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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, 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 August 3, 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. The motion to remand and/or to expand the record is DENIED. | [
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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 June 19, 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 June 20, 2017 order of the Court of Appeals is considered and, it appearing to this Court that the case of People v. Ames, (Docket No. 156077), --- Mich. ----, 903 N.W.2d 399 (2017) 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 June 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). | [
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On order of the Court, the motion for reconsideration of this Court's January 3, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. The motion to remand is DENIED. | [
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On order of the Court, the motion for reconsideration of this Court's January 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 August 15, 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 June 15, 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 May 26, 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 April 12, 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 June 27, 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. The motion to appoint counsel is DENIED. | [
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On order of the Court, the motion for immediate consideration is GRANTED. The motion for reconsideration of this Court's May 29, 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 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 November 2, 2017 judgment 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 application for leave to appeal as cross-appellant is therefore moot and is DENIED. | [
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On order of the Court, the motion for immediate consideration is GRANTED. The application for leave to appeal the March 12, 2018 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the order of the Court of Appeals and we REMAND this case to the Court of Appeals for plenary consideration. The Court of Appeals is DIRECTED to decide this case on an expedited basis. The motions for stay and to waive the requirements of MCR 7.209(A)(2) and (3) are DENIED. | [
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On order of the Court, the application for leave to appeal the January 9, 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 15, 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 February 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. The motion to expand record is DENIED. | [
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On order of the Court, the application for leave to appeal the December 27, 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 December 26, 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. The motion to remand is DENIED. | [
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On order of the Court, the application for leave to appeal the January 9, 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 December 27, 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 October 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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On order of the Court, the application for leave to appeal the January 17, 2018 orders 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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Per Curiam.
Plaintiffs appeal as of right the final judgment entered by the trial court in this Open Meetings Act (OMA), MCL 15.261 et seq ., action. Specifically, plaintiffs challenge the trial court's award of attorney fees. For the reasons stated herein, we vacate the trial court's order and remand for further proceedings.
I. FACTS AND PROCEDURAL HISTORY
Plaintiffs filed this OMA suit against defendants, the Township of Cottrellville and Kelly Ann Lisco, as a result of actions taken at the township's May 8, 2013 board meeting. At the time of the meeting, Lisco was the township supervisor. Counts I to III of the complaint asserted violations of MCL 15.263(5) against the township, and Count IV alleged that Lisco intentionally violated the OMA in contravention of MCL 15.273.
The trial court granted plaintiffs' motion for summary disposition with regard to Counts I to III, determining that the township violated the OMA. It then held a bench trial for the remaining OMA claim against Lisco and concluded that Lisco intentionally violated the OMA in contravention of MCL 15.273(1).
Following the trial court's decision, plaintiffs filed a motion pursuant to MCL 15.273(1), requesting that the court order Lisco to pay their attorney fees. Specifically, they requested reimbursement at an hourly rate of $250, the rate charged by counsel per their attorney-client agreement, and asserted that MCL 15.273(1) mandates that a public official who intentionally violates the OMA pay the actual attorney fees of those persons bringing the action. In response, Lisco argued that the hourly rate of $250 requested by plaintiffs was clearly excessive in violation of MRPC 1.5(a).
At the motion hearing, the parties made arguments consistent with those made in their briefs. But ultimately, the trial court agreed with Lisco, finding plaintiffs' requested hourly rate of $250 to be clearly excessive in violation of MRPC 1.5(a). In so doing, it examined the factors this Court used in Speicher v. Columbia Twp. Bd. of Election Comm'rs , 299 Mich.App. 86, 94-95, 832 N.W.2d 392 (2012), to evaluate a request for attorney fees under MCL 15.271(4), a provision which, like MCL 15.273(1), requires the payment of actual attorney fees for noncompliance with the OMA, and awarded plaintiffs attorney fees at a reduced hourly rate of $200. The court's final judgment reflected these findings and conclusions, and ordered that Lisco pay plaintiffs' attorney fees in the amount of $12,392.
II. ANALYSIS
Plaintiffs argue that the trial court erred by awarding attorney fees at a reduced hourly rate of $200. In so doing, they assert that: (1) MCL 15.273(1) requires the payment of actual attorney fees for intentional violations of the OMA, (2) a party opposing a request for attorney fees must raise MRPC 1.5(a) as an affirmative defense, and (3) they presented unrebutted evidence that the requested hourly fee of $250 was not clearly excessive.
"We review a trial court's determination of the reasonableness of requested attorney fees for an abuse of discretion." Speicher , 299 Mich.App. at 94, 832 N.W.2d 392. " 'If the trial court's decision results in an outcome within the range of principled outcomes, it has not abused its discretion.' " Id ., quoting Taylor v. Currie , 277 Mich.App. 85, 99, 743 N.W.2d 571 (2007). A trial court's factual findings are reviewed for clear error. Speicher , 299 Mich.App. at 94, 832 N.W.2d 392. "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." Id . (citation and quotation marks omitted).
The trial court ordered Lisco to pay plaintiffs' attorney fees pursuant to MCL 15.273(1), which states, "A public official who intentionally violates this act shall be personally liable in a civil action for actual and exemplary damages of not more than $500.00 total, plus court costs and actual attorney fees to a person or group of persons bringing the action." (Emphasis added.) Despite the requirement that "actual attorney fees" be awarded, the court awarded fees at a reduced hourly rate of $200, rather than the actual hourly rate of $250 requested by plaintiffs. Plaintiffs first argue that the trial court erred by awarding attorney fees at a reduced hourly rate of $200 because the plain terms of MCL 15.273(1) require the payment of actual attorney fees. In Speicher , 299 Mich.App. at 93, 832 N.W.2d 392, this Court held that MRPC 1.5(a) and "the public policy restraint on illegal or clearly excessive attorney fees is applicable to actions for actual attorney fees under the OMA." Thus, plaintiffs are incorrect that "actual" attorney fees must always be awarded because of the plain language of MCL 15.273(1), as a court has the discretion to award attorney fees at a reduced rate if it finds the actual attorney fees to be clearly excessive.
Plaintiffs attempt to distinguish Speicher , arguing that there, the trial court reduced the requested attorney fees sua sponte , whereas here, "an opposing party (i.e. Defendant Fiscelli) seeks to use the ethics rules to challenge a contracted-for fee amount as being in violation of MRPC 1.5(a)." Therefore, they assert, Lisco should have been required to plead MRPC 1.5(a) as an affirmative defense to the requested attorney fees and bear the burden of proving that the attorney fees requested were clearly excessive.
Initially, we note that the trial court in Speicher did not sua sponte reduce the requested attorney fees, as plaintiffs maintain. Instead, as in this case, the plaintiff filed a motion for attorney fees in response to which the defendant argued that the requested fees were clearly excessive. Speicher , 299 Mich.App. at 89, 832 N.W.2d 392. Thus, we see no meaningful distinction. Further, plaintiffs'
argument that Lisco should have been required to plead MRPC 1.5(a) as an affirmative defense, and prove that the fees plaintiffs requested were clearly excessive, lacks merit. As stated above, the Speicher Court allowed a challenge to a request for attorney fees under the OMA made in response to the motion for attorney fees, rather than as an affirmative defense. Speicher , 299 Mich.App. at 89, 832 N.W.2d 392. And it also specifically reasoned that the plaintiff bore the burden of proving that the requested fees were not clearly excessive because " '[t]he burden of proving the fees rests upon the claimant of those fees.' " Id . at 101, 832 N.W.2d 392 (citation omitted; alteration in original). There is no reason that this same burden of proof should not have applied to plaintiffs' request for attorney fees.
Although we disagree with plaintiffs that MCL 15.273(1) is a statutory guarantee without exception, we do agree that the trial court erred in its application of the "clearly excessive" standard contained within MRPC 1.5(a). Specifically, when deciding whether the $250 hourly rate satisfied that standard, the court concluded that "an hourly rate of $200 per hour is reflective of the fee customarily charged in this locality for similar legal services or those with similar difficulty." But the test is not whether the fee is reflective of the locality's customary charge, but rather whether the fee was "clearly excessive," meaning that "after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee." MRPC 1.5(a). Presumably, the trial court's conclusion that a $200 hourly rate is customary in St. Clair County is a determination that a $200 rate is a reasonable one; but the next question to answer is whether a lawyer of ordinary prudence would have a firm conviction that a $250 hourly rate is in excess of that reasonable rate.
Because of the high standard contained within MRPC 1.5(a), which is essentially an articulation of the clear-and-convincing-evidence burden of proof, a fee that is slightly-or even moderately-above a reasonable fee cannot be "clearly excessive." Indeed, the Supreme Court has recognized that an unreasonable fee is not necessarily a clearly excessive one:
We note that a trial court's determination under [ MCL 213.66(3) ] that the owner's attorney fees are unreasonable does not necessarily mean that the owner's fees are "clearly excessive" in violation of MRPC 1.5(a). This is because the ethics rule provides that a fee is "clearly excessive" only when "a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee." [ Dep't of Transp. v. Randolph , 461 Mich. 757, 766 n. 12, 610 N.W.2d 893 (2000).]
Consequently, it was proper for the trial court to evaluate what is a reasonable fee (and by necessity the reasonable hourly rate) through application of the factors set forth in MRPC 1.5(a), as what is reasonable must first be determined before it can be decided that something is in excess of what is reasonable. But the trial court should not have stopped there, as it should have then determined whether the $250 hourly rate was "clearly excessive," by considering whether "a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee." Its failure to do so requires that we vacate the order so that the trial court can make that determination in the first instance.
The trial court's order is vacated, and this matter is remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
No costs to either side.
Murray, P.J., and Fort Hood and Gleicher, JJ., concurred.
The Township of Cottrellville is not a party to this appeal.
Lisco is also known as Kelly Ann Fiscelli-Lisco and Kelly Ann Fiscelli.
Plaintiff Michael Zoran filed a second amended complaint adding a quo warranto claim against Lisco, but the trial court dismissed the claim as moot.
Although not at issue on appeal, we note that following the court's decision, plaintiffs filed a motion against the Township pursuant to MCL 15.271(4), requesting payment of their attorney fees at an hourly rate of $250. The trial court ultimately awarded plaintiffs attorney fees, but at a reduced hourly rate of $200, concluding that the $250-per-hour rate agreed to between plaintiffs and their counsel was clearly excessive under Michigan Rule of Professional Conduct (MRPC) 1.5(a). This Court denied plaintiffs' application for leave to appeal the trial court's decision. Zoran v. Twp of Cottrellville , unpublished order of the Court of Appeals, entered May 16, 2014 (Docket No. 321256).
Plaintiffs assert that because MCL 15.273(1) requires the payment of actual attorney fees, the abuse of discretion standard cannot apply to the trial court's decision. But this Court applied the abuse of discretion standard in Speicher , 299 Mich.App. at 94, 832 N.W.2d 392, to analyze a trial court's award of attorney fees pursuant to MCL 15.271(4), which like MCL 15.273(1), requires the payment of actual attorney fees for noncompliance with the OMA. MCL 15.271(4). We are bound to follow prior published decisions of this Court under the rule of stare decisis. MCR 7.215(C)(2).
We do note that, in Speicher , 299 Mich.App. at 101, 832 N.W.2d 392, this Court remanded to the trial court "for an evidentiary hearing to determine the appropriate amount of attorney fees and to allow [the] plaintiff to present evidence in support of his claim that the requested attorney fees are not excessive." Plaintiffs do not argue here that the trial court should have held an evidentiary hearing before awarding attorney fees.
MRPC 1.5(a) provides:
(a) A lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee. A fee is clearly excessive when, after a review of the facts, a lawyer of ordinary prudence would be left with a definite and firm conviction that the fee is in excess of a reasonable fee. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
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Swartzle, J.
Defendant Farm Bureau General Insurance Company of Michigan (Farm Bureau) insured real property owned by plaintiff Debra Batton-Jajuga, and the property was destroyed in a fire. Batton-Jajuga had indemnification coverage as well as replacement-cost coverage. When she attempted to replace her destroyed property with different property purchased with a land contract, Farm Bureau refused to pay any replacement costs. Farm Bureau claimed that Batton-Jajuga's interest in the new property was less than a fee simple and therefore was not a "complete" replacement.
Farm Bureau breached the insurance agreement by refusing to pay. While a vendee to a land contract does not immediately acquire a full fee simple in the real property, the vendee does become the equitable owner of the property when the contract becomes effective, and this was sufficient under the law and the parties' agreement. Accordingly, we affirm the trial court's grant of summary disposition to plaintiff.
I. BACKGROUND
The relevant facts are not in dispute. Farm Bureau insured Batton-Jajuga's real property located in Monroe, Michigan up to $289,000. The parties' agreement included two types of property coverage: (1) indemnification up to the depreciated value of the property (i.e., the actual cash value); and (2) replacement-cost coverage (i.e., the full cost of repair or replacement above the actual cash value). With respect to replacement-cost coverage, the parties' agreement provided in pertinent part:
5. Loss Settlement. Covered property losses are settled as follows:
* * *
b. Buildings under Coverage A or Coverage B at replacement cost ... subject to the following:
(1) If, at the time of loss, the amount of insurance in this policy on the damaged building is 80% or more of the full replacement cost of the building immediately before the loss, we will pay the cost to repair or replace, after application of deductible and without deduction for depreciation, but not more than the least of the following amounts:
(a) the limit of liability under this policy that applies to the building;
(b) the replacement cost of that part of the building damaged for like construction and use on the same premises; or
(c) the necessary amount actually spent to repair or replace the damaged building.
* * *
(4) We will pay no more than the actual cash value of the damage, unless:
(a) actual repair or replacement is complete; ....
A fire destroyed Batton-Jajuga's property in October 2014. The parties agreed that the replacement-cost value of the loss was $179,811.23, and Farm Bureau promptly paid Batton-Jajuga $93,000 (the actual cash value of the destroyed property minus a $1,000 deductible). After adjusting for an additional $1,085.33 in nonrecoverable depreciation, Farm Bureau held back the remaining $83,725.90 while Batton-Jajuga attempted to identify a replacement property.
