MICHIGAN COURT OF APPEALS

MICHIGAN APPEALS REPORTS

CASES DECIDED

IN THE

MICHIGAN

COURT OF APPEALS

FROM

November 30, 2010, through March 15, 2011

JOHN O. JUROSZEK

REPORTER OF DECISIONS

VOLUME 291

FIRST EDITION

2012

The paper used in this publication meets the minimum

requirements of American National Standard for Information

Sciences—Permanence of Paper for Printed Library Materials,

ANSI Z39.48-1984.

COURT OF APPEALS

ERM

XPIRES

ANUARY

HIEF

UDGE

WILLIAM B. MURPHY................................................................. 2013

HIEF

UDGE

DAVID H. SAWYER....................................................................... 2017

UDGES

MARK J. CAVANAGH ................................................................... 2015

KATHLEEN JANSEN ................................................................... 2013

E. THOMAS FITZGERALD.......................................................... 2015

HENRY WILLIAM SAAD.............................................................. 2015

RICHARD A. BANDSTRA ............................................................ 2015

JOEL P. HOEKSTRA..................................................................... 2017

JANE E. MARKEY......................................................................... 2015

PETER D. O’CONNELL ............................................................... 2013

WILLIAM C. WHITBECK............................................................. 2017

MICHAEL J. TALBOT .................................................................. 2015

KURTIS T. WILDER...................................................................... 2017

BRIAN K. ZAHRA.......................................................................... 2013

PATRICK M. METER.................................................................... 2015

DONALD S. OWENS..................................................................... 2017

KIRSTEN FRANK KELLY............................................................ 2013

CHRISTOPHER M. MURRAY...................................................... 2015

PAT M. DONOFRIO ...................................................................... 2017

KAREN FORT HOOD ................................................................... 2015

STEPHEN L. BORRELLO............................................................ 2013

DEBORAH A. SERVITTO............................................................. 2013

JANE M. BECKERING ................................................................. 2013

ELIZABETH L. GLEICHER......................................................... 2013

CYNTHIA DIANE STEPHENS.................................................... 2017

MICHAEL J. KELLY...................................................................... 2015

DOUGLAS B. SHAPIRO ............................................................... 2013

AMY RONAYNE KRAUSE............................................................ 2013

HIEF

LERK:

SANDRA SCHULTZ MENGEL

LARRY S. ROYSTER

ESEARCH

IRECTOR:

LARRY S. ROYSTER

To January 8, 2011.

To January 14, 2011.

From December 13, 2010.

To January 31, 2011.

From January 31, 2011.

SUPREME COURT

ERM

XPIRES

ANUARY

HIEF

USTICE

MARILYN KELLY......................................................................... 2013

ROBERT P. YOUNG, J

. .............................................................. 2019

USTICES

MICHAEL F. CAVANAGH............................................................ 2015

MARILYN KELLY......................................................................... 2013

MAURA D. CORRIGAN ............................................................... 2015

ROBERT P. YOUNG, J

. .............................................................. 2019

STEPHEN J. MARKMAN............................................................ 2013

DIANE M. HATHAWAY............................................................... 2017

ALTON THOMAS DAVIS ............................................................ 2011

MARY BETH KELLY.................................................................... 2019

BRIAN K. ZAHRA ........................................................................ 2013

OMMISSIONERS

MICHAEL J. SCHMEDLEN, C

HIEF

OMMISSIONER

SHARI M. OBERG, D

EPUTY

HIEF

OMMISSIONER

TIMOTHY J. RAUBINGER DANIEL C. BRUBAKER

LYNN K. RICHARDSON MICHAEL S. WELLMAN

KATHLEEN A. FOSTER

GARY L. ROGERS

NELSON S. LEAVITT RICHARD B. LESLIE

DEBRA A. GUTIERREZ-M

GUIRE FREDERICK M. BAKER, J

ANNE-MARIE HYNOUS VOICE KATHLEEN M. DAWSON

DON W. ATKINS RUTH E. ZIMMERMAN

JÜRGEN O. SKOPPEK SAMUEL R. SMITH

ANNE E. ALBERS

TATE

OURT

DMINISTRATOR:

CARL L. GROMEK

LERK:

CORBIN R. DAVIS

EPORTER OF

ECISIONS:

JOHN O. JUROSZEK

RIER:

DAVID G. PALAZZOLO

To January 5, 2011.

From January 5, 2011.

To January 14, 2011.

To January 1, 2011.

From January 1, 2011.

From January 14, 2011.

To December 31, 2010.

TABLE OF CASES REPORTED

(Lines set in small type refer to orders appearing in the Special Orders

section beginning at page 801.)

AGE

Attorney General v Blue Cross Blue Shield of

Michigan ........................................................... 64

Autoform, Inc, CG Automation & Fixture,

Inc v .................................................................. 333

Barbarich, People v .............................................. 468

Biondo v Biondo ................................................... 720

Blue Cross Blue Shield of Michigan, Attorney

General v .......................................................... 64

Boertmann v Cincinnati Ins Co ......................... 683

Brennan, McCahan v ........................................... 430

Buie, People v (After Remand) ........................... 259

Bulger, People v ................................................... 1

Burton (City of), Wiggins v ................................. 532

CG Automation & Fixture, Inc v Autoform,

Inc ..................................................................... 333

Cameron, People v ............................................... 599

Cincinnati Ins Co, Boertmann v ........................ 683

City of Burton, Wiggins v ................................... 532

AGE

City of Dearborn, Truel v ................................... 125

City of Detroit, McCracken v .............................. 522

City of East Lansing v Thompson ...................... 34

City of Grand Rapids, President Inn

Properties, LLC v ............................................ 625

City of Plymouth v McIntosh ............................. 152

Cohen, Comerica Bank v ..................................... 40

Comerica Bank v Cohen ...................................... 40

Consumers Energy Application for Rate

Increase, In re .................................................. 106

Copus v MEEMIC Ins Co .................................... 593

Dailey v Kloenhamer ........................................... 660

Dearborn (City of), Truel v ................................. 125

DeFrain v State Farm Mut Ins Co ..................... 713

Dep’t of Transportation, Kline v ........................ 651

Dep’t of Transportation, Kline v .......................................... 801

Dep’t of Treasury, Grimm v................................. 140

Detroit (City of), McCracken v ........................... 522

Detroit Medical Center, Johnson v ..................... 165

Dilworth, People v ............................................... 399

Dubose, Nelson v ................................................. 496

East Lansing (City of) v Thompson ................... 34

Fonville, People v ................................................. 363

Forfeiture of a Quantity of Marijuana, In re ..... 243

Forsyth Twp, Tellin v .......................................... 692

Grand Rapids (City of), President Inn

Properties, LLC v ............................................ 625

ii 291 M

ICH

AGE

Griesbach v Ross (On Remand) ......................... 295

Grimm v Dep’t of Treasury ................................. 140

Hare v Starr Commonwealth Corp .................... 206

Harverson, People v ............................................. 171

Hyten, Titan Ins Co v ......................................... 445

In re Consumers Energy Application for Rate

Increase ............................................................ 106

In re Forfeiture of a Quantity of Marijuana ...... 243

In re Klocek .......................................................... 9

In re Lundy Estate .............................................. 347

In re MS ................................................................ 439

In re Smith ........................................................... 621

In re Smith ............................................................................. 801

Jackson, People v ................................................. 644

Johnson v Detroit Medical Center ..................... 165

Kar v Nanda ......................................................... 284

King, People v ...................................................... 503

Kline v Dep’t of Transportation ......................... 651

Kline v Dep’t of Transportation ........................................... 801

Klocek, In re ......................................................... 9

Kloenhamer, Dailey v .......................................... 660

Kolanek, People v ................................................ 227

Laidler, People v ................................................... 199

Lechleitner, People v ........................................... 56

ABLE OF

ASES

EPORTED

iii

AGE

Luckow, Luckow Estate v ................................... 417

Luckow Estate v Luckow .................................... 417

Lundy Estate, In re ............................................. 347

MEEMIC Ins Co, Copus v ................................... 593

MS, In re ............................................................... 439

McCahan v Brennan ............................................ 430

McCracken v City of Detroit ............................... 522

McIntosh, City of Plymouth v ............................ 152

McKimmy v Melling ............................................ 577

Melling, McKimmy v ........................................... 577

Michigan Multi-King, Inc, Watts v ..................... 98

Michigan State Police, Prins v ........................... 586

Nanda, Kar v ........................................................ 284

Nelson v Dubose .................................................. 496

Osby, People v ...................................................... 412

PCS4LESS, LLC v Stockton ............................... 672

Parsley Homes of Mazuchet Harbor, LLC,

Stock Bldg Supply, LLC v ............................... 403

Pecoraro v Rostagno-Wallat ................................ 303

People v Barbarich ............................................... 468

People v Buie (After Remand) ............................ 259

People v Bulger .................................................... 1

People v Cameron ................................................ 599

People v Dilworth ................................................ 399

People v Fonville .................................................. 363

People v Harverson .............................................. 171

iv 291 M

ICH

AGE

People v Jackson .................................................. 644

People v King ....................................................... 503

People v Kolanek ................................................. 227

People v Laidler ................................................... 199

People v Lechleitner ............................................ 56

People v Osby ....................................................... 412

People v Vaughn ................................................... 183

Plymouth (City of) v McIntosh ........................... 152

President Inn Properties, LLC v City of Grand

Rapids ............................................................... 625

Prins v Michigan State Police ............................ 586

Ross, Griesbach v (On Remand) ........................ 295

Rostagno-Wallat, Pecoraro v ............................... 303

Shade v Wright .................................................... 17

Shouneyia v Shouneyia ....................................... 318

Smith, In re .......................................................... 621

Smith, In re ............................................................................ 801

Starr Commonwealth Corp, Hare v ................... 206

State Farm Mut Ins Co, DeFrain v .................... 713

Stock Bldg Supply, LLC v Parsley Homes of

Mazuchet Harbor, LLC .................................... 403

Stockton, PCS4LESS, LLC v .............................. 672

Tellin v Forsyth Twp ........................................... 692

Thompson, City of East Lansing v ..................... 34

Titan Ins Co v Hyten .......................................... 445

Transportation (Dep’t of), Kline v ..................... 651

Transportation (Dep’t of), Kline v ....................................... 801

Treasury (Dep’t of), Grimm v ............................. 140

ABLE OF

ASES

EPORTED

AGE

Truel v City of Dearborn .................................... 125

Vaughn, People v .................................................. 183

Watts v Michigan Multi-King, Inc ...................... 98

Wiggins v City of Burton .................................... 532

Wright, Shade v ................................................... 17

vi 291 M

ICH

UDGE

ONAYNE

RAUSE

Judge Amy Ronayne

Krause has been on the Court

of Appeals since December

2010. Previously, she served

as a judge on the 54-A District

Court in Lansing for nearly

eight years. Judge Ronayne

Krause received her Bachelor

of Arts from the University of

Michigan and her Juris Doc-

tor from the University of

Notre Dame.

Judge Ronayne Krause began her legal career as a

litigation attorney for a private law firm and then served

eight years as an assistant prosecuting attorney. In 1997,

she was appointed an assistant attorney general by then

Attorney General Frank J. Kelley and was the first recipi-

ent of the Frank J. Kelley Award for Excellence in Trial

Advocacy. Judge Ronayne Krause worked for the Attorney

General’s office for six years. Before taking the bench,

Judge Ronayne Krause was elected to serve on the Ing-

ham County Board of Commissioners, during which time

she chaired the Law and Courts Committee. She is an

adjunct professor at Thomas M. Cooley Law School and

has lectured for the Prosecuting Attorneys Association of

Michigan. She has also taught for the Michigan Judicial

Institute, including teaching other district judges at the

New Judges Seminar in 2007 and 2009. Judge Ronayne

Krause also serves as faculty for the National Council of

Juvenile and Family Court Judges, training other judges

on a national level.

vii

In September 2007, Judge Ronayne Krause was

recognized statewide for her outstanding work with the

State Bar of Michigan’s Champion of Justice Award.

She currently serves her community as a board member

of the Lansing Educational Advancement Foundation

(LEAF), the Uplift Our Youth Foundation, and the

American Red Cross Board of Directors for the Great

Lakes Region. Judge Ronayne Krause was appointed in

2011 by the Speaker of the House and the Senate

Majority Leader to the State Drug Treatment Court

Advisory Committee.

Judge Ronayne Krause and her husband, Kurt E.

Krause, live in Lansing.

viii 291 M

ICH

OURT OF

PPEALS

ASES

PEOPLE v BULGER

Docket No. 288312. Submitted November 9, 2010, at Detroit. Decided

November 30, 2010, at 9:00 a.m.

Michael Bulger pleaded no contest in the Macomb Circuit Court to

one count of operating a motor vehicle while intoxicated and

causing death, MCL 257.625(4)(a), and one count of operating a

motor vehicle while intoxicated, second offense, MCL 257.625(1)

and (9)(b). The court, Mary A. Chrzanowski, J., sentenced defen-

dant to 71 months to 15 years in prison for the conviction of

operating a motor vehicle while intoxicated and causing death and

93 days for the conviction of operating a motor vehicle while

intoxicated, second offense. Defendant appealed by leave granted

the denial of his motion for resentencing, claiming that the court

erred by scoring two points for prior record variable (PRV) 5, MCL

777.55, on the basis of defendant’s prior conviction of operating a

vehicle while a minor with any bodily alcohol content (the “zero-

tolerance” provision), MCL 257.625(6), and noting that the prior

conviction did not require proof that he had been under the

influence of alcohol or was impaired by alcohol as was allegedly

required for scoring PRV 5.

The Court of Appeals held:

1. A “prior conviction” is defined, for purposes of MCL

257.625, as any violation of the subsections of MCL 257.625,

except subsection 2. The Legislature specifically chose to count

prior convictions of violating MCL 257.625(6) as prior convictions

for the purposes of MCL 257.625.

2. The Legislature used the phrase “under the influence of or

impaired by” in MCL 777.55(2)(b) to refer to the drunk-driving

statute, MCL 257.625, as a whole and not to specific crimes that

include the same language as an element. MCL 257.625 provides

clear evidence that the Legislature intended to use prior convic-

tions under MCL 257.625(6) to increase the sentences of repeat

offenders. The trial court correctly calculated PRV 5.

Affirmed.

EOPLE V

ULGER

1. S

ENTENCES —

RUNK

RIVING —

ENTENCE

NHANCEMENTS —

EPEAT

FFEND-

ERS

A prior conviction of operating a motor vehicle while a minor and

with any bodily alcohol content, MCL 257.625(6), may be used to

increase the sentences of a defendant who is a repeat offender

under the drunk-driving statute, MCL 257.625.

2. S

ENTENCES —

RIOR

ECORD

ARIABLE

—

ENTENCE

NHANCEMENTS —

ORDS AND

HRASES —

NDER THE

NFLUENCE OF OR

MPAIRED BY

LCOHOL

The phrase “under the influence of or impaired by” alcohol in the

statute regarding the scoring of prior record variable 5 refers to

the drunk-driving statute, MCL 257.625, as a whole and not to

specific crimes that include the same language as an element; a

prior conviction under MCL 257.625(6) of operating a motor

vehicle while a minor and with any bodily alcohol content may be

used in scoring prior record variable 5 (MCL 777.55).

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, Eric J. Smith, Prosecuting Attorney,

Robert Berlin, Chief Appellate Lawyer, and Joshua D.

Abbott, Assistant Prosecuting Attorney, for the people.

Peralta, Johnston & Karam (by Dennis A. Johnston)

for defendant.

Before: O

WENS

, P.J., and W

HITBECK

and F

ORT

OOD

,JJ.

URIAM.

Defendant, Michael Bulger, pleaded no

contest to one count of operating a motor vehicle while

intoxicated causing death

and one count of operating a

motor vehicle while intoxicated, second offense.

The

trial court sentenced Bulger to 71 months to 15 years in

prison for the conviction of operating a motor vehicle

while intoxicated causing death and 93 days for the

conviction of operating a motor vehicle while intoxi-

cated, second offense, with credit for three days already

served. Bulger now appeals by leave granted. We affirm.

MCL 257.625(4)(a).

MCL 257.625(1) and (9)(b).

2 291 M

ICH

1 [Nov

I. BASIC FACTS

On April 19, 2007, Bulger drove a vehicle on North

Avenue in Macomb Township while under the influence

of alcohol, causing the death of Emilee Floer. On Octo-

ber 30, 2007, Bulger pleaded no contest to the charges

of operating a motor vehicle while intoxicated causing

death and operating while intoxicated, second offense.

The trial court determined, based on Bulger’s prior

record and offense variable scores, that for the convic-

tion of operating while intoxicated causing death, the

sentencing guidelines called for a minimum sentence of

36 to 71 months. In scoring the sentencing guidelines,

the trial court assessed two points under prior record

variable (PRV) 5

for Bulger’s prior conviction of oper-

ating a vehicle as a minor with any bodily alcohol

content (the “zero-tolerance provision”).

The trial

court sentenced Bulger to concurrent terms of 71

months to 15 years in prison for the conviction of

MCL 777.55.

MCL 257.625(6) provides:

A person who is less than 21 years of age, whether licensed or

not, shall not operate a vehicle upon a highway or other place open

to the general public or generally accessible to motor vehicles,

including an area designated for the parking of vehicles, within

this state if the person has any bodily alcohol content. As used in

this subsection, “any bodily alcohol content” means either of the

following:

(a) An alcohol content of 0.02 grams or more but less than 0.08

grams per 100 milliliters of blood, per 210 liters of breath, or per

67 milliliters of urine, or, beginning October 1, 2013, the person

has an alcohol content of 0.02 grams or more but less than 0.10

grams per 100 milliliters of blood, per 210 liters of breath, or per

67 milliliters of urine.

(b) Any presence of alcohol within a person’s body resulting

from the consumption of alcoholic liquor, other than consumption

of alcoholic liquor as a part of a generally recognized religious

service or ceremony.

2010] P

EOPLE V

ULGER

operating while intoxicated causing death and 93 days

for the conviction of operating while intoxicated, second

offense, with a credit of three days for time served.

Bulger moved for resentencing, challenging the trial

court’s scoring of PRV 5. Bulger claimed that PRV 5

should have been scored at zero points, resulting in a

reduced minimum recommendation of 29 to 57 months.

The trial court denied Bulger’s motion. Bulger now

appeals.

II. SENTENCING

A. STANDARD OF REVIEW

Bulger argues that the trial court erred by denying

his motion for resentencing. This Court reviews de novo

the proper interpretation and application of Michigan’s

legislative sentencing guidelines.

B. PRIOR CONVICTION

Bulger argues that his prior conviction of underage

drinking and driving under the zero-tolerance provision

does not constitute the type of prior conviction that may

be counted against him in scoring under the sentencing

guidelines. More specifically, he argues that the prior

offense was not an offense for “operating a vehicle . . .

while under the influence of or impaired by alcohol”

because it merely required proof that there was alcohol

in Bulger’s body, not that he was “under the influence”

or “impaired.”

This is an issue of first impression. We conclude that

the best reading of Michigan’s legislative sentencing

guidelines, in conjunction with MCL 257.625, supports

the prosecution’s argument that the trial court properly

People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).

4 291 M

ICH

1 [Nov

counted Bulger’s prior conviction under the zero-

tolerance provision when determining his sentence

range.

The sentencing-guidelines statute regarding scoring

PRV 5 calls for the trial court to

[c]ount all prior misdemeanor convictions and prior misde-

meanor juvenile adjudications for operating or attempting

to operate a vehicle, vessel, ORV, snowmobile, aircraft, or

locomotive while under the influence of or impaired by

alcohol, a controlled substance, or a combination of alcohol

and a controlled substance. Do not count a prior conviction

used to enhance the sentencing offense to a felony.

[

]

Therefore, the crucial question is whether Bulger’s

conviction of being a minor who operated a vehicle

while having any bodily alcohol content constituted a

misdemeanor for operating a vehicle while “under the

influence” of alcohol or “impaired by” alcohol.

Resolution of the issue requires this Court to inter-

pret MCL 777.55. And, in doing so, we should ascertain

and give effect to the Legislature’s intent.

We should

also reasonably construe the statute, keeping in mind

the purpose of the act.

Further, we must enforce clear

statutory language as written.

However, we bear in

mind that seemingly plain language may be rendered

ambiguous when used in connection with another stat-

ute.

Thus, we should reconcile apparent inconsisten-

cies if possible.

It is true that Bulger’s prior conviction under the

MCL 777.55(2)(b).

People v Giovannini, 271 Mich App 409, 411; 722 NW2d 237 (2006).

Id.

People v Gillis, 474 Mich 105, 115; 712 NW2d 419 (2006).

People v Valentin, 457 Mich 1, 6; 577 NW2d 73 (1998).

Nowell v Titan Ins Co, 466 Mich 478, 483; 648 NW2d 157 (2002);

People v Coffee, 151 Mich App 364, 369; 390 NW2d 721 (1986).

2010] P

EOPLE V

ULGER

zero-tolerance provision did not require proof that he

was actually under the influence of alcohol or was

impaired by alcohol.

Further, the Legislature differen-

tiated the zero-tolerance provision from the crimes of

operating while intoxicated or operating while visibly

impaired by prohibiting a plea of guilty or nolo conten-

dere to a zero-tolerance charge in exchange for drop-

ping either of the more serious charges.

Finally, the

zero-tolerance provision applies when a minor has an

alcohol content of less than 0.08 grams per 100 millili-

ters of blood, whereas operating while intoxicated re-

quires an alcohol content of at least 0.08 grams.

However, when considering whether a prior violation

of the zero-tolerance provision should be treated as a

prior offense, the Legislature chose not to make such

broad distinctions. MCL 257.625(9) requires heavier

fines and increased jail time for offenders with one or

more prior convictions, and multiple prior convictions

raise operating while intoxicated to a felony. For the

purposes of MCL 257.625, a “prior conviction” is de-

fined as any violation of the subsections of MCL

257.625, except subsection (2), the crime of a car

owner’s authorizing a person who is under the influ-

ence of alcohol to drive the owner’s vehicle.

Thus, the

Legislature specifically chose to count prior violations

of the zero-tolerance provision as prior convictions for

the purposes of MCL 257.625. The only limitation is

that multiple violations of the zero-tolerance provision

count as a single prior conviction.

MCL 257.625(6).

MCL 257.625(16).

MCL 257.625(1)(b) and (6)(a).

MCL 257.625(25) (excluding MCL 257.625[2]).

MCL 257.625(26).

6 291 M

ICH

1 [Nov

We can extend the approach in the drunk-driving

statute, MCL 257.625, to the sentencing statute, MCL

777.55, if we read the sentencing statute broadly to

refer to the drunk-driving statute as a whole, rather

than to the specific crimes that require proof of operat-

ing a vehicle “under the influence of or impaired by”

alcohol. Because the drunk-driving statute itself uses

the words in both the broad and narrow senses, apply-

ing the broad sense to the sentencing statute does not

create any new linguistic conflicts. In addition, Bulger’s

argument would lead to the incongruous situation

where a conviction under the zero-tolerance provision

would count as a prior conviction for purposes of raising

a misdemeanor to a felony, but not for purposes of a

sentencing enhancement. It is more likely, therefore,

that the Legislature’s use of “under the influence of or

impaired by” in the sentencing statute refers to the

drunk-driving statute as a whole and not to specific

crimes that include the same language as an element.

The drunk-driving statute provides clear evidence that

the Legislature intended to use prior convictions under

the zero-tolerance provision to increase the sentences of

repeat offenders. Reading the language in the sentenc-

ing statute broadly produces a result in which the

sentencing statute and the drunk-driving statute coex-

ist harmoniously.

Bulger also claims that several of his prior record and

offense variable scores are unconstitutional under

Blakely v Washington.

However, the Michigan Su-

preme Court has held that Blakely does not apply to

Michigan’s indeterminate sentencing system.

There-

fore, his argument on this point is without merit.

Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403

(2004).

People v Drohan, 475 Mich 140, 159; 715 NW2d 778 (2006).

2010] P

EOPLE V

ULGER

The best reading of the sentencing statute

and the

zero-tolerance provision

together reveals that the trial

court properly considered Bulger’s violation of the

zero-tolerance provision in scoring two points for PRV

5. Accordingly, we conclude that the trial court correctly

calculated PRV 5.

We affirm.

MCL 777.55(2)(b).

MCL 257.625(6).

8 291 M

ICH

1 [Nov

In re KLOCEK

Docket No. 292993. Submitted November 4, 2010, at Lansing. Decided

November 30, 2010, at 9:05 a.m.

After Brittaney R. Klocek, a juvenile, admitted by plea to a petition

charging one count of malicious use of a telecommunications device,

that was later dismissed with a warning given to her, Klocek moved

the W ashtenaw Circuit Court to order the destruction of her finger-

prints and arrest card. She asserted that her case was dismissed

without trial and therefore the official holding her fingerprints and

arrest card was required by law to destroy them. The court, Donald E.

Shelton, J., held that because the case had been dismissed, Klocek

was entitled to destruction of the documents. The prosecution ap-

pealed.

The Court of Appeals held:

Under MCL 28.243(8), fingerprints and arrest cards shall be

destroyed if (1) the case involves a juvenile who was adjudicated and

found not to be within the provisions of MCL 712A.2(a)(1) (i.e., those

found not to be within the jurisdiction of the family division of circuit

court), or (2) the accused is found not guilty. The dismissal of

respondent’s case did not constitute a finding of not guilty, and there

was no dispute that respondent was a juvenile found to be within the

jurisdiction of the family division of the court. Respondent was not

entitled to the destruction of her fingerprints and arrest card.

Reversed.

UVENILE

AW —

ISCHARGE AND

ISMISSAL OF

UVENILE

ROCEEDINGS —

INGER-

ECORDS —

RREST

ECORDS

Fingerprints and arrest cards shall be destroyed if (1) the case involves

a juvenile who was adjudicated and found not to be within the

provisions of MCL 712A.2(a)(1) (i.e., those found not to be within the

jurisdiction of the family division of circuit court), or (2) the accused

is found not guilty; the dismissal of a case does not constitute a

finding of not guilty (MCL 28.243[8]).

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, Brian L. Mackie, Prosecuting Attorney,

2010] In re K

LOCEK

and David A. King, Assistant Prosecuting Attorney, for

the people.

Simon & Geherin, PLLC (by Joseph A. Simon,

Daniel T. Geherin, and Carl D. Macpherson), for respon-

dent.

Before: S

AWYER

,P.J., and F

ITZGERALD

and S

AAD

,JJ.

AAD

, J. On June 26, 2009, the trial court issued an

order that directed the Michigan State Police to imme-

diately destroy the fingerprints and arrest card of

respondent.

Petitioner appeals by leave granted and,

for the reasons set forth below, we reverse.

I. FACTS AND PROCEEDINGS

On July 13, 2007, a petition was filed charging

respondent, a juvenile, with one count of malicious use

of a telecommunications device. MCL 750.540e. On

August 15, 2007, the court held an adjudication hear-

ing. The lower court docket sheet indicates that respon-

dent “admitted allegation,” and the court entered an

“order of adjudication.” A dispositional hearing was set

for December 18, 2007, but the docket sheet indicates

that on December 17, the petition was dismissed. An-

other entry for that date says “warned and dismissed,”

which apparently refers to MCL 712A.18(1)(a), which

permits a court to “[w]arn the juvenile” and “dismiss

the petition” in disposing of the case. The order of

adjudication, which is on a standard SCAO form, indi-

cates that respondent was “adjudicated by plea” of

“AAL.” The form does not explain what “AAL” means,

A substitute order was entered on July 8, 2009; respondent repre-

sented that it was submitted because the State Court Administrative

Office (SCAO) had issued a new form for the order.

10 291 M

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9 [Nov

though it does say that “A” indicates “admission.” On

the first page of the order there is a checked box for “A

fingerprintable juvenile offense was committed under

MCL 28.243 or MCL 28.727,” and another checked box

for “Fingerprints have been taken.” On the second page

of the form is a checked box for “Plea taken under

Cobbs agreement.”

On May 1, 2009, respondent moved for destruction of

her fingerprints and arrest card. She filed the motion

using SCAO Form MC 235, which incorporates both the

motion and the order in a single form. The form

contains two choices for the movant: “I was found not

guilty of all offense(s) charged in this case...”and“my

case was dismissed without trial, and the arresting

agency and/or Michigan State Police has not destroyed

the fingerprints and arrest card as required by law.”

Respondent checked the box indicating that her case

was dismissed without trial. At the hearing on the

motion, respondent argued that under MCL 28.243(7),

(8) and (9), which govern the destruction of fingerprints

and arrest cards, destruction is warranted if the peti-

tion is dismissed. Petitioner disagreed and argued that

destruction is not authorized if, as here, there is an

adjudication of guilt, even if it results in a “warn and

dismiss.” The trial court ruled that the case cited by the

parties, McElroy v State Police Info Ctr, 274 Mich App

32; 731 NW2d 138 (2007), is not dispositive and held

that, because the case was “dismissed,” respondent is

entitled to destruction of the documents under the

statute.

II. ANALYSIS

We hold that the trial court erred when it ruled that

respondent is entitled to destruction of her fingerprints

People v Cobbs, 443 Mich 276, 283; 505 NW2d 208 (1993).

2010] In re K

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and arrest card.

The applicable statute, MCL 28.243(8),

provides:

If a juvenile is adjudicated and found not to be within

the provisions of [MCL 712A.2(a)(1)], or if an accused is

found not guilty of an offense for which he or she was

fingerprinted under this section, upon final disposition of

the charge against the accused or juvenile, the fingerprints

and arrest card shall be destroyed by the official holding

those items and the clerk of the court entering the dispo-

sition shall notify the department of any finding of not

guilty or not guilty by reason of insanity, dismissal, or nolle

prosequi, if it appears that the accused was initially finger-

printed under this section, or of any finding that a juvenile

alleged responsible for a juvenile offense is not within the

provisions of [MCL 712A.2(a)(1)].

Thus, the statute provides that fingerprints and arrest

cards shall be destroyed if (1) the case involves a

juvenile who was adjudicated and found not to be

within the provisions of MCL 712A.2(a)(1), or (2) the

accused is found not guilty.

Although McElroy involves factual circumstances

slightly different than those here, this Court rejected

McElroy’s argument, which was essentially the same as

the one made by respondent. In McElroy, the plaintiff

had entered a plea of no contest to domestic violence

charges with an agreement that the charges would be

dismissed pursuant to MCL 769.4a if he successfully

completed probation and a domestic violence program.

McElroy, 274 Mich App at 33-34. Section 769.4a(5)

provided that the discharge and dismissal would be

“without adjudication of guilt.” Id. at 36. The plaintiff

completed the requirements for discharge and dis-

missal, at which point the plea was set aside and the

Resolution of this case turns on the interpretation of MCL 28.243(8).

Review of the trial court’s determination is therefore de novo. People v

Stone, 463 Mich 558, 561; 621 NW2d 702 (2001).

12 291 M

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9 [Nov

case dismissed. Id. at 34. The plaintiff then sought a

writ of mandamus to compel the Michigan State Police

Information Center (“MSPIC”) to surrender his finger-

print card, arrest card, and description. Id. at 35. The

MSPIC argued that the plaintiff was not found “not

guilty,” and that therefore MCL 769.4a(6) required it to

keep a nonpublic record. Id. Retention of the nonpublic

record is required because only one discharge and

dismissal is allowed under MCL 769.4a(6) and the

nonpublic record serves to establish that there has

already been one discharge and dismissal. Id. Constru-

ing only the second statutory requirement in MCL

28.243(8), the McElroy Court held that the statute does

not require destruction of the documents following a

dismissal; it requires destruction only if the defendant

is found not guilty. Id. at 37-39. As noted, MCL

769.4a(5) expressly stated that the discharge and dis-

missal were not an adjudication of guilt.

In this case, the trial court relied on the part of MCL

28.243(8) that provides, “the clerk of the court entering

the disposition shall notify the department of any

finding of not guilty or not guilty by reason of insanity,

dismissal, or nolle prosequi.” (Emphasis added.) In

McElroy, this Court addressed that point:

McElroy’s assertion that subsection 8 provides that a

dismissal is a type of finding of not guilty is essentially a

request that this Court read into the statute an interpre-

tation that is not supported by its plain language, and we

are bound to deny such requests. See People v Spann, 250

Mich App 527, 532; 655 NW2d 251 (2002) (holding that

“[n]othing will be read into a statute that is not within the

manifest intention of the Legislature as gathered from the

act itself”).

______________________________________________________

Though subsection 8 requires the clerk to report a

dismissal to the department, it does not logically follow

that the dismissal must require defendant to destroy the

2010] In re K

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enumerated documents. A plain reading of the statute

compels the conclusion that the only duty imposed by

subsection 8 following a dismissal is the duty for the clerk

to notify the department of the dismissal. [Id., 38.]

______________________________________________________

This Court concluded that “McElroy cannot establish

that he has a clear legal right to have the documents

destroyed” because he “has not shown that the dis-

charge and dismissal was a finding of not guilty under

MCL 28.243(8).” Id. at 36, 38. Pursuant to that ruling,

it was erroneous for the trial court in the present case to

rely on the use of the word “dismissal.”

A similar result obtained in People v Benjamin, 283

Mich App 526; 769 NW2d 748 (2009). In Benjamin, the

three defendants pleaded guilty to possession of less

than 25 grams of cocaine. Id. at 527. Because it was a

first offense, the defendants were allowed to participate

in a diversionary program under MCL 333.7411. Ben-

jamin, 283 Mich App at 527. Subsection (1) of that

statute provides that, after a plea or finding of guilt, the

proceedings may be deferred “without entering a judg-

ment of guilt” while the defendant is placed on proba-

tion. Id. at 530-531. If the probation is successful, the

defendant is discharged and the proceedings are dis-

missed. Id.

Following discharge and dismissal in Benjamin, the

defendants successfully moved for destruction of their

fingerprint and arrest records. Id. at 527. This Court

reversed. Id. It noted that MCL 333.7411(2) requires

retention of a nonpublic record of the arrest and dis-

charge or dismissal for the purpose of alerting authori-

ties that an offender had already taken advantage of

this deferral provision.

Id. at 531. Moreover, given the

Though this Court found the issue moot, it went on to discuss

whether the statute required that the nonpublic record include the

fingerprint and arrest card. Id. at 537. It opined that these records would

14 291 M

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9 [Nov

similarity between this deferral scheme and that at

issue in McElroy, the Court in Benjamin concluded that

McElroy controlled. Id. at 534-535. The Court rejected

the notion that McElroy was distinguishable because

the plea entered was a no contest plea. Id. The Court

observed that the no contest plea was not the basis for

the determination that there was no finding of guilt in

McElroy, but rather the express language of MCL

769.4a(5) controlled because it provides that the dis-

charge and dismissal were not an adjudication of guilt.

Id. Because the pleas of guilty in Benjamin were ren-

dered a nullity by the successful diversion, the Court

ruled there was no finding as to guilt and, coextensively,

no finding of “not guilty.” Id.

Here, there is no finding that respondent was “not

guilty.” To the contrary, respondent admitted her guilt.

Respondent suggests that the subsequent dismissal

nullified this admission. However, even were we to

agree, the dismissal did not constitute a finding of “not

guilty.” Based on the statute, as interpreted by McElroy

and Benjamin, respondent was not entitled to the relief

she requested.

McElroy and Benjamin address only the second cri-

terion for destruction of fingerprint and arrest cards set

forth in MCL 28.243(8), i.e., the defendant is found not

guilty. By the plain language of MCL 28.243(8), there

are two classes of persons who are entitled to destruc-

tion of their fingerprints and arrest card: (1) a juvenile

who “is adjudicated and found not to be within the

provisions of [MCL 712A.2(a)(1)]” (i.e., those found not

have to be kept to insure the accuracy of identification for purposes of

determining whether a defendant had received a previous deferral. Id.

We recognize that certain juvenile dispositions remain public records

while certain adult dispositions do not. However, we are bound by the

language of the statute at issue and it is up to the Legislature to address

whether public policy may warrant a change in the statute.

2010] In re K

LOCEK

to be within the jurisdiction of the family division of

circuit court); and (2) an accused who “is found not

guilty of an offense for which he or she was finger-

printed.” Here, an adjudication hearing was held at

which respondent admitted the allegation against her.

The court entered an “order of adjudication,” which

indicates that she was “adjudicated by plea.” On the

second page of the order is a checked box for “Plea

taken under Cobbs agreement.” Thus, respondent was

neither a juvenile found not to be within the family

court’s jurisdiction nor an accused found not guilty. As

was the case with McElroy, the mere fact that the

proceedings against respondent were later dismissed

does not entitle her to destruction of her fingerprints

and arrest cards.

Reversed.

16 291 M

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SHADE v WRIGHT

Docket No. 296318. Submitted September 9, 2010, at Lansing. Decided

December 2, 2010, at 9:00 a.m.

Plaintiff, Carolyn M. Shade, petitioned the Midland Circuit Court to

modify the order of parenting time incorporated into the parties’

November 29, 2006, judgment of divorce, which had allowed her to

move with the minor child to Ohio, and defendant, Stuart N.

Wright, Jr., filed a motion for change of custody, seeking to modify

the same judgment. The judgment of divorce had incorporated the

parties’ agreement at the time that the child would live with

plaintiff in Ohio and defendant would have parenting time of two

weekends per month, eight weeks in summer, every Christmas

break, and every spring break, with plaintiff responsible for all

transportation at these times. Both parties became dissatisfied

with the arrangement; plaintiff argued a change of circumstances

warranted a change in parenting time and defendant sought sole

physical custody of the child. After a hearing de novo on both

motions, the court, Jonathan E. Lauderbach, J., denied defen-

dant’s motion for change of custody and modified the parenting

time so defendant had visitation one extended weekend per month,

the entire summer vacation except when that conflicted with the

child’s sports schedule, every other spring break, and every

Christmas break as originally provided. The court ordered the

parties to transport the child to exercise their respective parenting

times. Defendant appealed, challenging only the part of the order

modifying parenting time.

The Court of Appeals held:

1. The trial court was not bound by the parenting-time sched-

ule in the judgment of divorce but was authorized to change the

schedule if plaintiff established, by a preponderance of the evi-

dence, that the change was in the child’s best interests. Under

MCL 722.27(1)(c), a court may modify or amend its previous

parenting time order for proper cause shown or because of a

change of circumstances. Although normal life changes are insuf-

ficient grounds to change a minor child’s custodial environment, if

a change in parenting time is not so significant that it results in a

change in the minor child’s custodial environment, then normal

HADE V

RIGHT

life changes may constitute a change of circumstances sufficient to

modify parenting time. The fact that the child had begun high

school and sought to become more involved in social and extracur-

ricular activities—normal life changes insufficient to warrant a

change of custodial environment—constituted a change of circum-

stances sufficient to modify parenting time.

2. A trial court may order a change in parenting time if it finds

the change is in the child’s best interests. Both the statutory best-

interest factors in the Child Custody Act, MCL 722.23, and the

factors listed in the parenting-time statute, MCL 722.27a(6), are

relevant to parenting time decisions, but the court must make

findings on only the contested factors. The court’s statements on

the record were sufficient to establish that it found the change was

in the child’s best interests because it did not significantly alter

the number of defendant’s parenting time days and allowed the

child to participate in social and extracurricular activities, as she

desired. Enabling the change in parenting time by requiring the

parties to transport the child to their respective parenting time

was in the child’s best interests.

Affirmed.

ANSEN

, J., concurred in the result only.

1. P

ARENT AND

HILD —

ARENTING

IME —

HANGES IN

ARENTING

IME —

ROPER

AUSE OR

HANGE OF

IRCUMSTANCES

A court may modify or amend its previous parenting-time order for

proper cause shown or because of a change of circumstances;

although normal life changes are insufficient grounds to change a

minor child’s custodial environment, if a change in parenting time

is not so significant that it results in a change in the minor child’s

custodial environment, then normal life changes may constitute a

change of circumstances sufficient to modify parenting time (MCL

722.27[1][c]).

2. P

ARENT AND

HILD —

ARENTING

IME —

HANGES IN

ARENTING

IME —

EST

NTERESTS OF THE

HILD

A trial court may order a change in parenting time if it finds the

change is in the child’s best interests; both the statutory best-

interest factors in the Child Custody Act and the factors listed in

the parenting-time statute are relevant to parenting-time deci-

sions, but the court must make findings on only the contested

factors (MCL 722.23, MCL 722.27a[6]).

Aleck & Jenkins (by Ghazey H. Aleck, II) for Stuart

N. Wright, Jr.

18 291 M

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17 [Dec

Before: B

ORRELLO

,P.J., and J

ANSEN

and B

ANDSTRA

,JJ.

URIAM

. Defendant, Stuart N. Wright, Jr., appeals

as of right an order granting the motion by plaintiff,

Carolyn Shade, to modify parenting time with the

parties’ minor child.

For the reasons set forth in this

opinion, we affirm.

I. RELEVANT FACTS AND PROCEDURAL HISTORY

The parties were married in December 1993; they

had one child during the marriage. Plaintiff filed for

divorce in September 2005. The parties agreed on a

custody and parenting time arrangement that, in part,

allowed plaintiff to move with the minor child from

Midland, Michigan, to Ohio, and also established a

parenting time schedule. The agreement provided that

plaintiff would be responsible for all transportation of

the child to visitation with defendant as long as the

child’s residence was more than 100 miles from defen-

dant’s residence. The parties’ agreement regarding

custody and parenting time was incorporated into the

judgment of divorce, which was entered on November

29, 2006. The judgment of divorce provided that the

parties would share joint legal and physical custody of

the minor child, that plaintiff was permitted to move,

with the minor child, to Ohio, and that defendant would

have parenting time with the minor child two weekends

per month, with plaintiff providing all transportation

for the minor child to and from defendant’s residence.

The judgment of divorce also contained provisions re-

garding holiday parenting time and provided for eight

weeks of summer parenting time for defendant, with

plaintiff having parenting time every other weekend.

The order also denied defendant’s motion for change of custody, but

defendant does not challenge this part of the order on appeal.

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After the judgment of divorce was issued, however, both

parties became dissatisfied with the custody and parent-

ing time arrangement that they had agreed to and that

had been incorporated into the judgment of divorce. In

May 2008, plaintiff filed a petition to modify the order of

parenting time, arguing that a change of circumstances

warranted the change in parenting time. In December

2008, defendant filed a motion for change of custody, in

which he sought sole physical custody of the child.

The trial court held a de novo hearing to consider the

parties’ competing motions. In an order entered Novem-

ber 30, 2009, the trial court denied defendant’s motion for

change of physical custody of the child, but it modified the

parenting time schedule. Under the new parenting time

schedule, defendant had parenting time with the child one

extended weekend per month, defendant had parenting

time for the entire summer, except during times when the

child’s sports schedule required her to be at plaintiff’s

home, and the parties were to equally share in the

responsibility to transport the child to parenting time. By

granting defendant parenting time for the entire summer,

the trial court was attempting to provide defendant with

the same number of days of parenting time that he should

have been receiving under the parties’ agreement. In

denying defendant’s motion for change of physical custody

and modifying parenting time, the trial court did not, on

the record or in its order, make explicit findings regarding

the existence of proper cause or a change of circumstances

or the best interests of the minor child.

Thereafter, defendant moved for reconsideration, and

the trial court denied the motion. This appeal ensued.

II. STANDARD OF REVIEW

“Orders concerning parenting time must be affirmed

on appeal unless the trial court’s findings were against

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the great weight of the evidence, the court committed a

palpable abuse of discretion, or the court made a clear

legal error on a major issue.” Pickering v Pickering, 268

Mich App 1, 5; 706 NW2d 835 (2005). Under the great

weight of the evidence standard, this Court should not

substitute its judgment on questions of fact unless the

facts clearly preponderate in the opposite direction.

Rittershaus v Rittershaus, 273 Mich App 462, 473; 730

NW2d 262 (2007). In child custody cases, “[a]n abuse of

discretion exists when the trial court’s decision is so

palpably and grossly violative of fact and logic that it

evidences a perversity of will, a defiance of judgment, or

the exercise of passion or bias.” Berger v Berger, 277

Mich App 700, 705; 747 NW2d 336 (2008). Clear legal

error occurs “when the trial court errs in its choice,

interpretation, or application of the existing law.” Shu-

lick v Richards, 273 Mich App 320, 323; 729 NW2d 533

(2006).

III. ANALYSIS

A. LAW OF THE CASE

As a preliminary matter, we first address defendant’s

argument that the trial court was bound by the parent-

ing time schedule in the judgment of divorce based on

the law of the case doctrine. Whether the law of the case

doctrine applies is a question of law that we review de

novo. Ashker v Ford Motor Co, 245 Mich App 9, 13; 627

NW2d 1 (2001). The law of the case doctrine provides

that a question of law decided by an appellate court will

not be decided differently on remand or in a subsequent

appeal in the same case “ ‘where the facts remain

materially the same.’ ” Grievance Administrator v L o-

patin, 462 Mich 235, 259; 612 NW2d 120 (2000), quot-

ing CAF Investment Co v Saginaw Twp, 410 Mich 428,

454; 302 NW2d 164 (1981). According to defendant, the

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court was bound by its implicit determination that the

parenting time agreement reached by the parties was in

the best interests of the minor child.

The law of the case doctrine does not prohibit the

trial court’s modification of parenting time in this case.

First, a determination regarding a child’s best interests

is not a question of law, but a question of fact. Second,

the original determination of parenting time and the

child’s best interests was made by the trial court

(pursuant to the parties’ agreement), not an appellate

court. Third, the facts in this case are not materially the

same because at the time of the original parenting time

order, the minor child was not in high school, and now

she is a freshman in high school, and her social and

extracurricular schedule is much busier. For these rea-

sons, we conclude that the law of the case doctrine does

not apply.

B. PROPER CAUSE OR CHANGE OF CIRCUMSTANCES

Defendant next argues that the trial court erred by

changing parenting time without a showing of proper

cause or a change of circumstances that would warrant

such a change.

The term “ ‘[c]hild-custody determination’ means a

judgment, decree, or other court order providing for

legal custody, physical custody, or parenting time with

respect to a child. Child-custody determination includes

a permanent, temporary, initial, and modification or-

der....” MCL 722.1102(c) (emphasis added). Under

MCL 722.27(1)(c), a trial court may “[m]odify or amend

its previous judgments or orders for proper cause shown

or because of change of circumstances....” See also

Terry v Affum (On Remand), 237 Mich App 522, 534-

535; 603 NW2d 788 (1999) (stating that a showing of

proper cause or change of circumstances is required to

22 291 M

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modify a parenting time order). A modification of such

a judgment or order is only permissible when it is in the

minor child’s best interests. MCL 722.27(1)(c). When a

modification would change the established custodial

environment of a child, the moving party must show by

clear and convincing evidence that it is in the child’s

best interest. Pierron v Pierron, 486 Mich 81, 92; 782

NW2d 480 (2010); MCL 722.27(1)(c). If the proposed

change does not change the custodial environment,

however, the burden is on the parent proposing the

change to establish, by a preponderance of the evidence,

that the change is in the child’s best interests. Pierron,

486 Mich at 93.

In Vodvarka v Grasmeyer, 259 Mich App 499; 512;

675 NW2d 847 (2003), this Court articulated the proper

cause and change of circumstances sufficient to warrant

a change of custody. According to the Vodvarka Court,

“proper cause means one or more appropriate grounds

that have or could have a significant effect on the child’s

life to the extent that a reevaluation of the child’s

custodial situation should be undertaken.” Id. at 511.

Furthermore,

to establish “proper cause” necessary to revisit a custody

order, a movant must prove by a preponderance of the

evidence the existence of an appropriate ground for legal

action to be taken by the trial court. The appropriate

ground(s) should be relevant to at least one of the twelve

statutory best interest factors, and must be of such mag-

nitude to have a significant effect on the child’s well-being.

When a movant has demonstrated such proper cause, the

trial court can then engage in a reevaluation of the statu-

tory best interest factors. [Id. at 512.]

We also in Vodvarka articulated the change of cir-

cumstances sufficient to warrant a change of custody:

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[I]n order to establish a “change of circumstances,” a

movant must prove that, since the entry of the last custody

order, the conditions surrounding custody of the child,

which have or could have a significant effect on the child’s

well-being, have materially changed. Again, not just any

change will suffice, for over time there will always be some

changes in a child’s environment, behavior, and well-being.

Instead, the evidence must demonstrate something more

than the normal life changes (both good and bad) that

occur during the life of a child, and there must be at least

some evidence that the material changes have had or will

almost certainly have an effect on the child. [Id. at 513-

514.]

In her petition to modify parenting time, plaintiff did

not assert that there was proper cause to warrant a

change of parenting time, but she asserted that there

was a “substantial change of circumstances” because

after the judgment of divorce was entered, defendant

began to live with Deann Delisle, who suffered from

depression and chronic pain, and Delisle would care for

and supervise the minor child while defendant was

away for work, sometimes for 12 hours at a time.

According to plaintiff’s petition, Delisle would not allow

the child to use the telephone, eat food in the home or

drink soft drinks, and she accused the minor child of

stealing $100 from her. The petition alleged that the

minor child had expressed a desire to stop parenting

time with defendant until alternative arrangements

could be made for her care and supervision so that she

could avoid extended stays with Delisle. The only other

change of circumstance alleged by plaintiff was that the

current parenting time schedule did not require defen-

dant to contribute to transportation costs, and the cost

of fuel had doubled.

At the de novo hearing, the only testimony offered by

plaintiff was her own. Plaintiff testified that Delisle was

no longer defendant’s girlfriend. Regarding other

24 291 M

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changes of circumstances, plaintiff testified that the

minor child was now in high school and was growing up

and that her school and extracurricular schedules were

changing. According to plaintiff, the parenting time

schedule precluded the minor child from participating

in certain activities. Plaintiff also testified regarding

the price of gasoline.

We find that plaintiff did not present sufficient

evidence to establish a change of circumstances as

defined in Vodvarka. At the hearing, evidence was

presented that Delisle was no longer defendant’s girl-

friend; for obvious reasons, then, defendant’s relation-

ship and residence with Delisle was not a change of

circumstances. Furthermore, the fact that the minor

child was growing up and wanting to participate in

more social and extracurricular activities does not con-

stitute a sufficient change of circumstances under Vod-

varka because such changes are “normal life

changes...that occur during the life of a child” over

time, and these changes are not sufficient under Vod-

varka to constitute a change of circumstances warrant-

ing a change in custody. Id. at 513. In addition, such

changes are not a condition surrounding custody of the

child as required under Vodvarka. Id. Similarly, the

price of gas is also not a condition surrounding custody

of the child. Id.

Concluding that plaintiff’s evidence regarding a

change of circumstances is not sufficient to constitute a

change of circumstances under Vodvarka does not end

the inquiry in this case, however, and we conclude that

the definitions of “proper cause” and “change of cir-

cumstances” from Vodvarka do not control the facts of

this case because this case involves a modification of

parenting time rather than a change in custody. Vod-

varka was a custody case, and this Court’s definitions of

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“proper cause” and “change of circumstances” in Vod-

varka specifically related to “the child’s custodial situa-

tion” and “the conditions surrounding custody of the

child.” Id. at 511, 513. Furthermore, the definitions of

“proper cause” and “change of circumstances” as articu-

lated in Vodvarka are guided by the best interest factors

in MCL 722.23(a) through (l), and do not take into

account the parenting time factors in MCL 722.27a(6)(a)

through (i).

We discern nothing in the Vodvarka opin-

ion that requires the standards used to determine

MCL 722.27a provides, in relevant part:

(6) The court may consider the following factors when deter-

mining the frequency, duration, and type of parenting time to be

granted:

(a) The existence of any special circumstances or needs of the

child.

(b) Whether the child is a nursing child less than 6 months of

age, or less than 1 year of age if the child receives substantial

nutrition through nursing.

during parenting time.

(d) The reasonable likelihood of abuse of a parent resulting

from the exercise of parenting time.

(e) The inconvenience to, and burdensome impact or effect on,

the child of traveling for purposes of parenting time.

(f) Whether a parent can reasonably be expected to exercise

parenting time in accordance with the court order.

(g) Whether a parent has frequently failed to exercise reason-

able parenting time.

(h) The threatened or actual detention of the child with the

intent to retain or conceal the child from the other parent or from

a third person who has legal custody. A custodial parent’s tempo-

rary residence with the child in a domestic violence shelter shall

not be construed as evidence of the custodial parent’s intent to

retain or conceal the child from the other parent.

(i) Any other relevant factors.

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the existence of proper cause or change of circum-

stances for custody determinations to apply to determi-

nations regarding parenting time, absent a conclusion

that a change in parenting time will result in a change

in an established custodial environment. Vodvarka, 259

Mich App at 509. If a change in parenting time results

in a change in the established custodial environment,

then the Vodvarka framework is appropriate. See id. at

509; see also Powery v Wells, 278 Mich App 526, 528;

752 NW2d 47 (2008) (holding that a hearing is required

when a modification of parenting time would change

the established custodial environment). In this case,

however, the trial court’s modification of parenting

time was not so significant that it resulted in a change

in the minor child’s custodial environment.

For rea-

The judgment of divorce provided that defendant would have parent-

ing time with the minor child for two weekends per month and eight

weeks of summer parenting time, with plaintiff having parenting time

every other weekend. Defendant also had parenting time every Christ-

mas break and every spring break. The order modifying defendant’s

parenting time granted defendant parenting time with the minor child

for one extended weekend per month during the school year, and for the

entire summer, unless the child’s sports schedule required her to be in

plaintiff’s home. The trial court granted defendant parenting time for

every Christmas vacation, and ordered the parties to alternate spring

breaks. The trial court stated that by effectively granting defendant

parenting time for the entire summer, it was attempting “to provide him

with the number of days that he should have gotten under the existing

judgment of divorce which has proved unworkable.” The trial court

calculated that under the judgment of divorce, defendant received

approximately 105 to 109 days of parenting time, whereas under the

modified parenting time, defendant received approximately 100 days of

parenting time. However, the trial court’s calculation of the number of

days of defendant’s parenting time under the modified order did not take

into account the fact that defendant was awarded parenting time for the

entire break for every Christmas vacation. Therefore, the evidence shows

that defendant received very close to the same number of parenting time

days under the judgment of divorce and under the modified parenting

time order. Thus, the modified parenting time did not affect the estab-

lished custodial environment.

2010] S

HADE V

RIGHT

PINION OF THE

OURT

sons that will be explained below, we hold that a more

expansive definition of “proper cause” or “change of

circumstances” is appropriate for determinations re-

garding parenting time when a modification in parent-

ing time does not alter the established custodial envi-

ronment.

The Vodvarka definitions of “proper cause” and

“change of circumstances” are inapplicable to this case,

in part, because the rationale for imposing more strin-

gent constructions on the terms “proper cause” and

“change of circumstances” with respect to custody

determinations is far less applicable with respect to

parenting time determinations. With respect to child

custody disputes, “[t]he goal of MCL 722.27 is to

minimize unwarranted and disruptive changes of cus-

tody orders, except under the most compelling circum-

stances.” Corporan v Henton, 282 Mich App 599, 603;

766 NW2d 903 (2009). “Providing a stable environment

for children that is free of unwarranted custody

changes...isaparamount purpose of the Child Cus-

tody Act....”Vodvarka, 259 Mich App at 511. There-

fore, in the context of a child custody dispute, the

purpose of the proper cause or change of circumstances

requirement is “to ‘erect a barrier against removal of a

child from an established custodial environment and to

minimize unwarranted and disruptive changes of cus-

tody orders.’ ” Id. at 509, quoting Heid v AAASulewski

(After Remand), 209 Mich App 587, 593-594; 532 NW2d

205 (1995).

Such concerns do not exist, however, when a modifi-

cation of parenting time does not alter the established

custodial environment because determinations regard-

ing child custody and parenting time serve different

purposes. Whereas the primary concern in child custody

determinations is the stability of the child’s environ-

28 291 M

ICH

17 [Dec

PINION OF THE

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ment and avoidance of unwarranted and disruptive

custody changes, the focus of parenting time is to foster

a strong relationship between the child and the child’s

parents. See MCL 722.27a. To that end,

[p]arenting time shall be granted in accordance with the

best interests of the child. It is presumed to be in the best

interests of a child for the child to have a strong relation-

ship with both of his or her parents. Except as otherwise

provided in this section, parenting time shall be granted to

a parent in a frequency, duration, and type reasonably

calculated to promote a strong relationship between the

child and the parent granted parenting time. [MCL

722.27a(1).]

As noted above, MCL 722.27a(6) articulates factors that

the trial court “may consider...when determining the

frequency, duration, and type of parenting time to be

granted[.]”

The facts of this case present circumstances which,

under Vodvarka, would not, and should not, constitute

a sufficient change of circumstances to warrant a

change of custody. Simply put, the minor child in this

case is growing up; she is a freshman in high school and

her school and extracurricular schedules are changing.

The existing parenting schedule precluded the minor

child from participating in certain activities. These are

the type of normal life changes that occur during a

child’s life and that do not warrant a change in the

child’s custodial environment. Vodvarka, 259 Mich App

at 513. However, in this case, we find that, given the

geographical distance between the parties and the time

necessary to transport the minor child from Ohio to

Michigan to permit defendant to exercise his parenting

time, such changes do constitute proper cause or change

of circumstances sufficient to modify parenting time to

permit the child to engage in social activities and

participate in extracurricular activities, so long as the

2010] S

HADE V

RIGHT

PINION OF THE

OURT

modification in parenting time does not affect the

established custodial environment.

It is notable that the Michigan Parenting Time

Guideline, promulgated by the State Court Administra-

tive Office (SCAO) for use in the state’s friend of the

court offices, recognizes the need for flexibility in

parenting time as a child grows older:

As child(ren) grow, they are involved in different activi-

ties. As their developmental needs change, both parents

need to be flexible with their parenting time schedule and

allow room for adjustment. Because continuity in activities

is important, parents must be willing to alter the parenting

time schedule. [Friend of the Court Bureau, Mich Supreme

Court, Michigan Parenting Time Guideline (Lansing: State

Court Admin Office), p 21.]

The Michigan Parenting Time Guideline also recog-

nizes that a minor child’s age is a factor to consider in

determining parenting time:

The age of a child(ren) is an important factor in deter-

mining the frequency and duration of parenting time.

Earlier in a child(ren)’s development, the child(ren) will

need more frequent contact with each parent, but the

duration of the contact should be shorter. As a child(ren)

becomes older, the contact may become less frequent but of

greater duration. When a child(ren) reaches school age,

school and associated activities along with the age of the

child(ren) will need to be considered. The practical impli-

cations of the developmental stages of a child(ren) may

require that schedules, including joint custody schedules,

be modified. [Id. at 24.]

Thus, the very normal life change factors that Vod-

varka finds insufficient to justify a change in custodial

environment are precisely the types of considerations

that trial courts should take into account in making

determinations regarding modification of parenting

time. Therefore, we hold that, in a case where a

30 291 M

ICH

17 [Dec

PINION OF THE

OURT

modification of parenting time does not alter the estab-

lished custodial environment, the fact that a child has

begun high school and seeks to become more involved in

social and extracurricular activities (normal life

changes that do not constitute a change of circum-

stances under Vodvarka) constitutes a change of cir-

cumstances sufficient to modify parenting time. In this

regard, we note the fact that the parties in this case live

in different states, requiring significant travelling time

for the minor child to accommodate defendant’s exer-

cise of parenting time, is significant.

With our holding

today, we do not seek to precisely define the proper

cause or change of circumstances necessary to change

parenting time. Our holding is limited to our conclusion

that the normal life changes that occurred with the

minor child in this case are sufficient to modify parent-

ing time.

C. BEST INTERESTS

Defendant next argues that the trial court erred in

modifying parenting time without considering whether

the change in parenting time was in the best interests of

the minor child. The child’s best interests govern a

court’s decision regarding parenting time. MCL

722.27a(1); Deal v Deal, 197 Mich App 739, 741; 496

NW2d 403 (1993). Both the statutory best interest

factors in the Child Custody Act, MCL 722.23, and the

factors listed in the parenting time statute, MCL

722.27a(6), are relevant to parenting time decisions.

Custody decisions require findings under all of the best

interest factors, but parenting time decisions may be

In determining parenting time, the court may consider “[t]he incon-

venience to, and burdensome impact or effect on, the child of traveling for

purposes of parenting time.” MCL 722.27a(6)(e).

2010] S

HADE V

RIGHT

PINION OF THE

OURT

made with findings on only the contested issues. Hoff-

man v Hoffman, 119 Mich App 79, 83; 326 NW2d 136

(1982).

In this case, the trial court did not explicitly address

the best interest factors in MCL 722.23, nor did it need

to because this modification of parenting time did not

result in a change of custody. While the trial court did

not explicitly address the factors in MCL 722.27a(6) in

modifying defendant’s parenting time, it was clear from

the trial court’s statements on the record that the trial

court was considering the minor child’s best interests in

modifying defendant’s parenting time. In Powery, 278

Mich App at 530-531, this Court recognized that the

trial court’s failure to explicitly state that modifying the

existing custody order was in the child’s best interests

was not error because “such a finding can easily and

clearly be drawn from the trial court’s written opinion.”

Id. at 530. A finding that the modification in parenting

time was in the child’s best interests in this case can

similarly be drawn from the trial court’s statements on

the record. The trial court chastised the parties on the

record for making an agreement that was not in the

best interests of the minor child. The trial court’s

modification of defendant’s parenting time, which was

minimal and did not significantly alter the number of

defendant’s parenting time days, was in the minor

child’s best interests because it allowed the child to

participate in social activities and extracurricular ac-

tivities in which she desired to participate in high

school. Under these circumstances, we cannot conclude

that the trial court made factual findings against the

great weight of the evidence, committed a palpable

abuse of discretion, or made a clear legal error on a

major issue. Pickering, 268 Mich App at 5. Defendant is

not entitled to relief on this issue.

32 291 M

ICH

17 [Dec

PINION OF THE

OURT

D. MEANINGFUL PARENTING TIME

Defendant finally argues that the modified parenting

time order deprives him of a reasonable opportunity to

parent. In the judgment of divorce, plaintiff was re-

quired to transport the minor child from Ohio to

Michigan so that defendant could exercise his parenting

time with the minor child, but the order modifying

parenting time required each party to transport the

minor child to exercise his or her own parenting time.

According to defendant, requiring him to transport the

minor child would jeopardize his job as a truck driver

because federal motor safety regulations restrict his

driving. Defendant further argues that there was no

evidence presented that three-day weekends existed or

that the parties could transport the minor child on

those days. Defendant has cited little authority to

support his position, and he has failed to adequately

brief the merits of any alleged error; therefore, we

decline to address this issue. Yee v Shiawassee Co Bd of

Comm’rs, 251 Mich App 379, 406; 651 NW2d 756

(2002). To the extent that the issue is preserved, we find

that the trial court’s order modifying parenting time

and requiring the parties to transport the minor child to

exercise their respective parenting time was based on a

sufficient change of circumstances and was in the best

interests of the minor child. Defendant’s arguments in

this regard are without merit.

Affirmed.

ANSEN

,J.(concurring in the result only). I concur in

the result only.

2010] S

HADE V

RIGHT

PINION BY

ANSEN

,J.

CITY OF EAST LANSING v THOMPSON

Docket No. 292239. Submitted October 8, 2010, at Lansing. Decided

December 2, 2010, at 9:05 a.m.

Cassandra L. Thompson pleaded guilty in the 54-B District Court to

a charge of disorderly assembly for riot, a violation of the code of

ordinances of the city of East Lansing. The court, David L. Jordon,

J., sentenced defendant to serve 14 days in jail and to not enter

upon any public community college, public college, or public

university campus for one year. Defendant appealed in the Ingham

Circuit Court, challenging the part of her sentence imposing the

one-year ban. The circuit court, Paula J. M. Manderfield, J.,

entered an order that quashed the part of the sentence regarding

the one-year ban, holding that the statute that provided for the

one-year ban, MCL 769.1g(1)(a)(ii), did not authorize such a ban

for a defendant who was sentenced to incarceration. The city

appealed by leave granted.

The Court of Appeals held:

The plain language of MCL 769.1g(1)(a)(ii) provides that a

court may order an individual not to enter any campus for one year

following the imposition of the sentence or one year following the

completion of any term of incarceration. If the individual was also

sentenced to a term of incarceration, the ban is in addition to the

term of incarceration and does not begin to run until after the

individual has completed the term of incarceration. Interpreting

the statute as authorizing that those sentenced to jail would have

a full year of banishment in addition to their incarceration

advances the legislative purpose of imposing a campus ban on all

who are convicted of any offense related to a riot, incitement to

riot, unlawful assembly, or civil disorder on or within 2,500 feet of

a public community college, college, or university campus, not just

those who avoided incarceration. The order of the circuit court

must be reversed and the district court’s judgment of sentence

must be reinstated.

Circuit court order reversed; district court judgment of sen-

tence reinstated.

34 291 M

ICH

34 [Dec

ENTENCES —

IOTING —

NCITEMENT TO

IOT —

NLAWFUL

SSEMBLY —

IVIL

ISORDER —

UBLIC

OMMUNITY

OLLEGES

AND

NIVERSITIES —

ANISHMENT FROM

AMPUSES

A court, as part of the sentence for a conviction of any offense that

the court determines was directly related to a riot, incitement to

riot, unlawful assembly, or civil disorder on or within 2,500 feet of

a public community college, college, or university campus in

Michigan, may order the defendant not to enter any public

community college, college, or university campus for one year

following the imposition of the sentence or one year following the

completion of any term of incarceration; if the defendant was also

sentenced to a term of incarceration, the ban is in addition to the

term of incarceration and does not begin to run until after the

defendant completes the term of incarceration (MCL

769.1g[1][a][ii]).

McGinty, Hitch, Housefield, Person, Yeadon & Ander-

son, P.C. (by Erin E. Housefield), for the city of East

Lansing.

Before: S

AWYER

,P.J., and F

ITZGERALD

and S

AAD

,JJ.

ITZGERALD

, J. Plaintiff, the city of East Lansing,

appeals by leave granted the circuit court’s order that

quashed the district court’s imposition of a one-year

ban on entering a public college or university campus as

part of defendant’s sentence for riotous behavior. We

reverse the circuit court’s order and affirm and rein-

state the district court’s judgment of sentence.

On August 22, 2008, defendant pleaded guilty in the

district court to a charge of disorderly assembly for riot,

a violation of § 26-52(10) of the disorderly conduct

division of the code of ordinances of the city of East

Lansing. She testified at her plea proceeding that she

was present at a riot at the Cedar Street festival in East

Lansing on April 5, 2008, and remained there with the

intent of advancing the purpose of the riot. Before

taking defendant’s plea, the district court informed her

of the potential punishment, including imprisonment

2010] E

AST

ANSING V

HOMPSON

and, pursuant to MCL 769.1g(1)(a)(ii), being “ordered

not to enter the campus of any institution of higher

learning in the State of Michigan that’s publicly sup-

ported for up to a year.”

Although defendant initially challenged whether

MCL 769.1g applied to this case, she withdrew her

challenge at sentencing. The district court sentenced

defendant to serve 14 days in jail and to observe a

one-year ban from public college, university, and com-

munity college campuses. Because defendant was in the

midst of a semester at Michigan State University at the

time of sentencing, the district court postponed the

start of the one-year ban until after the semester ended.

On appeal in the circuit court, defendant challenged

that part of her sentence banning her from public

college, university, and community college campuses.

The circuit court ruled that the district court abused its

discretion by interpreting the statute as authorizing a

one-year campus ban for a defendant who is incarcer-

ated. Plaintiff sought and was granted leave to appeal in

this Court.

The sole question before this Court is

whether MCL 769.1g(1)(a)(ii) authorizes a one-year

campus ban for a defendant who is incarcerated, or

whether the campus ban is limited to the term of

incarceration.

In interpreting a statute, a court’s goal is to give

effect to the Legislature’s intent. People v Borchard-

Ruhland, 460 Mich 278, 284; 597 NW2d 1 (1999). A

court may not construe a statute unless it is ambiguous;

if the statute is unambiguous, the court will apply it as

written. Id. If a statute is ambiguous, construction is

Defendant also challenged the denial of youthful-trainee status; no

issues regarding that denial are before us in this appeal.

East Lansing v Thompson, unpublished order of the Court of Appeals,

entered October 6, 2009 (Docket No. 292239).

36 291 M

ICH

34 [Dec

permitted, and the rules of statutory construction

“merely serve as guides” toward the ultimate goal of

discerning the intent of the Legislature. Niles Twp v

Berrien Co Bd of Comm’rs, 261 Mich App 308, 313; 683

NW2d 148 (2004). “[A] provision of the law is ambigu-

ous only if it ‘irreconcilably conflict[s]’ with another

provision or when it is equally susceptible to more than

a single meaning.” Lansing Mayor v Pub Serv Comm,

470 Mich 154, 166; 680 NW2d 840 (2004) (citation

omitted).

MCL 769.1g(1)(a)(ii), provides:

As part of the sentence for a conviction for any offense

that the court determines was directly related to a riot,

incitement to riot, unlawful assembly or civil disorder on or

within 2,500 feet of a public community college, public

college, or public university campus in this state, the

following apply:

(a) The court may order the individual not to enter upon

any public community college, public college, or public

university campus in this state as follows:

***

(ii) If the offense is a misdemeanor, for 1 year following

the imposition of sentence or, if the person is ordered

incarcerated for the violation, the completion of the term of

incarceration.

The plain and unambiguous language of the statute

provides that the court “may order the individual not to

enter upon any...campus...for” (1) one year follow-

ing the imposition of sentence or (2) one year following

the completion of any term of incarceration. Thus, if the

person is also sentenced to a term of incarceration, the

ban would be in addition to the term of incarceration

and would not begin to run until after the person had

completed his or her term of incarceration.

2010] E

AST

ANSING V

HOMPSON

The circuit court interpreted the language in MCL

769.1g(1)(a)(ii) to mean that the court may order the

individual not to enter upon any campus for (1) one

year following the imposition of sentence or (2) if the

person is ordered incarcerated for the violation, the

completion of the term of incarceration. Thus, the

circuit court concluded that a defendant who is ordered

incarcerated for the violation is prohibited from enter-

ing upon the campus of any public community college,

public college, or public university in this state only

during the period of incarceration. In other words, the

circuit court concluded that the ban applies only to

those defendants who are not ordered incarcerated for

the violation.

The circuit court’s interpretation does not make

grammatical, or syntactical, sense. “[T]he completion of

the term of incarceration” refers not to a time period,

but to an event, or moment. Likewise, “the imposition

of sentence” is an event. Both references serve the

grammatical purpose of marking when the campus ban

may begin. This Court presumes that the Legislature

knows the rules of grammar. In re Messer Trust, 457

Mich 371, 380; 579 NW2d 73 (1998); Greater Bethesda

Healing Springs Ministry v Evangel Builders & Constr

Managers, LLC, 282 Mich App 410, 414; 766 NW2d 874

(2009).

Even assuming a statutory ambiguity, this Court

must choose the interpretation that “more faithfully

advances the legislative purpose behind the statute.”

People v Adair, 452 Mich 473, 479-480; 550 NW2d 505

(1996). The bill that became MCL 769.1g was intended

to alleviate the problem of campus rioting by “provid-

[ing] a serious punishment—banishment from public

college and university campuses—for people who are

involved in future incidents of rioting ....” House

38 291 M

ICH

34 [Dec

Legislative Analysis, SB 525, November 4, 1999. That

purpose is reflected in the plain language of MCL

769.1g. To read the statute, as the circuit court did, as

authorizing a one-year ban for those not incarcerated,

but allowing effectively no campus ban for those who

are incarcerated (those who presumably commit the

most serious infractions), would hobble, not advance,

the legislative purpose. Rather, reading the statute as

authorizing that those sentenced to jail would have a

full year of banishment in addition to their incarcera-

tion advances the legislative purpose of imposing a

campus ban on all who are convicted of the state crimes,

not just those who avoid incarceration.

The circuit court erred by concluding that MCL

769.1g(1)(a)(ii) does not allow for a one-year campus

ban running from the completion of incarceration. We

reverse the circuit court’s order that quashed that part

of the district court’s judgment of sentence that im-

posed a one-year band on entering a public college or

university campus. The district court’s judgment of

sentence is reinstated in its entirety.

2010] E

AST

ANSING V

HOMPSON

COMERICA BANK v COHEN

Docket No. 293327. Submitted October 12, 2010, at Detroit. Decided

October 21, 2010. Approved for publication December 2, 2010, at

9:10 a.m.

Comerica Bank brought suit in the Oakland Circuit Court, seeking to

enforce a limited loan guaranty against the guarantor, Walter

Cohen. Defendant had signed the guaranty as part of a real estate

loan transaction between plaintiff and the company defendant

managed, 21 Century Arizona Monteil LLC. After plaintiff de-

manded payment on the loan and the borrower failed to pay,

plaintiff sent the borrower notice of default and then filed suit.

The court, Lisa O. Gorcyca, J., granted plaintiff’s motion for

summary disposition, finding the terms of the guaranty were

unambiguous and did not allow defendant’s obligation to be

satisfied by a partial payment from the borrower pursuant to a

prospective sale of the property. The court also found that even if

the property were sold, that would not reduce defendant’s liability

under the guaranty because under its terms defendant would be

released from liability only upon payment in full of his guaranteed

percentage of the loan. Defendant appealed.

The Court of Appeals held:

1. A guaranty of payment is absolute while a guaranty of

collection is conditional and becomes fixed only if the creditor

exercises reasonable diligence in collecting from the principal

debtor. According to the unambiguous terms of the guaranty,

Cohen unconditionally guaranteed payment of 30 percent of the

outstanding indebtedness owed by 21 Century at any time, payable

on demand if the borrower failed to pay the principal or interest on

the loan. The terms also unambiguously stated that plaintiff had

no obligation to perfect its lien on the property or to secure

payment of the indebtedness and that defendant waived any right

to require plaintiff to do so. Even if the property had been sold or

foreclosed, the evidence showed that the money this would gener-

ate would not result in plaintiff recovering more than 100 percent

of the indebtedness after defendant paid in full.

2. In a case in which the guarantor is entitled to notice, a failure

to give notice of the principal’s default does not discharge the

40 291 M

ICH

40 [Dec

guarantor unless the guarantor has actual loss or damages, and

then only the amount of loss or damage is discharged. Defendant

was not relieved of his obligation under the guaranty due to lack of

notice. The unambiguous terms of the guaranty provided that,

other than any notice rights provided by the loan agreement itself,

defendant waived notice of default and notice to accelerate or

demand payment, and the loan agreement contained no provisions

for notice to the guarantor. Even if he were entitled to notice and

was not given notice, he did not claim that he suffered damages

from the lack of notice.

3. Although summary disposition under MCR 2.116(C)(10) is

usually not properly granted until the parties have had a chance

for discovery, it may be appropriate if further discovery does not

stand a reasonable chance of uncovering factual support for the

opposing party’s position. The meaning of the guaranty was clear

on its face and discovery was not needed to discern the parties’

intent. The trial court properly granted summary disposition

without allowing further discovery.

Affirmed.

1. C

ONTRACTS —

UARANTY

ONTRACTS —

UARANTY OF

AYMENT

A guaranty of payment is absolute while a guaranty of collection is

conditional and becomes fixed only if the creditor exercises rea-

sonable diligence in collecting from the principal debtor; when the

unambiguous terms of a guaranty unconditionally guarantee

payment, the creditor has no obligation to the guarantor to

attempt to enforce the loan terms against the borrower.

2. C

ONTRACTS —

UARANTY

ONTRACTS —

OTICE TO

UARANTOR

In a case in which the guarantor is entitled to notice, a failure to give

notice of the principal’s default does not discharge the guarantor

unless the guarantor has actual loss or damages, and then only the

amount of loss or damage is discharged.

Miller, Canfield, Paddock and Stone, P.L.C. (by

Steven A. Roach and Douglas W. Eyre), for plaintiff.

Honigman Miller Schwartz and Cohn LLP (by Mark

A. Stern and Jill M. Przybylski) for defendant.

Before: M

URRAY

,P.J., and K. F. K

ELLY

and D

ONOFRIO

JJ.

2010] C

OMERICA

ANK V

OHEN

URIAM

. Defendant, Walter Cohen, appeals as of

right a judgment entered in favor of plaintiff, Comerica

Bank, in this contract dispute. On appeal, defendant

challenges the circuit court’s order granting plain-

tiff’s motion for summary disposition plaintiff. We

affirm.

I. FACTS

As noted in the preceding paragraph, this is a

contract dispute. On August 1, 2006, plaintiff and 21

Century Arizona Monteil LLC, entered into a loan

agreement. The agreement specified that defendant,

manager of 21 Century, was the guarantor. The agree-

ment further specified that the term “loan” referred to

“an equity loan in the amount of $226,750...andan

acquisition and renovation loan in the amount of

$10,640,000.” The maturity date was February 1, 2009.

Pursuant to ¶ 6.1(a) of the loan agreement, an event

of default is, inter alia:

If a Borrower shall fail to pay the principal of and/or

interest on the Loan or if a Borrower shall fail to pay any

other monetary obligation as provided for in this Agree-

ment or under any other Loan Document, and in any such

case, any such failure shall continue for a period of five (5)

days after written notice thereof shall have been given to

Borrower by Lender.

The notice provision, ¶ 8.3, states:

Any notice, demand, request or other instrument which

may be or is required to be given under this Agreement

shall be given to the parties at their addresses appearing on

the cover page hereof....Acopy of any default notices sent

to Borrower shall also be sent to Borrower’s attorney:

Gregory J. DeMars, Esq.

Honigman Miller Schwartz and Cohn LLP....

42 291 M

ICH

40 [Dec

Also on August 1, 2006, defendant executed a limited

guaranty, which first stated:

As of August 1, 2006 the undersigned...uncondition-

ally and absolutely guarantee(s) to [plaintiff]...payment

when due, whether by stated maturity, demand, accelera-

tion or otherwise, of all existing and future indebtedness to

[plaintiff] of 21 Century... arising under that certain

Floating Non-Revolving Eurodollar Note, in the principal

amount of $10,640,000....

Interest and costs of collection were also included in the

guarantor’s obligation pursuant to ¶ 1. Paragraph 2 of

the limited guaranty specified, “This is a continuing

Guaranty of payment and not of collection and remains

effective whether the Indebtedness is from time to time

reduced and later readvanced or entirely extinguished

and later reincurred.”

In addition, ¶ 7 of the limited guaranty provides,

“The undersigned waive(s) any right to require the

Bank to (a) proceed against Borrower, any property or

collateral... or (c) pursue any other remedy in the

Bank’s power.” Finally, ¶ 13(a) of the limited guaranty

specifies that

[n]otwithstanding anything to the contrary contained

herein, the obligations of the Guarantor hereunder shall be

limited to 30% of the indebtedness outstanding from time

to time under the Note, the Loan Agreement and/or the

Loan Documents and 100% of the indebtedness outstand-

ing from time to time under the Equity Note plus interest

thereon and the cost of collection thereof. Upon payment in

full of its percentage share (as set forth above), Guarantor

shall be released from liability hereunder....

On February 3, 2009, plaintiff filed a complaint

alleging that 21 Century defaulted on the loan.

Plain-

tiff demanded payment in a letter dated December 31,

As noted, the loan’s maturity date was February 1, 2009.

2010] C

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2008; however, defendant and 21 Century failed to pay.

Thus, plaintiff asserted that, pursuant to the guaranty,

defendant was required to pay a portion of 21 Century’s

outstanding indebtedness, which amounted to

$8,379,173.89 in principal and $165,610.67 in interest,

as of January 30, 2009. Plaintiff requested that it be

granted judgment against defendant in the amount of

$2,513,752.19 in principal and $49,683.20 in accrued

interest.

Defendant filed an answer on March 24, 2009, assert-

ing, first, that plaintiff failed to mitigate its alleged

damages by not approving a proposed sale of the prop-

erty. Second, plaintiff failed to give proper notice of

default to defendant’s attorney under the terms of the

loan agreement and note, and therefore, neither 21

Century nor defendant was in default. Third, since

defendant’s guaranty was limited to a portion of the

debt, defendant’s obligation would be satisfied by the

sale and proceeds from a proposed sale of the real estate

collateral.

On April 22, 2009, plaintiff filed a motion for sum-

mary disposition pursuant to MCR 2.116(C)(10). The

trial court held a hearing on plaintiff’s motion on May

27, 2009, and on June 2, 2009, the trial court entered an

opinion and order granting plaintiff’s motion for sum-

mary disposition. The court first stated that the terms

of the guaranty were clear and unambiguous, and

therefore, the court found “no merit in Defendant’s

contention that his obligation under the Guaranty

would be satisfied by partial payment by the Borrower

pursuant to a prospective sale of the Condominium

Project securing the Note.” The court further ruled:

In any case, acceleration of the indebtedness owed

under the Note is not material: the Note matured and was

due and payable in full on February 1, 2009. If Plaintiff

44 291 M

ICH

40 [Dec

receives any amount from a sale of the Condominium

Project, that amount will not reduce the liability owed by

Defendant under the Guaranty. Indeed, the Guaranty is an

independent obligation owed by Defendant to Plaintiff. The

Guaranty provides at ¶ 13(a): “Upon payment in full of its

percentage share... Guarantor shall be released from

liability hereunder.”

Judgment for plaintiff was entered on July 9, 2009, and

this appeal ensued.

II. ANALYSIS

Defendant first argues that the trial court erred in

granting summary disposition to plaintiff because the

court improperly interpreted the limited guaranty at

issue.

Plaintiff brought its motion for summary disposition

pursuant to MCR 2.116(C)(10). “This Court reviews de

novo a trial court’s decision on a motion for summary

disposition.” Allen v Bloomfield Hills Sch Dist, 281

Mich App 49, 52; 760 NW2d 811 (2008). A motion for

summary disposition under MCR 2.116(C)(10) tests the

factual sufficiency of the complaint. Corley v Detroit Bd

of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). This

Court reviews

a motion brought under MCR 2.116(C)(10) by considering

the pleadings, admissions, and other evidence submitted by

the parties in the light most favorable to the nonmoving

party. Summary disposition is appropriate if there is no

genuine issue regarding any material fact and the moving

party is entitled to judgment as a matter of law. [Latham v

Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868

(2008).]

“There is a genuine issue of material fact when

reasonable minds could differ on an issue after viewing

the record in the light most favorable to the nonmoving

2010] C

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party.” Allison v AEW Capital Mgmt, LLP, 481 Mich

419, 425; 751 NW2d 8 (2008). In addition, “[t]he con-

struction and interpretation of a contract present ques-

tions of law that we review de novo.” Saint Clair

Medical, PC v Borgiel, 270 Mich App 260, 264; 715

NW2d 914 (2006).

“Contracts of guaranty are to be construed like other

contracts, and the intent of the parties, as collected

from the whole instrument and the subject-matter to

which it applies, is to govern.” First Nat’l Bank v

Redford Chevrolet Co, 270 Mich 116, 121; 258 NW 221

(1935) (quotation marks and citation omitted). When

interpreting a contract,

if contractual language is clear, construction of the contract

is a question of law for the court. If the contract is subject

to two reasonable interpretations, factual development is

necessary to determine the intent of the parties and

summary disposition is therefore inappropriate. If the

contract, although inartfully worded or clumsily arranged,

fairly admits of but one interpretation, it is not ambiguous.

The language of a contract should be given its ordinary and

plain meaning. [Meagher v Wayne State Univ, 222 Mich

App 700, 721-722; 565 NW2d 401 (1997) (citations omit-

ted).]

In addition,

a contract is to be construed as a whole;...allitsparts are

to be harmonized so far as reasonably possible;...every

word in it is to be given effect, if possible; and...nopart

is to be taken as eliminated or stricken by some other part

unless such a result is fairly inescapable. [Roberts v Titan

Ins Co (On Reconsideration), 282 Mich App 339, 358; 764

NW2d 304 (2009) (quotation marks and citation omitted).]

It should also be noted that

a guaranty contract—like a surety contract—is a special

kind of contract.... The undertaking of a surety is to

46 291 M

ICH

40 [Dec

receive a strict interpretation. The surety has a right to

stand on the very terms of the contract. . . . A surety cannot

be held beyond the precise terms of his agreement. [Bandit

Indus, Inc v Hobbs Int’l, Inc (After Remand), 463 Mich 504,

511-512; 620 NW2d 531 (2001) (quotation marks and

citations omitted).]

Nevertheless,

[t]he main distinction between a contract of suretyship and

of guaranty...isthat while the surety assumes liability as

a regular party to the primary undertaking, the guarantor

does not, as his or her liability depends on an independent

collateral agreement by which he or she undertakes to pay

the obligation if the primary payor fails to do so. [Id.at

507-508 n 4 (emphasis added, quotation marks and citation

omitted).]

Defendant argues that the trial court’s finding—that

defendant does not receive credit for any outside payment

that is made in satisfaction of the indebtedness, and that,

absent defendant’s personal payment of the full 30 per-

cent share, defendant will not be released from the

guaranty—is illogical. According to defendant, the trial

court’s interpretation could be supported only by adding

the bracketed words to the guaranty: “Upon payment in

full of its percentage share (as set forth above) [by guar-

antor], Guarantor shall be released from liability hereun-

der,” and this interpretation violates the basic principle of

contract law that courts are not permitted to rewrite

contracts by adding additional terms. In addition, defen-

dant argues that, pursuant to Chabut v Chabut, 66 Mich

App 440; 239 NW2d 401 (1976), plaintiff was required to

foreclose on the condominium project before collecting on

the guaranty, and furthermore, requiring foreclosure is a

fair construction of the guaranty, as evidenced by the

language of ¶ 13(a). Similarly, according to defendant,

there is nothing in the guaranty that relieves plaintiff of

its legal obligation to mitigate damages.

2010] C

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The plain language of the limited guarantee fore-

closes defendant’s arguments. As noted in part I of this

opinion, the agreement specified that defendant was the

guarantor, and the limited guaranty clearly states the

unconditional obligation undertaken by defendant:

As of August 1, 2006 the undersigned...uncondition-

ally and absolutely gurantee(s) to [plaintiff]... payment

when due, whether by stated maturity, demand, acceleration

or otherwise, of all existing and future indebtedness to

[plaintiff] of 21 Century... arising under that certain

Floating Non-Revolving Eurodollar Note, in the principal

amount of $10,640,000....[Emphasis added.]

Paragraph 2 of the limited guaranty further specified,

“This is a continuing Guaranty of payment and not of

collection ....”Such a guaranty of payment is absolute

under the terms of the contract and settled case law.

Bastian Bros Co v Brown, 293 Mich 242, 248; 291 NW

644 (1940). It is a guaranty of collection, not applicable

here, that “is conditional and becomes fixed only if the

creditor exercises reasonable diligence in collecting

from the principal debtor. Reasonable diligence in cases

of guaranties of collection demands that, unless there

are mitigating circumstances, the creditor prosecute to

judgment and return of execution thereof unsatisfied.”

Id. at 248-249 (citations omitted).

The unconditional nature of defendant’s obligation is

further clarified by ¶¶ 4 and 7 of the guaranty. Para-

graph 4 states in relevant part:

The undersigned agree(s) that no security now or later

held by the Bank for the payment of the Indebtedness,

whether from the Borrower, any guarantor, or otherwise,

and whether in the nature of a security interest, pledge,

lien, assignment, setoff, suretyship, guaranty, indemnity,

insurance or otherwise, shall affect in any manner the

unconditional obligation of the undersigned under this

48 291 M

ICH

40 [Dec

Guaranty. The undersigned acknowledge(s) and agree(s)

that the Bank has no obligation to acquire or perfect any

lien on or security interest in any asset(s), whether realty or

personalty, to secure payment of the Indebtedness, and the

undersigned is (are) not relying upon any asset(s) in which

the Bank has or may have a lien or security interest for

payment of the Indebtedness. [Emphasis added.]

And, pursuant to ¶ 7 of the agreement, defendant

“waive(s) any right to require the Bank to: (a) proceed

against Borrower, any property or collateral . . . or (c)

pursue any other remedy in the Bank’s power.” Finally,

¶ 13(a) of the guaranty details defendant’s specific

obligation:

Notwithstanding anything to the contrary contained

herein, the obligations of the Guarantor hereunder shall be

limited to 30% of the indebtedness outstanding from time to

time under the Note, the Loan Agreement and/or the Loan

Documents and 100% of the indebtedness outstanding

from time to time under the Equity Note plus interest

thereon and the cost of collection thereof. Upon payment in

full of its percentage share (as set forth above), Guarantor

shall be released from liability hereunder ....”[Emphasis

added.]

Thus, by the plain language of the guaranty, defen-

dant unconditionally and absolutely agreed to pay 30

percent of the indebtedness and plaintiff was not re-

quired to foreclose on the real estate or proceed against

other collateral before seeking payment from defen-

dant. Furthermore, even if plaintiff did collect money

through foreclosure, plaintiff would not be required to

offset those funds against the money due from defen-

dant unless the payment by defendant would result in

recovery of more than 100 percent of the indebtedness.

See Jim-Bob, Inc v Mehling, 178 Mich App 71, 92; 443

NW2d 451 (1989) (“[A] plaintiff may simultaneously

2010] C

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pursue all of his remedies...so long as plaintiff is not

awarded double recovery.”) (quotation marks and cita-

tion omitted).

Although defendant relies on Chabut to support his

position that plaintiff was first required to foreclose on

the real estate, Chabut addressed a suretyship, which,

as explained in Bandit Indus, 463 Mich at 507 n 4, is not

the same thing as a contract of guaranty. Therefore,

Chabut’s holding that “a creditor must, in satisfaction

of a debt, proceed against the collateral in such a

fashion so as to protect the rights of an accommodation

endorser” is inapplicable. Chabut, 66 Mich App at 453.

Additionally, applying the holding in Chabut to this case

would cause a conflict with the agreed-upon language in

¶¶ 4 and 7.

Furthermore, while it is true that, “[i]n both contract

and tort actions, an injured party must make every

reasonable effort to minimize damages,” Bak v Citizens

Ins Co, 199 Mich App 730, 736; 503 NW2d 94 (1993), by

defendant’s own admission, the alleged proposed sale of

the real estate

would have garnered slightly less than

Defendant also repeats his argument that plaintiff was required to

foreclose on the real estate by couching it in terms of mitigation of

damages. Defendant cites First Macomb Mtg Co v Schwartz, unpublished

opinion per curiam of the Court of Appeals, issued August 5, 1997

(Docket Nos. 173988 and 176208), for the proposition that plaintiff was

required to mitigate damages. However, “[a]n unpublished opinion is not

precedentially binding under the rule of stare decisis.” MCR 7.215(C)(1).

Furthermore, First Macomb dealt with a situation where the plaintiff

bank “was aware that the property was steadily declining in value

through its inspections of the property yet did not notify [defendant

guarantor] of the destruction and waste of the residence until over a year

after it was known to [the bank].” First Macomb, unpub op at 1. Such a

situation is not present here.

Defendant alleges that plaintiff refused to consider the proposed sale

of the real estate, while plaintiff states, “the sale failed to close because

the prospective purchaser could not obtain financing for the purchase...

and not because of any action or inaction by [plaintiff].”

50 291 M

ICH

40 [Dec

70 percent of the total indebtedness. Therefore, there

would still have been 30 percent of the indebtedness

remaining, which, as has been discussed, happens to

equal the amount that defendant owes under the guar-

anty. Regardless, as stated above, pursuant to the

guaranty defendant’s obligation is an absolute guaranty

of payment and plaintiff was not required to foreclose

on the real estate before proceeding against defendant.

Bastian Bros Co, 293 Mich at 248.

Defendant next argues that the trial court erred in

granting summary disposition when there was no de-

fault under the loan agreement at the time the com-

plaint was filed. Specifically, defendant argues that,

while plaintiff sent 21 Century a notice of default dated

December 31, 2008, it did not send a copy of the notice

of default to the company’s attorney at the time.

Instead, plaintiff sent a copy of the notice to the

attorney on or about April 3, 2009, which was after

plaintiff filed the lawsuit on February 3, 2009. Defen-

dant thus concludes that, when plaintiff filed this

action, there was no payment default under the loan

agreement and no default under the limited guaranty

on which this case is based. Again, defendant’s argu-

ment cannot prevail in light of the contract language.

Pursuant to ¶ 6.1 of the loan agreement, an event of

default is defined as:

(a) If a Borrower shall fail to pay the principal of and/or

interest on the Loan or if a Borrower shall fail to pay any

other monetary obligation as provided for in this Agree-

ment or under any other Loan Document, and in any such

case, any such failure shall continue for a period of five (5)

days after written notice thereof shall have been given to

Borrower by Lender.

***

2010] C

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(l) If a Borrower or any Guarantor shall repudiate,

terminate or revoke...anyobligation to the Lender under

a Loan Document.

According to ¶ 6.2(b), if an event of default occurs,

plaintiff is entitled to “declare the entire outstanding

principal balance of the Loan . . . together with all

interest thereon, to be due and payable immediately.”

Further, ¶ 6.3 states:

[F]rom and after the occurrence of any Event of Default

under this Agreement or any event which automatically

causes the indebtedness outstanding hereunder to become

immediately due and payable, notwithstanding anything to

the contrary in this Agreement, said indebtedness shall

bear interest at the per annum rate of three (3) percentage

points above the otherwise effective interest rate.

Paragraph 8.3, the notice provision of the loan agree-

ment, states:

Any notice, demand, request or other instrument which

may be or is required to be given under this Agreement

shall be given to the parties at their addresses appearing on

the cover page hereof....A copy of any default notices sent

to Borrower shall also be sent to Borrower’s attorney:

Gregory J. DeMars, Esq.

Honigman Miller Schwartz and Cohn LLP.... [Em-

phasis added.]

The corresponding notice provision in the guaranty, ¶ 7,

states, “Except as to any applicable notice...rights set

forth in the Loan Documents, the undersigned waive(s)

notice of... default, notice of intent to accelerate or

demand payment of the Indebtedness....”

First, whether lack of proper notice to 21 Century’s

attorney meant the loan was not actually in default on

December 31, 2008, does not, as plaintiff asserts, affect

52 291 M

ICH

40 [Dec

defendant’s obligation. The loan was due on February 1,

2009, and was not paid. The complaint was filed on

February 3, 2009. As stated in the guaranty, defendant

“unconditionally and absolutely guarantee(s) to [plain-

tiff]...payment when due, whether by stated maturity,

demand, acceleration or otherwise, of all existing and

future indebtedness to [plaintiff] of 21 Century ....”

Therefore, defendant was not relieved of his obligation

under the guaranty and the court did not err in grant-

ing summary disposition to plaintiff because of any

alleged lack of notice. Second, it is, in any event, not at

all clear from the wording of the notice provision that

notice to 21 Century is ineffective simply because the

attorney was not timely copied. Moreover, the loan

agreement does not address notice to the guarantor, and

the guaranty agreement indicates that notice to the

guarantor is otherwise waived. Defendant does not and

cannot dispute that he, personally, received notice of

default. The demand letter, in fact, is addressed to

defendant in his capacity as both manager of 21 Cen-

tury and as guarantor. Defendant signed the return

receipt for the letter on January 5, 2009.

Further, even if defendant, as guarantor, had not

immediately received notice of default, which he clearly

did,

[a] failure to give notice of the principal’s default or

negligence in giving such notice, in a case where the

guarantor is entitled to notice, does not of itself discharge

him from liability and bar a recovery upon the guaranty;

but there must be not only a want of notice within a

reasonable time, but also some actual loss or damage

thereby caused to the guarantor, and if such loss or damage

does not go to the whole amount of the claim, but is only in

part, the guarantor is discharged only pro tanto.[Palmer v

Schrage, 258 Mich 560, 570; 242 NW 751 (1932) (quotation

marks and citation omitted).]

2010] C

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See also Piasecki v Fidelity Corp of Mich, 339 Mich 328,

337; 63 NW2d 671 (1954) (“[T]he guarantor of payment,

not a party to the original note, cannot complain of

laches, or want of notice, unless it has worked to his

prejudice....”) (quotation marks and citation omit-

ted). Defendant has not claimed that he suffered dam-

ages

from an alleged lack of notice, and therefore, his

obligation under the guaranty is not discharged.

Defendant next argues that the trial court erred in

granting summary disposition before the close of dis-

covery. Although a motion brought under MCR

2.116(C)(10) is usually not properly granted until the

parties have had a chance for discovery, “ ‘summary

disposition may . . . be appropriate if further discovery

does not stand a reasonable chance of uncovering

factual support for the opposing party’s position.’ ”

Stringwell v Ann Arbor Pub Sch Dist, 262 Mich App

709, 714; 686 NW2d 825 (2004), quoting Peterson Nov-

elties, Inc v City of Berkley, 259 Mich App 1, 25; 672

NW2d 351 (2003).

We reject defendant’s argument that granting plain-

tiff’s motion was premature. First, regarding defen-

dant’s contention that further discovery would yield

evidence regarding the meaning of the guaranty, “[c]on-

tracts of guaranty are to be construed like other con-

tracts,” First Nat’l Bank, 270 Mich at 121 (quotation

marks and citation omitted), and “[u]nder ordinary

contract principles, if contractual language is clear,

Plaintiff argues that defendant was not injured by any lack of notice

of default prior to the maturity date because the judgment entered in

favor of plaintiff included default interest accrued only after maturity of

the note on February 1, 2009. The judgment provides that defendant

must pay interest accrued through July 7, 2009, in the amount of

$82,179.69. Although we are unable to determine from the record which

interest rate was charged at which time, defendant does not argue on

appeal that the amount of interest was improperly calculated.

54 291 M

ICH

40 [Dec

construction of the contract is a question of law for the

court,” Meagher, 222 Mich App at 721. For all the

reasons stated above, the meaning of the guaranty is

clear and unambiguous, and discovery is not needed to

uncover evidence regarding the parties’ intent. Second,

because mitigation of damages, i.e., a foreclosure pro-

ceeding, was not required pursuant to the unambiguous

terms of the guaranty, discovery was not needed on this

issue, either. Finally, regarding lack of notice, as ex-

plained above, defendant did receive notice, and even if

he did not, he has not claimed that he was prejudiced in

any way by any alleged lack of notice, and therefore, he

is not relieved of his obligation under the guaranty.

Therefore, the trial court did not err in granting plain-

tiff’s motion for summary disposition before the close of

discovery.

Affirmed. Plaintiff may tax costs, having prevailed in

full. MCR 7.219(A).

2010] C

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PEOPLE v LECHLEITNER

Docket No. 293577. Submitted October 7, 2010, at Detroit. Decided

December 7, 2010, at 9:00 a.m.

Matthew R. Lechleitner was convicted following a bench trial in the

Ingham Circuit Court of operating a motor vehicle while under the

influence of alcoholic liquor and causing death, MCL 257.625(4).

The court, William E. Collette, J., sentenced defendant as a

second-offense habitual offender to 43 to 270 months in prison.

Defendant appealed, contending that the court applied an incor-

rect definition of the term “operate” in concluding that defendant

was operating his vehicle at the time in question and erroneously

scored offense variable (OV) 9, MCL 777.39, which concerns the

number of victims.

The Court of Appeals held:

1. The trial court, in concluding that defendant was operating

his vehicle at the relevant time, properly followed People v Wood,

450 Mich 399 (1995), which stated that “operating” must be

defined in terms of the danger that MCL 257.625 seeks to prevent:

the collision of a vehicle being operated by a person under the

influence of intoxicating liquor or a controlled substance with

other persons or property. The Wood court additionally stated that

once a person using a motor vehicle as a motor vehicle has put the

vehicle in motion, or in a position posing a significant risk of

causing a collision, such a person continues to operate it until the

vehicle is returned to a position posing no such risk. MCL

257.625(4) does not require that the defendant’s vehicle be in

motion at the time of the accident, but rather that the victim’s

death be caused by the defendant’s operation of the vehicle while

intoxicated. In this case, defendant was intoxicated, operated his

vehicle, and crashed it, with the result that it sat in the middle of

the freeway at night creating a risk of injury or death to others.

2. The trial court correctly identified a total of four victims for

purposes of scoring OV 9. Those victims were the driver (the

decedent) and the passenger of the vehicle that stopped out of

concern following defendant’s accident and the driver and passen-

56 291 M

ICH

56 [Dec

ger of another vehicle that swerved to avoid plaintiff’s vehicle and

struck the vehicle that had stopped, killing the driver of the

stopped vehicle.

Affirmed.

ILDER

,P.J., concurring, wrote separately in order to decline to

join the majority’s comments concerning the use of dictionaries to

interpret a statute, which fail to fully acknowledge the established

rules concerning the subject.

1. C

RIMINAL

AW —

OTOR

EHICLES —

PERATION OF

OTOR

EHICLES

HILE

NDER THE

NFLUENCE OF

LCOHOLIC

IQUOR OR

ONTROLLED

UB-

STANCES —

ORDS AND

HRASES —

PERATING

The term “operating” in the statute prohibiting operation of a motor

vehicle while under the influence of or visibly impaired by alco-

holic liquor or a controlled substance must be defined in terms of

the danger that the statute seeks to prevent: the collision of a

vehicle being operated by a person under the influence of or visibly

impaired by alcoholic liquor or a controlled substance with other

persons or property; once a person using a motor vehicle as a

motor vehicle has put the vehicle in motion, or in a position posing

a significant risk of causing a collision, such a person continues to

operate it until the vehicle is returned to a position posing no such

risk (MCL 256.625).

2. C

RIMINAL

AW —

OTOR

EHICLES —

PERATION OF

OTOR

EHICLES

HILE

NDER THE

NFLUENCE OF

LCOHOLIC

IQUOR OR

ONTROLLED

UB-

STANCES AND

AUSING

EATH —

OVEMENT OF

EHICLE AT

IME OF

CCIDENT

The statute that provides that a person may be convicted when the

person operates a motor vehicle while under the influence of or

visibly impaired by alcoholic liquor or a controlled substance and

by the operation of the vehicle causes the death of another person

does not require that the defendant’s vehicle be in motion at the

time of the accident causing the death, but rather that the victim’s

death be caused by the defendant’s operation of the vehicle while

intoxicated (MCL 257.625[4]).

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, Stuart J. Dunnings, III, Prosecuting

Attorney, Guy L. Sweet, Appellate Division Chief, and

John J. Murray, Assistant Prosecuting Attorney, for the

people.

2010] P

EOPLE V

ECHLEITNER

State Appellate Defender (by Christopher M. Smith)

for defendant.

Before: W

ILDER

,P.J., and S

ERVITTO

and S

HAPIRO

,JJ.

URIAM

. Defendant appeals as of right his con-

viction of and sentence for operating a motor vehicle

while under the influence of alcoholic liquor and caus-

ing death, MCL 257.625(4). The circuit court sentenced

defendant as a second-offense habitual offender, MCL

769.10, to serve a term of imprisonment of 43 to 270

months. We affirm. This appeal has been decided with-

out oral argument pursuant to MCR 7.214(E).

This case arises from a traffic accident that occurred

during the early morning hours of November 22, 2007.

The parties stipulated that defendant’s blood alcohol

content was 0.12 grams of alcohol per 100 milliliters of

blood.

According to the testimony, during the time his

blood alcohol content exceeded the statutory limit,

defendant drove his truck on a slippery freeway surface

and lost control. The truck struck the right guardrail,

then the left guardrail, and then stopped in the middle

of the freeway, taking up two lanes. Defendant turned

off his headlights and activated his hazard lights, then

opened the door and attempted to propel the truck out

of harm’s way with his leg. Another driver with a

passenger in his vehicle swerved to miss the truck, then

stopped on the shoulder out of concern for the accident.

Then a third car, which also had a driver and a passen-

ger, swerved to avoid defendant’s truck and, in so doing,

struck the vehicle that had stopped on the shoulder,

killing that driver.

This is well over the proscribed limit of “0.08 grams or more per 100

milliliters of blood....”MCL257.625(1)(b).

58 291 M

ICH

56 [Dec

PINION OF THE

OURT

On appeal, defendant argues that the trial court

applied an incorrect definition of “operate” in conclud-

ing that defendant was operating his vehicle at the time

in question and that the court erroneously scored one of

the offense variables under the sentencing guidelines.

Statutory interpretation is a question of law calling

for review de novo. People v Denio, 454 Mich 691, 698;

564 NW2d 13 (1997). However, defendant admits that

this issue is unpreserved. A defendant pressing an

unpreserved claim of error must show a plain error that

affected substantial rights. People v Carines, 460 Mich

750, 763; 597 NW2d 130 (1999). When plain error is

shown, the reviewing court should reverse only when

the defendant is actually innocent or the error seriously

affected the fairness, integrity, or public reputation of

judicial proceedings. Id.

MCL 257.625(4) sets forth penalties for a person who

“operates a motor vehicle” while intoxicated “and by

the operation of that motor vehicle causes the death of

another person ....” MCL 257.35a defines “operate”

and “operating” as “being in actual physical control of a

vehicle....”MCL257.36 defines “operator” as “every

person, other than a chauffeur, who is in actual physical

control of a motor vehicle upon a highway.”

In explaining its views regarding operation and cau-

sation, the trial court stated as follows:

[A] person who places a motor vehicle in motion or in a

position posing a significant risk of causing a collision,

remains responsible for that motor vehicle until such time

as that vehicle is put into some position where it poses no

risk to other drivers. In other words, we cannot simply stop

our car in the middle of the road for whatever reason, in

this case striking the curbs or striking the sides, but we

can’t just stop our car in the middle of the road, stagger off

somewhere, standing somewhere else, and expect our li-

2010] P

EOPLE V

ECHLEITNER

PINION OF THE

OURT

ability for that vehicle to end. People are responsible for

placing that vehicle in a proper environment.

Now, the only exceptions to that would be in situations

where there was a grossly negligent act by another citizen or

some type of emergency occurs.... But basically, ordinary

negligence by other citizens does not cause a person otherwise

responsible for a serious breach of the law to be not liable.

[

]

On appeal, defendant concedes that the trial court

addressed the issue of what constituted operation of a

vehicle so as to comport with our Supreme Court’s

opinion in People v Wood, 450 Mich 399; 538 NW2d 351

(1995). In that case, the Court stated that “operating”

must be defined “in terms of the danger the OUIL

statute [MCL 257.625] seeks to prevent: the collision of

a vehicle being operated by a person under the influence

of intoxicating liquor with other persons or property.”

Id. at 404. Accordingly, “[o]nce a person using a motor

vehicle as a motor vehicle has put the vehicle in motion,

or in a position posing a significant risk of causing a

collision, such a person continues to operate it until the

vehicle is returned to a position posing no such risk.”

Id. at 404-405.

This is consistent with both the language and the

purpose of MCL 257.625(4). The statute provides that a

defendant may be convicted when he or she “operates a

motor vehicle” while intoxicated and “by the operation

of that motor vehicle causes the death of another

person ....”Thestatute does not require that the defen-

dant’s vehicle be in motion at the time of the accident, but

rather that the victim’s death be caused by the defen-

dant’s operation of the vehicle while intoxicated. In this

case, defendant was intoxicated, operated his vehicle, and

crashed it, with the result that it sat in the middle of the

freeway at night creating a risk of injury or death to

others.

This case contains no allegation of intervening gross negligence.

60 291 M

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Defendant disparages the reasoning of Wood as “out-

moded” and suggests instead that we adopt the definition

of “operation” employed in a lay dictionary, i.e. “to cause

to function.” Defendant argues that, because after the

crash his vehicle was no longer capable of functioning,

defendant could not “cause” it to “function” and so, by

definition, defendant could not have operated it. As just

noted, we reject this argument as injecting a temporal

component into the statute that is not present. Moreover,

defendant’s suggestion that we rely preeminently upon a

lay dictionary to determine how to apply a statute ignores

the axiom that the first requirement of statutory inter-

pretation is to determine the intent of the Legislature.

Certainly, a dictionary is one of the arrows in a court’s

quiver regarding statutory interpretation, but it is not the

only one, nor is it necessarily the one that will bring the

interpreting court closest to the Legislature’s target.

Moreover, reliance on a single dictionary definition fails to

take into account the reality that there are many dictio-

naries of the English language while there is only one

Michigan Legislature. We should not confuse the refer-

ence to a particular dictionary definition by the proponent

of a certain result with the demanding task of statutory

interpretation that judges are expected to perform using

the available data and time-tested rules of construction.

Thus, we conclude that Wood remains good law and

that the trial court properly followed it, and we affirm

defendant’s conviction.

Defendant also challenges the scoring of offense

variable (OV) 9, MCL 777.39, which concerns the num-

We also note that, as recently as 2007, our Supreme Court adopted a

broader interpretation of “operate” than defendant suggests when it con-

cluded that “[t]he loading and unloading of passengers is an action within

the ‘operation’ of a shuttle bus.” Martin v Rapid Inter-Urban Partnership,

480 Mich 936 (2007).

2010] P

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ECHLEITNER

PINION OF THE

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ber of victims. “This Court reviews a sentencing court’s

scoring decision to determine whether the trial court

properly exercised its discretion and whether the record

evidence adequately supports a particular score.”

People v McLaughlin, 258 Mich App 635, 671; 672

NW2d 860 (2003). However, to the extent that a scoring

issue calls for statutory interpretation, review is de

novo. Id.

A score of 10 points is prescribed where “[t]here were

2 to 9 victims who were placed in danger of physical

injury or death ....” MCL 777.39(1)(c). In rejecting

defense counsel’s challenge to the assessment of 10

points for this variable at sentencing, the trial court

explained, “the other gentleman who was trying to

assist [defendant] was in a place of danger. And . . . the

people driving the other vehicle that had to swerve

around everything were in a potentially dangerous

situations because of it....”

Defendant relies on People v McGraw, 484 Mich 120;

771 NW2d 655 (2009), to argue that OV 9 should have

been scored at zero points, because only the person who

died had been placed in danger. However, McGraw is

plainly distinguishable. In that case, the sentencing

offense was breaking and entering a general store and

the trial court assessed 10 points for OV 9 on the

ground that, in addition to the owner of the store, there

were two additional victims placed in danger when the

defendant drove from the scene of the offense with two

passengers in his vehicle, was thereafter spotted and

chased by the police, and crashed his car. Id. at 132-133.

Our Supreme Court held that the transactional ap-

proach to scoring OV 9 was not appropriate. Id. at 133.

“OV 9 does not provide for consideration of conduct

after completion of the sentencing offense,” and thus it

62 291 M

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had to be scored in that case “solely on the basis of

defendant’s conduct during the breaking and entering.”

Id. at 133-134.

Using the McGraw approach, we conclude that de-

fendant’s intoxication and the fatal car collision endan-

gered not only the person who died, but also both

occupants of the car that struck that person; obviously,

those three persons faced a serious risk of physical

harm simultaneously. Further, there was also a passen-

ger traveling with the decedent. While he was unin-

jured, he was also placed in danger.

Thus, the trial court correctly identified a total of

four victims, resulting in a score of 10 points under OV

9, because, in addition to the decedent, defendant

created a risk of physical injury to the decedent’s

passenger, the driver of the car that struck the dece-

dent, and the passenger in that car, all in the course of

the sentencing offense.

Affirmed.

ILDER

,P.J. (concurring). I concur in the result

reached by the majority, but decline to join the majori-

ty’s comments concerning the use of dictionaries to

interpret a statute, which fail to fully acknowledge the

well-established rules concerning this subject. See Lib-

erty Hill Housing Corp v City of Livonia, 480 Mich 44,

56 n 11; 746 NW2d 282 (2008).

2010] P

EOPLE V

ECHLEITNER

ONCURRING

PINION BY

ILDER

,P.J.

ATTORNEY GENERAL v BLUE CROSS BLUE SHIELD

OF MICHIGAN

Docket Nos. 290167 and 295750. Submitted October 5, 2010, at Lansing.

Decided December 7, 2010, at 9:05 a.m.

The Attorney General brought an action in the Ingham Circuit Court

against Blue Cross Blue Shield of Michigan (BCBSM), challenging

the legality of certain financial conduct by BCBSM under the

Nonprofit Health Care Corporation R eform Act, MCL 550.1101 et

seq. The challenges concerned a series of financial transactions

undertaken by the Accident Fund Insurance Company of America,

a wholly owned, for-profit Michigan stock insurance subsidiary of

BCBSM, in acquiring three for-profit foreign insurance compa-

nies, and the transfer by BCBSM to the Accident Fund of $125

million, as a capital contribution with no repayment obligation.

BCBSM moved for summary disposition, arguing that the provi-

sions of MCL 550.1207(1)(o) regarding the acquisition of certain

types of foreign insurers by a health-care corporation applied only

to BCBSM, a health-care corporation under the act, but not to the

Accident Fund, which is not a health-care corporation under the

act. BCBSM also argued that it did not violate the act by making

the capital contribution to the Accident Fund. Alternatively,

BCBSM moved to refer the question of the legality of the capital

contribution to the Commissioner of the Office of Financial and

Insurance Regulation (OFIR) for resolution pursuant to the doc-

trine of primary jurisdiction. The court, Paula J. M. Manderfield,

J., granted summary disposition in favor of BCBSM with regard to

the count alleging that the Accident Fund’s acquisition of the

foreign insurers violated MCL 550.1207(1)(o), concluding that the

restrictions set forth in the statute did not directly apply to

transactions undertaken by the Accident Fund, nor did they apply

to actions taken by BCBSM indirectly by and through the Accident

Fund, its subsidiary. The court also dismissed without prejudice

the count concerning the $125 million capital contribution and

referred that matter to the OFIR Commissioner under the doc-

trine of primary jurisdiction. Plaintiff appealed (Docket No.

290167). The OFIR Commissioner then held that the capital

contribution by BCBSM to the Accident Fund did not violate the

64 291 M

ICH

64 [Dec

act. The Attorney General filed a second complaint in the circuit

court against BCBSM and a petition to review the OFIR Commis-

sioner’s order, naming the OFIR and the OFIR Commissioner as

respondents. The court, Paula J. M. Manderfield, J., granted

summary disposition in favor of BCBSM and the respondents’

motion to dismiss, concluding that it lacked jurisdiction to hear the

case as an original action and that the petition for review had not

been timely filed. Plaintiff appealed (Docket No. 295750). The

appeals were consolidated.

The Court of Appeals held:

The trial court correctly determined that MCL 550.1207 did

not preclude the Accident Fund from acquiring the foreign insur-

ance companies. The trial court’s grant of summary disposition

with regard to that issue must be affirmed. The trial court erred by

deferring to the OFIR Commissioner’s interpretation of the act

with regard to the legality of the capital contribution. Therefore,

the dismissal of the count concerning that issue must be reversed,

and the matter must be remanded to the trial court for a hearing

de novo to determine whether the capital contribution violated the

act. The appeal in Docket No. 295750 must be dismissed as moot.

1. The trial court’s dismissal of the count of the original

complaint regarding the capital contribution in the manner and

under the circumstances presented in this matter constituted a

final “disposition” of that claim for purposes of MCR 7.202(6)(a)(i).

2. The trial court correctly concluded that MCL 550.1207(1)(o)

did not apply to the acquisition of the foreign insurers by the

Accident Fund, BCBSM’s wholly owned subsidiary. Nothing in the

statute expressly prohibits any particular activity undertaken by a

health-care corporation’s subsidiary. The transactions about

which plaintiff complains were not undertaken by BCBSM, they

were undertaken by the Accident Fund, to which the restrictions

of the statute are inapplicable. BCB SM did not itself invest in,

purchase, take, receive, subscribe for, acquire, own, hold, vote, or

employ any interest in the foreign insurance companies purchased

by the Accident Fund. Thus, BCBSM did not “otherwise” engage

in any such activity in violation of the statute.

3. The trial court correctly reasoned that reading MCL

550.1207(1)(o) as implicitly preventing the acquisition of workers’

compensation insurers by the Accident Fund would be contrary to

the language of MCL 550.1207(1)(x)(i), which explicitly permits

such acquisitions.

4. The doctrine of primary jurisdiction permitted the trial

court to refer the capital contribution issue to the OFIR Commis-

2010] A

TTORNEY

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BCBSM 65

sioner for an advisory opinion, but the trial court erred by failing

to retain jurisdiction regarding the issue and by failing to make a

determination de novo with regard to the statutory-interpretation

issue.

5. An agency’s interpretation of a statute is not binding on the

courts, and cannot be used to overcome the plain meaning of the

statute. It is the courts, not the OFIR, that have the ultimate

authority over the interpretation of the act, therefore, any statu-

tory interpretation rendered by the OFIR Commissioner in this

case was not binding on the trial court. The trial court erred when

it failed to make an independent interpretation of the statute at

issue with regard to the capital contribution issue.

Affirmed in part, reversed in part, and remanded.

ANDSTRA

, J., concurring in part and dissenting in part, dis-

agreed with the decision to remand to the trial court the issue

regarding the capital contribution to allow the parties an oppor-

tunity to present evidence and fully brief the issue. The issue has

been fully briefed, and no set of facts would justify the contribution

under the clear language of MCL 550.1207(1)(x). By its plain

language, MCL 550.1207(1)(x)(vi) prohibits BCBSM funds from

being used to operate or subsidize in any way the Accident Fund.

BCBSM is prohibited from using its funds to aid the Accident

Fund with a grant or contribution of money, in any manner or

fashion. The $125 million nonrepayable contribution of BCBSM

funds to the Accident Fund meets this definition. The statute

prohibits BCBSM from contributing its funds to the Accident

Fund for any purpose, not merely for the purpose of subsidizing

the Accident Fund’s insurance rates. The “other financial trans-

actions” permitted by the statute are of the type that have direct,

immediate, and concrete mutual economic/financial benefit. A

transfer of $125 million from BCBSM to the Accident Fund,

without any repayment obligation or direct benefit to BCBSM,

regardless of the purpose, does not meet this criteria. Judge

ANDSTRA

would conclude, without remanding the matter, that the

$125 million contribution was impermissible under MCL

550.1207(1)(x).

1. C

ORPORATIONS —

EALTH

-C

ARE

ORPORATIONS —

ONPROFIT

EALTH

ARE

ORPORATION

EFORM

CT —

UBSIDIARIES OF

EALTH

-C

ARE

ORPORA-

TIONS

The restrictions on permissible activities by a health-care corpora-

tion in MCL 550.1207(1)(o) do not expressly prohibit any particu-

lar activity undertaken by a health-care corporation’s subsidiary

that is not a health-care corporation.

66 291 M

ICH

64 [Dec

2. C

OURTS —

DMINISTRATIVE

AW —

OCTRINE OF

RIMARY

URISDICTION

The doctrine of primary jurisdiction is applicable where the issues

presented are of a type that an administrative agency possesses

superior knowledge and expertise over the courts and that involve

a regulatory area unfamiliar to the courts; referral to an agency is

appropriate for preliminary resort for ascertaining and interpret-

ing the circumstances underlying legal issues to thereafter be

decided by the courts; it is the courts, not administrative agencies,

that have ultimate authority over statutory interpretation and any

statutory interpretation rendered by an administrative agency is

not binding on the courts.

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, and Robert Ianni and Michael E.

Moody, Assistant Attorneys General, for the Attorney

General in Docket No. 290167.

Michael A. Cox, Attorney General, and Robert Ianni

and Michael E. Moody, Assistant Attorneys General, for

the Attorney General in Docket No. 295750.

B. Eric Restuccia, Solicitor General, and Michael P.

Farrell, Assistant Attorney General, for the Office of

Financial and Insurance Regulation and the Commis-

sioner of the Office of Financial and Insurance Regula-

tion in Docket No. 295750.

Dickinson Wright PLLC (by Joseph A. Fink, Jeffery V.

Stuckey, and Scott R. Knapp), for Blue Cross Blue

Shield of Michigan.

Amicus Curiae:

Dykema Gossett PLLC (by Lori McAllister, Sandra

M. Cotter, and Shaun M. Johnson) for the Coalition for

a Fair & Competitive Insurance Market.

Before: O’C

ONNELL

,P.J., and B

ANDSTRA

and M

ARKEY

JJ.

2010] A

TTORNEY

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BCBSM 67

O’C

ONNELL

,P.J. In these consolidated appeals,

plaintiff/petitioner (hereafter plaintiff) appeals as of

right the trial court’s orders granting motions for

summary disposition filed by defendant Blue Cross Blue

Shield of Michigan (BCBSM) in actions in which plain-

tiff challenged the legality of certain financial conduct

by BCBSM under the Nonprofit Health Care Corpora-

tion Reform Act, MCL 550.1101 et seq. (the Act). The

appeals present two significant issues: (1) whether

BCBSM violated § 207 of the Act, MCL 550.1207, when

its subsidiary, the Accident Fund Insurance Company of

America (the Accident Fund), purchased three for-

profit insurance companies; and (2) whether Michigan’s

courts defer to the decisions of Michigan’s administra-

tive agencies concerning the interpretation of Michigan

statutes.

Regarding the first issue, the trial court correctly

determined that § 207 of the Act did not preclude the

Accident Fund from acquiring the three insurance

companies. Accordingly, in Docket No. 290167, we af-

firm the trial court’s grant of summary disposition on

count I. Regarding the second issue, the trial court

erred by deferring to an administrative agency’s inter-

pretation of the Act. Accordingly, we reverse the trial

court’s dismissal of count II in Docket No. 290167, and

remand to the trial court for a hearing de novo to

determine whether BCBSM’s $125 million contribution

to the Accident Fund violated the Act. In addition, we

dismiss the appeal in Docket No. 295750 as moot.

BACKGROUND FACTS

As our Supreme Court has explained:

BCBSM is a unique creation. It is a non-profit, tax-

exempt “charitable and benevolent institution”, incorpo-

rated pursuant to special enabling legislation enacted by

68 291 M

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64 [Dec

PINION OF THE

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the Michigan Legislature in 1939, for the purpose of

providing a mechanism for broad health care protection to

the people of the State of Michigan.

***

BCBSM is not an insurance company in the usual sense of

the term. It is a statutory, non-profit corporation which is

regulated within the limits of special enabling legislation by

the Commissioner [of the Office of Financial and Insurance

Regulation (OFIR)] “in order to protect the interests of

subscribers”. Although it does operate according to principles

similar to those of insurance companies, “it is not carried on

as an insurance business for profit * * *, but rather it provides

a method for promoting the public health and welfare in

assisting***persons to budget” health care costs.

Although BCBSM is regulated by the [OFIR] Commis-

sioner, it is not managed by the Commissioner. It has its

own officers and a board of directors to which management

of the corporation is statutorily entrusted. [Blue Cross &

Blue Shield of Mich v Ins Comm’r, 403 Mich 399, 415-418;

270 NW2d 845 (1978) (citations omitted).]

As a statutorily created entity, both the extent of the

power of the commissioner of the OFIR (the OFIR Com-

missioner) to regulate BCBSM and the extent of BCB-

SM’s permissible activities are governed by statute, and

specifically, by the Act. Id. at 424; MCL 550.1101 et seq.

In 1993, the Legislature amended the Act to permit

BCBSM to purchase the state accident fund, a for-profit

workers’ compensation insurer. MCL 550.1207(1)(x).

Thereafter, BCBSM formed the Accident Fund as a

wholly owned, for-profit Michigan stock insurance sub-

sidiary, and, in December 1994, the Accident Fund

purchased the assets and acquired the liabilities of the

state accident fund.

At issue here are a series of financial transactions

undertaken by the Accident Fund to acquire three

2010] A

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foreign insurance companies, as well as a $125 million

contribution to the Accident Fund by BCBSM. In De-

cember 2005, the Accident Fund acquired 100 percent

of the outstanding common shares of workers’ compen-

sation insurer United Wisconsin Insurance Company

(UWI). On August 4, 2007, BCBSM’s board of directors

approved the Accident Fund’s forthcoming acquisition

of CWI Holdings, Inc. (CWI), a Delaware insurance

holding company that itself owns 100 percent of the

shares of CompWest Insurance Company, a California

property and casualty insurance company that provides

workers’ compensation insurance primarily in Califor-

nia, and it also approved a capital contribution from

BCBSM to the Accident Fund “in an amount sufficient

to insure [sic] the collective workers’ compensation

companies are able to maintain an ‘A’ insurance rat-

ing.” Then, on August 31, 2007, the Accident Fund

acquired 100 percent of the outstanding common shares

of Third Coast Insurance Company (Third Coast), an

inactive property and casualty insurance company lo-

cated in Illinois. Finally, in November 2007, BCB SM

transferred $125 million to the Accident Fund, as a

capital contribution with no repayment obligation pur-

suant to the August 4, 2007, authorization of its board

of directors, and the Accident Fund acquired 100 per-

cent of the outstanding shares of CWI.

On July 2, 2008, plaintiff filed a three-count com-

plaint against BCBSM, challenging the permissibility of

the Accident Fund’s acquisition of UWI, CWI, and

Third Coast, as well as of BCBSM’s November 2007

$125 million contribution to the Accident Fund. Only

counts I and II are at issue before this Court.

In count

I, plaintiff alleged that the Accident Fund’s acquisition

Count III, which alleged that BCBSM’s $125 million contribution to

the Accident Fund constituted a breach of the asset purchase agreement

70 291 M

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64 [Dec

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of the three foreign insurers violated MCL

550.1207(1)(o), which provides, as follows:

A health care corporation, subject to any limitation

provided in this act, in any other statute of this state, or in

its articles of incorporation, may do any or all of the

following:

***

(o) Subject to chapter 9 of the insurance code of 1956,

1956 PA 218, MCL 500.901 to 500.947, invest and reinvest

its funds and, for investment purposes only, purchase, take,

receive, subscribe for, or otherwise acquire, own, hold, vote,

employ, sell, lend, lease, exchange, transfer, or otherwise

dispose of, mortgage, pledge, use, and otherwise deal in and

with, bonds and other obligations, shares, or other securi-

ties or interests issued by entities other than domestic,

foreign, or alien insurers, as defined in sections 106 and

110 of the insurance code of 1956, 1956 PA 218, MCL

500.106 and 500.110, whether engaged in a similar or

different business, or governmental or other activity, in-

cluding banking corporations or trust companies. However,

a health care corporation may purchase, take, receive,

subscribe for, or otherwise acquire, own, hold, vote, employ,

sell, lend, lease, exchange, transfer, or otherwise dispose of

bonds or other obligations, shares, or other securities or

interests issued by a domestic, foreign, or alien insurer, so

long as the activity meets all of the following:

(i) Is determined by the attorney general to be lawful

under section 202 [MCL 550.1202].

(ii) Is approved in writing by the commissioner as being

in the best interests of the health care corporation and its

subscribers.

(iii) For an activity that occurred before the effective

date of the amendatory act that added subparagraph (iv),

will not result in the health care corporation owning or

between BCBSM and the state, was dismissed by the trial court, and

plaintiff has not appealed that decision.

2010] A

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controlling 10% or more of the voting securities of the

insurer or will not otherwise result in the health care

corporation having control of the insurer, either before or

after the effective date of the amendatory act that added

subparagraph (iv). As used in this subparagraph and sub-

paragraph (iv), “control” means that term as defined in

section 115 of the insurance code of 1956, 1956 PA 218,

MCL 500.115.

(iv) Subject to section 218 [MCL 550.1218] and begin-

ning on the effective date of the amendatory act that added

this subparagraph, will not result in the health care

corporation owning or controlling part or all of the insurer

unless the transaction satisfies chapter 13 of the insurance

code of 1956, 1956 PA 218, MCL 500.1301 to 500.1379, and

the insurer being acquired is only authorized to sell dis-

ability insurance as defined under section 606 of the

insurance code of 1956, 1956 PA 218, MCL 500.606, or

under a statute or regulation in the insurer’s domiciliary

jurisdiction that is substantially similar to section 606 of

the insurance code of 1956, 1956 PA 218, MCL 500.606.

[Emphasis added.]

Plaintiff alleged that the Accident Fund’s acquisition of

UWI, CWI, and Third Coast violated the general prohi-

bition, in the first sentence of subdivision (o) of

§ 207(1), against the acquisition of any “domestic, for-

eign, or alien insurers....”While the second sentence

of subdivision (o) provides an exception to that prohi-

bition in certain situations, plaintiff further argued that

the Accident Fund’s acquisitions at issue here did not

fall within the exception language.

Plaintiff further

alleged, in count II of plaintiff’s initial complaint, that

While contending that subdivision (o) in its entirety is inapplicable to

the Accident Fund, BCBSM has not disputed plaintiff’s assertion that the

Accident Fund’s purchase of UWI, CWI, and Third Coast would not fall

within the exception language if the subdivision applied. Further, we note

that BCBSM’s purchase of the Accident Fund was specifically allowed by

a statute that excepted that particular acquisition from the prohibition of

MCL 550.1207(1)(o). MCL 550.1207(1)(x).

72 291 M

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64 [Dec

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BCBSM’s November 2007 contribution of $125 million

to the Accident Fund violated the restriction set forth in

MCL 550.1207(1)(x)(vi), which prevents BCBSM from

using its funds to “operate or subsidize in any way” the

Accident Fund.

BCBSM moved in the trial court for summary dispo-

sition of the complaint pursuant to MCR 2.116(C)(8),

asserting that MCL 550.1207(1)(o) applies only to

BCBSM, because it is “a health care corporation” under

the Act, and that the statute does not apply to the

Accident Fund, because it is not such a health-care

corporation.

Further, BCBSM argued that it did not

violate the Act by virtue of its capital contribution to

the Accident Fund. Alternatively, BCBSM moved in the

trial court to dismiss count II and refer it to the OFIR

Commissioner for resolution pursuant to the doctrine of

primary jurisdiction.

The trial court initially denied BCBSM’s motion

regarding count I. On count II, the trial court concluded

that plaintiff had alleged sufficient facts to state a claim

that BCBSM violated the statute by making the $125

The statute provides that a health-care corporation, notwithstanding

the provisions of subdivision (o), may establish, own, and operate a

domestic stock insurance company only for the purpose of acquiring,

owning, and operating the state accident fund, as long as

[h]ealth care corporation and subscriber funds are not used to

operate or subsidize in any way the insurer including the use of

such funds to subsidize contracts for goods and services. This

subparagraph does not prohibit joint undertakings between the

health care corporation and the insurer to take advantage of

economies of scale or arm’s-length loans or other financial trans-

actions between the health care corporation and the insurer. [MCL

550.1207(1)(x)(vi).]

The parties do not contest the fact that BCBSM is a health-care

corporation under the Act and that the Accident Fund is not itself a

health-care corporation under the Act. As discussed below, however, they

are at odds about the legal implications of these facts.

2010] A

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PINION OF THE

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million contribution to the Accident Fund at the time

and in the manner that it did so, but the trial court

dismissed that count without prejudice and referred it

to the OFIR Commissioner under the doctrine of pri-

mary jurisdiction. BCBSM moved for reconsideration of

the trial court’s denial of its motion for summary

disposition of count I of the complaint, and the trial

court granted that motion and, on reconsideration,

dismissed count I of plaintiff’s complaint. On January

13, 2009, the trial court entered an order concluding

that the restrictions set forth in MCL 550.1207(1)(o) do

not directly apply to transactions undertaken by the

Accident Fund, nor do they apply to actions taken by

BCBSM indirectly by and through the Accident Fund,

its subsidiary.

After plaintiff’s appeal of the trial court’s January

13, 2009, order was filed in this Court, the OFIR

Commissioner considered the issues raised by count II

of the complaint and entered his order, concluding that

“BCBSM did not violate Section 207(1)(x)(vi)inits

November 2007 capital contribution to the Accident

Fund.” Plaintiff then filed a second complaint in the

circuit court against BCBSM and a petition to review

the OFIR Commissioner’s order, naming the OFIR and

the OFIR Commissioner as respondents, asking the

court to declare that the OFIR Commissioner’s resolu-

tion of the challenge to BCBSM’s capital contribution

was contrary to the court’s prior interpretation of the

statute, that it was “contrary to [the scope of the trial

court’s] referral [to the OFIR Commissioner] for factual

determinations,” that it was not authorized by law and

was contrary to the plain language of MCL

550.1207(1)(x)(vi), and that it was not supported by any

record or competent evidence. Respondents moved for

summary disposition, asserting that the claim that

BCBSM’s capital contribution violated MCL

74 291 M

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64 [Dec

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550.1207(1)(x)(vi) was within the primary jurisdiction

of the OFIR, that the OFIR Commissioner had adjudi-

cated that claim in BCBSM’s favor, and that plaintiff’s

petition that the trial court review the OFIR Commis-

sioner’s decision was untimely. BCBSM also moved for

dismissal pursuant to MCR 2.116(C)(4), asserting that

the trial court lacked subject-matter jurisdiction be-

cause plaintiff failed to seek judicial review of the OFIR

Commissioner’s decision within 21 days of the entering

of that order. The trial court granted both BCB SM’s

motion for summary disposition and respondents’ mo-

tion to dismiss, concluding that it lacked jurisdiction to

hear the case as an original action and that the petition

for review of the OFIR Commissioner’s decision was not

timely filed.

THE ACCIDENT FUND’S ACQUISITION OF THE INSURERS

Plaintiff first argues, in Docket No. 290167, that the

trial court erred by granting summary disposition of

count I of plaintiff’s initial complaint because, contrary

to the trial court’s conclusion, MCL 550.1207(1)(o)

prohibited the Accident Fund’s acquisition of UWI,

CWI, and Third Coast. We disagree.

As a preliminary matter, BCBSM asserts that this

Court lacks jurisdiction to hear plaintiff’s appeal as of

right in Docket No. 290167 of the trial court’s January

13, 2009, order, because the trial court’s October 6,

2008, order granting in part and denying in part BCB-

SM’s motion for summary disposition dismissed count

II of plaintiff’s complaint without prejudice and re-

ferred that count to the OFIR Commissioner. BCBSM

argues that a dismissal without prejudice is not a final

order under MCR 7.203(A), and therefore, that the trial

court’s disposition of count II in that manner “renders

the collective orders from which this appeal is taken

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non-final, and deprives this Court of jurisdiction to

entertain the appeal of right.” We disagree.

The trial court’s dismissal of count II of the com-

plaint in the manner and under the circumstances

present here, constituted a final “disposition” of that

claim for purposes of MCR 7.202(6)(a)(i). Rooyakker &

Sitz, PLLC v Plante & Moran, PLLC, 276 Mich App

146; 742 NW2d 409 (2007). In Rooyakker, this Court

rejected the argument that an order of summary dispo-

sition that referred certain claims to arbitration did not

constitute a final order, concluding that the order of

summary disposition in that case was a final order

“because there was nothing left for the trial court to

decide and it did not state that it was retaining juris-

diction ....” Id. at 148 n 1. Likewise, in the present

case, there was nothing left for the trial court to decide

regarding count II after its decision to refer the claim to

the OFIR Commissioner, and the trial court did not

state in the October 6, 2008, order dismissing that

count without prejudice that it was retaining jurisdic-

tion of that count. Instead, the trial court specifically

indicated in its January 13, 2009, order granting sum-

mary disposition with regard to count I upon reconsid-

eration that “[t]his decision resolved the last pending

claim and closes this case.” Thus, plainly, the trial court

believed that there was nothing left for it to resolve and

that it had “disposed” of all plaintiff’s claims by its

summary disposition of count I. Therefore, here as in

Rooyakker, there was nothing left for the trial court to

decide, and all claims were finally “disposed” of within

the meaning of MCR 7.202(6)(a)(i).

Turning to the substantive issue presented, we first

observe that this Court reviews de novo both a trial

court’s decision on a motion for summary disposition

and questions of statutory interpretation. City of Taylor

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v Detroit Edison Co, 475 Mich 109, 115; 715 NW2d 28

(2006); Dressel v Ameribank, 468 Mich 557, 561; 664

NW2d 151 (2003). As this Court explained in Smith v

Stolberg, 231 Mich App 256, 258; 586 NW2d 103 (1998):

A motion for summary disposition under MCR

2.116(C)(8) tests the legal sufficiency of a claim by the

pleadings alone. This Court reviews de novo a trial court’s

decision regarding a motion for summary disposition under

MCR 2.116(C)(8) to determine whether the claim is so

clearly unenforceable as a matter of law that no factual

development could establish the claim and justify recovery.

All factual allegations supporting the claim, and any rea-

sonable inference or conclusions that can be drawn from

the facts, are accepted as true. [Citations omitted.]

The trial court determined that plaintiff failed to

state a claim on which relief could be granted pursuant

to MCL 550.1207(1)(o), because that section is inappli-

cable to the Accident Fund’s acquisition, ownership,

and operation of UWI, CWI, and Third Coast. As

previously noted, MCL 550.1207(1)(o) provides, in per-

tinent part:

A health care corporation, subject to any limitation

provided in this act, in any other statute of this state, or in

its articles of incorporation, may do any or all of the

following:

***

(o) Subject to chapter 9 of the insurance code of 1956...

invest and reinvest its funds and, for investment purposes

only, purchase, take, receive, subscribe for, or otherwise

acquire, own, hold, vote, employ, sell, lend, lease, exchange,

transfer, or otherwise dispose of, mortgage, pledge, use, and

otherwise deal in and with, bonds and other obligations,

shares, or other securities or interests issued by entities

other than domestic, foreign, or alien insurers, as defined

in sections 106 and 110 of the insurance code of 1956...

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whether engaged in a similar or different business, or

governmental or other activity, including banking corpora-

tions or trust companies.

This Court’s goal when interpreting a statute is to

discern and give effect to the Legislature’s intent. Neal

v Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004). The

intent of the Legislature is most reliably shown through

the words used in the statute. Id. If the language in the

statute is unambiguous, the Legislature is presumed to

have intended the meaning clearly expressed, and the

statute must be enforced as written. Turner v Auto Club

Ins Ass’n, 448 Mich 22, 27; 528 NW2d 681 (1995). In

such cases, judicial construction is neither required nor

permitted. Nastal v Henderson & Assoc Investigations,

Inc, 471 Mich 712, 720; 691 NW2d 1 (2005), citing Sun

Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d

119 (1999). Effect should be given to every phrase,

clause, and word in the statute, and this Court will

avoid a construction that would render any part of a

statute surplusage or nugatory. Herman v Berrien Co,

481 Mich 352, 366; 750 NW2d 570 (2008). “The statu-

tory language must be read and understood in its

grammatical context, unless it is clear that something

different was intended.” Sun Valley Foods Co v Ward,

460 Mich 230, 237; 596 NW2d 119 (1999). And, this

Court “must consider both the plain meaning of the

critical words or phrases as well as their placement and

purpose in the statutory scheme.” People v Williams,

268 Mich App 416, 425; 707 NW2d 624 (2005). This

Court may “ ‘consult dictionary definitions of terms

that are not defined in a statute.’ ” Woodard v Custer,

476 Mich 545, 561; 719 NW2d 842 (2006), quoting

People v Perkins, 473 Mich 626, 639; 703 NW2d 448

(2005). However, “technical words and phrases, and

such as may have acquired a peculiar and appropriate

meaning in the law, shall be construed and understood

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according to such peculiar and appropriate meaning.”

MCL 8.3a; Woodard, 476 Mich at 561.

There is no dispute that BCBSM, as a “health care

corporation,” was plainly prohibited by MCL

550.1207(1)(o) from directly acquiring UWI, CWI, and

Third Coast. And, there is no allegation that it did so.

The question presented is whether MCL 550.1207(1)(o)

has any application to the acquisition of these insurers

by B CBSM’s wholly owned subsidiary, the Accident

Fund. We agree with the trial court’s conclusion that it

does not.

By its plain language, MCL 550.1207(1) sets forth

permissible activities by a “health care corporation,”

that is, a “nonprofit hospital service corporation, medi-

cal care corporation, or a consolidated hospital service

and medical care corporation incorporated or reincor-

porated under” the Act. MCL 550.1105(2); MCL

550.1207(1). This includes BCBSM; it does not include

the Accident Fund. Therefore, MCL 550.1207(1)(o) has

no direct application to the Accident Fund’s business

activities. It applies here, then, only if it prevents

BCBSM from activity undertaken by its wholly owned

subsidiary. However, nothing in MCL 550.1207(1)(o)

expressly prohibits any particular activity undertaken

by a health-care corporation’s subsidiary. The restric-

tions set forth in MCL 550.1207(1)(o) plainly apply only

to a “health care corporation”; they do not mention or

refer to such a corporation’s affiliates or subsidiaries.

Plaintiff argues that the prohibition against the

Accident Fund’s acquisition of UWI, CWI, and Third

Coast arises from the statute’s prohibition against

BCBSM “otherwise” acquiring, owning, or holding vot-

ing shares or voting securities or interests issued by a

domestic, foreign, or alien insurer. That is, plaintiff

argues that the acquisition of UWI, CWI, and Third

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Coast by the Accident Fund constituted B CB SM

“otherwise” acquiring those insurers within the

meaning of MCL 550.1207(1)(o). Plaintiff points to

language in MCL 550.1207(1)(o)(iii) and (iv), prohib-

iting a health-care corporation from direct or indirect

control of certain types of insurers, as supporting

plaintiff’s assertion. Again, however, we find disposi-

tive the fact that there is simply nothing in the plain

language of the statute to support a conclusion that

MCL 550.1207(1)(o) prohibits activities undertaken

by the Accident Fund. The entirety of MCL

550.1207(1)(o) applies only to “health care corpora-

tions,” and it permits BCB SM to acquire certain

types of foreign insurers under certain circum-

stances. Thus, MCL 550.1207(1)(o) only applies when

BCB SM undertakes a financial transaction meeting

certain criteria. However, the transactions about

which plaintiff complains were not undertaken by

BCB SM; they were undertaken by the Accident Fund,

to which the restrictions of MCL 550.1207(1)(o) are

inapplicable. With respect to plaintiff’s reliance on

the “otherwise” language of the statute, B CBSM did

not itself “invest [in]... purchase, take, receive,

subscribe for,... acquire, own, hold, vote, [or] em-

ploy” any interest whatsoever in the three insurance

companies purchased by the Accident Fund in any

manner whatsoever. Thus, it did not itself “other-

wise” engage in any such activity in violation of the

statute.

Of further note in analyzing plaintiff’s argument

that MCL 550.1207(1)(o)(iii) and (iv) prohibit BCBSM

from indirectly controlling UWI, CWI, and Third Coast

by virtue of the acquisition of those companies by the

Accident Fund, is the 2003 amendment of this section.

Before that amendment, MCL 550.1207(1)(o) read as

follows:

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A health care corporation, subject to any limitation

provided in this act, in any other statute of this state, or in

its articles of incorporation, may do any or all of the

following:

***

(o) Invest and reinvest its funds and, for investment

purposes only, purchase, take, receive, subscribe for, or

otherwise acquire, own, hold, vote, employ, sell, lend, lease,

exchange, transfer, or otherwise dispose of, mortgage,

pledge, use, and otherwise deal in and with, bonds and

other obligations, shares, or other securities or interests

issued by entities other than domestic, foreign, or alien

insurers, as defined in sections 106 and 110 of the insur-

ance code of 1956... whether engaged in a similar or

different business, or governmental or other activity, in-

cluding banking corporations or trust companies. However,

a health care corporation may purchase, take, receive,

subscribe for, or otherwise acquire, own, hold, vote, employ,

sell, lend, lease, exchange, transfer, or otherwise dispose of

bonds or other obligations, shares, or other securities or

interests issued by a domestic, foreign, or alien insurer, so

long as the activity meets all of the following:

(i) Is determined by the attorney general to be lawful

under section 202.

(ii) Is approved in writing by the commissioner as being

in the best interests of the health care corporation and its

subscribers.

(iii) Will not result in the health care corporation

owning or controlling 10% or more of the voting securities

of the insurer. Nothing in this subdivision shall be inter-

preted as expanding the lawful purposes of a health care

corporation under this act. Except where expressly autho-

rized by statute, a health care corporation shall not indi-

rectly engage in any investment activity that it may not

engage in directly. A health care corporation shall not

guarantee or become surety upon a bond or other under-

taking securing the deposit of public money. [Emphasis

added.]

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Effective July 23, 2003, however, subparagraph (iii) was

rewritten, and a new subparagraph (iv) was added. As

quoted earlier in this opinion, the amended subpara-

graph (iii) and the new subparagraph (iv) read as

follows:

(iii) For an activity that occurred before the effective

date of the amendatory act that added subparagraph (iv),

will not result in the health care corporation owning or

controlling 10% or more of the voting securities of the

insurer or will not otherwise result in the health care

corporation having control of the insurer, either before or

after the effective date of the amendatory act that added

subparagraph (iv). As used in this subparagraph and sub-

paragraph (iv), “control” means that term as defined in

section 115 of the insurance code of 1956, 1956 PA 218,

MCL 500.115.

(iv) Subject to section 218 [MCL 550.1218] and begin-

ning on the effective date of the amendatory act that added

this subparagraph, will not result in the health care

corporation owning or controlling part or all of the insurer

unless the transaction satisfies chapter 13 of the insurance

code of 1956, 1956 PA 218, MCL 500.1301 to 500.1379, and

the insurer being acquired is only authorized to sell dis-

ability insurance as defined under section 606 of the

insurance code of 1956, 1956 PA 218, MCL 500.606, or

under a statute or regulation in the insurer’s domiciliary

jurisdiction that is substantially similar to section 606 of

the insurance code of 1956, 1956 PA 218, MCL 500.606.

Thus, the prohibition against “a health care corpora-

tion... indirectly engag[ing] in any investment ac-

tivity that it may not engage in directly” was removed

by the Legislature. It was replaced with a prohibition

against an investment by a health-care corporation

that would result in the corporation owning 10 per-

cent or more of the voting securities of a particular

insurer or “otherwise result[ing] in the health care

corporation having [the prohibited level of] control

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of” that insurer. As amended, then, MCL

550.1207(1)(o)(iii) is violated only when the health-

care corporation undertakes a financial transaction

that results in it having control of the acquired

insurer. Plainly, B CB SM did not itself acquire any

interest in or control of the three insurers at issue.

Thus, the conditions attendant to any such acquisi-

tion, set forth in subparagraphs (i)-(iv), were not

implicated.

