaron Nash, who was involved in a fatal sledding accident on December 31, 2009, at Duncan Park in the city of Grand Haven. In the underlying tort litigation, plaintiff has sued the Duncan Park Commission, the Duncan Park Trustees, the individual trustees, and Duncan Park groundskeeper Robert DeHare.
Plaintiff's original FOIA request sought documents and information from the city related to the accident, the underlying tort litigation, Duncan Park, and the employment of DeHare. The city denied plaintiff's request in part, stating that it did not have information or documents related to DeHare's employment because he was not an employee of the city and that some information and records were exempt from disclosure pursuant to MCL 15.243(1)(g) because they were subject to the attorney-client privilege. Plaintiff filed the instant FOIA lawsuit while the underlying tort litigation was still pending. Plaintiff's complaint alleged that the city "denied, in part, Plaintiff's request, claiming the documents in its possession were exempt from disclosure as being subject to the attorney-client privilege" and that "[t]he requested public records are not exempt from disclosure and [the city] has arbitrarily and capriciously violated the FOIA." Plaintiff did not base the claim of a FOIA violation on any other ground.
On appeal, plaintiff first argues that the trial court erred by applying federal precedent regarding the common-interest doctrine of the attorney-client privilege. We disagree.
An appellate court "reviews de novo whether the trial court properly interpreted and applied FOIA." ESPN, Inc. v. Mich. State Univ. , 311 Mich.App. 662, 664, 876 N.W.2d 593 (2015). "Whether a public record is exempt from disclosure under the FOIA is a mixed question of fact and law, and we review the trial court's factual findings for clear error and review questions of law de novo." Local Area Watch v. Grand Rapids , 262 Mich.App. 136, 142, 683 N.W.2d 745, 749 (2004) (quotation marks and citation omitted). Under the clear-error standard of review, "the appellate court must defer to the trial court's view of the facts unless the appellate court is left with the definite and firm conviction that a mistake has been made by the trial court." King v. Oakland Co. Prosecutor , 303 Mich.App. 222, 225, 842 N.W.2d 403 (2013) (quotation marks and citation omitted). "Whether the attorney-client privilege applies to a communication is a question of law that we review de novo." Krug v. Ingham Co. Sheriff''s Office , 264 Mich.App. 475, 484, 691 N.W.2d 50 (2004).
"Michigan courts have interpreted the policy of the FOIA as one of full disclosure of public records unless a legislatively created exemption expressly allows a state agency to avoid its duty to disclose the information." Messenger v. Dep't of Consumer & Indus. Servs. , 238 Mich.App. 524, 531, 606 N.W.2d 38 (1999). "Consistent with the FOIA's underlying policies, a public body is required to grant full disclosure of its records, unless they are specifically exempt under MCL 15.243." Detroit Free Press, Inc. v. Southfield , 269 Mich.App. 275, 281, 713 N.W.2d 28 (2005). "In construing the provisions of the act, [courts must] keep in mind that the FOIA is intended primarily as a prodisclosure statute and the exemptions to disclosure are to be narrowly construed." Swickard v. Wayne Co. Med. Examiner , 438 Mich. 536, 544, 475 N.W.2d 304 (1991). "Also, when a public body refuses to disclose a requested document under the act, and the requester sues to compel disclosure, the public agency bears the burden of proving that the refusal was justified under the act." Id . See also MCL 15.240(4). "When ruling whether an exemption under the FOIA prevents disclosure of particular documents, a trial court must make particularized findings of fact indicating why the claimed exemption is appropriate." Messenger , 238 Mich.App. at 532, 606 N.W.2d 38.
Section 13, MCL 15.243(1)(g), states as follows:
(1) A public body may exempt from disclosure as a public record under this act any of the following:
* * *
(g) Information or records subject to the attorney-client privilege.
"The attorney-client privilege attaches to communications made by a client to an attorney acting as a legal adviser and made for the purpose of obtaining legal advice." Herald Co., Inc. v. Ann Arbor Pub. Sch. , 224 Mich.App. 266, 279, 568 N.W.2d 411 (1997). "The attorney-client privilege is designed to permit a client to confide in his attorney, knowing that his communications are safe from disclosure." McCartney v. Attorney General , 231 Mich.App. 722, 730, 587 N.W.2d 824 (1998). "The scope of the privilege is narrow: it attaches only to confidential communications by the client to its advisor that are made for the purpose of obtaining legal advice." Herald Co. , 224 Mich.App. at 279, 568 N.W.2d 411. "When the client is an organization, the privilege attaches to communications between the attorney and any employee or agent authorized to speak on its behalf in relation to the subject matter of the communication." Krug , 264 Mich.App. at 485, 691 N.W.2d 50 (quotation marks and citation omitted). Typically, "[o]nce otherwise privileged information is disclosed to a third party by the person who holds the privilege, or if an otherwise confidential communication is necessarily intended to be disclosed to a third party, the privilege disappears." Leibel v. Gen. Motors Corp. , 250 Mich.App. 229, 242, 646 N.W.2d 179 (2002) (quotation marks and citation omitted; alteration in original).
"The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law." Upjohn Co. v. United States , 449 U.S. 383, 389, 101 S.Ct. 677, 66 L.Ed. 2d 584 (1981). This Court looks to federal precedent for guidance in determining the scope of the attorney-client privilege when a particular issue has been addressed by a federal court. See, e.g., Leibel , 250 Mich.App. at 236-237, 646 N.W.2d 179 ; Reed Dairy Farm v. Consumers Power Co. , 227 Mich.App. 614, 619-620, 576 N.W.2d 709 (1998).
Both the trial court, in its December 22, 2016 order, and the city on appeal relied on United States v. BDO Seidman, LLP , 492 F.3d 806, 814-817 (CA 7, 2007), in which the United States Court of Appeals for the Seventh Circuit outlined the application of the common-interest doctrine to the attorney-client privilege as follows:
Although it ultimately was not adopted by Congress, the rule of attorney-client privilege promulgated by the Supreme Court in 1972 as part of the Proposed Federal Rules of Evidence has been recognized "as a source of general guidance regarding federal common law principles." Proposed Rule 503 provided:
A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client, (1) between himself or his representative and his lawyer or his lawyer's representative, or (2) between his lawyer and the lawyer's representative, or (3) by him or his lawyer to a lawyer representing another in a matter of common interest , or (4) between representatives of the client or between the client and a representative of the client, or (5) between lawyers representing the client.
Put simply, in order for the attorney-client privilege to attach, the communication in question must be made: (1) in confidence; (2) in connection with the provision of legal services; (3) to an attorney; and (4) in the context of an attorney-client relationship.
The purpose of the privilege is to "encourage full disclosure and to facilitate open communication between attorneys and their clients." Open communication assists lawyers in rendering legal advice, not only to represent their clients in ongoing litigation, but also to prevent litigation by advising clients to conform their conduct to the law and by addressing legal concerns that may inhibit clients from engaging in otherwise lawful and socially beneficial activities. The cost of these benefits is the withholding of relevant information from the courts.
Recognizing the inherent tension between the beneficial goals of the attorney-client privilege and the courts' right to every person's evidence, the courts have articulated the following principles to inform our analysis of the scope of the common interest doctrine:
(1) "[C]ourts construe the privilege to apply only where necessary to achieve its purpose."
(2) Only those communications which "reflect the lawyer's thinking [or] are made for the purpose of eliciting the lawyer's professional advice or other legal assistance" fall within the privilege.
(3) Because one of the objectives of the privilege is assisting clients in conforming their conduct to the law, litigation need not be pending for the communication to be made in connection to the provision of legal services.
(4) Because "the privilege is in derogation of the search for truth," any exceptions to the requirements of the attorney-client privilege "must be strictly confined."
Although occasionally termed a privilege itself, the common interest doctrine is really an exception to the rule that no privilege attaches to communications between a client and an attorney in the presence of a third person. In effect, the common interest doctrine extends the attorney-client privilege to otherwise non-confidential communications in limited circumstances. For that reason, the common interest doctrine only will apply where the parties undertake a joint effort with respect to a common legal interest, and the doctrine is limited strictly to those communications made to further an ongoing enterprise. Other than these limits, however, the common defense doctrine does not contract the attorney-client privilege. Thus, communications need not be made in anticipation of litigation to fall within the common interest doctrine. Applying the common interest doctrine to the full range of communications otherwise protected by the attorney-client privilege encourages parties with a shared legal interest to seek legal "assistance in order to meet legal requirements and to plan their conduct" accordingly. This planning serves the public interest by advancing compliance with the law, "facilitating the administration of justice" and averting litigation. Reason and experience demonstrate that joint venturers, no less than individuals, benefit from planning their activities based on sound legal advice predicated upon open communication. [Citations omitted; emphasis added; alterations by the Seidman Court.]
In Seidman , the defendant accounting firm was involved in litigation with the IRS regarding potentially abusive tax shelters promoted by the accounting firm. Id . at 808. A lawyer for the accounting firm wrote a memorandum to outside tax counsel "requesting legal advice on pending IRS regulations," and a copy of the memorandum was also received by an attorney at a different law firm that did not represent the defendant accounting firm but serviced the same clients as the accounting firm "on the same or related matters." Id . at 813. The attorney at this law firm claimed that she received the memorandum from the accounting firm as input regarding tax shelters that the law firm was preparing for the accounting firm and their common clients. Id . at 813. The Seventh Circuit held that the lower court did not err by concluding that the memorandum at issue was within the scope of the common-interest doctrine and thus protected by the attorney-client privilege. Id . at 814, 817. The Seidman Court reasoned that the accounting firm and law firm "shared a common legal interest 'in ensuring compliance with the new regulation issued by the IRS,' and in making sure that they could defend their product against potential IRS enforcement actions." Id . at 816 (citation omitted).
In D'Alessandro Contracting Group, LLC v. Wright , 308 Mich.App. 71, 83-84, 862 N.W.2d 466 (2014), this Court applied the federal common-interest doctrine in the context of the work-product privilege. The D'Alessandro Court stated, "While courts in this state have not expressly addressed the so-called common-interest doctrine, several federal courts have concluded that the disclosure of work product to a third party does not result in a waiver if there is a reasonable expectation of confidentiality between the transferor ... and the recipient ...." Id . at 82, 862 N.W.2d 466. This Court set forth the following explanation:
"A reasonable expectation of confidentiality may derive from common litigation interests between the disclosing party and the recipient .... [T]he existence of common interests between transferor and transferee is relevant to deciding whether the disclosure is consistent with the nature of the work product privilege. This is true because when common litigation interests are present, the transferee is not at all likely to disclose the work product material to the adversary." [ Id . at 83, 862 N.W.2d 466, quoting United States v Deloitte LLP , 391 U.S. App. DC 318, 330, 610 F.3d 129 (2010) (alterations by the D'Alessandro Court).]
The D'Alessandro Court noted that the "[f]ederal courts' application of the common-interest doctrine is instructive" because of the similarity between state and federal rules regarding the work-product privilege and because "our courts routinely rely on federal cases for guidance in determining the scope of the work-product doctrine...." Id . at 84, 862 N.W.2d 466 (quotation marks and citation omitted).
We conclude that the common-interest doctrine should similarly be applied to the attorney-client privilege in Michigan. See id. See also Leibel , 250 Mich.App. at 236-237, 646 N.W.2d 179 ; Reed Dairy Farm , 227 Mich. App. at 619-620, 576 N.W.2d 709. Plaintiff's argument that the common-interest doctrine should not apply simply because there is no Michigan case directly on point is unavailing. The waiver concept operates similarly in both the attorney-client privilege and work-product privilege contexts. Leibel , 250 Mich.App. at 248, 646 N.W.2d 179. It is also well established that this Court is free to adopt the analysis of a lower federal court "if it is persuasive and instructive." Holman v. Rasak , 281 Mich.App. 507, 509, 761 N.W.2d 391 (2008).
In this case, even though the city was not named as a defendant in the underlying tort litigation, a primary issue in that litigation has been determining the ownership of Duncan Park and the nature of the city's relationship to Duncan Park. The park was created through a charitable trust for the benefit of Grand Haven and its people. At one point, the trial court in the underlying litigation ruled that the city held fee title to Duncan Park, although the trial court's order granting summary disposition on the ground of governmental immunity was subsequently reversed on appeal. Nash v. Duncan Park Comm. , 304 Mich.App. 599, 609-610, 636, 848 N.W.2d 435 (2014), judgment vacated in part 497 Mich. 1016, 862 N.W.2d 417 (2015). Because of the dispute over who owns Duncan Park, City Manager Patrick McGinnis believed that the city was involved in the lawsuits "on some level." The record reflects that the Duncan Park Commission was created by city ordinance, pursuant to the terms of the trust deed, to manage and control Duncan Park. The record also indicates that the city entered into a license agreement with the Duncan Park Commission in which the city agreed to extend liability insurance coverage through its insurance carrier to Duncan Park, the Duncan Park Commission, the Duncan Park Trust, and the trustees-i.e., the Duncan Park tort defendants-in exchange for the use of the park. The city was the principal insured on the policy. There was also evidence that Selective Insurance, the city's insurance carrier, hired attorney Cynthia Merry and her law firm as defense counsel to represent the Duncan Park tort defendants and the interests of the city as necessary throughout the underlying tort litigation. Furthermore, the city hired attorney Gregory Longworth to represent groundskeeper DeHare in the tort litigation. Longworth was an attorney at a law firm that had served as the city's general counsel previously.
Additionally, there was evidence that McGinnis was deposed repeatedly during the underlying tort litigation and that plaintiff sought to depose the mayor of Grand Haven, even though the city was not a party. Counsel for the city entered a limited appearance at one point in the underlying tort litigation on behalf of the city and its officials who were nonparties.
McGinnis also testified at the trial in the instant FOIA matter that the city acted in an "advisory capacity" for the tort defendants throughout that litigation because of the city's close connection to the facts of the case. As the tort litigation proceeded, McGinnis consulted with the city's attorneys and the attorneys representing the tort defendants to discuss litigation strategy and positions that the city might take in response to positions taken by plaintiff. McGinnis consulted with the city's attorneys to discuss possible issues of exposure for the city. McGinnis testified that the city had a mutual interest in achieving a successful outcome in the tort litigation and that he believed that his communications with the various attorneys were confidential.
Therefore, the record supports the conclusion that the city shared with all of the defendants in the underlying tort action a common legal interest in matters related to the operation, use, maintenance, and protection of Duncan Park for the benefit of the people of Grand Haven and that the city and the tort defendants were involved in a joint effort to prevent or limit liability from attaching to the parties involved in the operation of Duncan Park. See Seidman , 492 F.3d at 815-816 ("stating that the common interest doctrine only will apply where the parties undertake a joint effort with respect to a common legal interest").
Our review of the documents at issue in light of the other record evidence supports the conclusion that Documents 2 and 8 were confidential communications between representatives of the city or the city's attorneys and the tort defendants or attorneys representing the tort defendants with whom the city shared a common legal interest, as previously noted, and that these communications were made for the purpose of obtaining legal advice and services related to the underlying tort litigation. The same is true of Documents 4 and 10, communications that also included a representative of Selective Insurance, which was the company that provided the city's insurance policy that had been extended to the Duncan Park Commission through the license agreement. The same is also true of Document 1, with the exception of the amount of the attorney billings contained in this communication. As the trial court also found, this information was not protected by the privilege and was not exempt from disclosure; therefore, the trial court did not err by determining that these communications were protected by the attorney-client privilege and that the privilege was not waived by disclosure to the city. Krug , 264 Mich.App. at 485, 691 N.W.2d 50 ; Herald Co. , 224 Mich.App. at 279, 568 N.W.2d 411 ; Seidman , 492 F.3d at 815-817.
Regarding the communication between the city and the Michigan Attorney General's Office, the city argued in the circuit court that a shared interest was involved because the city's attorneys were directly involved in negotiating the reformation of the Duncan Park Trust that was sought in the probate court and because the city's fiduciary duties to the people of Grand Haven were aligned with the Attorney General's interests relating to the Duncan Park Trust. At the trial, counsel for the city further argued that the dynamics of the Duncan Park Trust reformation were part of the circumstances involved in the underlying tort litigation.
The petition for reformation that was submitted in the Ottawa County Probate Court indicates that the Michigan Department of Attorney General is an interested party because it "[o]versees charitable trusts" and had executed a waiver of notice and consent. The petition also indicates that the trust needed to be reformed because the "governance structure of Duncan Park, as provided in the Deed, presents ... conceptual difficulties," such as being open to the public as if publicly owned without providing governmental immunity for members of its governing body who, in turn, risk personal liability, potentially disqualifying Duncan Park from eligibility for certain funding that may only be directed to governmental and charitable entities, and requiring the city's involvement in Duncan Park without the transparency and accountability typically applicable to government bodies. The petition further stated that "Mrs. Duncan's intent to provide a public park with independent oversight for the perpetual benefit of the people of Grand Haven would be enhanced if the Deed is reformed" to make the city the sole trustee and allow the city to establish a governing board for Duncan Park by ordinance.
"In trust administration matters, the Attorney General constitutes a 'special party' under the Revised Probate Code," and "pursuant to the Supervision of Trustees for Charitable Purposes Act, the Attorney General is vested with jurisdiction and control to supervise and enforce charitable trusts." In re Estes Estate , 207 Mich.App. 194, 202, 523 N.W.2d 863 (1994) (citations omitted). Furthermore, MCL 14.254 provides, in pertinent part:
(a) The attorney general shall have jurisdiction and control and shall represent the people of the state and the uncertain or indefinite beneficiaries in all charitable trusts in this state, and may enforce such trusts by proper proceedings in the courts of this state.
(b) The attorney general is a necessary party to all court proceedings (1) to terminate a charitable trust or to liquidate or distribute its assets, or (2) to modify or depart from the objects or purposes of a charitable trust as the same are set forth in the instrument governing the trust, including any proceeding for the application of the doctrine of cy pres, or (3) to construe the provisions of an instrument with respect to a charitable trust. A judgment rendered in such proceedings without service of process and pleadings upon the attorney general, shall be voidable, unenforceable, and be set aside at the option of the attorney general upon his motion seeking such relief. The attorney general shall intervene in any proceedings affecting a charitable trust subject to this act, when requested to do so by the court having jurisdiction of the proceedings, and may intervene in any proceedings affecting a charitable trust when he determines that the public interest should be protected in such proceedings. With respect to such proceedings, no compromise, settlement agreement, contract or judgment agreed to by any or all parties having or claiming to have an interest in any charitable trust shall be valid unless the attorney general was made a party to such proceedings and joined in the compromise, settlement agreement, contract or judgment, or unless the attorney general, in writing, waives his right to participate therein. The attorney general is expressly authorized to enter into such compromise, settlement agreement, contract or judgment as in his opinion may be in the best interests of the people of the state and the uncertain or indefinite beneficiaries. [Emphasis added.]
Accordingly, the city's interest in protecting Duncan Park for the use of Grand Haven's citizens in accordance with the intent expressed in the trust deed are in alignment with the Attorney General's interests in representing the people of Michigan and uncertain or indefinite beneficiaries of charitable trusts: there was a common legal interest in ensuring that the trust was appropriately reformed to accomplish the expressed intent of the charitable trust. MCL 14.254(a) and (b) ; Seidman , 492 F.3d at 815-816.
A review of Document 11 involving the communications between attorney Nicholas Curcio representing the city and Assistant Attorney General William Bloomfield supports the conclusion that these were confidential communications between these attorneys representing common legal interests made in connection with facilitating professional legal services related to reforming the Duncan Park Trust to protect those common interests. Therefore, the trial court did not err by determining that these communications were protected by the attorney-client privilege. Krug , 264 Mich.App. at 485, 691 N.W.2d 50 ; Herald Co. , 224 Mich.App. at 279, 568 N.W.2d 411 ; Seidman , 492 F.3d at 815-816.
Documents 3, 5, 6, and 7 are not at issue for purposes of the attorney-client privilege issue because they had already been disclosed to plaintiff before the bench trial. Documents 9 and 12 are also not at issue on appeal because the trial court ruled that they were not subject to the attorney-client privilege, so they were not exempt from disclosure.
With respect to the other documents the trial court reviewed in camera and determined were subject to the attorney-client privilege, we agree that all of those documents involved communications between representatives of the city and the city's attorneys related to legal advice about matters related to Duncan Park. Therefore, these documents were protected by the attorney-client privilege. Krug , 264 Mich.App. at 485, 691 N.W.2d 50 ; Herald Co. , 224 Mich.App. at 279, 568 N.W.2d 411.
Because the attorney-client privilege applied to the challenged documents, they were exempt from disclosure. MCL 15.243(1)(g) ; Detroit Free Press , 269 Mich.App. at 281, 713 N.W.2d 28.
Next, plaintiff argues that MCL 15.240(6) does not grant the trial court discretion to determine that a plaintiff who prevails in part is not entitled to any attorney fees and that plaintiff is thus entitled to an appropriate portion of reasonable attorney fees. We disagree.
This Court "review[s] for an abuse of discretion an award of attorney fees to a prevailing plaintiff in an action under the FOIA" and reviews "a trial court's factual findings for clear error." Prins v. Mich. State Police , 299 Mich.App. 634, 641, 831 N.W.2d 867 (2013). "An abuse of discretion occurs when the trial court's decision is outside the range of reasonable and principled outcomes." Smith v. Khouri , 481 Mich. 519, 526, 751 N.W.2d 472 (2008) (opinion by TAYLOR, C.J.). "A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire record is left with a definite and firm conviction that a mistake was made."
Marilyn Froling Revocable Living Trust v. Bloomfield Hills Country Club , 283 Mich.App. 264, 296, 769 N.W.2d 234 (2009) (quotation marks and citation omitted).
MCL 15.240(6) provides, in pertinent part:
If a person asserting the right to inspect, copy, or receive a copy of all or a portion of a public record prevails in an action commenced under this section, the court shall award reasonable attorneys' fees, costs, and disbursements. If the person or public body prevails in part, the court may, in its discretion, award all or an appropriate portion of reasonable attorneys' fees, costs, and disbursements.
"A party has 'prevailed' under the FOIA if the prosecution of the action was necessary to and had a substantial causative effect on the delivery of or access to the documents." Wilson v. Eaton Rapids , 196 Mich.App. 671, 673, 493 N.W.2d 433 (1992). "[I]f a plaintiff prevails completely in an action to compel disclosure under the FOIA, the circuit court must award reasonable attorney fees." Prins , 299 Mich.App. at 641, 831 N.W.2d 867. Nonetheless, "attorney fees and costs must be awarded under the first sentence of MCL 15.240(6) only when a party prevails completely," and "whether to award plaintiff reasonable attorney fees, costs, and disbursements when a party only partially prevails under the FOIA is entrusted to the sound discretion of the trial court." Local Area Watch , 262 Mich.App. at 150, 151, 683 N.W.2d 745.
The Court in Local Area Watch noted that because the plaintiff had not prevailed "on its central claim of access to executive (closed) session minutes," the trial court did not abuse its discretion by denying the plaintiff's request for reasonable attorney fees, costs, and disbursements and the defendants had acted reasonably even though the defendants had nonetheless violated FOIA by making some late disclosures. Id . at 151, 683 N.W.2d 745, 749.
Local Area Watch , which was decided in 2004, is binding precedent, MCR 7.215(J)(I), and there is no merit to the argument that a trial court cannot exercise its discretion to determine that a plaintiff that prevails only partially in a FOIA action is not entitled to any attorney fees. Plaintiff's reliance on Rataj v. Romulus , 306 Mich.App. 735, 756, 858 N.W.2d 116 (2014), is unavailing because the Rataj Court merely held on the facts of that case that the partially prevailing plaintiff was entitled to an appropriate portion of his attorney fees, costs, and disbursements. This Court did not prohibit a trial court from determining in its discretion that an award of attorney fees is unwarranted. Plaintiff's reliance on Bitterman v. Village of Oakley , 309 Mich.App. 53, 72-73, 868 N.W.2d 642 (2015), is misplaced for the same reason. Finally, plaintiff also relies on two decisions from this Court, Dawkins v. Dep't of Civil Serv. , 130 Mich.App. 669, 673-674, 344 N.W.2d 43 (1983), and Booth Newspapers, Inc. v. Kalamazoo Sch. Dist. , 181 Mich.App. 752, 759-760, 450 N.W.2d 286 (1989), that are not binding because they were decided before November 1, 1990. MCR 7.215(J)(I). Therefore, Local Area Watch articulates the governing rule.
In this case, the record supports the trial court's determination that plaintiff was not entitled to attorney fees. Plaintiff's success in this FOIA action was relatively minor when considering the volume of documents. Of the documents reviewed in camera by the trial court, the city was determined to have violated FOIA with respect to only eight pages of documents, two of which required redacting because the trial court only ordered the amount of the billed attorney fees to be disclosed. This is a relatively inconsequential amount compared to the volume of documents submitted, and most of the documents over which the city claimed attorney-client privilege were determined to actually be privileged. In light of plaintiff's protracted litigation involving the Duncan Park accident, which included discovery requests directed at the city and its employees-even though the city was not a defendant in those proceedings-the trial court did not abuse its discretion by deciding that attorney fees were not warranted for plaintiff's relatively minor partial victory. Local Area Watch , 262 Mich.App. at 150-151, 683 N.W.2d 745. Contrary to plaintiff's argument, the reasonableness of a defendant's actions is a proper consideration when the trial court is exercising its discretion to determine the appropriate attorney fees to award to a partially prevailing plaintiff. Id .
We affirm.
Murray, P.J., and Sawyer, J., concurred with Markey, J.
We take judicial notice of these other court proceedings. See Sturgis v. Sturgis , 302 Mich.App. 706, 712, 840 N.W.2d 408 (2013).
Five other documents had already been disclosed to plaintiff, and therefore the trial court did not make a ruling on these documents regarding the attorney-client privilege, although the trial court did rule that the city violated FOIA by disclosing one of those five documents late. Our statement that the city's FOIA violation constituted eight pages of documents includes this late-disclosed document, as well as the two documents and billing amounts that the trial court determined were not subject to the attorney-client privilege. It is unclear why these previously disclosed documents were in the packet of materials reviewed in camera if they had not been withheld, but counsel for the city indicated at the bench trial that these documents may have merely been attachments to the other e-mails that were submitted for in camera review. Counsel appeared to imply that these previously produced documents were inadvertently included with the materials that the city claimed were privileged. | [
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On order of the Court, the application for leave to appeal the September 14, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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Stephen J. Markman, Chief Justice
On order of the Court, the application for leave to appeal the September 7, 2017 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on whether to grant the application or take other action. MCR 7.305(H)(1).
The appellant shall file a supplemental brief within 42 days of the date of this order addressing the meaning of paragraph 10 of the parties' agreement that is in dispute in this case and the applicability of the legal canon expressio unius est exclusio alterius in the interpretation of that paragraph. In addition to the brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellees shall file a supplemental brief within 21 days of being served with the appellant's brief. The appellees shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant. A reply, if any, must be filed by the appellant within 14 days of being served with the appellees' brief. The parties should not submit mere restatements of their application papers. | [
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On order of the Court, the application for leave to appeal the February 17, 2017 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D). | [
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Stephen J. Markman, Chief Justice
On order of the Court, the application for leave to appeal the December 14, 2017 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on whether to grant the application or take other action. MCR 7.305(H)(1).
The appellant shall file a supplemental brief within 42 days of the date of this order addressing whether there is sufficient evidence for a rational trier of fact to conclude beyond a reasonable doubt that the defendant committed an "act" as that term is used in MCL 750.136b(3)(b). In addition to the brief, the appellant shall electronically file an appendix conforming to MCR 7.312(D)(2). In the brief, citations to the record must provide the appendix page numbers as required by MCR 7.312(B)(1). The appellee shall file a supplemental brief within 21 days of being served with the appellant's brief. The appellee shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the appellant.
A reply, if any, must be filed by the appellant within 14 days of being served with the appellee's brief. The parties should not submit mere restatements of their application papers.
We direct the Clerk to schedule the oral argument in this case for the same future session of the Court when it will hear oral argument in People v Worth-McBride (Docket No. 156430).
The Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issue presented in this case may move the Court for permission to file briefs amicus curiae. | [
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On order of the Court, the application for leave to appeal the December 19, 2017 judgment of the Court of Appeals is considered. We DIRECT the Monroe County Prosecuting Attorney to answer the application for leave to appeal within 28 days after the date of this order.
The application for leave to appeal remains pending. | [
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On order of the Court, the application for leave to appeal the July 25, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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O'CONNELL, J.
Plaintiffs, Ingham County, Jackson County, and Calhoun County (collectively, the counties), appeal as of right the trial court's order granting summary disposition in favor of defendant, the Michigan County Road Commission Self-Insurance Pool (the Pool), under MCR 2.116(I)(2) (opposing party, rather than moving party, entitled to judgment). Because we agree with the counties that they are successors in interest to their respective counties' former road commissions, we reverse and remand.
I. FACTUAL AND PROCEDURAL BACKGROUND
A Declaration of Trust created the Pool in April 1984. The Pool's bylaws limit membership to county road commissions located in the state of Michigan and require each member to sign an inter-local agreement. The appointed road commissions for Ingham County, Jackson County, and Calhoun County joined the Pool soon after its formation.
Members of the Pool made annual premium contributions to cover the payment of claims and the Pool's operating and administrative expenses. The Pool's bylaws and the inter-local agreements permitted the refund of surplus funds more than one year after payment of a member's premium contribution. The counties alleged that the Pool had a longstanding practice of refunding excess contributions to members out of unused reserves in proportion to premiums paid, typically calculated and refunded several years later.
In February 2012, the Legislature amended MCL 224.6 to permit transfer of "the powers, duties, and functions that are otherwise provided by law for an appointed board of county road commissioners ... to the county board of commissioners by resolution as allowed under... MCL 46.11." MCL 224.6(7), as amended by 2012 PA 14. At the same time, the Legislature amended MCL 46.11 to give a county board of commissioners the authority to pass a resolution dissolving an appointed road commission and transferring the road commission's "powers, duties, and functions" to the county board of commissioners. 2012 PA 15. Pursuant to these amendments, the Ingham County, Jackson County, and Calhoun County Boards of Commissioners adopted resolutions to dissolve their county road commissions and take over their roles.