In April 2015, Batton-Jajuga located replacement property in Pinckney, Michigan. She purchased the property by land contract for $200,000, with $40,000 paid immediately as a down payment and the remaining balance to be paid with monthly installments over 15 years. While an initial version of the land contract made the sale contingent on Farm Bureau paying replacement costs to Batton-Jajuga, that provision was removed from the final version. The version executed in June 2015 made the sale unconditional and provided that, in the event of default, the vendor had the right to declare a forfeiture of the property and take immediate possession as well as seek payment of any unpaid balance due under the contract. The contract further stated, "The Land Contract can be paid off in full at anytime with no pre-payment penalty."
Several days after she purchased the Pinckney property, Batton-Jajuga submitted a claim with Farm Bureau for the remaining $83,725.90. Given the lack of any prepayment penalty, she suggested that Farm Bureau could pay the remaining amount directly to the vendor to reduce the balance owed on the land contract. Farm Bureau refused, asserting that Batton-Jajuga had "spent nothing to repair or replace the damaged building" and that "[a]cquisition of another property under a land contract does not constitute 'replacement' of the damaged building within the meaning" of the replacement-cost coverage provision. Farm Bureau subsequently clarified that "the documents supplied [by Batton-Jajuga] suggest an expenditure by [her] of $40,000 under the land contract," but otherwise the company maintained that its position remained unchanged.
Batton-Jajuga sued Farm Bureau for breach of contract and sought damages of $83,725.90 as well as additional consequential and incidental damages. She later moved for summary disposition under MCR 2.116(C)(10) and in its response, Farm Bureau likewise sought summary disposition under MCR 2.116(I)(2). The trial court granted Batton-Jajuga summary disposition and awarded her the replacement-cost amount as well as statutory interest and fees, but the trial court denied her any additional damages or contractual attorney fees.
Farm Bureau appealed as of right.
II. ANALYSIS
A. STANDARD OF REVIEW
On appeal, this Court reviews de novo a trial court's ruling on summary disposition. Summary disposition is appropriate under MCR 2.116(C)(10) when, except as to damages, "there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law." We construe the pleadings, admissions, and other evidence submitted by the parties in the light most favorable to Farm Bureau as the nonmovant. Latham v. Barton Malow Co. , 480 Mich. 105, 111, 746 N.W.2d 868 (2008). This Court also reviews de novo questions of law, including the meaning of statutes and contracts. Oakland Co. Bd. of Co. Rd. Comm'rs v. Mich. Prop. & Cas. Guaranty Ass'n , 456 Mich. 590, 610, 575 N.W.2d 751 (1998) ; Reed v. Reed , 265 Mich.App. 131, 141, 693 N.W.2d 825 (2005).
Our duty in interpreting a statute or a contract is to give effect to the intent of the drafter. Van Buren Co. Ed. Ass'n v. Decatur Pub. Sch. , 309 Mich.App. 630, 643, 872 N.W.2d 710 (2015) ; In re Smith Trust , 274 Mich.App. 283, 285, 731 N.W.2d 810 (2007). In both the statutory and contractual contexts, the drafter is presumed to intend the meaning clearly expressed, and this Court gives effect to the plain, ordinary, or generally accepted meaning of the drafter's words. Terrien v. Zwit , 467 Mich. 56, 76-77, 648 N.W.2d 602 (2002) ; Lorencz v. Ford Motor Co. , 439 Mich. 370, 376, 483 N.W.2d 844 (1992). Only when ambiguity exists does the Court turn to common canons of construction for aid in construing a text's meaning. People v. Borchard-Ruhland , 460 Mich. 278, 284-285, 597 N.W.2d 1 (1999) ; People v. Stone Transp., Inc , 241 Mich.App. 49, 50-51, 613 N.W.2d 737 (2000). Finally, in the absence of a statutory or contractual definition, the Court "may turn to dictionaries in common usage for guidance." In re Detmer , 321 Mich.App. 49, 62, 910 N.W.2d 318 (2017).
B. FARM BUREAU BREACHED THE INSURANCE AGREEMENT
Farm Bureau makes two arguments on appeal. First, Farm Bureau argues that the property interest conveyed by land contract is not a complete replacement for Batton-Jajuga's fee simple in the destroyed property, and, therefore, she has failed to satisfy the precondition for any replacement-cost recovery under ¶ 5.b(4)(a) of the agreement. Second, Farm Bureau claims that, regardless of the type of property interest conveyed, Batton-Jajuga only spent $46.629.58 (the down payment and several monthly installments) when she made her claim for replacement costs, and because this amount was less than the $93,000 she had already received, she is not entitled to anything more under the replacement-cost measure of ¶ 5.b(1)(c). Both arguments fail.
1. BATTON-JAJUGA ACQUIRED A "COMPLETE" REPLACEMENT
Michigan law expressly permits an insurer to offer replacement-cost coverage for property damaged by fire. Specifically, under MCL 500.2826, an insurer may "reimburse and indemnify the insured" for the amount above the property's actual cash value that is "actually expended to repair, rebuild, or replace" the damaged property, not to exceed the coverage cap. The statute further states, "A fire policy issued pursuant to this section may provide that there shall be no liability by the insurer to pay the amount specified in the policy unless the property damaged is actually repaired, rebuilt, or replaced at the same or another site."
Pursuant to state law, Farm Bureau offered replacement-cost coverage in Michigan in a form consistent with coverage offered in other states. See, e.g., Pierce v. Farm Bureau Mut. Ins. Co. , 548 N.W.2d 551, 554 (Iowa, 1996) (construing a replacement-loss coverage provision identical in all material respects to the one in this case); Parker, Replacement Cost Coverage: A Legal Primer , 34 Wake Forest L. Rev. 295, 301-302 (1999) (analyzing a form provision of replacement-cost coverage that is identical in all material respects to the one in this case). Batton-Jajuga purchased replacement-cost coverage from Farm Bureau, and payment of replacement cost was subject to the condition that "actual repair or replacement" be "complete." Neither the statute nor the agreement defined the terms "replace," "replacement," "actual," or "complete," and a review of the statute and agreement provides little contextual insight into the meaning of the terms. Given this, we turn to a dictionary in common usage, here the Oxford English Dictionary (2d). "Replace" is defined in relevant terms as: "To restore to a previous place or position" or "To take the place of, become a substitute for (a person or thing)." "Replacement" is defined as "Something which or someone who replaces another." "Actual" is defined as "Existing in act or fact; really acted or acting; carried out; real;-opposed to potential , possible , virtual , theoretical , ideal ." And "complete" is defined as "Having all of its parts or members; ... embracing all the requisite items, details, topics, etc.; entire, full" and "Of an action, state, or quality: Realized in its full extent; entire, thorough." With these dictionary definitions in hand, the replacement-cost condition can be understood to mean: In fact, as opposed to potentially or possibly, the insured has acquired a full, entire substitute for the damaged property .
Farm Bureau does not dispute that, in terms of any physical or geographical attribute, the Pinckney property is a full, entire substitute-i.e., a complete replacement-for the damaged Monroe property. Indeed, MCL 500.2827 expressly contemplates that replacement can be made at a location different from that of the insured property. Rather, Farm Bureau argues that the Pinckney property is not a complete replacement because Batton-Jajuga did not obtain a fee simple in the property upon sale, but instead only received equitable title under the land contract. Batton-Jajuga had a fee simple in the Monroe property, but with the Pinckney property, she acquired only equitable title in fee, with legal title remaining with the vendor until the balance is paid. In Farm Bureau's view, ownership under a land contract is a lesser form of ownership, something akin to a lease-with-an-option-to-buy arrangement.
If the relevant question was whether an equitable title is identical in all material respects to a fee simple, then Farm Bureau's position would be unassailable. This is not, however, the relevant question, as it would conflate the term actually used in the contractual provision-complete -with a different term not used in the provision-identical . Instead, we must consider whether Batton-Jajuga's acquisition of the Pinckney property is a full, entire-i.e., complete -substitute for her destroyed Monroe property. And on that question, Batton-Jajuga is on much firmer ground.
As noted, there is no dispute that the Pinckney property is physically and geographically a complete replacement. As to the legal interests in the Pinckney property, as our Supreme Court has explained, upon signing the land contract, "the vendee has, in a real sense, purchased the relevant property."
Graves v. American Acceptance Mtg. Corp. (On Rehearing) , 469 Mich. 608, 616, 677 N.W.2d 829 (2004). More specifically, the vendee acquires " 'seisin' and a present interest in the property that may be sold, devised, or encumbered." Id. The vendee has obtained, in other words, full equitable title to the property, while legal title remains with the vendor until satisfaction of the conditions of the land contract. As the Supreme Court expressly cautioned in Graves , "That the vendee may ultimately default on the contract does not negate the fact that the vendee has, in a real sense, purchased the relevant property." Id. Thus, under Michigan law, Batton-Jajuga is the owner of the Pinckney property, holding equitable title to it, while the vendor holds legal title in trust for her until the conditions of the land contract are fulfilled. Id. ; Pittsfield Charter Twp. v. City of Saline , 103 Mich.App. 99, 103, 302 N.W.2d 608 (1981).
The argument advanced here by Farm Bureau was earlier analyzed by the Supreme Court of Iowa in Pierce . In that case involving a sister Farm Bureau entity, the parties had entered into an insurance agreement with a replacement-cost coverage provision materially indistinguishable from the one here. The insured had purchased replacement property under a land contract, but the insurer refused to pay, claiming that the land contract had not been executed in time. Before determining whether the timing was even relevant, the Iowa court examined whether the legal interests obtained by the insured constituted a "bona fide replacement" under the insurance agreement. Or, as it framed the question, "[D]id the [insureds] fully or entirely supplant their damaged dwelling with a substitute or equivalent dwelling when they executed the real estate contract with the [vendors]?" Pierce , 548 N.W.2d at 555.
The answer was yes , according to the Iowa court. It recognized that, under the common law, "when the vendee contracts to buy and the vendor to sell, though legal title has not yet passed, in equity the vendee becomes the owner of the land, [and] the vendor of the purchase money." Id. (citation and quotation marks omitted). The court concluded that "such contracts satisfy the 'actual and complete' replacement requirement of the replacement cost provision." Id. at 556. The court further noted that the Farm Bureau entity in that case had "no quarrel" with this legal conclusion. Id.
On the question of whether replacement was complete, Farm Bureau in the present case does not distinguish Pierce other than to point out that it is not binding on Michigan courts and that its sister company essentially agreed with the Iowa court. Based on the latter point, Farm Bureau asserts that the Iowa court "engaged in no discussion or analysis of the issue." This assertion is belied by a number of reasons when performing a plain-language reading of the court's decision, not least of which is the fact that the court's analysis takes up several single-spaced pages in the reporter. Although we agree with Farm Bureau that Pierce is not binding, we do find the Iowa court's analysis to be thoughtful and in line with relevant Michigan law.
Moreover, although we do not find the pertinent language ambiguous, even if we did, we note that Farm Bureau drafted the agreement and any ambiguity must be read in favor of Batton-Jajuga as the nondrafter. Wilkie v. Auto-Owners Ins. Co. , 469 Mich. 41, 62, 664 N.W.2d 776 (2003). The replacement-cost coverage provision is boilerplate language. Nowhere in the agreement did Farm Bureau discuss fee simple, equitable title, legal title, seisin, bundles of property interests, or the like. It did, though, broadly contrast "owner" with "tenant" in another provision of the agreement, confirming that Farm Bureau could distinguish between different types of interests in property when it deemed the matter of sufficient import.
Nor is this a novel legal issue, one that could not be reasonably anticipated by the drafter. The Pierce decision was issued in 1996 and involved a sister Farm Bureau company, and the Michigan Supreme Court's decision in Graves was issued in 2004. And as for the interests impacted by the sale of real property by land contract, as well as the distinction between legal and equitable titles more generally, it is fair to say that these topics have been the bane of first-year law students for decades. Thus, had Farm Bureau intended that, for a replacement to be complete under its insurance agreement, the insured must obtain both equitable and legal titles at the time of purchase, the insurer could have explicitly said so-and that it did not must be given effect.
Accordingly, informed by Pierce and following Graves and other Michigan precedent, we conclude that Batton-Jajuga made a complete replacement of her destroyed property when she acquired the Pinckney property by land contract. The land contract was binding and unconditional upon execution, as opposed to a mere option to buy upon the satisfaction of a future condition. Batton-Jajuga gave real consideration to the vendor, both in the form of a $40,000 down payment and an unconditional promise to pay the remaining balance in future monthly installments. Under state law, she obtained equitable title to the property and, thus, she may sell, devise, or encumber the property as she sees fit. She did, "in a real sense, purchase[ ]" the Pinckney property, Graves , 469 Mich at 616, 677 N.W.2d 829, and thus she made a complete replacement under the parties' agreement.
2. BATTON-JAJUGA "ACTUALLY SPENT" THE PURCHASE MONEY BEFORE MAKING A CLAIM FOR REPLACEMENT COSTS
Farm Bureau also argues on appeal that, regardless of whether or not the Pinckney property was a complete replacement, Batton-Jajuga had "actually spent" only $46,629.58 at the time she made her claim, which was less than the amount that Farm Bureau had already paid to her as the actual cash value of the destroyed property. In support, Farm Bureau points to ¶ 5.b(1) of the agreement, which limits any replacement-cost payment to the lesser of (a) the agreement's overall coverage cap ($289,000); (b) the replacement-cost value of the loss ($179,811.23); or (c) "the necessary amount actually spent to repair or replace the damaged building." Under Farm Bureau's reading of provision (c), to be entitled to receive any payment for replacement costs, Batton-Jajuga would have had to have paid out-of-pocket something more than the actual cash value payment she had already received. In essence, according to Farm Bureau, Batton-Jajuga had no compensable replacement costs because her out-of-pocket payment for the Pinckney property was less than what she received as the actual cash value of her destroyed Monroe property. Batton-Jajuga responds that she actually spent $200,000 before she submitted her claim, as that amount was the agreed-upon purchase price for the replacement property.