Further, as the trial court noted, MCL 550.1207(1)(x)

provides, in relevant part, that BCBSM may

establish, own, and operate a domestic stock insurance

company [the Accident Fund] only for the purpose of

acquiring, owning, and operating the state accident fund

pursuant to chapter 51 of the insurance code of 1956...so

long as all of the following are met:

(i) For insurance products and services the insurer

whether directly or indirectly only transacts worker’s com-

pensation insurance and employer’s liability insurance,

transacts disability insurance limited to replacement of

loss of earnings, and acts as an administrative services

organization for an approved self-insured worker’s com-

pensation plan or a disability insurance plan limited to

replacement of loss of earnings and does not transact any

other type of insurance notwithstanding the authorization

in chapter 51 of the insurance code of 1956... This

subparagraph does not preclude the insurer from providing

either directly or indirectly noninsurance products and

services as otherwise provided by law. [Emphasis added.]

Thus, the Act specifically authorizes the Accident Fund

to indirectly transact certain types of insurance, includ-

ing workers’ compensation insurance, and to indirectly

provide noninsurance products and services as permit-

ted by law. We concur with the trial court’s reasoning

that reading MCL 550.1207(1)(o) as implicitly prevent-

ing the acquisition of workers’ compensation insurers

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by the Accident Fund would be contrary to the language

of MCL 550.1207(1)(x)(i), which explicitly permits such

acquisitions.

THE DOCTRINE OF PRIMARY JURISDICTION

Plaintiff next argues that the trial court erred by

dismissing count II of plaintiff’s initial complaint and

by referring the count to the OFIR Commissioner for a

determination of whether BCBSM had violated the Act.

We agree. The doctrine of primary jurisdiction permit-

ted the trial court to refer the count to the OFIR

Commissioner for an advisory opinion, but the trial

court erred by failing to retain jurisdiction of the count

and by failing to make a determination de novo of the

statutory-interpretation issue.

In a convoluted argument, BCBSM argues that the

doctrine of primary jurisdiction allows an administra-

tive agency to issue a binding interpretation of a stat-

ute. This argument miscomprehends the doctrine. The

applicability of the doctrine of primary jurisdiction

presents a question of law, which this Court reviews de

novo. Psychosocial Serv Assoc, PC v State Farm Mut

Auto Ins Co, 279 Mich App 334, 336; 761 NW2d 716

(2008); Mich Basic Prop Ins Ass’n v Detroit Edison Co,

240 Mich App 524, 528; 618 NW2d 32 (2000). “The

doctrine of primary jurisdiction is grounded in the

principle of separation of powers.... [And it] is con-

cerned with promoting proper relationships between

the courts and administrative agencies charged with

particular regulatory duties.” Travelers Ins Co v Detroit

Edison Co, 465 Mich 185, 196-197; 631 NW2d 733

(2001) (quotation marks and citations omitted). As our

Plaintiff does not allege that the three insurers acquired by the

Accident Fund are engaged in providing insurance other than workers’

compensation insurance in contravention of MCL 550.1207(1)(x)(i).

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Supreme Court explained in Rinaldo’s Constr Corp v

Mich Bell Tel Co, 454 Mich 65, 70-72; 559 NW2d 647

(1997):

Primary jurisdiction “is a concept of judicial deference

and discretion.” LeDuc, Michigan Administrative Law,

§ 10:43, p 70. The doctrine exists as a “recognition of the

need for orderly and sensible coordination of the work of

agencies and of courts.” White Lake Improvement Ass’n v

City of Whitehall, 22 Mich App 262, 282; 177 NW2d 473

(1970). In White Lake, the Court of Appeals correctly noted

that “[t]he doctrine of primary jurisdiction does not pre-

clude civil litigation; it merely suspends court action.” Id.

at 271. Thus, LeDuc notes, “[p]rimary jurisdiction is not a

matter of whether there will be judicial involvement in

resolving issues, but rather of when it will occur and where

the process will start.” Id. at § 10:44, p 73. A court of

general jurisdiction considers the doctrine of primary ju-

risdiction “whenever there is concurrent original subject

matter jurisdiction regarding a disputed issue in both a

court and an administrative agency.” Id. at § 10:43, p 70.

In Attorney General v Diamond Mortgage Co, 414 Mich

603, 613; 327 NW2d 805 (1982), we applied the United

States Supreme Court’s definition of the doctrine from

United States v WesternPRCo, 352 US 59; 77 S Ct 161; 1

L Ed 2d 126 (1956):

“ ‘ “Primary jurisdiction”... applies where a claim is

originally cognizable in the courts and comes into play

whenever enforcement of the claim requires the resolution

of issues which, under a regulatory scheme, have been

placed within the special competence of an administrative

body.’ ”

The Court observed, “No fixed formula exists for applying

the doctrine of primary jurisdiction. In every case the

question is whether the reasons for the existence of the

doctrine are present and whether the purposes it serves

will be aided by its application in the particular litigation.”

Id. at 64.

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Professors Davis and Pierce identify three major pur-

poses that usually govern the analysis when a court is

deciding whether to defer to an administrative agency

under this doctrine. First, a court should consider “the

extent to which the agency’s specialized expertise makes it a

preferable forum for resolving the issue ....” Second, it

should consider “the need for uniform resolution of the

issue....” Third, it should consider “the potential that

judicial resolution of the issue will have an adverse impact

on the agency’s performance of its regulatory responsibili-

ties.” Davis & Pierce, 2 Administrative Law (3d ed), § 14.1,

p 272. Where applicable, courts of general jurisdiction

weigh these considerations and defer to administrative

agencies where the case is more appropriately decided

before the administrative body. [Emphasis added.]

As our Supreme Court has observed in Travelers Ins Co,

the doctrine of primary jurisdiction

“reflects the courts’ recognition that administrative agen-

cies, created by the Legislature, are intended to be reposi-

tories of special competence and expertise uniquely

equipped to examine the facts and develop public policy

within a particular field.” Thus, whether judicial review

will be postponed in favor of the primary jurisdiction of an

administrative agency “necessarily depends upon the

agency rule at issue and the nature of the declaration being

sought in the particular case.”

***

Several reasons have been advanced for invocation of

the primary jurisdiction doctrine. First, the doctrine un-

derscores the notion that administrative agencies possess

specialized and expert knowledge to address issues of a

regulatory nature. Use of an agency’s expertise is necessary

in regulatory matters in which judges and juries have little

familiarity. . . . A second consideration relates to respect

for the separation of powers and the statutory purpose

underlying the creation of the administrative agency, the

powers granted to it by the legislature, and the powers

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withheld. This justification includes the principle that

courts are not to make adverse decisions that threaten the

regulatory authority and integrity of the agency. Third, the

doctrine exists to promote consistent application in resolv-

ing controversies of administrative law. By application of

the doctrine,

“[u]niformity and consistency in the regulation of business

entrusted to a particular agency are secured, and the

limited functions of review by the judiciary are more

rationally exercised, by preliminary resort for ascertaining

and interpreting the circumstances underlying legal issues

to agencies that are better equipped than courts by special-

ization, by insight gained through experience, and by more

flexible procedure.”

In [Attorney General v] Diamond Mtg Co [414 Mich 603,

612-613; 327 NW2d 805 (1982)], this Court explained its

adoption of these justifications for primary jurisdiction.

“In cases raising issues of fact not within the conven-

tional experience of judges or cases requiring the exercise of

administrative discretion, agencies created by Congress for

regulating the subject matter should not be passed over.

This is so even though the facts after they have been

appraised by specialized competence serve as a premise for

legal consequences to be judicially defined.”

Thus, this Court recognized application of the primary

jurisdiction doctrine to all cases in which it was deemed

that an administrative agency possessed superior knowl-

edge and expertise in addressing recurring issues within

the scope of their authority. [Travelers Ins Co, 465 Mich at

198-200 (emphasis added; citations omitted).]

The doctrine of primary jurisdiction is applicable

where the issues presented are of a type that an

administrative agency possesses superior knowledge

and expertise over the courts and that involve a regu-

latory area unfamiliar to the courts. Consequently,

referral to an agency is appropriate for “ ‘preliminary

resort for ascertaining and interpreting the circum-

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stances underlying legal issues,’ ” to thereafter be de-

cided by the courts. Id. at 199 (emphasis added; citation

omitted).

As a threshold issue, before invoking the doctrine of

primary jurisdiction, a court must find that the admin-

istrative agency to which referral is sought has concur-

rent original jurisdiction over the issues raised. Here,

the trial court did not specifically determine that the

OFIR had concurrent original jurisdiction over the

question whether the $125 million capital contribution

was an impermissible subsidy under MCL

550.1207(1)(x). Nonetheless, the implication of the trial

court’s referral is necessarily that the OFIR has such

jurisdiction.

BCBSM acknowledges that “[r]esolution of the issues

raised in Count II was and is dependent upon the

proper construction of MCL 550.1207(1)(x)(vi)” and

notes that in In re Complaint of Rovas Against SBC

Mich, 482 Mich 90, 103; 754 NW2d 259 (2008), our

Supreme Court held that courts should give “ ‘respect-

ful consideration’ ” to the construction of a statute by

an administrative agency charged with administering

the statute and should not overturn the agency’s inter-

pretation without “ ‘cogent reasons.’ ” BCBSM then

concludes that, “[g]iven the Commissioner’s extensive

experience in regulating the insurance and health care

industries, and financial transactions between affiliated

entities, the trial court properly gave to the Commis-

sioner the initial opportunity to interpret Section 207,

and this Court, respectfully, should not disturb that

decision.” However, BCBSM overstates the degree of

consideration that is appropriately afforded to the

OFIR Commissioner’s determination on a question of

statutory interpretation.

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At issue in In re Complaint of Rovas, was whether

SBC Michigan (SBC) violated § 502(1)(a) of the Michi-

gan Telecommunications Act, MCL 484.2502(1)(a), by

sending customers an erroneous bill. The customers

filed a complaint with the Public Service Commission

(PSC), which agreed with the customers that the erro-

neous bill constituted a violation. This Court had reluc-

tantly affirmed, despite “reservations,” concluding that

the agency’s interpretation of the statute was “plau-

sible.” In re Complaint of Rovas, 482 Mich at 93-94. Our

Supreme Court reversed. It first noted:

This case implicates the powers, and the boundaries of

the powers, of all three branches: the Legislature, the

judiciary, and administrative agencies, which are part of

the executive branch. Thus, separation of powers principles

will aid in the analysis of the proper consideration due an

administrative agency’s interpretation of a statute.

The people of the state of Michigan have divided the

powers of their government “into three branches: legisla-

tive, executive and judicial.” Furthermore, “[n]o person

exercising the powers of one branch shall exercise powers

properly belonging to another branch except as expressly

provided in this constitution.”

“The legislative power of the State of Michigan is vested

in a senate and a house of representatives.” Simply put,

legislative power is the power to make laws. In accordance

with the constitution’s separation of powers, this Court

“cannot revise, amend, deconstruct, or ignore [the Legisla-

ture’s] product and still be true to our responsibilities that

give our branch only the judicial power.” While adminis-

trative agencies have what have been described as “quasi-

legislative” powers, such as rulemaking authority, these

agencies cannot exercise legislative power by creating law

or changing the laws enacted by the Legislature.

Since the time of Marbury v Madison [5 US (1 Cranch)

137;2LEd60(1803)], interpreting the law has been one of

the defining aspects of judicial power. “Although we may

not usurp the lawmaking function of the legislature, the

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proper construction of a statute is a judicial function, and

we are required to discover the legislative intent.” Admin-

istrative agencies exercise what have been described as

“quasi-judicial” powers. However, such power is limited

and is not an exercise of constitutional “judicial power.”

The primary “judicial” function exercised by administra-

tive agencies is confined to conducting contested cases, like

the one at issue here. These administrative contested cases

resemble trials. Constitutionally and statutorily, these ad-

ministrative fact-finding exercises are entitled to a degree

of deference defined by statute and our constitution. How-

ever, fact-finding in an administrative contested case,

much like in a trial before a circuit court, is a far different

endeavor than construing a statute. [Id. at 97-99.]

With these principles in mind, the Court explained the

standard of review afforded by the courts to an agency’s

interpretation of a statute as follows:

[T]he Michigan Constitution specifically recognizes ad-

ministrative agencies. Furthermore, the constitution ex-

plicitly provides for judicial review of administrative deci-

sions...todetermine: (1) that the decision is authorized

by law, and (2) if a hearing is required, that the decision is

supported by record evidence. However, the provision does

not stand for the proposition that agencies can assume this

Court’s constitutional role as the final arbiter of the mean-

ing of a statute.

***

...ThisCourt has uniformly held that statutory inter-

pretation is a question of law that this Court reviews de

novo. Thus, concepts such as “abuse of discretion” or “clear

error,” which are similar to the standards of review appli-

cable to other agency functions, simply do not apply to a

court’s review of an agency’s construction of a statute.

. . . While there are some opinions that seem to stand for

the proposition that agency statutory interpretations are

reviewed for “reasonableness” or an “abuse of discretion,”

those standards do not apply to the interpretation of a

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statute, and they threaten the separation of powers prin-

ciples discussed earlier by allowing the agency to usurp the

judiciary’s constitutional authority to construe the law and

infringe on the Legislature’s lawmaking authority.

***

This Court announced the proper standard of review for

agency statutory construction more than 70 years ago in

Boyer-Campbell v Fry [271 Mich 282, 296-297; 260 NW 165

(1935)], which dealt with the proper construction of the

General Sales Tax Act. The Boyer-Campbell Court held

that

“the construction given to a statute by those charged with

the duty of executing it is always entitled to the most

respectful consideration and ought not to be overruled

without cogent reasons. However, these are not binding on

the courts, and [w]hile not controlling, the practical con-

struction given to doubtful or obscure laws in their admin-

istration by public officers and departments with a duty to

perform under them is taken note of by the courts as an

aiding element to be given weight in construing such laws

and is sometimes deferred to when not in conflict with the

indicated spirit and purpose of the legislature.”

This standard requires “respectful consideration” and “co-

gent reasons” for overruling an agency’s interpretation.

Furthermore, when the law is “doubtful or obscure,” the

agency’s interpretation is an aid for discerning the Legis-

lature’s intent. However, the agency’s interpretation is not

binding on the courts, and it cannot conflict with the

Legislature’s intent as expressed in the language of the

statute at issue. [Id. at 99-103 (emphasis added; citations

and quotation marks omitted).]

In sum, then, contrary to BCBSM’s assertion, “ ‘[r]e-

spectful consideration’ is not equivalent to any norma-

tive understanding of ‘deference’ as the latter term is

commonly used in appellate decisions,” and “ ‘the agen-

cy’s interpretation is not binding on this Court, and

cannot be used to overcome the statute’s plain mean-

2010] A

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ing.’ ” Id. at 105, 108 (citation omitted). It is the courts,

not the OFIR, that have the ultimate authority over the

statutory interpretation of the Act, and any statutory

interpretation rendered by the OFIR Commissioner in

this case is not binding on the court.

Therefore, the trial court erred when it failed to

make an independent interpretation of the statute at

issue in count II. Count II is remanded to the trial

court; we direct the trial court to make an independent,

de novo interpretation of the statute. The court must

allow the parties an opportunity to present evidence

and to fully brief the issue. The court may also invite

and allow any appropriate entities to file amicus briefs.

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. Given

our reversal with regard to count II, plaintiff’s appeal of

the trial court’s dismissal of plaintiff’s second com-

plaint, at issue in Docket No. 295750, is rendered moot.

We do not retain jurisdiction. Neither party having

prevailed in full, there shall be no taxable costs.

ARKEY

, J., concurred.

ANDSTRA

,J.(concurring in part and dissenting in

part). I concur with most of the majority opinion but

disagree with its conclusion that the trial court should

decide on remand a question that was raised on appeal,

whether the $125 million capital contribution by Blue

Cross Blue Shield of Michigan (BCBSM) to the Accident

Fund Insurance Company of America (the Accident

Fund) violated MCL 550.1207(1)(x). The majority di-

rected a remand on this issue to allow the parties an

opportunity to present evidence and fully brief it.

However, the issue has been fully briefed, and no set of

facts would justify the capital contribution under the

clear language of the statute.

MCL 550.1207(1)(x) provides, in relevant part:

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A health care corporation, subject to any limitation

provided in this act, in any other statute of this state, or in

its articles of incorporation, may do any or all of the

following:

***

(x) [E]stablish, own, and operate a domestic stock insur-

ance company only for the purpose of acquiring, owning,

and operating the state accident fund pursuant to chapter

51 of the insurance code of 1956...solong as all of the

following are met:

***

(vi) Health care corporation and subscriber funds are

not used to operate or subsidize in any way the insurer

including the use of such funds to subsidize contracts for

goods and services. This subparagraph does not prohibit

joint undertakings between the health care corporation

and the insurer to take advantage of economies of scale or

arm’s-length loans or other financial transactions between

the health care corporation and the insurer. [Emphasis

added.]

As the majority has noted, this Court’s goal when

interpreting a statute is to discern and give effect to the

Legislature’s intent. Neal v Wilkes, 470 Mich 661, 665;

685 NW2d 648 (2004). The intent of the Legislature is

most reliably shown through the words used in the

statute. Id. If the language in the statute is unambigu-

ous, the Legislature is presumed to have intended the

meaning clearly expressed, and the statute must be

enforced as written. Turner v Auto Club Ins Ass’n, 448

Mich 22, 27; 528 NW2d 681 (1995). Effect should be

given to every phrase, clause, and word in the statute,

and this Court will avoid a construction that would

render any part of a statute surplusage or nugatory.

Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d

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570 (2008). “The statutory language must be read and

understood in its grammatical context, unless it is clear

that something different was intended.” Sun Valley

Foods Co v Ward, 460 Mich 230, 237; 596 NW2d 119

(1999). And, this Court “must consider both the plain

meaning of the critical words or phrases as well as their

placement and purpose in the statutory scheme.” People

v Williams, 268 Mich App 416, 425; 707 NW2d 624

(2005). This Court may “ ‘consult dictionary definitions

of terms that are not defined in a statute.’ ” Woodard v

Custer, 476 Mich 545, 561; 719 NW2d 842 (2006),

quoting People v Perkins, 473 Mich 626, 639; 703 NW2d

448 (2005). However, “technical words and phrases, and

such as may have acquired a peculiar and appropriate

meaning in the law, shall be construed and understood

according to such peculiar and appropriate meaning.”

MCL 8.3a; Woodard, 476 Mich at 561.

By its plain language, MCL 550.1207(1)(x)(vi) pro-

hibits B CB SM funds from being used to “operate or

subsidize in any way” the Accident Fund, “including

the use of such funds to subsidize contracts for goods

and services.” Random House Webster’s College Dic-

tionary (1992), defines “any” as “one, a, an or some,”

or as “every, [or] all”; it defines “way” as “manner,

mode, or fashion”; it defines “operate” as “to work,

perform or function” or “to manage or use”; it defines

“subsidize” as “to furnish or aid with a subsidy” and

it defines “subsidy” as “any grant or contribution of

money.” Applying these definitions to § 207(1)(x)(vi)

then, B CB SM is prohibited from using its funds to aid

the Accident Fund with a grant or contribution of

money, in any manner or fashion. Certainly, the $125

million nonrepayable contribution of B CB SM funds

to the Accident Fund meets this definition.

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BCBSM argues, and the commissioner of the Office

of Financial and Insurance Regulation (OFIR) (the

OFIR Commissioner) agreed, that the term “subsidize”

as used in the statute refers only to “subsidization,” an

insurance industry term with a particular, technical

meaning limited to rate subsidization and that it is only

this particular activity that the Legislature intended to

prohibit. See MCL 8.3a. However, even assuming “sub-

sidization” might be interpreted that way, the statute

does not merely prohibit “subsidization” and the re-

strictive connotation that BCBSM would have us im-

pose is belied by the Legislature’s use of the much

broader “operate or subsidize in any way” phrase, as

just explained.

Further, § 207(1)(x)(vi) states that BCBSM may not

subsidize the Accident Fund by using BCBSM funds “to

subsidize contracts for goods and services.” Again, this

is a broad phrase and there is no limiting language

suggesting that the contracts that BCBSM cannot sub-

sidize are only those contracts that would affect the

Accident Fund’s rates. Again, therefore, this broad

statutory language is inconsistent with the reading of

the statute that BCBSM urges on us; to accept BCB-

SM’s argument would improperly render the broad

statutory provision regarding “contracts for goods and

services” surplusage or nugatory. Herman, 481 Mich at

366.

In sum, reading the prohibition against the use of

BCBSM funds to subsidize in any way the Accident Fund,

“in its grammatical context,” Sun Valley Foods, 460 Mich

at 237, and considering “both the plain meaning of the

critical words or phrases as well as their placement and

purpose in the statutory scheme,” Williams, 268 Mich

App at 425, as this Court is required to do, the only

conclusion that can be drawn from the plain language of

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MCL 550.1207(1)(x)(vi) is that BCBSM is prevented from

contributing its funds to the Accident Fund for any

purpose, not merely for the purpose of subsidizing the

Accident Fund’s insurance rates.

BCBSM further argues that the capital contribution

constitutes a permissible “other financial transaction”

within the meaning of § 207(1)(x)(vi). This argument also

lacks merit. “Under the statutory construction doctrine

known as ejusdem generis, where a general term follows a

series of specific terms, the general term is interpreted ‘to

BCBSM asserts, and the OFIR Commissioner noted, that capital

contributions between parent and subsidiary corporations are common-

place in the insurance industry. However, this has no bearing on the

interpretation of the instant statutory provision, which regulates par-

ticularly this parent and this subsidiary in a very specific manner,

considering the unique nature of BCBSM and its corresponding unique

posture in the insurance market. Nor does the application of MCL

550.1207(1)(x)(vi) depend in any way on the motivation or purpose

behind BCBSM’s contribution to the Accident Fund. Rather, the statute

prohibits BCBSM from aiding the Accident Fund financially in any

manner or fashion.

BCBSM relies on the legislative history behind changes that were

made to the Nonprofit Health Care Corporation Reform Act, MCL

550.1101 et seq., at the same time that the statute at issue was enacted.

BCBSM cites old caselaw suggesting that legislative intent can appropri-

ately be considered, Girard v Wagenmaker, 437 Mich 231, 238-239; 470

NW2d 372 (1991), but that caselaw has been seriously undermined by

more recent authority stating that “in Michigan, a legislative analysis is

a feeble indicator of legislative intent and is therefore a generally

unpersuasive tool of statutory construction.” Frank W Lynch & Co v Flex

Technologies, Inc, 463 Mich 578, 587; 624 NW2d 180 (2001). In any event,

as I have explained, the statute here is unambiguous and judicial

construction of any sort, including through an analysis of legislative

history, is neither required nor permitted. Nastal v Henderson & Assoc

Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). That same

rule applies to consideration of statutes or legislation that are in pari

materia, a doctrine only to be utilized when “the statute under exami-

nation is itself ambiguous.” Tyler v Livonia Pub Sch , 459 Mich 382, 392;

590 NW2d 560 (1999). For all these reasons, BCBSM’s attempts to avoid

the clear language of the statute, while creative, must fail.

96 291 M

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include only things of the same kind, class, character,

or nature as those specifically enumerated.’ ” Neal,

470 Mich at 669, quoting Huggett v Dep’t of Natural

Resources, 464 Mich 711, 718-719; 629 NW2d 915

(2001). Therefore, the language “other financial

transactions” must be interpreted to include only

those transactions of the same kind, class, character,

or nature as “joint undertakings” to allow BCB SM

and the Accident Fund to take advantage of econo-

mies of scale, or “arm’s-length loans....” MCL

550.1207(1)(x)(vi). Thus, the “other financial trans-

actions” permitted by the statute are of the type that

have direct, immediate, and concrete mutual

economic/financial benefit. A transfer of $125 million

from B CB SM to the Accident Fund, without any

repayment obligation or direct benefit to BCB SM,

regardless of the purpose, does not meet this criteria.

For these reasons, I would conclude, without re-

manding the issue, that BCBSM’s $125 million contri-

bution to the Accident Fund was impermissible under

the plain language of MCL 550.1207(1)(x).

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WATTS v MICHIGAN MULTI-KING, INC

Docket No. 293185. Submitted October 7, 2010, at Detroit. Decided

December 14, 2010, at 9:00 a.m.

Nyla Watts filed suit in the Wayne Circuit Court against Michigan

Multi-King, Inc, after she slipped and fell on a wet floor in

defendant’s Baja Fresh restaurant. The court, Daphne Means

Curtis, J., granted defendant’s motion for summary disposition on

the theory that the wet condition of the floor was an open and

obvious danger. Plaintiff appealed.

The Court of Appeals held:

A premises possessor has a duty to exercise reasonable care to

protect invitees from an unreasonable risk of harm caused by a

dangerous condition on the land, but is not required to protect an

invitee from an open and obvious danger unless special aspects of

the condition make the risk unreasonably dangerous. A condition

creates an open and obvious danger if it is reasonable to expect an

average person of ordinary intelligence to discover the danger

upon casual inspection. A condition that is not visible to a

reasonable and sighted person is not an open and obvious danger.

The restaurant floor had been mopped shortly before plaintiff’s

fall. Although the incident report indicated that there were “wet

floor” signs present, plaintiff testified that there were no signs

present and that, both before and after her fall, the tile did not

look shiny or wet, and nothing else about its appearance appeared

out of the ordinary. Defendant presented no evidence to show the

floor was visibly wet at the time of plaintiff’s fall. Plaintiff

produced evidence that the condition was not an open and obvious

danger and so summary disposition was improperly granted.

Reversed and remanded.

ILDER

,P.J., concurring in the result, agreed that defendant

failed to present evidence to show that the allegedly wet floor was

visibly wet.

EGLIGENCE —

REMISES

IABILITY —

NVITEES —

PEN AND

BVIOUS

ANGERS

A condition creates an open and obvious danger for which a premises

possessor may be liable if it is reasonable to expect an average

person of ordinary intelligence to discover the danger upon casual

98 291 M

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inspection; a condition that is not visible to a reasonable and

sighted person is not an open and obvious danger.

Eric H. Clark for plaintiff.

Feuer & Kozerski, P.C. (by Scott L. Feuer), for defen-

dant.

Before: W

ILDER

,P.J., and S

ERVITTO

and S

HAPIRO

,JJ.

URIAM

. Plaintiff appeals as of right the trial

court’s order granting defendant’s motion for summary

disposition on the basis of the open and obvious danger

doctrine. We reverse and remand. This appeal has been

decided without oral argument pursuant to MCR

7.214(E).

I. BACKGROUND

On February 27, 2008, at approximately 4:00 p.m.,

plaintiff was finishing a meal at defendant’s restaurant

in Northville, Michigan. There was no precipitation

falling that day, but plaintiff stated that there may have

been snow on the ground outside. Plaintiff was wearing

boots with approximately 1

-inch wedge heels, and she

wore corrective lenses.

After ordering her meal at the counter, plaintiff put

her purse down at a table and went to get a drink before

sitting down. Her friend went to the self-serve salsa bar,

brought some salsa back to the table, and then retrieved

both of their trays of food from the counter when their

numbers were called. Once the two women finished

eating, they got up from the table to throw away their

trash. Plaintiff slipped and fell while walking with her

tray from the table to the trash receptacle, landing on

her left hip and side.

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Plaintiff was helped up by one of the restaurant’s

employees. The employee said, “Sorry, we just mopped

the floor.” When plaintiff stood up, she noticed that her

hand and clothes were damp, but did not notice any

spills or color to the wetness. She testified that “[i]t

looked like the tile that’s on the floor” except for a

smudge created by her own fall.

Plaintiff was then approached by another employee,

who also apologized and explained that they had just

mopped the floor. The employee explained that they try

to mop when there are few customers in the restaurant.

She gave plaintiff the manager’s name and telephone

number and told her that, as soon as the manager

arrived, they would fill out an incident report. The

employee also took plaintiff’s name, address, and tele-

phone number.

Plaintiff’s friend drove her back to work. Her man-

ager at work immediately drove her to Providence Park

Hospital because her pain was getting worse. Plaintiff

was diagnosed with hip contusions and a lumbar muscle

strain. She was told to take Motrin for pain, but when it

made her sick, she was prescribed Darvocet. Several

days later, plaintiff met with her primary care physi-

cian, who gave her a shot of anti-inflammatory medica-

tion. Plaintiff also saw an orthopedic doctor and a

physical medicine doctor.

At her deposition, plaintiff stated that she did ob-

serve the floor as she walked toward the waste recep-

tacle and that she did not notice anything on, or

unusual about, the floor before her fall. She had not

seen any spills, caution signs, or anything else that

would indicate the floor was anything other than nor-

mal. She did not see any employee of the restaurant

mopping the floor before her fall. The restaurant was

not busy; only a few patrons came and went during the

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time that plaintiff and her friend were there and none

of them sat down to eat. The incident report generated

by the restaurant employees acknowledged that plain-

tiff had slipped on the wet floor. The report indicates

that “wet floor” signs were on display at the time.

However, as previously noted, plaintiff testified that no

such signs were present.

Plaintiff filed a complaint alleging negligence against

defendant in permitting an unreasonably dangerous

condition to exist on the floor of the restaurant. On

April 22, 2009, defendant moved for summary disposi-

tion pursuant to MCR 2.116(C)(10), arguing that plain-

tiff’s claim was barred by the open and obvious danger

doctrine. Plaintiff responded that there was a genuine

issue of material fact regarding whether the danger was

open and obvious, as her deposition showed that she

had not noticed the dampness on the floor until after

she had fallen. At the June 26, 2009, hearing on

defendant’s motion for summary disposition, the trial

court dismissed the case, stating:

[T]his is just the kind of case that the Supreme Court in

Lugo and Bertrand and Sidorowicz . . . discuss, and that is

the situation where a reasonable prudent person on casual

inspection should be aware of the danger. I don’t like the

law in that regard, especially the case I just talked about,

but it is the law. The motion is granted.

Accordingly, on July 8, 2009, the court entered an order

dismissing plaintiff’s cause of action. Plaintiff now

appeals.

II. ANALYSIS

Plaintiff argues that the trial court erred in granting

defendant’s summary disposition motion under MCR

2.116(C)(10) and dismissing her claim on the basis that

the hazard that caused her fall and related injuries was

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open and obvious. We review de novo a trial court’s

ruling on a motion for summary disposition. Kuznar v

Raksha Corp, 481 Mich 169, 175; 750 NW2d 121 (2008).

In considering a motion pursuant to MCR 2.116(C)(10),

a court considers affidavits, pleadings, depositions, ad-

missions, and other documentary evidence submitted

by the parties in a light most favorable to the nonmov-

ing party. Corley v Detroit Bd of Ed, 470 Mich 274, 278;

681 NW2d 342 (2004). Where the proffered evidence

fails to establish a genuine issue of material fact, the

moving party is entitled to judgment as a matter of law.

Maiden v Rozwood, 461 Mich 109, 120; 597 NW2d 817

(1999).

A landowner has a duty to exercise reasonable care to

protect invitees from an unreasonable risk of harm

caused by a dangerous condition on the land. Lugo v

Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384

(2001). However, a premises possessor is not generally

required to protect an invitee from open and obvious

dangers, unless special aspects of a condition make even

an open and obvious risk unreasonably dangerous, in

which case the possessor must take reasonable steps to

protect invitees from harm. Id. at 516-517.

The question of whether a condition presents an

“open and obvious” danger depends on whether “it is

reasonable to expect an average person of ordinary

intelligence to discover the danger upon casual inspec-

tion.” O’Donnell v Garasic, 259 Mich App 569, 575; 676

NW2d 213 (2003). The test is objective; “the inquiry is

whether a reasonable person in the plaintiff’s position”

would have done so. Slaughter v Blarney Castle Oil Co,

281 Mich App 474, 479; 760 NW2d 287 (2008). When

deciding a summary disposition motion based on the

open and obvious danger doctrine, “it is important for

courts...tofocus on the objective nature of the condi-

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tion of the premises at issue, not on the subjective

degree of care used by the plaintiff.” Lugo, 464 Mich at

523-524. If genuine issues of material fact exist regard-

ing the condition of the premises and whether the

hazard was open and obvious, summary disposition is

inappropriate. See Bragan v Symanzik, 263 Mich App

324, 327-328; 687 NW2d 881 (2004).

In this case, the parties essentially agree that the

floor had been mopped shortly before plaintiff’s fall.

Although the report from the store indicated that there

were “wet floor” signs present, plaintiff testified that

there were no signs present. Plaintiff testified that both

before and after her fall, the tile did not look shiny or

wet, and nothing else about its appearance appeared

out of the ordinary.

Defendant has offered no testimony or other evi-

dence to demonstrate that the floor was visibly, let alone

obviously, wet at the time of plaintiff’s fall or that a

reasonable person would have observed that condition

on casual observation. Instead, defendant has sought to

broaden the open and obvious doctrine so as to render

even non-visible hazards visible.

Defendant and the trial court appear to have misun-

derstood the decision in Sidorowicz v Chicken Shack,

Inc, unpublished opinion per curiam of the Court of

Appeals, issued January 17, 2003 (Docket No. 239627),

upon which they rely. In Sidorowicz, the plaintiff was

legally blind and, therefore, unable to see the water on

the floor of the men’s restroom on which he slipped and

fell. Id. at 1. An employee testified that upon inspection

of the bathroom she could see water on the floor. Id. at

2. Thus, the water on the bathroom floor was visible

upon casual inspection. A panel of this Court held that,

for application of the open and obvious doctrine, the

plaintiff’s blindness was irrelevant. The Michigan Su-

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preme Court denied leave, 469 Mich 919 (2003), and

Justice T

AYLOR

’s concurrence essentially approved the

Court of Appeals’ analysis.

Contrary to defendant’s assertion, even if Sidorowicz

had precedential authority,

it would not mandate dis-

missal in this case. Indeed, defendant and the trial

court have turned the Sidorowicz holding on its head by

concluding that conditions a reasonable and sighted

person might not see may nevertheless be considered

open and obvious. Defendant and the trial court both

failed to recognize that the reason the water in Sidor-

owicz was found to be open and obvious was that,

despite being unseen by a blind person, it remained

discoverable on casual inspection to a sighted person.

Defendant’s contention that hazards which are not

visible even to a reasonable and sighted person can still

be open and obvious runs counter to the most funda-

mental principle of the doctrine, i.e., that the hazard be

discoverable “upon casual inspection.” O’Donnell, 259

Mich App at 575.

Furthermore, we reject defendant’s assertion that a

wet floor in a restaurant is a common everyday hazard

of which customers are expected to be aware, making it

always open and obvious regardless of its visibility.

Defendant is essentially arguing that by simply enter-

ing a restaurant, patrons are on notice that the floor

may have been mopped or a spill may be present

making a slip and fall likely and requiring that they

avoid stepping on a wet floor even if the floor is not

We do note that the Michigan Supreme Court has never yet granted

leave “to explore how [its] explanation of the open and obvious doctrine

in Lugo . . . relates to those with disabilities.” Sidorowicz, 469 Mich at

920 (C

AVANAGH

, J., dissenting).

Sidorowicz is an unpublished opinion and so is not precedentially

binding. MCR 7.215(C)(1).

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visibly wet. This is not consistent with the open and

obvious doctrine, but instead rests upon a broadened

version of the assumption of risk doctrine which, even

in its narrower form, was abolished in Michigan 45

years ago, see Ritchie-Gamester v City of Berkley, 461

Mich 73, 78; 597 NW2d 517 (1999) (Noting that Felgner

v Anderson, 375 Mich 23; 133 NW2d 136 (1965), “abol-

ished assumption of the risk in” ordinary negligence

actions), and has no place in the “open and obvious”

doctrine.

III. CONCLUSION

The entire premise of the open and obvious danger

doctrine requires that the hazard would be “obvious”

upon “casual inspection.” O’Donnell, 259 Mich App at

575 (emphasis added). Plaintiff has introduced evidence

that this was not the case here and so summary

disposition was improperly granted. Accordingly, we

reverse and remand for additional proceedings not

inconsistent with this opinion. We do not retain juris-

diction. Plaintiff, as the prevailing party, is entitled to

costs. MCR 7.219(A).

ILDER

,P.J. (concurring). Because I agree with the

majority that defendant failed to present evidence to

show that the allegedly wet floor was visibly wet, such

that it would have been reasonable to expect “an

average person of ordinary intelligence” to discover the

wet floor condition “upon casual inspection,” O’Donnell

v Garasic, 259 Mich App 569, 575; 676 NW2d 213

(2003), I concur in the result reached by the majority.

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In re APPLICATION OF CONSUMERS ENERGY COMPANY

FOR RATE INCREASE

Docket Nos. 286477 and 288728. Submitted October 6, 2010, at Lansing.

Decided December 14, 2010, at 9:05 a.m.

Consumers Energy Company filed an application in the Public

Service Commission (PSC) seeking the authority to increase the

base rate charged its retail electric customers. The PSC approved

a rate increase but denied Consumers’ request to eliminate a

mechanism for tracking tree-trimming and forestry expenses,

which had been imposed to help ensure Consumers adequately

fund its forestry program. The PSC approved Consumers’ pro-

posed electric choice incentive mechanism (ECIM), which was

intended to smooth the effect of fluctuations in Consumers’ retail

open access sales, allowed Consumers to fund the low-income and

energy efficiency fund (LIEEF) administered by the PSC, and

authorized Consumers to finance two independent consultants

retained by the PSC staff to investigate Consumers’ application.

The PSC also held that issues raised by intervenor Phil Forner had

been fully decided in an earlier proceeding, and it declined to

address them again. The Attorney General and Forner appealed

separately and the appeals were consolidated.

The Court of Appeals held:

1. In the absence of specific statutory authorization, retroac-

tive ratemaking in utility cases is prohibited. Past expenses and

costs are not recoverable under a future rate. However, retroactive

ratemaking involves a change either upward or downward in rates

charged by a utility for its service under a lawful order and thus

does not take place where a prospective rate takes into account a

past expense. The PSC does not exceed the scope of its authority by

permitting a utility to use deferred-cost accounting. There was no

error in the authorization of the tree-trimming/forestry expense

tracker and electric choice incentive mechanism. Those devices

simply and properly enable Consumers to recover actual expenses

incurred in a given year by accounting for them as subsequent

years’ expenses to be reflected in new rates with properly prospec-

tive effect.

2. Under the Customer Choice and Electricity Reliability Act,

MCL 460.10 et seq., the PSC is authorized to administer the

106 291 M

ICH

106 [Dec

LIEEF, which was intended to provide shut-off and other protec-

tion for low-income customers and to promote energy efficiency by

all customer classes. MCL 460.10d(7) delineates a source for

funding the LIEEF, but does not restrict funding of the LIEEF to

excess securitization savings. Moreover, the Legislature has indi-

cated its intent for the continuation of the LIEEF through the

provision of ongoing appropriations beyond the initial six-year

period. In re Application of Consumers Energy Co, 279 Mich App

180, 190-191; 756 NW2d 253 (2008). The PSC properly resolved

this issue in Consumers’ favor.

3. The PSC may accept funding for consultants from a regu-

lated party only where statutorily authorized. No statutory au-

thority exists for the PSC’s allowing a party before it to cover

directly part of its normal operational expenses in this situation.

That decision was therefore unlawful and created the appearance

of impropriety. However, there was no suggestion that the proce-

dure resulted in biased experts or a result more favorable to

Consumers than otherwise would have ensued in this case, and

therefore the error was harmless.

Affirmed.

1. P

UBLIC

TILITIES —

UBLIC

ERVICE

OMMISSION —

ATEMAKING

UTHORITY

In the absence of specific statutory authorization, retroactive rate-

making in utility cases is prohibited, and past expenses and costs

are not recoverable under a future rate; however, retroactive

ratemaking involves a change either upward or downward in rates

charged by a utility for its service under a lawful order and thus

does not take place where a prospective rate takes into account a

past expense, such as when the Public Service Commission per-

mits a utility to use deferred-cost accounting.

2. P

UBLIC

TILITIES —

UBLIC

ERVICE

OMMISSION —

ATEMAKING

UTHORITY —

-I

NCOME AND

NERGY

FFICIENCY

UND —

OURCE OF

UNDING

Under the Customer Choice and Electricity Reliability Act, MCL 460.10

et seq., the Public Service Commission is authorized to administer the

low-income and energy efficiency fund (LIEEF); MCL 460.10d(7)

delineates a source for funding the LIEEF, but does not restrict

funding of the LIEEF to excess securitization savings and permits the

continuation of the LIEEF through the provision of ongoing appro-

priations beyond the initial six-year period.

3. P

UBLIC

TILITIES —

UBLIC

ERVICE

OMMISSION —

TATUTORY

UTHORITY —

PERATIONAL

XPENSES —

PPEARANCE OF

MPROPRIETY

The Public Service Commission may accept funding for consultants

from a regulated party only when statutorily authorized.

2010] In re C

ONSUMERS

NERGY

PPLICATION

107

H. Richard Chambers, Jon R. Robinson, and John C.

Shea for Consumers Energy Company.

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, and Steven D. Hughey and Patricia S.

Barone, Assistant Attorneys General, for the Public

Service Commission.

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, and Michael E. Moody, Assistant

Attorney General, for the Attorney General.

Phil Forner in propria persona.

Before: O’C

ONNELL

,P.J., and B

ANDSTRA

and M

ARKEY

JJ.

ARKEY

, J. These consolidated cases arose from peti-

tioner Consumers Energy Company’s filing in March

2007 an application to raise its rates. In Docket No.

286477, appellant Attorney General appeals by right

the June 10, 2008, order of the Public Service Commis-

sion (PSC) insofar as it (1) required Consumers to

modify its customers’ rates to reflect actual tree-

trimming or forestry expenses; (2) allowed Consumers,

through its electric choice incentive mechanism, to

modify rates to even out the impact of fluctuations in

retail open-access sales; (3) allowed Consumers to re-

quire its customers to continue supporting the low-

income and energy efficiency fund, and (4) allowed

Consumers to provide funding for two consultants to

assist the PSC staff in connection with this case. In

Docket No. 288728, appellant Phil Forner appeals that

order insofar as it did not require Consumers to pay

interest on its refunding of an improper subsidy, did not

require that certain costs Consumers incurred in pro-

viding services to an appliance service program be

108 291 M

ICH

106 [Dec

allocated to that program so that Consumers could

lower its costs of providing electricity, and did not

require that any related postage costs were among

those so allocated.

For the reasons set forth below, we reject all but one

of these claims of error: We agree with the objection

that the PSC’s having allowed Consumers to provide

the funding for the experts was wrong but conclude that

the error was harmless. Accordingly, we affirm the

PSC’s order in its entirety.

I. STANDARDS OF REVIEW

The standard of review for PSC orders is narrow and

well defined. Pursuant to MCL 462.25, all rates, fares,

charges, classification and joint rates, regulations, prac-

tices, and services prescribed by the PSC are presumed,

prima facie, to be lawful and reasonable. See also Mich

Consol Gas Co v Pub Serv Comm, 389 Mich 624,

635-636; 209 NW2d 210 (1973). A party aggrieved by an

order of the PSC has the burden of proving by clear and

convincing evidence that the order is unlawful or un-

reasonable. MCL 462.26(8). To establish that a PSC

order is unlawful, the appellant must show that the

PSC failed to follow a statutory requirement or abused

its discretion in the exercise of its judgment. In re MCI

Telecom Complaint, 460 Mich 396, 427; 596 NW2d 164

(1999). A reviewing court gives due deference to the

PSC’s administrative expertise, and should not substi-

tute its judgment for that of the PSC. Attorney General

v Pub Serv Comm No 2, 237 Mich App 82, 88; 602 NW2d

225 (1999).

A final order of the PSC must be authorized by law

and be supported by competent, material, and substan-

tial evidence on the whole record. Const 1963, art 6,

§ 28; In re Application of Consumers Energy Co, 279

2010] In re C

ONSUMERS

NERGY

PPLICATION

109

Mich App 180, 188; 756 NW2d 253 (2008). Whether the

PSC exceeded the scope of its authority is a question of

law that is reviewed de novo. In re Complaint of Pelland

Against Ameritech Mich, 254 Mich App 675, 682; 658

NW2d 849 (2003).

II. RETROACTIVE RATEMAKING

The PSC summarized the issue relating to the tree-

trimming/forestry expense tracker as follows:

The Staff proposed forestry related costs totaling

$41,535,669 for the 2008 test year, a figure that represents

the actual 2006 expense level adjusted for inflation. The

Staff also supported the continuation of the forestry ex-

pense tracker and refund mechanism approved [in an

earlier case]....

The Attorney General... argued that the forestry

tracker should be eliminated on grounds that the Commis-

sion lacks specific statutory authority to approve the type

of retroactive ratemaking embodied by this tracker.

The Staff, Dow/Hemlock, and ABATE responded that it

would be irresponsible to eliminate the tracking mecha-

nism at this point, when Consumers has not yet satisfac-

torily demonstrated that it will spend adequate amounts

for tree-trimming and forestry....TheStaff argued that

for several years Consumers did not show a willingness to

spend adequately for its tree trimming and forestry man-

agement and contended that it is imperative to continue

the tracking and refund mechanism for sufficient time to

ensure that Consumers fully supports the program.

The ALJ found that the Attorney General’s argument

was without merit and has been repeatedly rejected by the

Commission. The ALJ agreed with the Staff,

Dow/Hemlock, and ABATE that, despite the substantial

increase in forestry expenditures in 2006, Consumers’

system reliability has not improved. Thus, a long-term

increase in forestry related efforts is required and, because

110 291 M

ICH

106 [Dec

funding can easily be shifted from forestry to other pur-

poses, the tracker is appropriate....

The Commission agrees with the ALJ’s reasoning and

conclusions on this issue and finds that the forestry tracker

should continue until Consumers adequately demonstrates

that it has caught up with much neglected tree trimming.

The Commission is generally cautious about requiring

measures that include tracking or refund mechanisms.

However, because Consumers’ failure to adequately fund

its forestry program for several years has compromised

service reliability, quality, and safety, the Commission de-

termines that it is prudent to continue the forestry tracker

until the Commission’s concerns are allayed.

The PSC summarized the issue relating to the elec-

tric choice incentive mechanism (ECIM) as follows:

Consumers proposed an Electric Choice Incentive

Mechanism (ECIM) designed to smooth the effect of fluc-

tuations in its retail open access (ROA) sales. According to

Consumers, if ROA sales increase or decrease more than

5% from the amount set in rates, a charge or credit would

apply to rates of the class where the ROA sales change

occurred. Consumers argues that because it is difficult to

predict ROA sales, the ECIM would assist the company in

its management....

The Staff supported the ECIM and argued that it would

provide an incentive for Consumers to further reduce costs

in the event of ROA sales changes.

The Attorney General argued that the Commission

lacks specific statutory authority to approve the ECIM,

which the Attorney General claims violates the rule against

retroactive ratemaking. In addition, the Attorney General,

Dow/Hemlock, and ABATE claim that because ROA load is

expected to be flat for the next few years, the ECIM is

unnecessary....

The ALJ recommended that the Commission approve

the ECIM observing that although ROA load fluctuation is

expected to be flat for the next few years, in the past,

2010] In re C

ONSUMERS

NERGY

PPLICATION

111

annual variations in ROA load have ranged from -64% to

+227%.

The Commission agrees with the ALJ, the Staff, and

Consumers that the ECIM is reasonable and should be

approved.

The Attorney General argues that approval of the

tree-trimming/forestry tracker and ECIM constitutes

retroactive ratemaking. We disagree.

As an initial matter, we reject Consumers’ challenge

to the Attorney General’s standing to challenge the

propriety of the tree-trimming/forestry tracker. Con-

sumers states that it no longer objects to retention of

that tracker but argues that the Attorney General lacks

standing in the matter because the tracker does not

affect customers’ rates and has the potential to harm

only the now-acquiescent Consumers. But by this rea-

soning, only Consumers had standing to object to the

tracker in the first instance. Yet there was no challenge

to the PSC’s standing below. Consumers joined the

Attorney General in urging discontinuation of the tree-

trimming/forestry tracker before the PSC, so it had no

incentive to challenge the latter’s standing at that time.

But the PSC was in a position to do so and did not.

Assuming, without deciding, that the Attorney General

was vulnerable to a standing challenge below, we deem

appellate objections forfeited because none was raised.

See In re Complaint of Mich Cable Telecom Ass’n, 241

Mich App 344, 361-362; 615 NW2d 255 (2000) (affirm-

ing a decision to reject a challenge to a party’s standing

on the ground that the challenge was not timely

brought); In re Forfeiture of $28,088, 172 Mich App 200,

205; 431 NW2d 437 (1988) (declining to entertain the

appellee’s challenge to the claimant-appellant’s stand-

ing where the issue was not raised below and there was

no cross-appeal). For these reasons, we will consider the

112 291 M

ICH

106 [Dec

tree-trimming/forestry tracker as part of the claim that

the PSC engaged in improper retroactive ratemaking.

The PSC possesses only that authority granted to it

by the Legislature. Attorney General v Pub Serv Comm,

231 Mich App 76, 78; 585 NW2d 310 (1998). Words and

phrases in the PSC’s enabling statutes must be read

narrowly and in the context of the entire statutory

scheme. Consumers Power Co v Pub Serv Comm, 460

Mich 148, 155-159; 596 NW2d 126 (1999).

In the absence of specific statutory authorization,

retroactive ratemaking in utility cases is prohibited.

Mich Bell Tel Co v Pub Serv Comm, 315 Mich 533, 547,

554-555; 24 NW2d 200 (1946). This Court has dis-

coursed broadly on the scope of this rule:

Past expenses and costs are factors to be considered in

determining what the new rate should be so it is fair and

reasonable. Past expenses and costs are not recoverable

under a future rate. If a rate structure is wrong and

causes a utility to lose $1,000,000, the utility cannot

recover that in its new rate. The commission must

certainly raise the rate so the loss will not continue. If

the rate structure is wrong so the utility gains

$1,000,000 more profit than is reasonable and just, the

commission cannot order a refund. It can certainly lower

the rate so there will be no excess profit in the succeed-

ing years. [Detroit Edison Co v Pub Serv Comm,82Mich

App 59, 68; 266 NW2d 665 (1978).]

More recently, however, this Court took a narrower view

of what constituted retroactive ratemaking, declaring

that such does not occur where an agreement between

a utility and the PSC does not change existing rates, “is

consensual, applies on a prospective basis only, and . . .

one-time refunds are merely potential, not guaran-

teed.” Attorney General v Pub Serv Comm, 206 Mich

App 290, 297; 520 NW2d 636 (1994).

2010] In re C

ONSUMERS

NERGY

PPLICATION

113

Similarly, this Court has affirmed the PSC’s decision

to allow a utility to recover accrued retirement benefits

that were deferred from the prior year. Detroit Edison

Co v Pub Serv Comm, 221 Mich App 370, 374-376; 562

NW2d 224 (1997). This Court explained, “The PSC has

discretion to determine what charges and expenses to

allow as costs of operation. What reasonable accounting

method to employ is a legislative decision to be made by

the PSC.” Id. at 375 (citation omitted). This Court

reiterated that “[r]etroactive ratemaking . . . is prohib-

ited,” but added that retroactive ratemaking “involves a

change either upward or downward in the rates charged

by a utility for its service under a lawful order” and thus

does not take place where a prospective rate takes into

account a past expense. Id. at 376.

Still more recently, this Court has held that the

PSC “did not exceed the scope of its authority by

permitting [a utility] the use of deferred cost account-

ing for storm-related expenses” and added that “be-

cause previous rates were not charged to correct

further deficiencies caused by the storms, retroactive

ratemaking did not occur.” Attorney General v Pub

Serv Comm, 262 Mich App 649, 655; 686 NW2d 804

(2004). This Court so concluded because “there was

no adjustment to previously set rates, but only future

rates were affected.” Id. at 658. This Court approved

using the accounting convention whereby storm-

related expenses dating from one year were charac-

terized as expenses incurred in the subsequent years

to which they were deferred. Id.

Guided by this caselaw, we conclude there was no

error in the authorization of the tree-trimming/forestry

tracker and electric choice incentive mechanism. Those

devices simply and properly enable Consumers to re-

cover actual expenses incurred in a given year by

114 291 M

ICH

106 [Dec

accounting for them as subsequent years’ expenses to

be reflected in new rates with properly prospective

effect.

III. THE LOW-INCOME AND ENERGY EFFICIENCY FUND

The Customer Choice and Electricity Reliability Act,

MCL 460.10 et seq., was enacted into law on June 3,

2000. In re Application of Consumers Energy Co, 279

Mich App at 182, citing 2000 PA 141. Among the

provisions of that legislative scheme was creation of the

low-income and energy efficiency fund (LIEEF), “which

was intended to provide shut-off and other protection

for low-income customers and to promote energy effi-

ciency by all customer classes.” 279 Mich App at 183

(internal quotation marks and citation omitted).

2008 PA 286 rewrote MCL 460.10d, but at the time of

the litigation of, and decision in, this case, the statute

provided in pertinent part as follows:

(1) Except as otherwise provided under subsection (3) or

unless otherwise reduced by the commission under subsec-

tion (5), the commission shall establish the residential

rates for each electric utility with 1,000,000 or more retail

customers in this state as of May 1, 2000 that will result in

a 5% rate reduction from the rates that were authorized or

in effect on May 1, 2000. Notwithstanding any other

provision of law or commission order, rates for each electric

utility with 1,000,000 or more retail customers established

under this subsection become effective on June 5, 2000 and

remain in effect until December 31, 2003 and all other

electric retail rates of an electric utility with 1,000,000 or

more retail customers authorized or in effect as of May 1,

2000 shall remain in effect until December 31, 2003.

***

(5) If the commission authorizes an electric utility to use

securitization financing under section 10i, any savings

2010] In re C

ONSUMERS

NERGY

PPLICATION

115

resulting from securitization shall be used to reduce retail

electric rates from those authorized or in effect as of May 1,

2000 as required under subsection (1). A rate reduction

under this subsection shall not be less than the 5% re-

quired under subsection (1). The financing order may

provide that a utility shall only issue securitization bonds

in an amount equal to or less than requested by the utility,

but the commission shall not preclude the issuance of an

amount of securitization bonds sufficient to fund the rate

reduction required under subsection (1).

(6) Except for savings assigned to the low-income and

energy efficiency fund under subsection (7), securitization

savings greater than those used to achieve the 5% rate

reduction under subsection (1) shall be allocated by the

commission to further rate reductions or to reduce the level

of any charges authorized by the commission to recover an

electric utility’s stranded costs. The commission shall allo-

cate approved securitization, transition, stranded, and

other related charges and credits in a manner that does not

result in a reallocation of cost responsibility among the

different customer classes.

(7) If securitization savings exceed the amount needed

to achieve a 5% rate reduction for all customers, then, for

a period of 6 years, 100% of the excess savings, up to 2% of

the electric utility’s commercial and industrial revenues,

shall be allocated to the low-income and energy efficiency

fund administered by the commission. The commission

shall establish standards for the use of the fund to provide

shut-off and other protection for low-income customers

and to promote energy efficiency by all customer classes.

The commission shall issue a report to the legislature and

the governor every 2 years regarding the effectiveness of

the fund.

The Attorney General points out that the PSC has

allowed Consumers to fund the LIEEF through general

utility rates instead of by securitization financing and

to do so beyond the six-year period specified by MCL

460.10d(7) and argues that the PSC has thus improp-

116 291 M

ICH

106 [Dec

erly deviated from these statutory particulars. We dis-

agree.

In In re Application of Consumers Energy, 279 Mich

App at 190-191, this Court addressed this very issue and

resolved it in favor of the PSC. Specifically, this Court

held that “MCL 460.10d(7) delineates a source for

funding the LIEEF, but does not restrict funding of the

LIEEF to excess securitization savings,” and that “the

Legislature has indicated its intent for the continuation

of the LIEEF through the provision of ongoing appro-

priations beyond the initial six-year period.” Id. at 191.

The Attorney General takes issue with this Court’s

reasoning in that case and expresses hopes for satisfac-

tion in the Supreme Court. But our Supreme Court

denied the application for leave. 483 Mich 880 (2009).

Accordingly, In re Application of Consumers Energy,

279 Mich App 180, remains binding authority for this

issue, see MCR 7.215(J)(1), and demands resolution in

favor of the PSC’s position.

IV. FUNDING OF CONSULTANTS

The PSC summarized this issue as follows:

[T]he Commission Staff (Staff) and Consumers filed a

joint motion seeking Commission authority for the Staff to

retain the services of two independent consultant experts

to be financed by Consumers. One consultant is needed to

make an assessment of Consumers’ environmental compli-

ance programs and the other is needed to make an assess-

ment of issues concerning Consumers’ load study and class

cost of service study.

Specifically, the Staff argues that...[r]etaining inde-

pendent expert consultants will allow the thorough and

expeditious investigation and analysis of Consumers’ ap-

plication.

2010] In re C

ONSUMERS

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PPLICATION

117

The joint motion proposes that Consumers solicit bids

from experts after obtaining the scope of the necessary

work from the Staff. Subsequently, all bid responses would

be submitted only to the Staff. The Staff stresses that it

would retain exclusive discretion to select the consultants

from the bids submitted and supervise all of the experts’

work. Consumers agrees to pay for the Staff’s consultants

but would “in no way be responsible for their hiring,

supervision, conclusions, reports, or expert witness testi-

mony if needed.” The Staff argues that Consumers is

willing to pay the consultants’ fees and emphasizes that

the Staff will have exclusive control and responsibility for

hiring and supervising the consultants for the decisions

regarding the use of the consultants’ work products. [Cita-

tion omitted.]

After noting the Attorney General’s objections, the

PSC concluded that the situation did not constitute

receipt of a gift or loan from Consumers. The PSC

opined that the appearance of impropriety was avoided

by placing the consultants under its staff’s exclusive

control and supervision. The PSC additionally noted

that there was precedent requiring a regulated utility to

provide the PSC staff with an expert consultant.

We conclude that the PSC erred in allowing Consum-

ers to cover any of the PSC’s ordinary operational

expenses, including the engagement of experts to aid in

its investigation attendant to Consumers’ request for a

rate hike.

The PSC acknowledged that its staff would normally

begin the solicitation process according to the ordinary

course of business, with the money for consultants

coming from the PSC’s budget as appropriated by the

Legislature and assessed against all regulated utilities

in accord with MCL 460.112,

but that financial hard-

This statute directs the Department of Commerce, “within 30 days

after the enactment into law of any appropriation to it,” to “ascertain the

118 291 M

ICH

106 [Dec

ship led the PSC to accept Consumers’ offer to cover the

costs of consultants in this instance. This had the effect

of bypassing the statutory avenues for funding and

putting the regulated utility in a position, whether at

the PSC’s initiative or its own, of covering operational

costs that the PSC would normally have to cover in the

first instance from its own appropriations.

The PSC regarded as instructive MCL 460.568(3),

which authorizes it to assess certificate application fees

from an electric utility or transmission company to

cover the commission’s administrative costs in process-

ing the application and to “require the electric utility,

affiliated transmission company, or independent trans-

mission company to hire consultants chosen by the

commission to assist the commission in evaluating

those issues the application raises.” Although that

statute does indeed show that the Legislature envi-

sioned no impropriety from having the regulated utility

provide the PSC with consultants in that situation, that

the Legislature has singled out certificate applications

from electric utilities or transmission companies in

authorizing the PSC to engage consultants paid for by

the applicants suggests that such an arrangement is not

lawful in situations where, as in the instant situation, it

is not explicitly authorized by statute.

We agree with the Attorney General that the PSC’s

allowing a party before it to cover directly part of its

normal operational expenses creates the appearance of

impropriety and unfortunate precedent. Even if all

concerned had only the best of intentions in this in-

stance, we find it easy to imagine situations where the

PSC appears to strong-arm parties before it into them-

amount of the appropriation attributable to the regulation of public

utilities” and to assess that amount against those utilities as apportioned

among them in specified ways.

2010] In re C

ONSUMERS

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PPLICATION

119

selves bearing the PSC’s normal operating expenses, or

where regulated parties hope to gain some advantage,

or avoid some disadvantage, by offering such support—

whether asked or merely permitted to do so in the first

instance. We therefore hold that the PSC acted outside

its scope of authority in resorting to this arrangement

for the funding of the two consultants.

Still, we note that there is no suggestion that the

disapproved procedure resulted in biased experts or a

result more favorable to Consumers than otherwise

would have ensued in this instance. Accordingly, to

disturb the result below because of this irregularity

would be to elevate form over substance. We therefore

deem the error harmless for present purposes. But we

hereby admonish the PSC to accept funding for consult-

ants from a regulated party only where statutorily

authorized.

V. INTEREST AND POSTAGE

Appellant Forner argues that the PSC should have

required Consumers to pay interest as part of its

refunding of an improper subsidy to an appliance ser-

vice program (ASP) and should also have included

certain postage costs as among the expenses Consumers

incurred in providing services to that ASP and thus

subject to allocation to it.

These issues were in fact fully raised and decided in

the PSC’s favor in a complaint action, Case No.

U-14329. This Court affirmed that decision in its en-

tirety. Forner v Pub Serv Comm, unpublished opinion

per curiam of the Court of Appeals, issued February 19,

2008 (Docket No. 270941). The instant appeal is of the

result in the general rate case that accounted for the

subsidy at issue, and Forner apparently sees it as an

opportunity to revisit issues that were, or could have

120 291 M

ICH

106 [Dec

been, decided in the earlier proceedings. But the PSC,

citing the earlier litigation, declined to address these

issues in the instant case. We agree that the PSC’s

forbearance in this regard was appropriate.

The statutory provisions governing the operation of

ASPs are distinct from those governing ratemaking.

The earlier complaint action determined the existence

of an improper subsidy and its remedy. In the instant

ratemaking action, the PSC properly confined itself to

ensuring that those earlier determinations were re-

flected in the new rates. Further, to the extent that

preclusion doctrines are applicable, they too militate

against addressing the question of interest, or revisiting

the one of postage.

Under the doctrine of res judicata, “a final judgment

rendered by a court of competent jurisdiction on the merits

is conclusive as to the rights of the parties and their privies,

and, as to them, constitutes an absolute bar to a subse-

quent action involving the same claim, demand or cause of

action.” Black’s Law Dictionary (6th ed, 1990), p 1305. The

doctrine operates where the earlier and subsequent actions

involve the same parties or their privies, the matters of

dispute could or should have been resolved in the earlier

adjudication, and the earlier controversy was decided on its

merits. [Wayne Co v Detroit, 233 Mich App 275, 277; 590

NW2d 619 (1998).]

The doctrine applies “to every point which properly

belonged to the subject of litigation, and which the

parties, exercising reasonable diligence, might have

brought forward at the time.” Peterson Novelties, Inc v

City of Berkley, 259 Mich App 1, 11; 672 NW2d 351

(2003) (internal quotation marks and citations omit-

ted). “If the same facts or evidence would sustain both,

the two actions are the same for the purpose of res

judicata.” Id.

2010] In re C

ONSUMERS

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121

“Collateral estoppel bars relitigation of an issue in a

new action arising between the same parties or their

privies when the earlier proceeding resulted in a valid

final judgment and the issue in question was actually

and necessarily determined in that prior proceeding.”

Leahy v Orion Twp, 269 Mich App 527, 530; 711 NW2d

438 (2006), citing 1 Restatement Judgments, 2d, § 27,

p 250. In contrast to res judicata, “[c]ollateral estoppel

conclusively bars only issues ‘actually litigated’ in the

first action.” VanDeventer v Mich Nat’l Bank, 172 Mich

App 456, 463; 432 NW2d 338 (1988).

However, ratemaking is a legislative, rather than a

judicial, function, and thus the doctrines of res judicata

or collateral estoppel “cannot apply in the pure sense.”

Pennwalt Corp v Pub Serv Comm, 166 Mich App 1, 9;

420 NW2d 156 (1988). Even so, issues fully decided in

earlier PSC proceedings need not be “completely reliti-

gated” in later proceedings unless the party wishing to

do so establishes by new evidence or a showing of

changed circumstances that the earlier result is unrea-

sonable. Id.

We conclude that the question of interest was inher-

ently included with the overall determination of the

amount of billing relief to which the ratepayers were

entitled as the remedy for Consumers’ improper sub-

sidy of its ASP and, thus, should have been raised, if at

all, in the proceedings that resulted in that determina-

tion. No new evidence or change of circumstances has

suddenly thrown the question of interest into some new

light.

But the requirement to come forward with new

evidence or a showing of changed circumstances to

obtain renewed consideration of an issue decided in

earlier proceedings applies to questions of fact; there is

no such requirement where the question at issue is one

122 291 M

ICH

106 [Dec

of law. Consumers Energy Co v Pub Serv Comm, 268

Mich App 171, 177-178 n 3; 707 NW2d 633 (2005).

Forner insists that interest is statutorily required in

this situation, citing MCL 460.10(2)(d)-(e) and MCL

460.10a(4)-(5). In fact, the cited subsections of MCL

460.10 simply declare as among the purposes of the

Customer Choice and Electricity Reliability Act to “en-

sure that all persons in this state are afforded safe,

reliable electric power at a reasonable rate,” MCL

460.10(2)(d), and to “improve the opportunities for

economic development in this state and to promote

financially healthy and competitive utilities in this

state,” MCL 460.10(2)(e). The cited subsections of MCL

460.10a in turn call for the PSC to establish a code of

conduct for electric utilities to prevent “cross-

subsidization, information sharing, and preferential

treatment, between a utility’s regulated and unregu-

lated services,” MCL 460.10a(4), and authorize an elec-

tric utility to offer an ASP. Given that these authorities

merely set forth certain goals and methods for reaching

them, with no provision for remedies for any failure to

comply, Forner’s argument that those authorities re-

quire an assessment of interest whenever rates are

adjusted to compensate for improper subsidization of an

ASP is strained.

For these reasons, the PSC’s disinclination to con-

sider the question of interest in the instant proceeding

was neither unlawful nor otherwise unreasonable.

Concerning Forner’s argument about subsidization

of postal costs, this Court earlier concluded that “[t]he

PSC’s determination that Consumers’ ASP program

should not be charged for postage because the postage

subsidy created when Consumers includes an ASP

program advertising insert in its regular billing enve-

lopes is zero is a rational exercise of Consumers’ ability

2010] In re C

ONSUMERS

NERGY

PPLICATION

123

to set rates, is not arbitrary and capricious, and is not

inconsistent with other decisions.” Forner, unpub op at

5. If the PSC’s treatment of that issue were legislative

in nature, this Court’s disposal of it was an adjudication

that triggered the preclusion doctrine. The PSC prop-

erly eschewed consideration of that issue anew.

For these reasons, we conclude that the PSC properly

declined to take up the question of interest or revisit

that of postage.

We affirm.

124 291 M

ICH

106 [Dec

TRUEL v CITY OF DEARBORN

Docket No. 290600. Submitted May 5, 2010, at Detroit. Decided Decem-

ber 14, 2010, at 9:10 a.m.

Christopher Truel, a police officer in the city of Dearborn, brought

suit in the Wayne Circuit Court against the city of Dearborn and

several of its police officers, alleging violations of the Whistle-

blowers’ Protection Act (WPA), MCL 15.361 et seq. He alleged

that he had cooperated in investigations regarding a bar fight

that allegedly involved several Dearborn police officers, and he

asserted that he consequently had been investigated for being a

“dirty cop” and that he suffered depression and anxiety from

these incidents. He alleged that the Wayne County Prosecuting

Attorney’s office (WCPO) and the Michigan State Police had

conducted an investigation regarding the bar fight and had

concluded that it did not involve any illegal activity by Dearborn

police officers. Defense counsel requested the file from the

investigation under the Freedom of Information Act (FOIA),

MCL 15.231 et seq. The WCPO responded to the request, but

withheld the statements of four Dearborn police officers, given

pursuant to investigative subpoenas, and the final report of the

investigation. Defense counsel then subpoenaed the informa-

tion that had been withheld and the WCPO denied the request,

claiming that the materials were privileged work product and

protected by the deliberative process privilege, and that tran-

scripts of the statements and records were confidential under

MCL 767A.8. Defendants then filed a motion to compel discov-

ery in plaintiff’s action, and the court, Gershwin A. Drain, J.,

granted the motion. The WCPO appealed.

The Court of Appeals held:

1. MCL 767A.8 makes confidential certain items related to an

investigation, including (1) petitions for immunity, (2) orders

granting immunity, (3) transcripts of testimony delivered to wit-

nesses pursuant to grants of immunity, and (4) records, docu-

ments, and physical evidence obtained by the prosecuting attorney

pursuant to an investigation under the investigative-subpoena

statutes. Under MCL 767A.5(6), transcripts of witness testimony

are only available to a criminal defendant when the charges result

2010] T

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125

from information obtained through investigative subpoenas and

(a) the testimony is that of the defendant or (b) the testimony is

that of witnesses who will testify at trial. Because defendants were

not entitled to the transcripts of statements given by the four

police officers, the trial court abused its discretion by granting

defendants’ motion to compel the WCPO to produce the tran-

scripts.

2. The deliberative-process privilege protects governmental

material that would reveal advisory opinions, recommendations

and deliberations comprising part of a process by which govern-

mental decisions and policies are formulated. The privilege is

qualified rather than absolute, and it can be overcome by a

sufficient showing of need, which must be determined on a

case-by-case, ad hoc basis. The court must balance the eviden-

tiary need against the harm that could result from disclosure,

taking into account such factors as the relevance of the evi-

dence, the availability of other evidence, the seriousness of the

case, the role of the government, and the chilling effect on

future governmental action. Plaintiff’s suit was premised on his

compliance in the investigations into the bar fight and alleged

subsequent cover-up. Because the mere act of participating in

the investigations is itself protected activity, the truth and

credibility of the subpoenaed statements of the police officers is

irrelevant to a determination whether defendants harassed

plaintiff, denied him promotions, and accused him of miscon-

duct, and the trial court abused its discretion by granting

defendants’ motion to compel the WCPO to produce the final

report of the investigation.

Reversed and remanded.

1. P

RETRIAL

ROCEDURE —

ISCOVERY —

NVESTIGATIVE

UBPOENAS —

ONFIDEN-

TIALITY

MCL 767A.8 makes confidential certain items related to an investi-

gation, including (1) petitions for immunity, (2) orders granting

immunity, (3) transcripts of testimony delivered to witnesses

pursuant to grants of immunity, and (4) records, documents, and

physical evidence obtained by the prosecuting attorney pursuant

to an investigation under the investigative-subpoena statutes;

under MCL 767A.5(6), transcripts of witness testimony are only

available to a criminal defendant when the charges result from

information obtained through investigative subpoenas and (a) the

testimony is that of the defendant or (b) the testimony is that of

witnesses who will testify at trial.

126 291 M

ICH

125 [Dec

2. P

RETRIAL

ROCEDURE —

ISCOVERY —

OVERNMENTAL

GENCY

OCUMENTS —

ELIBERATIVE

-P

ROCESS

RIVILEGE

The deliberative-process privilege, which protects certain govern-

mental material, is qualified rather than absolute and can be

overcome by a sufficient showing of need, which must be deter-

mined on a case-by-case, ad hoc basis in which the court balances

the evidentiary need against the harm that could result from

disclosure, taking into account such factors as the relevance of the

evidence, the availability of other evidence, the seriousness of the

case, the role of the government, and the chilling effect on future

governmental action.

Morgan & Meyers, PLC (by Courtney E. Morgan, Jr.,

and Brian J. Nagy), for Christopher Truel.

Debra A. Walling, Corporation Counsel, and Kim-

berly M. Craig, Assistant Corporation Counsel, for the

City of Dearborn, Michael Celeski, Joseph Doulette, and

Jeffrey Geisinger.

Kym L. Worthy, Prosecuting Attorney, Timothy A.

Baughman, Chief of Research, Training and Appeals,

and Jason W. Williams, Assistant Prosecuting Attor-

ney, for the Wayne County Prosecuting Attorney’s

Office.

Before: C

AVANAGH

,P.J., and O’C

ONNELL

and W

ILDER

JJ.

ILDER

, J. Appellant Wayne County Prosecutor’s

Office (WCPO) appeals by delayed leave granted

order granting defendants’ motion to compel discovery

and requiring the WCPO to “produce its entire file to

Defendants’ Counsel, including factual and deliberative

material.” We reverse and remand for further proceed-

ings.

Truel v City of Dearborn, unpublished order of the Court of Appeals,

entered March 2, 2009 (Docket No. 290600).

2010] T

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127

According to the complaint, plaintiff, a Dearborn

police officer, was dispatched to Falls Sports Lounge on

February 15, 2004, to investigate a report of a bar fight.

Plaintiff alleged that, upon arrival, he saw several

Dearborn police officers exiting the back door. He

further alleged that the chief of police, Michael Celeski,

and another Dearborn police officer, Joseph Doulette,

were “in the bar area” and “appeared to have just been

involved in a fight.” Another person was “lying on the

floor of the bar covered in blood.” Plaintiff learned from

a witness that Celeski was one of the people who started

the fight and “had been swinging a pool stick during the

actual altercation.” Plaintiff alleged that Celeski told

him that, if he knew what was good for him, he would

“end the investigation and ‘get the f*** out of here.’ ”

Plaintiff obeyed his commanding officer.

Plaintiff alleged that, following the Fall Sports

Lounge incident, he was harassed and ridiculed by

other members of the department, including those in

command, and he was denied promotions. Plaintiff

maintained that he cooperated in investigations regard-

ing this incident by the Dearborn City Council, the

Michigan State Police, and the WCPO. A week after

plaintiff “answered an investigative subpoena” and

testified under oath, plaintiff found himself under in-

vestigation for allegedly being a “dirty cop.” Plaintiff’s

doctors subsequently “ordered [him] off work . . . due to

depression and anxiety related to post traumatic stress

directly stemming” from these incidents as well as an

unrelated shooting involving another officer. Plaintiff

then sued defendants for violation of the Whistleblow-

ers’ Protection Act (WPA), MCL 15.361 et seq.

As alleged in the complaint, the WCPO and the

Michigan State Police conducted an investigation re-

128 291 M

ICH

125 [Dec

garding “potential misconduct by members of [the

Dearborn] police department at the Fall’s [sic] Lounge

in 2004” and “concluded that there [was] no credible

evidence of any illegal activities by members of [the]

department.” After plaintiff initiated his WPA action,

defense counsel requested “the entire investigative file”

from the investigation, including “any and all inter-

views, transcripts, notes, etc.” under the Freedom of

Information Act (FOIA), MCL 15.231 et seq. The WCPO

responded to the request, but withheld “statements

given by four Dearborn Police Officers pursuant to the

investigative subpoenas” and “a final report of the

investigation.” Corporation counsel then requested by

subpoena the information that had been withheld, and

the WCPO denied the request, claiming that the mate-

rials were “privileged work product” and protected

under “the deliberative process privilege,” and that

transcripts of the statements and records were confi-

dential under MCL 767A.8. Defendants thereafter filed

a motion to compel discovery in plaintiff’s action, which

the trial court granted.

At the outset, we note that “the discovery rules and

the FOIA represent ‘two independent schemes for ob-

taining information.” Central Mich Univ Supervisory-

Technical Ass’n MEA/NEA v Central Mich Univ Bd of

Trustees, 223 Mich App 727, 731; 567 NW2d 696 (1997)

OLBROOK

, J., concurring) (citation omitted). There-

fore, discovery in a civil action and the FOIA are subject

to different procedures and enforcement mechanisms.

Under the FOIA, a person has a right to inspect a

public record of a public body upon written request

unless the record is exempt from disclosure. MCL

15.233(1). The public body must furnish the person

2010] T

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129

with a reasonable opportunity to inspect and examine

the records. MCL 15.233(3). If a public body denies all

or part of a request for a public record, the person

requesting the document may either appeal the decision

to the head of the public body or file a civil action in the

circuit court to compel the public body to disclose the

public record. MCL 15.240(1). This appeal must be

decided without reference to FOIA because there is

nothing in the record to show that defendants satisfied

the requirements of MCL 15.240(1) by appealing the

denial if their discovery requests to the head of the

WCPO, or by filing a separate FOIA civil action in the

circuit court.

However, in this claim under the WPA, as in a civil

action generally, “[p]arties may obtain discovery re-

garding any matter, not privileged, which is relevant to

the subject matter involved in the pending action,

whether it relates to the claim or defense of the party

seeking discovery or to the claim or defense of another

party....” MCR 2.302(B)(1). Discovery may be ob-

tained “by any means provided in subchapter 2.300” of

the court rules. MCR 2.302(A)(1). Any person may be

deposed pursuant to MCR 2.306(A)(1). The deponent

may be subpoenaed to appear and may be directed to

produce documents or other tangible things. MCR

2.306(B)(1) and (3). A deposition notice and subpoena

“may provide that the deposition is solely for producing

documents...forinspection and copying, and that the

party does not intend to examine the deponent.” MCR

2.305(A)(3). If the deponent objects, “the party serving

the subpoena is not entitled to inspect and copy the

materials without an order of the court in which the

action is pending.” MCR 2.305(B)(2). “The party serv-

ing the subpoena may, with notice to the deponent,

move for an order compelling production of the desig-

nated materials.” MCR 2.305(B)(3). Thus, because de-

130 291 M

ICH

125 [Dec

fendants have disputed the denial of their subpoena

requesting the withheld information, a motion to com-

pel was an appropriate means by which to seek its

production.

A. APPLICABILITY OF MCL 767A.8

On appeal, the WCPO argues that the transcripts of

statements given by the four police officers cannot be

disclosed under the investigative-subpoena statutes. We

agree. A trial court’s ruling on a discovery motion is

reviewed for an abuse of discretion. Holman v Rasak,

281 Mich App 507, 508; 761 NW2d 391 (2008). We

review de novo issues of privilege, In re Costs &

Attorney Fees, 250 Mich App 89, 98; 645 NW2d 697

(2002), questions of law, including the interpretation of

statutes, Van Reken v Darden, Neef & Heitsch, 259 Mich

App 454, 456; 674 NW2d 731 (2003), and the construc-

tion, interpretation, and application of the court rules,

ISB Sales Co v Dave’s Cakes, 258 Mich App 520, 526;

672 NW2d 181 (2003); Kernen v Homestead Dev Co, 252

Mich App 689, 692; 653 NW2d 634 (2002).

The rules of statutory construction require that

courts give effect to the Legislature’s intent. Bush v

Shabahang, 484 Mich 156, 166; 772 NW2d 272 (2009).

Courts should first look to the specific statutory lan-

guage to determine the intent of the Legislature, which

is presumed to intend the meaning that the statute

plainly expresses. Institute in Basic Life Principles, Inc

v Watersmeet Twp (After Remand), 217 Mich App 7, 12;

551 NW2d 199 (1996). “If the statutory language is

clear and unambiguous, judicial construction is neither

required nor permitted, and courts must apply the

statute as written.” Rose Hill Ctr, Inc v Holly Twp, 224

Mich App 28, 32; 568 NW2d 332 (1997). If reasonable

minds could differ regarding the meaning of a statute,

2010] T

RUEL V

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131

judicial construction is appropriate. Yaldo v North

Pointe Ins Co, 457 Mich 341, 346; 578 NW2d 274 (1998).

The investigative-subpoena statutes permit the pros-

ecuting attorney to petition the court for an investiga-

tive subpoena. MCL 767A.2(1). The petition must iden-

tify “each person who will be questioned or who will be

required to produce material” and the “records, docu-

ments, or physical evidence to be examined,” and ex-

plain why “the testimony of the person or examination

of the records, documents, or physical evidence is rel-

evant to the investigation.” MCL 767A.2(2)(b), (c), and

(d). If the petition is approved, the subpoena must set

forth “[t]he time and place for taking the person’s

testimony or for the person to produce the required

documents or physical evidence” and “describ[e] the

records, documents, or physical evidence” to be pro-

duced. MCL 767A.4(1)(b) and (e). “A person properly

served with an investigative subpoena . . . shall appear

before the prosecuting attorney and answer questions

concerning the felony being investigated or produce any

records, documents, or physical evidence he or she is

required to produce.” MCL 767A.5(1). The prosecutor

may, with court approval, grant immunity to a person

“whom the prosecuting attorney intends to require to

give testimony concerning” the matter under investiga-

tion. MCL 767A.7(1). If a criminal charge is filed

against a person as a result of information obtained

during the investigation, that person is entitled to a

copy of the testimony he provided in response to a

subpoena as well as that of every subpoenaed witness

who will testify at trial. MCL 767A.5(6).

MCL 767A.8 provides:

Petitions for immunity, orders of immunity, transcripts

of testimony delivered to witnesses pursuant to grants of

immunity, and records, documents, and physical evidence

132 291 M

ICH

125 [Dec

obtained by the prosecuting attorney pursuant to an inves-

tigation under this chapter are confidential and shall not

be available for public inspection or copying or divulged to

any person except as otherwise provided in this chapter.

Material and information obtained under this act are

exempt from disclosure under the [FOIA].

The plain language of § 8 makes several delineated

items related to an investigation confidential, including

(1) petitions for immunity, (2) orders granting immu-

nity, (3) “transcripts of testimony delivered to witnesses

pursuant to grants of immunity,”

and (4) “records,

documents, and physical evidence obtained by the pros-

ecuting attorney pursuant to an investigation under

this chapter.” Given the act’s repeated references to

testimony or answering questions on the one hand and

records, documents, or physical evidence on the other

hand, and the fact that one or the other or both may be

subpoenaed, MCL 767A.2(2), it appears that testimony

is not the same as “records, documents, or physical

evidence.” The distinction is supported by dictionary

definitions, which indicate that “testimony” is a state-

ment or declaration given by a witness under oath,

whereas a “document” is a written or printed paper

furnishing information or some other written item and

a “record” is a written account of facts or events.

Why “transcripts of testimony delivered to witnesses pursuant to

grants of immunity” should specifically be confidential is not entirely

clear because unlike the grand jury act after which it is modeled, Senate

Legislative Analysis, SB 85, August 10, 1995, p 4, the investigative

subpoena act does not otherwise provide that transcripts of testimony

given under a grant of immunity be given to the testifying witness. Cf.

MCL 767.19b(3) (a witness who testifies before a grand jury under a

grant of immunity is entitled to a transcript of his testimony if he is

prosecuted for an offense in violation of the grant of immunity) and MCL

767.19f(3) (transcripts of testimony “delivered to a witness pursuant to

his or her grant of immunity” cannot be disclosed to anyone other than

“his or her attorney”).

2010] T

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133

Random House Webster’s College Dictionary (1997), pp

385, 1087, 1330. While a transcript of testimony cer-

tainly could be considered a record or document, given

that it is a written copy of oral testimony, Black’s Law

Dictionary (7th ed), p 1503, it is not a record or

document “obtained by the prosecuting attorney pur-

suant to an investigation under this chapter.” Rather, a

transcript is a subsequent reduction to writing of testi-

mony “obtained under this act.” Defendants argue that

the only transcripts treated as confidential under the

investigative-subpoena statutes are those “of testimony

delivered to witnesses pursuant to grants of immunity.”

However, this interpretation does not harmonize and

give effect to §8 and the investigative subpoena statutes

as a whole. Robinson v City of Lansing, 486 Mich 1, 15;

782 NW2d 171 (2010); Bush, 484 Mich at 167.

The delineated items in § 8 were clearly not intended

to be an all-encompassing expression of the elements of

an investigation that are considered confidential. For

example, the petition for an investigative subpoena

itself is confidential, MCL 767A.2(5), and MCL

767A.5(6) provides for the limited disclosure of testi-

mony to a defendant who has been charged based upon

information obtained pursuant to the investigative-

subpoena statutes. The more likely explanation is that

the delineated items in § 8 were meant to address those

matters not already covered elsewhere in the act. Fur-

ther, it would make little sense in § 8 to specifically

exempt all “[m]aterial and information” obtained dur-

ing the investigation, which would certainly include

witness testimony and transcripts thereof, from disclo-

sure under the FOIA if the same material and informa-

tion were not intended to be confidential under the

investigative-subpoena statutes “except as otherwise

provided in this chapter.” We reject an interpretation

that the Legislature intended that transcripts of wit-

134 291 M

ICH

125 [Dec

ness testimony be available upon request as long as the

request is not made under the FOIA.

Because transcripts of witness testimony are only

available to a criminal defendant when the charges

result from information obtained through investigative

subpoenas and (a) the testimony is that of the defen-

dant or (b) the testimony is that of witnesses who will

testify at trial, MCL 767A.5(6), defendants here are not

entitled to the transcripts of statements given by the

four police officers. Therefore, the trial court abused its

discretion by granting defendants’ motion to compel the

WCPO to produce the transcripts.

B. APPLICABILITY OF THE DELIBERATIVE-PROCESS PRIVILEGE

As we noted earlier in this opinion, parties may

obtain discovery of any matter that is relevant and not

privileged. MCR 2.302(B)(1). “Privilege is governed by

the common law, except as modified by statute or court

rule.” MRE 501.

In Ostoin v Waterford Twp Police Dep’t, 189 Mich

App 334, 337; 471 NW2d 666 (1991), the Court adopted

the deliberative-process privilege recognized under fed-

eral law. According to the Ostoin Court, “the central

question . . . is whether the material sought is factual or

evaluative” because “factual material falls outside the

scope of the privilege; to be protected, the material must

comprise part of the deliberative or evaluative process.”

Id. at 338. Another court described the privilege as

follows:

[I]t allows the government to withhold documents and

other materials that would reveal “advisory opinions, rec-

ommendations and deliberations comprising part of a pro-

cess by which governmental decisions and policies are

formulated.” Although this privilege is most commonly

encountered in Freedom of Information Act...litigation,

2010] T

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it originated as a common law privilege. Two requirements

are essential to the deliberative process privilege: the

material must be predecisional and it must be deliberative.

Both requirements stem from the privilege’s “ultimate

purpose[, which]...istoprevent injury to the quality of

agency decisions” by allowing government officials freedom

to debate alternative approaches in private. The delibera-

tive process privilege does not shield documents that sim-

ply state or explain a decision the government has already

made or protect material that is purely factual, unless the

material is so inextricably intertwined with the delibera-

tive sections of documents that its disclosure would inevi-

tably reveal the government’s deliberations. [In re Sealed

Case, 326 US App DC 276, 284; 121 F3d 729 (1997)

(citations and footnote omitted, last edit in original).]

[

]

In NLRB v Sears, Roebuck & Co, 421 US 132, 152 n 19;

95 S Ct 1504; 44 L Ed 2d 29 (1975), the Supreme Court

noted that there is not always a bright line between

predecisional documents and postdecisional documents

because a document may include both an explanation of

a “decision just made,” which is postdecisional, and

guidelines for future analogous decisions, which is

predecisional.

Because the privilege is qualified rather than abso-

lute, it can be overcome by a sufficient showing of need.

Ostoin, 189 Mich App at 338. “This need determination

is to be made flexibly on a case-by-case, ad hoc basis.” In

re Sealed Case, 326 US App DC at 284. The court must

balance the evidentiary need against the harm that

could result from disclosure, taking into account such

factors as the relevance of the evidence, the availability

of other evidence, the seriousness of the case, the role of

the government, and the chilling effect on future gov-

ernment action. Id. at 284-285.

Decisions from lower federal courts are not binding but may be

considered persuasive. Walters v Nadell, 481 Mich 377, 390 n 32; 751

NW2d 431 (2008).

136 291 M

ICH

125 [Dec

The trial court determined that the WCPO’s final

report of the investigation was subject to the

deliberative-process privilege, but that defendants had

overcome the privilege by the showing of need. The trial

court declined to review the final report in camera

before making its ruling and it is unclear from the

record on appeal whether the final report contained

deliberative, predecisional information. NLRB, 421 US

at 152 n 19. However, if defendants wished to contest

the trial court’s failure to review the final report and

the conclusion that it fell within the deliberative-

process privilege, defendants should have filed a cross-

appeal with this Court. Although an appellee need not

file a cross-appeal to argue an alternative basis for

affirming the trial court’s decision, an appellee cannot

obtain a decision more favorable than the decision

rendered by the trial court. Middlebrooks v Wayne Co,

446 Mich 151, 166 n 41; 521 NW2d 774 (1994);

Turcheck v Amerifund Fin, Inc, 272 Mich App 341,

350-351; 725 NW2d 684 (2006). Therefore, we shall

limit our review to the WCPO’s claim on appeal that the

trial court abused its discretion when it found that

defendants demonstrated a sufficient showing of need

to compel production of the final report.

Defendants contend that they need the final report to

discover why the WCPO determined “that there is no

credible evidence of any illegal activities by members of

[the] department,” which may have resulted from a

finding that “[p]laintiff’s report was false and whether

the Plaintiff knew that it was false.” Defendants fur-

ther contend that the final report may contain informa-

tion relevant to plaintiff’s credibility about the Falls

Sports Lounge incident. As plaintiff counters, however,

defendants have misapprehended the nature of the

claim against them.

2010] T

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The WPA provides:

An employer shall not discharge, threaten, or otherwise

discriminate against an employee regarding the employee’s

compensation, terms, conditions, location, or privileges of

employment because the employee, or a person acting on

behalf of the employee, reports or is about to report,

verbally or in writing, a violation or a suspected violation of

a law or regulation or rule promulgated pursuant to law of

this state, a political subdivision of this state, or the United

States to a public body, unless the employee knows that the

report is false, or because an employee is requested by a

public body to participate in an investigation, hearing, or

inquiry held by that public body, or a court action. [MCL

15.362.]

The elements of a cause of action under the WPA are (1)

the plaintiff was engaged in a protected activity as defined

by the act, (2) the plaintiff was discharged or discrimi-

nated against, and (3) a causal connection exists between

the protected activity and the discharge or adverse em-

ployment action. West v Gen Motors Corp, 469 Mich 177,

183-184; 665 NW2d 468 (2003). There are three types of

protected activity: “(1) reporting to a public body a viola-

tion of a law, regulation, or rule, (2) being about to report

such a violation to a public body, or (3) being asked by a

public body to participate in an investigation.” Ernsting v

Ave Maria College, 274 Mich App 506, 510; 736 NW2d 574

(2007). The first two types of activity are protected,

“unless the employee knows that the report is false.” MCL

15.362. In other words, reporting or being about to report

violations or suspected violations is protected if the report

is or is about to be made in good faith. Truth or falsity is

not an element of the third type of protected activity

because the employee does not report or anticipate report-

ing violations or suspected violations but is sought as a

source of information by a public body that is investigat-

ing violations or suspected violations. Id.

138 291 M

ICH

125 [Dec

The crux of plaintiff’s complaint is that he was

involved in the third type of protected activity—

defendants allegedly discriminated against plaintiff in

retaliation for “comply[ing] with the requests of the

Mayor of Dearborn, the Michigan State Police and

[WCPO] to participate in their respective investigations

into the Falls Sports Lounge incident and subsequent

cover-up by Defendants.” The mere act of participating

in the investigations is itself protected activity. Shaw v

Ecorse, 283 Mich App 1, 11-12; 770 NW2d 31 (2009).

Whatever plaintiff may have reported pursuant to the

investigation and any evaluation of the truth and

credibility of that testimony by the WCPO is irrelevant

to a determination whether defendants harassed plain-

tiff, denied him promotions, and accused him of miscon-

duct because he participated in a public body’s investi-

gation. Accordingly, we conclude that the trial court

erred in finding that defendants demonstrated a suffi-

cient showing of need for the final report to overcome

the deliberative-process privilege and consequently, the

trial court abused its discretion by granting defendants’

motion to compel the WCPO to produce the report.

We reverse and remand for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

2010] T

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GRIMM v DEPARTMENT OF TREASURY

Docket No. 293457. Submitted November 5, 2010, at Grand Rapids.

Decided December 16, 2010, at 9:00 a.m.

Petitioner, Robert S. Grimm, a corporate officer of Affiliated Insur-

ance Agency, was assessed by respondent, the Department of

Treasury, more than a million dollars in unpaid corporate taxes

under MCL 205.27a(5). Petitioner’s counsel received notice of the

final assessment from respondent on August 1, 2008, in a letter

dated July 22, 2008. On August 5, 2008, petitioner’s counsel gave

a petition contesting the final assessment to a delivery service

designated by the Tax Tribunal for the delivery of such petitions.

The Tax Tribunal received the petition from the overnight delivery

service on August 6, 2008. On December 16, 2008, the Tax

Tribunal entered an order placing petitioner in default because

proof of service to the respondent was lacking, as were the

assessment numbers being appealed. Petitioner’s counsel then

provided the required proof of service, but not the assessment

numbers being appealed. On January 8, 2009, the Tax Tribunal

entered an order dismissing the petition because the default had

not been cured. Petitioner received copies of the assessments on

February 19, 2009, and, instead of moving to set aside the

dismissal, filed the assessment numbers being appealed with the

Tax Tribunal on March 9, 2009. The parties then filed a joint

stipulation requesting an abeyance pending the outcome of an

informal conference regarding the assessments. The Tax Tribunal

denied the motion to abey, reasoning that because the matter had

already been dismissed good cause to grant the motion was

lacking. The Tax Tribunal also determined that the original

petition was untimely filed and that it, thus, had lacked authority

to consider the petition at the outset. The Tax Tribunal ordered

that its January 8, 2009, order be corrected to indicate that the

untimely filing of the petition resulted in the dismissal of the case.

Petitioner appealed.

The Court of Appeals held:

1. MCL 205.735a establishes the filing deadlines for petitions

contesting tax assessments. Under the statute, a petition regard-

ing the assessment at issue in this case, personal liability for

140 291 M

ICH

140 [Dec

unpaid corporate taxes under MCL 205.27a(5), must be filed

within 35 days after the final assessment. Under MCL

205.735a(7)(c), a petition will be deemed to be timely filed if it is

given to a designated delivery service on or before the expiration of

the 35-day period and the petition is delivered by the designated

delivery service. August 5, 2008, was the last day of the 35-day

period that petitioner had to file the petition. The petition was

timely filed because petitioner gave the petition to the designated

delivery service on August 5, 2008, even though it was not

delivered until August 6, 2008. The Tax Tribunal erred in ordering

dismissal on the basis that the petition was untimely.

2. The Tax Tribunal should consider the following factors

before imposing the sanction of dismissal for failure to comply

with its rules or orders: (1) whether the violation was willful or

accidental; (2) the party’s history of refusing to comply with

previous orders of the Tax Tribunal; (3) the prejudice to the

opposing party; (4) whether there exists a history of deliberate

delay; (5) the degree of compliance with other parts of the Tax

Tribunal’s orders; (6) attempts to cure the defect; and (7) whether

a lesser sanction would better serve the interests of justice. The

record should reflect that the Tax Tribunal, when considering the

sanction of dismissal, gave careful consideration to the factors

involved and considered all its options in determining what

sanction was just and proper in the context of the case before it.

3. Petitioner’s failure to produce the assessment numbers was

not willful and he had no history of deliberately delaying the

proceedings or refusing to abide by the Tax Tribunal’s orders.

There was no showing that respondent was prejudiced by petition-

er’s failure to timely cure the defect. Because respondent issued

the assessments, it is reasonable to expect that respondent would

have been able to determine the assessment numbers correspond-

ing to the periods identified in petitioner’s petition. The degree of

noncompliance and the lack of resulting prejudice did not warrant

dismissal. The Tax Tribunal abused its discretion by dismissing

the petition on the basis of petitioner’s failure to provide the

assessment numbers within the period allotted.

Reversed and remanded.

1. T

AXATION —

RIBUNAL —

ILING OF

ETITIONS IN

RIBUNAL —

ESIGNATED

ELIVERY

ERVICES

A petition filed in the Tax Tribunal is considered filed on or before

the expiration of the period provided in MCL 205.735a for the

filing of the petition if the petition is given to a delivery service

2010] G

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’

141

designated by the Tax Tribunal for delivery on or before the

expiration of the time period and the petition is delivered by the

designated delivery service.

2. T

AXATION —

RIBUNAL —

ISMISSALS

The Tax Tribunal, before imposing the sanction of dismissal for

failure to comply with its rules or orders, should consider (1)

whether the violation was willful or accidental, (2) the party’s

history of refusing to comply with previous orders of the Tax

Tribunal, (3) the prejudice to the opposing party, (4) whether there

exists a history of deliberate delay, (5) the degree of compliance

with other parts of the Tax Tribunal’s orders, (6) attempts to cure

the defect, and (7) whether a lesser sanction would better serve the

interests of justice.

Kemp Klein Law Firm (by Richard Bisio) for peti-

tioner.

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, and Heather M. S. Durian, Assistant

Attorney General, for respondent.

Before: M. J. K

ELLY

,P.J.,andK.F.K

ELLY

and

ORRELLO

,JJ.

URIAM

. Petitioner appeals as of right the Michi-

gan Tax Tribunal’s order denying the parties’ joint

motion to abey and dismissing his petition contesting a

final assessment for $1,707,147 of unpaid corporate

taxes. The Tax Tribunal ultimately dismissed the peti-

tion because it found that the petition was untimely

filed. We reverse and remand for further proceedings.

I. BASIC FACTS

Petitioner is a corporate officer of Affiliated Insur-

ance Agency. On July 1, 2008, respondent, the Michigan

This appeal has been decided without oral argument pursuant to

MCR 7.214(E).

142 291 M

ICH

140 [Dec

Department of Treasury, assessed petitioner over a

million dollars in unpaid corporate taxes from certain

tax periods in 2006 and 2007. These taxes were assessed

against petitioner individually under MCL 205.27a(5),

which permits such an assessment against a corporate

officer who has “control or supervision of, or responsi-

bility for” paying the corporation’s taxes.

On August 1, 2008, petitioner’s counsel received

notice of the final assessment from the department in a

letter dated July 22, 2008.

On August 5, 2008, petition-

er’s counsel delivered the petition contesting the final

assessment to Federal Express (FedEx) for overnight

delivery. The Tax Tribunal received the petition the

next day. Petitioner alleged that he was not individually

liable for the withheld taxes because he did not have

control of the corporation’s financial decisions.

On December 16, 2008, the Tax Tribunal entered an

order placing petitioner in default because proof of

service to the opposing party was lacking, as were the

assessment numbers being appealed. On December 31,

2008, petitioner’s counsel provided the required proof

of service. However, petitioner did not provide the Tax

Tribunal with the assessment numbers being appealed,

despite efforts to obtain the assessments from respon-

dent. Thus, the Tax Tribunal entered an order of

dismissal against petitioner on January 8, 2009, reason-

ing that petitioner had failed to cure the default.

Apparently, petitioner did not receive notice of the final assessment

until August 1, 2008, and respondent has not shown otherwise, i.e., there

is no proof that the final assessment was mailed in early July. Notably,

respondent’s July 22 letter to petitioner suggests that petitioner did have

some type of notice because it states, “We have received and processed

your correspondence, dated July 11, 2008, regarding Corporate Officer

Liability.” However, it cannot be inferred on the basis of this statement

that petitioner was in possession of the final assessment numbers.

2010] G

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’

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Petitioner finally received copies of the assessments

on February 19, 2009. Instead of moving to set aside the

dismissal, petitioner filed the assessment numbers with

the Tax Tribunal on March 9, 2009. Subsequently, on

March 12, 2009, the parties filed a joint stipulation

requesting an abeyance pending the outcome of an

informal conference to contest the assessments, consis-

tent with MCL 205.21(2)(c) and (d). On March 26, 2009,

the Tax Tribunal denied the parties’ joint motion to

abey, reasoning that because the case had already been

dismissed good cause to grant the motion was lacking.

The Tax Tribunal also determined that the original

petition was untimely filed, citing MCL 205.22 and

Electronic Data Sys Corp v Flint Twp, 253 Mich App

538; 656 NW2d 215 (2002), and that it, thus, lacked

authority to consider the petition at the outset. It

ordered that the January 8, 2009, order be corrected to

indicate that the untimely filing of the petition resulted

in the dismissal of the case. Petitioner moved for a

rehearing, but the Tax Tribunal denied the motion.

This appeal followed.

II. WAS THE PETITION UNTIMELY FILED?

Petitioner first argues that the Tax Tribunal errone-

ously determined that the original petition was un-

timely filed on August 6, 2008, the date it was received,

rather than timely filed on August 5, 2008, the date

counsel gave it to FedEx. Resolution of this issue

requires the interpretation and application of a statute

to undisputed facts, which present questions of law that

we review de novo. Alvan Motor Freight, Inc v Dep’t of

Treasury, 281 Mich App 35, 38; 761 NW2d 269 (2008).

This Court’s primary goal in interpreting a statute is to

determine and give effect to the Legislature’s intent.

Kmart Mich Prop Servs, LLC v Dep’t of Treasury, 283

144 291 M

ICH

140 [Dec

Mich App 647, 650; 770 NW2d 915 (2009). Our analysis

begins with an examination of the language used. “If

the statutory language is unambiguous, the Legislature

is presumed to have intended the meaning expressed in

the statute and judicial construction is not permis-

sible.” Mt Pleasant v State Tax Comm, 477 Mich 50, 53;

729 NW2d 833 (2007). “[A] provision of the law is

ambiguous only if it ‘irreconcilably conflict[s]’ with

another provision or when it is equally susceptible to

more than a single meaning.” Lansing Mayor v Pub

Serv Comm, 470 Mich 154, 166; 680 NW2d 840 (2004).

However, this Court will generally defer “to the Tax

Tribunal’s interpretation of a statute that it is del-

egated to administer.” Beznos v Dep’t of Treasury (On

Remand), 224 Mich App 717, 721; 569 NW2d 908

(1997).

Because this case was commenced after December

31, 2006, MCL 205.735a, which governs the Tax Tribu-

nal’s jurisdiction in assessment disputes, is applicable.

MCL 205.735a(1). MCL 205.735a provides, in relevant

part:

(6) The jurisdiction of the tribunal in an assessment

dispute as to...commercial real property, industrial real

property, developmental real property, commercial per-

sonal property, industrial personal property, or utility per-

sonal property is invoked by a party in interest, as peti-

tioner, filing a written petition on or before May 31 of the

tax year involved. The jurisdiction of the tribunal in an

assessment dispute as to... agricultural real property,

residential real property, timber-cutover real property, or

agricultural personal property is invoked by a party in

interest, as petitioner, filing a written petition on or before

July 31 of the tax year involved. In all other matters, the

jurisdiction of the tribunal is invoked by a party in interest,

as petitioner, filing a written petition within 35 days after

the final decision, ruling, or determination....

2010] G

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145

(7) A petition is considered filed on or before the

expiration of the time period provided in this section or by

law if 1 or more of the following occur:

(a) The petition is postmarked by the United States

postal service on or before the expiration of that time

period.

(b) The petition is delivered in person on or before the

expiration of that time period.

for delivery on or before the expiration of that time period

and the petition is delivered by that designated delivery

service or, if the petition is not delivered by that designated

delivery service, the petitioner establishes that the petition

was given to that designated delivery service for delivery on

or before the expiration of that time period. [Emphasis

added.]

MCL 205.735a(6) establishes filing deadlines for peti-

tions contesting tax assessments. The first two sen-

tences of subsection (6) address deadlines for contesting

certain types of assessments related to real or personal

property not involved in the present matter. In all other

matters, which would included the assessment at issue

here—personal liability for unpaid corporate taxes,

MCL 205.27a(5)—the petition must be filed within 35

days after the final assessment. Here, the parties do not

dispute that the petition would have been timely filed

within this 35-day period if it is considered to have been

filed on August 5, 2008. And, it is also clear that the

petition was given to a designated delivery service on

August 5, 2008, because the FedEx mailing envelope is

marked “05AUG08 19:13.”

Under MCL 205.735a(11), “ ‘designated delivery service’ [as used in

MCL 205.735a] means a delivery service provided by a trade or business

that is designated by the tribunal for purposes of this subsection.”

Tribunal Notice 2007-6, issued December 20, 2007, and effective Decem-

146 291 M

ICH

140 [Dec

Thus, the question becomes: Was the petition, which

was given to FedEx on August 5, 2008, timely filed

consistent with MCL 205.735a(7)? Because it is undis-

puted that petitioner used a designated delivery service,

FedEx Priority Overnight, only subdivision (c) of sub-

section (7) is applicable. Under this provision, as appli-

cable to the present matter, a petition will be timely

filed if it “is given to a designated delivery service for

delivery on or before the expiration of that time period

and the petition is delivered by that designated delivery

service....”

In our view, this portion of the provision is unam-

biguous. It simply means that the petition must be

given to a designated delivery service for delivery on or

before the deadline date—it does not have to be deliv-

ered by that date—and it must be delivered by that

same designated delivery service. This interpretation is

supported by Tribunal Notice 2006-5, issued December

28, 2006, and effective December 31, 2006, which pro-

vides the following guidance:

Appeals are deemed to be filed by the appropriate

deadline date if received on that date, mailed by first-class

mail provided the envelope is postmarked by the United

States Postal Service on or before that date, or delivered by

one of the delivery services designated herein provided the

appeal was given to the delivery service on or before that

date. [Emphasis added.]

We find this guidance to be persuasive. Tax Tribunal

notices are intended to “provide the public an under-

standing of the Tribunal’s interpretation of the Tax

Tribunal Act” and its “internal processing practices,”

and to “assist the Tribunal in clarifying the internal

processing practices for administrative staff and ensure

ber 31, 2007, includes FedEx, and specifically FedEx Priority Overnight,

as a designated delivery service for purposes of MCL 205.735a.

2010] G

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’

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uniform, efficient processing of cases among the Tribu-

nal members and its administrative staff.” Tribunal

Notice 2004-1, issued May 13, 2004. Further, the Tax

Tribunal’s interpretation is convincing, inasmuch as it

does not clearly conflict with MCL 205.735a(7)(c) and it

is consistent with the treatment of a filing when it is

mailed through the United States Postal Service, i.e., a

petition is timely filed if it is postmarked on or before

the expiration date of the time period, MCL

205.735a(7)(a). Thus, affording “respectful consider-

ation” to the Tribunal Notice and absent “cogent rea-

sons” for overruling it, Kmart Mich Prop Servs, 283

Mich App at 651 (quotation marks and citations omit-

ted), we conclude that under MCL 205.735a(7)(c), a

petition will be timely filed if a designated delivery

service is given the petition on or before the deadline

date and it is subsequently delivered by that same

delivery service.

As noted, August 5, 2008, was the last day of the

35-day period that petitioner had to file his petition. See

MCL 205.735a(6). And, because petitioner gave the

petition to FedEx on August 5, 2008, the petition was

timely filed, even though the Tax Tribunal received it

the next day after the expiration of the filing deadline.

See MCL 205.735a(7)(c). Accordingly, the Tax Tribu-

nal’s order of dismissal on the basis that the petition

was untimely filed was erroneous.

III. WAS PETITIONER’S FAILURE TO CURE THE DEFAULT

GROUNDS FOR DISMISSAL?

Petitioner also challenges the Tax Tribunal’s Janu-

ary 8, 2009, original order of dismissal in which the Tax

Tribunal dismissed the petition on the basis of petition-

er’s failure to timely correct the default. Specifically,

petitioner did not identify the assessment numbers

148 291 M

ICH

140 [Dec

being appealed within the required 21 days. We agree

with petitioner. We review for an abuse of discretion a

decision by the Tax Tribunal to dismiss a petition for

failure to comply with its rules or orders. Prof Plaza,

LLC v Detroit, 250 Mich App 473, 475; 647 NW2d 529

(2002). The abuse-of-discretion standard recognizes

that there will be circumstances in which there will be

more than one reasonable and principled outcome, and

selection of one of these principled outcomes is not an

abuse of discretion. Maldonado v Ford Motor Co, 476

Mich 372, 388; 719 NW2d 809 (2006).

Petitioner contends that this Court’s evaluation of

factors analogous to those cited in Vicencio v Jaime

Ramirez, MD, PC, 211 Mich App 501; 536 NW2d 280

(1995), would indicate that the dismissal was an abuse

of discretion and urges the adoption of similar factors

here. In Vicencio, this Court summarized the factors

that a trial court applying the Michigan Court Rules

should consider before imposing the sanction of dis-

missal, including:

(1) whether the violation was wilful or accidental; (2)

the party’s history of refusing to comply with previous

court orders; (3) the prejudice to the opposing party; (4)

whether there exists a history of deliberate delay; (5) the

degree of compliance with other parts of the court’s orders;

(6) attempts to cure the defect; and (7) whether a lesser

sanction would better serve the interests of justice. [Id.at

507.]

This Court has also evaluated the propriety of Tax

Tribunal sanctions by considering similar factors, albeit

in unpublished cases.

We find the analogy appropriate

and adopt the factors summarized in Vicencio for the

See, e.g., Patmon v Dep’t of Treasury, unpublished opinion per curiam

of the Court of Appeals, issued February 22, 2002 (Docket No. 227050),

pp 3-4. While we acknowledge that unpublished cases are not binding,

2010] G

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’

149

Tax Tribunal to consider before imposing the drastic

sanction of dismissal. When considering the sanction of

dismissal, the record should reflect that the Tax Tribu-

nal “gave careful consideration to the factors involved

and considered all its options in determining what

sanction was just and proper in the context of the case

before it.” Bass v Combs, 238 Mich App 16, 26; 604

NW2d 727 (1999), overruled in part on other grounds in

Dimmitt & Owens Fin, Inc v Deloitte & Touche (ISC),

LCC, 481 Mich 618, 628; 752 NW2d 37 (2008).

Here, petitioner failed to comply with the Tax Tribu-

nal’s directive that it provide the assessment numbers

being appealed within 21 days of the December 16,

2008, order. However, nothing in the record indicates

that petitioner’s failure to produce the assessment

numbers was willful or that petitioner had a history of

deliberately delaying the proceedings or refusing to

abide by Tax Tribunal orders. Nor do we see how

respondent would be prejudiced by petitioner’s failure

to timely cure the defect. Indeed, because the petition

indicated that the dispute concerned “the full amount

of the Final Assessment, presumably $1,707,147.49, for

withholding taxes, for 02/06-10/06, 12/06, 01/07-03/07,

06/07, and 8/07,” and because respondent issued the

assessments, it is reasonable to expect that respondent

would have been able to determine the assessment

numbers corresponding to the identified periods. Thus,

the degree of noncompliance and lack of resulting

prejudice does not warrant dismissal, see Stevens v

Bangor Twp, 150 Mich App 756, 761; 389 NW2d 176

(1986) (concluding that the dismissal of a petition on

the basis of the petitioner’s counsel’s failure to appear

at a conference was an abuse of discretion), especially

MCR 7.215(C)(1), this Court may view them as persuasive, Dyball v

Lennox, 260 Mich App 698, 705 n 1; 680 NW2d 522 (2004).

150 291 M

ICH

140 [Dec

where there is no evidence on the record that petitioner

was in possession of the assessment numbers. Accord-

ingly, we conclude that the Tax Tribunal abused its

discretion by dismissing the petition on the basis of the

failure to provide the assessment numbers within 21

days.

Reversed and remanded for further proceedings not

inconsistent with this opinion. We do not retain juris-

diction.

2010] G

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’

151

CITY OF PLYMOUTH v M

INTOSH

Docket No. 297614. Submitted December 9, 2010, at Detroit. Decided

December 21, 2010, at 9:00 a.m.

Michael McIntosh was arrested by a city of Plymouth police officer,

Kevin Chumney, and issued a citation for operating a motor vehicle

while intoxicated, a misdemeanor. The citation included the lan-

guage, “I declare under the penalties of perjury that the state-

ments above are true to the best of my information, knowledge,

and belief,” and Chumney signed it and filed it in the 35th District

Court. Defendant waived the arraignment and asked the court,

Michael J. Gerou, J., to enter a plea of not guilty. Defendant was

convicted by a jury of the lesser misdemeanor of operating a

vehicle while visibly impaired. He appealed in the Wayne Circuit

Court, and the circuit court, Thomas E. Jackson, J., concluded

that, after defendant pleaded, the prosecutor was required by MCL

764.9g to file a sworn complaint with the court before proceeding

with prosecution. Because this was not done, the circuit court

vacated defendant’s conviction. The city of Plymouth appealed.

The Court of Appeals held:

1. MCL 764.9g unequivocally provides that in order for the

prosecution of a misdemeanor to continue after a defendant pleads

not guilty, a sworn complaint must be filed. There is no require-

ment that the sworn complaint be filed after the plea is made, only

that it is filed some time before additional proceedings take place

after the plea.

2. Under both the Michigan Vehicle Code and the Code of

Criminal Procedure, when a citation is issued for a civil infraction,

misdemeanor, or ordinance violation for which the maximum

permissible penalty does not exceed 93 days in jail or a fine, or

both, that was committed in the presence of an officer who signs

the citation, the citation is treated as made under oath if it

includes the language, “I declare under the penalties of perjury

that the statements above are true to the best of my information,

knowledge, and belief.” Because the citation issued to defendant

was signed by the officer who had witnessed the violation and

included the required language, a sworn complaint was filed at the

time the citation was filed and there was no need for a second

152 291 M

ICH

152 [Dec

sworn complaint to be filed before proceedings could continue

after defendant’s plea of not guilty. The circuit court erred in

vacating defendant’s conviction.

Reversed and remanded.

RETRIAL

ROCEDURE —

ISDEMEANOR

ROSECUTIONS —

-G

UILTY

LEAS —

WORN

OMPLAINTS

Under MCL 764.9g, in order for the prosecution of a misdemeanor to

continue after a defendant pleads not guilty, a sworn complaint

must be filed; there is no requirement that the sworn complaint be

filed after the plea is made, only that it is filed some time before

additional proceedings take place after the plea.

Miller & Bartnicki, P.C. (by Cameron A. Miller and

Michael P. Bartnicki), for the city of Plymouth.

Lawrence J. Coogan for Michael McIntosh.

Amici curiae:

Hemming, Polaczyk, Cronin, Smith, Witthoff & Ben-

nett, P.C. (by Kevin L. Bennett), for Canton Charter

Township.

Garan Lucow Miller, P.C. (by Rosalind Rochkind) for

the Michigan Municipal League and the Michigan

Townships Association.

Before: S

HAPIRO

,P.J., and S

AAD

and K. F. K

ELLY

,JJ.

URIAM

. The prosecutor appeals by leave granted

an order vacating defendant’s conviction for operating a

motor vehicle while visibly impaired, MCL 257.625(3).

We reverse.

Defendant was arrested for a violation of MCL

257.625(1), operating a motor vehicle while intoxicated.

Pursuant to MCL 257.625(9)(a), a first offense was “a

misdemeanor punishable by 1 or more of the following:

(i) Community service for not more than 360 hours. (ii)

Imprisonment for not more than 93 days....(iii) A fine

2010] C

ITY OF

LYMOUTH V

NTOSH

153

of not less than $100.00 or more than $500.00 ....”It

is undisputed that Officer Kevin Chumney, a police

officer for the city, issued a citation

for this offense,

which was then filed with the district court. The cita-

tion included the language, “I declare under the penal-

ties of perjury that the statements above are true to the

best of my information, knowledge, and belief.” In

addition, this citation provided that defendant was to

appear on or before February 12, 2009. According to the

district court opinion below, defendant was initially

held pursuant to MCL 780.581(3) until he was in a

proper condition to be released and, apparently in lieu

of an immediate arraignment, see MCL 257.727 and

MCL 257.625b(1), was released after posting bond. See

MCL 780.581(2). While the district court opinion indi-

cated that defendant was subsequently arraigned, we

note that in a letter to the court dated February 4, 2009,

defendant’s attorney specifically waived defendant’s

arraignment, asked the court to enter a plea of not

guilty on defendant’s behalf, and asked that the matter

be set for a pretrial conference.

Defendant was subse-

quently convicted by jury of the lesser offense of oper-

ating a vehicle while visibly impaired, MCL 257.625(3).

Officer Chumney utilized the “Uniform Law Citation” form citation

in the instant case. As will be discussed below, the Code of Criminal

Procedure, including MCL 764.9g, which is at issue in the instant case,

refers to citations as “complaints” or “appearance tickets,” see MCL

764.9f, while the Michigan Vehicle Code refers to them as “complaints” or

“citations to appear,” see MCL 257.728(1). Based on our reading of these

provisions and the discussion by the State Court Administrative Office,

which uses these terms interchangeably to discuss the Uniform Law

Citation, we conclude that these provisions all discuss what is, in effect,

a written notice to appear given to a misdemeanor defendant (by an

officer or other official) in lieu of a more immediate presentation of the

defendant to a magistrate.

The district court’s register of actions, while containing an “arraign-

ment date” of February 4, 2009, also notes that defendant’s attorney

waived the arraignment on that date.

154 291 M

ICH

152 [Dec

On appeal to the circuit court, that court held that

after defendant pleaded not guilty, the prosecutor was

required to file a sworn complaint with the court before

the prosecution could proceed. Since it was undisputed

that this procedure was not followed, the circuit court

ruled that defendant’s conviction must be vacated. The

circuit court reached this conclusion based on its read-

ing of MCL 764.9g, which provides:

(1) When under the provisions of sections 9b or 9c an

officer issues an appearance ticket, an examining magis-

trate may accept a plea of guilty or not guilty upon the

appearance ticket, without the necessity of a sworn com-

plaint. If the offender pleads not guilty, no further proceed-

ings may be had until a sworn complaint is filed with the

magistrate. A warrant for arrest shall not issue for an

offense charged in the appearance ticket until a sworn

complaint is filed with the magistrate.

(2) A district court magistrate may accept a plea of guilty

upon an appearance ticket, without the necessity of a sworn

complaint, for those offenses within his jurisdiction as

prescribed by section 8511 of Act No. 236 of the Public Acts

of 1961, as amended, being section 600.8511 of the Com-

piled Laws of 1948. [Emphasis added.]

[

]

Similarly, the Michigan Vehicle Code provides in MCL 257.728e:

When under section 728 an officer issues a citation for a

misdemeanor punishable by imprisonment for not more than 90

days, a magistrate may accept a plea of guilty or not guilty upon

the citation, without the necessity of a sworn complaint but the

officer shall sign the complaint before the magistrate makes a

docket return on the complaint. If the offender pleads not guilty,

further proceedings may not be had until a sworn complaint is

filed with the magistrate. A warrant for arrest shall not issue for

an offense under this act until a sworn complaint is filed with the

magistrate.

While the first portion of this provision is not directly applicable to the

facts in the instant case where the crime charged was a 93-day misde-

meanor and defendant did not plead guilty, the language relied upon by

the circuit court is identical, i.e., that once a defendant pleads not guilty

2010] C

ITY OF

LYMOUTH V

NTOSH

155

The prosecutor appeals this dismissal and argues

that, contrary to the decision of the circuit court, if a

citation constituting a sworn complaint has already

been filed with the court, then neither the Michigan

Vehicle Code nor the Code of Criminal Procedure re-

quires an additional sworn complaint to be filed with

the magistrate after a plea of not guilty in certain

misdemeanor cases. The prosecutor further argues that

the district court correctly held that this procedure is

also proper under MCR 6.615. We agree.

“We review de novo issues of constitutional and

statutory interpretation, as well as all other questions

of law.” People v Gayheart, 285 Mich App 202, 207; 776

NW2d 330 (2009). Likewise, “[i]nterpretation of a court

rule is a question of law that this Court reviews de

novo.” People v Buie, 285 Mich App 401, 416; 775 NW2d

817 (2009) (quotation marks and citation omitted). The

principles of statutory interpretation apply to the inter-

pretation of court rules. People v Caban, 275 Mich App

419, 422; 738 NW2d 297 (2007).

MCL 764.9g unequivocally provides that in order for a

prosecution to continue after a plea of not guilty, a sworn

complaint must be filed. However, the statute does not

indicate that the sworn complaint must come after that

plea. Defendant suggests that this temporal requirement

is the only way to make sense of the provision. However,

defendant ignores the fact that the prosecution may, but is

not required to, file a sworn complaint before the plea. If

the prosecution does not, then MCL 764.9g requires that

a sworn complaint then be filed before further proceed-

ings. On the other hand, in those cases where the pros-

ecution files a sworn complaint before the arraignment,

the proceedings must be stopped until a “sworn complaint” is filed with

the magistrate and a warrant is issued.

156 291 M

ICH

152 [Dec

MCL 764.9g is satisfied and there is no requirement that

a second sworn complaint be filed.

The same is true as to defendant’s reliance on MCL

257.728e. This provision requires that a sworn com-

plaint must be filed prior to further proceedings after a

plea of not guilty. However, it does not mandate that the

sworn complaint be filed after the plea. The only

requirement is that the sworn complaint be filed at

some time before those additional proceedings take

place. There is nothing in the statute that requires a

second sworn complaint.

It is clear that related statutes, as well as the

applicable court rule, provide for citations that consti-

tute a “sworn complaint” and for citations that are not

sworn. MCL 257.727c, which addresses citations under

the Michigan Vehicle Code, provides:

(1) As used in this act, “citation” means a complaint or

notice upon which a police officer shall record an occur-

rence involving 1 or more vehicle law violations by the

person cited. Each citation shall be numbered consecu-

tively, be in a form as determined by the secretary of state,

the attorney general, the state court administrator, and the

director of the department of state police and shall consist

of the following parts:

(a) The original which shall be a complaint or notice to

appear by the officer and shall be filed with the court in

which the appearance is to be made.

(b) The first copy which shall be retained by the local

traffic enforcement agency.

alleged violator if the violation is a misdemeanor.

(d) The third copy which shall be delivered to the alleged

violator if the violation is a civil infraction.

(2) With the prior approval of the state officials enumer-

ated in subsection (1), the citation may be appropriately

modified as to content or number of copies to accommodate

2010] C

ITY OF

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157

law enforcement and local court procedures and practices.

Use of this citation for other than moving violations is

optional.

(3) For purposes of this act, a complaint signed by a police

officer shall be treated as made under oath if the violation

alleged in the complaint is either a civil infraction or a

misdemeanor or ordinance violation for which the maximum

permissible penalty does not exceed 93 days in jail or a fine,

or both, and occurred or was committed in the signing

officer’s presence or under circumstances permitting the

officer’s issuance of a citation under section 625a or 728(8),

and if the complaint contains the following statement imme-

diately above the date and signature of the officer:

“I declare under the penalties of perjury that the state-

ments above are true to the best of my information, knowl-

edge, and belief.” [Emphasis added.]

The statute clearly provides that a signed citation is a

complaint and that, where the violation is punishable

by no more than 93 days in jail and was committed in

the officer’s presence, the signed citation constitutes a

“sworn complaint” if the citation form contains the

signed declaration set forth in subsection (3) above. In

this case, the offense occurred in Officer Chumney’s

presence, and the citation, which was filed with the

district court, contained the phrase required by subsec-

tion (3) above. Therefore, the citation constituted a

sworn complaint pursuant to this section.

The citation in the instant case also constitutes a

sworn complaint under the applicable provision in the

Code of Criminal Procedure. MCL 764.1e(1) states the

following regarding complaints:

For purposes of sections 1a to 1d of this chapter, a

complaint signed by a peace officer shall be treated as made

under oath if the offense alleged in the complaint is a

misdemeanor or ordinance violation for which the maxi-

mum permissible penalty does not exceed 93 days in jail or

158 291 M

ICH

152 [Dec

a fine, or both, that was committed in the signing officer’s

presence or that was committed under circumstances per-

mitting the officer’s issuance of a citation under section

625a

[

]

or 728(8) of the Michigan vehicle code, 1949 PA 300,

MCL 257.625a and 257.728, and if the complaint contains

the following statement immediately above the date and

signature of the officer:

“I declare under the penalties of perjury that the

statements above are true to the best of my information,

knowledge, and belief.” [Emphasis added.]

Therefore, under both of these provisions, the citation

issued to defendant constitutes a sworn complaint.

We note the following instructive discussion concern-

ing the rationale behind the use of the “appearance

ticket” and the fact that under certain circumstances, a

police officer’s signed citation substitutes as a sworn

complaint:

In contrast with those arrested for felonies, a person

arrested for a minor offense need not be taken immediately

before a magistrate,

[

]

and a complaint need not be imme-

diately presented to a magistrate. Cf. MCL 764.9c; MSA

28.868(3), with MCL 764.13; MSA 28.871(1). Public ser-

MCL 257.625a provides in pertinent part:

(1) A peace officer may arrest a person without a warrant under

either of the following circumstances:

(a) The peace officer has reasonable cause to believe the person

was, at the time of an accident in this state, the operator of a

vehicle involved in the accident and was operating the vehicle in

violation of section 625 or a local ordinance substantially corre-

sponding to section 625.

As noted in other portions of this opinion, this does not strictly apply

in the instant case because defendant was arrested for a violation of MCL

257.625(1). See MCL 257.727. However, the points made in the discussion

are equally applicable, i.e., (1) appearance tickets or “citations to appear”

are issued to certain misdemeanor offenders in lieu of taking the offender

into custody, (2) a magistrate need not have a sworn complaint in front of

him or her in order to receive a plea of guilty or not guilty to certain

2010] C

ITY OF

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159

vants other than peace officers can be authorized to serve

appearance tickets

[

]

for certain offenses of less than felony

grade. MCL 764.9c; MSA 28.868(3). An examining magistrate

can accept a plea of guilty or not guilty for certain minor

offenses for which an appearance ticket has been issued

without the necessity of a sworn complaint. MCL 764.9g;

MSA 28.868(7). Finally, while most complaints must be sworn

to before a magistrate or clerk, MCL 764.1a; MSA 28.860(1),

for certain minor offenses the complaint is simply treated as

having been made under oath if it contains a declaration that

the statements are true upon information and belief above

the date and signature of a peace officer. MCL 764.1e; MSA

28.860(5). [P eople v Smith, 423 Mich 427, 443 n 1; 378 NW2d

384 (1985) (opinion by W

ILLIAMS

, C.J.).]

offenses, and (3) a police officer’s citation can serve as a sworn complaint

if it meets the requirements of MCL 764.1e(1) or MCL 257.727c(3).

An appearance ticket is defined in MCL 764.9f, which provides:

(1)...“[A]ppearance ticket” means a complaint or written

notice issued and subscribed by a police officer or other public

servant authorized by law or ordinance to issue it directing a

designated person to appear in a designated local criminal court at

a designated future time in connection with his or her alleged

commission of a designated violation or violations of state law or

local ordinance for which the maximum permissible penalty does

not exceed 93 days in jail or a fine, or both. The appearance tickets

shall be numbered consecutively, be in a form required by the

attorney general, the state court administrator, and the director of

the department of state police, and consist of the following parts:

(a) The original which shall be a complaint or notice to appear

by the officer and filed with the court.

(b) The first copy which shall be the abstract of court record.

enforcement agency.

(d) The third copy which shall be delivered to the alleged

violator.

(2) With the prior approval of the state officials listed in

subsection (1), an appearance ticket may be appropriately modi-

fied as to content or number of copies to accommodate law

enforcement and local court procedures and practices.

160 291 M

ICH

152 [Dec

Similar provisions apply under the Michigan Vehicle

Code; i.e., an individual who commits a misdemeanor

under the code and who is subject to a warrantless

arrest can either be detained and arraigned, or issued a

“citation to appear”; and the magistrate can, for certain

offenses, accept a plea of guilty or not guilty without the

necessity of a sworn complaint. See MCL 257.727; MCL

257.728; MCL 257.728e. And as noted above, under

MCL 257.727c(3), a citation can constitute a sworn

complaint if it meets the conditions stated in that

subsection.

This statutory scheme is consistent with the relevant

court rule. MCR 6.615, which governs the initiation of

misdemeanor traffic cases, provides for the use of a

citation as a sworn complaint. Specifically, the rule

provides in pertinent part:

(A) Citation; Complaint; Summons; Warrant.

(1) A misdemeanor traffic case may be begun by one of

the following procedures:

(a) Service by a law enforcement officer on the defen-

dant of a written citation, and the filing of the citation in

the district court.

(b) The filing of a sworn complaint in the district court

and the issuance of an arrest warrant. A citation may serve

as the sworn complaint and as the basis for a misdemeanor

warrant.

(2) The citation serves as a summons to command

(a) the initial appearance of the defendant; and

(b) a response from the defendant as to the defendant’s

guilt of the violation alleged.

***

(D) Contested Cases.

2010] C

ITY OF

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161

(1) A contested case may not be heard until a citation is

filed with the court. If the citation is filed electronically, the

court may decline to hear the matter until the citation is

signed by the officer or official who issued it, and is filed on

paper. A citation that is not signed and filed on paper, when

required by the court, may be dismissed with prejudice.

(2) A misdemeanor traffic case must be conducted in

compliance with the constitutional and statutory proce-

dures and safeguards applicable to misdemeanors cogni-

zable by the district court.

Thus, not all appearance tickets or citations are

considered sworn complaints under the Michigan Ve-

hicle Code or the Code of Criminal Procedure, and not

every appearance before the magistrate necessarily is

preceded by the issuance of a complaint. This proce-

dure, similar to that found in MCR 6.615, is designed to

ensure that, following a plea of not guilty, until the

magistrate has in front of him or her either a sworn

complaint or a citation that takes the place of a sworn

complaint, further proceedings do not occur. It is not, as

defendant suggests, designed to require that the officer

file a second form to essentially restate identical facts

before the proceedings can continue.

We find further support for our conclusion in a

memorandum from the State Court Administrative

Office, dated June 13, 2003, which approves the Uni-

form Law Citation for use as a citation and appearance

ticket and advises that the citation serves as the com-

plaint. The memorandum specifically states:

The Uniform Law Citation is the formal sworn com-

plaint as is Form DC 225.

[

]

Courts may require prosecu-

torial review of the citation or the filing of a “formal”

The Uniform Law Citation is the civil infraction or misdemeanor

appearance citation, which was used in the instant case and signed by

Officer Chumney. Form DC 225 is the separate misdemeanor complaint

and warrant.

162 291 M

ICH

152 [Dec

complaint on Form DC 225 as a matter of preference for

purposes of ensuring that the complaint has been reviewed

by an attorney. This is not a requirement of the statute.

MCL 764.9g authorizes the process from filing to hearing

on the citation alone and was not intended to require the

filing of DC 225 before the court. MCL 764.9g was intended

to allow for the option of proceeding on either the appear-

ance ticket (Uniform Law Citation) or DC 225 depending

on the preference of the local jurisdiction. The primary

point of MCL 764.9g is to ensure that the court does not

proceed until either the citation or other sworn complaint

has actually been filed, since there are instances in

which the defendant may appear in court before the

citation has been filed.

We agree, and note that while an administrative agen-

cy’s interpretation of a statute it is charged with

executing is not binding on this Court, we find it

persuasive in this case and not contrary to the plain

meaning of the statutes at issue. Chelsea Inv Group

LLC v City of Chelsea, 288 Mich App 239, 260; 792

NW2d 781 (2010).

Here, defendant was arrested, detained, and would

have been arraigned had he not waived his arraign-

ment. Instead, he was released on bond and, similarly to

the circumstances concerning other misdemeanors for

which a citation to appear is generally given, Officer

Chumney’s citation was filed with the court. This

citation was in the form of the Uniform Law Citation,

and contained the language, “I declare under the pen-

alties of perjury that the statements above are true to

the best of my information, knowledge, and belief.”

Under MCL 257.727c, MCL 764.1e, and MCR 6.615,

this citation served as the sworn complaint. Thus, the

circuit court erred in its finding that a second sworn

complaint had to be issued prior to continuation of the

case following the entry of defendant’s plea of not

guilty.

2010] C

ITY OF

LYMOUTH V

NTOSH

163

Finally, although the circuit court did not reach the

issue, we also reject defendant’s claim below that this

procedure somehow deprived defendant of due process.

While defendant appears to maintain that a warrant

was necessary in the instant case, we concur with the

district court that, because the function of a warrant in

a criminal case is to enable the court to acquire juris-

diction over the defendant, and since defendant in the

instant case voluntarily subjected himself to the district

court’s jurisdiction through his attorney’s waiver of the

arraignment and request for entry of a plea of not

guilty, there was no necessity to issue another warrant.

See People v Burrill, 391 Mich 124, 131; 214 NW2d 823

(1974); Detroit v Recorder’s Court Judge, 85 Mich App

284, 290-291; 271 NW2d 202 (1978). As to defendant’s

arguments concerning the determination of reasonable

cause by a magistrate, defendant cannot be heard to

complain here when he decided to waive his arraign-

ment and move to the pretrial phase of the proceedings.

Our Supreme Court has held that the right to an

arraignment is a procedural right that can be waived by

defendant through his counsel. People v Phillips, 383

Mich 464, 470; 175 NW2d 740 (1970). “A defendant may

not waive objection to an issue before the trial court and

then raise the issue as an error on appeal.” People v

Aldrich, 246 Mich App 101, 111; 631 NW2d 67 (2001).

Reversed and remanded for reinstatement of defen-

dant’s conviction. We do not retain jurisdiction.

164 291 M

ICH

152 [Dec

JOHNSON v DETROIT MEDICAL CENTER

Docket No. 293304. Submitted December 14, 2010, at Detroit. Decided

December 21, 2010, at 9:05 a.m.

Yolanda Johnson filed a medical malpractice suit in the Wayne

Circuit Court against Detroit Medical Center and other health-

care providers, including Andre R. Nunn, M.D., a surgeon. Plain-

tiff moved to compel the disclosure of Nunn’s credentials and

privileges file and also his operative logs. The court, Daphne

Means Curtis, J., granted the motion and ordered the disclosure.

Defendants applied for leave to appeal, but the Court of Appeals

denied the application. The Supreme Court, in lieu of granting

defendants’ application for leave to appeal, remanded the case to

the Court of Appeals for consideration as on leave granted. 485

Mich 870 (2009).

The Court of Appeals held:

1. Under MCL 333.21515, records, data, and knowledge col-

lected by a peer review committee are confidential and may only be

used for the purposes of a peer review committee to reduce

morbidity and mortality and to ensure quality of care. The trial

court erred to the extent that it required defendants to disclose the

contents of Nunn’s credentials and privileges file.

2. Under MCL 600.2157, a physician may not disclose any

information acquired by the physician in attending a patient if the

information was necessary for the treatment or the prescription of

treatment of the patient. This privilege belongs to the patient, and

only the patient may waive it. The operative logs sought by

plaintiff were the type of information protected by the statute.

Defendants’ failure to timely raise the issue did not constitute

waiver of the privilege by a patient, and thus the trial court erred

when it ordered defendants to disclose Nunn’s operative logs.

Reversed.

1. P

RETRIAL

ROCEDURE —

ISCOVERY —

ONFIDENTIAL

NFORMATION —

EER

EVIEW

RIVILEGE

Records, data, and knowledge collected by a peer review committee

are confidential and may only be used for the purposes of a peer

2010] J

OHNSON V

ETROIT

165

review committee to reduce morbidity and mortality and to ensure

quality of care (MCL 333.21515).

2. P

RETRIAL

ROCEDURE —

ISCOVERY —

ONFIDENTIAL

NFORMATION —

HYSICIAN

-P

ATIENT

RIVILEGE

Under the physician-patient privilege, a physician may not disclose

any information acquired by the physician in attending a patient if

the information was necessary for the treatment or the prescrip-

tion of treatment of the patient; this privilege belongs to the

patient, and only the patient may waive it (MCL 600.2157).

Ishbia & Gagleard, PC (by Michael A. Gagleard and

Michelle M. Shaya), for plaintiff.

Tanoury, Corbet, Shaw, Nauts & Essad, P.L.L.C. (by

Linda M. Garbarino, Anita Comorski, and David R.

Nauts), for defendants.

Before: D

ONOFRIO

,P.J., and C

AVANAGH

and F

ITZGERALD

JJ.

URIAM

. Defendants appeal the trial court’s order

granting plaintiff’s motion to compel discovery and

requiring defendants to produce allegedly protected or

privileged peer review and nonparty patient documents.

The case is before this Court pursuant to our Supreme

Court’s order, in lieu of granting leave to appeal,

remanding the case to this Court “for consideration as

on leave granted.” Johnson v Detroit Med Ctr, 485 Mich

870 (2009). We reverse.

Defendants argue that the trial court erred by com-

pelling disclosure of Dr. Andre Nunn’s credentials and

privileges file. We agree.

A trial court’s ruling on a discovery motion is re-

viewed for an abuse of discretion. Holman v Rasak, 486

Mich 429, 436; 785 NW2d 98 (2010). However, whether

production of requested documents is barred by statute

166 291 M

ICH

165 [Dec

is a question of law that we review de novo. DyevSt

John Hosp & Med Ctr, 230 Mich App 661, 665; 584

NW2d 747 (1998).

Article 17, part 215 of the Public Health Code, MCL

333.21501 et seq., governs the regulation of hospitals. A

hospital’s responsibilities and duties concerning its

medical staff’s credentials and privileges is addressed in

MCL 333.21513, which provides, in pertinent part:

The owner, operator, and governing body of a hospital

licensed under this article:

(a) Are responsible for all phases of the operation of the

hospital, selection of the medical staff, and quality of care

rendered in the hospital.

(b) Shall cooperate with the department in the enforce-

ment of this part, and require that the physicians, dentists,

and other personnel working in the hospital who are

required to be licensed or registered are in fact currently

licensed or registered.

practice in the hospital are granted hospital privileges

consistent with their individual training, experience, and

other qualifications.

(d) Shall assure that physicians and dentists admitted to

practice in the hospital are organized into a medical staff to

enable an effective review of the professional practices in

the hospital for the purpose of reducing morbidity and

mortality and improving the care provided in the hospital

for patients. The review shall include the quality and

necessity of the care provided and the preventability of

complications and deaths occurring in the hospital. [Em-

phasis added.]

MCL 333.21515 provides that the following collected

materials are confidential: “The records, data, and

knowledge collected for or by individuals or committees

assigned a review function described in this article are

confidential and shall be used only for the purposes

2010] J

OHNSON V

ETROIT

167

provided in this article, shall not be public records, and

shall not be available for court subpoena.” The use of

the word “shall” in the statute indicates that this

provision is mandatory. Additionally, MCL 333.21521

provides that “[a] hospital shall meet the minimum

standards and rules authorized by this article and shall

endeavor to carry out practices that will further protect

the public health and safety, prevent the spread of

disease, alleviate pain and disability, and prevent pre-

mature death.” (Emphasis added.)

Our Supreme Court has recognized that, under

§ 21513, “[h]ospitals are required to establish peer

review committees whose purposes are to reduce mor-

bidity and mortality and to ensure quality of care.” See

Attorney General v Bruce, 422 Mich 157, 169; 369 NW2d

826 (1985). “Included in their duties is the obligation to

review the professional practices of licensees, granting

staff privileges consistent with each licensee’s qualifi-

cations.” Id.; see, also, Dye, 230 Mich App at 664-665.

Thus, a credentialing committee is a peer review com-

mittee.

Accordingly, in Dye, 230 Mich App at 668, this Court

“reject[ed] plaintiff’s conclusion that materials relating

to the provision of staff privileges are outside the

purview of the [peer review] statutes.” The Court stated

that § 21515 “protect[s] against disclosure of informa-

tion relating to [the physician’s] application for staff

privileges at defendant hospital.” Id. at 669. Thus,

absent a statutory exception, which plaintiff does not

allege exists in this case, “the materials gathered by the

credentials committee... with respect to [the physi-

cian’s] qualifications and the extension of staff privi-

leges” are confidential. Id. at 668-669.

We conclude that § 21515 clearly and unambiguously

prohibits discovery of Dr. Nunn’s credentials and privi-

168 291 M

ICH

165 [Dec

leges file. Attorney General, 422 Mich at 173. “To hold

otherwise would require us to create an exception to the

[evidentiary] privilege granted such information by the

Legislature; that is not for us to do.” Id. Therefore, the

trial court erred to the extent that it required defen-

dants to disclose the contents of Dr. Nunn’s credentials

and privileges file.

Defendants also argue that Dr. Nunn’s operative logs

are protected by the physician-patient privilege and,

therefore, the trial court erred by ordering defendants

to disclose them. We agree.

MCL 600.2157 provides, in pertinent part:

Except as otherwise provided by law, a person duly

authorized to practice medicine or surgery shall not dis-

close any information that the person has acquired in

attending a patient in a professional character, if the

information was necessary to enable the person to prescribe

for the patient as a physician, or to do any act for the patient

as a surgeon. [Emphasis added.]

The physician-patient privilege protects the identity

of nonparty patients regardless of need. Dorris v Detroit

Osteopathic Hosp Corp, 460 Mich 26, 39; 594 NW2d 455

(1999). The privilege prohibits the disclosure of “ ‘any

information’ acquired under the requisite circum-

stances,” even if the patient’s identity is redacted.

Baker v Oakwood Hosp Corp, 239 Mich App 461, 475;

608 NW2d 823 (2000). The statute is clear and unam-

biguous, and no further construction is necessary or

permitted. Id. Further, “[t]he privilege belongs to the

patient and can be waived only by the patient.” Id.at

470 (quotation marks and citation omitted). Therefore,

Because everything within the file is protected, there is no merit to

plaintiff’s argument that defendants should be required to prepare a list

of the file’s contents so that items can be evaluated individually.

2010] J

OHNSON V

ETROIT

169

defendants’ alleged failure to timely raise this issue

does not waive the privilege.

The operative logs at issue in this case contain

information acquired by Dr. Nunn in attending to

patients in his professional capacity as a surgeon, i.e.,

the dates and types of surgeries performed. Further, the

type of surgeries performed, as well as the time and the

dates of the surgeries, are information necessary to

attend and evaluate a patient’s condition, progress, and

recovery after the procedure. Therefore, we conclude

that the information contained in Dr. Nunn’s operative

logs was gathered under the circumstances identified in

the statute and, therefore, it is protected by the

physician-patient privilege. Accordingly, the trial court

erred in ordering defendants to disclose Dr. Nunn’s

operative logs.

Reversed.

170 291 M

ICH

165 [Dec

PEOPLE v HARVERSON

Docket No. 293014. Submitted December 7, 2010, at Grand Rapids.

Decided December 28, 2010, at 9:00 a.m.

Terell D. Harverson was convicted of unarmed robbery by a jury in

the Kent Circuit Court. He was sentenced by the court, Paul J.

Sullivan, J., to 3 to 15 years in prison. Defendant appealed, alleging

that the evidence was insufficient to support his conviction and

that, in determining the appropriate sentence, the court erred in

scoring four offense variables (OVs).

The Court of Appeals held:

1. The de novo standard of review is the proper standard to

employ in reviewing defendants’ challenges that the evidence was

insufficient to support their convictions. Reviewing an issue de

novo means that the reviewing court addresses a legal issue anew,

without any deference to the trial court’s conclusion on the issue.

2. A defendant, to be guilty of unarmed robbery, must have

feloniously taken the property of another, by force, violence,

assault, or putting in fear, and while being unarmed. Unarmed

robbery is a specific intent crime that requires the prosecution to

establish that the defendant intended to permanently deprive the

owner of the property. To permanently deprive, in the context of

unarmed robbery, does not require, in a literal sense, that a

defendant have an intent to permanently deprive the owner of the

property; rather, it includes the retention of property without such

retention being for the purpose of returning it within a reasonable

time or the retention of property with the intent to return it only

if the owner pays some compensation for its return. It is clear from

defendant’s rendition of the events that he possessed the requisite

intent. Sufficient evidence existed to satisfy all the elements of the

offense. The prosecution met its burden of proving the elements of

unarmed robbery beyond a reasonable doubt.

3. OV 13, MCL 777.43, is scored for a continuing pattern of

criminal behavior. Under OV 13, 10 points are appropriate if the

offense was part of a pattern of felonious criminal activity involv-

ing a combination of three or more crimes against a person or

property. Criminal activity, not a criminal conviction, is required

for such purposes. A juvenile adjudication clearly constitutes

2010] P

EOPLE V

ARVERSON

171

“criminal activity.” Defendant’s juvenile adjudications, which in-

cluded receiving and concealing a stolen vehicle, unlawfully driv-

ing away an automobile, breaking and entering, fourth-degree

criminal sexual conduct, and failure to register as a sex offender,

supported the trial court’s scoring of 10 points for OV 13.

4. Ten points are properly scored for OV 9, MCL 777.39, if 2 to

9 victims were placed in danger of physical injury or death. The

trial court properly scored 10 points for OV 9 because defendant

pointed a gun at the victim and two other individuals present at

the scene of the robbery.

5. Fifteen points are properly scored for OV 1, MCL 777.31,

when a firearm was pointed at or toward a victim. Five points are

properly scored for OV 2, MCL 777.32, when the offender pos-

sessed a pistol, rifle, or shotgun. The trial court did not err by

scoring 15 points for OV 1 and 5 points for OV 2 because the

evidence showed that defendant pointed a gun at the victim during

the robbery.

Affirmed.

1. C

ONSTITUTIONAL

AW —

RIMINAL

AW —

UFFICIENCY OF THE

VIDENCE —

EVIEW

OVO

The de novo standard of review is properly employed in reviewing a

defendant’s challenge to the sufficiency of the evidence to support

the defendant’s conviction; reviewing an issue de novo requires

the reviewing court to address a legal issue anew, without defer-

ence to the trial court’s conclusion on the issue.

2. R

OBBERY —

NARMED

OBBERY —

ORDS AND

HRASES —

ERMANENTLY

EPRIVE THE

WNER OF

ROPERTY

Unarmed robbery is a specific intent crime for which the prosecution

must establish that the defendant intended to permanently de-

prive the owner of property; to permanently deprive in the context

of unarmed robbery does not require, in a literal sense, that the

defendant have an intent to permanently deprive the owner of

property, rather, the intent to permanently deprive includes the

retention of property without such retention being for the purpose

of returning the property within a reasonable time or the retention

of property with the intent to return the property only if the owner

pays some compensation for its return (MCL 750.530).

3. S

ENTENCES —

FFENSE

ARIABLES —

FFENSE

ARIABLE

—

RIMINAL

CTIVITY —

UVENILE

DJUDICATIONS

Ten points must be scored under offense variable 13, regarding a

continuing pattern of criminal behavior, if the defendant’s offense

172 291 M

ICH

171 [Dec

was part of a pattern of felonious criminal activity involving a

combination of 3 or more crimes against a person or property; an

appropriate juvenile adjudication constitutes criminal activity, a

criminal conviction is not required (MCL 777.43[1][d]).