Ingham County adopted the dissolution resolution on April 24, 2012, effective June 1, 2012. About two weeks before adopting the resolution, Ingham County paid its contribution to the Pool for the fiscal year beginning April 1, 2012, apparently with the understanding that the Pool intended to amend its rules to permit the county successors to the dissolved road commissions to participate in the Pool. Ingham County maintained that it only learned later in May that the Pool would not allow the county to remain a member of the Pool. On May 30 and 31, 2012, the Ingham County road commission signed two agreements-one to withdraw from the Pool and one to cancel insurance through the Pool-effective June 1, 2012.
Calhoun County signed a similar withdrawal agreement on October 23, 2012, effective November 1, 2012. It appears that Jackson County did not sign a withdrawal agreement.
At Ingham County's request, the Pool agreed to refund the unused pro rata portion of the former road commission's annual contribution for the 2012-2013 fiscal year. The Pool declined, however, to refund surplus equity flowing from prior-year contributions because of the road commission's withdrawal from membership in the Pool.
The counties brought a four-count complaint against the Pool. The counties alleged that they were eligible for 10 years' worth of refunds because the Pool was still refunding contributions from 2002 premiums. The Pool refused to issue those refunds to the counties. Consequently, the counties maintained that the Pool's refusal reflected (1) unconstitutional lending under Const. 1963, art. 9, § 18 ; (2) extortion; (3) conversion; and (4) breach of contract. The Pool denied the counties' allegations and disputed their claims.
The counties filed a partial motion for summary disposition as to liability under MCR 2.116(C)(9) and (10). The Pool filed a cross-motion for summary disposition under MCR 2.116(I)(2). The trial court granted summary disposition under MCR 2.116(I)(2) in favor of the Pool, rejecting all of the counties' arguments.
II. STANDARD OF REVIEW
This Court reviews de novo a trial court's decision to grant or deny a motion for summary disposition. Village of Dimondale v. Grable , 240 Mich.App. 553, 563, 618 N.W.2d 23 (2000). We also review de novo legal questions, In re Jude , 228 Mich.App. 667, 670, 578 N.W.2d 704 (1998), including issues of statutory interpretation, Slater v. Ann Arbor Pub. Sch. Bd. of Ed. , 250 Mich.App. 419, 426, 648 N.W.2d 205 (2002), and contract interpretation, Rossow v. Brentwood Farms Dev., Inc. , 251 Mich.App. 652, 658, 651 N.W.2d 458 (2002).
Summary disposition under MCR 2.116(C)(9) is appropriate when a defendant fails to plead a valid defense and no factual development could defeat the plaintiff's claim. Village of Dimondale , 240 Mich.App. at 564, 618 N.W.2d 23. A motion for summary disposition under MCR 2.116(C)(9)"tests the sufficiency of a defendant's pleadings, [and] the trial court must accept as true all well-pleaded allegations ...." Slater , 250 Mich.App. at 425, 648 N.W.2d 205. To decide a motion for summary disposition under MCR 2.116(C)(9), the trial court may only consider the pleadings, which include complaints, answers, and replies, but do not include the motion for summary disposition itself. Village of Dimondale , 240 Mich.App. at 565, 618 N.W.2d 23 ; MCR 2.110(A).
Summary disposition is proper when there is no genuine issue of material fact. MCR 2.116(C)(10). A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of a claim. Spiek v. Dep't of Transp. , 456 Mich. 331, 337, 572 N.W.2d 201 (1998). This Court considers the affidavits, pleadings, depositions, admissions, and other the evidence submitted in the light most favorable to the nonmoving party. Maiden v. Rozwood , 461 Mich. 109, 120, 597 N.W.2d 817 (1999).
Finally, a trial court properly grants summary disposition to the opposing party under MCR 2.116(I)(2) if it determines that the opposing party, "rather than the moving party, is entitled to judgment." Sharper Image Corp. v. Dep't of Treasury , 216 Mich.App. 698, 701, 550 N.W.2d 596 (1996).
III. ANALYSIS
A. SUCCESSORS IN INTEREST
MCL 224.1 permits a county to put to a vote the question of adopting the county road system. When a county has elected to adopt the county road system, the county is required to elect a board of county road commissioners, subject to four exceptions. MCL 224.6(1). The first exception permits the county board of commissioners to appoint a road commission, instead of holding an election, if the county "contains all or part of 12 surveyed townships ...." MCL 224.6(4). The second exception permits charter counties with a population of 750,000 or more to reorganize the powers and duties of a board of county road commissioners by amending the county charter. MCL 224.6(5). The third exception-at issue in this case-permits a county board of commissioners to dissolve an appointed board of county road commissioners and transfer its powers, duties, and functions to the county board of commissioners. MCL 224.6(7). The fourth and final exception, similar to the third exception but for a county road commission whose members were elected, permits the county's electorate to decide on the question of dissolution of the county road commission and the transfer of its role to the county board of commissioners. MCL 224.6(8).
When the Ingham County, Jackson County, and Calhoun County Boards of Commissioners dissolved their counties' road commissions pursuant to MCL 46.11(s) and MCL 224.6(7), the powers, duties, and functions of the dissolved county road commissions passed to the respective counties' boards of commissioners. The parties dispute the meaning of the word "dissolved" in MCL 46.11(s) and MCL 224.6(7). The counties argue that the counties' boards of commissioners absorbed the rights and interests of the road commissions. The Pool counters that the road commissions ceased to exist when the counties dissolved them, so the counties could not absorb their powers, duties, and functions. The trial court agreed with the Pool, ruling that the counties were not successors in interest to their former road commissions because the statutes' references to dissolution signified the end of the road commissions' existence.
We disagree with the trial court. Reading MCL 224.6 as a whole shows that a county that has adopted the county road system must have a board of county road commissioners. The general rule in MCL 224.6(1) and its four exceptions make clear that a county that has adopted the county road system must have a road commission that is elected, MCL 224.6(1), appointed, MCL 224.6(4), reorganized by amendment to a county charter, MCL 224.6(5), or dissolved for its role to be transferred to the county board of commissioners, MCL 224.6(7) (appointed road commission) and (8) (elected road Commission). Therefore, when a county dissolves its road commission, the county board of commissioners becomes the successor in interest to the former road commission.
The Pool argues that the counties are not successors in interest to their dissolved road commissions because the statute provides for the transfer of only the "powers, duties, and functions" of the former road commissions but not their property rights or interests. The Pool contends that because the counties have only the powers expressly authorized by statute, the dissolved road commissions' property rights and interests did not transfer to the counties.
We reject this stilted reading of the statute.
Counties derive their authority from the Michigan Constitution and state statutes. Mich. Muni. Liability & Prop. Pool v. Muskegon Co. Bd. of Co. Rd. Comm'rs , 235 Mich.App. 183, 190, 597 N.W.2d 187 (1999). Local governments have only those powers expressly conferred by the Michigan Constitution or by statute, and they have the implicit authority to implement their express powers. Id . at 190-191, 597 N.W.2d 187.
Pertinent to the Pool's argument, road commissions have the authority to hold title or an interest in land and to sell or convey land that is not part of or necessary "for a public street, highway, or park." MCL 224.9(3). A typical county road commission would own a fleet of road maintenance vehicles, such as snowplows and salt trucks, in addition to a garage facility to house those vehicles along with road maintenance materials and supplies, including salt. Applying the Pool's argument, these facilities and equipment would become ownerless once a county board of commissioners dissolved its county's road commission and assumed its powers.
The counties further disagree with the Pool's narrow reading of the statute because it would unconstitutionally impair contracts for road construction and maintenance that involved the former road commissions. See U.S. Const., art. 1, § 10; Const. 1963, art. 1, § 10. Rather, the counties argue, the former road commissions' contractual rights transferred to the respective counties.
We agree. Whenever possible, courts must interpret a statute to avoid the conclusion that it is unconstitutional or that there are doubts about its constitutionality. People v. Nyx , 479 Mich. 112, 124, 734 N.W.2d 548 (2007) (opinion by TAYLOR, C.J.). Similarly, courts must read statutes as a whole. Robinson v. Lansing , 486 Mich. 1, 15, 782 N.W.2d 171 (2010). A statute that substantially impairs a contractual relationship is unconstitutional unless the statutory impairment serves "a significant and legitimate public purpose and ...the means adopted to implement the legislation are reasonably related to the public purpose." Health Care Ass'n Workers Compensation Fund v. Dir. of the Bureau of Worker's Compensation, Dep't of Consumer & Indus. Servs. , 265 Mich.App. 236, 241, 694 N.W.2d 761 (2005). The Pool's narrow reading of "powers, duties, and functions" would result in the unconstitutional impairment of the former road commissions' contracts, rendering the statutory provisions permitting dissolution of the road commissions unconstitutional. We avoid this result by interpreting the statutory provisions more comprehensively. Thus, we conclude that the counties became the successors in interest to their former road commissions when they exercised their statutory right to dissolve the road commissions. As successors in interest, the counties took on all statutory rights and responsibilities given to road commissions.
B. POOL MEMBERSHIP
The parties dispute whether the counties could be members of the Pool and thereby be eligible for surplus refunds of prior-year contributions. The Pool contends that the counties are not qualified for membership because the Pool's bylaws only permit road commissions to be members. This Court construes bylaws using the same rules applied to contract interpretation. Tuscany Grove Ass'n v. Peraino , 311 Mich.App. 389, 393, 875 N.W.2d 234 (2015). We begin with the plain language of the bylaws and apply the plain language if it is clear and unambiguous.
Rossow , 251 Mich.App. at 658, 651 N.W.2d 458.
The Pool's bylaws limit membership to county road commissions, but the bylaws do not define a county road commission. Instead, the bylaws refer to the statutory authority of county road commissions. Because we conclude that the counties were successors in interest to their dissolved road commissions as a matter of statutory interpretation, we likewise conclude that the successor counties are eligible for Pool membership by virtue of the statutory reference to county road commissions in the Pool's bylaws.
The Pool further argues that the counties are not entitled to refunds even if deemed successors in interest because they withdrew from the Pool. We examine the language of the withdrawal agreements to determine their scope. See Rossow , 251 Mich.App. at 658, 651 N.W.2d 458.
First, the record contains no evidence that the Jackson County road commission signed a withdrawal agreement, and the Pool agrees that it did not. Thus, the Jackson County road commission did not withdraw from the Pool. Likewise, Jackson County's dissolution of its road commission did not automatically result in withdrawal from the Pool. Rather, Jackson County succeeded its dissolved road commission, so Jackson County is eligible for refunds from prior-year contributions made by its road commission.
Ingham County's and Calhoun County's road commissions each signed an agreement to withdraw from the Pool. These withdrawal agreements began by stating that the counties dissolved their road commissions pursuant to statute. The agreements made withdrawal from the Pool effective on the date the road commissions were dissolved. Further, the agreements contained a provision limiting their scope to withdrawal of membership without affecting "any other terms or conditions" of the Declaration of Trust, the inter-local agreement, or the bylaws. The Pool also agreed to administer claims arising from events occurring before the date of dissolution of the road commissions. Accordingly, reading the withdrawal agreements as a whole and in light of the limitation on their scope, the withdrawal agreements did not alter eligibility for the refund of surplus premiums from prior-year contributions. Having determined that the counties are successors in interest to their former road commissions, we conclude that the counties are entitled to refunds of surplus premiums reflecting their former road commissions' prior-year contributions through the date listed in each withdrawal agreement.
In conclusion, the trial court erred by granting summary disposition in favor of the Pool because the counties are successors in interest to their dissolved road commissions. As successors in interest, the counties are eligible for membership in the Pool. Additionally, Jackson County did not sign a withdrawal agreement, and the withdrawal agreements that Ingham County and Jackson County signed did not affect their entitlement to refunds. Thus, the counties are entitled to receive refunds of surplus premiums from prior-year contributions made by the former road commissions.
We reverse and remand. We do not retain jurisdiction.
Talbot, C.J., and O'Brien, J., concurred with O'Connell, J.
The counties argue that the Legislature provided for the dissolution, not the abolition, of an appointed road commission to allow an elected county board of commissioners to take the place of an appointed road commission. This argument ignores the distinct provisions for the dissolution of both types of road commissions, appointed or elected. See MCL 224.6(7) and (8), respectively.
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Per Curiam.
Defendant pleaded guilty to armed robbery, MCL 750.529, conspiracy to commit armed robbery, MCL 750.529 and MCL 750.157a ; bank robbery, MCL 750.531, conspiracy to commit bank robbery, MCL 750.531 and MCL 750.157a ; two counts of assault with a dangerous weapon (felonious assault), MCL 750.82 ; possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b ; and being a felon in possession of a firearm (felon-in-possession), MCL 750.224f. Defendant now appeals by delayed leave granted. Because there were errors in the plea proceedings that would entitle defendant to have his plea set aside, we vacate the trial court's orders denying defendant's motions to withdraw his plea, and we remand for proceedings consistent with this opinion and with MCR 6.310(C).
Defendant's convictions arise from his actions on February 20, 2015, when he and two co-conspirators robbed a credit union in Marysville, Michigan. The prosecutor charged defendant with eight counts: (1) armed robbery, (2) conspiracy to commit armed robbery, (3) bank robbery, (4) conspiracy to commit bank robbery, (5) felonious assault, (6) felony-firearm, (7) a second count of felonious assault, and (8) felon-in-possession. The prosecutor and defendant entered into a plea agreement, and defendant pleaded guilty as charged on September 21, 2015.
At the plea hearing, the prosecutor placed the terms of the agreement on the record, explaining that, in exchange for defendant's plea, the prosecutor agreed not to charge defendant with another bank robbery committed on January 20, 2015. Additionally, in terms of sentencing, the prosecutor agreed to reduce defendant's habitual offender status from fourth-offense (with a 25-year mandatory minimum sentence under MCL 769.12(1)(a) ) to third-offense. Following the prosecutor's recitation of the agreement, the trial court stated on the record that "a 20 year minimum sentence would be appropriate...." Defendant, on the record, pleaded guilty and then provided a factual basis for his plea.
After defendant pleaded guilty, he filed a motion to withdraw his plea, which the trial court denied. The trial court then sentenced defendant as a third-offense habitual offender, MCL 769.11, to 15 to 45 years' imprisonment for the convictions of armed robbery, conspiracy to commit armed robbery, bank robbery, and conspiracy to commit bank robbery, 4 to 8 years' imprisonment for each felonious-assault conviction, 5 to 10 years' imprisonment for the felon-in-possession conviction, and 5 years' imprisonment, to be served consecutively, for the felony-firearm, second offense, conviction. Following his sentencing, defendant filed another motion to withdraw his plea, which the trial court again denied. Defendant now appeals by delayed leave granted.
I. MOTIONS TO WITHDRAW PLEA
On appeal, defendant first submits that the trial court abused its discretion by denying his motions to withdraw his plea. Specifically, defendant contends that the plea proceedings were defective because (1) he was not informed of the sentencing consequences related to his convictions of felonious assault and felon-in-possession, (2) there was no factual basis for his felony-firearm conviction because he had not previously been convicted under MCL 750.227b, (3) his plea was illusory because he was not subject to a 25-year mandatory minimum as a fourth-offense habitual offender, and (4) the trial court made promises of leniency at the plea hearing that were not fulfilled insofar as the trial court failed to sentence him in accordance with the initial Cobbs evaluation.
Defendant preserved his claims of error by filing motions to withdraw his plea in the trial court. See MCR 6.310(D). We review for an abuse of discretion a trial court's ruling on a motion to withdraw a plea. People v. Brown , 492 Mich. 684, 688, 822 N.W.2d 208 (2012). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." People v. Strickland , 293 Mich.App. 393, 397, 810 N.W.2d 660 (2011) (quotation marks and citation omitted). This Court reviews de novo underlying questions of law and for clear error the trial court's factual findings. People v. Martinez , 307 Mich.App. 641, 646-647, 861 N.W.2d 905 (2014).
"There is no absolute right to withdraw a guilty plea once the trial court has accepted it." People v. Al-Shara , 311 Mich.App. 560, 567, 876 N.W.2d 826 (2015) (quotation marks and citation omitted). However, a defendant may move to have his or her plea set aside on the basis of an error in the plea proceedings. MCR 6.310(B)(1). To succeed on such a motion after sentencing, the defendant "must demonstrate a defect in the plea-taking process." Brown , 492 Mich. at 693, 822 N.W.2d 208.
"Guilty- and no-contest-plea proceedings are governed by MCR 6.302." People v. Cole , 491 Mich. 325, 330, 817 N.W.2d 497 (2012). Under MCR 6.302, to be valid, a plea must be "understanding, voluntary, and accurate." Brown , 492 Mich. at 688-689, 822 N.W.2d 208. To ensure that a guilty plea is accurate, the trial court must establish a factual basis for the plea. MCR 6.302(D) ; People v. Plumaj , 284 Mich.App. 645, 648 n. 2, 773 N.W.2d 763 (2009). "In order for a plea to be voluntary and understanding, the defendant must be fully aware of the direct consequences of the plea." People v. Blanton , 317 Mich.App. 107, 118, 894 N.W.2d 613 (2016) (quotation marks and citation omitted). "The penalty to be imposed is the most obvious direct consequence of a conviction." Id. (quotation marks, citation, and brackets omitted). Therefore, MCR 6.302(B)(2) requires the trial court to advise a defendant, prior to the defendant's entering a plea, of "the maximum possible sentence for the offense and any mandatory minimum sentence required by law...." Brown , 492 Mich. at 689, 822 N.W.2d 208.
A. SENTENCES FOR FELONIOUS ASSAULT AND FELON-IN-POSSESSION
Given the requirements of MCR 6.302, we conclude that defendant's guilty plea was not understandingly entered because defendant was not informed of the maximum sentence for felon-in-possession. At defendant's sentencing, the prosecutor informed the trial court of defendant's plea agreement, stating that defendant
will be pleading guilty as charged to Count One, which is robbery armed, with maximum penalty is [sic] life or any term of years; Count Two, conspiracy to commit robbery armed, also life offense or any term of years; Count Three, bank robbery, life offense or any term of years; Count Four, conspiracy to commit bank robbery, life offense or any term of years; Count Five, which is assault with a dangerous weapon or felonious assault ...; Count Six, weapon felony firearm, second offense, which is mandatory five year consecutive; Count Seven, assault with a dangerous weapon felonious assault, ... which is a four year maximum penalty and Count Eight, which is weapon firearm, possession by a felon.
In providing this explanation of defendant's maximum sentences, the prosecution failed to state the maximum sentences for Count 5, felonious assault, and Count 8, felon-in-possession. The prosecutor did advise defendant, in relation to Count 7, that felonious assault carried a maximum penalty of 4 years. But even if this should be understood to apply equally to Count 5, the fact remains that defendant was not informed of the maximum possible sentence for felon-in-possession. That omission rendered defendant's plea proceeding defective. Brown , 492 Mich. at 694, 822 N.W.2d 208 ; Blanton , 317 Mich.App. at 120, 894 N.W.2d 613. Consequently, defendant was entitled to withdraw his plea in its entirety, Blanton , 317 Mich.App. at 126, 894 N.W.2d 613, and, the trial court's failure to allow defendant to do so constituted an abuse of discretion. This matter must therefore be remanded to the trial court, where defendant shall be given "the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea" pursuant to MCR 6.310(C).
B. FELONY-FIREARM
Next, in terms of the accuracy of defendant's plea, defendant contends that there was no factual basis for his felony-firearm conviction because, although he was sentenced as if it was his second felony-firearm offense, he did not have a prior conviction under MCL 750.227b. Contrary to defendant's framing of the matter, this issue does not concern the accuracy of his plea. A conviction under MCL 750.227b"requires proof beyond a reasonable doubt that a defendant carried a firearm during the commission or attempted commission of a felony and nothing more ." People v. Miles , 454 Mich. 90, 99, 559 N.W.2d 299 (1997) (emphasis added). Consequently, defendant's plea was accurate because defendant admitted at the plea hearing that he possessed a gun during the bank robbery, and this provided a factual basis for his felony-firearm conviction. See MCR 6.302(D)(1).
Whether defendant "was a first-, second-, or third-time offender under the felony-firearm act affects only the duration of the defendant's sentence." Miles , 454 Mich. at 100, 559 N.W.2d 299. In other words, a prior conviction under MCL 750.227b is not an element of felony-firearm; instead, it is relevant to determining whether defendant should be subject to a sentencing enhancement. See Miles , 454 Mich. at 99, 559 N.W.2d 299. Because a prior conviction is not an element of felony-firearm, any error relating to defendant's lack of a prior conviction under MCL 750.227b does not affect the accuracy of defendant's felony-firearm plea.
Nevertheless, we agree with defendant's substantive arguments regarding MCL 750.227b, and we find that defendant is entitled to relief on appeal. In particular, defendant contends that he should not have been sentenced as a second offender under MCL 750.227b because he not have a prior conviction under MCL 750.227b. In comparison, the prosecutor contends that defendant should be sentenced as a second offender because he has a prior conviction under a federal statute similar to MCL 750.227b.
With regard to the sentencing enhancement for a second offense, MCL 750.227b(1), the felony-firearm statute, provides:
A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony ... is guilty of a felony and shall be punished by imprisonment for 2 years. Upon a second conviction under this subsection , the person shall be punished by imprisonment for 5 years. [Emphasis added.]
Logic dictates that to have a "second conviction under this subsection," there must have been a prior conviction. See People v. Alexander , 422 Mich. 932, 369 N.W.2d 461 (1985). And the phrase "this subsection" clearly refers to MCL 750.227b(1). Contrary to the prosecutor's argument on appeal, the statute gives no indication that convictions under statutes from other jurisdictions should be deemed convictions under "this subsection," and we will not add such a provision to the statute. See People v. Carruthers , 301 Mich.App. 590, 604, 837 N.W.2d 16 (2013). As written, the plain language of the statute unambiguously requires a defendant to have been previously convicted of felony-firearm under MCL 750.227b(1) before the defendant can be subjected to a mandatory five-year prison term as a second offender.
Here, in the felony information, the prosecution stated that defendant had been convicted under MCL 750.227b on or about June 3, 1993. However, according to the presentence investigation report (PSIR), defendant has never been convicted of felony-firearm under MCL 750.227b(1). Rather, defendant was convicted in federal court of using a firearm to commit a violent crime, a violation of 18 USC 924(c)(1)(A), in the United States District Court for the Eastern District of Wisconsin. Because this federal conviction was not obtained under MCL 750.227b(1), the federal conviction could not be used to enhance defendant's mandatory consecutive sentence for felony-firearm to a 5-year term of imprisonment for a second offense. Given that defendant was given misinformation regarding the mandatory minimum sentence he faced for felony-firearm, the plea proceedings were defective under MCR 6.302(B)(2). See Brown , 492 Mich. at 694, 822 N.W.2d 208 ; Blanton , 317 Mich.App. at 120, 894 N.W.2d 613.
Moreover, given that defendant's felony-firearm sentence was invalid, defendant is entitled to correction of this invalid sentence. "A sentence is invalid when it is beyond statutory limits, when it is based upon constitutionally impermissible grounds, improper assumptions of guilt, a misconception of law, or when it conforms to local sentencing policy rather than individualized facts." Miles , 454 Mich. at 96, 559 N.W.2d 299. As discussed, there is no statutory basis for a 5-year sentence in this case because defendant is not a second offender under MCL 750.227b(1). Instead, he should have faced only a 2-year term under MCL 750.227b(1). Because the sentence imposed exceeded the statutory limit set forth in MCL 750.227b(1), it is invalid and must be corrected.
C. HABITUAL OFFENDER
Defendant additionally asserts that his plea bargain was illusory because, contrary to the prosecutor's representations, he was not subject to a 25-year minimum term of imprisonment under MCL 769.12(1)(a) as a fourth-offense habitual offender. While there is merit to defendant's assertion that he did not face a 25-year minimum term of imprisonment, in our judgment this does not render defendant's plea illusory because the record is clear that he received many benefits in exchange for his plea.
A criminal defendant may be entitled to withdraw his or her guilty plea if the bargain on which the guilty plea was based was illusory, i.e., the defendant received no benefit from the agreement. People v. Harris , 224 Mich.App. 130, 132, 568 N.W.2d 149 (1997). In this case, one of the purported benefits of the plea bargain was the prosecutor's agreement to take the 25-year mandatory minimum for fourth-offense habitual offenders under MCL 769.12(1)(a)"off the table." However, defendant contends that his plea was illusory because MCL 769.12(1)(a) was inapplicable to this case, to the agreement to forgo pursuit of this 25-year mandatory minimum had no value. See People v. Bonoite , 112 Mich.App. 167, 169, 315 N.W.2d 884 (1982) ("[I]f defendant's plea was induced by a promise to forego [sic] habitual offender proceedings when no such proceeding would be warranted, the plea bargain was illusory.").
Relevant to defendant's argument, MCL 769.12, states:
(1) If a person has been convicted of any combination of 3 or more felonies or attempts to commit felonies, whether the convictions occurred in this state or would have been for felonies or attempts to commit felonies in this state if obtained in this state , and that person commits a subsequent felony within this state, the person shall be punished upon conviction of the subsequent felony and sentencing under section 13 of this chapter as follows:
(a) If the subsequent felony is a serious crime or a conspiracy to commit a serious crime, and 1 or more of the prior felony convictions are listed prior felonies , the court shall sentence the person to imprisonment for not less than 25 years. Not more than 1 conviction arising out of the same transaction shall be considered a prior felony conviction for the purposes of this subsection only. [Emphasis added.]
The phrase "listed prior felony" is statutorily defined by MCL 769.12(6)(a) to mean "violation or attempted violation" of the Michigan statutory provisions specified in MCL 769.12(6)(a)(i) to (v). In listing these specific Michigan statutory provisions, MCL 769.12(6)(a) contains no indication that convictions under comparable statutes from other jurisdictions should be considered "listed prior felonies" for purposes of MCL 769.12(1)(a), and we will not add such a provision to the statute. See Carruthers , 301 Mich.App. at 604, 837 N.W.2d 16.
We recognize that, as emphasized by the prosecutor, MCL 769.12(1) indicates that an individual is subject to MCL 769.12 if the person commits a subsequent felony in Michigan when that person has been convicted of any combination of three or more felonies or attempts to commit felonies, whether the prior convictions occurred in Michigan "or would have been for felonies or attempts to commit felonies in this state if obtained in this state...." However, we are not persuaded that this general instruction applies to the determination of "listed prior felonies" for purposes of MCL 769.12(1)(a). As used in MCL 769.12(1)(a), "prior felony convictions" are distinguished from "listed prior felonies," and the phrase "listed prior felony" is given a specific statutory definition that does not encompass convictions arising under federal statutes or the statutes of other states. This specific definition of "listed prior felonies" for purposes of MCL 769.12(1)(a) controls over the more general instruction that felonies from other jurisdictions should be considered under MCL 769.12(1). People v. Meeks , 293 Mich.App. 115, 118, 808 N.W.2d 825 (2011) ("[W]hen a specific statutory provision differs from a related general one, the specific one controls.").
In this case, defendant has no convictions under the Michigan statutes identified as "listed prior felonies" under MCL 769.12(6)(a). The prosecution asserts that defendant has a federal conviction for armed bank robbery under 18 USC 2113(a) that is comparable to armed robbery under MCL 750.529, a "listed prior felony" under MCL 769.12(6)(a)(iii ). However, as discussed, "listed prior felonies" are limited to those detailed in MCL 769.12(6)(a)(i) to (v), and a conviction under 18 USC 2113(a) is not included in these provisions. Thus, defendant's armed bank robbery conviction cannot be considered. Consequently, defendant was not subject to a 25-year minimum term of imprisonment under MCL 769.12(1)(a) because he does not have a "listed prior felony."
The prosecutor's offer to take the 25-year minimum term of imprisonment "off the table" in exchange for defendant's plea was based on a misunderstanding of the law. It provided defendant with no actual benefit because he was not subject to MCL 769.12(1)(a). Nevertheless, it is clear that defendant received considerable benefit for his plea, and we are not persuaded by his assertion that the bargain was illusory. For instance, while MCL 769.12(1)(a) did not apply, defendant concedes that he was nevertheless a fourth-offense habitual offender subject to MCL 769.12(1)(b). In exchange for his plea, the prosecutor agreed to reduce defendant's habitual offender status to third-offense habitual offender, MCL 769.11. Moreover, the prosecutor also agreed not to charge defendant in connection with a second bank robbery committed on January 20, 2015. Given these facts, "[d]efendant may not have received as many benefits as he thought he would be receiving for his plea, but he did receive many benefits for the plea," and we cannot conclude that his bargain was illusory. People v. Thompson , 101 Mich.App. 428, 430, 300 N.W.2d 585 (1980). See also People v. Kidd , 121 Mich.App. 92, 96-97, 328 N.W.2d 394 (1982).
D. COBBS EVALUATION
Next, defendant argues that he is entitled to withdraw his guilty plea because the trial court sentenced him in excess of the preliminary sentence evaluation. If a defendant pleads guilty in reliance on a judge's preliminary sentencing evaluation and his or her sentence later exceeds the preliminary evaluation, the defendant may withdraw his or her guilty plea. Cobbs , 443 Mich. at 283, 505 N.W.2d 208. However, in this case, defendant's sentence did not exceed the trial court's preliminary sentence evaluation. Before defendant entered his guilty plea, the trial judge noted:
I have discussed with all the parties involved here what may be considered to be a reasonable minimum sentence in this case as well as the others, and with regard to [defendant] I am satisfied that a 20 year minimum sentence would be appropriate and notwithstanding the offenses that carry mandatory minimums and however they are calculated and the minimum sentence that I think probably under full consideration understanding the max in this case would be 20 years.
While defendant claims he understood that his maximum sentence would be 20 years of imprisonment, when the trial court's remarks are read as a whole, it is plain that the trial court indicated that a 20-year minimum sentence would be appropriate. Consistently with this preliminary evaluation, defendant was sentenced to a minimum of 20 years' imprisonment. Of his concurrent sentences, his longest minimum was 15 years, which combined with the consecutive five years' imprisonment for felony-firearm, totals a minimum of 20 years. Because the trial court sentenced defendant in accordance with the preliminary evaluation, defendant is not entitled to withdraw his guilty plea on that basis. See Cobbs, 443 Mich. at 283, 505 N.W.2d 208.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, in defendant's brief on appeal, as well as in his Standard 4 brief on appeal, defendant advances several claims of ineffective assistance of counsel. No factual record has been created with respect to defendant's claims, meaning that our review is limited to mistakes apparent on the record. People v. Solloway , 316 Mich.App. 174, 188, 891 N.W.2d 255 (2016). "Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." People v. Lockett , 295 Mich.App. 165, 187, 814 N.W.2d 295 (2012). When claiming ineffective assistance of counsel, it is defendant's burden to prove "(1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v. Douglas , 496 Mich. 557, 592, 852 N.W.2d 587 (2014) (quotation marks and citation omitted). Defendant also bears the burden of establishing the factual predicate for his claim. Id.