Under Michigan law, the sale of real property under a land contract "operates as an equitable conversion[.]" Pittsfield Charter Twp. , 103 Mich.App. at 103, 302 N.W.2d 608 (quotation marks and citation omitted). Under the doctrine of equitable conversion, equity treats the sale as actually taking place when the land contract becomes effective. This view "is based on the maxim that 'equity regards and treats as done what, in good conscience, ought to be done.' " Id . (citation and block notation omitted). "Accordingly, in equity a contract for the sale of land is treated, for most purposes, precisely as if it had been specifically performed." Id. (quotation marks and citation omitted); see also Mich. Trust Co. v. Baker , 226 Mich. 72, 77, 196 N.W. 976 (1924) ("Whether this has been accomplished in fact or not is of no moment for, if not done, it is to be done, and the doctrine of equitable conversion governs and considers it as actually performed."); Wood v. Donohue , 136 Ohio App.3d 336, 339, 736 N.E.2d 556 (Ohio, 1999) (holding that, in the context of a land contract sale, "the seller, in equity, becomes the owner of the purchase money, and the purchaser becomes the owner of the property").
In its reply brief, Farm Bureau suggests that "it is unclear whether equitable conversion has survived the passage of the land contract mortgage act, MCL 565.356, et seq. " Other than briefly alluding to the issue, Farm Bureau has failed to develop it with any rigor and therefore has waived it. Bruley Trust v. City of Birmingham , 259 Mich.App. 619, 631 n. 28, 675 N.W.2d 910 (2003). In any event, under Article 3, § 7, of Michigan's 1963 Constitution, common-law doctrines remain in force until they are "changed, amended or repealed" by statute. This Court does not lightly infer that our Legislature intended to abrogate or modify the common law. Rather, this Court presumes that the common law remains intact, even when the Legislature enacts a statute on the same or a similar subject. See Butler v. Grand Rapids , 273 Mich. 674, 679, 263 N.W. 767 (1935). Having reviewed the act, we find no clear indication that the Legislature intended to abrogate or modify the doctrine of equitable conversion as applied to land contracts.
Therefore, when the land contract became effective, Batton-Jajuga became the equitable owner of the Pinckney property, and the vendor became the equitable owner of the purchase money, $200,000. Under the doctrine of equitable conversion, because the land contract was unconditional and effective, Batton-Jajuga had "actually spent" the $200,000 in purchase money before she made her claim with Farm Bureau. This amount exceeded the replacement-cost value of the loss ($179,811.23), and, thus, Batton-Jajuga was entitled to the lesser replacement-cost value minus the actual-cash-value payment she had already received (i.e., $179,811.23 - $94,000 (actual cash value) - $1,000 (deductible) - $1,085.33 (nonrecoverable depreciation) = $83,725.90).
III. CONCLUSION
When a vendee purchases property under a land contract, the vendee becomes, in a real sense, the owner of that property. While the vendee may not immediately acquire full title in the property, the vendee does acquire equitable title and the remaining legal title is simply held in trust by the vendor. Under the parties' replacement-cost coverage, which required that the insured obtain a complete replacement for the destroyed property, Batton-Jajuga satisfied the requirement when she became the owner of real property under a land contract. Moreover, in equity, she had actually spent the purchase money when the land contract became effective. Accordingly, there is no genuine issue of material fact that Farm Bureau is liable for the unpaid replacement costs as well as applicable statutory fees and interest.
Affirmed. As the prevailing party, plaintiff may tax costs under MCR 7.219.
Murphy, P.J., and M. J. Kelly, J., concurred with Swartzle, J.
The construction of an ambiguous contract is generally a question of fact reserved for the fact-finder. Klapp v. United Ins. Group Agency, Inc. , 468 Mich. 459, 469, 663 N.W.2d 447 (2003). Because we do not find the contractual provision ambiguous, we need not remand to the trial court. Moreover, the contract language is drawn from and mirrors the statutory language, and construction of a statute is a question of law. Mayor of Cadillac v. Blackburn , 306 Mich.App. 512, 516, 857 N.W.2d 529 (2014). | [
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On order of the Court, the application for leave to appeal the May 10, 2018 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 appellants shall file a supplemental brief within 35 days of the date of this order addressing: (1) whether this Court's opinion in In re Hatcher , 443 Mich 426, 505 N.W.2d 834 (1993), correctly held that the collateral attack rule applied to bar the respondent-parents from challenging the court's initial exercise of jurisdiction over the respondents on appeal from an order terminating parental rights in that same proceeding; (2) if not, (a) by what standard should courts review the respondents' challenge to the initial adjudication, in light of the respondents' failure to appeal the first dispositional order appealable of right, see MCR 3.993(A)(1), and (b) what must a respondent do to preserve for appeal any alleged errors in the adjudication, see e.g., In re Hudson , 483 Mich. 928, 763 N.W.2d 618 (2009) ; (3) if Hatcher was correctly decided, whether due process concerns may override the collateral bar rule, see, In re Sanders , 495 Mich. 394, 852 N.W.2d 524 (2014), and In re Wangler , 498 Mich. 911, 870 N.W.2d 923 (2015) ; (4) whether a trial court is permitted to visit a respondent's home to observe its condition, and, if so, what parameters should apply to doing so; and (5) whether a trial court may interview a child who is the subject of child protective proceedings in chambers, and, if so, what parameters should apply to doing so.
In addition to the brief, the appellants 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 supplemental briefs within 21 days of being served with the appellants' brief. The appellees shall also electronically file appendices, or in the alternative, stipulate to the use of the appendix filed by the appellants. A reply, if any, must be filed by the appellants within 14 days of being served with the appellees' briefs. The parties should not submit mere restatements of their application papers.
The Family Law Section and the Children's Law Section of the State Bar of Michigan, the Legal Services Association of Michigan, and the Michigan State Planning Body for Legal Services are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. | [
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On order of the Court, the application for leave to appeal the September 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 to add issue is GRANTED. The application for leave to appeal the July 13, 2017 judgment of the Court of Appeals is considered and, it appearing to this Court that the case of People v. Ames (Docket No. 156077) 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 and motion to remand 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 January 5, 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 February 1, 2018 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 Chief Justice, the motion of the Children's Law Section of the State Bar of Michigan to file a brief amicus curiae is GRANTED. The amicus brief submitted on July 25, 2018, is accepted for filing. | [
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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 February 20, 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. The motion for abeyance is DENIED. | [
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On order of the Court, the application for leave to appeal the March 13, 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 February 27, 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 February 21, 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 January 22, 2018 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 20, 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 7, 2017 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Lapeer Circuit Court for a determination whether the defendant is indigent, and if so, for the appointment of appellate counsel in light of Halbert v. Michigan , 545 U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005). Appointed counsel may file an application for leave to appeal the defendant's October 6, 2016 plea-based conviction to the Court of Appeals, and/or any appropriate postconviction motions in the trial court, within six months of the date of the circuit court's order appointing counsel. The defendant, through no fault of his own, was deprived of the opportunity to have appointed appellate counsel file a timely motion to withdraw the plea and application for leave to appeal due to the trial court's failure to timely respond to the defendant's January 3, 2017 request for counsel pursuant to MCR 6.425(G)(1)(a) and the trial court's corresponding delay in ordering transcripts.
We do not retain jurisdiction. | [
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On order of the Court, the application for leave to appeal the December 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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On order of the Court, the application for leave to appeal the October 25, 2017 order of the Court of Appeals is considered. We DIRECT the Kent County Prosecuting Attorney to answer the application for leave to appeal within 28 days after the date of this order. In addition to the issues raised in the defendant's application, the prosecutor shall address what reports were referenced at trial during the parties' arguments on the defendant's motion for a mistrial and who reviewed those reports.
The application for leave to appeal remains pending. | [
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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's motion for relief from judgment is prohibited by MCR 6.502(G). | [
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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 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. The motion to remand is DENIED. | [
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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 to add issues is GRANTED. The application for leave to appeal the September 21, 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 November 30, 2017 order of the Court of Appeals is considered and, it appearing to this Court that the case of People v. Dixon-Bey (Docket No. 156746), --- Mich. ----, 912 N.W.2d 179 (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 Court, the application for leave to appeal the December 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 application for leave to appeal the November 21, 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 November 8, 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 October 27, 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 October 27, 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 November 9, 2017 order of the Court of Appeals is considered and, it appearing to this Court that the case of People v. Dixon-Bey (Docket No. 156746), --- Mich. ----, 912 N.W.2d 179 (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 Court, the application for leave to appeal the October 19, 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 September 19, 2017 judgment of the Court of Appeals and the application for leave to appeal as cross-appellant are considered, and they are 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 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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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 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 Chief Justice, the motion of defendant-appellee to extend the time for filing his answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before August 3, 2018. | [
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On order of the Court, the motion for reconsideration of this Court's May 29, 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 February 22, 2018 judgment of the Court of Appeals is considered and, it appearing to this Court that the cases of People v. Davis (Docket No. 156406), 501 Mich. 1064, 910 N.W.2d 301 (2018) and People v. Price (Docket No. 156180), --- Mich. ----, 914 N.W.2d 367, 2018 WL 3493946 (2018) are pending on appeal before this Court and that the decisions in those cases may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decisions in those cases. The application for leave to appeal as cross-appellant is also 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 defendant-appellee to extend the time for filing his answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before August 31, 2018. | [
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On order of the Court, the application for leave to appeal the February 7, 2018 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 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). | [
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On order of the Court, the application for leave to appeal the September 15, 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). The motion to appoint counsel is DENIED. | [
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On order of the Court, the motion to extend time is GRANTED. The application for leave to appeal the November 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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On order of the Court, the application for leave to appeal the December 20, 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 Chief Justice, the motion of petitioner-appellant to file an application for leave to appeal in excess of the page limitation is GRANTED. The 62-page application submitted on May 7, 2019, is accepted for filing. | [
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On order of the Chief Justice, the motion of plaintiff-appellee to extend the time for filing his answer to the application for leave to appeal is GRANTED. The answer will be accepted as timely filed if submitted on or before May 28, 2019. | [
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On order of the Court, the application for leave to appeal the March 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 Chief Justice, the motion of defendants-appellees to extend the time for filing their answer to the application for leave to appeal is GRANTED. The answer submitted on March 28, 2019, is accepted as timely filed. On further order of the Chief Justice, the motion of plaintiff-appellant to extend the time for filing a reply is GRANTED. The reply submitted on May 6, 2019, is accepted as timely filed. | [
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On order of the Court, the application for leave to appeal the May 22, 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 Chief Justice, the motion of respondent judge to exceed the page limitation for her brief in support of the petition is GRANTED. The 69-page brief submitted on May 9, 2019, is accepted for filing. | [
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On order of the Court, the application for leave to appeal the September 25, 2018 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on the application. MCR 7.305(H)(1).
The appellant shall file a supplemental brief within 42 days of the date of this order addressing: (1) whether the defendant waived the question of his entitlement to an evidentiary hearing regarding the amount of restitution, compare People v. Gahan , 456 Mich. 264, 276, 571 N.W.2d 503 (1997), overruled in part by People v. McKinley , 496 Mich. 410, 413, 852 N.W.2d 770 (2014) (stating that the failure to affirmatively request an evidentiary hearing regarding restitution is a waiver of a defendant's due process claim on appeal) with People v. Carter , 462 Mich. 206, 215, 612 N.W.2d 144 (2000) (defining waiver as "the intentional relinquishment or abandonment of a known right" and distinguishing waiver from forfeiture, which has been defined as "the failure to make the timely assertion of a right."); and if not, (2) whether the Wayne Circuit Court erred in denying the defendant such a hearing. See McKinley , 496 Mich. 410, 852 N.W.2d 770. 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 September 4, 2018 order of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the Cass Circuit Court's January 9, 2018 order denying relief from judgment, and we REMAND this case to that court to re-evaluate the defendant's motion for relief from judgment, including (if the motion is not returned to the defendant) the November 29, 2018 affidavit of investigator Joseph Bruce. The circuit court erred by: (1) purporting to deny the defendant's motion as not complying with MCR 6.502(C), when the proper relief for such a defect is, under MCR 6.502(D), either returning the motion to the defendant or adjudicating the motion on the merits notwithstanding the defect; (2) treating the defendant's motion for relief from judgment as a successive motion; and (3) concluding that the claim of new evidence had been previously resolved against the defendant on appeal. The motions to remand for an evidentiary hearing, to expand the record, to stay, and for immediate consideration of the motion to stay are DENIED as moot. | [
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On order of the Chief Justice, the motion of plaintiff-appellee to extend the time for filing its supplemental brief is GRANTED. The supplemental brief will be accepted as timely filed if submitted on or before June 18, 2019. | [
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On order of the Court, the application for leave to appeal the February 27, 2018 judgment of the Court of Appeals is considered and, it appearing to this Court that the cases of People v Furline (Docket No. 158296) and People v Jenkins (Docket No. 158298) are pending on appeal before this Court and that the decisions in those cases may resolve an issue raised in the present application for leave to appeal, we ORDER that the application be held in ABEYANCE pending the decisions in those cases. | [
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On order of the Court, the application for leave to appeal the July 17, 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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Per Curiam.
Defendant appeals by right the trial court's order granting plaintiff summary disposition and declaring that defendant's ordinance conflicted with the provisions of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq . ; therefore, it was preempted. We affirm.