4. S

ENTENCES —

FFENSE

ARIABLES —

FFENSE

ARIABLE

Scoring offense variable 9 for multiple victims may be appropriate,

although the defendant may have robbed only one victim, when

there were other individuals present at the scene of the robbery

who were placed in danger of injury or loss of life during the

robbery (MCL 777.39).

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, William A. Forsyth, Prosecuting At-

torney, and Timothy K. McMorrow, Chief Appellate

Attorney, for the people.

Joseph L. Stewart for defendant.

Before: M

URRAY

,P.J., and H

OEKSTRA

and S

ERVITTO

,JJ.

URRAY

,P.J. Defendant appeals as of right his jury

trial conviction of unarmed robbery, MCL 750.530. For

this conviction, defendant was sentenced to 3 to 15

years’ imprisonment. We affirm.

I. BACKGROUND

The events in this case were set in motion on March

14, 2008, when Kenneth Conliffe accepted a United

Parcel Service (UPS) shipment of a cell phone for Kiara

Anderson, his sister’s roommate and defendant’s girl-

friend, at the women’s apartment. Under the impres-

sion that Anderson was involved in stealing the phone

of his sister’s boyfriend, Conliffe explained that after

accepting the phone, he threw it in a stream as a means

of retaliation. Shortly thereafter, Conliffe received a

ride home from his mother and stepfather.

2010] P

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ARVERSON

173

Upon Conliffe’s arrival home, he was accosted in his

driveway by defendant, Anderson, and Jovanta Jack-

son. According to Conliffe’s mother and stepfather,

defendant accused Conliffe of stealing a cell phone and

then removed Conliffe’s sunglasses at gunpoint before

fleeing the scene with his compatriots. Both Conliffe

and his mother added that before the assailants left,

Jackson told Conliffe to “run his pockets.”

Offering a variation on this version of events, Ander-

son claimed that after learning from UPS that Conliffe

had accepted the cell-phone shipment, she, defendant,

and Jackson went to Conliffe’s house to scare Conliffe

into returning her cell phone. Anderson elaborated that

although Jackson pulled a gun during the altercation

and later “passed it” to defendant, she did not recall

either man pointing a gun at Conliffe. Similar to

Anderson’s assertions, defendant testified that he ac-

companied Anderson and Jackson in order to retrieve

Anderson’s phone and that it was Jackson who pulled

the gun during the altercation. Notably, defendant

admitted “snatching [Conliffe’s] glasses,” but claimed

that he told Conliffe, “you get these back when we get

the phone back.” Defendant denied, however, that he

had possession of the gun and instead explained that he

refused Jackson’s demand to “run [Conliffe’s] pockets”

when Jackson threatened Conliffe with the gun after

defendant had taken the glasses.

Following their altercation with Conliffe, the assail-

ants drove off, but were pulled over and arrested when

police identified their car and license plate number

from a dispatch call regarding an armed robbery. Dur-

ing the course of the arrest, police found Conliffe’s

glasses and ammunition inside the car. The gun was

found the next day in the neighborhood where the

assailants were pulled over. Defendant was subse-

174 291 M

ICH

171 [Dec

quently tried on a charge of armed robbery, but con-

victed of the lesser offense previously stated. This

appeal ensued.

II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

1. STANDARD OF REVIEW

Defendant first’s assignment of error is that the

evidence was insufficient to support his unarmed rob-

bery conviction. Due process requires that, to sustain a

conviction, the evidence must show guilt beyond a

reasonable doubt. People v Johnson, 460 Mich 720, 723;

597 NW2d 73 (1999). In determining the sufficiency of

the evidence, this Court reviews the evidence in the

light most favorable to the prosecution. People v Tombs,

472 Mich 446, 459; 697 NW2d 494 (2005) (opinion by

ELLY

, J.). We do not consider whether any evidence

existed that could support a conviction, but rather, we

must determine whether a rational trier of fact could

find that the evidence proved the essential elements of

the crime beyond a reasonable doubt. People v Wolfe,

440 Mich 508, 513-514; 489 NW2d 748 (1992), amended

441 Mich 1201 (1992), citing People v Hampton, 407

Mich 354, 366; 285 NW2d 284 (1979). “[C]ircumstantial

evidence and reasonable inferences arising from th[e]

evidence can constitute satisfactory proof of the ele-

ments of a crime.” People v Lee, 243 Mich App 163,

167-168; 622 NW2d 71 (2000) (citation omitted).

The prosecution does not challenge the foregoing,

but nonetheless points out that this Court has cited our

Supreme Court for the proposition that sufficiency of

the evidence issues are subject to de novo review despite

the fact that no Michigan Supreme Court case expressly

cites that standard. See People v Hawkins, 245 Mich

2010] P

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ARVERSON

175

App 439, 457; 628 NW2d 105 (2001). In making this

argument, the prosecution seems to imply that tradi-

tional de novo review would require this Court to

overturn a verdict simply because its view of the facts

conflicts with the jury’s determination. This, however,

misapprehends our duty in these cases.

When our Court reviews an issue “de novo,” it means

that we are addressing a legal issue anew, without any

deference to the trial court’s conclusion. See, e.g., Mich Ed

Ass’n v Secretary of State, 280 Mich App 477, 511; 761

NW2d 234 (2008) (W

HITBECK

, J., dissenting); Heindlmeyer

v Ottawa Co Concealed Weapons Licensing Bd, 268 Mich

App 202, 218-219; 707 NW2d 353 (2005). Hence, when

reviewing an argument that there was legally insufficient

evidence to support a conviction, we do not defer to any

decision made by the trial court, but instead employ our

independent judicial views while employing the well-

settled standards for deciding sufficiency issues. People v

Sherman-Huffman, 241 Mich App 264, 265; 615 NW2d

776 (2000), aff’d 466 Mich 39 (2002) (employing de novo

review of sufficiency argument from a bench trial convic-

tion). More than two decades ago the United States Court

of Appeals for the District of Columbia Circuit accurately

and succinctly stated this proposition:

We have concluded that we do not defer to the district

court, because we must make our own independent judg-

ment regarding the sufficiency of evidence. In so doing, of

course, we may consider and be influenced by the opinion

of the expert trial judge who has lived with the case—just

as we give weight to one another’s views. This will be

particularly so where the trial judge has set forth his

reasons with specificity. Moreover, it is the burden of the

Government, as it is always the appellant’s burden, to show

that the judgment appealed from was wrong. But ulti-

mately, the decision whether or not the evidence was

176 291 M

ICH

171 [Dec

sufficient is a question of law and therefore entirely our

own. [United States v Singleton, 226 US App DC 445, 446;

702 F2d 1182 (1983) (en banc).]

See, also, United State v Kelley, 461 F3d 817, 825 (CA 6,

2006).

In light of this explanation, it is easy to see that in

articulating the de novo standard of review our prior

cases cited Supreme Court decisions that were re-

viewing the evidence in a de novo fashion, even

though not specifically saying so. See, e.g., Tombs,

472 Mich at 459-461 (opinion by K

ELLY

, J.); Johnson,

460 Mich at 732-733; Wolfe, 440 Mich at 516-528.

Consequently, we hold that although not expressly

articulated by our Supreme Court, the de novo stan-

dard of review is proper in reviewing defendants’

challenges that the evidence was insufficient to sup-

port their convictions.

2. UNARMED ROBBERY

To be guilty of unarmed robbery, a defendant must

(1) feloniously take the property of another, (2) by force

or violence or assault or putting in fear, and (3) be

unarmed. People v Johnson, 206 Mich App 122, 125-

126; 520 NW2d 672 (1994); MCL 750.530. Unarmed

robbery is a specific intent crime for which the prosecu-

tion must establish that the defendant intended to

permanently deprive the owner of property. People v

Dupie, 395 Mich 483, 487; 236 NW2d 494 (1975); People

Importantly, whether in federal or state court, it is a defendant’s

constitutional right to due process that is at stake in sufficiency cases.

Johnson, 460 Mich at 723; Clark v Kansas City Missouri Sch Dist, 375

F3d 698, 701 (CA 8, 2004). And “state and federal courts have the same

responsibilities to protect persons from violation of their constitutional

rights....”Wright v West, 505 US 277, 287; 112 S Ct 2482; 120 L Ed 2d

225 (1992) (quotation marks and citation omitted).

2010] P

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ARVERSON

177

v King, 210 Mich App 425, 428; 534 NW2d 534 (1995).

Because intent may be difficult to prove, only minimal

circumstantial evidence is necessary to show a defen-

dant entertained the requisite intent. People v Strong,

143 Mich App 442, 452; 372 NW2d 335 (1985).

In raising this issue, defendant challenges only the

intent element of this offense, in essence arguing that

because he walked away after taking the glasses and

refused to steal any other items from Conliffe, the

prosecution failed to establish that defendant intended

to permanently deprive Conliffe of his property.

How-

ever, to permanently deprive in the context of unarmed

robbery “does not require, in a literal sense, that a thief

have an intent to permanently deprive the owner of the

property.” People v Jones, 98 Mich App 421, 425-426;

296 NW2d 268 (1980). Rather, the intent to perma-

nently deprive includes the retention of property with-

out the purpose to return it within a reasonable time or

the retention of property with the intent to return the

property on the condition that the owner pay some

compensation for its return. Id.

It is clear from defendant’s own rendition of events

that he possessed the requisite intent. On this score,

defendant explained that he accompanied Anderson

and Jackson for the express purpose of retrieving

Anderson’s cell phone. When Conliffe subsequently

denied having knowledge of Anderson’s phone, defen-

Although King refers to armed robbery, the intent element of that

offense is identical to that required for unarmed robbery. King, 120 Mich

App at 428; Johnson, 206 Mich App at 125-126.

Ironically, despite challenging the intent element of unarmed robbery

on these grounds, defendant concedes that he is guilty of larceny from a

person, MCL 750.357—an offense requiring the intent to permanently

deprive. People v Perkins, 262 Mich App 267, 271-272; 686 NW2d 237

(2004), aff’d 473 Mich 626 (2005). Despite this inconsistency, we will

address defendant’s argument as presented.

178 291 M

ICH

171 [Dec

dant “snatched” Conliffe’s glasses and told him, “you

get these back when we get the phone back.” In other

words, defendant intended to retain Conliffe’s glasses

and only return them on the condition that Conliffe pay

compensation in the form of returning Anderson’s

phone. Such testimony easily satisfies the intent ele-

ment of unarmed robbery.

Defendant argues that the testimony of Anderson

and Conliffe’s mother contained inconsistencies. How-

ever, it is for the jury to determine witness credibility

and resolve inconsistencies of testimony. People v

Fletcher, 260 Mich App 531, 561; 679 NW2d 127 (2004).

And in any event, defendant’s explanation of his words

to Conliffe is tantamount to an admission that he

possessed the requisite intent.

Before moving on, we note that although not directly

challenged by defendant, sufficient evidence existed to

satisfy the other elements of the offense. Indeed, Con-

liffe’s mother and stepfather positively identified defen-

dant as the perpetrator who pointed the gun at Conliffe

before taking the glasses. An inference of the use of fear

or violence (and even that defendant was armed) is

easily deducible from such testimony. Thus, the pros-

ecution met its burden of proving the elements of

unarmed robbery beyond a reasonable doubt.

B. SCORING OF OFFENSE VARIABLES

Next, defendant challenges the scoring of Offense

Variables (OV) 13, 9, 1, and 2. This Court reviews de

novo the application of the sentencing guidelines but

reviews a trial court’s scoring of a sentencing variable

for an abuse of discretion. People v Cannon, 481 Mich

152, 156; 749 NW2d 257 (2008); People v Hornsby, 251

Mich App 462, 468; 650 NW2d 700 (2002). “Scoring

decisions for which there is any evidence in support will

2010] P

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ARVERSON

179

be upheld.” People v Elliott, 215 Mich App 259, 260; 544

NW2d 748 (1996). Absent an error in the scoring or

reliance on inaccurate information in determining the

sentence, this Court must affirm a sentence within the

applicable guidelines range. MCL 769.34(10); People v

Kimble, 470 Mich 305, 310-311; 684 NW2d 669 (2004).

A trial court’s sentence may be invalid if it is based on

a misconception of the law or inaccurate information.

MCL 769.34(10); People v Miles, 454 Mich 90, 96; 559

NW2d 299 (1997).

1. OV 13

Defendant first claims the court erroneously scored

10 points for OV 13 by including his juvenile adjudica-

tions.

This argument is unsustainable, however, in view

of the plain language of MCL 777.43. Under that statute,

OV 13 is scored for a “continuing pattern of criminal

behavior” for which 10 points are appropriate if the

“offense was part of a pattern of felonious criminal

activity involving a combination of 3 or more crimes

against a person or property....”MCL777.43(1)(d) (em-

phasis supplied). Notably, the plain language of the statute

does not require a criminal conviction to score 10 points,

but only requires “criminal activity.” A juvenile adjudica-

tion clearly constitutes criminal activity because “it

amounts to a violation of a criminal statute, even though

that violation is not resolved in a ‘criminal proceeding.’ ”

People v Luckett, 485 Mich 1076, 1076-1077 (2010)

OUNG

, J., concurring). Therefore, defendant’s poor juve-

nile track record, rife with adjudications, supported the

trial court’s scoring of this variable.

According to the presentence investigation report, defendant’s juvenile

adjudications included: receiving and concealing a stolen vehicle, unlawfully

driving away an automobile, breaking and entering, fourth-degree criminal

sexual conduct, and failure to register as a sex offender.

180 291 M

ICH

171 [Dec

2. OV 9

Next, defendant asserts that because Conliffe was

the only victim, his score for this OV should be zero

points instead of 10 points. MCL 777.39 governs the

scoring of OV 9 and provides in part that the trial court

assess 10 points if “2 to 9 victim s... were placed in

danger of physical injury or death....” MCL

777.39(1)(c). For purposes of scoring this variable, a

court is to count each person who was placed in danger

of physical injury or loss of life or property during the

transaction giving rise to the particular offense as a

victim. MCL 777.39(2)(a); People v McGraw, 484 Mich

120, 128; 771 NW2d 655 (2009).

The presentence investigation report reveals

that

during the robbery, Conliffe’s mother jumped between

Conliffe and defendant while defendant was pointing

the gun at Conliffe’s face for fear that Conliffe or her

grandson, who was nearby, could be shot. “[I]n a

robbery, the defendant may have robbed only one vic-

tim, but scoring OV 9 for multiple victims may never-

theless be appropriate if there were other individuals

present at the scene of the robbery who were placed in

danger of injury or loss of life.” People v Sargent, 481

Mich 346, 350 n 2; 750 NW2d 161 (2008). Pointing a gun

at multiple individuals clearly places them in danger of

injury or loss of life. The score of 10 points for OV 9 was

appropriate.

3. OV 1 AND OV 2

Defendant challenges the scoring of OVs 1 and 2 on

the grounds that he was not convicted of possessing or

“A sentencing court may consider all record evidence before it when

calculating the guidelines, including, but not limited to, the contents of a

presentenceinvestigationreport....”People v Ratkov (After Remand),

201 Mich App 123, 125; 505 NW2d 886 (1993).

2010] P

EOPLE V

ARVERSON

181

pointing a firearm toward the victim and because there

was no evidence that any other offender was assigned

points for the use of weapons in this case. A trial court

scores 15 points for OV 1 when “[a] firearm was pointed

at or toward a victim,” MCL 777.31(1)(c), and five

points for OV 2 when “[t]he offender possessed... a

pistol, rifle, [or] shotgun,” MCL 777.32(1)(d). As noted

in the foregoing analysis, the presentence investigation

report indicates that defendant pointed the gun at

Conliffe’s face and, additionally, Conliffe’s mother and

stepfather both testified at trial that defendant bran-

dished a gun during the robbery. The trial court did not

err in scoring these variables.

C. BLAKELY CHALLENGE

Before concluding, we note that defendant also raises

a Blakely challenge,

claiming that People v Drohan, 475

Mich 140, 164; 715 NW2d 778 (2006) (finding that

Michigan’s indeterminate sentencing scheme is unaf-

fected by Blakely), was wrongly decided. However, as we

are bound to follow Supreme Court precedent on this

matter, we reject this claim outright. People v Tierney,

266 Mich App 687, 713; 703 NW2d 204 (2005).

Affirmed.

Blakely v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403

(2004).

182 291 M

ICH

171 [Dec

PEOPLE v VAUGHN

Docket No. 292385. Submitted December 15, 2010, at Detroit. Decided

December 28, 2010, at 9:05 a.m.

Joseph L. Vaughn was convicted of two counts of assault with intent

to do great bodily harm less than murder, possession of a firearm

by a felon, and possession of a firearm during the commission of a

felony (felony-firearm), second-offense, after a jury trial in the

Wayne Circuit Court. On the second day of trial, defendant moved

to suppress a statement he made to police officers at his home

shortly before his arrest, asserting it had been made during

improper custodial interrogation. The court, Prentis Edwards, J.,

denied the motion. Defendant appealed.

The Court of Appeals held:

1. The prosecution may not use statements, whether exculpa-

tory or inculpatory, stemming from custodial interrogation of the

defendant unless it demonstrates the use of the warnings set forth

in Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694

(1966). However, a police officer is only required to give the

warnings when a suspect is in custody. To determine whether a

defendant was in custody at the time of the interrogation, courts

must examine all of the circumstances surrounding the interroga-

tion and determine whether a reasonable person would have felt at

liberty to terminate the interrogation and leave. The trial court did

not err when it determined that defendant was not in custody

because the police officers questioned defendant in his own home

after having been invited in by defendant’s mother, the officers

had not drawn weapons and were not wearing uniforms, they did

not order defendant to leave the basement, they did not handcuff

defendant, and defendant’s mother was present when the officers

questioned defendant.

2. Defendant was not deprived of his right to a public trial

when the trial court closed the courtroom to the public during jury

voir dire. A trial court may not close the courtroom to the public

unless the party seeking closure advances an overriding interest

that is likely to be prejudiced and the trial court considers all

reasonable alternatives to closing the proceeding. However, the

failure of the defendant to timely assert the right to a public trial

2010] P

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AUGHN

183

forecloses the later grant of relief. Because defendant’s trial

counsel did not object to the trial court’s decision to close the

courtroom to the public during the selection of his jury, defendant

waived any objection to the decision.

3. Defendant was not denied the effective assistance of coun-

sel. There was no showing that the two jurors that defendant

argued should have been questioned further were biased against

defendant, there was no basis to quash the information after a

third preliminary hearing was held because additional evidence

was presented then, alibi witnesses would not have changed the

outcome of the trial because defendant had admitted that he had

been outside when the shooting occurred, and defendant did not

meet his burden of showing that defense counsel’s failure to

challenge the court’s decision to close the courtroom to the public

during voir dire was not sound trial strategy. Defendant failed to

show that his trial counsel’s performance fell below an objective

standard of reasonableness under prevailing professional norms

and that there is a reasonable probability that, but for counsel’s

error, the result of the proceedings would have been different.

Affirmed.

ONSTITUTIONAL

AW —

IGHT TO

UBLIC

RIAL —

ECESSITY OF

IMELY

BJECTION

A trial court may not close the courtroom to the public unless the

party seeking closure advances an overriding interest that is likely

to be prejudiced and the trial court considers all reasonable

alternatives to closing the proceeding; however, the failure of the

defendant to timely assert the right to a public trial forecloses the

later grant of relief.

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, Kym L. Worthy, Prosecuting Attor-

ney, Timothy A. Baughman, Chief of Research, Train-

ing, and Appeals, and Thomas M. Chambers, Assistant

Prosecuting Attorney, for the people.

State Appellate Defender (by Randy E. Davidson) for

defendant.

Before: M. J. K

ELLY

,P.J., and K. F. K

ELLY

and B

ORRELLO

JJ.

184 291 M

ICH

183 [Dec

URIAM

. Defendant Joseph Lashawn Vaughn

appeals as of right his jury convictions of two counts of

assault with intent to do great bodily harm less than

murder, MCL 750.84, possession of a firearm by a felon,

MCL 750.224f, and possession of a firearm during the

commission of a felony (felony-firearm), second-offense,

MCL 750.227b. The trial court sentenced defendant to

serve 3

to 10 years in prison for each of the assault

convictions, to serve 2 to 5 years in prison for the

felon-in-possession conviction, and to serve 5 years in

prison for the felony-firearm conviction. On appeal,

defendant argues that the trial court erred when it

denied his motion to suppress the statements that he

made to police officers shortly after the incident at issue

and erred when it closed the courtroom to the public

during jury voir dire. He also argues that his trial

counsel did not provide effective assistance and that his

appeal has been prejudiced by a missing or incomplete

record. These errors, he maintains, deprived him of a

fair trial. We conclude that there were no errors that

warrant relief. Accordingly, we affirm.

I. BASIC FACTS

This case arises from a shooting that occurred late at

night in June 2002.

Emmitt Smith, who was a retired

police officer, testified that he picked up his wife from

work and arrived back at his home at about 11:45 p.m.

Defendant filed three separate briefs on appeal. His appellate counsel

filed a brief on appeal and later moved for permission to add an additional

claim of error in a supplemental brief, which this Court granted. See

People v Vaughn, unpublished order of the Court of Appeals, entered

December 6, 2010 (Docket No. 292385). Defendant also filed a brief on his

own behalf. See Administrative Order No. 2004-06, Standard 4.

The jury convicted defendant in January 2003, but defendant

absconded and the trial court was not able to sentence him until May

2009.

2010] P

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AUGHN

185

Sometime shortly thereafter, he saw a car parked in

front of his home. The tail end of the car was blocking

his driveway and there was a person crouched down in

the passenger side with a hat over his or her head.

Smith said he walked over to his neighbor’s house and

called to him through an open window.

Terrance Haynes testified that he was Smith’s neigh-

bor and that he was watching television at around

midnight on the night at issue when Smith came over

and beckoned to him through an open window. Haynes

went out and spoke with Smith on the porch. Smith said

he asked Haynes if he knew the people in the car, and he

responded that he did not. Haynes said that he saw a

person in the car’s front passenger seat and that the

person was hunched down. Haynes and Smith talked

for a while about other things, and Smith said he

wanted to “see what’s going on” with the car. Smith

then walked toward the car.

Smith said that he approached the car parked in front

of his house while his neighbor walked toward his own car.

Smith noticed that the person in the car was a woman,

and he asked her if anything was wrong. He had a brief

conversation with the woman and then turned to walk

away. At this point, he saw a black man dressed in dark

clothing—dark shorts and a dark shirt—emerge from a

nearby alley with a revolver. He walked toward Smith

and Haynes while holding his gun and stated,

“[W]hat are you niggas doing by my mother-fucking

car.” Smith told Haynes to get down. The man with

the revolver began to fire at Smith and Haynes, and

Smith returned fire. Smith said the man fired two or

three shots and ran into the street. He turned and

fired at Smith after getting to the other side of the

street, and Smith again fired back. The man contin-

ued to run away and disappeared down a driveway.

186 291 M

ICH

183 [Dec

The woman got out of the car and disappeared around

the end of the block. The police arrived just minutes

later.

Michael Crosby testified that he was a police officer

working on the night at issue with officers Lee Huelsen-

beck and Christopher Staton. He received a call of shots

fired at about 10 minutes after midnight that night and

responded to the scene within 5 minutes. Crosby spoke

with Smith at the scene and then ran a check on the

plates on the car in front of Smith’s house. The car

belonged to defendant, and his address was just a few

blocks away. Crosby said that he and his partners then

went to defendant’s house.

Huelsenbeck testified that defendant’s mother an-

swered the side door and, after he asked if defendant

was home, she let them in. He said they came in onto a

landing. The landing led up a few stairs to the kitchen,

and there was also a flight of stairs that led to the

basement. Huelsenbeck stated that defendant was at

the bottom of the stairs “sweating profusely.” Defen-

dant was wearing blue shorts and a black shirt. Crosby

said he asked defendant to come up. Defendant came up

the stairs, and Crosby noticed that he was sweating

heavily and was breathing hard. They went into the

kitchen, and Crosby asked defendant where he had just

come from. Defendant stated that “he was around the

corner and someone tried to steal his car and shot at

him several times.” At that point Crosby arrested

defendant.

II. MOTION TO SUPPRESS STATEMENTS

A. STANDARDS OF REVIEW

We first address defendant’s argument that the trial

court erred when it denied his motion to suppress the

statement that he made to the police officers at his

2010] P

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AUGHN

187

home shortly after the shooting. Specifically, defendant

argues that the trial court erred when it determined

that he was not in custody when he made the statement

and, accordingly, was not entitled to be advised of his

constitutional rights, as required under Miranda v

Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694

(1966). This Court reviews for clear error the factual

findings underlying a trial court’s decision on a motion

to suppress. People v Herndon, 246 Mich App 371, 395;

633 NW2d 376 (2001). However, this Court reviews de

novo, as a question of law, whether the facts show that

defendant was in custody and entitled to Miranda

warnings. Id.

B. ANALYSIS

In Miranda, the Supreme Court of the United

States determined that the coercive nature of custo-

dial interrogations implicated a defendant’s Fifth

Amendment right to be free from compelled self-

incrimination. See Miranda, 384 US at 458 (“Unless

adequate protective devices are employed to dispel

the compulsion inherent in custodial surroundings,

no statement obtained from the defendant can truly

be the product of his free choice.”). In order to ensure

that a defendant’s statements were not the result of

coercive interrogation techniques, the Court held

that “the prosecution may not use statements,

whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it

demonstrates the use of procedural safeguards effec-

tive to secure the privilege against self-

incrimination.” Id. at 444. Accordingly, before con-

ducting a custodial interrogation, the interrogating

officer must advise the suspect of certain fundamen-

tal rights:

188 291 M

ICH

183 [Dec

He must be warned prior to any questioning that he has

the right to remain silent, that anything he says can be

used against him in a court of law, that he has the right to

the presence of an attorney, and that if he cannot afford an

attorney one will be appointed for him prior to any ques-

tioning if he so desires. [Id. at 479.]

“[U]nless and until such warnings and waiver are

demonstrated by the prosecution at trial, no evidence

obtained as a result of interrogation can be used against

him.” Id. However, the Court limited the requirement

to custodial interrogations—that is, interrogations that

have a heightened risk of improper coercion. Id. at 444.

Thus, a police officer is only required to give the

warnings when a suspect is in custody. See Stansbury v

California, 511 US 318, 322; 114 S Ct 1526; 128 L Ed 2d

293 (1994).

In assessing whether a defendant was in custody at

the time of the interrogation, courts must examine “ ‘all

of the circumstances surrounding the interrogation’

and determine ‘how a reasonable person in the position

of the individual being questioned would gauge the

breadth of his or her freedom of action.’ ” Yarborough v

Alvarado, 541 US 652, 663; 124 S Ct 2140; 158 L Ed 2d

938 (2004), quoting Stansbury, 511 US at 322, 325. A

key question is whether, under the circumstances, a

reasonable person would have felt at liberty to termi-

nate the interrogation and leave—that is, was there a

formal arrest or a restraint on freedom of movement of

the degree associated with formal arrest. Yarborough,

541 US at 663.

Here, the trial court did not err when it determined

that defendant was not in custody. The police officers

went to defendant’s house to investigate whether

defendant had any involvement in the shooting. Al-

though the officers entered defendant’s home, they

did so with defendant’s mother’s permission. Fur-

2010] P

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189

ther, there is no evidence that the police had their

weapons drawn or were otherwise asserting control

over the scene. Indeed, the officers were in plain

clothes. When the police entered defendant’s home,

at least two of the officers saw defendant at the foot

of the basement steps, and Crosby asked him to come

up to the kitchen. There is no evidence that Crosby

ordered defendant to come up or otherwise acted in a

way that would give the impression that defendant

was not free to disregard the request. The officers

also questioned defendant in his own home rather

than in a formal police setting. See People v Coomer,

245 Mich App 206, 220; 627 NW2d 612 (2001) (noting

that an interrogation at a suspect’s home is usually

viewed as noncustodial). They did not handcuff de-

fendant or otherwise restrict his movement. Finally,

defendant’s mother was present with him when the

police officers questioned him. Under the totality of

these circumstances, we cannot conclude that a rea-

sonable person would not have felt at liberty to

discontinue the interrogation and leave. Yarborough,

541 US at 663.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

A. STANDARDS OF REVIEW

Defendant also argues that his trial counsel was

constitutionally ineffective. Specifically, he argues that

his trial counsel should have challenged two jurors

during voir dire, should have called two alibi witnesses,

and should have moved to quash the information.

Because there was no evidentiary hearing before the

trial court, our review is limited to mistakes apparent

on the record. People v Davis, 250 Mich App 357, 368;

649 NW2d 94 (2002).

190 291 M

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183 [Dec

B. THE APPLICABLE LAW

To establish ineffective assistance of counsel, defen-

dant must show that his trial counsel’s performance fell

below an objective standard of reasonableness under

prevailing professional norms and that there is a rea-

sonable probability that, but for counsel’s error, the

result of the proceedings would have been different.

People v Yost, 278 Mich App 341, 387; 749 NW2d 753

(2008). This Court presumes the effective assistance of

counsel and defendant bears a heavy burden of proving

otherwise. People v LeBlanc, 465 Mich 575, 578; 640

NW2d 246 (2002).

C. THE FAILURE TO CHALLENGE JURORS

Defendant first argues that his trial counsel was

ineffective for failing to challenge two jurors who ex-

pressed an interest in going home or at least for failing

to question these jurors further. Toward the end of voir

dire, defendant’s trial counsel asked the potential jurors

if they could all be fair. After this, he promised them

that he had only one more question. Defendant’s trial

counsel then asked if any of them would like to go

home:

I’ve got some get out of jury service tickets in my pocket.

I can get you out of here now. Tell me who don’t want to be

here. You don’t need to have no reason for it. Doesn’t have

to be a good reason. You just don’t feel like being here. Mr.

Barnett, I want to go home. This is your shot. Serve or go

home.

Who wants to go home?

Four potential jurors raised their hands and indi-

cated they would like to go home. After a recess, the

prosecutor used a peremptory challenge to unseat one

of the four jurors, and defendant’s trial counsel used a

2010] P

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191

peremptory challenge to unseat another of the four. He

did not seek to excuse the remaining two jurors. Defen-

dant’s trial counsel indicated that he was “satisfied

with this jury, your Honor,” and the jury was empan-

elled.

Defendant argues that his trial counsel’s failure to

remove, or at least question, the two other jurors

could not be deemed a matter of trial strategy. Rather,

seating the jurors, without first questioning whether

they could be fair, resulted in a structural defect

because they may have been biased and may have

lacked the ability to judge fairly. Defendant cites

several cases to support his position, but they are all

distinguishable. In those cases, the prospective jurors

expressed clear reservations about their ability to

judge the defendant fairly. See State v Chastain, 285

Mont 61; 947 P2d 57 (1997), overruled by State v

Herrman, 316 Mont 198; 70 P3d 738 (2003); Hughes v

United States, 258 F3d 453 (CA 6, 2001); Franklin v

Anderson, 434 F3d 412 (CA 6, 2006). Here, the

prospective jurors simply revealed what many of their

peers likely felt—that they would gladly be relieved of

jury duty. Neither juror in this case indicated any

potential prejudice or animus toward defendant.

In People v Unger, 278 Mich App 210, 257; 749 NW2d

272 (2008), the defendant argued that counsel was

ineffective for failing to challenge an allegedly biased

potential juror who had admitted that he had discussed

the defendant’s case with others and had read various

newspaper accounts of the case. However, further ques-

tioning revealed that the juror had not read anything

that would influence his decision. He confirmed that he

could “ ‘be fair and impartial to both sides.’ ” Id. This

Court concluded that defendant’s trial counsel was not

ineffective:

192 291 M

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183 [Dec

[D]efendant’s trial counsel was not ineffective for failing

to challenge the potential juror in question. Perhaps the

most important criteria in selecting a jury include a poten-

tial juror’s facial expressions, body language, and manner

of answering questions. However, as a reviewing court, we

“cannot see the jurors or listen to their answers to voir dire

questions.” For this reason, this Court has been disinclined

to find ineffective assistance of counsel on the basis of an

attorney’s failure to challenge a juror. [Id. at 258 (citations

omitted).]

It is clear from the record in this case that neither

juror expressed any bias or inability to judge the case

fairly. And the fact that the jurors would rather not

serve on the jury did not establish a ground for their

dismissal. Absent a showing of actual bias against

defendant, defense counsel’s decision to keep the jurors

was a matter of trial strategy, which we will not

second-guess. Id.

D. FAILURE TO MOVE TO QUASH THE INFORMATION

Defendant argues that his counsel was also ineffec-

tive for failing to move to quash the information. A

preliminary hearing was initially held in June 2002, at

which time the trial court dismissed the case for lack of

probable cause. A second preliminary hearing was ad-

journed at the prosecutor’s request. Defendant was

ultimately bound over after a third preliminary exami-

nation in September 2002. Defendant argues that there

was no new evidence at the third scheduled hearing and

that the prosecution was “judge shopping.” A review of

the record refutes this claim.

At the first preliminary hearing, only Smith testified.

Because Smith failed to identify defendant as the shooter,

the prosecutor admitted that the evidence was insufficient

to bind defendant over for trial. However, at the Septem-

ber 2002 hearing, in addition to Smith, Huelsenbeck

2010] P

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193

testified about the circumstances surrounding the offic-

ers’ investigation and defendant’s arrest. Thus, contrary

to defendant’s contention, the prosecution presented new

evidence at the final preliminary hearing, and that evi-

dence established defendant as the man who shot at

Smith and Haynes. It follows that defendant’s trial coun-

sel’s decision not to move to quash the information on this

basis did not fall below an objective standard of reason-

ableness under prevailing professional norms. Yost, 278

Mich App at 387.

E. FAILURE TO CALL ALIBI WITNESSES

Defendant also argues that counsel was ineffective

for failing to investigate the case and call alibi wit-

nesses. Defendant told counsel that his car had been

stolen and that he was home when the offense took

place. Defendant claims that both his mother and

cousin were willing to testify to this effect, but counsel

never contacted them.

Defendant has failed to establish the factual predicate

for his claim by providing affidavits to substantiate that

the witnesses would have testified as he claims. See People

v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999). The decision

not to call alibi witnesses is generally a matter of trial

strategy. People v P ayne, 285 Mich App 181, 190; 774

NW2d 714 (2009). And this Court will not second-guess

that decision in the absence of any evidence that the

witnesses would actually have testified as the defendant

claims. People v Garza, 246 Mich App 251, 255; 631 NW2d

764 (2001) (noting that this Court will not substitute its

judgment for that of trial counsel on matters of trial

strategy, nor assess counsel’s performance with the ben-

efit of hindsight). Finally, even if defendant had presented

evidence that the witnesses would have provided an alibi,

defendant would still not be entitled to relief.

194 291 M

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183 [Dec

Crosby and Huelsenbeck arrived at the scene of the

shooting a few minutes after it occurred and quickly

determined that the car in front of Smith’s house

belonged to defendant. They proceeded to defendant’s

home and found him there, sweating profusely and

breathing hard. After Crosby asked defendant where he

had come from, he admitted that he came from just

around the corner where someone had tried to steal his

car and had shot at him. Given this evidence, even if

defendant’s trial counsel’s decision not to call these

witnesses fell below an objective standard of reason-

ableness under prevailing professional norms, it is not

reasonably probable that the decision affected the out-

come. Yost, 278 Mich App at 387. Thus, defendant is not

entitled to any relief.

IV. RIGHT TO A PUBLIC TRIAL

A. STANDARDS OF REVIEW

Defendant next argues that the trial court erred

when it closed the courtroom to the public during voir

dire. Defendant contends that this error is structural

error that automatically warrants a new trial. In the

alternative, he maintains that his trial counsel’s failure

to object to the closing of the courtroom during voir dire

constitutes ineffective assistance of counsel that war-

rants a new trial. This Court reviews de novo questions

of constitutional law. People v Dendel, 481 Mich 114,

124; 748 NW2d 859 (2008).

B. ANALYSIS

A defendant has the right to a public trial, which

includes the right to have the courtroom open to the

public during jury voir dire. See Presley v Georgia, 558

US ___; 130 S Ct 721, 724; 175 L Ed 2d 675 (2010).

2010] P

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195

Although there are exceptions to the right, the trial

court may not close the courtroom to the public unless

the party seeking closure advances an overriding inter-

est that is likely to be prejudiced and the trial court

considers all reasonable alternatives to closing the

proceeding. Id. at 724. However, this right is not self-

executing: the defendant must timely assert the right.

Levine v United States, 362 US 610, 619-620; 80 S Ct

1038; 4 L Ed 2d 989 (1960) (“Due regard generally for

the public nature of the judicial process does not require

disregard of the solid demands of the fair administra-

tion of justice in favor of a party who, at the appropriate

time and acting under advice of counsel, saw no disre-

gard of a right, but raises an abstract claim only as an

afterthought on appeal.”). Thus, the failure to timely

assert the right to a public trial forecloses the later

grant of relief. See United States v Hitt, 473 F3d 146,

155 (CA 5, 2006) (“Where a defendant, with knowledge

of the closure of the courtroom, fails to object, that

defendant waives his right to a public trial.”); Freytag v

Comm’r of Internal Revenue, 501 US 868, 896; 111 S Ct

2631; 115 L Ed 2d 764 (1991) (Scalia, J., concurring)

(noting that review of a claim of error with regard to

certain rights, such as the Sixth Amendment right to a

public trial, may be foreclosed by the failure to timely

assert the right); see also Peretz v United States, 501 US

923, 936-937; 111 S Ct 2661; 115 L Ed 2d 808 (1991)

(noting that the failure to timely assert the right to

have an Article III judge preside over jury voir dire

forecloses the grant of relief).

Here, defendant’s trial counsel did not object to the

trial court’s decision to close the courtroom to the

public during the selection of his jury. Cf. Presley, 130 S

Ct at 722 (noting that the defendant’s trial counsel

objected to the closing of the courtroom to the public).

196 291 M

ICH

183 [Dec

Therefore, the error does not warrant relief. Levine, 362

US at 619; Hitt, 473 F3d at 155.

Likewise, we do not agree that defendant’s trial

counsel’s failure to object to the closing of the court-

room constitutes ineffective assistance of counsel. In

order to warrant relief premised on ineffective assis-

tance of counsel, defendant must show that his trial

counsel’s decision not to object fell below an objective

standard of reasonableness under prevailing profes-

sional norms and that, but for counsel’s unprofessional

conduct, the result of the proceedings would have been

different. Yost, 278 Mich App at 387. Defendant’s trial

counsel might have reasonably concluded that proceed-

ing with a jury voir dire that was closed to the public

benefited defendant. Reasonable trial counsel might

conclude that the potential jurors will be more forth-

coming in their responses when the courtroom is closed,

that the proceedings will be less likely to be tainted by

outside influences, or might simply find the procedure

preferable because it will expedite the proceedings.

Defendant has failed to overcome the presumption that

his trial counsel’s decision was a matter of sound trial

strategy. LeBlanc, 465 Mich at 578. Therefore, defen-

dant is not entitled to relief.

V. MISSING RECORD

Finally, we address defendant’s argument that he has

been deprived of his right to an appeal because the

lower court record is missing. He also notes that the

ment was granted even though the statement was used

at trial. As an alternative, defendant asked this Court to

remand for a hearing to reconstruct the record. This

Court granted the motion for a remand, see People v

Vaughn, unpublished order of the Court of Appeals,

2010] P

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197

entered March 18, 2010 (Docket No. 292385), and the

trial court reconstructed the relevant missing portion of

the record and reconciled the discrepancy between the

record otherwise appears sufficient to address defen-

dant’s claims of error. Therefore, he is entitled to no

further relief. See People v Audison, 126 Mich App 829,

835; 338 NW2d 235 (1983) (noting that the defendant’s

right to an appeal is satisfied where the surviving

record is sufficient to allow evaluation of the defen-

dant’s claims).

There were no errors warranting relief.

Affirmed.

198 291 M

ICH

183 [Dec

PEOPLE v LAIDLER

Docket Nos. 294147 and 295111. Submitted November 10, 2010, at

Detroit. Decided December 28, 2010, at 9:10 a.m.

Marteez D. Laidler was convicted of first-degree home invasion after

a jury trial in the Wayne Circuit Court. Defendant and Dante

Holmes had attempted to break into a home, but the home was

occupied and the homeowner fatally shot Holmes. Defendant was

originally sentenced to a prison term of 110 months to 20 years.

After the court, Patricia Fresard, J., discovered that it had used an

incorrect sentencing guidelines grid at defendant’s original sen-

tencing, defendant was resentenced to a lesser prison term of 48

months to 20 years. Defendant appealed both his conviction and

his sentence.

The Court of Appeals held:

1. A prosecutor cannot vouch for the credibility of a witness,

suggest that he or she has some special knowledge concerning a

witness’s truthfulness, or express a personal belief in the defen-

dant’s guilt. The record did not support defendant’s claim that

these rules were violated by the prosecutor during her closing

argument, and because the prosecutor’s argument was not im-

proper, defense counsel was not ineffective for failing to object.

2. Offense variable 3 (OV 3), MCL 777.33, considers physical

injury to a victim and requires that 100 points be assessed when a

victim was killed; for purposes of OV 3, a victim is any person harmed

by the criminal actions of the charged party. Under MCL 77.33(2)(b),

100 points are to be scored if death results from the commission of a

crime and homicide is not the sentencing offense; this provision limits

the offenses for which 100 points can be assessed to nonhomicide

sentencing offenses in which the death resulted from the commission

of a crime. Holmes was not a victim because he was not harmed by

defendant’s criminal activity or by the crime that was committed,

jointly, by himself and defendant; rather, the victim of the crime was

the homeowner, and he was not injured.

Affirmed, and remanded for resentencing.

O’C

ONNELL

,P.J., concurred in affirming defendant’s conviction

but dissented from the majority’s decision to vacate defendant’s

sentence. He would hold that any person harmed by the criminal

2010] P

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199

actions of the charged party, including a perpetrator, is a victim for

whose death 100 points are to be scored under MCL 777.33(1)(a) or

(b).

ENTENCES —

ENTENCING

UIDELINES —

FFENSE

ARIABLE

—

HYSICAL

NJURY TO

ICTIM —

ERPETRATOR AS

ICTIM

Offense variable 3, physical injury to a victim, may only be scored

when a person is harmed by the criminal actions of the charged

party, not by the actions of another person present when the crime

is committed (MCL 777.33).

Michael A. Cox, Attorney General, B. Eric Restuccia,

Solicitor General, Kym L. Worthy, Prosecuting Attor-

ney, and Toni Odette, Assistant Prosecuting Attorney,

for the people.

State Appellate Defender (by Mark R. Hall) for

defendant.

Before: O’C

ONNELL

,P.J., and B

ANDSTRA

and M

URRAY

JJ.

ANDSTRA

, J. In Docket No. 294147, defendant ap-

peals as of right his conviction, following a jury trial, of

first-degree home invasion. MCL 750.110a(2). Defen-

dant was originally sentenced to a prison term of 110

months to 20 years. After the trial court discovered that

it had used an incorrect sentencing guidelines grid at

defendant’s original sentencing, defendant was resen-

tenced to a lesser prison term of 48 months to 20 years.

Defendant appeals that sentence as of right in Docket

No. 295111. Defendant’s appeals have been consoli-

dated for this Court’s consideration. We affirm defen-

dant’s conviction, but remand for resentencing. These

appeals have been decided without oral argument pur-

suant to MCR 7.214(E).

Defendant’s conviction arises from an incident in

which he and Dante Holmes broke into a house that

200 291 M

ICH

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they apparently believed was unoccupied. The home-

owner was present and fatally shot Holmes as he

reached inside a broken window to unlock it. Defendant

admitted that he was with Holmes at the house. The

prosecution’s theory at trial was that defendant as-

sisted Holmes by helping him up to the window, which

was six feet off the ground.

Defendant argues that he is entitled to a new trial

because of the prosecutor’s improper conduct during

closing argument. Because defendant did not object to

the prosecutor’s comments at trial, relief is precluded

unless defendant establishes plain error that affected

his substantial rights. People v Brown, 279 Mich App

116, 134; 755 NW2d 664 (2008); People v Thomas, 260

Mich App 450, 453-454; 678 NW2d 631 (2004). Defen-

dant also contends that trial counsel was ineffective for

failing to object to the prosecutor’s conduct. Because

defendant did not raise this issue below, review is

limited to errors apparent from the existing record.

People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96

(2002); People v Snider, 239 Mich App 393, 423; 608

NW2d 502 (2000).

The prosecutor cannot vouch for the credibility of a

witness or suggest that she has some special knowledge

concerning a witness’s truthfulness. People v Bahoda,

448 Mich 261, 276; 531 NW2d 659 (1995). Nor may the

prosecutor express a personal belief in the defendant’s

guilt. People v Humphreys, 24 Mich App 411, 414; 180

NW2d 328 (1970). Contrary to defendant’s assertion,

however, the record does not support defendant’s claim

that these rules were violated by the prosecutor during

her closing argument. Rather, the prosecution ad-

dressed the evidence presented at trial and the conclu-

sions that reasonably could be drawn from it. Bahoda,

448 Mich at 282. Although the prosecuting attorney

2010] P

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201

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noted that the jury had the option to find defendant not

guilty, she argued that doing so would be contrary to

what the facts showed and what the law required.

There was nothing improper in arguing that the jury

should convict defendant because the evidence showed

that he was guilty. And because the prosecution’s argu-

ment was not improper, defense counsel was not inef-

fective for failing to object. Counsel is not ineffective for

failing to raise a meritless objection. People v Matuszak,

263 Mich App 42, 60; 687 NW2d 342 (2004).

Defendant also argues that he is entitled to resen-

tencing because the trial court erroneously scored 100

points for offense variable 3. The interpretation and

application of the sentencing guidelines present ques-

tions of law subject to de novo review on appeal. People

v Cannon, 481 Mich 152, 156; 749 NW2d 257 (2008).

Offense variable 3 (OV 3) considers “physical injury

to a victim,” MCL 777.33(1), and it assesses points

depending on the degree of injury suffered by “a vic-

tim,” MCL 777.33(1)(a) to (f). In relevant part, it

requires that 100 points be assessed when “[a] victim

was killed.” MCL 777.33(1)(a) and (b). For purposes of

OV 3, the term “victim” means “any person harmed by

the criminal actions of the charged party.” People v

Albers, 258 Mich App 578, 593; 672 NW2d 336 (2003).

MCL 777.33(2)(b) instructs further that 100 points

are to be scored “if death results from the commission

of a crime and homicide is not the sentencing offense.”

In this non-homicide sentencing offense case, the trial

court determined that the death of defendant’s co-felon,

Holmes, justified a 100-point score for OV 3. It reasoned

that “it doesn’t have to be the victim” who was killed to

warrant such a score and that 100 points could be

assessed whenever “someone died as a result of the

202 291 M

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commission of [the] crime,” because subsection (2)(b)

does not specifically refer to a victim. We disagree.

As already noted, MCL 777.33(1) authorizes the assess-

ment of points only where a “victim” of the sentencing

offense is killed or injured. Contrary to the reasoning of

the trial court, subsection (2)(b) does not expand the

applicability of this offense variable. Instead, it limits the

offenses for which 100 points can be assessed. A 100-point

score can only be imposed for non-homicide sentencing

offenses where the death results from the commission of a

crime. Neither of those limiting conditions can enlarge OV

3 so that it would authorize the imposition of points where

there is no physical injury to a “victim” as required by

subsection (1).

Here, Holmes simply was not a “victim” because he

was not harmed by defendant’s criminal activity, or by

the crime that was committed, jointly, by defendant and

Holmes. Albers, 258 Mich App at 593. Rather, the

“victim” of the crime here was the homeowner, and he

was not injured.

So, there being no “physical injury to

a victim,” here, OV 3 is simply inapplicable. MCL

777.33(1).

In Albers, 258 Mich App at 580, defendant was convicted of involun-

tary manslaughter after her young son set fire to their apartment,

resulting in the death of a child residing in another apartment in the

same complex. The defendant challenged the assessment of 25 points

under OV 3 for life-threatening or permanent injury to a second child

resulting from that same fire. Our Court upheld the scoring, concluding

that the other child was also a “victim” of the sentencing offense and

explaining, as noted above, that a “ ‘victim’ includes any person harmed

by the criminal actions of the charged party.” Id. at 591-593. Nothing in

Albers supports the prosecutor’s assertion here, adopted by the trial

court, that under the circumstances presented in this case, defendant’s

co-felon is a “victim” within the meaning of OV 3. Nor has the prosecutor

offered, or this Court found, any authority for such a proposition.

We further note that the requirement of MCL 777.33(2)(b), that a

death result from the commission of a crime, was not satisfied here. Even

2010] P

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203

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Because the scoring error affects the appropriate

guidelines range, resentencing is required. People v

Francisco, 474 Mich 82, 89-92; 711 NW2d 44 (2006).

Defendant’s conviction is affirmed but his sentence is

vacated and the case is remanded for resentencing. We

do not retain jurisdiction.

URRAY

, J., concurred.

O’C

ONNELL

, P.J. (concurring in part and dissenting in

part). I concur with the majority’s decision to affirm

defendant’s conviction. I respectfully dissent, however,

from the majority’s decision to vacate defendant’s sen-

tence. In my view, the trial court properly assessed

points under offense variable 3, MCL 777.33.

I would

affirm defendant’s sentence.

As the majority explains, defendant and Dante

Holmes were breaking into a home when Holmes was

shot and killed. Defendant was convicted of first-degree

home invasion, MCL 750.110a(2). At sentencing, the

trial court assigned 100 points against defendant under

OV 3, MCL 777.33(1)(a). Defendant now argues that

the OV 3 score was erroneous.

As the majority recognizes, subsection (1)(a) of OV 3

requires trial courts to assess 100 points if “a victim was

killed.” MCL 777.33(1)(a). Subsection (2)(b) defines the

parameters of the 100-point assessment: “Score 100

points if death results from the commission of a crime

if Holmes might properly be considered a “victim,” his death resulted

from the actions of the homeowner, not from the commission of a crime.

The majority assumes that a co-perpetrator cannot be a crime victim

under offense variable 3 (OV 3). I disagree. OV 3 plainly requires that

perpetrators be accountable in sentencing when a death results from the

commission of a crime. MCL 777.33(2)(b). If a perpetrator starts an

action in motion and, as a result of the action, a co-perpetrator is killed,

the co-perpetrator can be a “victim” within the meaning of OV 3.

204 291 M

ICH

199 [Dec

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O’C

ONNELL

,P.J.

and homicide is not the sentencing offense.” The ma-

jority bases its holding on the term “victim” in subsec-

tion (1)(a), and concludes that subsection (2)(b) merely

identifies the offenses that are subject to the 100-point

assessment. This interpretation improperly curtails the

terms of subsection (2)(b).

In People v Albers, 258 Mich App 578, 593; 672 NW2d

336 (2003), this Court held that for purposes of OV 3,

the term “victim” means “any person harmed by the

criminal actions of the charged party.” In the present

case, defendant’s criminal action was a home invasion;

the home invasion resulted in Holmes’s death. Because

Holmes was harmed by defendant’s criminal action,

Holmes was a “victim” within the meaning of OV 3. By

parceling out responsibility for the home invasion and

then parceling out responsibility for the resulting

shooting, the majority identifies the homeowner as the

sole “victim” of the home invasion and relegates

Holmes to being the “victim” of the shooting. I disagree

with this logic. In my opinion, both the homeowner and

Holmes are victims under OV 3.

I would affirm both the conviction and the sentence

of defendant.

The majority asserts, “Holmes simply was not a ‘victim’ because he

was not harmed by defendant’s criminal activity, or by the crime that was

committed, jointly, by defendant and Holmes.” This statement would

certainly be a revelation to Holmes’s survivors. Moreover, there are other

offenses in which a perpetrator could be a victim, such as a bank robbery

in which a defendant’s co-perpetrator was shot and killed, or an arson in

which a defendant’s co-perpetrator “got caught up in the heat of the

moment” and was burned.

2010] P

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205

PINION BY

O’C

ONNELL

,P.J.

HARE v STARR COMMONWEALTH CORPORATION

Docket No. 291476. Submitted September 9, 2010, at Lansing. Decided

January 4, 2011, at 9:00 a.m.

Charon Hare, personal representative of the estate of Marcel D.

Hare, deceased, brought an action in the Calhoun Circuit Court

against Starr Commonwealth Corporation and Selma Melvin,

seeking damages following the drowning of the decedent. Starr

Commonwealth had been hired by the Family Independence

Agency to provide foster-care services to the decedent and Starr

Commonwealth had placed the decedent in the home of foster

parent Melvin. Plaintiff alleged that Melvin was negligent or

grossly negligent in supervising the decedent. Frontier Insurance

Company, a New York insurance company, insured Starr Common-

wealth under professional-liability and general-liability insurance

policies that included Melvin within the scope of their coverage

and provided defense counsel for defendants under the policies.

The court granted summary disposition in favor of Starr Common-

wealth and dismissed it from the action. The court denied Melvin’s

motion for summary disposition. Melvin then informed her attor-

neys that she would not appear for trial and would be discharging

them. The court granted Melvin’s attorneys’ motion to withdraw

as counsel of record. Following Melvin’s refusal to appear, the

court entered a default judgment against Melvin. Plaintiff then

filed a garnishment action against Frontier. Frontier responded,

alleging that it was not indebted to Melvin and was not responsible

for any part of the default judgment entered against Melvin.

Frontier moved for summary disposition, arguing that the gar-

nishment action should be dismissed on the basis of an order of

rehabilitation entered by a New York court that purported to bar

any and all legal actions against Frontier. Frontier contended that

the circuit court was required to afford full faith and credit to the

order of rehabilitation pursuant to Michigan’s common law and

the Uniform Enforcement of Foreign Judgments Act (UEFJA),

MCL 691.1171 et seq. Plaintiff filed a cross-motion for summary

disposition, contending that the order of rehabilitation constituted

an out-of-state antisuit injunction not entitled to legal effect

beyond the territorial limits of New York, that it would violate

Michigan’s public policy to enforce the order of rehabilitation, that

206 291 M

ICH

206 [Jan

the order was not entitled to full faith and credit or comity because

plaintiff had not been subject to the personal jurisdiction of the

New York court, and that enforcement of the order would nega-

tively affect plaintiff’s substantial rights. The court, Conrad J.

Sindt, J., granted Frontier’s motion for summary disposition,

denied plaintiff’s cross-motion, and dismissed plaintiff’s claims

against Frontier with prejudice, holding that the order of rehabili-

tation was entitled to full faith and credit. Plaintiff appealed.

The Court of Appeals held:

1. Questions concerning the applicability of the UEFJA and

the Full Faith and Credit Clause of the United States Constitution

are reviewed de novo by the Court of Appeals. The Court of

Appeals reviews for an abuse of discretion a circuit court’s decision

to dismiss a case on the basis of the doctrine of forum non

conveniens. The abuse-of-discretion standard governs the appel-

late review of a circuit court’s abstention in favor of an alternative,

foreign forum.

2. A foreign judgment, to be enforceable under the UEFJA,

must have been entered by a court with jurisdiction over the

parties and the subject matter. A sister-state judgment must

constitute a final judgment on the merits in order to qualify for

recognition under the Full Faith and Credit Clause.

3. The first part of the order of rehabilitation, which declares

that Frontier has become insolvent, directs the New York Super-

intendent of Insurance to take possession of Frontier’s property,

and authorizes the superintendent to perform various tasks nec-

essary to rehabilitate Frontier’s business and affairs, was entitled

to full faith and credit by the Michigan courts.

4. The second part of the order of rehabilitation, which pro-

vides that all persons are enjoined and restrained from commenc-

ing or prosecuting any actions, lawsuits, or proceedings against

Frontier or obtaining preferences, judgments, and attachments or

other liens against Frontier’s assets, was not entitled to full faith

and credit. The Full Faith and Credit Clause does not compel a

forum state court to recognize and enforce a sister-state antisuit

injunction.

5. There was no showing that plaintiff was ever subject to the

personal jurisdiction of the courts of New York. The constitution does

not compel Michigan’s courts to recognize the New York order of

rehabilitation as a bar to plaintiff’s garnishment claim because the

New York court lacked jurisdiction over plaintiff. For the same

reasons, the UEFJA did not require the circuit court to recognize and

enforce the antisuit provisions of the order of rehabilitation.

2011] H

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6. Michigan has a valid interest in the present matter and

enforcement of the antisuit injunction would contravene plaintiff’s

rights; therefore, recognition of the antisuit injunction was not

required under the traditional rules of interstate comity.

7. The circuit court should have abstained from the present

garnishment action, dismissing the matter and deferring to the

courts of New York on grounds similar to those underlying the

doctrine of forum non conveniens.

8. Although the circuit court erred by ruling that the antisuit

provisions of the order of rehabilitation were entitled to full faith

and credit, it reached the correct result by denying plaintiff’s

motion for summary disposition and granting summary disposi-

tion in favor of Frontier. The Court of Appeals will not reverse

when the circuit court has reached the correct result, even if it has

done so for the wrong reason.

Affirmed.

1. A

PPEAL —

TANDARDS OF

EVIEW —

NIFORM

NFORCEMENT OF

OREIGN

UDGMENTS

CT —

ULL

AITH AND

REDIT

LAUSE —

ORUM

ONVENIENS —

OMITY

Questions concerning the applicability of the Uniform Enforcement

of Foreign Judgments Act and the Full Faith and Credit Clause of

the United States Constitution are reviewed de novo on appeal;

decisions to dismiss a case on the basis of the doctrine of forum non

conveniens or to dismiss a case that is properly within the

jurisdiction of the court on the basis of pending or available

litigation in an alternative, foreign forum are reviewed for an

abuse of discretion (US Const, art IV, § 1; MCL 691.1171 et seq.).

2. J

UDGMENTS —

OREIGN

UDGMENTS —

RESUMPTION OF

ALIDITY —

OLLAT-

ERAL

TTACKS ON

UDGMENTS

A judgment entered in another state is presumptively valid and

subject to recognition under the Full Faith and Credit Clause of

the United States Constitution, although a collateral attack on

such a judgment may be made in a Michigan court by showing that

the judgment was void for want of jurisdiction over the subject

matter or the parties in the court that issued it.

3. J

UDGMENTS —

NIFORM

NFORCEMENT OF

OREIGN

UDGMENTS

A foreign judgment, to be enforceable under the Uniform Enforce-

ment of Foreign Judgments Act, must have been entered by a

court having jurisdiction over the parties and the subject matter

(MCL 691.1171 et seq.).

208 291 M

ICH

206 [Jan

4. C

ONSTITUTIONAL

AW —

UDGMENTS OF

ISTER

TATES —

ULL

AITH AND

REDIT

LAUSE

A sister-state judgment must constitute a final judgment on the

merits in order to qualify for recognition under the Full Faith and

Credit Clause of the United States Constitution (US Const, art IV,

§1).

5. C

ONSTITUTIONAL

AW —

ULL

AITH AND

REDIT

LAUSE —

NTISUIT

NJUNC-

TIONS OF

ISTER

TATES

The Full Faith and Credit Clause of the United States Constitution

does not compel a forum state court to recognize and enforce

sister-state antisuit injunctions (US Const, art IV, § 1).

6. J

UDGMENTS —

RDERS —

ULE OF

OMITY

The rule of comity is not allowed to operate when it will contravene

the rights of a citizen of the state where the action is brought or

contravene that state’s policies or interests.

Lloyd Johnson & Associates (by Lloyd G. Johnson)

for Charon Hare.

Garan Lucow Miller, P.C. (by Robert D. Goldstein and

Boyd E. Chapin, Jr.), for Frontier Insurance Company.

Before: B

ORRELLO

,P.J., and J

ANSEN

and B

ANDSTRA

,JJ.

ANSEN

, J. Plaintiff-garnishor, Charon Hare, personal

representative of the estate of Marcel D. Hare, de-

ceased, appeals by right the circuit court’s order deny-

ing her motion for summary disposition and granting

summary disposition in favor of garnishee Frontier

Insurance Company (Frontier) on the ground that a

New York antisuit injunction was entitled to full faith

and credit. We affirm, albeit for a different reason than

that relied on by the circuit court.

This garnishment action arises out of the drowning

death of plaintiff’s decedent, Marcel D. Hare (Marcel),

2011] H

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in the Kalamazoo River. Marcel had been in foster care

with Starr Commonwealth Corporation (Starr Com-

monwealth) since approximately December 1, 1999.

After several unsuccessful short-term placements with

various foster families, Starr Commonwealth ulti-

mately placed Marcel in the home of foster parent

Selma Melvin (Melvin) on March 28, 2000. On the

evening of April 15, 2000, while under the care of

Melvin, Marcel jumped from a bridge over the Kalama-

zoo River and drowned.

On February 28, 2003, plaintiff, as personal represen-

tative of Marcel’s estate, filed suit against Melvin and

Starr Commonwealth in the Calhoun Circuit Court.

According to plaintiff, Melvin regularly allowed Marcel

to “wander the neighborhood” without adult supervi-

sion. Among other things, plaintiff alleged that Melvin

had been negligent or grossly negligent by failing to

properly supervise Marcel, especially given that Marcel

was a special-needs child.

Frontier insured Starr Commonwealth under a

professional-liability policy and a commercial, general-

liability policy. These policies also included Melvin, as

one of Starr Commonwealth’s foster parents, within the

scope of their coverage. Frontier accordingly provided

defense counsel for both Melvin and Starr Common-

wealth.

On October 2, 2006, defendants Melvin and Starr

Commonwealth jointly moved for summary disposition.

On October 25, 2006, the circuit court granted the

motion for summary disposition as it related to plain-

tiff’s claims against Starr Commonwealth, dismissing

Starr Commonwealth from the action. However, the

circuit allowed plaintiff’s claims against Melvin to go

forward and the matter was scheduled for trial.

210 291 M

ICH

206 [Jan

Sometime before trial, Melvin informed her attor-

neys that she had decided not to appear for trial and

that she would be discharging them as defense counsel.

Citing a breakdown in the attorney-client relationship,

Melvin’s attorneys filed a motion to withdraw as coun-

sel of record on November 3, 2006. The circuit court

granted the attorneys’ motion to withdraw on Novem-

ber 20, 2006. As she had threatened to do, Melvin

refused to appear in the matter. Consequently, on

December 12, 2006, the circuit court entered a default

judgment against Melvin in the amount of $350,000

plus case-evaluation sanctions.

On October 24, 2008, plaintiff filed the instant gar-

nishment action in the Calhoun Circuit Court, seeking

a writ of nonperiodic garnishment against Frontier in

the amount of $393,260 (the amount of the default

judgment, plus costs and interest). On November 17,

2008, Frontier filed its garnishee disclosure statement,

in which it alleged that it was not indebted to Melvin

and was not responsible for any portion of the default

judgment entered against her.

On January 5, 2009, Frontier moved for summary

disposition. Frontier argued that plaintiff’s garnish-

ment action should be dismissed on the basis of a New

York “order of rehabilitation,” which had been entered

by the supreme court of the state of New York, county of

New York, on October 10, 2001, and that purported to

bar any and all legal actions against Frontier. Frontier

attached a copy of the New York order of rehabilitation

to its motion for summary disposition. The order of

rehabilitation, entered pursuant to the New York insur-

ance law, provides that Frontier is “incorporated in

New York,” that Frontier is “subject to the New York

Insurance Law,” that Frontier has become insolvent,

that Frontier has “failed to cure its impairment of

2011] H

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capital,” and that Frontier has “consented to the entry

of the order of rehabilitation[.]” The New York court

determined that it was “in the best interest of Fron-

tier’s policyholders, creditors and the general public

that the [New York] Superintendent [of Insurance] be

directed to take possession of Frontier’s property and to

rehabilitate its business and affairs[.]” The order of

rehabilitation directs the New York Superintendent of

Insurance to “immediately take possession of [Fron-

tier’s] property,” to “conduct [Frontier’s] business,”

and to “take such other actions as set forth in . . . the

New York Insurance Law.” The order of rehabilitation

also provides that “[a]ll persons are enjoined and re-

strained from commencing or prosecuting any actions,

lawsuits, or proceedings against Frontier” and that

“[a]ll persons are enjoined and restrained from obtain-

ing preferences, judgments, [and] attachments or other

liens... against Frontier’s assets[.]” Frontier con-

tended that the Calhoun Circuit Court was required to

afford full faith and credit to the New York order of

rehabilitation pursuant to Michigan’s common law as

well as the Uniform Enforcement of Foreign Judgments

Act (UEFJA), MCL 691.1171 et seq.

Thereafter, plaintiff filed a cross-motion for summary

disposition. Plaintiff argued that the New York order of

rehabilitation constituted an out-of-state antisuit in-

junction that was not entitled to legal effect beyond the

Frontier also argued that it was entitled to summary disposition for

an alternative reason. Frontier asserted that Melvin’s act of discharging

defense counsel and failing to appear for trial violated certain provisions

of the insurance policies requiring the insured to cooperate with counsel

and assist in defending the action. Because Melvin had not cooperated

with counsel or assisted in the defense of the matter, Frontier argued that

Melvin was no longer covered under its insurance policies and that it was

therefore not required to indemnify her for the default judgment entered

against her in the underlying litigation.

212 291 M

ICH

206 [Jan

territorial limits of the state of New York. Plaintiff

further argued that it would violate Michigan’s public

policy for the circuit court to enforce the New York

order of rehabilitation. Lastly, plaintiff argued that the

order of rehabilitation was not entitled to full faith and

credit or comity because she had not been subject to the

personal jurisdiction of the New York courts at the time

the order was entered and because the enforcement of

the order in Michigan would negatively affect her

substantial rights.

Following oral argument, the circuit court issued a

written opinion concerning the parties’ respective mo-

tions for summary disposition. In that opinion, the

court observed that “[t]he dispositive issue in these

motions for summary disposition . . . is the effect in

Michigan of a 2001 Order of the Supreme Court of the

State of New York . . . which places [Frontier] in the

possession of the Insurance Superintendent of the State

of New York . . . and which enjoins all persons from

commencing any actions and from obtaining any judg-

ments or liens against Frontier.” Relying in part on

Keehn v Charles J Rogers, Inc, 311 Mich 416, 425; 18

NW2d 877 (1945), the circuit court ruled that it was

“satisfied...that the 2001 New York Supreme Court

Order is entitled to full faith and credit in this action

and therefore that the garnishment action against

[Frontier] must be dismissed.” The court went on to

state that “[p]laintiff[’s] remedy, if any, against Frontier

lies in the State of New York.” On March 30, 2009, the

circuit court entered a final order granting Frontier’s

With respect to Frontier’s alternative argument, see footnote 1,

plaintiff asserted that Melvin’s failure to appear for trial had not

prejudiced Frontier and had not nullified the coverage provided for

Melvin under the Frontier insurance policies. Plaintiff noted that Melvin

had been fully deposed in the litigation and that, although Melvin did not

appear, her deposition testimony could have been used at trial.

2011] H

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motion for summary disposition, denying plaintiff’s

cross-motion for summary disposition, and dismissing

plaintiff’s claims against Frontier with prejudice.

We review de novo a circuit court’s decision to grant

or deny a motion for summary disposition. Spiek v Dep’t

of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). We

also review de novo questions concerning the applica-

bility of the UEFJA and the Full Faith and Credit

Clause of the United States Constitution. Blackburne &

Brown Mtg Co v Ziomek, 264 Mich App 615, 620; 692

NW2d 388 (2004).

The standard of review is less clear as it relates to the

issue of comity. Courts use the term “comity” in several

different contexts. In the traditional context, courts

consider purely whether to enforce a foreign judgment

as a matter of “comity.” See Hilton v Guyot, 159 US 113,

202-203; 16 S Ct 139; 40 L Ed 95 (1895). To a large

extent, this traditional notion of comity was at play in

Dart v Dart, 460 Mich 573, 575; 597 NW2d 82 (1999),

wherein the Michigan Supreme Court held that the

parties’ foreign judgment of divorce was entitled to

enforcement in this state even though recognition of

the judgment was not constitutionally mandated. In

such cases, appellate courts generally appear to apply a

de novo standard of review. See Diorinou v Mezitis, 237

F3d 133, 139 (CA 2, 2001); see also Hilton, 159 US at

203-229; Dart, 460 Mich at 580-587.

In a slightly different context, courts often speak of

“comity” when considering whether to dismiss litiga-

tion properly within their jurisdiction on the basis of

pending or available litigation in an alternative,

foreign forum. See Diorinou, 237 F3d at 139 (noting,

in this context, that courts frequently refer to their

214 291 M

ICH

206 [Jan

“defer[ence] to the foreign tribunal’s adjudication of

the underlying matter [a]s a matter of ‘comity’ ”); see

also Radeljak v DaimlerChrysler Corp, 475 Mich 598,

625; 719 NW2d 40 (2006) (M

ARKMAN

, J., concurring)

(noting that “ ‘[p]rinciples of judicial comity support

the dismissal of controversies whose adjudication is a

matter of vital interest to the alternative, foreign

forum’ ”) (citation omitted). Although such absten-

tion in favor of an alternative, foreign forum is

sometimes described as “comity,” it is more essen-

tially akin to a dismissal on the basis of the doctrine

of forum non conveniens. Diorinou, 237 F3d at 139.

In Michigan, appellate courts review for an abuse of

discretion a circuit court’s decision to dismiss a case

on the basis of the doctrine of forum non conveniens.

Radeljak, 475 Mich at 603; Hernandez v Ford Motor

Co, 280 Mich App 545, 560; 760 NW2d 751 (2008). It

thus appears that a similar abuse-of-discretion stan-

dard should govern the appellate review of a circuit

court’s abstention in favor of an alternative, foreign

forum. See Diorinou, 237 F3d at 139.

III

We conclude that the circuit court erred by ruling

that the antisuit provisions of the New York order of

rehabilitation were entitled to full faith and credit.

The Full Faith and Credit Clause of the United States

Constitution, US Const, art IV, § 1, provides: “Full Faith

and Credit shall be given in each State to the public

Acts, Records, and judicial Proceedings of every other

State. And the Congress may by general Laws prescribe

the Manner in which such Acts, Records and Proceed-

ings shall be proved, and the Effect thereof.”

2011] H

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Pursuant to its authority to prescribe the manner of

proving acts, records, and judicial proceedings under

the Full Faith and Credit Clause, Congress has enacted

28 USC 1738, which provides in relevant part:

The records and judicial proceedings of any court of

any... State, Territory or Possession, or copies thereof,

shall be proved or admitted in other courts within the

United States and its Territories and Possessions by the

attestation of the clerk and seal of the court annexed, if a

seal exists, together with a certificate of a judge of the court

that the said attestation is in proper form.

Such... records and judicial proceedings or copies

thereof, so authenticated, shall have the same full faith and

credit in every court within the United States and its

Territories and Possessions as they have by law or usage in

the courts of such State, Territory or Possession from

which they are taken. [28 USC 1738.]

In turn, § 3 of the UEFJA, MCL 691.1173, provides:

A copy of a foreign judgment

[

]

authenticated in accor-

dance with an act of congress or the laws of this state may

be filed in the office of the clerk of the circuit court, the

district court, or a municipal court of this state. The clerk

shall treat the foreign judgment in the same manner as a

judgment of the circuit court, the district court, or a

municipal court of this state. A judgment filed under this

act has the same effect and is subject to the same proce-

dures, defenses, and proceedings for reopening, vacating,

or staying as a judgment of the circuit court, the district

court, or a municipal court of this state and may be

enforced or satisfied in like manner.

“[A] judgment entered in another state is presump-

tively valid and subject to recognition in Michigan

under the Full Faith and Credit Clause,” Poindexter v

The UEFJA defines “foreign judgment” as “any judgment, decree, or

order of a court of the United States or of any other court that is entitled

to full faith and credit in this state.” MCL 691.1172.

216 291 M

ICH

206 [Jan

Poindexter, 234 Mich App 316, 324-325; 594 NW2d 76

(1999), which “ ‘requires that a foreign judgment be

given the same effect that it has in the state of its

rendition,’ ” Blackburne, 264 Mich App at 620, quoting

Jones v State Farm Mut Auto Ins Co, 202 Mich App 393,

406; 509 NW2d 829 (1993). “The purpose of the Full

Faith and Credit Clause ‘is to prevent the litigation of

issues in one state that have already been decided in

another.’ ” LME v ARS, 261 Mich App 273, 285; 680

NW2d 902 (2004), quoting Martino v Cottman Trans-

mission Sys, Inc, 218 Mich App 54, 58; 554 NW2d 17

(1996).

“Although the Full Faith and Credit Clause requires

recognition of the judgments of sister states, ‘collateral

attack may be made in the courts of this [s]tate by

showing that the judgment sought to be enforced was

void for want of jurisdiction in the court which issued

it.’ ” Blackburne, 264 Mich App at 620-621, quoting

Delph v Smith, 354 Mich 12, 16; 91 NW2d 854 (1958), in

turn quoting Johnson v DiGiovanni, 347 Mich 118, 126;

78 NW2d 560 (1956); see also New York ex rel Halvey v

Halvey, 330 US 610, 614; 67 S Ct 903; 91 L Ed 1133

(1947). Indeed, “the constitution does not compel

Michigan courts to recognize [sister-state] judgments

where the issuing court lacked jurisdiction over the

subject matter or the parties.” Nash v Salter, 280 Mich

App 104, 119-120; 760 NW2d 612 (2008); see also

Blackburne, 264 Mich App at 621. “Thus, to be enforce-

able under the UEFJA, the foreign judgment must have

been entered by a court with jurisdiction over the

parties and the subject matter.” Id.

In order to qualify for recognition under the Full

Faith and Credit Clause, a sister-state judgment must

constitute a final judgment on the merits. Alabama ex

rel Governor v Engler, 85 F3d 1205, 1209 (CA 6, 1996);

2011] H

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In re Forslund, 123 Vt 341, 344; 189 A2d 537 (1963); see

also Halvey, 330 US at 621 (Rutledge, J., concurring).

“As a general rule, judgments are to be construed like

other written instruments, and the legal effect of a

judgment must be declared in light of the literal mean-

ing of the language used.” 46 Am Jur 2d, Judgments,

§ 74, p 447. It is true that the New York order of

rehabilitation at issue in this case contains no language

indicating that it is to be afforded extraterritorial effect

beyond the boundaries of the state of New York. How-

ever, it is equally true that “a State is permitted to

determine the extraterritorial effect of its judg-

ments...only...indirectly, by prescribing the effect of

its judgments within the State.” Thomas v Washington

Gas Light Co, 448 US 261, 270; 100 S Ct 2647; 65 L Ed

2d 757 (1980). “To vest the power of determining the

extraterritorial effect of a State’s own . . . judgments in

the State itself risks the very kind of parochial en-

trenchment on the interests of other States that it was

the purpose of the Full Faith and Credit Clause and

other provisions of...theConstitution to prevent.” Id.

at 272. It is therefore of little significance that the New

York order of rehabilitation does not indicate on its face

that it is to be afforded extraterritorial effect.

The New York order of rehabilitation at issue in this

case actually consists of two separate parts. The first

part of the order declares that Frontier, a New York

insurance company, has become insolvent, directs the

New York Superintendent of Insurance “to take posses-

sion of Frontier’s property,” and authorizes the New

York Superintendent of Insurance to perform various

218 291 M

ICH

206 [Jan

tasks that may be necessary to “rehabilitate [Fron-

tier’s] business and affairs[.]” It appears beyond dispute

that this first portion of the New York order of reha-

bilitation is entitled to full faith and credit by the

Michigan courts. Keehn, 311 Mich at 425 (affording full

faith and credit to an Illinois state court judgment

finding an Illinois insurance company “to be insolvent

and vesting its property and assets in a receiver for

liquidation”); U S Truck Co v Pennsylvania Surety

Corp, 259 Mich 422, 424-425; 243 NW 311 (1932)

(affording full faith and credit to a Pennsylvania state

court judgment declaring that a Pennsylvania insur-

ance company “was dissolved” and that “the insurance

commissioner of Pennsylvania took and holds title to

the corporate property”).

However, the New York order of rehabilitation also

consists of a second part. This second part provides that

“[a]ll persons are enjoined and restrained from com-

mencing or prosecuting any actions, lawsuits, or pro-

ceedings against Frontier” and that “[a]ll persons are

enjoined and restrained from obtaining preferences,

judgments, [and] attachments or other liens...against

Frontier’s assets[.]” There is an important distinction

to be drawn between the first portion of the New York

order of rehabilitation, taking control of Frontier’s

assets and appointing the New York Superintendent of

Insurance to rehabilitate Frontier’s affairs, and the

second portion of the order, purporting to operate as an

antisuit injunction and to bar all claims against Fron-

tier. See Cook v Delmarva Power & Light Co, 505 A2d

447, 450 (Del Super, 1985). The United States Supreme

Court has clarified that the Full Faith and Credit

Clause applies with the same force to equitable decrees

as it does to judgments at law. Baker v Gen Motors Corp,

522 US 222, 234; 118 S Ct 657; 139 L Ed 2d 580 (1998).

But this does not necessarily mean that the Full Faith

2011] H

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and Credit Clause compels the recognition of out-of-

state antisuit injunctions. See id. at 236. Indeed,

“[s]tate courts that have dealt with the question have,

in the main, regarded antisuit injunctions as outside

the full faith and credit ambit.” Id. at 236 n 9. One

reason given for this is that antisuit injunctions gener-

ally do not constitute final judgments on the merits. See

Abney v Abney, 176 Ind App 22, 26; 374 NE2d 264

(1978); see also Scoles & Hay, Conflict of Laws (2d ed),

§ 24.21, p 981. Another reason given is that, because

antisuit injunctions act “upon the parties rather than

[the] court, the forum has the power to proceed not-

withstanding the sister-state injunction.” Abney, 176

Ind App at 26; see also Kleinschmidt v Kleinschmidt,

343 Ill App 539, 546; 99 NE2d 623 (1951). But whatever

the reason, it appears well settled that the Full Faith

and Credit Clause does not compel a forum state court

to recognize and enforce a sister-state antisuit injunc-

tion. See, e.g., Mahan v Gunther, 278 Ill App 3d 1108,

1116; 663 NE2d 1139 (1996); Cook, 505 A2d at 449;

Abney, 176 Ind App at 26; James v Grand Trunk W R

Co, 14 Ill 2d 356, 363-364; 152 NE2d 858 (1958).

Bearing these principles in mind, we conclude that

the Full Faith and Credit Clause did not require the

circuit court to recognize or enforce that portion of the

New York order of rehabilitation purporting to bar

“[a]ll persons” from “commencing or prosecuting any

actions, lawsuits, or proceedings against Frontier,” and

from “obtaining preferences, judgments, [and] attach-

ments or other liens... against Frontier’s assets[.]”

Because this portion of the order effectively operated as

an antisuit injunction, it fell “outside the full faith and

credit ambit.” See Baker, 522 US at 236 n 9. Moreover,

there has been no showing in this case that plaintiff was

ever subject to the personal jurisdiction of the courts of

New York. Because the New York Supreme Court lacked

220 291 M

ICH

206 [Jan

jurisdiction over plaintiff, the constitution does not

compel the Michigan courts to recognize the New York

order of rehabilitation as a bar to plaintiff’s present

claim. Nash, 280 Mich App at 119-120; Blackburne, 264

Mich App at 621. Contrary to the circuit court’s ruling,

we hold that the circuit court was not compelled to give

full faith and credit to the antisuit provisions of the

New York order of rehabilitation.

Nor can we conclude that the circuit court was

required to recognize and enforce the antisuit provi-

sions of the New York order of rehabilitation pursuant

to the traditional rules of interstate comity.

As explained earlier, courts use the term “comity” in

a variety of different ways. See Diorinou, 237 F3d at

139. In the traditional context, Michigan courts have

used the term “comity” when considering whether to

recognize and enforce a foreign or sister-state judg-

ment. See Dart, 460 Mich at 575; see also Graydon v

Church, 7 Mich 36, 52 (1859).

At times, state courts have given recognition to

sister-state antisuit injunctions, and in almost all such

circumstances, recognition has been based on the doc-

trine of interstate comity. See Fuhrman v United

America Insurors, 269 NW2d 842, 847 (Minn, 1978)

(noting that “recognition of an [antisuit] injunction

issued in another state is granted strictly as a matter of

comity”); Abney, 176 Ind App at 27 (observing that “in

those instances where deference has been extended [to

sister-state antisuit injunctions,] it has been based on

For the same reasons, the UEFJA did not require the circuit court to

recognize and enforce the antisuit provisions of the New York order of

rehabilitation. Blackburne, 264 Mich App at 621.

2011] H

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comity rather than on the constitutional command of

Full Faith and Credit”). At the same time, however, it

has frequently been stated that “the rules of comity do

not require” recognition of foreign antisuit injunctions.

Id. at 27-28 (emphasis added).

Comity is a discretionary doctrine. See Hilton, 159

US at 163-164 (explaining that “ ‘[c]omity,’ in the legal

sense, is neither a matter of absolute obligation, on the

one hand, nor of mere courtesy and good will, upon the

other”); see also Lieberthal v Glens Falls Indemnity Co

of Glens Falls, 316 Mich 37, 54; 24 NW2d 547 (1946)

UTZEL

, C.J., dissenting) (noting that when “ ‘comity’

enters...thediscretion of the forum is greater”). In

general, the doctrine of comity commands that “[t]he

courts of a sister state, in a cause and between parties

within their jurisdiction, are entitled to so much re-

spect, at least, that [the Michigan courts] should not,

without proof, presume them guilty of wrong and op-

pression.” Graydon, 7 Mich at 52. But it is well settled

that “[t]he rule of comity is not allowed to operate when

it will contravene the rights of a citizen of the State

where the action is brought.” Keehn, 311 Mich at 425;

see also Baldwin v Circuit Judge, 101 Mich 119, 133; 59

NW 432 (1894). Nor will our courts recognize a sister-

state judgment under the rules of comity when doing so

would contravene this state’s policies or interests.

Kircher v Kircher, 288 Mich 669, 671; 286 NW 120

(1939), questioned in part on other grounds Hosko v

Hosko, 385 Mich 39 (1971).

As noted previously, there has been no showing in

this case that plaintiff was ever subject to the personal

jurisdiction of the courts of New York. Furthermore,

recognition of the New York antisuit injunction, requir-

ing dismissal of the present action, would certainly

contravene the rights of plaintiff—a citizen of this state.

222 291 M

ICH

206 [Jan

See Keehn, 311 Mich at 425. Finally, it cannot be

gainsaid that Michigan has a real interest in the present

action. After all, the present garnishment action has

been brought by a citizen of this state and arises out of

a drowning death that occurred within this state as

well. For these reasons, we conclude that Michigan has

a valid interest in the present action, that enforcement

of the New York antisuit injunction would contravene

plaintiff’s rights in this case, and that recognition of the

antisuit injunction is therefore not required under the

traditional rules of interstate comity.

Nevertheless, we find that the circuit court should

have abstained from the present controversy, deferring

to the courts of New York on grounds similar to those

underlying the doctrine of forum non conveniens.

As explained earlier, abstention in favor of an alter-

native, foreign forum has often been described as a

species of “comity.” See, e.g., Radeljak, 475 Mich at 625

ARKMAN

, J., concurring) (noting that “ ‘[p]rinciples of

judicial comity support the dismissal of controversies

whose adjudication is a matter of vital interest to the

alternative, foreign forum’ ”); Cook, 505 A2d at 449

(stating that “ ‘[i]f a court stays pending proceedings or

abates an action by reason of a foreign anti-suit injunc-

tion, it does so solely on the ground of comity, and not

because the Federal Constitution requires it so to act’ ”)

(citation omitted). However, as explained by the United

States Court of Appeals for the Second Circuit, when

courts abstain on such a ground and defer to an

alternative, foreign forum, “they are invoking a doc-

trine akin to forum non conveniens.” Diorinou, 237 F3d

at 139 (italics omitted); see also Lexington Ins Co v

Forrest, 263 F Supp 2d 986, 1002 (ED Pa, 2003) (observ-

2011] H

ARE V

TARR

OMMONWEALTH

223

ing, albeit in the international context rather than the

interstate context, that principles of comity “[s]imilar

to the doctrine of forum non conveniens” permit a court

“to exercise its discretion and dismiss a case over which

it has subject matter jurisdiction in deference to the

laws and interests of another [forum]”).

“ ‘Forum non conveniens’ is defined as the ‘discre-

tionary power of [a] court to decline jurisdiction when

convenience of parties and ends of justice would be

better served if action were brought and tried in an-

other forum.’ ” Radeljak, 475 Mich at 604, quoting

Black’s Law Dictionary (6th ed). It is a common-law

doctrine that allows a court to decline to hear a case

even though the court otherwise has jurisdiction.

Radeljak, 475 Mich at 604. Among the relevant factors

to be considered in deciding whether to dismiss an

action on the basis of forum non conveniens are “ ‘the

state law which must govern the case’ ” and the

“ ‘[p]eople who are concerned by the proceeding.’ ” Id.

at 606, quoting Cray v Gen Motors Corp, 389 Mich 382,

396; 207 NW2d 393 (1973). It has been held that the

doctrine of forum non conveniens may be raised sua

sponte by the court. Commonwealth Land Title Ins Co

v Pugh, 555 NW2d 576, 579 (ND, 1996); Haynes v Carr,

379 A2d 1178, 1180 (DC App, 1977).

Frontier is an insolvent New York insurance com-

pany that is subject to the New York insurance laws.

Through the order of rehabilitation at issue in this case,

the New York Supreme Court has placed its imprimatur

on the complicated and intricate process of rehabilitat-

ing Frontier’s affairs and restructuring Frontier’s busi-

ness operations. This process, which is carried out in

accordance with the laws of the state of New York and

under the direction of the New York Superintendent of

Insurance, does not fall within the general experience of

224 291 M

ICH

206 [Jan

the Michigan courts. In contrast, the courts of New

York are in a superior position to enforce New York’s

insurance laws, and New York certainly has substantial

experience with its own process of rehabilitating insol-

vent insurers. Moreover, New York presumably has

good reason for enjoining lawsuits against insolvent

insurance companies like Frontier during the rehabili-

tation period, and principles of interstate comity per-

suade us to respect New York’s decision with respect to

this issue. Graydon, 7 Mich at 52. It is not the place of

the Michigan courts to second-guess New York’s insur-

ance laws or to undermine New York’s rehabilitation

procedures.

Allowing plaintiff’s instant garnishment action to go

forward would tend to undermine New York’s attempt

to rehabilitate Frontier Insurance Company—a process

that has already been ongoing for several years. Given

the complexity of New York’s insurance laws and the

purpose of New York’s rehabilitation process for insol-

vent insurers, we conclude that the circuit court should

have abstained from the present garnishment action,

dismissing the matter and deferring to the courts of

New York on grounds similar to those underlying the

doctrine of forum non conveniens. See Radeljak, 475

Mich at 625 (M

ARKMAN

, J., concurring).

In sum, while the circuit court erred by ruling that

the antisuit provisions of the New York order of reha-

bilitation were entitled to full faith and credit, it

reached the correct result by denying plaintiff’s motion

for summary disposition and granting summary dispo-

sition in favor of Frontier. Although the circuit court

employed incorrect reasoning in this case, it correctly

observed that “[p]laintiff[’s] remedy, if any, against

2011] H

ARE V

TARR

OMMONWEALTH

225

Frontier lies in the State of New York.” It is well settled

that we will not reverse when the circuit court has

reached the correct result, even if it has done so for the

wrong reason. Taylor v Laban, 241 Mich App 449, 458;

616 NW2d 229 (2000).

In light of our resolution of the issues, we need not

consider plaintiff’s argument concerning Frontier Ins

Co v Blaty, 454 F3d 590 (CA 6, 2006). Nor need we

consider the alternative ground for affirmance raised by

Frontier on appeal.

Affirmed. No taxable costs pursuant to MCR 7.219, a

public question having been involved.

226 291 M

ICH

206 [Jan

PEOPLE v KOLANEK

Docket No. 295125. Submitted November 2, 2010, at Detroit. Decided

January 11, 2011, at 9:00 a.m.

Alexander E. Kolanek was charged in the 52-3 District Court with

possession of marijuana. He moved for dismissal of the charge,

asserting the affirmative defense provided by the Michigan

Medical Marihuana Act (MMMA), MCL 333.26421 et seq. After

an evidentiary hearing, the court, Julie A. Nicholson, J., con-

cluded that the defense was not available because defendant had

not shown that a physician had approved his medical use of

marijuana before defendant’s arrest or that he had seriously

discussed the use of marijuana as a therapeutic benefit between

the date of the MMMA’s enactment and defendant’s arrest.

Defendant appealed in the Oakland Circuit Court, and the

circuit court, Edward Sosnick, J., concluded that the MMMA did

not require the physician’s statement to be made at any

particular time and that the physician’s statement made at the

evidentiary hearing, that defendant suffered from a debilitating

medical condition and would benefit medically from the use of

marijuana, was sufficient for the defense. The circuit court

reversed the district court’s denial of defendant’s motion to

dismiss. The prosecution appealed.

The Court of Appeals held:

1. A person facing possible prosecution for violating Michi-

gan’s controlled substances laws may assert an affirmative

defense under MCL 333.26428(a) if a physician has stated that,

in the physician’s professional opinion, the patient is likely to

receive therapeutic or palliative benefit from the medical use of

marijuana to treat or alleviate the patient’s serious or debili-

tating medical condition or symptoms of the patient’s serious or

debilitating medical condition. This language requires that the

physician’s statement must be made before the person’s arrest.

2. Because MCL 333.26428(a) created a new right that did

not exist before the enactment of the MMMA, the affirmative

defense it provides is effective only if the patient actively sought

physician approval on or after December 4, 2008. Defendant’s

July 14, 2008, discussion with his physician did not take place at

2011] P

EOPLE V

OLANEK

227

a time the affirmative defense was available to defendant and

thus was not effective as the physician’s statement required by

MCL 333.26428(a). The circuit court erred in concluding that

the district court erroneously denied defendant’s motion to

dismiss.

Reversed and remanded for reinstatement of charges.

1. C

ONTROLLED

UBSTANCES —

EDICAL

ARIJUANA —

RIMINAL

EFENSES —

NREGISTERED

EDICAL

ARIJUANA

SERS

A person facing possible prosecution for violating Michigan’s con-

trolled substances laws may assert an affirmative defense under

MCL 333.26428(a) if a physician has stated that, in the physician’s

professional opinion, the patient is likely to receive therapeutic or

palliative benefit from the medical use of marijuana to treat or

alleviate the patient’s serious or debilitating medical condition or

symptoms of the patient’s serious or debilitating medical condi-

tion; but the physician’s statement must have been made before

the person’s arrest.

2. C

ONTROLLED

UBSTANCES —

EDICAL

ARIJUANA —

RIMINAL

EFENSES —

NREGISTERED

EDICAL

ARIJUANA

SERS

The affirmative defense provided under the Michigan Medical Mari-

huana Act for a person whose physician has stated that medical

use of marijuana would provide therapeutic or palliative benefits

for the person is effective only if the patient actively sought

physician approval on or after December 4, 2008 (MCL

333.26428[a]).

Bill Schuette, Attorney General, B. Eric Restuccia,

Solicitor General, Jessica R. Cooper, Prosecuting Attor-

ney, John S. Pallas, Chief, Appellate Division, and

Thomas R. Grden, Assistant Prosecuting Attorney, for

the people.

Mark A. Ambrose and Shawn Patrick Smith for

defendant.

Before: M

URPHY

, C.J., and M

ETER

and S

HAPIRO

,JJ.

URIAM

. This case requires us to consider an

issue of first impression involving the interpretation of

228 291 M

ICH

227 [Jan

the Michigan Medical Marihuana

Act (MMMA), MCL

333.26421 et seq., namely, when a physician must provide

the statement required under MCL 333.26428(a)(1). Be-

cause we conclude that the statement must occur after the

enactment of the MMMA, but prior to arrest, we reverse

the circuit court’s reversal of the district court’s denial of

defendant’s motion to dismiss, and we remand to the

circuit court for reinstatement of the charge against

defendant and other necessary proceedings.

I. BACKGROUND

On April 6, 2009, defendant was involved in an

altercation that ultimately resulted in a search of de-

fendant’s vehicle and the seizure of eight marijuana

cigarettes from the trunk of defendant’s vehicle. On

April 7, 2009, defendant was charged with possession of

marijuana pursuant to MCL 333.7403(2)(d). Although

defendant originally filed a motion to suppress evi-

dence, he withdrew his motion on June 3, 2009, and

instead asserted an affirmative defense under the

MMMA, moving to dismiss on those grounds on June

10, 2009. On June 17, 2009, an evidentiary hearing was

held on defendant’s assertion of the defense.

Defendant admitted that he had eight marijuana

cigarettes in his possession at the time of his arrest, but

testified that he used them for relief from pain and

nausea caused by his Lyme disease. Defendant offered

the testimony of Dr. Ray Breitenbach, who had been

treating defendant for nine years. Breitenbach testified

that defendant has chronic Lyme disease, which causes

symptoms such chronic severe pain, arthralgia, fatigue,

and malaise. Breitenbach stated his opinion that defen-

Although the statute spells it “marihuana,” unless used in a direct

quotation, we have spelled it throughout as “marijuana.”

2011] P

EOPLE V

OLANEK

229

dant is “likely to receive therapeutic...benefit from

the medical use of marijuana.” This opinion was memo-

rialized in a document signed by Breitenbach on June 9,

2009. Breitenbach testified that, in his opinion, defen-

dant would have been eligible to use marijuana on April

6, 2009. He further testified that it would have been

reasonable for defendant to use two grams or less per

day to treat his Lyme disease, that defendant’s posses-

sion of 1

ounces would be “very reasonable,” and that

his possession of 2 ounces would not be unreasonable.

Defendant requested that Breitenbach authorize medi-

cal use of marijuana on April 12, 2009, after the law

permitting medical use became effective. Breitenbach

testified that he and defendant had previously discussed

the potential for defendant to use marijuana for medical

purposes, but that defendant did not make his actual

request until April 12, 2009. According to defendant, he

had an appointment with Breitenbach on July 14, 2008,

during which they discussed the upcoming vote on the

medical use of marijuana, and Breitenbach indicated to

defendant that he would support defendant using medical

marijuana for medical purposes.

When defendant finally made the request of Breiten-

bach in April 2009, he did not inform Breitenbach that he

had been arrested and charged with possession of mari-

juana; Breitenbach did not learn this until later. Breiten-

bach testified that the timing of defendant’s request was

irrelevant, however, because in his opinion, defendant is

“totally eligible and capable and in need of medical mari-

juana,” and he would have given defendant the authori-

zation regardless of whether defendant had been charged

or convicted.

Although there seemed to be some confusion in the questioning such

that Breitenbach appeared to say defendant needed to use 1

/2 ounces a

day, we believe that this is the more reasonable interpretation of his

testimony based on what was asked and answered.

230 291 M

ICH

227 [Jan

Defendant completed the affidavit in support of his

assertion of the MMMA for the purpose of his affirma-

tive defense and motion to dismiss on June 9, 2009. In

that affidavit, he stated that he uses marijuana for

chronic pain and nausea caused by the Lyme disease.

Also on June 9, 2009, defendant prepared an affidavit of

qualifying patient, indicating that he was a patient

qualifying for the medical use of marijuana. Defendant

represented that Breitenbach had diagnosed defendant

with a debilitating medical condition, Lyme disease, and

that in Breitenbach’s opinion defendant would likely

“receive therapeutic or palliative benefit from the medi-

cal use of marihuana to treat or alleviate that debilitat-

ing medical condition or symptoms associated with that

debilitating medical condition.”

Defendant offered into evidence his qualifying pa-

tient certificate, which indicated that his illness quali-

fied him as eligible to use marijuana for medical pur-

poses. He also provided his application form for a

medical-marijuana registry identification card, which

he prepared on April 12, 2009. The Michigan Depart-

ment of Community Health issued him a registration

card two weeks later. Defendant explained that he did

not register for the medical-marijuana program before

April 12, 2009, because the application form was not

available online until April 8, 2009, two days after his

arrest.

The district court issued its opinion on July 1, 2009,

and found that defendant had not satisfied the require-

ments for stating the defense. It noted that defendant

did not provide evidence to show that a physician had

approved his medical use of marijuana before his arrest

or that he had “seriously discussed the use of marijuana

as a therapeutic benefit” with Breitenbach between

December 2008, when the MMA was enacted, and April

2011] P

EOPLE V

OLANEK

231

6, 2009, the date of his arrest. The court focused on the

language of MCL 333.26428(a)(1) that “ ‘a physician

has stated that... the patient is likely to receive

therapeutic or palliative benefit from the medical use of

marijuana....’”Itconstrued that language as requir-

ing a determination by the physician regarding the

matter before a patient is arrested for an offense.

Defendant appealed to the circuit court. The circuit

court interpreted the statute differently than did the

district court, reasoning:

This Court finds that the District Court’s interpretation

of “has stated” is at odds with the nonuse of the defined

term “qualifying patient” and the use, instead, of the

undefined term “patient.” A qualifying patient is a person

who has been diagnosed by a physician as having a debili-

tating medical condition. MCL 333.26423(h). The statute

does not limit the use of the defense stated in MCL

333.26428(b) to qualifying patients, but more broadly of-

fers the defense to all patients. Since the authors of the

statute did not require that the person asserting the

defense have been previously diagnosed by a physician as

having a debilitating medical condition, it seems unlikely

that they intended that the defense be limited to persons

who had previously discussed the use of medical marijuana

with their physician, or to persons who had obtained some

statement from their physician before arrest. Giving the

words used their plain and ordinary meaning, the Court

cannot assign any further meaning to the words, “has

stated,” than that the following subject matter was ex-

pressed by a physician. The statute does not require the

physician have stated this before the defendant’s arrest. It

merely requires that the physician has stated it. In this

case, the physician stated it at the hearing. The statute

simply does not require that the physician have stated it at

some other time or in some other context.

Based on its interpretation, the circuit court reversed

the district court’s denial of defendant’s motion to

dismiss.

232 291 M

ICH

227 [Jan

The prosecution filed an application for leave to

appeal the circuit court’s October 27, 2009, opinion and

order, which this Court granted. People v Kolanek,

unpublished order of the Court of Appeals, entered

March 29, 2010 (Docket No. 295125).

II. STANDARD OF REVIEW

This issue presents a question of statutory interpreta-

tion. We review de novo issues of statutory interpretation.

Generally, the primary objective in construing a statute is

to ascertain and give effect to the Legislature’s intent. The

MMMA was enacted as a result of an initiative adopted by

the voters. The words of an initiative law are given their

ordinary and customary meaning as would have been

understood by the voters. We presume that the meaning as

plainly expressed in the statute is what was intended.

[People v Redden, 290 Mich App 65, 76; 799 NW2d 184

(2010) (quotation marks and citations omitted).]

III. ANALYSIS

A. REGISTRY CARD

The prosecution first argues that a valid registry

identification card is required to assert a defense under

§ 8 of the MMMA. This issue is easily resolved because

this Court held to the contrary in Redden, 290 Mich

App at 81. Accordingly, the fact that defendant did not

have a valid registry card at the time of his arrest did

not preclude him from asserting this defense.

B. TIMING OF PHYSICIAN STATEMENT

We must next consider the specific issue ruled on by

the courts below: when a physician must provide his

professional opinion under MCL 333.26428(a)(1) in

order for a defendant to assert the § 8 defense.

MCL 333.26428 provides in relevant part:

2011] P

EOPLE V

OLANEK

233

(a) Except as provided in section 7, a patient and a

patient’s primary caregiver, if any, may assert the medical

purpose for using marihuana as a defense to any prosecu-

tion involving marihuana, and this defense shall be pre-

sumed valid where the evidence shows that:

(1) A physician has stated that, in the physician’s

professional opinion, after having completed a full assess-

ment of the patient’s medical history and current medical

condition made in the course of a bona fide physician-

patient relationship, the patient is likely to receive thera-

peutic or palliative benefit from the medical use of mari-

huana to treat or alleviate the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition;

(2) The patient and the patient’s primary caregiver, if

any, were collectively in possession of a quantity of mari-

huana that was not more than was reasonably necessary to

ensure the uninterrupted availability of marihuana for the

purpose of treating or alleviating the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition; and

(3) The patient and the patient’s primary caregiver, if

any, were engaged in the acquisition, possession, cultiva-

tion, manufacture, use, delivery, transfer, or transportation

of marihuana or paraphernalia relating to the use of

marihuana to treat or alleviate the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition.

(b) A person may assert the medical purpose for using

marihuana in a motion to dismiss, and the charges shall be

dismissed following an evidentiary hearing where the per-

son shows the elements listed in subsection (a).

1. AFFIRMATIVE DEFENSE

As an initial matter, we reject the prosecution’s

assertion that the very nature of an affirmative defense

requires that it not be retroactive because it is a legal

justification for the conduct that exists at the time the

234 291 M

ICH

227 [Jan

crime is committed. Certain affirmative defenses, such

as that provided by a statute of limitations, see MCL

767.24 and MCR 2.111(F)(3)(a), simply cannot exist at

the time the conduct is committed. Additionally, noth-

ing in the definition of an affirmative defense contains

such a requirement: “ ‘An affirmative defense is one

that admits the doing of the act charged, but seeks to

justify, excuse, or mitigate it[.]’ ” People v Lemons, 454

Mich 234, 246 n 15; 562 NW2d 447 (1997) (citation

omitted). An affirmative defense does not negate se-

lected elements or facts of the charged crime. Id. An

affirmative defense essentially concedes the facial

criminality of the conduct and presents a basis to avoid

conviction. People v DuPree, 284 Mich App 89, 99-100;

771 NW2d 470 (2009), aff’d 486 Mich 693 (2010),

quoting People v Pegenau, 447 Mich 278, 319; 523

NW2d 325 (1994) (opinion by B

OYLE

, J.). Accordingly,

simply because the initiative labeled the § 8 defense an

affirmative defense does not resolve the question of

whether a physician’s recommendation that is acquired

subsequent to arrest is sufficient.

2. “HAS STATED”

The primary substantive question in this case is how to

interpret the requirement in MCL 333.26428(a)(1), that

“[a] physician has stated” the medical benefit to the

patient. We conclude that “has stated” requires that the

physician’s opinion be established prior to arrest. First,

because the term is present perfect tense, the initiative

must have intended that the physician’s opinion be stated

prior in time to some event. That event would reasonably

be “any prosecution involving marihuana,” MCL

333.26428(a), for which the defense is being presented.

Thus, because the arrest begins the prosecution, the

physician’s opinion must be stated prior to the arrest.

2011] P

EOPLE V

OLANEK

235

Furthermore, § 8(a)(1) speaks of a physician stating

that “the patient is likely to receive therapeutic or

palliative benefit from the medical use of marihuana.”

(Emphasis added.) Thus, the language contemplates a

situation where a physician, at the time of providing the

statement, is envisioning the future possession and use

of marijuana and rendering an opinion that it will

benefit the patient when it is later used.

This interpretation is also consistent with the fact that

the right to bring a motion to dismiss as provided for in

§ 8(b) requires a showing at an evidentiary hearing of “the

elements listed in subsection (a).” It would not make

sense to permit someone to “show the elements in subsec-

tion (a),” which requires that a physician “has stated” the

benefits, by bringing a physician to the motion hearing to

state, for the first time, that the defendant would receive

such a benefit.

Our interpretation is also consistent with both Cali-

fornia’s and Oregon’s interpretation of their medical-

marijuana initiatives.

Under California’s Medical Marijuana Program

(MMP), Cal Health & Safety Code 11362.7 et seq., “quali-

fied patients,” as well as persons with identification cards,

are provided a defense at trial to criminal liability for

certain marijuana-related crimes. Cal Health & Safety

Code 11362.765. A “qualified patient” is defined as “a

person who is entitled to the protections of Section

11362.5, but who does not have an identification card

issued pursuant to this article.” Cal Health & Safety Code

11362.7(f). Section 11362.5 is the Compassionate Use Act

(CU A), which is the voter-approved initiative.

Section

11362.5(b)(1)(A) provides:

The MMP was passed by the California Legislature “to address issues

not included in the CUA so as to promote the fair and orderly implemen-

tation of the CUA.” People v Wright, 40 Cal 4th 81, 85; 51 Cal Rptr 3d 80;

146 P3d 531 (2006).

236 291 M

ICH

227 [Jan

To ensure that seriously ill Californians have the right

to obtain and use marijuana for medical purposes where

that medical use is deemed appropriate and has been

recommended by a physician who has determined that the

person’s health would benefit from the use of marijuana in

the treatment of [a variety of listed illnesses], or any other

illness for which marijuana provides relief.

California courts determined that to be a “qualifying

patient” under the MMP, a person need only meet the

elements set forth in § 11362.5(b)(1)(A). See People v

Wright, 40 Cal 4th 81, 93-94; 51 Cal Rptr 3d 80; 146 P3d

531 (2006). California courts concluded that “[i]n order

to present a CUA defense...,adefendant must have

obtained a recommendation to use medical marijuana

prior to his or her arrest.” People v Windus, 165 Cal App

4th 634, 643; 81 Cal Rptr 3d 227 (2008). The interpre-

tation is consistent with the language of the CUA,

which requires that the physician “has determined,”

implying that the determination occur prior to the

assertion of the defense. See also People v Rigo,69Cal

App 4th 409, 414-415; 81 Cal Rptr 2d 624 (1999)

(holding that “post-arrest approval is insufficient to

allow application of the compassionate use statute”

because “[t]o sanction the use of marijuana under the

facts presented herein would encourage the use of

marijuana for any idiosyncratic problem, whether medi-

cally valid or not, with an ensuing attempt to seek

medical approval after an arrest intervened”).

Oregon’s statute, which was also the result of a voter

initiative, is similar although not identical to Michi-

gan’s, and provides, in relevant part:

(1) Except as provided in [Or Rev Stat] 475.316 and

475.342, it is an affirmative defense to a criminal charge of

possession or production of marijuana, or any other crimi-

nal offense in which possession or production of marijuana

is an element, that the person charged with the offense is a

person who:

2011] P

EOPLE V

OLANEK

237

(a) Has been diagnosed with a debilitating medical

condition within 12 months prior to arrest and been

advised by the person’s attending physician that the medi-

cal use of marijuana may mitigate the symptoms or effects

of that debilitating medical condition[.] [Or Rev Stat

475.319(1)(a).]

In Oregon v Root, 202 Or App 491, 493-494; 123 P3d

281 (2005), the defendant challenged the trial court’s

refusal to permit him to assert the medical-marijuana

defense based on the trial court’s conclusion that the

physician’s certification, obtained postarrest, was insuf-

ficient under the statute. The Oregon Court of Appeals

looked at the text and context of the statute and

determined that the intent was that “the doctor’s

advice must come before a citizen is free to use mari-

juana without fear of civil or criminal penalties,” based

on the present perfect tense language requiring that a

defendant “has been advised.” Id. at 495-497.

We find these cases persuasive, particularly because

they involve the interpretation of present perfect tense

language found in similar medical-marijuana voter ini-

tiatives. Moreover, it is reasonable to assume that the

affirmative defense created in § 8 was intended to

protect those who actually have a medical basis for

marijuana use recognized by a physician before the use

began and was not intended to afford defendants an

after-the-fact exemption for otherwise illegal activities.

The law generally denies defendants the ability to

excuse a criminal violation postarrest. Thus, defen-

dants cannot escape prosecution for a violation of the

concealed weapon statute by seeking a permit after

arrest, or escape prosecution for violations of the con-

trolled substances act by seeking a prescription for the

substance from a physician after arrest. Furthermore,

the very fact that the law creates the ability to legiti-

mately have a defense to certain actions that would

238 291 M

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227 [Jan

otherwise be illegal indicates that persons must fulfill

those requirements prior to any arrest. Otherwise,

there would be no incentive for anyone to spend their

time and money to go through the process; people

would simply engage in the illegal activity, rolling the

dice that they will not get caught, with the under-

standing that, if they do get arrested, they can

subsequently receive a retroactive exemption. Ac-

cordingly, we hold that the language in MCL

333.26428(a)(1), “[a] physician has stated,” requires

that a physician’s statement of the medical benefit of

marijuana be made prior to arrest.

This determination does not resolve the case before

us, however, because defendant provided testimony

that, although he did not receive an affidavit from

Breitenbach prior to his arrest, he had previously

discussed his potential for medical use of marijuana

with Breitenbach, who indicated that he would sup-

port defendant’s using marijuana for medical pur-

poses. The district court concluded that this testi-

mony was insufficient because it did not occur in the

time between the enactment of the MMMA and

defendant’s arrest (between December 4, 2008, and

April 6, 2009). R ather, the evidence indicates that the

discussion occurred on July 14, 2008, and was related

to the upcoming vote. Thus, the next question we

must answer is whether a discussion that occurred

prior to the enactment of the MMMA is sufficient to

establish a defense under § 8(a)(1).

Looking again at California law, California permits

for the assertion of the defense physicians’ determina-

tions made before the CUA’s enactment. See Rigo,69

Cal App 4th at 414 (concluding that defendant’s argu-

ment that “it was impossible to obtain authorization to

cultivate marijuana prior to the effective date of the Act

2011] P

EOPLE V

OLANEK

239

because physicians had no legal authority to recom-

mend or approve the use of marijuana” was without

merit because it had, in fact, occurred in other cases).

However, this result appears to be necessary based on

California caselaw that the defense contained in the

CUA could be asserted retroactively, so that a defen-

dant’s arrest prior to the Act’s passage does not pre-

clude his assertion of the defense. See id. at 412; People

v Trippet, 56 Cal App 4th 1532; 66 Cal Rptr 2d 559

(1997). Because California permits retroactive assertion

of the medical-marijuana defense, a defendant in Cali-

fornia would have to have had a discussion with his

physician prior to the passage of the voter initiative in

order to assert the defense retroactively. Unlike Califor-

nia, however, Michigan has held that there is no retro-

active application of the medical-marijuana defense.

People v Campbell, 289 Mich App 533, 536; 798 NW2d

514 (2010). Accordingly, we conclude that California

caselaw is inapplicable to this specific question.

In Campbell, this Court noted that “MCL

333.26428(a) created a new right that did not exist

before the enactment of the MMA by providing an

affirmative defense to a criminal defendant facing pros-

ecution for crimes related to the use of marijuana.” Id.

Because the affirmative defense did not even exist

before December 4, 2008, it seems counterintuitive to

permit a prior statement by a physician to satisfy the

affirmative-defense requirements. While people may

have spoken with their physicians about whether a

medical-marijuana law would be enacted and whether

the physicians might then take action to assist them in

qualifying for medical use, until the MMMA was actu-

ally enacted, such discussions were speculative. We are

not convinced that such discussions prior to the enact-

ment of the MMMA are sufficient to support a defense

240 291 M

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227 [Jan

that did not yet exist.

The more reasonable conclusion

is that it was not until the passage of the MMMA that

the required patient-physician discussions about eligi-

bility for medical use of marijuana could occur. This

interpretation provides protection to those who actively

sought physician approval after the defense actually

became available, while requiring more than just a

speculative discussion about whether a person might

possibly be eligible should the measure actually pass.

Consequently, we hold that in order to meet the

requirement that a physician “has stated” a benefit to a

patient from medical use of marijuana, the physician’s

statement must have occurred after the enactment of

the MMMA, but prior to arrest.

3. APPLICATION TO DEFENDANT

Given our conclusion that the discussion with the

physician must have occurred after the enactment of

the MMMA, but prior to arrest, neither defendant’s

post-arrest affidavit nor his pre-MMMA enactment dis-

cussion with his physician is sufficient to meet the

requirements of MCL 333.26428(a)(1).

Accordingly, the circuit court on appeal erred in

concluding that the charge against defendant should

have been dismissed by the district court and we

remand for reinstatement of the charge. Because the

statute does not provide that the failure to bring, or to

win, a pretrial motion to dismiss deprives the defendant

of the statutory defense before the fact-finder, defen-

We also note that, as indicated above, the statement under § 8(a)(1)

must provide that “the patient is likely to receive therapeutic or palliative

benefit from the medical use of marihuana,” and here defendant testified

that Breitenbach simply stated that he would support defendant’s use of

marijuana. There is no testimony or evidence that in July 2008 Breiten-

bach expressly made the statement required by § 8(a)(1).

2011] P

EOPLE V

OLANEK

241

dant’s failure to provide sufficient proofs pursuant to

his motion to dismiss does not bar him from asserting

the § 8 defense at trial or from submitting additional

proofs in support of the defense at that time.

We do not retain jurisdiction.

242 291 M

ICH

227 [Jan

In re FORFEITURE OF A QUANTITY OF MARIJUANA

Docket No. 291993. Submitted October 6, 2010, at Lansing. Decided

January 11, 2011, at 9:05 a.m.

The Saginaw County Prosecutor filed a complaint in the Saginaw

Circuit Court, seeking an order of forfeiture pursuant to MCL

333.7521 for various items of personal and real property and to

quiet title to real property, naming Gerald and Royetta Ostipow as

defendants, together with their son, Steven P. Ostipow. The

complaint alleged that a residence at 3551 East Allan Road, titled

in Gerald’s name, had been used as an indoor facility for growing

marijuana. Most of the personal property had been seized from a

different residence, where the Ostipows lived. In response to the

complaint, claimants and Steven filed a handwritten document

listing the property they wanted back. Plaintiff moved for sum-

mary disposition, and claimants filed an answer to the complaint

in which they asserted that they were innocent owners, and filed a

response to plaintiff’s motion with which they filed affidavits

stating they were innocent owners with no knowledge of any

illegal activity associated with the property. The court, William A.

Crane, J., granted the motion, concluding that claimants’ affida-

vits were insufficient to create a question of fact on that issue.

Claimants appealed.

The Court of Appeals held:

1. Property that is used to aid in the violation of the state’s

controlled substance proscriptions may be subject to forfeiture

under MCL 333.7521. The statute provides an affirmative defense

to the forfeiture if the property owner lacked knowledge of or did

not consent to the illegal act on which the forfeiture is premised.

MCL 333.7521(1)(f). Although the burden is on the claimant to

affirmatively prove the facts supporting the defense, the claimant

is not required to show that it did everything that reasonably could

be expected of it to prevent the activity. Claimants filed affidavits

asserting that they had no knowledge of any criminal activity

associated with the property and that they were innocent owners

with respect to the property. Because plaintiff failed to produce

clear and decisive, admissible evidence to rebut claimants’ assert-

ing the defense, summary disposition should not have been

granted in its favor.

2011] In re F

ORFEITURE OF

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243

2. The innocent-owner defense is an affirmative defense that

must be stated in a party’s responsive pleading or else it is

considered waived. Claimants’ handwritten letter to the court,

filed in propriis personis, was not an answer or a responsive

pleading. Therefore, their failure to raise the defense in their letter

did not constitute a waiver of it. It was sufficient that claimants’

counsel raised the defense in the answer filed in response to the

complaint.

Reversed.

O’C

ONNELL

,P.J., dissenting, would have held that claimants’

affidavits were insufficient to establish that they were innocent

owners because the statements were merely conclusory assertions

that they knew nothing of their son’s illegal activity, and they did

not present any specific facts supporting those conclusions.

ORFEITURES AND

ENALTIES —

ONTROLLED

UBSTANCES —

NNOCENT

WNERS

Property that is used to aid in the violation of the state’s controlled

substance proscriptions may be subject to forfeiture under MCL

333.7521; MCL 333.7521(1)(f) provides an affirmative defense to

the forfeiture if the property owner lacked knowledge of or did not

consent to the illegal act on which the forfeiture is premised;

although the burden is on the claimant to affirmatively prove the

facts supporting the defense, the claimant is not required to show

that it did everything that reasonably could be expected of it to

prevent the activity.

Michael D. Thomas, Prosecuting Attorney, and

A. George Best II, Assistant Prosecuting Attorney, for

the people.

Burkhart, Picard, Tiderington & McL eod, PLLC (by

Thomas D. Burkhart), for Gerald and Royetta Ostipow.

Before: O’C

ONNELL

,P.J., and B

ANDSTRA

and M

ARKEY

,JJ.

ARKEY

, J. In this forfeiture action, claimants Gerald

Ostipow and Royetta Ostipow

appeal by right the trial

Claimant Steven Paul Ostipow has not appealed, so further references

to “claimants” designate Gerald Ostipow and Royetta Ostipow only.

244 291 M

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court’s order granting plaintiff’s motion for summary

disposition. The trial court denied claimants’ motion for

reconsideration but granted claimants’ motion for stay

provided claimants posted a $150,000 bond. This Court

declined to review the bond conditions of the stay. We

now reverse and remand for further proceedings con-

sistent with this opinion.

I. FACTUAL BACKGROUND

On June 13, 2008, plaintiff filed a complaint for

forfeiture and to quiet title to real property, naming

claimants as defendants, together with their son,

Steven Ostipow, as well as the various items of personal

property for which plaintiff sought an order of forfei-

ture pursuant to MCL 333.7521. Plaintiff sought forfei-

ture of claimants’ real property at 3551 East Allan Road

in Shiawassee County under MCL 333.7521(1)(c), alleg-

ing in subparagraph 5(a) of the complaint that the

residence was used or intended to be used as a container

for controlled substances, or for raw materials, prod-

ucts, or equipment of any kind, used or intended to be

used to manufacture, compound, process, or deliver a

controlled substance. The complaint in subparagraphs

5(b) and 5(c) further alleged that the real property was

subject to forfeiture under MCL 333.7521(1)(f) because

it was a thing of value used or intended to be used to

facilitate any controlled substances violation, or was

traceable to proceeds of controlled substance violations.

Regarding the factual basis to justify forfeiture, the

complaint alleged that the Saginaw County Sheriff’s

Department executed a search warrant at 3551 East

Allan Road on April 25, 2008, and discovered marijuana

growing inside the residence. Steven Ostipow purport-

edly admitted that he was responsible for the

marijuana-growing operation. A subsequent search

2011] In re F

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warrant was executed at claimants’ residence located at

3996 Allan Road, where Steven also resided, resulting

in authorities seizing most of the subject personal

property. Plaintiff alleged that Gerald Ostipow held title

to the property at 3551 East Allan Road and that

Royetta Ostipow, his wife, held an equitable interest in

the property. To support an inference that claimants

were aware of Steven’s marijuana-growing operation at

the East Allan Road residence, plaintiff alleged Steven

told authorities that “his father had talked to him about

getting a job and not growing marijuana.”

In response to the complaint, Steven and claimants

filed a handwritten document with the trial court on

July 3, 2008, with the heading: “Here is a list of the

Items we want Back.” The list included the property

at 3551 East Allan R oad, a Chevrolet Nova, a Ski-Doo

snowmobile, 15 guns, rifles, and a muzzle loader,

ammunition, gun cases, scopes, and $360 in cash.

This document did not answer any of the allegations

of the complaint, nor did it contain any allegations of

fact. Plaintiff contends that after a proper answer

complying with the court rules was not timely filed, it

attempted to file a default but the court’s clerk

refused on the basis that claimant’s handwritten

letter was an answer to the complaint. So plaintiff

subsequently filed a motion for summary disposition

pursuant to MCR 2.116(C)(8), (9), and (10), arguing

that Steven and claimants had failed to state a claim

upon which relief could be granted or to argue a

defense or affirmative defense, and, therefore, plain-

tiff was entitled to judgment as a matter of law.

Plaintiff also argued that claimants’ failure to admit

or deny the allegations in the complaint should be

treated as admissions pursuant to MCR 2.111(C), (D),

and (E).

246 291 M

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Before plaintiff’s motion was heard, claimants ob-

tained counsel and on August 20, 2008, filed an answer

to plaintiff’s complaint that included affirmative de-

fenses. On the same day, they filed an answer to

plaintiff’s motion for summary disposition. The answer

to the complaint denied plaintiff’s allegation that

Steven made a statement regarding a statement that

Gerald had made. As affirmative defenses, claimants

alleged that the Saginaw Circuit Court lacked jurisdic-

tion to hear the case because the property was seized in

Shiawassee County,

and that claimants were innocent

owners who lacked any knowledge of illegal activity

related to the real and personal property for which

plaintiff sought an order of forfeiture. In support of this

last allegation, each claimant filed an affidavit with the

Although not raised as an issue on appeal, venue for this action is

improper in Saginaw County. Claimants raised this issue in the trial court

as one of jurisdiction, but the circuit court has statewide jurisdiction. See

MCL 600.751 (“The courts of record of this state shall have jurisdiction

over land situated within the state whether or not the persons owning or

claiming interests therein are subject to the jurisdiction of the courts of

this state.”), and MCL 600.755 (statewide jurisdiction for personal

property). But venue regarding a claim to an interest in real property lies

in the county where situated. MCL 600.1605; Kruithoff v Bertrand,43

Mich App 233, 234; 203 NW2d 755 (1972). All the personal property at

issue was seized in Shiawassee County, and the real property is situated

in Shiawassee County. In addition, the forfeiture complaint alleges only

criminal activity in Shiawassee County. Consequently, it appears that

venue regarding the forfeiture of the personal property would also

properly be Shiawassee County. MCL 600.1605; In re Forfeiture of Certain

Personal Prop, 441 Mich 77, 88 n 8; 490 NW2d 322 (1992).

Despite the apparent improper venue, claimants must still move the

trial court for a change of venue. A judgment entered in Saginaw County

would not be voidable on the basis of improper venue. See MCL 600.1645

(“No order, judgment, or decree shall be void or voidable solely on the

ground that there was improper venue.”) and MCL 600.1651 (“An action

brought in a county not designated as a proper county may nevertheless

be tried therein, unless a defendant moves for a change of venue within

the time and in the manner provided by court rule....”).

2011] In re F

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court on August 25, 2008, averring they were innocent

owners having no knowledge of any illegal activity

associated with the property.

The trial court held a hearing on plaintiff’s motion

for summary disposition on January 12, 2009. Plaintiff

argued that because claimants’ initial handwritten let-

ter failed to state either a claim upon which relief can be

granted or a defense or affirmative defense and because

it did not raise a genuine issue of material fact, plain-

tiff’s motion should be granted. Plaintiff also argued

claimants’ affidavits stating their ignorance of illegal

activity that occurred on their real property were insuf-

ficient to support their affirmative defense of innocent

ownership. Claimants’ counsel argued that claimants,

through their answer, affirmative defenses, and affida-

vits, had raised material questions of fact regarding

their affirmative defense of being innocent owners.

Counsel further argued that the court must review all

the pleadings in the light most favorable to the non-

moving party and that, if it did so, the presence of

material issues of fact precluded granting summary

disposition to plaintiff.

The trial court apparently accepted plaintiff’s argu-

ment, and granted the motion for summary disposition.

The court remarked regarding the pleadings filed by

claimants’ attorney that claimants “just deny criminal

activity and assert they’re innocent owners, but I...

didn’t see any affirmative defenses. I don’t even see any

answer that gives the prosecutor some basis on which to

respond as to why they’re innocent owners.” The court

acknowledged that claimants had filed affidavits assert-

ing they were innocent owners but observed that claim-

ants’ affidavits provided nothing “different than what

the answer says.”

248 291 M

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The trial court held a hearing on claimants’ motion

for reconsideration on April 6, 2009. In denying the

motion, the trial court again ruled that claimants’

affidavits stating that they were unaware of any illegal

activity related to their property were insufficient to

require a trial.

The trial court’s order granting summary disposition

and order of forfeiture was entered January 13, 2009.

The court’s order denying reconsideration was entered

on April 17, 2009. This appeal followed.

II. STANDARD OF REVIEW

The trial court may grant summary disposition of all

or part of a claim or defense when “[e]xcept as to the

amount of damages, there is no genuine issue as to any

material fact, and the moving party is entitled to

judgment or partial judgment as a matter of law.” MCR

2.116(C)(10). While plaintiff cited additional court rules

in support of its motion, and the trial court did not state

on which rule it relied, the record establishes the court

considered claimants’ answer and affidavits but found

them insufficient to raise a material issue of fact

warranting trial. Accordingly, we review the trial

court’s ruling under MCR 2.116(C)(10). See Driver v

Hanley (After Remand), 226 Mich App 558, 562; 575

NW2d 31 (1997).

This Court reviews de novo whether a trial court has

properly granted a motion for summary disposition.

Barnard Mfg Co, Inc v Gates Performance Engineering,

Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009).

Likewise, we review de novo issues of statutory inter-

pretation, as well as the proper interpretation of court

rules. Id.; Echelon Homes, LLC v Carter Lumber Co,

472 Mich 192, 196; 694 NW2d 544 (2005).

2011] In re F

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III. ANALYSIS

We agree with claimants’ argument below and on

appeal that their answer, affirmative defenses, and

affidavits raised material issues of fact regarding claim-

ants’ so-called innocent owner affirmative defense suf-

ficient to avoid summary disposition. We conclude that

plaintiff misplaces reliance on federal caselaw to argue

below and on appeal that claimants have an additional

burden of proof apart from that required by MCL

333.7521(1)(f). Additionally, plaintiff’s arguments re-

garding procedural waiver are unavailing.

MCL 333.7521 governs property that is subject to

forfeiture for being an aid in the violation of the state’s

controlled substance proscriptions. The innocent owner

defense pertinent to this case is set forth in MCL

333.7521(1)(f): “To the extent of the interest of an

owner, a thing of value is not subject to forfeiture under

this subdivision by reason of any act or omission that is

established by the owner of the item to have been

committed or omitted without the owner’s knowledge

or consent.” The burden is on the owner of the property

to establish this affirmative defense. In re Forfeiture of

$53, 178 Mich App 480, 486; 444 NW2d 182 (1989).

Here, claimants filed affidavits asserting that they

“had no knowledge of any criminal activity associated

with any said property” and that they were innocent

owners with respect to the subject properties. Plaintiff

argued during the hearing on its motion for summary

disposition that the claimants’ statements attesting to

their ignorance of their son’s activities were not suffi-

cient evidence to support the innocent owner defense.

Plaintiff relies on federal caselaw holding that in order

for a claimant or defendant “[t]o prevail on a defense of

innocent ownership, a claimant must prove not only

that it was uninvolved in and unaware of the activity

250 291 M

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upon which forfeiture is sought, but also that it did

everything that reasonably could be expected of it to

prevent the activity.” United States v One 1980 Bertram

58’ Motor Yacht, 876 F2d 884, 888 (CA 11, 1989).

Plaintiff’s argument is misplaced because Michigan’s

innocent owner defense to a forfeiture action is purely

statutory and not governed by federal common law or

federal statute.

Michigan’s forfeiture statute does not require claim-

ants do everything that reasonably could be expected to

prevent the criminal activity forming the basis for

forfeiture. At common law, innocent ownership was not

a defense to a forfeiture action. Absent a statutory or

constitutional defense, “the innocence of the owner of

property subject to forfeiture has almost uniformly

been rejected as a defense.” Calero-Toledo v Pearson

Yacht Leasing Co, 416 US 663, 683; 94 S Ct 2080; 40 L

Ed 2d 452 (1974). See also Mich ex rel Wayne Co

Prosecutor v Bennis, 447 Mich 719; 527 NW2d 483

(1994), aff’d Bennis v Michigan, 516 US 442; 116 S Ct

994; 134 L Ed 2d 68 (1996) (holding that knowledge or

consent was not required under the nuisance abate-

ment statute, MCL 600.3801, to forfeit the interest of

an innocent coowner of an automobile used to further

prostitution). These cases, however, recognize consti-

tutional limits to the general, common-law rule that

innocent ownership would not defeat a forfeiture

action. The Calero-Toledo Court observed in dicta

that “it would be difficult to reject the constitutional

claim of an owner whose property subjected to forfei-

ture had been taken from him without his privity or

The federal forfeiture statute, 18 USC 983(d)(2)(A), defines “innocent

owner” as “an owner who—(i) did not know of the conduct giving rise to

forfeiture; or (ii) upon learning of the conduct giving rise to the

forfeiture, did all that reasonably could be expected under the circum-

stances to terminate such use of the property.”

2011] In re F

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consent.” Calero-Toledo, 416 US at 689; see also

Bennis, 447 Mich at 741. The same constitutional defense

might apply to “an owner who proved not only that he was

uninvolved in and unaware of the wrongful activity, but

also that he had done all that reasonably could be expected

to prevent the proscribed use of his property.” Calero-

Toledo, 416 US at 689. The apparent basis for the defense

would be substantive due process because in the circum-

stances imagined, “it would be difficult to conclude that

forfeiture served legitimate purposes and was not unduly

oppressive.” Id. at 689-690. Thus, the language on which

plaintiff here relies arises in the context of a constitutional

exception to the common-law rule that innocent owner-

ship is not a defense to a forfeiture action. See One Blue

1977 AMC Jeep CJ-5 v United States, 783 F2d 759, 762

(CA 8, 1986).

MCL 333.7521(1)(f) provides in pertinent part: “To

the extent of the interest of an owner, a thing of value is

not subject to forfeiture under this subdivision by

reason of any act or omission that is established by the

owner of the item to have been committed or omitted

without the owner’s knowledge or consent.” The stat-

ute’s plain terms place the burden on a claimant to

affirmatively prove the so-called innocent owner de-

fense. “[T]he forfeiture of the res is subject to the

interest of a co-owner who proves that the proscribed

act was done without his or her knowledge or consent,

express or implied.” In re Forfeiture of $53, 178 Mich

App at 496. The statute’s requirement that the claim-

ant lack “knowledge or consent” of the acts or omission

forming the basis for forfeiture means the innocent

owner defense is defeated if the claimant has either

knowledge of “or” consented to the illegal activity. Also,

the word “knowledge” does not include the concept of

constructive knowledge. Echelon Homes, 472 Mich at

197. Thus, an innocent owner defense would be de-

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feated only by actual knowledge of the illegal activity. A

claimant’s consent, however, might be implied from the

circumstances even without knowledge. See In re For-

feiture of $53, 178 Mich App 498 n 3.

In this case, because claimants asserted innocent own-

ership as an affirmative defense to the forfeiture action,

the burden was on claimants to produce evidence that

they neither had knowledge of nor consented to the illegal

activity forming the basis for forfeiture. Attorney General

ex rel Dep’t of Environmental Quality v Bulk Petroleum

Corp, 276 Mich App 654, 664; 741 NW2d 857 (2007); In re

Forfeiture of $53, 178 Mich App at 496. Claimants pre-

sented evidence to support their affirmative defense, so

the burden shifted back to plaintiff to produce clear and

decisive evidence to negate the defense. In re Forfeiture of

$234,200, 217 Mich App 320, 329; 551 NW2d 444 (1996).

Plaintiff did not produce additional evidence to rebut

claimants’ asserted innocent owner defense. Rather,

plaintiff relied on the documents initially submitted with

the motion for summary disposition. Specifically, to show

claimants’ guilty knowledge plaintiff relied on police

reports—inadmissible triple hearsay reporting a state-

ment of Steven Ostipow about a statement of Gerald

Ostipow.

Because the claimants filed their answer with affir-

mative defenses and supporting affidavits before the

trial court ruled on plaintiff’s motion for summary

disposition, the trial court was required to consider

them in deciding the motion under MCR 2.116(C)(10).

“The affidavits, together with the pleadings, deposi-

tions, admissions, and documentary evidence then filed

in the action or submitted by the parties, must be

considered by the court when the motion is based on

subrule (C)(1)-(7) or (10).” MCR 2.116(G)(5) (emphasis

added). Moreover, plaintiff was required to support its

2011] In re F

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motion for summary disposition with affidavits, deposi-

tions, admissions, or other documentary evidence, the

substance of which would be admissible at trial. MCR

2.116(G)(3), (4), (6); Maiden v Rozwood, 461 Mich 109,

121, 123 n 5; 597 NW2d 817 (1999). Here, as discussed

already, plaintiff only submitted police reports, which

generally are inadmissible hearsay. MRE 801(c); MRE

802; Maiden, 461 Mich at 124-125. The police reports

contain no admissible admissions by claimants that

they possessed knowledge of the marijuana-growing

operation in the house they owned. Instead, the police

reports contain hearsay statements of all three claim-

ants that Gerald Ostipow and Royetta Ostipow lacked

knowledge of the marijuana-growing operation. And, to

rebut claimants’ assertion of innocent ownership, plain-

tiff relied on a purported statement by Steven Ostipow

to authorities that Gerald urged Steven to get a job and

not to grow marijuana. But this statement is inadmis-

sible hearsay within hearsay as to claimants. MRE 802;

MRE 805; Maiden, 461 Mich at 124-125. Consequently,

it may not be used to support a motion for summary

disposition regarding claimants’ interests in the prop-

erty. MCR 2.116(G)(6). “[B]oth the rules of evidence

and the rules of civil procedure apply in forfeiture

proceedings.” In re Forfeiture of 301 Cass Street, 194

Mich App 381, 386; 487 NW2d 795 (1992).

Claimants not only denied the triple hearsay on

which plaintiff relies but also submitted affidavits that

they lacked knowledge of and did not consent to the

illegal activity forming the basis for the forfeiture

action. The innocent owner defense of MCL 333.7521(1)(f)

requires no more. Consequently, we conclude the trial

court erred by granting plaintiff’s motion for summary

disposition because the affidavits, pleadings, and docu-

mentary evidence then filed in the action or submitted

by the parties, MCR 2.116(G)(5), the content or sub-

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stance of which would be admissible as evidence at trial,

MCR 2.116(G)(6), showed at a minimum that material

questions of fact remained regarding claimants’ inno-

cent owner affirmative defense.

As noted already, we find plaintiff’s arguments re-

garding procedural waiver unavailing. Plaintiff argues

that the trial court could not have considered claimants’

answer to the complaint that counsel filed because it

was not properly before the court for the reason that

counsel did not seek leave to amend claimants’ original

handwritten response. Further, plaintiff argues claim-

ants’ failure to raise affirmative defenses in this first

pleading waived the innocent owner defense. We briefly

discuss these claims.

Claimants’ handwritten letter to the court, filed in

propriis personis, was not an “answer” or a “responsive

pleading”; therefore, claimants did not waive their

affirmative defense of being innocent owners. The let-

ter did not respond or answer by admitting, denying,

pleading no contest to, or asserting lack of knowledge of

any of the allegations in the complaint for forfeiture.

MCR 2.111(C). Plaintiff repeatedly, below, on brief, and

in oral argument, acknowledged that claimants’ hand-

written letter was not an “answer” to the forfeiture

complaint. “Affirmative defenses must be stated in a

party’s responsive pleading, either as originally filed or

as amended in accordance with MCR 2.118.” MCR

2.111(F)(3). But only complaints, third-party com-

plaints, cross-claims, counterclaims, answers, and re-

plies to answers are pleadings. MCR 2.110(A). Conse-

quently, the claimants’ handwritten letter was neither

an “answer” nor a “responsive pleading” under the

court rules. A party must assert its defenses to a claim

in a responsive pleading, and “[a] defense not asserted

in the responsive pleading or by motion as provided by

2011] In re F

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these rules is waived....”MCR 2.111(F)(2). Because

affirmative defenses need not be pleaded until a party

files a responsive pleading, and claimants’ handwritten

letter was not a responsive pleading, claimants’ failure

to assert their innocent owner affirmative defense did

not waive that defense. See Huntington Woods v Ajax

Paving Indus, Inc (On Rehearing), 179 Mich App 600,

601; 446 NW2d 331 (1989).

Although plaintiff might properly have entered a

default in this action before claimants’ counsel filed an

answer on their behalf because the claimants had

“failed to plead or otherwise defend as provided by

these rules,” MCR 2.603(A)(1), a default was not en-

tered. Entry of default is not automatic. Rather, the

facts justifying entry of default must be made known to

the clerk of the court by “by affidavit or otherwise.” Id.

The court file here reflects that plaintiff did not file an

affidavit in support of default. Rather, plaintiff merely

represents that he sought to enter a default, but the

clerk refused to enter one. Plaintiff’s remedy would

have been to file a motion for default, with an affidavit

and brief in support, explaining why claimants’ letter

was not a pleading or other defense to the forfeiture

action. See MCR 2.119. Additionally, because claimants’

letter was not an answer to the complaint or a respon-

sive pleading, it was unnecessary for claimants’ counsel

to seek leave of the court to amend it. Finally, as already

discussed in considering plaintiff’s motion for summary

disposition under MCR 2.116(C)(10), the trial court was

required to consider “[t]he affidavits, together with the

pleadings, depositions, admissions, and documentary

evidence then filed in the action or submitted by the

parties....”MCR2.116(G)(5). Because such materials

in this case showed at a minimum that material ques-

tions of fact remained regarding claimants’ innocent

256 291 M

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owner affirmative defense, the trial court erred in

granting plaintiff summary disposition.

We reverse and remand for further proceedings con-

sistent with this opinion. Claimants, the prevailing

party, may tax costs pursuant to MCR 7.219. We do not

retain jurisdiction.

ANDSTRA

, J., concurred.

O’C

ONNELL

,P.J. (dissenting). I respectfully dissent.

In a forfeiture action, the burden of proof is on the

claimant to establish the innocent owner defense. In re

Forfeiture of $53, 178 Mich App 480, 486; 444 NW2d 182

(1989). To avoid forfeiture, the claimant must establish

that the illegal activities that formed the basis of the

forfeiture action were committed without the claimant’s

knowledge or consent. Id. at 496; MCL 333.7521(1)(f). In

this case, the majority concludes that claimants’ affidavits

were sufficient to avoid summary disposition based on the

innocent owner defense, even though the affidavits con-

tained merely claimants’ conclusory assertions that they

knew nothing of their son’s illegal activity. In my view, the

trial court correctly determined that claimants’ affidavits

were insufficient to create a question of fact on the

innocent owner defense. Accordingly, I would affirm the

trial court’s well-reasoned decision.

As this Court has repeatedly recognized, “mere conclu-

sory allegations within an affidavit that are devoid of

detail are insufficient to create a question of fact.” Ha-

made v Sunoco, Inc (R&M), 271 Mich App 145, 163; 721

NW2d 233 (2006), citing Quinto v Cross & Peters Co, 451

Mich 358, 371-372; 547 NW2d 314 (1996); see also MCR

2.119(B)(1)(b). “A genuine issue of material fact exists

when the record, giving the benefit of reasonable doubt to

the opposing party, leaves open an issue upon which

2011] In re F

ORFEITURE OF

ARIJUANA

257

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ONNELL

,P.J.

reasonable minds might differ.” West v Gen Motors Corp,

469 Mich 177, 183; 665 NW2d 468 (2003). Here, claim-

ants’ affidavits stated they had no knowledge of any

criminal activity associated with their real or personal

property. Neither the affidavits nor the pleadings pre-

sented any specific facts to support these statements.

the trial court explained, the pleadings filed by claimants’

attorney “just deny criminal activity and assert they are

innocent owners, but I...didn’t see any affirmative de-

fenses. I don’t see any answer that gives the prosecutor

some basis on which to respond as to why they are

innocent owners.” The trial court concluded, and I agree,

that claimants presented no evidence sufficient to with-

stand summary disposition.

See Bennett v Detroit Police

Chief, 274 Mich App 307, 317-319; 732 NW2d 164

(2007) (moving party is entitled to summary disposition

when nonmoving party’s unsupported, speculative evi-

dence was insufficient to create a fact issue).

I would affirm the decision of the trial court.

I recognize that it might be difficult for claimants to assert specific

facts regarding innocent ownership, in light of the Saginaw County

Sheriff’s Department seizure of an indoor marijuana-growing operation

consisting of several hundred marijuana plants, processed marijuana,

drug paraphernalia, and records related to the manufacture and sale of

marijuana. Nonetheless, I am of the opinion that claimants must assert

some facts to establish they were unaware that several hundred mari-

juana plants were growing in the house.

The majority states that once claimants presented evidence to sup-

port their affirmative defense, “the burden shifted back to the prosecutor

to produce clear and decisive evidence to negate the defense.” In my view,

this statement rests on the incorrect assumption that claimants actually

presented evidence. The record indicates that claimants presented con-

clusory assertions; they did not present facts admissible as evidence.

Where, as here, a nonmoving party has the burden of proof on an issue,

that party must come forward with specific facts to show a genuine

factual issue. Quinto, 451 Mich at 362-363. If that party fails to present

sufficient evidence, the burden never shifts, and the moving party is

entitled to summary disposition. Id.

258 291 M

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PEOPLE v BUIE (AFTER REMAND)

Docket No. 278732. Submitted October 14, 2010, at Lansing. Decided

January 11, 2011, at 9:10 a.m.

James Henry Buie was convicted after a jury trial in the Kent Circuit

Court, Dennis B. Leiber, J., of two counts of first-degree criminal

sexual conduct involving a victim under the age of 13, three counts

of first-degree criminal sexual conduct involving the use of a

weapon, and possession of a firearm during the commission of a

felony. Defendant appealed, alleging, in part, that he was deprived

of his constitutional right to confront the witnesses against him

when the court allowed two nonvictim prosecution witnesses to

testify by way of two-way, interactive video technology. The Court

of Appeals, B

ECKERING

,P.J., and W

HITBECK

and M. J. K

ELLY

,JJ.,held

the record was insufficient to determine whether the procedure

was necessary to further an important public policy or state

interest, and remanded to the trial court for further fact-finding.

285 Mich App 401 (2009). Both parties sought leave to appeal in

the Supreme Court, but both applications were denied, and the

Supreme Court further instructed the trial court to make findings

regarding the good-cause and consent requirements of MCR

6.006(C). 485 Mich 1105 (2010). At the evidentiary hearing on

remand, the proofs showed that both witnesses would have testi-

fied in person had the video technology not been available,

although it would have been inconvenient. Defense counsel testi-

fied that the video testimony was the best way to have the two

witnesses testify because the case had already proceeded slowly

and that the technology allowed her to effectively cross-examine

them. She testified that defendant objected to the use of the video

technology and that he had been uncooperative throughout the

proceedings in general. The court issued an opinion and order

holding that there was no error in permitting the video procedure

because it furthered several state interests or public policies and

defendant consented to the procedure.

After remand, the Court of Appeals held:

1. An accused person has a constitutional right to confront the

witnesses against him or her under US Const, Am VI and Const

1963, art 1, § 20. When determining whether the right of confron-

tation would be infringed by permitting testimony by means of

2011] P

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EMAND

) 259

two-way, interactive video technology, a trial court must hear

evidence and make case-specific findings that the use of such

technology is necessary to further a public policy or state interest

important enough to outweigh the defendant’s right of confronta-

tion and that it preserves all the other elements of the Confron-

tation Clause. The state interests cited by the trial court—

convenience, cost savings, efficiency, and avoiding delay—did not

constitute interests important enough to outweigh defendant’s

right of confrontation.

2. Under MCR 6.006(C), a court may take trial testimony by

way of two-way, interactive video technology when the defendant

is present in the courtroom or has waived the right to be present

if there is a showing of good cause and the parties consent. Defense

counsel may waive a defendant’s right of confrontation, but only if

the waiver is a legitimate trial tactic or strategy and the defendant

does not object to the decision. Although defense counsel agreed to

the use of the technology, defendant objected to it and had counsel

place his objection on the record. The trial court erred in conclud-

ing that defendant had consented through his counsel’s assent to

using the technology. Because the challenged testimony was highly

relevant to establishing the essential element of identity, the error

warrants reversal.

Reversed and remanded for a new trial.

HITBECK

, J., concurring, emphasized the importance of, and

the historical basis for, adherence to the constitutional require-

ment that an accused has the right to confront the witnesses

against him or her.

1. C

ONSTITUTIONAL

AW —

ONFRONTATION

LAUSE —

RIAL —

ITNESSES —

-W

NTERACTIVE

IDEO

ECHNOLOGY

An accused person has a constitutional right to confront the wit-

nesses against him or her; when determining whether the right of

confrontation would be infringed by permitting testimony by

means of two-way, interactive video technology, a trial court must

hear evidence and make case-specific findings that the use of such

technology is necessary to further a public policy or state interest

important enough to outweigh the defendant’s right of confronta-

tion and that it preserves all the other elements of the Confron-

tation Clause (US Const, Am VI; Const 1963, art 1, § 20).

2. T

RIAL —

ITNESSES —

ESTIMONY —

-W

NTERACTIVE

IDEO

ECHNOL-

OGY

A court may take trial testimony by way of two-way, interactive

video technology when the defendant is present in the courtroom

260 291 M

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259 [Jan

or has waived the right to be present if there is a showing of good

cause and the parties consent; defense counsel may waive a

defendant’s right of confrontation, but only if the waiver is a

legitimate trial tactic or strategy and the defendant does not object

to the decision (MCR 6.006[C]).

Bill Schuette, Attorney General, B. Eric Restuccia,

Solicitor General, William A. Forsyth, Prosecuting At-

torney, and Timothy K. McMorrow, Assistant Prosecut-

ing Attorney, for the people.

State Appellate Defender (by Jonathan Sacks) for

defendant.

AFTER REMAND

Before: B

ECKERING

,P.J., and W

HITBECK

and M. J. K

ELLY

JJ.

URIAM

. Defendant appeals as of right his jury

trial convictions of two counts of first-degree criminal

sexual conduct (CSC) involving a victim under the age

of 13, MCL 750.520b(1)(a), three counts of first-degree

CSC involving the use of a weapon, MCL

750.520b(1)(e), and possession of a firearm during the

commission of a felony, MCL 750.227b. When defendant

first appealed to this Court, he argued that the trial

court erred in permitting Dr. Vincent Palusci and Rod-

ney Wolfarth to testify by way of two-way, interactive

video technology. Specifically, defendant argued that the

testimony violated his constitutional right of confron-

tation and was not properly admitted under any state

statute or court rule. Retaining jurisdiction, we re-

manded for the trial court to determine whether per-

mitting the video procedure was necessary to further an

important public policy or state interest. People v Buie,

285 Mich App 401, 418; 775 NW2d 817 (2009). Our

Supreme Court denied plaintiff and defendant leave to

2011] P

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appeal, but instructed the trial court to also “make

findings regarding good cause and consent pursuant to

MCR 6.006(C)” on remand. People v Buie, 485 Mich

1105, 1106 (2010). Following an evidentiary hearing,

the trial court issued an opinion and order holding that

there was no error in permitting the video procedure

because it furthered several state interests or public

policies and defendant consented to the procedure. We

disagree with the trial court’s holding. Because permit-

ting the video procedure cannot be deemed harmless

error, we must vacate defendant’s convictions and sen-

tence and remand for a new trial.