First, defendant contends that counsel provided ineffective assistance by failing to recognize that defendant was not subject to sentencing enhancement for felony-firearm under MCL 750.227b(1) and by failing to ensure that defendant was correctly advised of all the sentencing consequences as required by MCR 6.302(B)(2) and (C)(3). Given that we have already granted defendant relief in connection with these issues, his ineffective assistance of counsel arguments in this regard are moot, and we need not consider them. See People v. Jones , 317 Mich.App. 416, 431-432, 894 N.W.2d 723 (2016).
Second, in his brief on appeal, defendant argues that defense counsel was ineffective for allowing defendant to enter into an illusory plea agreement. However, as discussed, defendant's plea agreement was not illusory. Therefore, his ineffective assistance claim in this regard also lacks merit. See Douglas , 496 Mich. at 592, 852 N.W.2d 587.
Finally, defendant argues that defense counsel was deficient for failing to provide defendant with discovery, for pressuring defendant into pleading guilty, and for failing to review the PSIR with defendant. These claims are not supported by the record. Defendant's assertion that he was pressured into pleading guilty is wholly belied by his statements at the plea hearing, during which he testified that he was offering his guilty plea freely and voluntarily, that no one had threatened or coerced him into accepting the plea agreement, and that his plea was not made under duress. See People v. White , 307 Mich.App. 425, 432, 862 N.W.2d 1 (2014). There is also no indication that counsel failed to provide discovery to defendant or failed to review the PSIR with him; and, in any event, defendant does not explain how such purported failings affected the outcome of the plea proceedings. Defendant has not shown that he was deprived of the effective assistance of counsel. See Solloway , 316 Mich.App. at 188, 891 N.W.2d 255.
III. CONCLUSION
In sum, the plea proceedings were defective insofar as defendant was not informed of the sentencing consequences for felon-in-possession and he was misadvised with regard to the mandatory minimum he faced for felony-firearm under MCL 750.227b(1). Although defendant's plea bargain was not illusory, defendant was also misinformed that he faced a 25-year mandatory minimum under MCL 769.12(1)(a). Given these deficiencies, defendant should be given an opportunity to withdraw his guilty plea under MCR 6.310(C).
We vacate the trial court's order denying defendant's motion to withdraw his guilty plea, and we remand to the trial court for proceedings consistent with this opinion. We do not retain jurisdiction.
Shapiro, P.J., and Hoekstra and M. J. Kelly, JJ., concurred.
People v. Pointerbey , unpublished order of the Court of Appeals, entered July 11, 2016 (Docket No. 333234).
People v. Cobbs , 443 Mich. 276, 283, 505 N.W.2d 208 (1993).
Although defendant did not title his motion in the trial court as one for resentencing or as one to correct an invalid sentence under MCR 6.429, he plainly argued that he was not subject to enhanced sentencing as a second offender under MCL 750.227b. To ignore this meritorious sentencing argument based on defendant's label for his timely motion would exalt form over substance. People v. Lloyd , 284 Mich.App. 703, 706 n. 1, 774 N.W.2d 347 (2009).
To the extent that defendant was misinformed that he faced a 25-year mandatory minimum sentence, the plea proceedings also failed to comply with MCR 6.302(B)(2). See Brown , 492 Mich. at 694, 822 N.W.2d 208 ; Blanton , 317 Mich.App. at 120, 894 N.W.2d 613.
To the extent that defendant requests a remand to develop an evidentiary record, this Court has twice denied this request. People v. Pointerbey , unpublished order of the Court of Appeals, entered December 20, 2016 (Docket No. 333234); People v. Pointerbey , unpublished order of the Court of Appeals, entered May 10, 2017 (Docket No. 333234). Those decisions are now the law of the case. See White , 307 Mich.App. at 428-429, 862 N.W.2d 1. In any event, we see no need for further factual development.. Defendant's request for an evidentiary hearing is again denied. | [
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Per Curiam.
In this action related to an injury arising from a purportedly defective city street, defendant, the city of Detroit (the City) sought summary disposition pursuant to MCR 2.116(C)(7) on the ground that plaintiff, Lawrence Russell, had failed to provide notice in compliance with the government tort liability Act (GTLA), MCL 691.1401 et seq . The trial court denied the City's motion, and the City now appeals as of right. Because plaintiff provided notice to the City as required by MCL 691.1404(1), we affirm.
According to plaintiff's complaint, on July 20, 2014, he fractured his leg after he drove his motorcycle through a pothole, lost control, and then crashed. In October 2014, plaintiff's attorney sent the City notice of plaintiff's injury and the defect in the roadway. On March 6, 2015, plaintiff filed his complaint in this case. Thereafter, the City moved for summary disposition, asserting that the complaint should be dismissed because plaintiff had failed to provide notice to the City as required by MCL 691.1404(1). Specifically, the City argued that plaintiff's notice was deficient for purposes of MCL 691.1401(1) because (1) the notice failed to specify the exact location and exact nature of the defect, and (2) the notice was served by plaintiff's attorney rather than by plaintiff. The trial court rejected these arguments. The City now appeals as of right.
On appeal, the City argues that the trial court erred by denying its motion for summary disposition under MCR 2.116(C)(7) because plaintiff failed to provide notice as required by MCL 691.1404(1). In particular, as in the trial court, the City argues that plaintiff failed to provide notice of the exact location and nature of the defect. Additionally, the City contends that plaintiff was required to personally serve notice on the City, meaning that service by plaintiff's attorney was insufficient to comply with MCL 691.1404(1).
I. STANDARDS OF REVIEW
"This Court reviews motions for summary disposition under MCR 2.116(C)(7) de novo." Trentadue v. Buckler Automatic Lawn Sprinkler Co. , 479 Mich. 378, 386, 738 N.W.2d 664 (2007). "Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by immunity granted by law." State Farm Fire & Cas. Co. v. Corby Energy Servs., Inc. , 271 Mich.App. 480, 482, 722 N.W.2d 906 (2006). The applicability of governmental immunity and its statutory exceptions are reviewed de novo. Moraccini v. Sterling Hts. , 296 Mich.App. 387, 391, 822 N.W.2d 799 (2012). "Questions of statutory interpretation are also reviewed de novo." Rowland v. Washtenaw Co. Rd Comm. , 477 Mich. 197, 202, 731 N.W.2d 41 (2007).
II. EXACT LOCATION AND NATURE OF THE DEFECT
The City first argues that the location and nature of the defect were not adequately described in the notice provided by plaintiff. The City contends that plaintiff merely provided the location of an intersection, which encompasses a broad area and was not sufficient to identify the "exact location" where plaintiff's injury occurred. With regard to the nature of the defect, the City maintains that plaintiff also failed to sufficiently describe the nature of the alleged defect.
Under the GTLA, "governmental agencies are immune from tort liability when engaged in a governmental function." Nawrocki v. Macomb Co. Rd. Comm. , 463 Mich. 143, 156, 615 N.W.2d 702 (2000), See also MCL 691.1407(1). "[T]he immunity conferred upon governmental agencies is broad, and the statutory exceptions thereto are to be narrowly construed." Nawrocki , 463 Mich. at 158, 615 N.W.2d 702. One such exception is the highway exception codified at MCL 691.1402(1). Under MCL 691.1402(1) provides that "[e]ach governmental agency having jurisdiction over a highway shall maintain the highway in reasonable repair so that it is reasonably safe and convenient for public travel." If a governmental agency fails to do so, "[a] person who sustains bodily injury or damage to his or her property by reason of failure of a governmental agency to keep a highway under its jurisdiction in reasonable repair and in a condition reasonably safe and fit for travel may recover the damages suffered by him or her from the governmental agency."Id .
However, as a prerequisite to recovering damages under the highway exception, the injured person must serve notice on the governmental agency pursuant to MCL 691.1404(1), which states:
As a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.
" MCL 691.1404 is straightforward, clear, unambiguous, and not constitutionally suspect." Rowland , 477 Mich. at 219, 731 N.W.2d 41. Consequently, the statute "must be enforced as written." Id. "Failure to provide adequate notice under this statute is fatal to a plaintiff's claim against a government agency." McLean v. Dearborn , 302 Mich.App. 68, 74, 836 N.W.2d 916 (2013).
Under the plain language of MCL 691.1404(1), "a claimant must provide, within 120 days from the time of injury, notice to the governmental agency that (1) specifies the exact location and nature of the defect, (2) identifies the injuries sustained, and (3) provides the names of any known witnesses." Burise v. Pontiac , 282 Mich.App. 646, 653, 766 N.W.2d 311 (2009). "The notice need not be provided in a particular form. It is sufficient if it is timely and contains the requisite information." Plunkett v. Dep't of Transp. , 286 Mich.App. 168, 176, 779 N.W.2d 263 (2009). Further, the information provided in the notice "need only be understandable and sufficient to bring the important facts to the governmental entity's attention." Id. The sufficiency of the notice is judged on the entire notice and all the facts stated therein. Rule v. Bay City , 12 Mich.App. 503, 508, 163 N.W.2d 254 (1968). "Some degree of ambiguity in an aspect of a particular notice may be remedied by the clarity of other aspects." McLean , 302 Mich.App. at 75, 836 N.W.2d 916 (citation and quotation marks omitted).
Nevertheless, the injured person must give notice of "the exact location;" and the provision of incorrect information, such as an incorrect address, will not be excused if the error is not corrected within the notice period. Jakupovic v. City of Hamtramck , 489 Mich. 939 (2011) ; Thurman v. Pontiac , 295 Mich.App. 381, 385-386, 819 N.W.2d 90 (2012). Absent clarifying information, a description may also be considered too vague or imprecise to give notice of the "exact location." For example, a description was deficient when it referred to a defective sidewalk at an intersection without specifying on which of the four corners of the intersection the alleged defect was located. Thurman , 295 Mich.App. at 385-386, 819 N.W.2d 90, discussing Dempsey v. Detroit , 4 Mich.App. 150, 151-152; 144 N.W.2d 684 (1966). Likewise, a description of a defect "near" an address, which failed to specify that the defect was actually 40 yards away on the south side of the road, was insufficient to identify the place of injury. Thurman , 295 Mich.App. at 385, 819 N.W.2d 90, discussing Smith v. City of Warren , 11 Mich.App. 449, 452-453; 161 N.W.2d 412 (1968).
In this case, the notice that plaintiff's counsel sent to the City contained the following information regarding the location and the nature of the defect:
Location of Defect: Intersection of Selden St. and Aretha Street, Detroit Michigan. See attached photos.
Nature of the Defect: A large pothole, adjacent to a manhole cover in the middle of the street.
By reading the section labeled "Location of Defect" in isolation, the City contends that, as in Smith and Dempsey , plaintiff's description of the location is insufficient because it refers generally to an intersection without the details necessary to locate the defect. However, in considering the notice, we consider all the facts stated therein and construe the location in connection with the description of the defect. See Rule , 12 Mich.App. at 508, 163 N.W.2d 254. In other words, unlike the City, we will not read plaintiff's description of the "Location of Defect" without also considering plaintiff's description of the "Nature of the Defect." See McLean , 302 Mich.App. at 75, 836 N.W.2d 916 ; Plunkett , 286 Mich.App. at 176-177. 779 N.W.2d 263.
When these sections of plaintiff's notice are read together, it is clear that plaintiff's identification of the location was sufficient. Plaintiff did not just refer to an intersection. Instead, after identifying a particular intersection in Detroit, plaintiff then more specifically directed the City's attention to "a manhole cover in the middle of the street," adjacent to which was a "large pothole." The directions to the "middle of the street" and the use of the manhole cover as a landmark, when coupled with the identification of the intersection, were sufficient to enable the City to find the location of the pothole in question from the notice provided. Stated differently, reading the notice as a whole, plaintiff's notice regarding the location of the defect was "understandable and sufficient to bring the important facts to the governmental entity's attention." Plunkett , 286 Mich.App. at 176, 779 N.W.2d 263. Therefore, plaintiff's description of the exact location satisfied MCL 691.1404(1).
With regard to the nature of the defect, plaintiff described a "large pothole, adjacent to a manhole cover." In disputing the adequacy of this description, the City cites an unpublished case in which the plaintiff's description of the defect was found inadequate because the description provided in the notice was "significantly different" than the true nature of the defect insofar as the plaintiff identified the defect as "too much crack filler" when the defect actually consisted of "rutting" in the road. Karwacki v. Dep't of Transp. , unpublished per curiam opinion of the Court of Appeals, issued August 29, 2013 (Docket No. 308772), pp. 5-6, 2013 WL 4609093. As an unpublished opinion, Karwacki is not precedentially binding. MCR 7.215(C)(1) ; Zaremba Equip., Inc. v. Harco Nat'l Ins. Co. , 280 Mich.App. 16, 42 n. 10, 761 N.W.2d 151 (2008). In any event, we fail to see the similarities between Karwacki and the present case. Plaintiff identified the defect as a "large pothole" and there is no indication that the description was inaccurate. Further, the word "pothole" is an understandable term, clearly conveying the nature of the defect to anyone who has ever driven on the roads in Michigan. Moreover, when plaintiff's description of the defect as a "large pothole" is read in conjunction with the description of the location of the defect, i.e., a "large pothole adjacent to a manhole cover in the middle of the street" at a particular intersection, plaintiff's notice clearly brought the defect in question to the City's attention. Cf. Plunkett , 286 Mich.App. at 178-179, 179 n. 25, 779 N.W.2d 263. Overall, plaintiff's description of the exact location and nature of the defect was sufficient to comply with MCL 691.1404(1).
III. SERVICE BY THE INJURED PERSON
Next, the City argues that plaintiff violated MCL 691.1404(1) by having his attorney mail notice to the City, rather than plaintiff sending the written notice himself. In particular, the City notes that MCL 691.1404(1) states that "the injured person ... shall serve a notice on the governmental agency...." In comparison, under MCL 691.1404(3), if an injured person is under the age of 18 years, "notice may be filed by a parent, attorney, next friend or legally appointed guardian." The City asserts that, because MCL 691.1404(1) does not specifically allow for service through an attorney, an injured person over 18 must personally serve notice.
Resolution of this issue requires statutory interpretation. When engaging in statutory interpretation, "our goal is to give effect to the intent of the Legislature by focusing on the statute's plain language." Speicher v. Columbia Twp. Bd. of Trustees , 497 Mich. 125, 134, 860 N.W.2d 51 (2014). "When construing statutory language, we must read the statute as a whole and in its grammatical context, giving each and every word its plain and ordinary meaning unless otherwise defined." In re Receivership of 11910 S. Francis Rd. , 492 Mich. 208, 222, 821 N.W.2d 503 (2012). "If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted." Whitman v. City of Burton , 493 Mich. 303, 311, 831 N.W.2d 223 (2013).
Relevant to the City's argument, MCL 691.1404, states, in part:
(1) As a condition to any recovery for injuries sustained by reason of any defective highway, the injured person, within 120 days from the time the injury occurred, except as otherwise provided in subsection (3) shall serve a notice on the governmental agency of the occurrence of the injury and the defect. The notice shall specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.
(2) The notice may be served upon any individual, either personally, or by certified mail, return receipt requested, who may lawfully be served with civil process directed against the governmental agency, anything to the contrary in the charter of any municipal corporation notwithstanding. In case of the state, such notice shall be filed in triplicate with the clerk of the court of claims. ...
(3) If the injured person is under the age of 18 years at the time the injury occurred, he shall serve the notice required by subsection (1) not more than 180 days from the time the injury occurred, which notice may be filed by a parent, attorney, next friend or legally appointed guardian. If the injured person is physically or mentally incapable of giving notice, he shall serve the notice required by subsection (1) not more than 180 days after the termination of the disability.
Clearly, MCL 691.1404 sets forth various requirements for providing compliant notice to the governmental agency.
The statute specifies who must serve the notice ("the injured person"), on whom the notice must be served ("any individual ... who may lawfully be served with civil process directed against the ... governmental agency"), what information the notice must contain ("the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant"), and the manner in which the notice must be served ("either personally, or by certified mail, return receipt requested"). Although the statute does not explicitly so provide, it patently implies that these elements of the required notice must be in writing. [
Ward v. Mich. State Univ. (On Remand) , 287 Mich.App. 76, 81, 782 N.W.2d 514 (2010).]
Moreover, the use of the term "shall" in MCL 691.1404 makes plain that this notice requirement is mandatory. See In re Duke Estate , 312 Mich.App. 574, 584, 887 N.W.2d 1 (2015). Thus, there can be no question that, as the injured person, plaintiff was required to serve notice on the City. The real issue in this case is whether an attorney or other agent may serve the notice on behalf of the injured person.
Contrary to the City's argument, we do not read the statute as requiring an injured person to personally send the notice by certified mail or to appear in person to personally serve the notice. Rather, we are persuaded that an injured person can serve a governmental agency under MCL 691.1404 )1) by law by using an agent, such as attorney. To begin with, our statutes and court rules are replete with provisions similar to the language in MCL 691.1404(1) insofar as they require an individual to "serve" documents. Yet, it has never been an expectation in this state that the service would be personally carried out by the individual identified in the court rule or the statute. To the contrary, service is often done by someone else, such as a process server. Nuculovic v. Hill , 287 Mich.App. 58, 67, 783 N.W.2d 124 (2010). See also MCR 2.103(A) ("Process in civil actions may be served by any legally competent adult who is not a party or an officer of a corporate party."). Indeed, in numerous cases involving notice under MCL 691.1404(1), the notice in question was sent, not by the injured person personally, but by the plaintiff's attorney. See, e.g., McLean , 302 Mich.App. at 71, 836 N.W.2d 916 ("[P]laintiff's attorney sent a letter addressed to 'the City Manager or Mayor's Office of defendant.' "); Plunkett , 286 Mich.App. at 175, 779 N.W.2d 263 (considering notice letter sent by attorneys " 'on behalf of our clients"). In other words, caselaw demonstrates that an individual may serve notice via an agent, including specifically an attorney. In contrast, the City has failed to cite a single case in which it has been determined that, in order to serve notice, the serving party was required to personally hand deliver or personally mail the document. Such a nonsensical proposition has no basis in the law of this state.
Moreover, the City's argument ignores established agency principles. "Agents have the implied power to carry out all acts necessary in executing [the principal's] expressly conferred authority." Slocum v. Littlefield Pub Sch. Bd. of Ed. , 127 Mich.App. 183, 194, 338 N.W.2d 907 (1983) (citation and quotation marks omitted; alteration in original). The legal relationship between attorneys and their clients is one example of an agency relationship. Uniprop, Inc. v. Morganroth , 260 Mich.App. 442, 446, 678 N.W.2d 638 (2004). Indeed, " '[a]ttorney' is an ancient English word, and signifie[s] one that is set in the turn, stead, or place of another." Fletcher v. Fractional No. 5 Sch. Dist. Bd. of Ed. , 323 Mich. 343, 348, 35 N.W.2d 177 (1948) (quotation marks and citation omitted). In other words, when an agent or attorney undertakes actions on behalf of the principal within the scope of his or her authority, the agent has "stepped into the shoes of the principal." PM One, Ltd. v. Dep't of Treasury , 240 Mich.App. 255, 266-267, 611 N.W.2d 318 (2000). This authority to act on behalf of a principal may include the ability to undertake acts necessary to ensure service and to provide notice. See, e.g., Cady v. Fair Plain Literary Ass'n , 135 Mich. 295, 297, 97 N.W. 680 (1903) ("The action of the attorney in directing the service was within the scope of his authority."); Slocum , 127 Mich.App. at 194-195, 338 N.W.2d 907 (holding that the letter sent by the board of education's attorney was sufficient to provide the required notice to the State Tenure Commission). Given the legal relationship between agents and principals, and, in particular, between attorneys and their clients, it follows that an injured person may serve a governmental agency through the acts of an agent, including an attorney.
When the notice is sent by an attorney or agent acting at the injured person's behest, to comply with MCL 691.1404(1), that information should be contained in the notice itself. That is, MCL 691.1404(1) plainly states that an "injured person" shall serve notice. To satisfy this provision, the notice should identify the injured person and convey the fact that the notice is being given on the injured person's behalf. For example, in this case, the notice stated:
Please be advised that I am providing you notice on behalf of MR. LAWRENCE RUSSEL, of an injury caused by a defect in the highway that rendered the travelled portion of the roadway not reasonably safe and convenient for public travel. In accordance with [the] statute, the following information identifies the location and nature of the defect, the injury sustained and the names of witnesses known to Mr. Russell .... [Emphasis added.]
This language made clear that plaintiff was the injured person and that, as the injured person in this case, he was providing notice to the City through his attorney. This service of notice through plaintiff's attorney was sufficient to satisfy MCL 691.1404(1).
In contrast to this conclusion, the City emphasizes that MCL 691.1404(3) contains language allowing notice to be "filed by a parent, attorney, next friend or legally appointed guardian" if the injured person is under 18 years of age. Because no reference to an "attorney" appears in MCL 691.1404(1), the City asserts an adult injured person cannot serve notice via an attorney. "Generally, when language is included in one section of a statute but omitted from another section, it is presumed that the drafters acted intentionally and purposely in their inclusion or exclusion." Book-Gilbert v. Greenleaf , 302 Mich.App. 538, 541-542, 840 N.W.2d 743 (2013) (quotation marks and citation omitted). However, we are not persuaded that the drafters of the statute excluded the word "attorney" from the MCL 691.1404(1) language in an attempt to require personal service by an adult injured person. Instead, the inclusion of language relating to parents, attorneys, guardians, and next friends in MCL 691.1404(3) is a reflection of the legal realities governing minors. That is, the "special nature and characteristics of children" may reasonably require " 'special rules' " for minors. See Dep't of Civil Rights v. Beznos Corp. , 421 Mich. 110, 121, 365 N.W.2d 82 (1984). In this regard, minors generally lack capacity to sue in their own name. Earls v Herrick , 107 Mich App 657, 662; 309 N.W.2d 694 (1981), citing GCR 1963, See also Moorhouse v. Ambassador Ins. Co., Inc. , 147 Mich.App. 412, 419, n 1; 383 N.W.2d 219 (1985) ; MCR 2.116(C)(7) ; MCR 2.201(E). Minors cannot serve process. see MCR 2.103(A). They cannot retain attorneys, Ryan v. Ryan , 260 Mich.App. 315, 323 n. 6, 677 N.W.2d 899 (2004), or empower an agents to act on their behalf, Woodman v. Kera LLC , 486 Mich. 228, 239, 785 N.W.2d 1 (2010) (opinion by YOUNG, J.). In this context, given the general limitations on a minor's ability to act or to engage someone to act as an agent, it was necessary for the Legislature to specify in MCL 691.1404(3) how someone under 18 could serve notice on a governmental agency within the requisite 180-day period. See Brown v. New Baltimore , unpublished per curiam opinion of the Court of Appeals, issued October 11, 2011 (Docket No. 298809), pp. 2-3. 2011 WL 4811060. These same concerns do not apply under MCL 691.1404(1) to competent adults, who are able to engage agents or otherwise undertake the actions necessary to serve notice. We are not persuaded by the City's argument that a comparison of MCL 691.1404(1) and MCL 691.1404(3) necessitates personal service by an injured adult.
Finally, the City also argues that personal service by the injured person should be required in light of the Michigan Supreme Court's decision in Fairley v. Dep't of Corrections , 497 Mich. 290, 297, 871 N.W.2d 129 (2015). We disagree. In Fairley , the Court considered MCL 600.6431(1), which states:
(1) No claim may be maintained against the state unless the claimant, within 1 year after such claim has accrued, files in the office of the clerk of the court of claims either a written claim or a written notice of intention to file a claim against the state or any of its departments, commissions, boards, institutions, arms or agencies, stating the time when and the place where such claim arose and in detail the nature of the same and of the items of damage alleged or claimed to have been sustained, which claim or notice shall be signed and verified by the claimant before an officer authorized to administer oaths . [Emphasis added.]
Relevant to this provision, in Fairley , the plaintiff did not sign or verify the notice; rather, the plaintiff's attorney signed the document. Fairley , 497 Mich. at 294, 871 N.W.2d 129. Because the plaintiff in Fairley failed to personally sign the notice of intent, the Court determined that her notice was insufficient and dismissed her claim. Id. at 299-300, 871 N.W.2d 129.
Fairley is inapplicable to the facts of this case. Quite simply, Fairley involved a different statute that contains different notice language and different requirements. The statute at issue in Fairley includes very specific activities that have to be completed "by the claimant." MCL 600.6431(1). Specifically, the claimant is required to sign and verify the notice before an officer who is authorized to administer oaths. Id . In this context, "verification" by the claimant involves "[a] formal declaration made in the presence of an authorized officer, such as a notary public ... whereby one swears to the truth of the statements in the document." Black's Law Dictionary (10th ed.). See also Fairley , 497 Mich. at 299, 871 N.W.2d 129 (approvingly quoting the defendant's statement that the notice required by MCL 600.6431 must " 'bear an indication that the signature was signed and sworn to before an officer authorized to administer oaths").
In contrast, MCL 691.1404(1) does not require an injured person to sign or verify the notice before an officer who is authorized to administer oaths. Instead, all that is required by MCL 691.1404(1) is that the injured person serves the notice on the governmental agency. MCL 691.1404(2) contains more specific instructions regarding how service may be accomplished; but it does not state that the injured person must personally serve the notice upon any individual who may lawfully be served, "either personally, or by certified mail, return receipt requested ...." Instead, considering MCL 691.1404 as a whole, the injured person is given broad responsibility to serve notice; and, as discussed, this directive to serve the governmental agency is fully satisfied when an injured person engages an agent to hand deliver the notice or to mail it via certified mail, return receipt requested.
In sum, under the plain language of the statute, the injured person must serve the governmental agency. But this service requirement does not require the injured person to physically appear in the governmental office or to personally go to the post office to mail a certified letter. Instead, the injured person may serve the governmental agency by arranging for service by an attorney or other agent. Because plaintiff's attorney served notice on plaintiff's behalf, plaintiff complied with the MCL 691.1404(1) notice requirement.
Affirmed.
Shapiro, P.J., and Hoekstra and M.J. Kelly, JJ., concurred.
The lower court record also contains photographs of the location. The City contends that, although plaintiff's written notice refers to attached photographs, plaintiff failed to actually include these photographs with his notice. In the trial court, the City supported this factual assertion with an affidavit from an employee in the City's law office who is responsible for opening mail and who averred that no photographs were attached to plaintiff's notice. The City also contends that, even if the photographs are considered, they simply show a general area and thus they do not aid plaintiff's description of the location of the defect. We need not reach these issues. Plaintiff had no obligation to provide photographs. And, whether or not the City received plaintiff's photos is immaterial because, as discussed, plaintiff's written description of the location-with or without photos-was sufficient to comply with MCL 691.1404(1).
Ward involved MCL 691.1406, the notice provision applicable to injury arising from a dangerous and defective condition in a public building. However, the language in MCL 691.1406 mirrors the pertinent language in MCL 691.1404.
See, e.g., MCR 2.107 ("[T]he plaintiff shall serve upon the opposing parties the preprinted caption labels ...."); MCR 2.307(A)(2) ("A party desiring to take a deposition on written questions shall serve them on every other party with a notice ...."); MCR 2.622(B)(4) ("The party filing an objection [to the appointment of a receiver] must serve it on all parties ...."); MCR 3.101(F)(1) ("The plaintiff shall serve the writ of garnishment ...."); MCR 3.210(B)(4)(a) ("A party moving for default judgment must schedule a hearing and serve the motion, notice of hearing, and a copy of the proposed judgment upon the defaulted party ...."); MCR 6.507(B) ("Whenever a party submits items to expand the record, the party shall serve copies of the items to the opposing party."); MCR 7.121(C)(2)(d) ("The appellant shall serve the claim of appeal on all parties."); MCL 14.254(c) ("[I]f such will creates or purports to create a charitable trust, the petitioner shall serve notice upon the attorney general, charitable trust division ...."); MCL 400.610a(2) ("At the time of filing the complaint, the person shall serve a copy of the complaint on the attorney general ...."); MCL 445.814(2) ("The attorney general shall serve notice upon the defendant at least 48 hours before the filing of the action."); MCL 600.4061(1) ("A plaintiff shall serve garnishment process issued from a court in Michigan against the state of Michigan upon the state treasurer ...."); MCL 750.50(3) ("The prosecuting attorney shall serve a true copy of the summons and complaint upon the defendant.").
See also Thomas v. City of Flint , unpublished opinion of the Court of Appeals, issued April 20, 2017 (Docket No. 331054), slip op. at 1, 2017 WL 1422832 ("[P]laintiff's attorney sent defendant notice ...."); Heiser v. City of Flint , unpublished opinion of the Court of Appeals, issued October 6, 2015 (Docket No. 321812), slip op. at 1, 2015 WL 5826845 ("[P]laintiff's attorneys sent a letter to the City Attorney's Office via certified mail ...."); Barnosky v. City of Wyandotte , unpublished opinion of the Court of Appeals, issued July 30, 2013 (Docket No. 310311), slip op. at 1, 2013 WL 3942567 ("[P]laintiff's counsel sent a notice of her injury and claim to defendant via certified mail."). Cf. Blohm v. Emmet Co. Bd. of Co. Rd. Comm'rs , 223 Mich.App. 383, 387, 565 N.W.2d 924 (1997) (concluding that a personal representative could provide notice under MCL 691.1404 following the injured person's death).