Defendant adopted its zoning ordinance regulations for land development and use under the Michigan Zoning Enabling Act (MZEA), MCL 125.3101 et seq .. Use of property by a medical marijuana registered caregiver was permitted only under Byron Township Zoning Ordinance (Zoning Ordinance) §§ 3.2.G and H as a "home occupation." Defendant prohibited registered caregivers from the medical use of marijuana in a commercial property. Zoning Ordinance § 3.2.H.3 required medical marijuana caregivers to submit an application and pay a fee to obtain a township permit before engaging in any medical use of marijuana. Violation of the provisions of the ordinance could result in revocation of the permit, which would require the caregiver to cease all medical marijuana activity until defendant granted a new permit.
Plaintiff, a registered qualified medical marijuana patient and a registered primary caregiver to qualifying patients, grew medical marijuana in an enclosed, locked facility at a commercial location within the township. On March 22, 2016, the township supervisor sent plaintiff a letter advising that plaintiff's medical-marijuana-related activities constituted a zoning violation. The letter ordered plaintiff to cease and desist all medical marijuana activities under threat of an enforcement action by defendant. Not long after, plaintiff sued defendant for declaratory and injunctive relief on the ground that defendant threatened her exercise of her rights and privileges under the MMMA despite her compliance with the MMMA. Plaintiff alleged that defendant's ordinance prohibited what the MMMA permitted. Consequently, it directly conflicted with the MMMA and required that the trial court hold that the MMMA preempted the ordinance.
Defendant countersued for enforcement of its ordinance and abatement of the nuisance. Defendant sought a declaratory judgment that its ordinance did not conflict with the MMMA.
The parties each moved for summary disposition. Both parties asserted that the dispositive issue was whether the MMMA preempted defendant's home-occupation ordinance. Plaintiff argued that the ordinance directly conflicted with the MMMA. Defendant asserted that preemption did not apply because its ordinance only restricted the location where MMMA-compliant activities could occur and did not prohibit them altogether. The trial court held that the ordinance directly conflicted with the MMMA, so the MMMA preempted the ordinance. Defendant now appeals.
"Whether a state statute preempts a local ordinance is a question of statutory interpretation and, therefore, a question of law that we review de novo." Ter Beek v. City of Wyoming , 297 Mich. App. 446, 452, 823 N.W.2d 864 (2012) ( Ter Beek I ), aff'd 495 Mich. 1, 846 N.W.2d 531 (2014) ( Ter Beek II ). We also review de novo the trial court's decision to grant or deny a motion for summary disposition in an action for a declaratory judgment. Lansing Sch. Ed. Ass'n MEA/NEA v. Lansing Bd. of Ed. (On Remand) , 293 Mich. App. 506, 512-513, 810 N.W.2d 95 (2011). We review for clear error any of the trial court's factual findings and review de novo the trial court's interpretation of the MMMA. Michigan v. McQueen , 293 Mich. App. 644, 653, 811 N.W.2d 513 (2011) (McQueen I ).
Defendant argues that the trial court erred by holding that the MMMA preempted its home-occupation ordinance because the ordinance merely regulated land use by restricting the location of medical use of marijuana while allowing patients and caregivers to fully exercise their rights and privileges. We disagree.
"Under Const. 1963, art. 7, § 22, a Michigan municipality's power to adopt resolutions and ordinances relating to municipal concerns is 'subject to the constitution and law.' " People v. Llewellyn , 401 Mich. 314, 321, 257 N.W.2d 902 (1977). "Michigan is strongly committed to the concept of home rule, and constitutional and statutory provisions which grant power to municipalities are to be liberally construed." Bivens v. Grand Rapids , 443 Mich. 391, 400, 505 N.W.2d 239 (1993) (citations omitted). Local governments may control and regulate matters of local concern so long as their regulations do not conflict with state law. City of Taylor v. Detroit Edison Co. , 475 Mich. 109, 117-118, 715 N.W.2d 28 (2006).
The MZEA provides, in relevant part:
A local unit of government may provide by zoning ordinance for the regulation of land development and ... regulate the use of land and structures ... to ensure that use of the land is situated in appropriate locations and ... to promote public health, safety, and welfare. [ MCL 125.3201(1).]
This Court explained in Ter Beek I , 297 Mich. App. at 453, 823 N.W.2d 864, that
[a] city ordinance that purports to prohibit what a state statute permits is void. A state statute preempts regulation by an inferior government when the local regulation directly conflicts with the statute or when the statute completely occupies the regulatory field. A direct conflict exists between a local regulation and state statute when the local regulation prohibits what the statute permits. [Quotation marks and citations omitted.]
The MMMA, an initiative law, governs medical marijuana use. "The words of an initiative law are given their ordinary and customary meaning as would have been understood by the voters." McQueen I , 293 Mich. App. at 653, 811 N.W.2d 513 (quotation marks and citation omitted). This Court presumes that the electorate intended the meaning plainly expressed in the statute. Id .
Under MCL 333.26427(a), the "medical use of marijuana is allowed under state law to the extent that it is carried out in accordance with the provisions of [the MMMA]." MCL 333.26423(f), as amended by 2012 PA 512, defined the term "medical use" as follows:
[T]he acquisition, possession, cultivation, manufacture, use, internal possession, delivery, transfer, or transportation of marihuana or paraphernalia relating to the administration of marihuana to treat or alleviate a registered qualifying patient's debilitating medical condition or symptoms associated with the debilitating medical condition.
The MMMA provides immunity from arrest, prosecution, and penalty in any manner and prohibits the denial of any right or privilege to qualifying medical marijuana patients and registered primary caregivers. See MCL 333.26424(a) and (b) ; People v. Hartwick , 498 Mich. 192, 210-221, 870 N.W.2d 37 (2015). MCL 333.26424(b)(1) and (2) grant caregivers the right to possess 2.5 ounces of usable marijuana for each qualifying patient and cultivate and keep 12 marijuana plants for each qualifying patient in an enclosed, locked facility. In relevant part, MCL 333.26423(d) defines an "enclosed, locked facility" as "a closet, room, or other comparable, stationary, and fully enclosed area equipped with secured locks or other functioning security devices that permit access only by a registered primary caregiver or registered qualifying patient."
MCL 333.26424(b)(1) and (2) and MCL 333.26423(d) are in pari materia and must be read together as one law because they are different provisions of a statute that relate to the same subject matter.
Ter Beek I , 297 Mich. App. at 462, 823 N.W.2d 864. Under MCL 333.26424(d), a rebuttable presumption exists that primary caregivers and their qualified patients are engaged in the medical use of marijuana in accordance with the MMMA if they possess registry identification cards and possess an amount of medical marijuana that does not exceed the MMMA's permissible limits. Under MCL 333.26427(a), primary caregivers and their qualified patients are permitted the medical use of marijuana to the extent their use complies with the MMMA. The MMMA prohibits engagement in the medical use of marijuana in specified locations listed in MCL 333.26427(b), such as on school grounds, in school buses, or on any form of public transportation, as well as in correctional facilities or public places.
The MMMA also provides that "[a]ll other acts ... inconsistent with this act do not apply to the medical use of marihuana as provided for by this act." MCL 333.26427(e). Therefore, if another law is inconsistent with the MMMA such that it punishes MMMA-compliant medical use of marijuana, the MMMA controls and the person is immune from punishment. People v. Koon , 494 Mich. 1, 7, 832 N.W.2d 724 (2013).
This Court has noted that if the MMMA's "statutory language is unambiguous, ... [n]o further judicial construction is required or permitted because we must conclude that the electors intended the meaning clearly expressed." People v. Bylsma , 315 Mich. App. 363, 377-378, 889 N.W.2d 729 (2016) (citation and quotation marks omitted). "Judicial construction of a statute is only permitted when statutory language is ambiguous," which occurs "only if it creates an irreconcilable conflict with another provision or it is equally susceptible to more than one meaning."
Noll v. Ritzer (On Remand) , 317 Mich. App. 506, 511, 895 N.W.2d 192 (2016). If the language is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Universal Underwriters Ins. Group v. Auto Club Ins. Ass'n , 256 Mich. App. 541, 544, 666 N.W.2d 294 (2003).
Consequently, a court "may not speculate regarding legislative intent beyond the words expressed in a statute. Hence, nothing may be read into a statute that is not within the manifest intent of the Legislature as derived from the act itself." Detroit Pub. Sch. v. Conn. , 308 Mich. App. 234, 248, 863 N.W.2d 373 (2014) (quotation marks and citation omitted). Courts may not infer legislative intent from the absence of action by the Legislature. McCahan v. Brennan , 492 Mich. 730, 749, 822 N.W.2d 747 (2012). A "legislature legislates by legislating, not by doing nothing, not by keeping silent." Id . (quotation marks and citation omitted). Rather, correct interpretation of a statute like the MMMA requires (1) reading it as a whole, (2) reading the statute's words and phrases in the context of the entire legislative scheme, (3) considering both the plain meaning of the critical words and phrases along with their placement and purpose within the statutory scheme, and (4) interpreting the statutory provisions in harmony with the entire statutory scheme. See Bush v. Shabahang , 484 Mich. 156, 167, 772 N.W.2d 272 (2009).
MCL 333.26423(d) essentially provides that caregivers may operate medical marijuana activities so long as they comply with the enclosed, locked facility requirements. MCL 333.26424(b)(1) and (2) and MCL 333.26423(d), when read together, grant registered caregivers the rights and privileges to grow medical marijuana without fear of penalties imposed by local governments. In Ter Beek II , 495 Mich. at 20, 846 N.W.2d 531, the Michigan Supreme Court ruled that an ordinance "directly conflicts with the MMMA by permitting what the MMMA expressly prohibits-the imposition of a 'penalty in any manner' on a registered qualifying patient whose medical use of marijuana falls within the scope of [ MCL 333.26424(b) ]'s immunity." Further, the Michigan Supreme Court clarified in Ter Beek II , 495 Mich. at 21, 846 N.W.2d 531, that its holding in Michigan v. McQueen , 493 Mich. 135, 828 N.W.2d 644 (2013) ( McQueen II ) should not be read to authorize a municipality to enjoin a registered qualifying patient from engaging in medical use of marijuana that complied with the MMMA simply by characterizing the conduct as a zoning violation.
The Michigan Supreme Court stated that MCL 333.26427(a)"in no uncertain terms" provides for medical use of marijuana if such use complies with the MMMA and that no other law may interfere with the unambiguous rights conferred by the MMMA. Ter Beek II , 495 Mich. at 22, 846 N.W.2d 531. Although the Michigan Supreme Court reaffirmed that the MMMA did not create a general right for individuals to grow and distribute medical marijuana, it nevertheless held that the MMMA preempted the city's ordinance because it penalized the plaintiff for engaging in MMMA-compliant medical marijuana use. Id . at 24-25, 846 N.W.2d 531.
Recently, in York Charter Twp. v. Miller , 322 Mich. App. 648, 663-664, 915 N.W.2d 373 (2018), this Court explained:
Notably, the MMMA does not grant municipalities authority to adopt ordinances that restrict registered caregivers' rights and privileges under the MMMA. By comparison, the Legislature recently enacted the Medical Marijuana Facilities Licensing Act, MCL 333.27101 et seq ., and specifically granted municipalities authority to adopt local ordinances including zoning regulations that restrict the location, number, and type of facilities within their boundaries. MCL 333.27205. Obviously, had the Legislature intended to authorize municipalities to adopt zoning ordinances restricting the activities of registered medical marijuana caregivers, it could have done so in the MMMA. Despite amending the MMMA twice, the Legislature refrained from incorporating such provision into the MMMA.
We believe that the plain language of the MMMA lacks any ambiguity that would necessitate judicial construction to decipher its meaning. When the statute is read as a whole, no irreconcilable conflict results that makes the statutory provisions susceptible to more than one meaning. We conclude that the MMMA permits medical use of marijuana, particularly the cultivation of marijuana by registered caregivers, at locations regardless of land-use zoning designations as long as the activity occurs within the statutorily specified enclosed, locked facility. No provision in the MMMA authorizes municipalities to restrict the location of MMMA-compliant medical use of marijuana by caregivers. Nor does the MMMA authorize municipalities to adopt ordinances restricting MMMA-compliant conduct to home occupations in residential locations. So long as caregivers conduct their medical marijuana activities in compliance with the MMMA-including that caregivers cultivate medical marijuana in an "enclosed, locked facility" as defined by MCL 333.26423(d) and do not violate the location prohibitions of MCL 333.26427(b) -such conduct cannot be restricted or penalized.
In this case, defendant's Zoning Ordinance §§ 3.2.G and H improperly restricted the medical use of marijuana by permitting MMMA-compliant activities only as a home occupation within a dwelling or garage in residentially zoned areas within the township. Medical marijuana home occupations were expressly prohibited in a commercial setting regardless of whether a patient's or caregiver's medical use of marijuana fully complied with the MMMA. Section 3.2.H.3 also required caregivers to obtain a permit by filing an application and paying a fee, and such permits were revocable for noncompliance with the ordinance regardless of whether a patient's or caregiver's medical use of marijuana fully complied with the MMMA. Sections 3.2.G and H plainly prohibited caregivers from conducting noncommercial medical marijuana activities at nonresidential locations. Defendant's Zoning Ordinance § 14.11 imposed serious consequences, including fines and penalties for noncompliance.
We conclude that defendant's home-occupation ordinance, §§ 3.2.G and H, plainly purported to prohibit the exercise of rights and privileges that the MMMA otherwise permits. Defendant's prohibition against noncommercial medical use of marijuana by a caregiver within a commercial building effectively denied plaintiff, as a registered caregiver, the rights and privileges that MCL 333.26424(b) permits in conjunction with MCL 333.26423(d). Accordingly, under Ter Beek I , 297 Mich. App. at 453, 823 N.W.2d 864, defendant's home-occupation ordinance directly conflicted with the MMMA in that regard.