Defendant was convicted of sexually assaulting BS

and minors LS, age 13, and DS, age 9. According to the

testimony at trial, on June 27, 2001, defendant held BS

at gunpoint in a closet, penetrated her vagina with his

penis, and attempted to penetrate her anally. Defendant

subsequently penetrated LS’s vagina with his penis and

attempted to penetrate her anally. He then penetrated

DS’s vagina with his penis. At trial, BS identified

defendant as the man who assaulted her, LS, and DS.

She testified that she had never seen him before the

night of the assaults and had not seen him since that

night. LS and DS were unable to identify the man who

assaulted them.

Dr. Palusci examined LS and DS within hours of the

assaults, Wolfarth conducted DNA testing on the swabs

collected by Dr. Palusci, as well as other evidence, and

both testified regarding their findings. As we detailed in

our earlier opinion:

Dr. Vincent Palusci examined LS and DS approximately

six hours after the assaults. Dr. Palusci testified that his

findings “were indicative of sexual conduct of direct

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trauma to the genitals, and in the case of [LS], also her

anus, which were not explainable in any other manner

than the histories provided” by the girls. Christine Dun-

nick, a forensic nurse, examined BS after the assaults and

found a “half a centimeter perianal tear, which is near the

anal opening,” consistent with the history provided by BS.

Dr. Palusci and nurse Dunnick collected evidence, includ-

ing vaginal and rectal swabs, during the examinations and

placed the evidence in rape kits. The kits were then sealed

and released to the appropriate law enforcement agencies.

The trial court designated Rodney Wolfarth as an expert in

the area of DNA analysis. Wolfarth conducted DNA testing on

the swabs in the rape kits and the nightgown worn by LS

during the assaults, as well as a fitted sheet, a pillowcase, and

cigarette butts found at the scene. Wolfarth testified that he

found sperm cells in the vaginal and rectal swabs taken from

LS. When he tested the sperm cells from the rectal swab, “it

was consistent with a mixture and the mixture was consistent

with [LS] and an unknown semen donor, designated as Donor

1.” Wolfarth found the same mixture on the nightgown and

found DNA from Donor 1 on the fitted sheet, pillowcase, and

cigarette butts. Wolfarth was unable to identify a match for

the DNA at that time, but stated that once DNA testing is

completed, the “probative DNA result is entered into what is

a DNA data bank called CODIS, which stands for Combined

DNA Indexing System.” The data are stored to allow for

comparisons to convicted felons’ profiles at a later date. When

a match is made between a DNA sample and a known profile,

it is referred to as a CODIS hit.

At trial, prosecution witness LB testified that defendant

sexually assaulted her in 2004, when she was 13 years old.

LB told her sister that defendant had assaulted her and,

shortly thereafter, the incident was reported to the police.

DNA analysts subsequently determined that defendant’s

DNA matched sperm cells from LB’s vaginal swab and

underwear. The results of the DNA testing were entered

into CODIS.

On February 1, 2005, a CODIS hit occurred when the

system matched defendant’s DNA to the DNA samples

taken in this case. Thereafter, a search warrant to conduct

2011] P

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a buccal swab for defendant’s DNA was obtained. Defen-

dant was initially uncooperative, but eventually consented

to the swab. Joel Schultze, who was designated by the trial

court as an expert in DNA analysis, testified that the DNA

sample was tested and compared to Wolfarth’s previous

findings. According to Schultze, the DNA material on the

nightgown, pillowcase, fitted sheet, and cigarette butts

were [sic] consistent with defendant’s DNA. In addition,

the rectal swab taken from LS was consistent with a

mixture of LS and defendant at 10 of 13 locations. Defen-

dant’s DNA was not found on any of the swabs taken from

DS, but Schultze explained that even if penetration occurs,

“if there’s no ejaculation, the male DNA is not going to be

there.” [Buie, 285 Mich App at 404-406.]

The trial court permitted Dr. Palusci and Wolfarth to

testify by way of two-way, interactive video technology.

Before the first witness testified, defense counsel

stated: “[M]y client has—wanted to question the verac-

ity of these proceedings, so I’ll leave that to the Court’s

discretion.”

Following his jury trial, defendant was convicted as

previously stated. He then appealed his convictions and

sentence in this Court, arguing that Dr. Palusci’s and

Wolfarth’s video testimony violated his constitutional

right of confrontation and was not properly admitted

under any state statute or court rule. We adopted the

test articulated in Maryland v Craig, 497 US 836; 110 S

Ct 3157; 111 L Ed 2d 666 (1990), to determine whether

a trial court infringes on a defendant’s right of confron-

tation when it allows witness testimony to be taken by

way of two-way, interactive video technology. Buie, 285

Mich App at 415. We held that a “trial court must hear

evidence and make case-specific findings that the pro-

cedure is necessary to further a public policy or state

interest important enough to outweigh the defendant’s

constitutional right of confrontation and that it pre-

264 291 M

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259 [Jan

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serves all the other elements of the Confrontation

Clause.” Id. Additionally, we held that

[p]ursuant to the plain language of MCR 6.006(C)(2), a

trial court may take witness testimony by two-way, inter-

active video technology if: (1) the defendant is either

present in the courtroom or has waived the right to be

present, (2) there is a showing of good cause, and (3) the

parties consent. [Id. at 417.]

Based on the record before us at the time, we could not

determine that there was a showing of good cause or

that defendant consented. Id. We remanded the case,

ordering the trial court to determine whether permit-

ting the video procedure was necessary to further an

important public policy or state interest. Id. at 418.

Defendant subsequently filed an application for leave to

appeal in the Supreme Court. The Supreme Court

denied the application, but instructed the trial court to

also “make findings regarding good cause and consent

pursuant to MCR 6.006(C).” Buie, 485 Mich at 1106.

On remand, the trial court held an evidentiary hear-

ing. The parties stipulated that at the time of trial, Dr.

Palusci worked at Wayne State University in Detroit,

Michigan and Wolfarth worked at the Virginia State

Crime Lab in the western part of Virginia. Although it

would have been inconvenient, both witnesses would

have testified in person if videoconferencing had not

been available.

The prosecutor assigned to this case at the time of

trial testified that although he and defense counsel

discussed the use of the video technology, he could not

recall the specifics of their discussions. He recalled

informing defense counsel that testifying in person

would be inconvenient for Dr. Palusci and Wolfarth. He

also recalled defense counsel stating that she believed

Dr. Palusci’s testimony would be damaging to the

2011] P

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defense and wanted the testimony to be “done with as

quickly as possible.” The prosecutor testified that he

would never arrange for a witness to testify by way of

video technology without first obtaining a stipulation

from defense counsel. Defendant was not included in

the prosecutor’s discussions with defense counsel.

Defendant’s trial counsel testified that she discussed

the use of the video technology with the prosecutor and

the trial court in chambers before trial. She testified

that this case had proceeded very slowly for a number of

reasons. She understood that it would be problematic

and time consuming for Dr. Palusci and Wolfarth to

testify in person, although not impossible, and agreed

with the prosecutor that utilizing the technology

“would be the best way to have these individuals testify

without subjecting them to being here physically.” De-

fense counsel testified that because of the nature of the

witnesses’ testimony, and her ability to cross-examine

them effectively by way of the technology available, she

had no reason to object to its use.

Defense counsel further testified that she discussed

the video technology with defendant before the wit-

nesses testified, despite the fact that he had been

uncooperative with her and the proceedings in general.

According to defense counsel, although she did not

personally object to the use of the technology, defendant

“objected to everything.” Whenever he objected to

something, she placed an objection on the record on his

behalf, and she specifically “made a statement on the

record indicating [his] disdain for the two individuals

testifying via video.” When asked whether her state-

ment at trial that her client “wanted to question the

veracity of these proceedings” was an expression of

defendant’s objection to the use of the technology, she

testified: “Absolutely.” She explained that defendant

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“had a problem with every piece of this case.” She did

not believe that he had a problem with the technology

in particular, but that “he had a problem with the fact

that he was on trial for raping two little girls,” although

she could not “get into his mind.”

Defendant testified that defense counsel informed

him of the video testimony immediately before it took

place. Defendant told counsel that it “didn’t feel right”

to have witnesses testify from outside of the courtroom

and requested that she object. In response to his re-

quest, counsel made the statement regarding defendant

questioning the veracity of the proceedings.

After the evidentiary hearing, the trial court issued a

written opinion and order holding that there was no error

in permitting the witnesses’ video testimony. The court

held that there were “state interests or public policies”

justifying the use of the video technology in this case.

Additionally, the court held that there was good cause for

utilizing the technology and that “defendant ultimately

consented to the video testimony” under MCR 6.006(C).

The court explained that defense counsel had consented to

the use of the technology before trial, that when counsel

stated that her client “wanted to question the veracity of

these proceedings, so I’ll leave that to the Court’s discre-

tion,” defendant was actually agreeing—through

counsel—to the use of the technology, and that defen-

dant’s “intent was to object to the proceedings in general

because he disliked being prosecuted.”

Having retained jurisdiction, we now have this case

before us to review the trial court’s findings on remand

and the record as supplemented.

On appeal, defendant argues that the trial court

erred in permitting Dr. Palusci and Wolfarth to testify

2011] P

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by way of the two-way, interactive video technology.

According to defendant, the testimony violated his

constitutional right of confrontation and was not prop-

erly admitted under any state statute or court rule. As

we stated in our earlier opinion, because defendant

failed to object to the use of the video technology on the

grounds he raises on appeal, the issue is unpreserved.

Buie, 285 Mich App at 407, citing People v McPherson,

263 Mich App 124, 137; 687 NW2d 370 (2004). There-

fore, our review is for plain error. See People v Carines,

460 Mich 750, 763-764; 597 NW2d 130 (1999).

To avoid forfeiture under the plain error rule, three

requirements must be met: 1) error must have occurred, 2)

the error was plain, i.e., clear or obvious, 3) and the plain

error affected substantial rights. The third requirement

generally requires a showing of prejudice, i.e., that the

error affected the outcome of the lower court proceed-

ings....Reversal is warranted only when the plain, for-

feited error resulted in the conviction of an actually inno-

cent defendant or when an error “ ‘seriously affect[ed] the

fairness, integrity or public reputation of judicial proceed-

ings’ independent of the defendant’s innocence.” [Id.at

763 (citations omitted).]

We review the trial court’s factual findings on re-

mand for clear error, People v Sexton (After Remand),

461 Mich 746, 752; 609 NW2d 822 (2000), and its

rulings on questions of constitutional law de novo,

People v Bryant, 483 Mich 132, 138; 768 NW2d 65

(2009). To the extent the court engaged in interpreta-

tion of MCR 6.006(C), our review is de novo. See

Wilcoxon v Wayne Co Neighborhood Legal Servs, 252

Mich App 549, 553; 652 NW2d 851 (2002).

III

In our earlier opinion, we adopted the test articulated

in Craig, 497 US 836, to determine whether a defen-

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dant’s constitutional right of confrontation is infringed

when testimony is permitted to be taken by way of

two-way, interactive video technology. Buie, 285 Mich

App at 415. Pursuant to the two-prong Craig test, we

held that a trial court must hear evidence and make

case-specific findings that the use of such technology is

necessary to further a public policy or state interest

important enough to outweigh the defendant’s right of

confrontation and that it preserves all of the other

elements of the Confrontation Clause. Id. On remand,

the trial court held that, given the nature of the

witnesses’ testimony, the size of the screen on which the

witnesses appeared, and the parties’ ability to effec-

tively question the witnesses, there were “state inter-

ests or public policies” justifying the use of the video

technology in this case, specifically cost savings, effi-

ciency, the convenience of the witnesses, and avoiding

delay.

Defendant argues that the trial court erred in con-

cluding that there were public policies or state interests

at issue that were important enough to outweigh his

constitutional right of confrontation. The prosecution

does not refute this argument. In its proposed findings

of fact, filed after the evidentiary hearing on remand,

the prosecution conceded that it “presented no specific

state interest invoked for having Dr. Palusci and Mr.

Wolfarth testify via video rather than in person. Rather,

it was done for convenience, but only after an agree-

ment was reached with defense counsel....” In its

supplemental brief on appeal, the prosecution again

conceded that it did not present “a ‘public policy or

state interest’ in having [the witnesses] testify by

video.” It further stated: “The trial court’s findings of

fact after the hearing on remand identified the cost and

expense as important public policies and state inter-

2011] P

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ests....Wearenotarguing that those interests over-

ride a true constitutional mandate....”

Additionally, we note that the trial court failed to

separate the two prongs of the Craig test in reaching its

conclusion. At both the evidentiary hearing on remand

and in its written opinion and order, the court empha-

sized the parties’ ability to question the witnesses and

the jury’s ability to see and hear the witnesses on the

video screen. In doing so, the court addressed the

second prong of the Craig test, which is that the video

technology utilized adequately protected the elements

of the Confrontation Clause other than the element of

physical presence, i.e., the oath, cross-examination, and

the ability of the trier of fact to view the demeanor of

the witness. See Buie, 285 Mich App at 408, 415.

Importantly, however, the trial court did not explain

how the particular interests it cited, i.e., cost savings,

efficiency, the convenience of the witnesses, and avoid-

ing delay, constituted public policies or state interests

important enough to outweigh defendant’s right to

confrontation under the first prong of the Craig test. As

we described in our earlier opinion, this Court has held

that the right to confrontation must, under certain

circumstances, give way to important interests such as

protecting a victim witness from being traumatized.

See, e.g., People v Pesquera, 244 Mich App 305, 312-313;

625 NW2d 407 (2001), and People v Burton, 219 Mich

App 278, 289; 556 NW2d 201 (1996). Here, the trial

court failed to articulate how the interests it cited were

equally important.

Considering that neither party appears to agree with

the trial court’s conclusion on this issue, and the court’s

Alternatively, the prosecution argued that the interests cited by the

trial court constituted “good cause” for permitting video testimony under

MCR 6.006(C).

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failure to properly address the first prong of the Craig

test in reaching its conclusion, we decline to hold that

there was a public policy or state interest at issue in this

case important enough to outweigh defendant’s right of

confrontation.

Aside from finding a public policy or state interest

important enough to outweigh a defendant’s constitu-

tional right to confrontation, a trial court may utilize

two-way, interactive video technology to take trial testi-

mony under MCR 6.006(C).

Pursuant to the plain lan-

guage of the court rule, a court may take trial testimony

by way of such technology “if: (1) the defendant is either

present in the courtroom or has waived the right to be

present, (2) there is a showing of good cause, and (3) the

parties consent.” Buie, 285 Mich App at 417. Based on the

record before us when we issued our earlier opinion, we

could not determine that there was a showing of good

cause or that defendant consented to the use of the video

technology in this case. Id. Pursuant to the Supreme

Court’s order, the trial court considered the issue on

remand. The trial court held that good cause to utilize the

video technology existed and that defendant consented to

its use through counsel.

MCR 6.006(C) provides, in relevant part:

As long as the defendant is either present in the courtroom or

has waived the right to be present, upon a showing of good cause,

district and circuit courts may use two-way interactive video

technology to take testimony from a person at another location in

the following proceedings:

***

(2) with the consent of the parties, trials. A party who does not

consent to the use of two-way interactive video technology to take

testimony from a person at trial shall not be required to articulate

any reason for not consenting.

2011] P

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Even if good cause could be established in this case,

we disagree with the trial court on the issue of consent.

In our earlier opinion, we noted the rule articulated in

People v Lawson, 124 Mich App 371; 335 NW2d 43

(1983), that the “integral elements of the Confrontation

Clause, including seeing the witness’s demeanor, ‘must

be personally waived by the defendant.’ ” Buie, 285

Mich App at 418, citing and quoting Lawson, 124 Mich

App at 376. Because the Lawson Court ultimately held

that the error in the case was harmless, the personal

waiver rule articulated by that panel is dictum and is,

therefore, not binding. As the prosecution points out, a

majority of the federal courts of appeals and state

courts that have considered whether defense counsel

may waive a defendant’s constitutional right of con-

frontation have held that counsel may waive the defen-

dant’s right. See State v Campbell, 208 Ill 2d 203,

212-217; 802 NE2d 1205 (2003), and the cases cited

therein. It is crucial to note, however, that the courts

that have reviewed this issue have overwhelmingly held

that defense counsel may only waive a defendant’s right

of confrontation if the waiver is a legitimate trial tactic

or strategy and the defendant does not object to the

decision. See id. We find the reasoning of the majority of

the federal and state courts that have reviewed this

issue to be persuasive.

Additionally, aside from the constitutional right of

confrontation implicated in this case, MCR 6.006(C)

We note that in stating that “the more integral rights of the

confrontation clause must be personally waived by the defendant,”

Lawson, 124 Mich App at 376, the Lawson Court relied on Brookhart v

Janis, 384 US 1, 7-8; 86 S Ct 1245; 16 L Ed 2d 314 (1966), which held that

defense counsel may not “waive his client’s constitutional right to plead

not guilty and have a trial in which he can confront and cross-examine

the witnesses against him” over the defendant’s expressed desire to the

contrary.

272 291 M

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does not permit defense counsel to consent to the use of

two-way, interactive video technology where a defen-

dant objects to the procedure. MCR 6.006(C)(2) pro-

vides that a court may take trial testimony by way of

such technology “with the consent of the parties.” MCR

6.003(1) indicates that the term “[p]arty,” as used in

MCR 6.006, “includes the lawyer representing the

party.” Thus, the term “parties” in MCR 6.006(C)(2)

encompasses both the lawyer and the client that the

lawyer represents. While it may be permissible for a

lawyer to consent to the use of two-way, interactive

video technology on behalf of his or her client, we

cannot interpret MCR 6.006(C)(2) to mean that the

lawyer may consent to the use of such technology over

the express objection of the client.

In this case, the trial court held that defendant

consented to the video procedure through counsel.

Indeed, defense counsel testified at the evidentiary

hearing on remand that she initially agreed to the use of

the technology, she had no reason to object to its use,

and she never personally objected. But counsel further

testified that defendant expressed disagreement with

the use of the technology and requested that she object,

and that her statement at trial that her client “wanted

to question the veracity of these proceedings, so I’ll

leave that to the Court’s discretion,” was “[a]bsolutely”

an expression of defendant’s objection to the use of the

technology. Defense counsel later explained that she

believed defendant asked her to object, not because he

had a problem with the technology in particular, but

because he had a problem with being on trial in general.

We note, however, as did defense counsel herself, that

this was merely counsel’s opinion regarding the reason

for defendant’s objection, as she could not “get into his

mind.” Defendant testified at the evidentiary hearing

that he asked defense counsel to object to the use of the

2011] P

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video technology because it “didn’t feel right” to have

witnesses testify from outside of the courtroom. More-

over, MCR 6.006(C)(2) specifically states that “[a] party

who does not consent to the use of two-way interactive

video technology to take testimony from a person at

trial shall not be required to articulate any reason for

not consenting.”

Given the testimony of both defendant and defense

counsel at the evidentiary hearing on remand, we

cannot conclude that defendant consented to the video

procedure through counsel. To the contrary, defendant

objected to the use of the technology and had counsel

place his objection on the record. Because defendant

expressly objected to the use of the technology, defense

counsel’s agreement with its use does not qualify as a

waiver of defendant’s constitutional right of confronta-

tion or as consent under MCR 6.006(C)(2). Accordingly,

we hold that the trial court plainly erred in permitting

Dr. Palusci and Wolfarth to testify by way of two-way,

interactive video technology at trial.

Finally, we must determine whether the trial

court’s error in permitting Dr. Palusci’s and Wol-

farth’s video testimony warrants reversal. R eversal is

warranted when plain, forfeited error resulted in the

conviction of an actually innocent defendant or “se-

riously affected the fairness, integrity or public repu-

tation of judicial proceedings independent of the

defendant’s innocence.” Carines, 460 Mich at 763

(edits, quotation marks, and citation omitted). This

requirement “generally requires a showing of preju-

dice, i.e., that the error affected the outcome of the

lower court proceedings.” Id.

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Dr. Palusci testified that he swabbed the minor

victims for DNA evidence. Wolfarth testified that he

conducted the initial DNA testing on the swabs

collected by Dr. Palusci and other pieces of evidence

collected from the scene to establish the presence of

“Donor 1’s” DNA. Wolfarth explained that when he

tested the sperm cells from LS’s rectal swab, it was

consistent with a mixture of LS’s DNA and the DNA

of an unknown semen donor, designated as Donor 1.

Wolfarth also found DNA from Donor 1 on some of

the other evidence collected from the scene. We find

that without this foundational testimony, the pros-

ecution could not have established a chain of custody,

explained the CODIS hit that occurred when the

system matched defendant’s DNA to Donor 1’s DNA,

or presented Schultze’s testimony comparing defen-

dant’s DNA to Wolfarth’s findings. Schultze ex-

plained that defendant’s DNA was consistent with

the DNA previously designated by Wolfarth as Donor

1’s DNA.

Although BS identified defendant as the man who

assaulted her, LS, and DS, she testified that she had

never seen defendant before the night of the assaults

and had not seen him since that night. LS and DS were

unable to identify the man who assaulted them. Thus,

the testimony of Dr. Palusci and Wolfarth, which was

foundational to Schultze’s testimony linking defendant

to the assault on LS and the scene of the crime, was

highly relevant to establishing the essential element of

identity in this case. Considering the importance of the

challenged testimony, we must conclude that the trial

court’s error in utilizing the video technology at issue

“ ‘seriously affect[ed] the fairness, integrity, or public

reputation of judicial proceedings’ independent of the

defendant’s innocence,” id. (citation omitted), and,

therefore, warrants reversal.

2011] P

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We vacate defendant’s convictions and sentence and

remand for a new trial. We do not retain jurisdiction.

HITBECK

,J.(concurring). I concur in the majority’s

scholarly opinion. I write separately only to empha-

size the importance of, and the historical basis for,

adherence to the constitutional requirement that an

accused has the right to confront the witnesses

against him.

For a wide variety of reasons, our jurisprudence

contains an interlocking web of rights and restrictions,

all aimed at protecting those whom the state accuses of

crimes. We require that when investigation turns to

custodial interrogation, the police must inform the

subject of that interrogation that he or she has the

rights to remain silent and to the services of an attor-

ney.

And there is a constitutional prohibition against

unreasonable search and seizure.

Further, a criminal

defendant has a constitutional right to a public trial by

an impartial jury.

That defendant has a constitutional

right against compelled self-incrimination and a con-

comitant presumption of innocence.

He or she has a

constitutional due process right to be convicted only

upon prosecutorial proof of guilt beyond a reasonable

doubt,

a right to a unanimous jury verdict,

a constitu-

US Const, Am VI; Const 1963, art 1, § 20.

Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).

US Const, Am IV; Const 1963, art 1, § 11.

US Const, Am VI; Const 1963, art 1, § 20.

People v Fields, 450 Mich 94, 108; 538 NW2d 356 (1995), citing US

Const, Am V; Const 1963, art 1, § 17.

Sandstrom v Montana, 442 US 510, 520-524; 99 S Ct 2450; 61 L Ed 2d

39 (1979).

People v Cooks, 446 Mich 503, 510-511; 521 NW2d 275 (1994), citing

US Const, Am VI; Const 1963, art 1, § 14; FR Crim P 31(a); and MCR

6.410(B).

276 291 M

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,J.

tional right to compulsory process,

and a constitutional

right to effective assistance of counsel.

These protections continue even after conviction. In

Michigan, a criminal defendant has an absolute right of

appeal following conviction

and to the reasonable

assistance of counsel in perfecting and prosecuting such

an appeal.

Conversely, the prosecution has no consti-

tutional right to appeal.

Thus, the right at issue in this case, the constitutional

“confrontation clause”

as it is popularly called, is only

one strand in this interlocking web of rights and restric-

tions. But it is an important strand and one steeped in

history. “The right to confront one’s accusers is a

concept that dates to Roman times.”

The origins of the

clause itself go back to the sixteenth and seventeenth

centuries. During that time, the English Crown “used

criminal proceedings as weapons against its political en-

emies,” most notoriously through the device of the Star

Chamber.

Essentially, the English courts used an inquisi-

torial mode of criminal procedure in which, for example,

“justices of the peace would interrogate witnesses pri-

Const 1963, art 1, § 20.

Strickland v Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L

Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 309, 312-313; 521

NW2d 797 (1994).

Const 1963, art 1, § 20.

Id.

People v Richmond, 486 Mich 29, 36; 782 NW2d 187 (2010).

US Const, Am VI; Const 1963, art 1, § 20.

Crawford v Washington, 541 US 36, 43; 124 S Ct 1354; 158 L Ed 2d

177 (2004), citing Coy v Iowa, 487 US 1012, 1015; 108 S Ct 2798; 101 L

Ed 2d 857 (1988), and Herrmann & Speer, Facing the accuser: Ancient

and medieval precursors of the Confrontation Clause,34VaJInt’lL481

(1994).

Counseller & Rickett, The Confrontation Clause after Crawford v

Washington: Smaller mouth, bigger teeth,57BaylorLR1,7(2005).

2011] P

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,J.

vately and offer the testimony against the accused at

trial without calling the witness to the stand.”

The 1603 trial of Sir Walter Raleigh provides perhaps

the most well-known instance of the potential for abuse

inherent in the inquisitorial mode.

The main witness

against Raleigh never testified in person at the trial.

Rather, officers reported his statements in court.

Ra-

leigh objected to the use of these out-of-court

statements—saying at one point, “Good my Lords, let

my accuser come face to face and be deposed”

—but his

objections were unsuccessful, and he was convicted and

executed.

Rather clearly, Raleigh’s trial demonstrates the twin

evils caused by the inability to confront witnesses:

First, without confrontation by cross-examination, the

accused is unable to test the credibility of the declarant’s

testimony. Confrontation by cross-examination is needed to

ensure the reliability of testimony. Second, without a right to

confrontation the government may develop ex parte testi-

mony for use against the accused at trial. The right to

confrontation serves as a check on the government’s ability to

secretly develop evidence against its citizenry, a worthwhile

purpose, irrespective of the reliability of the testimony.

[

]

The proposed Federal Constitution did not originally

contain a confrontation clause. But the First Congress

included the clause in the proposal that became the

Sixth Amendment.

Early state decisions indicated

Id.

Crawford, 541 US at 44; Counseller & Rickett, 57 BaylorLRat7-8.

Crawford, 541 US at 44; Counseller & Rickett, 57 BaylorLRat7.

1 Criminal Trials 389-520, 427 (David Jardine ed, 1850).

Crawford, 541 US at 44; Counseller & Rickett, 57 BaylorLRat7-8.

Counseller&Rickett,57BaylorLRat8.

Crawford, 541 US at 49.

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that the right to cross-examine witnesses in person was

at the core of the original understanding of the clause.

And subsequent United States Supreme Court deci-

sions followed this understanding:

Where testimonial statements are involved, we do not

think the Framers meant to leave the Sixth Amendment’s

protection to the vagaries of the rules of evidence, much

less to amorphous notions of “reliability.” Certainly none of

the authorities discussed above acknowledges any general

reliability exception to the common-law rule. Admitting

statements deemed reliable by a judge is fundamentally at

odds with the right of confrontation. To be sure, the

Clause’s ultimate goal is to ensure reliability of evidence,

but it is a procedural rather than a substantive guarantee.

It commands, not that evidence be reliable, but that

reliability be assessed in a particular manner: by testing in

the crucible of cross-examination. The Clause thus reflects

a judgment, not only about the desirability of reliable

evidence (a point on which there could be little dissent), but

about how reliability can best be determined.

[

]

Indeed, as Justice Scalia opined, the “text of the Sixth

Amendment does not suggest any open-ended excep-

tions from the confrontation requirement to be devel-

oped by the courts.”

Id. at 49-50, citing State v Webb, 2 NC 103, 104 (1794), to the effect

that, “ ‘[I]t is a rule of the common law, founded on natural justice, that

no man shall be prejudiced by evidence which he had not the liberty to

cross examine,’ ” and State v Campbell, 30 SCL 124, 125 (1844) to the

effect that one of the “ ‘indispensable conditions’ implicitly guaranteed

by the State Constitution was that ‘prosecutions be carried on to the

conviction of the accused, by witnesses confronted by him, and subjected

to his personal examination.’ ”

Crawford, 541 US at 61; see also Mattox v United States, 156 US 237,

244; 15 S Ct 337; 39 L Ed 409 (1895) (“The substance of the constitu-

tional protection is preserved to the prisoner in the advantage he has

once had of seeing the witness face to face, and of subjecting him to the

ordeal of a cross-examination. This, the law says, he shall under no

circumstances be deprived of....”).

Crawford, 541 US at 54.

2011] P

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,J.

But technology has intruded and public policy con-

cerns have surfaced. In Maryland v Craig,

the United

States Supreme Court faced the question whether the

confrontation clause categorically prohibited a child

witness in a child abuse case from testifying against a

defendant at trial outside the defendant’s physical

presence, by one-way closed-circuit television. A major-

ity of the Court held that there was no such categorical

prohibition.

The majority adopted a two-pronged test

to determine if allowing a child witness’s testimony

outside the defendant’s physical presence by one-way

closed-circuit television in a sexual abuse case violated

the Confrontation Clause. The Court delineated four

elements of the Confrontation Clause: (1) physical

presence, (2) an oath, (3) cross-examination, and (4)

“observation of demeanor by the trier of fact.”

conjunction with these elements, the first prong of the

Craig test is whether there is a public policy or state

interest important enough to outweigh the defendant’s

constitutional right of confrontation.

And the second

prong is whether the procedure in question preserves

all the other elements of the Confrontation Clause.

Notably, Justice Scalia, joined by Justice Brennan,

Justice Marshall, and Justice Stevens, dissented.

Jus-

tice Scalia asserted that the rule that a “defendant

Maryland v Craig, 497 US 836, 840; 110 S Ct 3157; 111 L Ed 2d 666

(1990).

See id. at 844 (“We have never held, however, that the Confrontation

Clause guarantees criminal defendants the absolute right to a face-to-face

meeting with the witnesses against them at trial.”) and id. at 847 (“[W]e

have never insisted on an actual face-to-face encounter at trial in every

instance in which testimony is admitted against a defendant.”).

Id. at 846.

Id. at 851-852, 855.

Id.

Id. at 860-870 (Scalia, J., dissenting).

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should be confronted by the witnesses who appear at

trial is not a preference ‘reflected’ by the Confrontation

Clause; it is a constitutional right unqualifiedly guar-

anteed.”

Justice Scalia went on to say:

The Court today has applied “interest-balancing” analy-

sis where the text of the Constitution simply does not

permit it. We are not free to conduct a cost-benefit analysis

of clear and explicit constitutional guarantees, and then to

adjust their meaning to comport with our findings. The

Court has convincingly proved that the Maryland proce-

dure serves a valid interest, and gives the defendant

virtually everything the Confrontation Clause guarantees

(everything, that is, except confrontation). I am persuaded,

therefore, that the Maryland procedure is virtually consti-

tutional. Since it is not, however, actually constitutional I

would affirm the judgment of the Maryland Court of

Appeals reversing the judgment of conviction.

[

]

In our prior opinion in this case,

we noted that, like

the United States Supreme Court in Craig, this Court

has recognized that presenting testimony over closed-

circuit television does not violate the defendant’s right

of confrontation in two special circumstances.

analyzed a number of federal decisions and then went

on to adopt the Craig test:

Like the majority of federal courts that have examined

this issue, we adopt the Craig test to determine whether a

trial court infringes a defendant’s right of confrontation

when it allows witness testimony to be taken through

two-way, interactive video technology. The trial court must

hear evidence and make case-specific findings that the

Id. at 863.

Id. at 870.

People v Buie, 285 Mich App 401; 775 NW2d 817 (2009).

Id. at 409, citing People v Pesquera, 244 Mich App 305, 309; 625

NW2d 407 (2001), and People v Burton, 219 Mich App 278, 290-291; 556

NW2d 201 (1996).

2011] P

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,J.

procedure is necessary to further a public policy or state

interest important enough to outweigh the defendant’s

constitutional right of confrontation and that it preserves

all the other elements of the Confrontation Clause.

[

]

While I see considerable intellectual merit in Justice

Scalia’s absolutist view of the confrontation clause—

after all, the document does say, “In all criminal pros-

ecutions, the accused shall enjoy the right... to be

confronted with the witnesses against him”

—I believe

that our decision to adopt the Craig test in our prior

opinion was a prudential one, given the prior decisions

in Burton and Pesquera, and the precedent in Craig

itself.

I also find significant that the prosecution concedes

that in this case there was no public policy or state

interest in having the witnesses in question testify by

video. Therefore, despite the trial court’s conclusory

statements to the contrary, there is no basis on the

record on which we could ground a holding that there

was a public policy or state interest sufficiently impor-

tant to outweigh Buie’s constitutionally guaranteed

right of confrontation. Further, although Buie’s counsel

may have consented to the video procedure pursuant to

MCR 6.006(C)(2), she did so over Buie’s express objec-

tion. Manifestly, then, it was plain error to permit the

two witnesses in question to testify using the video

procedure.

I fully recognize that the crimes in question here—

criminal sexual conduct involving a victim under the

age of 13,

three counts of criminal sexual conduct

involving the use of a weapon,

and one count of

Id. at 415.

US Const, Am VI (emphasis added).

MCL 750.520b(1)(a).

MCL 750.520b(1)(e).

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possession of a firearm during the commission of a

felony

—are heinous ones. I further recognize that

there was substantial evidence of Buie’s guilt in this

matter and that the video testimony of the two wit-

nesses in question was crucial to establishing that guilt.

And I finally recognize that others may assert that we

base our decision to vacate Buie’s convictions and

sentence upon “technicalities.”

But, while it is true that the Constitution is not a

suicide pact,

it is also not a wish list. Nor can we

modify it in lockstep with evolving technology. The

words in our most fundamental formative documents

have continuing meaning and it is our responsibility as

members of the judiciary to ensure that such meaning

has effective life. The web of protection that we have

woven around those whom the state accuses, or may

accuse, of crimes is at the center of our system of

justice. It is one of the safeguards that distinguish that

system from those despotic and tyrannical regimes in

which political prosecutions and governmentally or-

chestrated sham trials are commonplace. A criminal

defendant’s right to confront witnesses face to face and

to subject such witnesses to the test of cross-

examination is not a technicality, it is crucial protection

that has been with us almost from the very beginning of

our republic. It may be waived, as MCR 6.006(C)(2)

provides, but it cannot be judicially abrogated. Ra-

leigh’s ghost haunted the Framers and he haunts us

still, to our great benefit.

MCL 750.227b.

See Terminiello v Chicago, 337 US 1, 37; 69 S Ct 894; 93 L Ed 1131

(1949) (Vinson, J., dissenting).

2011] P

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,J.

KAR v NANDA

Docket No. 292754. Submitted November 4, 2010, at Lansing. Decided

January 13, 2011, at 9:00 a.m.

Anshuman Kar filed suit for a divorce from Sunaina Nanda in the

Washtenaw Circuit Court. Defendant moved for dismissal, arguing

that the court lacked subject-matter jurisdiction because neither

party had resided in Michigan for 180 days immediately preceding

the filing of the complaint, as required by MCL 552.9(1). Plaintiff

traveled for work and did not live in any area of the country for

long. Defendant lived in Ann Arbor at the time plaintiff filed for

divorce, but was a citizen of India and she intended to return there

when she finished graduate school. Her temporary student visa

was to expire on April 20, 2012. The court, Nancy C. Francis, J.,

held that it had jurisdiction because defendant had resided in

Michigan for the required 180 days and the statute did not contain

a requirement that she intend to maintain future residency in

Michigan. Defendant appealed.

The Court of Appeals held:

Although the ordinary, common meaning of the term “reside”

does not require an intent to remain permanently or indefinitely,

“resided,” as used in MCL 552.9(1), is interpreted as “residence”

and defined as “a place of abode accompanied with the intention to

remain.” “Intention to remain” does not mean a commitment to

stay permanently or indefinitely, but only that a person reside in

an area permanently enough to have legal relations and responsi-

bilities. Because defendant lived in Michigan for years before the

suit was filed, intended to remain until her studies were complete,

and consistently held long-term leases for housing while she lived

in the state, she resided in Michigan for the requisite period under

MCL 552.9(1), and the trial court had jurisdiction over the parties’

divorce.

Affirmed.

IVORCE —

URISDICTION —

ESIDENCY —

NTENTION TO

EMAIN

“Resided,” as used in MCL 552.9(1), is interpreted as “residence”

and defined as “a place of abode accompanied with the intention to

remain”; “intention to remain” does not mean a commitment to

284 291 M

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284 [Jan

stay permanently or indefinitely, but only that a person reside in

an area permanently enough to have legal relations and responsi-

bilities.

Law Offices of Blake P. Lipman (by Blake P. Lipman)

for plaintiff.

The Law Firm of John F. Schaefer (by B. Andrew

Rifkin) for defendant.

Before: S

AWYER

,P.J., and F

ITZGERALD

and S

AAD

,JJ.

AAD

, J. In this divorce action, defendant Sunaina

Nanda appeals an order that denied defendant’s motion

to dismiss for lack of subject-matter jurisdiction. For

the reasons set forth below, we affirm.

I. FACTS AND PROCEEDINGS

Defendant maintains that the circuit court lacks

subject-matter jurisdiction because, pursuant to MCL

552.9(1), a court “shall not” grant a judgment of divorce

unless the complainant or defendant “has resided in

this state for 180 days immediately preceding the filing

of the complaint,” and according to defendant, neither

party meets this residency requirement. The record

reflects that plaintiff and defendant are both citizens of

India and they married there in 2007. In 2009, while

living in Atlanta, Georgia, plaintiff filed the complaint

for divorce in Washtenaw County. Plaintiff travels for

work and does not live in any area of the country for

long. Defendant lived in Ann Arbor when plaintiff filed

for divorce, but she denies that she is a “resident” of

Ann Arbor because she plans to return to India when

she finishes graduate school at the University of Michi-

gan. Defendant’s temporary student visa expires on

April 30, 2012.

2011] K

AR V

ANDA

285

The trial court ruled that it has jurisdiction over the

divorce action pursuant to MCL 552.9(1) because defen-

dant lived in Michigan for the required 180 days. The

court opined:

Here, the critical term is “resided,” rather than “resi-

dent” or [“]residence.” It is retrospective. The statute does

not contain any requirement of intent to maintain resi-

dency in the future. It merely requires that one or the other

party must have “resided” (past tense) in Michigan for 180

days, and in the county, for 10 days, prior to any filing for

divorce in any Michigan county.

The trial court cited Kubiak v Steen, 51 Mich App 408;

215 NW2d 195 (1974), in which this Court interpreted a

venue provision in the Child Custody Act, and observed

that our courts have construed the term “reside” in

both a technical, legal sense of a legal domicile, as well

as a commonly understood sense of mere physical

presence or place of abode. The court concluded that it

would be contrary to the intent of the Legislature to

apply a narrow, technical interpretation of the term

when the statute itself gives no indication that it was

intended to preclude those who have lived in Michigan

for 180 days from seeking a divorce in this state.

II. ANALYSIS

The question whether a court has subject-matter

jurisdiction is a question of law that we review de novo.

Atchison v Atchison, 256 Mich App 531, 534; 664 NW2d

249 (2003). Issues of statutory construction are also

questions of law that are reviewed de novo. Id. at

534-535. Whether the requirements of MCL 552.9(1)

have been satisfied is a question of fact. Berger v Berger,

277 Mich App 700, 702; 747 NW2d 336 (2008). Ques-

tions of domicile and intent are also questions of fact.

Leader v Leader, 73 Mich App 276, 283; 251 NW2d 288

286 291 M

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284 [Jan

(1977). We review factual findings for clear error.

Berger, 277 Mich App at 702. “A finding is clearly

erroneous if, on all the evidence, the Court is left with

the definite and firm conviction that a mistake has been

made.” Id.

The relevant text of MCL 552.9(1) provides:

A judgment of divorce shall not be granted by a court in

this state in an action for divorce unless the complainant or

defendant has resided in this state for 180 days immedi-

ately preceding the filing of the complaint and... the

complainant or defendant has resided in the county in

which the complaint is filed for 10 days immediately

preceding the filing of the complaint.

The statutory residency requirements are jurisdic-

tional, and a divorce is void if it does not comply with

the residency requirements. Stamadianos v Stamadi-

anos, 425 Mich 1, 3, 6; 385 NW2d 604 (1986).

Plaintiff argues the statute requires a complainant or

defendant in a divorce action to simply facially comply

with the statute, by being physically present in the state

for 180 days before filing for divorce. Defendant main-

tains the statute requires a party not only to have been

physically present in the state for 180 days but also to

satisfy the legal definition of residence, which, by her

interpretation, requires an intent to remain perma-

nently or indefinitely in the state.

The meaning of “resided” as used in MCL 552.9(1) is

an issue of statutory interpretation. This Court con-

strues statutes in order to give effect to the Legisla-

ture’s intent. Briggs Tax Serv, LLC v Detroit Pub Sch,

485 Mich 69, 76; 780 NW2d 753 (2010). This Court gives

“the words of a statute their plain, ordinary meaning.”

Bukowski v Detroit, 478 Mich 268, 274; 732 NW2d 75

(2007). See also MCL 8.3a. However, “technical words

and phrases, and such as may have acquired a peculiar

2011] K

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and appropriate meaning in the law, shall be construed

and understood according to such peculiar and appro-

priate meaning.” MCL 8.3a. When a term is undefined

by a statute, this Court may look to dictionary defini-

tions to aid its interpretation. Oakland Co Rd Comm’rs

v Mich Prop & Cas Guaranty Ass’n, 456 Mich 590, 604;

575 NW2d 751 (1998).

MCL 552.9 does not define the word “resided.”

Random House Webster’s College Dictionary (1997)

contains the following definition of “reside”: “[T]o

dwell permanently or for some time; live.” It defines

“residence” as “the place...inwhich a person lives or

resides; dwelling place; home.” Id. Though the dictio-

nary uses the word “permanently” in its definition of

“reside,” it qualifies it by also saying “or for some time.”

Further, the dictionary’s definition of “residence” does

not imply any requirement of intent to remain. There-

fore, the ordinary, common meaning of the term “re-

side” does not require an intent to remain permanently

or indefinitely. However, this Court ruled in Leader that

“[d]omicile and residence in Michigan are synonymous

terms” and that both require an intent to remain.

Leader, 73 Mich App at 280; Berger, 277 Mich App at

703.

In Wright v Genesee Circuit Judge, 117 Mich 244; 75

NW 465 (1898), our Supreme Court interpreted an

early version of MCL 552.9(1) that read: “a divorce from

the bonds of matrimony may be decreed by the circuit

court of the county where the parties, or one of them,

reside.” Id. at 245 (quotation marks and citation omit-

ted). In interpreting the word “reside,” the Wright

Court defined the word “residence”: “Residence means

the place where one resides; an abode; a dwelling or

habitation; especially, a settled or permanent home or

domicile. Residence is made up of fact and intention.

288 291 M

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284 [Jan

There must be the fact of abode, and the intention of

remaining.” Wright, 117 Mich at 245. Thus, the Court

in Wright held that “residence” requires both physical

presence and an intention to remain, though the Court

did not define how long a person must intend to remain

to fulfill the residence requirement.

Importantly, the early statute as interpreted in

Wright used the present tense “reside,” while the

current statute uses the present perfect tense, “has

resided.” Bush v Shabahang, 484 Mich 156, 167; 772

NW2d 272 (2009) (“[C]ourts must pay particular atten-

tion to statutory amendments, because a change in

statutory language is presumed to reflect either a

legislative change in the meaning of the statute itself or

a desire to clarify the correct interpretation of the

original statute.”). Notwithstanding this change, since

the Wright decision, our courts have regularly substi-

tuted the word “residence” for “resided.” See, e.g.,

Berger, 277 Mich App at 702-704; Smith v Smith, 218

Mich App 727, 730; 555 NW2d 271 (1996). For example,

in Leader, this Court quoted MCL 552.9(1) as providing

a “judgment of divorce shall not be granted [. . .] unless

the complainant or defendant has resided in this state

for 180 days immediately preceding the filing of the

complaint.” Leader, 73 Mich App at 277. The Court

then proceeded to interpret the meaning of the statute,

stating: “Residence in Michigan is defined as a place of

abode accompanied with the intention to remain.” Id. at

280. See also Berger, 277 Mich App at 702-704 (explain-

ing the jurisdictional requirement as “residence”);

Smith, 218 Mich App at 730 (defining the word “resi-

dence” to explain the meaning of the term “resided” in

the statute and stating “[w]hen used in statutes confer-

ring jurisdiction, residence is interpreted to mean legal

residence or domicile.”). Therefore, while the word at

2011] K

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issue is “resided,” this Court has used the term “resi-

dence” to discuss its meaning under MCL 552.9(1).

Because our Court has equated “resided” with resi-

dence and domicile, both of which require an intent to

remain, we must consider the meaning of “intent to

remain.” Leader, 73 Mich App at 280. In Smith, 218 Mich

App at 730, this Court stated, “The issue of legal residency

is principally one of intent.” In Berger, the defendant

argued that the plaintiff did not meet the jurisdictional

10-day county residency requirement because she was not

physically present in the county for all 10 days before

filing for divorce. Berger, 277 Mich App at 702. This Court

adopted the Leader analysis and held that the residency

requirement was satisfied, stating, “We do not agree with

defendant’s argument that MCL 552.9(1) requires plain-

tiff’s continuing physical presence in Jackson County for

the 10 days immediately preceding filing for divorce.” Id.

at 703. The Berger Court cited Leader’s definition of

“resided” and noted the case establishes “two important

principles”—that intent is the preeminent factor for de-

termining residence and also that an already established

domicile is not destroyed by a temporary absence when

there is no intention to change domicile. Id. at 703-704.

The Court in Leader did not define the word “intent”

or explain the specific kind of intent that is required to

meet the “resided” requirement of MCL 552.9(1). It

merely stated there must be an “intention to remain.”

Leader, 73 Mich App at 280. The Leader Court ruled

that, under its facts, jurisdiction in Michigan was

proper despite the plaintiff’s four-month absence from

the state. The plaintiff in Leader traveled to Kentucky,

where her husband was living, to attempt a reconcilia-

tion. Id. at 278. However, the plaintiff doubted a recon-

ciliation would be possible, and after two weeks she

290 291 M

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284 [Jan

knew she wanted a divorce. Id. The plaintiff remained

in Kentucky for four months only because she did not

want to leave her children. Id. This Court ruled that the

plaintiff never intended to make Kentucky her place of

residence because, when she moved there, she expected

to return to Michigan. Id. at 283. The Leader Court

concluded that the intent required for jurisdiction un-

der MCL 552.9(1) is an intent to make a place his or her

residence, defined as “a place of abode accompanied

with the intention to remain.” Id. at 280.

Though our caselaw holds that intent is a key factor

under MCL 552.9(1), we disagree with defendant’s

position that “intention to remain” requires that a

party intend to remain “permanently or indefinitely,”

and our courts have never so held. To the contrary, for

several reasons, we interpret “intention to remain” to

mean something less than a commitment to stay per-

manently or indefinitely. Though, again, intent is a

consideration for jurisdiction under MCL 552.9(1), the

Legislature’s use of the present perfect tense “has

resided” cannot be ignored. The use of the term “re-

sided” shows the Legislature did not intend to base a

jurisdictional finding on conduct after the filing of the

action for divorce. Indeed, the cases that define “re-

sided” focus on the party’s intent and conduct at and

prior to the time of filing. See, e.g., L eader,73Mich

App at 283; Berger, 277 Mich App at 702-704. Fur-

ther, the Legislature’s use of the term “resided” must

be considered intentional and it is well-settled that

the Legislature is presumed to mean what it says in a

statute. Detroit v Dep’t of Social Servs, 197 Mich App

146, 157; 494 NW2d 805 (1992). It is also axiomatic

that courts “ ‘may not read into the statute what is

not within the Legislature’s intent as derived from

the language of the statute.’ ” Robinson v City of

Lansing, 486 Mich 1, 15; 782 NW2d 171 (2010),

2011] K

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quoting AFSCME v Detroit, 468 Mich 388, 400; 662

NW2d 695 (2003). Thus, we decline to read language

or requirements into the statute to require a continu-

ing intention to remain permanently in the state

when it is not manifest within the language used by

the Legislature.

We further hold that policy considerations favor a

reading of MCL 552.9(1) that confers jurisdiction in this

case. If we adopted defendant’s interpretation of “in-

tent to remain,” jurisdiction would be lacking when a

person clearly lives in Michigan and has been physically

present, as here, well beyond the statutory time period

but some evidence suggests that he or she plans to move

at some point in the future. And, if jurisdiction can be

defeated on the basis of a mere intent to eventually

leave, many people who currently live in Michigan will

lack a forum to litigate disputes. This case is but one

example: If the trial court here does not have jurisdic-

tion over the parties’ divorce, then there is no court

anywhere in the United States that has jurisdiction.

Thus, the parties will be unable to obtain a divorce in

the United States despite the fact that both parties

currently live in the United States, defendant intends to

remain in the United States for at least another two

years, and plaintiff plans to permanently reside here.

Moreover, because the Court in Kubiak interpreted

“reside” in accordance with its popular meaning, which

requires only physical presence, it would cause further

jurisdictional complications to interpret Leader and its

progeny to require a permanent or indefinite intent to

remain. If Leader is interpreted as defendant advocates,

a court could have jurisdiction over a child custody

dispute under Kubiak, but the same court would not

have jurisdiction to grant a divorce. It would be both

nonsensical and a waste of judicial resources for the

292 291 M

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284 [Jan

same court to lack the ability to adjudicate all matters

relating to the division of a family.

Defendant suggests that a divorce ruling in Washtenaw

County could be collaterally attacked pursuant to Wil-

liams v North Carolina, 325 US 226, 236; 65 S Ct 1092;

89 L Ed 1577 (1945). In Williams, the United States

Supreme Court ruled that “one State can grant a

divorce of validity in other States only if the applicant

has a bona fide domicil in the State of the court

purporting to dissolve a prior legal marriage.” Id.at

238. Our holding that the term “resided” in MCL

552.9(1) does not require an intent to remain perma-

nently and indefinitely is compatible with Williams,

which defines “domicile” as “a nexus between person

and place of such permanence as to control the creation

of legal relations and responsibilities of the utmost

significance.” 325 US at 229. Even without a perma-

nent or indefinite plan to stay in a particular state or

county, a stay of some duration certainly meets the

definition of “such permanence as to control the cre-

ation of legal relations and responsibilities of the ut-

most significance.” As discussed, MCL 552.9(1) requires

a person to have “resided,” and “resided” requires

physical presence plus an “intention to remain.”

Leader, 73 Mich App at 280-281. A person who is

physically present and intending to remain in an area

likely owns property or has a lease for housing, either of

which undoubtedly creates “legal relations and respon-

sibilities of the utmost significance.” Id. at 281; Will-

iams, 325 US at 229. The Williams definition suggests

that if a person is in an area permanently enough to

have legal relations and responsibilities, then the per-

son is domiciled in that area. Here, defendant has

consistently held long-term leases for housing and has

arguably established other legal relations while living in

this state for several years.

2011] K

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For the above reasons, though our courts have held

that the “resided” requirement in MCL 552.9(1) consti-

tutes “a place of abode accompanied with the intention

to remain,” Leader, 73 Mich App at 280, it does not

require an intention to remain permanently and indefi-

nitely. Accordingly, though defendant intends to leave

the state once her studies are completed in 2012, there

is no dispute that she lived in Michigan for years before

the divorce complaint was filed, far longer than the

180-day statutory requirement, and, when the action

was filed, she intended to remain in the state for several

more years. Defendant clearly “resided” in this state for

the requisite period under MCL 552.9(1), and the trial

court correctly ruled that it has jurisdiction over the

parties’ divorce.

Affirmed.

294 291 M

ICH

284 [Jan

GRIESBACH v ROSS (ON REMAND)

Docket No. 275826. Submitted July 6, 2010, at Lansing. Decided Novem-

ber 23, 2010. Approved for publication January 13, 2011, at 9:05

a.m.

Patrick Griesbach, a minor, by his next friend Sara Griesbach, and

Timothy Griesbach brought a medical-malpractice action in the

Oakland Circuit Court against Frank L. Fenton, D.O., and Walled

Lake Medical Center, P.C. The alleged malpractice occurred in July

2002. Plaintiffs filed their notice of intent to file a claim on April

29, 2004, and filed their complaint on October 28, 2004. On

January 26, 2005, defendants Fenton and Walled Lake Medical

Center filed a notice of nonparty at fault, identifying Robert R.

Ross, a certified physician assistant. On April 29, 2005, plaintiffs

filed an amended complaint, adding Ross as a defendant. Plaintiffs

stipulated to dismiss Fenton and Walled Lake Medical Center and

proceeded against Ross. Following a jury verdict in favor of

plaintiffs, the trial court, Denise Langford Morris, J., entered a

judgment in favor of plaintiffs. Ross moved for judgment notwith-

standing the verdict, arguing that the claims against him were

barred by the statute of limitations, and the trial court denied that

motion. Ross appealed. The Court of Appeals, K. F. K

ELLY

,P.J., and

WENS

and S

CHUETTE

, JJ., held in an unpublished opinion per

curiam, issued May 22, 2008 (Docket No. 275826), that the

amended complaint, by which Ross was added as a defendant, was

not timely filed within the applicable two-year limitation period.

On February 17, 2010, the Supreme Court, in lieu of granting leave

to appeal, vacated the judgment of the Court of Appeals and

remanded the case to the circuit court for reconsideration in light

of Bush v Shabahang , 484 Mich 156 (2009), and Potter v McLeary,

484 Mich 397 (2009). 485 Mich 1095 (2010). The Supreme Court

then granted a motion for reconsideration, vacated its February

17, 2010, order, and, on reconsideration, in lieu of granting leave to

appeal, vacated the judgment of the Court of Appeals and re-

manded the matter to the Court of Appeals for reconsideration in

light of Bush and Potter. 486 Mich 933 (2010).

On remand, the Court of Appeals held:

2011] G

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) 295

1. The Bush case is distinguishable from this case and its

analysis is inapplicable to this case. Here, the notice of intent was

defective, not because of an alleged omission of required allega-

tions in the notice like in Bush, but because it did not name Ross

as a party. The complete failure to serve Ross cannot be considered

a mere defect that is subject to cure under MCL 600.2301. The

Bush opinion affords no relief to plaintiffs.

2. The Potter decision is irrelevant to this case, which does not

involve the questions presented in Potter. Potter does not compel a

finding that the notice of intent sent to defendants Fenton and

Walled Lake Medical Center tolled the statute of limitation with

respect to defendant Ross, who was not named in that notice of

intent. The trial court erred by denying the motion for judgment

notwithstanding the verdict by defendant Ross.

Reversed.

Sommers Schwartz, P.C. (by Danielle C. Schoeny),

and Gasiorek Morgan & Greco, P.C. (by Paul W. Hines),

for Patrick and Timothy Griesbach.

Collins, Einhorn, Farrell & Ulanoff, P.C. (by Noreen

L. Slank), for Robert R. Ross, P.A.-C.

ON REMAND

Before: K. F. K

ELLY

,P.J., and B

ANDSTRA

and O

WENS

,JJ.

URIAM

. This medical-malpractice case returns

to this Court on remand from the Michigan Supreme

Court with directions that we reconsider the appeal of

defendant R obert R. R oss, in light of Bush v Shaba-

hang, 484 Mich 156; 772 NW2d 272 (2009), and Potter

v McL eary, 484 Mich 397; 774 NW2d 1 (2009). See

Griesbach v Ross, 486 Mich 933 (2010).

In the

Our Supreme Court initially vacated our prior opinion and remanded

to the circuit court for reconsideration in light of Bush and Potter.See

Griesbach v Ross, 485 Mich 1095 (2010). However, it subsequently

vacated that order and, after again vacating our prior opinion, remanded

the case to this Court, directing this Court to reconsider the issue.

Griesbach, 486 Mich 933.

296 291 M

ICH

295 [Jan

original appeal, defendant Ross, a certified physician

assistant, sought relief from an adverse jury verdict. We

held that an amended complaint, by which Ross was

added as a defendant, was not timely filed within the

applicable period of limitations. Griesbach v Ross, un-

published opinion per curiam of the Court of Appeals,

issued May 22, 2008 (Docket No. 275826) (hereinafter

Griesbach I). For the reasons set forth in this opinion,

we again reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts of this case were summarized in

this Court’s original opinion:

On July 2, 2002,...Sara Griesbach took her 13-year-old

son, [plaintiff] Patrick Griesbach, to see Ross at defendant

Walled Lake Medical Center, P.C. (“Walled Lake”). Patrick

complained of pain in his right leg. R oss ordered an x-ray,

urinalysis, and blood tests, diagnosed a pulled muscle, and

prescribed Tylenols or ibuprofen. During the night,

Patrick’s pain increased, and Sara took Patrick to see Ross

on July 3, 2002. Patrick again complained of leg pain. Ross

did not know why Patrick was experiencing such pain, and

he diagnosed a severely pulled muscle and prescribed

Tylenols with codeine. Ross also ordered a deep vein

thrombosis test, the result of which was normal. Ross told

Sara that the results of the blood tests were all normal,

although Patrick’s sedimentation rate was elevated, which

is an indicator of inflammation. Defendant, Dr. Frank L.

Fenton, D.O., a board-certified family practice physician,

supervised Ross at Walled Lake. Fenton was not at Walled

Lake during either of these visits, and although he was

available by telephone or pager, Ross did not contact him.

Ross did not suggest taking Patrick to the emergency room

or consulting a specialist.

After seeing Ross on July 3, 2002, the Griesbachs went

on a previously scheduled trip, and the pain medication

helped Patrick at first. However, on July 5, the pain in-

creased and Patrick began vomiting. On July 6, Patrick was

2011] G

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) 297

in “tremendous pain”, and the Griesbachs returned to

Michigan and took Patrick to the emergency room. Patrick

was initially diagnosed with juvenile rheumatoid arthritis,

but he was ultimately diagnosed with osteomyelitis, an

infection in the bone. Patrick suffered from necrosis of the

head of his femur and irreversible destruction of the

cartilage in his hip, requiring surgery. [Greisbach I, unpub

op at 1-2.]

There is no dispute that plaintiffs’ complaint was

timely filed with regard to defendants Fenton and

Walled Lake. The alleged malpractice occurred on July

2 or 3 in 2002 and the limitations period would there-

fore expire on July 3, 2004. See MCL 600.5805(6)

(setting a two-year limitations period for medical-

malpractice claims). On April 29, 2004, plaintiffs filed

their notice of intent (NOI) to file a claim, but only with

regard to defendants Fenton and Walled Lake, and on

October 28, 2004, 182 days later, they filed their com-

plaint, again only with regard to defendants Fenton and

Walled Lake. See MCL 600.2912b(1).

And, because

plaintiffs filed an NOI within the limitations period, the

statute of limitations was tolled, see MCL 600.5856(c),

and their complaint was not barred by the July 2, 2004,

limitations date.

Subsequently, on January 26, 2005, defendants Fen-

ton and Walled Lake filed a notice of nonparty at fault

pursuant to MCR 2.112(K), identifying Ross. On April

29, 2005, plaintiffs filed an amended complaint, adding

Ross as a defendant. Given the two-year period of

limitations, the complaint regarding defendant Ross

MCL 600.2912b(1), provides, in pertinent part:

Except as otherwise provided in this section, a person shall not

commence an action alleging medical malpractice against a health

professional or health facility unless the person has given the

health professional or health facility written notice under this

section not less than 182 days before the action is commenced.

298 291 M

ICH

295 [Jan

was filed outside that period. However, MCL

600.2957(2) provides that a cause of action filed after a

nonparty at fault is identified will not be barred by the

applicable limitations period unless it would have been

barred at the time the initial complaint was filed.

Therefore, the issue presented in Griesbach I was

whether plaintiffs’ cause of action against defendant

Ross would have been barred on October 28, 2004,

when they filed their initial complaint against defen-

dants Fenton and Walled Lake. This Court held that the

claim against defendant Ross was barred when the

October 28, 2004, complaint was filed because the NOI

pertaining to defendants Fenton and Walled Lake did

not toll the limitations period with respect to defendant

Ross. We now consider the same question again, in light

of Bush and Potter pursuant to our Supreme Court’s

remand order.

II. BUSH v SHABAHANG

In Bush, 484 Mich 156, the NOI did not meet the

content requirements of MCL 600.2912b(4), i.e., the

provision detailing what information an NOI must

include. However, the Bush Court held that a timely

filed NOI, even if defective under § 2912b, tolls the

statute of limitations under § 5856(c), as amended by

2004 PA 87. Bush, 484 Mich at 170. The Court noted

that § 2912b(1) focused on the timing of the notice, not

on the absence of defects, and concluded that the

Legislature never intended to bar an action on the basis

of defects in the NOI. Bush, 484 Mich at 173. The Court

held that defective NOIs could be cured pursuant to

In Driver v Naini, 287 Mich App 339, 352; 788 NW2d 848 (2010), this

Court concluded that the NOI statute, MCL 600.2912b, controlled over

the nonparty-at-fault statute, MCL 600.2957(2), so that the time require-

ments for filing a complaint set forth in the NOI statute control.

2011] G

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EMAND

) 299

MCL 600.2301, stating: “[T]he applicability of § 2301

rests on a two-pronged test: first, whether a substantial

right of a party is implicated and, second, whether a

cure is in the furtherance of justice. If both of these

prongs are satisfied, a cure will be allowed ‘on such

terms as are just.’ ” Bush, 484 Mich at 177-178, quoting

MCL 600.2301. The Court reasoned that because a

health-care professional would be able to evaluate a

claim, despite defects in the NOI, his or her substantial

rights would not be implicated. See Bush, 484 Mich at

178. Further, it found that a cure would be in the

furtherance of justice because, under the factual cir-

cumstances, the plaintiff had made a good-faith attempt

to comply with the content requirements of § 2912b(4).

Bush, 484 Mich at 178. In other words, a trial court

should only consider a dismissal based on a defective

NOI if the defect affected a party’s substantial rights

and the plaintiff has not made a good-faith attempt to

comply with the content requirements. Id.

In our view, Bush is distinguishable from the present

case and, consequently, its analysis is simply inappli-

cable. Here, the NOI was not defective because of an

omission of required allegations; rather, it was fatally

deficient because it did not name a party. Unlike the

defendants in Bush, the substantial rights of defendant

Ross, a health-care professional, were implicated. De-

fendant Ross was never in a position to evaluate the

claim against him, unlike the defendants in Bush,

because he never received timely notice of a claim

pending against him. Thus, the complete failure to

serve defendant Ross with an NOI cannot be considered

a mere defect, subject to cure. This Court articulated

this same rationale when it recently held that Bush did

not control where a complete failure to serve an NOI

occurs:

300 291 M

ICH

295 [Jan

Bush dealt with a situation in which there were defects

in a notice of intent, not a situation in which a party was

completely left out of a notice of intent (received no notice

whatsoever). Bush, 484 Mich at 160-161. Therefore, Bush

is distinguishable. The first (and only relevant) issue in

Bush was whether defects in a notice of intent would

preclude tolling of the statute of limitations under MCL

600.5856. The Court held that defects in the notice of

intent did not preclude notice tolling, because defects in the

notice of intent can be addressed under MCL 600.2301,

which allows for amendment and disregard of “any error or

defect,” where the substantial rights of the parties are not

affected, and the cure is in furtherance of justice. Bush, 484

Mich at 161. We hold that plaintiffs’ failure to give any

notice whatsoever to CCA in the original notice of intent

cannot be considered a mere defect in the notice, subject to

cure, and also that the substantial rights of CCA would be

affected (indeed, CCA, though a corporate person, has a

due process right to notice). We also hold that such a

drastic “cure” (adding a new party) would not be in the

furtherance of justice (if plaintiffs could obtain tolling for a

claim against CCA, though no notice whatsoever was

provided to CCA in the original notice of intent). See id.

Therefore, Bush and MCL 600.2301 do not allow plaintiffs

to leave CCA out of the original notice of intent, toll the

statute of limitations as against CCA, and then “cure” the

“error or defect” by giving CCA an amended notice. [Driver

v Naini, 287 Mich App 339, 354-355; 788 NW2d 848 (2010)

(emphasis omitted).]

See also Griesbach, 485 Mich at 1095-1099 (Y

OUNG

,J.,

dissenting).

Here, there was a complete failure to serve defendant

Ross an NOI. Thus, Bush affords no relief to plaintiffs.

III. POTTER v McLEARY

In Potter, 484 Mich 397, the Michigan Supreme Court

addressed whether a professional corporation is entitled

to service of an NOI when the plaintiff alleges vicarious

2011] G

RIESBACH V

OSS

EMAND

) 301

liability for medical malpractice based on the conduct of

one of its health professionals. Id. at 413-414. It con-

cluded that such a professional corporation is entitled

to service of an NOI, id. at 419, and held that the notice

requirement of § 2912b does not require the plaintiff to

explain the relationship between the professional cor-

poration and its servants. Potter, 484 Mich at 420-421.

Given the issues at play in Potter, it is plain to us that

Potter is irrelevant to the present matter. This case

involves questions pertaining to the applicable notice

period under §§ 2912b and 2957(2); it does not involve

the questions present in Potter. See also Griesbach, 485

Mich at 1095-1099 (Y

OUNG

, J., dissenting). Accordingly,

Potter does not compel a finding that the NOI sent to

defendants Fenton and Walled Lake tolled the statute of

limitations with respect to defendant Ross.

The trial

court erred by denying the motion for judgment not-

withstanding the verdict by defendant Ross.

Reversed.

In Griesbach I, this Court did not reach the other arguments of

defendant Ross. Specifically, the Court did not address Ross’s challenges

to “the timeliness of plaintiffs’ amended complaint, the admission of

expert testimony, and the future damages award.” Griesbach I, unpub op

at 7. Given our resolution of this dispute on remand, we again find it

unnecessary to consider these issues.

302 291 M

ICH

295 [Jan

PECORARO v ROSTAGNO-WALLAT

Docket Nos. 293355 and 293445. Submitted August 6, 2010, at Detroit.

Decided January 18, 2011, at 9:00 a.m.

Anthony S. Pecoraro filed a complaint for paternity in the Wayne

Circuit Court against Gina Rostagno-Wallat, seeking to enforce an

order of filiation he had obtained in the state of New York that

named him as the biological father of a child born to Rostagno-

Wallat in 2002. The New York proceedings had taken place despite

the court’s inability to exercise jurisdiction over Rostagno-Wallat’s

husband, Jeffrey C. Wallat. In response to Pecoraro’s complaint,

Wallat, who had been Rostagno-Wallat’s husband since 1994, filed

a declaratory action in the same court against Pecoraro and

Rostagno-Wallat, seeking a determination that he was the legal

father of the child. The suits were consolidated and the parties

moved for summary disposition. The court, Richard B. Halloran,

Jr., concluded that the New York decision gave Pecoraro standing

to file a paternity suit and established his paternity of the child.

Wallat and Rostagno-Wallat appealed, and the appeals were con-

solidated.

The Court of Appeals held:

1. Under the Paternity Act, MCL 722.11 et seq., when a child is

born to a married woman, her husband is presumed to be the legal

father. A putative father of that child has standing to bring suit

only if the court has determined that the child is not the issue of

that marriage. Such a determination must be an affirmative

finding by the court regarding the child’s paternity in a prior legal

proceeding that settled the controversy between the mother and

the legal father. The New York action was not a proceeding

between R ostagno-Wallat, the mother, and Wallat, the legal father,

and it did not satisfy the Paternity Act’s requirements because it

did not settle the controversy between the mother and the legal

father. Therefore, the trial court erred in concluding that Pecoraro

had standing to file the suit.

2. Whether a putative father would be considered a natural or

biological parent under the Child Custody Act is irrelevant unless

he can first establish paternity under Michigan’s Paternity Act.

Without standing under the Paternity Act, the putative father

2011] P

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must be considered a nonparent under the Child Custody Act and

his child custody claim is barred.

3. Under the Full Faith and Credit Clause of the United States

Constitution, a foreign judgment is conclusive and must be recog-

nized if jurisdiction has been obtained over the parties and the

subject matter. However, the courts of this state are not obliged

under the federal Constitution to give a foreign judgment full faith

and credit where the issuing court lacked jurisdiction over the

subject matter or the parties, and a valid judgment affecting a

nonresident’s rights or interests may only be entered by a court

having personal jurisdiction over that defendant. The New York

court lacked personal jurisdiction over Wallat, a necessary party.

Wallat was not required to choose between submitting to the

jurisdiction of the New York court or placing his rights at risk, and

Rostagno-Wallat’s interest in the matter was not identical with

his. The court was not obliged to give the New York order of

filiation full faith and credit.

Reversed.

1. P

ARENT AND

HILD —

EGITIMACY

RESUMPTION —

EBUTTAL

Under the Paternity Act, when a child is born to a married woman,

her husband is presumed to be the legal father; a putative father

of that child has standing to bring suit only if the court has

determined that the child is not the issue of that marriage; such a

determination must be an affirmative finding by the court regard-

ing the child’s paternity in a prior legal proceeding that settled the

controversy between the mother and the legal father (MCL

722.711[a], MCL 722.714).

2. P

ARENT AND

HILD —

EGITIMACY

RESUMPTION —

EBUTTAL

Whether a putative father would be considered a natural or biologi-

cal parent under the Child Custody Act is irrelevant unless he can

first establish paternity under Michigan’s Paternity Act; without

standing under the Paternity Act, the putative father must be

considered a nonparent under the Child Custody Act, and his child

custody claim is barred.

3. C

ONSTITUTIONAL

AW —

ULL

AITH AND

REDIT

LAUSE —

OREIGN

UDG-

MENTS —

ERSONAL

URISDICTION

Under the Full Faith and Credit Clause of the United States

Constitution, a foreign judgment is conclusive and must be recog-

nized if jurisdiction has been obtained over the parties and the

subject matter; however, the courts of this state are not obliged

under the federal constitution to give a foreign judgment full faith

304 291 M

ICH

303 [Jan

and credit when the issuing court lacked jurisdiction over the

subject matter or the parties, and a valid judgment affecting a

nonresident’s rights or interests may only be entered by a court

having personal jurisdiction over that defendant (US Const, art IV,

§1).

Law Offices of Jeffery A. Cojocar, P.C. (by Jeffery A.

Cojocar), for Anthony S. Pecoraro.

Anne Argiroff and Mekel Miller for Gina Rostagno-

Wallat.

Judith A. Curtis and Kenneth E. Prather for Jeffrey

C. Wallat.

Before: G

LEICHER

,P.J., and Z

AHRA

and K. F. K

ELLY

,JJ.

AHRA

, J. In these consolidated appeals by leave

granted,

Jeffrey C. Wallat and his spouse, Gina

Rostagno-Wallat, (collectively referred to as “the Wal-

lats”) appeal an order issued by the Wayne Circuit

Court which, among other things, enforces an order of

filiation issued by a New York court. The order of

filiation declared Anthony Pecoraro to be the father of a

child conceived and born to Rostagno-Wallat during her

marriage to Wallat. On appeal, we must decide whether

Pecoraro has standing to bring suit to establish pater-

nity in Michigan. We must also consider whether the

Full Faith and Credit Clause of article IV, § 1 of the

United States Constitution requires us to give full force

and effect to the order of filiation entered by the New

York court.

In Michigan, a child conceived and born during a

marriage is legally presumed the legitimate child of that

marriage, and the mother’s husband is the child’s

Pecoraro v Rostagno-Wallat, unpublished order of the Court of Ap-

peals, entered January 11, 2010 (Docket Nos. 293355 and 293445).

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305

father as a matter of law. A third party may not rebut

this legal presumption unless there first exists a judicial

determination arising from a proceeding between the

husband and the wife that declares the child is not the

product of the marriage. Because there was no pater-

nity determination made in legal proceedings involving

Wallat and Rostagno-Wallat that established Wallat was

not the father of the child, we hold that Pecoraro lacks

standing to seek paternity under Michigan’s Paternity

Act. Further, because the New York court concluded

that it lacked personal jurisdiction over Wallat, a nec-

essary party to the paternity proceedings, we hold that

the Full Faith and Credit Clause of the United States

Constitution does not require us to give effect to the

New York order of filiation. We reverse the judgment of

the lower court and remand for entry of judgment

consistent with this opinion.

I. BASIC FACTS AND PROCEDURE

The Wallats have been married to each other since

June 4, 1994. At all times pertinent to this action, they

have resided in Michigan. Two children were conceived

and born during their marriage, one was born in 1999

and the other in 2002. The birth certificates of both

children identify Jeffrey Wallat as the father.

Rostagno-Wallat and Pecoraro attended law school

together in Lansing, Michigan. In June of 1997, their

relationship expanded beyond the study of law. An

intimate relationship between them continued on an

“on-and-off” basis after Pecoraro graduated from law

school in 1998 and returned to his home in Buffalo, New

York. Rostagno-Wallat informed Pecoraro that he was

the biological father of the child born in 2002 (through-

out the remainder of this opinion, the child born in 2002

is referred to as “the child”). Deoxyribonucleic acid

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(DNA) testing performed in 2002 confirmed that Pec-

oraro was the biological father of the child. In April

2005, Rostagno-Wallat and Pecoraro permanently

ceased their relationship and litigation commenced

shortly thereafter.

A. PECORARO’S PATERNITY ACTION IN NEW YORK

In June 2005, Pecoraro filed a paternity petition

against Rostagno-Wallat in New York, seeking an order

of filiation establishing himself as the father of the

child. Rostagno-Wallat moved to dismiss the paternity

action for lack of personal jurisdiction, as neither she

nor the child ever had resided in New York. Rostagno-

Wallat also argued that dismissal was required because

Pecoraro failed to name a necessary party—her hus-

band, Jeffrey Wallat, who also was not subject to the

jurisdiction of New York.

Finally, Rostagno-Wallat ar-

gued that paternity was already established by opera-

tion of Michigan law, which presumes that, absent a

prior judicial determination to the contrary, all children

born of a marriage are the product of the marriage.

Girard v Wagenmaker, 437 Mich 231, 242-244; 470

NW2d 372 (1991); MCL 722.711(a); MCR 3.903(7).

The New York court denied Rostagno- Wallat’s motion

to dismiss the paternity petition. The New York court

found that it had jurisdiction over Rostagno-Wallat under

NY Fam Ct Act § 580-201(6), because she engaged in

sexual intercourse in New York and the child may have

been conceived by that act. Thereafter, Pecoraro appar-

ently amended his petition to name Wallat as a defendant.

New York’s Civil Practice Law and Rules, CPLR 1001(a), defines

necessary parties as “[p]ersons who ought to be parties if complete relief

is to be accorded between the persons who are parties to the action or who

might be inequitably affected by a judgment in the action shall be made

plaintiffs or defendants.”

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Wallat made a special appearance in the New York

court to contest the court’s jurisdiction over him. Wallat

argued the paternity action had to be dismissed because

he was a necessary party to the establishment of

paternity and he could not be compelled to litigate in

New York because New York did not have personal

jurisdiction over him. Wallat, like Rostagno-Wallat, ar-

gued that the paternity of the child was established

pursuant to Michigan law.

The New York court conceded that Wallat was a

necessary party to the paternity action and that it did

not have any basis to exercise personal jurisdiction over

Wallat. The New York court also acknowledged that

under Michigan law, paternity was established in Wal-

lat, since he was the spouse of Rostagno-Wallat at the

time of conception. Nonetheless, the New York court

found that under New York’s Civil Practice Law and

Rules, CPLR 1001(b), dismissal of the paternity action

was not required. This rule provides, in pertinent part,

that “[i]f jurisdiction over [a necessary party] can be

obtained only by his consent or appearance, the court,

when justice requires, may allow the action to proceed

without his being made a party.”

The New York court

held that justice required that Pecoraro be permitted to

CPLR 1001(b) provides in full:

When joinder excused. When a person who should be joined

under subdivision (a) has not been made a party and is subject to

the jurisdiction of the court, the court shall order him summoned.

If jurisdiction over him can be obtained only by his consent or

appearance, the court, when justice requires, may allow the action

to proceed without his being made a party. In determining whether

to allow the action to proceed, the court shall consider:

1. whether the plaintiff has another effective remedy in case

the action is dismissed on account of the nonjoinder;

2. the prejudice which may accrue from the nonjoinder to the

defendant or to the person not joined;

308 291 M

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proceed with the matter even though the court could

not obtain jurisdiction over Wallat. Wallat’s motion to

dismiss for lack of personal jurisdiction was denied.

A trial was held on the issue of paternity. R ostagno-

Wallat did not attend the trial and presented no

proofs. In April 2007, the New York court issued a

decision and order that held R ostagno-Wallat was

estopped from denying that Pecoraro was the father

of the child. The New York court granted Pecoraro’s

petition to establish paternity and issued an order of

filiation declaring him the father of the child. There-

after, the New York court dismissed Pecoraro’s claim

against Wallat for lack of personal jurisdiction. The

Supreme Court of the State of New York, Appellate

Division, Fourth Judicial Department, subsequently

affirmed this order on June 6, 2008, Docket No. CAF

08-00128.

3. whether and by whom prejudice might have been avoided or

may in the future be avoided;

4. the feasibility of a protective provision by order of the court

or in the judgment; and

5. whether an effective judgment may be rendered in the

absence of the person who is not joined.

New York’s CPLR 1001(b) provides that, under limited circum-

stances, litigation may proceed without a necessary party over whom the

court lacks jurisdiction. We question whether this court rule comports

with the minimum requirements of due process. This aside, the rule does

not in any way purport to establish a basis for personal jurisdiction over

the necessary party where none exists. Thus, it is puzzling that the New

York court did grant in part Wallat’s motion and dismiss him from the

litigation, while continuing litigation between Pecoraro and Rostagno-

Wallat. In any event, Wallat was not an active participant to the paternity

proceedings and never submitted himself to the jurisdiction of the New

York court. After the New York court entered its order of filiation

establishing paternity in Pecoraro, it dismissed Pecoraro’s claims against

Wallat for lack of personal jurisdiction.

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B. LEGAL PROCEEDINGS IN MICHIGAN

In January 2006, before the resolution of the pater-

nity action in New York, Wallat filed a paternity action

against Rostagno-Wallat in the Wayne Circuit Court.

After conducting a hearing with testimony from Wallat

and Rostagno-Wallat, the court entered an order dis-

missing the case because the child was conceived and

born during the parties’ marriage and thus was not

born out of wedlock. The court concluded it lacked

jurisdiction to enter an order of filiation “due to pater-

nity already being established.”

In February 2008, while the New York proceedings

were on appeal, Pecoraro filed in the Wayne Circuit

Court a “Complaint for Paternity” against Rostagno-

Wallat in which he, among other things, sought enforce-

ment of the New York order of filiation. This complaint

alleged that the parties were never married and had one

minor child born out of wedlock. In July 2008, Wallat

filed a complaint for declaratory judgment against

Rostagno-Wallat and Pecoraro. In this action, Wallat

sought a determination that he is the legal father of the

child. After additional procedural maneuvering by and

between the litigants, all parties eventually filed mo-

tions for summary disposition. On July 16, 2009, the

trial court issued an opinion and order finding in favor

of Pecoraro. This appeal followed.

II. ANALYSIS

On appeal, the Wallats argue that the trial court

erred by finding that Pecoraro had standing under

Michigan’s Paternity Act, MCL 722.711 et seq. They

also argue the trial court erred in concluding that it was

constitutionally required to give full faith and credit to

the New York order of filiation issued by the New York

court. We agree.

310 291 M

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A. STANDARD OF REVIEW

Whether a party has standing to commence an action

to establish paternity under the Paternity Act involves

a question of law that this Court reviews de novo.

Barnes v Jeudevine, 475 Mich 696, 702; 718 NW2d 311

(2006). We also review de novo the interpretation of

statutes, jurisdictional issues, and constitutional ques-

tions. State Farm Fire & Cas Co v Corby Energy Servs,

Inc, 271 Mich App 480, 483; 722 NW2d 906 (2006);

Pontiac Food Ctr v Dep’t of Community Health, 282

Mich App 331, 335; 766 NW2d 42 (2009); Blackburne &

Brown Mtg Co v Ziomek, 264 Mich App 615, 620; 692

NW2d 388 (2004).

B. PECORARO LACKS STANDING TO ESTABLISH

PATERNITY IN MICHIGAN

Pecoraro argues that he can enforce the New York

order of filiation under § 4b of the Paternity Act, which

provides that “[t]he establishment of paternity under

the law of another state has the same effect and may be

used for the same purposes as an acknowledgment of

paternity or order of filiation under this act.” MCL

722.714b. We find no merit in this argument. Before

Pecoraro may assert the provisions of the Paternity Act,

he must establish that he has standing under that act.

Standing to pursue relief under the Paternity Act is

conferred on “(1) the mother of a child born out of

wedlock, (2) the father of a child born out of wedlock, or

(3) the Family Independence Agency

[5]

on behalf of a

child born out of wedlock who is being supported in

whole or in part by public assistance.” McHone v

Sosnowski, 239 Mich App 674, 677; 609 NW2d 844

The Family Independence Agency is now the Department of Human

Services.

2011] P

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(2000), citing MCL 722.714(1) and (8). Under the stat-

ute, a “child born out of wedlock” is defined as “a child

begotten and born to a woman who was not married

from the conception to the date of birth of the child, or

a child that the court has determined to be a child born

or conceived during a marriage but not the issue of that

marriage.” MCL 722.711(a); In re KH, 469 Mich 621,

631-632; 677 NW2d 800 (2004).

It is undisputed that on the date of conception and at

all times pertinent to these proceedings, Rostagno-

Wallat has been married to Wallat. Thus, the first

method for establishing that the child was born “out of

wedlock” cannot be satisfied. The only remaining

method of establishing that a child was born “out of

wedlock” requires a court’s determination that the

child is not the issue of the marriage. Barnes, 475 Mich

at 703-704, citing Girard, 437 Mich at 243. In Barnes,

the Michigan Supreme Court held “that a court deter-

mination under MCL 722.711(a) that a child is not ‘the

issue of the marriage’ requires that there be an affir-

mative finding regarding the child’s paternity in a prior

legal proceeding that settled the controversy between

the mother and the legal father.” Id. at 705.

Pecoraro maintains that the New York order of

filiation constituted a prior court determination that

the child was not the issue of defendants’ marriage.

Although the New York court made this finding, the

New York action was not a proceeding between

Rostagno-Wallat, the mother, and Wallat, the legal

father. Rather, the New York court expressly allowed

the action to proceed without having personal jurisdic-

tion over Wallat. Further, because Wallat could not be

forced to participate in the proceedings, the New York

proceedings clearly did not “settle[] the controversy

between the mother and the legal father,” satisfying the

312 291 M

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Paternity Act. Barnes, 475 Mich at 705. Simply put,

because Rostagno-Wallat and Wallat have not asked a

court to declare that the child was born out of wedlock,

Pecoraro lacks standing to claim paternity under Michi-

gan’s Paternity Act.

Pecoraro also argues he has standing to assert his claim

under the Child Custody Act, MCL 722.21 et seq., which

defines “parent” as “the natural or adoptive parent of a

child.” MCL 722.22(h). This definition was added to the

Child Custody Act, which did not previously define the

term “parent,” by 2004 PA 542. P ecoraro maintains that

because he is the child’s biological father, he is the natural

father, as that term is used the Child Custody Act. Thus,

he concludes, he may pursue his claim under the Child

Custody Act, which confers on parents standing to seek

custody of their children. Aichele v Hodge, 259 Mich App

146, 165; 673 NW2d 452 (2003).

Our Supreme Court in Girard addressed the interac-

tion between the Paternity Act and the Child Custody

Act. Gerard, 437 Mich at 251. As in the instant case, the

Court in Girard held that “a putative father of a child

born to a woman married to another man[] did not have

standing to contest paternity under the Paternity Act.”

Id. Girard further posited that, given this conclusion,

the putative father “clearly could not obtain a determi-

nation that he was the natural or biological father of the

child under the Child Custody Act.” Id. The Girard

Court then concluded that, because the putative father

“could not obtain a determination that he was a parent

of [the] child, [the putative father] must be considered

a nonparent under the Child Custody Act and his child

custody claim is barred.” Id., citing Ruppel v Lesner,

421 Mich 559, 565; 364 NW2d 665 (1984).

The central premise in Girard was that, given the

court’s conclusion that the putative father did not have

2011] P

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standing to contest paternity, the putative father

“clearly could not obtain a determination that he was

the natural or biological father of the child.” Id. at 251.

The Legislature’s amendment to the Child Custody Act

does not alter this central premise. The purpose of the

2004 amendment was to provide statutory rights to

adoptive parents. The phrase “natural parent” was

used by the Legislature to distinguish between adoptive

parents and non-adoptive parents. Nothing in the

amendment supports the conclusion that it was in-

tended to circumvent the Paternity Act. Pecoraro sim-

ply cannot use the Child Custody Act to obtain a

determination that he is the father under the Paternity

Act. Whether the putative father would be considered a

natural or biological parent under the Child Custody

Act is irrelevant unless he can first establish paternity

under Michigan’s Paternity Act. Accordingly, we reject

Pecoraro’s claim under the Child Custody Act.

C. THE FULL FAITH AND CREDIT CLAUSE

OF THE UNITED STATES CONSTITUTION

Pecoraro also argues that Michigan is required to

give effect and full force to the New York order of

filiation. Specifically, Pecoraro argues that the New

York judgment must be honored under the Full Faith

and Credit Clause of the United States Constitution, art

IV, § 1, and the Uniform Enforcement of Foreign Judg-

ments Act, (UEFJA), MCL 691.1171 et seq. Because the

UEFJA specifically references a “judgment,...that is

entitled to full faith and credit,” MCL 691.1172, Pec-

oraro’s argument under the UEFJA rises or falls on his

constitutional claim under the Full Faith and Credit

Clause.

The Full Faith and Credit Clause provides, in rel-

evant part, that “Full Faith and Credit shall be given in

314 291 M

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each State to the Public Acts, Records, and judicial

Proceedings of every other State.” US Const, art IV, § 1.

The purpose of the Full Faith and Credit Clause “is to

prevent the litigation of issues in one state that have

already been decided in another.” Martino v Cottman

Transmission Sys, Inc, 218 Mich App 54, 58; 554 NW2d

17 (1996). A foreign judgment is conclusive and must be

recognized if jurisdiction has been obtained over the

parties and the subject matter. Baker v Gen Motors

Corp, 522 US 222, 233; 118 S Ct 657; 139 L Ed 2d 580

(1998); see Nat’l Equip Rental, Ltd v Miller, 73 Mich

App 421, 424; 251 NW2d 611 (1977).

Before a court is bound by a judgment rendered in

another state, however, it may inquire into its jurisdic-

tional basis, and if either personal or subject-matter

jurisdiction is lacking, full faith and credit is not due.

Underwriters Nat’l Assurance Co v North Carolina Life

& Accident & Health Ins Guaranty Ass’n, 455 US 691,

705; 102 S Ct 1357; 71 L Ed 2d 558 (1982). Thus,

collateral attack of a foreign judgment is permitted in

Michigan by showing that the judgment a party is

seeking to enforce was void for want of jurisdiction in

the court that issued it. Nash v Salter, 280 Mich App

104, 119-120; 760 NW2d 612 (2008). Accordingly, the

courts of this state are not obliged under the federal

Constitution to give a foreign judgment full faith and

credit where the issuing court lacked jurisdiction over

the subject matter or the parties. Hare v Starr Com-

monwealth Corp, 291 Mich App 206, 217; ___ NW2d

___; California v Max Larsen, Inc, 31 Mich App 594;

597-598, 187 NW2d 911 (1971). Further,

[t]he Due Process Clause of the Fourteenth Amendment

limits the jurisdiction of state courts to enter judgments

affecting the rights or interests of nonresident defendants.

As a result, a valid judgment affecting a nonresident’s

rights or interests may only be entered by a court having

2011] P

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personal jurisdiction over that defendant. [Jeffrey v Rapid

American Corp, 448 Mich 178, 185; 529 NW2d 644 (1995)

(citations omitted).]

We hold that the New York order of filiation was not

a valid and binding judgment as to Wallat. We base this

holding on three distinct but related findings. First, the

New York court lacked personal jurisdiction over Wal-

lat. This point is not in contention. The New York court

expressly found that it lacked personal jurisdiction over

Wallat. Upon finding that the New York court lacked

jurisdiction over him, Wallat was not required to submit

to the jurisdiction of New York or put his parental

rights in peril.

Second, the New York court also found that Wallat

was a necessary party to the paternity proceedings in

New York. The court recognized that, as Rostigno-

Wallat’s spouse and the legal father under Michigan

law, Wallat had exercised parental rights over the child

and had established himself as a stable and substantial

presence in the life of the child. The New York court

observed that it could not issue an order of filiation to

Pecoraro without substantially impacting Wallat’s pa-

rental rights under Michigan law.

Third, the New York court expressly recognized that

the effect of its action would ultimately have to be

determined by a Michigan court. We presume the New

York court recognized this point because it lacked

jurisdiction over a necessary party.

We are unpersuaded by Pecoraro’s claim that Wal-

lat’s remedy, if any, was through the New York appellate

court, which affirmed the order of filiation. Again, the

New York court found it lacked personal jurisdiction

over Wallat and it found that Wallat was a necessary

party to the proceedings. Upon entering the judgment,

the court dismissed the claims asserted against Wallat

316 291 M

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303 [Jan

by Pecoraro for lack of personal jurisdiction. In essence,

Pecoraro is claiming that Wallat should have pursued

appellate rights when Wallat had no adverse ruling or

judgment imposed against him. Simply put, Pecoraro is

asserting that Wallat was obligated to submit to the

jurisdiction of New York or forfeit his parental rights.

Pecoraro offers no legal authority for his position.

Moreover, we are aware of no case that requires a party

to submit to the jurisdiction of a court or place his

rights at risk.

Similarly, we are not persuaded by the argument that

the New York court order should be honored because, in

arguing the merits of the underlying claim, Rostagno-

Wallat protected the interests of Wallat. We conclude

that the interests of Rostagno-Wallat, the mother, were

not consistent with the interests and rights of Wallat,

the legal father. Rostagno-Wallat’s parental rights as

mother were never at risk in this litigation. More

significant, however, is the notion that a judgment

issued in a matter that does not include a necessary

party has no effect. As a result, the courts of the state of

Michigan are not obliged to give the New York order of

filiation full faith and credit.

III. CONCLUSION

Pecoraro lacks standing to assert his claim of pater-

nity under Michigan’s Paternity Act. Because New York

admittedly lacked personal jurisdiction over Wallat, a

necessary party to the proceedings in New York, the

order of filiation issued by the New York court is not

entitled to full faith and credit under article IV, § 1 of

the United States Constitution.

We reverse the judgment of the trial court and

remand for entry of judgment consistent with this

opinion. We do not retain jurisdiction.

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SHOUNEYIA v SHOUNEYIA

Docket No. 297007. Submitted December 9, 2010, at Lansing. Decided

January 18, 2011, at 9:05 a.m.

Patricia A. Shouneyia obtained a divorce from Alec E. Shouneyia in

the Oakland Circuit Court in October 2008. As part of the divorce

judgment, Alec was ordered to pay Patricia a property settlement

of $50,000 and attorney fees of $40,000. In June 2009, Patricia

moved for the appointment of a receiver, asserting that Alec had

failed to make any payments toward the debt. The court, Linda S.

Hallmark, J., ordered a creditor’s examination. Patricia filed a

renewed motion for the appointment of a receiver following the

examination. The court granted the motion. A short time later,

Patricia filed another motion for a receiver, requesting that the

receiver have powers over Shouneyia Bros. Corp. (Shouneyia

Brothers), which was coowned by Alec and his brother Frank

Shouneyia and operated a market. The court granted the motion.

Alec and Shouneyia Brothers filed an application for leave to

appeal, which the Court of Appeals granted.

The Court of Appeals held:

1. A court may not make an adjudication affecting the rights of

a person or entity that is not a party to the case. Accordingly, the

circuit court did not have the authority to adjudicate the rights of

Shouneyia Brothers without first making it a party to the case.

2. A third party may be made a defendant in a divorce action

when it is alleged that the third party conspired with one of the

marital parties with the intent to defraud the other marital party

out of an interest in property. Because Patricia alleged that Alec

sought to conceal in the market operated by Shouneyia Brothers

income and assets to which she had a claim as a judgment creditor,

Shouneyia Brothers should have been added as a necessary party

to this action. The circuit court was directed to add Shouneyia

Brothers as a party on remand.

3. MCL 600.2926 invested the circuit court with the authority

to appoint a receiver. In light of the facts of this case, including the

circuit court’s finding that Alec had given evasive and false

answers at the creditor’s examination, suspicious deposits shown

in the market’s bank records, and suspicious business practices at

318 291 M

ICH

318 [Jan

the market, the circuit court did not abuse its discretion by

appointing a receiver to investigate Alec’s business income and

hold assets to satisfy the divorce judgment debt. As long as the

circuit court joined Shouneyia Brothers as a party to the case on

remand, the circuit court’s decision to appoint a receiver to

investigate the financial condition of the corporation was within

the range of principled outcomes.

Affirmed in part and remanded.

IVORCE —

ONCEALMENT OF

SSETS —

PPOINTMENT OF A

ECEIVER —

OINDER OF

HIRD

-P

ARTY

ORPORATION

In a divorce case, a circuit court may appoint a receiver over a

third-party corporation in the face of allegations that one of the

divorcing spouses used the corporate form to conceal assets or

funds that could be used to satisfy a judgment debt to the other

spouse.

Hauer & Snover, P.C. (by Mark A. Snover and James

D. Moriarty), for Patricia A. Shouneyia.

Paul C. Smith PLLC (by Paul C. Smith) for Alec E.

Shouneyia and Shouneyia Bros. Corp.

Before: M

URPHY

, C.J., and M

ETER

and G

LEICHER

,JJ.

LEICHER

, J. Defendant Alec E. Shouneyia owes

money to plaintiff Patricia A. Shouneyia, his former

spouse, for a property settlement and attorney fees

contained in a divorce judgment. Plaintiff moved for the

appointment of a receiver over assets or income pos-

sessed by defendant in Shouneyia Bros. Corp.

(Shouneyia Brothers), an entity coowned by defendant

and his brother, Frank Shouneyia. The circuit court

appointed a receiver over Shouneyia Brothers without

joining the company as a party to the proceeding,

prompting defendant and Shouneyia Brothers (collec-

tively referred to as “appellants”) to seek leave to

appeal, which this Court granted. We affirm the order

appointing a receiver, but remand for the addition of the

corporation as a party defendant.

2011] S

HOUNEYIA V

HOUNEYIA

319

In October 2008, the circuit court entered a divorce

judgment, which in pertinent part awarded plaintiff a

$50,000 property settlement and ordered defendant to

pay plaintiff $40,000 in attorney fees. In June 2009,

plaintiff urged the court to appoint a receiver “to collect

the money Defendant owes Plaintiff” pursuant to the

judgment of divorce, because defendant had paid noth-

ing toward this debt. Plaintiff added that although

defendant represented in January 2009 that he “was

attempting to get a loan,” that the loan apparently “has

never come to fruition.” Defendant responded that he

had a long list of properties in foreclosure and other

debts that left him insolvent. At a July 2009 hearing,

plaintiff accused defendant of having lied under oath at

the divorce trial about his lack of income from several

real property rentals, his purchase of a winning lottery

ticket ($15,000), and his receipt of checks (including one

in the amount of $50,000) from his mother. The court

ruled, “I understand there’s quite a bit of distrust;

however, before we go to a receiver I think it’s not

unreasonable to hold a creditor’s exam.”

At a December 2009 examination, defendant ap-

peared without counsel or supporting documentation,

and in response to inquiries by plaintiff’s counsel he

repeatedly expressed an inability to recall or answered

in a nonspecific fashion. Defendant did testify that he

received a salary of about $300 a week from the Vine-

yard Market, operated by Shouneyia Brothers. Defen-

dant averred that he and his brother, Frank Shouneyia,

jointly ran Shouneyia Brothers and Vineyard Market,

but that his brother was “out of the business right

now,” in part because of a pending lawsuit that defen-

dant had filed against Frank. With respect to the only

other income source defendant could recall, a shopping

center coowned by eight siblings, defendant could not

remember how much income he received. Defendant

320 291 M

ICH

318 [Jan

denied having any other personal income or assets,

apart from occasional monetary assistance from his

mother and siblings. When plaintiff’s attorney pre-

sented defendant with a statement reflecting a $20,000

wire transfer from defendant’s girlfriend to defendant’s

business account, defendant responded that the money

was to “[h]elp me out, get the business going, maybe I

was short, maybe at the time; though, I don’t remem-

ber.” Regarding monthly business-related bank depos-

its between December 2008 and July 2009 in amounts

of more than $400,000 to in excess of $600,000, defen-

dant explained that he provided check cashing services

for his customers, resulting in large deposits. Defendant

proclaimed that he charged little to no money for this

service, which thus generated no appreciable income.

Defendant refused to answer any questions relating to

whether he ever won the lottery and induced an em-

ployee to claim the winnings for him.

In January 2010, plaintiff filed a renewed motion for

the appointment of a receiver to collect the divorce

judgment awards defendant owed her. Plaintiff charac-

terized defendant’s December 2009 testimony “as ei-

ther a total fabrication and/or misrepresentation, per-

jury and at best evasive.” The circuit court found as

follows at a hearing on plaintiff’s motion:

Well, I have read the transcript of the creditor’s exam,

and to say that Mr. Shouneyia was evasive would be an

understatement. Thousands of dollars coming in and out of

these accounts and he never has any funds. It may well be

that he has no funds. I don’t know. But I tried this case and

he was ordered to make a property settlement to this lady

and a year has gone by; she has not received a nickel. And

she is spending attorney fees and there are children. It’s

unconscionable. Unconscionable.

If he is receiving money from the [family] trust, where

has that been? Now at the eleventh hour, a year later, he’s

2011] S

HOUNEYIA V

HOUNEYIA

321

going to offer her some money from the trust? Too little,

too late. She should not have to chase him around to get

these funds. And I don’t believe there was an honest

answer through this entire creditor’s exam.

It’s unfortunate, however, a receiver is more than justi-

fied. I will appoint Henry Nirenberg as receiver. And if

indeed Mr. Shouneyia has no assets, Mr. Nirenberg will

report that back to us, but I think he needs to have a look.

. . . Somebody needs to step forward, be honest, and let’s

get off the mark. But I don’t think, a year from now, this

lady should still be chasing around to get $50,000. That’s

ridicules [sic].

On January 20, 2010, the circuit court entered an order

granting plaintiff’s motion to appoint a receiver.

In February 2010, plaintiff filed another motion to

appoint a receiver. Plaintiff premised the motion on the

same facts set forth in the January 2010 motion to

appoint a receiver, but requested “that the Receiver

have powers over Shouneyia Brothers Corporation,...

D/B/A Vineyard Market,” among other business enti-

ties. Receiver Nirenberg advised the court at a March

2010 hearing that defendant had thwarted his initial

efforts to review the Vineyard Market’s inventory and

records. However, Nirenberg did notice that

the cash registers are zeroed out each day on a Z key three

times a day, and that was indicated clearly to my accoun-

tant; therefore, there is no trail of what comes in and out of

that business. The check cashing that goes on, there is no

trail of that, as well.

Defendant expressed a desire to discuss a settlement,

prompting the hearing to adjourn. A week later, defen-

dant had not engaged in any settlement discussions

with the receiver. The circuit court reasoned as follows

that it would appoint a receiver over the corporate

entity operating the market:

322 291 M

ICH

318 [Jan

Well, frankly, having read all of the briefs I’m not really

convinced that Estes versus Titus [481 Mich 573; 751

NW2d 493 (2008)] is applicable in this situation, I think

that was a little bit of a different scenario where assets

were transferred to avoid payment, it really wasn’t a

receivership type of a case, and I’m not positive the Court

has jurisdiction to grant the relief that’s been requested.

However, I am going to... grant your motion,...

because we don’t have objections from either of the third

parties. I think the bank is satisfied that they’re protected,

the other partner...ortheother member of the corpora-

tion is not objecting, so there’s really no one else to protect

at this point.

On March 17, 2010, the court entered an order appoint-

ing Nirenberg “as Receiver of the assets of Defen-

dant,...andReceiver of SHOUNEYIA BROS. CORP

(‘Entity’) including all businesses operated through

said Entity, including Vineyard III Market...aswell as

all of the following-described property....”Thecourt

added that it was grounding the receiver’s appointment

on MCL 600.2926.

Appellants first aver on appeal that the circuit

court’s failure to join Shouneyia Brothers as a party

defendant in the underlying divorce action precluded

the court from exercising authority over the corpora-

tion. Michigan courts have consistently recognized that

court may not make “[a]n adjudication affecting” the

rights of a person or entity not a party to the case.

Capitol S&L Co v Standard S&L Ass’n, 264 Mich 550,

553; 250 NW 309 (1933); see also Spurling v Battista,76

Mich App 350, 353; 256 NW2d 788 (1977) (concluding

that “the trial court did not have the power to compel [a

law firm] to pay witness fees” when the law firm “was

not a party to this action”). Plaintiff theorizes that the

appointment of a receiver does not adversely affect any

interested nonparty’s rights, given that Frank

2011] S

HOUNEYIA V

HOUNEYIA

323

Shouneyia, defendant’s coowner in Shouneyia Broth-

ers, consented to the receivership. But plaintiff’s argu-

ment ignores that the corporation itself amounts to an

interested party.

The circuit court thus did not have

authority to adjudicate the rights of Shouneyia Broth-

ers without first making it a party to the case.

But, as recognized in MCR 2.207, “Misjoinder of

parties is not a ground for dismissal of an action. Parties

may be added or dropped by order of the court on

motion of a party or on the court’s own initiative at any

stage of the action and on terms that are just.” See also

Henkel v Henkel, 282 Mich 473, 488; 276 NW 522 (1937)

(explaining that ordinarily “if the proper parties plain-

tiff are not joined, this court will direct the joinder of

the proper parties plaintiff on appeal”). Except in

circumscribed circumstances, “the jurisdiction of a di-

vorce court is strictly statutory and limited to determin-

ing the rights and obligations between the husband and

wife, to the exclusion of third parties.” Estes, 481 Mich

at 582-583 (quotation marks and citation omitted).

“Third persons may be made defendants in an action

for divorce where it is charged that such persons have

conspired with the husband with intent to defraud the

wife out of her interest in property.” Berg v Berg, 336

Mich 284, 288; 57 NW2d 889 (1953). Because plaintiff

here has alleged in multiple receivership motions that

defendant sought to conceal income and assets in the

market operated by Shouneyia Brothers, which plaintiff

has a claim to as a judgment creditor, this divorce

matter presents an appropriate case for joinder of the

“A corporation is a person in the eyes of the law ....”Jones v Martz

& Meek Constr Co, Inc, 362 Mich 451, 455; 107 NW2d 802 (1961); see also

Foodland Distrib v Al-Naimi, 220 Mich App 453, 456; 559 NW2d 379

(1996) (“As a general proposition, the law treats a corporation as an

entirely separate entity from its stockholders, even where one person

owns all the corporation’s stock.”).

324 291 M

ICH

318 [Jan

third party purportedly engaged in fraud. Conse-

quently, we direct the circuit court on remand to add

Shouneyia Brothers as a necessary party to this action.

MCR 2.205(A) (“[P]ersons having such interests in the

subject matter of an action that their presence in the

action is essential to permit the court to render com-

plete relief must be made parties....”); MCR 2.207.

In light of the fact that Shouneyia Brothers may

properly be joined in the case, we must next address the

propriety of the circuit court’s order imposing a receiv-

ership over the corporation. “We review for an abuse of

discretion the circuit court’s decision to appoint a

receiver.” Ypsilanti Charter Twp v Kircher, 281 Mich

App 251, 273; 761 NW2d 761 (2008).

The circuit court correctly cited MCL 600.2926 as

investing it with authority to appoint receivers. Specifi-

cally, MCL 600.2926 authorizes, in pertinent part:

Circuit court judges in the exercise of their equitable

powers, may appoint receivers in all cases pending where

appointment is allowed by law....Inallcases in which a

receiver is appointed the court shall...define the receiv-

er’s power and duties where they are not otherwise spelled

out by law. Subject to limitations in the law or imposed by

Under the unusual circumstances of this case, we find it appropriate

to substantively review the propriety of the circuit court’s order imposing

a receivership over the Shouneyia Brothers corporation, instead of simply

vacating the order and remanding the case to allow the corporation to

formally file a pleading as a party and then litigate anew the receivership

issue. The corporation is a party to this appeal and has already set forth

its position against the imposition of a receivership, which mirrors

defendant’s challenge to the receivership. It would be a waste of judicial

time and resources for the circuit court to relitigate the receivership issue

given that (1) the corporation’s sole shareholders are defendant and his

brother, (2) defendant’s brother apparently consented to the receiver-

ship, and (3) on remand the corporation would either not file any

pleadings or make filings consistent with those already presented by

defendant in the circuit court.

2011] S

HOUNEYIA V

HOUNEYIA

325

the court, the receiver shall be charged with all of the

estate, real and personal debts of the debtor as trustee for

the benefit of the debtor, creditors and others interested.

[Emphasis added.]

Furthermore, “[a]fter judgment for money has been

rendered in an action in any court of this state, the

judge may, on motion in that action or in a subsequent

proceeding...[a]ppoint a receiver of any property that

the judgment debtor has or may thereafter ac-

quire....”MCL600.6104(4).

[MCL 600.2926] has been interpreted as authorizing a

circuit court to appoint a receiver when specifically allowed

by statute and also when no specific statute applies but the

facts and circumstances render the appointment of a

receiver an appropriate exercise of the circuit court’s

equitable jurisdiction. The purpose of appointing a receiver

is to preserve property and to dispose of it under the order

of the court. In general, a receiver should only be appointed

in extreme cases. But a party’s past unimpressive perfor-

mance may justify the trial court in appointing a receiver.

[Reed v Reed, 265 Mich App 131, 161-162; 693 NW2d 825

(2005) (quotation marks and citations omitted).]

See also Cohen v Cohen, 125 Mich App 206, 214; 335

NW2d 661 (1983) (noting that “[t]he appointment of a

receiver may be appropriate when other approaches

have failed to bring about compliance with the court’s

orders”).

The pertinent facts appear undisputed. Pursuant to

the parties’ agreement, the circuit court incorporated

into the October 2008 judgment of divorce the property

settlement of $50,000. Defendant made no payments

toward either this amount or the circuit court’s award

of attorney fees to plaintiff over the course of the 1

years between entry of the judgment of divorce and the

March 2010 order appointing the receiver, from which

defendant now appeals. In this 1

year period, plaintiff

326 291 M

ICH

318 [Jan

made unsuccessful efforts to collect the judgment owed

by defendant: (1) plaintiff’s counsel questioned defen-

dant under oath at a creditor’s examination and the

court expressly found that defendant had given evasive

and false answers at the examination, and (2) the court

nonetheless subsequently afforded defendant the op-

portunity to negotiate a settlement with plaintiff, but

defendant thereafter declined to enter a settlement. At

the creditor’s examination, defendant acknowledged

when shown the market’s bank records that the busi-

ness had consistently deposited between $440,000 and

$669,000 over the course of several months in the first

half of 2009, but denied earning any appreciable income

from these deposits. And, as Nirenberg advised the

court, the business practices at the market, the multiple

daily acts of zeroing out cash registers, left in doubt the

source of the money coming into the store. Under these

circumstances, which rendered defendant’s prolonged

avoidance of his divorce judgment obligations to plain-

tiff highly suspicious, the circuit court did not abuse its

discretion when it appointed Nirenberg to investigate

defendant’s business income and hold assets to satisfy

plaintiff’s divorce judgment debt—at least provided

that the court joins Shouneyia Brothers as a party to

the case.

The identity of Shouneyia Brothers as a corporate

entity does not preclude the court’s order appointing a

receiver to investigate corporate funds and records,

once the corporation is joined as a party to the case.

Plaintiff made allegations concerning defendant’s ef-

forts to defraud her of her divorce judgment debt by

concealing income within Shouneyia Brothers and of-

fered substantial support for those allegations. The

circuit court noted in January 2010 when it first con-

templated granting the receivership,

2011] S

HOUNEYIA V

HOUNEYIA

327

[t]housands of dollars coming in and out of these accounts

and he never has any funds. It may well be that he has no

funds. I don’t know....

***

And if indeed [defendant] has no assets, [the receiver]

will report that back to us, but I think [the receiver] needs

to have a look.

Notably, defendant does not contest the import of

plaintiff’s and the receiver’s contentions that Frank

Shouneyia, defendant’s coowner of the corporation, had

no objection to the appointment of a receiver over

Shouneyia Brothers.

The allegations and evidence of

record tending to substantiate that defendant, through

his control over Shouneyia Brothers, had sought to hide

income in Shouneyia Brothers or the market operated

by the corporate entity rendered the circuit court’s

appointment of a receiver to investigate the financial

condition of the corporation a decision within the range

of principled outcomes, as long as the court joins the

Shouneyia Brothers entity as a party to the case. See

Kircher, 281 Mich App at 273 (noting that a court

abuses its discretion when its decision falls outside the

range of reasonable and principled outcomes); Reed,

265 Mich App at 161-162; Attica Hydraulic Exch v

Seslar, 264 Mich App 577, 590; 691 NW2d 802 (2004)

(“After a judgment for money has been rendered, a trial

court has the discretion to appoint a receiver of any

Appellants impugn only the extent of plaintiff’s factual support for

this proposition, noting in their appellate brief’s statement of facts:

“Plaintiff offered no explanation of how Frank Shouneyia had consented

and no factual support for the proposition that Frank Shouneyia had

consented to the receivership.” At a March 10, 2010 hearing, defendant

did not object or request additional substantiation when plaintiff’s

counsel advised the court of Frank Shouneyia’s consent to the receiver-

ship.

328 291 M

ICH

318 [Jan

property the judgment debtor has or may acquire.”).

The allegations and evidence of record strongly suggest-

ing that defendant has tried to conceal income in the

corporation also make irrelevant appellants’ contention

that the circuit court could not appoint a receiver over

Shouneyia Brothers because it “owe[d] no debt to the

judgment creditor [plaintiff].”

Our conclusion finds support in Michigan caselaw.

The Michigan Supreme Court decades ago considered

several appeals

aris[ing] out of the receivership pending under the decree

of divorce in Westgate v. Westgate, 291 Mich. 18 [288 NW

860 (1939) (Westgate I)]. The appointment of the receiver

was upheld by this court in Westgate v. Westgate, 294 Mich.

88 [292 NW 569 (1940) (Westgate II)]; Westgate v. Drake,

294 Mich. 116 [292 NW 573 (1940) (Westgate III)]; and

Westgate v. Drake, 294 Mich. 120 [292 NW 574 (1940)

(Westgate IV)]. [Westgate v Larsen, 296 Mich 434, 435; 296

NW 317 (1941) (Westgate V).]

In one of the Westgate appeals upholding the receiver’s

appointment, Westgate III, 294 Mich at 117, the Su-

preme Court summarized the relevant factual back-

ground:

On November 30, 1938, Bertha L. Westgate was

awarded a decree of divorce from Elmore L. Westgate with

provisions of alimony granting her a one-half interest in all

of his rights in an oil business known as the Direct Refinery

Stations. Because of her inability to ascertain the exact

nature of the ownership of Mr. Westgate in such business,

plaintiff filed a petition in the divorce proceedings setting

forth that her husband and defendants herein, as well as

others, were engaged in a conspiracy to cheat her out of her

rights in the business by concealment of property rights

and ownership; that Elmore L. Westgate was the real

owner of the business but that in order to defraud her he

had covered up such interests under the names of others.

In her petition, Mrs. Westgate prayed that defendants and

2011] S

HOUNEYIA V

HOUNEYIA

329

others be joined as defendants in the proceedings and that

they show cause why a temporary receiver should not be

appointed for the Direct Refinery Stations.

Unlike in this case, the petition for receivership in

Westgate asked “for leave to join certain parties as

defendants,” and “[t]he defendants named in this peti-

tion [appeared and] filed answers thereto denying all

the material allegations contained in plaintiff’s peti-

tion.” Westgate II, 294 Mich at 89-90.

In Westgate II, the Supreme Court discussed the

general responsibilities of a receiver, and other legal

principles, as informative to the question in that case,

“whether or not the trial court had a right to make . . .

orders awarding attorney fees, the property in question

being in the hands of a receiver.” Id. at 91. In Westgate

III, 294 Mich at 118, the Supreme Court examined a

different question than the receiver appointment chal-

lenge presented here, an attack on the validity of a trial

court injunction enjoining the defendants “from inter-

fering with the receiver’s possession of the premises

and business of the Direct Refinery stations.” The

Court highlighted that the defendants had not chal-

lenged the initial order appointing the receiver: “No

attack upon the order appointing the receiver is made

as far as the record discloses, except in defendants’

answer; and they could not attack the validity of such

an appointment, or question the extent of the receiver’s

possession, on a motion which did not raise such an

issue.” Id. at 119. In Westgate IV, 294 Mich at 121-122,

defendant Nellie Drake, “[o]ne of the parties who filed

an answer in . . . [the] receivership action,” claimed on

appeal “that a certain tractor used in the oil business

belongs to her.” Drake “raise[d] numerous questions

regarding the validity of the appointment of the re-

ceiver,” among other issues, with respect to which the

330 291 M

ICH

318 [Jan

Supreme Court ruled, “We are of the opinion that all of

these claims are without merit.” Id. at 123. It does not

strike us as entirely clear that the Supreme Court in the

Westgate appeals cited in this paragraph answered the

precise questions appellants raise here. But the West-

gate decisions at least strongly suggest that in a divorce

case, a circuit court may appoint a receiver over a

third-party corporation in the face of allegations that

one of the divorcing spouses had used the corporate

form to conceal assets or funds that could be used to

satisfy a judgment debt to the other spouse.

With respect to Shouneyia Brothers’s complaint that

the company never received proper notice of the receiv-

ership in violation of its right of due process, the record

reflects that defendant is the registered agent for

Shouneyia Brothers. Shouneyia Brothers thus had ac-

tual notice of plaintiff’s multiple motions to appoint a

receiver, as well as the circuit court’s order imposing a

receivership. Sweet Air Investment, Inc v Kenney, 275

Mich App 492, 505; 739 NW2d 656 (2007) (“[D]ue

process in civil cases requires notice of the nature of the

proceeding.”) (quotation marks and citation omitted).

Notwithstanding the corporation’s actual notice of the

relevant proceedings, Shouneyia Brothers made no at-

tempt to be heard by the circuit court in a manner

separate from defendant’s appearance as an individual.

In any event, we are instructing that the circuit court

add the corporation as a party to the case.

We conclude that in light of (1) defendant’s poor past

performance in making any payments due plaintiff

under the judgment of divorce, despite the court’s

employment of methods less drastic than receivership,

and (2) plaintiff’s showing that defendant exercises

control over Shouneyia Brothers and has not accounted

for regular, large deposits into the corporation’s bank

2011] S

HOUNEYIA V

HOUNEYIA

331

accounts, the circuit court acted within its discretion by

appointing a receiver to preserve funds and property

that could satisfy defendant’s judgment debt to plain-

tiff. Reed, 265 Mich App at 161-162; Cohen, 125 Mich

App at 214; see also 65 Am Jur 2d, Receivers, § 33, p 649

(“[A]ppointment of a receiver may be based on a show-

ing of a danger of loss of property through waste,

neglect, or misconduct....”); 65 Am Jur 2d, Receivers,

§ 31, p 648 (“Although proof of fraud is not required to

support a court’s discretionary decision to appoint a

receiver, the prevention of collusion, fraud, or danger of

loss or injury from fraud is ground for the appointment

of a receiver.”).

Affirmed in part and remanded for further proceed-

ings consistent with this opinion. We do not retain

jurisdiction.

332 291 M

ICH

318 [Jan

CG AUTOMATION & FIXTURE, INC v AUTOFORM, INC

Docket No. 286361. Submitted May 11, 2010, at Grand Rapids. Decided

January 20, 2011, at 9:00 a.m.

C .G. Automation & Fixture, Inc., brought an action under the molder’s

lien act, MCL 445.611 et seq., in the Kent Circuit Court against

Autoform, Inc., Key Plastics L.L.C ., and others, seeking possession of

several molds and dies that Autoform had ordered from C.G . Auto-

mation, then sold to Key Plastics without having paid for them. When

C .G. Automation delivered the dies at issue to Autoform, it included

information identifying itself as the moldbuilder pursuant to MCL

445.619(1), but it affixed this information to the separate metal risers

used to adjust the dies’ height, not to the dies themselves. Autoform

did not include these risers when it shipped the dies to Key Plastics.

C .G. Automation had initially sought possession of the dies under the

Special Tools Lien Act, MCL 570.541 et seq., and also brought various

common-law claims that were ultimately dismissed against all defen-

dants except Autoform. The court, James Robert Redford, J., entered

a default judgment against Autoform and in favor of C.G . Automa-

tion. C .G. Automation filed a second amended complaint against the

remaining defendants and moved for immediate possession of the

dies under the molder’s lien act. The court granted the motion with

respect to the dies at issue, and Key Plastics appealed by leave

granted.

The Court of Appeals held:

An enforceable molder’s lien demands the presence of perma-

nently affixed details identifying the moldbuilder on the mold, die,

or tool. The circuit court clearly erred by finding that C.G.

Automation had fulfilled this requirement, given that the required

identification was affixed to objects that were readily removable

from the dies.

Reversed and remanded for further proceedings.

LEICHER

, J., concurring, additionally wrote separately to rec-

ommend that the Legislature clarify the ambiguity created by the

disjunctive language in MCL 445.619(4), which indicates that a

moldbuilder’s lien attaches when actual or constructive notice is

received, and the conjunctive language in MCL 445.619(3), which

2011] CG A

UTOMATION V

UTOFORM

333

states that fulfilling the requirements of the previous two subsec-

tions gives rise to both actual and constructive notice.

IENS —

OLDER

’

IENS —

OLDER

’

IEN

CT —

OLDBUILDERS’

DENTIFICA-

TION —

ERMANENTLY

ECORDED

OLDBUILDERS’

DENTIFICATION

The molder’s lien act requires a moldbuilder to permanently record

on every die, mold, or form the moldbuilder’s name, street address,

city, and state; this requirement demands the presence of perma-

nently affixed details on the mold, die, or tool itself for an

enforceable lien to be created (MCL 445.619[1], [3]).

Bolhouse, Vander Hulst, Risko, Baar & Lefere, P.C. (by

David S. Lefere), for C.G. Automation & Fixture, Inc.

Harvey Kruse, P.C. (by J. Kenneth Wainwright, Jr.,

William F. Rivard, and Kimberly A. Kardasz), for Key

Plastics L.L.C.

Before: M

ARKEY

,P.J., and Z

AHRA

and G

LEICHER

,JJ.

LEICHER

, J. We granted leave in this case to consider

a question of first impression arising under the Michi-

gan ownership rights in dies, molds, and forms act,

MCL 445.611 et seq., also known as the molder’s lien

act. The precise question before us is whether an

enforceable molder’s lien attaches absent some form of

permanently recorded information on the mold, die, or

tool identifying the name of the moldbuilder, its street

address, city, and state. We hold that an enforceable lien

demands the presence of permanently affixed identify-

ing details on the mold, die, or tool and that the dies at

issue lacked this essential record. We reverse the circuit

court’s ruling to the contrary and remand for further

proceedings.

I. UNDERLYING FACTS AND PROCEEDINGS

Plaintiff, C.G. Automation & Fixture, Inc., manufac-

tures tool and die equipment and sells its products to

334 291 M

ICH

333 [Jan

automobile parts suppliers. Defendants Key Plastics

L.L.C. and Autoliv A.S.P., Inc., supply parts to automo-

bile manufacturers. Autoliv agreed to sell defendant

Chrysler L.L.C. spoke covers for use in its JS41 vehicle

platform. Chrysler applied the spoke covers as decora-

tive features on the spokes of Chrysler Sebring steering

wheels.

In September 2005, Autoliv sent Key Plastics a letter

of intent to purchase spoke covers for JS41 vehicles.

Defendant Autoform, Inc., quoted Key Plastics a price

for the tooling necessary to manufacture the JS41

components. The tooling included production molds

and metal trim dies. Key Plastics agreed to buy the

tooling at the price quoted by Autoform. Autoform then

turned to C.G. Automation for the design, fabrication,

and manufacture of a portion of the JS41 tooling that

Autoform had agreed to sell Key Plastics. C.G. Automa-

tion duly produced the required molds and dies and

provided them to Autoform. The dispute before us

concerns only the dies.

In September 2006, C.G. Automation shipped the

dies to Autoform. On the date of shipment, C.G. Auto-

mation placed an identification tag on the risers accom-

panying the dies. According to Michael Elliott, C.G.

Automation’s plant supervisor, a riser is

a precise metal bar that is machined and bolted to the

bottom of the tool to establish a shut height or a tool shut

height. You buy the die set.... If it doesn’t meet the

required shut height, you put risers underneath it, and you

bolt them to the bottom, so when they go into a press, they

meet a certain shut height.

[

]

“Die shut height is defined as the height of the die in the shut or

closed position.” Smith, Quick Die Change (Dearborn: Society of Manu-

facturing Engineers, 2d ed, 2004), ch 11, p 237. “In general, the shut

height of a press is the maximum die height that can be accommodated

2011] CG A

UTOMATION V

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335

Elliott admitted that the risers could be removed from

the die and transferred to another tool. Nonetheless,

Elliott characterized “the risers” as “part of the die.”

When C.G. Automation shipped the dies to Autoform,

C.G. Automation also filed a financing statement under

the Uniform Commercial Code (UCC) identifying its

possession of a lien on the tooling.

Autoform never paid C.G. Automation for the dies,

and Autoform entirely ceased its operations in 2007.

However, before Autoform closed its doors, it sold the

dies to Key Plastics.

The parties agree that the dies

arrived at the Key Plastics facility without the tagged

risers. The dies currently reside in a Key Plastics plant

in Pennsylvania, where the company has used them

since 2007 in the manufacture of JS41 plastic parts.

The record does not reveal the current location of the

risers formerly attached to the dies.

In September 2007, C.G. Automation sued Autoform,

Key Plastics, Autoliv, and Chrysler pursuant to the

Special Tools Lien Act, MCL 570.541 et seq., and moved

for immediate possession of the tooling. C.G. Automa-

tion’s complaint also alleged breach-of-contract and

unjust-enrichment claims. C.G. Automation later

amended its pleadings by adding a claim under the

molder’s lien act. In November 2007, the circuit court

denied the motion for immediate possession and en-

tered a stipulated order dismissing the breach-of-

contract and unjust-enrichment claims against Key

Plastics, Autoliv, and Chrysler. Subsequently, the circuit

fornormaloperation....”Auto/Steel Partnership, Stamping Task Force,

Selected Stamping and Formability Measurements, § 3.1.2

<http://www.a-sp.org/database/viewsec.asp?sec=594> (accessed October

5, 2010).

Key Plastics and Autoform fought a separate legal battle over the dies

in the Washtenaw Circuit Court. They resolved their differences after

Key Plastics agreed to pay Autoform for the tooling.

336 291 M

ICH

333 [Jan

court entered a default judgment against Autoform and

in favor of C.G. Automation.

In February 2008, C.G. Automation filed a second

amended complaint and moved to enforce the molder’s

lien act and take immediate possession of the tooling if

payment in full was not rendered. In May 2008, the

circuit court conducted an evidentiary hearing, at

which several witnesses testified. In a June 2008 writ-

ten opinion and order, the circuit court explained, in

pertinent part, that it would grant C.G. Automation’s

motions:

3. The testimony of the representatives of C. G. Auto-

mation are that the devices that left their plant...hadthe

markings which are required to be on a device pursuant to

MCL 445.619(4) and UCC lien registrations were filed by C.

G. Automation. This testimony was credible and believed

by the Court.

4. As a result of the identification tags being placed...

and the UCC liens being registered for the devices...the

plaintiffs [sic] are entitled to immediate possession and/or

payment by the entity in possession of the [dies].

In October 2008, this Court granted Key Plastics’

application for leave to appeal. CG Automation & Fix-

ture, Inc v Autoform, Inc, unpublished order of the

Court of Appeals, entered October 24, 2008 (Docket No.

286361).

II. ANALYSIS

The construction and application of the molder’s lien

act presents a question of law that this Court considers

de novo on appeal. Delta Engineered Plastics, LLC v

Autolign Mfg Group, Inc, 286 Mich App 115, 119; 777

NW2d 502 (2009). We review for clear error a circuit

court’s findings of fact. MCR 2.613(C). “Clear error

exists when the reviewing court is left with a definite

2011] CG A

UTOMATION V

UTOFORM

337

and firm conviction that a mistake has been made.”

Massey v Mandell, 462 Mich 375, 379; 614 NW2d 70

(2000).

In Gateplex Molded Products, Inc v Collins & Aik-

man Plastics, Inc, 260 Mich App 722, 726; 681 NW2d 1

(2004), another case arising under the molder’s lien act,

we restated the following general principles governing

statutory interpretation:

The primary goal of statutory interpretation is to ascer-

tain and give effect to the intent of the Legislature in

enacting a provision. Statutory language should be con-

strued reasonably, keeping in mind the purpose of the

statute. The first criterion in determining intent is the

specific language of the statute. If the statutory language is

clear and unambiguous, judicial construction is neither

required nor permitted, and courts must apply the statute

as written. However, if reasonable minds can differ regard-

ing the meaning of a statute, judicial construction is

appropriate. [Citation and quotation marks omitted.]

In this case, the parties ask that we construe several

sections of the molder’s lien act and determine whether,

when harmonized, the act supports the imposition of a

molder’s lien. In undertaking this task, we must avoid

construing the statute in a manner that renders any

statutory language nugatory or surplusage. Robinson v

City of Lansing, 486 Mich 1, 21; 782 NW2d 171 (2010).

When discerning legislative intent, we read the entire

act and interpret a particular word in one statutory

section only “after due consideration of every other

section so as to produce, if possible, a harmonious and

consistent enactment as a whole.” Grand Rapids v

Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922).

This Court considers both the plain meaning of critical

words or phrases comprising the statute and their

placement and purpose in the statutory scheme. People

v Blunt, 282 Mich App 81, 84; 761 NW2d 427 (2009). In

338 291 M

ICH

333 [Jan

summary, “[w]e construe an act as a whole to harmo-

nize its provisions and carry out the purpose of the

Legislature.” People v Hill, 269 Mich App 505, 515; 715

NW2d 301 (2006) (citation and quotation marks omit-

ted).

The pertinent portion of the molder’s lien act, MCL

445.619, states as follows:

(1) A moldbuilder shall permanently record on every die,

mold, or form that the moldbuilder fabricates, repairs, or

modifies the moldbuilder’s name, street address, city, and

state.

(2) A moldbuilder shall file a financing statement in

accordance with the requirements of section 9502 of the

uniform commercial code, 1962 PA 174, MCL 440.9502.

(3) A moldbuilder has a lien on any die, mold, or form

identified pursuant to subsection (1). The amount of the

lien is the amount that a customer or molder owes the

moldbuilder for the fabrication, repair, or modification of

the die, mold, or form. The information that the mold-

builder is required to record on the die, mold, or form

under subsection (1) and the financing statement required

under subsection (2) shall constitute actual and construc-

tive notice of the moldbuilder’s lien on the die, mold, or

form.

(4) The moldbuilder’s lien attaches when actual or

constructive notice is received. The moldbuilder retains the

lien that attaches under this section even if the mold-

builder is not in physical possession of the die, mold, or

form for which the lien is claimed.

(5) The lien remains valid until the first of the following

events takes place:

(a) The moldbuilder is paid the amount owed by the

customer or molder.

(b) The customer receives a verified statement from the

molder that the molder has paid the amount for which the

lien is claimed.

2011] CG A

UTOMATION V

UTOFORM

339

The plain language of MCL 445.619(1) dictates that a

moldbuilder permanently record identifying informa-

tion on every die, mold, or form it produces. The statute

does not define the term “permanently record.” “When

considering a word or phrase that has not been given

prior legal meaning, resort to a lay dictionary such as

Webster’s is appropriate.” Citizens Ins Co v Pro-Seal

Serv Group, Inc, 477 Mich 75, 84; 730 NW2d 682 (2007)

(citation and quotation marks omitted). According to

Random House Webster’s College Dictionary (1997), p

971, the relevant definitions of “permanent” include “1.

existing perpetually; everlasting,” “2. intended to serve,

function, etc., for a long, indefinite period,” and “3.

long-lasting or nonfading[.]” The relevant definition of

“record” is “1. to set down in writing or the like, as for

the purpose of preserving evidence.” Id. at 1087.

In MCL 445.619(2), our Legislature adopted a second

requirement, which is that the moldbuilder file a fi-

nancing statement in conformity with MCL 440.9502,

part of the UCC. In MCL 445.619(1) and (2), the

Legislature clearly and unambiguously commanded

that moldbuilders seeking an enforceable lien under-

take two actions: “permanently record” specified iden-

tifying information on every die, mold, or form and “file

a financing statement” under the UCC. Thus, the

introductory subsections of the statute, (1) and (2), set

forth two obligations relevant to the creation of a lien

and its attachment. By placing these mandates at the

beginning of the statute, the Legislature meant to

convey that a moldbuilder seeking the benefits con-

veyed in the balance of the statute must comply with

the predicate requirements.

Subsection (3) begins, “A moldbuilder has a lien on

any die, mold, or form identified pursuant to subsection

340 291 M

ICH

333 [Jan

(1).” MCL 445.619(3). This is the only portion of the

statute directly addressing the creation of a lien. Nota-

bly, the Legislature elected not to create a lien effected

through the filing of a financing statement. It could

have done so by adding a second sentence here, stating

to the effect that “a moldbuilder has a lien on any die

identified pursuant to subsection (2).” Moldbuilder’s

liens are nonconsensual, and they exist even absent

privity of contract. Because those who ultimately ac-

quire the tooling may have never agreed to a lien or

entered into a security agreement with the moldbuilder,

as occurred in this case, the statute creates a remedial

security interest in the moldbuilder.

After addressing the amount of a moldbuilder’s lien

in subsection (3), the statute turns to the manner in

which the moldbuilder must supply the world with

notice of the lien it acquired by complying with subsec-

tion (1). The third sentence of subsection (3) reads,

“The information that the moldbuilder is required to

record on the die, mold, or form under subsection (1)

and the financing statement required under subsection

(2) shall constitute actual and constructive notice of the

moldbuilder’s lien ....” MCL 445.619(3) (emphasis

added). With this sentence, the Legislature indicated

that a moldbuilder who complies with both require-

ments has given the world actual and constructive

notice of the lien.

Having established the legal components of an enforce-

able molder’s lien, we now consider whether the circuit

court clearly erred by finding that C .G. Automation had

permanently recorded identifying information on the dies.

The record evidence agreed that C .G. Automation perma-

nently affixed its identifying information to metal risers

that could be separated from the dies and transferred for

use with other tools. A Key Plastics engineer testified that

2011] CG A

UTOMATION V

UTOFORM

341

the risers “are just steel spacers that [sic] if you needed to

adjust heights for some reason, but they would not be

necessarily specific to a specific die.” Although a C.G.

Automation plant supervisor insisted at one point during

the evidentiary hearing that the risers constitute a “part

of the die[s],” substantial other evidence refutes this

pronouncement. Abundant evidence establishes that a

riser is not a die, but a separate and distinct device used in

conjunction with a die. The two serve entirely different

functions. “T o treat them as synonymous... would be

reminiscent of Lewis Carroll’s Humpty-Dumpty as he

scornfully chastised Alice ‘when I use a word it means just

what I choose it to mean—neither more nor less.’ ” Maki

v East Tawas, 385 Mich 151, 159; 188 NW2d 593 (1971).

By directing moldbuilders to “permanently record on

every die, mold, or form” identifying information, MCL

445.619(1), the Legislature clearly intended that subse-

quent possessors of a die would receive actual notice of

the name and address of the moldbuilder. The Legisla-

ture elected to achieve this end by requiring a die

fabricator to perpetually preserve its identity “on every

die....”Id. (emphasis added). The circuit court’s de-

termination that a moldbuilder could comply with the

statutory mandate by permanently affixing its informa-

tion to objects readily removable from the dies contra-

venes the plain meaning of MCL 445.619(1). Further-

more, the fact that Key Plastics has successfully used

the dies without the accessory risers confirms that the

risers simply are not equivalent to the dies. Conse-

quently, our review of the entire relevant record leaves

us with the definite and firm conviction that the circuit

court made a mistake by finding that C.G. Automation

had placed its identifying information on the dies. See

Massey, 462 Mich at 379. Because C.G. Automation

failed to perfect its lien in the manner prescribed under

342 291 M

ICH

333 [Jan

MCL 445.619, we reverse the decision of the circuit

court and remand for proceedings consistent with this

opinion.

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

LEICHER

,J.(concurring). I fully concur in the ma-

jority opinion, but write separately to express my belief

that MCL 445.619(4) renders that section of the mold-

er’s lien act ambiguous. In my view, legislative recon-

sideration of the statutory language would benefit the

tool-and-die and automotive industries as well as the

legal community.

In MCL 445.619(1) and (2), the Legislature clearly and

unambiguously commanded that molders seeking an en-

forceable lien undertake two mandatory actions by stating

in subsection (1) that “[a] moldbuilder shall permanently

record” specified identifying information on every die,

mold, or form and in subsection (2) that “[a] moldbuilder

shall file a financing statement” under MCL 440.9502.

However, at this point the waters of statutory interpreta-

tion become muddied. Subsection (3) envisions that a

moldbuilder will have “a lien on any die, mold, or form

identified pursuant to subsection (1).” MCL 445.619(3).

One reasonable interpretation of this language suggests

that even absent the moldbuilder’s filing of a financing

statement, the moldbuilder will have acquired an enforce-

able lien if it has permanently affixed identifying informa-

tion on the tool. But subsection (3) then continues, “The

information that the moldbuilder is required to record on

the die, mold, or form under subsection (1) and the

financing statement required under subsection (2) shall

constitute actual and constructive notice of the mold-

builder’s lien ....” Id. (emphasis added). This sentence

reasonably lends itself to construction in either of two

2011] CG A

UTOMATION V

UTOFORM

343

ONCURRING

PINION BY

LEICHER

,J.

ways. The first is that the combination of permanent

moldbuilder identification and the filing of a financing

statement under the Uniform Commercial Code (UCC)

together amount to actual and constructive notice of a

lien. Alternatively, the Legislature perhaps intended that

permanent identification constitutes actual notice, while a

filed UCC statement equates with constructive notice;

acceptance of this second reading would essentially obli-

gate a court to engraft onto the final clause of subsection

(3) the notion that the permanent recording and the UCC

filing “shall constitute actual and constructive notice[,

respectively,] of the moldbuilder’s lien....”Adoption of

the second reading of subsection (3) thus would ignore the

well-established principle of statutory construction that a

court “is not free to add language to a statute or to

interpret a statute on the basis of this Court’s own sense

of how the statute should have been written.” Kirkaldy v

Rim, 478 Mich 581, 587; 734 NW2d 201 (2007)

AVANAGH

, J., concurring); see also In re Wayne Co

Prosecutor, 232 Mich App 482, 486; 591 NW2d 359

(1998) (emphasizing that “[a] court must not judi-

cially legislate by adding into a statute provisions

that the Legislature did not include”).

Subsection (4) intensifies the interpretive difficulties

presented by the molder’s lien act. That subsection

provides that a moldbuilder’s lien attaches “when ac-

tual or constructive notice is received.” MCL 445.619(4)

(emphasis added). In the estimation of federal bank-

ruptcy judge Phillip J. Shefferly, who construed the

molder’s lien act in In re Plastech Engineered Prod, Inc,

418 BR 235, 245 (ED Mich Bankr, 2009), subsections (3)

and (4), when read together, render the statute “ines-

capably ambiguous.”

Judge Shefferly reasoned:

Although this Court may choose to agree with the analysis of a federal

court decision, “federal court decisions are not precedentially binding on

344 291 M

ICH

333 [Jan

ONCURRING

PINION BY

LEICHER

,J.

Sub[section] 4 injects an additional element of doubt in

construing the statutes by providing that the lien “attaches

when actual or constructive notice is received.” The prob-

lem caused by this language is that under subsection 3, the

references to the information required to be inscribed on

the tooling and the financing statement required to be filed

are written with the conjunctive and, which suggests that

both acts together constitute actual and constructive notice

of the lien. However, subsection 4 arguably calls this

construction into question by using the disjunctive or

between “actual” and “constructive” notice. The disjunc-

tive or in this sentence suggests that there might be actual

notice without constructive notice and vice versa. In other

words, if the lien can attach when there is only the actual

notice provided by the inscription on the tooling, does this

mean that attachment can occur without the constructive

notice that a UCC financing statement provides? Similarly,

if there is only a UCC financing statement that provides

the constructive notice, can attachment occur without the

actual notice that is provided by the inscription on the

tooling? [Id. at 244.]

Judge Shefferly resolved the statute’s apparent ambi-

guity by examining its structure, legislative history,

applicable caselaw, and secondary sources. Id. at 244-

247. He concluded that MCL 445.619 “require[s] a two

step process in order to obtain an enforceable lien: the

permanent recording of information on the mold or

tool, and the filing of a financing statement in accor-

dance with section 9502 of the UCC.” Id. at 247

(emphasis added). Judge Shefferly’s reconciliation of

the statutory language is entirely consistent with the

result we reach today.

Our Supreme Court has emphasized that “[a] provi-

sion of the law is ambiguous only if it irreconcilably

conflicts with another provision or when it is equally

questionsofMichiganlaw....”American Axle & Mfg, Inc v Hamtramck,

461 Mich 352, 364; 604 NW2d 330 (2000).

2011] CG A

UTOMATION V

UTOFORM

345

ONCURRING

PINION BY

LEICHER

,J.

susceptible to more than a single meaning.” Fluor

Enterprises, Inc v Dep’t of Treasury, 477 Mich 170,

177-178 n 3; 730 NW2d 722 (2007) (brackets and

quotation marks omitted). I would hold that with

regard to whether a molder’s lien exists in the absence

of a UCC filing statement, the statutory language is

equally susceptible to more than a single meaning. I

agree entirely with the sentiments expressed in an

article published in the November 2010 Michigan Bar

Journal that the molder’s lien act is “in desperate need

of overhaul” and that amendment “would foster more

predictability in judicial construction and interpreta-

tion of the statutory language....”Mears, Amending

the Michigan tooling lien statutes, 89 Mich B J 11, 40

(Nov 2010). Nevertheless, I believe that the statute

clearly and unambiguously envisions that absent the

permanent recording of identifying information, a

moldbuilder possesses no lien.

346 291 M

ICH

333 [Jan

ONCURRING

PINION BY

LEICHER

,J.

In re LUNDY ESTATE

Docket No. 292930. Submitted December 14, 2010, at Detroit. Decided

January 20, 2011, at 9:05 a.m.

As personal representative of the estate of David G. Lundy, deceased,

Bridget A. Lundy petitioned the Lenawee Probate Court for the

return of estate funds, specifically a certificate of deposit account

that First Federal Bank of the Midwest had liquidated after

Bridget Lundy applied for informal probate. The bank claimed a

priority interest under an assignment granting it a security

interest in the funds, which it had perfected. The court, Frederick

L. Wood, J., held that because probate proceedings had com-

menced, the Estates and Protected Individuals Code (EPIC), MCL

700.1101 et seq., rather than article 9 of the Uniform Commercial

Code (UCC), MCL 440.9101 et seq., applied and that Lundy’s claim

for homestead and family allowances had priority over the bank’s

claim. Respondent appealed.

The Court of Appeals held:

The decedent and the bank entered into a transaction and

created a security interest in the account. Article 9 of the UCC

governs security interests. MCL 700.3104 precludes all proceed-

ings to enforce a claim against an estate before the appointment of

a personal representative except a proceeding brought by a se-

cured creditor of the decedent to enforce the creditor’s right to the

creditor’s security. Those claims are governed by the provisions of

part 8 of article III and part 6 of article VII of EPIC. MCL 700.3809

governs the obligations of the personal representative in paying

the claims of secured creditors, and no provision requires a secured

creditor that is otherwise entitled to exhaust a security to first

bring a claim against the estate in order to be permitted to exhaust

the security. Because the bank had perfected a security interest in

the funds, it was not required to bring a claim against the estate

but was entitled to exhaust the security in order to reduce the

principal amount of the loan upon default, even though there will

be insufficient funds in the estate to pay the priority claims and

allowances set forth in MCL 700.3805.

Reversed.

2011] In re L

UNDY

STATE

347

ECURED

RANSACTIONS —

LAIMS

GAINST

STATES —

ECURED

REDITORS —

RIORITY

The Estates and Protected Individuals Code (EPIC) precludes all

proceedings to enforce a claim against an estate before the

appointment of a personal representative except a proceeding

brought by a secured creditor of the decedent to enforce the

creditor’s security; security interests are governed by article 9 of

the Uniform Commercial Code, and no provision of EPIC requires

a secured creditor that is otherwise entitled to exhaust a security

to first bring a claim against the estate in order to be permitted to

exhaust the security upon default, even though there will be

insufficient funds in the estate to pay priority claims and allow-

ances (MCL 440.9101 et seq.; MCL 700.3104, 700.3805, 700.3809).

Morello Law Group, P.C. (by George S. Fekaris), for

Bridget A. Lundy.

Mittelstaedt and McNeely, P.C. (by Christopher E.

McNeely and Andrew M. White), for First Federal Bank

of the Midwest.

Before: D

ONOFRIO

P.J., and C

AVANAGH

and F

ITZGERALD

JJ.

URIAM

. Respondent, First Federal Bank of the

Midwest (the bank),

appeals as of right the probate

court order granting the petition for return of estate

funds filed by petitioner, Bridget A. Lundy, as personal

representative of the estate of David Gary Lundy. This

case arises from a dispute over the funds in a certificate

of deposit (CD) account that belonged to the decedent.

At issue is the interplay between the Estates and

Protected Individuals Code (EPIC), MCL 700.1101 et

seq., article 9 of the Uniform Commercial Code (UCC),

MCL 440.9101 et seq., and the terms of an “Assignment

of Deposit Account” (the assignment agreement) be-

First Federal Bank of the Midwest was formerly known as the Bank

of Lenawee.

348 291 M

ICH

347 [Jan

tween the bank and the decedent in determining

whether a bank, as the holder of a perfected security

interest in a CD account that a decedent pledged as

collateral to secure a mortgage, is entitled upon default

to retain the funds in the account even though there are

insufficient funds in the estate to pay the priority

claims and allowances set forth in MCL 700.3805 of

EPIC. We reverse and remand.

I. FACTS AND PROCEDURAL HISTORY

On December 22, 2005, the decedent personally guar-

anteed a mortgage and promissory note between Lun-

dy’s Lane, L.L.C.,

and the bank. On that date, the

decedent and the bank also entered into the assignment

agreement, which granted the bank a security interest

in the CD account as collateral for the loan.

According

to the terms of the assignment agreement, upon occur-

rence of an “Event of Default,” the bank had the right

to exercise one or more of the rights and remedies

enumerated in the assignment agreement. Upon de-

Lundy’s Lane, L.L.C. is apparently a convenience store owned by the

decedent, his son Gary A. Lundy, or both.

The assignment agreement provided as follows:

ASSIGNMENT. For valuable consideration, Grantor assigns

and grants to Lender a security interest in the Collateral, includ-

ing without limitation the deposit accounts described below, to

secure the indebtedness and agrees that Lender shall have the

rights stated in this Agreement with respect to the Collateral, in

addition to all other rights which Lender may have by law.

COLLATERAL DESCRIPTION. The word “Collateral” means

the following described deposit account (“Account”):

CD Account in the name of David G. Lundy

together with (A) all interest, whether now accrued or hereafter

accruing; (B) all additional deposits hereafter made to the Ac-

count; (C) any and all proceeds from the Account; and (D) all

renewals, replacements and substitutions for any of the foregoing.

2011] In re L

UNDY

STATE

349

fault, the rights and remedies provided in the assign-

ment agreement allowed the bank to accelerate the

indebtedness to make it immediately due and payable

without notice. The assignment agreement also pro-

vided the bank the right to take all funds in the CD

account and to apply the funds to the indebtedness. Any

excess funds remaining after application of the CD

account proceeds to the indebtedness would be paid to

the decedent.

The decedent died testate on February 20, 2008. On

April 24, 2008, Bridget A. Lundy applied for informal

probate and for appointment of a personal representa-

tive. She was appointed personal representative of the

estate on that same date.

The decedent defaulted on the loan,

and the bank

exercised its rights under the assignment agreement.

The bank liquidated the CD account and applied the

funds to reduce the principal amount of the loan

secured by the CD account.

On May 19, 2008, petitioner filed a form selecting the

CD account as the “homestead allowance authorized by

The decedent defaulted on the loan by failing to make payments as

they became due. Additionally, the terms of the assignment agreement

identified “death” as an event of default.