Requiring the claimant in particular to sign and verify the notice serves to promote truthfulness and to deter "trumped-up" claims. See Merrifield v. Vill. of Paw Paw , 274 Mich. 550, 554, 265 N.W. 461 (1936) ; Kelley v. Flint , 251 Mich. 691, 695, 232 N.W. 407 (1930). Further, by requiring verification by the claimant-i.e., the individual with personal knowledge of the facts stated in the document-the statute ensures that the government is provided with information on which it may intelligently act. See Kelley , 251 Mich. at 695, 232 N.W. 407. See also McCahan v. Brennan , 492 Mich. 730, 744, 822 N.W.2d 747 (2012) ("[N]otice provisions are enacted by the Legislature in order to provide the state with the opportunity to investigate and evaluate claims, to reduce the uncertainty of the extent of future demands, or even to force the claimant to an early choice regarding how to proceed."). No such similar purposes would be furthered by requiring the "injured person" to personally serve notice under MCL 691.1404(1).
Indeed, the City's proposed service requirement under MCL 691.1404(1) would allow a plaintiff's attorney to draft and sign the notice, but it would then require the plaintiff to undertake the ministerial task of serving the document. We are not persuaded that such an absurd result is required by the statute's plain language. | [
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Markey, J
Plaintiff, Allstate Insurance Company, an assigned claims insurer, appeals by right the trial court's order granting defendant State Farm Mutual Automobile Insurance Company (defendant), the insurer of the at-fault driver, Lorenzo Causey, summary disposition under MCR 2.116(C)(7) (statute of limitations) and (10) (no genuine issue of a material fact). Because plaintiff's reimbursement action was timely under MCL 500.3175(3) and because plaintiff was entitled to reimbursement from defendant for all the no-fault benefits, we reverse and remand.
I. SUMMARY OF FACTS AND PROCEEDINGS
On October 31, 2012, Causey was driving a motor vehicle when he struck Amanda Pettaway as she was crossing the road at an intersection, causing her injuries. Pettaway applied for personal protection insurance (PIP) benefits through the Michigan Assigned Claims Plan. In a letter dated April 10, 2013, the Michigan Assigned Claims Plan informed Pettaway's attorney that Pettaway's claim had been assigned to plaintiff.
Plaintiff retained Data Surveys, Inc. (Data Surveys) to investigate Pettaway's claim. Data Surveys' report dated May 10, 2013, confirmed that Causey was the owner of the vehicle involved in the accident but indicated that the company had not been able to directly contact him. The Data Surveys report stated that Causey "refused to come to the front door and was conveying information through his daughter to the investigator," specifically, "that the involved vehicle reportedly was his only automobile" and that the vehicle was not insured.
On November 20, 2014, plaintiff brought suit against Causey, seeking to recover under MCL 500.3177(1) for all the no-fault benefits it had paid to or on behalf of Pettaway. On February 25, 2015, Causey's counsel filed an appearance and plaintiff learned that Causey was, in fact, insured by State Farm on the date of the accident. On May 27, 2015, an order was entered reflecting the parties' stipulation to plaintiff's filing an amended complaint identifying State Farm as a party defendant, which was filed with the stipulation. Plaintiff asserted in the amended complaint that it was entitled under MCL 500.3175 and MCL 500.3177 to recover $40,974.42 from defendant as the amount of no-fault benefits it had paid to or on Pettaway's behalf.
Defendant asserted that plaintiff's claim was untimely and barred by MCL 500.3175(3). This statute, which pertains to insurers' assigned claims under the Michigan Assigned Claims Plan, states, in part, that "[a]n action to enforce rights to indemnity or reimbursement against a third party shall not be commenced after the later of 2 years after the assignment of the claim to the insurer or 1 year after the date of the last payment to the claimant." MCL 500.3175(3).
Causey also moved for summary disposition under MCR 2.116(C)(10) on the basis that plaintiff could not recover benefits from him because it was undisputed that his vehicle was insured by defendant on the date of the accident and, therefore, he was not an "uninsured" motorist under MCL 500.3177. Plaintiff opposed Causey's motion, asserting that Causey was a necessary party to the action because Causey "fraudulently concealed the identity of his insurer" and that the tolling provisions of MCL 600.5855 should be applied to its claim. On September 14, 2015, after hearing oral argument, the trial court granted Causey's motion and dismissed Causey from the case without prejudice.
On November 18, 2015, defendant moved for summary disposition under MCR 2.116(C)(7) and (10) on the ground that the amended complaint did not comply with MCL 500.3175(3) because it was filed more than two years after the assignment of Pettaway's claim and had not brought within "1 year after the date of the last payment to the claimant." Defendant argued that the only payments plaintiff made relating to Pettaway's claim within one year of the amended complaint were made on July 3, 2014 ($814.92) and August 11, 2014 ($2037.30) to Van Dyke Spinal Rehabilitation. Defendant further asserted that it had "issued payments" in those amounts to plaintiff's attorneys and the MACP. Thus, defendant argued, no controversy existed because defendant had already reimbursed plaintiff for the payments plaintiff had made within the year before filing the amended complaint.
In response to defendant's motion, plaintiff asserted that it, rather than defendant, was entitled to summary disposition under MCR 2.116(I)(2). Plaintiff maintained that the limitations period was tolled because Causey fraudulently concealed that State Farm provided insurance coverage for Causey and his vehicle. Plaintiff also argued that the payments it had made to Pettaway's medical providers within one year of filing its amended complaint satisfied the requirements of MCL 500.3175(3). Plaintiff asserted that defendant's position-that a one-year-back rule applies to an assigned insurer's right to reimbursement-was without merit.
On January 8, 2016, the trial court heard oral argument on defendant's motion. The first part of the hearing focused on whether the statute of limitations could be tolled because of Causey's purportedly "fraudulent" behavior. The parties argued over whether plaintiff could prove its allegations because plaintiff had not attached any affidavits to its motion. The trial court indicated that it "begrudgingly" had to grant defendant's motion, apparently on the basis of plaintiff's failure to present evidence that would be admissible to prove fraud. The parties then argued the limitations period found in MCL 500.3175(3). Plaintiff argued that because defendant had reimbursed plaintiff for the payments to VanDyke Spinal Rehabilitation made in July and August 2014 that defendant also was obligated to reimburse plaintiff for all the payments that plaintiff had made on Pettaway's PIP claim. The trial court disagreed with this argument and granted defendant's motion for summary disposition "for the reasons stated on the record." An order to that effect was entered on January 8, 2016.
Plaintiff moved the trial court to reconsider, arguing that under Farm Bureau Ins. Co. v. Chukwueke (Chukwueke I ), unpublished per curiam opinion of the Court of Appeals, issued January 17, 2013 (Docket No. 306827), 2013 WL 195865, plaintiff was entitled to reimbursement of the other payments it made to Van Dyke Spinal totaling $20,495.55. Defendant responded by arguing, in part, that according to Farm Bureau Ins. Co. v. Chukwueke (Chukwueke II ), unpublished per curiam opinion of the Court of Appeals, issued June 16, 2015 (Docket No. 320600), 2015 WL 3766810, plaintiff was only entitled to reimbursement for payments made after May 27, 2014, which defendant had already tendered. In denying plaintiff's motion for reconsideration, the trial court ruled that "[b]ased on the rationale in [ Chukwueke I ], Plaintiff is only entitled to reimbursement for payments made after May 27, 2014; these payments have been reimbursed by Defendant."
Plaintiff now appeals by right.
II. ANALYSIS
A. STANDARD OF REVIEW / PRINCIPLES OF LAW
This Court reviews de novo a ruling on a motion for summary disposition. Nuculovic v. Hill , 287 Mich.App. 58, 61, 783 N.W.2d 124 (2010). We also review questions of statutory interpretation de novo. Dextrom v. Wexford Co. , 287 Mich.App. 406, 416, 789 N.W.2d 211 (2010).
MCR 2.116(C)(7)"permits summary disposition where the claim is barred by an applicable statute of limitations." Nuculovic , 287 Mich.App. at 61, 783 N.W.2d 124. When addressing such a motion, a trial court must accept as true the allegations of the complaint unless contradicted by the parties' documentary submissions. Patterson v. Kleiman , 447 Mich. 429, 434 n. 6, 526 N.W.2d 879 (1994). Although not required to do so, a party moving for summary disposition under Subrule (C)(7) may support the motion with affidavits, depositions, admissions, or other admissible documentary evidence, which the reviewing court must consider. Maiden v. Rozwood , 461 Mich. 109, 119, 597 N.W.2d 817 (1999). If no material facts are disputed, whether a plaintiff's claim is barred by the pertinent statute of limitations is a question of law for the court to determine. Dextrom , 287 Mich.App. at 429, 789 N.W.2d 211.
"If it appears to the court that the opposing party, rather than the moving party, is entitled to judgment, the court may render judgment in favor of the opposing party." MCR 2.116(I)(2). "The trial court appropriately grants summary disposition to the opposing party under MCR 2.116(I)(2) when it appears to the court that the opposing party, rather than the moving party, is entitled to judgment as a matter of law." Rossow v. Brentwood Farms Dev., Inc. , 251 Mich.App. 652, 658, 651 N.W.2d 458 (2002).
"The primary goal of statutory interpretation is to give effect to the intent of the Legislature." Atchison v. Atchison , 256 Mich.App. 531, 535, 664 N.W.2d 249 (2003). "If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted." Whitman v. City of Burton , 493 Mich. 303, 311, 831 N.W.2d 223 (2013). A court may go beyond the statutory text to ascertain legislative intent only if an ambiguity exists in the language of the statute. Id . at 312, 831 N.W.2d 223. But a statutory provision is ambiguous only if it irreconcilably conflicts with another provision or is equally susceptible to more than a single meaning. Fluor Enterprises , Inc. v. Dep't of Treasury , 477 Mich. 170, 177 n. 3, 730 N.W.2d 722 (2007). "Words and phrases used in a statute should be read in context with the entire act and assigned such meanings as to harmonize with the act as a whole." City of Rockford v. 63rd Dist. Court , 286 Mich.App. 624, 627, 781 N.W.2d 145 (2009) (quotation marks and citation omitted).
B. APPLYING MCL 500.3175(3)
We conclude that the trial court erred by granting defendant summary disposition and by denying plaintiff summary disposition. Plaintiff's reimbursement action was timely under MCL 500.3175(3), and plaintiff was entitled to reimbursement from defendant for all the no-fault benefits it paid on Pettaway's behalf.
The purpose of the no-fault act, MCL 500.3101 et seq. , "is to ensure the compensation of persons injured in automobile accidents." Hill v. Aetna Life & Cas. Co. , 79 Mich.App. 725, 728, 263 N.W.2d 27 (1977). "The priority statutes, MCL 500.3114 and MCL 500.3115, define against whom an individual may make a claim for benefits." Covenant Med. Ctr., Inc. v. State Farm Mut. Auto. Ins. Co. , 500 Mich. 191, 215 895 N.W.2d 490 (2017). If a pedestrian injured in a motor vehicle accident does not have no-fault insurance and neither does a relative in that person's household, MCL 500.3114(1), then the person may claim PIP benefits from "[i]nsurers of owners or registrants of motor vehicles involved in the accident," MCL 500.3115(1)(a).
In this case, neither Pettaway nor any relative domiciled in her household was a named insured in a no-fault insurance policy. MCL 500.3114(1). So defendant, as the insurer of the vehicle involved in the motor vehicle-pedestrian accident, was in the highest order of priority to pay Pettaway's claim for PIP benefits under MCL 500.3115(1). But because Pettaway did not know that Causey had no-fault insurance, she sought PIP benefits through the Michigan Assigned Claims Plan. "If no insurance is available, a person may obtain benefits through the Assigned Claims Plan, which serves as the insurer of last priority." Titan Ins. Co. v. American Country Ins. Co. , 312 Mich.App. 291, 298, 876 N.W.2d 853 (2015) ; MCL 500.3172(1). The Michigan Automobile Insurance Placement Facility adopts and maintains the Michigan Assigned Claims Plan. MCL 500.3171(2). An insurer assigned a claim under the Michigan Assigned Claims Plan "shall make prompt payment of loss in accordance with this act" and is "entitled to reimbursement by the Michigan automobile insurance placement facility for the payments ...." MCL 500.3175(1). Furthermore, an "insurer to whom claims have been assigned shall preserve and enforce rights to indemnity or reimbursement against third parties ...." MCL 500.3175(2).
The parties also rely on MCL 500.3172(1) as the source of plaintiff's right to reimbursement. That subsection also provided for Pettaway's initial claim for PIP benefits from the Michigan Assigned Claims Plan. MCL 500.3172(1) provides:
A person entitled to claim because of accidental bodily injury arising out of the ownership, operation, maintenance, or use of a motor vehicle as a motor vehicle in this state may obtain personal protection insurance benefits through the assigned claims plan if no personal protection insurance is applicable to the injury, no personal protection insurance applicable to the injury can be identified, the personal protection insurance applicable to the injury cannot be ascertained because of a dispute between 2 or more automobile insurers concerning their obligation to provide coverage or the equitable distribution of the loss, or the only identifiable personal protection insurance applicable to the injury is, because of financial inability of 1 or more insurers to fulfill their obligations, inadequate to provide benefits up to the maximum prescribed. In that case, unpaid benefits due or coming due may be collected under the assigned claims plan and the insurer to which the claim is assigned is entitled to reimbursement from the defaulting insurers to the extent of their financial responsibility. [Emphasis added.]
In Allen v. Farm Bureau Ins. Co. , 210 Mich.App. 591, 597, 534 N.W.2d 177 (1995), this Court read the emphasized statutory language as the source of an assigned claims insurer's "statutorily created right to reimbursement ...." But the emphasized language plainly refers to the situation in which a no-fault insurer is unable to provide PIP benefits because of "financial inability"; it refers to "that case," apparently referring only to the last situation described in the preceding sentence when it states that the assigned insurer "is entitled to reimbursement from the defaulting insurers to the extent of their financial responsibility," MCL 500.3172(1), which description only matches defaulting insurers in the last situation described in preceding sentence.
An assigned claims insurer's general right to reimbursement is found in MCL 500.3175, which provides "recourse" "to an assigned-claim insurer that later discovers a higher priority insurer." Spencer v. Citizens Ins. Co. , 239 Mich.App. 291, 305, 608 N.W.2d 113 (2000). MCL 500.3175(2) provides that an assigned insurer "shall preserve and enforce rights to indemnity or reimbursement against third parties and account to the Michigan automobile insurance placement facility for the rights and shall assign the rights to the Michigan automobile insurance placement facility on reimbursement by the Michigan automobile insurance placement facility."
Thus, an assigned claims insurer "has both the authority and the duty to enforce any available rights to indemnity or reimbursement that could have been pursued by claimants against third parties." Auto-Owners Ins. Co. v. Mich. Mut. Ins. Co. , 223 Mich.App. 205, 210, 565 N.W.2d 907 (1997). The term "third parties," as used in MCL 500.3175, includes insurers that were liable for no-fault benefits that were paid by an assigned insurer. Id .
In this case, the dispute centers on the limitations period found in MCL 500.3175(3), which provides that "[a]n action to enforce rights to indemnity or reimbursement against a third party shall not be commenced after the later of 2 years after the assignment of the claim to the insurer or 1 year after the date of the last payment to the claimant." Plaintiff does not dispute that its amended complaint identifying State Farm as a party defendant was filed more than two years after it was assigned Pettaway's claim. Hence, plaintiff's reimbursement action must have been commenced within "1 year after the date of the last payment to the claimant" to be timely under MCL 500.3175(3).
1. CLAIMANT
"No provision of the no-fault act expressly defines 'claimant.' "
Covenant Med. Ctr. , 500 Mich. at 221, 895 N.W.2d 490 ( BERNSTEIN J., dissenting). Defendant does not dispute plaintiff's assertion that "[a] medical provider is a claimant ...." This Court has recognized that under the no-fault act there exists a distinction between the terms "injured person" and "claimant." See Lakeland Neurocare Ctrs. v. State Farm Mut. Auto. Ins. Co. , 250 Mich.App. 35, 40-41, 645 N.W.2d 59 (2002), (holding that a medical provider could recover attorney fees as "a claimant" under MCL 500.3148(1) ), overruled by Covenant Med. Ctr. , 500 Mich. at 191, 895 N.W.2d 490. Further, the no-fault act expressly authorizes insurance companies to pay PIP benefits directly to medical providers. MCL 500.3112. This provision provides, in part:
Personal protection insurance benefits are payable to or for the benefit of an injured person or, in case of his death, to or for the benefit of his dependents. Payment by an insurer in good faith of personal protection insurance benefits, to or for the benefit of a person who it believes is entitled to the benefits, discharges the insurer's liability to the extent of the payments unless the insurer has been notified in writing of the claim of some other person. [ MCL 500.3112.]
Of course, our Supreme Court's recent decision in Covenant Med. Ctr. , 500 Mich. 191, 895 N.W.2d 490, casts significant doubt on whether medical providers can be considered claimants under the no-fault act. In Covenant Med Ctr. , the Court overruled Lakeland Neurocare Ctrs. and numerous other published opinions of this Court when it held "that healthcare providers do not possess a statutory cause of action against no-fault insurers for recovery of personal protection insurance benefits under the no-fault act." Id . at 196, 895 N.W.2d at 493. The Court rejected the plaintiff's argument that numerous provisions of the no-fault act supported the conclusion that healthcare providers could maintain such actions. Id . at 204-218, 895 N.W.2d at 498-505. The plaintiff primarily relied on MCL 500.3112, which the Court noted "undoubtedly allows no-fault insurers to directly pay healthcare providers for the benefit of an injured person, [but] its terms do not grant healthcare providers a statutory cause of action against insurers to recover the costs of providing products, services, and accommodations to an injured person." Id . at 195-196, 895 N.W.2d at 493.
Pertinent to this case, the plaintiff in Covenant Med. Ctr. also relied on MCL 500.3148(1), which provides that "[a]n attorney is entitled to a reasonable fee for advising and representing a claimant in an action for personal or property protection insurance benefits which are overdue," and MCL 500.3145, which provides the limitations period for the recovery of PIP benefits "payable under this chapter" and specifically refers to "the claimant." Covenant Med. Ctr. , 500 Mich. at 214, 895 N.W.2d at 503 n. 37. The plaintiff argued that "the Legislature's use of the word 'claimant,' instead of 'injured person,' demonstrates that other persons, like providers, may bring lawsuits to recover PIP benefits." Id . The Court disagreed, reasoning as follows:
Plaintiff's reliance on the references to "claimant" rather than "injured person" in MCL 500.3145(1) and MCL 500.3148 is helpful to plaintiff's argument only if healthcare providers are proper claimants under the no-fault act. The provisions cited by plaintiff do not establish that providers possess a claim under the act. Because MCL 500.3145(1) and MCL 500.3148 do not create rights to PIP benefits that do not otherwise exist, plaintiff's reliance on these provisions is misplaced. [ Id . ]
The Court also noted that "[t]he relevant dictionary definitions of 'claim' include 'a demand for something due or believed to be due' and 'a right to something.' " Covenant Med. Ctr. , 500 Mich. at 211, 895 N.W.2d at 501 n. 31, quoting Merriam-Webster's Collegiate Dictionary (11th ed). The Court concluded that "to have a 'claim' under the no-fault act, a provider must have a right to payment of PIP benefits from a no-fault insurer[,]" Covenant Med Ctr ., 500 Mich. at 211 n. 31, 895 N.W.2d 490 and held that the plaintiff had not demonstrated that "the no-fault act elsewhere confers on a healthcare provider a right to claim benefits from a no-fault insurer," Id ., at 211 895 N.W.2d at 501.
Important to this case, our Supreme Court in Covenant Med. Ctr. was not interpreting MCL 500.3175(3) or directly addressing the issue of whether "claimant," as used under the no-fault act, includes medical providers. But the Court's implicit ruling that a healthcare provider does not have a right to claim benefits from a no-fault insurer apparently precludes a healthcare provider from being a "claimant" under the no-fault act. Although a healthcare provider may request and receive payment from a no-fault insurer for services furnished to an injured person, MCL 500.3112 ; Covenant Med. Ctr. , 500 Mich. at 195, 208-209, 895 N.W.2d at 493, 500, that does not mean that the provider is a "claimant" entitled to receive no-fault benefits. Rather, it is the injured person who is the claimant that receives PIP benefits, in the form of the insurer paying the healthcare providers.
We note that this interpretation of "claimant" if applied to MCL 500.3175(3) does not lead to the term "claimant" being interpreted synonymously with "the injured person," as the panel in Chukwueke I feared, because the no-fault act specifically provides that a claimant may not always be an injured person. For example, MCL 500.3105(4) provides, in part, that "[b]odily injury is accidental as to a person claiming personal protection insurance benefits unless suffered intentionally by the injured person or caused intentionally by the claimant." So that subsection contemplates that the claimant could intentionally cause the injured person bodily injury.
Another obvious example of a claimant being different from the injured person is when the injured person dies as a result of the accident. See, e.g., MCL 500.3108(1) (providing that PIP "benefits are payable for a survivor's loss which consists of a loss, after the date on which the deceased died, of contributions of tangible things of economic value"); MCL 500.3112 (providing that PIP "benefits are payable to or for the benefit of an injured person or, in case of his death, to or for the benefit of his dependents"). When the injured person dies, the person claiming no-fault benefits will necessarily be a different person from the one who was injured.
In this case, the claimant is Pettaway because she had a right to PIP benefits from plaintiff. MCL 500.3172(1) ; MCL 500.3175(1). The next issue pertains to identifying "the date of the last payment to the claimant." MCL 500.3175(3). The record indicates that plaintiff made payments to Pettaway's healthcare or service providers, as permitted by MCL 500.3112. If read in isolation, one could interpret MCL 500.3175(3) as requiring an assigned claims insurer to bring a reimbursement action within one year of the last payment made directly to the claimant. But a word or phrase in a statute must not be read in a vacuum; it must be harmonized with the whole statute. G.C. Timmis & Co. v. Guardian Alarm Co. , 468 Mich. 416, 421, 662 N.W.2d 710 (2003). Thus, "[a]lthough a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context." Id . Because no-fault insurers are permitted to make payments to healthcare providers "on the injured person's behalf," Covenant Med. Ctr. , 500 Mich. at 196, 210, 214, 895 N.W.2d at 493, 501, 503 n. 36 ; MCL 500.3112, to discharge their obligation "to the claimant," we interpret the phrase "payment to the claimant" in MCL 500.3175(3) as including payments made to healthcare providers on the claimant's behalf. Indeed, in the first published case addressing MCL 500.3175(3), this Court found that an assigned claims insurer timely filed its reimbursement action when it "last paid benefits to or on behalf of [the claimant] on October 16, 1984, and commenced the present action on October 8, 1985." Allstate Ins. Co. v. Faulhaber , 157 Mich.App. 164, 168, 403 N.W.2d 527 (1987). The Chukwueke I panel properly characterized that statement as dicta, unpub. op. at 5 n. 3, because the Faulhaber Court was addressing whether MCL 500.3175 should apply retroactively, not whether payments to the claimant include payments made on behalf of the claimant. See Faulhaber , 157 Mich.App. at 166-167, 403 N.W.2d 527. As the Supreme Court recently explained, to derive a rule of law from the facts of a case "when the question was not raised and no legal ruling on it was rendered, is to build a syllogism upon a conjecture." People v. Seewald , 499 Mich. 111, 121 n. 26, 879 N.W.2d 237 (2016). Nevertheless, it is telling that the Court naturally read MCL 500.3175(3) as applying to payments made on behalf of the claimant.
Our conclusion that a no-fault insurer's payment to a healthcare provider who provides necessary services to the injured person constitutes a payment "to the claimant" for purposes of MCL 500.3175(3) is grounded on our reading of this provision in harmony with the no-fault act as a whole, G.C. Timmis & Co. , 468 Mich. at 421, 662 N.W.2d 710 ; City of Rockford , 286 Mich.App. at 627, 781 N.W.2d 145, considering that a no-fault insurer may make payments on behalf of the injured person directly to healthcare providers in order to "discharge its liability to an injured person," Covenant Med. Ctr. , 500 Mich. at 196, 895 N.W.2d at 493 ; MCL 500.3112. Consequently, in this case, because plaintiff made payments to Van Dyke Spinal Rehabilitation in August 2014 on behalf of the claimant Pettaway, plaintiff's amended complaint filed in May 2015 was a timely reimbursement action against defendant under MCL 500.3175(3).
2. SCOPE OF RELIEF
Having determined that plaintiff's action was timely, we must consider the question of what damages it may recover. Plaintiff argues that this Court should determine that plaintiff is entitled to reimbursement of all no-fault benefits paid to or on behalf of Pettaway if any single benefit is paid within one year of filing the reimbursement action. Defendant argues that when a plaintiff commences a reimbursement action more than two years after the assignment of the claim, as in this case, MCL 500.3172 should be read together with MCL 500.3175(3) to limit reimbursement to payments made within one year before the filing of the complaint.
Defendant does not assert that the one-year-back rule of MCL 500.3145 applies to the present reimbursement action, but consideration of that provision sheds light on the instant matter. MCL 500.3145(1) provides, in pertinent part, as follows:
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor's loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. [Emphasis added.]
Under the emphasized language, "even where the period of limitations is tolled under the notice of injury or payment of benefits exceptions, an insured can only recover benefits for losses incurred within one year preceding the commencement of the action." Hudick v. Hastings Mut. Ins. Co. , 247 Mich.App. 602, 607, 637 N.W.2d 521 (2001) (quotation marks citations omitted). But MCL 500.3175(3), rather than MCL 500.3145(1), provides the "limitation period for actions brought by an assignee insurer for indemnity or reimbursement." Allen , 210 Mich.App. at 597, 534 N.W.2d 177.
Unlike MCL 500.3145(1), MCL 500.3175(3) does not limit the damages that may be recovered in a timely action. Instead, MCL 500.3175(3) is a statute of limitations, not a statute that limits the period during which payments may be reimbursed. If the Legislature had intended to preclude assigned claims insurers from recovering reimbursement of no-fault benefits that were paid more than a year before the filing of the action, MCL 500.3145(1) shows that it clearly knew how to do so. See People v. Houston , 473 Mich. 399, 410, 702 N.W.2d 530 (2005).
Furthermore, MCL 500.3172 highlights that higher priority insurers are to fully reimburse no-fault benefits wrongly paid through the Michigan Assigned Claims Plan. When a dispute over coverage for PIP benefits arises between two insurers, " MCL 500.3172(3) establishes a procedure by which a claimant is provided personal protection insurance benefits while the insurers resolve their dispute." Spectrum Health v. Grahl , 270 Mich.App. 248, 255, 715 N.W.2d 357 (2006). MCL 500.3172(3) provides that the insurers shall notify the Michigan Automobile Insurance Placement Facility of their dispute, who in turn will assign the claim to an insurer. MCL 500.3172(3)(a) and (b). That insurer then commences an action, joining the disputing insurers as party defendants, and "[t]he circuit court shall declare the rights and duties of any interested party whether or not other relief is sought or could be granted." MCL 500.3172(3)(e). If the circuit court determines reimbursement should be ordered, the order "shall include all benefits and costs paid or incurred by the Michigan automobile insurance placement facility and all benefits and costs paid or incurred by insurers determined not to be obligated to provide applicable personal protection insurance benefits ...." MCL 500.3172(3)(f).
To be clear, MCL 500.3172(3) does not apply to this case because plaintiff's assignment did not arise out of a coverage dispute between insurers. But the section is illustrative of how the statute considers that the no-fault insurer with the highest priority provide reimbursement for "all benefits and costs paid or incurred by the Michigan automobile insurance placement facility and all benefits and costs paid or incurred by insurers determined not to be obligated to provide applicable personal protection insurance benefits," which would include assigned insurers.
As a statutory scheme, the no-fault act contemplates that the higher priority insurer will fully reimburse the Michigan Automobile Insurance Placement Facility and the assigned claims insurer; consequently, there is no restriction on the recoverable damages in a timely filed reimbursement action that can be read into MCL 500.3175(3). Thus, we hold that plaintiff is entitled to recover all no-fault benefits paid on Pettaway's behalf for which defendant was, in fact, responsible as the higher priority insurer.
Defendant argues that plaintiff's reading of the statute would frustrate the primary purposes of statutes of limitations of "(1) encouraging the plaintiffs to diligently pursue claims and (2) protecting the defendants from having to defend against stale and fraudulent claims." Wright v. Rinaldo , 279 Mich.App. 526, 533, 761 N.W.2d 114 (2008). Specifically, defendant argues that "[p]laintiff's ability to revive old payments would maintain a constant threat of litigation, and would encourage delay in asserting a legal right that is practicable to assert." But this argument ignores the requirement of the no-fault act that an assigned claims insurer "shall make prompt payment of loss in accordance with this act." MCL 500.3175(1). Thus, assignee insurers cannot "revive" a reimbursement action at any time as defendant suggests. Rather, they must make prompt payment, MCL 500.3175(1) ; they then may bring a reimbursement claim within a year from the date of the last payment, MCL 500.3175(3).
In sum, MCL 500.3175(3) only pertains to when a reimbursement action must be brought. In contrast to MCL 500.3145(1), it does not preclude reimbursement for benefits paid more than a year before the filing of the action. Although MCL 500.3172(3)(f) is not directly applicable to the matter before us, no provision of the no-fault act suggests that an assigned claims insurer should not be fully reimbursed. Thus, reading the no-fault act as a whole, City of Rockford , 286 Mich.App. at 627, 781 N.W.2d 145, we must conclude that an assigned claims insurer may be reimbursed for all no-fault benefits paid to or on behalf of the person entitled to them, MCL 500.3112, in this case claimant Pettaway, when it files a timely claim under MCL 500.3175(3).
Here, plaintiff's claim was timely because it was brought within a year of its last payment "to the claimant" for purposes of MCL 500.3175(3). Accordingly, plaintiff was entitled to recover from defendant all the no-fault benefits it paid to Pettaway or on her behalf. Consequently, we hold that the trial court erred by granting defendant summary disposition; it instead should have granted plaintiff summary disposition under MCR 2.116(I)(2).
Given our holding regarding MCL 500.3175(3), we decline to address the parties' arguments concerning tolling. "An issue is moot if this court cannot fashion a remedy." Silich v. Rongers , 302 Mich.App. 137, 151-152, 840 N.W.2d 1 (2013). "As a general rule, an appellate court will not decide moot issues." B P 7 v. Bureau of State Lottery , 231 Mich.App. 356, 359, 586 N.W.2d 117 (1998).