Further, enforcement of defendant's home-occupation ordinance would result in the imposition of sanctions against plaintiff that the MMMA does not permit. See MCL 333.26424(b) ; see also Ter Beek I , 297 Mich. App. at 455-456, 823 N.W.2d 864. As the Michigan Supreme Court has explained, "[L]ocal zoning regulation enacted pursuant to the MZEA does not save it from preemption." Ter Beek II , 495 Mich. at 21-22, 846 N.W.2d 531. Therefore, defendant's zoning ordinance's prohibition of registered caregivers'
MMMA-compliant medical use of marijuana in a commercial building was void and preempted by the MMMA. Ter Beek I , 297 Mich. App. at 457, 823 N.W.2d 864.
We believe that the trial court correctly read the MMMA as a whole, analyzed its plain language, and interpreted the MMMA in a reasonable and harmonious manner. The trial court correctly ruled that defendant's home-occupation ordinance prohibited what the MMMA permitted, MMMA-compliant conduct, merely because it occurred in a commercially zoned location. The trial court also correctly decided that defendant's zoning ordinance permitted what the MMMA prohibited by targeting and restricting MMMA-compliant use by adding a layer of restrictions and regulations that interfered with lawful use by imposing a permit requirement that defendant could revoke without regard to plaintiff's MMMA-compliant conduct. Further, the trial court correctly ruled that defendant's zoning ordinance also permitted what the MMMA prohibited by allowing defendant to impose penalties regardless of plaintiff's MMMA-compliant conduct. Accordingly, the trial court did not err by ruling that a direct conflict existed between defendant's ordinance and the MMMA resulting in the MMMA's preemption of plaintiff's home-occupation ordinance.
Defendant's argument that the MMMA does not preempt its ordinance because the MMMA does not occupy the field of zoning fails; the trial court never based its ruling on field preemption of zoning, nor did the trial court need to consider the field-preemption doctrine. Rather, the trial court correctly determined that doctrine inapplicable to this case because the ordinance directly conflicted with the MMMA and was preempted for that reason alone. Moreover, as this Court explained in Miller , 322 Mich. App. at 663-664, 915 N.W.2d 373, had the Legislature intended to authorize municipalities to adopt ordinances restricting the location where registered medical marijuana caregivers may exercise their rights through zoning ordinances, it could have done so in the MMMA but has refrained from doing so. Therefore, we hold that the trial court properly analyzed the interplay between defendant's zoning ordinance and the MMMA and correctly held as a matter of law that the MMMA preempted defendant's home-occupation zoning ordinance because the ordinance directly conflicted with the MMMA by prohibiting what the MMMA permitted and because it improperly imposed regulations and penalties upon persons who engage in MMMA-compliant medical use of marijuana.
We affirm.
Hoekstra, P.J., and Murphy and Markey, JJ., concurred.
The MMMA was amended by 2016 PA 283, effective December 20, 2016; however, the version of the MMMA in effect at the time the events in this case occurred was the statute as amended by 2012 PA 512. All subsequent citations of the MMMA in this opinion refer to the MMMA as amended by 2012 PA 512. | [
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Boonstra, J.
Defendant appeals by leave granted the trial court's order denying her motion to dismiss under § 4 of the Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et seq. We affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Acting on a tip from road patrol officers on June 10, 2016, Troy Police Detective Daniel Langbeen and other members of the Oakland County Narcotics Enforcement Team arrived at a "ranch style home" located in Troy. After arriving at the home, Langbeen spoke with defendant, who told him that she lived there with "her husband, and her two children." Langbeen then asked defendant "for consent to search the basement," testifying that "it was obvious to [him] at that point that marijuana-there was marijuana growin' down there." Defendant replied that "she wasn't sure," and she told Detective Langbeen that she wanted to "contact her attorney." Approximately one hour later, defendant's attorney, Barton Morris, arrived at defendant's home; he subsequently told Langbeen that "they had consent to search the home."
The search revealed that the basement contained an "indoor marijuana grow operation." Langbeen testified that there were "126 plants located in three different rooms along with approximately 550 grams of marijuana buds on a drying rack." Additionally, "[t]here were two digital scales, Ziploc bags commonly used to package narcotics for sale, grow lights, and a watering system." Morris subsequently gave Langbeen permission to search the rest of the house; a "Glock 19 9mm handgun" was discovered in a bedroom safe that was unlocked by defendant.
In August 2016, defendant was charged with one count of delivery or manufacture of 20 marijuana plants or more but fewer than 200 marijuana plants, MCL 333.7401(2)(d)(ii ), and one count of delivery or manufacture of marijuana, MCL 333.7401(2)(d)(iii ). In October 2017, defendant was additionally charged with two corresponding counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. On November 13, 2017, defendant filed a motion "to examine evidence." Defendant sought to examine the marijuana and marijuana plants seized from her home so that Dr. Frank Telewski could conduct "scientific analyses" to determine "the weight, usability, and moisture content of said marijuana; and whether the amount possessed was in compliance with the [MMMA]." The trial court granted the motion.
On January 8, 2018, defendant filed an assertion of affirmative defense, in which she argued that she was a medical marijuana patient entitled to immunity under § 4 of the MMMA, MCL 333.26424, as well as a defense under § 8 of the MMMA, MCL 333.26428. Defendant also moved to dismiss the count of possession with intent to deliver marijuana and the associated felony-firearm count under § 4 of the MMMA. Defendant's motion made it clear that the "126 marijuana plants" seized from her home were "not being challenged" in that motion; rather, defendant's motion "focus[ed] on the '550 grams' of marijuana" that were on "drying racks" in defendant's basement. Relying on People v. Manuel , 319 Mich. App. 291, 901 N.W.2d 118 (2017), defendant argued that the 550 grams of marijuana was "unusable" because it was "drying," and therefore, the unusable marijuana "must be excluded" when considering defendant's claim of immunity under § 4 of the MMMA. The prosecution argued that this Court's interpretation of § 4 of the MMMA in People v. Carruthers , 301 Mich. App. 590, 609, 837 N.W.2d 16 (2013), was controlling and that the holding of Carruthers required the trial court to consider the total amount of marijuana possessed by defendant, not just the total amount of usable marijuana. The trial court agreed with the prosecution, finding Carruthers to be "more comprehensive" than Manuel . Additionally, the trial court observed that it was "confronted with somewhat contradictory binding cases" and thus would "proceed to follow the first case," i.e., Carruthers , rather than Manuel . Therefore, the trial court denied defendant's motion to dismiss. This appeal followed.
II. STANDARD OF REVIEW
"We review for an abuse of discretion a circuit court's ruling on a motion to dismiss but review de novo the circuit court's rulings on underlying questions regarding the interpretation of the MMMA, which the people enacted by initiative in November 2008." People v. Bylsma , 493 Mich. 17, 26, 825 N.W.2d 543 (2012) (citations omitted); People v. Hartwick , 498 Mich. 192, 215, 870 N.W.2d 37 (2015) ("[Q]uestions of law surrounding the grant or denial of § 4 immunity are reviewed de novo."). "An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes."
People v. Daniels , 311 Mich. App. 257, 265, 874 N.W.2d 732 (2015). "We review questions of statutory interpretation de novo." Carruthers , 301 Mich. App. at 596, 837 N.W.2d 16.
III. ANALYSIS
On appeal, defendant argues that the trial court erred when it denied her motion to dismiss on the basis of this Court's ruling in Carruthers . Rather, defendant argues, Manuel controls.
In People v. Kolanek , 491 Mich. 382, 394, 817 N.W.2d 528 (2012), our Supreme Court explained:
The MMMA does not create a general right for individuals to use and possess marijuana in Michigan. Possession, manufacture, and delivery of marijuana remain punishable offenses under Michigan law. Rather, the MMMA's protections are limited to individuals suffering from serious or debilitating medical conditions or symptoms, to the extent that the individuals' marijuana use "is carried out in accordance with the provisions of [the MMMA]." [Citation omitted; alteration in original.]
In Hartwick , the Court further explained:
A defendant may claim entitlement to immunity for any or all charged offenses. Once a claim of immunity is made, the trial court must conduct an evidentiary hearing to factually determine whether, for each claim of immunity, the defendant has proved each element required for immunity. These elements consist of whether, at the time of the charged offense, the defendant:
(1) was issued and possessed a valid registry identification card,
(2) complied with the requisite volume limitations of § 4(a) and § 4(b),
(3) stored any marijuana plants in an enclosed, locked facility, and (4) was engaged in the medical use of marijuana. [ Hartwick, 498 Mich. at 217-218, 870 N.W.2d 37 (citation omitted).]
At the time of the search of defendant's home, § 4(a) of the MMMA provided, in relevant part:
A qualifying patient who has been issued and possesses a registry identification card shall not be subject to arrest, prosecution, or penalty in any manner, or denied any right or privilege, including but not limited to civil penalty or disciplinary action by a business or occupational or professional licensing board or bureau, for the medical use of marihuana in accordance with this act, provided that the qualifying patient possesses an amount of marihuana that does not exceed 2.5 ounces of usable marihuana , and, if the qualifying patient has not specified that a primary caregiver will be allowed under state law to cultivate marihuana for the qualifying patient, 12 marihuana plants kept in an enclosed, locked facility. Any incidental amount of seeds, stalks, and unusable roots shall also be allowed under state law and shall not be included in this amount. [ MCL 333.26424(a), as amended by 2012 PA 512 (emphasis added).][ ]
Similarly, at the time of the search of defendant's home, MCL 333.26423(k), as amended by 2012 PA 512, provided: " 'Usable marihuana' means the dried leaves and flowers of the marihuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks, and roots of the plant." "Marihuana," however, was separately and more broadly defined as follows:
"Marihuana" means all parts of the plant Cannabis sativa L., growing or not; the seeds of that plant; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. Marihuana does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted from those stalks, fiber, oil, or cake, or any sterilized seed of the plant that is incapable of germination. Marihuana does not include industrial hemp grown or cultivated, or both, for research purposes under the industrial hemp research act. [ MCL 333.26423(e) ; MCL 333.7106(4).]
In Carruthers , this Court concluded that while the marijuana-infused brownies that the defendant possessed "were not usable marijuana under the MMMA," the defendant was not entitled to immunity under § 4 of the MMMA because both § 4(a) and § 4(b) conditioned immunity "on the qualifying patient's or primary caregiver's possessing 'an amount of marihuana that does not exceed ... 2.5 ounces of usable marihuana ....' " Carruthers , 301 Mich. App. at 608-609, 837 N.W.2d 16, quoting MCL 333.26424(a) and (b)(1). In Carruthers , we went on to state, in pertinent part:
In short, the question of whether a possessor of marijuana possesses an allowed quantity of usable marijuana is only the beginning of the relevant inquiry under § 4. A further pertinent and necessary inquiry, for purposes of a § 4 analysis, is whether that person possesses any quantity of marijuana that does not constitute usable marijuana under the term-of-art definition of the MMMA. If so, and without regard to the quantity of usable marijuana possessed, the person then does not possess "an amount of marihuana that does not exceed ... 2.5 ounces of usable marihuana ...." MCL 333.26424(a) and (b)(1) (emphasis added). Instead, he or she then possesses an amount of marijuana that is in excess of the permitted amount of usable marijuana. In other words, the language establishing limited immunity in § 4 of the MMMA expressly conditions that immunity on the person possessing no amount of marijuana that does not qualify as usable marijuana under the applicable definitions. [ Carruthers , 301 Mich. App. at 610, 837 N.W.2d 16.]
Therefore, this Court concluded that "consideration must be given not only to the amount of usable marijuana that is possessed but, additionally, to the amount of marijuana that is possessed." Id . at 609, 837 N.W.2d 16.
Following this Court's decision in Carruthers , the Legislature amended the MMMA in 2016 PA 283, effective December 20, 2016. Currently, § 4(a) of the MMMA provides a qualifying patient with immunity if the patient "possesses an amount of marihuana that does not exceed a combined total of 2.5 ounces of usable marihuana and usable marihuana equivalents ...." MCL 333.26424(a). In other words, the Legislature retained the previously existing language of § 4(a), including interacting references to the separately defined terms "marihuana" and "usable marihuana," while adding a provision for "usable marihuana equivalents" and for combining the amounts of usable marijuana and usable marijuana equivalents. As explained by the Legislature, the amendments of the MMMA were retroactive with respect to "clarifying the quantities and forms of marihuana for which a person is protected from arrest, precluding an interpretation of 'weight' as aggregate weight, and excluding an added inactive substrate component of a preparation in determining the amount of marihuana, medical marihuana, or usable marihuana that constitutes an offense." 2016 PA 283, enacting § 2.
Following these legislative amendments, this Court decided Manuel . In Manuel , the defendant was "both a qualifying patient and a primary caregiver for five patients, so he was allowed ... to possess up to 15 ounces, or approximately 425.24 grams, of usable marijuana under the MMMA." Manuel , 319 Mich. App. at 300, 901 N.W.2d 118. The marijuana he possessed was well in excess of that amount, however. The trial court held that "the marijuana ... was unusable because it was in 'various stages of drying.' " Id. at 298. It therefore ruled "that [the] defendant was entitled to § 4 immunity and dismissed the charges against him." Id.
The prosecution appealed, arguing that the record did not support the trial court's conclusion that the marijuana was "in various stages of drying" but rather that it "was dried." The prosecution therefore argued that the marijuana constituted usable marijuana and that because the amount was in excess of the allowed amount of usable marijuana, the defendant was not entitled to § 4 immunity. The defendant disagreed, arguing that the record supported the trial court's conclusion that the marijuana was "drying," not dried, that it was therefore not usable marijuana, and that the defendant was therefore entitled to § 4 immunity. In support of that argument, the defendant called upon the same Dr. Telewski whom defendant called upon in the instant case to testify that the marijuana had decreased in weight because of a loss of moisture.