By letter dated April 30, 2008, addressed to Gary A. Lundy, the bank,

through Vice President John Selenko, informed Lundy that the mortgage

was in default and that the bank had exercised its rights under the

assignment agreement and had liquidated the CD account and applied

the funds to reduce the principal amount of the loan secured by the CD

account. Selenko wrote in the letter that he had had “numerous conver-

sations” with the decedent regarding the loans and that the decedent

“had verbally agreed in February to allow the bank to liquidate his

certificate of deposit to bring all of the loans current and pay down the

principal balance of the real estate loan.” Selenko claimed that the bank

“held off liquidating” the account pending some negotiations concerning

a lease of the store, which had apparently ceased with the decedent’s

death.

350 291 M

ICH

347 [Jan

MCL 700.2402” and as the “exempt property autho-

rized by MCL 700.2404.” Fields for a family allowance

were also completed on the form, as follows: “A family

allowance of $23,000.00 per year has been determined

as authorized by MCL 700.2403 and MCL 700.2405.”

On August 14, 2008, petition filed an inventory listing

only “Claim on Proceeds of CD Held By First Federal

Bank” and listing “[$]0.00” as the total value of the

property.

Petitioner commenced this action with the filing of a

“Petition for Return of Estate Funds” on January 9,

2009. She asserted that under MCL 700.3805 of EPIC,

the bank’s security interest in the CD account was of

lower priority than the surviving spouse’s claim for

reimbursement of reasonable funeral expenses, the

homestead allowance, the family allowance, and exempt

property. In response, the bank asserted that because

the bank had properly perfected its security interest in

the CD account, the bank had an interest superior to

any and all claims to the same collateral. Thus, the

bank contended that it had properly applied the balance

of the CD account to the obligation secured by the

account pursuant to MCL 440.9607(1)(d) of the UCC.

At a hearing on the petition, the probate court

acknowledged that the bank had a perfected security

interest in the CD account. The court opined that the

bank had the right to apply the balance of the CD

account to the obligation secured by the account “prior

to the death of the decedent, or, perhaps even prior to

the spouse filing an affidavit for information Probate

and being appointed personal representative.” The

court concluded, however, that EPIC superseded article

9 of the UCC once a personal representative was

appointed. Thus, the court concluded that, under EPIC,

“the surviving spouse has the right to claim homestead

2011] In re L

UNDY

STATE

351

and family allowance prior to a creditor’s claim, and,

that is what the bank had.”

II. STANDARD OF REVIEW

This Court reviews de novo issues of statutory inter-

pretation as questions of law. In re Clarence W Temple

& Florence A Temple Marital Trust, 278 Mich App 122,

128; 748 NW2d 265 (2008). An appeal of a decision of

the probate court, however, is on the record; it is not

reviewed de novo. Id.; MCL 600.866(1); MCR

5.802(B)(1). This Court reviews the probate court’s

factual findings for clear error and its dispositional

rulings for an abuse of discretion. Temple, 278 Mich

App at 128.

III. THE PURPOSES OF ARTICLE 9 OF THE UCC AND EPIC

Subject to several exceptions, article 9 of the UCC as

enacted in Michigan governs, among other things, “[a]

transaction, regardless of its form, that creates a secu-

rity interest in personal property or fixtures by con-

tract.” MCL 440.9109(1)(a). It governs such things as

perfection of security interests, MCL 440.9301 to MCL

440.9316, priority of security interests, MCL 440.9317

to MCL 440.9339, and rights of third parties, MCL

440.9401 to MCL 440.9409.

The purposes of EPIC include “[t]o discover and

make effective a decedent’s intent in distribution of the

decedent’s property” and “[t]o promote a speedy and

efficient system for liquidating a decedent’s estate and

making distribution to the decedent’s successors.” MCL

700.1201(b) and (c). The provisions relevant to this case

are within article III of EPIC, MCL 700.3101 et seq.,

which governs probate of wills and estate administra-

tion.

352 291 M

ICH

347 [Jan

IV. ARTICLE 9 OF THE UCC AND THE ASSIGNMENT AGREEMENT

The record reveals that the decedent and the bank

voluntarily entered into a transaction and intentionally

created a security interest in the CD account. Article 9

of the UCC provides the scheme by which security

interests in personal property are regulated. Shurlow v

Bonthuis, 456 Mich 730, 735; 576 NW2d 159 (1998).

Specifically, MCL 440.9607(1) of the UCC provides:

If so agreed, and in any event after default, a secured

party may do 1 or more of the following:

***

(d) If it holds a security interest in a deposit account

perfected by control under [MCL 440.9104(1)(a)],

[

]

apply

the balance of the deposit account to the obligation secured

by the deposit account.

Under this section, upon default the bank had a right

to apply the balance of the CD account to the obligation

secured by the CD account. The bank’s action was

permitted under the terms of the assignment agree-

ment, which provided that the death of the borrower or

grantor constituted an event of default. The assignment

agreement provided several “Rights and Remedies on

Default,” including the right of the bank to “surrender

the Account to the Issuer and obtain payment thereun-

der subject to any early withdrawal penalty imposed by

the Issuer” and to “obtain all funds in the Account from

the Issuer of the Account and apply them to the

MCL 440.9104(1) provides:

A secured party has control of a deposit account if 1 or more of

the following apply:

(a) The secured party is the bank with which the deposit

account is maintained.

2011] In re L

UNDY

STATE

353

indebtedness in the same manner as if the Account had

been issued by Lender.” There is no dispute that the

bank, in addition to being the “lender,” was also the

holder or issuer of the deposit account. The bank was

entitled under article 9 of the UCC and the assignment

agreement to apply the balance of the CD account to the

obligation secured by the account (the mortgage) be-

cause the bank held the deposit account.

V. EPIC

EPIC treats secured creditors differently than other

potential claimants against an estate. MCL 700.3104

provides:

(1) Except as otherwise provided in subsection (2), a

proceeding to enforce a claim against a decedent’s estate or

the decedent’s successors shall not be revived or com-

menced before the appointment of a personal representa-

tive....

(2) This act does not apply to a proceeding by a secured

creditor of the decedent to enforce the creditor’s security

except as provided in part 8 of article III and part 6 of

article VII.

[

]

This provision precludes all proceedings to enforce a

claim against the estate before the appointment of a

personal representative except a proceeding brought by

a secured creditor of the decedent to enforce the credi-

tor’s right to the creditor’s security. EPIC does not

apply to such claims except as provided in two specific

parts of EPIC.

The comment to MCL 700.3104 by the

reporter for the EPIC drafting committee of the State

Part 8 of article III is found at MCL 700. 3801 through MCL 700.3815.

Part 6 of article VII is found at MCL 700.7601 through MCL 700.7615.

The provisions of part 8 of article III are relevant here and are

discussed in this portion of the opinion; article VII pertains to trust

administration and is not relevant here.

354 291 M

ICH

347 [Jan

Bar of Michigan explains that this section “subjugates

the rights of creditors to the provisions of EPIC, except

for secured creditors, who may proceed against the

secured property. Even for a secured creditor, the code

governs any attempt to recover an amount in excess of

the security.” Estates and Protected Individuals Code

With Reporter’s Commentary (ICLE, 2008 ed), p 154

(EPIC With Reporter’s Commentary). While not bind-

ing, such comments are often used to aid in the inter-

pretation of a statute or rule. See People v Clement, 254

Mich App 387, 391-392; 657 NW2d 172 (2002); Trost v

Buckstop Lure Co, Inc, 249 Mich App 580, 585; 644

NW2d 54 (2002).

Secured creditors are also treated differently than

other potential claimants, including other creditors, in

part 8 of article III of the EPIC. MCL 700.3801(1)

requires a notice “notifying estate creditors to present

their claims within 4 months after the date of the

notice’s publication or be forever barred.” MCL

700.3803 limits the time for presenting claims and bars

claims against the estate unless presented within speci-

fied time limits. MCL 700.3803(3)(a), however, ex-

pressly exempts “[a] proceeding to enforce a mortgage,

pledge, or other lien on estate property” from the time

limitations. The reporter’s supplemental comment for

2005 to MCL 700.3801 explains, in relevant part:

While a secured creditor is known, frequently notice is

not given to secured creditors because § 3803(3)(a), MCL

700.3803(3)(a), permits a secured creditor to collect its

claim without regard to the shortened statute of limita-

tions of § 3803, MCL 700.3803. The secured creditor, how-

ever, has a priority position only as to the asset in which the

security interest is held. If the security is inadequate, the

creditor has no preference when trying to collect any defi-

ciency. Therefore, when there is uncertainty whether the

security is sufficient to cover the secured creditor’s claim,

2011] In re L

UNDY

STATE

355

the personal representative should give actual notice to the

secured party. If no notice is given, the secured party may

assert that the three-year statute of limitations of

§ 3803(1)(c), MCL 700.3803(1)(c), applies to a recovery of

the deficiency. [EPIC With Reporter’s Commentary, p 226

(emphasis added).]

Petitioner presumably disputes the emphasized portion

of the commentary. Although petitioner concedes that

the bank is a secured creditor, she asserts that the bank

has no priority position, except as between the bank and

a hypothetical second unsecured creditor, when the

estate does not have sufficient funds to pay all claims

and allowances. Petitioner relies primarily on MCL

700.3805 in support of this assertion. MCL 700.3805

sets forth the priority of claim payments. MCL

700.3805(1) provides:

If the applicable estate property is insufficient to pay all

claims and allowances in full, the personal representative

shall make payment in the following order of priority:

(a) Costs and expenses of administration.

(b) Reasonable funeral and burial expenses.

(d) Family allowance.

(e) Exempt property.

(f) Debts and taxes with priority under federal law,

including, but not limited to, medical assistance payments

that are subject to adjustment or recovery from an estate

under section 1917 of the social security act, 42 USC 1396p.

(g) Reasonable and necessary medical and hospital ex-

penses of the decedent’s last illness, including a compen-

sation of persons attending the decedent.

(h) Debts and taxes with priority under other laws of

this state.

(i) All other claims.

356 291 M

ICH

347 [Jan

MCL 700.3809, which governs secured claims, in

addition to MCL 700.3801, reveals that petitioner’s

assertion is incorrect in part. That is, without even

making a “claim” against the estate, the bank has a

priority position with respect to the secured property.

However, the bank is in the same position as other

creditors with respect to any claim against the estate for

the amount of any deficiency existing after exhausting

the security. MCL 700.3809.

Like MCL 700.3805, MCL

700.3809 governs the obligations of the personal repre-

sentative in paying claims. No provision requires a

secured creditor that is otherwise entitled to exhaust a

security to first bring a claim against the estate in order

to be permitted to exhaust the security. Indeed, MCL

700.3809 contemplates that the secured creditor may

exercise that option. Once again, the commentary is

helpful:

If a secured creditor surrenders the security interest, he

or she becomes a general creditor with priority equal to that

of other general creditors to be paid for the full amount of

the claim. If, instead, the secured creditor realizes against

(collects from) the asset that secures the claim but is not

MCL 700.3809 provides:

A personal representative shall pay a secured claim on the basis

of the amount allowed if the creditor surrenders the security.

Otherwise, the personal representative shall pay on the basis of 1

of the following:

(a) If the creditor exhausts the security before receiving payment,

upon the amount of the claim allowed less the fair value of the

security.

(b) If the creditor does not have the right to exhaust the

security or has not done so, upon the amount of the claim allowed

less the value of the security determined by converting it into

money according to the terms of the agreement under which the

security was delivered to the creditor or by the creditor and

personal representative by agreement, arbitration, compromise, or

litigation. [Emphasis added.]

2011] In re L

UNDY

STATE

357

fully paid, he or she becomes a general creditor to the extent

of the deficiency. If the secured creditor is given notice as

required by §3801(2), MCL 700.3801(2), the secured creditor

needs to file a contingent claim within the claims period to

preserve his or her rights to collect any deficiency if the

security is insufficient to pay the claim. If not given notice, the

secured creditor is not barred by the short four-month statute

of limitations. [Reporter’s Supplemental Comment—2005 to

MCL 700.3809, in EPIC With Reporter’s Commentary, p 235

(emphasis added).]

The secured creditor’s special position with respect

to the secured property is also reflected in MCL

700.3812, which provides: “An execution shall not issue

upon nor shall a levy be made against estate property

under a judgment against a decedent or personal rep-

resentative. This section shall not be construed to pre-

vent the enforcement of a mortgage, pledge, or lien upon

property in an appropriate proceeding.” (Emphasis

added.) Finally, MCL 700.3814 allows the personal

representative discretion in dealing with an encum-

bered estate asset, but in no way suggests that an

encumbrance may be disregarded if the asset is needed

to satisfy the priorities set forth in MCL 700.3805.

sum, none of these provisions prevents the secured

creditor from exhausting the security. On the contrary,

they treat a secured creditor differently and contem-

MCL 700.3814 provides:

If property of the estate is encumbered by mortgage, pledge,

lien, or other security interest and it appears to be in the estate’s

best interest, the personal representative may pay the encum-

brance or a part of the encumbrance, renew or extend an obliga-

tion secured by the encumbrance, or convey or transfer the

property to the creditor in satisfaction of the lien, in whole or in

part, whether or not the encumbrance holder has presented a

claim. Payment of an encumbrance does not increase the share of

the distributee entitled to the encumbered property unless the

distributee is entitled to exoneration.

358 291 M

ICH

347 [Jan

plate a secured creditor’s right to collect from the

security without bringing a claim against the estate for

estate funds.

Two states that have probate codes modeled after the

Uniform Probate Code, like EPIC, have rendered deci-

sions consistent with our analysis regarding the appro-

priate treatment of secured creditors under EPIC. In In

re Larson Estate, 359 NW2d 281 (Minn App, 1984), the

Minnesota Court of Appeals addressed the estate’s

argument that a bank improperly sought payment of its

secured claim from the estate’s assets rather than

proceeding against the security. The court construed

provisions of the Minnesota probate code that are

similar to the provisions of EPIC relevant in this case:

The probate code permits the personal representative

authority to pay a secured claim in three ways. The

personal representative may pay the claim in whole or in

part; renew or extend the secured obligation; or convey or

transfer assets to the creditor in satisfaction of the lien,

whether or not the holder has filed a claim. Minn.Stat.

§ 524.3-814 (1982).

For the secured creditor who seeks payment, the code

provides three options. Minn.Stat. § 524.3-809. First, pay-

ment is to be made upon the basis of the amount allowed if

the creditor surrenders his security. Second, if the creditor

exhausts its security before receiving payment upon the

amount owing, it may receive its credit less the fair value of

the security. Finally, if the creditor does not have the right

to exhaust its security, or has not done so, it may receive

the amount of the claim allowed less the value of the

security. Minn.Stat. § 524.3-809 provides options for the

secured creditor, but does not interfere with the process set

out in Minn.Stat. § 524.3-806. The Minnesota Supreme

Court has addressed this question. In Browning v. Eiken,

189 Minn. 375, 249 N.W. 573 (1933), the court reviewed

allowance of an intermediate account, where the probate

2011] In re L

UNDY

STATE

359

court approved the act of a bank in applying a part of a

deposit account in payment of notes held by it against

decedent. The court stated:

“The general rule is that a creditor holding securities

has the option, after the debtor’s death, to enforce his

securities for payment of his claim or to file his claim as a

general creditor of the estate.” [Larson, 359 NW2d at

285-286, quoting Browning, 189 Minn at 380.]

[

]

The Larson court concluded that the bank had pro-

ceeded lawfully under the probate code. Larson, 359

NW2nd at 286; see also Binder v Fruth, 150 Ariz 21, 24;

721 P2d 679 (Ariz App, 1986) (considering provisions of

the Arizona probate code modeled after the Uniform

Probate Code and agreeing with the reasoning of the

Larson court quoted here); 34 CJS, Executors and

Administrators, § 555 (“A secured creditor generally

need not present his or her claim for allowance to

preserve a right to enforce the security, but presenta-

tion is generally required where recovery is sought out

of the general assets of the estate.”).

In In re Stephenson Estate, 217 Ariz 284; 173 P3d 448

(Ariz App, 2007), the Arizona Court of Appeals consid-

ered whether a secured creditor must seek permission

from the court or from the personal representative

before conducting a trustee’s sale of property secured

by a deed of trust. The court noted several ways in

which the Arizona probate code treats secured creditors

differently than other claimants. Id. at 286-287 (dis-

cussing the Arizona statute similar to MCL 700.3104,

MCL 700.3803, MCL 700.3812, and MCL 700.3809). It

rejected the argument “that the sale of encumbered

estate property is subject to court supervision, and

The provisions of the Minnesota probate code cited are similar to

MCL 700.3814 (encumbered assets), MCL 700.3809 (secured claims),

MCL 700.3806 (allowance and disallowance of claims), respectively.

360 291 M

ICH

347 [Jan

[that] the proceeds of the sale must be distributed

pursuant to the priorities specified in” the Arizona

analogue of MCL 700.3805. Stephenson, 217 Ariz at

288-289. It noted the secured creditor’s right under

Binder to choose its remedy. Id. at 288. After noting

that the appellee (representing the estate) had cited no

“authority to support its position that the proceeds of

the trustee’s sale can be distributed to pay for other

expenses of the decedent debtor to the detriment of the

secured creditor,” the court rejected the appellee’s ar-

gument that Ariz Rev Stat 14-3805 (analogous to MCL

700.3805) protects the rights of secured creditors. Id.

First, the court noted that Ariz Rev Stat 14-3805 does

not distinguish between secured claims and other debts

and does not even mention secured creditors. Second, it

explained that Ariz Rev Stat 14-3805 “governs the

priority of ‘claims,’ ” but “[a] secured creditor can

enforce its security and need not file a claim.” Id., citing

the Arizona statute comparable to MCL 700.3803. The

Stephenson court concluded that Ariz Rev Stat 14-3805

“has no applicability to a secured creditor that chooses

to execute on its security rather than file a claim.” Id.

Both Larson and Stephenson, which interpreted the

rights and remedies of secured creditors under statu-

tory schemes very similar to EPIC, lend support to our

conclusion that the bank was entitled to exhaust the

funds in the CD account.

Finally, there is a dispute between the parties over

whether the deposit account ever became estate prop-

erty.

We need not determine whether the CD account

was ever technically estate property because the bank

Under EPIC, “ ‘[p]roperty’ means anything that may be the subject

of ownership, and includes both real and personal property or an interest

in real or personal property.” MCL 700.1106(u). At the relevant time,

MCL 700.1104(b) provided that

2011] In re L

UNDY

STATE

361

was entitled to exhaust the funds in the account with-

out making a claim on the estate.

Reversed and remanded. Jurisdiction is not retained.

“[e]state” includes the property of the decedent, trust, or other

person whose affairs are subject to this act as the property is

originally constituted and as it exists throughout administration.

Estate also includes the rights described in [MCL 700.3805,

700.3922, and 700.7502] to collect from others the amounts

necessary to pay claims, allowances, and taxes.

362 291 M

ICH

347 [Jan

PEOPLE v FONVILLE

Docket No. 294554. Submitted October 6, 2010, at Detroit. Decided

January 25, 2011, at 9:00 a.m.

Derek Fonville pleaded guilty in the Oakland Circuit Court to one

count of child enticement, MCL 750.350, as part of a plea agree-

ment whereby the prosecution agreed to drop a second child

enticement charge. The plea bargain included a Cobbs agreement,

People v Cobbs, 443 Mich 276 (1993), that the trial court would

impose a sentence at the low end of the sentencing guidelines

recommended minimum sentence range. The court, Denise Lang-

ford Morris, J., accepted the plea. At a subsequent sentencing

hearing, defendant asked to withdraw his plea, asserting his

innocence and that he would not have pleaded guilty had he known

that his conviction would require him to register as a sex offender

under the Sex Offenders Registration Act (SORA), MCL 28.721 et

seq. The court granted defense counsel’s motion to withdraw as

counsel and defendant, represented by new counsel, again moved

to withdraw his plea. The court denied the motion to withdraw the

plea, holding that the plea was valid, that defendant had entered

into a Cobbs agreement, that the prosecution was the sole charging

authority, that nothing indicated that defendant was innocent, and

that defendant admitted the facts that supported his plea. The

court determined that the plea was knowing, voluntary, and

accurate and sentenced defendant to 51 months to 20 years in

prison. The court then denied defendant’s motion to withdraw his

plea after sentencing. The Court of Appeals denied defendant’s

delayed application for leave to appeal in an unpublished order,

entered October 31, 2007 (Docket No. 280968). The Supreme

Court then denied leave to appeal. 480 Mich 1136 (2008). Defen-

dant moved in the trial court for relief from the judgment, and the

trial court denied that motion and a subsequent motion for

reconsideration. The Court of Appeals granted defendant’s appli-

cation for leave to appeal.

The Court of Appeals held:

1. An inculpatory inference could be drawn from defendant’s

admission that, although he originally had permission from his

friend to take her two children with him, he later fraudulently

2011] P

EOPLE V

ONVILLE

363

detained them by driving around and using drugs until the next

afternoon while the children were in his car instead of returning

them at the agreed-upon time. Defendant’s admissions fit the

elements of child enticement. The trial court did not abuse its

discretion by denying defendant’s motion to withdraw his plea.

Defendant did not demonstrate, as required by MCR 6.310(B), that

the withdrawal of his plea would be in the interest of justice.

Moreover, defendant did not argue that he was actually innocent of

the alleged conduct. He voluntarily pleaded guilty pursuant to a

valid plea agreement.

2. Although the offense of child enticement includes no express

sexual component as a requirement for a conviction, the Legisla-

ture deemed registration under SORA for those convicted of child

enticement a necessary measure to protect the safety and welfare

of the children of this state. Requiring registration as a sex

offender following a conviction for a listed offense is not punish-

ment. Registration is not a punitive measure intended to chastise,

deter, or discipline an offender, but it is merely a remedial

regulatory scheme furthering a legitimate state interest.

3. Defense counsel’s failure to move to quash the information

was not ineffective assistance of counsel because sufficient evi-

dence was presented at the preliminary examination to support

the bindover.

4. F or purposes of determining whether defense counsel provided

effective assistance in the context of a guilty plea, a defendant need

only be made aware by defense counsel of the direct consequences of

a guilty plea. The defendant’s ignorance of the collateral conse-

quences of the plea does not render the plea involuntary. Counsel’s

failure to properly advise of the collateral consequences of a plea deal

does not bear on whether the defendant properly understood the

decision to plead guilty to the charges.

5. Because of its close connection to the criminal process, sex

offender registration as a consequence of a criminal conviction is

difficult to classify as either a direct or a collateral consequence.

Therefore, the collateral versus direct distinction is ill-suited to

evaluate an ineffective-assistance-of-counsel claim concerning sex

offender registration. The automatic result of sex offender regis-

tration for certain defendants makes it difficult to divorce the

penalty from the conviction. Defense counsel’s duty to give correct

advice regarding the registration requirement is clear when, as

here, the sex-offender-registration statute is succinct, clear, and

explicit in defining the registration requirement.

6. Defense counsel must advise a defendant that registration

as a sexual offender is a consequence of a guilty plea to a listed

364 291 M

ICH

363 [Jan

offense. The failure to inform the defendant affects whether the

plea was knowingly made. Defendant in this case showed serious

derelictions on the part of his counsel sufficient to show that his

plea was not a knowing and intelligent act.

7. Defense counsel’s failure to advise defendant that his plea

would require him to register as a sex offender prejudiced defen-

dant to the extent that, but for counsel’s error, the result of the

proceeding would have been different. Although the registration

requirement does not constitute cruel and unusual punishment in

the context of the charge against defendant, given the lack of a

sexual component to defendant’s conduct, it was imperative that

his counsel advise him of the unique registration consequences of

his plea.

Reversed and remanded for further proceedings.

ANSEN

, J., concurring in part and dissenting in part, agreed

that defense counsel rendered ineffective assistance of counsel by

failing to inform defendant that his plea would require him to

ANSEN

dissented from the deter-

mination that there was a sufficient factual basis to support

defendant’s guilty plea. There was no evidence that defendant

acted with the requisite specific intent to detain or conceal the

children from their mother. Because there was an insufficient

factual basis for the plea, the trial court erred by accepting the

plea. The matter should be remanded to the trial court with

instructions to permit defendant to withdraw his plea.

1. C

RIMINAL

AW —

UILTY

LEAS —

ACTUAL

ASIS FOR

UILTY

LEAS —

NCULPATORY

NFERENCES —

XCULPATORY

NFERENCES

When reviewing whether the factual basis for a defendant’s guilty

plea was adequate, the Court of Appeals considers whether the

fact-finder could have found the defendant guilty on the basis of

the facts elicited from the defendant at the plea proceeding; a

factual basis to support a plea exists if an inculpatory inference can

be drawn from what the defendant admitted, even if an exculpa-

tory inference could also be drawn and the defendant asserts that

the latter is the correct inference; even if the defendant denies an

element of the crime, the trial court may properly accept the plea

if an inculpatory inference can still be drawn from what the

defendant admitted.

2. C

RIMINAL

AW —

UILTY

LEAS —

OTIONS TO

ITHDRAW

UILTY

LEAS —

AIR AND

UST

EASONS TO

ITHDRAW

LEAS

A court should grant a motion to withdraw a guilty plea before

sentencing only if the defendant shows that withdrawal of the plea

2011] P

EOPLE V

ONVILLE

365

is in the interest of justice, which requires the defendant to

articulate a fair and just reason for withdrawing the plea; fair and

just reasons include claims of actual innocence or a valid defense to

the charge, not dissatisfaction with the sentence or incorrect

advice from defense counsel (MCR 6.310[B]).

3. C

RIMINAL

AW —

HILD

NTICEMENT —

FFENDERS

EGISTRATION

CT —

EGISTRATION OF

ERSONS

ONVICTED OF

HILD

NTICEMENT

The offense of child enticement involves the leading, taking, carry-

ing away, decoying, or enticing away of a child under 14 yeas of age

with the intent to detain or conceal the child from the child’s

parent; although the offense includes no express sexual component

as a requirement for a conviction of the offense, the Legislature

has deemed registration under the Sex Offenders Registration Act

for those convicted of that offense a necessary measure to protect

the safety and welfare of children in the state; requiring persons

convicted of offenses listed in the Sex Offenders Registration Act

to register is not punishment or a punitive measure intended to

chastise, deter, or discipline an offender, but it is merely a remedial

regulatory scheme furthering a legitimate state interest and does

not constitute cruel or unusual punishment, (MCL 28.721a,

28.722[e][vii], 28.723, 750.350).

4. C

RIMINAL

AW —

FFECTIVE

SSISTANCE OF

OUNSEL —

URDEN OF

ROOF

A defendant asserting a claim of ineffective assistance of counsel

must show that defense counsel’s performance fell below an

objective standard of reasonableness under prevailing professional

norms and that defense counsel’s deficient performance so preju-

diced the defendant that there is a reasonable probability that, but

for counsel’s errors, the result of the proceeding would have been

different; in this process, the defendant must overcome the strong

presumption that defense counsel’s performance constituted

sound trial strategy.

5. C

RIMINAL

AW —

TTORNEY AND

LIENT —

UILTY

LEAS —

ONSEQUENCES OF

LEAS —

FFECTIVE

SSISTANCE OF

OUNSEL

A defendant need only be made aware of the direct consequences of

a guilty plea in order for the defendant’s counsel to provide

effective assistance; a defendant’s ignorance of the collateral

consequences of a plea does not render the plea involuntary, and

counsel’s failure to properly advise regarding the collateral conse-

quences of a plea does not bear on whether the defendant properly

understood the decision to enter the plea.

366 291 M

ICH

363 [Jan

6. C

RIMINAL

AW —

TTORNEY AND

LIENT —

UILTY

LEAS —

FFENDERS

EGISTRATION

CT —

FFECTIVE

SSISTANCE OF

OUNSEL

To provide effective assistance of counsel, defense counsel must

advise a defendant contemplating a plea of guilty with regard to an

offense listed in the Sex Offenders Registration Act that as a

consequence of the guilty plea, the defendant will be required to

whether the plea was knowingly made (MCL 28.721 et seq.).

Bill Schuette, Attorney General, B. Eric Restuccia,

Solicitor General, Jessica R. Cooper, Prosecuting Attor-

ney, John S. Pallas, Chief, Appellate Division, and

Janice A. Kabodian, Assistant Prosecuting Attorney, for

the people.

Terence R. Flanagan for defendant.

Before: F

ORT

OOD

, P.J., and J

ANSEN

and W

HITBECK

JJ.

HITBECK

, J. Defendant, Derek Fonville, appeals by

leave granted the trial court’s order denying his motion

for relief from judgment. Fonville pleaded guilty to a

count of child enticement

as part of a plea bargain. We

reverse and remand the matter to the trial court.

I. BASIC FACTS

The circumstances from which this action arises

involve the two children of Fonville’s girlfriend: JR 1

(aged 10) and JR 2 (aged 8). On the evening of April 19,

2006, the children’s mother voluntarily placed them in

Fonville’s care while she was at work. However, Fonville

failed to return the children at the agreed-upon time;

instead, he kept them through the night and well into

the next day. The police recovered the children during

the afternoon of April 20, 2006. The children were tired,

MCL 750.350.

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but unharmed. The prosecution accused Fonville of

detaining the children in his vehicle while he and a

friend were driving around under the influence of

alcohol and drugs.

The prosecution originally charged Fonville with two

counts of child enticement and two counts of kidnap-

ping.

Following the preliminary examination, the dis-

trict court bound Fonville over on the original counts,

holding as follows:

While it was clear that [Fonville] did have consent to

have the children when he first took them on April 19th,

his job at that point in time, for lack of a better word, was

to keep an eye on the kids while [their mother] went to

work and that he would pick her up later. And the under-

standing was that the kids would be returned to her at that

point in time. While he had consent the fact of the matter

is he did not have consent to keep the kids overnight. He

even admitted the same to Detective [Lawrence] Fetherolf

that he did keep the kids overnight; took them on a number

of different journeys out to Pontiac it sounds like. And did

not return the children home at any point during the night

of the 19th or the morning of the 20th even when [JR 1]...

requested that he be allowed to go home. He was told “no”

at that point in time. The testimony of Detective Fetherolf

was that [Fonville] felt it more important to take care of

[his friend]...than to return the children to their mother

at that point in time. So, I think the best you’ve got is a

question of fact. The matter will be bound over to circuit

court on all charges and bond will be continued.

In an amended information, the prosecution dropped

the two kidnapping charges and kept only the two

counts of child enticement. Pursuant to an agreement

with the prosecution, Fonville agreed to enter a guilty

plea to one count of child enticement in exchange for

the prosecution’s dropping the other count of child

MCL 750.349.

368 291 M

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363 [Jan

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enticement. Fonville’s plea bargain included a Cobbs

agreement, which was that the trial court would sen-

tence him at the low end of the sentencing guidelines

recommended minimum sentence range.

At a September 2006 plea proceeding, defense coun-

sel stated that he had explained the plea bargain to

Fonville and Fonville’s mother. Fonville agreed on the

record that it was his understanding that he would

enter the Cobbs plea with a minimum-sentence cap of

51 months and that he would be able to withdraw his

plea if the minimum sentence went beyond that. The

trial court then went on to accept Fonville’s guilty plea.

During the trial court’s questioning, Fonville stated

that, on April 20, 2006, he “pretty much endangered

two young kids” by “doing drugs and driving around

with them in the car.” Fonville acknowledged that the

children were less than 14 years old. He admitted that

he and a friend were using cocaine at the time the

children were with him. Fonville also agreed with the

prosecution that he and his friend repeatedly drove to

Pontiac to get crack cocaine and that the children were

with them. He agreed that his addiction to crack

cocaine was “feeding” his mind. Fonville acknowledged

that he knew that he was supposed to return the

children to their home at 11:00 p.m. on April 19. He

agreed that “because of getting crack and everything,”

he “ended up . . . keeping the kids with [him], driving

around from 11 p.m. at night through 2 p.m. in the

afternoon the next day[.]” The prosecution asked him,

“So you fraudulently detained these kids, correct?”;

People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993) (indicating that

a Cobbs agreement is one in which a defendant agrees to plead guilty or

no contest in reliance on the trial court’s preliminary evaluation of the

sentence; however, the defendant is allowed to withdraw the plea in the

event that the trial court determines that it must exceed the preliminary

evaluation).

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Fonville answered, “Yes.” The prosecution and the

defense indicated their satisfaction with the factual

basis for Fonville’s plea to the charge of child entice-

ment. And the trial court stated that it was satisfied

that Fonville’s plea was knowingly, voluntarily, and

accurately made.

However, at the September 2006 sentencing hearing,

defense counsel informed the trial court that Fonville

wished to withdraw his plea. Defense counsel explained

that Fonville wished to withdraw his plea because the

plea agreement would encompass the requirement that

he register as a sex offender. Fonville then addressed

the trial court and stated that he wanted a jury trial.

Fonville asserted that his defense counsel had told him

that he would be making a “big mistake going to trial.”

He further explained:

When I came into the court on the 13th of September, I

sat in the holding cell all day and never came to court cause

my lawyer set a court date with the prosecutor indicating

to him that I would take a [Cobbs] plea, when I did not.

That’s why I never came into court that day, because I was

supposed to notify my lawyer and if I wanted to plead to get

hold of him, and I never agreed to it. So, naturally, I didn’t

come to court.

So then I came back into court on the 15th of September,

that following Friday, and that’s when my lawyer kept

telling me to taking [sic] a Cobbs plea, four years to ten. I

told him numerous times I wanted a jury. That’s when he

said a second time I was making a mistake.

So, when I came into court the 15th of September my

lawyer came in a third time and said to my mom, you

should take the plea. While the prosecutor was talking to

my mom, I looked at my mom and she said “take it”. So, I

did, thinking she was looking out for my best interest, even

though I didn’t do this. When I talked to my mom later that

evening she said the prosecutor said he knew I didn’t

370 291 M

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363 [Jan

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kidnap those kids and he said to my mom if I went to trial

that he would have to play hardball.

Fonville denied the enticement charge, stating: “I

would never lure a kid or kidnap anyone. It’s a hard pill

to swallow especially when I would never force [JR 2] or

[JR 1] to do something they didn’t want to do. I love

kids and always try to help if I can.” The trial court

indicated that it needed to review the plea transcript, so

it adjourned sentencing.

Before the trial court could reconvene for sentencing,

Fonville’s attorney moved to withdraw as counsel for

Fonville, which the trial court granted. And in January

2007, Fonville, represented by new counsel, again

moved to withdraw his plea. Although admitting child

endangerment, Fonville asserted in his motion that he

should be allowed to withdraw his plea because he had

no “evil, criminal intent,” merely “reckless criminal

intent.” The prosecution responded, asserting that Fon-

ville’s admission that he fraudulently detained the

children supported the plea.

At a February 2007 hearing on the motion, defense

counsel asserted that Fonville had entered his plea on

the basis of inaccurate and misleading advice of his

former counsel and that he was innocent of the charge

of child enticement. Defense counsel asserted that when

Fonville was told that he could plead guilty of child

enticement instead of kidnapping, he did not under-

stand that both kidnapping and child enticement car-

ried potential life sentences. Defense counsel contended

that the facts did not support a conviction of child

enticement, noting that the children were unharmed.

Defense counsel argued that the factual basis for the

plea only supported a conviction of second-degree child

abuse, to which Fonville was willing to plead guilty.

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The prosecution responded, noting that the tran-

script of the plea proceedings clearly showed that Fon-

ville acknowledged that he understood that the maxi-

mum sentence for child enticement is life in prison. The

prosecution further argued that the facts as pleaded

showed that Fonville had committed the offense of child

enticement. The prosecution pointed out that Fonville

did not claim innocence: he admitted that he fraudu-

lently detained the children by concealing their where-

abouts from their mother while he was driving around

looking for cocaine. Thus, the prosecution contended

that Fonville had not demonstrated that the requested

plea withdrawal would be in the interest of justice. The

prosecution additionally argued that permitting Fon-

ville to withdraw his plea would result in substantial

prejudice. In support of this position, the prosecution

noted that if the case went to trial, the children would

have to testify. According to the prosecution, this would

be extremely difficult for them because they would have

to be psychologically prepared to do so.

Considering Fonville’s motion, the trial court held

that (1) Fonville’s plea was valid, (2) Fonville entered

into a Cobbs agreement, (3) the prosecutor was the sole

charging authority, (4) nothing indicated that Fonville

was innocent, and (5) Fonville admitted the facts sup-

porting his plea. The trial court ultimately reasoned:

. . . I understand that those are the types of allegations

that, quite frankly, could be made in a lot of cases and not

constituting child enticement, but the requirement to go

forward with a child enticement charge, again, is not

within the province of the Court finding that that would

outweigh the benefits of the finality and all the other issues

associated and have been set forth by the People.

The Court also notes that the Court gave [Fonville] a

Cobbs impression [sic] which was to the, basically, the

bottom of the guidelines and so given the totality of

372 291 M

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363 [Jan

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circumstances and for the reasons as set forth by the

People, [Fonville’s] motion to withdraw his plea is denied.

At the subsequent sentencing hearing, defense coun-

sel acknowledged the Cobbs agreement for the trial

court not to exceed the guidelines minimum of 51

months, but he attempted to persuade the trial court to

deviate below that minimum. Defense counsel noted

Fonville’s history with the children, the fact that the

children were not harmed, and the fact that the chil-

dren’s mother had submitted a letter stating that he did

not deserve jail time.

To the extent that Fonville was seeking again to

withdraw his plea, the trial court reiterated that Fon-

ville’s plea was knowing, voluntary, and accurate. It

found no basis for permitting the withdrawal. The trial

court then provided Fonville with his opportunity for

allocution, and Fonville told the trial court:

On April 20th, 2006 I had possession of my girlfriend’s

two young children, [JR 1], age ten, and [JR 2], age eight.

I was supposed to return the two children to the mother

at 11 p.m. . . . I did not do so. Instead I retained possession

of the children until I was apprehended by the police at

12:15 p.m., in the afternoon of April 21st, 2006.

I admitted that I did not return on time and I kept the

children in the car with me while I drove around Oakland

County looking for cocaine continuously from 11 p.m. until

apprehended by police the next day at 12:15 p.m. on

April 21st, 2006.

However, there’s one important fact, which is, that

approximately one hour before being apprehended Water-

ford Police investigated my vehicle, questioned... me

[and] a passenger . . . , and the two children, who were

playing basketball, and all were released to go on our

way....

***

2011] P

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. . . I plead [sic] guilty....At...thedate of sentence, I

read a letter to the Court detailing why I wanted to

withdraw my plea. I essentially stated that I did not receive

accurate advice and claimed my innocence to kidnapping.

In addition, I never realized that I would go down as a

sexual offender.

I always thought I was guilty of some sort of child

endangerment charge because of my actions, not an entice-

ment charge, which denotes some kind of evil criminal

intent as oppose [sic] to reckless intent....

***

...Iwould like to say that with child enticement on my

record makes me a sexual predator.

I will never make the money I’m used to making and my

career will be over.

I had permission to have these children, which I’ve had

permission before. So how can I be charged with child

enticement....

***

I did put them [sic] children in a bad situation and I am

sorry that my addiction took over. I was drinking along

with taking xanax, which literally made me blackout.

That’s the real reason I’m in this situation. The fact of the

matter is, yes, I should be punished, but enticement is not

even chose [sic] to child abuse.

Again, to the extent that Fonville sought to withdraw

his plea, the trial court denied the request. The trial

court then sentenced Fonville to a term of 51 months to

20 years in prison.

Fonville moved to withdraw his plea after sentencing,

arguing again that the facts did not support the charge

of child enticement. But the trial court denied the

motion, finding that Fonville had failed to present any

new issues.

374 291 M

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363 [Jan

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Fonville filed a delayed application for leave to ap-

peal, challenging the constitutionality of the child-

enticement statute, the prosecution’s choice to charge

him with child enticement, and the denial of his motion

to withdraw his plea on the basis of ineffective assis-

tance of counsel, coercion, and prosecutorial miscon-

duct. This Court denied the application for lack of

merit.

The Michigan Supreme Court also denied his

application for leave to appeal.

Fonville then moved in the trial court for relief from

judgment, raising the same issues that he now brings on

appeal. The trial court held that Fonville had not

demonstrated good cause for having failed to raise these

issues in his earlier application for leave to appeal and

that he had failed to show actual prejudice. The trial

court concluded that defense counsel’s failure to inform

Fonville of the collateral consequences of the plea,

namely inclusion on the sex offender registry, did not

constitute ineffective assistance of counsel. The trial

court further found “no irregularity so offensive to the

maintenance of a sound judicial process that [Fon-

ville’s] conviction should not be allowed to stand.”

Accordingly, the trial court denied Fonville’s motion.

Fonville moved for reconsideration, but the trial court

denied the motion.

Fonville now appeals by leave granted.

II. CLAIMS ON APPEAL

A. STANDARD OF REVIEW

This Court reviews for an abuse of discretion a trial

People v Fonville, unpublished order of the Court of Appeals, entered

October 31, 2007 (Docket No. 280968).

People v Fonville, 480 Mich 1136 (2008), reconsideration den 481 Mich

881 (2008).

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court’s denial of a defendant’s motion for relief from

judgment.

This Court also reviews for an abuse of

discretion a trial court’s denial of a defendant’s motion

to withdraw a plea.

An abuse of discretion occurs when

the decision results in an outcome falling outside the

range of principled outcomes.

Moreover, this Court

reviews de novo constitutional issues.

B. LEGAL STANDARDS

According to MCR 6.508(D), a defendant seeking

relief from judgment has the burden of establishing

entitlement to such relief. MCR 6.508(D)(3) also states

that a court may not grant that relief if, among other

things, the motion

alleges grounds for relief...which could have been raised

on appeal from the conviction and sentence or in a prior

motion under this subchapter, unless the defendant dem-

onstrates:

(a) good cause for failure to raise such grounds on appeal

or in the prior motion, and

(b) actual prejudice from the alleged irregularities that

support the claim for relief. As used in this subrule, “actual

prejudice” means that,

***

(ii) in a conviction entered on a plea of guilty,...the

defect in the proceedings was such that it renders the plea

an involuntary one to a degree that it would be manifestly

unjust to allow the conviction to stand;

(iii) in any case, the irregularity was so offensive to the

maintenance of a sound judicial process that the conviction

People v Ulman, 244 Mich App 500, 508; 625 NW2d 429 (2001).

People v Billings, 283 Mich App 538, 549; 770 NW2d 893 (2009).

Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).

People v McGee, 258 Mich App 683, 699; 672 NW2d 191 (2003).

376 291 M

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should not be allowed to stand regardless of its effect on the

outcome of the case[.]

***

The court may waive the “good cause” requirement of

subrule (D)(3)(a) if it concludes that there is a significant

possibility that the defendant is innocent of the crime.

C. WITHDRAWAL OF PLEA

Fonville argues that he should be allowed to with-

draw his plea to the charge of child enticement because

he has consistently maintained his innocence of the

crime, the plea was entered on the basis of an incorrect

charge, and there was an insufficient factual basis to

support a conviction.

When reviewing whether the factual basis for a plea

was adequate, this Court considers whether the fact-

finder could have found the defendant guilty on the

basis of the facts elicited from the defendant at the plea

proceeding.

“A factual basis to support a plea exists if an inculpatory

inference can be drawn from what the defendant has

admitted. This holds true even if an exculpatory inference

could also be drawn and the defendant asserts that the

latter is the correct inference. Even if the defendant denies

an element of the crime, the court may properly accept the

plea if an inculpatory inference can still be drawn from

what the defendant says.”

[

]

Additionally, MCR 6.310(B) provides, in pertinent part,

that a motion to withdraw a plea before sentencing

should only be granted if the defendant is able to show

People v Adkins, 272 Mich App 37, 38; 724 NW2d 710 (2006).

People v Thew, 201 Mich App 78, 85; 506 NW2d 547 (1993), quoting

People v Jones, 190 Mich App 509, 511-512; 476 NW2d 646 (1991)

(citations omitted).

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that withdrawal of the plea is “in the interest of

justice,” meaning that the defendant has to articulate

“a fair and just reason” for withdrawing the plea.

Fair

and just reasons include reasons like a claim of actual

innocence or a valid defense to the charge.

Things that

are not considered fair and just reasons are dissatisfac-

tion with the sentence or incorrect advice from the

defendant’s attorney.

Fonville pleaded guilty of child enticement. MCL

750.350(1) defines that crime as follows:

A person shall not maliciously, forcibly, or fraudulently

lead, take, carry away, decoy, or entice away, any child under

the age of 14 years, with the intent to detain or conceal the

child from the child’s parent or legal guardian, or from the

person or persons who have adopted the child, or from any

other person having the lawful charge of the child.

At the plea proceeding, Fonville testified that he

“pretty much endangered two young kids[.]” He did

this by “doing drugs and driving around with them in

the car.” He admitted that he and his friend were

driving around with the children while getting crack

cocaine. He admitted that he knew that he was sup-

posed to return the children to their mother at 11:00

p.m. and that he had told both the children and their

mother that this was what he was going to do. “But [he]

ended up because of getting crack and everything

keeping the kids with [him], driving around from

11 p.m. at night through 2 p.m. in the afternoon the

next day....” Fonville agreed that he had “fraudu-

lently detained” the children.

People v Wilhite, 240 Mich App 587, 594; 618 NW2d 386 (2000)

(quotation marks and citation omitted).

Id. at 596.

Id. at 596-597; People v Haynes (After Remand), 221 Mich App 551,

559; 562 NW2d 241 (1997).

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Given that Fonville’s admissions were in line with

the elements of the charged crime, we conclude that the

trial court did not abuse its discretion by denying his

motion to withdraw his plea. An inculpatory inference

can be drawn from what Fonville admitted. That is,

although he originally might have had consent to take

the children, he admitted that he later fraudulently

detained them by driving around and doing drugs until

the next afternoon while the children were in the car

instead of returning them at 11:00 p.m. as agreed upon

with their mother.

Fonville did not sufficiently demonstrate that with-

drawal of his plea was in the interest of justice. More-

over, although Fonville claimed that he was innocent of

the crime as charged because he did not have an “evil

intent,” he never argued that he was actually innocent

of the alleged conduct. The prosecution has authority to

choose appropriate charges,

and Fonville voluntarily

pleaded guilty to the charge pursuant to a valid plea

agreement placed on the record.

D. CRUEL AND UNUSUAL PUNISHMENT

Fonville argues that the requirement that he register as

a sex offender when there was absolutely no sexual

component to the offense committed amounts to cruel and

unusual punishment under the Michigan Constitution.

He contends that, at minimum, he should be entitled to an

order removing his name from the sex offender registry.

The Sex Offenders Registration Act (SORA)

re-

quires persons convicted of certain listed offenses to

The listed offenses include

People v Williams, 186 Mich App 606, 609-610; 465 NW2d 376 (1990).

MCL 28.721 et seq.

MCL 28.723.

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child enticement.

Child enticement involves the lead-

ing, taking, carrying away, decoying, or enticing away of

a child under 14 years of age with the intent to detain or

conceal the child from the child’s parent. Thus, Fonville

is correct that the offense of child enticement includes

no express sexual component as a requirement for a

conviction of the offense.

However, the Legislature has made clear that the

intended purpose of SORA is to protect public safety

and monitor those persons who pose a potential danger

to children:

The legislature declares that the sex offenders registra-

tion act was enacted pursuant to the legislature’s exercise

of the police power of the state with the intent to better

assist law enforcement officers and the people of this state

in preventing and protecting against the commission of

future criminal sexual acts by convicted sex offenders. The

legislature has determined that a person who has been

convicted of committing an offense covered by this act poses

a potential serious menace and danger to the health, safety,

morals, and welfare of the people, and particularly the

children, of this state. The registration requirements of this

act are intended to provide law enforcement and the people

of this state with an appropriate, comprehensive, and

effective means to monitor those persons who pose such a

potential danger.

[

]

Thus, although the offense of child enticement includes

no express sexual component as a requirement for a

conviction of the offense, the Legislature has neverthe-

less deemed registration for those convicted of that

crime to be a necessary measure to protect the safety

and welfare of the children of this state. And in this

case, Fonville admitted that his conduct, while not

sexual in nature, “endangered two young kids[.]”

MCL 28.722(e)(vii); MCL 750.350.

MCL 28.721a (emphasis added).

380 291 M

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Moreover, requiring that a defendant comply with

the statutory mandate that the defendant register as a

sex offender following a conviction of a listed offense is

not punishment. Although a defendant may see regis-

tration as a penalty for a conviction of a listed offense,

it is not actually a punitive measure “ ‘intended to

chastise, deter or discipline an offender.’ ”

It is merely

a “remedial regulatory scheme furthering a legitimate

state interest.”

To the extent that Fonville argues that we should

follow People v Dipiazza,

we disagree because that case

is factually distinguishable. In Dipiazza, this Court held

that requiring the defendant in that case to register as

a sex offender was cruel or unusual punishment.

However, in that case, after the defendant completed

probation, his case was dismissed under the terms of

the Holmes Youthful Trainee Act,

leaving him with no

conviction on his record.

Despite the dismissal of his

case, because he was assigned to youthful-trainee status

on August 29, 2004, he continued to remain required to

SORA, a defendant assigned to youthful-trainee status

after October 1, 2004, was not required to register

(unless the defendant’s status of youthful trainee was

revoked and an adjudication of guilt was entered).

This Court concluded that, under those circumstances,

requiring the defendant to register as a sex offender

People v Golba, 273 Mich App 603, 617; 729 NW2d 916 (2007),

quoting Doe v Kelley, 961 F Supp 1105, 1108 (WD Mich, 1997).

Golba, 273 Mich App at 617.

People v Dipiazza, 286 Mich App 137; 778 NW2d 264 (2009).

Id. at 156.

MCL 762.11 et seq.

Dipiazza, 286 Mich App at 140.

Id. at 140, 143.

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was cruel or unusual punishment.

Conversely, there has been no similar amendment of

the statutory scheme under which Fonville pleaded

guilty and his case has not been dismissed. Therefore,

we disagree that the reasoning in Dipiazza applies in

this case.

E. EFFECTIVE ASSISTANCE OF COUNSEL

Fonville argues that he did not receive effective

assistance of counsel because his defense counsel failed

to move to quash the information, which he alleges

overcharged him. Fonville also argues that he did not

receive effective assistance of counsel because his de-

fense counsel failed to advise him that his conviction of

child enticement would require that he register as a sex

offender. While we disagree with his first contention, we

find merit in the second.

In asserting a claim of ineffective assistance of coun-

sel, a defendant must show (1) that defense counsel’s

performance fell below an objective standard of reason-

ableness under prevailing professional norms and (2)

that defense counsel’s deficient performance so preju-

diced the defendant that there is a reasonable probabil-

ity that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.

proving these elements, the defendant must overcome a

strong presumption that defense counsel’s performance

constituted sound trial strategy.

Absent an evidentiary

Id. at 156.

Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d

674 (1984); see also People v Pickens, 446 Mich 298, 302-303; 521 NW2d

797 (1994).

People v Riley (After Remand), 468 Mich 135, 140; 659 NW2d 611

(2003).

382 291 M

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hearing, this Court’s review of counsel’s performance is

limited to mistakes apparent on the record.

1. FAILURE TO MOVE TO QUASH THE INFORMATION

To the extent that Fonville argues that he did not

receive effective assistance of counsel because his de-

fense counsel failed to move to quash the information,

Fonville has not properly presented this argument to

this Court because he failed to identify it as an issue in

his statement of questions presented.

Therefore, he

has waived this issue for appellate review.

We note, however, that a motion to quash the infor-

mation would have been futile. As stated, following the

preliminary examination, the district court bound Fon-

ville over on the original counts, including child entice-

ment, holding as follows:

While it was clear that [Fonville] did have consent to

have the children when he first took them on April 19th,

his job at that point in time, for lack of a better word, was

to keep an eye on the kids while [their mother] went to

work and that he would pick her up later. And the under-

standing was that the kids would be returned to her at that

point in time. While he had consent the fact of the matter

is he did not have consent to keep the kids overnight. He

even admitted the same to Detective Fetherolf that he did

keep the kids overnight; took them on a number of differ-

ent journeys out to Pontiac it sounds like. And did not

return the children home at any point during the night of

the 19th or the morning of the 20th even when [JR 1]...

requested that he be allowed to go home. He was told “no”

at that point in time. The testimony of Detective Fetherolf

was that [Fonville] felt it more important to take care of

People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).

MCR 7.212(C)(5); Caldwell v Chapman, 240 Mich App 124, 132; 610

NW2d 264 (2000).

Caldwell, 240 Mich App at 132.

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[his friend]...than to return the children to their mother

at that point in time. So, I think the best you’ve got is a

question of fact. The matter will be bound over to circuit

court on all charges and bond will be continued.

Because sufficient evidence existed at the prelimi-

nary examination to support a bindover, defense coun-

sel was not ineffective for failing to move to quash the

information.

“[T]rial counsel cannot be faulted for

failing to raise an objection or motion that would have

been futile.”

Here, the district court found that there

was sufficient evidence to create a question of fact

concerning whether Fonville committed the acts as

charged. Therefore, Fonville’s claim is without merit.

2. FAILURE TO ADVISE REGARDING SEX OFFENDER

REGISTRATION REQUIREMENT

a. BASIC LEGAL PRINCIPLES

“[W]hen a defendant argues ineffective assistance of

counsel in the context of a guilty plea, the defendant is

essentially arguing that counsel failed to provide suffi-

cient information regarding the consequences, ele-

ments, or possible defenses of the plea.”

And “ ‘[t]o

establish ineffective assistance of counsel in the context

of a guilty plea, courts must determine whether the

defendant tendered a plea voluntarily and understand-

ingly.’ ”

“Absent sufficient information, the plea would

be unknowing and, consequently, involuntary.”

“De-

fense counsel’s advice does not need to be correct, but it

People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998).

People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).

People v Davidovich, 238 Mich App 422, 427; 606 NW2d 387 (1999).

Id. at 425, quoting People v Corteway, 212 Mich App 442, 445; 538

NW2d 60 (1995).

Davidovich, 238 Mich App at 427.

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must fall within the range of competence demanded of

attorneys in criminal cases.”

More specifically,

for purposes of determining whether defense counsel was

effective[,] a defendant need only be made aware of the

direct consequences of a guilty plea. A defendant’s igno-

rance of the collateral consequences of a plea does not

render the plea involuntary. Counsel’s failure to properly

advise of collateral consequences of a plea does not bear on

whether a defendant properly understood the decision to

plead guilty to the charges in question.

[

]

Examples of collateral or incidental consequences

include the loss of employment, loss of the right to vote,

loss of the right to travel freely abroad, loss of the right

to a driver’s license, loss of the right to possess firearms,

a plea’s possible enhancing effects on a subsequent

sentence, institution of separate civil proceedings

against the defendant for commitment to a mental-

health facility, loss of good-time credit, possibility of

imposition of consecutive sentences, possibility of un-

desirable discharge from the armed forces,

disqualifi-

cation from public benefits, and loss of business or

professional licenses.

In contrast, this Court indicated in People v Boatman

that an example of a direct consequence of a plea would

be the consequence resulting from being sentenced as

an habitual offender.

In Boatman, although conclud-

ing that it lacked the authority to expand the scope of

Id. at 425.

Id. at 428 (emphasis added); see also People v Haynes, 256 Mich App

341, 349; 664 NW2d 225 (2003) (“[C]riminal defendants may not with-

draw a guilty plea on the ground that they were unaware of the future

collateral or incidental effects of the initial valid plea.”).

Davidovich, 238 Mich App at 429.

Padilla v Kentucky, 559 US ___, ___; 130 S Ct 1473, 1487; 176 L Ed

2d 284, 300 (2010) (Alito, J., concurring).

People v Boatman, 273 Mich App 405, 409; 730 NW2d 251 (2006).

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the language of MCR 6.302(B)(2)

to require that a trial

court inform a defendant of the effect of the habitual-

offender statute on the defendant’s sentence, this Court

nevertheless explained that “because of the existence of

specific and separate guidelines applicable to the sen-

tencing of habitual offenders, the effect of a defendant’s

habitual-offender status on sentencing does not com-

prise a ‘collateral consequence.’ ”

This Court stressed

that a defendant must know the most serious conse-

quences of a guilty plea.

Therefore, according to this

Court,

[t]he existence of separate guidelines specified for use with

habitual offenders demonstrates the necessity of informing

a defendant of the use of these guidelines to ensure

“understanding” of the consequences of a plea, particularly

under the circumstances of this case where the difference

in sentencing comprised a distinction between a misde-

meanor and a felony, and a difference of 13 years in the

sentence imposed.

[

]

b. THE PARTIES’ ARGUMENTS

The prosecution argues that sex offender registration

is a collateral consequence of a conviction and, there-

fore, defense counsel’s failure to inform Fonville of that

requirement did not render his plea defective. In mak-

MCR 6.302(B) requires only that a trial court advise and determine

that the defendant understands the following:

(1) the name of the offense to which the defendant is pleading;

the court is not obliged to explain the elements of the offense, or

possible defenses;

(2) the maximum possible prison sentence for the offense and

any mandatory minimum sentence required by law[.]

Boatman, 273 Mich App at 409.

Id. at 412.

Id.

386 291 M

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ing this argument, the prosecution relies on an unpub-

lished decision of this Court, In re Lyons.

In Lyons,a

panel of this Court held that a trial court’s failure to

inform a defendant that he would be required to regis-

ter as a sex offender did not provide a basis for over-

turning an otherwise valid plea.

Specifically, the Lyons

panel stated that “[r]egistration as a sex offender is a

collateral consequence of a conviction.”

The prosecu-

tion acknowledges that sex offender registration is a

serious consequence of a guilty plea. However, the

prosecution observes that other recognized conse-

quences, like loss of the right to vote, are also serious

but, nevertheless, merely incidental consequences of

the guilty plea. The prosecution also notes that in

Magyar v State, the Mississippi Supreme Court recog-

nized that “virtually every other jurisdiction to address

the question” has held that “the requirement to regis-

ter as a sex offender is a collateral consequence of a

guilty plea[.]”

In those cases, the courts reasoned that

sex offender registration is a collateral consequence of a

guilty plea because the registration requirement is not

penal in nature and thus not part of sentencing proce-

dures.

In re Lyons, unpublished memorandum opinion of the Court of

Appeals, issued December 19, 2000 (Docket No. 217858).

Id. at 1.

Id.

Magyar v State, 2007-CT-00740-SCT (¶ 11); 18 So 3d 807, 811-812 &

n 5 (Miss, 2009) (citing cases from Alabama, Arizona, Colorado, Dela-

ware, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky, Massa-

chusetts, Missouri, Nevada, New Jersey, New Mexico, New York, North

Dakota, Ohio, Oregon, Pennsylvania, South Carolina, Tennessee, Wash-

ington, Wisconsin, and Wyoming).

See, e.g., Robinson v State, 730 So 2d 252, 254 (Ala Crim App, 1998)

(“Registration and community notification requirements for sex offend-

ers do not constitute punishment.”); People v Montaine, 7 P3d 1065, 1067

(Colo App, 1999) (“Although the duty to register flows directly from

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Fonville, however, argues that this Court should hold

that defense counsel was required to inform him that he

must register as a sex offender because that require-

ment was not a future collateral or incidental effect of

the initial valid plea.

Rather, Fonville contends that

registration as a sex offender is an immediate and

absolute effect of his conviction.

Fonville also contends

that a reasonably competent attorney in the practice of

criminal law would have been aware of the requirement

to register as a sex offender. And he contends that if

defense counsel had informed him of the requirement,

he would not have pleaded guilty to the child-

enticement charge.

c. DEFINING THE CONSEQUENCE

The salient determination comes down to whether

registration as a sex offender is a direct or collateral

consequence of a defendant’s guilty plea.

We first note that we are not persuaded by the

prosecution’s reliance on In re Lyons or Magyar. Lyons

is unpublished, offered no rationale for its conclusion,

and is not binding on our decision in this case.

Additionally, the cases from other jurisdictions that the

Mississippi Supreme Court cited in Magyar are also not

defendant’s conviction as a sex offender, it does not enhance defendant’s

punishment for the offense.”); State v Partlow, 840 So 2d 1040, 1043 (Fla,

2003) (“A direct consequence must affect the range of punishment in a

definite, immediate, and largely automatic way. The registration require-

ment has absolutely no effect on the ‘range of the defendant’s punish-

ment’ for the crime....”).

See Haynes, 256 Mich App at 349.

See MCL 28.723(1)(a) (requiring that any individual convicted of a

listed offense after October 1, 1995, register under SORA, MCL 28.721 et

seq.); MCL 28.722(e)(vii) (listing MCL 750.350 [child enticement] as a

listed offense under SORA).

See MCR 7.215(C)(1).

388 291 M

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binding on this Court. And although we recognize the

rationale in those cases as persuasive, we are more

persuaded by the reasoning offered by the United

States Supreme Court’s recent decision in Padilla v

Kentucky.

The parallels with this case, although not

exact, are significant.

In Padilla, the Supreme Court considered the ques-

tion whether defense counsel has an obligation to advise

a defendant that the offense to which the defendant is

pleading guilty will result in the defendant’s deporta-

tion from this country. The defendant argued that his

defense counsel’s performance was deficient because

counsel erroneously advised him that he did not “have

to worry” about deportation as a consequence of his

guilty plea.

In truth, the defendant’s plea to the

charged offense “made his deportation virtually man-

datory.”

The Court held that a defense attorney must

inform a defendant whether a plea carries a risk of

deportation.

In so ruling, the Supreme Court agreed with the

defendant that “constitutionally competent counsel

would have advised him that his conviction for drug

distribution made him subject to automatic deporta-

tion.”

The Court reached this conclusion by first

clarifying that although “deportation is a particularly

severe ‘penalty,’...itisnot, in a strict sense, a criminal

Padilla v Kentucky, 559 US ___; 130 S Ct 1473; 176 L Ed 2d 284

(2010).

Id. at ___; 130 S Ct at 1478 (quotation marks and citation omitted).

Id. at ___; 130 S Ct at 1478.

Id. at ___; 130 S Ct at 1478. The Court left it to the lower court to

determine on remand whether the defendant could satisfy the prejudice

prong of the two-pronged ineffective-assistance analysis. Id. at ___; 130 S

Ct at 1483-1484.

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sanction.”

However, the Court went on to explain that

“[a]lthough removal proceedings are civil in nature,...

deportation is nevertheless intimately related to the crimi-

nal process.”

The Court determined that the “nearly...

automatic result” of removal for noncitizen offenders

made it difficult “to divorce the penalty from the convic-

tion in the deportation context.”

Therefore, according to

the Court, “[d]eportation as a consequence of a criminal

conviction is, because of its close connection to the crimi-

nal process, uniquely difficult to classify as either a direct

or a collateral consequence.”

Accordingly, the Court

concluded that “[t]he collateral versus direct distinction is

thus ill-suited to evaluating a Strickland claim concerning

the specific risk of deportation.”

Turning to the merits of the defendant’s ineffective-

assistance claim, the Supreme Court noted that “[t]he

weight of prevailing professional norms supports the

view that counsel must advise her client regarding the

risk of deportation.”

The Court added that its own

Id. at ___; 130 S Ct at 1481. We note that this point is in keeping with

the prevailing conclusion that the statutory mandate that a defendant

regulatory scheme furthering a legitimate state interest.” Golba, 273

Mich App at 617; see also, e.g., Robinson, 730 So 2d at 254 (“Registration

and community notification requirements for sex offenders do not

constitute punishment.”); Montaine, 7 P3d at 1067 (“Although the duty

to register flows directly from defendant’s conviction as a sex offender, it

does not enhance defendant’s punishment for the offense.”); Partlow, 840

So 2d at 1043 (“A direct consequence must affect the range of punishment

in a definite, immediate, and largely automatic way. The registration

requirement has absolutely no effect on the range of the defendant’s

punishment for the crime....”).

Padilla, 559 US at ___; 130 S Ct at 1481.

Id. at ___; 130 S Ct at 1481.

Id. at ___; 130 S Ct at 1482.

390 291 M

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precedent had also recognized the importance of depor-

tation to a defendant’s plea decision.

The Court then

explained that when, as in Padilla, “the terms of the

relevant immigration statute are succinct, clear, and

explicit in defining the removal consequence” for the

defendant’s conviction, defense counsel’s “duty to give

correct advice is . . . clear.”

The Court further noted,

however, that even if the statute is not as clear, the

“[l]ack of clarity in the law . . . does not obviate the need

for counsel to say something about the possibility of

deportation ....”

We recognize a significant parallel to be drawn from

the Supreme Court’s rationale in Padilla to the circum-

stances of this case. Similar to the risk of deportation,

sex offender registration “as a consequence of a crimi-

nal conviction is, because of its close connection to the

criminal process,... difficult to classify as either a

direct or a collateral consequence” and that therefore

“[t]he collateral versus direct distinction is...ill-suited

to evaluat[e] a Strickland claim” concerning the sex-

offender-registration requirement.

Like the consequence of deportation, sex offender

registration is not a criminal sanction, but it is a

particularly severe penalty.

In addition to the typical

stigma that convicted criminals are subject to upon

release from imprisonment, sexual offenders are sub-

ject to unique ramifications, including, for example,

residency-reporting requirements

and place-of-domicile

Id. at ___; 130 S Ct at 1483, citing Immigration & Naturalization

ServvStCyr, 533 US 289, 323; 121 S Ct 2271; 150 L Ed 2d 347 (2001).

Padilla, 559 US at ___; 130 S Ct at 1483.

Id. at ___n 10; 130 S Ct at 1483 n 10.

Id. at ___; 130 S Ct at 1482.

See id. at ___; 130 S Ct at 1481.

MCL 28.724a; MCL 28.725; MCL 28.725a.

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restrictions.

Moreover, sex offender registration is

“intimately related to the criminal process.”

The “au-

tomatic result” of sex offender registration for certain

defendants makes it difficult “to divorce the penalty

from the conviction ....”

Further, when, as here, the sex-offender-registration

statute is “succinct, clear, and explicit” in defining the

registration requirement for the defendant’s convic-

tion, defense counsel’s duty to give correct advice is

likewise clear.

Thus, we conclude that applying the

Padilla rationale to this case supports a holding that

defense counsel must advise a defendant that registra-

tion as a sexual offender is a consequence of the

defendant’s guilty plea.

The failure to inform a plead-

ing defendant that the plea will necessarily require

registration as a sex offender affects whether the plea

was knowingly made.

In reaching our conclusion in this case, we recognize

that this Court held in People v Davidovich that the

possibility that a defendant would be deported was a

collateral, rather than a direct, consequence of his

sentence.

However, that holding does not directly bear

on this case because that case was limited to its facts.

And although the Padilla holding directly contradicts

the Davidovich ruling, this is not a deportation case. We

rely on Padilla simply for the logic of its rationale, not

MCL 28.735.

See Padilla, 559 US at ___; 130 S Ct at 1481.

See id. at ___; 130 S Ct at 1481.

See id. at ___; 130 S Ct at 1483.

Accord Taylor v State, 304 Ga App 878, 882-883; 698 SE2d 384 (2010)

(post-Padilla case, holding that the failure of trial counsel to advise his

client that his guilty plea to a charge of child molestation would require

that he comply with Georgia’s sex-offender-registration requirement

constituted deficient performance).

Davidovich, 238 Mich App at 427-428&n4.

392 291 M

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its ultimate disposition. We also recognize the Davidovich

Court’s concern that “[a]llowing defendants to withdraw

their pleas once they discover that their conviction sub-

jects them to deportation would open the door for defen-

dants to withdraw their pleas for other collateral rea-

sons.”

However, while the Padilla decision has

provided us with the key to open the door to allow

defendants to withdraw their pleas for failure to be

informed of the sex-offender-registration requirement,

we do not see our decision as opening the floodgates to

withdrawal-of-plea motions for other collateral reasons.

Our decision is limited to distinguishing the unique and

mandatory nature of the specific consequence of the

sex-offender-registration requirement from the com-

mon, potential, and incidental consequences associated

with criminal convictions.

Additionally, we note that the prosecution argues

that Padilla is not applicable to this case because the

Supreme Court’s decision in that case does not apply

retroactively. However, as stated, we are not applying

the Padilla decision to dictate the result in this case.

Rather, we are simply borrowing the logic of its ratio-

nale. Moreover, we are mindful that concerns for final-

ity caution that the validity of guilty pleas not be called

into question when entered under the law applicable on

the day the plea is taken.

However, the sex-offender-

registration requirement was on the books at the time

of Fonville’s plea.

And more importantly, Fonville has

shown “serious derelictions on the part of counsel

Id. at 428.

See Padilla, 559 US at ___; 130 S Ct at 1482 (referring to the unique

and specific risk of deportation).

People v Osaghae (On Reconsideration), 460 Mich 529, 534; 596

NW2d 911 (1999).

See id. at 533.

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sufficient to show that his plea was not, after all, a

knowing and intelligent act.”

F. APPLICATION TO FONVILLE

The sex-offender-registration statute is “succinct,

clear, and explicit” in defining the registration require-

ment for Fonville’s conviction of child enticement.

Therefore, to have satisfied his duty to act as constitu-

tionally competent counsel, Fonville’s defense attorney

owed a duty to clearly advise Fonville that his plea to

the charge of child enticement would require that he

Moreover, we also conclude that defense counsel’s

failure to inform Fonville that his plea would require

registration as a sex offender affected whether his plea

was knowingly made. This failure, therefore, prejudiced

Fonville to the extent that, but for counsel’s error, the

result of the proceeding would have been different.

Fonville repeatedly informed the trial court that he

would not have pleaded guilty of child enticement if he

had known that he would also be required to register as

a sex offender. And although the registration require-

ment does not constitute cruel and unusual punishment

in the context of this charge, we do believe that, given

the lack of any sexual component to Fonville’s conduct,

it was all the more imperative that his counsel advise

him of the unique registration consequences of his plea.

III. CONCLUSION

In sum, we conclude that Fonville is not allowed to

withdraw his plea to the charge of child enticement

because there was a sufficient factual basis on the

Id. at 534 (quotation marks and citation omitted).

See Padilla, 559 US at ___; 130 S Ct at 1483.

394 291 M

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record to support his conviction. Likewise, we conclude

that defense counsel was not ineffective for failing to

move to quash the information. We also conclude that

the requirement that defendant register as a sex of-

fender does not amount to cruel and unusual punish-

ment.

However, we conclude that defense counsel’s perfor-

mance was constitutionally defective when he failed to

inform Fonville of the sex-offender-registration require-

ment. And we conclude that this failure prejudiced

Fonville.

Accordingly, we reverse and remand for further pro-

ceedings. We do not retain jurisdiction.

ORT

OOD

,P.J., concurred.

ANSEN

,J.(concurring in part and dissenting in part).

I fully concur with the majority’s determination that

defendant’s attorney rendered ineffective assistance of

counsel by failing to inform defendant that his guilty

plea would require him to register as a sex offender. The

majority correctly concludes that, like the consequence

of deportation at issue in Padilla v Kentucky, 559 US

___; 130 S Ct 1473; 176 L Ed 2d 284 (2010), the

requirement to register as a sex offender is a serious

consequence of which a defense attorney must inform a

client who wishes to plead guilty of certain offenses.

I respectfully dissent, however, from the majority’s

determination that there was a sufficient factual basis

to support defendant’s guilty plea in this case. Defen-

dant pleaded guilty of enticing a child in violation of

MCL 750.350(1), which provides:

A person shall not maliciously, forcibly, or fraudulently

lead, take, carry away, decoy, or entice away, any child

under the age of 14 years, with the intent to detain or

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,J.

conceal the child from the child’s parent or legal guardian,

or from the person or persons who have adopted the child,

or from any other person having the lawful charge of the

child. A person who violates this section is guilty of a felony,

punishable by imprisonment for life or any term of years.

As noted by the majority, defendant informed the

circuit court during the plea proceeding that he “pretty

much endangered two young kids” by “doing drugs and

driving around with [the children] in the car.” Defen-

dant admitted that he was supposed to return the

children to their mother at 11:00 p.m., but he “ended up

because of getting crack and everything keeping the

kids with [him], driving around from 11 p.m. at night

through 2 p.m. in the afternoon the next day[.]” The

circuit court determined that these statements pro-

vided a sufficient factual basis for defendant’s guilty

plea. I cannot agree.

Before accepting a defendant’s plea of guilty, the

circuit court must establish a factual basis for the plea.

MCR 6.302(D)(1); People v Carlisle, 387 Mich 269, 273;

195 NW2d 851 (1972). A factual basis exists for a

defendant’s guilty plea if “the factfinder could properly

convict on the facts elicited from the defendant at the

plea proceeding,” People v Brownfield (After Remand),

216 Mich App 429, 431; 548 NW2d 248 (1996), or if “an

inculpatory inference can reasonably be drawn by a jury

from the facts admitted by the defendant even if an

exculpatory inference could also be drawn and defen-

dant asserts the latter is the correct inference,” Guilty

Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975).

I cannot conclude that the colloquy at the plea

proceeding provided a sufficient factual basis for defen-

dant’s plea of guilty to the charge of child enticement.

The offense of child enticement is a specific-intent

crime. MCL 750.350(1); People v Kuchar, 225 Mich App

396 291 M

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363 [Jan

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,J.

74, 77; 569 NW2d 920 (1997). The intent to detain or

conceal a child from his or her parent is an essential

element of the offense. People v Rollins, 207 Mich App

465, 469; 525 NW2d 484 (1994). I perceive absolutely no

evidence on the record to establish that defendant acted

with the requisite specific intent to detain or conceal

the children from their mother. Indeed, the children’s

mother entrusted the children to defendant’s care in

the first instance. I acknowledge that defendant drove

around Oakland County for hours looking for drugs

with the children in the backseat of his vehicle. But the

children were likely the furthest thing from his mind

during this period. It appears that defendant had only

one true intention while driving in his vehicle—namely,

the intent to locate drugs. No rational trier of fact

would believe that defendant’s actual intention while

he drove throughout Oakland County was to conceal or

detain the children from their mother.

It strikes me that defendant’s failure to return the

children to their mother on time resulted more from his

negligence or drug-induced absentmindedness than

from any criminal intent to conceal or detain the

children. While defendant’s act of searching for drugs

was not laudable by any means, there is no evidence to

suggest that he acted with the specific intent “to detain

or conceal the child[ren] from the child[ren]’s parent or

legal guardian....”MCL750.350(1). Given the testi-

mony adduced at the plea proceeding and the other

evidence presented in this case, no reasonable finder of

fact could conclude beyond a reasonable doubt that

defendant acted with the specific intent to detain or

conceal the children from their mother. Brownfield, 216

Mich App at 431.

I do not believe that there was a sufficient factual

basis for defendant’s guilty plea, see MCR 6.302(D)(1),

2011] P

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,J.

and I therefore conclude that the circuit court erred by

accepting the plea, see MCR 6.302(A). I would remand

with instructions to the circuit court to permit defen-

dant to withdraw his plea. In all other respects, I concur

with the majority’s opinion.

398 291 M

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363 [Jan

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,J.

PEOPLE v DILWORTH

Docket No. 294785. Submitted January 12, 2011, at Lansing. Decided

January 25, 2011, at 9:05 a.m.

An Oakland Circuit Court jury convicted Jimmy Dilworth of third-

degree fleeing and eluding, MCL 257.602a(3)(a), and of driving

while his license was suspended (DWLS), MCL 257.904(1). The

court, Leo Bowman, J., sentenced defendant as a fourth-offense

habitual offender to concurrent terms of three years’ probation

and 365 days’ imprisonment, with credit for 22 days served, for the

fleeing-and-eluding conviction and 365 days’ imprisonment, with

credit for 22 days served, for the DWLS conviction. The court

ordered defendant to pay $1,235 for the costs of his prosecution as

a term of his probation. Defendant appealed, arguing that the

court did not have the authority to order him to pay the costs of his

prosecution.

The Court of Appeals held:

A trial court must have statutory authority to order a criminal

defendant to pay costs associated with his or her trial. When

authorized, those costs must bear a reasonable relation to the

expenses actually incurred in the prosecution. The costs may not

include expenditures made for the maintenance and functioning of

governmental agencies that are to be borne by the public irrespec-

tive of specific violations of the law. Because the record in his case

did not contain the justification for the $1,235 assessment, the

Court of Appeals could not determine whether all of the prosecu-

tion’s costs were allowable. Accordingly, remanding the case was

necessary for the trial court to make a record of what the costs of

prosecution were, determine whether ordering defendant to pay

them was permissible, and, as appropriate, impose or deny them.

Order vacated and case remanded.

RIMINAL

AW —

OSTS OF

ROSECUTION —

SSESSMENT AS A

ROBATION

ERM

A trial court must have statutory authority to order a criminal

defendant to pay costs associated with his or her trial; when

authorized, those costs must bear a reasonable relation to the

expenses actually incurred in the prosecution, and the costs may

not include expenditures made for the maintenance and function-

2011] P

EOPLE V

ILWORTH

399

ing of governmental agencies that are to be borne by the public

irrespective of specific violations of the law; the justification for

the costs must be made part of the trial court record to allow an

appellate court to determine whether the costs were allowable.

Bill Schuette, Attorney General, B. Eric Restuccia,

Solicitor General, Jessica R. Cooper, Prosecuting Attor-

ney, John S. Pallas, Chief, Appellate Division, and

Marilyn J. Day, Assistant Prosecuting Attorney, for the

people.

State Appellate Defender (by Christopher M. Smith)

for defendant.

Before: M

ETER

,P.J., and M. J. K

ELLY

and R

ONAYNE

RAUSE

,JJ.

ONAYNE

RAUSE

, J. Defendant appeals by right his

jury convictions of third-degree fleeing and eluding,

MCL 257.602a(3)(a), and driving while his license was

suspended, MCL 257.904(1). The trial court sentenced

defendant as a fourth-offense habitual offender, MCL

769.12, to concurrent terms of three years’ probation

and 365 days’ imprisonment, with credit for 22 days

served, for the fleeing-and-eluding conviction and 365

days’ imprisonment with credit for 22 days served, for

the conviction of driving while his license was sus-

pended. In addition to other costs and fees assessed, the

trial court ordered defendant to pay $1,235 for the costs

of the prosecution as a term of his probation. On appeal,

defendant argues that the trial court did not have the

authority to order him to pay $1,235 in prosecution

costs. We vacate the order and remand.

The trial court must have statutory authority to

order a criminal defendant to pay costs associated with

the trial. People v Lloyd, 284 Mich App 703, 707; 774

NW2d 347 (2009). Neither of the statutes that defen-

400 291 M

ICH

399 [Jan

dant was convicted of violating provides any such

authority, but the Legislature has the “authority to

enact a general cost provision ....”Id.at709n3.We

review de novo questions of statutory interpretation,

such as whether a statute authorizes the imposition of

costs. People v Martin, 271 Mich App 280, 286-287; 721

NW2d 815 (2006), aff’d 482 Mich 851 (2008).

There are several statutes under which trial courts

may impose costs. MCL 771.3 authorizes a trial court to

order a defendant to pay costs as a condition of proba-

tion; specifically, it authorizes the assessment of costs

“incurred in prosecuting the defendant or providing

legal assistance to the defendant and supervision of the

probationer.” (Emphasis added.) See People v Brown,

279 Mich App 116, 138-139; 755 NW2d 664 (2008).

Under MCL 769.1k(1)(b)(iii), a trial court may order

the defendant to pay “[t]he expenses of providing legal

assistance to the defendant.” And under MCL

769.34(6), a trial court may order costs as part of the

sentence. Because the Legislature has set forth specific

circumstances under which trial courts may impose

costs, a trial court generally has the discretionary

authority to order a criminal defendant to pay the costs

of prosecution.

When authorized, the costs of prosecution imposed

“must bear some reasonable relation to the expenses

actually incurred in the prosecution.” People v Wallace,

245 Mich 310, 314; 222 NW 698 (1929). Furthermore,

those costs may not include “expenditures in connection

with the maintenance and functioning of governmental

agencies that must be borne by the public irrespective

of specific violations of the law.” People v Teasdale, 335

Mich 1, 6; 55 NW2d 149 (1952).

In this case, the prosecutor offered to provide the

trial court with details of the expenses that were

2011] P

EOPLE V

ILWORTH

401

claimed to justify the $1,235 in costs, but that informa-

tion was never placed into the record. Furthermore, it

appears from the transcript of the proceedings that

defendant may not have been afforded the opportunity

to challenge those costs. We have no way to know the

extent to which the costs were imposed on the basis of

appropriate charges, such as expert witness fees,

Brown, 279 Mich App at 139, or impermissible charges,

such as the assistant prosecutor’s wages, which were

set by a board of supervisors pursuant to a statute and

independent of any particular defendant’s case, see

MCL 49.34. The costs imposed are likely all allowable,

but as a court of record without the benefit of an

adequate record, we cannot so determine.

We therefore vacate the trial court’s order imposing

the costs of prosecution, and we remand this matter to

the trial court to make a record of what the costs were,

determine whether ordering defendant to pay them is

permissible, and, if appropriate, impose or deny them.

We do not retain jurisdiction.

402 291 M

ICH

399 [Jan

STOCK BUILDING SUPPLY, LLC v PARSLEY HOMES OF

MAZUCHET HARBOR, LLC

Docket No. 294098. Submitted January 11, 2011, at Detroit. Decided

January 25, 2011, at 9:10 a.m.

Stock Building Supply, L.L.C., brought an action in the Macomb Circuit

Court against P arsley Homes of Mazuchet Harbor, L.L.C., and others,

seeking a lien for foreclosure when the general contractor of a

home-building project failed to pay for construction work done by

Stock. Although it was not initially named as a defendant, Weimer

Plumbing, Inc., was allowed to intervene as a plaintiff because it, too,

had not been paid, and it also sought a lien for foreclosure. Weimer

had contracted to install rough and finish plumbing, including

installing bathroom and kitchen fixtures. Weimer had also performed

repair work in May 2007 when some leaks developed while the work

was still under warranty. The court, Peter J. Maceroni, J., found that

Weimer had completed its construction work no later than September

2006 and concluded that Weimer’s construction lien was therefore

invalid because it had not been timely filed and dismissed Weimer’s

lien. Weimer appealed.

The Court of Appeals held:

The Construction Lien Act, MCL 570.1101 et seq., is a compre-

hensive scheme to protect the rights of lien claimants and the rights

of property owners. MCL 570.1111(1) provides that a construction

lien must be filed with the register of deeds within 90 days after the

lien claimant’s last furnishing of labor or material for the improve-

ment. An “improvement” is work that confers value beyond the value

furnished at the time the initial installation work was completed. It

does not include the performance of warranty work to correct

deficiencies in work performed or defects in fixtures installed by the

contractor. The distinguishing factor between a repair constituting

an improvement to the real property and warranty work is whether

the work in question conferred any value beyond the value furnished

by the completion of the original work. Only an improvement

commences a new 90-day filing period. Weimer’s May 2007 repair

work did not confer any value beyond the value furnished at the time

the initial installation work was completed, was not an addition to the

original agreement, and was not it in furtherance of the original

2011] S

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agreement. It merely provided that which was originally contracted

for: fully and properly functioning plumbing fixtures in a new house.

The 90-day filing period provided by MCL 570.1111(1) commences

when the claimant’s work is completed, regardless of when or

whether the work was inspected or paid for. T o commence the filing

period, work must constitute an improvement and be done in good

faith; warranty work done in good faith is insufficient to start a new

filing period. The trial court did not err by concluding that the work

in May 2007 was not an improvement under the statutory definition

and that the time period for filing a lien began running no later than

September 2006 and had expired long before Weimer sought to file it.

Affirmed.

IENS —

ONSTRUCTION

IENS —

ILING

ERIOD —

OMMENCEMENT

Under the Construction Lien Act, a construction lien must be filed

with the register of deeds within 90 days after the lien claimant’s

last furnishing of labor or material for the improvement; an

“improvement” is work that confers value beyond the value

furnished at the time the initial installation work was completed;

it does not include the performance of warranty work to correct

deficiencies in work performed or defects in fixtures installed by

the contractor; the distinguishing factor between a repair consti-

tuting an improvement to the real property and warranty work is

whether the work in question conferred any value beyond the

value furnished by the completion of the original work (MCL

570.1104[5], 570.1111[1]).

Ronald J. Gricius, P.C. (by Jeffrey W. Rentschler), for

Weimer Plumbing, Inc.

Before: O’C

ONNELL

,P.J., and S

AAD

and B

ECKERING

,JJ.

ECKERING

, J. Intervening plaintiff Weimer Plumb-

ing, Inc., appeals as of right the trial court’s order

dismissing its construction lien on lot 47 Mazuchet

Harbor, commonly known as 39836 Mazuchet Drive,

Harrison Township (lot 47), as invalid. We affirm.

This action arises from plumbing work Weimer per-

formed on lot 47 for which it was not paid. Weimer is

404 291 M

ICH

403 [Jan

seeking priority of its construction lien over the inter-

ests of Stock Building Supply, L.L.C., which filed the

initial complaint in this case after defendant Dwight E.

Parsley and six companies he created failed to pay

multiple subcontractors for work performed on various

new residential real properties that were being built for

sale throughout Macomb County.

In August 2005, Weimer submitted a plumbing pro-

posal for lot 47 to Parsley Homes of Mazuchet Harbor

(the general contractor) for the rough and finish plumb-

ing for the unit. Weimer’s proposal was accepted, and

Weimer obtained a permit for plumbing work at lot 47

on August 29, 2005. Weimer performed underground

and rough plumbing work on August 31, 2005, and

received payment for these services. Weimer performed

finish plumbing work at lot 47 on August 4, 2006, or

September 29, 2006, or both dates. According to the

plumbing selection sheet for lot 47, Weimer’s finish

work included installing the kitchen sink, garbage

disposal, and faucet, one standard bathtub with shower

and faucet, one whirlpool bathtub with shower and

faucet, three toilets, four bathroom sinks with faucets,

a hot water heater, a laundry tub, and a laundry water

box. On August 5, 2006, Weimer sent its final invoice to

the general contractor.

On December 20, 2006, Weimer repaired a leak at the

kitchen sink. Then, after a sales agent noticed water on

the floor in one of the home’s bathrooms, Weimer repaired

a small leak in the whirlpool tub and replaced the ball and

cock assembly of a toilet on May 29, 2007. Weimer

identified this work in its answers to discovery requests as

“Warranty Service Calls.” There is no evidence that We-

imer sent an invoice for its repair work.

On July 27, 2007, Stock filed the initial complaint in

this case, which included a count seeking a lien for

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foreclosure on lot 47, but it did not name Weimer as a

defendant. On August 23, 2007, Weimer filed its claim

of lien on lot 47 for $9,646. On October 22, 2007, Stock

obtained a default judgment against the general con-

tractor for failure to plead or otherwise defend. Subse-

quently, on November 5, 2007, the parties stipulated

allowing Weimer to file a complaint as an intervening

plaintiff, file cross-complaints, and add defendants. We-

imer’s complaint included a count seeking a lien for

foreclosure on lot 47. As of October 24, 2008, the parties

agreed that Stock had obtained a sheriff’s deed and that

the redemption period was over, making Stock the

current owner of lot 47.

With respect to Weimer’s foreclosure lien on lot 47,

the trial court found that Weimer had completed its

construction work in either August 2006 or September

2006. Accordingly, the court ruled that Weimer’s con-

struction lien was invalid because it was not filed within

90 days of its completion of the original installation

work.

On appeal, Weimer argues that, contrary to the trial

court’s ruling, its May 29, 2007, repair work constituted

an “improvement” under the Construction Lien Act,

MCL 570.1101 et seq., and, therefore, it had 90 days

from that date to file its lien. Accordingly, Weimer

asserts that the filing of its lien on August 23, 2007, was

timely. We disagree.

Questions regarding the interpretation and applica-

tion of statutes, including the Construction Lien Act,

are reviewed de novo on appeal. Solution Source, Inc v

LPR Assoc Ltd Partnership, 252 Mich App 368, 372; 652

NW2d 474 (2002). The Construction Lien Act is a

remedial statute that sets forth a comprehensive

406 291 M

ICH

403 [Jan

scheme aimed at protecting “the rights of lien claimants

to payment for expenses and...therights of property

owners from paying twice for these expenses.” Id.at

373-374. It is to be liberally construed “to secure the

beneficial results, intents, and purposes” of the act.

MCL 570.1302(1).

Section 111(1) of the Construction Lien Act, MCL

570.1111(1), et seq., provides:

[N]otwithstanding [MCL 570.1109], the right of a con-

tractor, subcontractor, laborer, or supplier to a construction

lien created by this act shall cease to exist unless, within 90

days after the lien claimant’s last furnishing of labor or

material for the improvement, pursuant to the lien claim-

ant’s contract, a claim of lien is recorded in the office of the

which the improvement was made is located. A claim of lien

shall be valid only as to the real property described in the

claim of lien and located within the county where the claim

of lien has been recorded. [Emphasis added.]

The Construction Lien Act defines an “improvement”

the result of labor or material provided by a contractor,

subcontractor, supplier, or laborer, including, but not lim-

ited to, surveying, engineering and architectural planning,

construction management, clearing, demolishing, excavat-

ing, filling, building, erecting, constructing, altering, re-

pairing, ornamenting, landscaping, paving, leasing equip-

ment, or installing or affixing a fixture or material,

pursuant to a contract. [MCL 570.1104(5).]

According to MCL 570.1111(1) and MCL 570.1104(5),

a repair completed pursuant to a contract is an im-

provement, and the last furnishing of an improvement

commences the 90-day filing period. Thus, for example,

when a contractor is specifically hired to repair an

aspect of the property, such as a nonworking door or a

leaky roof, that contractor is making an improvement to

2011] S

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the property for which the contractor is entitled to

claim a lien. However, as this Court held in Woodman v

Walter, 204 Mich App 68, 69; 514 NW2d 190 (1994), the

performance of “warranty work” to correct deficiencies

in work performed or defects in fixtures installed by the

contractor does not constitute an improvement under

the Construction Lien Act because “[i]t does not confer

any value beyond the value furnished at the time the

initial installation work was completed.” Therefore, in

such situations, “[t]he ninety-day filing period com-

mences on the date of completion of the original instal-

lation work and is not extended by the later perfor-

mance of warranty work.” Id. at 70. The distinguishing

factor between a repair constituting an improvement to

the real property, which allows for the commencement

of the 90-day filing period, and warranty work, which

does not allow for the commencement of a new 90-day

filing period, is whether the work in question conferred

any value beyond the value furnished by the completion

of the original work.

Under its contract, Weimer was to furnish rough

and finish plumbing for the home being constructed

on lot 47. As previously noted, this included installing

the kitchen sink, garbage disposal, and faucet, a

standard bathtub with shower and faucet, a whirlpool

bathtub with shower and faucet, three toilets, four

bathroom sinks with faucets, a hot-water heater, a

laundry tub, and a laundry water box. The record

shows that Weimer’s finish plumbing work was com-

pleted by September 29, 2006. Therefore, as of that

date, the home at lot 47 had been improved with these

presumably fully functioning fixtures.

Weimer returned to lot 47 on December 20, 2006, to

repair a leak at the kitchen sink. Then, on May 29,

2007, Weimer returned again to fix a leak on the

408 291 M

ICH

403 [Jan

whirlpool tub and to change the ball and cock assembly

on the bathroom toilet, which it described as a “War-

ranty Service Call.” Weimer contends that its subse-

quent work was done at the request of the builder and

that it did not concoct the work merely to extend the

lien filing time. Weimer also indicates that subcontrac-

tors are expected to make these kinds of repairs when

requested by the general contractor.

Weimer’s May 2007 repair work did not “confer any

value beyond the value furnished at the time the initial

installation work was completed.” Woodman, 204 Mich

App at 69. The May 2007 work was not an addition to

the original agreement, nor was it in furtherance of the

original agreement. Rather, it was performed because

the original work had minor deficiencies that needed to

be corrected. Weimer suggests that its service work

conferred a benefit on the general contractor by provid-

ing functional indoor plumbing for the new homeowner

and, thus, that this work qualified as an improvement

under the Construction Lien Act. However, Weimer’s

May 2007 repair work did not add any value to the

original contract because it merely provided that which

was originally contracted for—namely, fully and prop-

erly functioning plumbing fixtures in a new house.

Presumably, but for the general contractor calling

Weimer because of minor deficiencies in its work,

Weimer would never have provided service to lot 47 in

May 2007 because it had completed its finish plumb-

ing work by September 2006.

Additionally, Weimer’s suggestion that the original

contract was not completed because the general con-

tractor never inspected the plumbing work or paid

Weimer is misplaced. The correct inquiry to determine

when the 90-day filing period commences is when the

work is completed, not when the work is inspected or

2011] S

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paid for. See MCL 570.1111(1); MCL 570.1104(5);

Woodman, 204 Mich App at 69-70. Weimer’s work in

May 2007 was warranty work, and pursuant to Wood-

man, it did not allow a new 90-day filing period to

commence. Weimer’s 90-day period for filing its lien for

plumbing work performed on lot 47 commenced by

September 29, 2006. Weimer did not file its lien until

August 23, 2007. Plainly, Weimer’s lien was untimely

and, therefore, invalid. Consequently, the trial court

properly dismissed Weimer’s lien on lot 47.

Weimer also relies on J Propes Electric Co v DeWitt-

Newton, Inc, 97 Mich App 295, 300; 293 NW2d 801

(1980), for the proposition that the correct inquiry here

is whether the subsequent work was done in good-faith

performance to complete the contract or merely as an

opportunity to revive an untimely claim of lien. How-

ever, Weimer’s reliance on J Propes is misplaced. At

issue in J Propes was whether “assorted electrical

services...and...general clean-up work” provided by

the electrical subcontractor at the request of the gen-

eral contractor approximately two months after the

electrical contractor had substantially completed its

contracted-for work on the project started the 90-day

period for filing a lien. Id. at 298. This Court concluded

that the trial court did not err by concluding that the

90-day period commenced on the date the follow-up

repair work was performed. This Court observed that

the work was needed after the construction project was

secured for the winter and that it was part of the

electrical contractor’s contract for services. Id. at 298,

300. As previously discussed, however, Weimer com-

pleted its contract with the general contractor in Sep-

tember 2006. The work Weimer returned to perform in

May 2007 was not part of its contract. Rather, it was

work necessitated by defects in the fixtures installed or

deficiencies in the initial installation work performed

410 291 M

ICH

403 [Jan

by Weimer. Therefore, under Woodman, the correct

inquiry is whether the May 2007 work constituted an

improvement to the property or was warranty work.

See MCL 570.1111(1); MCL 570.1104(5); Woodman,

204 Mich App at 69-70. For the reasons set forth earlier,

the trial court correctly determined that the May 2007

work performed by Weimer was warranty work. There-

fore, the trial court did not err by determining that

Weimer’s lien on lot 47 was invalid.

Finally, to the extent that Weimer’s brief to this

Court might be read to suggest that this Court could

apply the substantial-compliance provision set forth in

MCL 570.1302(1)

to Weimer’s claim of lien, the Con-

struction Lien Act’s 90-day filing requirement for

claims of lien is not subject to a substantial-compliance

interpretation. Central Ceiling & Partition, Inc v Dep’t

of Commerce, 249 Mich App 438, 445; 642 NW2d 397

(2002). Rather, “[t]he ninety-day deadline means pre-

cisely ninety days.” Id.

Affirmed.

MCL 570.1302 (1) provides:

[T]his act is declared to be a remedial statute, and shall be

liberally construed to secure the beneficial results, intents, and

purposes of this act. Substantial compliance with the provisions of

this act shall be sufficient for the validity of the construction liens

provided for in this act, and to give jurisdiction to the court to

enforce them.

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PEOPLE v OSBY

Docket No. 295548. Submitted January 12, 2011, at Grand Rapids.

Decided January 27, 2011, at 9:00 a.m.

A Berrien Circuit Court jury convicted Irby Osby, Jr., of possessing

burglary tools, receiving and concealing stolen property worth

$200 or more but less than $1,000, possession of marijuana, and

breaking into a motor vehicle to steal property worth $200 or more

but less than $1,000. The court, Sterling R. Schrock, J., sentenced

him as a fourth-offense habitual offender to 58 to 240 months in

prison for possession of burglary tools and to time served for the

other convictions. Defendant appealed.

The Court of Appeals held:

1. The testimony of the wife of one victim concerning the

damage to her husband’s car and the items stolen from it was not

hearsay under MRE 501(c) because the witness testified from her

own knowledge and not from what her husband had told her.

2. MCL 750.116 prohibits the knowing possession of a tool,

implement, or device adapted and designed for breaking open any

building, room, vault, safe, or other depository to steal property

from it. The term “depository” is a catchall phrase that includes

motor vehicles. Because defendant was burglarizing motor ve-

hicles and possessed a window punch (a device used to break car

windows), there was sufficient evidence to support his conviction

of possessing burglary tools.

3. Defendant’s sentence was not excessive. The habitual-

offender enhancement was based on defendant’s earlier convic-

tions and the court properly used its discretion in addressing any

mitigating factors.

Affirmed.

RIMINAL

AW —

OSSESSION OF

URGLARY

OOLS —

LEMENTS —

EPOSITORIES

MCL 750.116 prohibits the knowing possession of a tool, implement,

or device adapted and designed for breaking open any building,

room, vault, safe, or other depository to steal property held within;

the term “depository” includes motor vehicles.

412 291 M

ICH

412 [Jan

Bill Schuette, Attorney General, B. Eric Restuccia,

Solicitor General, Arthur J. Cotter, Prosecuting Attor-

ney, and Mark D. Sanford, Assistant Prosecuting Attor-

ney, for the people.

Gary L. Kohut for defendant.

Before: S

AWYER

,P.J., and W

HITBECK

and W

ILDER

,JJ.

URIAM

. A jury convicted defendant of possession

of burglar’s tools, MCL 750.116, receiving and conceal-

ing stolen property worth $200 or more but less than

$1,000, MCL 750.535(4)(a), possession of marijuana,

MCL 333.7403(2)(d), and breaking and entering a mo-

tor vehicle to steal property worth $200 or more but less

than $1,000, MCL 750.356a(2)(b)(i). The trial court

sentenced defendant to 58 to 240 months in prison as a

fourth-offense habitual offender, MCL 769.12, for the

conviction of possession of burglar’s tools. The trial

court also sentenced defendant to 161 days for the other

convictions, and he received a jail credit of 161 days.

Defendant now appeals and we affirm.

On March 12, 2009, there was a series of thefts

involving the breaking and entering of motor vehicles.

Each of the vehicles had a smashed window and prop-

erty stolen from inside. All the thefts occurred in the

area of St. Joseph, Michigan. A surveillance camera

recorded footage of one of the thefts. The footage

showed a black man walking toward one of the victims’

cars from a white van. There was something in the

man’s hands. The police issued a BOLO (be on the

lookout) for the white van seen in the surveillance

footage. A similar van was spotted parked in front of a

motel. The police surrounded the area and saw defen-

dant leave the motel in the white van. The police got a

warrant to search defendant’s room. Inside the room,

2011] P

EOPLE V

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413

the police found items that belonged to the victims of

the thefts and a small bag of marijuana. When the

police apprehended defendant, they found a “window

punch” on his person, which the police believed was

used to break car windows.

Defendant first argues that the trial court impermis-

sibly allowed hearsay testimony when it allowed a

victim’s wife to testify about the damage to the victim’s

car and his stolen items. Defendant did not object to the

witness’s testimony at trial and so did not preserve this

issue. Generally, this Court does not review unpre-

served issues, but this Court may review unpreserved

issues for plain error. MRE 103(d); People v Jones, 468

Mich 345, 355; 662 NW2d 376 (2003); People v Carines,

460 Mich 750, 763; 597 NW2d 130 (1999). In order to

avoid forfeiting an unpreserved error, a defendant has

the burden of establishing that the “(1) error occurred,

(2) the error was plain, i.e. clear or obvious, and (3) the

plain error affected substantial rights.” Jones, 468 Mich

at 355. Here, defendant fails to prove the first prong—

that the error even occurred. The witness testified from

her own observation of the car after it had been

damaged, and she testified from her own knowledge of

the value of the victim’s stolen items. MRE 801(c)

defines hearsay as “a statement, other than the one

made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the

matter asserted.” The witness was testifying from her

own knowledge, not from what her husband had told

her. Therefore, there was no hearsay and defendant has

failed to show that there was any plain error.

Next, defendant argues that there was insufficient

evidence to convict him of possession of burglar’s tools

because the statute prohibiting their possession does not

include a reference to motor vehicles. The statute limits

414 291 M

ICH

412 [Jan

the list of tools to those used to open “any building, room,

vault, safe or other depository....” MCL 750.116. The

statute goes on to state that the reason for breaking in

must be “to steal therefrom any money or other prop-

erty....” Id. Even though unpreserved, a question of

sufficiency of evidence may be reviewed de novo by this

Court in a criminal case. P eople v Patterson, 428 Mich 502,

514; 410 NW2d 733 (1987); People v Lueth, 253 Mich App

670, 680; 660 NW2d 322 (2002). Review is limited to

whether failure to review would deprive the defendant of

a fair trial or result in manifest injustice. Napier v Jacobs,

429 Mich 222, 233; 414 NW2d 862 (1987) (dicta). The

term “depository” is a catchall phrase that includes motor

vehicles. When interpreting statutes, this Court looks to

the plain meaning of terms unless those terms are defined

within the statute. MCL 8.3a; Brackett v Focus Hope, Inc,

482 Mich 269, 276; 753 NW2d 207 (2008); People v Lee,

447 Mich 552, 558; 526 NW2d 882 (1994). The term

“depository” is defined as “[a] place where one leaves

money or valuables for safekeeping.” Black’s Law Dictio-

nary (9th ed). Another definition states that a “deposi-

tory” is “a place where something is deposited or stored,

as for safekeeping.” Random House Webster’s College

Dictionary (1997). In order to store things safely within a

motor vehicle, the average person locks the vehicle and

assumes that the contents will be relatively safe. So, in the

plain language of the statute, “depository” includes motor

vehicles. Because defendant was burglarizing motor ve-

hicles, there was sufficient evidence to convict defendant

of the possession of burglar’s tools.

Defendant argues that the sentence was excessive in

light of the United States Supreme Court’s decision in

Blakely v Washington, 542 US 296; 124 S Ct 2531; 159

L Ed 2d 403 (2004). Under Blakely, other than facts

about prior convictions, any fact that increases a sen-

tence beyond the statutory maximum must be submit-

2011] P

EOPLE V

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415

ted to a jury. Id. at 301-302. Defendant argues that

because the trial court sentenced him beyond the maxi-

mum sentence authorized for the possession of bur-

glar’s tools based on facts that were not submitted to

the jury, the trial court violated Blakely. First, “Blakely

does not apply to sentences imposed in Michigan.”

People v Endres, 269 Mich App 414, 423; 711 NW2d 398

(2006), citing People v Claypool, 470 Mich 715, 730 n 14;

684 NW2d 278 (2004), People v Drohan, 475 Mich 140,

164; 715 NW2d 778 (2006), and People v Wilson, 265

Mich App 386, 399; 695 NW2d 351 (2005). Second, even

if Blakely did apply in Michigan, the extended sentence

here was based on defendant’s earlier convictions—

which is exactly the exception listed in Blakely. Blakely,

542 US at 301. Blakely does not apply here, and

defendant’s sentence was not excessive.

Defendant also argues that the trial court failed to

consider mitigating factors when sentencing him. While

defendant maintains that under Blakely the trial court

is required to review all mitigating factors, we have

already established that Blakely does not apply to

sentencing in Michigan. Endres, 269 Mich App at 423.

This issue was also not preserved below. Again, this

Court may review unpreserved issues for plain error.

MRE 103(d); Jones, 468 Mich at 355. Defendant bur-

glarized several motor vehicles, and he is an habitual

offender with an extensive history of drug abuse. The

trial court properly sentenced defendant and properly

used its discretion in addressing any possible mitigating

factors. The trial court committed no plain error when

it reviewed the factors in sentencing defendant. Defen-

dant fails to meet his burden of proof and forfeits this

unpreserved issue.

Affirmed.

416 291 M

ICH

412 [Jan

LUCKOW ESTATE v LUCKOW

Docket No. 294398. Submitted January 11, 2011, at Detroit. Decided

January 27, 2011, at 9:05 a.m.

Stanley Luckow obtained a divorce from Pamela Luckow in 2003 in

the Wayne Circuit Court, Family Division. The divorce judgment

directed plaintiff to pay defendant $2,500 a month in modifiable

spousal support. After plaintiff unsuccessfully moved to reduce his

spousal-support obligations in 2005, the parties agreed to binding

arbitration. The resulting report recommended that plaintiff’s

spousal-support obligations be reduced to zero and that future

spousal-support obligations be reserved for future adjudication.

Plaintiff moved to adopt the arbitration report’s recommendations

and award. He died in 2007, and his estate was substituted as

plaintiff in February 2008. The court, Richard M. Skutt, J., abated

the spousal-support obligation in accordance with the arbitration

award. Defendant subsequently moved to increase the amount of

her spousal support after experiencing a reduction in income and

suffering medical problems. Judge Skutt recognized that spousal

support may be modified following a payor’s death and collected

from the payor’s estate. He further concluded that although

defendant’s change in circumstances warranted consideration of

the motion, it would be inequitable to raise plaintiff’s spousal-

support obligation given that, although plaintiff had substantial

assets, as an estate it could no longer earn income. Defendant

moved for reconsideration. Judge Eric W. Cholack, Judge Skutt’s

successor, granted the motion, noting that he disagreed with Judge

Skutt’s equitable determinations and ruling that Judge Skutt had

palpably erred by concluding that, once the monthly spousal-

support obligation had been reduced to zero, it could not be

increased. Judge Cholack determined that the estate had sufficient

means to pay support and that an increase in support was

warranted, and he ordered an evidentiary hearing to determine

the appropriate amount. The Court of Appeals granted plaintiff’s

delayed application for leave to appeal.

The Court of Appeals held:

1. Spousal support may continue, undergo modification, or be

implemented for the first time following the payor spouse’s death.

2011] L

UCKOW

STATE V

UCKOW

417

The death of the payor spouse may create a situation in which

spousal support should be modified. The burden of proof rests on

the party objecting to the previously determined amount of

support. A court may implement spousal support for the first time

following the payor’s death if the divorce judgment reserved the

question of support for further determination.

2. A party moving for reconsideration must establish that the

trial court made a palpable error and that a different disposition

would result from correction of the error. The successor judge’s

decision to grant defendant’s motion for reconsideration consti-

tuted an abuse of discretion because the previous judge had not

committed a palpable error in evaluating the competing equities or

by having focused on plaintiff’s income rather than on plaintiff’s

marital assets when determining whether plaintiff had the means

to pay increased spousal support. A mere difference in opinion

regarding the equities of the matter did not constitute a palpable

error sufficient to warrant reconsideration of the decision.

Reversed.

IVORCE —

POUSAL

UPPORT —

ODIFICATIONS —

EATH OF

POUSAL

-S

UPPORT

AYORS

Spousal support may continue, undergo modification, or be imple-

mented for the first time following the payor spouse’s death; the

burden of proving the need for modification rests on the party

objecting to the previously determined support amount; a court

may implement spousal support for the first time following the

payor spouse’s death if the divorce judgment reserved the question

of support for further determination.

Gentry Law Offices, P.C. (by Kevin S. Gentry), for the

estate of Stanley Luckow.

Carl Bloetscher III for Pamela Luckow.

Before: O’C

ONNELL

,P.J., and S

AAD

and B

ECKERING

,JJ.

ECKERING

, J. Plaintiff

appeals by leave granted the

opinion and order of Wayne Circuit Court Judge Eric W.

Although plaintiff in this action is Stanley Luckow’s estate, as

opposed to Stanley Luckow himself, we refer to both Stanley Luckow and

his estate as “plaintiff.”

418 291 M

ICH

417 [Jan

Cholack granting defendant’s motion for reconsidera-

tion regarding an alimony award rendered by his pre-

decessor, Judge Richard M. Skutt. We reverse.

I. FACTUAL OVERVIEW

Plaintiff and defendant divorced on October 8, 2003.

Comporting with an arbitration award previously ren-

dered, the parties’ divorce judgment directed plaintiff to

pay defendant modifiable spousal support in the

amount of $2,500 a month until her death or remar-

riage, whichever occurred first. Neither of these contin-

gencies has transpired. The spousal-support award was

based on plaintiff’s annual income of $90,000 and an

imputation of income to defendant of $15,000 a year. It

was to be secured by naming defendant as a beneficiary

of a portion of plaintiff’s life insurance proceeds. Among

other assets, plaintiff was awarded as part of the

property division the value of his life insurance policies,

subject to defendant’s interest in the proceeds as secu-

rity for spousal support, and the marital interest in the

business partnership known as Metal Prep Technology.

Defendant was awarded assets including the marital

home, half of plaintiff’s individual retirement account

(IRA), and a portion of plaintiff’s Metal Prep Technol-

ogy profit-sharing account.

On January 3, 2005, plaintiff moved to reduce his

spousal-support obligations, citing defendant’s move to

Florida and consequent lower living expenses. Plaintiff

also asserted that defendant had sufficient assets to

support herself and that his income, having declined

since the entry of the divorce judgment, was insufficient

to pay the amount ordered. Defendant opposed this

motion, asserting that her living expenses had in-

creased, not declined, as a result of her move. Defen-

dant denied having sufficient assets to support herself

2011] L

UCKOW

STATE V

UCKOW

419

and asserted that plaintiff had sufficient means to

continue paying spousal support in the ordered amount.

Judge Skutt denied plaintiff’s motion following an

evidentiary hearing on August 12, 2005. Judge Skutt

determined that plaintiff had not demonstrated a sig-

nificant change in circumstance on which to base a

change in spousal support and that, while plaintiff had

demonstrated a decrease in his annual income, that

decrease was “not so great that it equal[led] a lack of

ability to pay the ordered spousal support.”

Thereafter, plaintiff moved to set aside the trial

court’s opinion and order denying his motion for reduc-

tion of spousal support. The trial court granted that

motion, and on February 9, 2006, the parties stipulated

to resolve the matter by binding arbitration. The record

indicates that plaintiff sold his interest in Metal Prep

Technology and that he received his last paycheck from

that company on September 15, 2006. On October 30,

2007, the arbitrator issued his binding arbitration re-

port, recommending that plaintiff’s obligation to pay

spousal support be abated to zero but reserving future

spousal-support obligations for future adjudication. As

a result of the arbitrator’s recommendation, it was

determined that defendant was entitled to more than

$35,000 in spousal-support arrearages; the arbitration

award limited plaintiff’s obligation to secure future

spousal support by way of a life insurance policy in this

arrearage amount.

On November 27, 2007, plaintiff moved the court to

adopt the binding arbitration report and award. Plain-

tiff died on December 12, 2007. Plaintiff’s estate was

substituted as party plaintiff in February 2008. At that

time, Judge Skutt specifically recognized that he had

the authority to modify the terms and conditions of

spousal support after plaintiff’s death. On March 21,

420 291 M

ICH

417 [Jan

2008, Judge Skutt entered an order adopting the Octo-

ber 30, 2007, arbitration award. As a result, plaintiff’s

obligation to pay spousal support was abated effective

December 31, 2006. Further, in accordance with the

arbitration award, Judge Skutt ordered that “[a]ny

future spousal support obligation due and owing by

Plaintiff to the Defendant is reserved for the future

adjudication by this Court. Plaintiff’s obligation to

provide life insurance to secure his spousal support

obligation shall be limited only to the extent of the

arrears created by this Order.”

On April 3, 2008, less than two weeks after Judge

Skutt entered the order adopting the arbitration

award, defendant moved to increase spousal support.

Defendant asserted that a reduction in her annual

income and anticipated increased health-insurance

expenses stemming from a mild stroke, as well as

plaintiff’s increased ability to pay following his death,

constituted a sufficient change in circumstances to

warrant modification. Judge Skutt denied defen-

dant’s motion. Judge Skutt specifically recognized

both that spousal support may be modified following

a payor’s death and that spousal support may be

collected from a deceased payor’s estate. He noted

that he did not believe it was necessary to show a

change of circumstances, but in the event that it was,

defendant had established a change in circumstances

warranting consideration of the motion on the basis

of her own changing needs and a decrease in her

income. However, considering the pertinent circum-

stances of the parties, Judge Skutt concluded that

general principles of equity made increasing spousal

support inappropriate. Judge Skutt explained:

In the present case the Plaintiff filed a motion to

decrease spousal support prior to his death. As a result of

2011] L

UCKOW

STATE V

UCKOW

421

that motion the matter was arbitrated and the arbitration

award was adopted by the Court as an Order. Therefore,

while the Plaintiff was alive and earning an income of sorts

it was determined that his spousal support obligation

should be zero and now that the Plaintiff has deceased and

is earning no income the Defendant requested that spousal

support be modified/increased. In the general principles of

equity [it] is difficult for the Court to reconcile abating

Plaintiff’s spousal support obligation to zero while Plaintiff

is alive and earning an income and raising the Plaintiff’s

spousal support obligation after the Plaintiff has died and

his estate earns no income.

This Court is mindful of the Defendant’s decrease in

income as well as her other financial concerns regarding

health insurance, however this Court is satisfied that those

changes do not outweigh the general principles of equity

and require an increase in spousal support. It should also

be noted that, with the life insurance policy being the only

known source of funds [for the estate], the issue has been

previously decided by the arbitrator and was not appealed.

The change of circumstances cannot be used as a collateral

attac[k] on that decision.

Judge Skutt awarded defendant a portion of the pro-

ceeds of plaintiff’s life insurance in an amount equal to

the spousal-support arrearage.

Defendant moved for reconsideration, asserting

that the order denying her motion reflected an erro-

neous determination that the estate had no obligation

to pay alimony because alimony had been reduced to

zero while plaintiff was alive and there was no estate

income with which to pay alimony. Defendant also

asserted in a supplemental pleading that, previously

unbeknownst to her or the court, the estate held

substantial assets at the time of plaintiff’s death.

Judge Cholack, sitting as Judge Skutt’s successor,

granted plaintiff’s motion for reconsideration. Judge

Cholack found that Judge Skutt had made a palpable

422 291 M

ICH

417 [Jan

error by determining “in essence that, once spousal

support had been abated to zero, it could not be

increased.” Judge Cholack explained that such a

determination was “at odds with the statutorily

modifiable character of spousal support” and with the

order adopting the arbitration award, which reserved

adjudication of future spousal-support obligations.

Judge Cholack disagreed with Judge Skutt’s assess-

ment of the equities presented, explaining that defen-

dant had demonstrated that the previous award of no

spousal support had become insufficient to meet her

needs and that, after his death, plaintiff no longer

needed any funds for his own suitable support and

maintenance. Judge Cholack determined that the

estate had sufficient means available to pay support

and that an increase in support was warranted.

Therefore, he ordered an evidentiary hearing to de-

termine the appropriate amount of spousal support.

This Court granted plaintiff’s delayed application for

leave to appeal.

On appeal, plaintiff argues that Judge Cholack erred

by granting reconsideration of Judge Skutt’s decision.

We agree.

II. STANDARD OF REVIEW

We review for an abuse of discretion a trial court’s

decision on a motion for reconsideration. Tinman v

Blue Cross & Blue Shield of Mich, 264 Mich App 546,

556-557; 692 NW2d 58 (2004). A trial court abuses its

discretion when it reaches a decision that falls outside

the range of principled outcomes. Corporan v Henton,

282 Mich App 599, 605-606; 766 NW2d 903 (2009). We

review questions of law bearing on the trial court’s

decision, however, de novo. Churchman v Rickerson,

240 Mich App 223, 227; 611 NW2d 333 (2000).

2011] L

UCKOW

STATE V

UCKOW

423

III. BACKGROUND LAW

MCL 552.28 permits modification of spousal-support

awards contained in divorce judgments:

On petition of either party, after a judgment for ali-

mony..., the court may revise and alter the judgment,

respecting the amount or payment of the alimony...,and

may make any judgment respecting any of the matters that

the court might have made in the original action.

To warrant modification, however, the moving party

first must establish new facts or changed circumstances

arising since the prior order regarding support was

issued. Ackerman v Ackerman, 197 Mich App 300, 301;

495 NW2d 173 (1992). If the court finds that a party has

established a change in circumstances, it “must then

make factual findings from which to conclude whether

the alimony should be modified and, if so, by what

amount.” Flager v Flager, 190 Mich App 35, 37; 475

NW2d 411 (1991). A court considers many factors in

awarding alimony, including the following:

(1) the past relations and conduct of the parties, (2) the

length of the marriage, (3) the abilities of the parties to

work, (4) the source and amount of property awarded to

the parties, (5) the parties’ ages, (6) the abilities of the

parties to pay alimony, (7) the present situation of the

parties, (8) the needs of the parties, (9) the parties’ health,

(10) the prior standard of living of the parties and whether

either is responsible for the support of others, and (11)

general principles of equity. [LeevLee, 191 Mich App 73,

80; 477 NW2d 429 (1991).]

It is well settled that spousal support may continue,

undergo modification, or be implemented for the first

time following the payor spouse’s death. In Flager, this

Court reversed the trial court’s ruling that spousal

support terminates upon the death of either spouse,

explaining that

424 291 M

ICH

417 [Jan

[a]t common law, proceedings to enforce alimony would

abate on the death of either party. In Michigan, however,

statutory law has long provided the authority to award,

modify and enforce alimony. That law has been interpreted

consistently by the courts to mean that the obligation to

pay alimony does not terminate by operation of law upon

the death of the payor; it may be enforced against the

payor’s estate. The trial court has the authority, however,

to modify or terminate permanent alimony upon changed

circumstances, so long as it is periodic, not alimony-in-

gross. [Flager, 190 Mich App at 36 (citations omitted).]

Further, as the Michigan Supreme Court noted in

Braffett v Braffett, 308 Mich 506, 514; 14 NW2d 129

(1944), “[t]he death of a [payor] may create a situation

where the decree for alimony should be modified. The

burden of having such a decree modified rests upon the

party objecting to the amount of alimony previously

determined.” Finally, in Seibly v Ingham Circuit Judge,

105 Mich 584, 585-587; 63 NW 528 (1895), the Court

held that a court could implement alimony for the first

time following the payor spouse’s death if the decree of

divorce reserved the question of alimony for further

order and decree. The Court reasoned as follows:

[I]f it results that the death of the husband ousts the

court of jurisdiction to award permanent alimony, it follows

that in every case where a decree is entered in the form

here employed there must be a period of greater or less

duration during which the wife is at the risk of losing the

interest in her husband’s estate which she would have

under the statute of distributions but for the divorce, and

without opportunity afforded her by the court to have

awarded her a proper allowance of alimony. This result

would be manifestly unjust. [Id. at 586-587.]

To hold that, as a rule, the death of the payor eliminates

any further spousal-support obligation without regard

to the particular circumstances pertinent to an award of

spousal support would alter the balance of assets and

2011] L

UCKOW

STATE V

UCKOW

425

income struck by the court in rendering the divorce

judgment and any subsequent modification orders,

without regard to the provisions of the divorce judg-

ment or to the particular equities presented. Michigan

courts have refused to take this course. Plainly, defen-

dant had the ability to move the lower court for a

modification of the amount of spousal support after

plaintiff’s death. Equally plainly, and as correctly rec-

ognized by both Judge Skutt and Judge Cholack, the

trial court had the authority to entertain and decide

that motion, particularly given that the order adopting

the arbitration award reserved any future support

obligation for future adjudication.

IV. ABSENCE OF PALPABLE ERROR

Plaintiff first argues that the grant of reconsidera-

tion must be reversed because Judge Cholack misread

Judge Skutt’s decision as including a palpable error

when, in fact, Judge Skutt’s reasoning was sound. We

agree. A party bringing a motion for reconsideration

must establish that (1) the trial court made a palpable

error and (2) a different disposition would result from

correction of the error. MCR 2.119(F)(3); Herald Co, Inc

v Tax Tribunal, 258 Mich App 78, 82; 669 NW2d 862

(2003). “Palpable” is defined as “ ‘[e]asily perceptible,

plain, obvious, readily visible, noticeable, patent, dis-

tinct, manifest.’ ” Stamp v Mill Street Inn, 152 Mich

App 290, 294; 393 NW2d 614 (1986), quoting Black’s

Law Dictionary (5th ed), p 1000.

Judge Skutt found a change in circumstances suffi-

cient to warrant considering a modification of spousal

support. Further, he turned to existing caselaw to

conclude that “although the [p]laintiff is deceased,

spousal support can be modified and collected against

[p]laintiff’s estate.” (Emphasis added.) In his discre-

426 291 M

ICH

417 [Jan

tion, however, he declined to increase spousal support in

this case. He stated that even when a change in circum-

stances exists, “the Court must examine all the circum-

stances of the case when deciding whether to modify

spousal support.” As Judge Skutt properly noted, one

factor a court must consider is general principles of

equity. Judge Skutt could not, considering equitable

principles, reconcile abating plaintiff’s support obliga-

tion during his lifetime, when he earned an income,

with raising his obligation after his death, when his

estate earned no income. Judge Skutt considered other

factors as well, such as defendant’s loss of income and

her increased health costs. On balance, however, he

found that these considerations did not outweigh the

general principles of equity and, in an exercise of his

discretion, denied defendant’s motion to increase spou-

sal support.

Judge Cholack found palpable error in Judge Skutt’s

decision. Judge Cholack read Judge Skutt’s decision to

mean that “once spousal support had been abated to

zero, it could not be increased.” This was an inaccurate

reading of Judge Skutt’s opinion. As demonstrated

earlier, Judge Skutt clearly acknowledged that he had

the authority to increase spousal support after it had

been abated to zero and even though the payor spouse

had since died; in his discretion, considering all the

circumstances presented and applying general prin-

ciples of equity, he simply chose not to do so. Further, to

the extent that Judge Cholack found error in Judge

Skutt’s consideration of general principles of equity, a

mere difference in opinion regarding the equities of the

matter does not constitute a palpable error sufficient to

warrant reconsideration of the decision.

Additionally, defendant suggests that Judge Skutt

palpably erred by focusing on the income of the estate,

2011] L

UCKOW

STATE V

UCKOW

427

rather than its assets, when evaluating the competing

equities and when determining whether the estate had

the means to pay spousal support. Judge Skutt ac-

knowledged that the assets of the estate were substan-

tial, but he recognized that the primary assets of the

estate were life insurance policies, which were awarded

to plaintiff as part of the property division.

A court

need not require a party to invade the corpus of the

party’s award of marital assets in order to pay spousal

support. Torakis v Torakis, 194 Mich App 201, 205; 486

NW2d 107 (1992); Zecchin v Zecchin, 149 Mich App 723,

735; 386 NW2d 652 (1986). Therefore, to the extent

that the estate is composed of assets awarded to plain-

tiff as part of the property division, Judge Skutt did not

abuse his discretion by declining to order that those

assets be made available for the payment of spousal

support to defendant.

At the hearing on defendant’s motion to increase spousal support, it

was represented to Judge Skutt that the primary assets of the estate were

the proceeds of life insurance policies, which would amount to approxi-

mately $300,000. It was also noted that there was an IRA or 401(k)

account, of which defendant was entitled to a portion as part of the

property division. As the estate inventory would later show, the proceeds

of the life insurance policies and annuities apparently were in excess of

$460,000. The remainder of the estate’s assets appears to be composed

primarily of proceeds from the sale of plaintiff’s interest in Metal Prep

Technology, which was also awarded to him as part of the property

division, and his profit-sharing account in Metal Prep Technology, which

was subject to a qualified domestic relations order. While a substantial

change in the value of the estate may have represented changed circum-

stances from those existing at the time of Judge Skutt’s decision,

defendant’s representations that the estate was larger than Judge Skutt

understood, under the circumstances presented here, does not establish

that Judge Skutt made a palpable error by ruling that a modification of

spousal support was not warranted on the facts presented to him.

This is not to say that a trial court necessarily abuses its discretion by

considering the value of marital assets awarded to the payor when

considering the payor’s ability to pay spousal support. “The objective of

spousal support is to balance the incomes and needs of the parties in a

428 291 M

ICH

417 [Jan

Given the absence of any palpable error in Judge

Skutt’s opinion and order, Judge Cholack’s decision to

grant defendant’s motion for reconsideration fell out-

side the range of principled outcomes, constituting an

abuse of discretion.

Reversed.

way that will not impoverish either party, and support is to be based on

what is just and reasonable under the circumstances” of each case.

Woodington v Shokoohi, 288 Mich App 352, 356; 792 NW2d 63 (2010); see

also Berger v Berger, 277 Mich App 700, 726; 747 NW2d 336 (2008).

Indeed, the source and amount of property awarded is a factor expressly

to be considered by the trial court in determining whether, and to what

extent, to award spousal support. Woodington, 288 Mich App at 356; Lee,

191 Mich App at 80. Just as there are circumstances in which it proves

necessary for a payee spouse to rely on the marital assets awarded to him

or her to meet his or her financial expenses, it may be appropriate,

considering the circumstances and equities presented in a particular

case, for a court to award spousal support in an amount that may require

the payor to invade his or her marital-asset award. However, we need not

decide whether the instant appeal presents such a case because that issue

is not before us. Nor, on the record provided, do we have sufficient factual

information to permit us to make such a decision. Rather, we conclude

only that Judge Skutt did not abuse his discretion by not requiring

plaintiff to invade the marital-assets award to him in order to pay spousal

support.

2011] L

UCKOW

STATE V

UCKOW

429

McCAHAN v BRENNAN

Docket No. 292379. Submitted October 7, 2010, at Lansing. Decided

February 1, 2011, at 9:00 a.m.

Christina McCahan was injured in an automobile accident on the

campus of the University of Michigan on December 12, 2007. The

other driver, Samuel K. Brennan, was driving a car owned by the

university and was on university business at the time. On May 7,

2008, plaintiff’s counsel sent a letter to the university, indicating

that counsel intended to represent plaintiff in a lawsuit concerning

the accident. On October 31, 2008, plaintiff filed a notice of intent

to file a claim in the Court of Claims. After plaintiff brought the

action against Brennan and the University of Michigan Regents in

the Court of Claims, the university sought summary disposition on

the basis that the notice of intent to file the claim had not been

filed within the period provided in MCL 600.6431(3). The court,

Archie C. Brown, J., agreed with the university and granted

summary disposition in its favor. Plaintiff appealed.

The Court of Appeals held:

1. MCL 600.6431(3) clearly states that plaintiffs with property

damage or personal injury claims against the state must file a

notice of intention to file the claim or the claim itself in the Court

of Claims within six months of the event giving rise to the claim.

Substantial compliance does not satisfy the statute. The facts show

that plaintiff did not file the notice of intent within six months of

the accident and, therefore, did not comply with the requirements

of MCL 600.6431(3).

2. The university did not have to show that it was prejudiced

by plaintiff’s failure to comply with the clear requirements of MCL

600.6431(3). Like the statute in Rowland v Washtenaw Co Rd

Comm, 477 Mich 197 (2007), which also set forth a notice require-

ment, the statute in this case is straightforward, clear, unambigu-

ous, and not constitutionally suspect, and it must be enforced as

written. The court properly granted summary disposition in favor

of the university.

Affirmed.

430 291 M

ICH

430 [Feb

ITZGERALD

, J., dissenting, stated that the decision in May v Dep’t

of Natural Resources, 140 Mich App 730 (1985), which held that a

plaintiff’s claims were not barred by a failure to comply with MCL

600.6431(3) unless the defendant established that it was prejudiced

by the noncompliance, had not been reversed or specifically overruled

and should be followed in this case. The Supreme Court did not

construe the language of MCL 600.6431(3) in Rowland, when, in

interpreting MCL 691.1404(1), it held that the defendant was not

required to show actual prejudice resulting from the plaintiff’s failure

to comply with a statutory filing requirement. Because the statutes in

May and Rowland differed and the Supreme Court has not extended

the Rowland holding to MCL 600.6431(3), May should control the

decision in this case. The order granting summary disposition should

be reversed and the case should be remanded for trial because the

university, as a result of the May 7, 2008, letter from plaintiff’s

counsel, had actual knowledge of plaintiff’s intention to file the claim

within six months following the accident.

CTIONS —

OURT OF

LAIMS —

OTICE OF

NTENT TO

ILE A

LAIM —

ONDITIONS

RECEDENT TO

RING AN

CTION —

UBSTANTIAL

OMPLIANCE

ITH

OTICE

EQUIREMENTS —

REJUDICE

The requirement stated in MCL 600.6431(3), that in all actions against

the state for property damage or personal injuries the claimant must

file with the clerk of the Court of Claims a notice of intention to file

a claim or the claim itself within six months following the event

giving rise to the cause of action, is a condition precedent to suing the

state; substantial compliance does not satisfy the statute, and the

state is not required to show actual prejudice when a plaintiff fails to

comply with the statutory notice requirement.

Moss & Colella, P.C. (by Christian P. Collis), and

Allan Falk, P.C. (by Allan Falk), for Christina McCahan.

Pear Sperling Eggan & Daniels, P.C. (by Karl V. Fink,

Special Assistant Attorney General), for the University

of Michigan Regents.

Before: S

AWYER

P.J., and F

ITZGERALD

and S

AAD

,JJ.

AWYER

,P.J. Plaintiff appeals the Court of Claims’ order

granting the University of Michigan Regents (the univer-

sity) summary disposition. MCR 2.116(C)(8) and (10). We

affirm.

2011] M

AHAN V

RENNAN

431

PINION OF THE

OURT

On December 12, 2007, plaintiff was injured in a car

accident with a student, Samuel Brennan, on the Uni-

versity of Michigan’s campus. The student was driving

a car owned by the university, while on university

business. On May 7, 2008, plaintiff’s counsel sent a

letter to the university indicating that plaintiff’s coun-

sel intended to represent plaintiff in a lawsuit over the

car accident. On October 31, 2008, plaintiff filed a

notice of intent to file a claim in the Court of Claims

that was signed by plaintiff and plaintiff’s counsel.

After plaintiff filed an action against Brennan and the

university, the trial court granted summary disposition

in favor of the university because plaintiff had not

complied with MCL 600.6431(3).

The language of MCL 600.6431 clearly states the

steps a plaintiff must take in order to make a claim

against the state:

(1) No claim may be maintained against the state unless

the claimant, within 1 year after such claim has accrued,

files in the office of the clerk of the court of claims either a

written claim or a written notice of intention to file a claim

against the state or any of its departments, commissions,

boards, institutions, arms or agencies, stating the time

when and the place where such claim arose and in detail

the nature of the same and of the items of damage alleged

or claimed to have been sustained, which claim or notice

shall be signed and verified by the claimant before an

officer authorized to administer oaths.

***

(3) In all actions for property damage or personal

injuries, claimant shall file with the clerk of the court of

claims a notice of intention to file a claim or the claim itself

within 6 months following the happening of the event

giving rise to the cause of action.

432 291 M

ICH

430 [Feb

PINION OF THE

OURT

The filing requirement is a condition precedent to

sue the state. See Reich v Hwy Comm, 43 Mich App 284,

287-289; 204 NW2d 226 (1972). When interpreting

statutes, the court looks to the language of a statute

first. Only if a statute is ambiguous or in conflict with

another provision does a court clarify through judicial

construction. Lansing Mayor v Pub Serv Comm, 470

Mich 154, 157, 166; 680 NW2d 840 (2004). The Legis-

lature is presumed to have written the statute to mean

what the Legislature intended it to mean. People v

Gardner, 482 Mich 41, 50; 753 NW2d 78 (2008); Row-

land v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731

NW2d 41 (2007). MCL 600.6431(3) clearly states that

plaintiffs with personal injury claims shall file a notice

of intention to file the claim or the claim itself in the

Court of Claims within six months of the event giving

rise to the claim.

Plaintiff argues that she has substantially complied

with the statute, but substantial compliance does not

satisfy MCL 600.6431(3). Subsection (3) clearly states

that a “claimant shall file with the clerk of the court of

claims...within 6 months following the happening of

the event....” (Emphasis added.) The word “shall”

designates a mandatory provision. Walters v Nadell, 481

Mich 377, 383; 751 NW2d 431 (2008); People v Fran-

cisco, 474 Mich 82, 87; 711 NW2d 44 (2006). Clear

statutory language must be enforced as written. Fluor

Enterprises, Inc v Treasury Dep’t, 477 Mich 170, 174;

730 NW2d 722 (2007); People v Gillis, 474 Mich 105,

115; 712 NW2d 419 (2006). Here, because plaintiff

brought a personal injury claim, plaintiff had to file a

notice of intention to file a claim with the Court of

Claims within six months of the accident. She did not.

The facts show that plaintiff filed a notice of intention

to file a claim with the Court of Claims months past the

2011] M

AHAN V

RENNAN

433

PINION OF THE

OURT

six-month statutory requirement. Plaintiff did not com-

ply with the requirements of MCL 600.6431(3).

Plaintiff also argues that the state must show preju-

dice when a plaintiff does not comply with a statutory

filing requirement. But in Rowland, the Michigan Su-

preme Court overturned several cases that had required

the state to show actual prejudice when a plaintiff failed

to comply with a statutory filing requirement. Row-

land, 477 Mich at 200, 213. The Court in Rowland

stated that because the language of the statute at issue

in that case was clear regarding its notice requirement,

the Court would not give the statute any judicial

construction. The filing requirement was strictly ap-

plied. Id. at 200 (interpreting the 120-day filing require-

ment of MCL 691.1404). The Court in Rowland re-

turned to the well-founded principle that the

Legislature is presumed to have written what the

Legislature meant, and courts will not use judicial

construction where the meaning of a statute is clear. Id.

at 219. The filing requirement must be applied as it is

written.

We recognize that Rowland dealt with a different

notice requirement than does this case. There does not

appear to be any published decision of either this Court

or the Supreme Court that definitively determines

whether the Rowland rationale should also be applied

to the notice requirements of MCL 600.6431. Indeed,

two justices of the Supreme Court disagreed on this

point in separate statements to an order denying leave

to appeal in Beasley v Michigan, 483 Mich 1025 (2009).

Then Chief Justice K

ELLY

, in her concurring statement,

rejected the defendant’s argument that Rowland

should be applied to the notice provision of MCL

600.6431(3), concluding that Rowland was distinguish-

able because it dealt with a different statutory provi-

434 291 M

ICH

430 [Feb

PINION OF THE

OURT

sion. Id. at 1025 (K

ELLY

, C.J., concurring). Justice

ORRIGAN

, on the other hand, in her dissenting state-

ment to the order denying leave to appeal, opined that

Rowland does apply to the notice provisions of MCL

600.6431. In particular, she noted that Rowland “re-

jected earlier caselaw that had assumed notice provi-

sions are unconstitutional if they do not contain a

prejudice requirement,” as well as the fact that the

notice requirement in Rowland “is substantively iden-

tical” to the notice provisions of MCL 600.6431. Id. at

1028 (C

ORRIGAN

, J., dissenting). Justice C

ORRIGAN

also

noted that the statute clearly provides that no claim

may be maintained unless the notice is filed with the

Court of Claims, which did not happen. Id.

We conclude that Justice C

ORRIGAN

’s view represents

the better interpretation of the issue. While Rowland did

directly deal with a claim arising under the defective-

highway exception to governmental immunity, we, like

Justice C

ORRIGAN

, are not persuaded that the Rowland

rationale is somehow limited to MCL 691.1404. Indeed,

one of the cases that Rowland reviewed and rejected,

Carver v McKernan, 390 Mich 96; 211 NW2d 24 (1973),

overruled by Rowland, 477 Mich 197, dealt with a six-

month notice requirement under the Motor Vehicle Acci-

dent Claims Act, MCL 257.1118. In rejecting Carver and

other cases, Rowland stated that “[i]n reading an ‘actual

prejudice’ requirement into the statute, this Court not

only usurped the Legislature’s power but simultaneously

made legislative amendment to make what the Legisla-

ture wanted—a notice provision with no prejudice

requirement—impossible.” Rowland, 477 Mich at 213.

Ultimately, Rowland, 477 Mich at 219, concluded that

“MCL 691.1404 is straightforward, clear, unambiguous,

and not constitutionally suspect. Accordingly, we conclude

that it must be enforced as written.” The same can be said

2011] M

AHAN V

RENNAN

435

PINION OF THE

OURT

of MCL 600.6431(3).

In sum, plaintiff did not comply with the plain

language of the filing requirement of MCL 600.6431(3).

Subsection (3) clearly requires that a plaintiff with a

personal injury claim against the state must file a notice

of intention to file the claim or the claim itself with the

clerk of the Court of Claims within six months of the

event giving rise to the claim. Plaintiff did not file her

notice of intention to file a claim with the Court of

Claims until several months after the six-month dead-

line had passed. Accordingly, the Court of Claims prop-

erly granted summary disposition to the university.

Affirmed. Defendant University of Michigan Regents

may tax costs.

AAD

, J., concurred.

ITZGERALD

,J.(dissenting). The majority concludes,

on the basis of Rowland v Washtenaw Co Rd Comm, 477

Mich 197; 731 NW2d 41 (2007), that plaintiff’s failure

to comply with the plain language of the notice require-

ment of MCL 600.6431(3) mandated summary disposi-

tion in favor of the University of Michigan Regents (the

university). Because the case before us construes a

Judge S

AWYER

acknowledges that he was previously a member of a

Court of Appeals panel that issued an opinion that reached a different

conclusion. Cunmulaj v Chaney, unpublished opinion per curiam of the

Court of Appeals, issued February 12, 2009 (Docket Nos. 282264 and

282265). Specifically, that opinion reached the conclusion that “[t]here is

no reason to extend our Supreme Court’s holding [in Rowland]to

overturn the previous standard of substantial compliance with statutory

notice requirements in other statutes.” Id. at 3. Because Cunmulaj is an

unpublished opinion, it is of course not precedentially binding. MCR

7.215(C)(1). Judge S

AWYER

, upon giving the matter further consideration,

is now persuaded that Cunmulaj erroneously decided this point and

disavows that opinion to the extent that it conflicts with the opinion in

thecaseatbar.

436 291 M

ICH

430 [Feb

ISSENTING

PINION BY

ITZGERALD

,J.

statute other than MCL 691.1404, I respectfully dissent

for the reasons stated by Chief Judge M

URPHY

in his

dissenting opinion in Prop & Cas Ins Co of the Hartford

v Dep’t of Transp, unpublished opinion per curiam of

the Court of Appeals, issued April 22, 2010 (Docket No.

285749), which I quote in relevant part and whose

reasoning I adopt:

Because Rowland v Washtenaw Co Rd Comm, 477 Mich

197; 731 NW2d 41 (2007), did not construe the language in

MCL 600.6431(3), and because our Supreme Court has

evidently decided not to extend the holding in Rowland to

MCL 600.6431(3), I am not prepared to disavow May v

Dep’t of Natural Resources, 140 Mich App 730; 365 NW2d

192 (1985). In May, this Court held that a plaintiff’s claims

are not barred by failure to comply with MCL 600.6431(3)

unless the defendant established that it was prejudiced by

the noncompliance. May has not been reversed or explicitly

overruled.

Rowland interpreted MCL 691.1404(1), which differs

from the statute at issue here, MCL 600.6431(3). MCL

691.1404(1) provides that compliance with the notice pro-

vision is “a condition to any recovery for injuries sustained

by reason of any defective highway;” however, MCL

600.6431(3) does not contain comparable “recovery precon-

dition” language. More importantly, our own Supreme

Court does not appear to be prepared to extend the holding

in Rowland to MCL 600.6431(3). In Beasley v Michigan,

483 Mich 1025; 765 NW2d 608 (2009), the Michigan

Supreme Court denied an application for leave to appeal

relative to an order of this Court that had denied leave to

appeal, which in turn pertained to an order by the Court of

Claims denying summary disposition to the state. As re-

flected in a concurring opinion issued by C

HIEF

USTICE

ELLY

in Beasley, the state brought the motion for sum-

mary disposition on the basis that the plaintiff, who had

been injured in a motor vehicle accident involving a state-

owned vehicle, failed to comply with the notice require-

ment of MCL 600.6431(3). Thus, while I recognize that

Supreme Court orders denying leave do not have preceden-

2011] M

AHAN V

RENNAN

437

ISSENTING

PINION BY

ITZGERALD

,J.

tial value, the order does appear to signal a mindset that

Rowland is inapplicable to MCL 600.6431(3)....

Until the Supreme Court decides to substantively ad-

dress the impact of Rowland on MCL 600.6431(1), which I

encourage it to do as soon as possible, I will continue to

recognize and respect this Court’s decision in May.Inmy

opinion, it defies logic to dismiss plaintiffs’ claims here,

where in Beasley the plaintiff is being permitted to proceed

in the Court of Claims with the apparent blessing of the

Supreme Court.

I would reverse the order granting summary dispo-

sition in favor of the university. While in some cases

under MCL 600.6431(3) a remand for a determination

whether a defendant can establish that it was preju-

diced by a plaintiff’s failure to file a claim with the

Court of Claims within six months of the accident will

be warranted, such a remand in this case is not neces-

sary. The accident occurred on December 12, 2007. On

May 7, 2008, plaintiff’s counsel sent a letter to the

university, addressed to the office of legal counsel,

indicating that plaintiff’s counsel intended to represent

plaintiff in a lawsuit over the accident. On May 28,

2007, a senior claims representative of the University of

Michigan Risk Management Services sent a letter to

plaintiff’s counsel acknowledging counsel’s letter and

indicating that the university would conduct a full

investigation into the accident. The representative also

requested additional information about the accident.

The university’s counsel was also provided a copy of the

letter from the representative. Clearly, the university

had actual knowledge of plaintiff’s intention to file a

claim within six months following the accident. Under

these circumstances, I would remand for trial.

438 291 M

ICH

430 [Feb

ISSENTING

PINION BY

ITZGERALD

,J.

In re MS

Docket No. 294832. Submitted January 12, 2011, at Detroit. Decided

February 1, 2011, at 9:05 a.m.

MS, a juvenile, was charged with and entered a plea of admission to

a misdemeanor count of fourth-degree criminal sexual conduct

(CSC) in the Oakland Circuit Court, Family Division. The court

terminated its jurisdiction in 2000. In 2008, MS petitioned the

court to remove his name from the sex offender registry. The court,

Eugene A. Moore, J., denied the petition, concluding that the

petition was untimely under MCL 28.728c(4). MS appealed.

The Court of Appeals held:

MCL 28.728c(15) allows juveniles convicted of first-, second-, or

third-degree CSC or charged with those crimes and convicted of

certain lesser offenses to petition the court by October 1, 2007, or

within three years of discharge from the court’s jurisdiction to

remove their names from the sex offender registry if certain

circumstances exist. Thus, MS’s petition was untimely. While he

argued that the statute was unconstitutional because it failed to

require that offenders be notified of the time limits, there is no

provision allowing juveniles initially charged with fourth-degree

CSC to petition for removal of their names from the registry. The

statute limits eligibility to petition to certain individuals charged

with or convicted of first-, second-, or third-degree CSC. The trial

court did not err by denying MS’s petition.

Affirmed.

RIMINAL

AW —

FFENDERS

EGISTRATION

CT —

UVENILES —

ETITIONS

FOR

EMOVAL FROM

FFENDER

EGISTRY

Juveniles convicted of first-, second-, or third-degree criminal sexual

conduct or charged with those crimes and convicted of certain

lesser offenses may petition the court to remove their names from

the sex offender registry in certain circumstances, but there is no

provision allowing juveniles initially charged with fourth-degree

criminal sexual conduct to petition for removal of their names

from the registry (MCL 28.728c[15]).

Sterling & Schilling, P.C. (by Ronald F. Schilling),

for MS.

2011] In re MS

439

Jessica R. Cooper, Prosecuting Attorney, and

Danielle Walton, Assistant Prosecuting Attorney, for

the Oakland County Prosecuting Attorney.

Before: O’C

ONNELL

,P.J., and S

AAD

and B

ECKERING

,JJ.

O’C

ONNELL

,P.J. Petitioner, MS, appeals by delayed

leave granted the denial of his petition seeking removal

from the sex offender registry under the Sex Offenders

Registration Act (SORA), MCL 28.721 et seq. We affirm.

In 1999, when MS was 13 years old, the Oakland

County Prosecutor filed a delinquency proceeding and

petition alleging three counts of fourth-degree criminal

sexual conduct (CSC) against him under MCL

750.520e(1)(b).

MS entered a plea of admission to one

misdemeanor count of fourth-degree CSC.

The trial

court placed MS in the intensive probation program and

terminated its jurisdiction over MS on November 29,

2000, when he was 15 years old. Nearly eight years

later, on July 31, 2008, MS filed his petition for removal

from the sex offender registry.

The trial court denied MS’s petition as untimely

under MCL 28.728c(4). At the hearing on the petition,

the trial court stated, “The statute is very clear. I don’t

agree with the statute.... [B]ut I’m bound by the

statute.” The court then inquired of MS:

Court:...You’ve graduated from college, and have had

no problems?

All counts involved a single victim; the record indicates the victim was

13 years old.

The trial court’s order of adjudication listed the Prosecutor’s Advi-

sory Coordinating Council charge code “750.520e1A,” which, according

to the August 2003 Bench Guide, refers to criminal sexual conduct-fourth

degree (force or coercion). State Court Administrative Office, et al.,

Criminal Records Reporting MCL/PACC Charge Codes (11th ed), p 120.

440 291 M

ICH

439 [Feb

[MS]: Yes, your Honor.

Court: Completed probation?

[MS]: Yes, everything.

Court: And you’re how old, now?

[MS]: I am—what was that?

Court: How are you now [sic]?

[MS]: I’m 23 years old.

Court: Ten years. I mean, this is the typical example of

the person who should not have—still be on the registry.

But I didn’t write the statute. [Defense counsel] is an

excellent lawyer, and my suggestion is you sit down and

write a letter to your State Representative. Maybe they’ll

change the statute, but I’m bound by the statute and the

motion is denied.