We reverse and remand this matter to the trial court for further proceedings consistent with this opinion. Plaintiff, as the prevailing party, may tax its cost under MCR 7.219. We do not retain jurisdiction.
Beckering, P.J., and Riordan, J., concurred with Markey, J.
Because the parties do not appeal the trial court's previous grant of summary disposition to Lorenzo Causey, this opinion will refer to State Farm as "defendant."
"MCL 500.3177(1) allows an insurer paying benefits in a case involving an uninsured vehicle to seek reimbursement from the owner of that vehicle[.]" Cooper v. Jenkins , 282 Mich.App. 486, 490, 766 N.W.2d 671 (2009).
MCL 500.3109(2) defines "injured person" as "a natural person suffering accidental bodily injury." | [
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Boonstra, P.J.
Petitioner appeals by right the Michigan Tax Tribunal's (the Tribunal) grant of summary disposition in favor of respondent. Because we hold that summary disposition was properly granted, but do so primarily for different reasons than those cited by the Tribunal, we affirm in part and vacate in part the Tribunal's final opinion and judgment, and we remand for entry of an order granting summary disposition in favor of respondent for the reasons stated in this opinion.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Petitioner purchased 1,799 cartons (each carton containing 10 packs) of cigarettes from an out-of-state business and shipped them to a friend in Bosnia-Herzegovina. The cigarettes were purchased with funds from an account in petitioner's name. The friend reimbursed petitioner (or paid him in advance) for his costs in obtaining and shipping the cigarettes, and petitioner made no profit from the endeavor. His friend asserted via letter that all relevant taxes and duties in Bosnia-Herzegovina were appropriately paid. The cigarettes were eventually sold at petitioner's friend's store. No taxes were paid for the cigarettes in Michigan, and neither petitioner nor the out-of-state business was licensed to sell or receive cigarettes in Michigan. Respondent assessed tax on petitioner under the Tobacco Products Tax Act (TPTA), MCL 205.421 et seq . Petitioner contested the tax, asserting that he should not be liable for taxes on the cigarettes because he was not a "consumer" of the cigarettes, noting that the cigarettes were located in Michigan for less than 24 hours, the cigarette cartons were never opened in Michigan, the cigarettes were never smoked in Michigan, and all relevant taxes were paid at their final destination. The Tribunal disagreed. This appeal followed. We note that the only issue before us is whether petitioner is personally liable for taxes under the TPTA, not whether petitioner's actions were otherwise lawful.
II. STANDARD OF REVIEW
We review de novo the Tribunal's grant of summary disposition. Paris Meadows, LLC v. Kentwood , 287 Mich. App. 136, 141, 783 N.W.2d 133 (2010). We generally give deference to an administrative agency's interpretation of a statute the agency is delegated to administer, but we are not bound to such an interpretation. Bechtel Power Corp. v. Dep 't of Treasury , 128 Mich. App. 324, 329, 340 N.W.2d 297 (1983). Notwithstanding any deference that might be afforded to the Tribunal, we review de novo the interpretation and application of statutory language. Paris Meadows , 287 Mich. App. at 141-142, 783 N.W.2d 133. Plain and unambiguous language in a statute must be enforced as written, and a forced construction or implication will not be upheld. Sebastian J Mancuso Family Trust v. City of Charlevoix , 300 Mich. App. 1, 4-5, 831 N.W.2d 907 (2013).
III. ANALYSIS
The TPTA " 'can aptly be described as a pervasive group of tobacco product regulations....' " Value, Inc. v. Dep't of Treasury , 320 Mich. App. 571, 577, 907 NW2d 872 (2017), quoting People v. Beydoun , 283 Mich. App. 314, 328, 770 N.W.2d 54 (2009). It " 'contains detailed definitions, licensing and stamping requirements, recordkeeping and document maintenance obligations, schedules of tax rates, civil and criminal penalties for violations of the TPTA, procedures governing seized property, and a delineation of tobacco tax disbursements for various purposes.' " Value, Inc., 320 Mich.App. at 577, 907 N.W.2d 872., quoting Beydoun , 283 Mich.App. at 328, 770 N.W.2d 54. "[T]he TPTA is at its heart a revenue statute, designed to assure that tobacco taxes levied in support of Michigan schools are not evaded." Value, Inc. , 320 Mich App at 577, 907 N.W.2d 872. (quotation marks and citations omitted; alteration in original).
Petitioner argues that he is not subject to tax under the TPTA because he was not a "consumer" of the tobacco products at issue. We disagree.
The TPTA provides, in part, that "a person shall not purchase, possess, acquire for resale, or sell a tobacco product as a manufacturer, wholesaler, secondary wholesaler, vending machine operator, unclassified acquirer, transportation company, or transporter in this state unless licensed to do so." MCL 205.423(1). Under the statutory definitions, petitioner was either a "transporter" or an "unclassified acquirer" of the cigarettes at issue. It is undisputed that petitioner was not licensed under the TPTA. Petitioner therefore was not entitled under the TPTA to "purchase, possess, acquire for resale, or sell" cigarettes. Id .
The TPTA further provides for a tax to be levied on the sale of tobacco products. MCL 205.427(1). Most licensees are required to file a monthly return reporting specified information, MCL 205.427(2), and to "pay ... the tax levied in subsection (1) for tobacco products sold during the calendar month covered by the return, less [specified] compensation," MCL 205.427(3). In addition, MCL 205.428(1) provides:
A person, other than a licensee, who is in control or in possession of a tobacco product contrary to this act, who after August 31, 1998 is in control or in possession of an individual package of cigarettes without a stamp in violation of this act, or who offers to sell or does sell a tobacco product to another for purposes of resale without being licensed to do so under this act, shall be personally liable for the tax imposed by this act, plus a penalty of 500% of the amount of tax due under this act.
Because petitioner was not a licensee under the TPTA, respondent assessed taxes on petitioner under MCL 205.428(1).
Petitioner argues, however, that he is not liable for tax under the TPTA because "[i]t is the intent of [the TPTA] to impose the tax levied under this act upon the consumer of the tobacco products by requiring the consumer to pay the tax at the specified rate." MCL 205.427a. Petitioner's argument is therefore premised on a reading of MCL 205.427a that would restrict respondent's right to impose a tax under the TPTA except "upon the consumer of the tobacco products." Id .
In the overall context of the TPTA and its pervasive regulatory scheme, however, it is clear that taxes may be imposed under the act not only on the ultimate "consumer" of cigarettes, but on licensees and other persons. MCL 205.427(3) and (8). Indeed, the TPTA defines "person" to include inanimate legal entities other than individuals who might "consume" a cigarette, MCL 205.422(o). The TPTA further provides that "[a] person liable for the tax may reimburse itself by adding to the price of the tobacco products an amount equal to the tax levied under this act." MCL 205.427(8). We therefore reject petitioner's interpretation of the TPTA as allowing for a tax to be imposed only on a "consumer." Petitioner's interpretation would improperly render much of the TPTA nugatory. See Ally Fin. Inc. v. State Treasurer , 317 Mich. App. 316, 330, 894 N.W.2d 673 (2016) (" 'Courts must give effect to every word, phrase, and clause in a statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.' ") (citation and alteration omitted). Rather, it is clear that the legislative intent expressed in MCL 205.427a is merely that the persons assessed taxes under the TPTA will ultimately pass those taxes along to consumers. The fact that a person does not do so does not serve to except him or her from the reach of the TPTA when he or she elects to engage in conduct falling within its ambit of the TPTA.
The question thus becomes whether petitioner satisfies the conditions for tax liability under MCL 205.428(1). We conclude that he does. At a minimum, petitioner was in "control or in possession of a tobacco product contrary to [the] act." MCL 205.423(1). This alone is sufficient for personal tax liability.
In addition, petitioner "[sold] a tobacco product to another for purposes of resale without being licensed to do so under [the] act...." Id . Under the TPTA, "sale" means "a transaction by which the ownership of tangible personal property is transferred for consideration and applies also to use, gifts, exchanges, barter, and theft." MCL 205.422(r). The Tribunal concluded that because petitioner merely passed the cigarettes on at cost, there was no consideration. Consideration is "a bargained-for exchange" with "a benefit on one side, or a detriment suffered, or service done on the other." Gen. Motors Corp. v. Dep't of Treasury , 466 Mich. 231, 238-239, 644 N.W.2d 734 (2002) (quotation marks and citation omitted). It is undisputed that petitioner acquired the cigarettes, paid for them, and transferred them to his friend, who compensated petitioner for petitioner's costs. It was therefore a sale, albeit one on which petitioner did not net a profit. Although petitioner argues that he used his friend's money to make the purchase and that he never actually acquired ownership of the cigarettes but was merely a "gratuitous bailee," nothing in the record supports that characterization apart from petitioner's own statement that he made no profit on the transaction. See 8A Am. Jur.2d, Bailments, § 2, p 522. A bailment is a change in possession, but not a change in title. See 8A Am. Jur. 2d, Bailments, § 1, p. 574. The transaction may well have been a bailment if, for example, petitioner's friend had ordered and agreed to pay for the cigarettes to be shipped to petitioner's home and then to be shipped to their next destination, leaving petitioner merely responsible for providing an interim location for the cigarettes. See id . However, on this record, the transaction was not a mere bailment because petitioner purchased the cigarettes, had them shipped to his home, shipped them to his friend, and received compensation. Moreover, even if this were not a "transaction by which the ownership of tangible personal property is transferred for consideration," MCL 205.422(r), it would be a gift. Consideration is not a factor in the case of use, gifts, or theft. See, e.g., Black's Law Dictionary (10th ed.) (defining "gift" as "[t]he voluntary transfer of property to another without compensation" and "gratuitous gift" as "[a] gift made without consideration, as most gifts are"). We therefore conclude that the Tribunal erred by determining that MCL 205.428(1) does not provide for petitioner's tax liability as a person who sells or offers a tobacco product for the purposes of resale without a license.
We note that the Tribunal ultimately held that petitioner was in control or possession of many unstamped packages of cigarettes, notwithstanding his failure, before shipping the cigarettes out of the country, to open the cartons or the boxes in which the cigarettes were shipped and, thus, petitioner was liable under that portion of MCL 205.428(1) that establishes tax liability for an unlicensed person "in control or in possession of an individual package of cigarettes without a stamp in violation of this act...." Petitioner contended that by virtue of his failure to open the cartons or boxes that were indisputably in his possession and control, he somehow did not possess or control their individual contents. We find that argument to be unpersuasive because it rests on a strained construction of statutory language. We therefore affirm this aspect of the Tribunal's determination. However, for the reasons stated, we need not, and do not, rest our decision solely on this ground. We nonetheless invite the Legislature to clarify its use of the term "individual package" in this context to better aid taxing authorities in the future.
For all these reasons, we conclude that petitioner was subject to tax under the TPTA. We need not go any further. Our analysis, which is based on the plain language of MCL 205.428(1), provides for petitioner's tax liability without regard to whether petitioner was a "consumer" and without recourse to dictionary definitions or the definitions of "consumer" and "use" provided in in the Use Tax Act, MCL 205.91 et seq . The Tribunal therefore erred by engaging in that analysis.
We affirm in part and vacate in part the Tribunal's final opinion and judgment. We remand for entry of an order granting summary disposition in favor of respondent for the reasons stated in this opinion. MCR 7.216(A)(7). We do not retain jurisdiction.
Markey, P.J., concurred with Boonstra, J.
Under the TPTA, " '[t]ransporter' means [with certain exceptions not relevant here] a person importing or transporting into this state, or transporting in this state, a tobacco product obtained from a source located outside this state, or from any person not duly licensed under this act." MCL 205.422(y).
Under the TPTA, " '[u]nclassified acquirer' means [with certain exceptions not relevant here] a person ... who imports or acquires a tobacco product from a source other than a wholesaler or secondary wholesaler licensed under this act for use, sale, or distribution." MCL 205.422(z).
The TPTA defines "person" as "an individual, partnership, fiduciary, association, limited liability company, corporation, or other legal entity." MCL 205.422(o).
Courts do not generally inquire into the sufficiency of consideration. Harris v. Chain Store Realty Bond & Mtg. Corp. , 329 Mich. 136, 145, 45 N.W.2d 5 (1950). Here, it appears that petitioner agreed to purchase the cigarettes and ship them out of the country, and petitioner's friend agreed to either reimburse or pay petitioner upfront for petitioner's costs. The fact that the transaction did not result in monetary profit to petitioner does not compel the conclusion that there was no consideration or that no sale occurred. "When [two] competent parties, through a process of give and take, reach an agreement it can be presumed that the mutual promises were considered adequate." Id .
In certain circumstances not present here, a "gift" may be given as compensation for services rendered. See "remunerative donation" in Black's Law Dictionary (10th ed.) p. 595. | [
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O'Brien, P.J.
Defendant, Dawn Marie Dixon-Bey, was arrested after admittedly stabbing her boyfriend, Gregory Stack (the victim), to death in their home on February 14, 2015. At first, she claimed that the victim must have been stabbed during an altercation with others before returning to their home. Later, however, defendant admitted that she was the person who stabbed the victim but claimed that she had only done so in self-defense. She was subsequently charged with first-degree murder, MCL 750.316, and, after an eight-day jury trial, was found guilty of second-degree murder, MCL 750.317. She was sentenced to 35 to 70 years in prison and appeals as of right. On appeal, defendant argues that she was deprived of her constitutional right to a fair trial, that the trial court abused its discretion by admitting evidence about defendant's attempts to prevent the victim's daughter from having custody of her half-sister (the biological daughter of the victim and defendant), that she was deprived of her constitutional right to the effective assistance of counsel, that the trial court abused its discretion by admitting evidence about a previous occasion on which she had stabbed the victim, and that resentencing is required because the trial court unreasonably departed from the advisory minimum sentence guidelines range. For the reasons set forth in this opinion, we affirm defendant's conviction but vacate her sentence and remand for resentencing.
As indicated, defendant argues on appeal, in part, that she was deprived of her constitutional right to a fair trial. Generally, she takes issue with the trial court's decision to qualify Detective Gary Schuette as an expert in interpreting evidence at a homicide scene. Specifically, she argues that she was deprived of her constitutional right to a fair trial because the trial court erroneously permitted Detective Schuette "to essentially tell the jury that [defendant]'s claim of self-defense was a sham based on his expertise." Defendant asserts that Detective Schuette was not permitted to offer that opinion because he "was not qualified as an expert in behavioral science with regard to how people engaged in self-defense are expected to act," because "his small sampling from personal experience would not support a peer-based review of experts," because his "testimony was speculative," and because the testimony "foreclosed any possibility that the jury would believe that Dawn acted in self-defense." While we agree with defendant's position that the admission of some of Detective Schuette's testimony was erroneous, we do not agree that reversal is required because defendant has not demonstrated that the admission of the testimony was outcome-determinative.
"This Court reviews for an abuse of discretion a trial court's decision to admit or exclude expert witness testimony. This Court also reviews for an abuse of discretion a trial court's decision on an expert's qualifications." People v. Steele , 283 Mich.App. 472, 480, 769 N.W.2d 256 (2009) (citations omitted). "A trial court abuses its discretion when it selects an outcome that does not fall within the range of reasonable and principled outcomes." People v. Young , 276 Mich.App. 446, 448, 740 N.W.2d 347 (2007). "Questions whether a defendant was denied a fair trial, or deprived of his liberty without due process of law, are reviewed de novo." Steele , 283 Mich.App. at 478, 769 N.W.2d 256. A trial court's interpretation and application of a court rule, like a statute, is reviewed de novo. People v. Valeck , 223 Mich.App. 48, 50, 566 N.W.2d 26 (1997).
At issue in this case are MRE 701 and 702, which govern the admissibility of opinion testimony. MRE 701 governs the admissibility of opinion testimony by lay witnesses:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.
MRE 702 governs the admissibility of expert testimony:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
As this Court has recognized before, the interplay between MRE 701 and MRE 702 is somewhat unclear when a police officer provides testimony based on his or her training and experience. See People v. Dobek , 274 Mich.App. 58, 77, 732 N.W.2d 546 (2007) ("The caselaw on this issue is not entirely clear."). In Dobek , the prosecution offered the testimony of a police officer, Bruce Leach, "regarding delayed disclosure" in sexual-assault cases "as simply a police officer giving lay testimony based on his training and experience without ... being first qualified as an expert, while suggesting to the jury that Leach was an expert on the subject." Id . at 76, 732 N.W.2d 546. The trial court ruled that the testimony was admissible as lay testimony and instructed the jury as such. Id . at 76-77, 732 N.W.2d 546. On appeal, defendant challenged this ruling, arguing that this testimony required that the police officer be qualified as an expert. Id . at 76, 732 N.W.2d 546.
This Court analyzed the issue as follows:
Because Leach was testifying about delayed disclosure on the basis of his knowledge, experience, and training, it would appear that his testimony constituted expert opinion testimony and not lay opinion testimony under MRE 701, which is limited to opinions or inferences that are "rationally based on the perception of the witness" and that are "helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." The caselaw on this issue is not entirely clear. For example, in Chastain v. Gen. Motors Corp. (On Remand) , 254 Mich.App. 576, 657 N.W.2d 804 (2002), the trial court permitted a police officer to give lay opinion testimony under MRE 701 that the plaintiff was not wearing his seatbelt. This Court affirmed, rejecting the plaintiff's claims that the trial court should not have admitted evidence under MRE 701, that expert testimony under MRE 702 was necessary, and that the officer was not qualified to give an expert opinion on the issue. The Chastain panel held that the lay opinion was not admitted in error because the testimony was based on the officer's perceptions at the scene of the accident and because the opinion was not based on his past experience in investigating car accidents. Chastain , [254 Mich.App.] at 586-590 [657 N.W.2d 804]. The Court stated, "A careful examination of [the officer's] testimony establishes that although his opinion in this case was consistent with conclusions he had drawn in other cases he had investigated, his past experience did not form the basis of his opinion." Id . at 590 [657 N.W.2d 804]. Here, Leach's testimony on delayed disclosure was drawn from his past experiences and training.
In Co-Jo, Inc. v. Strand , 226 Mich.App. 108, 572 N.W.2d 251 (1997), the plaintiffs argued that an off-duty fireman's opinion testimony regarding the speed at which a building burned was improperly admitted as lay opinion testimony under MRE 701 because expert testimony was required and the fireman was not qualified as an expert. This Court held that the trial court did not abuse its discretion in admitting the opinion evidence regarding the speed and intensity of the fire. Co-Jo , [226 Mich.App.] at 117 [572 N.W.2d 251]. The Co-Jo panel stated:
[The fireman's] conclusions were based on observation of the fire for over thirty minutes. The opinion testimony was limited to describing the fire in relation to other building fires [the fireman] had witnessed. The reliability of his conclusions was premised on his extensive experience in observing other building fires and investigating their causes. The testimony was of a general nature, without any reference to technical comparison of scientific analysis. [ Id . ]
Under Co-Jo , it could be reasonably argued that Leach's testimony was acceptable lay opinion testimony. Co-Jo appears to be at odds with Chastain . We, however, do not need to resolve the issue, and the apparent conflict in the caselaw gives credence to a conclusion that the prosecutor did not pursue the challenged questioning in bad faith. Assuming that expert testimony was required, Leach was more than qualified to give an expert opinion on delayed disclosure to the extent of the testimony actually presented. He testified at length about his extensive knowledge, experience, training, and education concerning the sexual abuse of children. Leach has personally participated in the investigation of hundreds of criminal sexual conduct cases involving child victims. And he had received training in the investigation of cases involving delayed disclosure. With his background and experience in investigating child sex abuse cases and interviewing victims, Leach became knowledgeable regarding delayed disclosure, and, according to Leach, delayed disclosure is common and happens quite frequently with child victims. On this record, the disputed testimony was admissible, and the prosecutor acted in good faith in eliciting the testimony. Accordingly, reversal is unwarranted. [ Dobek , 274 Mich.App. at 77-79, 732 N.W.2d 546 (alterations in original).]
In this case, the trial court qualified Detective Schuette "as an expert in interpreting evidence at ... homicide scenes." In our view, the trial court did not err in this regard. Detective Schuette described, in detail, his extensive knowledge, skill, experience, training, and education with respect to homicide investigations. Specifically, Detective Schuette testified that he had participated in "[h]undreds" of homicide investigations; that he participated in extensive law-enforcement training, including, for example, several "homicide schools" and "evidence technician school;" and that he "taught Criminalistics which is processing of crime scenes, interpreting ... crime scenes...." In addition, Detective Schuette testified that, on previous occasions, he had testified as an expert in "[e]vidence interpretation and general homicide investigations." Ultimately, the trial court found this knowledge, skill, experience, training, and education sufficient for purposes of MRE 702, and we agree with that decision despite the fact that, as defendant claims, it may have been a rather "broad" qualification.
Whether Detective Schuette was permitted to offer an opinion as to whether defendant was acting in self-defense is a different, and more complicated, issue. As indicated earlier, defendant claims that Detective Schuette was allowed "to essentially tell the jury that [defendant]'s claim of self-defense was a sham based on his expertise." To support this claim, defendant points, in relevant part, to two portions of Detective Schuette's testimony at trial.
First, she points to the following exchanges between the prosecutor and Detective Schuette regarding how individuals acting in self-defense generally act afterward:
Q . All right, and once you learned that there was two stab wounds, did that change your strategy or your focus at all?
A . It did. I was surprised by the fact that there had been two stab wounds. I began to lean towards a little bit more away from-I-I should say it like this. The self-defense theory was slowly beginning to break apart and I believed that this was weighing heavily on the other side of self-defense. I was skeptical because I always want an autopsy report first, so I held off making any official report myself about it until I received the autopsy report a little bit later on in March.
Q . Okay, and by the time you talked to several other individuals, looked at the autopsy report, listened to the interview from-or not the interview, but the phone conversation with Megan Marshall and what you knew from your talking to Dawn Dixon-Bey, I'm gathering by what you're saying is that it's clear that you eventually lean away from a self-defense theory?
A . Yes, probably the 23rd was a turning point in the investigation, not only from the-the standpoint of receiving the autopsy results, the preliminary autopsy results via word of mouth from Officer Peters, but also in speaking with Mr.-Mr. Gove and the prior statement that he had obtained from her.
* * *
Q . All right, so it's safe to say based-about the 23rd was when your focus really starts to turn towards this wasn't self-defense?
A . Correct.
Q . All right, now you had indicated that you've done hundreds of homicide investigations?
A . Yes.
Q . All right, have you dealt with situations where there has been self-defense?
A . Oh, absolutely.
Q . All right, have you interviewed people who had actually been the person who used self-defense?
A . Yes.
Q . All right, in your experience do they tend to act a certain way?
A . Yes.
Q . And how is that?
A . They're very excited, crying often times, not always but often times they're crying, they're very excited. They are giving you all the information and then asking if they're in trouble afterward. I didn't mean it, they're telling me all sorts of different things. I had to do it, I didn't mean it, I hear a lot of that kind of rattle can statements that come from them. Probably the most important thing that I look for in that circumstance is the excitability and the detail about how everything came about.
Q . Okay, now you had indicated-I-I guess is it fair to say that's not what you got from talking to Dawn Dixon-Bey?
A . No, it's not at all.
Additionally, defendant also points to Detective Schuette's testimony that the victim was likely lying down during the stabbing. In that regard, Detective Schuette testified on direct examination, in relevant part, as follows:
Q . All right, and based off of the interviews that you've conducted, the autopsy results and your viewing of the crime scene, were you able to interpret that crime scene and-and develop a theory of what you thought took place?
A . Yes.
Q . And what is that?
A . Well, first off-
Q . And I guess, what did you based that on as well?
A . -what I based that on was the evidence that was at the scene, the autopsy results and the information that I had gathered through other witnesses. The one constant in all of the information surrounding the statements Ms. Dixon-Bey had made was the dog cage. I noted that the dog cage was, in fact, in the living room, so that certainly could have been a factor in the assault or what had occurred.
* * *
So, I began to hypothesize about it occurring in the living room and what I want to mention before I say this is that there were no other cuts, there were no defensive wounds on Mr. Stack.
Q . Why is that significant to you?
A . If she was attacking him or they're engaged in an altercation, the marks she had on her were readily apparent. The marks on him were not, there were none. There was none noted by the pathologist, there was none seen by the rescue personnel, there was none in-in the autopsy photographs.
Q . So, that led you to believe what?
A . That led me to believe that he was in a state of surprise when this occurred. Likely he was lying down and I say likely, because I don't know, he could have been standing up against the wall, but likely there would have been some sort of transfer, some sort of item that I would-had seen like a smearing or something of that nature that wasn't present. So, lying down made more sense, it gives you that pressure/counter pressure that's needed so the strength wouldn't-wouldn't be as much to be able to plunge something into something that's static or something that's moving, there's more strength required in the moving. So, if it's static and the knife is plunged in, also there's a lot more force that can be exerted by someone who is smaller downward rather than upward or outward. So, plunged downward and then back up and then back in again, seemed to make more sense.
When we looked at the fingernail clippings of Mr. Stack, there was no DNA underneath them of Ms. Dixon-Bey which would be indicative of an assault that was occurring and he's fighting for his life and he's reaching out and grabbing, that would cause me to think, especially if he was standing up or in a standing area, it would cause me to think that he would have some sort of evidence on him of trying to save his own life. But, that didn't exist, so it caused me to believe that he was in an state of surprise when all of this occurred. Q . Yeah, so based off your interpretation of the crime scene, is it fair to say you don't even believe there was a struggle?
A . Yes.
In our view, Detective Schuette's expertise did not extend to offering a profile of the "certain way" in which those who kill in self-defense act during interrogations. While it certainly appears that Detective Schuette has been involved in cases in which individuals have claimed that they acted in self-defense, we cannot conclude that his participation in an unidentified number of these cases qualifies him to offer expert opinions regarding whether individuals act a "certain way" after killing in self-defense as well as whether defendant's behavior in this case was consistent with that "certain way." Detective Schuette's expertise was in the area of interpreting evidence at homicide investigations, not in psychology or some other behavioral science, and nothing in record suggests that his knowledge, skill, experience, training, and education addressed such areas. While it is true that Detective Schuette need not necessarily be a psychologist to offer this type of testimony, it is equally true that he does need to have the requisite knowledge, skill, experience, training, and education to be qualified as an expert in the area about which he is offering expert testimony, and the record before us simply does not support a conclusion that he was adequately qualified to make sweeping "expert" generalizations about the demeanor of those who kill in self-defense. Consequently, we conclude that the trial court's decision to admit Detective Schuette's expert testimony in this regard fell beyond the range of principled outcomes.
Similarly, we also conclude that Detective Schuette's expertise did not extend to offering opinions with respect to the force necessary to stab someone through the chest and into the heart. Central to Detective Schuette's testimony with respect to what he believed happened was his opinion that defendant lacked the requisite "extraordinary amount of strength" to stab the victim twice while he was supposedly standing and acting as the aggressor. However, there is nothing in the record that supports Detective Schuette's basis for his opinions regarding force. Furthermore, while it is true that, as already described, Detective Schuette maintains the requisite knowledge, skill, experience, training, and education to testify as an expert in the interpretation of homicide scenes, we are unable to find anything in his testimony with respect to the knowledge, skill, experience, training, and education that might support a conclusion that he was knowledgeable, skilled, experienced, trained, and educated to ascertain the amount of force necessary to stab a human heart. Cf. People v. Hartford , 159 Mich.App. 295, 303, 406 N.W.2d 276 (1987) (allowing a police officer to testify as an expert regarding gunshot wounds when the officer had completed "both undergraduate and graduate courses in homicide investigation which included the topic of specific information that can be obtained from examining gunshot wounds"). In fact, even Detective Schuette acknowledged that there was no objective way to "test" his theory and that he lacked the ability to actually "measure" the amount of force necessary to stab someone. We also find it noteworthy that Dr. Reuben Ortiz-Reyes, the pathologist whose reports were relied upon by Detective Schuette in offering his opinion, expressly testified that the amount of force necessary depends on the sharpness of the knife, a factor that could not be considered in this case in light of the fact that the knife was never found. In other words, Detective Schuette's premise that the stabbing would require considerable force is not supported by the medical testimony in this case, and Detective Schuette does not appear to have the scientific, technical, or specialized knowledge necessary to form his own independent opinion of the force necessary to stab the victim through the chest into the heart, particularly when the knife used in the stabbing had not been recovered. Absent a sound basis for a major premise underlying his opinion, Detective Schuette's theory of the killing amounted to nothing but speculation, and this unreliable speculation could not assist the jury. Consequently, we conclude that the trial court's decision to admit Detective Schuette's expert testimony in this regard fell beyond the range of principled outcomes.
Nevertheless, while it is our conclusion that Detective Schuette's testimony as described above was erroneously admitted, we ultimately conclude that defendant has not demonstrated that the error was outcome determinative. See People v. Coy , 243 Mich.App. 283, 304, 620 N.W.2d 888 (2000). The ultimate issue before the jury was whether defendant acted in self-defense, i.e., whether the victim lunged at her and essentially impaled himself on the knife as claimed by defendant or whether she stabbed the victim while he lay on the couch as claimed by the prosecution. Defendant presented her version of the events leading up to the victim's death at trial through her own testimony and that of other witnesses; likewise, the prosecution presented its version of the events leading up to the victim's death through various witnesses' testimony. While the testimony at issue went directly to this ultimate issue and was relied on by the prosecution during its closing argument, it is our view that, considering the record as a whole, Detective Schuette's testimony was not the only evidence undermining defendant's self-defense claim. That is, even without the testimony at issue, the record reflects significant evidence that undermined defendant's self-defense claim. For example, defendant initially denied stabbing the victim and stated that the victim came home with a stab wound. It was only later that defendant began to claim self-defense, after the possibility of self-defense had been suggested to her by police. "[C]onflicting statements tend to show a consciousness of guilt," People v. Unger , 278 Mich.App. 210, 225, 227, 749 N.W.2d 272 (2008), and "[a] jury may infer consciousness of guilt from evidence of lying or deception," id . at 227, 749 N.W.2d 272. Further, although defendant claimed that she put the knife down in the house, the weapon was not found in the house, and efforts to hide or suppress evidence can also be seen as indicative of consciousness of guilt. See id. at 226, 749 N.W.2d 272. While defendant claimed the altercation took place in the kitchen, the testimony indicated that there were no signs of a struggle in the kitchen. Likewise, the victim had no injuries or signs of defendant's DNA on his person to suggest that he had been in a physical altercation before the stabbing. Perhaps most significantly, in terms of medical evidence, the pathologist explained that there were two distinct stab wounds in the heart that could have been inflicted through one hole in a shirt and that neither wound was the result of surgical intervention. This contradicts defendant's testimony that she only stabbed the victim once, and it undercuts her claim of self-defense insofar as it seems excessive, even if threatened, to inflict two fatal stab wounds to the heart. In addition, evidence was introduced which indicated that, in the past, defendant had threatened to stab the victim and that she had actually stabbed the victim during fights.