Perhaps not surprisingly given the manner in which the parties had framed the issues on appeal, this Court in Manuel defined the "question" before it as "whether this marijuana was 'usable' for purposes of the MMMA." Manuel , 319 Mich. App. at 301, 901 N.W.2d 118. The Court evaluated the trial court's factual conclusion in that regard under a clear error standard and held as follows:
Given Telewski's expert testimony that the weight differential of 127 grams was most likely due to a loss of moisture, and defendant's testimony that the harvested marijuana was in various stages of drying because not all of it had been placed in the tins at the same time and had only been in the tins two to three days, we are not definitely and firmly convinced that the trial court made a mistake when it found that the marijuana was in "various stages of drying" and therefore was not usable under the MMMA. Put simply, the marijuana was "drying," not "dried," and therefore was not usable under the statutory definition. [ Id. at 303, 901 N.W.2d 118.]
Importantly, however, neither the prosecution nor the defendant in Manuel cited Carruthers . Nor, perhaps largely for that reason, did this Court in Manuel cite Carruthers . And, consequently, neither the parties nor this Court in Manuel ever reached the second prong of the Carruthers analysis:
In short, the question of whether a possessor of marijuana possesses an allowed quantity of usable marijuana is only the beginning of the relevant inquiry under § 4. A further pertinent and necessary inquiry, for purposes of a § 4 analysis, is whether that person possesses any quantity of marijuana that does not constitute usable marijuana under the term-of-art definition of the MMMA. If so, and without regard to the quantity of usable marijuana possessed, the person then does not possess "an amount of marihuana that does not exceed ... 2.5 ounces of usable marihuana ...." MCL 333.26424(a) and (b)(1) (emphasis added). Instead, he or she then possesses an amount of marijuana that is in excess of the permitted amount of usable marijuana. In other words, the language establishing limited immunity in § 4 of the MMMA expressly conditions that immunity on the person possessing no amount of marijuana that does not qualify as usable marijuana under the applicable definitions. [ Carruthers , 301 Mich. App. at 610, 837 N.W.2d 16.]
We decline defendant's invitation to ignore the second prong of the Carruthers analysis because we are bound to apply it. Although the MMMA was amended after Carruthers to add certain protections relative to the medical use of usable marijuana equivalents, the statutory language interpreted in Carruthers remains today as it was then in all pertinent respects. Carruthers is therefore binding with respect to that statutory interpretation. We therefore reiterate the essential holding of Carruthers insofar as it relates to the case before us:
[T]he language establishing limited immunity in § 4 of the MMMA expressly conditions that immunity on the person possessing no amount of marijuana that does not qualify as usable marijuana under the applicable definitions. [ Carruthers , 301 Mich. App. at 610, 837 N.W.2d 16.]
In this case, defendant possessed a quantity of marijuana that, according to defendant's own argument, did not constitute usable marijuana. Consequently, under the plain language of the MMMA and Carruthers , defendant is not entitled to § 4 immunity. The trial court was correct to follow Carruthers and to deny defendant's motion to dismiss under § 4 of the MMMA.
Affirmed.
Borrello, P.J., and M. J. Kelly, J., concurred with Boonstra, J.
People v. Mansour , unpublished order of the Court of Appeals, entered April 5, 2018 (Docket No. 342316).
" '[B]y convention this Court uses the more common spelling "marijuana" in its opinions.' " People v. Carruthers , 301 Mich. App. 590, 593 n. 1, 837 N.W.2d 16 (2013), quoting People v. Jones , 301 Mich. App. 566, 569 n. 1, 837 N.W.2d 7 (2013). Therefore, we will refer to "marijuana" by that spelling except when quoting from the MMMA.
Telewski holds a Ph.D. in biology.
In order to ascertain the amount of "usable marijuana," as contemplated by the statute, defendant relied, in part, on an analysis conducted by Telewski. Telewski indicated that he examined the marijuana on December 21, 2017, weighed it at 484.5 grams, and therefore opined that the marijuana was not "dried" at the time of its seizure because it had lost 12% of its weight (through a loss of moisture) during the 18 months since the marijuana was seized. He further noted the presence of mold on the marijuana, which also indicated that the marijuana was not "dried" when it was seized. Telewski therefore opined that the marijuana was not "usable marijuana" as that term is defined in the MMMA.
Section 4(b) of the MMMA similarly provided protections for a "primary caregiver," but "only if the primary caregiver possesses an amount of marijuana that does not exceed ... 2.5 ounces of usable marihuana for each qualifying patient ...." MCL 333.26424(b), as amended by 2012 PA 512 (emphasis added).
The definition of "usable marihuana" was also amended, and MCL 333.26423(n) now provides: " 'Usable marihuana' means the dried leaves, flowers, plant resin, or extract of the marihuana plant, but does not include the seeds, stalks, and roots of the plant." A definition was also provided for the term "usable marihuana equivalent." MCL 333.26423(o ).
The parties' respective positions were therefore counter to what one might logically have expected. That is, the prosecution argued that the marijuana in question constituted usable marijuana such that it was subject to the protections of the MMMA so long as it was within allowed quantities. Defendant argued, to the contrary, that the marijuana in question did not constitute usable marijuana, which of course is the type of marijuana with respect to which the MMMA provides protections, provided that it is possessed within allowed quantities.
"A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule." MCR 7.215(J)(1). We conclude that there is no conflict between Carruthers and Manuel because Manuel simply did not consider the issue that is before us in this case. Manuel decided only whether the marijuana in question was " 'drying,' not 'dried,' " Manuel , 319 Mich App at 303, 901 N.W.2d 118, and, therefore, whether it constituted usable marijuana. While Manuel's determination that the trial court's factual finding in that regard was not clear error is binding, id. ; MCR 7.215(J)(1), we are not bound to repeat Manuel 's failure to address the second prong of the Carruthers analysis. On that issue, Carruthers controls; even if Carruthers were not controlling, we agree with and adopt its rationale.
Our determination does not affect in any manner defendant's assertion of, or entitlement to, a defense under § 8 of the MMMA.
We therefore do not reach the prosecution's alternative argument relative to the amended definition of "usable marihuana" as set forth in the MMMA. | [
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On order of the Court, the application for leave to appeal the November 7, 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. The motion for stay is DENIED. | [
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On order of the Court, the application for leave to appeal the November 20, 2018 judgment of the Court of Appeals is considered. We direct the Clerk to schedule oral argument on the application. MCR 7.305(H)(1).
The petitioner-appellant shall file a supplemental brief within 42 days of the date of this order addressing: (1) whether the Court of Appeals clearly erred in reversing the trial court's decision to exercise jurisdiction over the minor child pursuant to MCL 712A.2(b)(2), where the child was living with a guardian and there was no evidence that the guardian's home was unfit, yet there was evidence that the respondent-father is incarcerated and had a history of criminal conduct; (2) whether the Court of Appeals clearly erred in reversing the trial court's additional decision to exercise jurisdiction over the minor child pursuant to MCL 712A.2(b)(6), based on the respondent-father's conduct in the two years preceding the filing of the petition when he was a putative, not legal, father; and (3) whether the trial court's reliance on In re LE, 278 Mich. App. 1, 747 N.W.2d 883 (2008), was misplaced. In addition to the brief, the petitioner-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 respondent-appellee shall file a supplemental brief within 21 days of being served with the petitioner-appellant's brief. The respondent-appellee shall also electronically file an appendix, or in the alternative, stipulate to the use of the appendix filed by the petitioner-appellant. The lawyer-guardian ad litem for the minor child is invited to file a supplemental brief within 21 days of being served with the petitioner-appellant's brief. A reply, if any, must be filed by the petitioner-appellant within 14 days of being served with the respondent-appellee's brief. The parties should not submit mere restatements of their application papers.
The Children's Law and Family Law Sections of the State Bar of Michigan, the UDM Juvenile Appellate Practice Clinic, and the University of Michigan Law School Child Advocacy Law Clinic are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae. | [
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On order of the Court, the motion to amend the application is GRANTED. The application for leave to appeal the February 22, 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). The motion to remand for resentencing, the motion to remand for an evidentiary hearing pursuant to People v. Ginther , 390 Mich. 436, 212 N.W.2d 922 (1973), and the motion to remand for a hearing pursuant to Franks v. Delaware , 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), are DENIED. | [
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On order of the Court, the application for leave to appeal the January 25, 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). | [
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On order of the Court, the application for leave to appeal the November 28, 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 10, 2018 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 May 7, 2018 order of the Court of Appeals and the motions to remand are considered. We DIRECT the Wayne 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 and the motions to remand remain pending. | [
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On order of the Chief Justice, the motion of defendants-appellees to extend the time for filing their answer is GRANTED. The answer submitted on March 8, 2019, is accepted as timely filed. | [
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On order of the Chief Justice, the motions for the temporary admission of out-of-state attorneys Sara E. Hershman, Juan J. Gascon, Melina M. Meneguin Layerenza, and Eric A. Stone to appear and practice in this case under MCR 8.126(A) are GRANTED. On further order of the Chief Justice, the motion of Public Funds Public Schools to file a brief amicus curiae is GRANTED. The amicus brief submitted on February 15, 2019 is accepted for filing. | [
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On order of the Court, the application for leave to appeal the July 24, 2018 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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Swartzle, P.J.
There was a time under the common law when a witness had to swear belief in a Supreme Being before testifying in court. This time passed, and the common-law rule was set aside. Today, a witness cannot be questioned about beliefs or opinions on religion, and especial care must be taken that these beliefs or opinions not be used to impair or enhance a witness's credibility.
During the jury trial in this case, plaintiff's wife was asked about her and her husband's religious opinions for the purpose of bolstering her credibility, and this was error. Whether this error requires automatic reversal or, instead, this error requires a showing of prejudice before relief can be had is the question we address here. Concluding that, in a civil action, a party must show prejudice from the improper admission of religious belief or opinion testimony before reversal can be had, yet finding defendant has not shown such prejudice here, and finding no other reversible error, we affirm.
I. BACKGROUND
In Docket No. 336234, defendant Fremont Insurance Company appeals as of right a judgment awarding plaintiff Abdul Nahshal $130,256.24 for no-fault personal protection insurance (PIP) benefits. In Docket No. 336919, defendant appeals as of right the trial court's subsequent order awarding plaintiff taxable costs, attorney fees, penalty interest, and judgment interest.
Plaintiff was involved in a roll-over automobile accident from which he sustained injuries to his chest, shoulder, back, and neck. Following the accident, plaintiff also suffered from post-traumatic stress disorder. Before the accident, plaintiff worked as a server at both the Detroit Athletic Club and Greektown Casino, where he received compensation in the form of wages and tips. Plaintiff returned to work at Greektown Casino approximately five weeks after the accident, but he had to change roles from server to cashier because of his injuries. Plaintiff never returned to work at the Detroit Athletic Club.
Plaintiff sought work-loss and related benefits from defendant, his no-fault insurer, including nearly $5,000 per month for lost income and additional amounts for attendant-care and replacement-services benefits. Plaintiff's wife testified at trial that, for several weeks after the accident, it was difficult for plaintiff to do anything because of his injuries. According to plaintiff's wife, she had to help plaintiff to the bathroom for approximately two weeks after the accident. She submitted paperwork to defendant, documenting the assistance she provided to plaintiff. As relevant to this appeal, Attendant Care Service Compensation Claim Forms for October and November 2013 record that plaintiff's wife provided toileting assistance for 17 days. Plaintiff's primary-care physician corroborated plaintiff's wife's testimony that plaintiff was disabled from household duties and needed personal-attendant care.
Defendant's claims specialist testified at trial that she determined plaintiff's work-loss benefit to be $2,500 per month based on the calculation of a certified public accountant (CPA). The difference between defendant's payment and plaintiff's requested amount appears to be based on a disagreement on how plaintiff's tip income should have been calculated. The purported CPA's calculation is not in the record. As of trial, defendant had paid plaintiff a total of $40,000 in work-loss and replacement-services benefits.
Several attempts were made to settle the matter before trial, and the case-evaluation panel recommended a settlement in plaintiff's favor. Defendant rejected the recommendation, and the dispute proceeded to trial. At trial, defendant argued that plaintiff made false statements to defendant to bolster his claim and that dismissal was warranted based upon a fraud-exclusion provision in defendant's policy. The provision at issue is entitled "Concealment or Fraud" and provides:
We will not cover any person seeking coverage under this policy who has intentionally concealed or misrepresented any material fact, made fraudulent statements, or engaged in fraudulent conduct with respect to the procurement of this policy or to any accident or loss for which coverage is sought.
Defense counsel brought up the subject of fraud with plaintiff's wife, questioning whether plaintiff's wife's recordkeeping was honest. On redirect, plaintiff's wife testified as follows:
Q. Okay. Now Ms. Nahshal, are you a religious person?
A. Yes.
[Defense Counsel] : Your Honor, objection to religion and it's beyond the scope of my cross.
[Plaintiff's Counsel] : And he's attacking her honesty, Your Honor.
[The Trial Court] : The Court will take the answer.
Q. And have you been a religious person all your life?
A. Yes.
Q. Okay. And your husband, he, you married him the year he came to the United States?
A. Correct.
Q. Almost 31 years ago?
A. Um-hmm.
Q. And was he a religious person?
A. He was, he was a little, but when I married him he got to be better, more.
Q. Okay. And how did that change after this collision?
A. He used to go, when he used to come home from work he used to stop at the local mosque and pray whatever pray he's already, 'cause we pray five times a day.
So if one prayer already finished he'll go and pray and come home, so.
Q. And-
A. And I see him, I see him, he used to pray, but now I don't see him pray. I don't, we pray five times a day like I said, I don't see him pray.
Q. Is honesty important to you?
A. It's very, very. Everybody knows me knows I'm honest.
Q. And have you been honest today and-
A. Yes, I have.
Q. -in the past?
Almost three years of recordkeeping for-
A. Yes, I have.
Q. -for the insurance company?
A. Yes.
Defendant also brought up the subject of fraud during its cross-examination of plaintiff, specifically with respect to attendant care. Plaintiff testified on cross-examination as follows:
Q. Okay. All right. [Your wife] also said that she, you needed assistance going to the bathroom; correct?
A. For the first two or three weeks, yes.
Q. Okay. She submitted it for one year, did you need it for one year or you only need it for a couple of weeks?
A. For the shower, Yes.
Q. Okay, I asked-
A. For the bathroom, no.
Q. Okay. For a year you could not take a shower, is that what you're saying?
A. I can, but I cannot clean my back.
Q. What about going to the bathroom, could you get up and go to the bathroom?
A. Absolutely.
Q. Absolutely?
A. Yes, sir.
Q. Okay. Well then let me, and you could always do that; correct?
A. I can go to the bathroom.
Q. Excuse me?
A. I can go to the bathroom.
Q. Okay. All right. I want to show you documents that we've marked as Exhibit Q. And do you know what your wife's signature looks like?