This Court has summarized the SORA provision that

allows certain juvenile offenders to be removed from the

sex offender registry:

Certain juveniles required to register as sex offenders

who are identified under MCL 28.728c may petition the

court in which they were convicted to limit or terminate

the registration requirement. Pertinent to this case, MCL

28.728c(1) provides that “[a]n individual described in sub-

section (15) [MCL 28.728c(15)] who is convicted before

October 1, 2004 of a violation described in that subsection

may petition the court under this section for an order

allowing him or her to register under this act as provided in

section 8d(1) [MCL 28.728d(1)].” Once an individual is

permitted to register under [MCL 28.728d(1)], the lower

court is vested with discretion to cease the registration

process. [People v Hesch, 278 Mich App 188, 192-193; 749

NW2d 267 (2008).]

T o file a timely petition to be removed from the registry

under MCL 28.728c(4), an offender who was convicted

prior to October 1, 2004, must file the petition before

October 1, 2007, or within three years of discharge from

court jurisdiction.

2011] In re MS

441

MS filed his petition in 2008, nearly eight years after

his discharge from the trial court’s jurisdiction. Accord-

ing to MCL 28.728c(4), the petition was untimely. MS

argues, however, that MCL 28.728c(4) is unconstitu-

tional on the ground that the statute failed to provide

that offenders be notified of the statutory time limits.

We review de novo questions of law, including consti-

tutional questions. People v Stone, 269 Mich App 240,

242; 712 NW2d 165 (2005); In re Wentworth, 251 Mich

App 560, 561; 651 NW2d 773 (2002). However, we will

not address constitutional issues when, as here, we can

resolve an appeal on alternative grounds. People v

Krezen, 427 Mich 681, 713 n 32; 397 NW2d 803 (1986)

EVIN

, J., dissenting); Wayne Co v Hathcock, 471 Mich

445, 456 n 10; 684 NW2d 765 (2004).

The SORA provisions at issue apply to juvenile

offenders convicted of first-, second-, or third-degree

CSC. MCL 28.728c(1) and (15). Specifically, MCL

28.728c(1) provides that “[a]n individual described in

[MCL 28.728c(15)] who is convicted before October 1,

2004 of a violation described in that subsection may

petition the court under this section for an order

allowing him or her to register under this act as

provided in [MCL 28.728d(1)].” MCL 28.728c(15)

states:

The right to petition under this section applies to all of

the following individuals:

(a) An individual who is convicted as a juvenile

under...MCL 750.520b [first-degree C SC], 750.520c

[second-degree CSC], [or] 750.520d [third-degree

CSC],...ofcommitting, attempting to commit, or con-

spiring to commit a violation solely described in [those

sections] if [certain circumstances exist].

***

442 291 M

ICH

439 [Feb

(b) An individual who was charged under...MCL

750.520b, 750.520c, [or] 750.520d, with committing, at-

tempting to commit, or conspiring to commit a violation

solely described in [those sections] and is convicted as a

juvenile of violating, attempting to violate, or conspiring to

violate...MCL 750.520e [fourth–degree CSC] [or]

750.520g, if [certain circumstances exist].

The subsection plainly limits the eligibility to petition

to individuals charged with first-, second-, or third-

degree CSC or convicted of those crimes.

In contrast, the record in this case indicates that MS

was charged with fourth-degree CSC and entered a plea

of admission to the same charge. Thus, he has no right

to petition under the statute. We recognize that it seems

paradoxical to allow first-, second-, and third-degree

CSC juvenile offenders to terminate registration, but

preclude fourth-degree C SC juvenile offenders from

terminating their registrations. Respondent notes that

fourth-degree CSC juvenile offenders are not included

on the public sex offender registry and posits that our

Legislature determined that these offenders did not

require the opportunity to be removed from the regis-

try.

This does not explain, however, why MCL

28.728c(15)(b) allows an offender who was charged with

third-degree CSC but convicted of fourth-degree CSC to

petition for removal from the registry. Nonetheless, the

statute is unambiguous, and we must apply it as writ-

ten. People v Barrera, 278 Mich App 730, 735-736; 752

NW2d 485 (2008). Despite MS’s apparently clean record

Respondent also argues that the trial court lacked jurisdiction to hear

MS’s petition. We disagree. MCL 28.728c(4) provides that “[a] petition

filed under this section shall be filed in the court in which the individual

was convicted of committing the listed offense.” Although the Legislature

did not expressly state that the family division of the circuit court has

jurisdiction to entertain a petition for removal from the sex offender

registry, it appears that MCL 28.728c implicitly expanded the jurisdiction

of the court to allow the court to entertain the petition.

2011] In re MS 443

during the past 10 years, the charge of fourth-degree

CSC at age 13 precluded him from petitioning for

removal from the sex offender registry.

Affirmed.

444 291 M

ICH

439 [Feb

TITAN INSURANCE COMPANY v HYTEN

Docket No. 291899. Submitted August 5, 2010, at Detroit. Decided

February 1, 2011, at 9:10 a.m.

Titan Insurance Company filed an action in the Oakland Circuit Court

against McKinley Hyten, Howard Holmes, and Martha Holmes,

seeking a declaratory judgment allowing it to reform an automobile

no-fault insurance policy it had issued to Hyten in August 2007 by

reducing the liability coverage limits to the statutory minimums. The

policy included liability limits in excess of the statutory minimums.

At the time Titan issued the policy, Hyten’s driver’s license had been

suspended, but she expected to get it back soon and did not indicate

on the application that her license was suspended. In September

2007, her license was restored. The following F ebruary, she had a

motor vehicle accident in which the Holmeses were injured. Titan

alleged that had it been informed that Hyten had a suspended license,

it would not have issued the policy. Farm Bureau Insurance, the

Holmeses’ insurer, was allowed to intervene in the action. Farm

Bureau, Titan, and Hyten filed cross-motions for summary disposi-

tion. The court, Edward Sosnick, J., denied Titan’s motion and

granted summary disposition to Hyten and Farm Bureau, concluding

that the evidence did not clearly show fraud and that Titan could

have easily ascertained whether Hyten had a valid driver’s license.

Titan appealed.

The Court of Appeals held:

1. MCL 257.520(f)(1) prohibits an insurer from using fraud as a

basis to void completely coverage under an insurance policy once an

innocent third party has been injured, but in light of the provisions of

MCL 257.520(g), an insurer may use fraud as a defense to void

optional insurance coverage in excess of the statutory minimum

amounts. An insurer may not deny coverage on the basis of fraud

after it has collected premiums, however, when it easily could have

ascertained the fraud at the time the contract was formed. The

insurer must undertake a reasonable investigation of the insured’s

insurability within a reasonable time from the acceptance of the

application and the issuance of a policy, a duty that directly inures to

the benefit of third persons injured by the insured, such as the

Holmeses. Titan’s agent could have easily ascertained whether Hyten

had a license. Because the coverage implicated was for the benefit of

2011] T

ITAN

YTEN

445

innocent third parties, Titan could not reform Hyten’s policy to

reduce the residual coverage to the statutory minimum limits. The

trial court did not err by granting Hyten and Farm Bureau judgment

as a matter of law.

2. Moreover, MCL 500.3220 permits an insurer to cancel a

no-fault policy if the risk is unacceptable to the insurer, but only

within 55 days of the policy’s issuance. If the insurer opted against

undertaking an investigation of the risk it was insuring within

that time, it may not use later-acquired information to terminate

its policy obligations except under very limited circumstances.

Titan’s reliance on Hyten’s representations could not qualify as

reasonable in light of the public policy expressed in the no-fault act

and MCL 500.3220.

3. Hyten’s prior innocent misrepresentation lost its effective-

ness as a potential ground for cancelling the policy once she

received her license. In the absence of evidence that Titan would

not have insured Hyten after she obtained her license, her change

of circumstances cured the misrepresentation and Titan had no

equitable basis for recession or reformation.

4. Farm Bureau had standing to challenge Titan’s attempt to

reform the policy because as the Holmeses’ insurer, its rights might

have been affected if it had to cover the costs of their injuries.

Affirmed.

AHRA

, J., did not participate.

1. I

NSURANCE —

-F

AULT —

ISREPRESENTATION BY

PPLICANT —

EFORMATION

OLICY —

ASILY

SCERTAINABLE

ISREPRESENTATION

An insurer may not use fraud as a basis to void completely coverage

under an insurance policy once an innocent third party has been

injured, but an insurer may use fraud as a defense to void optional

insurance coverage in excess of the statutory minimum amounts; an

insurer may not deny coverage on the basis of fraud after it has

collected premiums, however, when it easily could have ascertained

the fraud at the time the contract was formed (MCL 257.520[f][1],

[g]).

2. I

NSURANCE —

-F

AULT —

ISREPRESENTATION BY

PPLICANT —

ASILY

SCERTAINABLE

ISREPRESENTATION —

AILURE TO

EASONABLY

NVESTI-

GATE —

STOPPEL

An insurer may cancel a no-fault policy if the risk is unacceptable to

the insurer, but only within 55 days of the policy’s issuance; if the

insurer opts against undertaking an investigation of the risk it is

insuring within that time, it may not use later-acquired informa-

tion to terminate its policy obligations except under very limited

circumstances (MCL 500.3220).

446 291 M

ICH

445 [Feb

Law Offices of Ronald M. Sangster, PLLC (by Ronald

M. Sangster), for Titan Insurance Co.

William E. Ziem for McKinley Hyten.

Kopka, Pinkus, Dolin & Eads, P.L.C. (by Mark L.

Dolin), for Farm Bureau Insurance.

Before: G

LEICHER

,P.J., and Z

AHRA

and K. F. K

ELLY

,JJ.

LEICHER

,P.J. In an insurance application submitted

to plaintiff, Titan Insurance Company, on August 24,

2007, defendant McKinley Hyten represented that she

possessed a valid driver’s license as of that date. In

reality, Hyten’s license had been suspended and was not

restored until nearly a month later, on September 20,

2007. In February 2008, Hyten was involved in an

automobile accident in which defendants Martha

Holmes and Howard Holmes suffered injuries. On the

basis of Hyten’s misrepresentation that she held a

license on August 24, 2007, Titan sought to reform

Hyten’s policy by reducing to the statutory minimum

the excess liability coverage available to the Holmeses.

The circuit court denied Titan this equitable remedy on

the ground that Titan could have easily ascertained

Hyten’s misrepresentation of her licensing date. We

affirm the circuit court’s order denying Titan’s motion

for summary disposition and granting summary dispo-

sition in favor of Hyten and intervening defendant

Farm Bureau Insurance.

I. UNDERLYING FACTS AND PROCEEDINGS

Hyten obtained a provisional driver’s license in April

2004. Over the next 2

years, she incurred multiple

moving violations and had two minor traffic accidents.

On January 6, 2007, the Secretary of State suspended

2011] T

ITAN

YTEN

447

Hyten’s driver’s license. Meanwhile, Hyten’s mother,

Anne Johnson, inherited a 1997 Dodge Stratus.

Johnson “earmarked” the vehicle for Hyten’s use after

the suspension was lifted. Based on assurances from

Hyten’s probation officer, Johnson anticipated that

Hyten’s license would be restored at a scheduled court

date of August 24, 2007.

On August 22, 2007, in preparation for Hyten’s

license restoration, Johnson spoke by telephone with an

insurance agent, Brett Patrick.

Patrick filled out a

Titan Insurance Michigan automobile insurance appli-

cation on Hyten’s behalf. Johnson informed Patrick

that Hyten’s driver’s license was suspended, and

Patrick responded that Hyten could not be insured until

her driving privileges had been reinstated. Johnson

advised Patrick that Hyten’s license would likely be

reinstated on August 24, 2007. Patrick postdated the

application to August 24, 2007. The application did not

identify that any of the drivers in Hyten’s household

were unlicensed or had their licenses suspended or

revoked as of that date. Johnson paid $719 for the Titan

insurance premium by credit card over the telephone.

The same day or the next day, Hyten signed the

application at Patrick’s office, after “skim[ming] over”

its contents to confirm the accuracy of the make and

model of her car.

The Titan policy took effect on August

24, 2007, with coverage limits of $100,000 per person

and $300,000 per occurrence.

Although somewhat unclear from the record, Patrick was an indepen-

dent insurance agent who had authority to issue Titan insurance policies

to qualifying customers.

Hyten did not identify exactly when she signed the insurance appli-

cation, but averred that she went to Patrick’s office a day or two before

her hearing on August 24, 2007. Hyten dated her signature on the

application August 22, 2007.

448 291 M

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445 [Feb

Hyten and Johnson appeared in court on August 24,

2007, where they learned that Hyten would not regain

her driving privileges until she completed a driver’s

assessment. The Stratus stayed in storage until Sep-

tember 20, 2007, when the court restored Hyten’s

license. Neither Hyten nor Johnson notified Patrick

that Hyten’s license remained suspended on August 24,

2007. Johnson averred in an affidavit, “I fully expected

the car to remain insured while it was stored and that,

upon my daughter receiving her license to drive, the

insurance policy would be in effect.” On February 10,

2008, approximately five months after the reinstate-

ment of Hyten’s license, Hyten had a motor vehicle

accident involving the Holmeses. The Holmeses both

sustained injuries in the accident.

Titan filed a complaint in the Oakland Circuit Court

seeking a declaration reforming Hyten’s insurance

policy by reducing the liability coverage limits to the

statutory minimum of $20,000 per person and $40,000

per event.

Titan’s complaint asserted that had Titan

“been informed of the fact that Defendant Hyten’s

Michigan driver’s license had been suspended, it never

would have accepted the risk and would not have issued

the subject insurance policy, unless Defendant Hyten

had named himself [sic] as an excluded driver under

MCL 500.3009.” Farm Bureau, the insurance company

for the Holmeses, intervened as a defendant in the

The no-fault insurance act, MCL 500.3101 et seq., sets forth the

amount of residual liability coverage required in Michigan no-fault

automobile insurance policies. MCL 500.3131. MCL 500.3009(1) man-

dates that no-fault policies include coverage for “loss resulting from

liability imposed by law for property damage, bodily injury, or death

suffered by any person arising out of the ownership, maintenance, or use

of a motor vehicle” of “not less than $40,000.00 because of bodily injury

to or death of 2 or more persons in any 1 accident, and to a limit of not

less than $10,000.00 because of injury to or destruction of property of

others in any accident.”

2011] T

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action. Farm Bureau, Titan, and Hyten filed cross-

motions for summary disposition under MCR

2.116(C)(10). In a written opinion and order, the circuit

court denied Titan’s motion and granted Farm Bu-

reau’s and Hyten’s motions. The circuit court’s opinion

set forth the following pertinent factual findings:

In this case, it is not clear that defendant McKinley

Hyten knowingly committed any fraud. Indeed, the evi-

dence does not even show that McKinley’s mother

[Johnson] committed any fraud. The evidence does not

show what information the insurance agent received. How-

ever, whether a person has a driver’s license is easily

ascertained. There is no evidence before the Court as to

whether the insurance agent asked to see McKinley’s

license or whether he may have taken her premium know-

ing that she did not have a license. For all of these reasons,

the Court cannot conclude that the plaintiff has a right to

reduce the coverage to the statutory minimums.

II. GOVERNING CASELAW

Titan challenges the circuit court’s summary dispo-

sition ruling, which we review de novo. Robertson v Blue

Water Oil Co, 268 Mich App 588, 592; 708 NW2d 749

(2005). “Summary disposition is appropriate under

MCR 2.116(C)(10) if there is no genuine issue regarding

any material fact and the moving party is entitled to

judgment as a matter of law.” West v Gen Motors Corp,

469 Mich 177, 183; 665 NW2d 468 (2003). “In reviewing

a motion under MCR 2.116(C)(10), this Court considers

the pleadings, admissions, affidavits, and other relevant

documentary evidence of record in the light most favor-

able to the nonmoving party to determine whether any

genuine issue of material fact exists to warrant a trial.”

Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506

(2004). “A genuine issue of material fact exists when the

record, giving the benefit of reasonable doubt to the

450 291 M

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445 [Feb

opposing party, leaves open an issue upon which rea-

sonable minds might differ.” West, 469 Mich at 183.

The parties’ dispute centers on whether Titan may

reform Hyten’s no-fault insurance policy by reducing

the tort liability coverage available to the Holmeses

from the stated policy limits of $100,000 per person and

$300,000 per occurrence to the statutory minimums of

$20,000 per person and $40,000 per occurrence. Titan

argues that reformation is appropriate because Hyten

fraudulently misrepresented that she possessed a driv-

er’s license on August 24, 2007.

The issue presented here lies within the intersection of

three insurance concepts: policy cancellation, rescission,

and reformation. Cancellation and rescission signify dif-

ferent methods for terminating insurance coverage.

Rescission is a remedy distinct from cancellation. See 8B

Appleman, Insurance Law and Practice, § 5011, p 403:

“When a policy is cancelled, it is terminated as of the

cancellation date and is effective up to such date; however,

when a policy is rescinded, it is considered void ab initio

and is considered never to have existed.” [United Security

Ins Co v Ins Comm’r, 133 Mich App 38, 42; 348 NW2d 34

(1984).]

In contrast, a policy in full effect may be reformed.

“Reformation of an insurance policy is an equitable

remedy.” Auto-Owners Ins Co v Elchuk, 103 Mich App

542, 545; 303 NW2d 35 (1981). In Najor v Wayne Nat’l

Life Ins Co, 23 Mich App 260, 272; 178 NW2d 504

(1970), this Court adopted the following description of

reformation:

“A written instrument may be reformed where it fails to

express the intentions of the parties thereto as the result of

accident, inadvertence, mistake, fraud, or inequitable con-

duct, or both fraud and mistake, fraud or inequitable

conduct being on one side and mistake on the other.

2011] T

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Conversely, in the absence of satisfactory proof of accident,

fraud, or mistake, there is no basis for a court of equity to

reform an instrument.” 45 Am Jur, Reformation of Instru-

ments, § 45, p 609.

Bearing in mind these basic concepts, we turn to the

law governing Titan’s ability to cancel, rescind, or

reform Hyten’s insurance policy under the circum-

stances presented.

Where a policy of insurance is procured through the

insured’s intentional misrepresentation of a material fact

in the application for insurance, and the person seeking to

collect the no-fault benefits is the same person who pro-

cured the policy of insurance through fraud, an insurer

may rescind an insurance policy and declare it void ab

initio.[Darnell v Auto-Owners Ins Co, 142 Mich App 1, 9;

369 NW2d 243 (1985).]

However, the right to completely rescind a policy of

no-fault insurance “ceases to exist once there is a claim

involving an innocent third party.” Farmers Ins Exch v

Anderson, 206 Mich App 214, 218; 520 NW2d 686

(1994).

Once an insurable event occurs, “the liability of

the insurer with respect to insurance required by the

no-fault act becomes absolute.” Ohio Farmers Ins Co v

Michigan Mut Ins Co, 179 Mich App 355, 363; 445

NW2d 228 (1989).

In Ohio Farmers, 179 Mich App at 358, this Court

addressed whether an insured’s misrepresentation au-

Public policy forms the basis for this rule in Michigan. Katinsky v

Auto Club Ins Ass’n, 201 Mich App 167, 171; 505 NW2d 895 (1993).

“Generally, an automobile insurer cannot, on the ground of fraud or

misrepresentation, retrospectively avoid coverage under a compulsory or

financial responsibility insurance law so as to escape liability to a third

party.” 7 Am Jur 2d, Automobile Insurance, § 61, p 566. MCL

257.520(f)(1) also commands that “with respect to the insurance required

by this chapter,” an insurer’s liability “shall become absolute whenever

injury or damage covered by said motor vehicle liability policy occurs.”

452 291 M

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445 [Feb

thorized an insurance company to reform the policy by

limiting its liability to the statutory minimum excess

coverage. Ohio Farmers arose from a claim made by an

innocent third party injured in an accident with a vehicle

insured by the plaintiff , Ohio Farmers Insurance Com-

pany. Id. at 357-358. After the accident, Ohio Farmers

declared the policy void because it had been secured

through misrepresentations. Id. at 357. In an unpublished

opinion, this Court held that “as to...theinjured inno-

cent third party, Ohio Farmers insured the subject vehicle

on the date of the accident.” Id. at 358. The case returned

to this Court after Ohio Farmers settled with the injured

third party by paying him $50,300. Id. Ohio Farmers then

sued the driver’s insurer, Michigan Mutual Insurance

Company, asserting that “if an insurer is forced for public

policy reasons to afford coverage in situations where the

policy could have been rescinded, the bodily injury liability

limit should be $20,000, the minimum mandatory limit.”

Id. This Court disagreed, concluding “that basic public

policy considerations require that, once an innocent third

party is injured in an accident in which coverage is in

effect on the automobile, an insurer will be estopped from

asserting rescission as a basis upon which it may limit its

liability to the statutory minimum.” Id. at 364-365.

In Farmers Ins Exch, 206 Mich App at 220, this Court

announced that it “decline[d] to follow” Ohio Farmers,

because that case neglected to take into account two

portions of the financial responsibility act (FRA), MCL

257.501 et seq. MCL 257.520(f) states:

Every motor vehicle liability policy shall be subject to

the following provisions which need not be contained

therein:

Although this Court stated that “an insurer will be estopped from

asserting rescission as a basis” for limiting its liability, the insurance

company actually sought to reform the policy to reflect lower coverage

limits. Ohio Farmers, 179 Mich App at 358.

2011] T

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453

(1) The liability of the insurance carrier with respect to the

insurance required by this chapter shall become absolute

whenever injury or damage covered by said motor vehicle

liability policy occurs; said policy may not be cancelled or

annulled as to such liability by any agreement between the

insurance carrier and the insured after the occurrence of the

injury or damage; no statement made by the insured or on his

behalf and no violation of said policy shall defeat or void said

policy, and except as hereinafter provided, no fraud, misrep-

resentation, assumption of liability or other act of the insured

in obtaining or retaining such policy, or in adjusting a claim

under such policy, and no failure of the insured to give any

notice, forward any paper or otherwise cooperate with the

insurance carrier, shall constitute a defense as against such

judgment creditor.

MCL 257.520(g) contemplates:

Any policy which grants the coverage required for a

motor vehicle liability policy may also grant any lawful

coverage in excess of or in addition to the coverage specified

for a motor vehicle liability policy and such excess or

additional coverage shall not be subject to the provisions of

this chapter. With respect to a policy which grants such

excess or additional coverage the term “motor vehicle

liability policy” shall apply only to that part of the coverage

which is required by this section.

The first of the two provisions, MCL 257.520(f)(1),

“prohibits an insurer from using fraud as a basis to void

completely coverage under an insurance policy once an

innocent third party has been injured.” Farmers Ins

Exch, 206 Mich App at 218. However, this provision

deals only with “the statutorily mandated minimum

coverage of $20,000/$40,000.”

Id. at 218. “By contrast,

The FRA contains the same minimum residual liability coverage

limits as those in the no-fault act. The FRA mandates that all “motor

vehicle liability polic[ies]” supply minimum coverage of $20,000 for

injuries suffered by one person in an accident and $40,000 for injuries

suffered by two or more people in an accident. MCL 257.520(a) and (b)(2).

454 291 M

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445 [Feb

[MCL 257.520(g)], which addresses excess coverage,

does not include such a limitation.” Id. Reading the two

provisions together, this Court reasoned that “the Leg-

islature did not intend to preclude an insurer from

using fraud as a defense to void optional insurance

coverage.”

Id. at 219 (emphasis added). The Court

further explained, “[B]y specifically exempting the ex-

cess or additional coverage permitted by [MCL

257.520(g)] from the remaining provisions of the chap-

ter,” the Legislature signaled that insurers remained

free to rely on fraud as a defense to an excess coverage

claim. Id.

After concluding that MCL 257.520(f)(1) and (g)

generally permit insurers to interpose a fraud defense

to claims for excess coverage, the Court in Farmers Ins

Exch carved out a notable exception: “We think it

unwise to permit an insurer to deny coverage on the

basis of fraud after it has collected premiums, when it

easily could have ascertained the fraud at the time the

contract was formed....”Id. at 219. Thus, a “validly

imposed defense of fraud” will not “absolutely void any

optional excess insurance coverage in all cases.” Id.

Rather, “when fraud is used as a defense in situations

such as these, the critical issue necessarily becomes

whether the fraud could have been ascertained easily by

the insurer at the time the contract of insurance was

entered into.” Id.

In Farmers Ins Exch, this Court cited no authority

for the proposition that an easily ascertainable fraud

cannot support a denial of optional residual liability

coverage for an innocent third party. See id. A case

decided almost two decades earlier, State Farm Mut

Optional coverage means “any lawful coverage in excess of or in

addition to the coverage specified for a motor vehicle liability policy.”

MCL 257.520(g).

2011] T

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455

Auto Ins Co v Kurylowicz, 67 Mich App 568; 242 NW2d

530 (1976), had reached the same result. In Kurylowicz,

this Court held, “ ‘[A]n automobile liability insurer

must undertake a reasonable investigation of the in-

sured’s insurability within a reasonable period of time

from the acceptance of the application and the issuance

of a policy. This duty directly inures to the benefit of

third persons injured by the insured.’ ” Id. at 576,

quoting Barrera v State Farm Mut Auto Ins Co,71Cal

2d 659, 663; 79 Cal Rptr 106; 456 P2d 674 (1969). This

Court explained as follows the rationale for this rule:

“ ‘Such an injured (innocent third) party, who has

obtained an unsatisfied judgment against the insured,

may properly proceed against the insurer; the insurer

cannot then successfully defend upon the ground of its

own failure reasonably to investigate the application.’ ”

Kurylowicz, 67 Mich App at 576, quoting Barrera,71

Cal 2d at 663 (emphasis added).

The circuit court found that Titan’s agent could have

easily ascertained whether Hyten had a license: for

example, by asking to see her driver’s license. Titan has

offered no evidence or argument to the contrary. Titan

instead insists that more recent caselaw directly con-

flicts with Farmers Ins Exch, Ohio Farmers, and Kury-

lowicz. In the first case cited by Titan, Hammoud v

Metro Prop & Cas Ins Co, 222 Mich App 485, 487; 563

NW2d 716 (1997), the plaintiff sought no-fault benefits

from the defendant insurance company for injuries

suffered in a motor vehicle accident that occurred while

the plaintiff was driving his vehicle. The plaintiff’s

brother had purchased insurance from the defendant

for the plaintiff’s vehicle, but failed to list the plaintiff

as a driver in the insurance application. Id. The plaintiff

admitted that to save money, he allowed his brother to

buy the insurance by misrepresenting the plaintiff’s

status as a driver. Id. at 488-489. This Court held that

456 291 M

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445 [Feb

the defendant was entitled to void the policy because

the plaintiff did not qualify as an innocent third party

and the plaintiff had defrauded the defendant by rely-

ing on his brother to obtain insurance for his vehicle

instead of purchasing the insurance himself. Id. The

Court further stated in dicta, “[A]n insurer does not

owe a duty to the insured to investigate or verify that

individual’s representations or to discover intentional

material misrepresentations.” Id. at 489. Contrary to

Titan’s characterization of Hammoud, the Court’s final

observation merely reiterated the general rule that an

insurer owes an insured no duty to investigate the

insured’s assertions in the insurance application. And,

as Titan recognizes, binding caselaw in Michigan pre-

vents an insurer from avoiding liability relating to the

injuries of innocent third parties. In summary, Ham-

moud presents no basis for questioning the continuing

vitality of Farmers Ins Exch, Ohio Farmers,orKury-

lowicz.

Titan next invokes Manier v MIC Gen Ins Co, 281

Mich App 485; 760 NW2d 293 (2008), as a second

example of this Court’s retreat from the “easily ascer-

tainable” rule. In Manier, we ruled that the defendant

insurance company could not have “easily ascertained”

that the insured party misrepresented that her son

lived with her and that therefore “no duty of investiga-

tion compelled defendant to perform further research

regarding [the son’s] residence....” Id. at 490. We

reject that either Hammoud or Manier require aban-

donment of the “easily ascertainable” standard. Rather,

a reading of these opinions reveals that they relied on

and ratified the central holdings of Farmers Ins Exch,

Ohio Farmers, and Kurylowicz.

In this case, the Holmeses qualify as innocent third

parties, and the undisputed facts pertinent to Hyten’s

2011] T

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457

misrepresentation demonstrate as a matter of law the

readily ascertainable nature of Hyten’s misrepresenta-

tion. As the circuit court pointed out, Titan could have

requested a copy of Hyten’s license or obtained her

driving record. Because Titan could have easily ascer-

tained Hyten’s misrepresentation and because the cov-

erage implicated benefits innocent third parties, Titan

may not reform Hyten’s policy to reduce the residual

coverage to the statutory minimum limits. The circuit

court correctly ruled that Hyten and Farm Bureau were

entitled to judgment as a matter of law.

III. LEGAL UNDERPINNINGS OF THE

“EASILY ASCERTAINABLE” RULE

Titan strenuously contends that this Court wrongly

decided and continues to incorrectly rely on the caselaw

adopting the “easily ascertainable” rule. In Titan’s

view, Kurylowicz and its progeny stand “on a very shaky

legal foundation.” Titan argues that the “easily ascer-

tainable” standard constitutes a judicially created duty

that should be overruled and discarded. Titan’s argu-

ments hold superficial appeal. At first blush, it may

appear that this Court has indeed crafted a vehicle for

evading or undermining the legislative intent embodied

in MCL 257.520(f)(1) and (g). Consequently, we turn to

a careful examination of the statutes that must guide

our analysis and their application to the facts at hand.

A. STATUTORY FRAMEWORK

Indisputably, courts must construe an insurance

policy in harmony with the statutes when possible.

Roberts v Titan Ins Co (On Reconsideration), 282 Mich

App 339, 359; 764 NW2d 304 (2009). Titan relies on

portions of the FRA, but “[t]he no-fault act, as opposed

to the financial responsibility act, is the most recent

458 291 M

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445 [Feb

expression of this state’s public policy concerning motor

vehicle liability insurance.” Citizens Ins Co of America v

Federated Mut Ins Co, 448 Mich 225, 232; 531 NW2d

138 (1995).

In 1970, the Legislature amended MCL 500.3220,

which limits the grounds on which an insurance

company may cancel an automobile liability policy.

1970 PA 161. The preamendment version of MCL

500.3220 prohibited an automobile liability insurer

from cancelling coverage after a policy had remained

in effect for 55 days, except for any one of 12

enumerated reasons. The statute allowed an insurer

to cancel a policy after 55 days if, for example,

“during the 55 days following the date of original

issue thereof the risk is unacceptable to the insurer,”

“the insured failed to disclose material information

needed for the proper rating or acceptance of the

risk,” “the insured does not reside at the address

specified in the policy and fails to furnish the correct

address to the insurer within a reasonable period,” or

“the insured failed to disclose fully in his application

this record of motor vehicle accidents or traffic vio-

lations as are material to the insurer’s acceptance of

the risk.” MCL 500.3220(a), (c), (d), and (e), as added

by 1966 PA 342. By amending MCL 500.3220 in 1970,

the Legislature eliminated virtually all the specific

reasons permitting cancellation beyond the 55-day

window. The current version of MCL 500.3220 reads

in its entirety:

Subject to the following provisions no insurer licensed to

write automobile liability coverage, after a policy has been

in effect 55 days or if the policy is a renewal, effective

immediately, shall cancel a policy of automobile liability

insurance except for any 1 or more of the following reasons:

(a) That during the 55 days following the date of original

issue thereof the risk is unacceptable to the insurer.

2011] T

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459

(b) That the named insured or any other operator, either

resident of the same household or who customarily oper-

ates an automobile insured under the policy has had his

operator’s license suspended during the policy period and

the revocation or suspension has become final.

We read the current version of MCL 500.3220 in pari

materia with the no-fault act, which the Legislature

enacted in 1972. MCL 500.3101 et seq., as added by 1972

PA 294. Both statutes express the state’s policy of

protecting “a source and a means of recovery” for

automobile accident victims. Kurylowicz, 67 Mich App

at 574. Both statutes also generate “significant incen-

tive towards the goal of insurance coverage for all

automobiles.” McKendrick v Petrucci, 71 Mich App 200,

207; 247 NW2d 349 (1976). In decreeing no-fault insur-

ance compulsory for all motorists, the Legislature con-

temporaneously undertook to highly regulate the busi-

ness of insurance companies offering no-fault insurance

policies in this state. “The goal of the no-fault insurance

system was to provide victims of motor vehicle acci-

dents assured, adequate, and prompt reparation for

certain economic losses.” Shavers v Attorney General,

402 Mich 554, 578-579; 267 NW2d 72 (1978). “In effect,

insurance companies [offering no-fault coverage] are

the instruments through which the Legislature carries

out a scheme of general welfare.” Id. at 597.

Keeping in mind the legislative purposes animating

the no-fault act’s comprehensive statutory scheme, we

next consider the reasons for circumscribing the policy-

cancellation period. At present, MCL 500.3220(a) con-

templates that no-fault insurers may cancel coverage

within 55 days of a policy’s issuance if “the risk is

unacceptable to the insurer.” Alternatively phrased, an

insurer may make its own risk assessment, without

statutorily imposed restrictions. However, the Legisla-

ture limited to 55 days the period in which an insurer

460 291 M

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445 [Feb

can make its risk assessment. We conclude that MCL

500.3220(a) evidences the intent to afford no-fault

insurers a definite window of time in which to investi-

gate an insured for the purpose of assessing risk. Stated

differently, MCL 500.3220(a) envisions that no-fault

insurers will either perform an investigation to deter-

mine whether to accept a new risk or forfeit the

opportunity to later decide that an insured’s driving

record or other characteristic should require cancella-

tion of the policy. By limiting the period for policy

cancellation to a certain end date, the statute promotes

the goal of assured and adequate coverage embodied in

the no-fault act. That said, we agree with Titan that no

Michigan statute directly imposes on an insurance

company the duty to investigate the representations of

an insured. However, MCL 500.3220 does express that if

an insurer opts against undertaking an early investiga-

tion, it may not use later-acquired information to ter-

minate its policy obligations except under very limited

circumstances. MCL 500.3220(b).

B. MISREPRESENTATION AND REASONABLE RELIANCE

In Kurylowicz, 67 Mich App at 570, the defendant

misrepresented that he had no previous license suspen-

sions. After an accident that killed one motorist and

injured five others, State Farm rescinded the policy and

later brought a declaratory judgment action seeking a

determination of the rights of the injured parties under

the policy. Id. In lieu of deciding whether State Farm

had properly declared the policy void ab initio, this

Court elected to address whether State Farm had “rea-

sonably relied on the representations of the insured so

as to justify a holding that the policy was procured by

fraud.” Id. at 574. The Court concluded that “where an

automobile liability insurer retains premiums, notwith-

2011] T

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461

standing grounds for cancellation reasonably discover-

able by the insurer within the 55-day statutory period

as prescribed by [MCL 500.3220], the insurer will be

estopped to assert that ground for rescission thereaf-

ter.” Id. at 579.

The “reasonable reliance” standard advanced in Kury-

lowicz derived from the common law of fraud. To establish

a prima facie fraud claim, a plaintiff must show that it

acted in reliance on the defendant’s material misrepresen-

tation. Zaremba Equip, Inc v Harco Nat’l Ins Co, 280

Mich App 16, 38-39; 761 NW2d 151 (2008). “This Court

has frequently reiterated that, to sustain a fraud claim,

the party claiming fraud must reasonably rely on the

material misrepresentation.” Id. at 39. “Reasonable reli-

ance also must exist to support claims of innocent misrep-

resentation.” Id. “A misrepresentation claim requires rea-

sonable reliance on a false representation. There can be no

fraud where a person has the means to determine that a

representation is not true.” Nieves v Bell Indus, Inc, 204

Mich App 459, 464; 517 NW2d 235 (1994) (citation omit-

ted). Thus, proof of misrepresentation demands that the

injured party establish justifiable reliance on misleading

or false statements.

C. EASILY ASCERTAINABLE MISREPRESENTATIONS

AND POLICY REFORMATION

Titan submits that on August 24, 2007, Hyten mis-

represented that she was an eligible purchaser of no-

fault automobile insurance under MCL 500.2103(1).

Titan further asserts that it issued an insurance policy

to Hyten in reliance on her misrepresentation that she

possessed a valid driver’s license on August 24, 2007. In

Titan’s estimation, Hyten’s misrepresentation entitles

Titan to reform the policy by reducing the liability

limits to the statutorily prescribed minimums. Titan’s

462 291 M

ICH

445 [Feb

position ignores whether its reliance qualified as rea-

sonable, particularly in light of MCL 500.3220. Titan

undisputedly had awareness of the 55-day deadline for

determining whether to accept a new risk. The plain

language of MCL 500.3220 also placed Titan on notice

that after the passage of 55 days, it lost the ability to

cancel a policy, even if later-acquired information

brought to light a material misrepresentation. Titan

apparently decided not to investigate the risk it under-

took by insuring Hyten. Given this election, and the

easily ascertainable nature of Hyten’s unlicensed sta-

tus, Titan has not shown that it reasonably relied on

Hyten’s misrepresentation when it neglected to cancel

her policy within 55 days of its issuance.

Actions to reform or rescind a contract sound in

equity. Schmude Oil Co v Omar Operating Co, 184 Mich

App 574, 587; 458 NW2d 659 (1990); Van Etten v Mfr

Nat’l Bank of Detroit, 119 Mich App 277, 282-283; 326

NW2d 479 (1982). The law governing innocent misrep-

resentation, the concept at the heart of this case, also

derives from and rests on equitable principles:

The defenses of innocent misrepresentation and silent

fraud are not based in law but in equity. The equitable

court awarding a remedy must look to the most just result.

Therefore, should the court on remand find there was

innocent misrepresentation or silent fraud it must decide

which remedy would be the most equitable under the

unique circumstances of the case. The court is not confined

to the polar opposite remedies urged by the opposing

parties: full enforcement or total abrogation of the indem-

nity agreement. Other remedies, such as reformation,

restitution, or partial enforcement of the contract, may be

examined. [United States Fidelity & Guaranty Co v Black,

412 Mich 99, 134; 313 NW2d 77 (1981).]

In effect, Titan seeks the benefit of an equitable

ruling that it may avoid liability to innocent third

2011] T

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463

parties on the basis of Hyten’s misrepresentation, not-

withstanding its deliberate election to forgo a risk

assessment. “[E]quity aids the vigilant, not those who

sleep on their rights.” Farley v Carp, 287 Mich App 1, 7;

782 NW2d 508 (2010) (quotation marks and citations

omitted). Alternatively stated, “equity will not lend its

aid to those who are not diligent in protecting their own

rights.” Burlage v Radio Cab Co, 321 Mich 319, 325; 32

NW2d 465 (1948). Permitting Titan to avoid the conse-

quences of its conscious decision to forgo investigation

of Hyten’s insurability would contradict the no-fault

act’s purpose of assured, adequate compensation and

thwart the purpose reflected in MCL 500.3220. Simply

put, Titan’s reliance on Hyten’s representations cannot

qualify as reasonable in light of the public policy ex-

pressed in the no-fault act and MCL 500.3220. Far from

conflicting with Michigan’s statutory no-fault insur-

ance framework, the “easily ascertainable” standard

fosters statutory objectives and comports with basic

equitable principles. Accordingly, we respectfully de-

cline Titan’s invitation to overrule Kurylowicz and its

progeny.

IV. HYTEN’S CURE OF THE MISREPRESENTATION

Under the circumstances presented here, a second

legal basis exists for denying Titan’s request to reform

the policy. We recognize that the circuit court did not

consider any alternative rationale for its holding; given

the firm establishment of the “easily ascertainable”

standard, neither party raised additional legal argu-

ments. But because Titan has questioned the legal

foundation for granting summary disposition in

Hyten’s favor, we consider a related legal question

regarding which the facts necessary for resolution ap-

464 291 M

ICH

445 [Feb

pear in the record. See Steward v Panek, 251 Mich App

546, 554; 652 NW2d 232 (2002).

Titan asserts that on the date Hyten signed the

insurance application, she misrepresented that she

would have her license by August 24, 2007. Because

Hyten’s subsequent acquisition of her license cured this

earlier misrepresentation, we reject Titan’s argument.

Titan does not dispute that on September 20, 2007, the

state restored Hyten’s license and she became eligible

to purchase no-fault insurance. Nor does Titan suggest

that it would have refused to sell Hyten insurance, or

charged her an increased premium, on the basis of

either her driving record or her failure to obtain her

license on August 24, 2007.

In the circuit court, Titan

submitted an affidavit signed by Beverly Barrows, the

manager of Titan’s underwriting department. Barrows

attested that Titan would not have issued coverage to

an unlicensed driver. However, the affidavit noticeably

omits any averment that Titan would have refused to

insure Hyten on September 20, 2007, or would have

differently rated her risk. Because Titan cannot sub-

stantiate that it endured any harm occasioned by the

August 2007 innocent misrepresentation, it is not en-

titled to equitable relief.

The Second R estatement of Contracts supplies the

legal principle that should dictate the outcome of this

case:

§ 165. Cure by Change of Circumstances

If a contract is voidable because of a misrepresentation

and, before notice of an intention to avoid the contract, the

facts come into accord with the assertion, the contract is no

Because Titan deliberately opted against performing any investiga-

tion of Hyten’s insurability, it cannot now claim that it would have

cancelled the policy within 55 days had it known of Hyten’s driving

record.

2011] T

ITAN

YTEN

465

longer voidable unless the recipient has been harmed by

relying on the misrepresentation. [1 Restatement Con-

tracts, 2d, § 165, pp 448-449.]

The comment to this section elaborates as follows:

a. Rationale. In general, the recipient of a misrepresen-

tation need not show that he has actually been harmed by

relying on it in order to avoid the contract. If, however, the

effect of misrepresentation has been cured because the

facts have been brought or have otherwise come into accord

with the assertion before he has notified the maker of his

intention to avoid the contract, there is ordinarily little

likelihood of harm. The rule stated in this Section pre-

cludes avoidance in such a case, unless the recipient shows

that he has actually been harmed. It applies to fraudulent

as well as to non-fraudulent misrepresentations. [Id. at

449.]

[

]

Once Hyten received her license, the prior innocent

misrepresentation lost its effectiveness as a potential

ground for contract cancellation. Because no evidence

of record refutes that Titan would have insured Hyten

on September 20, 2007, and Hyten cured her unlicensed

status approximately five months before the accident,

we hold that Titan has failed to demonstrate an equi-

table basis for rescission or reformation of the contract.

V. STANDING

Finally, Titan urges that the circuit court erred by

finding that Farm Bureau had standing to challenge

Titan’s attempt to reform the insurance contract. We

consider de novo the legal question whether a party has

“Although there is little authority in support, it is undoubtedly true

that where the facts subsequently become in accord with an innocent

misrepresentation prior to rescission, the right to rescind is lost.” 27

Williston, Contracts (4th ed), § 69:49, p 116. We have not located any

published authority opposed to the proposition, either.

466 291 M

ICH

445 [Feb

standing. Manuel v Gill, 481 Mich 637, 642; 753 NW2d

48 (2008). To have standing, a party must possess

“some real interest in the cause of action” or “the

subject matter of the controversy.” MOSES, Inc v

Southeast Mich Council of Gov’ts, 270 Mich App 401,

414; 716 NW2d 278 (2006) (quotation marks and cita-

tions omitted). A party need not share privity of con-

tract to have standing in a declaratory judgment action

concerning a question of coverage under an insurance

policy as long as the declaratory judgment might affect

the party’s rights. Allstate Ins Co v Hayes, 442 Mich 56,

63; 499 NW2d 743 (1993).

Farm Bureau was not in privity of contract with

either Titan or Hyten, but if the circuit court had

reformed Titan’s insurance contract with Hyten, then

Farm Bureau as the insurance company for the inno-

cent third parties (the Holmeses) might have had to

cover the costs of their injuries. Consequently, Farm

Bureau had a real interest in the outcome of the

litigation, and the circuit court correctly determined

that Farm Bureau had standing.

Affirmed.

K. F. K

ELLY

, J., concurred with G

LEICHER

,P.J.

AHRA

, J., did not participate.

2011] T

ITAN

YTEN

467

PEOPLE v BARBARICH

Docket No. 290772. Submitted September 13, 2010, at Detroit. Decided

February 1, 2011, at 9:15 a.m.

Shaun D. Barbarich was charged with operating a motor vehicle

while intoxicated, MCL 257.625, after the driver behind him in

traffic made eye contact with a police officer in the next lane,

pointed to defendant’s car, and mouthed the words “almost hit

me” through her closed window. On this basis, the officer stopped

defendant’s vehicle and discovered that defendant was intoxicated.

Defendant moved to suppress the evidence of his intoxication and

dismiss the charge on the ground that the informant’s tip had not

provided the officer with the reasonable suspicion required to stop

defendant’s vehicle under the protections against unreasonable

searches and seizures guaranteed by the Fourth Amendment of

the United States Constitution and Const 1963, art 1, § 11. The

28th District Court, James A. Kandrevas, J., denied the motion

and, on defendant’s appeal, the Wayne Circuit Court, James A.

Callahan, J., reversed and dismissed the charge. The Court of

Appeals denied the prosecution’s application for leave to appeal.

The prosecution applied for leave to appeal in the Supreme Court,

which, in lieu of granting leave to appeal, remanded the case to the

Court of Appeals for consideration as on leave granted. 485 Mich

1059 (2010).

The Court of Appeals held:

Under the totality of the circumstances, the unnamed infor-

mant’s contemporaneous face-to-face tip to a police officer about

defendant’s erratic driving provided the reasonable suspicion

necessary to justify the investigative stop of defendant’s moving

vehicle. Because the public’s interest in safety of the roadways is

high compared to the minimally invasive nature of the investiga-

tion, fewer foundational facts are necessary to justify an investi-

gative stop of a moving vehicle than a stop and frisk for a concealed

weapon or contraband. While the quantity of information in a

citizen’s tip about erratic driving must be sufficient to identify the

vehicle and to support an inference of a traffic violation, a tip is

sufficiently reliable if law enforcement corroborates its innocent

details. The circuit court erred by dismissing the charge.

468 291 M

ICH

468 [Feb

Reversed and remanded for further proceedings.

LEICHER

, J., dissenting, would have held that a warrantless

stop based on an uncorroborated tip from an unidentifiable source

that lacks detail and suggests only an ordinary traffic infraction

violates the Fourth Amendment.

EARCHES AND

EIZURES —

UTOMOBILES —

NVESTIGATIVE

TOPS —

EASONABLE

USPICION —

NFORMANTS

An unnamed informant’s contemporaneous face-to-face tip to the

police about erratic driving may be sufficient to justify an inves-

tigative stop of the driver’s moving vehicle under the totality of the

circumstances; the tip must identify the vehicle, support an

inference of a traffic violation, and be corroborated in its innocent

details by the police (US Const, Am IV; Const 1963, art 1, § 11).

Bill Schuette, Attorney General, B. Eric Restuccia,

Solicitor General, Kym L. Worthy, Prosecuting Attor-

ney, and Lori Baughman Palmer, Assistant Prosecuting

Attorney, for the people.

Boulahanis & Associates, P.C. (by Gregory J. Boula-

hanis), for defendant.

Before: G

LEICHER

,P.J., and Z

AHRA

and K. F. K

ELLY

,JJ.

K. F. K

ELLY

, J. This prosecutor’s appeal requires us to

decide what amount of information supplied by an

unnamed citizen, who provides a face-to-face contem-

poraneous tip about potentially dangerous or erratic

driving, is sufficient to justify an investigative stop of a

moving vehicle. On defendant’s motion to suppress

evidence, the circuit court dismissed defendant’s charge

of operating a motor vehicle while intoxicated, MCL

257.625, on the ground that the police officer lacked a

reasonable articulable suspicion that defendant was

involved in criminal activity. We disagree and reverse.

I. BASIC FACTS

On March 17, 2008, defendant was issued a citation

2011] P

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ARBARICH

469

PINION OF THE

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for driving while intoxicated. Defendant moved to sup-

press the evidence of his intoxication and dismiss the

charge on the basis that the stop of his vehicle was

unreasonable and unconstitutional.

The district court held an evidentiary hearing on

July 11, 2008. The only witness to testify was Michigan

State Trooper Christopher Bommarito, who had

stopped defendant’s vehicle and issued defendant the

citation. Bommarito testified that on the evening of

March 17, 2008, which was Saint Patrick’s Day, he was

on regular patrol, driving a fully marked police car. As

part of his assignment that evening, he was conducting

a property inspection at a bar called Malarkey’s. Bom-

marito indicated that the bar’s parking lot was full of

patrons, a “big party tent” was set up in the parking lot,

and he was there to look for problems, such as people

urinating outside. After his inspection, Bommarito left

the Malarkey’s parking lot and headed south on Dix

Road. Immediately after leaving the parking lot, a red

pickup truck passed Bommarito’s vehicle, heading

northbound on Dix Road. Another vehicle, defendant’s,

was traveling in front of the red pickup. As Bommarito

passed the red pickup, the driver of that vehicle made

eye contact with Bommarito, pointed directly to defen-

dant’s vehicle in front of her, and mouthed the words

“almost hit me.” Bommarito immediately made a

U-turn, turned on his emergency lights and siren, and

followed defendant’s vehicle into the Malarkey’s park-

ing lot. Bommarito approached defendant’s vehicle and

discovered that defendant was intoxicated. During the

evidentiary hearing, Bommarito admitted that he had

made no attempt to speak to the woman in the red

pickup before stopping defendant and that he had not

personally observed defendant driving in a manner that

would have justified a stop. In other words, Bommarito

stopped defendant’s vehicle solely on the basis of the

470 291 M

ICH

468 [Feb

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woman’s action of pointing to defendant’s vehicle and

mouthing the words “almost hit me.”

The district court denied without explanation defen-

dant’s motion to suppress. Before the matter could

proceed to trial, defendant appealed the district court’s

decision in the circuit court, arguing that Bommarito

lacked a reasonable suspicion to stop his vehicle. The

circuit court reversed on the basis that Bommarito had

no reasonable, articulable suspicion that a crime was

afoot, but merely had a hunch, and therefore the stop

violated defendant’s Fourth Amendment rights. It dis-

missed the charge against defendant.

Plaintiff then filed for leave to appeal in this Court.

Initially, this Court denied leave to appeal, People v

Barbarich, unpublished order of the Court of Appeals,

entered June 3, 2009 (Docket No. 290772), and the

matter was appealed in our Supreme Court. In lieu of

granting leave to appeal, the Court remanded the case

to this Court “for consideration as on leave granted.”

People v Barbarich, 485 Mich 1059 (2010). We now

consider whether the circuit court erred by granting

defendant’s motion to suppress.

II. STANDARD OF REVIEW

We review de novo the circuit court’s ultimate ruling

on a motion to suppress evidence. People v Davis, 250

Mich App 357, 362; 649 NW2d 94 (2002). However, we

review its factual findings for clear error. Id. “A finding

is clearly erroneous when, although there is evidence to

support it, the reviewing court is left with a definite and

firm conviction that a mistake has been made.” People v

Mullen, 282 Mich App 14, 22; 762 NW2d 170 (2008)

(citation and quotation marks omitted). “We overstep

our review function if we substitute our judgment for

that of the trial court and make independent findings.”

2011] P

EOPLE V

ARBARICH

471

PINION OF THE

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People v Bolduc, 263 Mich App 430, 436; 688 NW2d 316

(2004) (citation and quotation marks omitted).

III. GENERALLY APPLICABLE LAW

The Fourth Amendment of the United States Consti-

tution and article 1, § 11 of the Michigan Constitution

protect against unreasonable searches and seizures.

Generally, searches or seizures conducted without a

warrant are presumptively unreasonable and, there-

fore, unconstitutional. People v Champion, 452 Mich 92,

98; 549 NW2d 849 (1996). This does not mean that all

searches and seizures conducted without a warrant are

forbidden; only those that are unreasonable. The

United States Supreme Court has carved out numerous

exceptions to the general rule that warrantless searches

are unreasonable using a test that “balances the gov-

ernmental interest that justifies the intrusion against

an individual’s right to be free of arbitrary police

interference.” People v Faucett, 442 Mich 153, 158; 499

NW2d 764 (1993). Thus, the higher the governmental

interest, the more likely a warrantless search or seizure

is to be reasonable, especially if the implicated indi-

vidual interest is low.

As subjective as this test may be, several categories of

permissible warrantless searches and seizures are well

established in Fourth Amendment jurisprudence, in-

cluding “exigent circumstance, searches incident to a

lawful arrest, stop and frisk, consent, and plain view.”

The Michigan Constitution is construed to provide the same protec-

tion as that provided by the Fourth Amendment absent a compelling

reason to do otherwise. People v Levine, 461 Mich 172, 178; 600 NW2d

622 (1999). And “[w]ith regard to the issue whether an anonymous tip

supports a reasonable suspicion to stop a suspect, Michigan case law

tracks federal precedent.” People v Faucett, 442 Mich 153, 163; 499 NW2d

764 (1993).

472 291 M

ICH

468 [Feb

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People v Brzezinski, 243 Mich App 431, 433; 622 NW2d

528 (2000), citing In re Forfeiture of $176,598, 443 Mich

261, 265; 505 NW2d 201 (1993), and People v Jordan,

187 Mich App 582, 586; 468 NW2d 294 (1991). Each of

these exceptions, however, still requires reasonableness

and probable cause. Brzezinski, 243 Mich App at 433

While each of these categories of searches and seizures

has been deemed reasonable after a balancing of the

relevant interests, the ultimate determination whether

a particular search is reasonable is fact-intensive and

must be measured by examining the total circum-

stances of each case. See Mullen, 282 Mich App at 21.

Generally, if evidence is seized in violation of the

constitutional prohibition against unreasonable

searches and seizures, it must be excluded from trial.

People v Chowdhury, 285 Mich App 509, 516; 775 NW2d

845 (2009).

The only exception applicable in the present case is

the investigative stop, also known as a Terry stop. Terry

v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968).

Under this doctrine, if a police officer has a reasonable,

articulable suspicion to believe a person has committed

or is committing a crime given the totality of the

circumstances, the officer may briefly stop that person

for further investigation. People v Christie (On Re-

mand), 206 Mich App 304, 308; 520 NW2d 647 (1994),

citing Terry. Moreover, under Terry, a police officer may

approach and temporarily detain a person for the pur-

pose of investigating possible criminal behavior even if

probable cause does not exist to arrest the person.

Terry, 392 US at 22; People v Jenkins, 472 Mich 26, 32;

691 NW2d 759 (2005). The scope of any search or

seizure must be limited to that which is necessary to

quickly confirm or dispel the officer’s suspicion. People

v Yeoman, 218 Mich App 406, 411; 554 NW2d 577

(1996).

2011] P

EOPLE V

ARBARICH

473

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When a court is called upon to determine whether a

defendant’s Fourth Amendment rights have been vio-

lated in the context of a Terry stop, it should view the

totality of the circumstances in light of commonsense

judgments and inferences about human behavior,

People v Horton, 283 Mich App 105, 109; 767 NW2d 672

(2009), and should be careful not to apply overly tech-

nical reviews of a police officer’s assessment of whether

criminal activity is afoot, Faucett, 442 Mich at 168.

Further, when the circumstances involve an infor-

mant’s tip, courts must examine whether the tipster’s

information contained sufficient indicia of reliability to

provide law enforcement with a reasonable suspicion

that would justify the stop. Faucett, 442 Mich at 168. To

assess the reliability of a tip, the Michigan Supreme

Court has mandated that courts consider, given the

totality of the circumstances, “(1) the reliability of the

particular informant, (2) the nature of the particular

information given to the police, and (3) the reasonabil-

ity of the suspicion in light of the above factors.” People

v Tooks, 403 Mich 568, 577; 271 NW2d 503 (1978).

A. FEDERAL JURISPRUDENCE: UNITED STATES v WHEAT

No precedentially binding Michigan case has ad-

dressed the exact factual situation before this Court,

i.e., an investigative stop of a moving automobile based

solely on a citizen informant’s face-to-face tip about

driving that potentially poses a danger to persons or

property. However, the United States Court of Appeals

for the Eight Circuit has considered a factual situation

similar to the one at issue. In United States v Wheat,

278 F3d 722, 724 (CA 8, 2001), a citizen driving on the

highway called 911 and reported that a tan Nissan with

a license plate beginning with W-O-C was being driven

erratically in the northbound lane of the highway.

474 291 M

ICH

468 [Feb

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Officers stopped the vehicle shortly thereafter, without

having first observed any erratic driving. Id. at 724-725.

After extensively reviewing caselaw on the matter,

the court determined that the amount of information

necessary to justify an investigative stop based on an

anonymous tipster’s report of erratic driving is less

than that required for other types of criminal activity

that pose less immediate danger. Id. at 729-730,

733-734. The court indicated that a tip can provide

reasonable suspicion for a stop if “the anonymous

tipster...provide[s] a sufficient quantity of infor-

mation” and that the quality, or reliability, of the

information conveyed need only be corroborated in its

innocent details. Id. at 731, 735. With regard to the

former, the quantity of information must include

sufficient detail to ensure that the car identified by

the police is the same as the one identified by the

informant, and may include such information as “the

make and model of the vehicle, its license plate

numbers, its location and bearing, and similar inno-

cent details....”Id. at 731. The information must

also “support an inference that the tipster has wit-

nessed an actual traffic violation that compels an

immediate stop.” Id. at 732. The court reasoned that

less is required with regard to predictive elements of

reliability because of the imminent danger that er-

ratic, and possibly drunk, driving poses and because

of the tipster’s obvious basis of knowledge, i.e.,

firsthand contemporaneous observations. Id. at 734-

737.

Applying this test to the circumstances before it, the

court ruled that reasonable articulable suspicion justi-

fied the officer’s investigative stop:

An anonymous caller provided an extensive description

of a vehicle that, based on his contemporaneous eyewitness

2011] P

EOPLE V

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475

PINION OF THE

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observations, he believed was being operated dangerously,

and cited specific examples of moving violations. When

Officer Samuelson caught up with the vehicle minutes later

while it was stopped at an intersection, he corroborated all

its innocent details, confirming that it was the one identi-

fied by the tipster. Within seconds after the vehicle re-

sumed motion, Officer Samuelson effected an immediate

investigatory stop, rather than allow it to proceed and

potentially endanger other vehicles. Under the totality of

the circumstances, he had reasonable suspicion to do so,

and the stop was valid under the Fourth and Fourteenth

Amendments. [Id. at 737.]

B. MICHIGAN LAW: INVESTIGATIVE STOPS OF MOVING VEHICLES

BASED ON CITIZENS’ TIPS ABOUT ERRATIC DRIVING

While no Michigan case has applied the less rigorous

test adopted in Wheat, this Court addressed a similar

factual situation involving a tip about an automobile

accident in People v Estabrooks, 175 Mich App 532; 438

NW2d 327 (1989),

which predated Wheat. The Es-

tabrooks Court applied Tooks, 403 Mich at 577, to

conclude that a citizen informant’s tip gave the officer a

sufficient suspicion that criminal activity had occurred

to justify her investigative stop of the defendant. Es-

tabrooks, 175 Mich App at 536-537. In Estabrooks, the

officer was investigating the scene of an accident when

a citizen approached the officer and indicated that

defendant’s vehicle, a Lincoln Continental, had rear-

ended his motorcycle multiple times. Id. at 534. The

citizen pointed to the defendant’s vehicle, which was

stopped in nearby traffic. Id. The Court held that it was

reasonable for the officer to suspect on the basis of the

informant’s tip that an accident might have occurred.

Id. at 537. The Court stated:

Published cases issued before November 1, 1990, are not preceden-

tially binding on this Court, although they may be persuasive authority.

MCR 7.215(J)(1).

476 291 M

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468 [Feb

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[T]he fact that the motorcyclist was actually present

and accusing defendant immediately after the rear-endings

indicated reliability on the part of the informant. Second,

the fact that the informant actually pointed out defen-

dant’s car to Officer Summers provided her with precise

and easily verifiable information, which also indicated that

the information was reliable. [Id. at 536-537.]

The Court rejected the defendant’s argument that,

because the informant had indicated no criminal activ-

ity, the police officer could not have stopped the defen-

dant without some personal observation of the traffic

violation. The Court reasoned that, on the basis of the

information provided, the officer could have reasonably

concluded that a crime had occurred, including leaving

the scene of a motor vehicle accident, felonious assault,

or operating under the influence of liquor (OUIL). Id.at

538. The Court noted, “It is not vital that [the officer]

knew exactly what crime was being committed or would

be charged when [the officer] decided to stop defendant,

only that the circumstances justified the stop.” Id. at

538-539. Consequently, this Court reversed the circuit

court’s order that had dismissed the defendant’s OUIL

conviction. Id. at 539.

Although Estabrooks applied T ooks to conclude that

the tip contained sufficient indicia of reliability to justify

the stop, the rule in Tooks was adopted in a different

context and does not adequately take into account the

relevant interests that must be balanced in determining

whether a vehicle stop based on a citizen’s tip about

erratic driving is reasonable. In T ooks, an in-person

anonymous tipster who was on foot informed the police

that he had seen the defendant show a gun to two other

men. Tooks, 403 Mich at 573-574, 583 (K

AVANAGH

, C .J.,

dissenting). The Court concluded that the information

provided to the police, including a detailed physical de-

scription of the defendant and his companions, justified

2011] P

EOPLE V

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477

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the stop and subsequent search. Id. at 574-575. In reach-

ing this conclusion, the Court recognized the strong inter-

est in police safety, which presented a stronger case

justifying a stop and frisk, especially in combination with

the tip’s detail, than if the tip had involved narcotics or

other contraband. Id. at 581-582. Accordingly, the interest

at stake in Tooks, police safety, is different from the

interest at issue in the present matter.

The exigency here, and the one that existed in

Estabrooks, is heightened in comparison to a tip inform-

ing a police officer of a concealed weapon or other

clandestine contraband. In the latter instance, the

police have the opportunity to observe the suspect from

afar to possibly confirm or dispel any suspicions or to

corroborate the tip and may have the opportunity to

initiate a consensual encounter. In other words, the

threat of imminent danger is not necessarily as high as

in the present case, in which an erratic driver threat-

ened the lives of fellow drivers. See Wheat, 278 F3d at

736-737. In contradistinction,

where an anonymous tip alleges erratic and possibly drunk

driving, a responding officer faces a stark choice....[H]e

can intercept the vehicle immediately and ascertain

whether its driver is operating under the influence of drugs

or alcohol. Or he can follow and observe, with three

possible outcomes: the suspect drives without incident for

several miles; the suspect drifts harmlessly onto the shoul-

der, providing corroboration of the tip and probable cause

for an arrest; or the suspect veers into oncoming traffic, or

fails to stop at a light, or otherwise causes a sudden and

potentially devastating accident. [Id. (citation omitted).]

See also Christie, 206 Mich App at 309 (recognizing that

erratic driving often indicates an intoxicated driver).

The Estabrooks Court did not explicitly recognize the

heightened interest at stake. Indeed, there was no need

for it to do so because the exact question that is now

478 291 M

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468 [Feb

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before this Court was not at issue in Estabrooks. R ather,

as noted, the defendant in Estabrooks simply argued

that the informant had to provide information pertain-

ing to a specific crime, not merely a traffic violation.

Thus, while we do not disagree with the outcome in

Estabrooks or its analysis, we must make clear that less

information is required from citizen informants report-

ing contemporaneous incidents of erratic or potentially

dangerous driving to justify an investigative stop than a

strict application of Tooks would suggest. The Es-

tabrooks Court appears to have implicitly recognized

this principle, but did not articulate it, in holding that

an investigative stop may be justified on the totality of

the circumstances even if the informant’s tip did not

designate a crime.

Certainly, the courts of this state have already recog-

nized, albeit not in cases involving citizen tips, that

fewer foundational facts are necessary to justify a stop

of a moving vehicle than would be required to search a

home or to either stop or search that same vehicle.

People v Whalen, 390 Mich 672, 682; 213 NW2d 116

(1973); Faucett, 442 Mich at 164 n 11 (noting that

Whalen “set[s] forth the reasonableness standard for all

automobile searches, including those based on infor-

mants’ tips, using the totality of the circumstances

test”); Christie, 206 Mich App at 308-309. As noted,

such investigative stops of automobiles have been

deemed reasonable on the basis of less information

because the public’s interest in safety of the roadways is

high compared to the minimally invasive nature of the

investigation. Accordingly, we hold, consistently with

Whalen and Wheat, that fewer foundational facts are

necessary to justify an investigative stop of a moving

vehicle based on a citizen’s tip about erratic driving.

Specifically, like in Wheat, while the quantity of the tip’s

information must be sufficient to identify the vehicle

2011] P

EOPLE V

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479

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and to support an inference of a traffic violation, less is

required with regard to a tip’s reliability; as to the

latter, it will suffice if law enforcement corroborates the

tip’s innocent details.

IV. ANALYSIS

In this case, on Saint Patrick’s Day in 2008, a citizen

was driving north on Dix Road, and she passed Trooper

Bommarito, who had just left the parking lot of Malar-

key’s and was driving south on Dix Road. As she passed,

she made eye contact with Bommarito, pointed to

defendant’s vehicle directly in front of her, and

mouthed the words “almost hit me.” Bommarito imme-

diately made a U-turn, turned on his siren and emer-

gency lights, and followed defendant’s vehicle into the

parking lot of Malarkey’s. He did not observe defendant

drive in an erratic manner.

The woman’s action of pointing to the vehicle in

front of her was sufficient to accurately identify defen-

dant’s vehicle and provided precise and verifiable infor-

mation to the officer, which also strongly suggests that

the information was reliable. The basis of the infor-

mant’s knowledge was obvious—it can be inferred from

her statement, “Almost hit me,” and her action of

pointing to the vehicle traveling immediately in front of

her that defendant’s vehicle had recently almost come

into contact with the woman’s vehicle; her tip was

clearly based on firsthand and contemporaneous obser-

vations, which further confirms the veracity of the

information. Moreover, had Bommarito wished to ob-

tain the informant’s personal information he could

have, by looking up her license plate number. Accord-

ingly, the fact that the tipster was actually face to face

with Bommarito when she relayed the tip, and thus

likely knew that she could be subject to police question-

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ing, further indicates that she was credible and that the

information she provided was reliable. In addition, her

statement, “Almost hit me,” was sufficient to support

an inference that an actual traffic violation had oc-

curred. While it is true that the statement could be

consistent with legal behavior, it was also enough to

create an inference that defendant had been driving

erratically in contravention of MCL 257.626 (reckless

driving, a misdemeanor), MCL 257.626b (careless or

negligent operation of a motor vehicle, a civil infrac-

tion), or MCL 257.625 (operating a motor vehicle while

intoxicated). See also Christie, 206 Mich App at 309

(acknowledging that “erratic driving can give rise to a

reasonable suspicion of unlawful intoxication so as to

justify an investigatory stop by a police officer”). “It is

not vital that [the officer] knew exactly what crime was

being committed or would be charged when [the officer]

decided to stop defendant, only that the circumstances

justified the stop.” Estabrooks, 175 Mich App at 538-

539. The circumstances here, together with the citizen’s

statement, certainly justified the stop. Bommarito was

on regular patrol and had just finished a property

inspection at the bar and surrounding area. The pur-

pose of the inspection was to look for potential problems

such as people urinating in public. As previously noted,

it was St. Patrick’s Day, the parking lot was full of

patrons, and a large party tent had been set up.

Certainly more facts could have strengthened the

officer’s suspicion, but in cases involving tips of erratic

driving of a motor vehicle, fewer facts are necessary to

justify an investigative stop. Wheat, F3d at 730-737;

Whalen, 390 Mich at 682. “[T]he Fourth Amendment

does not require a policeman to simply shrug his

shoulders and allow a crime to occur or a criminal

escape.” Whalen, 390 Mich at 682. Had the officer

waited to personally observe defendant engage in dan-

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gerous and erratic driving, his suspicion would have

surpassed a reasonable, articulable suspicion and be-

come probable cause to seize defendant and issue an

appropriate citation. “Thus, police would lose the inter-

mediate step of investigatory stops based on reasonable

suspicion.” Wheat, 278 F3d at 733. In this case, suffi-

cient indicia of reliability supported the citizen’s tip,

and Bommarito was justified in conducting the investi-

gative stop. The tip provided sufficient information to

accurately identify the vehicle and create an inference

that a crime or civil infraction had occurred, and the tip

was also sufficiently reliable, being based on the wom-

an’s contemporaneous observations. Under the totality

of the circumstances, Bommarito had a reasonable,

articulable suspicion that justified an investigative stop

of defendant’s vehicle. The circuit court erred by con-

cluding otherwise.

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

AHRA

, J., concurred.

LEICHER

,P.J. (dissenting). Today the majority em-

powers private citizens to select certain motorists for

warrantless searches and seizures conducted by police

officers lacking probable cause or any reasonable sus-

picion of criminal conduct. Because the Fourth Amend-

ment prohibits seizures premised on accusations ut-

terly devoid of objective or specific facts, I respectfully

dissent.

Michigan State Police Officer Christopher Bom-

marito testified that he initiated a traffic stop of defen-

dant Shaun Barbarich’s truck immediately after a

woman driving a red pickup truck pointed to Barbar-

ich’s vehicle and mouthed the words “almost hit me.”

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Bommarito recalled that he probably read the woman’s

lips because the windows of her vehicle and his were

likely closed. Bommarito admitted that he possessed no

other facts or information about the woman or Barbar-

ich when he decided to make the stop:

Q. And so at the time that she mouthed that, did—when

did you turn on your overheads?

A. I immediately turned my patrol car around and

turned my emergency lights and sirens on to initiate a stop

on that vehicle.

Q. Okay. So, at that point-in-time, when you saw what

you thought was her mouthing that he almost hit me, you

immediately decided at that point-in-time to stop Mr.

Barbarich?

A. Correct.

Bommarito acknowledged that he made no attempt to

look for the driver of the red pickup truck and could

provide no information about her.

The majority concludes, “The woman’s action of

pointing to the vehicle in front of her was sufficient to

accurately identify defendant’s vehicle and provided

precise and verifiable information to the officer, which

also strongly suggests that the information was reli-

able.” Ante at 480. According to the majority, “[T]he

fact that the tipster was actually face to face with

Bommarito when she relayed the tip, and thus likely

knew that she could be subject to police questioning,

further indicates that she was credible and that the

information she provided was reliable.” Ante at

480-481. In reaching these conclusions, the majority

substantially relies on a decision of the United States

Court of Appeals for the Eighth Circuit, United States v

Wheat, 278 F3d 722 (CA 8, 2001). I respectfully disagree

that the information available to Bommarito qualified

as “precise and verifiable” and that it supplied a rea-

2011] P

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sonable basis for stopping defendant and his vehicle.

Furthermore, I believe that Wheat may be readily

distinguished from the facts presented here.

The protections afforded by the Fourth Amendment

“extend to brief investigatory stops of persons or ve-

hicles that fall short of traditional arrest.” United

States v Arvizu, 534 US 266, 273; 122 S Ct 744; 151 L Ed

2d 740 (2002). In Terry v Ohio, 392 US 1, 21; 88 S Ct

1868; 20 L Ed 2d 889 (1968), the United States Supreme

Court explained that “specific and articulable facts”

must exist to justify an intrusion on the constitutionally

protected interests of a private citizen. “An investiga-

tory stop must be justified by some objective manifes-

tation that the person stopped is, or is about to be,

engaged in criminal activity.” United States v Cortez,

449 US 411, 417; 101 S Ct 690; 66 L Ed 2d 621 (1981).

These Supreme Court cases, and innumerable others,

instruct that the Fourth Amendment tempers a police

officer’s power to detain a motorist by measuring the

appropriateness of a warrantless seizure against an

objective standard that demands particularized evi-

dence of lawbreaking.

To satisfy the Fourth Amendment’s objective stan-

dard, a police officer must be able to articulate more

than “an ‘inchoate and unparticularized suspicion or

“hunch” of criminal activity.’ ” Illinois v Wardlow, 528

US 119, 123-124; 120 S Ct 673; 145 L Ed 2d 570 (2000),

quoting Terry, 392 US at 27. Indisputably, an infor-

mant’s tip may supply reasonable suspicion that a

crime has been or is about to be committed. In Adams

v Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612

(1972), the United States Supreme Court “extended the

Terry stop and frisk rationale to situations in which the

stop and frisk was prompted by an unverified tip from

an informant.” People v Tooks, 403 Mich 568, 576; 271

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NW2d 503 (1978). The informant in Adams “was

known to [the officer] personally and had provided him

with information in the past.” Adams, 407 US at 146.

The Supreme Court also noted that the information

given by the informant “was immediately verifiable at

the scene” when the police officer saw a weapon in the

defendant’s waistband. Id.

In Tooks, 403 Mich at 577, the Michigan Supreme

Court considered whether information relayed by a

citizen-informant, “as opposed to a known informant,”

could supply reasonable suspicion for a search. The

Tooks informant, “an unidentified citizen,” approached

police officers with a detailed description of a man who

had allegedly shown a gun to two other men. Id.at

573-574. A short distance from the location of their

meeting with the informant, the officers “encountered

three males matching the descriptions given by the

citizen,” conducted a pat-down search of the defendant,

and found a concealed pistol. Id. at 574. Although the

Michigan Supreme Court in Tooks repudiated the idea

that information supplied by a citizen-informant is

inherently unreliable, the Court stopped well short of

clothing a citizen-informant’s tip with a presumption of

credibility. See id. at 577-582. Rather, the Court held

that “information provided to law enforcement officers

by concerned citizens who have personally observed

suspicious activities is entitled to a finding of reliability

when the information is sufficiently detailed and is

corroborated within a reasonable period of time by the

officers’ own observations.” Id. at 577 (emphasis added).

Applying the standards from Terry and Adams, the

Supreme Court set forth “three related factors” that a

court must consider “[i]n determining whether the

information from the citizen-informant carried enough

indicia of reliability to provide the officers with a

reasonable suspicion ....”Id. The three factors are “(1)

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the reliability of the particular informant, (2) the na-

ture of the particular information given to the police,

and (3) the reasonability of the suspicion in light of the

above factors.” Id.

In finding reliable the information supplied by the

informant in Tooks, our Supreme Court drew heavily on

the second factor, which concerns the specificity of the

informant’s information:

This finding is enhanced by and is especially true in

light of the second related factor; the detailed information

provided regarding the suspects which allowed indepen-

dent verification by the police of any persons investigated

pursuant to that information. The importance of the pre-

ciseness of description allowing independent verification is

great, as demonstrated by Draper v United States, 358 US

307; 79 S Ct 329; 3 L Ed 2d 327 (1959), where an

informant’s information was found to give police sufficient

probable cause to arrest....This kind of detail not only

enhances the reliability of the information, but prevents

the danger of widespread intrusion by indiscriminate stop-

ping and frisking of members of the public. [Tooks, 403

Mich at 578-579.]

The Court later emphasized that it was “impressed

with the detail and preciseness of the information given

to the officers.” Id. at 579-580. Moreover, the citizen-

informant’s information “was verified by the officers

very shortly after it was given to them and within a few

blocks of the location in which the officers had been

given the information.” Id. at 580.

In Florida v JL, 529 US 266; 120 S Ct 1375; 146 L Ed

2d 254 (2000), the United States Supreme Court again

considered whether police action based on an anony-

mous tip by a citizen-informant withstood Fourth

Amendment scrutiny. The anonymous tipster in that

case reported “that a young black male standing at a

particular bus stop and wearing a plaid shirt was

486 291 M

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carrying a gun.” Id. at 268. Shortly after the police

arrived, they found three black males at the bus stop,

one of whom wore a shirt consistent with the infor-

mant’s description. “Apart from the tip, the officers had

no reason to suspect any of the three of illegal conduct.”

Id. An officer frisked the defendant and found a

weapon. The Supreme Court observed that the anony-

mous call offered “no predictive information and there-

fore left the police without means to test the infor-

mant’s knowledge or credibility.” Id. at 271. The

Supreme Court additionally emphasized that “[a]ll the

police had to go on in this case was the bare report of an

unknown, unaccountable informant who neither ex-

plained how he knew about the gun nor supplied any

basis for believing he had inside information about [the

defendant].” Id. Ultimately, the Supreme Court rejected

the argument that the tip conveyed reasonable suspi-

cion merely because it included “[a]n accurate descrip-

tion of a subject’s readily observable location and ap-

pearance....” Id. at 272. As most relevant here, the

Supreme Court instructed that reasonable suspicion

“requires that a tip be reliable in its assertion of

illegality, not just in its tendency to identify a determi-

nate person.” Id.

In assessing whether a police officer possessed rea-

sonable suspicion to stop a vehicle, courts have to take

into account both the quantity (content) and quality

(reliability) of the available information. Alabama v

White, 496 US 325, 330; 110 S Ct 2412; 110 L Ed 2d 301

(1990). In this case, the sum of the quantity and quality

of Bommarito’s knowledge amounted to a decidedly

small measure. In my calculus, Bommarito lacked any

basis on which to judge the reliability of the passing

motorist’s allegation. When the woman drove off, Bom-

marito was “without means to test the informant’s

knowledge or credibility.” JL, 529 US at 271. Further-

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more, the content of the woman’s accusation, “almost

hit me,” gave Bommarito no objective, verifiable basis

to suspect Barbarich of violating a law. I will address

separately these distinct concepts.

Although the woman in the oncoming pickup truck

came face to face with Bommarito for a second or two,

Bommarito did not know her or where he could locate

her again. Bommarito conceded that he did not have an

opportunity to observe the woman’s license plate be-

cause “my focus was on that vehicle that she pointed

out to me.” Therefore, Bommarito had no information

to help him assess the informant’s veracity or her

motive in making the accusation against Barbarich, and

he entirely lacked any data validating the reliability of

the information she relayed. The majority asserts that

“the fact that the tipster was actually face to face with

Bommarito when she relayed the tip, and thus likely

knew that she could be subject to police questioning,”

enhances her credibility and the reliability of her tip.

Ante at 480-481. But no evidence of record tends to

establish that the woman “likely knew” that Bom-

marito could question her; the majority appears to have

conjured this “fact” from thin air. To the contrary,

Bommarito admitted that he did not know where the

woman traveled after he “went to stop [Barbarich’s]

vehicle.” Bommarito also conceded that he made no

attempt to look for the woman. In my view, the woman’s

departure from the scene entirely undermines the ma-

jority’s characterization of her reliability, credibility,

and general good citizenship. The woman’s absence also

distinguishes this case from People v Estabrooks, 175

Mich App 532, 536-537; 438 NW2d 327 (1989), in which

this Court noted, “[T]he fact that the [informant] was

actually present and accusing defendant immediately

after the rear-endings indicated reliability on the part

of the informant.” By deliberately limiting her interac-

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tion with Bommarito to merely a passing moment, the

informant in this case neither placed her anonymity at

risk nor bolstered her reliability.

Furthermore, the unique situation here, a lip-read

tip delivered by a rapidly passing motorist, shares no

pertinent similarities to those face-to-face tips that are

entitled to a finding of reliability. Usually, “[a] face-to-

face encounter provides police officers the opportunity

to perceive and evaluate personally an informant’s

mannerisms, expressions, and tone of voice (and, thus,

to assess the informant’s veracity more readily than

could be done from a purely anonymous telephone tip).”

United States v Romain, 393 F3d 63, 73 (CA 1, 2004).

“[A] face-to-face encounter often provides a window

into an informant’s represented basis of knowl-

edge....”Id. In this case, Bommarito had no meaning-

ful opportunity to assess the woman’s demeanor or

detect any emotion in her voice. The “window into [the

woman’s] represented basis of knowledge” remained

closed. Id. Given the profound dearth of information

available to Bommarito about the tipster, I score the

quality of her information at close to zero.

Moreover, the woman supplied Bommarito with only

a bare conclusion: “Almost hit me.” This declaration

contained no detail concerning the circumstances of the

alleged near miss or any facts from which Bommarito

could reasonably conclude that Barbarich had likely

violated any law. In countless situations drivers “almost

hit” each other without either being drunk or driving

recklessly. Barbarich may have been momentarily inat-

tentive and failed to keep the proper distance between

his truck and the woman’s. Alternatively, Barbarich

may have pulled out of a parking lot without making a

proper observation or changed lanes without first as-

certaining whether another vehicle occupied the lane he

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entered. Barbarich could have been talking on a cell

phone or adjusting the radio, causing him to negligently

swerve too close to the woman’s truck. An anonymous

tip that one driver has “almost hit” another simply fails

to substantiate that the offending driver was illegally

operating his vehicle.

Although the majority suggests

that Bommarito inferred that Barbarich was driving

illegally, this inference rested on no more than “an

inchoate and unparticularized suspicion or hunch” and

does not amount to reasonable suspicion for stopping a

vehicle. Wardlow, 528 US at 124 (citation and quotation

marks omitted). If the United States Supreme Court’s

admonition in JL, 529 US at 272, that reasonable

suspicion “requires that a tip be reliable in its assertion

of illegality, not just in its tendency to identify a

determinate person” means anything, it mandates that

a police officer possess some articulable basis for sus-

pecting a crime before detaining a citizen. Bommarito

articulated no basis here, aside from the tip.

However, even assuming that Bommarito legiti-

mately translated “almost hit me” into “driving reck-

lessly,” MCL 257.742(3) circumscribed as follows Bom-

marito’s authority to stop a vehicle:

A police officer may issue a citation to a person who is a

driver of a motor vehicle involved in an accident when,

based upon personal investigation, the officer has reason-

able cause to believe that the person is responsible for a

civil infraction in connection with the accident. A police

In this regard, the instant case is additionally distinguishable from

Estabrooks. In that case, the informant advised a police officer that the

defendant had rear-ended his motorcycle several times. Estabrooks, 175

Mich App at 534. This Court pointed out that although an “officer may

not stop a driver for a civil infraction solely on the basis of a witness’

complaint,” id. at 537, citing MCL 257.742(3), the informant’s informa-

tion formed an ample basis for charging the defendant with a misde-

meanor, id. at 538.

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officer may issue a citation to a person who is a driver of a

motor vehicle when, based upon personal investigation by

the police officer of a complaint by someone who witnessed

the person violating this act or a local ordinance substan-

tially corresponding to this act, which violation is a civil

infraction, the officer has reasonable cause to believe that

the person is responsible for a civil infraction and if the

prosecuting attorney or attorney for the political subdivi-

sion approves in writing the issuance of the citation.

[Emphasis added.]

The Michigan Vehicle Code, MCL 257.1 et seq., pro-

scribes reckless driving, which it defines as driving “in

willful or wanton disregard for the safety of persons or

property....” MCL 257.626(2). Absent any further

description of Barbarich’s driving, no evidence tended

to prove that Barbarich had operated his vehicle in a

manner consistent with willful or wanton disregard for

the safety of persons or property. The vehicle code also

proscribes careless or negligent driving, which includes

vehicle operation in a “careless or negligent manner

likely to endanger any person or property, but without

wantonness or recklessness....” MCL 257.626b. But

the statement “almost hit me,” without more informa-

tion, hardly establishes reasonable cause to believe that

Barbarich had driven inattentively or with indifference

to his surroundings and falls far short of supplying the

requisite evidence of a civil infraction.

Even if the woman’s declaration could be construed

as conveying that Barbarich had driven carelessly or

recklessly, Bommarito nevertheless lacked the author-

ity to stop Barbarich’s truck. At most, the tip suggested

that Barbarich had committed a civil infraction. A civil

infraction “is not a crime” under Michigan law, MCL

257.6a, and the probable-cause standard applies to

vehicle stops premised on civil infractions. “As a general

matter, the decision to stop an automobile is reasonable

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where the police have probable cause to believe that a

traffic violation has occurred.” Whren v United States,

517 US 806, 810; 116 S Ct 1769; 135 L Ed 2d 89 (1996).

The United States Supreme Court explained in Whren

that in civil infraction situations, the probable-cause

standard affords the “quantum of individualized suspi-

cion necessary to ensure that police discretion is suffi-

ciently constrained.” Id. at 817-818 (citation and quo-

tation marks omitted); see also United States v

Freeman, 209 F3d 464, 466 (CA 6, 2000). In light of the

vague, conclusory nature of the woman’s tip, Bom-

marito unquestionably did not possess probable cause

to stop Barbarich for a traffic violation.

In my view, the majority ignores the critical differ-

ence between stopping a vehicle on the basis of a tip

suggesting a crime in progress and a tip hinting at the

commission of a civil traffic offense. Relying largely on

Wheat, 278 F3d 722, the majority decries the danger

attendant on waiting “to personally observe defendant

engage in dangerous and erratic driving ....”Ante at

481-482. But here, unlike in Wheat, the evidence avail-

able to the arresting officer simply did not support the

conclusion that the tipster had witnessed the erratic,

dangerous maneuvers of a drunk driver. In Wheat, the

Eighth Circuit described as follows the facts available to

the arresting officer:

On May 3, 1996, a motorist used his cellular phone to

place a 9-1-1 call to the Blairsburg, Iowa Police Depart-

ment. The caller reported that a tan- and cream-colored

Nissan Stanza or “something like that,” whose license

plate began with the letters W-O-C, was being driven

erratically in the northbound lane of Highway 169, eight

miles south of Fort Dodge, Iowa. The caller complained that

the Nissan was passing on the wrong side of the road,

cutting off other cars, and otherwise being driven as if by a

“complete maniac.” The 9-1-1 operator did not ask the

caller to identify himself.

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Police dispatchers relayed the caller’s tip to patrolling

officers. Shortly thereafter, Officer Paul Samuelson ob-

served a tan Nissan Maxima whose license plate began

with the letters W-O-C, stopped in the northbound lane of

Highway 169 at the intersection of Highway 20. The

Nissan made a right turn, and Officer Samuelson stopped it

immediately, without having observed any incidents of

erratic driving. [Id. at 724-725 (emphasis added).]

The details offered by the Wheat tipster gave rise to a

reasonable inference that the driver of the Nissan was

driving while impaired. The Eighth Circuit expressly

recognized the importance of the tip’s specificity: “In all

cases... the more extensive the description of the

alleged offense, the greater the likelihood that the tip

will give rise to reasonable suspicion.” Id.at732n8.

The court emphasized that a tip justifying a stop “must

also contain a sufficient quantity of information to

support an inference that the tipster has witnessed an

actual traffic violation that compels an immediate stop.

A law enforcement officer’s mere hunch does not

amount to reasonable suspicion ...;a fortiori, neither

does a private citizen’s.” Id. at 732. In stark contrast,

the tip at issue here gave no information concerning the

circumstances of the near miss and no objective data on

which to ground a conclusion that Barbarich was

drunk. “[I]f failure to follow a perfect vector down the

highway or keep[] one’s eye on the road were sufficient

reasons to suspect a person of driving while impaired, a

substantial portion of the public would be subject each

day to an invasion of their privacy.” Freeman, 209 F3d

at 466 (citation and quotation marks omitted).

Finally, I respectfully take issue with the majority’s

rationalization of its decision by means of the precept

that “the higher the governmental interest, the more

likely a warrantless search or seizure is to be reason-

able, especially if the implicated individual interest is

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low.” Ante at 472. In Delaware v Prouse, 440 US 648,

654; 99 S Ct 1391; 59 L Ed 2d 660 (1979), the United

States Supreme Court explained that “the permissibil-

ity of a particular law enforcement practice is judged by

balancing its intrusion on the individual’s Fourth

Amendment interests against its promotion of legiti-

mate governmental interests.” Protection of the public

against the danger of drunk driving certainly qualifies

as a legitimate governmental interest worthy of promo-

tion. But

[a] central concern in balancing these competing consider-

ations in a variety of settings has been to assure that an

individual’s reasonable expectation of privacy is not subject

to arbitrary invasions solely at the unfettered discretion of

officers in the field. To this end, the Fourth Amendment

requires that a seizure must be based on specific, objective

facts indicating that society’s legitimate interests require

the seizure of the particular individual, or that the seizure

must be carried out pursuant to a plan embodying explicit,

neutral limitations on the conduct of individual officers.

[Brown v Texas, 443 US 47, 51; 99 S Ct 2637; 61 L Ed 2d

357 (1979) (citation omitted).]

In this case, the tip provided Bommarito with an

accusation suggesting that perhaps Barbarich had

driven carelessly. However, the tipster offered no spe-

cific, objective facts reasonably establishing that Bar-

barich was driving while impaired. “The needs of law

enforcement stand in constant tension with the Consti-

tution’s protections of the individual against certain

exercises of official power. It is precisely the predictabil-

ity of these pressures that counsels a resolute loyalty to

constitutional safeguards.” Almeida-Sanchez v United

States, 413 US 266, 273; 93 S Ct 2535; 37 L Ed 2d 596

(1973).

I would hold that an uncorroborated tip from an

unidentifiable source lacking any pertinent detail and

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suggesting only an ordinary traffic violation cannot

serve as a vehicle for violating the Fourth Amendment,

and thus dissent.

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NELSON v DUBOSE

Docket Nos. 293455 and 294205. Submitted December 8, 2010, at

Detroit. Decided February 1, 2011, at 9:20 a.m.

Alison R. Nelson brought an action in the Oakland Circuit Court

against Freddie Dubose, seeking damages for noneconomic loss

caused when defendant’s car struck the rear of plaintiff’s car while

plaintiff was stopped at a red light. The parties disputed whether

the injuries plaintiff received resulted in a serious impairment of

body function. The jury found that plaintiff had not suffered a

serious impairment of body function, and the court, Steven N.

Andrews, J., entered a judgment of no cause of action in favor of

defendant and denied plaintiff’s motion for judgment notwith-

standing the verdict. Plaintiff appealed and defendant cross-

appealed (Docket No. 293455). Plaintiff also appealed the trial

court’s order regarding costs and fees (Docket No. 294205). The

appeals were consolidated.

The Court of Appeals held:

The jury was properly instructed that a serious impairment of

a body function is an objectively manifested impairment of an

important body function that affects the plaintiff’s general ability

to lead his or her normal life. Because there was a question of fact

whether plaintiff suffered a serious impairment of a body function,

the determination of the jury that plaintiff did not suffer a serious

impairment of a body function was within the range of principled

outcomes. Because reasonable jurors could have differed in their

interpretation of the evidence, the verdict must stand. The trial

court did not err by denying the motion for judgment notwith-

standing the verdict.

Affirmed.

ANSEN

,P.J., concurring, agreed with the majority that reason-

able jurors could honestly have disagreed whether plaintiff’s

injuries rose to the level of a serious impairment of body function

and, therefore, the trial court did not err by denying plaintiff’s

motion for judgment notwithstanding the verdict. Judge J

ANSEN

wrote separately to state her belief that the jury’s determination

that plaintiff’s shoulder condition did not constitute a threshold

injury was against the great weight of the evidence. The over-

496 291 M

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496 [Feb

whelming weight of the evidence tended to establish that plain-

tiff’s shoulder injury affected her general ability to lead her normal

life within the meaning of MCL 500.3135(7) and therefore consti-

tuted a serious impairment of body function sufficient to satisfy

the threshold of MCL 500.3135(1). Plaintiff moved for a new trial

on the ground that the verdict was against the great weight of the

evidence, and the trial court denied the motion. Because plaintiff

did not appeal the trial court’s denial of her motion for a new trial,

the Court of Appeals could not review the propriety of the trial

court’s denial.

1. T

RIAL —

OTIONS AND

RDERS —

UDGMENT

OTWITHSTANDING THE

ERDICT —

PPEAL

A trial court’s decision to grant a motion for judgment notwithstand-

ing the verdict is reviewed de novo on appeal; the jury’s verdict

must stand if reasonable jurors could have reached different

conclusions; judgment notwithstanding the verdict is only appro-

priate if the evidence fails to establish a claim as a matter of law.

2. T

RIAL —

URY

NSTRUCTIONS —

PPEAL

A trial court’s decision regarding what jury instructions should be

given is reviewed on appeal for an abuse of discretion; a result that

falls outside the range of principled outcomes is an abuse of

discretion.

Giarmarco, Mullins & Horton, P.C. (by Leland

Prince), and Richard E. Shaw for plaintiff.

James C. Rabaut & Associates (by Brian D. Wright)

and Gross & Nemeth, P.L.C. (by Mary T. Nemeth), for

defendant.

Before: J

ANSEN

,P.J., and S

AWYER

and O’C

ONNELL

,JJ.

AWYER

, J. Plaintiff appeals a judgment of no cause of

action entered after a jury found that plaintiff had not

suffered a serious impairment of body function. We affirm.

Defendant’s car rear-ended plaintiff’s car while

plaintiff was stopped at a red light. At the time of the

accident, plaintiff believed that she was uninjured. But

plaintiff later complained of shoulder, neck, and back

2011] N

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pain. Both parties provided medical experts to present

to the jury. The jury heard the facts of the case and the

differing medical opinions on plaintiff’s injuries. Plain-

tiff argued that she suffered injuries to her neck and

shoulder that caused her pain and limited her range of

motion. She testified that she had undergone physical

therapy and several surgeries and had been required to

take off a significant amount of time from her work as

a managing attorney for Ford Motor Company. But she

was able to return to work, go on business trips, and

participate in her different organizations and social

events, although not as much as before the accident.

Defendant argued that, even though plaintiff suffered

an injury, there was enough evidence for a reasonable

jury to find that the injury did not result in a serious

impairment of body function.

MCL 500.3135(1) states that, under the no-fault

insurance act, a defendant is only subject to tort liabil-

ity for noneconomic loss caused by a car accident “if the

injured person has suffered death, serious impairment

of body function, or permanent serious disfigurement.”

At the time of the trial, the definition of “serious

impairment of body function” focused on the injury and

whether the injury affected an important body function

to the point of preventing the plaintiff from leading a

normal life. Kreiner v Fischer, 471 Mich 109, 131-132;

683 NW2d 611 (2004), overruled by McCormick v Car-

rier, 487 Mich 180, 214; 795 NW2d 517 (2010). The

Court in Kreiner gave a nonexhaustive list of factors to

use in evaluating whether the plaintiff’s injuries af-

fected the plaintiff’s general ability to lead a normal life.

Kreiner, 471 Mich at 133. After the trial in this case, the

Michigan Supreme Court overruled Kreiner in McCor-

mick. McCormick shifted the focus from the injuries

themselves to how the injuries affected the plaintiff’s

body function. McCormick, 487 Mich at 197. This shift

498 291 M

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496 [Feb

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eased the burden on the plaintiff to show how the

impairment prevented the plaintiff from leading a nor-

mal life. Now, the plaintiff has to show that the plain-

tiff’s ability to lead a normal life has been affected by

comparing the plaintiff’s life before and after the injury.

Id. at 200, 202-203.

Plaintiff argues that the facts clearly showed that

plaintiff suffered a serious impairment of a body func-

tion and, therefore, the trial court erred by denying

plaintiff’s motion for judgment notwithstanding the

verdict (JNOV). Plaintiff argues that the case should be

decided in light of McCormick. This Court reviews de

novo the trial court’s decision to grant JNOV, and, if

reasonable jurors could have reached different conclu-

sions, the jury verdict must stand. Genna v Jackson,

286 Mich App 413, 417; 781 NW2d 124 (2009); Guerrero

v Smith, 280 Mich App 647, 666; 761 NW2d 723 (2008).

JNOV is only appropriate if the evidence fails to estab-

lish a claim as a matter of law. Sniecinski v Blue Cross

& Blue Shield of Mich, 469 Mich 124, 131; 666 NW2d

186 (2003); Prime Fin Servs LLC v Vinton, 279 Mich

App 245, 255-256; 761 NW2d 694 (2008).

While the definition of “serious impairment of body

function” has changed, possibly allowing more serious-

impairment questions to go to a jury, the statute itself

remains the same. The question whether there is a

serious impairment of body function is a question of law

if there is no factual dispute about the injuries, or if any

factual dispute is immaterial to the question. MCL

500.3135(2)(a); McCormick, 487 Mich at 192-193. Here,

the court determined that there was a factual dispute

and sent the question to the jury. The jury heard all the

evidence presented by both parties on all the injuries

and returned with a verdict finding no serious impair-

ment of body function. While the jury did not specify

2011] N

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which injuries it was referring to with the verdict, the

jury instructions included all the injuries contested at

trial. It can be assumed that the jury found that none of

plaintiff’s injuries caused a serious impairment of a

body function.

This Court reviews a trial court’s decision regarding

jury instructions for an abuse of discretion. Guerrero, 280

Mich App at 660. The Michigan Supreme Court describes

an abuse of discretion as a result that falls outside the

range of principled outcomes. People v Babcock, 469 Mich

247, 269; 666 NW2d 231 (2003); Maldonado v Ford Motor

Co, 476 Mich 372, 388; 719 NW2d 809 (2006). Therefore,

this Court generally defers to the trial court’s decision

unless that decision results in an outcome that is outside

the range of principled outcomes. Maldonado, 476 Mich at

388. Here, there were no instructional errors. The jury

was instructed that a serious impairment of a body

function was “an objectively manifested impairment of an

important body function that affects the plaintiff’s gen-

eral ability to lead her normal life.” The jury instructions

did not include wording specific to Kreiner’s more strin-

gent definition. After hearing the instructions and all the

evidence, the jury returned a verdict of no serious impair-

ment of a body function that, because it was a question of

fact, was within the range of principled outcomes. As long

as the jury did not hear anything prejudicial in reference

to Kreiner, the case does not have to be retried in light of

McCormick. When reasonable jurors could differ in their

interpretation of the evidence, the verdict will stand.

Guerrero, 280 Mich App at 666.

In sum, even in light of McCormick, the trial court

did not err by denying JNOV.

In light of our disposition of these issues, we need not

address the parties’ remaining issues, which would be

relevant only if we were to reverse the trial court’s

judgment.

500 291 M

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496 [Feb

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Affirmed. Defendant may tax costs.

O’C

ONNELL

, J., concurred.

ANSEN

,P.J. (concurring). I must agree with the

majority’s conclusion that reasonable jurors could hon-

estly have disagreed concerning whether plaintiff’s in-

juries rose to the level of a “serious impairment of body

function” and that the trial court therefore did not err

by denying plaintiff’s motion for judgment notwith-

standing the verdict. Guerrero v Smith, 280 Mich App

647, 666; 761 NW2d 723 (2008).

I write separately because, although I cannot say

with absolute certainty that plaintiff sustained a seri-

ous impairment of body function as a matter of law,I

believe that the jury’s determination that plaintiff’s

shoulder condition did not constitute a threshold injury

was against the great weight of the evidence. The

overwhelming weight of the evidence at trial estab-

lished that plaintiff’s shoulder injury did affect her

“general ability to lead . . . her normal life” within the

meaning of MCL 500.3135(7). After the automobile

accident but before her shoulder surgery, plaintiff was

unable to work as many hours as she had before the

accident. This is because she was required to arrive late

for work or leave work early to accommodate her

physical-therapy schedule. Thereafter, following her

shoulder surgery, plaintiff’s arm was in a sling for

several weeks.

Plaintiff testified that she could not use

a computer as well as before the accident, that she could

not sit for long periods as she had before the accident,

and that her attention level had been altered because of

prescription pain medication. In addition, plaintiff tes-

Moving one’s arm is an important body function. See Williams v

Medukas, 266 Mich App 505, 506, 509; 702 NW2d 667 (2005).

2011] N

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501

ONCURRING

PINION BY

ANSEN

,P.J.

tified that she was unable to participate to the same

degree as before the accident in her extensive profes-

sional activities, travel, and golf. Following the accident,

plaintiff also quit volunteering for her church and

drastically reduced her involvement in other commu-

nity activities. The uncontroverted evidence established

that plaintiff’s shoulder injury kept her from various

activities that were important to her.

Plaintiff moved for a new trial pursuant to MCR

2.611(A)(1)(e) on the ground that the jury’s verdict was

against the great weight of the evidence. The trial court

denied this motion, allowing the jury’s verdict to stand.

For the foregoing reasons, I believe that the trial court

abused its discretion by denying plaintiff’s motion for a

new trial. Guerrero, 280 Mich App at 666. In my

opinion, the overwhelming weight of the evidence in

this case, id., tended to establish that plaintiff’s shoul-

der injury affected her “general ability to lead ...her

normal life” within the meaning of MCL 500.3135(7)

and therefore constituted a “serious impairment of

body function” sufficient to satisfy the threshold of

MCL 500.3135(1).

The obvious problem with this is that the propriety of

the trial court’s ruling on plaintiff’s motion for a new

trial has not been presented for appellate review and is

not properly before this Court. MCR 7.212(C)(5) and

(7); Ypsilanti Fire Marshal v Kircher (On Reconsidera-

tion), 273 Mich App 496, 553; 730 NW2d 481 (2007); In

re JS, 231 Mich App 92, 98; 585 NW2d 326 (1998),

overruled in part on other grounds by In re Trejo

Minors, 462 Mich 341 (2000). As a consequence, I must

reluctantly concur with the result reached by the ma-

jority in this case.

502 291 M

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ONCURRING

PINION BY

ANSEN

,P.J.

PEOPLE v KING

Docket No. 294682. Submitted November 4, 2010, at Lansing. Decided

February 3, 2011, at 9:00 a.m.

Larry S. King was charged in the 66th District Court with two counts

of manufacturing marijuana after police officers found marijuana

growing in a locked chain-link dog kennel in his backyard and in

an unlocked closet inside his house. Defendant moved in the

Shiawassee Circuit Court to quash the bindover or suppress

evidence obtained in the search, raising various grounds and

asserting the affirmative defense provided by the Michigan Medi-

cal Marihuana Act (MMMA), MCL 333.26421 et seq. The court,

Gerald D. Lostracco, J., concluding that the marijuana had been

kept in an enclosed, locked facility as required by the act and that

defendant was therefore entitled to the protection of the affirma-

tive defense provision, dismissed the charges. The prosecution

appealed.

The Court of Appeals held:

The MMMA did not abrogate state criminal prohibitions of the

manufacturing of marijuana, but merely provided a procedure by

which seriously ill individuals using marijuana for specified medi-

cal purposes can be identified and protected from prosecution

under state law. MCL 333.26428 allows a defendant to assert a

defense to charges of violating the controlled substances laws if the

statute’s conditions are followed. MCL 333.26424(a) provides that

marijuana plants cultivated for medical purposes must be kept in

an enclosed, locked facility, which MCL 333.26423(c) defines as a

closet, room, or other enclosed area equipped with locks or other

security devices. A proper enclosure must be of the same kind or

character as a closet or room, that is, stationary and closed on all

sides, and the facility must have locks or other security devices

limiting access to the licensed grower or qualifying patient. Be-

cause the dog kennel was movable and not closed on all sides, it

was not an enclosed facility, and because the closet in defendant’s

house was not locked and the home itself did not have locks on all

the doors, the closet was also not an enclosed, locked facility. The

trial court abused its discretion by dismissing the charges against

defendant because he had not complied with the strict require-

ments of the MMMA.

2011] P

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503

Reversed and remanded for further proceedings.

ITZGERALD

, J., dissenting, would have held that the phrase

“enclosed, locked facility” in MCL 333.26424(a) should be inter-

preted as understood by the voters who approved the MMMA. He

concluded that both the dog kennel and defendant’s house satis-

fied the definition of an enclosed, locked facility and that the trial

court properly dismissed the charges.

ONTROLLED

UBSTANCES —

EDICAL

ARIJUANA —

RIMINAL

EFENSES

Marijuana plants cultivated for medical purposes must be kept in an

enclosed, locked facility, which is defined under the Michigan

Medical Marihuana Act as a closet, room, or other enclosed area

equipped with locks or other security devices; under the statute, a

proper enclosure must be similar to a closet or room, that is, it

must be stationary and closed on all sides, and the facility must

have locks limiting access to the person authorized under the act

to grow the marijuana or the qualifying patient (MCL

333.26423[c], 333.26424[a]).

Bill Schuette, Attorney General, B. Eric Restuccia,

Solicitor General, Randy O. Colbry, Prosecuting Attor-

ney, and Sara Edwards, Assistant Prosecuting Attor-

ney, for the people.

Matthew R. Abel and Alan L. Kaufman for defendant.

Before: S

AWYER

,P.J., and F

ITZGERALD

and S

AAD

,JJ.

AAD

, J. The prosecution appeals the trial court’s

order that dismissed two counts against defendant for

the manufacture of a controlled substance (marijuana),

MCL 333.7401(2)(d)(iii). For the reasons set forth in

this opinion, we reverse and remand for further pro-

ceedings consistent with this opinion.

I. NATURE OF THE CASE

Defendant, who was arrested for illegally growing

marijuana, possesses a registry identification card un-

der the Michigan Medical Marihuana Act (MMMA),

504 291 M

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MCL 333.26421 et seq., and claims that he is entitled to

the limited protections of the MMMA because he com-

plied with its statutory provisions. The trial court ruled

that the charges against defendant must be dismissed

because he satisfied the elements of the affirmative

defense outlined in § 8 of the MMMA, MCL 333.26428.

Though defendant timely raised a § 8 defense, he did

not fulfill the requirements of § 8. Clearly, by its refer-

ence to § 7 of the MMMA, MCL 333.26427, § 8 required

defendant to comply with other applicable sections of

the MMMA, which includes the requirements set forth

in § 4, MCL 333.26424, concerning the growing of

marijuana. Furthermore, as a registered cardholder,

defendant must comply with the provisions of § 4 con-

cerning growing marijuana, MCL 333.26424(a). Also,

defendant maintains, and the trial court erroneously

ruled, that defendant complied with § 4 by growing the

marijuana in an “enclosed, locked facility.” We disagree

that defendant adhered to the requirements of § 4 of

the MMMA and therefore hold that defendant is not

entitled to the benefit of the protections of the MMMA.

The trial court abused its discretion when it dismissed

the charges against him.

II. FACTS

The Michigan State Police received an anonymous tip

that someone was growing marijuana in the backyard of

a house at 710 Grace Street in Owosso. On May 13,

2009, Detective Sergeant Brian Fox and Deputy Jed

Eisenberger drove to the address and saw a chain-link

dog kennel behind the house. Though the sides of the

kennel were covered with black plastic, some areas of

the kennel were uncovered and, using binoculars,

Deputy Eisenberger could see marijuana plants grow-

ing inside.

2011] P

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Detective Fox and Deputy Eisenberger went to the

door of the house and spoke to defendant, who produced

a medical-marijuana card that was issued on April 20,

2009. The officers asked defendant to show them the

marijuana plants, and defendant unlocked a chain lock

on the kennel. The kennel was six feet tall, but had an

open top and was not anchored to the ground. Defen-

dant disclosed that he had more marijuana plants inside

the house. After they obtained a search warrant, the

officers found marijuana plants growing inside defen-

dant’s unlocked living room closet.

As noted, defendant was charged with two counts of

manufacturing marijuana. After the prosecutor pre-

sented his proofs at the preliminary examination, de-

fendant moved to dismiss the charges under the affir-

mative defense section of the MMMA. The district court

denied defendant’s motion and bound defendant over

for trial. In the circuit court, defendant filed a motion to

quash the bindover or suppress the evidence obtained

during the search. He also sought to dismiss the charges

on various grounds. Among other arguments, defen-

dant maintained that the search warrant was invalid

because it was based on hearsay. Defendant also sought

to assert an affirmative defense under the MMMA. In

response, the prosecutor argued that the search war-

rant was valid and that defendant had failed to comply

with the MMMA because he did not keep the marijuana

in an enclosed, locked facility pursuant to MCL

333.26424(a).

The trial court issued an opinion and order on

September 30, 2009. The court ruled that, because

defendant had a medical-marijuana registry identifica-

tion card and kept “a legal quantity” of marijuana in an

enclosed, locked facility, there was no probable cause to

support the issuance of the search warrant for his

506 291 M

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home. Nonetheless, the court ruled that the evidence

seized during the search should not be suppressed

because the officers had acted in good-faith reliance on

the warrant. However, the court held that the officers

should not have seized the marijuana because defen-

dant complied with the requirements of the MMMA.

For the same reason, the court ruled that defendant was

entitled to assert an affirmative defense under the

MMMA, and it granted defendant’s motion to dismiss

the charges.

III. ANALYSIS

“We review a trial court’s decision to grant or deny a

motion to dismiss charges for an abuse of discretion.”

People v Kevorkian, 248 Mich App 373, 383; 639 NW2d

291 (2001). The prosecution contends that the trial

court incorrectly interpreted the meaning of “enclosed,

locked facility” in MCL 333.26424(a) and MCL

333.26423(c) and that it erred when it ruled that

defendant had complied with the statute. We review de

novo questions of statutory interpretation. People v

Feezel, 486 Mich 184, 205; 783 NW2d 67 (2010) (opinion

by C

AVANAGH

, J.). “When interpreting statutes, our goal

is to give effect to the intent of the Legislature by

reviewing the plain language of the statute.” People v

Perkins, 473 Mich 626, 630; 703 NW2d 448 (2005).

Again, the prosecution charged defendant with vio-

lating Michigan’s controlled substances act by growing

marijuana, but defendant maintains that he is entitled

to the protections from prosecution laid out in the

recently enacted MMMA. By passing statutes that

criminalize the possession, use, and manufacture of

controlled substances, including marijuana, our Legis-

lature and Congress have determined that such sub-

2011] P

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stances are harmful and prohibited.

As Judge

O’C

ONNELL

observed in his concurrence in People v

Redden, 290 Mich App 65, 92; 799 NW2d 184 (2010):

[T]he MMMA does not create any sort of affirmative right

under state law to use or possess marijuana. That drug

remains a schedule 1 controlled substance under the Public

Health Code, MCL 333.7212(1)(c), meaning that “the sub-

stance has high potential for abuse and has no accepted

medical use in treatment in the United States or lacks

accepted safety for use in treatment under medical supervi-

sion,” MCL 333.7211. The MMMA does not repeal any drug

laws contained in the Public Health Code, and all persons

under this state’s jurisdiction remain subject to them. Accord-

ingly, mere possession of marijuana remains a misdemeanor

offense, MCL 333.7403(2)(d), and the manufacture of mari-

juana remains a felony, MCL 333.7401(2)(d).

By its terms, the MMMA does not abrogate state

criminal prohibitions of the manufacturing of mari-

The statute at issue here, MCL 333.7401, provides, in relevant part:

(1) Except as authorized by this article, a person shall not

manufacture, create, deliver, or possess with intent to manufacture,

create, or deliver a controlled substance, a prescription form, or a

counterfeit prescription form. A practitioner licensed by the admin-

istrator under this article shall not dispense, prescribe, or administer

a controlled substance for other than legitimate and professionally

recognized therapeutic or scientific purposes or outside the scope of

practice of the practitioner, licensee, or applicant.

(2) A person who violates this section as to:

***

(d) Marihuana or a mixture containing marihuana is guilty of

a felony punishable as follows:

***

(iii) If the amount is less than 5 kilograms or fewer than 20

plants, by imprisonment for not more than 4 years or a fine of not

more than $20,000.00, or both.

508 291 M

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juana. Rather, the MMMA “merely provides a proce-

dure through which seriously ill individuals using mari-

juana for its palliative effects can be identified and

protected from prosecution under state law.” Redden,

290 Mich App at 93 (O’C

ONNELL

,P.J., concurring).

Although these individuals continue to violate the Pub-

lic Health Code by using marijuana, the MMMA sets

forth narrow circumstances under which they can avoid

criminal liability. In other words, the MMMA consti-

tutes a determination by the people of this state that

there should exist a very limited, highly restricted

exception to the statutory proscription against the

manufacture and use of marijuana in Michigan. As

such, the MMMA grants narrowly tailored protections

to qualified persons as defined in the act if the mari-

juana is grown and used for certain narrowly defined

medical purposes. Further, the growing of marijuana is

tightly constrained by specific provisions that mandate

how, where, for what purpose, and how much marijuana

may be grown.

Section 8 of the MMMA provides a defendant with an

opportunity to assert a defense to the controlled sub-

stance laws if the conditions set forth in § 8 are fol-

lowed. MCL 333.26428. Moreover, § 8 incorporates by

reference other provisions of the MMMA with which a

defendant must comply. Section 8 specifically states

that a patient may assert a medical purpose defense to

any marijuana prosecution, “[e]xcept as provided in

section 7....”MCL333.26428(a). Section 7(a) provides

that “[t]he medical use of marihuana is allowed under

state law to the extent that it is carried out in accordance

with the provisions of this act.” MCL 333.26427(a)

(emphasis added). In Redden, this Court held that the

statute permits an unregistered patient to assert the

affirmative defense under § 8 if he or she meets the

requirements of § 8. Redden, 290 Mich App at 81, 85.

2011] P

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We hold that § 8 permits a “registered qualifying pa-

tient” to raise an affirmative defense under § 8, just as

an unregistered defendant may under Redden.We

further hold that the express reference to § 7 and the

statement in § 7(a) that medical use of marijuana must

be carried out in accordance with the provisions of the

MMMA require defendant to comply with the provi-

sions of § 4 concerning growing marijuana. And in any

case, § 4 applies to defendant because he grew mari-

juana under a claim that he is a qualifying patient in

possession of a registry identification card.

We hold

that because defendant did not comply with § 4, he also

failed to meet the requirements of § 8 and, therefore, he

is not entitled to the affirmative defense in § 8 and is

not entitled to dismissal of the charges.

Section 4(a), MCL 333.26424(a), provides, 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 profes-

sional 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 car-

egiver will be allowed under state law to cultivate mari-

huana for the qualifying patient, 12 marihuana plants kept

in an enclosed, locked facility.

This holding is supported by the ballot proposal itself, Proposal 08-1,

which stated that certain registered patients would be permitted to

cultivate marijuana within certain restrictions. The proposal specifically

provided that the law would “[p]ermit registered individuals to grow

limited amounts of marijuana for qualifying patients in an enclosed,

locked facility.”

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The MMMA defines “enclosed, locked facility” as fol-

lows: “ ‘Enclosed, locked facility’ ” means a closet,

room, or other enclosed area equipped with locks or

other security devices that permit access only by a

registered primary caregiver or registered qualifying

patient.” MCL 333.26423(c).

We hold that the trial court incorrectly interpreted

and applied the phrase “enclosed, locked facility.” As

this Court recently opined in Redden,

[t]his issue presents a question of statutory interpretation.

We review de novo issues of statutory interpretation.

People v Stone Transp, Inc, 241 Mich App 49, 50; 613 NW2d

737 (2000). Generally, the primary objective in construing a

statute is to ascertain and give effect to the Legislature’s

intent. People v Williams, 475 Mich 245, 250; 716 NW2d

208 (2006). The MMMA was enacted as a result of an

initiative adopted by the voters. “The words of an initiative

law are given their ordinary and customary meaning as

would have been understood by the voters.” Welch Foods,

Inc v Attorney General, 213 Mich App 459, 461; 540 NW2d

693 (1995). We presume that the meaning as plainly

expressed in the statute is what was intended. Id. This

Court must avoid a construction that would render any

part of a statute surplusage or nugatory, and “[w]e must

consider both the plain meaning of the critical words or

phrases as well as their placement and purpose in the

statutory scheme.” People v Williams, 268 Mich App 416,

425; 707 NW2d 624 (2005). [Redden, 290 Mich App at

76-77.]

As noted, the phrase “enclosed, locked facility” is

defined by the MMMA to mean “a closet, room, or other

enclosed area equipped with locks or other security

devices....” MCL 333.26423(c). As described earlier,

defendant grew several marijuana plants in his back-

yard, within a chain-link dog kennel that was only

partially covered on the sides with black plastic. The

kennel had a lock on the chain-link door, but had no

2011] P

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fencing or other material over the top, and it could be

lifted off the ground. Defendant maintains that the

kennel constitutes an “enclosed area” within the defi-

nition of “enclosed, locked facility” and, therefore, that

he complied with the statute. The trial court simply

based its interpretation of “other enclosed area” on the

definition of “enclose” in Black’s Law Dictionary and

concluded, without analysis, that the kennel complied

with this definition.

The trial court’s interpretation and application of the

phrase “enclosed, locked facility” is contrary to settled

rules of statutory construction. The statutory reference

to “other enclosed area” within the definition of “en-

closed, locked facility” is a general phrase that follows

the words “closet” and “room,” both of which have

specific, limited meanings and which have the common

characteristic of being stationary and closed on all sides.

It would frustrate the intent of the MMMA to read the

definition of “enclosed, locked facility” as meaning

something akin to a moveable fence simply on the basis

of a dictionary definition when the enumerated ex-

amples that precede “other enclosed area” suggest a

much greater level of protected confinement.

Our courts must give effect to the language in the

statute and elucidate the intent of the voters by consid-

ering not only the words themselves, but their place-

ment and purpose in the statutory scheme. To that end,

it is appropriate here to apply the doctrine of statutory

construction ejusdem generis, which provides that “the

scope of a broad general term following a series of items

is construed as including ‘things of the same kind, class,

character, or nature as those specifically enumer-

Moreover, we observe that the trial court cited a definition that

specifies enclosure on all sides, but nonetheless concluded that the

open-top kennel satisfies the definition.

512 291 M

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ated....’”People v Thomas, 263 Mich App 70, 76; 687

NW2d 598 (2004), quoting Weakland v Toledo Engi-

neering Co, Inc, 467 Mich 344, 349; 656 NW2d 175

(2003), and Huggett v Dep’t of Natural Resources, 464

Mich 711, 718-719; 629 NW2d 915 (2001). Under the

doctrine, “other enclosed area” would, thus, be limited

to things of the same kind or character as a closet or

room. An open, moveable, chain-link kennel is not of

the same kind or character as a closet or room. We

further observe that the examples given in the statu-

tory definition are followed by the additional require-

ment that the closet, room, or other enclosed area be

equipped with locks or other security devices that

permit access only by the registered caregiver or quali-

fying patient. In context, the clear purpose of specifying

that the marijuana be kept within a secure facility is to

ensure that it is inaccessible to anyone other than a

licensed grower or a qualifying patient, as defined in the

MMMA, for the limited purpose set forth in the MMMA.

Moreover, these provisions are obviously meant to pre-

vent access by the general public and, especially, juve-

niles. This reading of the MMMA is consistent with its

limited protections for a narrowly defined group of

medical users of a controlled substance, the general

cultivation and use of which remains illegal under both

state and federal law. Reading the statute broadly as the

trial court did to permit marijuana to be kept in the

type of space used by defendant would, quite simply,

undermine the plain language and purpose of the

statutory provisions.

We further hold that although the plants inside

defendant’s home were kept in a closet, which is the

type of enclosure specifically enumerated in the statute,

it is undisputed that there was no lock on the closet

door. The statute explicitly states that the enclosed area

itself must have a lock or other security device to

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prevent access by anyone other than the person licensed

to grow marijuana under the MMMA. An unlocked

closet would permit access by anyone else within the

home, and it appears that the home itself was not

secured by locks on all of the doors. The trial court’s

conclusion that defendant acted as a “security device”

for the marijuana growing inside his home is pure

sophistry and belied by defense counsel’s unsurprising

admission at oral argument in this Court that, at times,

defendant left the property, thus leaving the marijuana

without a “security device” and accessible to someone

other than defendant as the registered patient.

Because defendant failed to comply with the strict

requirements in the MMMA that he keep the marijuana

in an “enclosed, locked facility,” he is subject to pros-

ecution under MCL 333.7401(2)(d)(iii), and the trial

court abused its discretion by dismissing the charges

against defendant.

Reversed and remanded for further proceedings. We

do not retain jurisdiction.

AWYER

,P.J., concurred.

ITZGERALD

,J.(dissenting). I respectfully dissent.

The police had received an anonymous tip that de-

fendant was growing marijuana in his backyard. The

police then drove to the driveway of defendant’s neigh-

bor. Using binoculars, the police were able to observe

marijuana plants growing in a dog kennel in defen-

dant’s backyard. The dog kennel was made of six-foot-

high chain-link fence covered with black shrink-wrap.

The police were able to see that a section of the

shrink-wrap had been detached. They then approached

defendant’s home, knocked on the door, and asked if

defendant had a medical-marijuana card. Defendant

514 291 M

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produced his card. The police then asked if defendant

would allow them to see the plants. Defendant went

back inside the house to obtain the key to the lock on

the kennel. He then went with officers around the

house and opened the lock on the kennel. The officers

asked if he had more marijuana in the home. Defendant

stated that he did, but that the officers would need a

search warrant. The police then obtained a search

warrant. Six marijuana plants, processed marijuana,

and plants in various states of processing were found

inside the home.

Defendant moved to dismiss the charges of manufac-

turing marijuana pursuant to the Michigan Medical

Marihuana Act (MMMA),

MCL 333.26421 et seq. The

MMMA was passed by initiative on November 4, 2008,

and went into effect soon thereafter. The MMMA de-

clares that in “changing state law,” the act was designed

to “have the practical effect of protecting from arrest

the vast majority of seriously ill people who have a

medical need to use marihuana.” MCL 333.26422(b).

The MMMA further declares that the laws of certain

other states “do not penalize the medical use and

cultivation of marihuana. Michigan joins in this effort

for the health and welfare of its citizens.” MCL

333.26422(c). Such declarations reveal the intent that

the MMMA be used not as a sword against those who

have a medical need to use marijuana, but as a shield.

MCL 333.26424(a) of the MMMA allows a qualifying

patient who has been issued a registry identification

card to possess 2.5 ounces of marijuana and to cultivate

12 marijuana plants (if the patient has not designated a

primary caregiver) and not be subject to arrest or

Although the statute spells it “marihuana,” unless used in a direct

quotation, I have spelled it throughout as “marijuana,” as that is the

more commonly used spelling.

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prosecution for possession of the marijuana or for

growing the plants. Specifically, MCL 333.26424(a)

states:

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 profes-

sional 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 car-

egiver will be allowed under state law to cultivate mari-

huana for the qualifying patient, 12 marihuana plants kept

in an enclosed, locked facility. [Emphasis added.]

There is no dispute that defendant is a qualifying

patient in possession of a valid registry card.

The

prosecution argues that defendant was not entitled to

the protection of this statutory section because he was

not growing his marijuana plants in an enclosed, locked

facility. In particular, the prosecution asserts that the

dog kennel in defendant’s backyard was not an en-

closed, locked facility because it lacked a roof or a top

and was movable. Additionally, the prosecution asserts

that defendant’s house was not an enclosed, locked

facility because the back door lacked a lock.

The narrow issue before this Court is the interpreta-

tion of the term “enclosed, locked facility” as used in

MCL 333.26423(c) of the MMMA. Questions of statu-

tory interpretation are reviewed de novo. People v

Feezel, 486 Mich 184, 205; 783 NW2d 67 (2010) (opinion

by C

AVANAGH

, J.).

The prosecution does not dispute that defendant was entitled to

possess 2.5 ounces of marijuana.

516 291 M

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,J.

The purpose of statutory construction is to discern

and give effect to the intent of the Legislature. Feezel,

486 Mich at 205. The MMMA was enacted as a result of

an initiative adopted by the voters. The words of an

initiated law are given their ordinary and customary

meaning as the voters would have understood them. In

the absence of a statutorily provided definition, a statu-

tory term will be given its ordinary meaning. People v

Peals, 476 Mich 636, 641; 720 NW2d 196 (2006). The

ordinary meaning of a term may be discerned by

consideration of dictionary definitions. People v Perkins,

473 Mich 626, 639; 703 NW2d 448 (2005). This Court

presumes that the meaning as plainly expressed in the

statute is what was intended. People v Redden, 290

Mich App 65, 76; 799 NW2d 184 (2010).

The MMMA defines “enclosed, locked facility” as

follows: “ ‘Enclosed, locked facility’ means a closet,

room, or other enclosed area equipped with locks or

other security devices that permit access only by a

registered primary caregiver or registered qualifying

patient.” MCL 333.26423(c).

Clearly, the outdoor dog kennel could only qualify as

an enclosed, locked facility under the term “other

enclosed area.” MCL 333.26423(c) does not define the

word “enclosed.” Random House Webster’s College Dic-

tionary (1997) contains the following definitions of

“enclose”: “1. to close in on all sides; shut in. 2. to

surround, as with a fence; to enclose land. 3. to insert in

the same envelope, package, etc.: to enclose a check.4.to

contain or hold.” Under these definitions, the dog

kennel in this case would fall under the definition of

“other enclosed area.” The chain-link walls of the

kennel were six feet high, and the area surrounded by

the chain-link walls was closed in on all sides. Like a

fence that surrounds land (as in the dictionary ex-

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ample), the kennel did not have a top, but, by dictionary

definition, a top is not required to “enclose” some-

thing.”

Defendant covered the walls of the kennel with

black shrink-wrap in an attempt to conceal the contents

of the enclosure. Additionally, the kennel was equipped

with a lock, and defendant maintained the key to the

lock, thereby satisfying the additional requirement that

the “other enclosed area” be equipped with locks or

other security devices that permit access only by a

registered primary caregiver or registered qualifying

patient. MCL 333.26423(c). Thus, in my view, the dog

kennel qualified as an “enclosed, locked facility.”

The prosecution further argues that defendant’s

house was not an enclosed, locked facility because the

back door did not have a lock. MCL 333.26423(c)

requires that such a facility be equipped with “locks” or

“other security devices.” The term “other security

devices” is not defined in the MMMA. The dictionary

defines a “device” as “1. a thing made for a particular

purpose, [especially] a mechanical, electric, or elec-

tronic invention or contrivance.” Random House Web-

ster’s College Dictionary (1997). Given that the statu-

tory definition of an “enclosed, locked facility” allows

for not only locks, but also “other security devices” to be

used, the term “locked” should be broadly interpreted.

Indeed, it appears from the use of the term “other

security devices” that the intent is that the facility be

“secure.”

Michigan State Police Detective Sergeant Brian Fox

presented testimony at the preliminary examination

that the back door of defendant’s home did not have a

knob and that he did not “think” that defendant was

Contrary to the prosecution’s suggestion, nothing in the statutory

definition of “enclosed, locked facility” prevents the facility from being

movable.

518 291 M

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able “to lock or to keep the house secure.” However, the

lack of a knob on the back door does not necessarily

mean that defendant’s house was not secure. As the

statutory definition makes clear, the door could have

been secured by other devices. Some other “contriv-

ance” for securing or fastening would satisfy the stat-

ute. Although Fox testified that he did not see a board

that kept the door closed from the inside, that does not

mean that there was no mechanism to keep the door

secure. In my view, in the absence of evidence that

persons other than defendant had access to or actually

entered the home, defendant’s home satisfied the defi-

nition of “enclosed, locked facility.”

Furthermore, the definition of “enclosed, locked

facility” reveals the people’s intent that the mari-

juana being cultivated be accessible only by a regis-

tered primary caregiver or registered qualifying pa-

tient. In other words, the concern is that the

marijuana being cultivated not be accessible by any-

one other than a registered primary caregiver or

registered qualifying patient. As previously noted,

the declared intent of the MMMA is “to protect[] from

arrest the vast majority of seriously ill people who

have a medical need to use marihuana.” MCL

333.26422(b). R ather than rigid definitions of “other

enclosed area,” “locked,” and “other security device,”

the true key to determining whether defendant’s dog

kennel and home were enclosed, locked facilities for

purposes of the MMMA is to determine whether

access to the marijuana in the dog kennel and the

house was possible “only by a primary caregiver or

registered qualifying patient.” MCL 333.26423(c).

The evidence in the record indicates that the dog

kennel where defendant was growing marijuana was

located in his backyard. The walls of the kennel were

2011] P

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made of six-foot-high chain-link fence wrapped in black

plastic. Parts of the black plastic had blown open,

allowing Fox and another deputy to see defendant’s

marijuana from the street with the use of binoculars.

The kennel was locked, and Fox and the deputy were

only able to access it after defendant obtained a key for

the lock from his house. The prosecution did not allege

that anyone had attempted to steal defendant’s mari-

juana plants. Rather, the prosecution argued that access

to the marijuana plants was not limited to defendant

because someone could move the kennel or climb over

the six-foot walls to access the marijuana plants. How-

ever, the evidence presented at the preliminary exami-

nation revealed that defendant had to obtain a key to

gain access to the marijuana. No evidence was pre-

sented that anyone had tried to move the kennel or

climb over the kennel to obtain the marijuana. In fact,

no evidence was presented that anyone other than

defendant had access to the marijuana. The prosecu-

tion’s argument is premised solely on a set of hypotheti-

cal facts.

Similarly with respect to defendant’s house, we need

not find a rigid definition for “locked” that requires the

use of a key. Instead, the determination to be made is

whether only defendant had access to the marijuana in

his house. Defendant refused to allow Fox and the other

officer access to his house. The police obtained access to

the house only by securing a search warrant. No evi-

dence was presented that anyone other than defendant

had access to the house. I would conclude that defen-

dant was growing marijuana in accordance with the

provisions of the MMMA. The evidence from the pre-

liminary examination reveals that access to both the

kennel and the house was limited to defendant, which

was sufficient for purposes of MCL 333.26424.

520 291 M

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I find it worthy to note that this is not a case

involving an individual who was trying to flout the clear

prohibitions of the Public Health Code and engage in

recreational use of marijuana. This is a case involving

an individual who went through the necessary proce-

dure to become a qualifying patient who was issued a

valid registry identification card. The MMMA’s suscep-

tibility to multiple interpretations should not result in

the use of the act as a sword rather than a shield under

the circumstances of this case.

I would affirm the learned circuit judge’s dismissal of

the charges against defendant.

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CRACKEN v CITY OF DETROIT

Docket No. 294218. Submitted December 9, 2010, at Detroit. Decided

February 8, 2011, at 9:00 a.m.

Thomas McCracken, Richard Cadoura, Michael Kearns, and Michael

Christy filed suit in the Wayne Circuit Court against the city of

Detroit and related defendants, alleging violations of the Civil

Rights Act, MCL 37.2010 et seq. When defendants filed their

answer, they attached to it a separately captioned document

entitled “Special and Affirmative Defenses” in which they de-

manded a response to the affirmative defenses. When plaintiffs did

not respond to this demand within 21 days, defendants moved for

summary disposition, arguing that plaintiffs’ failure to respond to

the affirmative defenses amounted to an admission regarding the

truth of those defenses and that, therefore, plaintiffs’ suit should

be dismissed. The court, Prentis Edwards, J., agreed and granted

defendants’ motion. Plaintiffs appealed.

The Court of Appeals held:

1. Under MCR 2.110(A), the definition of the term “pleading”

includes only (1) a complaint, (2) a cross-claim, (3) a counterclaim, (4)

a third-party complaint, (5) an answer to a complaint, cross-claim,

counterclaim, or third-party complaint, and (6) a reply to an answer.

No other filings constitute pleadings. Defendants’ affirmative de-

fenses, filed separately from their answer, were not pleadings.

2. Under MCR 2.110(B), the only pleadings requiring a re-

sponse are (1) a complaint, (2) a counterclaim, (3) a cross-claim, (4)

a third-party complaint, or (5) an answer demanding a reply.

Defendants’ affirmative defenses, filed separately from the answer,

were none of these and so they were not pleadings requiring a

response even though they included a demand for a response. The

court erred by deeming them admitted.

Reversed.

1. P

LEADING —

FFIRMATIVE

EFENSES

The term “pleading” as defined in the Michigan Court Rules

includes only (1) a complaint, (2) a cross-claim, (3) a counterclaim,

(4) a third-party complaint, (5) an answer to a complaint, cross-

522 291 M

ICH

522 [Feb

claim, counterclaim, or third-party complaint, and (6) a reply to an

answer; no other filings constitute pleadings; affirmative defenses,

filed separately from an answer, are not pleadings (MCR 2.110[A]).

2. P

LEADING —

LEADINGS

EQUIRING A

ESPONSE —

FFIRMATIVE

EFENSES

The only pleadings requiring a response are (1) a complaint, (2) a

counterclaim, (3) a cross-claim, (4) a third-party complaint, or (5)

an answer demanding a reply; affirmative defenses filed separately

from an answer are not pleadings requiring a response even if they

include a demand for a response.

Norman Yatooma & Associates, P.C. (by Robert S.

Zawideh and Howard Yale Lederman), for plaintiffs.

Andrew Jarvis, Assistant Corporation Counsel, for

defendants.

Before: S

HAPIRO

,P.J., and S

AAD

and K. F. K

ELLY

,JJ.

URIAM

. Plaintiffs appeal as of right the trial court’s

order granting defendants’ motion for summary disposi-

tion. The trial court found that plaintiffs had effectively

“admitted” defendants’ affirmative defenses when failing

to specifically deny them in a timely manner, particularly

after defendants had demanded a response to the affirma-

tive defenses. We hold that affirmative defenses are not

pleadings requiring a response under MCR 2.110(A) and

(B). Moreover, we hold that affirmative defenses are to be

taken as denied even if they include a demand for a

response. Accordingly, we reverse the trial court’s order

and remand to the trial court for further proceedings

consistent with this opinion.

I. BASIC FACTS AND PROCEDURAL BACKGROUND

Plaintiffs were Caucasian employees of the Emer-

gency Medical Services department of the City of De-

troit Fire Department. They filed an amended com-

plaint and a demand for a jury trial against defendants

2011] M

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523

on June 15, 2009, alleging race discrimination and a

hostile work environment under the Civil Rights Act

(CRA), MCL 37.2101 et seq. On July 26, 2009, defen-

dants filed an answer to plaintiffs’ amended complaint.

In the answer, defendants did not demand a reply to the

answer. However, in a separately captioned document

attached to the answer, defendants filed special and

affirmative defenses, at the end of which defendants

wrote, “[d]efendants demand an answer to these affir-

mative defenses.” Plaintiffs did not respond to the

affirmative defenses within 21 days.

On August 7, 2009, defendants filed a motion for

judgment, arguing that plaintiffs’ failure to respond to

defendants’ affirmative defenses amounted to an ad-

mission regarding the truth of the affirmative defenses

and, as a result, plaintiffs’ complaint should be dis-

missed. Plaintiffs filed a response to defendants’ special

and affirmative defenses on August 14, 2009. The same

day, defendants filed a motion for summary disposition

pursuant to MCR 2.116(C)(8) and (C)(10), arguing

again that plaintiffs’ failure to respond to the affirma-

tive defenses as required under the Michigan Court

Rules meant that the affirmative defenses should be

deemed admitted and defendants should be entitled to

summary disposition.

A hearing was held regarding defendants’ motion for

summary disposition. The trial court concluded that

plaintiffs were required to respond to defendants’ affir-

mative defenses under the Michigan Court Rules and

their failure to do so entitled defendants to summary

disposition. Plaintiffs now appeal.

II. STANDARD OF REVIEW

This case requires us to examine the application

and interplay between the Michigan Court Rules

524 291 M

ICH

522 [Feb

regarding affirmative defenses and pleadings. The

interpretation of a court rule involves a question of

law subject to de novo review, but the factual findings

underlying a trial court’s application of a court rule

are reviewed for clear error. MCR 2.613(C); Johnson

Family Ltd Partnership v White Pine Wireless, LLC,

281 Mich App 364, 387; 761 NW2d 353 (2008). A

finding is clearly erroneous when the appellate court

“is left with a definite and firm conviction that a

mistake has been made.” Id.

The rules of statutory construction apply to the

interpretation of court rules. Hill v City of Warren,

276 Mich App 299, 305; 740 NW2d 706 (2007). The

goal in interpreting a court rule is “to give effect to

the intent of the Supreme Court, the drafter of the

rules.” Jenson v Puste, 290 Mich App 338, 341; 801

NW2d 639 (2010). The first step in construing a court

rule is to analyze the language used “because the

words contained in the court rule are the most

reliable evidence of the drafters’ intent.” Id. at 341-

342. The provision must be considered in its entirety,

and within the context of the rules, to produce “a

harmonious whole.” Id. at 342. When “a court rule

provides its own glossary, the terms must be applied

as expressly defined.” Richmond Twp v Erbes, 195

Mich App 210, 225; 489 NW2d 504 (1992), overruled

in part on other grounds in Bechtold v Morris, 443

Mich 105, 108-109; 503 NW2d 654 (1993). “The

omission of language from one part of a statute that

is included in another part should be construed as

intentional.” Mericka v Dep’t of Community Health,

283 Mich App 29, 39; 770 NW2d 24 (2009). Ulti-

mately, the court rules must be construed to prevent

absurd results, injustice, or prejudice to the public

interest. Hill, 276 Mich App at 305.

2011] M

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525

III. AFFIRMATIVE DEFENSES

Plaintiffs argue that the trial court erred in conclud-

ing that defendants’ demand for a response to their

affirmative defenses rendered the affirmative defenses

a pleading requiring a response. We agree.

To resolve the question presented here requires us to

examine several court rules. MCR 2.108(A)(5) man-

dates that a party that has been “served with a pleading

to which a reply is required or permitted may serve and

file a reply within 21 days after service of the pleading

to which it is directed.” (Emphasis added.) Notably,

however, what constitutes a “pleading” is limited and

exclusively defined as:

(1) a complaint,

(2) a cross-claim,

(3) a counterclaim,

(4) a third-party complaint,

(5) an answer to a complaint, cross-claim, counterclaim,

or third-party complaint, and

(6) a reply to an answer.

No other form of pleading is allowed. [MCR 2.110(A)

(emphasis added).]

As is clear from the plain language of the rule, affirma-

tive defenses are simply not pleadings for purposes of

MCR 2.110(A). In re Forfeiture of a Quantity of Mari-

juana, 291 Mich App 243, 255-256; 805 NW2d 217

(2011).

Moreover, MCR 2.110(B) identifies which pleadings a

party is required to respond to, and those pleadings only

include:

(1) a complaint,

(2) a counterclaim,

(3) a cross-claim,

526 291 M

ICH

522 [Feb

(4) a third-party complaint, or

(5) an answer demanding a reply. [MCR 2.110(B).]

Thus, according to the plain language of MCR 2.110(B),

affirmative defenses are not pleadings requiring re-

sponses.

Defendants argue that affirmative defenses are part

of a party’s “responsive pleading”—in this case, the

answer—albeit under “a separate and distinct head-

ing....” MCR 2.111(F)(3). Defendants contend that

since defendants’ affirmative defenses were part of

their answer and they demanded a reply in the affirma-

tive defenses, their affirmative defenses amounted to an

answer demanding a reply. We disagree.

Affirmative defenses are addressed separately in

MCR 2.111(F) which states in relevant part:

(2) Defenses Must be Pleaded; Exceptions. A party

against whom a cause of action has been asserted by

complaint, cross-claim, counterclaim, or third-party claim

must assert in a responsive pleading the defenses the party

has against the claim. A defense not asserted in the

responsive pleading or by motion as provided by these rules

is waived, except for the defenses of lack of jurisdiction over

the subject matter of the action, and failure to state a claim

on which relief can be granted....

***

(3) Affirmative Defenses. Affirmative defenses must be

stated in a party’s responsive pleading, either as originally

filed or as amended in accordance with MCR 2.118. Under

a separate and distinct heading, a party must state the

facts constituting

(a) an affirmative defense, such as contributory negli-

gence; the existence of an agreement to arbitrate; assump-

tion of risk; payment; release; satisfaction; discharge; li-

cense; fraud; duress; estoppel; statute of frauds; statute of

limitations; immunity granted by law; want or failure of

2011] M

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527

consideration; or that an instrument or transaction is void,

voidable, or cannot be recovered on by reason of statute or

nondelivery;

(b) a defense that by reason of other affirmative matter

seeks to avoid the legal effect of or defeat the claim of the

opposing party, in whole or in part;

would be likely to take the adverse party by surprise. [MCR

2.111(F) (emphasis added).]

While affirmative defenses must be addressed within a

party’s responsive pleadings, they are not synonymous

with answers and other pleadings and are defined

separately from them within the Michigan Court Rules.

MCR 2.110(A), which exclusively defines “pleadings,”

does not mention affirmative defenses. MCR 2.110(B),

which defines pleadings requiring a response, also does

not include affirmative defenses demanding a response.

In other words, despite the language in MCR

2.111(F)(3) that affirmative defenses should be part of

the responsive pleadings, affirmative defenses do not

amount to a pleading by themselves nor do affirmative

defenses demanding a reply count as a pleading requir-

ing a response.

Even were we to accept defendants’ position that

affirmative defenses fall within the umbrella of MCR

2.110(A), we would still be constrained to find the trial

court erred in deeming the affirmative defenses effec-

tively admitted. MCR 2.111(E)(1) states: “Allegations in

a pleading that requires a responsive pleading, other

than allegations of the amount of damage or the nature

of the relief demanded, are admitted if not denied in the

responsive pleading.” However, “[a]llegations in a

pleading that does not require a responsive pleading are

taken as denied.” MCR 2.111(E)(2). Based on the plain

language of the court rules defining pleadings and

responsive pleadings, plaintiffs were not required to

528 291 M

ICH

522 [Feb

respond to defendants’ affirmative defenses, even

though defendants demanded a response in them. MCR

2.110(B) exclusively defines pleadings requiring a re-

sponse and affirmative defenses are not included. Ac-

cordingly, plaintiffs’ failure to file a response to defen-

dants’ affirmative defenses did not amount to a

concession regarding the truth of the affirmative de-

fenses under MCR 2.111(E)(1). Alternatively stated,

defendants’ affirmative defenses demanding a response

are not pleadings requiring a response, and the trial

court should have taken them as denied.

Defendants argue that Vannoy v City of Warren,15

Mich App 158; 166 NW2d 486 (1968), overruled on

other grounds by DeShambo v Anderson, 471 Mich 27,

40; 684 NW2d 332 (2004), and Simonson v Michigan

Life Ins Co, 37 Mich App 79; 194 NW2d 446 (1971), are

controlling in this case and stand for the proposition

that a failure to respond to affirmative defenses de-

manding a reply amounts to a concession of the truth of

the affirmative defenses. We disagree. Vannoy and Si-

monson are not binding on this Court because they

were published before 1990. “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 ....” MCR7.215(J)(1).

Moreover, they are distinguishable.

In Vannoy, the defendant contended that the failure

of the plaintiff to respond to the defendant’s affirmative

defenses amounted to a concession of the veracity of the

affirmative defenses. Vannoy, 15 Mich App at 161.

However, the defendant in Vannoy did not demand a

response in its affirmative defenses. Id. at 162. As a

result, this Court concluded, “An averment in the

nature of an affirmative defense does not require a

responsive pleading unless it expressly requests a re-

2011] M

RACKEN V

ETROIT

529

ply.” Id. at 161. Vannoy is distinguishable from this case

since the defendant in Vannoy did not make a demand

for a reply in either the answer or the affirmative

defenses. In Vannoy, this Court did not address the

question we are faced with: whether a demand for a

reply in the affirmative defenses and not in the answer

requires a responsive pleading. As a result, this Court’s

conclusion that “an affirmative defense does not re-

quire a responsive pleading unless it expressly requests

a reply” is merely dicta.

Likewise, in Simonson, the defendant pleaded affir-

mative defenses within his answer. Simonson, 37 Mich

App at 84. The plaintiff did not respond to all of the

defendant’s affirmative defenses in his reply to the

defendant’s answer. Id. at 83. The defendant argued

that because the plaintiff did not respond to all of the

defendant’s affirmative defenses in his reply, the plain-

tiff could not raise any arguments in response to those

defenses at trial. Id. This Court concluded that since

the defendant did not demand a reply to its answer, the

plaintiff did not need to file a responsive pleading and

could raise a response to the defendant’s affirmative

defenses at trial. Id. at 84. Implicit in the reasoning of

this Court in Simonson is an assumption that affirma-

tive defenses are synonymous with the answer. How-

ever, like Vannoy, Simonson is distinguishable because

this Court in Simonson did not address whether a

demand for a reply in the affirmative defenses and not

in the answer requires a responsive pleading. As a

result, we conclude that Simonson does not control

here.

Because the trial court erred by concluding that

plaintiffs were required to reply to defendants’ affirma-

tive defenses, the affirmative defenses should not have

been deemed admitted. We reverse the trial court’s

530 291 M

ICH

522 [Feb

order granting defendants’ motion for summary dispo-

sition on that basis and remand to the trial court for

further proceedings.

IV. PLAINTIFFS’ LATE REPLY

Plaintiffs further argue that the trial court erred

when it failed to consider plaintiffs’ late response to

defendants’ affirmative defenses. Given our conclusion

that plaintiffs were not required to respond to defen-

dants’ affirmative defenses and our reversal of the

order granting the motion for summary disposition, we

need not address this question because it is moot.

Driver v Naini, 287 Mich App 339, 355; 788 NW2d 848

(2010). “An issue is moot if an event has occurred that

renders it impossible for the court to grant relief.”

Attorney General v Pub Serv Comm, 269 Mich App 473,

485; 713 NW2d 290 (2005).

Reversed and remanded for further proceedings. We

do not retain jurisdiction.

2011] M

RACKEN V

ETROIT

531

WIGGINS v CITY OF BURTON

Docket No. 293023. Submitted November 4, 2010, at Detroit. Decided

February 8, 2011, at 9:05 a.m.

Charles D. and Susan Wiggins brought an action in the Genesee

Circuit Court against the City of Burton, William L. and Paula M.

Mahler, Thomas A. and Margaret A. Heckman, and others. The

Wigginses, the Mahlers, and the Heckmans owned neighboring

properties in the City of Burton. The property owned by the

Wigginses (the Wiggins property) was in a subdivision that was

platted in the 1990s. The subdivision plat indicated that a portion

of the Wiggins property was encumbered by a private easement for

storm detention. After the subdivision was constructed, the Mahl-

ers and the Heckmans, who lived outside the new subdivision,

began to have surface-water drainage problems. In response, the

city had a drainage system installed on the Mahler and Heckman

properties that led to the storm-detention easement on the Wig-

gins property. The Wigginses alleged that the construction of the

drain on their property and the resultant flow of water onto their

property from the drainage system constituted a trespass and a

nuisance and that the city had taken their property without just

compensation. The Wigginses sought money damages, declaratory

relief, and to quiet title to their property. The court, Geoffrey L.

Neithercut, J., granted summary disposition in favor of the Mahl-

ers and the Heckmans and dismissed the Wigginses’ claims against

the city without prejudice. The Wigginses appealed, and the city

cross-appealed.