In addition to the strong evidence of defendant's guilt, the risk that the jury might give undue weight to Detective Schuette's testimony was alleviated to some extent by a proper jury instruction on expert testimony, including the fact that the jury did not have to believe the expert's testimony and instructions on evaluating expert testimony. See Kowalski , 492 Mich. at 137 n. 74, 821 N.W.2d 14 ; People v. Peterson , 450 Mich. 349, 378, 537 N.W.2d 857 (1995). Further, defense counsel effectively challenged Detective Schuette's theory and credibility at trial. For instance, defense counsel cross-examined the detective on flaws in his theory, including the fact that his testimony on "force" was not in accord with the pathologist's opinions. During closing arguments, defense counsel then vigorously argued that Detective Schuette's version of events was simply "one man's theory that is not supported by the physical evidence and in some instances is contrary to the evidence." Additionally, on cross-examination, Detective Schuette conceded that a 170-pound man, such as the victim, lunging at a knife would create enough force to penetrate to the heart, which was a proposition that the pathologist would not confirm or deny, meaning that, to some extent, the defense arguably benefited from Detective Schuette's "expert" testimony on this topic. Cf. Peterson , 450 Mich. at 377, 537 N.W.2d 857. Overall, given the strong evidence of defendant's guilt, it does not appear that the introduction of Detective Schuette's expert opinion testimony on self-defense affected the outcome of the trial, and for that reason defendant is not entitled to relief on appeal. We therefore conclude that, while the testimony at issue was erroneously admitted, its admission was not outcome-determinative and does not entitle defendant to appellate relief. See People v Jackson , 498 Mich. 246, 257; 869 N.W.2d 253 (2015) (explaining that preserved nonconstitutional evidentiary error is not grounds for reversal unless it is more probable than not that the error affected the outcome of the trial).
On appeal, defendant also argues that the trial court erred by admitting evidence of defendant's attempts to prevent MM, the victim's biological daughter, from having custody of her half-sister, JS. During trial, MM
testified that, on the day after defendant killed the victim, JS was at MM's baby shower and wanted to stay with her afterward, but defendant would not allow it. MM also testified that defendant's other daughters blamed MM for the Department of Health and Human Services' eventual involvement in JS's life. Defendant claims that this testimony was both irrelevant and unfairly prejudicial. In essence, defendant asserts, "it characterized [defendant] as an evil person intent on destroying [JS]'s life in order to spite [the victim]'s family." We disagree.
A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. Steele , 283 Mich.App. at 478, 769 N.W.2d 256. First, defendant argues that the testimony at issue was irrelevant. " 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. Relevant evidence is admissible; irrelevant evidence is not. MRE 402.
"Evidence that a defendant made efforts to influence [a] .... witness is relevant if it shows consciousness of guilt." People v. Schaw , 288 Mich.App. 231, 237, 791 N.W.2d 743 (2010). Second, defendant argues that the testimony at issue, assuming it was relevant, was unfairly prejudicial. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403. MRE 403 does not prohibit prejudicial evidence; rather, it prohibits evidence that is unfairly prejudicial. People v. Mardlin , 487 Mich. 609, 616, 790 N.W.2d 607 (2010). In essence, evidence is unfairly prejudicial when there exists a danger that marginally probative evidence might be given undue weight by the jury. People v. Feezel , 486 Mich. 184, 198, 783 N.W.2d 67 (2010) (opinion by CAVANAGH, J.).
In our view, MM's testimony was relevant. That is, MM's testimony had a tendency to make the existence of a fact that was of consequence to the determination of the action more probable or less probable than it would have been without the evidence. MRE 401. To be relevant, evidence need only have a tendency to make the existence of any fact that is of consequence more or less probable. In this case, MM's testimony regarding the custody dispute provided a conflicting portrayal of defendant after the victim's death, including the very next day. MM testified that defendant, as well as defendant's other daughters, actively prevented JS from continuing to have a relationship with MM after the victim's death. Defendant's daughters and friends, on the other hand, testified that defendant was shocked and emotional about the victim's death, and MM's testimony certainly undermines that theory. See, e.g., People v. Hoskins , 403 Mich. 95, 100, 267 N.W.2d 417 (1978) ("Because of the absence of direct evidence, the prosecutor in the instant case was forced to use circumstantial evidence in his attempt to prove that the defendant had the requisite state of mind at the time of the shooting to support a conviction of second-degree murder."). Furthermore, MM's testimony in this regard likely reflected on defendant's and defendant's daughters' testimony that the victim was an angry drunk that defendant was scared of, which the prosecution contends supports a finding that defendant influenced JS's and her other daughters' statements or trial testimony. See, e.g., Schaw , 288 Mich.App. at 237, 791 N.W.2d 743 (providing that a defendant's efforts to influence a witness were relevant, and thus admissible, because they "showed consciousness of guilt"). We therefore concl ude that the trial court's ruling that this testimony was relevant did not fall outside the range of reasonable outcomes.
Similarly, we are also of the view that MM's testimony was not unfairly prejudicial. That is, we see no reason why her testimony would have been given undue weight by the jury. See Feezel , 486 Mich. at 198, 783 N.W.2d 67. First, it is important to keep in mind that this testimony, which had a tendency to affect whether the jury believed defendant's daughters' testimony and reflected defendant's state of mind shortly after the victim was killed, was a brief portion of one witness's testimony during six days of testimony over an eight-day trial. Furthermore, defendant's conclusory claim that it portrayed her "as an evil person" is simply not supported by the record. In fact, if one were to assume that defendant was acting in self-defense as she claimed, her desire to prevent the biological child of the victim, i.e., the person she claimed was trying to kill or injure her, from continuing to have relationships with her children may have actually supported her defense. In our view, any prejudicial effect from the fact that the jury might have viewed defendant negatively because of how she handled JS's custody after the victim died is minimal at best when compared to the probative value that this testimony had on several witnesses' biases and defendant's mindset shortly after the victim was killed. Additionally, as alluded to earlier, defendant does not make any argument with respect to whether MM's testimony impermissibly reflected on her character. We therefore conclude that the trial court's ruling that this testimony was not unfairly prejudicial did not fall outside the range of reasonable outcomes.
Relatedly, defendant briefly argues on appeal that her trial counsel's failure to object to Detective Schuette's and MM's testimony as described constituted ineffective assistance of counsel. "The question whether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of constitutional law." People v. Trakhtenberg , 493 Mich. 38, 47, 826 N.W.2d 136 (2012). As explained by the Trakhtenberg Court:
Both the Michigan and the United States Constitutions require that a criminal defendant enjoy the assistance of counsel for his or her defense. Const. 1963, art. 1, § 20 ; U.S. Const., Am. VI. In order to obtain a new trial, a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different. [ People v. ] Armstrong , 490 Mich. [281,] 290 [806 N.W.2d 676 (2011) ] ; see, also, People v. Pickens , 446 Mich. 298, 521 N.W.2d 797 (1994) (adopting the federal constitutional standard for an ineffective-assistance-of-counsel claim as set forth in Strickland [v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ] ). [ Trakhtenberg, 493 Mich. at 51-52, 826 N.W.2d 136.]
Importantly, an attorney's "[f]ail[ure] to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v. Ericksen , 288 Mich. App. 192, 201, 793 N.W.2d 120 (2010). The arguments made by defendant with respect to her ineffective-assistance-of-counsel claim rely entirely on her positions as described earlier, all of which we ultimately concluded were meritless. Consequently, an objection by trial counsel would have been meritless. Id . We therefore conclude that defendant's trial counsel's performance did not fall below an objective standard of reasonableness and was not outcome-determinative. Trakhtenberg , 493 Mich. at 51-52, 826 N.W.2d 136.
Next, defendant argues that the trial court abused its discretion by admitting evidence about a previous occasion in which she had stabbed the victim. Specifically, defendant argues that the fact that she had stabbed the victim toward the beginning of their relationship, approximately 10 years before the instant stabbing, has no bearing on her intent at the time of the stabbing at issue in this case. She claims, in relevant part, as follows:
The notion that [defendant] developed a motive or intent to stab [the victim] when they first got together and waited over 10 years to effectuate the plan is absurd on its face. If [defendant] intended to murder [the victim], there were numerous opportunities given the repeated testimony of [the victim's] drinking and drug use.
Therefore, defendant asserts, this evidence had no tendency to prove or disprove whether she was acting in self-defense at the time and that, even if it did, the minimal probative value was substantially outweighed by the danger of unfair prejudice. We disagree.
As stated earlier, a trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion.
Steele , 283 Mich.App. at 478, 769 N.W.2d 256. Additionally, evidence is admissible only if it is relevant, MRE 402, meaning that it has a "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence," MRE 401. However, even relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." MRE 403. In support of this argument, unlike the evidentiary argument already discussed, defendant argues that MRE 404 precluded admission of this evidence because it is improper character evidence. Specifically, MRE 404(a) generally prohibits the admission of character evidence to establish actions in conformity with that character. Despite this general prohibition, character evidence "may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act ...." MRE 404(b)(1). "At its essence, MRE 404(b) is a rule of inclusion, allowing relevant other acts evidence as long as it is not being admitted solely to demonstrate criminal propensity." People v. Martzke , 251 Mich.App. 282, 289, 651 N.W.2d 490 (2002). See also Mardlin , 487 Mich. at 616, 790 N.W.2d 607 ("[T]he rule is not exclusionary, but is inclusionary, because it provides a nonexhaustive list of reasons to properly admit evidence that may nonetheless also give rise to an inference about the defendant's character.").
In this case, it is apparent that the prosecution sought to admit evidence that defendant had previously stabbed the victim, not to demonstrate criminal propensity, Martzke , 251 Mich.App. at 289, 651 N.W.2d 490, but to disprove defendant's claim that her decision to stab the victim was emotional and made in self-defense, i.e., to prove her intent, MRE 404(b)(1). According to one of the victim's friends, the victim had called him on several occasions asking for a ride from the home after having had an argument with defendant. On multiple occasions, after the friend arrived, he witnessed defendant threaten to stab the victim, e.g., "I'm going to stab your ass." Specifically the friend testified that on one occasion the victim "was bleeding and everything and he's like, 'you bitch, I can't believe you stabbed me.' " At this point, defendant's trial counsel objected, and the trial court sustained that objection and gave a curative instruction. However, after defendant testified, the trial court decided to allow questioning with respect to the previous stabbing given the nature of defendant's testimony. Specifically, the prosecution argued, and the trial court decided, that rebuttal testimony about defendant's prior stabbing of the victim was admissible pursuant to MRE 404(b) because it reflected on defendant's motive or intent. This additional testimony included several witnesses recalling the victim's comment that defendant had tried to kill him by stabbing him and Detective Schuette's testimony that medical records confirmed that the victim had sustained injuries similar to those described by the victim at that time. We agree with the trial court's conclusion that this rebuttal testimony was admissible. Indeed, much like a victim's prior acts of violence, a defendant's prior acts of violence are also highly relevant as to whether a defendant was acting in self-defense. See, e.g., People v. Taylor , 195 Mich.App. 57, 61, 489 N.W.2d 99 (1992). Contrary to defendant's argument on appeal, the prior stabbing had little, if anything, to do with defendant's intent and patience over the 10 years leading up to the murder. Rather, it undermined defendant's testimony that she had never threatened the victim. Indeed, defendant's testimony portrayed her as the victim of one-way physical violence for several months leading up to the stabbing. Consequently, defendant's prior acts of violence, and especially her prior stabbing of the victim, are highly relevant when determining whether she was acting in self-defense when she stabbed the victim. Id . We therefore conclude that the trial court did not abuse its discretion by admitting evidence of defendant's prior stabbing of the victim. Lastly, defendant argues that resentencing is required because the trial court unreasonably departed from the advisory guidelines minimum sentence range. Defendant claims that the trial court's comments at sentencing "reflected the judge's personal opinion about the characters of [the victim] and [defendant], rather than facts that are capable of being evaluated and confirmed by an appellate court." In support of her argument, defendant calls attention to some of the trial court's statements-such as "Mr. Stack had a lot of really great qualities and he had one major fatal flaw, that's that he stayed in a relationship with you"-and asserts that such comments show that the trial court "was likely moved by the devastation to the [victim's] family," which resulted in a sentence that was not based on objective reasoning. She also argues, especially given her lack of criminal history, that "the long sentence does not appear to serve any of the objectives of incarceration...." Stated simply, defendant argues that the trial court's sentence was not reasonably proportionate to the crime and the offender. We agree.
"A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness." People v. Lockridge , 498 Mich. 358, 392, 870 N.W.2d 502 (2015). "[T]he standard of review to be applied by appellate courts reviewing a sentence for reasonableness on appeal is abuse of discretion." People v. Steanhouse , 500 Mich. 453, 471, 902 N.W.2d 327 (2017). In Steanhouse , the Michigan Supreme Court clarified that "the relevant question for appellate courts reviewing a sentence for reasonableness" is "whether the trial court abused its discretion by violating the principle of proportionality...." Id . The principle of proportionality is one in which
"a judge helps to fulfill the overall legislative scheme of criminal punishment by taking care to assure that the sentences imposed across the discretionary range are proportionate to the seriousness of the matters that come before the court for sentencing. In making this assessment, the judge, of course, must take into account the nature of the offense and the background of the offender." [ Id . at 472, 902 N.W.2d 327, quoting People v. Milbourn , 435 Mich. 630, 651, 461 N.W.2d 1 (1990).]
Under this principle, " 'the key test is whether the sentence is proportionate to the seriousness of the matter, not whether it departs from or adheres to the guidelines' recommended range.' " Steanhouse 500 Mich. at 472, 902 N.W.2d 327, quoting Milbourn , 435 Mich. at 661, 461 N.W.2d 1. Part of the Steanhouse Court's reasoning for adopting the "principle-of-proportionality test" for reviewing a sentence for reasonableness was "its history in our jurisprudence." Steanhouse 500 Mich. at 471, 902 N.W.2d 327. Accordingly, although the Lockridge Court corrected a constitutional flaw in the sentencing guidelines by making them fully advisory,
nothing else in [that] opinion indicated we were jettisoning any of our previous sentencing jurisprudence outside the Sixth Amendment context. Moreover, none of the constitutional principles announced in [ United States v. ] Booker [ 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ] or its progeny compels us to depart from our longstanding practices applicable to sentencing. Since we need not reconstruct the house, we reaffirm the proportionality principle adopted in Milbourn and reaffirmed in [ People v. Babcock , 469 Mich. 247, 666 N.W.2d 231 (2003) ] and [ People v. Smith , 482 Mich. 292, 754 N.W.2d 284 (2008) ]. [ Steanhouse 500 Mich. at 473, 902 N.W.2d 327.]
However, to the extent that dicta from our Supreme Court's prior opinions were "inconsistent with the United States Supreme Court's prohibition on presumptions of unreasonableness for out-of-guidelines sentences," it "disavow[ed] those dicta." Id . at 474, 902 N.W.2d 327, citing Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).
In this case, defendant was sentenced after Lockridge was issued, and the trial court expressly recognized that the guidelines minimum sentence range was advisory. Consequently, it is apparent that the trial court was aware that its upward departure sentence would be reviewed for reasonableness on appeal. To begin the sentencing hearing, the trial court acknowledged that the guidelines minimum sentence range was 12 to 20 years. The prosecutor requested, in relevant part, that "the court exceed the guidelines significantly" and "sentence Ms. Dixon-Bey at a minimum, on the low end, to 30 years." The trial court, apparently agreeing with the prosecutor's argument, sentenced defendant to a minimum term of 35 years in prison. The trial court reasoned as follows:
All right, well the court sat through this trial, for several weeks I listened to a lot of testimony and I've learned that few people in this business are perfect. And Mr. Stack had a lot of really great qualities and he had one major fatal flaw, that's that he stayed in a relationship with you. And I-I-I don't buy your-your theory that this was just some kind of domestic situation and you struck out at him in some type of vulnerability. In fact, I think some-some-some facts that were well established during the trial are significant and that's the-first, is that you stabbed him not [once] but twice in the heart.
Mr. Carter,[sic] might've-oh, you know, maybe Dr. Ortiz-Reyes, you know, cut that when he was doing the autopsy. That-that wasn't-there was a second stab wound and it was directly to the heart. One and one half years before this even occurred you slashed Mr. Stack, you know, such that he had to have reconstructive surgery on his hand. So, this wasn't the first time there was a domestic act of violence with you involving a knife with the victim. In fact, you told Mr. Gove that all I have to do is stick him in the chest and then claim self-defense. That was a statement that you made before the alleged time when he was-Mr. Stack was stabbed twice in-in the heart.
And then, on-on-on the night in question we know the murder weaponed [sic] vanished. It was never found, never able to be processed by the police.
So, you had the presence of mind to do that. You had the presence of mind to go ahead and try to minimize your role and then try to turn the focus, you know, back on Mr. Stack as being the cause. Well, today the focus is about you. An intent can be determined by what you did, what you said, both before, during and after the crime. And, frankly, you plunged that knife into Mr. Stack's heart twice and you brutally murdered him in cold blood. And for that by the power vested in me in the State-by the State of Michigan you're to serve thirty-five (35) years to seventy (70) years in the Michigan Department of Corrections, five hundred dollars ($500.00) in court costs, three hundred and seventy-five dollars ($375.00) in fines, a hundred and thirty dollars ($130.00) to the Crime Victims Rights Fund, sixty-eight dollars ($68.00) in State court costs, three hundred and fifty dollars ($350.00) in attorney's fees, sixty dollars ($60.00) in the DNA fee.
You know, with you married to another man in prison I'm just amazed he ever even stayed with you in the-in a relationship. And-and by the way, I did consider the sentencing guidelines which were 12 years to 20 years but I considered that the additional level of depraved heart and murder and the cold calculated nature of you brutally stabbing him twice in the heart and letting him bleed to death and die in this matter. So, the court believes my sentence is within the range. The guidelines are only advisory so you will serve that time. You'll be an old woman before you get out of prison.
It is our view that the 15-year upward departure was unreasonable and that, in light of the record before us, the trial court abused its discretion by violating the principle of proportionality. When our Supreme Court adopted the principle of proportionality in Milbourn , it noted that it did so, in part, to "effectively combat unjustified disparity" in sentencing. Milbourn , 435 Mich. at 647, 461 N.W.2d 1. Therefore, "[o]ne of the purposes of the proportionality requirement is to minimize idiosyncrasies." Smith , 482 Mich. at 311, 754 N.W.2d 284. The Milbourn Court pointed to the sentencing guidelines as an aid to accomplish the purposes of proportionality, noting that they were "a useful tool in carrying out the legislative scheme of properly grading the seriousness and harmfulness of a given crime and given offender within the legislatively authorized range of punishments." Milbourn , 435 Mich. at 657-658, 461 N.W.2d 1. In Smith , our Supreme Court reiterated that the sentencing guidelines "provide[ ] objective factual guideposts that can assist sentencing courts in ensuring that the offenders with similar offense and offender characteristics receive substantially similar sentences." Smith , 482 Mich. at 309, 754 N.W.2d 284 (quotation marks and citations omitted).
More recently in Steanhouse , our Supreme Court noted that the Legislature had incorporated the principle of proportionality into the legislative sentencing guidelines. Steanhouse , 500 Mich. at 472, 902 N.W.2d 327, citing Babcock , 469 Mich. at 263, 666 N.W.2d 231. In the same opinion, our Supreme Court repeated its "directive from Lockridge that the guidelines 'remain a highly relevant consideration in a trial court's exercise of sentencing discretion' that trial courts " 'must consult' and 'take ... into account when sentencing...." ' " Steanhouse , 500 Mich. at 474-475, 902 N.W.2d 327, quoting Lockridge , 498 Mich. at 391, 870 N.W.2d 502, in turn quoting Booker , 543 U.S. at 264. Because the guidelines embody the principle of proportionality and trial courts must consult them when sentencing, it follows that they continue to serve as a "useful tool" or "guideposts" for effectively combating disparity in sentencing. Therefore, relevant factors for determining whether a departure sentence is more proportionate than a sentence within the guidelines range continue to include (1) whether the guidelines accurately reflect the seriousness of the crime, see People v. Houston , 448 Mich. 312, 321-322, 532 N.W.2d 508 (1995), and Milbourn , 435 Mich. at 657, 461 N.W.2d 1 ; (2) factors not considered by the guidelines, Houston , 448 Mich. at 322-324, 532 N.W.2d 508, see also Milbourn , 435 Mich. at 660, 461 N.W.2d 1 ; and (3) factors considered by the guidelines but given inadequate weight, see Houston , 448 Mich. at 324-325, 532 N.W.2d 508, and Milbourn , 435 Mich. at 660 n. 27, 461 N.W.2d 1. When making this determination and sentencing a defendant, a trial court must " 'justify the sentence imposed in order to facilitate appellate review,' " Steanhouse 500 Mich. at 470 902 N.W.2d 327, quoting Lockridge , 498 Mich. at 392, 870 N.W.2d 502, which "includes an explanation of why the sentence imposed is more proportionate to the offense and the offender than a different sentence would have been," Smith , 482 Mich. at 311, 754 N.W.2d 284.
In this case, the trial court did not adequately explain why a minimum sentence of 35 years was more proportionate than a different sentence within the guidelines would have been. Defendant's prior record variable score was zero. She had a number of very old misdemeanors, but they were all nonviolent. Without a criminal history, the trial court had no basis to conclude that defendant was a "recidivist ... criminal" who deserved a "greater ... punishment" than that contemplated by the guidelines. Id . at 305 (quotation marks and citation omitted). The trial court offered no other explanation as to why defendant's background may warrant a departure sentence. Accordingly, on the record before us, nothing in defendant's background supports the conclusion that a departure sentence was more proportionate than a sentence within the guidelines. See Steanhouse , 500 Mich. at 474, 902 N.W.2d 327 (stating that a trial court must take into account the nature of the offense and the background of the offender when sentencing a defendant).
We now turn to the nature of defendant's offense. See id . Of the various factors discussed by the trial court, none provided reasonable grounds for a departure. In fact, most, if not all, of the factors discussed by the trial court to support its departure sentence were contemplated by at least one offense variable (OV). The trial court emphasized that defendant had stabbed the victim twice in the chest. However, defendant's aggravated use of a lethal weapon is contemplated in the scoring of OV 1 (aggravated use of weapon), MCL 777.31, and OV 2 (lethal potential of weapon possessed or used), MCL 777.32. The trial court offered no rationale as to why that scoring was insufficient to reflect the nature of the stabbing. The trial court also pointed to the impact of the victim's death on his family, but OV 5 (psychological injury to member of victim's family), MCL 777.35, was scored to reflect that impact. Again, the trial court failed to offer any explanation as to why that scoring was insufficient. Further, the trial court's reliance on the fact that defendant apparently failed to disclose the location of the murder weapon would ordinarily trigger the application of OV 19 (interfering with the administration of justice), MCL 777.49, not an upward departure. The trial court also referred to the "cold-blooded" nature of the crime; yet we find it interesting that the trial court and parties apparently agreed that OV 7 (aggravated physical abuse), MCL 777.37, under which points may be assessed for excessive brutality, should not be scored given the facts and circumstances of this case.
The trial court's reference to the "cold-blooded" nature of the crime may have been based on its belief that the killing was premeditated, which it also emphasized was part of the basis for its sentence. Generally, OV 6 (offender's intent to kill or injure another individual), MCL 777.36, can be scored to reflect an offender's intent and does not warrant an upward departure. However, under MCL 777.36(2)(a), a sentencing court must score OV 6 "consistent[ly] with a jury verdict unless the judge has information that was not presented to the jury." As a result, a sentencing court may be constrained under the guidelines from scoring OV 6 as highly as it otherwise would have.
In this case, defendant was charged with first-degree murder, MCL 750.316, but the jury convicted her of second-degree murder, MCL 750.317. Although a jury may find premeditation when convicting an offender of first-degree murder, it is not required to find premeditation for second-degree murder. See People v. Hoffmeister , 394 Mich. 155, 158, 229 N.W.2d 305 (1975). Accordingly, because defendant was convicted of second-degree murder in this case, the trial court was constrained by MCL 777.36(2)(a) from scoring OV 6 to reflect a premeditated intent absent "information that was not presented to the jury." There is no indication on the record that the trial court had any information that was not presented to the jury, yet it nonetheless concluded that defendant acted with premeditation. The Legislature expressly gave trial courts an opportunity to find a premeditated intent for crimes to which such an intent does not necessarily attach. Absent the legislatively prescribed condition necessary to trigger that ability, we are highly skeptical of a trial court's decision to sentence a defendant convicted of second-degree murder as though the murder were premeditated. See Steanhouse , 500 Mich. at 472, 902 N.W.2d 327 (noting that the principle of proportionality is intended " 'to fulfill the overall legislative scheme of criminal punishment' "), quoting Milbourn , 435 Mich. at 651, 461 N.W.2d 1. Moreover, even if the trial court had scored this variable at 50 points, reflecting a premeditated intent, rather than as it did at 25 points, reflecting an unpremeditated intent, MCL 777.36, that change would have increased defendant's overall OV score from 70 points to 95 points, leaving her recommended minimum sentence range unchanged, MCL 777.61. Therefore, even if the trial court believed that this variable was given inadequate weight and should have been scored to reflect a premeditated intent, that determination would not have supported a conclusion that a departure sentence was more proportionate.
Other factors relied on by the trial court were not unique to defendant or otherwise relevant to a proportionality determination. The trial court highlighted the victim's standing in the community and defendant's attempts to minimize her role in the stabbing. Neither factor is, in our view, unique to defendant's crime, nor supported by the record. The trial court also referred to defendant's marriage with a man who was in prison during her relationship with the victim. Although an offender's relationship to the victim may be a sentencing factor that is not included in the guidelines, see Milbourn , 435 Mich. at 660-661, 461 N.W.2d 1, defendant's relationship with the victim was that of a long-term girlfriend. There is nothing on the record to indicate that defendant's marriage to a different man affected her relationship with the victim, and we cannot supplement the trial court's reasoning when it failed to give an explanation. See Smith , 482 Mich. at 304, 754 N.W.2d 284 ("Similarly, if it is unclear why the trial court made a particular departure, an appellate court cannot substitute its own judgment about why the departure was justified."). Accordingly, while we do not seek to minimize the victim's death, we cannot conclude on the record before us that the trial court's 15-year upward departure sentence was more reasonable and proportionate than a sentence within the recommended guidelines range would have been. See id at 305-306, 754 N.W.2d 284 (stating that a trial court should explain the extent of a departure); Steanhouse , 500 Mich. at 474, 902 N.W.2d 327 (noting that appellate courts may consider the extent to which a sentence deviates from the guidelines).
In urging the opposite conclusion, the dissent articulates the reasons given by the trial court for its departure sentence and then states,
Under the applicable abuse-of-discretion standard, given the level of deference that we afford to trial judges because of their greater familiarity with the facts and experience in sentencing, I cannot find on the record before us that the trial court's sentence was not a principled outcome.
However, reliance solely on a trial court's familiarity with the facts of a case and its experience in sentencing cannot "effectively combat unjustified disparity" in sentencing because it construes sentencing review "so narrowly as to avoid dealing with disparity altogether," especially in this case. Milbourn , 435 Mich. at 647, 461 N.W.2d 1. The Milbourn Court expressly recognized that a proportionality determination "becomes considerably more difficult" when, like in the case before us, "the Legislature has set no minimum or has prescribed a maximum of a lengthy term of years or life." Id . at 654, 461 N.W.2d 1. To deal with this difficulty, the Milbourn Court directed courts to consider the sentencing guidelines because they offered "the best 'barometer' of where on the continuum from the least to the most threatening circumstances a given case falls." Id . at 656, 461 N.W.2d 1. Following Lockridge and Steanhouse , trial courts are still required to consult the now advisory guidelines and take them into account when sentencing. Steanhouse , 500 Mich. at 474-475, 902 N.W.2d 327. Yet despite the fact that this case embodies the difficult proportionality determination described in Milbourn , the dissent indicates that it would affirm without reference to the sentencing guidelines.
In large part, the dissent's reluctance to refer to the sentencing guidelines appears based on the Steanhouse Court's directive that proportionality in Michigan be measured on the basis of the seriousness of the offense rather than by the degree to which the sentence deviates from the guidelines. We of course agree that Steanhouse directs that proportionality in Michigan be based upon the seriousness of the offense and not a deviation from the guidelines, but we disagree that Steanhouse encourages appellate courts to determine proportionality in a void without consideration of the sentencing guidelines. Steanhouse generally reaffirmed our Supreme Court's prior jurisprudence regarding the principle of proportionality, implicitly condoning consideration of the sentencing guidelines in a proportionality determination, and it only disavowed its earlier opinions to the extent that they indicated in dicta that there was a presumption of disproportionality when a sentence departed from the guidelines. More explicitly, the Steanhouse Court quoted Gall for the proposition that " 'appellate courts may ... take the degree of variance into account and consider the extent of a deviation from the Guidelines.' " Id . at 474, 902 N.W.2d 327, quoting Gall , 552 U.S. at 47, 128 S.Ct. 586. Accordingly, we read Steanhouse as directing appellate courts to use the sentencing guidelines as an aid when doing so assists in determining whether a sentence is proportionate. Because the range of sentences in this case was so large-up to life imprisonment-we believe that consideration of the guidelines was useful in determining the proportionality of the sentence. Accordingly, we affirm defendant's conviction, vacate defendant's sentence, and remand this matter for resentencing consistent with this opinion. We do not retain jurisdiction.