A. Of course.
Q. Okay. Is that your wife's signature?
A. Yes.
Q. Okay. So if your wife submitted benefits and she's asking for $80,000 from Fremont Insurance because she says you can't go to the bathroom without her, was that untrue?
A. Yeah, that should be untrue.
Q. Okay, so that's untrue.
So what your wife submitted to Fremont Insurance Company was untrue; is that correct?
A. I'm saying about that, about bathroom....
* * *
Q. Okay. The specific question is if your wife submitted claims that she had to take you to the bathroom everyday 'cause you were too physically injured, that's not true is it?
A. To the bathroom, using the bathroom, no.
Q. Okay. So what your wife submitted to Fremont Insurance Company was not true, correct?
A. In everything on that matter.
Q. Okay. But just about the bathroom is untrue?
A. Yes, about the bathroom.
Defense counsel was not able, however, to point to anything in the trial record showing that plaintiff's wife actually sought reimbursement for $80,000 related to helping her husband with his toiletry needs for a year. Nor could defense counsel identify a record to this effect during oral argument on appeal.
At the close of plaintiff's case-in-chief, defendant moved for a directed verdict, arguing that plaintiff admitted that his wife engaged in fraud, thereby voiding the policy. The trial court denied the motion, but allowed an instruction regarding fraud to be presented to the jury. In closing argument, plaintiff's counsel asked the jury to award $129,634.86 in work-loss benefits, $23,550 in attendant-care benefits, and $19,380 in replacement-services benefits. The jury found defendant liable and awarded plaintiff $129,044.24 in work-loss benefits, $312 in attendant-care benefits, and $900 in replacement-services benefits.
Defendant moved for judgment notwithstanding the verdict (JNOV), again arguing that the record showed that the policy was voided by fraud and citing plaintiff's testimony regarding toileting. The trial court denied the motion, noting that the question of fraud was presented to, and rejected by, the jury. The trial court entered a judgment that was stayed pending appeal.
Plaintiff then moved for attorney fees, costs, and interest, arguing that defendant's unreasonable failure to pay work-loss benefits entitled plaintiff to payment of those fees under the no-fault act, MCL 500.3101 et seq. At the hearing on plaintiff's motion, the trial court noted that defendant had essentially agreed to the award of attorney fees from the time of case evaluation and that, therefore, "the issue is is [sic] attorney fees from ... the beginning." After the parties had made their arguments, the trial court noted that it had "lived this case for the last couple of years." The trial court stated that a verdict was rendered in plaintiff's favor "but there's a little bit more to the story in that regard." The trial court then reasoned as follows:
[T]his was an a accident where the car was upside down. The gentleman was extricated, he was taken to the emergency room.
There was a long litany of things that happened to him in terms of medical and his employment.
It's significant to know, I think it's, the Court think [sic] it's significant, this wasn't some brand new adjuster just out of adjuster school, if you will, this person had 21 years of experience as I'm reminded this morning. Knows the ropes if you will.
But this is a Plaintiff that was sent to three IMEs [independent medical evaluations].
The first two IMEs essentially agreed with Plaintiff that Plaintiff needed to see certain medical providers and had significant work restrictions.
If that weren't enough to get this matter moving from the adjuster's perspective then there was a third IME that wasn't given, it came out at trial wasn't given complete medical records.
Case eval was accepted by the Plaintiff.
This Court attempted to settle this matter I think on a number of occasions.
This case was facilitated and at the end of the day it went to trial, Plaintiff was successful.
Plaintiff request[ed] that the Defendant[']s failure to pay the wage loss, no fault benefits was unreasonable. At this point with the benefit of hindsight, if you will, and sitting through the trial and all of the evidence the Court can make that conclusion.
Certainly taxable costs are awardable, which I believe are in excess of $9,000.
The attorney fees Plaintiff accepted case eval, Plaintiffs bettered their position greater than 10 percent. I don't think that Defendant has argued that and in essence has conceded the attorney fees from the date of the case eval, accept reject.
The issue is is [sic] are we going back to the beginning in terms of the unreasonableness, and from what the Court has now seen the Court would concur.
And then there's the issue of no fault penalty interest which is in light of the above the Court is awarding pursuant to MCL 500.3142(3), and Judgment interest as well pursuant to 600.6013(6).
* * *
The big picture is is [sic] that I'm granting it certainly from a case evaluation standpoint, as well as from the date of beginning.
These appeals followed.
II. ANALYSIS
A. USING RELIGION TO ENHANCE WITNESS CREDIBILITY
We begin our analysis with defendant's claim that it is entitled to a new trial based on the trial court's erroneous admission of testimony regarding the religious beliefs or opinions of plaintiff and his wife in violation of MCL 600.1436 and MRE 610. We conclude that the trial court erred in admitting the plaintiff's wife's testimony on the subject, but the error did not affect defendant's substantial rights under MRE 103 and, therefore, the error is not grounds for a new trial.
1. TESTIMONY ABOUT RELIGIOUS BELIEFS OR OPINIONS
In old time, the common law required that a witness swear to belief in a Supreme Being before testifying, the rationale being that only a believer who risked divine punishment would feel compelled to testify truthfully. See 28 Wright & Gold, Federal Practice and Procedure: Evidence, § 6152, p. 308 ; People v. Bouchee , 400 Mich. 253, 264 n. 6, 253 N.W.2d 626 (1977). Unfortunately, this legal rule suffered from being both over-inclusive (if the witness was a liar, then wouldn't he lie about being a believer too?) and under-inclusive (were all atheists really all liars all the time?). The rule also suffered from a version of the liar's paradox-consider the statement, "My testimony is false" (if said by a nonbeliever, then that witness would only testify falsely, but then the statement is actually true; if said by a believer, then that witness would only testify truthfully, but then the statement is actually false-in other words, if false, then true; if true, then false). If this were not bad enough, the rule could result in testimony highly prejudicial to a party when a juror was biased for or against a particular religious belief or opinion. A legal rule that is over-inclusive, under-inclusive, paradoxical, and prejudicial has little to offer and much to avoid.
Michigan long ago cast away this common-law rule. Our Constitution of 1963 states, "No person shall be rendered incompetent to be a witness on account of his opinions on matters of religious belief." Const. 1963, art. 1, § 18. Moreover, since 1842, it has been the statutory law of the land that a witness cannot be questioned about a person's opinions on religion. See 1842 PA 18; see also MCL 600.1436 (current version) ("No witness may be questioned in relation to his opinions on religion, either before or after he is sworn."). Our rules of evidence likewise reflect this principle: "Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced." MRE 610. While evidence of religious matters may be relevant in certain narrow contexts, see, e.g., People v. Jones , 82 Mich. App. 510, 515, 267 N.W.2d 433 (1978) (noting that testimony about church attendance was permissible when church membership was a fact at issue), if testimony about religious beliefs or opinions is offered to impair or enhance credibility, then that testimony must be excluded.
2. THE ISSUE IS PRESERVED
Initially, plaintiff argues that this issue is unpreserved. To preserve an evidentiary error for appeal, a party must object at trial on the same ground that it presents on appeal. Klapp v. United Ins. Group Agency Inc. (On Remand) , 259 Mich. App. 467, 475, 674 N.W.2d 736 (2003). Counsel must state "the specific ground of objection, if the specific ground was not apparent from the context." MRE 103(a)(1).
When plaintiff's counsel asked plaintiff's wife whether she was "a religious person," defense counsel immediately objected. While defense counsel did not specify a statute or rule of evidence, counsel noted that the objection was based on "religion," to which plaintiff's counsel responded that plaintiff's wife's "honesty" had been "attack[ed]." Based on the specific objection and response as well as the context in which these were given, it is apparent from the record that defense counsel's objection was to the admission of testimony about the witness's religious beliefs or opinions for the purpose of her credibility. Accordingly, this issue is preserved.
When an evidentiary issue is preserved, a "trial court's decision whether to admit evidence is reviewed for an abuse of discretion, but preliminary legal determinations of admissibility are reviewed de novo." Albro v. Drayer , 303 Mich. App. 758, 760, 846 N.W.2d 70 (2014). "An abuse of discretion generally occurs only when the trial court's decision is outside the range of reasonable and principled outcomes, but a court also necessarily abuses its discretion by admitting evidence that is inadmissible as a matter of law." Hecht v. Nat'l Heritage Academies, Inc. , 499 Mich. 586, 604, 886 N.W.2d 135 (2016) (citations omitted).
3. TESTIMONY ON RELIGIOUS BELIEFS OR OPINIONS
Turning to the merits, we consider first whether the testimony actually concerned a person's religious beliefs or opinions. Plaintiff's wife was asked about whether she and plaintiff were "religious person[s]," how long and to what extent they were religious persons, and, during this colloquy, whether honesty was "important" to her, to which she responded: "It's very, very. Everybody knows me knows I'm honest." Whether someone is a "religious person" can, somewhat vexingly, be understood in different ways. On the one hand, being a religious person might mean, as one example, that the person regularly attends a church or mosque. Being a religious person might also mean, as another example, that the person self-identifies with a specific religious sect, such as Catholicism or Reform Judaism. None of these meanings would necessarily implicate the person's actual beliefs or opinions about religion. On the other hand, being a religious person might mean, and might be understood by others to mean, that the person ascribes to certain religious beliefs or opinions.
To determine how the phrase was intended to be understood by the jury, we again look to the context in which it was presented. Counsel asked plaintiff's wife about whether she was a religious person to bolster her credibility as a witness. Counsel admitted as much during the colloquy when, in response to the objection, counsel responded, "And [defense counsel is] attacking her honesty, Your Honor." There is little in reason or experience to the suggestion that a "religious person" is honest simply because she attends religious services or identifies with a particular sect. Stated differently, it does not follow that because a person regularly attends a religious service or belongs to a particular sect, therefore, based on the bare fact of that attendance or membership, the person must be honest. There is, however, much more to the suggestion that a "religious person" is honest precisely because that person believes in a Supreme Being who will deliver divine punishment for dishonesty-and it is precisely this type of suggestion that the law no longer permits during judicial proceedings.
It is evident from the colloquy that counsel asked plaintiff's wife whether she was a "religious person" to bolster her credibility before the jury. The inference intended to be drawn by jurors was that plaintiff's wife was a pious believer and that, because of this, honesty was "very, very" important to her. Similar statements have been held to be improper under the law. See, e.g., People v. Blair , 82 Mich. App. 719, 720, 267 N.W.2d 164 (1978) (finding that questions on whether the criminal defendant was a "religious man" violated the statute); People v. Killingsworth , 80 Mich. App. 45, 54, 263 N.W.2d 278 (1977) (concluding that asking a defendant about whether she attended church was sufficient to violate the law); but see People v. Calloway (On Remand) , 180 Mich. App. 295, 297-298, 446 N.W.2d 870 (1989) (questioning a witness about whether she was a "religious person" was not sufficient alone to violate the statute when the question had nothing to do with the witness's credibility and the question was relevant to the witness's activities at the time of the murder). Given the context, we conclude that the colloquy fell within the statutory and evidentiary prohibitions and, as a result, the trial court abused its discretion by admitting the improper testimony.
4. AUTOMATIC REVERSAL OR REVIEW FOR PREJUDICE?
Defendant argues that our analysis should now be at an end-when religious belief or opinion testimony is admitted for purposes of impairing or enhancing a witness's credibility, reversal is automatic. In support, defendant relies on our Supreme Court's decision in People v. Hall , 391 Mich. 175, 215 N.W.2d 166 (1974), and its progeny. Were we to apply the remedy in Hall , reversal would be automatic. And yet, automatic reversal is generally "disfavored" and is "inconsistent" with our courts' ''modern harmless-error jurisprudence." People v. Graves , 458 Mich. 476, 481-482, 581 N.W.2d 229 (1998) ; see also MRE 103(a) (providing that an evidentiary error is harmless unless it affects a party's "substantial right").
Hall was a criminal appeal from an uttering-and-publishing conviction. The defendant had testified on his own behalf, and on cross-examination, the prosecutor inquired whether the defendant " 'believe[d] in the Supreme Being?' " Hall , 391 Mich. at 180, 215 N.W.2d 166. Defense counsel did not object, and the defendant replied, " 'Yes, I do.' " Id . Immediately following, the prosecutor asked the defendant whether he " 'would not tell a falsehood to save [him]self,' " making clear why the prosecutor had asked the previous question. Id. The Supreme Court concluded that this line of questioning violated MCL 600.1436. Id. at 181, 215 N.W.2d 166. As to the remedy, the Supreme Court rejected a "case by case" review for prejudice, explaining that this "would emasculate our statute and the legislative intent behind it." Id. at 182, 215 N.W.2d 166. Instead, it opted for a rule of automatic reversal, declaring: "A defendant is entitled to a trial free of such improper questions. Once the question is asked, this is no longer possible. A new trial is mandated." Id. at 182-183, 215 N.W.2d 166.
Subsequent decisions have extended this rule of automatic reversal to instances when a witness is asked about a criminal defendant's religious beliefs or opinions, Bouchee , 400 Mich. at 264, 253 N.W.2d 626, and when a criminal victim is asked about the victim's own religious beliefs or opinions, People v. Wells , 82 Mich. App. 543, 545-546, 267 N.W.2d 448 (1978). Other decisions have narrowed the rule, finding it inapplicable when the trial court takes "swift and commendable action" to cut off the improper questioning, People v. Burton , 401 Mich. 415, 418, 258 N.W.2d 58 (1977), or when a third-party witness is questioned about that witness's own religious beliefs or opinions, not a criminal defendant's, People v. McLaughlin , 258 Mich. App. 635, 663-664, 672 N.W.2d 860 (2003).