The Court of Appeals held:

1. The plain language of the plat indicated that the scope of the

easement on the Wiggins property was limited to storm detention,

meaning the detention of waters that naturally flowed to the land

as a result of storms. The installation of the drain on the Wiggins

property fell outside the scope of the easement. Because the drain

was a tangible object, its presence was actionable in trespass

rather than nuisance. Although the Mahlers and the Heckmans

did not personally enter the Wiggins property, their requests for

drainage relief from the city and their subsequent authorization

for the city or its agents to construct the drainage system were

sufficient acts to give rise to liability. Accordingly, the installation

532 291 M

ICH

532 [Feb

and continuing presence of the drain on the Wiggins property

constituted a trespass by the Mahlers and the Heckmans. The

Wigginses were entitled to nominal damages, any actual damages,

and injunctive relief enjoining the Heckmans’ and the Mahlers’

use of the drainage system and requiring them to remove that

portion of the drainage system that encroached on the Wiggins

property.

2. Although the Wigginses’ request for declaratory relief was

incorrectly pleaded as a separate cause of action rather than as a

prayer for relief, the circuit court erred by failing to consider the

request as it related to the Heckmans and the Mahlers. The

Wigginses were minimally entitled to a declaration that the

installation and construction of the drain on their property ex-

ceeded the scope of the storm-detention easement encumbering

that property and that the Heckmans and the Mahlers committed

a trespass by authorizing or ratifying the city’s construction of the

drain.

3. The circuit court properly declined to consider the Wig-

ginses’ quiet-title claim as it related to the Heckmans and the

Mahlers because the Wigginses’ complaint asserted their quiet-

title claim against the city only, not against the Heckmans or the

Mahlers.

4. The natural flow of surface water from an upper, dominant

estate forms a natural servitude that encumbers a lower, servient

estate. However, the owner of the upper estate may not increase

the amount or concentrate the flow of water onto the servient

estate. In this case, there remained a genuine issue of material fact

concerning whether the flow of water onto the Wiggins property, as

distinct from the construction of the drain itself, constituted an

actionable trespass by increasing the amount of surface water that

naturally flowed to the Wiggins property. If the flow of surface

water onto the Wiggins property was materially increased, then

the Heckmans and the Mahlers would also be liable for this

additional trespass because they authorized the construction of

the drain, entitling the Wigginses to at least nominal damages, and

injunctive and declaratory relief.

5. The circuit court erred by dismissing the Wigginses’ claims

against the city on the basis of MCL 280.75, which did not apply

under the particular circumstances of this case. The procedures

set forth in MCL 280.75 apply only to proposed drains and not to

drains that are already in existence.

6. There remained a genuine issue of material fact concerning

whether the city’s installation of the drain on the Wiggins property

constituted a taking of the Wigginses’ property without just

2011] W

IGGINS V

URTON

533

compensation. The construction and installation of the drain was

an affirmative act directed at the Wigginses’ property by the city

that had the effect of limiting the use of the Wigginses’ property,

but it was not clear how much damage was caused by the

installation of the drain and whether the city’s actions were a

substantial cause of a decline in the value of the property. If the

installation of the drain on the Wiggins property was a substantial

cause of a decline in the value of the Wiggins property, the

Wigginses would be entitled to compensation.

7. Because of its erroneous reliance on MCL 280.75, the circuit

court did not address the question of the city’s entitlement to

governmental immunity with regard to the Wigginses’ tort claims.

On remand, the circuit court must determine whether the city is

entitled to governmental immunity with respect to the Wigginses’

tort claims.

Affirmed in part, reversed in part, and remanded for further

proceedings.

1. P

ROPERTY —

ASEMENTS —

COPE —

ETERMINATION —

LAIN

EANING —

TORM

-D

ETENTION

ASEMENTS —

RAINS

To determine the scope of an express easement, courts should first

look to the language of the easement itself; when that language is

clear it must be enforced as written; an express easement for storm

detention is limited to the detention of waters that naturally flow

to the easement as a result of storms; the installation of a drainage

system to carry surface water to a storm-detention easement falls

outside the scope of the express easement when the easement does

not include language relating to the installation of pipes or drains.

2. T

RESPASS —

OINT

ORTFEASORS —

UTHORIZATION OF THE

RESPASS

All persons who instigate, command, encourage, advise, ratify, or

condone the commission of a trespass are cotrespassers and are

jointly and severally liable as joint tortfeasors; a property owner

who requests drainage relief from a city and authorizes the

construction of a drainage system by the city, the installation of

which constitutes a trespass on another’s land, may be held liable

for the trespass even though he or she did not personally set foot

on the property.

3. P

ROPERTY —

RAINAGE —

URFACE

ATERS —

ATURAL

ERVITUDES —

NCREASING THE

LOW OR

ONCENTRATION OF

URFACE

ATERS ONTO A

ERVIENT

STATE —

RESPASS

The natural flow of surface water from an upper, dominant estate

forms a natural servitude that encumbers a lower, servient estate,

534 291 M

ICH

532 [Feb

but the owner of the upper estate may not increase the amount or

concentrate the flow of water onto the servient estate; a person

who increases the flow of water from an upper estate onto a lower

estate may be held liable for trespass.

4. D

RAINS —

RAIN

ODE —

PPLICABILITY —

STABLISHED

RAINS

Chapter 4 of the Drain Code concerns the procedures applicable to

proposed drains rather than established drains (MCL 280.71 et

seq.).

Fausone Bohn, LLP (by Christopher S. Frescoln), for

Charles D. and Susan Wiggins.

Plunkett Cooney (by Mary Massaron Ross, Audrey J.

Forbush, and Hilary A. Ballentine) for the city of

Burton.

Raftery, Janeczek & Hoelscher, P. C . (by Jeanne V.

Barron and James J. Raftery), for William L. and Paula

M. Mahler.

Michael J. Mangapora, P. C . (by Rex A. Ziebarth), for

Thomas A. and Margaret A. Heckman.

Before: B

ECKERING

,P.J., and J

ANSEN

and T

ALBOT

,JJ.

URIAM

. Plaintiffs Charles D . Wiggins and Susan

Wiggins (the Wiggins) appeal by right the circuit court’s

order denying their motion for summary disposition,

granting summary disposition in favor of defendants

William L. Mahler and Paula M. Mahler (the Mahlers),

granting summary disposition in favor of defendants

Thomas A. Heckman and Margaret A. Heckman (the

Heckmans), and dismissing all claims against the city of

Burton (the City) “without prejudice so that the [Wiggins]

and theCity...canfollow the procedure...laid out in

MCL 280.75.” The City cross-appeals the same circuit

court order. We affirm in part, reverse in part, and remand

for further proceedings consistent with this opinion.

2011] W

IGGINS V

URTON

535

I. FACTS AND PROCEDURAL HISTORY

The dispute in this case involves the issue of surface-

water drainage on three neighboring parcels of real

property located in the City. The Heckmans have lived

at 5217 Maple Avenue and the Mahlers have lived at

5245 Maple Avenue for some time. A subdivision known

as Maplewood Meadows No. 1 was laid out and platted,

apparently in the mid-1990s. Maplewood Meadows No.

1 lies to the east of the Heckman parcel and the Mahler

parcel and abuts both parcels along portions of their

eastern property lines.

The Wiggins purchased Lot 51 in Maplewood Mead-

ows No. 1, commonly known as 5257 Walnut Drive, on

December 19, 2003. A warranty deed executed on

December 19, 2003, conveyed Lot 51 to the Wiggins

“[s]ubject to all existing building and use restrictions,

easements and zoning ordinances, if any.” As shown on

the final plat of Maplewood Meadows No. 1, a large

section of the Wiggins parcel (more specifically, the west

and north sides of Lot 51) is encumbered by a “PRI-

VATE EASEMENT FOR STORM DETENTION.”

This

“storm detention” easement encumbers portions of

four other adjoining lots in the subdivision as well.

According to the parties, there is no granting instru-

ment creating or relating to the storm-detention ease-

ment other than the final plat itself. The Wiggins admit

that they were aware of the storm-detention easement

encumbering the west and north sides of lot 51 when

they purchased the parcel in 2003.

The Heckmans and Mahlers assert that the construc-

tion of Maplewood Meadows No. 1 caused significant

While it seems that the word “retention” would have been more

appropriate than the word “detention” in this context, the word “deten-

tion” is used on the subdivision’s final plat and has been used by the

parties throughout the pendency of this case.

536 291 M

ICH

532 [Feb

surface-water drainage problems on their respective

parcels. Specifically, the City and the Mahlers contend

that before the construction of Maplewood Meadows

No. 1, the surface waters historically and naturally ran

away from the Heckman and Mahler parcels, and

toward the area now encumbered by the storm-

detention easement. The City has offered a hydrogeo-

logic contour map to support this contention. The City

and the Mahlers contend that the construction of

Maplewood Meadows No. 1 reversed this historic flow of

surface water, causing the surface waters to begin

flowing toward the Heckman and Mahler parcels.

Thomas Heckman apparently lodged several com-

plaints with the City concerning this surface-water

drainage problem, dating as far back as June 1995. The

minutes of the Burton City Council indicate that Mr.

Heckman appeared before the council on several occa-

sions to complain about the “flooding problems on his

property.” On May 21, 2007, the Burton City Council

voted 5 to 1 to approve the expenditure of $1,750.00 to

pay for a “relief drain project at 5245 Maple and 5217

Maple Ave[nue].” The City’s plan was to install indi-

vidual drains on the Heckman and Mahler parcels, and

to connect these individual drains to the area of the

existing storm-detention easement on the Wiggins par-

cel by way of a 180-foot drainage pipe.

In May 2007, the Heckmans and Mahlers signed

documents with the City acknowledging that the City

would construct and install drains on their respective

properties and that the drainage project, when com-

pleted, would “belong solely to the [Heckmans and

Mahlers] and will be the [Heckmans’ and Mahlers’]

responsibility to maintain/repair.” Subsequently, the

City contracted with Doan Enterprises, Inc. to complete

the proposed drainage project. In late 2007, Doan

2011] W

IGGINS V

URTON

537

Enterprises excavated a ditch, installed drains on the

Heckman and Mahler parcels, and laid pipe connecting

these drains to the area of the storm-detention ease-

ment on the Wiggins property. The practical effect of

this drainage project was to carry the accumulated

surface waters away from the Heckman and Mahler

parcels and to deposit those waters in the Wiggins’

backyard.

In March 2008, the Wiggins filed a five-count com-

plaint in the Genesee Circuit Court, setting forth claims

entitled “QUIET TITLE” (count 1), “DECLARATORY

RELIEF” (count 2), “TRESPASS” (count 3), and “NUI-

SANCE” (count 4) against the City, the Mahlers, the

Heckmans, Doan Enterprises, and certain agents of the

City.

The Wiggins also set forth a claim of inverse

condemnation (count 5) against the City only. The

Wiggins sought both money damages and injunctive,

declaratory, and equitable relief. Paragraph 35 of the

complaint, which captured the essence of the Wiggins’

grievances, alleged that the City had

excavated a drainage trench that originated from the

Mahler Property and ran in a northerly direction from the

Mahler Property in a relatively straight line through the

Heckman Property on the eastern edge of the Heckman

Property...andcontinued the excavation in a northerly

direction in a straight line on the Heckman Property along

the eastern edge of the Heckman Property proximate to the

area where the Heckman Property borders the Wiggins

Property for a distance of approximately thirty (30) feet, at

which point [the City] then redirected the trench at an

approximate 45-degree angle and entered into and upon

the Wiggins Property and continued its excavation of the

trench, removing sod, turf and soil from the Wiggins

Property, and terminated the trench approximately in the

Doan Enterprises and the named agents of the City have been

dismissed from the case and are not involved in the instant appeal.

538 291 M

ICH

532 [Feb

middle of the Wiggins’ backyard immediately adjacent to

their childrens’ [sic] swing set.

The Wiggins alleged that neither the City, nor the

Heckmans, nor the Mahlers, nor Doan Enterprises, nor

any of the City’s agents had ever sought permission to

enter onto their property, to excavate the ditch, or to lay

the drainage pipe. The Wiggins also alleged that

[t]he [e]ffect of the project...was...an alteration and

diversion of the natural flow of the surface water from the

Heckman Property and the Mahler Property, causing an

intentionally focused, increased and concentrated flow of

the surface water from those properties directly onto the

Wiggins Property, causing significant damages thereby.

The Wiggins asserted that none of the defendants had

been authorized to enter onto their property, to exca-

vate the ditch, or to lay the drainage pipe in question.

The Wiggins alleged that since the City’s construction

of the drainage system, a substantially increased

amount of water had begun to flow onto their property

and that a permanent “retention pond” had formed in

their backyard.

In count 1, the Wiggins sought an order quieting title

to their property. The Wiggins acknowledged the exist-

ence of the storm-detention easement that encumbered

the west and north sides of their parcel, but emphasized

that they remained the fee owners of the property. The

Wiggins contended that by constructing the drainage

system, the City (and presumably the other named

defendants) had asserted property interests adverse to

their own. The Wiggins claimed that by asserting such

adverse claims, the City and other named defendants

had jeopardized and interfered with their interests in

the property. The Wiggins asked the circuit court to

quiet title in them.

2011] W

IGGINS V

URTON

539

In count 2, the Wiggins sought declaratory relief relat-

ing to the rights of the named defendants and the scope

and extent of the existing storm-detention easement. The

Wiggins requested a declaration that none of the named

defendants had possessed any right to enter onto the

Wiggins parcel, to excavate the trench on the Wiggins

parcel, or to install the drainage pipe in question.

In count 3, the Wiggins alleged that the named

defendants had trespassed on their property in two

different ways. First, the Wiggins alleged that the City,

Doan Enterprises, and the City’s agents had physically

trespassed on their property to excavate the ditch and

install the drainage pipe. The Wiggins contended that

the Heckmans and Mahlers had either specifically

agreed to, or acquiesced in, this act of trespassing.

Second, the Wiggins alleged that the City, the Heck-

mans, and the Mahlers had committed additional acts

of trespass by improperly diverting surface waters onto

the Wiggins parcel through the drainage pipe. The

Wiggins sought an injunction requiring the removal of

the drainage pipe and enjoining the further diversion of

surface water onto their property. The Wiggins also

sought money damages for the alleged trespasses that

had already been committed.

In count 4, the Wiggins alleged that the presence of

the drainage pipe and the diversion of surface water

onto their property were conditions that unreasonably

interfered with their use and enjoyment of the property.

They asserted that these conditions constituted a nui-

sance. The Wiggins sought money damages as well as

abatement of the alleged nuisance under MCL

600.2940.

Lastly, in count 5, the Wiggins claimed that the City’s

actions had resulted in an unconstitutional taking of a

portion of their property without just compensation.

540 291 M

ICH

532 [Feb

In December 2008, the circuit court granted the

Wiggins leave to file a “Supplemental Complaint.” In

their supplemental complaint, the Wiggins clarified

that they were asserting their trespass claim against

the Heckmans and Mahlers, as well as the City. The

Wiggins also clarified their argument that even though

the Heckmans and Mahlers had not physically entered

onto the Wiggins parcel, they were nonetheless liable

for trespass because they had authorized the diversion

of surface waters from their properties.

On April 20, 2009, the Mahlers filed a “MOTION

FOR PARTIAL SUMMARY DISPOSITION AS TO

MONEY DAMAGES” pursuant to MCR 2.116(C)(10).

The Mahlers asserted that their only involvement with

this entire case had been their act of giving the City

permission to enter upon the Mahler parcel to construct

a drain. Curiously, the Mahlers’ sole legal argument was

that the Wiggins had not established a prima facie case

of negligence against them. However, as noted previ-

ously, the Wiggins never pleaded a claim of negligence

against the Mahlers.

Also on April 20, 2009, the City filed its own motion

for summary disposition pursuant to MCR 2.116(C)(7),

(8), and (10). Among other things, the City argued that

the Wiggins’ claims should be dismissed “because the

Office of the Genesee County Drain Commissioner

approve[d] of the placement of the drainage pipe” and

because the Wiggins’ claims were “barred by govern-

mental immunity.” The City argued that the construc-

tion of the drainage pipe on the Wiggins parcel and the

diversion of excess surface waters from the Heckman

Three days later, the Heckmans filed their own “motion for partial

summary disposition as to money damages” pursuant to MCR

2.116(C)(10), adopting and fully concurring in the motion filed by the

Mahlers.

2011] W

IGGINS V

URTON

541

and Mahler parcels were both within the scope of the

preexisting storm-water-detention easement that en-

cumbered the Wiggins’ property. The City further

pointed out that the Wiggins were fully aware of the

storm-detention easement encumbering their parcel at

the time they purchased it. Accordingly, the City con-

tended that the Wiggins had no right to complain about

the construction of the drain or the diversion of surface

water onto their property, both of which were within

the contemplation of the parties at the time the Wiggins

bought the property.

The City additionally argued that, pursuant to § 192

of the Land Division Act, MCL 560.192, the drainage of

storm water in a subdivision is within the exclusive

jurisdiction and control of the county drain commis-

sioner. The City asserted that because the Genesee

County Drain Commissioner had approved the creation

of the storm-water-detention easement at the time

Maplewood Meadows No. 1 was first platted, and be-

cause the Genesee County Drain Commissioner had

also approved the construction of the drain leading

from the Heckman and Mahler parcels to the Wiggins

parcel, the Wiggins’ claims against the City should all

fail as a matter of law.

With respect to the Wiggins’ quiet-title claim, the

City argued that the claim was in reality an attempt to

revise a recorded plat. According to the City, because

the Wiggins had not proceeded in accordance with

certain requirements set forth in the Land Division Act,

MCL 560.101 et seq., their mislabeled quiet-title claim

The Mahlers filed a motion partially concurring in the City’s motion

for summary disposition. The Mahlers agreed with the City’s contention

that the Wiggins’ claims should fail as a matter of law because the

drainage project at issue in this case had been approved by the Genesee

County Drain Commissioner.

542 291 M

ICH

532 [Feb

should be dismissed. And with regard to the Wiggins’

trespass and nuisance claims, the City argued that they

should be dismissed on the basis of governmental

immunity. The City asserted that by constructing the

drain to divert excess surface water from the Heckman

and Mahler parcels, it had been engaged in the exercise

of a governmental function within the meaning of § 7 of

the governmental tort liability act (GTLA), MCL

691.1407(1). The City also pointed out that the Michi-

gan Supreme Court had abolished the common-law

trespass-nuisance exception to governmental immunity

in Pohutski v City of Allen Park, 465 Mich 675; 641

NW2d 219 (2002).

The Wiggins responded to defendants’ motions for

summary disposition and requested summary disposi-

tion in their favor pursuant to MCR 2.116(I)(2). The

primary argument raised by the Wiggins was that

although the storm-detention easement encumbering

their property required them to accept the surface

waters that naturally flowed into the area of the ease-

ment, defendants had possessed no right to construct

the drain at issue in this case, which artificially in-

creased and concentrated the amount of water flowing

onto the Wiggins parcel.

The Wiggins pointed out that the Heckmans’ and

Mahlers’ motions addressed the issue of “negligence”

only, but that no negligence claim had ever been pleaded

against any of the defendants. The Wiggins noted that

the Mahlers and Heckmans had not even addressed the

trespass, nuisance, and quiet-title claims in their mo-

tions for partial summary disposition. With regard to

the City’s motion for summary disposition, the Wiggins

argued that the drainage pipe constructed by the City

was not within the scope of the preexisting storm-

detention easement. The Wiggins acknowledged that

2011] W

IGGINS V

URTON

543

the area encumbered by the storm-detention easement

was required to receive the natural surface runoff from

the neighboring parcels, but argued that none of the

defendants was authorized to artificially increase and

concentrate the flow of surface water through the use of

pipes or drains. The Wiggins contended that, in light of

the plain language creating the easement on the final

plat of Maplewood Meadows No. 1, “[t]he scope of the

private easement for storm detention was . . . limited to

the accommodation of surface water matriculating to

the detention basin by only natural means and

courses.” The Wiggins also asserted that the City had

improperly failed to comply with the Drain Code, MCL

280.1 et seq., when it undertook to construct the drain

at issue in this case. The Wiggins noted that they had no

objection to the Heckmans and Mahlers obtaining some

type of drainage relief for their flooding problems in

general, but asserted that the City had provided drain-

age relief for the Heckmans and Mahlers in an unlawful

manner by diverting all the surface water from the

Heckman and Mahler properties to the Wiggins prop-

erty.

In reply, and without any supporting authority, the

City argued that the storm-detention easement encum-

bering the Wiggins parcel fell within the definition of

“drain” contained in § 3 of the Drain Code, MCL 280.3.

The City also contended that the storm-sewer plan for

Maplewood Meadows No. 1 supported its position that

the storm-detention easement was required to accept

all surface-water runoff from the Heckman and Mahler

parcels. The City pointed out that, at the time Maple-

wood Meadows No. 1 was initially platted, the plattors

apparently intended to drain all surface waters col-

lected in the area of the storm-detention easement into

the subdivision’s storm sewers. The City submitted a

map of the originally proposed storm-sewer plan for

544 291 M

ICH

532 [Feb

Maplewood Meadows No. 1.

The City contended that

the subdivision’s storm-sewer plan, which envisioned a

drain leading from the area of the storm-detention

easement to the storm sewers, belied the Wiggins’

argument that the installation of a drainage system was

not within the scope of the storm-detention easement.

The City then argued that the drain at issue in this

case had not increased the historical and natural flow of

water from the Heckman and Mahler parcels to the

Wiggins parcel. The City contended that, in the state of

nature, all surface waters had historically flowed from

the Heckman and Mahler parcels to the Wiggins prop-

erty. According to the City, however, the construction of

Maplewood Meadows No. 1 had somehow altered this

historical and natural flow of surface waters, causing

the surface waters to stop flowing from the Heckman

and Mahler parcels, and instead to begin collecting on

those parcels. The City argued that the installation of

the drain leading to the Wiggins parcel had merely

reestablished the historical and natural flow of surface

waters into the area of the storm-detention easement,

and that “from a hydrologic standpoint, the surface

water from the Heckman and Mahler properties is

currently going where it historically went.”

The circuit court held a hearing on the parties’

motions for summary disposition. The City argued that

it was entitled to governmental immunity with respect

to the Wiggins’ claims. The circuit court noted that the

Wiggins had also pleaded an eminent-domain claim,

and that the City would not be entitled to immunity

with regard to this takings claim. The court looked to

It is not clear whether the proposed storm sewers were ever con-

structed in Maplewood Meadows No. 1 or whether the storm-detention

easement was ever connected to the subdivision’s storm sewers as

apparently intended by the plattors.

2011] W

IGGINS V

URTON

545

the dictionary definitions of the words “drain” and

“retain” and observed that the two words had two

different meanings. The court then remarked that it

had read the Drain Code, but that the words “retain”

and “retention” are not contained in the statute. The

court questioned aloud whether the drain at issue in

this case was governed by the Drain Code or within the

jurisdiction of the county drain commissioner. The

City’s attorney commented that the drain commis-

sioner had approved the creation of the storm-detention

easement at the time he signed off on the final plat of

Maplewood Meadows No. 1.

Therefore, according to

the City, the storm-detention easement was part of the

subdivision’s overall drainage system and under the

jurisdiction of the drain commissioner.

The circuit court posed a question to counsel for the

City:

What about the argument that...[w]hen the [d]eten-

tion easement was created, that it dealt with a natural flow,

that which by the hands of Mother Nature and God would

run into that basin, whereas now by man’s act a pipe has

been run into the basin creating more water than originally

designed...?

The City’s attorney responded, “[F]irst of all, according

to the contour map of the area prior to the construction

of this subdivision, the water’s going now where it

naturally went; so, from a historical perspective, [the

water] has not been diverted.” The court agreed that

“[t]here is a natural flow that’s suggested in that

topographical map,” but noted that the Wiggins parcel

“accepted that natural flow and everything was appro-

priate and understood until suddenly a pipe was put in.

The county drain commissioner or governing body of the municipality

must give final approval before the plat of a subdivision may be finalized

and recorded. MCL 560.192.

546 291 M

ICH

532 [Feb

Now, if the flow increases two or three years after [the

Wiggins] move onto the property, that suggests that it’s

not the natural flow.” The City’s attorney responded

that the Wiggins could not prove that the flow of water

onto their property had been increased by the installa-

tion of the drain.

The Mahlers’ attorney argued that her clients could

not be held liable for trespass or nuisance because they

had not entered upon the Wiggins property. She argued

that the Mahlers had merely authorized or consented to

the City’s construction of the drain. She did not believe

that this was sufficient to create liability on the part of

her clients. The Heckmans’ attorney made essentially

the same argument.

The Wiggins’ attorney argued that “when this ease-

ment was established there was never any intention

that there was to be a drain installed where they

ultimately installed it[.]” The Wiggins’ attorney went

on to argue that

when the drain commissioner...approved the plat and

when the people from the City of Burton approved the plat,

the intention was, in fact, that this private easement for

storm detention would accommodate the natural flow of

water through the drainage system which is... evident

within the plat itself.

The Wiggins’ attorney fully admitted that his clients’

parcel was encumbered by the “private easement for

storm detention” shown on the final plat of Maplewood

Meadows No. 1, but argued that the City and other

defendants were attempting to unilaterally expand the

scope of the easement from a storm-water-detention

easement to a drainage easement. Counsel argued that

such a unilateral expansion of the scope of the easement

was impermissible and not within the contemplation of

the parties at the time the easement was created. The

2011] W

IGGINS V

URTON

547

Wiggins’ attorney concluded that “the existence of a

detention [easement] does not give rise to the authority

to install a drain.”

After entertaining the attorneys’ arguments, the

circuit court announced that it had discovered § 75 of

the Drain Code, MCL 280.75, during its research. The

court read aloud from MCL 280.75, which provides in

pertinent part:

If all persons whose lands would be traversed or dam-

aged by the proposed drain or drains shall not have

executed a release of the right of way, and all damages on

account thereof, within 60 days after the entry of the first

order of determination, the commissioner shall, as soon as

practicable, make application to the probate court of the

county in which such lands are situated, for the appoint-

ment of 3 special commissioners, who shall be disinterested

resident freeholders of the county, but not of the township

or townships affected by such drain, to determine the

necessity for the taking of private property for the use and

benefit of the public, and the just compensation to be made

therefor.

The circuit court asked the parties whether they had

followed the procedures set forth in MCL 280.75. The

parties confirmed that they had not. Counsel for the

City asserted that the procedures set forth in MCL

280.75 were inapplicable to this case. She also asserted

that because of Thomas Heckman’s repeated com-

plaints at city council meetings, the City was required

to act quickly to resolve the drainage problem. Counsel

suggested that the City would not have had time to

follow the statutory procedures set forth in MCL

280.75. But the circuit court maintained that the pro-

cedures set forth in MCL 280.75 should have been

followed before the drain was installed. The circuit

court took the motions under advisement.

548 291 M

ICH

532 [Feb

On June 29, 2009, the circuit court issued an opinion

and order (1) granting summary disposition in favor of

the Mahlers and the Heckmans, (2) denying the Wig-

gins’ motion for summary disposition, and (3) dismiss-

ing all claims against the City “without prejudice so

that the [Wiggins] and the City . . . can follow the

procedure...laid out in MCL 280.75.” With regard to

the Heckmans and Mahlers, the circuit court deter-

mined that their only affirmative act had been a request

for drainage relief from the City. The court noted that

neither the Heckmans nor the Mahlers had personally

trespassed on the Wiggins parcel. The court ruled that

“merely requesting relief from a city is not sufficient to

rise to the level of trespass or nuisance,” and therefore

dismissed all claims against the Heckmans and Mahl-

ers. With respect to the City, the circuit court assumed

for the sake of argument that the storm detention

easement encumbering the Wiggins parcel was “in

actuality a drain easement.” However, relying on § 6 of

the Drain Code, MCL 280.6, and Toth v Waterford Twp,

87 Mich App 173; 274 NW2d 7 (1978), the court

observed that a local unit of government may not

significantly expand the scope of an existing drainage

easement. The court noted that there appeared to

remain a factual dispute concerning whether the City

had the authority to expand the scope of the existing

easement.

Nevertheless, the court went on to dispose of the

Wiggins’ claims against the City on the basis of MCL

280.75, even though that statute had never been raised

by the parties. The court stated that MCL 280.75

“specifically lays out the procedure an aggrieved land-

owner is to use in a circumstance such as ours[.]” In the

end, the court “dismisse[d] the case against the City

without prejudice so that the [Wiggins] and the City can

follow the procedure as laid out in MCL 280.75.”

2011] W

IGGINS V

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549

The Wiggins timely filed a claim of appeal following

the circuit court’s ruling. The City has filed a claim of

cross-appeal.

II. STANDARDS OF REVIEW

The scope and extent of an easement is generally a

question of fact that is reviewed for clear error on

appeal. Blackhawk Dev Corp v Village of Dexter, 473

Mich 33, 40; 700 NW2d 364 (2005); Dobie v Morrison,

227 Mich App 536, 541-542; 575 NW2d 817 (1998).

Similarly, whether the scope of an easement has been

exceeded is generally a question of fact. See Bang v

Forman, 244 Mich 571, 576; 222 NW 96 (1928). How-

ever, when reasonable minds could not disagree con-

cerning these issues, they should be decided by the

court on summary disposition as a matter of law. See

Babula v Robertson, 212 Mich App 45, 54; 536 NW2d

834 (1995). This Court reviews de novo a circuit court’s

grant or denial of a motion for summary disposition.

Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817

(1999).

III. CLAIMS AGAINST THE HECKMANS AND MAHLERS

PERTAINING TO THE PHYSICAL DRAIN ITSELF

The Wiggins first challenge the circuit court’s dis-

missal of their claims against the Heckmans and Mahl-

ers pertaining to the construction and continuing pres-

ence of the drain itself. The Wiggins argue that the

installation and physical presence of the drainpipe on

their property constituted a trespass and a nuisance.

The Wiggins assert that by authorizing or ratifying the

City’s installation of the drain, the Heckmans and

Mahlers committed the torts of trespass and nuisance.

The Wiggins also assert that the Heckmans and Mahl-

550 291 M

ICH

532 [Feb

ers, through their actions, have asserted property inter-

ests adverse to their own. We consider these arguments

in turn.

A. TRESPASS AND NUISANCE

The Wiggins first contend that the installation, con-

struction, and continuing presence of the physical

drainpipe itself constitute a trespass and nuisance for

which the Heckmans and Mahlers are liable. We agree

that the installation and continuing presence of the

drain constitute a trespass, but we find that they do not

constitute a nuisance.

The language of an express easement is interpreted

according to rules similar to those used for the inter-

pretation of contracts. See Little v Kin, 468 Mich 699,

700; 664 NW2d 749 (2003); Anglers of the AuSable, Inc

v Dep’t of Environmental Quality, 283 Mich App 115,

129-130; 770 NW2d 359 (2009), rev’d in part on other

grounds 488 Mich 69 (2010). Accordingly, in ascertain-

ing the scope and extent of an easement, it is necessary

to determine the true intent of the parties at the time

the easement was created. Hasselbring v Koepke, 263

Mich 466, 477-478; 248 NW 869 (1933). Courts should

begin by examining the plain language of the easement,

itself. Little, 468 Mich at 700. If the language of the

easement is clear, “it is to be enforced as written and no

further inquiry is permitted.” Id. A party’s use of the

servient estate “must be confined strictly to the pur-

poses for which [the easement] was granted or re-

served,” Delaney v Pond, 350 Mich 685, 687; 86 NW2d

816 (1957), and “must be confined to the plain and

unambiguous terms of the easement,” Dyball v Lennox,

260 Mich App 698, 708; 680 NW2d 522 (2004). The

scope of an easement encompasses only those burdens

2011] W

IGGINS V

URTON

551

on the servient estate that were contemplated by the

parties at the time the easement was created. Bang, 244

Mich at 576.

The language used in a plat is subject to similar rules of

interpretation. “When interpreting...plats, Michigan

courts seek to effectuate the intent of those who created

them.” T omecek v Bavas, 482 Mich 484, 490-491; 759

NW2d 178 (2008) (opinion by K

ELLY

, J.). “The intent of

the plattors must be determined from the language they

used and the surrounding circumstances.” Thies v How-

land, 424 Mich 282, 293; 380 NW2d 463 (1985). As

occurred in the present case, an easement may be created

by a subdivision plat. Jeffery v Lathrup, 363 Mich 15,

21-22; 108 NW2d 827 (1961); see also Kirchen v Remenga,

291 Mich 94, 108; 288 NW 344 (1939); 1 Cameron,

Michigan Real Property Law (3d ed), § 6.7, p 220. The

designation of an easement on a properly recorded plat

“ha[s] all the force and effect of an express grant.”

Kirchen, 291 Mich at 109; see also Forge v Smith, 458

Mich 198, 209 n 29; 580 NW2d 876 (1998).

As noted earlier, and as shown on the final plat of

Maplewood Meadows No. 1, the easement that encum-

bers portions of the Wiggins parcel and the four other

adjacent lots is described as a “PRIVATE EASEMENT

FOR STORM DETENTION.” In other words, according

to the plain language of the plat, the scope of the

easement is limited to storm detention. We conclude

that the language of this easement is clear and unam-

biguous, Little, 468 Mich at 700, and does not include

within its scope the installation of the drain or drain-

pipe at issue in this case. The language of the storm-

detention easement plainly limits the permissible uses

of the servient estate to the retention or detention of

waters that naturally flow to it as a result of storms.

And while it could be argued that the surface water

552 291 M

ICH

532 [Feb

diverted to the servient estate by way of the drain

naturally falls on the Heckman and Mahler parcels as a

result of storms, the text of the easement simply does

not include any language relating to the installation of

pipes or drains. See Schmidt v Eger, 94 Mich App 728,

738-739; 289 NW2d 851 (1980). If the plattors had

desired to include within the scope of the easement the

installation of pipes or drains leading onto the servient

estate, they certainly could have included language to

that effect in the easement at the time it was created.

However, they did not. See Jackson Community College

Classified & Technical Ass’n, MESPA v Jackson Com-

munity College, 187 Mich App 708, 714; 468 NW2d 61

(1991); Montgomery v Taylor & Gaskin, Inc, 47 Mich

App 269, 275; 209 NW2d 472 (1973).

We find support for our conclusion in Schmidt.In

that case, a drainage ditch carried surface-water runoff

from the dominant estate onto the servient estate.

Schmidt, 94 Mich App at 730-731. When the proprietors

of the servient estate announced their intention to

grade and level the portion of their property where the

drain was located, the owner of the dominant estate

sued, arguing among other things that the servient

estate was encumbered by a drainage easement. Id.at

731, 738. The owner of the dominant estate pointed out

that the instruments conveying the servient estate had

contained “general language conveying [the servient

estate] subject to easements reserved to the [the owner

of the dominant estate]....”Id. at 738. He argued that

the express easements created by these instruments

included within their scope the right to maintain the

drainage ditch and to continue draining water onto the

servient estate. Id.

However, the Schmidt Court rejected this argument,

noting that the language of the express easements had

2011] W

IGGINS V

URTON

553

not even addressed the drain at issue in that case. Id.at

738-739. Indeed, the Court observed that while the

instruments conveying the servient estate had “listed

several specifically defined easements that were re-

served to [the owner of the dominant estate],” the

instruments of conveyance had “made no mention of

the drain which is the subject of this appeal.” Id.

Accordingly, the Schmidt Court held that the continued

operation and maintenance of the drainage ditch ex-

ceeded the scope of the easements.

As in Schmidt, the express storm-detention ease-

ment in this case “made no mention of the drain” in

question. Id. Nor did the storm detention easement

contain any other language relating to the issue of

drainage in general. The plattors of Maplewood Mead-

ows No.1 certainly could have included language relat-

ing to the issue of drainage in the text of the easement

at the time it was created, but they did not. As ex-

plained previously, use of the servient estate “must be

confined strictly to the purposes for which [the ease-

ment] was granted or reserved,” Delaney, 350 Mich at

687, and “must be confined to the plain and unambigu-

ous terms of the easement,” Dyball, 260 Mich App at

708. Moreover, the scope of an easement encompasses

only those burdens on the servient estate that were

within the contemplation of the parties at the time the

easement was created. Bang, 244 Mich at 576. We

conclude that it is beyond factual dispute that the

physical drain and drainpipe at issue in this case

exceeded the scope of the “PRIVATE EASEMENT FOR

STORM DETENTION” as delimited by the plain lan-

guage of the easement itself. See Schmidt, 94 Mich App

at 738-739.

The right to exclude others from one’s property and

the right to enjoy one’s property are two distinct

554 291 M

ICH

532 [Feb

possessory interests, “violations of which give rise to

the distinct causes of action respectively of trespass and

nuisance.” Adams v Cleveland-Cliffs Iron Co, 237 Mich

App 51, 58-59; 602 NW2d 215 (1999). “Historically,

‘[e]very unauthorized intrusion upon the private pre-

mises of another is a trespass....’”Id. at 60 (alter-

ation in original), quoting Giddings v Rogalewski, 192

Mich 319, 326; 158 NW 951 (1916). “Because a trespass

violated a landholder’s right to exclude others from the

premises, the landholder could recover at least nominal

damages even in the absence of proof of any other

injury.” Adams, 237 Mich App at 60. “Recovery for

nuisance, however, traditionally required proof of ac-

tual and substantial injury. Further, the doctrine of

nuisance customarily called for balancing the distur-

bance complained of against the social utility of its

cause.” Id. In other words, “ ‘[t]respass was liability-

producing regardless of the degree of harm the invasion

caused, while nuisance required substantial harm as a

liability threshold.’ ” Id. at 60 n 9 (citation omitted).

In certain jurisdictions, “it has become difficult to

differentiate between trespass and nuisance” because

“the line between trespass and nuisance has become

‘wavering and uncertain.’ ” Id. at 64 (quotation marks

and citations omitted). However, this Court has recog-

nized a desire to “preserve the separate identities of

trespass and nuisance.” Id. at 65. Thus, in Michigan,

“[r]ecovery for trespass to land...is available only

upon proof of an unauthorized direct or immediate

intrusion of a physical, tangible object onto land over

which the plaintiff has a right of exclusive possession.”

Id. at 67. “Once such an intrusion is proved, the tort has

been established, and the plaintiff is presumptively

entitled to at least nominal damages.” Id. In contrast,

“[w]here the possessor of land is menaced by noise,

vibrations, or ambient dust, smoke, soot, or fumes, the

2011] W

IGGINS V

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555

possessory interest implicated is that of use and enjoy-

ment, not exclusion, and the vehicle through which a

plaintiff normally should seek a remedy is the doctrine

of nuisance.” Id. Unlike in the case of trespass, “[t]o

prevail in nuisance, a possessor of land must prove

significant harm resulting from the defendant’s unrea-

sonable interference with the use or enjoyment of the

property.” Id.

Turning to the present case, because the installation

of the drain on the Wiggins parcel exceeded the scope of

the storm-detention easement, it was necessarily “un-

authorized.” See id. Moreover, the installation of the

drain was unquestionably a “direct...intrusion of a

physical, tangible object” onto the Wiggins parcel. Id.

Therefore, the installation of the drain on the Wiggins

parcel constituted a trespass to property. Id.; see also

Schadewald v Brulé, 225 Mich App 26, 40; 570 NW2d

788 (1997) (observing that “[a]ctivities by the owner of

the dominant estate that go beyond the reasonable

exercise of the use granted by the easement may

constitute a trespass to the owner of the servient

estate”). And because the drain at issue in this case

constituted a tangible object, its presence on the Wig-

gins parcel was actionable in trespass rather than in

nuisance. Adams, 237 Mich App at 69. In sum, it is

beyond genuine factual dispute that the continuing

presence of the drain itself—the installation of which

plainly exceeded the scope of the storm-detention

easement—constituted a trespass but not a nuisance

under Michigan law.

Having concluded that the installation and presence

of the drain on the Wiggins parcel constituted a con-

tinuing trespass (but not a nuisance) under Michigan

law, it is necessary to determine whether the Heckmans

and Mahlers may be held liable for this trespass and

556 291 M

ICH

532 [Feb

what form of relief is available to the Wiggins. For the

reasons that follow, we conclude that the Heckmans and

Mahlers are liable in trespass for the unauthorized

installation of the drain on the Wiggins parcel. The

Wiggins may collect at least nominal damages from the

Heckmans and Mahlers, and are additionally entitled to

injunctive relief enjoining the Heckmans’ and Mahlers’

continuing trespass.

The circuit court observed that the Heckmans and

Mahlers had not constructed the drain themselves and

had not personally set foot on the Wiggins parcel.

Instead, the circuit court noted, the Heckmans and

Mahlers simply requested drainage relief from the City.

The court ruled that “merely requesting relief from a

city is not sufficient to rise to the level of trespass,” and

therefore granted summary disposition in favor of the

Heckmans and Mahlers with respect to the trespass

claim. We conclude that this ruling was in error. The

Heckmans’ and Mahlers’ requests for drainage relief

from the City, and subsequent authorization for the

City or its agents to construct the drain in question,

were sufficient acts to give rise to trespass liability. “It

is a well-established principle of law that all persons

who instigate, command, encourage, advise, ratify, or

condone the commission of a trespass are cotrespassers

and are jointly and severally liable as joint tortfeasors.”

Kratze v Indep Order of Oddfellows, Garden City Lodge,

190 Mich App 38, 43; 475 NW2d 405 (1991) (Kratze I),

rev’d in part on other grounds 442 Mich 136 (1993); see

also Oyler v Fenner, 264 Mich 519, 521; 250 NW 296

(1933); 87 CJS, Trespass, § 28, pp 744-745. It is beyond

factual dispute that the Heckmans and Mahlers specifi-

cally requested drainage relief from the City and either

authorized or subsequently ratified the installation of

the drain and drainpipe by the City or its agents. This

conduct by the Heckmans and Mahlers was sufficient to

2011] W

IGGINS V

URTON

557

constitute the intentional tort of trespass. Kratze I, 190

Mich App at 43. Moreover, the circuit court wholly

disregarded the fact that the drain, once constructed

and installed, belonged to the Heckmans and Mahlers

rather than to the City. Indeed, as noted previously, the

Heckmans and Mahlers signed documents with the City

acknowledging that after the City had constructed and

installed the drain leading from their respective prop-

erties to the Wiggins parcel, the drainage project would

“belong solely to the [Heckmans and Mahlers] and will

be the [Heckmans’ and Mahlers’] responsibility to

maintain/repair.” We conclude that the circuit court

erred by failing to grant summary disposition in favor of

the Wiggins with regard to their trespass claim against

the Heckmans and Mahlers pertaining to the physical

presence of the drain itself.

Having determined that both the Heckmans and

Mahlers are liable in trespass for the installation and

continuing physical presence of the drain, we next

consider what relief is available to the Wiggins vis-à-vis

the Heckmans and Mahlers. It is well settled that a

plaintiff who establishes the tort of trespass may re-

cover money damages from the trespassing defendants.

As noted earlier, once the tort of trespass has been

established, “the plaintiff is presumptively entitled to at

least nominal damages.” Adams, 237 Mich App at 67.

This is “because the violation of the right to exclude

causes cognizable injury in and of itself....”Id.at72.

Moreover, beyond the presumed, nominal damages, a

plaintiff who establishes a trespass “may recover any

additional, actual damages” as well. Id.

In addition to money damages, a plaintiff may be

entitled to injunctive relief to enjoin a continuing tres-

pass. It is true that “ ‘[i]njunctive relief is an extraor-

dinary remedy that issues only when justice requires,

558 291 M

ICH

532 [Feb

there is no adequate remedy at law, and there exists a

real and imminent danger of irreparable injury,’ ” and

that “[g]ranting injunctive relief is within the sound

discretion of the trial court.” Kernen v Homestead Dev

Co, 232 Mich App 503, 509; 591 NW2d 369 (1998),

quoting Jeffrey v Clinton Twp, 195 Mich App 260,

263-264; 489 NW2d 211 (1992). The general rule “ ‘is

that the court will balance the benefit of an injunction

to plaintiff against the inconvenience and damage to

defendant, and grant an injunction or award damages

as seems most consistent with justice and equity under

all the circumstances of the case.’ ” Kratze v Indep

Order of Oddfellows, 442 Mich 136, 143 n 7; 500 NW2d

115 (1993) (Kratze II), quoting Hasselbring, 263 Mich at

480. But “a court is not bound to engage in a balancing

of the relative hardships and equities if the encroach-

ment resulted from an intentional or wilful act....”

Kratze II, 442 Mich at 145. This Court has held that

when a trespass “is of a permanent or continuous

character,” injunction “is an appropriate remedy.”

Schadewald, 225 Mich App at 40. Thus, for example,

when certain defendants committed a trespass and

exceeded the scope of their easement by impermissibly

installing a sewer line across the servient estate, this

Court affirmed the circuit court’s permanent injunction

prohibiting the defendants’ use of the sewer line and

requiring them to remove it. Soergel v Preston, 141

Mich App 585, 589-590; 367 NW2d 366 (1985). Simi-

larly, in Schadewald, 225 Mich App at 39-40, the

defendants committed a trespass by utilizing an ease-

ment encumbering the servient estate for a use that

was not contemplated by the parties at the time the

easement was created. This Court held that by expand-

ing their use of the easement, the defendants had

committed a “continuing trespass for which damages

would be difficult to measure”; accordingly, the Court

2011] W

IGGINS V

URTON

559

remanded the matter to the circuit court with instruc-

tions to enter an injunction prohibiting the defendants’

impermissible use of the easement. Id.at40.

With respect to the drain at issue in the present case,

it is clear that the Wiggins are entitled to at least

nominal damages, and additionally any actual damages,

resulting from the Heckmans’ and Mahlers’ trespass. It

is also clear that the drain, which has already been

installed on the Wiggins parcel, constitutes a trespass of

a permanent and continuing nature. See id. Accord-

ingly, the Wiggins are entitled to the entry of injunctive

relief enjoining the Heckmans’ and Mahlers’ use of the

drain and requiring the Heckmans and Mahlers to

remove that portion of the drain that touches or en-

croaches on the Wiggins property.

In sum, we reverse the circuit court’s grant of sum-

mary disposition in favor of the Heckmans and Mahlers

with respect to the Wiggins’ trespass claim pertaining

to the drain itself and remand for entry of judgment in

favor of the Wiggins on this claim. On remand, the

circuit court shall enter an injunction enjoining the

Heckmans’ and Mahlers’ use of the drain and requiring

the Heckmans and Mahlers to remove that portion of

the drain that touches or encroaches on the Wiggins

parcel.

See id.; see also Soergel, 141 Mich App at

589-590. The court shall also conduct further proceed-

ings to determine the appropriate amount of damages

owed by the Heckmans and Mahlers as a result of this

trespass.

We reiterate that the Heckmans and Mahlers—and not the City—are

the owners of the trespassing drain. As explained previously, the Heck-

mans and Mahlers signed documents with the City acknowledging that

after the City had constructed and installed the drain, the drainage

project would “belong solely to the [Heckmans and Mahlers] and will be

the [Heckmans’ and Mahlers’] responsibility to maintain/repair.”

560 291 M

ICH

532 [Feb

B. DECLARATORY RELIEF

We also conclude that the circuit court erred by

failing to consider the Wiggins’ request for declaratory

relief as it related to the Heckmans and Mahlers.

Although it has become commonplace in this state for a

plaintiff to assert a request for declaratory relief as a

separately labeled cause of action within his or her

complaint, this is technically improper because “de-

claratory relief is a remedy, not a claim.” Mettler Wal-

loon, LLC v Melrose Twp, 281 Mich App 184, 223; 761

NW2d 293 (2008); see also MCR 2.605(A). Nevertheless,

a complaint must be read as a whole, and it is well

settled that this Court will look beyond the mere

procedural labels used in the pleadings. Adams v Ad-

ams (On Reconsideration), 276 Mich App 704, 710-711;

742 NW2d 399 (2007). It is clear that, although the

Wiggins’ request for declaratory relief was incorrectly

pleaded as a separate cause of action rather than as a

prayer for relief, the Wiggins intended their request for

declaratory relief to encompass the Heckmans and

Mahlers in addition to the City. A careful examination

of the complaint indicates that the Wiggins requested

Declaratory Relief determining and declaring that no De-

fendant named in this action possesses any right, title, or

interest in the Wiggins Property that would allow or

authorize any Defendant to enter upon Plaintiffs’ private

property and excavate land, soil and turf and effect the

installation of a drainage pipe....[Emphasis added.]

Therefore, the circuit court erroneously stated in its

opinion and order that “[t]he Mahler and Heckman

Defendants are not parties to the [Wiggins’] request-

. . . for Declaratory Relief....”Wereverse this portion

of the circuit court’s opinion and order, and remand for

the entry of appropriate declaratory relief with respect

to the Wiggins’ underlying claims. On remand, the

2011] W

IGGINS V

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561

circuit court shall declare at a minimum that the

installation and construction of the drain exceeded the

scope of the storm-detention easement encumbering

the Wiggins parcel, see Schmidt, 94 Mich App at 738-

739, and that the Heckmans and Mahlers committed a

trespass by authorizing or ratifying the City’s construc-

tion of the drain.

C. QUIET TITLE

We also conclude that the circuit court properly

declined to consider the Wiggins’ quiet-title claim as it

related to the Heckmans and Mahlers. Our review of

the complaint has established that the Wiggins asserted

their quiet-title claim against the City only, and not

against the Heckmans and Mahlers. The circuit court

was therefore correct when it stated in its opinion and

order that “[t]he Mahler and Heckman Defendants are

not parties to the [Wiggins’] request to quiet title....”

Because the quiet-title claim was never asserted against

the Heckmans and Mahlers, the circuit court did not err

by failing to consider the claim in relation to those

defendants.

IV. CLAIMS AGAINST THE HECKMANS AND MAHLERS

PERTAINING TO THE FLOW OF WATER

The Wiggins do not merely argue that the installa-

tion and continuing physical presence of the drain

constituted a trespass or a nuisance. They also argue

with equal force that the increased flow of water onto

their land through the drain—wholly separate and

apart from the presence of the drain itself—constitutes

a trespass and a nuisance. Many of the same rules

applicable to our earlier discussion are also applicable

here. However, there are also different rules of law,

562 291 M

ICH

532 [Feb

governing the matter of surface-water flow, which now

become relevant to our analysis.

A. TRESPASS AND NUISANCE

Although the flow of water onto the Wiggins parcel

through the drain in question did not constitute a

nuisance, we conclude that there remained a genuine

issue of material fact concerning whether the flow of

water constituted an actionable trespass.

It has been “the settled law of this State” for more

than a century that the natural flow of surface waters

from the upper, dominant estate forms a “natural

servitude” that encumbers the lower, servient estate.

Carley v Jennings, 131 Mich 385, 387; 91 NW 634

(1902); Leidlein v Meyer, 95 Mich 586, 589; 55 NW 367

(1893); see also O’Connor v Hogan, 140 Mich 613, 624;

104 NW 29 (1905); Terlecki v Stewart, 278 Mich App

644, 661; 754 NW2d 899 (2008); Reed v Soltys, 106 Mich

App 341, 349; 308 NW2d 201 (1981). The owner of the

lower, servient estate must bear this natural servitude,

and is bound by law to accept the natural flow of surface

waters from the upper, dominant estate. Bennett v

Eaton Co, 340 Mich 330, 335-336; 65 NW2d 794 (1954);

Launstein v Launstein, 150 Mich 524, 526; 114 NW 383

(1907); Cranson v Snyder, 137 Mich 340, 343; 100 NW

674 (1904); Lewallen v City of Niles, 86 Mich App 332,

334; 272 NW2d 350 (1978). It is similarly well settled,

however, that “the owner of the upper estate has no

right to increase the amount of water that would

otherwise naturally flow onto the lower estate.”

Kernen, 232 Mich App at 512. For instance, it has been

said that the owner of the upper estate “cannot, by

artificial drains or ditches, collect the waters of...his

premises, and cast them in a body upon the proprietor

below him to his injury.” Gregory v Bush, 64 Mich 37,

2011] W

IGGINS V

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563

42; 31 NW 90 (1887). Nor may the owner of the upper

estate “concentrate [the surface] water, and pour it

through an artificial ditch or drain, in unusual quanti-

ties and greater velocity, upon an adjacent proprietor.”

Peacock v Stinchcomb, 189 Mich 301, 307; 155 NW 349

(1915); see also Miller v Zahn, 264 Mich 306, 307; 249

NW 862 (1933). Stated another way, “the owner of the

dominant estate may not, by changing conditions on his

land, put a greater burden on the servient estate by

increasing and concentrating the volume and velocity of

the surface water.” Lewallen, 86 Mich App at 334.

By way of example, in Schmidt, 94 Mich App at 738,

the trial testimony established that “as a result of the

development of [the dominant estate], the water runoff

onto [the servient estate] was greatly increased, per-

haps as much as six times the natural flow.” The

Schmidt Court stated the general rule:

It is clear that the owner of the lower or servient estate

must accept surface water from the upper or dominant

estate in its natural flow, and equally clear that the owner

of the dominant estate may not require the owner of the

servient estate to accept a greater runoff by increasing or

concentrating the flow. [Id.]

Because the owner of the dominant estate did not have

an easement that permitted him to cast such “greatly

increased” amounts of surface water upon the servient

estate, this Court determined that he had exceeded the

scope of the natural servitude that encumbered the

servient estate and therefore affirmed the circuit

Although these common-law rules were originally developed for use in

rural settings, see Village of Trenton v Rucker, 162 Mich 19, 22-23; 127

NW 39 (1910); Boyd v Conklin, 54 Mich 583, 588-589; 20 NW 595 (1884),

it now appears settled that the same rules apply within the boundaries of

municipalities as well, see Steele v City of Ionia, 209 Mich 595, 599; 177

NW 259 (1920); see also Robinson v Wyoming Twp, 312 Mich 14, 24-25;

19 NW2d 469 (1945).

564 291 M

ICH

532 [Feb

court’s entry of judgment in favor of the proprietors of

the servient estate. Id. at 738-739.

As these rules make clear, the Wiggins parcel is

required to accept the surface-water runoff that natu-

rally flows to it from the neighboring dominant estates.

After all, as noted earlier, the natural flow of surface

waters from the upper, dominant estate forms a “natu-

ral servitude” which arises by operation of law and

encumbers the lower, servient estate. Carley, 131 Mich

at 387. But, as in Schmidt, the dominant estates in the

present case have no right to cast upon the Wiggins

parcel more surface water than would naturally flow to

it. Upon examining the plain language of the storm-

detention easement, it is clear that the easement merely

requires the servient estate to retain those waters that

naturally flow to it as a result of “storm[s],” i.e.,

precipitation. As our Supreme Court has observed,

“surface waters are commonly understood to be waters

on the surface of the ground, usually created by rain or

snow ....”Fenmode, Inc v Aetna Cas & Surety Co, 303

Mich 188, 192; 6 NW2d 479 (1942) (emphasis added).

Giving a commonsense reading to the language of the

storm-detention easement at issue in this case, see

Holley v Schneider, 422 Mich 248, 253; 369 NW2d 857

(1985), it is apparent that the easement requires only

that the servient estate detain or retain those surface

waters that naturally flow to it from the dominant

estates.

The Wiggins assert that by authorizing the installa-

tion of the drain at issue in this case, the Heckmans and

Mahlers have increased the amount of water which

would otherwise naturally flow onto the servient estate,

and have therefore exceeded the scope of both the

express storm-detention easement and the implied

natural servitude encumbering the Wiggins parcel.

2011] W

IGGINS V

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565

While it is certainly true that the drain casts some

water onto the servient estate (after all, this was the

purpose for which the drain was constructed), it is not

clear whether the amount of water cast onto the Wig-

gins parcel through the drain exceeds the natural

amount of surface water that has otherwise historically

flowed to the property. While it is true that the City

submitted to the circuit court a hydrogeologic contour

map that purportedly showed the historical flow of

surface waters in the area of Maplewood Meadows No.

1, this documentary evidence was not conclusive. Nor

was the evidence given by the City’s engineer or the

affidavit of an employee of the drain commissioner’s

office conclusive on this matter. We conclude that there

remained a genuine issue of material fact concerning

whether the amount of water cast onto the Wiggins

parcel through the drain exceeds the amount of surface

water that has otherwise naturally and historically

flowed to the Wiggins parcel from the dominant estates.

The circuit court will be required to conduct further

proceedings on remand with respect to this issue.

If it is determined on remand that the flow of surface

water onto the Wiggins parcel has been materially

increased beyond that which has historically and natu-

rally flowed to it from the dominant estates, this will

constitute an independent trespass to the Wiggins par-

cel. It is beyond dispute that a defendant’s unautho-

rized act of causing excess waters to flow onto another

person’s property constitutes a trespass. See Herro v

Chippewa Co Rd Comm’rs, 368 Mich 263, 265, 272; 118

NW2d 271 (1962); Davis v Frankenlust Twp, 118 Mich

494, 496; 76 NW 1045 (1898). This is because the

unauthorized flooding of another person’s land consti-

tutes “an unauthorized direct or immediate intrusion of

a physical, tangible object onto land over which the

plaintiff has a right of exclusive possession.” Adams,

566 291 M

ICH

532 [Feb

237 Mich App at 67. As noted previously, once such an

unauthorized intrusion is proved, the tort of trespass

has been established, and “the plaintiff is presump-

tively entitled to at least nominal damages.” Id.For

these same reasons, the flow of excess waters onto the

Wiggins parcel will not be actionable in nuisance be-

cause water is a physical, tangible object. See id.

And as stated earlier, “[i]t is a well-established prin-

ciple of law that all persons who instigate, command,

encourage, advise, ratify, or condone the commission of

a trespass are cotrespassers and are jointly and sever-

ally liable as joint tortfeasors.” Kratze I, 190 Mich App

at 43. Thus, if it is determined following remand that

the flow of surface water onto the Wiggins parcel has

been materially increased beyond that which naturally

flowed to it from the dominant estates, the Heckmans

and Mahlers will be liable for this independent trespass

onto the Wiggins parcel, and the Wiggins will be en-

titled to at least nominal damages from the Heckmans

and Mahlers. Adams, 237 Mich App at 67. The Wiggins

will also be entitled to injunctive relief. Perry v Reed,

147 Mich 146, 147; 110 NW 529 (1907) (stating that

“ ‘[i]t is...well settled that where one person does

damage to another by flooding his lands . . . the party

aggrieved may enjoin him by a decree in chancery, and

in the same case have damages assessed for his in-

jury’ ”) (citation omitted).

B. DECLARATORY RELIEF

In addition to seeking declaratory relief with respect

to the installation and continuing physical presence of

the drain itself, the Wiggins also sought declaratory

relief with respect to the alleged increased flow of water

onto their property. Consequently, if it is determined

following remand that the flow of surface water onto

2011] W

IGGINS V

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567

the Wiggins’ property has been materially increased

beyond that which naturally flowed to it from the

dominant estates, the circuit court shall declare that

this increased flow exceeds the scope of the express

storm-detention easement and the natural servitude

encumbering the Wiggins parcel, and shall declare that

the Heckmans and Mahlers committed an additional

trespass by causing or authorizing this increased flow of

water.

V. CLAIMS AGAINST THE CITY

The Wiggins also argue that the circuit court erred by

dismissing their claims against the City and by relying

on the statutory procedures set forth in § 75 of the

Drain Code, MCL 280.75. We agree that the circuit

court erred by relying on MCL 280.75. We also agree

that the circuit court erred by dismissing the Wiggins’

inverse-condemnation claim, at least in part. However,

with respect to the Wiggins’ tort claims against the City,

we remand for a determination whether the City is

entitled to governmental immunity.

A. THE DRAIN CODE

As explained previously, the circuit court ultimately

dismissed all claims against the City “without prejudice

so that the [Wiggins] and the City can follow the

procedure...laid out in MCL 280.75.” MCL 280.75

provides in its entirety:

If all persons whose lands would be traversed or dam-

aged by the proposed drain or drains shall not have

executed a release of the right of way, and all damages on

account thereof, within 60 days after the entry of the first

order of determination, the [drain] commissioner shall, as

soon as practicable, make application to the probate court

of the county in which such lands are situated, for the

568 291 M

ICH

532 [Feb

appointment of 3 special commissioners, who shall be

disinterested resident freeholders of the county, but not of

the township or townships affected by such drain, to

determine the necessity for the taking of private property

for the use and benefit of the public, and the just compen-

sation to be made therefor. Such application shall be in

writing, and shall set forth:

First, The fact that a petition for a drain was made and

when, filing with said court a certified copy of such peti-

tion, also giving the route, survey and specifications of said

drain as set forth in the first order of determination;

Second, That an order determining the necessity for

such drain was made by the commissioner or drainage

board, giving the time when such order was made, in

accordance with such route, survey and specification, as

above set forth;

Third, (1) The several descriptions or tracts of land with

the names of the owner or owners of every such tract who

have refused or neglected to execute a release of right of

way and damages in any way arising or incident to the

opening or maintaining the said proposed drain (2) the

several descriptions or tracts of land owned by any minor,

incompetent person, unknown persons or nonresidents of

the township or townships, the execution of a release of

right of way and damages for which have been neglected or

refused; (3) it shall not be necessary to set forth in said

application to the probate court the names of the several

owners nor the description of the several tracts or parcels

of land liable to an assessment for benefits, in case the

drain applied for should be located and established, except

those who have not released the right of way and through

whose lands the drain passes; nor shall the same be

included in the citation issued from the probate court.

MCL 280.75 is contained in chapter 4 of the Drain

Code, MCL 280.71 et seq. Reading the statutes con-

tained in chapter 4 together and in harmony with one

another, see People v Stephan, 241 Mich App 482,

497-498; 616 NW2d 188 (2000), it is clear that the

2011] W

IGGINS V

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569

procedures set forth in MCL 280.75 apply only to

proposed drains and not to drains that are already in

existence. See MCL 280.73. Moreover, it is clear that the

procedures set forth in MCL 280.75 do not come into

play until “[a]fter a drainage district has been estab-

lished,” MCL 280.71, after the drain commissioner has

“endeavor[ed] to secure from the owners of each parcel

or tract of land to be traversed or damaged by the

proposed drain or drains an easement or release of right

of way,” MCL 280.73, after “a petition for [the] drain”

has been filed, MCL 280.75, and after “an order deter-

mining the necessity for such drain” has been made by

the drain commissioner or drainage board, MCL 280.75.

None of these statutory prerequisites was ever realized

in the instant case, and we conclude that the relevant

procedures set forth in MCL 280.75 consequently never

came into play.

In addition, it is unclear to us how the City and the

Wiggins would be able to follow the procedures set forth

in the Drain Code at this point in time when the proper

authorities never sought to establish the drain under

the Drain Code in the first instance. In essence, the

parties would have to “start over” even though the

drain is already in existence. The circuit court’s deter-

mination that the parties should effectively start over

and follow the relevant procedures set forth in MCL

280.75 does not strike us as a logical result. We conclude

that the better course is to remand this matter to the

circuit court with instructions to enter an injunction

requiring the Heckmans and Mahlers to remove the

drain. If the City then wishes to reestablish the drain

after the drain is removed pursuant to this injunction,

the parties will be better positioned to follow the

procedures set forth in the Drain Code for establishing

and constructing new drains.

570 291 M

ICH

532 [Feb

In sum, we conclude that the circuit court erred by

dismissing all claims against the City on the basis of the

procedures set forth in MCL 280.75. Under the particu-

lar circumstances of this case, the statutory procedures

of MCL 280.75 do not apply.

B. INVERSE CONDEMNATION

We next conclude that there remained a genuine

issue of material fact concerning whether the City’s

installation of the drain itself constituted a taking of

private property without just compensation. Both the

United States and Michigan constitutions prohibit the

taking of private property for public use without just

compensation. US Const, Am V; Const 1963, art 10, § 2;

Dorman v Clinton Twp, 269 Mich App 638, 645; 714

NW2d 350 (2006). However, “[n]o precise formula ex-

ists” for determining whether a governmental invasion

or intrusion constitutes a taking of private property.

Hinojosa v Dep’t of Natural Resources, 263 Mich App

537, 548; 688 NW2d 550 (2004). Instead, several factors

must be considered. Id. “Further, a plaintiff alleging

inverse condemnation must prove a causal connection

between the government’s action and the alleged dam-

ages.” Id. It has been said that “[a] plaintiff alleging a

de facto taking or inverse condemnation must prove

‘that the government’s actions were a substantial cause

of the decline of his property’s value’ and also ‘establish

the government abused its legitimate powers in affir-

mative actions directly aimed at the plaintiff’s prop-

erty.’ ” Id., quoting Heinrich v Detroit, 90 Mich App 692,

700; 282 NW2d 448 (1979). “While there is no exact

formula to establish a de facto taking, there must be

some action by the government specifically directed

toward the plaintiff’s property that has the effect of

2011] W

IGGINS V

URTON

571

limiting the use of the property.” Charles Murphy, MD,

PC v Detroit, 201 Mich App 54, 56; 506 NW2d 5 (1993).

It is clear that the construction and installation of

the drain itself was an affirmative act by the City or its

agents, specifically directed toward the Wiggins’ prop-

erty, which had the effect of limiting the use of the

Wiggins parcel. Id. What is not clear is how much

damage was caused by the City’s installation of the

drain and whether the City’s actions were “ ‘a substan-

tial cause of the decline of [the Wiggins parcel’s]

value.’ ” Hinojosa, 263 Mich App at 548, quoting Hein-

rich, 90 Mich App at 700. Accordingly, on remand, the

circuit court will be required to conduct further pro-

ceedings concerning the Wiggins’ inverse-

condemnation claim to (1) determine whether the in-

stallation of the drain itself constituted a de facto

taking at all (i.e., whether the construction and instal-

lation of the drain was a substantial cause of a decline

in the Wiggins parcel’s value) and (2) if it did constitute

a de facto taking, determine the proper amount of

compensation payable to the Wiggins by the City.

In contrast, we conclude that any material increase

in the flow of water through the drain—even if estab-

lished on remand—could not have constituted a taking

as a matter of law. It is well settled that a governmental

actor may cause a taking of private property by flooding

the property or diverting excess surface water onto the

property. Peterman v Dep’t of Natural Resources, 446

Mich 177, 189 n 16; 521 NW2d 499 (1994); see also

Herro, 368 Mich at 275. However, as noted earlier,

ownership of the drain and drainage system was trans-

ferred to the Heckmans and Mahlers immediately upon

the City’s completion of the project. In other words,

because any flooding of the Wiggins parcel necessarily

occurred after the drainage project was completed, the

572 291 M

ICH

532 [Feb

City no longer owned the drain at the time. “[I]t is

elementary that an inverse condemnation action—

being based upon the taking or damaging of property

for public use without just compensation—requires

state action and, therefore, cannot be asserted against

private parties.” Bach v Butte Co, 215 Cal App 3d 294,

307; 263 Cal Rptr 565 (1989). Thus, while the City may

well be liable in inverse condemnation for its construc-

tion and installation of the physical drain itself, the City

can have no inverse-condemnation liability arising out

of the flow of water through the privately owned drain.

C. GOVERNMENTAL TORT IMMUNITY

The circuit court did not reach the issue of the City’s

liability on the Wiggins’ remaining tort claims, choosing

instead to dismiss these claims against the City without

prejudice on the basis of MCL 280.75. We have already

concluded that the circuit court’s reliance on MCL

280.75 was erroneous.

The City argues that even if the circuit court improp-

erly invoked the Drain Code to dismiss the Wiggins’

claims, it is entitled to governmental immunity. As the

City points out, our Supreme Court has made clear that

the tort immunity granted to governmental entities is

broad, and that there is no trespass-nuisance exception

to governmental immunity. Pohutski, 465 Mich at 689-

690. In addition, none of the six statutory exceptions to

governmental immunity appears to apply in this case.

See MCL 691.1407(1); Lash v Traverse City, 479 Mich

180, 195; 735 NW2d 628 (2007). However, as the Wig-

gins correctly observe, the question of the City’s entitle-

ment to governmental immunity was not decided by the

circuit court, and issues not decided below are generally

considered unpreserved for appellate review. Can-

delariavBCGenContractors, Inc, 236 Mich App 67,

2011] W

IGGINS V

URTON

573

83; 600 NW2d 348 (1999). We decline to address this

issue for the first time on appeal. Id.

On remand, the circuit court will be required to

consider whether the City is entitled to governmental

immunity with respect to the Wiggins’ tort claims.

Specifically, the circuit court will be required to

decide whether governmental immunity insulates the

City only from the Wiggins’ claims for money dam-

ages, see Hadfield v Oakland Co Drain Comm’r, 430

Mich 139, 152 n 5; 422 NW2d 205 (1988) (opinion by

RICKLEY

, J.) (stating that “[g]enerally, we do not view

actions seeking only equitable relief, such as abate-

ment or injunction, as falling within the purview of

governmental immunity”), overruled on other

grounds by Pohutski, 465 Mich at 678-679, or whether

governmental immunity bars all of the Wiggins’ tort

claims against the City, including those seeking only

injunctive, declaratory, or other equitable relief, see

Jackson Co Drain Comm’r v Village of Stockbridge,

270 Mich App 273, 284; 717 NW2d 391 (2006) (hold-

ing that “[t]he plain language of the [governmental

immunity] statute does not limit the immunity from

tort liability to liability for [money] damages”). The

circuit court should also consider whether our Su-

preme Court’s decision in Lash has had any effect on

the abovementioned holding of Jackson Co Drain

Comm’r. See Lash, 479 Mich at 196 (noting that

although the plaintiff could not enforce certain statu-

tory requirements by maintaining a cause of action

for money damages against the governmental defen-

dant, he “could enforce the statute by seeking injunc-

tive relief...ordeclaratory relief”).

Naturally, the City is not entitled to governmental immunity with

respect to the Wiggins’ inverse-condemnation claim. Electro-Tech, Inc v

H F Campbell Co, 433 Mich 57, 91 n 38; 445 NW2d 61 (1989).

574 291 M

ICH

532 [Feb

VI. CONCLUSION

We affirm the circuit court’s dismissal of the Wiggins’

nuisance claim against the Heckmans and Mahlers. We

also affirm the circuit court’s determination that the

Heckmans and Mahlers were not parties to the Wiggins’

quiet-title claim.

However, we reverse the circuit court’s dismissal of

the Wiggins’ trespass claim against the Heckmans and

Mahlers. By authorizing or ratifying the City’s instal-

lation of the drain itself, the Heckmans and Mahlers

committed a trespass as a matter of law. Moreover,

there remained a genuine issue of material fact con-

cerning whether the alleged increased flow of water

onto the Wiggins parcel constituted an additional tres-

pass by the Heckmans and Mahlers. We also reverse the

circuit court’s determination that the Heckmans and

Mahlers were not parties to the Wiggins’ request for

declaratory relief.

On remand, the circuit court shall declare that the

Heckmans and Mahlers trespassed on the Wiggins parcel

as a matter of law by authorizing or ratifying the City’s

installation of the drain. The court shall also take addi-

tional evidence and conduct further proceedings concern-

ing (1) whether the alleged increased flow of water onto

the Wiggins parcel constituted an additional trespass by

the Heckmans and Mahlers, and (2) the appropriate

amount of damages owed by the Heckmans and Mahlers

for trespassing on the Wiggins parcel. At a minimum, the

court shall award the Wiggins nominal damages for all

trespasses committed by the Heckmans and Mahlers,

shall enter injunctive relief directing the Heckmans and

Mahlers to remove the drain, and shall grant other

declaratory relief consistent with this opinion.

We reverse the circuit court’s dismissal of the Wig-

2011] W

IGGINS V

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575

gins’ claims against the City on the basis of MCL

280.75. The circuit court erred as a matter of law by

relying on the Drain Code to dispose of those claims.

There remained a genuine issue of material fact con-

cerning whether the City’s installation of the drain

itself constituted a taking of the Wiggins’ private prop-

erty without just compensation. On remand, the circuit

court shall take additional evidence and conduct fur-

ther proceedings concerning the Wiggins’ inverse-

condemnation claim consistent with this opinion. The

circuit court shall also consider and decide whether the

City is entitled to governmental immunity with respect

to the Wiggins’ tort claims against it. If the court

determines that the City is entitled to governmental

immunity with respect to the Wiggins tort claims, it

shall dismiss the claims on that basis. On the other

hand, if the court determines that any of the tort claims

against the City (such as those seeking only injunctive

or declaratory relief) are not barred by governmental

immunity, it shall conduct further proceedings concern-

ing those surviving claims.

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. We do

not retain jurisdiction. No costs under MCR 7.219, a

public question having been involved.

576 291 M

ICH

532 [Feb

KIMMY v MELLING

Docket No. 298700. Submitted January 4, 2011, at Lansing. Decided

February 10, 2011 at 9:00 a.m.

Plaintiff, Charla French McKimmy, moved in the Jackson Circuit

Court for a change of domicile of herself and her two boys from

Jackson, Michigan to Minot, North Dakota. The boys’ father,

Patrick Melling (defendant), opposed the move. He argued that

plaintiff’s proposed parenting-time schedule that would give him

uninterrupted time with the boys for 10 weeks during the

summer—in contrast with the existing schedule of every weekend

including one overnight—would adversely affect his bond with the

boys because the rest of the year he would have very little physical

contact with them. The court, Susan E. Beebe, J., denied the

motion, finding that the boys were too young for contact via

telephone and the Internet to be meaningful and that weekly

physical contact with defendant was better for the boys than a

long, uninterrupted period. Plaintiff appealed.

The Court of Appeals held:

A parent of a child whose custody is governed by court order

may change a legal residence of the child to a location that is more

than 100 miles from the child’s legal residence at the time of the

commencement of the action in which the order is issued if the

court after complying with MCL 722.31(4), permits the change of

residence. Before allowing the change, the court must be satisfied

that it is possible to order a modification of the parenting-time

schedule in a manner that can provide an adequate basis for

preserving and fostering the parental relationship between the

child and each parent. MCL 722.31(4)(c). The modified parenting-

time schedule need not be equal with the current visitation plan,

and the correct inquiry under factor (c) is not which plan—current

or proposed—is the best plan but whether the proposed parenting-

time schedule provides a realistic opportunity to preserve and

foster the parental relationship previously enjoyed by the nonre-

locating parent. The trial court erroneously interpreted the law

and improperly compared the two schedules to determine which

was better instead of considering whether the schedule proposed

2011] M

IMMY V

ELLING

577

by plaintiff provided a realistic opportunity or an adequate basis to

preserve and foster the relationship defendant currently shared

with the two boys.

Vacated and remanded.

ARENT AND

HILD —

HILD

USTODY —

HANGES IN

HILD

’

EGAL

ESIDENCE —

ACTORS

A parent of a child whose custody is governed by court order may

change a legal residence of the child to a location that is more than

100 miles from the child’s legal residence at the time of the

commencement of the action in which the order is issued if the

court, after complying with MCL 722.31(4), which sets forth

factors to be considered in a change of domicile, permits the

change of residence; before allowing the change, the court must be

satisfied that it is possible to order a modification of the parenting-

time schedule in a manner that can provide an adequate basis for

preserving and fostering the parental relationship between the

child and each parent; the modified parenting-time schedule need

not be equal with the current visitation plan, and the correct

inquiry under factor (c) is not which plan (the current plan or the

proposed plan) is the best plan, but whether the proposed

parenting-time schedule provides a realistic opportunity to pre-

serve and foster the parental relationship previously enjoyed by

the nonrelocating parent.

Alane & Chartier, P.L.C. (by Natalie Alane), for

plaintiff.

White & Hotchkiss, PLLC (by Kenneth R. Hotchkiss),

for defendant.

Before: H

OEKSTRA

, P.J., and C

AVANAGH

and B

ORRELLO

JJ.

URIAM

. Plaintiff appeals by leave granted the

trial court’s order denying her motion for change of

domicile. Because we conclude that the trial court

misapplied factor (c) of the statutory change of domicile

factors, MCL 722.31(4), we vacate the trial court’s order

and remand for new findings on factor (c).

578 291 M

ICH

577 [Feb

I. BASIC FACTS

Plaintiff and defendant are the parents of two young

boys. They share joint legal custody of the boys, while

plaintiff maintains sole physical custody. Defendant has

parenting time every weekend from 9:00 a.m. on Sat-

urday until 7:00 p.m. on Sunday. He consistently exer-

cises his parenting time, and his bond with the boys is

“[e]xceptional.”

In October 2009, plaintiff moved the trial court for

permission to change the boys’ domicile from Jackson,

Michigan, to Minot, North Dakota, where her fiancé

lived. At the evidentiary hearing, plaintiff testified that

she had since married her fiancé and that they had

purchased a four-bedroom house in a safe and family-

oriented neighborhood in Minot. Plaintiff proposed a

modified parenting-time schedule for defendant, where

the boys would stay with defendant over the summer

and on alternate holidays. Plaintiff also suggested that

defendant could have regular contact with the boys over

the telephone and the Internet. Defendant acknowl-

edged that under plaintiff’s proposed parenting time

schedule, he would have substantially more overnights

with the boys, but he believed that regular physical

contact with the boys was necessary to maintain his

bond with them.

The trial court denied plaintiff’s motion for change of

domicile. The trial court concluded that a move to North

Dakota had the capacity to improve the quality of life for

plaintiff and the two boys and that plaintiff’s desire to

move to North Dakota was not to defeat defendant’s

parenting time. However, it concluded that any benefits of

the move were outweighed by the “potentially very dire”

consequences on the relationship between defendant and

the two boys. In reaching this conclusion, the trial court

2011] M

IMMY V

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579

found the ages of the boys, three and four years, to be

particularly relevant. It stated:

And at three and four years old you look for a lot of

guidance and a lot of caring from your parents. And

certainly at three and four years old you don’t have a cell

phone; you probably, these probably aren’t kids that want

to spend a whole heck of a lot of time on the phone; and

they probably don’t have a really long attention span when

it comes down to sitting down and Skyping with dad or, or

having that kind of relationship. And so much of preserving

and fostering a relationship with younger children is sim-

ply being there and performing those tasks with them, and

being as [defendant’s attorney] referenced, being there for,

you know, certain events that they go through and, and

being able to be there and having the capacity and ability to

be there to give them a hug, and, and that’s not to say that

you can’t be an exceptional parent over the phone or via

technology. I think — I, the court just thinks that with,

with the children’s ages it’s probably a little more difficult

to say that telephone contact and email contact and Skyp-

ing is gonna be as meaningful as, for a three and four year

old, as having them spending time weekly in the physical

presence of their dad.

The trial court recognized that defendant would have

“nonstop parenting time” during the summer under

plaintiff’s proposed parenting-time schedule, but noted

that “the cost” would be defendant having only very

limited contact with the children during the remaining

nine months of the year. It thought there was “a real

possibility” that defendant’s relationship with the two

boys would suffer; it was unsure how well the relation-

ship could be maintained if the boys were not in the

physical presence of defendant each week.

II. ANALYSIS

On appeal, plaintiff argues that the trial court im-

properly analyzed factor (c) of the statutory change of

580 291 M

ICH

577 [Feb

domicile factors, MCL 722.31(4). Specifically, plaintiff

maintains that the trial court fixated too heavily on the

frequency of the visits under her proposed parenting-

time schedule and whether the two boys could effec-

tively use technology, while failing to consider whether

awarding defendant extended periods of parenting time

would preserve and foster the parent-child relationship.

We agree that the trial court erred in its application of

factor (c), but for a reason different than that argued by

plaintiff.

A. STANDARD OF REVIEW

We review for an abuse of discretion a trial court’s

ultimate decision whether to grant a motion for

change of domicile. Brown v L oveman, 260 Mich App

576, 600; 680 NW2d 432 (2004). However, the trial

court’s findings of fact regarding the statutory

change of domicile factors are reviewed under the

great weight of the evidence standard. Id. Under this

standard, we may not substitute our judgment on

questions of fact unless the facts clearly preponderate

in the opposite direction. Rittershaus v Rittershaus,

273 Mich App 462, 472-473; 730 NW2d 262 (2007).

But where a trial court’s findings of fact may have

been influenced by an incorrect view of the law, our

review is not limited to clear error. Beason v Beason,

435 Mich 791, 804-805; 460 NW2d 207 (1990).

B. APPLICABLE LAW

“[A] parent of a child whose custody is governed by

court order shall not change a legal residence of the

child to a location that is more than 100 miles from the

child’s legal residence at the time of the commencement

of the action in which the order is issued.” MCL

722.31(1). However, the prohibition in subsection (1)

2011] M

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581

does not apply if the other parent consents to the move

or the court, after complying with subsection (4), per-

mits the change of residence. MCL 722.31(2). MCL

722.31(4) provides:

Before permitting a legal residence change otherwise

restricted by subsection (1), the court shall consider each of

the following factors, with the child as the primary focus in

the court’s deliberations:

(a) Whether the legal residence change has the capacity

to improve the quality of life for both the child and the

relocating parent.

(b) The degree to which each parent has complied with,

and utilized his or her time under, a court order governing

parenting time with the child, and whether the parent’s

plan to change the child’s legal residence is inspired by that

parent’s desire to defeat or frustrate the parenting time

schedule.

court permits the legal residence change, it is possible to

order a modification of the parenting time schedule and

other arrangements governing the child’s schedule in a

manner that can provide an adequate basis for preserving

and fostering the parental relationship between the child

and each parent; and whether each parent is likely to

comply with the modification.

(d) The extent to which the parent opposing the legal

residence change is motivated by a desire to secure a

financial advantage with respect to a support obligation.

(e) Domestic violence, regardless of whether the vio-

lence was directed against or witnessed by the child.

[

]

The party requesting the change of domicile has the

burden of establishing by a preponderance of the evi-

dence that the change is warranted. Mogle v Scriver,

241 Mich App 192, 203; 614 NW2d 696 (2000).

The trial court stated that factors (d) and (e) had no bearing on its

decision.

582 291 M

ICH

577 [Feb

Implicit in factor (c) is an acknowledgement that

weekly visitation is not practicable when parents are

separated by state borders. Brown, 260 Mich App at

603. Indeed, when the domicile of a child is changed,

the new visitation plan need not be equal with the old

visitation plan, as such equality is not possible.

Anderson v Anderson, 170 Mich App 305, 310; 427

NW2d 627 (1988). The new visitation plan “only need

provide a realistic opportunity to preserve and foster

the parental relationship previously enjoyed” by the

nonrelocating parent. Mogle, 241 Mich App at 204.

This Court has previously opined that “[p]erhaps”

extended periods of visitation will “foster, not

hinder,” a closer parent-child relationship. Anderson,

170 Mich App at 311. In applying factor (c), a trial

court should consider the financial feasibility of the

new visitation plan and the ages of the children, Grew

v Knox, 265 Mich App 333, 341; 694 NW2d 772 (2005);

Brown, 260 Mich App at 605, as well as the use of

modern technology, Rittershaus, 273 Mich App at 468.

The separation between a parent and a child “can be

diminished by the use of modern communication

technology.” Id.

C. APPLICATION

In this case, the trial court, as required by statute,

MCL 722.31(4), kept the two boys as its primary focus

in applying factor (c). It also gave consideration to many

of the relevant factors identified in caselaw. The trial

court considered the boys’ young ages and found their

ages to be particularly relevant. It considered the use of

modern technology but found that the boys, because of

their young ages, would not derive much benefit from

communicating with defendant over e-mail, telephone,

2011] M

IMMY V

ELLING

583

and Skype.

In addition, the trial court acknowledged

that under plaintiff’s proposed parenting-time sched-

ule, defendant would have 10 weeks of nonstop parent-

ing time during the summer.

However, in applying factor (c), the trial court failed

to recognize that the parenting-time schedule proposed

by plaintiff need not be equal with the current visita-

tion plan. Anderson, 170 Mich App at 310. The trial

court, in considering whether modern technology could

diminish the separation between defendant and the two

boys, stated, “[I]t’s probably a little more difficult to say

that telephone contact and email contact and Skyping is

gonna be as meaningful as... having them spending

time weekly in the physical presence of [defendant].”

The trial court essentially compared plaintiff’s pro-

posed parenting-time schedule with the current visita-

tion plan, and found that the current plan was in the

best interests of the two boys. But the inquiry under

factor (c) is not which plan, the current visitation plan

or the proposed schedule, is the best plan. Rather, the

inquiry is only whether the proposed parenting-time

schedule provides “a realistic opportunity to preserve

and foster the parental relationship previously enjoyed”

by the nonrelocating parent. Mogle, 241 Mich App at

204. Thus, the trial court should have considered

whether the parenting-time schedule proposed by plain-

tiff provided “a realistic opportunity” or “an adequate

basis,” MCL 722.31(4)(c), to preserve and foster the

relationship defendant currently shared with the two

boys, without regard to whether plaintiff’s proposed

schedule was equally beneficial to the two boys as the

current visitation plan. As a result, we are constrained

to conclude that the trial court’s decision was improp-

Skype is an online software application that allows users to make both

voice and video contact with other users by means of the Internet.

584 291 M

ICH

577 [Feb

erly influenced by an erroneous interpretation of factor

(c). Beason, 435 Mich at 804-805.

Consequently, we vacate the trial court’s order deny-

ing plaintiff’s motion for change of domicile and re-

mand. On remand, the trial court shall apply its find-

ings of fact on factor (c) by determining whether

plaintiff’s proposed parenting-time schedule provides

“a realistic opportunity to preserve and foster the

parental relationship” defendant enjoys with the two

boys without comparing the current and proposed visi-

tation plans. In accordance with those findings, the trial

court shall issue a new order granting or denying

plaintiff’s motion.

Vacated and remanded for proceedings not inconsis-

tent with this opinion. We do not retain jurisdiction.

2011] M

IMMY V

ELLING

585

PRINS v MICHIGAN STATE POLICE

Docket No. 293251. Submitted November 3, 2010, at Lansing. Decided

February 15, 2011, at 9:00 a.m.

Nancy A. Prins brought an action in the Ionia Circuit Court against

the Michigan State Police and David Fedewa, an agent of the state

police, asserting a violation of the Freedom of Information Act

(FOIA), MCL 15.231 et seq., occurred when defendants denied her

request for records regarding a traffic stop. Defendants moved for

summary disposition on the ground that the 180-day period of

limitation had expired, barring plaintiff’s action. The court, Su-

zanne Hoseth-Kreeger, J., agreed with defendants that the period

of limitation began running the date defendants wrote the letter

denying plaintiff’s request, not the date the letter was mailed, and

that the suit was untimely. Plaintiff appealed.

The Court of Appeals held:

MCL 15.235(2)(b) requires that a public body respond to a

request for public records either by granting it or by issuing a

written notice to the requesting person denying the request. If a

public body denies a request for information, under MCL

15.240(1)(b) the requesting person may commence an action in the

circuit court to compel the public body’s disclosure of the public

records within 180 days after a public body’s determination to

deny a request. The public body must undertake an affirmative

step reasonably calculated to bring the denial notice to the

attention of the requesting party; merely creating a document

denying a record request is insufficient to start the running of the

180-day time limit. The trial court erred in concluding that the

period of limitation began running when the denial letter was

written. The 180-day period began on the date the letter was

mailed, and plaintiff’s suit was therefore timely.

Reversed.

IMITATION OF

CTIONS —

REEDOM OF

NFORMATION

CT —

ERIODS OF

IMITA-

TIONS —

OMMENCEMENT

The Freedom of Information Act requires that a public body respond

to a request for public records either by granting it or by issuing a

written notice to the requesting person denying the request; if a

586 291 M

ICH

586 [Feb

public body denies a request for information, the requesting

person may commence an action in the circuit court to compel the

public body’s disclosure of the public records within 180 days after

a public body’s determination to deny a request; the public body

must undertake an affirmative step reasonably calculated to bring

the denial notice to the attention of the requesting party; merely

creating a document denying a record request is insufficient to

start the running of the 180-day time limit (MCL 15.235[2][b],

15.240[1][b]).

Bruce A. Lincoln for Nancy Ann Prins.

Bill Schuette, Attorney General, B. Eric Restuccia,

Solicitor General, and Thomas Quasarano, Assistant

Attorney General, for the Michigan State Police.

Before: C

AVANAGH

,P.J., and H

OEKSTRA

and G

LEICHER

JJ.

LEICHER

, J. In this case arising under Michigan’s

Freedom of Information Act (FOIA), MCL 15.231 et

seq., we consider how to calculate the time limit for

filing a circuit court action after a public body has

denied access to a public record. The precise issue

presented is whether the 180-day period of limitation

begins to run when a public body writes a letter denying

access to information, or when the public body places

the denial letter in the mail. We hold that mailing

triggers the running of the 180-day period of limitation,

and reverse the circuit court’s grant of summary dispo-

sition to defendants.

On May 4, 2008, Michigan State Police trooper James

Yeager stopped a vehicle driven by plaintiff Nancy

Prins. Trooper Yeager issued Prins’s passenger, Jack

Elliott, a citation for not wearing a seat belt. In a letter

dated July 22, 2008, Prins submitted a FOIA request to

the state police seeking, among other things, “[a]ny

recording or other electronic media taken by Trooper

2011] P

RINS V

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TATE

OLICE

587

James Yeager (officer no 987) on May 4th, 2008 between

the hours of 10:00 am to 12:00 pm of me while traveling

upon Morrison Lake Rd and Grand River Rd, within

Boston Twp., Ionia County, Michigan.” In a letter dated

July 26, 2008, a Saturday, the state police denied Prins’s

request, explaining, “Any in car video that may have

existed is no longer available. Only kept 30 days [and]

reused.” The envelope enclosing the letter to Prins bore

a postmark of July 29, 2008, a Tuesday.

On October 29, 2008, Elliott appeared at a hearing to

contest his seat belt citation, and the prosecutor pro-

duced the videotape depicting the May 4, 2008, traffic

stop. On January 26, 2009, Prins filed in the Ionia

Circuit Court a complaint seeking damages for defen-

dants’ violation of the FOIA.

The state police moved for

summary disposition on the ground that the applicable

period of limitation, MCL 15.240(1)(b), barred Prins’s

FOIA action. The state police asserted that the 180-day

period began to run on July 26, 2008, the date the police

authored the denial letter, and that Prins untimely filed

her complaint 184 days later. Prins countered that the

act of mailing the denial letter triggered the 180-day

time limit, rendering her complaint timely.

In a bench

opinion, the circuit court granted defendants summary

disposition.

The FOIA contemplates that “[i]f a person asserting the right to”

access a public record “prevails in an action commenced under this

section,” the court “shall award reasonable attorneys’ fees, costs, and

disbursements.” MCL 15.240(6). If the court determines that “the public

body has arbitrarily and capriciously” violated the FOIA, “the court shall

award, in addition to any actual or compensatory damages, punitive

damages in the amount of $500.00 to the person seeking the right to

inspect or receive a copy of a public record.” MCL 15.240(7).

Prins filed her complaint 181 days after the postmarked date of July

29, 2008. But because the 180th day fell on a Sunday, we consider Prins’s

complaint to have been filed within 180 days. MCR 1.108(1).

588 291 M

ICH

586 [Feb

We review de novo the circuit court’s summary-

disposition ruling. Gillie v Genesee Co Treasurer, 277

Mich App 333, 344; 745 NW2d 137 (2007). A court may

grant summary disposition under MCR 2.116(C)(7)

when a period of limitation bars a claim. “Whether a

period of limitations applies to preclude a party’s pur-

suit of an action constitutes a question of law that we

review de novo.” Detroit v 19675 Hasse, 258 Mich App

438, 444; 671 NW2d 150 (2003). The burden of proving

that a claim is time-barred rests on the party asserting

the defense. Kuebler v Equitable Life Assurance Society

of the United States, 219 Mich App 1, 5; 555 NW2d 496

(1996).

We also review de novo legal issues of statutory

construction. In re Petition of Attorney General for

Investigative Subpoenas, 282 Mich App 585, 590; 766

NW2d 675 (2009). “Well-established principles guide

this Court’s statutory construction efforts.” Bloomfield

Charter Twp v Oakland Co Clerk, 253 Mich App 1, 10;

654 NW2d 610 (2002). We begin by examining the

specific statutory language under consideration, bear-

ing in mind that

[w]hen faced with questions of statutory interpretation,

our obligation is to discern and give effect to the Legisla-

ture’s intent as expressed in the words of the statute. We

give the words of a statute their plain and ordinary

meaning, looking outside the statute to ascertain the

Legislature’s intent only if the statutory language is am-

biguous. Where the language is unambiguous, we presume

that the Legislature intended the meaning clearly

expressed—no further judicial construction is required or

permitted, and the statute must be enforced as written. [Id.

(citations and quotation marks omitted).]

When ascertaining legislative intent, we read the entire

act and interpret a particular word in one statutory

section only “after due consideration of every other

2011] P

RINS V

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589

section so as to produce, if possible, a harmonious and

consistent enactment as a whole.” Grand Rapids v

Crocker, 219 Mich 178, 182-183; 189 NW 221 (1922).

This Court considers both the plain meaning of critical

words or phrases comprising the statute and their

placement and purpose in the statutory scheme. People

v Blunt, 282 Mich App 81, 84; 761 NW2d 427 (2009).

Two relevant subsections of the FOIA control our

analysis. The first establishes that “[a] written notice

denying a request for a public record in whole or in part

is a public body’s final determination to deny the

request or portion of that request.” MCL 15.235(4). The

second states that if a public body denies a request for

information, the requesting person may “[c]ommence

an action in the circuit court to compel the public body’s

disclosure of the public records within 180 days after a

public body’s determination to deny a request.” MCL

15.240(1)(b). The state police assert that the 180-day

period of limitation commences on the date a public

body writes a denial letter. Prins counters that the

denial of a request encompasses both writing a letter

and taking reasonable steps to communicate the denial

to the requesting party.

Read in isolation, MCL 15.240(1)(b) appears to sug-

gest that the 180-day period commences with “a public

body’s final determination to deny a request.” But to

ascertain the Legislature’s intent, we must construe the

FOIA as a whole, harmonizing its provisions. Far-

rington v Total Petroleum, Inc, 442 Mich 201, 209; 501

NW2d 76 (1993). The FOIA commands that a public

body respond to a request for public records either by

granting it, or by “[i]ssuing a written notice to the

requesting person denying the request.” MCL

15.235(2)(b) (emphasis added). Black’s Law Dictionary

(7th ed), p 836, sets forth the following pertinent

590 291 M

ICH

586 [Feb

definitions of the term “issue”: “To be put forth offi-

cially[.]...Tosend out or distribute officially[.]” Web-

ster’s New World Dictionary, Second College Edition

(1970), defines “issue,” in relevant part, as “to let out;

discharge[;] — to publish; put forth and circulate; give

out publically or officially.”

These definitions imply that a public body cannot

fulfill its statutory obligation to issue a notice merely by

creating a document denying a record request. Rather,

the Legislature intended that the public body under-

take an affirmative step reasonably calculated to bring

the denial notice to the attention of the requesting

party. Thus, a public body has not satisfied the statute’s

notice requirement until it “sends out” or officially

circulates its denial of a public record request. This

construction of the FOIA prevents a public body’s

inadvertent failure to timely mail a denial letter from

unduly shortening the 180-day period of limitation.

Because the FOIA mandated that the state police trans-

mit its July 26, 2008, letter to Prins, we hold that the

denial of her request occurred on July 29, 2008, when

the state police issued the denial by placing it in the

mail. Prins had 180 days from July 29, 2008, to com-

mence a circuit court action, and thus her lawsuit

qualified as timely filed. Consequently, we reverse the

circuit court’s grant of summary disposition to defen-

dants, and remand for further proceedings.

We lastly note the state police’s appellate contention

that the circuit court should have granted summary

disposition on an alternate ground. The state police

maintains that Prins did not timely respond to its

demand for a reply to the affirmative defenses set forth

in its answer, as mandated by MCR 2.110(B)(5). Accord-

ing to the state police, the circuit court should have

deemed the affirmative defenses admitted. However, we

2011] P

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591

reject the state police’s reading of the relevant court

rules, on the basis of the following pertinent analysis of

this Court in McCracken v Detroit, 291 Mich App 522,

528-529; 806 NW2d 337 (2011):

Based on the plain language of the court rules defining

pleadings and responsive pleadings, plaintiffs were not

required to respond to defendants’ affirmative defenses,

even though defendants demanded a response in them.

MCR 2.110(B) exclusively defines pleadings requiring a

response and affirmative defenses are not included. Ac-

cordingly, plaintiffs’ failure to file a response to defendants’

affirmative defenses did not amount to a concession re-

garding the truth of the affirmative defenses under MCR

2.111(E)(1). Alternatively stated, defendants’ affirmative

defenses demanding a response are not pleadings requiring

a response, and the trial court should have taken them as

denied. [Emphasis added.]

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

592 291 M

ICH

586 [Feb

COPUS v MEEMIC INSURANCE COMPANY

Docket No. 295499. Submitted February 9, 2011, at Detroit. Decided

February 15, 2011, at 9:05 a.m.

Dorene Copus brought suit in the Kent Circuit Court against her

no-fault insurer, MEEMIC Insurance Company, seeking work-loss

benefits. Plaintiff was a teacher and, although she did not teach

during the summer, she had an annual contract and had elected to

be paid in 26 biweekly installments. After an automobile accident,

she had been unable to work for the entire school year. Her

adjusted monthly wage was less than the statutory maximum, and

she argued in the trial court that this was the amount she was

allowed. Defendant argued that her benefits should instead be

calculated on the basis of the specific number of calendar days

plaintiff would have worked each month; this would make her

adjusted monthly benefit exceed the statutory cap for some

months and be reduced to zero in summer months, decreasing her

total benefits by the amount those months exceeded the cap. The

court, Paul J. Sullivan, disagreed with defendant’s method of

calculating the benefits and awarded plaintiff the amount she

sought. Defendant appealed.

The Court of Appeals held:

The work-loss benefits payable under the no-fault act are

based on loss of income from work an injured person would have

performed if he or she had not been injured. If a claimant

missed work, the only determination to be made is the amount

of income lost as a consequence of not performing that work.

Pursuant to plaintiff’s employment contract, the income plain-

tiff lost because she did not work was her full annual salary

consisting of the 26 biweekly paychecks she did not receive due

to her being injured.

Affirmed.

NSURANCE —

-F

AULT —

ORK

-L

OSS

ENEFITS —

ALCULATION OF

ENEFITS

The work-loss benefits payable under the no-fault act are based on

loss of income from work an injured person would have performed

if he or she had not been injured; if a claimant has missed work,

2011] C

OPUS V

MEEMIC I

NSURANCE

593

the only determination to be made is the amount of income lost as

a consequence of not performing that work (MCL 500.3107[1][b].

William W. Decker, Jr., LLC (by William W. Decker,

Jr.), for plaintiff.

Garan Lucow Miller, P.C. (by Daniel S. Saylor and

Caryn A. Gordon), for defendant.

Before: C

AVANAGH

,P.J., and S

TEPHENS

and R

ONAYNE

RAUSE

,JJ.

ONAYNE

RAUSE

, J. Defendant appeals by right an

order granting summary disposition pursuant to MCR

2.116(C)(10) in favor of plaintiff and denying it to

defendant. This case involves computation of work-loss

benefits under the no-fault act, MCL 500.3101 et seq.

We affirm.

Plaintiff was injured in a serious automobile accident

and sought wage-loss benefits from defendant, her

insurer. Plaintiff’s wage-loss benefit under the no-fault

act is governed by MCL 500.3107(1)(b), which provides

that personal protection insurance benefits are payable

for

[w]ork loss consisting of loss of income from work an

injured person would have performed during the first 3

years after the date of the accident if he or she had not been

injured. Work loss does not include any loss after the date

on which the injured person dies. Because the benefits

received from personal protection insurance for loss of

income are not taxable income, the benefits payable for

such loss of income shall be reduced 15% unless the

claimant presents to the insurer in support of his or her

claim reasonable proof of a lower value of the income tax

advantage in his or her case, in which case the lower value

shall apply. Beginning March 30, 1973, the benefits payable

594 291 M

ICH

593 [Feb

for work loss sustained in a single 30-day period and the

income earned by an injured person for work during the

same period together shall not exceed $1,000.00, which

maximum shall apply pro rata to any lesser period of work

loss. Beginning October 1, 1974, the maximum shall be

adjusted annually to reflect changes in the cost of living

under rules prescribed by the commissioner....[Empha-

sis added.]

Both parties agree that the adjusted benefit is now

$4,713.

Plaintiff is a special education teacher on a yearly

contract with a yearly salary of $63,895. Plaintiff had

the option of electing to be paid in 21 installments while

school was in session or in 26 biweekly installments

throughout the entire year, and she elected the latter.

She sought benefits for the 2008-2009 school year.

Plaintiff and the trial court computed her wage-loss

payments by dividing her yearly salary, less fifteen

percent, by twelve months. She and the trial court

therefore found she was entitled to $4,525.90 a month.

Because this is below the maximum monthly amount

payable, plaintiff was therefore entitled to a total of

$54,310.75.

Defendant, however, argues that plaintiff’s entitle-

ment should be computed on the basis of the specific

number of calendar days plaintiff’s contract specified

that she should work, notwithstanding the yearly na-

ture of her contract and her election to be paid through-

out the year. Defendant therefore would divide plain-

tiff’s yearly salary by her 183 contract workdays and

subtract taxes to arrive at $296.78 a day. It then

multiplied her daily amount by the number of days

We note that plaintiff did so not only for the school year at issue, but

the previous year as well.

2011] C

OPUS V

MEEMIC I

NSURANCE

595

actually worked in each 30-day period, making allow-

ances for scheduled days off. It arrived at monthly

amounts ranging from $3,858.14 to $6,529.16, as well as

two months in the summer with no payment at all.

Because many months under defendant’s computa-

tional framework would exceed the statutory cap, it

would find plaintiff entitled to a total of only

$44,268.64.

We review de novo dispositions of motions for sum-

mary disposition. Maiden v Rozwood, 461 Mich 109,

118; 597 NW2d 817 (1999). We also review de novo

questions of statutory interpretation. People v Swaf-

ford, 483 Mich 1, 7; 762 NW2d 902 (2009). The ultimate

goal for the courts when analyzing a statute is to

effectuate the intent of the Legislature. Title Office, Inc

v Van Buren Co Treasurer, 469 Mich 516, 519; 676

NW2d 207 (2004). “The no-fault insurance act is reme-

dial in nature and must be liberally construed in favor

of persons intended to benefit” from its goal of guaran-

teeing motor vehicle accident victims compensation for

certain economic losses. Gobler v Auto-Owners Ins Co,

428 Mich 51, 61; 404 NW2d 199 (1987).

There is nothing ambiguous about MCL

500.3107(1)(b). As defendant correctly points out, stat-

utes must be read as a whole. The first sentence of MCL

500.3107(1)(b) may not be phrased as artfully as pos-

sible, but it is clearly a definition provision: “work loss”

is defined as “loss of income from work an injured

person would have performed . . . if he or she had not

been injured.” The statute provides an upper limit on

the amount of monthly compensation for work loss.

However, the statute does not mandate any sort of

temporal correlation between the work and the income,

as defendant asserts. The calculation might be simplest

if a claimant is paid a straightforward, fixed dollar

596 291 M

ICH

593 [Feb

amount per day, but the fact that a salaried employee’s

income is not so linearly tied to the strict number of

hours worked is not an impediment to proper calcula-

tion. Obviously, if a claimant does not actually miss any

work, the claimant cannot claim any loss of income

under the statute as a consequence. But if a claimant

has missed work—as plaintiff has here—it remains only

to determine the income lost as a consequence of not

performing that work.

Put another way, MCL 500.3107(1)(b) does not say

when “work loss” must be deemed to occur. This is

reasonable. In a straightforward, hourly employment

context, many employers delay paychecks by some

number of pay periods, so missing a day of work may

not be reflected in a claimant’s paycheck for some time.

The income lost because the claimant did not work is

therefore a reduction in pay several weeks—or more—

later. In the instant case, pursuant to plaintiff’s con-

tract, the income plaintiff lost because she did not work

was 26 biweekly paychecks, totaling $63,895, that she

did not receive for an entire year. Defendant seeks to

create a fiction, completely unwarranted by anything in

the statute, that plaintiff’s lost income was something

other than what it actually was.

Defendant’s position is not even substantively con-

sistent with the Attorney General opinion upon which it

relies,

at least when that opinion is read as a whole

instead of as an isolated excerpt. Defendant correctly

observes that the statute is intended to compensate an

injured person for actual loss of income, not a loss of

Attorney General opinions are not binding on the courts and are not

even of certain effect on any governmental agencies. Danse Corp v

Madison Hts, 466 Mich 175, 182 n 6; 644 NW2d 721 (2002). We do not

purport to endorse or criticize OAG, 1979-1980, No 5673, p 684 (April 1,

1980), now, but rather discuss it solely because it was discussed by the

parties.

2011] C

OPUS V

MEEMIC I

NSURANCE

597

earning capacity. See Ouellette v Kenealy, 141 Mich App

562, 564-565; 367 NW2d 353 (1984). In OAG, 1979-

1980, No 5673, p 684 (April 1, 1980), the Attorney

General opined that when a teacher is injured and

unable to work during the summer, he or she is not

entitled to payment of no-fault benefits. This is an

obvious conclusion: unless the teacher teaches summer

school or otherwise performs work over the summer,

the teacher cannot have lost income from work that he

or she would have performed.

Defendant, however, seeks to extrapolate too much

from this opinion. The opinion correctly notes in pass-

ing that the teacher’s loss “would be on the basis of the

actual loss for the time during which the teacher is

unable to work as a teacher.” Id. at 687. In contrast to

the situation under discussion in the Attorney General

opinion, plaintiff here had actual work loss. And as a

direct result of that actual work loss, she lost 26

paychecks’ worth of income over a year. Defendant’s

attempt to rewrite what plaintiff’s income would have

been is at odds with reality and with MCL

500.3107(1)(b), which seeks to compensate her for in-

come lost as a consequence of work lost.

The trial court correctly interpreted MCL

500.3107(1)(b) and correctly applied it to the facts of

this case.

Affirmed. Plaintiff, being the prevailing party, may

tax costs.

598 291 M

ICH

593 [Feb

PEOPLE v CAMERON

Docket No. 293119. Submitted November 9, 2010, at Detroit. Decided

January 4, 2011. Approved for publication February 15, 2011, at

9:10 a.m.

Stanley W. Cameron was charged with domestic violence and tried by

a jury in the Oakland Circuit Court. Before trial, the prosecution

sought a ruling permitting it to introduce evidence of defendant’s

prior bad acts involving the victim and another woman. The court,

John J. McDonald, J., ruled that the evidence was admissible. At

trial, the jury heard evidence that each woman had been hit by

defendant while she had been his girlfriend, and the jury found

defendant guilty. Defendant appealed.

The Court of Appeals held:

1. MCL 768.27b allows a trial court to admit relevant evidence

of other domestic assaults to prove any issue, even the character of

the accused, if the evidence meets the requirements of MRE 403.

The Legislature intended that in domestic violence cases, other

acts of domestic violence committed by the defendant are admis-

sible because a complete picture of the defendant’s history might

shed light on the likelihood that a given crime was committed. The

trial court properly held under MRE 403 that any prejudicial effect

of admitting the evidence that the defendant had previously

committed domestic assault against the victim and another

woman did not substantially outweigh the probative value of the

evidence and did not abuse its discretion by admitting the evidence

because it was relevant to the victim’s credibility, it was relevant to

show that defendant had acted violently toward the victim, and it

demonstrated that his actions were not accidental. The testimony,

along with the other proofs at trial, was sufficient to support the

jury’s verdict.

2. For purposes of this case, in which the victim was an

ex-girlfriend, the relevant elements of a domestic assault offense

include (1) the commission of an assault or an assault and battery

and (2) a dating relationship between the parties. Defendant

denied that an assault or an assault and battery occurred. A

battery is an intentional, unconsented to, and harmful or offensive

touching of the person of another or of something closely con-

2011] P

EOPLE V

AMERON

599

nected with the person. It does not matter whether the touching

caused an injury. An assault is an attempt to commit a battery or

an unlawful act that places another person in reasonable appre-

hension of receiving an immediate battery. Every battery neces-

sarily includes an assault because a battery is the very consum-

mation of the assault. Intent may be inferred from all the facts and

circumstances. Only minimal evidence from which intent may be

inferred need be presented. The evidence supported an inference

that defendant intended to commit an assault or an assault and

battery against the victim, and sufficient evidence existed to

support the verdict.

3. The verdict was not against the great weight of the evidence.

Affirmed.

1. C

RIMINAL

AW —

OMESTIC

IOLENCE —

VIDENCE —

RIOR

CTS

MCL 768.27b allows trial courts to admit relevant evidence of other

domestic assaults to prove any issue, even the character of the

accused, if the evidence meets the requirements of MRE 403;

under MRE 403 the reviewing court must first decide if the

evidence was unfairly prejudicial and then weigh the probative-

ness or relevance of the evidence against the unfair prejudice to

determine whether any prejudicial effect substantially outweighed

the probative value of the evidence.

2. A

SSAULT AND

ATTERY —

OMESTIC

IOLENCE —

LEMENTS OF

ATTERY —

LEMENTS OF

SSAULT

A violation of the domestic violence statute requires the commission

of an assault or an assault and battery; a battery is an intentional,

unconsented to, and harmful or offensive touching of the person of

another or of something closely connected with the person; it does

not matter whether the touching caused an injury; every battery

includes an assault; an assault is an attempt to commit a battery

or an unlawful act that places another person in reasonable

apprehension of receiving an immediate battery; intent may be

inferred from all the facts and circumstances, and only minimal

circumstantial evidence from which intent may be inferred need

be presented (MCL 750.81[2]).

Bill Schuette, Attorney General, B. Eric Restuccia,

Solicitor General, Jessica R. Cooper, Prosecuting Attor-

ney, John S. Pallas, Chief, Appellate Division, and

Kathryn G. Barnes, Assistant Prosecuting Attorney, for

the people.

600 291 M

ICH

599 [Feb

Law Offices of Robert J. Boyd, III, P.C. (by Robert J.

Boyd, III), for defendant.

Before: O

WENS

,P.J., and W

HITBECK

and F

ORT

OOD

,JJ.

URIAM

. Defendant Stanley Wayne Cameron ap-

peals by right his conviction for domestic violence

resulting from the assault and battery of his ex-

girlfriend, Kristie Yacheson. The trial court found Cam-

eron guilty of domestic violence (third offense).

The

trial court subsequently sentenced Cameron as a

second-offense habitual offender

to six months to three

years in prison. We affirm.

I. BASIC FACTS

A. DOMESTIC VIOLENCE INCIDENT

During the early morning hours of September 19,

2008, Cameron allegedly abused his ex-girlfriend,

Kristie Yacheson. Cameron and Yacheson had lived

together and dated off and on from October 2005 until

September 2008. At the time of incident, however,

Yacheson lived alone in an apartment on 14 Mile Road

in the City of Royal Oak.

On the evening of September 18, 2008, Yacheson

invited several friends to her apartment. Cameron sent

Yacheson a text message asking if he could come over.

Although a court order prohibited Cameron from being

at Yacheson’s apartment, Yacheson allowed Cameron to

visit because he was acting nice and because she still

loved him. Yacheson sent Cameron a text message

saying he could come over as long as he behaved

appropriately. Cameron asked Yacheson if she had any

See MCL 750.81(4).

See MCL 769.10.

2011] P

EOPLE V

AMERON

601

food, and she replied that she did not. Yacheson did not

ask Cameron to bring food over, and she did not expect

him to bring food. However, when Cameron arrived

about 8:00 p.m., he brought some food and beer with

him. Because she felt safe with her other friends

present, Yacheson let Cameron into her apartment.

Once inside the apartment, Cameron took the food

and beer into the kitchen, placed at least one of the

beers into the freezer, and began cooking dinner for

everyone. At first, Cameron behaved appropriately.

However, once everyone started drinking, Cameron’s

demeanor changed. Yacheson had two or three beers, a

couple of shots of whiskey, and a shot or two of brandy.

Cameron drank about the same amount, and he began

to show signs of intoxication. Yacheson became increas-

ingly concerned about Cameron’s behavior because she

knew from past experience that Cameron sometimes

became violent when he drank.

At one point, Yacheson and Cameron entered the

kitchen while Yacheson’s friends remained in the living

room. While in the kitchen, Yacheson and Cameron

began arguing because Yacheson suggested that Cam-

eron slow down his drinking. Eventually, the arguing

turned into yelling, and Yacheson told Cameron to leave

her apartment. Cameron opened the freezer to retrieve

the beer that he brought, but Yacheson said no, and she

slammed the freezer shut. Cameron allegedly then

pushed Yacheson twice. The second time that Cameron

allegedly pushed Yacheson, he pushed her against the

refrigerator and stove with enough force to knock the

refrigerator and stove askew. Yacheson then tried to

push Cameron away, and Cameron allegedly punched or

jabbed her in the stomach. Yacheson told her friends in

the other room to call 911. Again, Yacheson told Cam-

602 291 M

ICH

599 [Feb

eron to leave, and she pushed Cameron out the door of

her apartment. As Cameron exited, the police arrived.

Officer Donald Scher of the Royal Oak Police Depart-

ment arrived at Yacheson’s apartment at 1:06 a.m. on

September 19, 2008.

The dispatch informed Officer

Scher that a no-contact order prohibited Cameron from

being near Yacheson’s home. As Officer Scher ap-

proached the apartment building, he saw Cameron

leaving the premises on the sidewalk. Officer Scher

recognized Cameron from prior police calls at the apart-

ment. When Officer Scher yelled for Cameron to stop,

Cameron ducked into a locked stairwell at the end of

the apartment building. Officer Scher walked around

the building to see where Cameron might exit.

Meanwhile, Officer Kathy Szydlowski of the Royal

Oak Police Department, who arrived about the same

time as Officer Scher, spoke with Yacheson. Officer

Szydlowski observed Yacheson crying hysterically. Of-

ficer Szydlowski also observed that Yacheson appeared

very frightened of Cameron.

When Officer Scher returned to the front of the

building, Yacheson pointed out the direction in which

she had seen Cameron leaving. Officer Scher spotted

Cameron walking westbound away from the building.

Again, Officer Scher called out for Cameron to stop, but

Cameron began walking faster. Officer Scher lost sight

of Cameron as he passed the corner of the building.

Officer Scher gave chase, and as he rounded the corner

of the building, he heard branches moving in a nearby

evergreen tree. He saw Cameron trying to hide under

the branches of the tree. Officer Scher radioed that he

had found the suspect, and then he arrested Cameron.

At the time of trial, Officer Scher was unavailable to testify, so a

redacted version of his preliminary examination testimony was read into

the record without objection.

2011] P

EOPLE V

AMERON

603

Cameron struggled as Officer Scher tried to handcuff

him, and Officer Scher had to use pepper spray on him.

Officer Szydlowski joined Officer Scher and assisted

him in handcuffing Cameron.

B. VICTIM’S STATEMENTS TO THE POLICE

After Officer Scher placed Cameron into the back of

the police car, Officer Szydlowski interviewed

Yacheson.

Officer Szydlowski observed that Yacheson

appeared to be very upset and that she remained upset

throughout the interview. Yacheson told Officer Szyd-

lowski that she had some friends over, she heard a

sound at the door, and Cameron opened the door and

came into the apartment. Yacheson also told Officer

Szydlowski that Cameron charged toward her, backed

her into the kitchen, and then pushed her against the

refrigerator several times. Yacheson stated that al-

though she tried to get away, Cameron grabbed her

from behind and pushed the front of her body against

the refrigerator. Yacheson said that she yelled for her

friend to call the police, and when Cameron heard that

the police were coming, he left the apartment. Yacheson

also said that a no-contact order barred Cameron from

contacting her, which Officer Szydlowski’s dispatcher

verified. Officer Szydlowski asked Yacheson to write out

a statement, and she did so.

The incident left Yacheson sore, but she did not

display any obvious or visible injuries. During her

investigation, Officer Szydlowski did not observe any

disarray or signs of a struggle in the kitchen, nor did she

see any signs of injury on Yacheson. Furthermore,

Yacheson did not tell Officer Szydlowski that she had

The prosecution filed a pretrial notice of intent to present evidence of

the victim’s statements under MCL 768.27c.

604 291 M

ICH

599 [Feb

invited Cameron to come over to her apartment earlier

in the evening, that he had brought groceries and

cooked dinner, and that he had been there for several

hours.

At trial, Officer Szydlowski testified that she wanted

to ask Yacheson more questions, but Yacheson’s ex-

treme emotional state had rendered her incapable of

giving any more information at the scene.

C. PRETRIAL MOTION TO INTRODUCE PRIOR-BAD-ACTS EVIDENCE

On October 20, 2008, pursuant to MCL 768.27b, the

prosecutor sought a ruling permitting it to introduce

evidence of prior bad acts involving Cameron and

Yacheson, as well as Cameron and his ex-girlfriend,

Pamela Ponder. Over defense counsel’s objection, the

trial court ruled that the prosecutor could introduce

other bad-acts evidence at trial to show Cameron’s

character.

D. PRIOR-BAD-ACTS EVIDENCE PRESENTED AT TRIAL

1. PRIOR ACTS AGAINST YACHESON

At trial, Yacheson testified that Cameron had previ-

ously physically attacked her. On March 5, 2006, when

Yacheson and Cameron lived at the Admiral Hotel in

Clinton Township, Cameron punched her on the side of

her head, and she fell to the ground. Cameron grabbed

Yacheson’s cell phone so that she could not call 911, and

he broke her phone when he threw it aside. Cameron

told Yacheson that he would kill her if she called the

police. He then stomped on her and repeatedly hit her.

He called her a “whore” and other names as he hit her.

Yacheson called the police.

Yacheson also testified that four additional inci-

dents occurred between June 2006 and May 2008. In

2011] P

EOPLE V

AMERON

605

June 2006, Yacheson lived at the Eastland Hotel in

Eastpointe. On June 16, 2006, as Yacheson and

Cameron walked outside, Yacheson said hello to a

male friend. Cameron then punched the side of

Yacheson’s head. Another incident occurred on June

29, 2006, when Yacheson and Cameron started argu-

ing about Yacheson’s cell phone. Cameron demanded

that Yacheson hand over the memory card for her

phone, and Yacheson refused. Cameron then punched

her. The fourth incident occurred on January 16,

2008, when Yacheson lived at the apartment in R oyal

Oak. Cameron wanted to see Yacheson, but she would

not let him enter the apartment. Cameron, who had

been drinking, forced his way in through a screen

door to get into the apartment. Cameron then forced

his way into the bedroom, where Yacheson had bar-

ricaded herself, and he took Yacheson’s phone away

from her. Cameron punched her in the face. The fifth

incident occurred on May 16, 2008, when Cameron

came into Yacheson’s apartment and punched her.

When Yacheson tried to call the police, Cameron

broke her flip phone in half. The neighbors called the

police. At trial, Yacheson testified that she had stayed

in the off-and-on relationship with Cameron despite

the assaults because he apologized each time and

because she loved him.

2. PRIOR ACTS AGAINST PONDER

At trial, the prosecutor also elicited testimony that

Cameron had also abused another ex-girlfriend. Pamela

Ponder testified that she dated Cameron for a few

months in 2001. In May 2001, she told Cameron that

she wanted to end their relationship. Cameron reacted

angrily.

606 291 M

ICH

599 [Feb

Several other incidents occurred within a week of

the breakup. During one incident, Cameron accused

Ponder of seeing another man. Cameron hit her on

the chin with an open hand. Another incident oc-

curred when Ponder picked up her six-year-old son

from school. Ponder had a male friend with her.

Because it was warm, Ponder rolled down the win-

dows of her truck. Cameron suddenly ran up and

punched Ponder in the throat. A third incident oc-

curred on May 7, 2001. Cameron threw a frozen beer

can at Ponder’s face. The impact broke her nose and

broke some of her teeth.

E. JURY VERDICT

After hearing the evidence, the jury found Cameron

guilty of domestic violence.

The trial court sentenced

Cameron on May 4, 2009. The recommended minimum

sentence under the sentencing guidelines ranged from 2

to 21 months in prison. Defense counsel asked for a

minimum sentence of 10 months in prison, to be served

concurrently. As previously stated, the trial court sen-

tenced Cameron, as a second-offense habitual offender,

to six months to three years in prison for domestic

violence (third-offense) to be served consecutively to the

sentence that Cameron was already serving.

Cameron

now appeals.

Before trial, the prosecutor had dismissed additional charges of

malicious destruction of police property, MCL 750.377b, and illegal entry,

MCL 750.115.

Cameron was released on bond at the time of the instant offense. In

fact, on the same day Cameron was arraigned in this case, he was

sentenced in Oakland Circuit Court Case No. 2008-221126-FH to one to

two years in prison for interfering with electronic communications and

one year for domestic violence (second offense). Those offenses involved

the same victim as this case. Cameron committed the offense in this case

while awaiting sentencing in the earlier case.

2011] P

EOPLE V

AMERON

607

II. PRIOR-BAD-ACTS EVIDENCE

A. STANDARD OF REVIEW

Cameron argues that the trial court should have

excluded evidence of his prior bad acts because it was

unfairly prejudicial under MRE 403. Cameron further

argues that the jury convicted him of domestic violence

based on Yacheson and Ponder’s testimony about prior

incidents where Cameron hit them. Cameron claims

that the jury essentially heard Yacheson and Ponder’s

testimony and then improperly concluded that because

Cameron assaulted these women in the past, he must

have assaulted Yacheson this time. Cameron contends

that, as a result, the trial court reversibly erred when it

determined that the prior-bad-acts evidence could be

introduced at trial because the prejudicial effect out-

weighed the probative value of the evidence.

We will not question a trial court’s decision whether

to admit evidence absent an abuse of discretion.

The

abuse of discretion standard involves more than just a

difference of opinion.

“Further, a trial court’s decision

on a close evidentiary question ordinarily cannot be an

abuse of discretion.”

B. LEGAL STANDARDS

During the preliminary hearing on October 9, 2008,

Yacheson testified that Cameron had a pending domes-

tic violence charge for a prior confrontation between

Cameron and Yacheson. Subsequent discovery revealed

additional incidents between Cameron and Yacheson,

People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002).

Id.

Id.; People v Sabin (After Remand), 463 Mich 43, 67; 614 NW2d 888

(2000).

608 291 M

ICH

599 [Feb

and Cameron and his ex-girlfriend Ponder. Before trial,

the prosecutor moved to introduce these prior bad acts

at trial. Over defense counsel’s objection, the trial court

granted the prosecutor’s motion and determined that

Cameron’s prior bad acts of domestic violence were

admissible under MCL 768.27b. MCL 768.27b(1) states:

Except as provided in subsection (4), in a criminal action

in which the defendant is accused of an offense involving

domestic violence, evidence of the defendant’s commission

of other acts of domestic violence is admissible for any

purpose for which it is relevant, if not otherwise excluded

under Michigan rule of evidence 403.

[

]

The language of MCL 768.27b clearly indicates that

trial courts have discretion “to admit relevant evidence

of other domestic assaults to prove any issue, even the

character of the accused, if the evidence meets the

standard of MRE 403.”

In analyzing a sister statute,

this Court has previously acknowledged that the Michi-

gan Legislature intended to allow juries “the opportu-

nity to weigh a defendant’s behavioral history and view

the case’s facts in the larger context that the defen-

dant’s background affords.”

MCL 768.27a deals pri-

marily with prior-bad-acts evidence involving crimes

MCL 768.27b(5)(a)(i) and (ii) define “domestic violence” as, inter

alia, “[c]ausing or attempting to cause physical or mental harm to a

family or household member,” or “[p]lacing a family or household

member in fear of physical or mental harm.” Further, MCL

768.27b(5)(b)(iv) defines “family or household member” as any “indi-

vidual with whom the person has or has had a dating relationship.”

People v Pattison, 276 Mich App 613, 615; 741 NW2d 558 (2007); see

also People v Schultz, 278 Mich App 776, 778; 754 NW2d 925 (2008)

(noting that, unlike MRE 404(b)(1), MCL 768.27b only requires a

showing of “the transparency of a person’s character as justification for

admitting evidence”).

MCL 768.27a.

Pattison, 276 Mich App at 620 (noting that legislatively enacted MCL

768.27a alters the court-created MRE 404(b)(1) rule of admissibility for

2011] P

EOPLE V

AMERON

609

against minors.

However, because of the similarities in

the language of MCL 768.27a and 768.27b, we believe

that the Michigan Legislature intended the same policy

to apply to domestic violence situations under MCL

768.27b. Thus, prior-bad-acts evidence of domestic vio-

lence can be admitted at trial because “a full and

complete picture of a defendant’s history...tend[s] to

shed light on the likelihood that a given crime was

committed.”

C. APPLYING MCL 768.27b TO CAMERON’S PRIOR BAD ACTS

In this case, the prosecutor charged Cameron with

domestic violence pursuant to MCL 750.81(2).

Then,

to support the domestic violence charge, the prosecutor

moved to admit evidence of Cameron’s prior bad acts

under MCL 768.27b. The statutory language and policy

considerations of MCL 768.27b clearly demonstrate the

Michigan Legislature’s intent to allow prior-bad-acts

evidence to be introduced at trial as long as the evidence

satisfies the “more probative than prejudicial” balanc-

ing test of MRE 403, which provides: “Although rel-

evant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair preju-

dice, confusion of the issues, or misleading the jury, or

other crimes or wrongs, but it does not violate separation of powers

because it is substantive in nature); see also Shultz, 278 Mich App at

778-779.

MCL 768.27a(1) provides that “in a criminal case in which the

defendant is accused of committing a listed offense against a minor,

evidence that the defendant committed another listed offense against a

minor is admissible and may be considered for its bearing on any matter

to which it is relevant.”

Pattison, 276 Mich App at 620.

As noted in the information filed by the prosecution, Cameron was

initially charged under MCL 750.81(2), but his charge was enhanced to

MCL 750.81(4) because this incident was his third offense.

610 291 M

ICH

599 [Feb

by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.”

Accordingly, this Court must make two distinct in-

quires under the balancing test of MRE 403. First, this

Court must decide whether introduction of Cameron’s

prior-bad-acts evidence at trial was unfairly prejudicial.

Then, this Court must apply the balancing test and

“weigh the probativeness or relevance of the evidence”

against the unfair prejudice.

Upon completion of this

second inquiry, this Court can determine whether the

trial court abused its discretion in allowing Cameron’s

prior bad acts into evidence.

Under the first inquiry, we conclude that the trial

court’s decision to allow evidence of Cameron’s prior

bad acts did not unfairly prejudice Cameron at trial.

The “unfair prejudice” language of MRE 403 “ ‘refers to

the tendency of the proposed evidence to adversely

affect the objecting party’s position by injecting consid-

erations extraneous to the merits of the lawsuit, e.g.,

the jury’s bias, sympathy, anger, or shock.’ ”

Moreover,

admission of “[e]vidence is unfairly prejudicial when-

. . . [the danger exists] that marginally probative evi-

dence will be given undue or preemptive weight by the

jury.”

However, the Michigan Supreme Court also

recognizes that the prosecution does not have to use the

least prejudicial evidence to make out its case.

In this

case, the prejudicial effect of other-acts evidence did not

stir such passion as to divert the jury from rational

People v Fisher, 449 Mich 441, 452; 537 NW2d 577 (1995).

Id. at 452, quoting People v Goree, 132 Mich App 693, 702-703; 349

NW2d 220 (1984); see also People v Vasher, 449 Mich 494, 501; 537 NW2d

168 (1995) (noting that “[a] party’s case is always damaged by evidence

that the facts are contrary to his contentions, but that cannot be grounds

for exclusion”).

People v Crawford, 458 Mich 376, 398; 582 NW2d 785 (1998).

Fisher, 449 Mich at 452.

2011] P

EOPLE V

AMERON

611

consideration of Cameron’s guilt or innocence of the

charged offenses.

In fact, the trial court minimized the

prejudicial effect of the bad-acts evidence by instructing

the jury that the issue in this case was whether Cam-

eron committed the charged offense.

Under the second inquiry, we conclude that any

prejudicial effect of the trial court’s decision to allow

evidence of Cameron’s prior bad acts did not substan-

tially outweigh the probative value of the evidence. A

trial court admits relevant evidence to provide the trier

of fact with as much useful information as possible.

Here, the trial court found that Cameron’s prior bad

acts were relevant and therefore admissible to establish

Yacheson’s credibility.

The trial court also found that

Cameron’s actions were relevant to show that he acted

violently toward Yacheson and that his actions were not

“accidental” at the time of the incident. Additionally,

the evidence of Cameron’s actions on six separate

occasions with Yacheson and on three separate occa-

sions with Ponder demonstrated Cameron’s propensity

to commit acts of violence against women who were or

had been romantically involved with him.

Therefore, Cameron’s prior bad acts were relevant to

the prosecutor’s domestic violence charge under MCL

768.27b. Any prejudicial effect of admitting the bad-acts

evidence did not substantially outweigh the probative

value of the evidence, and the trial court did not abuse

its discretion when it allowed Cameron’s prior-bad-acts

evidence to be introduced under MCL 768.27b.

See People v Starr, 457 Mich 490, 503; 577 NW2d 673 (1998).

People v Hampton, 407 Mich 354, 367; 285 NW2d 284 (1979)

OLEMAN

, C.J.).

Relevant evidence is any fact that is of consequence to the determi-

nation of the action. People v McKinney, 410 Mich 413, 419; 301 NW2d

824 (1981).

612 291 M

ICH

599 [Feb

III. SUFFICIENCY OF THE EVIDENCE

A. STANDARD OF REVIEW

As previously stated, on April 20, 2009, a jury found

Cameron guilty of domestic violence (third offense).

Cameron argues that the prosecution failed to present

sufficient evidence at trial to support a jury’s conviction

for domestic violence. When assessing a sufficiency-of-

the-evidence argument, an appellate court will view the

evidence in a light most favorable to the prosecution to

determine if it would support a rational jury’s finding

that the elements had been proven beyond a reasonable

doubt.

In applying this standard, a court must “draw

all reasonable inferences and make credibility choices

in support of the jury verdict.”

B. LEGAL STANDARDS

The charged offense, MCL 750.81(2), establishes the

following guidelines for a domestic violence charge:

Except as provided in subsection (3) or (4), an individual

who assaults or assaults and batters his or her spouse or

former spouse, an individual with whom he or she has or

has had a dating relationship, an individual with whom he

or she has had a child in common, or a resident or former

resident of his or her household, is guilty of a misdemeanor

punishable by imprisonment for not more than 93 days or

a fine of not more than $500.00, or both.

As noted in the information filed by the prosecution, Cameron was

initially charged under MCL 750.81(2), but his charge was enhanced to

MCL 750.81(4) because this incident was his third offense. The language

of MCL 750.81(2) and MCL 750.81(4) is almost identical except that MCL

750.81(4) makes the domestic assault a felony punishable by imprison-

ment for not more than two years or a fine of not more than $2,500.

People v Nowack, 462 Mich 392, 399-400; 614 NW2d 78 (2000).

Id. at 400.

2011] P

EOPLE V

AMERON

613

The relevant elements of the charged domestic as-

sault offense include (1) the commission of an assault or

an assault and battery and (2) a dating relationship

between the parties.

Cameron does not dispute that he

had a dating relationship with Yacheson.

However,

Cameron denies that an assault or an assault and

battery took place on the night of the incident.

The courts have defined a battery as “ ‘an inten-

tional, unconsented and harmful or offensive touching

of the person of another, or of something closely con-

nected with the person.’ ”

It does not matter whether

the touching caused an injury.

Further, the courts

have defined an assault as “an attempt to commit a

battery or an unlawful act that places another in

reasonable apprehension of receiving an immediate

battery.”

Thus, every battery necessarily includes an

assault because a battery is the very “consummation of

the assault.”

C. APPLYING THE STANDARDS

In this case, Yacheson testified that Cameron pushed

her twice. Yacheson stated that the second time that

Cameron pushed her, Cameron pushed her against the

refrigerator and stove with enough force to knock the

refrigerator and stove askew. Yacheson also testified

See MCL 750.81(4); CJI2d 17.2a.

In addition, Yacheson’s testimony at preliminary hearing established

that she and Cameron had an on-and-off dating relationship.

People v Starks, 473 Mich 227, 234; 701 NW2d 136 (2005) (citations

omitted); CJI2d 17.2a(2).

People v Terry, 217 Mich App 660, 663; 553 NW2d 23 (1996); CJI2d

17.15.

Starks, 473 Mich at 234; CJI2d 17.2a(2).

Tinkler v Richter, 295 Mich 396, 401; 295 NW 201 (1940) (citation

and quotation marks omitted); Terry, 217 Mich App at 663.

614 291 M

ICH

599 [Feb

that she tried to push Cameron away, and Cameron

allegedly punched or jabbed her in the stomach. Officer

Szydlowski testified that she arrived on the scene and

observed Yacheson crying hysterically. Officer Szyd-

lowski testified that Yacheson appeared very frightened

of Cameron.

This Court previously determined that a defendant’s

“actions sometimes speak louder than words.”

Intent

may be inferred from all the facts and circumstances.

Further, “[a] defendant’s intent may be inferred from

his acts.”

Because of the inherent difficulty of proving

a defendant’s state of mind, only minimal circumstan-

tial evidence from which intent may be inferred need be

presented.

Therefore, we conclude that the evidence

satisfies the elements of assault or an assault and

battery under MCL 750.81(2). Cameron’s pushing,

punching, or jabbing Yacheson certainly constituted an

intentional, unconsented, and harmful or offensive

touching. Further, regardless of how the touching

started, Cameron clearly intended to commit an inten-

tional touching or place Yacheson in apprehension of an

intentional touching. Accordingly, we conclude that the

evidence supported an inference that Cameron in-

tended to commit an assault or an assault and battery

against Yacheson.

On appeal, Cameron argues that insufficient evi-

dence existed to support the jury’s guilty verdict. How-

ever, at trial, Cameron did not testify and did not call

People v Strong, 143 Mich App 442, 452; 372 NW2d 335 (1985)

(citations and quotation marks omitted).

People v Hawkins, 245 Mich App 439, 458; 628 NW2d 105 (2001);

Strong, 143 Mich App at 452.

People v Ng, 156 Mich App 779, 785; 402 NW2d 500 (1986).

Strong, 143 Mich App at 452; People v Bowers, 136 Mich App 284,

297; 356 NW2d 618 (1984).

2011] P

EOPLE V

AMERON

615

any witnesses to contradict the prosecution witnesses’

testimony. The Michigan Supreme Court has long rec-

ognized that “[i]t is the province of the jury to deter-

mine questions of fact and assess the credibility of

witnesses.”

In this case, the jury listened to

Yacheson’s testimony and found it to be credible. Thus,

when viewing the evidence in a light most favorable to

the prosecution, a rational jury could find that the

elements of a domestic assault had been proven beyond

a reasonable doubt.

On appeal, Cameron argues that

Yacheson invited Cameron over to her apartment, he

brought food, he prepared the food, and he began

drinking. Cameron claims that at some point, he volun-

tarily decided to leave Yacheson’s apartment. Cameron

also argues that when he returned to the kitchen to

retrieve his beer from the freezer, Yacheson slammed

the freezer door on his hand. Cameron asserts that he

pushed Yacheson out of the way as he exited the

apartment. Again, Cameron never elicited this testi-

mony during the trial to rebut the evidence against

Cameron. Thus, the jury presumably decided its verdict

based on Yacheson’s testimony about the incident. We

conclude that sufficient evidence existed to support the

jury’s guilty verdict.

IV. GREAT WEIGHT OF THE EVIDENCE

A. STANDARD OF REVIEW

Cameron argues that his conviction should be

reversed and vacated because the jury’s verdict went

against the great weight of the evidence. An appellate

court will review a properly preserved great-weight

issue by deciding whether “the evidence preponder-

People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998).

Nowack, 462 Mich at 399-400.

616 291 M

ICH

599 [Feb

ates so heavily against the verdict that it would be a

miscarriage of justice to allow the verdict to stand.”

However, when a party fails to preserve a great-

weight issue for appeal, an appellate court will look

for “plain error affecting the defendant’s substantial

rights.”

B. LEGAL STANDARDS

An appellate court will only review issues that are

properly raised and preserved at trial.

The preserva-

tion requirement induces litigants “to do what they can

in the trial court to prevent error and eliminate its

prejudice, or to create a record of the error and its

prejudice.”

Generally, an issue is not properly pre-

served unless a party raises the issue before the trial

court and the trial court addresses and decides the

issue.

To preserve a great-weight claim, a party must

move for a new trial in the trial court.

An appellate

court will review a properly preserved great-weight

issue by deciding whether the evidence preponderates

so heavily against the verdict that it would be a

miscarriage of justice to allow the verdict to stand.

People v Musser, 259 Mich App 215, 218-219; 673 NW2d 800 (2003)

(citations omitted).

Id. at 218.

People v Stanaway, 446 Mich 643, 694; 521 NW2d 557 (1994); Mich

Ed Ass’n v Secretary of State, 280 Mich App 477, 488; 761 NW2d 234

(2008).

People v Mayfield, 221 Mich App 656, 660; 562 NW2d 272 (1997); see

also People v Pipes, 475 Mich 267, 277; 715 NW2d 290 (2006).

Walters v Nadell, 481 Mich 377, 387; 751 NW2d 431 (2008); People

v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994); People v Metamora

Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007); Polkton

Charter Twp v Pellegrom, 265 Mich App 88, 95; 693 NW2d 170 (2005).

People v Buck, 197 Mich App 404, 416; 496 NW2d 321 (1992).

Lemmon, 456 Mich at 642.

2011] P

EOPLE V

AMERON

617

In this case, Cameron did not move for a new trial, so

he failed to preserve the great-weight issue for appellate

review. Therefore, we can only review Cameron’s great-

weight argument for plain error affecting his substan-

tial rights. Any plain error that affects a party’s sub-

stantial rights may be considered even though it was

not brought to the court’s attention.

A constitutional

right “may be forfeited by a party’s failure to timely

assert that right.”

To avoid forfeiture, the defendant

bears the burden to show that (1) an error occurred, (2)

the error was plain, i.e., clear or obvious, and (3) the

plain error prejudiced substantial rights, i.e., the error

affected the outcome of the lower court proceedings.

Further,

once a defendant satisfies these three requirements, an

appellate court must exercise its discretion in deciding

whether to reverse. Reversal is warranted only when the

plain, forfeited error...“‘seriously affect[ed] the fairness,

integrity or public reputation of judicial proceedings’ inde-

pendent of the defendant’s innocence.”

[

]

C. APPLYING THE STANDARDS

As previously stated, testimony of the prosecution

witnesses provided evidence of a domestic assault or

assault and battery. At trial, Yacheson testified that

Cameron pushed her and punched or jabbed her in the

stomach. Additionally, Officer Szydlowski testified that

she observed Yacheson crying hysterically and that

Yacheson appeared to be very frightened of Cameron.

People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999), quoting

FR Crim P 52(b).

Carines, 460 Mich at 763, citing United States v Olano, 507 US 725,

731; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

Carines, 460 Mich at 763.

Id., quoting Olano, 507 US at 736-737 (second alteration in Carines).

618 291 M

ICH

599 [Feb

The prosecutor argues that this testimony supports an

inference that Cameron intentionally committed an

assault or assault and battery against Yacheson and

that sufficient evidence exists to allow a rational jury to

find that the elements of a domestic assault had been

proven beyond a reasonable doubt.

In contrast, Cameron did not present any witnesses

to contradict the prosecution’s evidence. The jury heard

all of the testimony, the jury deliberated, and then the

jury found Cameron guilty of domestic violence. Now,

on appeal, Cameron argues that his conviction should

be reversed and vacated because the evidence presented

at trial does not support a guilty verdict. Cameron

claims that Yacheson invited him over to her apart-

ment, he brought food, he prepared the food, and he

began drinking. Cameron further states that at some

point, he voluntarily decided to leave Yacheson’s apart-

ment and that he returned to the kitchen to retrieve his

beer from the freezer. Cameron alleges that Yacheson

slammed the freezer door on his hand and then he

pushed Yacheson out of the way as he exited the

apartment.

Despite his assertions to the contrary, we believe that

Cameron has failed to show that an error occurred, that

the error was clear and obvious, or that plain error

prejudiced his rights by affecting the outcome of the

trial. Further, to the extent that Cameron argues that

Yacheson’s statements to the police were inconsistent

with her testimony at trial, “[c]onflicting testimony,

even when impeached to some extent, is an insufficient

ground for granting a new trial.”

We conclude that the

evidence supported the jury’s finding that Cameron

intentionally committed an assault or assault and bat-

Musser, 259 Mich App at 219, quoting Lemmon, 456 Mich at 647.

2011] P

EOPLE V

AMERON

619

tery against Yacheson and that the jury’s verdict was

not against the great weight of the evidence.

V. CONCLUSION

The trial court did not abuse its discretion when it

allowed evidence of Cameron’s prior bad acts to be

introduced at trial under MCL 768.27b. Further, when

viewing the evidence in a light most favorable to the

prosecution, a rational jury could find that the elements

of a domestic assault had been proven beyond a reason-

able doubt. Thus, sufficient evidence existed to support

a jury’s guilty verdict. In addition, Cameron failed to

preserve his great-weight argument for appeal, and

Cameron has failed to show that a plain error occurred

at trial. Accordingly, the jury’s verdict was not against

the great weight of the evidence or manifestly unjust.

We affirm.

620 291 M

ICH

599 [Feb

In re SMITH

Docket No. 299300. Submitted February 9, 2011, at Detroit. Decided

February 15, 2011, at 9:15 a.m. Amended by order entered March

1, 2011, to change from an unpublished opinion per curiam to an

opinion per curiam for publication. 291 Mich App 801.

The Department of Human Services petitioned to terminate the

parental rights of the father of G. Smith, a minor, in the Kent

Circuit Court, Family Division. The court, Daniel V. Zemaitis, J.,

entered an order terminating the father’s parental rights pursuant

to MCL 712A.19b(3)(g), (j), and (l). Respondent appealed, contend-

ing that clear and convincing evidence did not support the order

and that termination was improper because he was incarcerated

and petitioner did not provide him with services for reunification.

The Court of Appeals held:

Petitioner failed to meet its statutory duty to facilitate reuni-

fication between respondent and the child. In fact, petitioner made

no attempt to allow them to reunite, but focused its efforts solely

on termination. Reversal is not required, however, because the

trial court did not clearly err by finding that grounds for termina-

tion under MCL 712A.19b(3)(l) were established by the clear and

convincing evidence showing that the child’s sister had previously

been the subject of a child-protective proceeding and that respon-

dent’s parental rights to the child’s sister had been involuntarily

terminated. Given the absence of any bond between respondent

and the child, the trial court did not clearly err by finding that

termination of respondent’s parental rights was in the child’s best

interests under MCL 712A.19b(5).

Affirmed.

John P. Pyrski for defendant.

Before: C

AVANAGH

,P.J., and S

TEPHENS

and R

ONAYNE

RAUSE

,JJ.

URIAM

. Respondent appeals as of right an order

terminating his parental rights to his minor child pursu-

ant to MCL 712A.19b(3)(g), (j), and (l). We affirm.

2011] In re S

MITH

621

Respondent argues that the trial court’s order termi-

nating his parental rights was not supported by clear and

convincing evidence, but he does not directly challenge the

trial court’s determination that grounds for termination

were established under MCL 712A.19b(3)(g), (j), and (l).

Relying on In re Mason, 486 Mich 142; 782 NW2d 747

(2010), he contends that termination was improper be-

cause he was incarcerated and petitioner, the Department

of Human Services (DHS), did not provide him with

services for reunification. We agree and hold that peti-

tioner failed to meet its statutory duty to facilitate reunit-

ing respondent and his child. Our Supreme Court has held

“[t]he state is not relieved of its duties to engage an absent

parent merely because that parent is incarcerated.” Id. at

152. Unfortunately for respondent, petitioner misunder-

stood the extent of its obligation to an incarcerated father

and determined that it was under no duty to facilitate

reunification.

Petitioner removed respondent’s son from the care of

the child’s mother on October 13, 2009. The child’s

mother identified respondent as the child’s father. Pe-

titioner learned that respondent was being held in the

Kent County jail awaiting sentencing, but no DHS

employee visited respondent any time during the pro-

ceedings regarding his child’s care. Petitioner chose to

communicate with respondent solely through letters,

despite acknowledging that there were no barriers to

face-to-face contact. Petitioner never believed that re-

unification was an option. Petitioner’s initial correspon-

dence with respondent clearly stated the case manag-

er’s belief that respondent’s incarceration rendered

“working on a treatment plan” with the DHS “not

possible.” The case manager testified that she would

not provide services to respondent. As a result, there

was never a parent-agency agreement proposed for

respondent.

622 291 M

ICH

621 [Feb

Petitioner believed termination to be the only option

in this case and recommended to respondent that he

voluntarily release his rights before he was determined

to be the child’s legal father. Petitioner repeatedly asked

respondent to release his rights from the time of their

initial communication, even though respondent gave no

indication that he wished to do so. Petitioner refused to

make efforts that were not aimed toward termination,

and the case manager focused the majority of her

correspondence with respondent on the releasing of his

rights. Even after establishing that respondent wished

to parent his son, little was done to provide services to

facilitate this. Respondent informed petitioner that he

had completed a number of substance-abuse-cessation

goals and that his attorney had proof of his progress,

but petitioner chose to ignore this information rather

than use it in forming a plan for respondent. The record

clearly shows that petitioner made no attempt to allow

for respondent’s reuniting with his child and instead

focused its efforts solely on termination.

Nonetheless, petitioner’s apathetic approach to re-

spondent’s right to services does not require reversal.