Hoekstra, J., concurred with O'Brien, P.J. bears
Defendant additionally calls attention to a third portion of testimony that includes Detective Schuette's assertion that he, in essence, fed her the idea of self-defense when trying to determine whether or not she was a suspect. He testified that while interviewing defendant, he "noticed that there was some red marks on her hands" that "caused [him] to believe that maybe she was involved ...." Her potential involvement directly contradicted the original statement that she had made to Detective Schuette, as well as to several other officers, that the victim sustained the ultimately lethal wounds in a fight before returning home. Detective Schuette testified:
As-as that's developing more I began to talk to her a little bit more about Greg. And one of my strategies in a circumstance like this is to initially blame the victim. That is typically the easiest way and the most accepted way for a suspect to begin to speak with you. And the way that I do that is I start asking about whether or not the victim was a nice person, a bad person, a great guy, a bad guy, did he drink, did he do drugs? Things of that nature. And then begin to look for clues as to whether or not that person-excuse me, the interviewee is going to tell me that that-that the victim was, "Hey, he was a bad guy" or-or whatever the case may be "He was a drunk" or those kinds of things.
And then I-I kind of lock onto them and then I begin to develop a strategy as to how to approach the victim and typically that's used through a self-defense claim. "Well, because he was a bad guy, you know, nobody would blame you", "you know I would understand", "this is self-defense". You know, those kinds of things to kind of get over that hump of who did this. Because we were still there, as far as I was concerned, of, you know, who did this? We didn't know for sure and I was trying to get over that hump to make the determination of-of her being a potential suspect.
We disagree with defendant's argument that this testimony constituted expert testimony, much less inadmissible expert testimony. Rather, Detective Schuette's recollection of a sequence of events is fact testimony, and witnesses are permitted to offer both fact and expert testimony. See, e.g., People v. Bynum , 496 Mich. 610, 635 n. 43, 852 N.W.2d 570 (2014).
Relatedly, without more information about the basis for Detective Schuette's assertions regarding the behaviors of individuals who kill in self-defense, we also have concerns with respect to the reliability of Detective Schuette's testimony on this topic. Detective Schuette did not disclose how many interviews of individuals who kill in self-defense he had conducted, nor did he explain how he determined that the people interviewed had in actuality acted in self-defense. Cf. People v. Kowalski , 492 Mich. 106, 131-133, 821 N.W.2d 14 (2012) (opinion by Kelly , J.). Furthermore, he did not claim familiarity with literature, peer-reviewed or otherwise, to support the assertion that people who kill in self-defense react in a certain way during police interviews or that the lack of such behavioral characteristics is inconsistent with a claim of self-defense. Cf. id. ; Dobek , 274 Mich.App. at 96, 732 N.W.2d 546. Given Detective Schuette's failure to provide any support for his personal behavioral-science theories, it is notable that at least one court has disallowed testimony from police officers with respect to how someone who kills in self-defense should act after the fact, reasoning that "predictions of specific human behavior in response to traumatic experiences and opinions based thereon have not yet reached the level of scientific reliability to be worthy of admission as evidence in a court of law." Ordway v. Commonwealth , 391 S.W.3d 762, 775-777 & n. 6 (Ky. 2013). That court reasoned that "how guilty people typically behave" or "how innocent people do not act" were not legitimate subjects for expert opinion. Id . at 777 (quotation marks omitted). We share these concerns, both in terms of the reliability of such expert demeanor evidence generally and, more specifically, in terms of whether Detective Schuette was qualified to offer those opinions. Overall, by allowing him to offer testimony on the behaviors of those who kill in self-defense and to then testify that defendant did not behave in this manner, the trial court allowed Detective Schuette to venture into an area beyond his stated expertise and to offer unreliable "expert" opinions based on nothing more than an unspecified number of interviews with people who had purportedly killed in self-defense.
More specifically, the pathologist explained that the victim had been stabbed twice in the heart and that either wound would have been fatal. When asked about the force involved in the stabbing, the pathologist testified as follows:
Q . Thanks you. In order for a-an object to actually puncture through the chest and get to the heart what does it have to go through to get to the heart?
A . Has to go first, the skin, then the muscle, then the-in this case there was a-some cartilage, and then the pericardium. The pericardium is a sac that involves the heart. And then the muscle of the heart. It has to go through all these parts in order to penetrate inside the heart.
Q . In your experience how much force would-would that take to make it through all that?
A . This questions [sic] come all the time. How-how-how much force is needed? Depends on many factors. First, is the knife really sharp? It's like cutting any kind of meat. When you're cutting a steak, or you kill a deer and you're cutting. Sometimes depends if you really [sic] working the knife, you-(undecipherable)-hard time. It's the same in-in the human skin. The skin is a little tough to get in but once the skin is taken away-inside-everything inside is so soft that doesn't require much force to do it-only the skin.
Q . Okay. What about getting ... out of that same area? Would that require more force, less force, or does it depend?
A . That depends also the sharpness of the knife. Because when you are pulling out if it's really well-a good knife is going to come out easy. When you are-tried to take out. If you are going to pull again, then it's going to be easier because there is already some injury to the skin that allow it to go in so easy.
Similarly, on cross-examination, the pathologist stated that with a "quality blade," "you don't need anything" in terms of force while, in comparison, "if you use something that is really rough, of course, it's going to require a lot of force." Further, the pathologist specified that he could not determine what type of knife caused the wounds, he could not tell how sharp the knife was, and he could not offer an opinion on the amount of force necessary without having the knife.
JS is undisputedly the victim's biological child; however, it appears that she was not, at the time of the victim's death, his legal child. This apparently led to a contentious custody dispute that the Department of Health and Human Services eventually became involved in. This dispute was made more complicated because, despite being in a long-term relationship with the victim, defendant remains married to another man, who, under Michigan law, would presumptively be the child's legal father. See In re KH , 469 Mich. 621, 634, 677 N.W.2d 800 (2004) ("The presumption that children born or conceived during a marriage are the issue of that marriage is deeply rooted in our statutes and case law.").
Notably, despite claiming that the testimony at issue portrayed defendant "as an evil person," defendant does not argue that the testimony at issue constituted improper character evidence. See MRE 404(a) ("Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith ...."). Indeed, she does not mention the phrases "character evidence" or MRE 404 in her argument in this regard. Because a complex analysis is required when determining whether character evidence of a defendant or a victim is admissible in a case in which a defendant raises a self-defense theory in response to a charge of first-degree murder, see, e.g., People v. Harris , 458 Mich. 310, 314-321, 583 N.W.2d 680 (1998), it is not this Court's role to create such an argument for her.
In fact, defendant denied having "ever threatened Greg whatsoever with physical harm[.]" In our view, this express denial opened the door, so to speak, for rebuttal testimony regarding instances in which defendant had threatened or actually committed physical violence against the victim. Stated simply, this rebuttal testimony addressed defendant's intent and credibility, not her character.
With respect to the stabbing at issue in this case, defendant testified that the victim "lunged at" her and that she was "not sure what happened after that." According to defendant, after stabbing the victim, "he's standing there and he lifts his shirt and ... we both kind of see the cut and he turns around and he goes in and sits down on the couch." Defendant testified that she eventually called 911 and performed CPR until law enforcement arrived. When asked why she told the police officers that the victim was stabbed outside the home, defendant claimed that she "didn't want him getting in trouble for fighting and arguing and drinking, because he was trying to get his license and he couldn't have anything to do with drinking and police or anything."
It is also conceivable that evidence of the prior stabbing could have been admitted pursuant to MCL 768.27b(1). That statute provides, in relevant part, for the admission of "evidence of the defendant's commission of other acts of domestic violence ... for any purpose for which it is relevant, if it is not otherwise excluded under Michigan rule of evidence 403" when the defendant is criminally charged with of an offense involving domestic violence. MCL 768.27b(1). One might argue that the 10-year limitation on this type of evidence prohibits the admission of the prior stabbing in this case; however, a similar argument could be made that the admission of the prior stabbing would serve the "interest of justice." See MCL 768.27b(4). In any event, because we agree with the trial court's decision with respect to MRE 404, our discussion in this regard is largely irrelevant.
Other factors listed by this Court in People v. Steanhouse , 313 Mich.App. 1, 46, 880 N.W.2d 297 (2015), rev'd in part on other grounds by Steanhouse, 500 Mich. 453, 902 N.W.2d 327 (2017), include "the defendant's misconduct while in custody, Houston , 448 Mich. at 323, 532 N.W.2d 508, the defendant's expressions of remorse, id ., and the defendant's potential for rehabilitation, id ."
While second-degree murder is a serious crime, we note that the trial court never indicated that it believed the guidelines inadequately reflected this seriousness. In contrast, in Houston , 448 Mich. at 321, 532 N.W.2d 508, the Court noted the trial court's statement regarding the inadequacy of the guidelines:
"We have seen what I find to be ridiculously low guidelines in the offense of Criminal Sexual Conduct in the First Degree, just in general."
The Michigan Supreme Court stated that "[t]he observation [was] well taken" and they agreed "with the trial judge's conclusion that the recommended range [was] too low...." Id . at 321-322, 532 N.W.2d 508. The Houston Court concluded, "Unless there is some basis for deciding what range would have been appropriate, we cannot reliably conclude that the sentence was disproportionate." Id . at 322, 532 N.W.2d 508. In contrast to Houston , the trial court in this case did not express a belief that the sentencing guidelines inadequately reflected the seriousness of second-degree murder. Therefore, we cannot conclude on that basis that the recommended sentence was less proportionate than the trial court's departure sentence. See Smith , 482 Mich. at 311 n. 42, 754 N.W.2d 284 (noting that the Legislature likely "did not overlook the basic fact" that certain crimes were heinous "when establishing sentencing guidelines for" those crimes).
To the extent that the dissent does discuss the sentencing guidelines, it reasons that, if the trial court had scored OV 6 at 50 points rather than 25 points and OV 19 at 10 points rather than zero points, then defendant's OV score would have been over the maximum contemplated by the guidelines, thereby justifying the trial court's sentence. However, particularly with respect to OV 19, the fact that the trial court could have scored OV 19 but chose not to tends to support that the trial court did not consult the guidelines and take them into account when sentencing, which supports that a departure sentence was not reasonable. Steanhouse , 500 Mich. at 474-475, 902 N.W.2d 327. It also bears noting that in appellate reviews of sentences generally, an appellate court should avoid supplementing or otherwise justifying the trial court's otherwise insufficient reasoning with reasoning of its own. See Smith , 482 Mich. at 304, 754 N.W.2d 284. | [
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On order of the Court, the application for leave to appeal the October 31, 2017 judgment of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE that part of the Court of Appeals judgment holding that the exclusion of the victim's blood alcohol content was not harmless error, and we REMAND this case to that court for reconsideration of the issue. While the Court of Appeals identified potential consequences for defendant's trial strategy as a result of the exclusion of the disputed evidence, it erroneously equated such consequences with an assessment of whether it is "more probable than not that a different outcome would have resulted" had the evidence been admitted. People v. Lukity , 460 Mich. 484, 495, 596 N.W.2d 607 (1999). See MCL 769.26. While defendant's defense strategy is one pertinent consideration, on remand the Court of Appeals must consider it alongside the weight and strength of the untainted evidence and the proofs as a whole. People v. Lyles , 501 Mich. 107, 118, 905 N.W.2d 199 (2017).
We do not retain jurisdiction. | [
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Per Curiam.
This case returns to us on remand from the Michigan Supreme Court. In this action alleging discrimination under the Persons with Disabilities Civil Rights Act (PWDCRA), MCL 37.1101 et seq ., this panel, relying on Dlaikan v. Roodbeen , 206 Mich.App. 591, 522 N.W.2d 719 (1994), previously held that the trial court "does not have subject-matter jurisdiction to review plaintiff's claim based on constitutional protections afforded by the First Amendment." Winkler v. Marist Fathers of Detroit, Inc. , unpublished per curiam opinion of the Court of Appeals, issued November 12, 2015 (Docket No. 323511), p. 5, 2015 WL 7079054. Therefore, this Court reversed the trial court's order denying defendant's motion for summary disposition. In an opinion issued on June 27, 2017, the Michigan Supreme Court reversed this Court's decision. The Michigan Supreme Court explained:
While Dlaikan and some other decisions have characterized the ecclesiastical abstention doctrine as depriving civil courts of subject matter jurisdiction, it is clear from the doctrine's origins and operation that this is not so. The ecclesiastical abstention doctrine may affect how a civil court exercises its subject matter jurisdiction over a given claim; it does not divest a court of such jurisdiction altogether. To the extent Dlaikan and other decisions are inconsistent with this understanding of the doctrine, they are overruled. [ Winkler v. MaristFathers of Detroit, Inc. , 500 Mich. 327, 330, 901 N.W.2d 566 (2017). ]
The Michigan Supreme Court remanded the case to this Court to consider defendant's alternative argument that it was entitled to summary disposition because the PWDCRA does not apply to defendant's school. Id. at 344, 901 N.W.2d 566.
I. FACTS AND PROCEDURAL HISTORY
This Court's earlier opinion recites the following factual history underlying this case:
Notre Dame Marist Academy (Marist) is a private, Catholic middle school in Pontiac, Michigan. Notre Dame Preparatory School (Notre Dame) is a private, Catholic high school in Pontiac, Michigan. Together, Marist and Notre Dame constitute the defendant in this case, Marist Fathers of Detroit, Inc., [doing business as] Notre Dame Preparatory High School and Marist Academy. Plaintiff, Bettina Winkler, enrolled in Marist as both a seventh-grade and eighth-grade student. According to plaintiff's complaint, she was "assured on numerous occasions that if she enrolled at Marist for 7th and 8th grade, she would be guaranteed placement in Notre Dame Prep for High School 9th grade." However, plaintiff was not granted admission to Notre Dame. Approximately two months after being denied admission to Notre Dame, plaintiff was diagnosed with certain learning disabilities.[ ] Thereafter, this lawsuit was filed, alleging in pertinent part discrimination under the Persons With Disabilities Civil Rights Act (PWDCRA), [ MCL 37.1101 ] et seq . Plaintiff alleged that despite being "long aware that [she] had a learning disability," defendant denied her admission to Notre Dame and "consistently relied upon her learning disability ... as a justification" for doing so. [ Winkler v. Marist Fathers of Detroit, Inc. , unpub. op. at 1-2.]
Procedurally, in the trial court, plaintiff's parents, Helga Dahm Winkler and Marvin Winkler, filed a complaint on behalf of their daughter, alleging disability discrimination under the PWDCRA, violation of Michigan's Consumer Protection Act (MCPA), MCL 445.901 et seq. , and claims of tortious fraud and misrepresentation. Defendant moved for summary disposition under MCR 2.116(C)(4) and (10). Defendant claimed that summary disposition was warranted pursuant to MCR 2.116(C)(4) and focused primarily on this Court's prior ruling in Dlaikan , asserting that civil courts lacked subject-matter jurisdiction over a religious school's admissions decisions pursuant to the First Amendment of the United States Constitution. Defendant also sought summary disposition under MCR 2.116(C)(10), arguing that it was not aware of plaintiff's disability at the time she was denied admission to the high school and that it had provided accommodations to plaintiff after learning of plaintiff's disability. Plaintiff responded to the motion, asserting, in relevant part, that defendant's status as a religious school did not exempt it from being subject to the PWDCRA. Plaintiff further asserted that defendant was on notice in 2012 of plaintiff's attention-deficit/hyperactivity disorder (ADHD) diagnosis and suspected learning disability. Plaintiff also argued that Dlaikan was not applicable and was factually distinguishable from this case. In reply, defendant asserted that as a private school, it did not fall within the ambit of the PWDCRA.
The trial court issued an opinion and order denying defendant's motion for summary disposition. As relevant to the issue on remand, the trial court denied defendant's motion for summary disposition under MCR 2.116(C)(10), explaining, in pertinent part, as follows:
While the [PWDCRA] does not expressly address religious schools, it is basic that under rules of statutory construction, words and phrases are to be construed according to the ordinary rules of grammar and dictionary meanings. Here it appears that Notre Dame Prep High School is a public or private institution or school system; Defendant fails to establish that the PWDCRA does not apply to the Notre Dame Prep High School given [the applicable] definitions in the Act. [Citations omitted.]
Defendant filed an application for leave to appeal in this Court, which was granted. On appeal in this Court, as relevant to this remand, defendant argued that the PWDCRA is not applicable to religious schools. Plaintiff responded that the PWDCRA was clearly applicable to religious schools given the definition of an educational institution in MCL 37.1401, demonstrating the Legislature's decision to not exempt such schools. As noted, this Court reversed the trial court's ruling; we concluded the trial court lacked subject-matter jurisdiction because defendant's actions in denying plaintiff admission to its school were protected by the First Amendment. Accordingly, this Court did not reach the issue whether defendant is an "educational institution" as contemplated by MCL 37.1401.
Plaintiff subsequently filed an application for leave to appeal in the Michigan Supreme Court, and following the submission of briefs and oral argument, the Michigan Supreme Court issued an opinion holding, in pertinent part, as follows:
The existence of subject matter jurisdiction turns not on the particular facts of the matter before the court, but on its general legal classification. By contrast, application of the ecclesiastical abstention doctrine is not determined by reference to the category or class of case the plaintiff has stated.... What matters instead is whether the actual adjudication of a particular legal claim would require the resolution of ecclesiastical questions; if so, the court must abstain from resolving those questions itself, defer to the religious entity's resolution of such questions, and adjudicate the claim accordingly. The doctrine, in short, requires a case-specific inquiry that informs how a court must adjudicate certain claims within its subject matter jurisdiction; it does not determine whether the court has such jurisdiction in the first place. The instant panel thus erred, albeit understandably, in deeming summary disposition warranted under MCR 2.116(C)(4), and we reverse that determination. [ Winkler , 500 Mich. at 341, 901 N.W.2d 566 (citations omitted).]
The Michigan Supreme Court noted that defendant, even without disputing "this general understanding of the ecclesiastical abstention doctrine," also argued that plaintiff's claim of an alleged violation of the PWDCRA could not survive application of the doctrine. Id . at 342, 901 N.W.2d 566. Specifically, defendant argued that despite the ability of a civil court to exercise jurisdiction over plaintiff's "challenge to its admissions decision, the court cannot disrupt that decision or award the plaintiff relief as to it without impermissibly passing judgment on ecclesiastical matters." Id . Defendant's argument was premised on "an analogy between the students of its high school and the clergy and membership of a church." Id. at 14, --- Mich. at ----, 901 N.W.2d 566, 2017 WL 2800040 at *8. Arguing that church authorities maintain the final say in matters of expulsion or excommunication from the church and that civil courts cannot interfere in such decisions, defendant contended that "[a] parochial school's admission or expulsion of a student is no different ... given the 'integral part' such a school can play in furthering 'the religious mission of the Catholic Church' and in 'transmitting the Catholic faith to the next generation.' " Id. at 343, 901 N.W.2d 566 (citations omitted).
In response, the Michigan Supreme Court stated, in pertinent part:
Whether this analogy is generally sound, and whether it holds up in the instant case (or in Dlaikan , for that matter), we see no reason to reach at this time. It is for the circuit court, in the first instance, to determine whether and to what extent the adjudication of the legal and factual issues presented by the plaintiff's claim would require the resolution of ecclesiastical questions (and thus deference to any answers the church has provided to those questions). It is enough for our purposes here to clarify that, contrary to the suggestion of Dlaikan and other decisions, the circuit court does, in fact, have subject matter jurisdiction over the plaintiff's claim, and the judicial power to consider it and dispose of it in a manner consistent with the guarantees of the First Amendment. Simply put, to the extent that application of the ecclesiastical abstention doctrine might still prove fatal to the plaintiff's claim for relief under the PWDCRA, it will not be for lack of "jurisdiction of the subject matter" under MCR 2.116(C)(4). [ Id. at 343-344, 901 N.W.2d 566.]
Consequently, the Michigan Supreme Court reversed this Court's judgment regarding defendant's entitlement under MCR 2.116(C)(4) to summary disposition of the jurisdictional issue. With reference to the issue currently on remand before this Court, our Supreme Court stated:
As to the defendant's entitlement to summary disposition under MCR 2.116(C)(10), the Court of Appeals previously declined to reach those arguments on which the circuit court had not yet ruled; we see no reason to disrupt that decision. The circuit court did, however, reject the defendant's argument that the PWDCRA does not apply to its school, a ruling which the defendant challenged on appeal but which the panel saw no need to review given its jurisdictional determination. Having reversed the jurisdictional determination, we remand this matter to the Court of Appeals for consideration of that challenge. [ Id. at 344, 901 N.W.2d 566.]
II. ANALYSIS
The issue on remand-whether the PWDCRA is applicable to defendant, a religious school-is significant, yet narrow in focus. On remand, we are not instructed to evaluate whether defendant violated the PWDCRA with regard to its dealings with plaintiff. Rather, the Michigan Supreme Court has directed us to address only the first step in analyzing plaintiff's claim-whether defendant's school qualifies as an "educational institution" as that term is defined in MCL 37.1401.
The starting point in our analysis is the statutory language at issue, and our analysis is guided by the rules of statutory construction. Certain legal principles are widely recognized concerning statutory construction. Specifically:
[a] court's primary goal when interpreting a statute is to discern legislative intent first by examining the plain language of the statute. [
Driver v. Naini , 490 Mich. 239, 246-247, 802 N.W.2d 311 (2011).] Courts construe the words in a statute in light of their ordinary meaning and their context within the statute as a whole. Johnson v. Recca , 492 Mich. 169, 177, 821 N.W.2d 520 (2012). A court must give effect to every word, phrase, and clause, and avoid an interpretation that renders any part of a statute nugatory or surplusage. Id . Statutory provisions must also be read in the context of the entire act. Driver , 490 Mich. at 247 [802 N.W.2d 311]. It is presumed that the Legislature was aware of judicial interpretations of the existing law when passing legislation. People v. Likine , 492 Mich. 367, 398 n. 61, 823 N.W.2d 50 (2012). When statutory language is clear and unambiguous, courts enforce the language as written. Lafarge Midwest, Inc. v. Detroit , 290 Mich.App. 240, 246-247, 801 N.W.2d 629 (2010). [ Lee v. Smith , 310 Mich.App. 507, 509, 871 N.W.2d 873 (2015).]
Further:
"Statutory language should be construed reasonably, keeping in mind the purpose of the act." Twentieth Century Fox Home Entertainment, Inc. v. Dep't of Treasury , 270 Mich.App. 539, 544, 716 N.W.2d 598 (2006) (quotation marks and citation omitted). The purpose of judicial statutory construction is to ascertain and give effect to the intent of the Legislature. Sun Valley Foods Co. v. Ward , 460 Mich. 230, 236, 596 N.W.2d 119 (1999). In determining the Legislature's intent, we must first look to the language of the statute itself. Id. Moreover, when considering the correct interpretation, the statute must be read as a whole. Id . at 237 [596 N.W.2d 119]. A statute must be read in conjunction with other relevant statutes to ensure that the legislative intent is correctly ascertained. Walters v. Leech , 279 Mich.App. 707, 709-710, 761 N.W.2d 143 (2008). The statute must be interpreted in a manner that ensures that it works in harmony with the entire statutory scheme. Id . at 710 [761 N.W.2d 143] ; see also Wayne Co. v. Auditor General , 250 Mich. 227, 233, 229 N.W. 911 (1930). The Legislature is presumed to be familiar with the rules of statutory construction and, when promulgating new laws, to be aware of the consequences of its use or omission of statutory language.
In re Complaint of Pelland Against Ameritech Michigan , 254 Mich. App. 675, 687, 658 N.W.2d 849 (2003) ; Lumley v. Univ. of Michigan Bd. of Regents , 215 Mich.App. 125, 129-130, 544 N.W.2d 692 (1996)....[ In re MKK , 286 Mich.App. 546, 556-557, 781 N.W.2d 132 (2009).]
MCL 37.1102 sets forth the purpose underlying the enactment of the PWDCRA as follows:
(1) The opportunity to obtain employment, housing, and other real estate and full and equal utilization of public accommodations, public services, and educational facilities without discrimination because of a disability is guaranteed by this act and is a civil right.
(2) Except as otherwise provided in article 2 [ MCL 37.1201 et seq . ], a person shall accommodate a person with a disability for purposes of employment, public accommodation, public service, education, or housing unless the person demonstrates that the accommodation would impose an undue hardship.
MCL 37.1402, which is part of Article 4 of the PWDCRA, MCL 37.1401 et seq., prohibits certain actions by an "educational institution." Specifically, MCL 37.1402 states as follows:
An educational institution shall not do any of the following:
(a) Discriminate in any manner in the full utilization of or benefit from the institution, or the services provided and rendered by the institution to an individual because of a disability that is unrelated to the individual's ability to utilize and benefit from the institution or its services, or because of the use by an individual of adaptive devices or aids.
(b) Exclude, expel, limit, or otherwise discriminate against an individual seeking admission as a student or an individual enrolled as a student in the terms, conditions, and privileges of the institution, because of a disability that is unrelated to the individual's ability to utilize and benefit from the institution, or because of the use by an individual of adaptive devices or aids.
(c) Make or use a written or oral inquiry or form of application for admission that elicits or attempts to elicit information, or make or keep a record, concerning the disability of an applicant for admission for reasons contrary to the provisions or purposes of this act.
(d) Print or publish or cause to be printed or published a catalog or other notice or advertisement indicating a preference, limitation, specification, or discrimination based on the disability of an applicant that is unrelated to the applicant's ability to utilize and benefit from the institution or its services, or the use of adaptive devices or aids by an applicant for admission to the educational institution.
(e) Announce or follow a policy of denial or limitation through a quota or otherwise of educational opportunities of a group or its members because of a disability that is unrelated to the group or member's ability to utilize and benefit from the institution or its services, or because of the use by the members of a group or an individual in the group of adaptive devices or aids.
(f) Develop a curriculum or utilize textbooks and training or learning materials which promote or foster physical or mental stereotypes.
With regard to educational institutions, MCL 37.1103(d) defines "disability" to include:
(i) A determinable physical or mental characteristic of an individual, which may result from disease, injury, congenital condition of birth, or functional disorder, if the characteristic:
* * *
(C) For purposes of article 4 [ MCL 37.1401 et seq. ], is unrelated to the individual's ability to utilize and benefit from educational opportunities, programs, and facilities at an educational institution.
MCL 37.1401 defines "educational institution" in the following manner:
As used in this article, "educational institution" means a public or private institution or a separate school or department of a public or private institution , includes an academy, college, elementary or secondary school, extension course, kindergarten, nursery, school system, school district, or university, and a business, nursing, professional, secretarial, technical, or vocational school, and includes an agent of an educational institution. [Emphasis added.]
Thus, the restrictions in MCL 37.1402 apply to defendant if defendant qualifies as an "educational institution" under MCL 37.1401.
Primarily, defendant argues that because the definition of an "educational institution" in MCL 37.1401 does not specifically refer to religious, denominational, or parochial schools, it does not encompass defendant's institutions. In support of this position, defendant identifies other statutes that include more specific references, arguing that omission of the words "denominational," "parochial," and "religious" indicates that the Legislature intended to omit such organizations from the ambit of MCL 37.1401. Defendant also relies on caselaw indicating that "when enacting legislation, the Legislature is presumed to be fully aware of existing laws .... "
In re Medina , 317 Mich.App. 219, 227; 894 N.W.2d 653 (2016) (quotation marks and citation omitted). In addition, the Legislature is presumed to be "familiar with the rules of statutory construction and, when promulgating new laws, to be aware of the consequences of its use or omission of statutory language[.]" Id. (quotation marks and citations omitted; alteration in original). We disagree with defendant's interpretation of the statutory language.
In our view, defendant's position does not adhere to broader rules of statutory construction. As noted, "[t]he primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature," and "[t]he first criterion in determining intent is the specific language of the statute." Polkton Charter Twp. v. Pellegrom , 265 Mich.App. 88, 101-102, 693 N.W.2d 170 (2005). Importantly, "[t]he Legislature is presumed to have intended the meaning it plainly expressed." Id. at 102, 693 N.W.2d 170. Consequently, "[n]othing will be read into a clear statute that is not within the manifest intention of the Legislature as derived from the language of the statute itself." Id. The identified and stated purpose of the PWDCRA is to afford opportunities for access to housing, employment, and education "without discrimination because of a disability" and to mandate accommodations for individuals "with a disability" to fulfill this goal. MCL 37.1102(1) and (2). To achieve the stated purpose, MCL 37.1401 identifies an "educational institution" as including "a public or private institution or a separate school or department of a public or private institution," including "elementary or secondary school[s]." Notably, defendant does not dispute its status as a "private" school; rather, it contends that omission from the statute of language specific to religious schools obviates the statute's application to defendant. According to Black's Law Dictionary (10th ed.), p. 1546, a "private school" is defined as "[a] school maintained by private individuals, religious organizations, or corporations, funded, at least in part, by fees or tuition, and open only to pupils selected and admitted based on religious affiliations or other particular qualifications."
In addition, "private school" is defined in Merriam-Webster's Collegiate Dictionary (11th ed.) as "a school that is established, conducted, and primarily supported by a nongovernmental agencies." Given these definitions, the term "private school" must be broadly construed to encompass schools run by nongovernmental agencies, including religious organizations, such as defendant. Therefore, we conclude that defendant's schools qualify as "educational institutions" as that term is a defined by MCL 37.1401. Our determination is buttressed by related statutory provisions contained in the Civil Rights Act (CRA), MCL 37.2101 et seq. , and the private, denominational, and parochial schools act, MCL 388.551 et seq.
First addressing the CRA, MCL 37.2401 provides a definition of the term "educational institution" to that is almost identical to the definition set forth in the PWDCRA. Specifically, MCL 37.2401 states:
As used in this article, "educational institution" means a public or private institution, or a separate school or department thereof, and includes an academy, college, elementary or secondary school, extension course, kindergarten, nursery, local school system, university, or a business, nursing, professional, secretarial, technical, or vocational school;
and includes an agent of an educational institution.
Similar to the PWDCRA, the CRA also identifies prohibited practices of educational institutions to include the following:
An educational institution shall not do any of the following:
(a) Discriminate against an individual in the full utilization of or benefit from the institution, or the services, activities, or programs provided by the institution because of religion, race, color, national origin, or sex.
(b) Exclude, expel, limit, or otherwise discriminate against an individual seeking admission as a student or an individual enrolled as a student in the terms, conditions, or privileges of the institution, because of religion, race, color, national origin, or sex.