In support of defendant's claim for automatic reversal in this case, neither the statute nor the rule of evidence applies solely to criminal actions; rather, by their plain terms, both apply to civil as well as criminal matters. Moreover, it is at least arguable that the religious beliefs or opinions of a party, not just a witness, were explored during the trial here, given the wife's brief testimony about plaintiff's own religious practices. Nor did the trial court take "swift" action to cut off the line of questioning. Yet, unfortunately for defendant, this is the end of any support for its position.
First, to restate, automatic reversal is generally "disfavored." Graves , 458 Mich. at 481, 581 N.W.2d 229. The rule is used sparingly, almost always in the context of a structural error of constitutional dimension, see, e.g., Neder v. United States , 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (identifying "a very limited class" of constitutional errors that are deemed "structural" and "thus subject to automatic reversal") (citation and quotation marks omitted), and similarly almost always in the context of a criminal action, see, e.g., id. at 8-9, 119 S.Ct. 1827 (explaining that "these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair") (emphasis added, citation and quotation marks omitted); but see Pellegrino v. AMPCO Sys. Parking , 486 Mich. 330, 351 n. 14, 785 N.W.2d 45 (2010) (noting "that Batson errors are, in fact, 'structural' and require 'automatic' reversal" and applying the rule in a civil action). It is true that Hall 's automatic-reversal rule is one of the rare instances when such a rule is applied in a nonconstitutional context. See Hall , 391 Mich. at 181-183, 215 N.W.2d 166 (quoting the constitutional provision regarding a witness's competency based on " 'his opinions on matters of religious belief' " but concluding that it was violation of the statute that justified automatic reversal) (citation omitted). With that said, Hall 's automatic-reversal rule has been the law since 1974, and since then, courts have only applied it in criminal actions, not civil ones. This narrow application and the reasonable inference to be drawn should not be ignored.
Second, supporting a narrow application, there is early caselaw suggesting that the rule of automatic reversal should not apply in civil actions when testimony about religious beliefs or opinions is offered. In In re Morse Estate , 146 Mich. 463, 109 N.W. 858 (1906), the Supreme Court considered a previous version of the statute, 1897 CL 10207. Similar to MCL 600.1436, 1897 CL 10207 provided that "no person shall be deemed incompetent as a witness in any court, matter, or proceeding on account of his opinions on the subject of religion, nor shall any witness be questioned in relation to his opinions thereon, either before or after he shall be sworn." In re Morse Estate , 146 Mich. at 469, 109 N.W. 858. In re Morse Estate involved a civil lawsuit in which several witnesses were questioned about their own religious beliefs or the religious beliefs of other witnesses. Id . at 469-470, 109 N.W. 858. Counsel objected to some of the questions, but the trial court overruled and allowed the testimony. Id . On appeal, the Supreme Court declined to reverse the jury verdict, despite the violation of 1897 CL 10207. The Supreme Court explained that, even for those inquiries that which objections were made, the inquiries did not create any prejudice. Id.
Neither the Hall Court nor any subsequent decision of the Supreme Court has expressly overruled In re Morse Estate or otherwise suggested that the decision is no longer good law. This Court is "bound to follow decisions by [the Supreme Court] except where those decisions have clearly been overruled or superseded." Associated Builders & Contractors v. Lansing , 499 Mich. 177, 191, 880 N.W.2d 765 (2016). Although it is not clear whether the issue here-automatic reversal versus prejudice review-was squarely presented in In re Morse Estate , it is consequential that the Supreme Court reviewed the improper testimony for prejudice before deciding whether to reverse.
Third and finally, limiting Hall 's automatic-reversal rule to the criminal context makes sense. As explained in Graves , there are good reasons that automatic reversal is disfavored for the mine-run of cases. It is inefficient, requiring additional proceedings in the trial court, which a prejudice analysis might otherwise show is not necessary. Moreover, the "passage of time, erosion of memory, and dispersion of witnesses may render retrial difficult, even impossible." Graves , 458 Mich. at 481 n. 4, 581 N.W.2d 229 (quotation marks, citation, and brackets omitted). These and other "social costs" are effectively minimized by application of traditional harmless-error and plain-error standards of appellate review. Other jurisdictions have arrived at a similar conclusion. See, e.g., Medes v. Geico Corp. , 97 Conn. App. 630, 633-634 & n. 2, 905 A.2d 1249 (2006) (reviewing for prejudice the improper testimony of a person's religious beliefs or opinions); Steele v. Inn of Vicksburg, Inc. , 697 So.2d 373, 377-378 (Miss., 1997) (same); Kolaric v. Kaufman , 261 Cal. App. 2d 20, 27-28, 67 Cal.Rptr. 729 (1968) (same).
Therefore, because Hall 's automatic-reversal rule has been applied only in the criminal context, and because there is support in precedent and logic to reject the rule in the civil context, we will eschew Hall 's rule and review the improper religious belief or opinion testimony for prejudice.
5. THE ERROR DOES NOT REQUIRE REVERSAL
Because the issue was preserved, we review the admission of the improper testimony to determine whether such admission was harmless error or reversible error under MRE 103(a). A trial court's error is harmless if, based on review of the entire record, it is more probable than not that the error was not outcome determinative; if the probability runs in the other direction, then it is reversible error. Barnett v. Hidalgo , 478 Mich. 151, 172, 732 N.W.2d 472 (2007) ; see also MCR 2.613(A) ; Mitchell v. Kalamazoo Anesthesiology, PC , 321 Mich. App. 144, 157-158, 908 N.W.2d 319 (2017).
Our review of the record confirms that it was more probable than not that the admission of the improper testimony was not outcome determinative. Plaintiff's wife's credibility was attacked with respect to the extent of attendant care claimed by plaintiff. Yet, several witnesses, including plaintiff and his treating physician, testified about plaintiff's need for services after the accident. Moreover, the improper testimony was offered in response to defendant's assertion that plaintiff's wife had submitted false reports to defendant-specifically, that plaintiff's wife had claimed that she was entitled to $80,000 for her assistance in helping plaintiff to the bathroom for a year. Yet, defendant provided no documentary evidence to back up this assertion in the first place. The relevant documentation submitted to defendant did not mention an $80,000 claim-the documentation instead showed that plaintiff's wife claimed that she helped defendant with toileting for 17 days, consistent with her trial testimony that she helped plaintiff to the bathroom for a couple of weeks. Finally, despite finding that plaintiff was entitled to attendant-care and replacement-services benefits, the jury only awarded plaintiff $312 and $900, respectively, for those services, which was substantially less than the requested amount. Thus, the jury's verdict indicates that it was not swayed by the improper inquiry into religious beliefs or opinions. Accordingly, although the trial court erred by admitting the improper testimony, the error was harmless and reversal is not required.
B. DIRECTED VERDICT OR JNOV
Defendant next argues that the trial court erred by denying its motions for directed verdict or JNOV. Defendant argues that documentation submitted in support of plaintiff's claim was demonstrably false, thereby triggering the fraud exclusion contained in the insurance policy. We review "de novo a trial court's decision with regard to both a motion for a directed verdict and a motion for JNOV." Taylor v. Kent Radiology, PC , 286 Mich. App. 490, 499, 780 N.W.2d 900 (2009). Both motions are "essentially challenges to the sufficiency of the evidence in support of a jury verdict in a civil case." Id .. A directed verdict or JNOV is only appropriate when, viewing the evidence in the light most favorable to the nonmoving party, the moving party is entitled to judgment as a matter of law. Id . at 499-500, 780 N.W.2d 900. "If reasonable persons, after reviewing the evidence in the light most favorable to the nonmoving party, could honestly reach different conclusions about whether the nonmoving party established his or her claim, then the question is for the jury." Id . at 500, 780 N.W.2d 900.
In Bahri v. IDS Prop. Cas. Ins. Co. , 308 Mich. App. 420, 423-425, 864 N.W.2d 609 (2014), this Court held that to void a policy under a fraud exclusion based on a willful misrepresentation of a material fact, the insurer must prove: (1) the representation was false; (2) the representation was material; (3) the insured made the representation (a) knowing that it was false or (b) recklessly, without any knowledge of its truth; and (4) the insured made the representation with the intention that the insurer act upon it. When there is a question of fact on at least one of the elements, and the insured is not otherwise entitled to summary disposition, the matter is one for the jury. Shelton v. Auto-Owners Ins. Co. , 318 Mich. App. 648, 656, 899 N.W.2d 744 (2017).
Defendant argues that plaintiff admitted that his wife submitted a false claim for $80,000 based on a false report that she helped plaintiff in going to the bathroom every day for a year. Yet, as noted earlier, nowhere in the records provided to the trial court does plaintiff's wife seek $80,000 for assistance with plaintiff's toileting for a year; rather, the documentation she sent to defendant indicates that she helped plaintiff with toileting for 17 days following plaintiff's accident. This documentation is consistent with her testimony that she helped plaintiff to the bathroom for a couple weeks following plaintiff's accident. It is unclear where in the record defendant's trial counsel came up with the purported $80,000 for one year of toileting assistance, and defendant has similarly failed to clarify the matter on appeal. Defendant bore the burden of proving an intentional misrepresentation sufficient to invoke its policy exclusion. Because defendant has not proved the factual predicate supporting its argument, defendant was not entitled to a directed verdict or JNOV.
C. ATTORNEY FEES
Finally, defendant argues that the trial court applied the wrong legal standard and committed plain factual error in awarding attorney fees to plaintiff. "The no-fault act provides for attorney fees when an insurance carrier unreasonably withholds benefits." Ross v. Auto Club Group , 481 Mich. 1, 7, 748 N.W.2d 552 (2008) ; see also MCL 500.3142. A judgment that an insurer owes PIP benefits that have not already been paid to the insured creates a rebuttable presumption that the refusal or delay in paying benefits was unreasonable. Attard v. Citizens Ins. Co. of America , 237 Mich. App. 311, 317, 602 N.W.2d 633 (1999). Thus, the insurer bears the burden of showing that the withholding was "based on a legitimate question of statutory construction, constitutional law, or factual uncertainty." Id ."The trial court's finding of unreasonable refusal or delay will not be reversed unless it is clearly erroneous." McKelvie v. Auto Club Ins. Ass'n , 203 Mich. App. 331, 335, 512 N.W.2d 74 (1994). After the trial, plaintiff moved for attorney fees based on defendant's refusal to pay the full amount of work-loss benefits owed. In ruling on plaintiff's motion, the trial court stated that its conclusion was based on the "benefit of hindsight" and the evidence presented at trial. Yet, the relevant inquiry "is not whether the insurer ultimately is held responsible for a given expense, but whether its initial refusal to pay the expense was unreasonable." McCarthy v. Auto Club Ins. Ass'n , 208 Mich. App. 97, 105, 527 N.W.2d 524 (1994). The trial court's reference to the "benefit of hindsight" suggests that it may have made its decision on attorney fees based on the jury's ultimate finding of liability, though admittedly the phrase and context are ambiguous on this point.
We need not resolve the ambiguity here because any error was harmless. The record makes clear that defendant failed to overcome the statutory presumption that it was unreasonable not to pay the full amount of work-loss benefits owed. Defendant's claims specialist testified that she based her decision to authorize a lower reimbursement on certain CPA calculations, but defendant failed to produce any evidence corroborating this assertion. By failing to produce any records, there was no basis for the trial court, or this Court on appeal, to determine whether defendant's reliance on the purported CPA calculations was reasonable. Thus, the trial court was warranted in awarding attorney fees to plaintiff, regardless of whether it stated the proper standard during the hearing.
III. CONCLUSION
The law no longer requires or even permits the questioning of a witness about religious beliefs or opinions, especially when such questioning is intended to impair or enhance a witness's credibility. The trial court erred by permitting plaintiff's counsel to question plaintiff's wife about her and her husband's religious beliefs and opinions. As to the remedy, while there is a time to follow Hall 's automatic-reversal rule for such errors, there is a time to follow a different path. As explained earlier, we conclude that the automatic-reversal rule does not apply in civil lawsuits and that any improper religious belief or opinion testimony should be reviewed for prejudice on appeal.
Because the issue was preserved, we review the improper testimony under this jurisdiction's harmless-error standard. Finding no reversible error, either with the improper testimony or the other claims raised by defendant, we affirm both the judgment and the award of attorney fees. As the prevailing party, plaintiff may tax costs under MCR 7.219.
Shapiro and Boonstra, JJ., concurred with Swartzle, P.J.
In distinguishing criminal actions from civil ones, we admittedly paint with a broad brush. We recognize that there are a limited set of civil actions that have criminal-like aspects, such as parental-termination actions. The present action does not fall within that limited set, and, accordingly, we take no position on whether actions in that set should be subject to Hall 's automatic-reversal rule for violation of MCL 600.1436 or MRE 610. | [
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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 submitted on or before February 19, 2019, is accepted as timely filed. | [
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On order of the Chief Justice, the motion of defendant-appellant to file an amended application for leave to appeal is GRANTED. The amended application will be accepted for filing if submitted on or before March 20, 2019. | [
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On order of the Chief Justice, the motion of plaintiff-appellee to extend the time for filing its answer is GRANTED. The answer will be accepted as timely filed if submitted on or before March 19, 2019. | [
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On order of the Chief Justice, the motion of plaintiff-appellee to extend the time for filing its supplement brief is GRANTED. The supplement brief will be accepted as timely filed if submitted on or before March 19, 2019. | [
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On order of the Court, the application for leave to appeal the August 14, 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 August 9, 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). | [
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On order of the Court, the motion for reconsideration of this Court's September 12, 2018 order is considered, and it is DENIED, because it does not appear that the order was entered erroneously. | [
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