(c) For purposes of admission only, make or use a written or oral inquiry or form of application that elicits or attempts to elicit information concerning the religion, race, color, national origin, age, sex, or marital status of a person, except as permitted by rule of the commission or as required by federal law, rule, or regulation, or pursuant to an affirmative action program.
(d) Print or publish or cause to be printed or published a catalog, notice, or advertisement indicating a preference, limitation, specification, or discrimination based on the religion, race, color, national origin, or sex of an applicant for admission to the educational institution.
(e) Announce or follow a policy of denial or limitation through a quota or otherwise of educational opportunities of a group or its members because of religion, race, color, national origin, or sex. [ MCL 37.2402.]
Notably, the CRA provides an exception in MCL 37.2403, which states that "[t]he provisions of [ MCL 37.2402 ] related to religion shall not apply to a religious educational institution or an educational institution operated, supervised, or controlled by a religious institution or organization which limits admission or gives preference to an applicant of the same religion." The CRA's statutory language illustrates that the Legislature clearly intended that the term "educational institution" be broadly and inclusively interpreted unless an exception is specifically set forth as the Legislature did in MCL 37.2403. Consequently, we conclude that the rules of statutory construction do not favor defendant's position.
Similarly, a review of the private, denominational, and parochial school act, MCL 388.551 et seq. , is contrary to defendant's interpretation of the PWDCRA. The stated purpose of this act is "to provide for the supervision of private, denominational and parochial schools; to provide the manner of securing funds in payment of the expense of such supervision; to provide the qualifications of the teachers in such schools; and to provide for the endorsement of the provisions hereof." 1921 PA 302, title. Specifically, in accordance with MCL 388.552, "[a] private, denominational or parochial school within the meaning of this act shall be any school other than a public school giving instruction to children below the age of sixteen years, in the first eight grades as provided for the public schools of the state, such school not being under the exclusive supervision and control of the officials having charge of the public schools of the state." (Emphasis added.) While defendant suggests that the inclusion of the words "denominational or parochial school," in addition to the word "private," is consistent with its position regarding the meaning attributable to the omission of such wording in MCL 37.1401, it may just as easily be construed that the use of the words "private, denominational or parochial" serves to reference any nonpublic institution encompassed by MCL 388.552, and also emphasizes the inclusiveness of the use of the term "private" in MCL 37.1401.
In support of its position, defendant also cites language in a variety of other statutes that define or identify schools as religious, denominational, or parochial. Defendant specifically refers to the following statutory provisions:
MCL 333.7410(8)(b), which is part of the Public Health Code, MCL 333.1101 et seq. , defines "school property" to include "public, private, denominational, or parochial school" property.
MCL 207.213, which is part of the motor carrier fuel tax act, MCL 207.211 et seq. , refers to the taxation of commercial motor vehicles and exempt those "owned by, or leased and operated by, a nonprofit private, parochial, or denominational, school...."
MCL 207.1030(1)(c), which is also part of the motor carrier fuel tax act, refers to the exemption of motor fuel from taxation when "sold directly by the supplier to a nonprofit, private, parochial, or denominational school ... and... used in a school bus owned and ... operated by the educational institution...."
MCL 257.627a(1)(b), which is part of the Michigan Vehicle Code, MCL 257.1 et seq. , defines "school" to "mean[ ] an educational institution operated by a local school district or by a private, denominational, or parochial organization."
MCL 750.212a(2)(e), which is part of the Michigan Penal Code, MCL 750.1 et seq. , defines "vulnerable target" to include "[a] public, private, denominational, or parochial school offering developmental kindergarten, kindergarten, or any grade 1 through 12."
MCL 28.733(d), which is part of the Sex Offenders Registration Act, MCL 28.721 et seq. , defines "school" to mean "a public, private, denominational, or parochial school...."
"Contrary to [defendant's] claim, use of the in pari materia canon of construction does not aid [defendant's] cause." SBC Health Midwest, Inc. v. Kentwood , 500 Mich. 65, 73, 894 N.W.2d 535, 539 (2017). "In pari materia (or the related-statutes canon) provides that 'laws dealing with the same subject ... should if possible be interpreted harmoniously.' " Id. at 73, 894 N.W.2d at 539 n. 26 (citation omitted). Predominantly, the in pari materia doctrine is inapplicable to the statutes defendant identifies because the statutes do not "deal[ ] with the same subject" matter as the PWDCRA. Id. The canon does, however, support plaintiff's allegation regarding the applicability of the PWDCRA in this case when compared with similar provisions in the CRA, because both deal with civil rights, share a common purpose, and "form a part of one regulatory scheme...." Measel v. Auto Club Group Ins. Co. , 314 Mich.App. 320, 329 n. 7, 886 N.W.2d 193 (2016) (quotation marks and citation omitted). Therefore, on the basis of the plain and unambiguous language of MCL 37.1401, we agree with plaintiff that defendant qualifies as an "educational institution" for purposes of the PWDCRA.
We also note that the applicability of the PWDCRA to defendant is consistent with caselaw pertaining to standing and the PWDCRA, which indicates that
the PWDCRA requires that "a person shall accommodate a person with a disability for purposes of employment, public accommodation, public service, education, or housing unless the person demonstrates that the accommodation would impose an undue hardship." MCL 37.1102(2). Thus, when a person offers goods or services to the public, the PWDCRA imposes an affirmative duty to accommodate disabled persons if accommodation can be accomplished without undue hardship on the person offering the goods or services to the public. [ MOSES, Inc. v. Southeast Mich Council of Governments , 270 Mich.App. 401, 421, 716 N.W.2d 278 (2006).]
Clearly, however, a determination that defendant is subject to the PWDCRA does not resolve plaintiff's contention that defendant violated the PWDCRA by denying her admission to its high school. Thus, remand of that claim to the trial court is necessary to address and resolve that issue on the merits. We also take this opportunity to emphasize that the Michigan Supreme Court expressly stated that it will be "for the circuit court, in the first instance, to determine whether and to what extent the adjudication of the legal and factual issues presented by the plaintiff's claim would require the resolution of ecclesiastical questions (and thus deference to any answers the church has provided to those questions)." Winkler , 500 Mich. at 343, 901 N.W.2d 566. In other words, when determining whether defendant's decision to deny plaintiff admission to its high school violated the PWDCRA, the trial court must remain cognizant of the well-settled legal principle that " 'the court may not substitute its opinion in lieu of that of the authorized tribunals of the church in ecclesiastical matters....' " Id . at 338, 901 N.W.2d 566, quoting First Protestant Reformed Church v. DeWolf , 344 Mich. 624, 631, 75 N.W.2d 19 (1956).
III. CONCLUSION
We affirm the trial court's ruling that defendant meets the definition of an educational institution as set forth in MCL 37.1401, and we remand this case to the trial court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Sawyer, P.J., and K. F. Kelly and Fort Hood, JJ., concurred.
According to the complaint, plaintiff was diagnosed with moderate dyslexia and dyscalculia on March 20, 2014, along with "a specific learning disability in math, Attention Deficit/Hyperactivity Disorder (ADHD), and an adjustment disorder with anxiety."
Plaintiff voluntarily dismissed her MCPA, fraud, and misrepresentation claims.
Winkler v. Marist Fathers of Detroit , Inc ., unpublished order of the Court of Appeals, entered December 18, 2014 (Docket No. 323511).
On appeal, plaintiff's position was supported by an amicus curiae brief filed by Michigan Protection & Advocacy Service, Inc. In agreement with plaintiff's position that the PWDCRA was applicable to religious schools, the amicus curiae brief focused on the plain language of MCL 37.1401, asserting that the wording of the statute did not contain any limitations or exceptions to the word "private." It further asserted that defendant's focus on the language or content of unrelated statutes was irrelevant because the other statutes were not in pari materia with MCL 37.1401.
Where a word is not otherwise defined in a statute, this Court may turn to dictionary definitions for guidance in interpreting the statute. Kemp v. Farm Bureau Gen. Ins. Co. of Mich. , 500 Mich. 245, 254, 901 N.W.2d 534 (2017).
Defendant refers to this statutory provision as MCL 333.7410(6)(b), which reflects the provisions's iteration before it was amended by 2016 PA 128, effective August 23, 2016.
As an aside, we question whether use of the in pari materia canon is even of utility here, given its application as an "interpretive aid ... [which] can only be utilized in a situation where the section of the statute under examination is itself ambiguous." Tyler v. Livonia Pub. Sch. , 459 Mich. 382, 392, 590 N.W.2d 560 (1999). "That not being the case here, in pari materia techniques are inappropriate." Id. However, we address the application of the canon under the present facts because defendant urges this Court to use it as a tool in discerning the meaning of MCL 37.1401. | [
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On order of the Court, the application for leave to appeal the July 25, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the July 21, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. For purposes of MCR 6.502(G)(1), the Court notes that, although the defendant's writ of coram nobis has been styled a motion for relief from judgment by the courts below, it should not be regarded as a motion for relief from judgment in any future case. Nevertheless, the trial court did not err in denying the defendant's writ of coram nobis because the writ was not sought under subchapter 6.500 of the Michigan Court Rules. MCR 6.501 provides that "a judgment of conviction and sentence entered by the circuit court not subject to appellate review under subchapters 7.200 or 7.300 may be reviewed only in accordance with the provisions of this subchapter." Defendant's direct appeal has already concluded and the instant motion challenges the validity of her judgment of conviction, and therefore, the trial court did not err in denying the motion for failing to be brought under the proper rules. Accordingly, the application for leave to appeal to the Court of Appeals was properly denied, not under the rules of MCR 6.501 et seq . (because the motion was not brought under subchapter 6.500), but, rather, due to lack of merit in the grounds presented. | [
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On order of the Court, the application for leave to appeal the May 10, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Chief Justice, the motion of plaintiffs-appellees to extend the time for filing their answer to the application for leave to appeal is GRANTED. The answer will be accepted for filing if submitted on or before April 19, 2018. | [
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On order of the Chief Justice, the motion of appellee to extend the time for filing an answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before April 30, 2018. | [
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On order of the Court, the application for leave to appeal the September 28, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. | [
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On order of the Chief Justice, the motion of defendant-appellee to extend the time for filing his supplemental brief is GRANTED. The supplemental brief submitted on March 29, 2018, is accepted for filing. | [
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On order of the Court, the application for leave to appeal the November 9, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the January 3, 2018 order of the Court of Appeals is considered, and it is DENIED, because the defendant has failed to meet the burden of establishing entitlement to relief under MCR 6.508(D).
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. | [
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On order of the Court, the application for leave to appeal the October 12, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. | [
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On order of the Court, the application for leave to appeal the November 21, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. | [
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On order of the Court, the application for leave to appeal the September 22, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. | [
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Saad, P.J.
In this no-fault priority case, defendant Farm Bureau Insurance Company (Farm Bureau) appeals the trial court's order that denied its motion for summary disposition. For the reasons provided below, we reverse and remand for entry of summary disposition in favor of Farm Bureau.
I. NATURE OF THE CASE
This case arises from an accident involving a vehicle and plaintiff. Plaintiff was working outside the vehicle when the vehicle slipped into gear and injured him. Plaintiff thereafter sought the recovery of personal protection insurance (PIP) benefits under Michigan's no-fault act, MCL 500.3101 et seq . The resolution of this case depends on the proper interpretation of an insurance policy issued by Farm Bureau, which insured the vehicle for comprehensive coverage, and a portion of the no-fault act.
The trial court incorrectly ruled that because plaintiff qualified as an "insured" under the policy and because the vehicle was a "covered auto" on the policy given that it was listed on the policy for comprehensive coverage, plaintiff could recover PIP benefits from Farm Bureau. However, and most importantly, because the vehicle was not a "covered auto" for the purposes of PIP benefits, plaintiff cannot rely on the insurance policy to recover those benefits from Farm Bureau. In other words, the policy undoubtedly expanded on who typically is considered an "insured" to include plaintiff, but that specific expansion did not alter the actual coverage provided by the policy. Here, the policy clearly did not provide PIP coverage for the vehicle, which means that plaintiff cannot recover PIP benefits on the basis of the terms of the policy that Farm Bureau issued.
The trial court also ruled that MCL 500.3115(1) of the no-fault act requires Farm Bureau to provide PIP benefits to plaintiff regardless of the coverage listed in the policy. MCL 500.3115(1) can indeed require an insurer to provide PIP benefits although that insurer did not provide PIP coverage for the vehicle involved in the accident. However, in order to recover under this provision, the owner of the vehicle involved in the accident must have PIP coverage from some source. Here, the owner of the vehicle did not have PIP coverage (through Farm Bureau or otherwise). While Farm Bureau's policy provided PIP coverage to other vehicles, it cannot be said that the owner was covered. The named insured on the policy was a company, and the owner was named as a "designated insured" in Farm Bureau's policy solely for purposes of liability insurance, not PIP coverage. Therefore, Farm Bureau is not a PIP insurer of the owner of the vehicle that was involved in the accident. Consequently, MCL 500.3115(1) does not allow plaintiff to recover PIP benefits from Farm Bureau.
Accordingly, the trial court erred when it ruled that Farm Bureau was liable for paying PIP benefits to plaintiff. We reverse and instruct the court to grant summary disposition in favor of Farm Bureau.
II. BASIC FACTS
The underlying facts are undisputed. Plaintiff is the owner of Gurski Auto Repair Shop and Services. On June 24, 2013, plaintiff was injured while working on a 1993 Jeep Wrangler at his shop. When plaintiff tried to jump-start the Jeep's battery, the Jeep somehow slid into gear and ran over his leg.
The owner of the Jeep is Andy Frazier (Mr. Frazier). Mr. Frazier's business, Frazier Construction, LLC, had an insurance policy with Farm Bureau. On that policy, it listed Frazier Construction as the "named insured." However, elsewhere in the policy, it listed Mr. Frazier as a "designated insured." The endorsement related to the "designated insured" provides, in pertinent part:
Each person or organization shown in the Additional Interest Schedule as a Designated Insured is an "insured" for LIABILITY COVERAGE, but only to the extent that person or organization qualifies as an "insured" under the WHO IS AN INSURED provision contained in Section II of the Coverage Form.
We will pay the damages for which the Designated Insured becomes legally liable only if the damages arise out of the negligence of the Named Insured.
The policy listed three different vehicles: a 2011 trailer, the 1993 Jeep that was involved in the accident, and a 2004 Ford F250 truck. However, while the Ford F250 and trailer had PIP coverage, the Jeep did not. Under the "Michigan Personal Injury Protection" section of the policy, it states in pertinent part:
We will pay personal injury protection benefits to or for an "insured" who sustains "bodily injury" caused by an "accident" and resulting from the ownership, maintenance, or use of an "auto" as an "auto."
And under "WHO IS AN INSURED," the policy states:
1. You or any "family member".
2. Anyone else who sustains "bodily injury":
* * *
c. While not occupying any "auto" as a result of an "accident" involving a covered "auto".
The policy also included a section, titled "Elimination of Mandatory Coverages," which states:
In accordance with the named Insured's request, coverages mandatory under Michigan's No-Fault Auto Insurance Law have been eliminated from a vehicle(s) covered by this policy. The company shall not be liable for loss, damage, and/or liability caused while such a vehicle(s) is moved or operated.
Plaintiff attempted to recover PIP benefits through all three defendants. Defendant Motorists Mutual, who had issued a no-fault policy to plaintiff's business, denied the claim because plaintiff was not a named insured under its policy. Defendant Farm Bureau denied coverage because the policy does not provide PIP benefits for the Jeep. And defendant Michigan Automobile Insurance Placement Facility (MAIPF) refused to assign plaintiff's claim to an insurer because it determined that Farm Bureau was liable for providing coverage. Plaintiff thereafter filed suit.
MAIPF moved for summary disposition and argued that it should be dismissed from the case because coverage is available under the Farm Bureau policy. Farm Bureau argued that it cannot be liable for PIP benefits because it is not an insurer of the owner of the Jeep for purposes of no-fault benefits.
After receiving competing motions for summary disposition from the various parties, the trial court issued its order, which denied Farm Bureau's motion and partially granted plaintiff's motion. The court found that Farm Bureau was obligated to cover plaintiff's PIP benefits and explained:
The [Michigan Personal Injury Protection] Endorsement further defines an "Insured" as "anyone who sustains bodily injury ... while not occupying any 'auto' as a result of an 'accident' involving a covered auto." The declarations page lists the Jeep as a "covered auto". The Plaintiff, David Gurski, was injured while not occupying the Jeep.
As a result of the express policy language in the Endorsement, David Gurski is entitled to the PIP coverages outlined in the Endorsement.
The trial court also found that aside from the express policy language, Farm Bureau was obligated to provide the coverage under MCL 500.3115(1), which states:
Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
(a) Insurers of owners or registrants of motor vehicles involved in the accident.
(b) Insurers of operators of motor vehicles involved in the accident.
The court relied on Pioneer State Mut. Ins. Co. v. Titan Ins. Co. , 252 Mich. App. 330, 652 N.W.2d 469 (2002), and observed that the owner of the vehicle involved in the accident was Mr. Frazier and that he was a designated insured under the Farm Bureau policy. The court opined that, as a result, Farm Bureau is the insurer of the owner of the vehicle that was involved in the accident. The court expressly stated that it did not need to address Farm Bureau's argument that it did not provide PIP coverage for the Jeep.
Farm Bureau moved for reconsideration and argued that the policy clearly did not provide PIP coverage for the Jeep. Farm Bureau also argued that MCL 500.3115 could not be used to provide plaintiff with PIP benefits because Mr. Frazier, while named as a designated insured, had no personal no-fault coverage. Instead, Mr. Frazier was only covered under the policy's liability coverage for negligence. Farm Bureau further argued that any reliance on Pioneer is misplaced because, unlike in Pioneer , there is no match between the owner of the vehicle (Mr. Frazier) and the named insured on the PIP policy (Frazier Construction).
The trial court later denied Farm Bureau's motion for reconsideration.
III. STANDARDS OF REVIEW
This Court reviews a trial court's decision on a motion for summary disposition de novo. McLean v. City of Dearborn , 302 Mich. App. 68, 72, 836 N.W.2d 916 (2013). When reviewing a motion under MCR 2.116(C)(10), this Court "must consider the pleadings, affidavits, depositions, admissions, and any other documentary evidence in favor of the party opposing the motion." Baker v. Arbor Drugs, Inc , 215 Mich. App. 198, 202, 544 N.W.2d 727 (1996). The motion is properly granted if (1) there is no genuine issue related to any material fact and (2) the moving party is entitled to judgment as a matter of law. Klein v. HP Pelzer Auto. Sys, Inc , 306 Mich. App. 67, 75, 854 N.W.2d 521 (2014).
The construction and interpretation of an insurance contract is a preliminary question of law that we review de novo. Allstate Ins. Co. v. Muszynski , 253 Mich. App. 138, 140-141, 655 N.W.2d 260 (2002). Likewise, we also review a trial court's interpretation and construction of a statute de novo. Old Kent Bank v. Kal Kustom Enterprises , 255 Mich. App. 524, 529, 660 N.W.2d 384 (2003).
IV. ANALYSIS
The trial court determined that Farm Bureau was liable for paying PIP benefits to plaintiff under two theories: under the express language of the policy and statutorily under MCL 500.3115(1).
A. TERMS OF THE POLICY
The trial court erroneously concluded that plaintiff was owed PIP benefits under the express terms of the insurance policy.
When interpreting an insurance contract, "[w]e look at the language of the insurance policy and interpret its terms in accordance with the principles of contract construction." Allstate Ins , 253 Mich. App. at 141, 655 N.W.2d 260. The primary rule in contract interpretation is to ascertain the parties' intent. Shay v. Aldrich , 487 Mich. 648, 660, 790 N.W.2d 629 (2010). "If the contractual language is unambiguous, courts must interpret and enforce the contract as written because an unambiguous contract reflects the parties' intent as a matter of law." Hastings Mut. Ins. Co. v. Safety King, Inc , 286 Mich. App. 287, 292, 778 N.W.2d 275 (2009). Unambiguous contractual language is to be construed according to its plain meaning. Shay , 487 Mich. at 660, 790 N.W.2d 629. And "[c]lear and specific exclusionary provisions must be given effect, but are strictly construed against the insurer and in favor of the insured." Hastings Mut. Ins , 286 Mich. App. at 292, 778 N.W.2d 275.
The insurance policy provides, in pertinent part, as follows:
ITEM TWO Schedule of Coverages and Covered Autos
This policy provides only those coverages where a charge is shown in the Premium Summary column, below. Each of these coverages will apply only to those "autos" shown as covered "autos". "Autos" are shown as covered "autos" for a particular coverage by the entry, next to the name of the Business Auto Coverage, of one or more of the symbols from the COVERED AUTO Section of the Business Auto Coverage Form.
Under the "Premium Summary" column, the policy lists $115.00 in premiums for Personal Injury Protection.
Thus, the policy does provide PIP coverage, but as the second sentence in Item Two provides, the PIP coverage only applies to those vehicles that are shown as covered vehicles for PIP coverage. Under the Business Auto Coverage Form, it states that if a "7" symbol appears next to the coverage in Item Two, then only those vehicles described in Item Three "for which a premium charge is shown" are covered for that particular coverage. Here, a "7" symbol does appear next to the Personal Injury Protection entry in Item Two. Therefore, whether an individual vehicle has PIP coverage is determined by whether there are any premiums listed for that coverage under Item Three of the policy. Under Item Three, while there are PIP premiums listed for both the trailer ($10) and the Ford F250 ($105), there is no premium listed for the Jeep. Thus, it is abundantly clear that the policy does not provide any coverage for PIP benefits related to the Jeep.
The trial court's reliance on the Michigan Personal Injury Protection endorsement as allowing or "reviving" PIP coverage for the Jeep is misplaced. Under the Michigan Personal Injury Protection endorsement, it states, in pertinent part:
A. COVERAGE
We will pay personal injury protection benefits to or for an "insured" who sustains "bodily injury" caused by an "accident" and resulting from the ownership, maintenance, or use of an "auto" as an "auto"....
B. WHO IS AN INSURED
1. You or any "family member".
2. Anyone else who sustains "bodily injury":
* * *
c. While not occupying any "auto" as a result of an "accident" involving a covered "auto".
The trial court is correct that plaintiff suffered a bodily injury while not occupying the Jeep. However, the court erred when it cursorily stated, "The declarations page lists the Jeep as a 'covered auto.' " While the Jeep is listed in the policy, it was listed only for comprehensive coverage and did not have any PIP coverage. Therefore, it was not a "covered auto" for purposes of PIP benefits. Importantly, nothing in the language of this endorsement changed the underlying scope of the coverage. Instead, it merely allows others that normally would not have been able to claim PIP benefits (due to not being a named insured) to do so as an insured under the existing policy . Accordingly, the trial court erred when it held that plaintiff was entitled to PIP benefits under the express language of the policy.
B. MCL 500.3115(1)
The trial court also incorrectly concluded that plaintiff was entitled to PIP benefits pursuant to MCL 500.3115(1). "The judiciary's objective when interpreting a statute is to discern and give effect to the intent of the Legislature. First, the court examines the most reliable evidence of the Legislature's intent, the language of the statute itself." Book-Gilbert v. Greenleaf , 302 Mich. App. 538, 541, 840 N.W.2d 743 (2013) (citation omitted). When doing so, courts are to "giv[e] each and every word its plain and ordinary meaning unless otherwise defined." Id. (quotation marks and citation omitted). "If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted." Whitman v. City of Burton , 493 Mich. 303, 311, 831 N.W.2d 223 (2013).
MCL 500.3115(1) provides as follows:
Except as provided in subsection (1) of section 3114, a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
(a) Insurers of owners or registrants of motor vehicles involved in the accident.
(b) Insurers of operators of motor vehicles involved in the accident.
As the trial court noted, this Court has interpreted this provision before. In Pioneer , 252 Mich. App. at 336, 652 N.W.2d 469, this Court stated:
This statutory language clearly states that the insurer of the owner or registrant of the motor vehicle involved in the accident is liable for payment of personal protection insurance benefits.... Stated another way, the statute does not mandate that the vehicle involved in the accident must have been insured by the insurer of the owner before an injured person can seek benefits. [Emphasis added.]
In Pioneer , a pedestrian was injured by a vehicle that was owned by John Miller, Sr. Id. at 332, 652 N.W.2d 469. While Miller did not insure the vehicle, he had PIP coverage through two other vehicles he owned. Id. Accordingly, the Court held that the insurer for those two other vehicles was liable under MCL 500.3115(1) for providing PIP benefits to the injured pedestrian. Id. at 337, 652 N.W.2d 469. The Court noted that holding the insurer liable in this instance was consistent with the Legislature's "intent that persons rather than vehicles be insured against loss." Id. at 336-337, 652 N.W.2d 469 (emphasis added), citing Detroit Auto Inter-Ins. Exch. v. Home Ins. Co. , 428 Mich. 43, 49, 405 N.W.2d 85 (1987), Lee v. Detroit Auto. Inter-Ins. Exch. , 412 Mich. 505, 516, 315 N.W.2d 413 (1982), and Universal Underwriters Group v. Allstate Ins. Co , 246 Mich. App. 713, 725-730, 635 N.W.2d 52 (2001).
Thus, the fact that the Jeep here was not covered by a PIP policy is not relevant. What is relevant is whether the Jeep's owner, Mr. Frazier, was insured for PIP benefits elsewhere. Contrary to the trial court's determination, we hold that Farm Bureau's policy did not provide PIP coverage to Mr. Frazier. The trial court relied on the fact that Farm Bureau's policy provided PIP coverage to the Ford F250-though true, the court failed to fully appreciate the fact that the named insured on that policy was Frazier Construction, not Mr. Frazier the individual. Mr. Frazier was named elsewhere in the policy as a "designated insured," but upon closer examination, this designation only provided Mr. Frazier with liability coverage. The endorsement that names Mr. Frazier as a "designated insured" states:
Each person or organization shown in the Additional Interest Schedule as a Designated Insured is an "insured" for LIABILITY COVERAGE....
We will pay the damages for which the Designated Insured becomes legally liable only if the damages arise out of the negligence of the Named Insured.
Thus, it is clear that because Mr. Frazier is only named as a designated insured for purposes of liability coverage, the policy did not provide any PIP coverage to Mr. Frazier. Rather, the insured for PIP benefits is Frazier Construction. Cf. Dawley v. Hall , 319 Mich. App. 490, 497, 902 N.W.2d 435 (2017) (recognizing that an "LLC is a separate and distinct legal entity from that of its ... members"). Accordingly, Farm Bureau cannot be considered an insurer of the owner of the vehicle that was involved in the accident for purposes of MCL 500.3115(1).
We recognize that, technically, through the liability coverage it provided, Farm Bureau is an insurer of Mr. Frazier. However, we find that MCL 500.3115(1)(a)'s reference to "[i]nsurers of owners" cannot be read in a vacuum. Indeed, when reading the statute as a whole, as we must, Bush v. Shabahang , 484 Mich. 156, 167, 772 N.W.2d 272 (2009), it is clear that MCL 500.3115(1)(a)'s reference to "[i]nsurers" is in the context of insurers who provide PIP coverage . MCL 500.3115(1) states, in relevant part, that
a person suffering accidental bodily injury while not an occupant of a motor vehicle shall claim personal protection insurance benefits from insurers in the following order of priority:
(a) Insurers of owners or registrants of motor vehicles involved in the accident.
Thus, Subdivision (a)'s use of "[i]nsurers" is a reference to the previously mentioned "insurers," from which the injured person is seeking personal protection insurance benefits. Hence, the insurers that are contemplated in the legislative scheme are those that are providing PIP coverage. And here, Farm Bureau does not provide any PIP coverage to Mr. Frazier and therefore is not an "insurer" of Mr. Frazier for the purposes of MCL 500.3115.
Reversed and remanded for entry of summary disposition in favor of Farm Bureau and other proceedings consistent with this opinion. We do not retain jurisdiction. Farm Bureau, as the prevailing party, may tax costs pursuant to MCR 7.219.
Cavanagh and Cameron, JJ., concurred with Saad, P.J.
Because of the Jeep's poor condition, it was not able to be driven; thus, pursuant to MCL 500.3101(1), Mr. Frazier opted to remove all but comprehensive coverage for the vehicle.
The court also granted defendant Motorists Mutual's motion and dismissed it as a party. This decision is not part of this appeal.
As reinforcement to what has already been stated, Item Three contains the following language: "Coverage provided for each Covered Auto is limited to the specific coverages and liability limits for which a premium is shown."
In its order denying Farm Bureau's motion for reconsideration, the trial court stated that "even if the policy itself excludes PIP coverage through the Jeep, the PIP Endorsement brings PIP coverage back in."
We reject MAIPF's argument that the language is not exclusive and should be read to provide liability coverage without precluding other coverages. While there may be some doubt if one solely relies upon this "designated insured" provision, elsewhere, the "Additional Interest Schedule" in the policy states:
The following have an interest in the Indicated Covered Auto:
[Chase Auto Finance]
The following have an interest in the Liability Coverage provided by this policy:
[Andy Frazier]
It is important to note that under this "Additional Interest Schedule," it does not mention any additional interests except for Indicated Covered Auto and Liability Coverage. The omission of other interests, such as personal injury protection, is an indication that no other interests were contemplated. Cf. Alcona Co. v. Wolverine Environmental Prod., Inc. , 233 Mich. App. 238, 247, 590 N.W.2d 586 (1998) (stating that "the expression of one thing is the exclusion of another").
If no such limitation were read into the statute, then an injured person could claim PIP benefits from any insurer of the owner of the vehicle involved in the accident, regardless of what type of insurance the insurer provides. For example, without requiring the insurer to provide PIP coverage to the vehicle's owner, an injured person could then recover PIP benefits from the owner's life insurance company because that company nonetheless "insures" the owner of the vehicle that was involved in the accident. Such a construction is not consistent with the manifest intent of the Legislature. | [
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On order of the Court, the application for leave to appeal the December 12, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the August 15, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the November 16, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. The motion to remand is DENIED. | [
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On order of the Court, the application for leave to appeal the October 17, 2017 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the July 14, 2016 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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On order of the Court, the application for leave to appeal the October 10, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court. The motion to remand is DENIED. | [
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On order of the Court, the application for leave to appeal the September 14, 2017 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. | [
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