Pursuant to MCL 712A.19a(2)(c), the prior involuntary

termination of parental rights to a child’s sibling is a

circumstance under which reasonable efforts to reunite

the child and family need not be made. It is undisputed

that the child’s sister was previously the subject of a

child-protective proceeding and that respondent’s pa-

rental rights to the child’s sister were involuntarily

terminated. “ ‘Reasonable efforts to reunify the child

and family must be made in all cases’ except those

involving aggravated circumstances not present in this

case.” Mason, 486 Mich at 152 (citation omitted). We

find it incongruous that the prior termination of a

parent’s rights to another child is treated the same as if

the parent had murdered the other child—both result

2011] In re S

MITH

623

in a blanket grant of authority to petitioner to abdicate

responsibility for so much as a token effort—

irrespective of whether the parent might someday re-

form his or her life. However, the Legislature may make

policy choices that seem, from our perspective, unwise.

People v McIntire, 461 Mich 147, 159; 599 NW2d 102

(1999). Therefore, the trial court did not clearly err by

finding that grounds for termination under MCL

712A.19b(3)(l) were established by clear and convincing

evidence. In re Trejo, 462 Mich 341, 356-357; 612 NW2d

407 (2000); MCR 3.977(K).

Further, given the absence of any bond between

respondent and the child, the trial court did not clearly

err by finding that termination of respondent’s parental

rights was in the child’s best interests. MCL

712A.19b(5).

Affirmed.

624 291 M

ICH

621 [Feb

PRESIDENT INN PROPERTIES, LLC v CITY OF GRAND RAPIDS

Docket No. 294452. Submitted February 1, 2011, at Grand Rapids.

Decided February 17, 2011, at 9:00 a.m.

President Inn Properties, L.L.C., filed a petition in the Tax Tribunal

contesting the assessed valuations of two parcels of property on

which petitioner operates a hotel in respondent city of Grand

Rapids. Following a hearing, a hearing referee issued a proposed

opinion and judgment that adopted the valuations of petitioner’s

expert. Respondent filed objections to the proposed opinion and

judgment. The Tax Tribunal ruled that the hearing referee had

improperly given more credit to the testimony and appraisals of

petitioner’s appraiser, but otherwise adopted the hearing referee’s

findings of fact and conclusions of law, including the referee’s

finding that respondent’s evidence that the value of each of the

properties was greater than that listed on the tax rolls should be

discounted. The tribunal affirmed respondent’s assessments for

the subject properties and modified the referee’s proposed opinion

and judgment and adopted the modified proposed opinion and

judgment as the tribunal’s final decision in the case. Petitioner

appealed.

The Court of Appeals held:

1. Tax Tribunal proceedings are de novo in nature and the

tribunal has a duty to make an independent determination of true

cash value. The tribunal may not automatically accept the valua-

tions on the tax rolls, even when the petitioner fails to prove by the

greater weight of the evidence that the challenged assessment is

wrong. The tribunal has a duty to determine the most accurate

valuation under the individual circumstances of the case.

2. The Tax Tribunal did not err by admitting respondent’s

exhibit E for the limited purpose of impeaching petitioner’s

appraiser.

3. The Tax Tribunal, in fulfilling its statutory responsibility,

may make its own determinations regarding the credibility of

witnesses and the weight to be assigned to evidence in the record.

Therefore, the tribunal did not err by reconsidering the issues

regarding the credibility of petitioner’s appraiser and the weight to

be given to the evidence provided by the appraiser.

2011] P

RESIDENT

NN V

RAND

APIDS

625

4. The Legislature, although providing a broad framework and

numerous factors to be considered, has not specified methods of

valuation that assessors must employ. Any method for determining

true cash value that is recognized as accurate and reasonably

related to fair market valuation is an acceptable indicator of true

cash value. A valuation method is wrong only if it does not lead to

the most accurate determination of the true cash value or fair

market value of the taxable property. The tribunal may correlate,

reconcile, and weigh valuations derived under various approaches

with the ultimate goal of considering all factors under the circum-

stances in determining the fair market value of the subject

property.

5. Although the Tax Tribunal may not assume that the as-

sessed valuation of property is valid, the tribunal may adopt the

assessed valuation stated on the tax rolls as the tribunal’s inde-

pendent finding of true cash value when competent and substan-

tial evidence supports doing so.

6. The Tax Tribunal did not abdicate its responsibility to

determine independently the subject properties’ true cash value

when it adopted the properties’ assessed valuation on the tax rolls

because there was competent and substantial evidence in the

record supporting the tribunal’s determination. The tribunal’s

valuation, which was within the range of valuations in evidence,

was supported by competent and material evidence and must be

affirmed.

7. Any error in the form of the tribunal’s final opinion and

judgment did not prejudice petitioner and does not require rever-

sal. On remand, the Tax Tribunal must correct the two clerical

errors in its final opinion and judgment identified by the Court of

Appeals.

Affirmed and remanded for the correction of clerical errors.

1. T

AXATION —

DMINISTRATIVE

AW —

RIBUNAL —

PPEAL

Review of decisions of the Tax Tribunal by the Court of Appeals is,

in the absence of fraud, limited to determining whether the

tribunal made an error of law or adopted a wrong principle; the

factual findings of the tribunal are final provided that they are

supported by competent and substantial evidence.

2. T

AXATION —

RIBUNAL —

SSESSMENTS —

ALUATIONS

The Tax Tribunal must determine the most accurate valuation

under the individual circumstances of the case; even when a

petitioner fails to prove by the greater weight of the evidence that

626 291 M

ICH

625 [Feb

a challenged assessment is wrong, the tribunal may not automati-

cally accept the valuation on the tax rolls and must make an

independent valuation.

3. T

AXATION —

RIBUNAL —

EVIEW OF

EARING

EFEREES’

ECISIONS —

REDIBILITY OF

ITNESSES —

EIGHT OF THE

VIDENCE

The Tax Tribunal, in considering a proposed decision of a hearing

referee, may make its own determinations regarding the credibil-

ity of witnesses and the weight to be assigned to the evidence in

the record.

4. T

AXATION —

RIBUNAL —

ALUATION

ETHODS

The Tax Tribunal is not obligated to accept the valuation figures or

approach to valuation advanced by the parties; any method for

determining true cash value that is recognized as accurate and

reasonably related to fair market valuation is an acceptable

indicator of true cash value; regardless of the valuation approach

employed, the final value determination must represent the usual

price for which the property would sell; a valuation method is

wrong only if it does not lead to the most accurate determination

of the property’s true cash value or fair market value.

5. T

AXATION —

RIBUNAL —

SSESSED

ALUATIONS —

RUE

ASH

ALUE

A property’s assessed valuation on the tax rolls carries no presump-

tion of validity in Tax Tribunal proceedings regarding the valua-

tion of the property; the Tax Tribunal may adopt the assessed

valuation as its independent finding of true cash value when there

is competent and substantial evidence supporting the valuation.

Peter N. Rigas for petitioner.

Catherine M. Mish, City Attorney, and Nadine R.

Klein, Assistant City Attorney, for respondent.

Before: O

WENS

,P.J., and M

ARKEY

and M

ETER

,JJ.

URIAM

. Petitioner appeals by right the final

opinion and judgment of the Tax Tribunal establishing

for the tax years 2004-2006 the true cash value (TCV),

the state equalized value (SEV), and the taxable value

(TV), of two parcels of property on which petitioner

operates a hotel. We affirm but remand for correction of

2011] P

RESIDENT

NN V

RAND

APIDS

627

clerical errors regarding the identification number of

one parcel (41-14-05-276-009) and the 2006 TV of the

other parcel ($678,864).

I. FACTUAL BACKGROUND

A hearing referee conducted a three-day hearing at

which petitioner presented evidence that the TCV of

each of the properties was less than the amount listed

on the assessment rolls, and respondent presented

evidence that the TCV of each of the properties was

more than that listed on the assessment rolls. Because

the hearing referee found petitioner’s evidence and

valuation method more persuasive than that of respon-

dent, he issued a proposed opinion and judgment adopt-

ing the valuations of petitioner’s expert. See MCL

205.726. Respondent filed objections to the hearing

referee’s proposed opinion and judgment. On review of

the record and the parties’ pleadings, the Tax Tribunal

ruled that the hearing referee had improperly credited

petitioner’s appraiser, stating that two of the apprais-

er’s appraisals should have been accorded little or no

weight. The tribunal mainly discredited the two ap-

praisals because the same appraiser had prepared a

third appraisal for purposes of obtaining financing and

it was strikingly different. But the tribunal otherwise

adopted the hearing referee’s findings of fact and con-

clusions of law, including the referee’s finding that

respondent’s evidence that the value of each of the

properties was greater than that listed on the tax rolls

should also be discounted. The Tax Tribunal’s findings

read, in part:

5. Respondent’s Exhibit E (Petitioner’s 2002 Ap-

praisal for Finance Purposes with Exhibits) was properly

admitted into evidence. However, the POJ [the hearing

referee’s proposed opinion and judgment] failed to state

628 291 M

ICH

625 [Feb

that Exhibit E was admitted solely for impeachment

purposes. Although Exhibit E was not admitted for

valuation purposes, the [hearing referee] still failed to

take the appraisal into consideration in the rendering of

its [sic] decision.

***

9. Ultimately, Petitioner’s appraiser should have been

awarded little credibility for the large differences in the two

appraisals. The disparity in the two reports is not explained

by the September 11th bombing of New York, the unemploy-

ment, the location or the factors that were not cited in the

original appraisal that would not have changed given the

short time span between the reports as asserted by Petitioner.

The inconsistencies between the reports cast enough uncer-

tainty that the Tribunal finds that P etitioner’s December 31,

2003 appraisal is given very minimal weight.

10. The [hearing referee’s] analysis of why R espon-

dent’s appraisal was given little weight is adopted. As

such, the Tribunal finds that R espondent’s assessments

for the subject properties for the tax years at issue are

affirmed. Petitioner failed to carry the burden of estab-

lishing the true cash value of the property. Conversely,

Respondent failed to meet its burden of proving the

subject property’s assessments should be changed from

that reflected on the tax rolls. Therefore, the true cash,

state equalized, and taxable values for the subject prop-

erty are as follows:

Parcel Number: 41-14-05-276-011

Year TCV SEV TV

2004 $1,528,400 $764,200 $642,403

2005 $1,595,600 $797,800 $756,178

2006 $1,595, 600 $797,800 $672,293

[1]

The parties agree that this is an error and that the correct 2006 TV

is $678,864.

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Parcel Number: 41-14-05-276-001

[2]

Year TCV SEV TV

2004 $116,400 $58,200 $48,998

2005 $121,600 $60,800 $50,124

2006 $146,000 $73,000 $51,778

11. Given the above, the Tribunal modifies the Pro-

posed Opinion and Judgment, as indicated herein, and

adopts the modified Proposed Opinion and Judgment as

the Tribunal’s final decision in this case. See MCL 205.726.

The Tribunal also incorporates by reference the Findings

of Fact and Conclusions of Law contained in the modified

Proposed Opinion and Judgment in this Final Opinion and

Judgment.

Therefore,

IT IS ORDERED that the property’s values for the

2004, 2005 and 2006 tax years shall be as set forth in this

Final Opinion and Judgment. [Final Opinion and Judg-

ment, pp 5-9 (Michigan Tax Tribunal Docket No. 310739,

entered September 17, 2009).]

Petitioner appeals by right, MCL 205.753(1), assert-

ing that the Tax Tribunal committed several errors of

law and also made several erroneous factual findings.

II. STANDARD OF REVIEW

This Court’s ability to review decisions of the Tax

Tribunal is very limited. Columbia Assoc, LP v Dep’t of

Treasury, 250 Mich App 656, 665; 649 NW2d 760

(2002). Michigan’s Constitution provides: “In the ab-

sence of fraud, error of law or the adoption of wrong

principles, no appeal may be taken to any court from

any final agency provided for the administration of

property tax laws from any decision relating to valua-

The parties agree that the correct parcel number is 41-14-05-276-009.

630 291 M

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625 [Feb

tion or allocation.” Const 1963, art 6, § 28. Thus, this

Court’s “review of decisions of the Tax Tribunal, in the

absence of fraud, is limited to determining whether the

tribunal made an error of law or adopted a wrong

principle; the factual findings of the tribunal are final,

provided that they are supported by competent and

substantial evidence.” Antisdale v Galesburg, 420 Mich

265, 277; 362 NW2d 632 (1984).

With respect to general valuation principles in the

Tax Tribunal, the petitioner has the burden to estab-

lish the true cash value of property. MCL 205.737(3);

Great L akes Div of Nat’l Steel Corp v Ecorse, 227 Mich

App 379, 389; 576 NW2d 667 (1998). The burden of

proof encompasses two concepts: “(1) the burden of

persuasion, which does not shift during the course of

the hearing; and (2) the burden of going forward with

the evidence, which may shift to the opposing party.”

Jones & L aughlin Steel Corp v City of Warren, 193

Mich App 348, 354-355; 483 NW2d 416 (1992). Nev-

ertheless, because Tax Tribunal proceedings are de

novo in nature, the Tax Tribunal has a duty to make

an independent determination of true cash value.

Great L akes Div of Nat’l Steel Corp, 227 Mich App at

409. Thus, even when a petitioner fails to prove by

the greater weight of the evidence that the challenged

assessment is wrong, the Tax Tribunal may not

automatically accept the valuation on the tax rolls.

Id. at 409. Regardless of the method employed, the

Tax Tribunal has the overall duty to determine the

most accurate valuation under the individual circum-

stances of the case. Meadowlanes Ltd Dividend Hous-

ing Ass’n v City of Holland, 437 Mich 473, 485-486,

502; 473 NW2d 636 (1991).

This case also presents issues of statutory interpre-

tation, which are questions of law that this Court

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reviews de novo. Superior Hotels, LLC v Mackinaw

Twp, 282 Mich App 621, 628; 765 NW2d 31 (2009).

Proper construction of a statute “begins by reviewing

the text of the statute at issue; if the language is

unambiguous, it is presumed that the Legislature in-

tended the meaning plainly expressed, and judicial

construction of the statute is not permitted.” Paris

Meadows, LCC v Kentwood, 287 Mich App 136, 141; 783

NW2d 133 (2010). Furthermore, “[n]othing may be

read into a clear statute ‘that is not within the manifest

intent of the Legislature as derived from the words of

the statute itself.’ ” Id. (citation omitted).

III. ANALYSIS

Petitioner first argues that the Tax Tribunal erred as

a matter of law and fact by stating in ¶ 5 of its final

opinion and judgment that respondent’s exhibit E was

admitted into evidence. The record does not support

petitioner’s claim.

At the hearing before the hearing referee, respon-

dent’s exhibits were marked alphabetically and exhibit

E was identified as a 2002 appraisal of the subject

property prepared for petitioner by the same expert

who testified for petitioner at the hearing and who also

prepared two other appraisals (petitioner’s exhibits 1

and 2) admitted into evidence for tax-valuation pur-

poses. Respondent’s attorney moved for the admission

of exhibit E during the cross-examination of petition-

er’s appraiser “for purposes of impeachment, rebuttal,

and to, for the witness’s credibility.” Petitioner’s attor-

ney objected on grounds of relevancy and also because

respondent could impeach the witness by simply ques-

tioning him about his appraisals. The hearing referee

ruled regarding respondent’s exhibit E:

632 291 M

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625 [Feb

[Hearing Referee]: As I said before, the respondent in

this instance as to this witness is entitled to cross-

examination. Part of cross-examination is to impeach the

credibility of the witness.

***

[Hearing Referee]: Wait. And to that extent, this—let’s

put it this way: The admissibility is on the basis of its use

in the impeachment of this witness.

***

[Hearing Referee]: Now, as to the ultimate value, it is

not being considered for that purpose.

Thus, the record reflects that respondent’s exhibit E

was admitted for the limited purpose of impeaching

petitioner’s appraiser. This is the purpose for which the

Tax Tribunal utilized exhibit E. The tribunal did not

err as a matter of fact or law. That one page of exhibit

E was admitted later in the hearing as part of another

exhibit does not alter the fact that all of exhibit E had

previously been admitted for the purpose of impeaching

petitioner’s appraiser.

Next, petitioner argues that the Tax Tribunal erred

by revisiting the credibility of petitioner’s appraiser and

the weight assigned to his appraisals. We disagree.

Petitioner cites MCR 2.613(C) and caselaw for the

proposition that appellate courts will defer to credibility

determinations by the fact-finder. It is true that this

Court will not assess witness credibility. Great Lakes

Div of Nat’l Steel Corp, 227 Mich App at 407. Also, the

weight given to the evidence is within the discretion of

the Tax Tribunal. Id. at 404, 413. But petitioner fails to

cite a statute, administrative rule, or appellate decision

that has applied these principles in the context of the

Tax Tribunal’s performance of its statutory obligation

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of considering and deciding issues presented in a hear-

ing referee’s proposed opinion and judgment. “A pro-

posed decision of a hearing officer or referee shall be

considered and decided by 1 or more members of the

tribunal.” MCL 205.726. Although petitioner’s citation

of analogous authority perhaps saves its argument from

being abandoned, we conclude that petitioner’s analogy

fails in light of the statutory authority vested in the Tax

Tribunal.

Section 26 of the Tax Tribunal Act, MCL 205.726,

authorizes the Tax Tribunal to “appoint 1 or more

hearing officers to hold hearings.” Furthermore, except

for proceedings in the residential property and small

claims division of the tribunal, tribunal hearings “shall

be conducted pursuant to chapter 4 of the administra-

tive procedures act of 1969, 1969 PA 306, MCL 24.271 to

24.287 ....” MCL 205.726. “[T]he Tax Tribunal is

under a duty to apply its expertise to the facts of a case

and is not bound by either party’s theories of valua-

tion,” and with respect to disputed issues, “it must

follow the procedures in the Administrative Procedures

Act....”Great Lakes Div of Nat’l Steel Corp, 227 Mich

App at 400-401. This Court has also held in the context

of a motion for rehearing under MCL 205.762(3) that

the Tax Tribunal may not delegate its statutory respon-

sibilities to hearing referees. Shapiro Bag Co v Grand

Rapids, 217 Mich App 560, 563; 552 NW2d 185 (1996).

Here, the statute providing for the appointment of

hearing referees squarely places the responsibility on “1

or more members of the tribunal” to consider and

decide “[a] proposed decision of a hearing officer or

referee....”MCL205.726.

As noted, chapter 4 of the Administrative Procedures

Act (APA) governs hearings in the Tax Tribunal, except

those in the residential property and small claims

634 291 M

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625 [Feb

division. The APA provides that a “proposal for decision

shall contain a statement of the reasons therefor and of

each issue of fact and law necessary to the proposed

decision, prepared by a person who conducted the

hearing or who has read the record.” MCL 24.281(2).

Moreover, the APA permits, except as limited by statute

or rule, review de novo by the agency—here the Tax

Tribunal—of a proposed decision. “On appeal from or

review of a proposal of decision the agency, except as it

may limit the issue upon notice or by rule, shall have all

the powers which it would have if it had presided at the

hearing.” MCL 24.281(3). See also MCL 205.734(1): “One

or more members of the tribunal may hear and decide

proceedings.” And, see MCL 205.735(2): “A proceeding

before the tribunal is original and independent and is

considered de novo.” Finally, tribunal rules do not limit its

ability to review the credibility of witnesses or its ability to

reassess the weight to be assigned to evidence in the

record. Rule 348, 1996 AACS, R 205.1348,

in effect at the

time of these proceedings, provided, in pertinent part:

(1) A party may request a rehearing or reconsideration

of a decision by a hearing officer or referee by filing a

written request for a rehearing with the tribunal and

submitting a copy to the opposing party within 21 days of

the entry of the opinion and judgment by the hearing

officer or hearing referee. The request shall demonstrate

good cause as to why a rehearing shall be held....

***

(4) For purposes of this rule, “good cause” means any of

the following:

The current version of this rule provides that a party may timely file

exceptions to a hearing referee’s proposed decision that “shall demon-

strate good cause as to why the decision should be modified or a rehearing

held.” The definition of “good cause” in subsection 4 remains unchanged.

2009 AACS, R 205.1348 (effective October 19, 2009).

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(a) Error of law.

(b) Mistake of fact.

(d) Any other reason the tribunal deems sufficient and

material.

In summary, MCL 205.726 provides: “A proposed

decision of a hearing officer or referee shall be consid-

ered and decided by 1 or more members of the tribu-

nal.” We hold that in fulfilling this statutory responsi-

bility, the Tax Tribunal may make its own

determinations regarding the credibility of witnesses

and the weight to be assigned to evidence in the record.

Consequently, we conclude that the Tax Tribunal did

not err by reconsidering petitioner’s appraiser’s cred-

ibility and the weight to be given the evidence he

provided.

Petitioner next argues that the Tax Tribunal erred by

employing an incorrect valuation method and by not

independently determining the value of the property.

Specifically, petitioner argues that (1) the valuations on

the assessment rolls were determined by the cost-less-

depreciation method, (2) because the properties pro-

duced income, the tribunal was required to determine

their value by the income-capitalization method, and

(3) by adopting the existing assessed valuations, the

tribunal did not make its own independent determina-

tion of value using the correct valuation method. We

disagree.

Our constitution provides for the uniform taxation of

property assessed at not in excess of 50 percent of its

true cash value. Const 1963, art 9, § 3. The Legislature

has defined “true cash value” as meaning “the usual

selling price at the place where the property to which

the term is applied is at the time of assessment, being

636 291 M

ICH

625 [Feb

the price that could be obtained for the property at

private sale, and not at auction sale except as otherwise

provided in this section, or at forced sale.” MCL

211.27(1); see also Antisdale, 420 Mich at 274-276. The

Legislature has specified that tax assessors “shall also

consider the advantages and disadvantages of location;

quality of soil; zoning; existing use; present economic

income of structures, including farm structures;

present economic income of land if the land is being

farmed or otherwise put to income producing use;

quantity and value of standing timber; water power and

privileges; and mines, minerals, quarries, or other valu-

able deposits known to be available in the land and their

value.” MCL 211.27(1). Michigan courts have consid-

ered “true cash value” as being synonymous with “fair

market value.” Meadowlanes, 437 Mich at 484 n 17;

Great Lakes Div of Nat’l Steel Corp, 227 Mich App at

389.

Other than providing a broad framework and numer-

ous factors to be considered, the Legislature has not

specified methods of valuation that assessors must

employ. Antisdale, 420 Mich 275-276. The Legislature

does, however, require that an annual assessment of

property subject to taxation be made by an “assessing

officer” in accordance with the constitutional and statu-

tory strictures noted above. MCL 211.10. A taxing

unit’s assessing officer must also be certified as quali-

fied by the state assessor’s board. MCL 211.10c and

MCL 211.10d. Further, assessing officers, in preparing

annual assessments, “shall use only the official asses-

sor’s manual or any manual approved by the state tax

commission, consistent with the official assessor’s

manual, with their latest supplements, as prepared or

approved by the state tax commission as a guide in

preparing assessments.” MCL 211.10e. In the proceed-

ings before the Tax Tribunal here, the parties stipu-

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lated the subject properties’ assessed valuation (AV),

state equalized value (SEV), and taxable value (TV) for

the tax years at issue “as confirmed by the Board of

Review or on the assessment roll.” Although the parties

also stipulated that the “cost approach” to valuation “is

not applicable in this case,” petitioner points to nothing

in the record to support its argument that the assessed

valuations on the assessment roll were determined by

the cost-less-depreciation method of valuation.

We also disagree with petitioner’s argument that

because the properties were income producing, the

income-capitalization method of valuation is the only

acceptable method of determining the properties’ true

cash value. Petitioner relies on Southfield Western, Inc

v Southfield, 146 Mich App 585; 382 NW2d 187 (1985),

and Presque Isle Harbor Water Co v Presque Isle Twp,

130 Mich App 182; 344 NW2d 285 (1983), for this

argument. Neither case supports petitioner’s broad

argument. In the Southfield Western case, the parties

did not challenge using the capitalization-of-income

method of valuation, nor did the Court hold that this

method must always be used to value income-producing

property. Southfield Western, 146 Mich App at 587. In

the Presque Isle case, the Court stated that Northwood

Apartments v Royal Oak, 98 Mich App 721, 725; 296

NW2d 639 (1980), “held that the proper method of

assessing income-producing property is the capitaliza-

tion of income approach.” Presque Isle, 130 Mich App at

192-193. In Northwood Apartments, however, the par-

ties again agreed that the proper method of valuation

was the income-capitalization method. Northwood

Apartments, 98 Mich App at 725. The Court further

opined that “[a]ny method for determining true cash

value which is recognized as accurate and reasonably

related to fair market valuation is an acceptable indi-

cator of true cash value.” Id.

638 291 M

ICH

625 [Feb

Courts have generally recognized that the “three most

common approaches to valuation are the capitalization-of-

income approach, the sales-comparison or market ap-

proach, and the cost-less-depreciation approach.” Jones &

Laughlin, 193 Mich App at 353. Our Supreme Court has

described these three common valuation techniques, quot-

ing from the Michigan State T ax Commission Assessor’s

Manual. See Antisdale, 420 Mich at 276-277 n 1. “Regard-

less of the valuation approach employed, the final value

determination must represent the usual price for which

the subject property would sell.” Meadowlanes, 437 Mich

at 485. In other words, a valuation method is wrong only

if it does not lead to the most accurate determination of

the taxable property’s true cash value or fair market

value. Thus, the T ax Tribunal has a duty “to select the

approach which provides the most accurate valuation

under the circumstances of the individual case.” Antis-

dale, 420 Mich at 277; Jones & Laughlin, 193 Mich App

at 353.

In this case, the parties each presented expert wit-

nesses who testified at the Tax Tribunal proceedings.

Both experts presented appraisals of the subject prop-

erties using both the income-capitalization method and

the sales-comparison or market approach. Petitioner’s

expert and his appraisals concluded that the TCV of

each of the properties was less than that listed on the

assessment rolls. Respondent’s expert and her apprais-

als concluded that the TCV of each of the properties was

more than that listed on the assessment rolls. The Tax

Tribunal was under no obligation to accept the valua-

tion figures or the approach to valuation advanced by

either petitioner or respondent. Teledyne Continental

Motors v Muskegon Twp, 145 Mich App 749, 754; 378

NW2d 590 (1985). The tribunal “may accept one theory

and reject the other, it may reject both theories, or it

may utilize a combination of both in arriving at its

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determination.” Jones & Laughlin, 193 Mich App at

356. The Tax Tribunal may correlate, reconcile, and

weigh valuations derived under various approaches

with the ultimate goal of considering all factors under

the circumstances in determining the fair market value

of the subject property. Meadowlanes, 437 Mich at

485-486.

Next, we disagree with petitioner’s argument that

the Tax Tribunal committed an error of law or adopted

a wrong principle by finding that the properties’ as-

sessed valuation on the tax rolls was also the properties’

true cash value. In the Tax Tribunal, a property’s

assessed valuation on the tax rolls carries no presump-

tion of validity. Consol Aluminum Corp, Inc v Richmond

Twp, 88 Mich App 229, 232; 276 NW2d 566 (1979).

Further, the Tax Tribunal “cannot merely affirm the

assessment as placed upon the rolls by the assessing

authority.” Oldenburg v Dryden Twp, 198 Mich App

696, 699; 499 NW2d 416 (1993). For the Tax Tribunal to

accord presumptive validity to a property’s assessed

valuation on the tax rolls would conflict with the

statutory requirement that proceedings before the tri-

bunal are “original and independent and . . . de novo.”

MCL 205.735(2); Great Lakes Div of Nat’l Steel Corp,

227 Mich App at 409. Thus, the tribunal may not

automatically accept the taxing authority’s assessment

because “[t]he Tax Tribunal has a duty to make its own,

independent determination of true cash value.” Id.at

389. Even on the failure of a party’s evidence that a

property’s assessed valuation is lower than that on the

rolls, the burden of going forward with the evidence

may shift to the opposing party. Jones & Laughlin, 193

Mich App at 355. But the Tax Tribunal may adopt the

assessed valuation on the tax rolls as its independent

finding of TCV when competent and substantial evi-

dence supports doing so. Antisdale, 420 Mich at 277.

640 291 M

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625 [Feb

In Consol Aluminum Corp, this Court found that the

Tax Tribunal erred for two reasons when it adopted the

assessed valuation on the rolls after rejecting the peti-

tioner’s evidence. First, the respondent’s only witness

was not allowed “to state any independent valuation

conclusions because of respondent’s failure to submit

written appraisals before the hearing.” Consol Alumi-

num Corp, 88 Mich App at 233. Second, there was

evidence before the tribunal that the assessed valuation

on the tax rolls was based on “ ‘a fiction of federal tax

law,’ ” rather than a determination of TCV as required

by MCL 211.27. Consol Aluminum Corp, 88 Mich App

at 233-234 (citation omitted). Thus, “there was no

evidence presented at the hearing from which the Tax

Tribunal could have determined the true cash value for

the properties in question.” Id. at 234. Consequently,

the tribunal erred by adopting the assessed valuation

on the tax rolls because it must make its own indepen-

dent valuation finding, and there must be evidence on

the record supporting the finding. Id. at 232-234; Tele-

dyne, 145 Mich App at 758.

We conclude that the Tax Tribunal did not abdicate

its responsibility to independently determine the sub-

ject properties’ true cash value when it adopted the

properties’ assessed valuation on the tax rolls. There

was competent and substantial evidence in the record

supporting the tribunal’s determination. In other con-

texts, this Court has found no clear error by the

fact-finder when it determines that the value of prop-

erty lies within the range of values as testified to by

experts. For example, a jury award in a condemnation

case “ ‘will be upheld . . . if it is supported by competent

evidence as long as the amount is not lower than the

minimum, or higher than the maximum valuation

placed by the witnesses on the property sought to be

condemned.’ ” State Hwy Comm’r v Hessell, 5 Mich App

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559, 565; 147 NW2d 464 (1967) (citation omitted). And

in the context of valuing marital assets, a trial court

does not commit clear error when its valuation is

“within the range of figures given by the parties’

experts....”Rickel v Rickel, 177 Mich App 647, 650;

442 NW2d 735 (1989). See, also, Jansen v Jansen, 205

Mich App 169, 171; 517 NW2d 275 (1994), and Pelton v

Pelton, 167 Mich App 22, 25-26; 421 NW2d 560 (1988).

We must “accept the tribunal’s factual findings as final,

provided they are supported by competent, material,

and substantial evidence. Substantial evidence must be

more than a scintilla of evidence, although it may be

substantially less than a preponderance of the evi-

dence.” Jones & Laughlin, 193 Mich App at 352-353

(citations omitted). Here, the properties’ assessed valu-

ations on the tax rolls were in evidence because of the

parties’ stipulation, and there was expert testimony and

appraisals in evidence placing the properties’ TCV

above and below the properties’ assessed valuations on

the tax rolls. Because the tribunal’s valuation was

within the range of valuations in evidence, it was

supported by competent and material evidence, and we

must affirm. Antisdale, 420 Mich at 277.

Petitioner next argues that the tribunal committed an

error of law by not reiterating a separate, concise state-

ment of facts and conclusions of law. MCL 205.751(1)

provides that “[a] decision and opinion of the tribu-

nal...shall be in writing or stated in the record, and shall

include a concise statement of facts and conclusions of

law....” Also, MCL 24.285, incorporated into tribunal

proceedings through MCL 205.726, provides that “[a]

final decision or order of an agency...shall include find-

ings of fact and conclusions of law separated into sections

captioned or entitled ‘findings of fact’ and ‘conclusions of

law’, respectively.” Here, the hearing referee’s proposed

opinion and judgment contained separate sections labeled

642 291 M

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625 [Feb

“findings of fact” and “conclusions of law,” and the tribu-

nal’s final opinion and judgment did not. Even if the

tribunal’s adoption of the proposed opinion and judgment,

as modified by the final order, failed to comply with MCL

205.751(1) and MCL 24.285, we conclude that the error

does not warrant reversal. The purpose of these provisions

is to aid appellate review. Great Lakes Div of Nat’l Steel

Corp, 227 Mich App at 402. It is apparent that the lack of

separately captioned sections entitled “findings of fact”

and “conclusions of law” in the tribunal’s final opinion

and judgment has not hindered petitioner in bringing its

allegations of error in this Court. Also, the lack of formal

labeling in the tribunal’s final opinion and judgment has

not impeded this Court from reviewing and deciding

petitioner’s claims. Consequently, any error in form has

not prejudiced petitioner, and reversal is not warranted.

See Community Assoc v Meridian Charter Twp, 110 Mich

App 807, 812; 314 NW2d 490 (1981), holding “this Court

will not reverse a tribunal decision unless the party

alleging the error can show prejudice.”

We affirm but remand to the Tax Tribunal for

correction of the apparent clerical errors set forth in

footnotes 1 and 2 of this opinion. We do not retain

jurisdiction.

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PEOPLE v JACKSON

Docket No. 294964. Submitted February 8, 2011, at Lansing. Decided

February 17, 2011, at 9:05 a.m.

Thomas L. Jackson pleaded guilty in the Livingston Circuit Court to

two counts of second-degree home invasion and one count of

conspiracy to commit second-degree home invasion, MCL

750.110a(3) and MCL 750.157a. At defendant’s sentencing, the

court, Stanley J. Latreille, J., assessed 10 points for offense

variable (OV) 13, MCL 777.43 (continuing pattern of criminal

behavior), and 5 points for OV 16, MCL 777.46 (property obtained,

damaged, lost, or destroyed), when it scored the sentencing guide-

lines. Defendant was sentenced as a third-offense habitual of-

fender to 106 months to 30 years for each conviction. Defendant

appealed.

The Court of Appeals held:

Former MCL 777.43(1)(c), now MCL 777.43(1)(d), required

that 10 points to be assessed for OV 13 if the sentencing offense

was part of a pattern of felonious criminal activity involving a

combination of three or more crimes against a person or

property. Under MCL 777.16f, second-degree home invasion is a

crime against a person. Under MCL 777.18, conspiracy is

designated as a crime against public safety, but at the time of

defendant’s offense, MCL 777.21(4) required that the offense

class, offense variable level, and prior record variable level be

based on the underlying offense. Thus, the trial court was

required to consider the nature of the conspiracy when scoring

OV 13. Defendant’s conspiracy conviction was based on the two

underlying home invasions, which were crimes against a person,

and the trial court correctly concluded that there was a pattern

of felonious criminal activity involving at least three crimes

against a person or property. R esentencing was not required

because even if zero points should have been assessed for OV 16,

defendant’s recommended minimum sentence range under the

guidelines would not have changed because of the 10 points

properly assessed for OV 13.

Affirmed.

644 291 M

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644 [Feb

ENTENCES —

FFENSE

ARIABLE

—

ONSPIRACY

To determine whether a conspiracy conviction may be used when

scoring offense variable 13 (continuing pattern of criminal behav-

ior) under the sentencing guidelines, the sentencing court must

consider the nature of the offense underlying the conspiracy; a

conspiracy to commit a crime designated under the guidelines as a

crime against a person or property may be used when scoring

offense variable 13 (MCL 777.18, 777.21[4], 777.43[1]).

Bill Schuette, Attorney General, B. Eric Restuccia,

Solicitor General, David L. Morse, Prosecuting Attor-

ney, and William J. Vailliencourt, Jr., Assistant Pros-

ecuting Attorney, for the people.

Smith & Brooker, P.C. (by George B. Mullison), for

defendant.

Before: H

OEKSTRA

, P.J., and F

ITZGERALD

and B

ECKERING

JJ.

URIAM

. Defendant pleaded guilty to two counts

of second-degree home invasion, MCL 750.110a(3), and

one count of conspiracy to commit second-degree home

invasion, MCL 750.157a and MCL 750.110a(3). The

trial court sentenced defendant as a third-offense ha-

bitual offender, MCL 769.11, to concurrent prison terms

of 106 months to 30 years for each conviction. Defen-

dant appeals by delayed leave granted, raising issues

related to his sentencing. We affirm.

I. FACTS AND PROCEDURAL HISTORY

At the plea hearing, defendant admitted that he

participated with another person in the breaking and

entering of two different houses. He indicated that he

was aware that his codefendants were going to go into

the houses without permission with the intent to steal

and that he was the “lookout” and stayed in the car. He

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645

also indicated that items were in fact stolen from the

houses. Defendant further admitted that he agreed with

another person to break into the houses to steal items and

that he would be the lookout. The trial court found that

the plea was given understandingly, voluntarily, and accu-

rately and accepted the plea. The court subsequently

sentenced defendant as a third-offense habitual offender

to concurrent sentences of 106 months to 30 years, with

no days of credit, to be served “consecutive to a sentence

for which you are on parole.” The court denied defendant

sentencing credit because of defendant’s status as a pa-

rolee at the time of the offenses.

II. ANALYSIS

Defendant argues that the trial court based his

minimum sentences on facts not proved to a jury

beyond a reasonable doubt, in contravention of Blakely

v Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d

403 (2004). He also argues that the trial court improp-

erly scored offense variables (OVs) 13 and 16 and that

he is entitled to sentence credit for the time spent in jail

between his arrest and sentencing.

A. THE DECISION IN BLAKELY

Our Supreme Court has held that Blakely does not

apply to Michigan’s indeterminate sentencing scheme.

People v Drohan, 475 Mich 140, 164; 715 NW2d 778

(2006). Accordingly, defendant’s argument that the trial

court violated Blakely in scoring the guidelines is with-

out merit.

B. OV 13

Defendant challenges the assessment of 10 points for

OV 13. The version of MCL 777.43 in existence on the

646 291 M

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644 [Feb

date of defendant’s offense, February 25, 2005, provided

for the assessment of 10 points if the “offense was part

of a pattern of felonious criminal activity involving a

combination of 3 or more crimes against a person or

property....”MCL777.43(1)(c), as amended by 2002

PA 666.

Additionally, MCL 777.43(2)(a) instructs that

“all crimes within a 5-year period, including the sen-

tencing offense, shall be counted regardless of whether

the offense resulted in a conviction.”

Defendant pleaded guilty of participating in the

home invasion of a residence located at 15580 Graves

Road, of participating in the home invasion of a resi-

dence located at 17900 Dexter Trail, and of conspiring

with another individual to commit the home invasions.

Defendant does not dispute that the two second-degree

home invasion convictions may be used to score OV 13

because those convictions are for crimes against per-

sons. See MCL 777.16f. He asserts, however, that the

conspiracy conviction cannot be used to score OV 13

because conspiracy is a crime against public safety

under MCL 777.18, not a crime against a person or

property. Defendant further asserts that, if the con-

spiracy offense is not counted, there are no other crimes

against a person or property committed by defendant

within five years of these offenses that may be com-

bined with the two home invasion convictions in order

to establish the three convictions necessary to sustain a

score of 10 points under 777.43(1)(c). We review de novo

this issue involving the interpretation and application

of the statutory guidelines. People v Cannon, 481 Mich

152, 156; 749 NW2d 257 (2008).

MCL 777.43 was amended by 2008 PA 562, effective April 1, 2009.

MCL 777.43(1)(c) is now found at MCL 777.43(1)(d), but we will use the

preamendment designation to refer to the specific subdivision at issue

here.

2011] P

EOPLE V

ACKSON

647

A review of the presentence investigation report

reveals that defendant did not engage in any other

criminal activities that were directed against persons or

property within the five years preceding the present

offenses. The question, therefore, is whether defen-

dant’s conspiracy offense constitutes a separate crime

against a person or property for purposes of scoring OV

13. There is no published authority on the question

whether a conspiracy conviction may be used to score

OV 13.

Conspiracy is designated as a crime against public

safety in MCL 777.18. At the time of defendant’s offenses,

MCL 777.21(4) provided, “If the offender is being sen-

tenced for a violation described in [MCL 777.18], deter-

mine the offense class, offense variable level, and prior

record variable level based on the underlying offense.”

MCL 777.21(4), as amended by 2000 PA 279 (emphasis

added).

The command of MCL 777.21(4) to determine

the offense variable level “based on the underlying

offense” reflects the intent of the Legislature that the

nature of the underlying offense (and not the fact that

a conspiracy had been committed) controls when and

how an offense variable is scored. Reading MCL 777.18,

MCL 777.21(4), and MCL 777.43(1)(c) together as a

harmonious whole, see Cadle Co v City of Kentwood,

285 Mich App 240, 249; 776 NW2d 145 (2009), we

conclude that the command of MCL 777.21(4) is suffi-

ciently sweeping in scope to have required the trial

court to consider the nature of the conspiracy for which

defendant was convicted in this case when scoring OV

13.

Defendant was convicted of conspiring to commit

MCL 777.21 was subsequently amended by 2006 PA 655, effective

January 9, 2007.

We note that this Court previously held in three unpublished cases

decided on the same day by the same panel that conspiracy convictions

648 291 M

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644 [Feb

home invasions. A home invasion is a crime against a

person. Because the underlying nature of the conspiracy

involved a crime against a person, the conspiracy convic-

tion was properly used when scoring OV 13 in this case.

C. OV 16

In light of our conclusion that the trial court properly

scored OV 13, any error in the scoring of OV 16 was

harmless. The trial court assessed 5 points for OV 16. If

those 5 points are subtracted from the 15-point OV

total, the remaining 10 points assigned to OV 13 are

sufficient to maintain the OV level at II, MCL 777.64,

and, therefore, the point reduction would not trigger a

need to rescore the guidelines. An erroneous score that

would not, when corrected, result in a different recom-

mended minimum sentence range does not require

resentencing. People v Francisco, 474 Mich 82, 89 n 8;

711 NW2d 44 (2006).

D. JAIL CREDIT

The trial court declined to award defendant sentence

credit in light of defendant’s status as a parolee. Any

are not properly scored under OV 13 because they are classified as crimes

against public safety. See People v Williams, unpublished opinion per

curiam of the Court of Appeals, issued March 10, 2005 (Docket No.

253299); People v Barker, unpublished opinion per curiam of the Court of

Appeals, issued March 10, 2005 (Docket No. 253403); People v Johnson,

unpublished opinion per curiam of the Court of Appeals, issued March 10,

2005 (Docket No. 253943). In addition to not being binding precedent,

MCR 7.215(C)(1), we also find these cases to be of limited persuasive

value because the effect of MCL 777.21(4) on the resolution of the claim

that points cannot properly be assessed under OV 13 for conspiracy

convictions was not raised or discussed.

We note that because all three offenses involve crimes against a

person, the trial court could properly have assessed 25 points for OV 13

under MCL 777.43(1)(b), as amended by 2002 PA 666. MCL 777.43(1)(b)

is now MCL 777.43(1)(c).

2011] P

EOPLE V

ACKSON

649

sentence credit must be applied to the sentence that

defendant was still serving while on parole. People v

Idziak, 484 Mich 549, 552, 565-567; 773 NW2d 616

(2009); People v Filip, 278 Mich App 635, 640-643; 754

NW2d 660 (2008). In Idziak, the Court rejected argu-

ments identical or similar to those now raised by

defendant—i.e., that sentence credit is required by

MCL 769.11b, and the Due Process, Equal Protection,

and Double Jeopardy Clauses. Idziak, 484 Mich at

568-570, 572-574. Thus, this argument is without

merit.

Affirmed.

Two of the remaining issues raised by defendant relate to arguments

he raised in support of granting his delayed application for leave to appeal

and, therefore, need not be addressed on appeal. Additionally, the issue

regarding ineffective assistance of counsel appears to have been raised to

avoid the issue-preservation requirements with regard to defendant’s

challenge to the scoring of the guidelines. Thus, this issue need not be

addressed on appeal.

650 291 M

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644

KLINE v DEPARTMENT OF TRANSPORTATION

Docket No. 295652. Submitted February 9, 2011, at Lansing. Decided

March 1, 2011, at 9:00 a.m.

Hubert E. Kline brought an action in the Court of Claims against the

Michigan Department of Transportation (MDOT) after his vehicle

and an MDOT vehicle collided, causing him serious injuries.

Although Kline sent a detailed notice of his claim to MDOT two

months after the accident, he did not file a notice in the Court of

Claims until eight months after the accident. MDOT moved for

summary disposition under MCR 2.116(C)(4) and (7) on the

ground that Kline had not complied with MCL 600.6431, which

requires a person seeking to maintain a claim against a state

department to file a notice of intention in the Court of Claims

within six months of the event that gave rise to the cause of action.

The court, Paula J. M. Manderfield, J., denied the motion after

concluding that MDOT had received timely notice of Kline’s intent

to file a claim and that Rowland v Washtenaw Co Rd Comm,477

Mich 197 (2007), which held that actual notice and a lack of

prejudice do not excuse noncompliance with the notice require-

ments of MCL 691.1404 (pertaining to governmental immunity

cases), was not applicable to MCL 600.6431. MDOT appealed.

The Court of Appeals held:

MDOT was entitled to summary disposition under McCahan v

Brennan, 291 Mich App 430 (2011), which held that substantial

compliance does not satisfy the notice requirements of MCL

600.6431. A conflict must be declared under MCR 7.215(J)(2)

because, had MCR 7.215(J)(1) not required the panel to follow

McCahan, it would have held that the Rowland rationale did not

apply to MCL 600.6431 and would have affirmed on the grounds

that MDOT had timely notice and was not prejudiced.

Reversed and remanded.

Judge H

OEKSTRA

, concurring in part and dissenting in part,

agreed with the decision to reverse but would not have invoked the

conflict resolution procedure because he would have held that

McCahan was correctly decided.

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Richard J. Stolcenberg for plaintiff.

Bill Schuette, Attorney General, John J. Bursch,

Solicitor General, Richard A. Bandstra, Chief Legal

Counsel, and Philip L. Bladen, Assistant Attorney

General, for defendant.

Before: H

OEKSTRA

, P.J., and F

ITZGERALD

and B

ECKERING

JJ.

ITZGERALD

, J . Defendant, the Michigan Department of

Transportation (MDOT), appeals as of right the order

denying its motion for summary disposition based on

governmental immunity. We reverse because MCR

7.215(J)(1) requires us to follow the holding in McCahan

v Brennan, 291 Mich App 430; 804 NW2d 906 (2011).

Pursuant to MCR 7.215(J)(2), we declare a conflict with

McCahan and state that if we were not obligated to follow

McCahan, we would affirm.

On August 9, 2007, plaintiff, Hubert Kline, was

involved in an automobile accident in which his vehicle

and an MDOT vehicle collided. Plaintiff was seriously

injured, and he filed a complaint against MDOT pursu-

ant to MCL 257.401 of the Michigan Vehicle Code and

MCL 691.1405, a provision of the governmental tort

liability act (GTLA). On October 5, 2007, plaintiff sent

a “Statutory Notice of Claim” by certified mail to

MDOT. The notice provided details regarding the date,

time, and location of the accident. It stated the name of

the MDOT employee who was involved and provided

the MDOT vehicle’s identification number. The notice

explained how the accident happened and described the

injuries plaintiff sustained. On April 15, 2008, a “Notice

of Intention to File Claim” was filed in the Court of

Claims, and on June 17, 2008, an “Amended Notice of

Intention to File Claim” was filed in that court. The

652 291 M

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amended notice provided all the information contained

in the original notice sent directly to MDOT. This

amended notice was signed and verified in compliance

with MCL 600.6431(1). On July 28, 2009, MDOT moved

for summary disposition pursuant to MCR 2.116(C)(4)

and (7) on the ground that plaintiff had not complied

with the statutory notice provisions as required by MCL

600.6431 of the Court of Claims Act. The Court of

Claims denied defendant’s motion. MDOT appeals and

argues that MCL 600.6431 must be enforced as written.

We review de novo motions for summary disposition

brought pursuant to MCR 2.116(C)(4) and (7). Grimes v

Dep’t of Transp, 475 Mich 72, 76; 715 NW2d 275 (2006);

Weishuhn v Catholic Diocese of Lansing, 279 Mich App

150, 155; 756 NW2d 483 (2008). Questions of statutory

interpretation are also reviewed de novo. Grimes, 475

Mich at 76.

Governmental agencies are typically immune from

tort liability when the agency is engaged in a govern-

mental function. MCL 691.1407(1). However, plaintiff’s

case falls into the motor vehicle exception to govern-

mental immunity. MCL 691.1405. Because plaintiff

brought a claim for personal injury pursuant to the

motor vehicle exception, he was required to comply with

the notice provisions set forth in MCL 600.6431. MDOT

argues that plaintiff did not comply as required with the

notice provisions of MCL 600.6431 and that as a result

of this noncompliance MDOT is entitled to summary

disposition.

MCL 600.6431 states in relevant part:

(1) No claim may be maintained against the state unless

the claimant, within 1 year after such claim has accrued,

files in the office of the clerk of the court of claims either a

written claim or a written notice of intention to file a claim

against the state or any of its departments, commissions,

2011] K

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boards, institutions, arms or agencies, stating the time

when and the place where such claim arose and in detail

the nature of the same and of the items of damage alleged

or claimed to have been sustained, which claim or notice

shall be signed and verified by the claimant before an

officer authorized to administer oaths.

***

(3) In all actions for property damage or personal

injuries, claimant shall file with the clerk of the court of

claims a notice of intention to file a claim or the claim itself

within 6 months following the happening of the event

giving rise to the cause of action.

It is undisputed that plaintiff did not file the requi-

site notice in the Court of Claims within six months of

the happening of the event that gave rise to the cause of

action. Plaintiff argues that his October 5, 2007, notice

to MDOT was sufficient to satisfy the statute’s require-

ments and, therefore, defendant was not prejudiced by

the failure to timely file a notice in the Court of Claims.

In Rowland v Washtenaw Co Rd Comm, 477 Mich

197, 219; 731 NW2d 41 (2007), the Michigan Supreme

Court, in a case involving the notice provisions appli-

cable to the highway exception to governmental immu-

nity, MCL 600.1404, held that the notice provision of

that statute contains no prejudice requirement and that

the judiciary cannot read such a requirement into the

statute. Id. at 219. In McCahan, this Court concluded in

a 2-1 decision that the Rowland rationale is not limited

to the notice provisions of MCL 691.1404. The majority

stated:

We recognize that Rowland dealt with a different notice

requirement than does this case. There does not appear to

be any published decision of either this Court or the

Supreme Court that definitively determines whether the

Rowland rationale should also be applied to the notice

654 291 M

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requirements of MCL 600.6431. Indeed, two justices of the

Supreme Court disagreed on this point in separate state-

ments to an order denying leave to appeal in Beasley v

Michigan, 483 Mich 1025 (2009). Then Chief Justice K

ELLY

in her concurring statement, rejected the defendant’s ar-

gument that Rowland should be applied to the notice

provision of MCL 600.6431(3), concluding that Rowland

was distinguishable because it dealt with a different statu-

tory provision. Id. at 1025 (K

ELLY

, C.J., concurring). Justice

ORRIGAN

, on the other hand, in her dissenting statement to

the order denying leave to appeal, opined that Rowland

does apply to the notice provisions of MCL 600.6431. In

particular, she noted that Rowland “rejected earlier case-

law that had assumed notice provisions are unconstitu-

tional if they do not contain a prejudice requirement,” as

well as the fact that the notice requirement in Rowland “is

substantively identical” to the notice provisions of MCL

600.6431. Id. at 1028 (C

ORRIGAN

, J., dissenting). Justice

ORRIGAN

also noted that the statute clearly provides that

no claim may be maintained unless the notice is filed with

the Court of Claims, which did not happen. Id.

We conclude that Justice C

ORRIGAN’

s view represents the

better interpretation of the issue. While Rowland did

directly deal with a claim arising under the defective-

highway exception to governmental immunity, we, like

Justice C

ORRIGAN

, are not persuaded that the Rowland

rationale is somehow limited to MCL 691.1404. Indeed, one

of the cases that Rowland reviewed and rejected, Carver v

McKernan, 390 Mich 96; 211 NW2d 24 (1973), overruled by

Rowland, 477 Mich 197, dealt with a six-month notice

requirement under the Motor Vehicle Accident Claims Act,

MCL 257.1118. In rejecting Carver and other cases, Row-

land stated that “[i]n reading an ‘actual prejudice’ require-

ment into the statute, this Court not only usurped the

Legislature’s power but simultaneously made legislative

amendment to make what the Legislature wanted—a no-

tice provision with no prejudice requirement—impossible.”

Rowland, 477 Mich at 213. Ultimately, Rowland, 477 Mich

at 219, concluded that “MCL 691.1404 is straightforward,

clear, unambiguous, and not constitutionally suspect. Ac-

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cordingly, we conclude that it must be enforced as written.”

The same can be said of MCL 600.6431(3). [McCahan, 291

Mich App at 434-436.]

We conclude that McCahan was wrongly decided and

that Rowland does not dictate the outcome in this case

because it involved a different statutory provision. But

for the mandate in MCL 7.215(J)(1), we would not

follow McCahan. Rather, we would affirm the trial

court’s order denying summary disposition for the

reasons stated in the dissenting opinion in McCahan,

291 Mich App at 436-438 (F

ITZGERALD

, J., dissenting):

The majority concludes, on the basis of Rowland v

Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41

(2007), that plaintiff’s failure to comply with the plain

language of the notice requirement of MCL 600.6431(3)

mandated summary disposition in favor of [defendant].

Because the case before us construes a statute other than

MCL 691.1404, I respectfully dissent for the reasons stated

by Chief Judge M

URPHY

in his dissenting opinion in Prop &

Cas Ins Co of the Hartford v Dep’t of Transp, unpublished

opinion per curiam of the Court of Appeals, issued April 22,

2010 (Docket No. 285749), which I quote in relevant part

and whose reasoning I adopt:

“Because Rowland v Washtenaw Co Rd Comm, 477

Mich 197; 731 NW2d 41 (2007), did not construe the

language in MCL 600.6431(3), and because our Supreme

Court has evidently decided not to extend the holding in

Rowland to MCL 600.6431(3), I am not prepared to dis-

avow May v Dep’t of Natural Resources, 140 Mich App 730;

365 NW2d 192 (1985). In May, this Court held that a

plaintiff’s claims are not barred by failure to comply with

MCL 600.6431(3) unless the defendant established that it

was prejudiced by the noncompliance. May has not been

reversed or explicitly overruled.

“Rowland interpreted MCL 691.1404(1), which differs

from the statute at issue here, MCL 600.6431(3). MCL

691.1404(1) provides that compliance with the notice pro-

vision is ‘a condition to any recovery for injuries sustained

656 291 M

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651 [Mar

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by reason of any defective highway;’ however, MCL

600.6431(3) does not contain comparable ‘recovery precon-

dition’ language. More importantly, our own Supreme

Court does not appear to be prepared to extend the holding

in Rowland to MCL 600.6431(3). In Beasley v Michigan,

483 Mich 1025; 765 NW2d 608 (2009), the Michigan

Supreme Court denied an application for leave to appeal

relative to an order of this Court that had denied leave to

appeal, which in turn pertained to an order by the Court of

Claims denying summary disposition to the state. As re-

flected in a concurring opinion issued by C

HIEF

USTICE

ELLY

in Beasley, the state brought the motion for sum-

mary disposition on the basis that the plaintiff, who had

been injured in a motor vehicle accident involving a state-

owned vehicle, failed to comply with the notice require-

ment of MCL 600.6431(3). Thus, while I recognize that

Supreme Court orders denying leave do not have preceden-

tial value, the order does appear to signal a mindset that

Rowland is inapplicable to MCL 600.6431(3)....

“Until the Supreme Court decides to substantively

address the impact of Rowland on MCL 600.6431(1), which

I encourage it to do as soon as possible, I will continue to

recognize and respect this Court’s decision in May.Inmy

opinion, it defies logic to dismiss plaintiffs’ claims here,

where in Beasley the plaintiff is being permitted to proceed

in the Court of Claims with the apparent blessing of the

Supreme Court.”

For these reasons, and because MDOT had timely

notice of the claim and demonstrated no prejudice as a

result of plaintiff’s failure to comply with MCL

600.6431(3),

we would affirm the trial court’s denial of

defendant’s motion for summary disposition. However,

As noted, the record indicates that plaintiff sent a “Statutory Notice

of Claim” by certified mail to MDOT approximately two months after the

accident. The notice provided details regarding the date, time, and

location of the accident. It stated the name of the MDOT employee who

was involved and provided the MDOT vehicle’s identification number.

The notice explained how the accident happened and the injuries plaintiff

sustained.

2011] K

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we begrudgingly follow McCahan and hold that the trial

court erred by denying defendant’s motion for sum-

mary disposition.

Reversed and remanded to the Court of Claims for

entry of an order granting defendant’s motion for

summary disposition. We do not retain jurisdiction.

ECKERING

, J., concurred.

OEKSTRA

, P.J. (concurring in part and dissenting in

part). I concur with the result reached by the majority

to reverse, but respectfully disagree with its conclusion

that McCahan v Brennan, 291 Mich App 430; 804

NW2d 906 (2011), was wrongly decided. To the con-

trary, I would hold that McCahan was correctly decided.

Consequently, I disagree with the majority’s invoking of

the conflict resolution procedure, MCR 7.215(J)(2).

Both here and in McCahan, the defendants’ only

argument for dismissal was that the plaintiffs in these

cases failed to file with the clerk of the Court of Claims

within six months of the accident a notice of intention

to file a claim, as required by MCL 600.6431(3).

In both

cases, the plaintiffs sought to excuse their failure to

comply with the six-month requirement by arguing that

their lack of compliance did not prejudice the defen-

dants. In deciding this issue, the Court in McCahan

addressed whether the Supreme Court’s holding in

Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731

NW2d 41 (2007), that enforcement of the notice provi-

MCL 600.6431(3) provides:

In all actions [against the state] for property damage or

personal injuries, claimant shall file with the clerk of the court of

claims a notice of intention to file a claim or the claim itself within

6 months following the happening of the event giving rise to the

cause of action.

658 291 M

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651 [Mar

PINION BY

OEKSTRA

,P.J.

sion of MCL 691.1404

was not contingent on a showing

of prejudice, should apply to MCL 600.6431. It con-

cluded:

While Rowland did directly deal with a claim arising

under the defective-highway exception to governmental

immunity, we, like Justice C

ORRIGAN

[in her statement in

Beasley v Michigan, 483 Mich 1025, 1028 (2009)], are not

persuaded that the Rowland rationale is somehow limited

to MCL 691.1404. Indeed, one of the cases that Rowland

reviewed and rejected, Carver v McKernan, 390 Mich 96;

211 NW2d 24 (1973), overruled by Rowland, 477 Mich 197,

dealt with a six-month notice requirement under the Motor

Vehicle Accident Claims Act, MCL 257.1118. In rejecting

Carver and other cases, Rowland stated that “[i]n reading

an ‘actual prejudice’ requirement into the statute, this

Court not only usurped the Legislature’s power but simul-

taneously made legislative amendment to make what the

Legislature wanted—a notice provision with no prejudice

requirement—impossible.” Rowland, 477 Mich at 213.

Ultimately, Rowland, 477 Mich at 219, concluded that

“MCL 691.1404 is straightforward, clear, unambiguous,

and not constitutionally suspect. Accordingly, we conclude

that it must be enforced as written.” The same can be said

of MCL 600.6431(3). [McCahan, 291 Mich App at 435-436.]

I agree with that analysis.

MCL 691.1404(1) provides:

As a condition to any recovery for injuries sustained by reason

of any defective highway, the injured person, within 120 days from

the time the injury occurred, except as otherwise provided in [MCL

691.1404(3)] shall serve a notice on the governmental agency of

the occurrence of the injury and the defect. The notice shall specify

the exact location and nature of the defect, the injury sustained

and the names of the witnesses known at the time by the claimant.

2011] K

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DAILEY v KLOENHAMER

Docket No. 300698. Submitted March 2, 2011, at Lansing. Decided March

8, 2011, at 9:00 a.m.

Barry N. Kloenhamer moved in the Clinton Circuit Court, Family

Division, for sole legal custody of the child he shared with Jill S.

Dailey under a previously stipulated joint-custody arrangement

that had been incorporated into their divorce judgment. Kloen-

hamer also moved for a change in the child’s medical care

following disagreements with Dailey regarding treatment for the

child’s chronic cough. Dailey moved for a change in parenting time

and a change in the child’s school. The court, Lisa Sullivan, J.,

granted Kloenhamer’s motion for sole legal custody and denied

Dailey’s motions. Dailey appealed only the grant of sole legal

custody.

The Court of Appeals held:

1. Under MCL 722.27(1)(c), the circuit court’s determination

that there was either a change in circumstances or a proper cause

to review the custody order was not against the great weight of the

evidence. The record demonstrated that the parties’ disagree-

ments had escalated and expanded to include topics whose resolu-

tion could have a significant effect on the child’s well-being, such

as education and medical treatment, and that the disagreements

had continued since the last custody order.

2. The circuit court did not abuse its discretion by determining

that granting Kloenhamer sole legal custody was in the child’s best

interests. Because an established custodial environment existed

with both parents under MCL 722.27(1)(c), the court could not

modify custody unless it found clear and convincing evidence that

modification was in the child’s best interests. The court properly

considered each statutory best-interest factor listed in MCL 722.23

and concluded that the factors relating to the provision of medical

care for the child, the parties’ physical health, and the child’s

school record all favored Kloenhamer. Given the evidence that

Kloenhamer was more cooperative about making medical deci-

sions for the child, that Dailey’s migraines affected her ability to

exercise parenting time, and that Kloenhamer had enrolled the

660 291 M

ICH

660 [Mar

child in enrichment classes and extracurricular activities, the

court’s findings with regard to these factors were supported by the

record.

3. The circuit court did not err by granting Kloenhamer sole

legal custody despite the fact that the parties had joint physical

custody. MCL 722.26a(7) clearly provides that a court’s custody

order may specify joint legal custody, joint physical custody, or both

joint legal and joint physical custody.

4. The court did not err by failing to fashion a remedy that

involved apportioning the legal-custody authority between the

parties because the Legislature did not intend this remedy to be

available in joint-custody arrangements.

Affirmed.

ARENT AND

HILD —

HILD

USTODY

CT —

OINT

USTODY —

OLE

EGAL

USTODY

A court may grant joint physical custody of a child to both parties

while granting sole legal custody to one party under proper

circumstances (MCL 722.26a[7]).

Scott Bassett for Jill S. Dailey.

Amy H. Bailey and Erica G. Terranova for Barry N.

Kloenhamer.

Before: F

ITZGERALD

,P.J., and O’C

ONNELL

and M

ETER

JJ.

O’C

ONNELL

, J. Plaintiff appeals as of right the circuit

court’s judgment granting sole legal custody of the

parties’ minor child to defendant. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff and defendant divorced in 2003. The parties

have one minor child, who was born March 26, 1998.

During the divorce proceedings, the parties stipulated

that they would share legal custody and that the child

would reside with defendant. The parties also agreed to

a parenting-time schedule in which the child would split

2011] D

AILEY V

LOENHAMER

661

time between the parents. The circuit court incorpo-

rated the agreed-on schedule into the divorce judgment.

For the first few years after the divorce, most of the

parties’ disputes revolved around parenting time. How-

ever, in recent years, the disputes have grown to include

larger and more significant issues. There have been

some disputes over education and religion, and consid-

erable disputes over the proper medical diagnosis and

treatment for the child’s chronic cough. In particular,

the parties disputed whether the child should be treated

for asthma. While this dispute concerning medical

treatment was ongoing, plaintiff filed a motion for

primary physical custody of the child. The parties

reached an agreement on that motion in 2009; the

agreement resulted in an order modifying the parties’

parenting time. The order also required plaintiff to

schedule an appointment with an allergist to obtain a

second opinion on the child’s respiratory condition.

The disputes between the parties continued. Eventu-

ally, a physician at C. S. Mott Children’s Hospital tested

the child and determined that the child did not have

asthma. The parties then disagreed about the proper

health-care provider to oversee the child’s medications,

including the cessation of asthma medications. This

disagreement culminated in December 2009, when

plaintiff filed a motion to have a Mott physician super-

vise the child’s respiratory condition. Defendant op-

posed the motion and asked the circuit court to allow

the allergist to determine the course of treatment for

the child.

In March 2010, the parties reached an agreement on

the motion. The agreement provided that neither party

could seek respiratory treatment or testing for the child

without the express written agreement of the other

party. Additionally, in the event that the child redevel-

662 291 M

ICH

660 [Mar

oped a serious chronic cough, the parties were required

to consult with each other and agree on an appropriate

course of treatment.

Two weeks later, defendant filed a motion regarding

the child’s medical care because the parties could not

agree whether the child should undergo an allergy skin

test. Defendant also filed a motion for sole legal custody.

Defendant alleged that there had been a change in

circumstances since the last custody order, as evidenced

by the numerous motions filed by the parties regarding

medical care. Additionally, defendant asserted that the

parties were unable to agree on the child’s education,

including which school he should attend and which

electives he should be taking.

In response, plaintiff indicated that defendant had

failed to engage in good-faith discussions concerning

medical care. Plaintiff denied that the parties were

unable to agree on education, but did indicate that she

was planning to file a motion for a change in parenting

time so the child could attend a private school in the

Detroit area where plaintiff now lived. Plaintiff subse-

quently filed a motion for a change in parenting time

and a change in the child’s school because she alleged

that the child was not being adequately challenged in

his current school in DeWitt. According to plaintiff, the

school offered no advanced or gifted programs for the

child, and the child was becoming bored with school.

Defendant opposed the school change.

In August 2010, the circuit court held a hearing on

the parties’ motions. After two days of testimony, the

circuit court issued a ruling from the bench. The court

first found that there was proper cause or a change in

circumstances to review the custody order. The court

then found that the child had an established custodial

environment in both parties’ homes. After reviewing

2011] D

AILEY V

LOENHAMER

663

the statutory best-interest factors of MCL 722.23, the

court granted defendant’s motion for sole legal custody.

The court denied plaintiff’s motions.

Plaintiff now appeals the grant of legal custody to

defendant. Plaintiff alleges that the circuit court erred

when it determined that proper cause or a change in

circumstances existed for the court to review the cus-

tody order. Additionally, plaintiff argues that defendant

failed to present clear and convincing evidence that a

change in custody was in the child’s best interests. Also,

plaintiff argues that the Child Custody Act, MCL 722.21

et seq., requires that a parent who is granted physical

custody must also be granted legal custody. Finally,

plaintiff argues that the circuit court should have

implemented a less drastic remedy by apportioning the

important decision-making authority between the par-

ties.

II. STANDARD OF REVIEW

MCL 722.28 provides that in child-custody disputes,

“all orders and judgments of the circuit court shall be

affirmed on appeal unless the trial judge made findings

of fact against the great weight of evidence or commit-

ted a palpable abuse of discretion or a clear legal error

on a major issue.” Our Supreme Court has explained

that MCL 722.28 “distinguishes among three types of

findings and assigns standards of review to each.”

Fletcher v Fletcher, 447 Mich 871, 877; 526 NW2d 889

(1994). Findings of fact, such as the trial court’s find-

ings on the statutory best-interest factors, are reviewed

under the “great weight of the evidence” standard. Id.

at 878-879. Discretionary rulings, such as to whom

custody is awarded, are reviewed for an abuse of discre-

tion. Id. at 879. An abuse of discretion exists when the

trial court’s decision is “palpably and grossly violative

664 291 M

ICH

660 [Mar

of fact and logic....”Id. (citation and quotation marks

omitted); see also Shulick v Richards, 273 Mich App

320, 325; 729 NW2d 533 (2006). Finally, “clear legal

error” occurs when a court incorrectly chooses, inter-

prets, or applies the law. Fletcher, 447 Mich at 881.

III. DISCUSSION

Before modifying or amending a custody order, the

circuit court must determine whether the moving party

has demonstrated either proper cause or a change of

circumstances to warrant reconsideration of the cus-

tody decision. MCL 722.27(1)(c); Vodvarka v Grasm-

eyer, 259 Mich App 499, 508-509; 675 NW2d 847 (2003).

The movant has the burden of proving by a preponder-

ance of the evidence that either proper cause or a

change of circumstances exists. Vodvarka, 259 Mich

App at 509. To establish proper cause, the movant must

prove “the existence of an appropriate ground for legal

action to be taken by the trial court.” Id. at 512.

Further, “[t]he appropriate ground(s) should be rel-

evant to at least one of the twelve statutory best

interest factors, and must be of such magnitude [as] to

have a significant effect on the child’s well-being.” Id.

Similarly, to establish a change of circumstances, the

movant must prove that “since the entry of the last

custody order, the conditions surrounding custody of

the child, which have or could have a significant effect

on the child’s well-being, have materially changed.” Id.

at 513.

Plaintiff contends that whether a party has demonstrated proper

cause or a change of circumstances is a question of law that this Court

should review de novo. We disagree. “This Court reviews a trial court’s

determination regarding whether a party has demonstrated proper cause

or a change of circumstances under the great weight of the evidence

standard.” Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903

(2009).

2011] D

AILEY V

LOENHAMER

665

Plaintiff argues that the circuit court erred when it

determined that a change in circumstances or a proper

cause existed to review the custody order. We disagree.

The record demonstrates that the parties’ disagree-

ments have escalated and expanded to topics that could

have a significant effect on the child’s well-being. The

parties disagree over the proper educational course for

the child. More significantly, since the date of the last

custody order, the parties have continued to disagree

about the child’s medical treatment. Plaintiff scheduled

an appointment at Mott for a pulmonary function test

without defendant’s knowledge, but defendant opposed

the child’s going to Mott and filed a motion to prevent

the test. Later, the parties were unable to agree on

when and how to wean the child from his asthma

medications. Additionally, defendant wished to proceed

with the allergist’s recommendation of a skin test for

the child, but plaintiff opposed the test absent express

instructions from the Mott physician. The parties’

recurrent disagreements delayed the child’s medical

treatment; further delay could have a detrimental effect

on the child’s well-being. These medical delays are

directly relevant to the best-interest factor set forth in

MCL 722.23(c) (capacity and disposition to provide the

child with medical care). Given these facts, it was not

against the great weight of the evidence for the circuit

court to have determined that either proper cause or a

change of circumstances existed to revisit the custody

decision.

Next, plaintiff argues that even if proper cause or a

change in circumstances did exist, the circuit court

erred when it determined that granting defendant sole

legal custody was in the child’s best interests. Again, we

disagree. Once a party has met the initial burden of

showing a change in circumstances or proper cause to

revisit the custody order, the next step is for the circuit

666 291 M

ICH

660 [Mar

court to determine the applicable burden of proof for

the custody hearing. See MCL 722.27(1)(c). In this case,

because an established custodial environment existed

with both parents, the circuit court correctly deter-

mined that it could not modify custody unless it found

clear and convincing evidence that modification was in

the child’s best interests. Id.

In determining the best interests of the child, the

court must review the best-interest factors listed in

MCL 722.23. In addition, the court must consider “the

general level of cooperation and agreement between the

parties when considering joint custody.” Wellman v

Wellman, 203 Mich App 277, 281; 512 NW2d 68 (1994);

see also MCL 722.26a(1)(b). When ruling on a custody

motion, the circuit court must expressly evaluate each

best-interest factor and state its reasons for granting or

denying the custody request on the record. MCL

722.26a; Meyer v Meyer, 153 Mich App 419, 426; 395

NW2d 65 (1986).

The record confirms that the circuit court properly

considered each best-interest factor and that the parties

were equal on the majority of the factors. However, the

court found that factors (c), (g), and (h) all favored

defendant. Factor (c) is the “[t]he capacity and disposi-

tion of the parties involved to provide the child with

food, clothing, medical care or other remedial care ....”

MCL 722.23(c). The circuit court correctly recognized

that this factor is the crux of most of the discord

between the parties. Although the record indicates that

plaintiff’s persistence has had some positive effect on

the child’s medical treatment, the record also demon-

strates that plaintiff second-guesses defendant’s efforts

and does not trust defendant to make medical decisions.

The record supports the court’s determination that

“[t]here isn’t a productive decision-making unit for the

2011] D

AILEY V

LOENHAMER

667

medical decisions for [the child] at any level....”

Further, the record supports the court’s determination

that while defendant acquiesced to plaintiff’s demands

and was open to plaintiff’s views, plaintiff did not

reciprocate defendant’s collegiality. In sum, the trial

court’s decision regarding factor (c) was within the

weight of the evidence.

Factor (g) is “[t]he mental and physical health of the

parties involved.” MCL 722.23(g). The court found that

this factor slightly favored defendant because plaintiff

was suffering from temporary ocular migraines that

affected her ability to exercise her parenting time. The

record supports this determination.

Factor (h) is “[t]he home, school, and community

record of the child.” MCL 722.23(h). The circuit court

correctly noted that the parties cannot agree on educa-

tional decisions. The child is doing well in school.

Plaintiff nonetheless wishes to transfer the child to a

private school because plaintiff believes the current

school does not challenge the child. The trial court

noted that despite plaintiff’s concerns, plaintiff had not

enrolled the child in summer enrichment programs, nor

had she met with the child’s teachers to discuss her

concerns. In contrast, defendant had enrolled the child

in robotics classes, computer animation classes, and

other extracurricular activities.

The circuit court also considered the parties’ ability

to cooperate and generally agree on important decisions

affecting the child’s welfare. See MCL 722.26a(1)(b).

The court correctly determined that the parties had

placed a priority on their efforts to document their

actions and their disagreements, while the child’s medi-

cal and educational care had been relegated to an

apparently secondary concern. The court concluded

that the parties “just can’t—they can’t operate in an

668 291 M

ICH

660 [Mar

effective manner for their [child].” The record indicates

that the parties’ acrimony affected their ability to agree

on important matters, particularly with regard to the

child’s medical treatment.

Plaintiff maintains that the circuit court erred by

failing to address each statutory best-interest factor

with regard to each motion (defendant’s motion for

legal custody and plaintiff’s motions for a change in the

child’s school and a change in parenting time). We find

the record sufficient to determine whether the evidence

clearly preponderates against the trial court’s findings.

See Fletcher, 447 Mich at 879. Moreover, plaintiff has

not appealed the circuit court’s decisions on her mo-

tions for a change in parenting time or for a change in

the child’s school. The court’s factual findings with

regard to defendant’s motion for legal custody are

supported by the record, and we need not determine in

this appeal whether the findings were sufficient for any

other purpose. Furthermore, the controlling standard

of review requires us to affirm the circuit court’s

custody decision unless the decision is palpably and

grossly violative of fact and logic. Id.; Shulick, 273 Mich

App at 325. In this case, the circuit court’s decision was

supported by fact and logic. Therefore, the court did not

abuse its discretion by awarding sole legal custody to

defendant.

Plaintiff’s next argument is that the Child Custody

Act does not allow a court to grant sole legal custody to

one party when the parties share physical custody. This

issue was never raised below and therefore is not

properly preserved for appeal. Nonetheless, we will

consider the issue because it is necessary to the proper

determination of the case. Providence Hosp v Nat’l

Labor Union Health & Welfare Fund, 162 Mich App

191, 194-195; 412 NW2d 690 (1987).

2011] D

AILEY V

LOENHAMER

669

MCL 722.26a authorizes the circuit court to award

joint custody. MCL 722.26a(7) provides as follows:

As used in this section, “joint custody” means an order

of the court in which 1 or both of the following is specified:

(a) That the child shall reside alternately for specific

periods with each of the parents.

(b) That the parents shall share decision-making au-

thority as to the important decisions affecting the welfare

of the child.

Although not specifically designated in the statute,

the custody described in § 6a(7)(a) is commonly referred

to as joint physical custody, and that described in

§ 6a(7)(b) is referred to as joint legal custody. Plaintiff

contends that the act does not authorize separating

joint physical custody from joint legal custody; however,

that contention is contrary to the plain language of the

statute. The statute clearly provides that a trial court’s

custody order may specify “1 or both”—physical cus-

tody or legal custody. MCL 722.26a(7). The “1 or both”

provision specifically authorizes a court to order that

the child reside alternately with each parent and to also

order that only one parent has “decision-making au-

thority as to important decisions affecting the welfare

of the child.” MCL 722.26a(7). Moreover, the act itself

states that it “is equitable in nature and shall be

liberally construed and applied to establish promptly

the rights of the child and the rights and duties of the

parties involved.” MCL 722.26(1). Given the plain lan-

guage of the joint-custody provisions and the equitable

nature of the act, we hold that the act authorizes courts

in proper circumstances to grant joint physical custody

to the parties while granting sole legal custody to one

party.

Plaintiff’s final argument is that the circuit court

should have fashioned a remedy to apportion the legal-

670 291 M

ICH

660 [Mar

custody authority between the parties. This issue, how-

ever, was not raised below and is unpreserved. Further-

more, even if it had been preserved for appeal, the

argument would be without merit. In Shulick, 273 Mich

App at 328-329, this Court held that the Legislature did

not intend to provide for joint-custody arrangements if

important decision-making authority is apportioned

between the parties.

IV. CONCLUSION

Proper cause or a change in circumstances existed for

the circuit court to revisit the March 9, 2009, custody

order. Furthermore, the circuit court’s factual findings

on the best-interest factors are supported by the record,

and its decision to grant defendant sole legal custody is

supported by fact and logic. The circuit court did not err

when it ordered that the parties would have joint

physical custody while granting sole legal custody to

defendant.

Affirmed.

2011] D

AILEY V

LOENHAMER

671

PCS4LESS, LLC v STOCKTON

Docket No. 296870. Submitted March 2, 2011, at Lansing. Decided March

8, 2011, at 9:05 a.m.

PCS4LESS, LLC, and Wholesale Cellutions brought an action in the

Washtenaw Circuit Court against Kyle Stockton, Jesse Lobb,

Hilary Mason, Go Mobile, Inc., and others, alleging breach of

contract, conversion, civil conspiracy, tortious interference with

business relations, and violation of certain statutes as a result of

defendants’ alleged misappropriation of certain exclusive software

from plaintiffs. Plaintiffs also sought a temporary restraining

order (TRO) to prevent Lobb, Mason, and Go Mobile from using or

destroying the purported trade secrets contained within the soft-

ware. The court, Melinda Morris, J., granted a TRO, ordering

Lobb, Mason, and Go Mobile to return any of plaintiffs’ property in

their possession and to not delete any computerized information

taken from plaintiffs. When they did not produce the CNS soft-

ware program sought by plaintiffs and claimed that they never had

it, the court ordered Lobb, Mason, and Go Mobile to submit

affidavits stating that Go Mobile and its employees never received,

possessed, or used the CNS program and never sold a cell phone

that contained the CNS program. Lobb and Mason submitted

affidavits in which they stated that the information at issue was

protected by their right against self-incrimination under the Fifth

Amendment. Plaintiffs filed a motion to compel Lobb, Mason, and

Go Mobile to comply with the court’s order. The court granted

plaintiffs’ motion, ordering Lobb, Mason, and Go Mobile to pro-

duce the CNS program or submit proper affidavits. The court then

denied a motion for reconsideration. Lobb, Mason, and Go Mobile

appealed by leave granted, contending that the court’s orders

denied their Fifth Amendment right against compelled self-

incrimination.

The Court of Appeals held:

1. The Fifth Amendment operates not only in criminal trials, it

also protects an individual from official questioning in any other

proceeding, civil or criminal, formal or informal, where the an-

swers might incriminate the individual in future criminal proceed-

ings. The Fifth Amendment privilege protects an individual from

672 291 M

ICH

672 [Mar

being forced to answer any question that would furnish a link in

the chain of evidence needed to prosecute. To sustain the privilege,

it need only be evident from the implications of the question, in the

setting in which it is asked, that a responsive answer to the

question or an explanation of why it cannot be answered might be

dangerous because injurious disclosure could result. A court

should bar a claim of privilege under the Fifth Amendment only

when the answer cannot possibly be incriminating.

2. It should have been clear to the trial court that possession of

plaintiffs’ CNS program by Lobb, Mason, or Go Mobile might lead

to criminal sanctions against them. Answering the question

whether they possess plaintiffs’ trade secrets might force them to

furnish a link in the chain of evidence needed to prosecute them.

3. Although the contents of a document may not be privileged,

the act of producing the document may be privileged. The Fifth

Amendment privilege may apply where a governmental subpoena

compels the holder of a document to perform an act that may have

testimonial aspects and an incriminating effect. Here, the act of

producing the content of the CNS program would be an admission

that Lobb, Mason, or Go Mobile possessed it. Under the circum-

stances of this case, such an admission would have testimonial

value and would tend to incriminate them. The order for Lobb and

Mason to either produce the program or submit affidavits that

they do not possess it constituted compelled self-incrimination in

violation of the Fifth Amendment privilege.

4. Organizations, such as a corporation, generally are not

protected by the Fifth Amendment privilege. The custodian of an

organization’s records may not refuse to produce the records even

if the records might incriminate the custodian personally.

5. A three-part test is used to determine whether the Fifth

Amendment privilege may be used to prevent the production of an

organization’s documents: (1) Are the documents the records of

the organization rather than those of the individual who has

possession of them? (2) Does the custodian hold the records in a

representative, rather than a personal, capacity? Assuming affir-

mative answers, in the case of a corporation, the inquiry is ended.

In the case of noncorporate organizations, a third question arises:

(3) Does the organization have an established institutional identity

that is recognized as an entity apart from its individual members?

Here, application of the test mandates the conclusion that the CNS

program would be a record of Go Mobile and not of Lobb or Mason.

Therefore, the Fifth Amendment does not prohibit the compelled

production of the CNS program. Lobb and Mason cannot rely on the

Fifth Amendment privilege to avoid producing the records of a

2011] PCS4LESS

TOCKTON

673

collective entity that are in their possession in a representative

capacity, even if the records might incriminate them personally.

The part of the order requiring Go Mobile to produce the required

affidavit is affirmed. The part of the order requiring Lobb and

Mason to produce affidavits is reversed, and the case is remanded

to the trial court for the entry of an order consistent with the

opinion of the Court of Appeals.

Affirmed in part, reversed in part, and remanded.

1. C

ONSTITUTIONAL

AW —

ELF

-I

NCRIMINATION —

RIVILEGE

GAINST

ELF

NCRIMINATION

The Fifth Amendment privilege against self-incrimination operates

not only in criminal trials, but also protects an individual from

official questioning in any other proceeding, civil or criminal,

formal or informal, administrative or judicial, or investigatory or

adjudicatory where the answers might incriminate the individual

in future criminal proceedings; the privilege protects an individual

from being forced to answer any question that would furnish a link

in the chain of evidence needed to prosecute; to sustain the

privilege, it need only be evident from the implications of the

question, in the setting in which it is asked, that a responsive

answer or an explanation of why it cannot be answered might be

dangerous because injurious disclosure could result; a court should

bar a claim of privilege only when the individual’s answer cannot

possibly be incriminating (US Const, Am V).

2. C

ONSTITUTIONAL

AW —

ELF

-I

NCRIMINATION —

RIVILEGE

GAINST

ELF

NCRIMINATION

The Fifth Amendment privilege against self-incrimination may

apply when a governmental subpoena compels the holder of a

document to perform an act that may have testimonial aspects and

an incriminating effect; the act of producing a document may be

subject to the privilege even though the contents of the document

are not privileged (US Const, Am V).

3. C

ONSTITUTIONAL

AW —

ELF

-I

NCRIMINATION —

RIVILEGE

GAINST

ELF

NCRIMINATION

The Fifth Amendment privilege against self-incrimination may not

be asserted on behalf of another and cannot be utilized by or on

behalf of any organization, such as a corporation; organizations

with independent existence apart from their individual members

may not assert the privilege; the custodian of an organization’s

records may not refuse to produce the records even if those records

might incriminate the custodian personally (US Const, Am V).

674 291 M

ICH

672 [Mar

Jaffe Raitt Heuer & Weiss, P.C. (by Mark L. Kowalsky

and Patrice S. Arend), for Jesse Lobb, Hilary Mason,

and Go Mobile, Inc.

Before: F

ITZGERALD

, P.J., and O’C

ONNELL

and M

ETER

JJ.

O’C

ONNELL

, J. This case arises from plaintiffs-

appellees’ claims that defendants-appellants misappro-

priated certain exclusive software from appellees. Ap-

pellants appeal by leave granted. We affirm in part and

reverse in part, albeit for different reasons than those

relied on by the trial court.

As part of their business operations, appellees pur-

chase Motorola cellular phones on the secondary mar-

ket and then apply certain software that “unlocks” the

phones for sale to vendors in the United States and

other countries.

Appellees allege that they purchased

the exclusive license for the two applicable software

programs, Covenant and CNS. Appellees further allege

that defendant Kyle Stockton transferred certain of

their financial records and the cell phone unlocking

software to appellant Jesse Lobb’s computer or another

computer of appellant Go Mobile, Inc. Appellees claim

that the transferred information constitutes confiden-

tial and trade-secret information. Appellees brought

this lawsuit seeking recovery under several theories

and also requesting a temporary restraining order

(TRO) to prevent appellants Go Mobile, Lobb, and

Hilary Mason from using or destroying the purported

trade secrets. The trial court granted the TRO and

ordered appellants to return any of appellees’ property

Hess v Cannon Twp, 265 Mich App 582, 596; 696 NW2d 742 (2005).

According to appellees’ complaint, the software “unlock[s] the stan-

dard subsidy lock” or “unlock[s] the carrier not supported lock.”

2011] PCS4LESS

TOCKTON

675

in their possession and to not delete any computerized

information taken from appellees.

Because appellants did not produce the CNS program

and claimed that they never had it, the trial court

ordered appellants Lobb, Mason, and Go Mobile to

submit affidavits that Go Mobile and its employees

never received, possessed, or used the CNS program

and never sold a cell phone containing the CNS pro-

gram. Lobb and Mason submitted affidavits in which

they stated that the information at issue was protected

by their rights against self-incrimination under the

Fifth Amendment. US Const, Am V. Appellees re-

sponded by filing a motion to compel Lobb, Mason, and

Go Mobile to properly comply with the trial court’s

order.

The trial court granted appellees’ motion, ordering

appellants to either produce the CNS program or sub-

mit proper affidavits. The court held that appellants

failed to provide the court with sufficient information to

establish the testimonial and incriminating character of

the requested affidavits. Although appellants informed

the court that appellees had instigated a federal crimi-

nal investigation, the court noted that appellants had

not described any direct contact with federal authori-

ties, nor had appellants informed the court of any

specific law under which they might be prosecuted. The

court denied appellants’ motion for reconsideration. On

appeal, appellants argue that the trial court’s orders

denied their Fifth Amendment right against compelled

self-incrimination.

This Court reviews a trial court’s discovery orders,

such as an order to compel, for an abuse of discretion.

Mercy Mt Clemens Corp v Auto Club Ins Ass’n , 219 Mich

App 46, 50, 55; 555 NW2d 871 (1996). An abuse of

discretion occurs when the trial court chooses an out-

676 291 M

ICH

672 [Mar

come falling outside a range of principled outcomes.

Maldonado v Ford Motor Co, 476 Mich 372, 388; 719

NW2d 809 (2006). Constitutional questions are ques-

tions of law, which we review de novo. Mahaffey v

Attorney General, 222 Mich App 325, 334; 564 NW2d

104 (1997).

The first question is whether the Fifth Amendment

privilege against self-incrimination is applicable in this

situation.

The Fifth Amendment operates not only in

criminal trials, it also protects an individual from

official questioning in “any other proceeding, civil or

criminal, formal or informal, where the answers might

incriminate him in future criminal proceedings.” People

v Wyngaard, 462 Mich 659, 671-672; 614 NW2d 143

(2000) (quotation marks and citation omitted); see also

Kastigar v United States, 406 US 441, 444; 92 S Ct

1653; 32 L Ed 2d 212 (1972) (stating that a witness may

invoke the Fifth Amendment “in any proceeding, civil

or criminal, administrative or judicial, investigatory or

adjudicatory”). This protection operates against the

states through the Fourteenth Amendment. US Const,

Am XIV. Malloy v Hogan, 378 US 1, 6; 84 S Ct 1489; 12

L Ed 2d 653 (1964).

The Fifth Amendment privilege protects an indi-

vidual from being forced to answer any question that

would “ ‘furnish a link in the chain of evidence needed

to prosecute....’” Malloy, 378 US at 11, quoting

Hoffman v United States, 341 US 479, 486; 71 S Ct 814;

95 L Ed 1118 (1951). “ ‘To sustain the privilege, it need

only be evident from the implications of the question, in

The relevant aspect of the right against self-incrimination has not

been interpreted differently under the Michigan Constitution than under

the United States Constitution. People v Cheatham, 453 Mich 1, 10; 551

NW2d 355 (1996); Paramount Pictures Corp v Miskinis, 418 Mich 708,

725-726; 344 NW2d 788 (1984). Nor do appellants argue that the

Michigan Constitution offers them greater protection.

2011] PCS4LESS

TOCKTON

677

the setting in which it is asked, that a responsive

answer to the question or an explanation of why it

cannot be answered might be dangerous because inju-

rious disclosure could result.’ ” Malloy, 378 US at

11-12, quoting Hoffman, 341 US at 486-487. A court

should bar a claim of privilege under the Fifth Amend-

ment only when the answer cannot possibly be incrimi-

nating. Id. at 12.

In this case, appellants are essentially being asked

whether they possess what appellees allege to be appel-

lees’ trade secrets. It is true that appellants did not

originally provide the trial court with any specific

statutes that such possession might violate, but it

should have been clear that possession of appellees’

CNS program might well lead to criminal sanctions

against appellants. Thus, answering the question might

force appellants to furnish a link in the chain of

evidence needed to prosecute.

The trial court also ordered appellants to return the

CNS program to appellees, if the program is in appel-

lants’ possession. In United States v Doe, 465 US 605,

612; 104 S Ct 1237; 79 L Ed 2d 552 (1984), the Court

stated that “[a]lthough the contents of a document may

not be privileged, the act of producing the document

may be.” Thus, where “[a] government subpoena com-

pels the holder of the document to perform an act that

may have testimonial aspects and an incriminating

effect,” the Fifth Amendment privilege may apply. Id.

Here, the act of producing the content of the program

would be an admission that appellants possessed it.

Under the circumstances of this case, such an admis-

sion would have significant testimonial value and would

tend to incriminate appellants. See id. at 613. There-

fore, the order for Mason and Lobb to either produce

the program or submit affidavits that appellants do not

678 291 M

ICH

672 [Mar

possess it constitutes compelled self-incrimination in

violation of the Fifth Amendment privilege.

However, organizations generally are not protected

by the privilege. United States v White, 322 US 694, 699;

64 S Ct 1248; 88 L Ed 1542 (1944); Paramount Pictures

Corp v Miskinis, 418 Mich 708, 715; 344 NW2d 788

(1984), citing White, 322 US at 699 (providing that the

Fifth Amendment privilege may not be asserted on

behalf of another, and it “cannot be utilized by or on

behalf of any organization, such as a corporation”).

Appellants argue that this case presents an exception

because forcing Go Mobile to reveal whether it pos-

sesses CNS would essentially reveal whether Lobb or

Mason have possessed CNS. However, as our Supreme

Court has clearly observed, the custodian of an organi-

zation’s records may not refuse to produce the records

even if those records might incriminate the custodian

personally. Paramount Pictures Corp, 418 Mich at 715,

citing Wilson v United States, 221 US 361; 31 S Ct 538;

55 L Ed 771 (1911).

Appellants cite United States v Kordel, 397 US 1, 8-9;

90 S Ct 763; 25 L Ed 2d 1 (1970), for the proposition

that a corporation’s action cannot prevail over an

individual’s Fifth Amendment rights. They read Kordel

too broadly. Kordel holds that while an agent of a

corporation may assert his or her Fifth Amendment

privilege, the corporation cannot take advantage of that

fact to avoid answering interrogatories addressed to the

corporation. Id. at 7-8. The Kordel Court held that the

corporation was obligated to appoint an agent who

could answer the interrogatories without fear of self-

incrimination and clearly stated that it would not

permit the corporation to hide behind individuals’ Fifth

Amendment privileges. Id. at 8. Although it did not

decide the point, the Court suggested that in a situation

2011] PCS4LESS

TOCKTON

679

where no agent of the corporation could answer the

interrogatories without incriminating himself or her-

self, the appropriate remedy would be a protective order

postponing discovery until any criminal action was

settled. Id. at 8-9. However, later cases have not fol-

lowed this dicta. See, e.g., Bellis v United States, 417 US

85; 94 S Ct 2179; 40 L Ed 2d 678 (1974); Paramount

Pictures Corp, 418 Mich 708.

Citing Doe, 465 US 605, appellants also argue that

small companies may have Fifth Amendment rights

where the only persons who could testify on behalf of

the companies or produce requested documents are the

same individuals whose personal Fifth Amendment

rights are at stake. In Doe, the Supreme Court con-

cluded that the owner of a sole proprietorship acts in a

personal rather than a representative capacity, thereby

allowing the owner to assert the owner’s personal Fifth

Amendment privilege over his or her business docu-

ments. Id. at 608, 617. However, Go Mobile is a Penn-

sylvania corporation, and appellants do not suggest that

Go Mobile has only one owner. Moreover, the Doe Court

noted that collective entities, meaning organizations

with independent existence apart from their individual

members, may not assert the Fifth Amendment privi-

lege. Id. at 608 n 4, citing Bellis, 417 US at 92.

However, appellants’ position is supported to some

extent by dicta from Bellis. Though the Bellis Court

held that independent entities may not take advantage

of the privilege, it stated that the general rule might not

apply in cases involving small family partnerships.

Bellis, 417 US at 101. The key distinction recognized in

Bellis is whether the person possessing the organiza-

tion’s records holds them in a personal or a represen-

tative capacity. Id. If the former, the records are pro-

tected; if the latter, they are not.

680 291 M

ICH

672 [Mar

In Paramount Pictures Corp, our Supreme Court

considered the federal precedent and identified a three-

part test to determine whether the Fifth Amendment

privilege may be used to prevent the production of an

organization’s documents:

1. Are the documents the records of the organization

rather than those of the individual who has possession of

them?

2. Does the custodian hold the records in a representa-

tive, rather than a personal, capacity?

Assuming affirmative answers, in the case of a corpora-

tion the inquiry is ended because of the special nature of

the corporate form and the state’s reservation of visitato-

rial powers over corporations. In the case of non-corporate

organizations, however, a third question arises:

3. Does the organization have an established institu-

tional identity which is recognized as an entity apart from

its individual members? [Paramount Pictures Corp, 418

Mich at 720 (citations omitted).]

The Court in Paramount Pictures Corp also consid-

ered the reference in Bellis to small family partnerships

and concluded that the Bellis language “merely was

meant to restate that the papers required to be pro-

duced must not be the private and personal papers of

the individuals held in a personal capacity.” Id. at 725.

Applying the Paramount Pictures Corp test to the

current case, we conclude that the CNS program would

be a record of Go Mobile and not of the individual

appellants. The program, if any of the appellants have

it, would be used to further Go Mobile’s business. For

the same reason, it appears that if either of the indi-

vidual appellants have the CNS program, they hold it in

a representative, rather than a personal, capacity.

Therefore, under Paramount Pictures Corp, the Fifth

Amendment does not prohibit the compelled production

2011] PCS4LESS

TOCKTON

681

of the CNS program. The individual appellants “cannot

rely upon the privilege to avoid producing the records of

a collective entity which are in [their] possession in a

representative capacity, even if these records might

incriminate [them] personally.” Bellis, 417 US at 88.

We affirm the part of the trial court’s order that

required Go Mobile to produce the required affidavit.

However, with respect to Mason and Lobb, that part of

the order is reversed. We remand for entry of an order

comporting with these instructions. We do not retain

jurisdiction.

682 291 M

ICH

672 [Mar

BOERTMANN v CINCINNATI INSURANCE COMPANY

Docket No. 293835. Submitted November 3, 2010, at Detroit. Decided

March 8, 2011, at 9:10 a.m.

Gale Boertmann brought an action in the Macomb Circuit Court

seeking no-fault personal protection insurance benefits from

Cincinnati Insurance Company for psychological injuries she

suffered after seeing a vehicle collide with her son’s motorcycle,

causing his death. At the time of the accident, plaintiff was

driving directly behind her son in a vehicle insured by defen-

dant. The court, Peter J. Maceroni, J., initially granted defen-

dant’s motion for summary disposition but, on reconsideration,

vacated that order and granted summary disposition in plain-

tiff’s favor, ruling that her injuries arose out of the use of a

motor vehicle as a motor vehicle under the no-fault act, MCL

500.3105(1). Defendant appealed.

The Court of Appeals held:

The trial court correctly concluded that plaintiff’s injuries

arose out of the use of a motor vehicle as a motor vehicle because

her injuries were caused by witnessing the accident, not by the

death of her son, and that she was therefore entitled to personal

protection insurance benefits under the no-fault act. The fact that

plaintiff was not involved in the accident does not place her

injuries outside the scope of MCL 500.3105(1), nor does the fact

that her injuries did not result from physical contact with a motor

vehicle.

Affirmed.

NSURANCE —

-F

AULT —

ERSONAL

ROTECTION

NSURANCE

ENEFITS —

OTOR

EHICLES —

SE OF

OTOR

EHICLES

OTOR

EHICLES

An insured may be entitled to personal protection insurance benefits

under the no-fault act for psychological injuries caused by witness-

ing the accident that killed the insured’s child; the insured need

not be involved in the accident itself or be injured by physical

contact with a motor vehicle to be entitled to benefits (MCL

500.3105[1]).

2011] B

OERTMANN V

INCINNATI

683

Mancini, Schreuder, Kline & Conrad, P.C. (by Ellen

G. Schreuder and Drew Slager), for plaintiff.

Robert P. Hurley for defendant.

Before: M

URPHY

, C.J., and M

ETER

and S

HAPIRO

,JJ.

ETER

, J. Defendant appeals as of right from a grant

of summary disposition to plaintiff under MCR

2.116(C)(10). The undisputed evidence showed that

plaintiff suffered psychological injuries from witnessing

the death of her son in a motor vehicle accident. We hold

that the trial court correctly concluded that plaintiff’s

injuries arose out of the use of a motor vehicle as a

motor vehicle and that she was therefore entitled to

no-fault personal insurance protection (PIP) benefits.

Accordingly, we affirm.

On September 1, 2007, plaintiff was driving a motor

vehicle that was insured by defendant. She was driving

behind her son Chris, who was operating a motorcycle.

Plaintiff saw a vehicle make a wide turn into Chris’s

path and saw the two vehicles collide. Plaintiff pro-

ceeded to the parking lot where Chris landed after the

collision and went over to him. He was severely injured

and was pronounced dead approximately 30 minutes

after the collision.

After the accident, plaintiff was treated by licensed

psychologists Robert Cornette and Vera Sekulov and

was diagnosed as suffering from “post-traumatic stress

disorder...and major depressive disorder, single epi-

sode, severe without psychotic features.” An affidavit

submitted by Drs. Cornette and Sekulov states:

Gale’s post-traumatic stress disorder is caused by her

witnessing of the collision which killed her son. The

traumatic incident in this case is the collision itself be-

tween Christopher’s motorcycle and the car that we are

684 291 M

ICH

683 [Mar

told cut him off. Gale continues to have nightmares involv-

ing car crashes in general and regularly dreams of dead

bodies she does not recognize which are maimed in crashes,

bodies laying in blood, with eyes and mouth open, dead

people hanging with skin off, dead babies on pavement, and

other gruesome sights. Recurrent images and thoughts of

the accident marked diminished interest and ability to

function, restricted affect and significant cognitive impair-

ments.

Gale suffers from several physical manifestations of her

post-traumatic stress disorder and depression. She suffers

from insomnia related to her post-traumatic stress disorder

and depression, extreme fatigue, nausea, nose bleeds, sleep

loss, loss of appetite, nightmares, and severe headaches on

a daily basis.

Plaintiff sought PIP benefits from defendant, which

defendant refused to pay. Plaintiff thereafter brought

this action to recover PIP benefits for wage loss, re-

placement services, and medical care and expenses.

Both parties filed motions for summary disposition

under MCR 2.116(C)(10). The arguments focused on

whether plaintiff’s injuries

were injuries “arising out

ofthe...useofamotor vehicle as a motor vehicle....”

MCL 500.3105(1). The trial court initially granted de-

fendant’s motion and denied plaintiff’s motion. The

court found instructive Williams v Citizens Mut Ins Co

of America, 94 Mich App 762, 763-765; 290 NW2d 76

(1980) (finding an inadequate causal connection when

the plaintiff incurred psychological injury following the

death of her child in a motor vehicle accident that she

had not observed), and Keller v Citizens Ins Co of

America, 199 Mich App 714, 715-716; 502 NW2d 329

(1993) (finding an inadequate causal connection when

the plaintiff heard the screech of a vehicle’s tires before

the vehicle struck the plaintiff’s child). The trial court

That plaintiff had injuries was not contested.

2011] B

OERTMANN V

INCINNATI

685

explained, “The motor vehicle certainly contributed to

cause the condition which produced plaintiff’s injury in

this matter, but the motor vehicle, itself, did not pro-

duce plaintiff’s injury.”

Plaintiff moved for reconsideration. The trial court

granted reconsideration, vacated its prior opinion

and order, and granted summary disposition to plain-

tiff. The court concluded that there was no caselaw

indicating that no-fault benefits were not available

where a claimant witnessed a motor vehicle collision

that caused her injuries. The court found that Will-

iams and Keller were distinguishable because plain-

tiff witnessed the collision in the present case. The

court concluded that plaintiff had demonstrated a

sufficient causal connection between her injury and

the motor vehicle collision.

We review de novo a trial court’s decision regarding a

motion for summary disposition. Maiden v Rozwood,

461 Mich 109, 118; 597 NW2d 817 (1999). Summary

disposition may be granted under MCR 2.116(C)(10)

when “there is no genuine issue as to any material fact,

and the moving party is entitled to judgment...asa

matter of law.”

We hold that the trial court correctly concluded that

the undisputed evidence indicated that plaintiff’s inju-

ries arose out of the use of a motor vehicle as a motor

vehicle.

MCL 500.3105(1) states: “Under personal protection

insurance an insurer is liable to pay benefits for acci-

dental bodily injury arising out of the ownership, op-

eration, maintenance or use of a motor vehicle as a

motor vehicle, subject to the provisions of this chapter.”

“Arising out of” means that the causal connection

between the injury and the use of the motor vehicle

must be “more than incidental, fortuitous, or ‘but for.’ ”

686 291 M

ICH

683 [Mar

Thornton v Allstate Ins Co, 425 Mich 643, 659-660; 391

NW2d 320 (1986); see also Scott v State Farm Mut Auto

Ins Co, 278 Mich App 578, 582, 584, 586; 751 NW2d 51

(2008) (quoting Thornton).

The statutory language

does not require “direct or proximate causation.” Id.at

586. However, the fact that a vehicle is the situs of an

injury is not sufficient to establish the requisite causal

connection. See, e.g., Bourne v Farmers Ins Exch, 449

Mich 193, 200; 534 NW2d 491 (1995). The determina-

tion whether an injury may be characterized as arising

out of the use of a motor vehicle as a motor vehicle

depends on the unique facts of each case and must be

made on a case-by-case basis. Kochoian v Allstate Ins

Co, 168 Mich App 1, 8-9; 423 NW2d 913 (1988).

In this case, the trial court correctly recognized that

plaintiff’s viewing of the collision was a critical distinction

between this case and Williams, 94 Mich App 762. In

Williams, the plaintiff’s daughter suffered fatal injuries in

a motor vehicle accident. Id. at 763. The plaintiff thereaf-

ter received psychiatric care. Id. at 764. The plaintiff did

not see the accident or view her daughter’s body within

minutes of its occurrence. Id. This Court concluded that

the plaintiff was not entitled to no-fault benefits, reason-

ing that the plaintiff’s injury “did not arise out of the

‘ownership, operation, maintenance or use of a motor

vehicle’. Rather, her injury arose out of the death of her

daughter which in turn arose out of the operation of a

motor vehicle.” Id. This Court stated that it took into

consideration that the plaintiff did not have an available

analogous tort recovery. Id. at 765. The Court explained

that in Michigan,

The Supreme Court initially vacated part of this Court’s Scott

decision. Scott v State Farm Mut Auto Ins Co, 482 Mich 1074 (2008). On

reconsideration, however, the Court vacated its prior order. Scott v State

Farm Mut Auto Ins Co, 483 Mich 1032 (2009).

2011] B

OERTMANN V

INCINNATI

687

a plaintiff may recover for mental disturbance resulting in

physical harm when an immediate family member is in-

jured or exposed to injury by a negligent tortfeasor if the

plaintiff is present at the time of the accident or peril or the

shock is fairly contemporaneous with it. The plaintiff,

however, cannot recover when he is informed of the matter

at a later date. [Id.]

The Court expressly declined to reach “the issue of

whether plaintiff would have a right to recovery under

the no-fault act had she witnessed the accident or

became [sic] aware of it at a time fairly contemporane-

ous with it.” Id.

The facts in Keller, 199 Mich App 714, are more

similar to the present case than are the facts in Will-

iams. Plaintiff Margaret Keller was in her home when

she heard the screech of tires and immediately went

outside. Id. at 715. She saw her son’s body lying in the

street where he had been struck by an automobile. Id.

Her no-fault insurer denied first-party PIP benefits for

her psychiatric treatment. Id. This Court followed Wil-

liams, reasoning:

We decline to distinguish Williams as plaintiffs urge us

to do, and find that decision dispositive here. Margaret

Keller was not injured by the automobile that struck her

son. Instead, Keller’s mental distress was the result of her

son’s tragic death, wholly independent of the cause of that

death. Her injury would have been the same had the boy’s

death arisen from an attacking dog or from a stray bullet,

for example. Because the injury suffered by Keller had only

a “but for,” incidental, and fortuitous connection with the

use of an automobile, it was outside the scope of coverage

intended by MCL 500.3105; MSA 24.13105. Accordingly, we

find no error in the decision of the trial court. [Keller, 199

Mich App at 716.]

We conclude that evidence from plaintiff’s psycholo-

gists distinguishes this case from Keller. This Court

688 291 M

ICH

683 [Mar

stated in Keller that the plaintiff’s injury was the result

of her son’s death. Id. In contrast, according to plain-

tiff’s psychologists, plaintiff’s injuries were the result of

her having witnessed the fatal collision.

The psycholo-

gists’ affidavit states that “Gale’s post-traumatic stress

disorder is caused by her witnessing of the collision

which killed her son. The traumatic incident in this

case is the collision itself between Christopher’s motor-

cycle and the car that we are told cut him off.” The

affidavit indicates that “[r]ecurrent images and

thoughts of the accident marked diminished interest

and ability to function, restricted affect and significant

cognitive impairments.” Accordingly, it is evident that

plaintiff’s depression, too, is inextricably tied to the

witnessing of the accident and to the posttraumatic

stress disorder. Defendant did not present any evidence

to counter the psychologists’ affidavit.

The distinction between the grief suffered upon a

loved one’s death and the distress upon viewing a

traumatic event that causes death is discussed in Wolfe

v State Farm Ins Co, 224 NJ Super 348, 352; 540 A2d

871 (1988):

When confronted with accidental death, the reaction to

be expected of normal persons...isshock and fright. It is

the sensory perception of a shocking event which causes a

separate, compensable injury....[I]t is the plaintiff’s per-

ception which causes the perceiver to suffer a traumatic

sense of loss. Such emotional distress is not the equivalent

of grief from losing a loved one, but is inflicted by the

trauma of seeing a loved one suffer or die or of seeing

efforts to revive [the loved one] being unsuccessful. [Cita-

tions and quotation marks omitted.]

We find this distinction pertinent in the present case.

We note that defendant does not contend that plaintiff’s injuries were

not “bodily injur[ies]” within the meaning of MCL 500.3105(1).

2011] B

OERTMANN V

INCINNATI

689

Defendant contends that, at a minimum, a claimant

must be “actually involved” in an accident to recover

no-fault benefits. Defendant does not clearly provide

suggested parameters for the phrase “actually in-

volved.” To the extent defendant is contending that the

injuries must arise from the claimant’s own operation,

use, ownership, or maintenance of a motor vehicle,

caselaw does not support the argument. For example, a

pedestrian may recover for injuries caused by lye that

splashed up when a motor vehicle drove through a

puddle. See Jones v Tronex Chem Corp, 129 Mich App

188, 191-193; 341 NW2d 469 (1983). Similarly, a pass-

erby may recover for injuries caused by steam released

when another person who was maintaining his vehicle

opened a cap on the radiator. See McMullen v Motors

Ins Corp, 203 Mich App 102, 103, 105; 512 NW2d 38

(1993). The Court in McMullen stated, “[N]othing in

the language of the no-fault act requires that the

injured person be the individual actually maintaining

the vehicle in question.” Id. at 107. These claimants’

injuries entitled them to no-fault benefits even though

the injuries did not result from their own operation,

use, ownership, or maintenance of a motor vehicle.

Similarly, plaintiff’s injuries need not result from her

own use of a motor vehicle to fall within the scope of

MCL 500.3105(1).

To the extent that defendant is claiming that there

must be physical contact between the claimant and the

motor vehicle, caselaw also does not support the argu-

ment. Indeed, the plaintiff in Musall v Golcheff, 174

Mich App 700; 436 NW2d 451 (1989), was not injured by

physical contact with the motor vehicle. He inserted

coins in a machine to begin washing his vehicle. Id.at

701. The wash wand came loose from its holder and

struck him. Id. This Court stated:

690 291 M

ICH

683 [Mar

We reject defendant’s contention that since plaintiff’s

injury arose from contact with the wash wand, as opposed

to contact with his truck, plaintiff’s injury does not fall

within the maintenance provision of the no-fault act.

Defendant cites no authority for the proposition that

injuries necessarily have to be received directly from the

motor vehicle. A review of the case law does not support

this narrow interpretation of the statute. [Id. at 704.]

Therefore, plaintiff’s injuries need not result from

physical contact with a motor vehicle to fall within the

scope of MCL 500.3105(1).

In light of the specific facts of this case, see Kochoian,

168 Mich App at 8-9, especially the undisputed evidence

presented by the psychologists, we hold that the trial

court correctly concluded that plaintiff’s injuries arose

out of the use of a motor vehicle as a motor vehicle.

Affirmed.

2011] B

OERTMANN V

INCINNATI

691

TELLIN v FORSYTH TOWNSHIP

Docket No. 293590. Submitted January 11, 2011, at Lansing. Decided

January 25, 2011. Approved for publication March 10, 2011 at 9:00

a.m..

Minors Emily Tellin, by her next friend Lori Hinga, and Matthew

Werfelman, by his next friend Andrea Detamble, brought an action

against Forsyth Township and West Branch Township for injuries

they suffered when a steel I-beam that had been installed to

support a roof overhang fell. The roof overhang was attached to

the K. I. Sawyer Learning Center, which West Branch Township

leased from Forsyth Township and operated in part as a library.

The library was closed when the incident occurred, but a library

drop box located under the overhang was open 24 hours a day.

Defendants moved for summary disposition under MCR

2.116(C)(7) on the basis of governmental immunity from tort

liability under MCL 691.1407(1). The trial court, Thomas L. Solka,

J., denied the motion, ruling that defendants had failed to repair or

maintain a public building that was under their control and open

for public use as required by MCL 691.1406, the public-building

exception to governmental immunity. Defendants appealed.

The Court of Appeals held:

The trial court properly denied defendants’ motion for sum-

mary disposition. The placement of the steel I-beam configuration

constituted a failure to repair or maintain the building rather than

a design defect because it was a preventive measure to supplement

and coincide with the existing structure rather than a redesign of

the roof overhang. Because the drop box was open to the public 24

hours a day, the building was open for public use for purposes of

the public-building exception. Although plaintiffs were not using

the drop box and a sign prohibited loitering in the area where

plaintiffs were injured, plaintiffs were not loitering when the

incident occurred. Finally, defendants had received actual notice

from a Learning Center volunteer that the I-beam was not

properly secured and might be unstable.

Affirmed.

692 291 M

ICH

692 [Mar

1. G

OVERNMENTAL

MMUNITY —

UBLIC

-B

UILDING

XCEPTION —

ESIGN

EFECTS —

AILURES TO

EPAIR OR

AINTAIN

Under the public-building exception to governmental immunity

from tort liability, a design defect is a dangerous condition inher-

ent in the design itself, such as its characteristics, functioning, and

purpose; in contrast, a failure to repair or maintain is caused by

extrinsic circumstances, such as a malfunction, deterioration, or

instability of part of the building or the improper securing,

construction, or installation of a fixture that is part of the building;

reparative or preventative measures may supplement the existing

structure to preserve the existing design, and an action that was

originally a design decision could be transformed into a failure to

repair or maintain by subsequent improper installation, malfunc-

tion, deterioration, or instability (MCL 691.1406, 691.1407[1]).

2. G

OVERNMENTAL

MMUNITY —

UBLIC

-B

UILDING

XCEPTION —

UILDING

PEN

TO THE

UBLIC

A building is open to the public for purposes of the public-building

exception to governmental immunity from tort liability if any part

of it remains open to the public; in determining whether a building

is open to the public, the focus is on the intended use of the

building and not merely on the hours of operation (MCL 691.1406,

691.1407[1]).

Weisse, Rettig, Rademacher, Clark & Bray, P.C. (by

Richard C. Clark), for plaintiffs.

Bensinger, Cotant & Menkes, P.C. (by Glenn W.

Smith), for defendants.

Before: S

AWYER

, P.J., and W

HITBECK

and W

ILDER

,JJ.

URIAM

I. OVERVIEW

In July 2006, plaintiffs Emily Tellin and Matthew

Werfelman were visiting the K. I. Sawyer Learning Cen-

ter, located in F orsyth T ownship, Michigan. Plaintiffs

were injured when an I-beam was dislodged and fell on

them. Plaintiffs sued, and defendants Forsyth T ownship

2011] T

ELLIN V

ORSYTH

693

and West Branch Township (the Townships) moved for

summary disposition under MCR 2.116(C)(7), asserting

that they were immune from suit pursuant to the govern-

mental immunity doctrine.

The trial court denied the

motion, ruling that the Townships were not entitled to

immunity because plaintiffs demonstrated the exist-

ence of a failure to repair or maintain under the

public-building exception to the governmental immu-

nity doctrine.

The Townships appeal as of right the

trial court’s denial of their motion for summary dispo-

sition. We affirm.

II. FACTS

Before the incident at issue, the Learning Center

building had existed for approximately 40 years as part

of the former K. I. Sawyer Air Force Base before the

federal government deeded it to defendant Forsyth

Township. At some point, Forsyth Township leased the

building to West Branch Township. In 2002, West

Branch Township moved library books into the Learn-

ing Center. Sometime between 2002 and 2005, the

Learning Center was structurally modified from a four-

unit living area to its current one-unit form. Appar-

ently, each unit previously had independent entryways.

During the remodeling, the entryways were reconfig-

ured from four separate entrances to a single, main

entrance. The Townships opened the Learning Center

to the public sometime in 2004.

Before 2003, a roof overhang above the main en-

trance of the Learning Center had been supported by

wooden columns. However, in 2003, Wes Miller, the

husband of the Learning Center’s then current director,

MCL 691.1407(1).

MCL 691.1406.

694 291 M

ICH

692 [Mar

brought a steel I-beam configuration to the Learning

Center. The configuration included a horizontal steel

I-beam with a vertical steel post welded at each end of

the I-beam. Apparently, Miller delivered this I-beam

configuration with the supporting steel columns al-

ready welded to the I-beam. According to Susan

McNeil, one of the librarians, Miller said that the

I-beam configuration would supplement the existing

beam-and-column configuration of the roof overhang

in case the snow load on the overhang became too

heavy. However, there is no indication that the direc-

tor, the governing board, or any other authority found

extra support necessary or authorized the installa-

tion of the I-beam configuration. R ather, Miller, or

someone from the Learning Center’s staff, asked local

Navy Seabee volunteers to help install the I-beam

configuration under the awning within the roof over-

hang’s existing beam-and-column structure. The par-

ties agree that this I-beam configuration was secured

only through downward compression of the existing

roof overhang—there was nothing externally or in-

ternally securing it to the building or the concrete

slab on which it sat. Neither Miller, his wife, nor the

Townships had any inspectors examine the installa-

tion to determine whether it was up to code or passed

safety regulations.

At some point after the I-beam configuration was

installed, Michael Erdmann, a volunteer who had pre-

viously performed some maintenance projects at the

Learning Center, kicked the I-beam configuration or

applied some force to it to determine whether it was

properly secured. Thereafter, Erdmann spoke with Mc-

Neil and allegedly explained that he thought someone

might be able to move the I-beam configuration or that

it seemed loose. There is some discrepancy over the

exact substance of Erdmann’s conversation with Mc-

2011] T

ELLIN V

ORSYTH

695

Neil about the stability of the I-beam configuration.

Regardless, the Townships did not take any action after

Erdmann allegedly voiced his concern.

On July 18, 2006, at around 8:00 p.m., 13-year-old

Emily Tellin and her friend, Tiffany Grondin, left the

Salvation Army building, which is a neighboring build-

ing that contained recreational activities such as bas-

ketball and various games. The two went to the Learn-

ing Center to stand under the roof overhang adjacent to

the entrance of the building and wait for Tellin’s

mother to pick them up. Matthew Werfelman and at

least two other children joined them.

Grondin started swinging or twisting around the

steel pole portion of the I-beam configuration. Grondin

described the I-beam configuration as “wobbly” as she

swung. She then leaned up against it after she became

dizzy, approximately 20 seconds later. The I-beam con-

figuration then started to dislodge and fall toward the

Learning Center, sliding from underneath the over-

hang. As the I-beam fell, the force of the I-beam pushed

Tellin to the ground. Allegedly, Tellin broke her hand

from attempting to catch the I-beam configuration as it

fell. Werfelman fractured his arm when the I-beam fell

on him.

At the time of this incident, the interior of the

library was closed for the day. However, the parties do

not dispute that the Learning Center had a 24-hour

book drop box, which was still open to receive book

returns, located under the roof overhang area where

the I-beam configuration stood. In the window under

the Learning Center’s roof overhang awning were

two signs: one read “No Loitering” and the other

instructed the public to deposit their books in the

drop box under the roof overhang. McNeil testified

that the “No Loitering” sign had been placed in the

696 291 M

ICH

692 [Mar

window to address an ongoing vandalism problem.

The sign indicating that books were to be deposited in

the drop box also contained a notice that the library

was moving to a different location. In its recitation of

the facts, the trial court stated that the library was

closed because of the move and that the moving

process had already begun when this incident oc-

curred. However, McNeil testified that the decision to

move occurred after the incident and was based

partly on the incident, and partly on the ongoing

problems that the library had with vandalism.

Plaintiffs, through their next friends, sued the Town-

ships, alleging that the Townships were liable under the

public-building exception to the governmental immu-

nity doctrine on the basis of their failure to repair and

maintain the Library Center. Plaintiffs alleged that

“[t]he overhang and beam were defective and danger-

ous because the vertical beam structure was not an-

chored to the horizontal portion of the overhand [sic]

nor the surface of the base.” Plaintiffs further alleged

that “[a] reasonable maintenance and inspection sched-

ule would have resulted in the discovery of the struc-

ture’s instability and need for repair.”

The trial court found that the Learning Center was a

public building and that the steel I-beam configuration

was part of that public building. Additionally, the trial

court found that the Learning Center was open to the

public, despite the fact that the incident occurred after

hours, because of the location of the 24-hour book

depository under the roof overhang. With regard to

whether this was a design defect, the trial court held as

follows:

I do find the inspection by the volunteer, then relating

the results of that inspection to the paid librarian, rises

to the level of maintenance of that part of the public

2011] T

ELLIN V

ORSYTH

697

building that was open to the public and not design. The

fact that it may have been a defective design, if there is

later maintenance of that defective design or inspection,

the fact that it was also defectively designed, in this

Court’s judgment, does not then eliminate liability from

maintenance of a defectively designed structure by way

of inspection.

Finally, the trial court concluded that the Townships

were on notice when Erdmann told McNeil his concerns

about the structure. Therefore, the trial court con-

cluded that the Townships were not entitled to govern-

mental immunity because plaintiffs demonstrated the

existence of a failure to repair or maintain under the

public-building exception. Accordingly, the trial court

denied the Townships’ motion for summary disposition.

The Townships now appeal.

III. THE PUBLIC-BUILDING EXCEPTION

A. STANDARD OF REVIEW

This Court reviews de novo questions of law regard-

ing governmental immunity.

This Court also reviews

de novo motions for summary disposition under MCR

2.116(C)(7).

To survive a (C)(7) motion based on gov-

ernmental immunity, a “plaintiff must allege facts jus-

tifying the application of an exception to governmental

immunity.”

In reviewing a (C)(7) motion, a court must

accept all well-pleaded allegations as true and construe

them in favor of the nonmoving party.

Also, this Court

reviews de novo questions of statutory construction.

Pierce v Lansing, 265 Mich App 174, 176; 694 NW2d 65 (2005).

Id.

Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).

Pierce, 265 Mich App at 176-177.

Grimes v Dep’t of Transp, 475 Mich 72, 76; 715 NW2d 275 (2006).

698 291 M

ICH

692 [Mar

B. GOVERNMENTAL IMMUNITY STANDARDS

Absent an exception, a governmental agency such as

a township

is generally immune from tort liability

when it is engaged in the discharge of a governmental

function.

And the operation of a government-owned

library is a governmental function.

Courts are re-

quired to broadly construe the term “governmental

function,” while strictly construing exceptions to gov-

ernmental immunity.

One of these exceptions is the

public-building exception.

Under the public-building

exception, “[g]overnmental agencies have the obliga-

tion to repair and maintain public buildings under their

control when open for use by members of the public.”

A plaintiff must prove all of the following to bring suit

against the governmental agency:

(1) a governmental agency is involved, (2) the public

building in question is open for use by members of the public,

(3) a dangerous or defective condition of the public building

itself exists, (4) the governmental agency had actual or

constructive knowledge of the alleged defect, and (5) the

governmental agency failed to remedy the alleged defective

condition after a reasonable amount of time.

[

]

The parties do not dispute that the Learning Center

was run by a governmental agency or that the building

See MCL 691.1401(a), (b), and (d) (defining governmental agencies to

include political subdivisions, which include municipal corporations,

which include townships).

MCL 691.1407(1); Stringwell v Ann Arbor Pub Sch Dist, 262 Mich

App 709, 712; 686 NW2d 825 (2004).

See Fane, 465 Mich at 74-75.

Kerbersky v Northern Mich Univ, 458 Mich 525, 529; 582 NW2d

828 (1998).

MCL 691.1406; Kerbersky, 458 Mich at 529.

MCL 691.1406.

Renny v Dep’t of Transp, 478 Mich 490, 496; 734 NW2d 518 (2007);

see MCL 691.1406.

2011] T

ELLIN V

ORSYTH

699

itself was a public building. The parties further agree

that the I-beam configuration was part of the building

because it was physically connected to the building.

However, as we will discuss, the parties dispute whether

the building was open for use by members of the public,

whether the I-beam configuration was a defective con-

dition as courts have interpreted that term, and

whether the Townships had actual or constructive

knowledge of the alleged defect.

C. DEFECTIVE DESIGN OR FAILURE TO MAINTAIN

The Townships argue that as governmental agencies

they are immune from claims of design defects in their

public buildings, which includes alleged defects in rede-

signs. According to the Townships, the placement of the

steel I-beam configuration was simply a redesign deci-

sion that altered the initial conception of the building.

And the Townships point out that the structure was in

place, without issue, for three years before this incident.

The public-building exception excludes claims of de-

sign defects.

Therefore, to avoid governmental immu-

nity, a plaintiff must assert a claim that the defective

condition was the result of a failure to repair or main-

tain.

Accordingly, the salient question is whether

plaintiffs’ injuries from placement of the I-beam con-

figuration were the result of a design defect, or a failure

to repair or maintain.

A court must give effect to the Legislature’s intent

when construing a statute.

In determining the Legis-

See Fane, 465 Mich at 78; see also Horace v City of Pontiac, 456 Mich

744, 756 n 9; 575 NW2d 762 (1998) (noting that the public-building

exception can apply to structures that are part of the building itself).

Renny, 478 Mich at 505.

Id. at 506-507.

People v Libbett, 251 Mich App 353, 365-366; 650 NW2d 407 (2002).

700 291 M

ICH

692 [Mar

lature’s intent, this Court first looks at the language of

the statute itself.

This Court gives the words of the

statutes their plain and ordinary meaning and will look

outside the statutory language only if it is ambiguous.

“The Legislature is presumed to be familiar with the

rules of statutory construction and, when promulgating

new laws, to be aware of the consequences of its use or

omission of statutory language....”

In determining

the plain meaning of the statute, this Court uses the

“fair and natural import of the terms employed” and

gives effect “to every word, phrase, and clause” as far as

possible.

As stated, the public-building exception only applies

to claims of failure to repair or maintain a public

building, not to design defects.

In Renny v Dep’t of

Transp, the plaintiff was injured when she slipped and

fell on a patch of ice and snow on the sidewalk of a rest

area that defendant Michigan Department of Transpor-

tation (MDOT) operated.

The plaintiff brought suit

against MDOT, claiming that MDOT’s “failure to install

and maintain gutters and downspouts around the roof

of the building” caused melted snow and ice to accumu-

late on the entryway.

Originally, the rest stop had a

“gutter” system that was integrated into the roof of the

rest stop.

The design was explained as follows:

Id. at 365.

Id. at 365-366.

In re MKK, 286 Mich App 546, 556-557; 781 NW2d 132 (2009).

Libbett, 251 Mich App at 366 (citations and quotation marks omit-

ted).

Renny, 478 Mich at 506-507.

Id. at 493.

Id. at 494.

Renny v Dep’t of Transp (After Remand), unpublished opinion per

curiam of the Court of Appeals, issued September 29, 2009 (Docket No.

285039) (Renny II),p1.

2011] T

ELLIN V

ORSYTH

701

In contrast to a system using the more usual freestand-

ing gutter attached to the edge of the roof, the “gutter”

portion of the rest stop as it was initially designed in 1975

was part of the roof itself, the slope of which had been

upturned by the use of an “outrigger” to form what

appears to be a normal roof with a channel in the end of it,

which drained into integral “downspouts.”

[

]

Sometime before the plaintiff was injured, the roof

structure had been deconstructed to remove the gutters

and downspouts because of a supposed malfunction of

the gutter system.

In holding that the public-building exception does

not permit claims of design defects in public buildings,

the Michigan Supreme Court explained the distinction

between design defects and a failure to repair or main-

tain as follows:

The first sentence of MCL 691.1406 states that “[g]ov-

ernmental agencies have the obligation to repair and

maintain public buildings under their control when open

for use by members of the public.” This sentence unequivo-

cally establishes the duty of a governmental agency to

“repair and maintain” public buildings. Neither the term

“repair” nor the term “maintain,” which we construe

according to their common usage, encompasses a duty to

design or redesign the public building in a particular

manner. “Design” is defined as “to conceive; invent; con-

trive.” By contrast, “repair” means “to restore to sound

condition after damage or injury.” Similarly, “maintain”

means “to keep up” or “to preserve.” Central to the defini-

tions of “repair” and “maintain” is the notion of restoring

or returning something, in this case a public building, to a

prior state or condition. “Design” refers to the initial

conception of the building, rather than its restoration.

“Design” and “repair and maintain,” then, are unmistak-

ably disparate concepts, and the Legislature’s sole use of

Id. at 1-2.

Id. at 2.

702 291 M

ICH

692 [Mar

“repair and maintain” unambiguously indicates that it did

not intend to include design defect claims within the scope

of the public building exception.

[

]

Although it announced this distinction between “de-

sign” and “repair and maintenance,” the Renny Court

did not explain where the line between the two concepts

should be drawn. Instead, the Supreme Court re-

manded for the Court of Claims to determine whether

the plaintiff had a claim for failure to repair and

maintain the building.

On appeal from the Court of Claims’ decision, this

Court appeared to recognize that despite some of the

language used in the Supreme Court’s opinion, a public

building could be “redesigned.”

This Court then con-

cluded that MDOT’s removal of the gutter system was

a redesign because it was an alteration of the roof

structure itself and not simply a removal of the gut-

ters.

In holding that this alteration was a redesign,

this Court stated:

[T]he type and extent of the change that occurred to the

roof fell outside even an expansive definition of repair or

maintenance, given that a portion of the roof was essen-

Renny, 478 Mich at 500-501 (emphasis added).

Id. at 507. Renny does not make abundantly clear whether

“repair”—a restorative concept—and “maintain”—a preservative

concept—are two separate concepts or rather are synonyms that refer to

the “notion of restoring or returning something...toa prior state or

condition.” Renny, 478 Mich at 501. However, because “repair” and

“maintain” occur within the same sentence of MCL 691.1406, they refer

to distinct concepts. See State Farm Fire & Cas Co v Old Republic Ins

Co, 466 Mich 142, 146; 644 NW2d 715 (2002) (“Courts must give effect to

every word, phrase, and clause in a statute and avoid an interpretation

that would render any part of the statute surplusage or nugatory.”).

Therefore, under Renny, a defendant may be liable for failure to repair or

failure to maintain a public building.

Renny II, unpub op at 5.

Id.

2011] T

ELLIN V

ORSYTH

703

tially deconstructed in order to remove the outriggers and

integrated downspouts. This is not...a case where a

simple gutter was either removed, or fell down and was not

replaced.

[

]

“Admittedly,” this Court observed, “a situation could

arise where it would be difficult to distinguish between

an act of repair or maintenance of an old design and a

‘redesign’ that would cause a defect in the new struc-

ture to fall into the category of a design defect.”

One additional unpublished, post-Renny case recog-

nized that redesigns are exempt from the public-

building exception.

However, it also failed to address

exactly what constitutes a redesign.

In Collins v

Oakland Co Community College, the plaintiff was in-

jured when she was sliding her chair across the defen-

dant’s dental lab, which was open to the public. Her

chair hit a floor-mounted electrical plate that protruded

from the lab floor.

This electrical socket was not part

Id.

Collins v Oakland Co Community College, unpublished opinion per

curiam of the Court of Appeals, issued March 26, 2009 (Docket No.

282351).

Id. at 2-3. A majority of the unpublished, post-Renny cases involved

initial designs. See, e.g., Hetherington v Univ of Mich Regents, unpublished

opinion per curiam of the Court of Appeals, issued March 17, 2009 (Docket

No. 283543) (holding that the height of steps and risers and lack of

accompanying guardrails were design defects); Martin v Detroit, unpub-

lished opinion per curiam of the Court of Appeals, issued F ebruary 28, 2008

(Docket No. 275893) (finding a design defect in absence of gutter on roof that

caused ice to accumulate on sidewalk). But see Mack v Troy City Sch Bd of

Ed, unpublished opinion per curiam of the Court of Appeals, issued August

14, 2008 (Docket No. 278406) (explaining that auditorium’s burnt-out or

dim aisle lights could be a failure to repair or maintain); Joseph v Southfield

Pub Sch, unpublished opinion per curiam of the Court of Appeals, issued

May 8, 2008 (Docket No. 275869) (holding that an initial installation or

construction of a drinking fountain did not constitute a design defect).

Collins, unpub op at 1.

704 291 M

ICH

692 [Mar

of the original blueprints but apparently was part of a

subsequent modification.

Without elaboration on why

this constituted a redesign, this Court concluded:

Plaintiff argues that “[o]ne cannot characterize a fea-

ture of a building as a ‘design’ issue when it was not

present when the building was first constructed.” However,

plaintiff offers no authority for this proposition....None-

theless, we note that our Supreme Court in Renny, rejected

the notion advanced by plaintiff. The Renny Court stated

that “[n]either the term ‘repair’ nor the term ‘main-

tain,’...encompasses a duty to design or redesign the

public building in a particular manner.” (Emphasis added.)

Thus, the fact that the electrical socket here at issue was

not part of this building’s original design does not mean

that plaintiff’s complaint about the location of this prop-

erly functioning electrical socket is the result of defen-

dant’s failure to properly repair or maintain this build-

ing.

[

]

A design defect would appear to consist of a danger-

ous condition inherent in the design itself, such as its

characteristics, functioning, and purpose.

For ex-

ample, the accumulation of the snow and ice on the

sidewalk in Renny was not from any malfunction of the

roof or problem with its construction, but was a natural

effect of the characteristics of the new roof design,

which was not intended to divert melting snow and

ice.

In contrast, a failure to repair or maintain appears to

consist of something caused by extrinsic circumstances,

such as a malfunction, deterioration, instability, or a

fixture that is improperly secured or otherwise improp-

Id. at 1-2.

Id. at 3.

See Renny, 478 Mich 501 (“ ‘Design’ refers to the initial conception

ofthebuilding....”);seealsoRenny II, unpub op at 5.

Renny II, unpub op at 5.

2011] T

ELLIN V

ORSYTH

705

erly constructed or installed.

Reparative or preventa-

tive measures may also supplement the existing struc-

ture to preserve the existing design.

An action could

initially be a design decision, but subsequent improper

installation, malfunction, deterioration, or instability

could later transform this decision into a failure to

repair or maintain.

For example, if the wiring for the

electrical socket in Collins became compromised and

began electrocuting people through normal use, then a

failure to correct the problem would be a failure to

repair or maintain. But tripping over the surface be-

cause of its placement is the characteristic of the design

itself, and the placement would properly be a design

decision.

In this case, plaintiffs were not injured because of an

inherent characteristic of the I-beam configuration

when coupled with the roof overhang, such as its

displacement of melting snow or ice,

or the fact that its

base protruded into the walkway causing patrons to

trip.

Thus, this case is distinguishable from Renny

because the initial conception of the building’s struc-

ture did not change as it did in that case; rather, the

Townships introduced additional support to “keep up”

See Renny, 478 Mich at 500-501; see also Nowak Estate v Bay Co,

unpublished opinion per curiam of the Court of Appeals, issued July 17,

2008 (Docket No. 279076) (finding a failure to repair or maintain because

of deterioration and cracking of concrete steps that caused the plaintiff to

trip); Joseph v Southfield Pub Schs, unpublished opinion per curiam of

the Court of Appeals, issued May 8, 2008 (Docket No. 275869),p4(noting

that the initial installation or construction of a drinking fountain was not

alleged to, and did not, constitute a design defect).

See Renny, 478 Mich at 500-501.

See id. at 501 (stating that a “ ‘dangerous or defective condition of a

public building’ arises out of the governmental agency’s failure to repair

and maintain that building”).

See Renny II, unpub op at 5.

See Collins, unpub op at 3.

706 291 M

ICH

692 [Mar

and “preserve” the existing roof overhang structure. In

Renny, the roof was deconstructed to accommodate the

removal of the gutter system.

Unlike the roof in

Renny, the actual structure of the roof overhang in this

case was never altered or modified, and even after the

I-beam configuration collapsed, the existing roof over-

hang remained fully functional and intact. Therefore,

the installation of the I-beam configuration was a

preventive measure to supplement and coincide with

the existing structure rather than a redesign of the roof

overhang. Any defective condition was not from the

I-beam’s inherent characteristics but from the Town-

ships’ failure to properly maintain the stability of this

I-beam configuration.

Apart from the initial placement of the I-beam

configuration, once it was installed, the Townships

had a continuing duty to repair and maintain it if it

became loose, damaged, or unstable.

This case is

thus further distinguishable from Renny because the

only way to remedy the situation in Renny was to

install a new gutter system.

In contrast, the Town-

ships could have remedied the condition at issue here

had they performed regular maintenance to test the

stability of the I-beam structure, which would likely

have disclosed any instability. This failure to repair or

maintain is further illustrated by the fact that the

Townships had knowledge that this I-beam configu-

ration was not secured. Therefore, we conclude that

the trial court did not err when it characterized

plaintiffs’ injuries as resulting from a failure to repair

or maintain the building.

Renny II, unpub op at 5.

Renny, 478 Mich op at 501.

See Renny II, unpub op at 5.

2011] T

ELLIN V

ORSYTH

707

D. OPEN FOR USE BY THE PUBLIC

The T ownships also argue that the trial court erred

when it held that the Learning Center was open to the

public at the time of the incident. The incident occurred

around 8:00 p.m. when the Learning Center was closed to

the public, and the T ownships argue that merely making

a drop box available for after-hours book returns does not

make the building “open for use” by the public. Addition-

ally, according to the T ownships, the Learning Center

limited the public’s access to the drop box by posting a

“No Loitering” sign outside the building.

In determining whether a public building is open for

use by the public, we must consider the nature of the

building, the building’s use, and any limiting criteria on

the public’s right to access.

In Kerbersky v Northern

Mich Univ, the Michigan Supreme Court held that the

building at issue, which was part of a public university,

was open for use by the public despite the fact that the

area where the plaintiff was injured was not open to the

general public.

The Court found it significant that the

building remained open to the public during renova-

tions.

However, the Court agreed with previous cases

holding that if an entire building is closed while reno-

vations are being performed, it is not considered open to

Maskery v Univ of Mich Bd of Regents, 468 Mich 609, 618; 664 NW2d

165 (2003); see also Brown v Genesee Co Bd of Comm’rs (After Remand),

464 Mich 430, 435; 628 NW2d 471 (2001) (“When determining the

public’s access, we analyze the building itself, not the specific accident

site within the building.”) (opinion by C

ORRIGAN

, C.J.).

Kerbersky, 458 Mich at 527, 536; see also Maskery, 468 Mich at 619

n9(“Kerbersky clarifies that a building may be ‘open for use by members

of the public’ even where a location within the building is restricted from

public use.”); Brown, 464 Mich at 436 (opinion by C

ORRIGAN

, C.J.) (stating

that the public-building exception applies even though the public may not

enter “whenever and wherever they please”).

Kerbersky, 458 Mich at 536.

708 291 M

ICH

692 [Mar

the public for purposes of the public-building excep-

tion.

In contrast, in Maskery v Univ of Mich Bd of Regents,

the Supreme Court concluded that a public university

dormitory was not open for use by the public because it

was locked 24 hours a day, and only residents or visitors

that were permitted access from a resident were al-

lowed admittance.

Albeit arguably in dictum, the

Maskery Court explained:

[T]he statutory language makes clear that the public-

building exception applies when the building is open for use

by members of the public. A building such as a courthouse

that is open to the public during business hours may

nonetheless be closed to the public at other times, such as

at night or on weekends. Similarly, a university athletic

facility may be open to the public during a sporting event,

but closed to the public at other times. Because the

statutory language limits the exception to periods when the

building is open for use by members of the public, accidents

that occur when the building is closed to the public do not

fall within the confines of the exception, and the govern-

ment is entitled to immunity.

[

]

The Learning Center in this case is more like the

university building in Kerbersky than the building in

Maskery because the exterior area where the incident

occurred was open to the public, even though the

interior of the Learning Center itself was closed when

the incident occurred.

As the Court explained in

Maskery,

The phrase “limited access” was used in Kerbersky to

explain that where access to part of a building is limited,

Id. at 535.

Maskery, 468 Mich at 611.

Id. at 619.

See Kerbersky, 458 Mich at 535-536; Brown, 464 Mich at 435.

2011] T

ELLIN V

ORSYTH

709

the public-building exception may still apply if the building

remains open for use by members of the public. Here, the

concept of limited access is used in a different sense, i.e., to

describe a building in which access to the entire building,or

the general right of entry, is restricted to persons who are

qualified to enter. Where the government has created rules

that render the building closed except to those who are

qualified to enter, the building is not open for use by

members of the public. The focus of the test is on the

government’s intended use of the building. Thus, the test

set forth in this case should not be confused with the

language in Kerbersky clarifying that a building may be

open to the public even though access to a part of the

building is limited.

[

]

In keeping with Kerbersky, if even a part of a building

remains open to the public, then the building falls

within the public-building exception. The focus is on

the intended use of the building and not merely on the

hours of operation. In this case, at no point was the

entire Learning Center continuously closed to the pub-

lic. At any time of the day the public was freely

permitted to access the area under the roof overhang

where the I-beam configuration was located to use the

drop box. Admittedly, plaintiffs were not under the roof

overhang area to return books; however, unlike in

Maskery, defendants had instituted no method of lim-

iting the public’s access to the roof overhang area. And

although there was a “No Loitering” sign, which pur-

ported to limit access to the area, plaintiffs were not

“loitering” as that term in commonly defined. “Loiter”

means “to linger aimlessly...in orabout a place” or

“to waste time....”

Rather, plaintiffs were under the

roof overhang area with the purpose of waiting for their

parents to pick them up. Accordingly, we conclude that

Maskery, 468 Mich at 618 n 9.

Random House Webster’s College Dictionary (1997), p 774.

710 291 M

ICH

692 [Mar

plaintiffs presented sufficient evidence to show that the

Learning Center was open to the public at the time of

the incident.

E. NOTICE

Defendants further argue that the trial court erred

when it found that they had notice of the defective

condition because a volunteer’s opinion is insufficient

to put defendants on notice of a defect. Also, defendants

contend, the notice was not constructive because this

structure had remained in place without incident for

three years.

This Court has held that knowledge of a condition

may be satisfied by either actual or constructive

knowledge.

The public-building exception presumes

knowledge by a government agency if “such defect

existed so as to be readily apparent to an ordinary

observant person for a period of 90 days or longer

before the injury took place.”

The main thrust of the

Townships’ argument is basically that they never

inspected the structure and thus never had knowl-

edge of the condition. However, the Townships re-

ceived actual notice of the fact that this I-beam

configuration was not properly secured when Erd-

mann informed McNeil that it was loose or might be

able to move. There is some dispute regarding how

detailed Erdmann’s critique of the stability of the

I-beam configuration was, yet McNeil admitted that

Erdmann did warn her about its possible instability.

Therefore, we conclude the trial court did not err

when it concluded that the Townships had sufficient

notice of the defective condition.

Ali v Detroit, 218 Mich App 581, 586-587; 554 NW2d 384 (1996).

MCL 691.1406.

2011] T

ELLIN V

ORSYTH

711

IV. CONCLUSION

The trial court did not err when it concluded that

plaintiffs’ injuries from the I-beam configuration arose

from a failure to repair or maintain and not a design

defect. The trial court also did not err by concluding

that the Learning Center was open for use by the

public. And the trial court did not err when it concluded

that the Townships had sufficient notice of the defective

condition. Accordingly, the trial court properly denied

defendants’ motion for summary disposition under

MCR 2.116(C)(7).

We affirm.

712 291 M

ICH

692 [Mar

DeFRAIN v STATE FARM MUTUAL INSURANCE COMPANY

Docket No. 294505. Submitted March 1, 2011, at Detroit. Decided March

10, 2011, at 9:05 a.m.

Nancy J. DeFrain, personal representative of the estate of William

DeFrain, deceased, brought an action in the Wayne Circuit Court

against State Farm Mutual Automobile Insurance Company, seek-

ing uninsured-motorist coverage through an insurance policy with

State Farm for injuries received by William when, while a pedes-

trian, he was struck by a hit-and-run driver. The accident occurred

on May 31, 2008. William notified State Farm of the accident on

August 25, 2008. On November 11, 2008, William died as a result

of his injuries. State Farm brought a motion for summary dispo-

sition, alleging that it was relieved from contractual liability under

the policy because of William’s failure to timely comply with the

provision in the policy that required an insured to report an

accident involving a hit-and-run motor vehicle to State Farm

within 30 days of the accident. The court, Gershwin A. Drain, J.,

denied the motion for summary disposition on the basis that State

Farm had failed to show prejudice resulting from the failure to

comply with the notice provision. State Farm appealed by leave

granted.

The Court of Appeals held:

Because uninsured-motorist benefits are not required by stat-

ute, interpretation of the policy dictates under what circumstances

the benefits will be awarded. It is a well-established principle that

an insurer who seeks to cut off responsibility on the ground that

its insured did not comply with a contract provision requiring

notice immediately or within a reasonable time must establish

actual prejudice to its position. The same actual-prejudice require-

ment applies to the 30-day notice provision in this case. The order

denying State Farm’s motion for summary disposition is affirmed.

Affirmed.

NSURANCE —

NINSURED

-M

OTORIST

ENEFITS —

CTIONS —

REJUDICE

An unambiguous provision in an uninsured-motorist policy must be

enforced as written, regardless of the equities and reasonableness

of the provision; an insurer must establish actual prejudice to its

2011] D

RAIN V

TATE

ARM

713

position, however, in order to cut off its responsibility under an

uninsured-motorist policy provision that requires the insured to

report an accident involving a hit-and-run motor vehicle to the

police within 24 hours and to the insurer within 30 days when the

insured has failed to timely comply with the notice provision.

Drazin & Associates, P.L.L.C. (by Robert S. Drazin),

for plaintiff.

Conlin, McKenney & Philbrick, P.C. (by W. Daniel

Troyka and Andrew D. Sugerman), for defendant.

Before: M

URPHY

, C.J., and S

TEPHENS

and M. J. K

ELLY

JJ.

URPHY

, C.J. Defendant, State Farm Mutual Automo-

bile Insurance Company, appealed by leave granted the

trial court’s order denying its motion for summary

disposition. This case arose out of a hit-and-run acci-

dent that resulted in the death of William DeFrain, who

had uninsured-motorist (UIM) coverage through an

insurance policy with State Farm. The dispute before us

concerns Mr. DeFrain’s failure to timely comply with a

provision in the policy that required an insured to

report an accident involving a hit-and-run motor ve-

hicle to State Farm within 30 days. In Koski v Allstate

Ins Co, 456 Mich 439; 572 NW2d 636 (1998), our

Supreme Court held that an insurer had to establish

actual prejudice before it could be relieved from con-

tractual liability under an insurance policy, when the

insured had failed to timely comply with a notice

provision contained in the policy that constituted a

condition precedent to insurer liability. Because we

conclude that Koski applies here, and because we agree

with the trial court that State Farm failed to establish

actual prejudice as a matter of law, we affirm the trial

court’s order denying State Farm’s motion for summary

disposition.

714 291 M

ICH

713 [Mar

On May 31, 2008, Mr. DeFrain was a pedestrian when

he was struck by a hit-and-run driver and sustained

severe head injuries. He first notified State Farm of the

accident on August 25, 2008. On November 11, 2008,

Mr. DeFrain died as a result of his injuries. His State

Farm policy had provided for UIM benefits.

Pursuant

to the policy, a person making a claim for UIM benefits

“must report an accident, involving a ‘hit-and-run’

motor vehicle to the police within 24 hours and to us

within 30 days....”Asindicated, Mr. DeFrain failed to

timely comply with the 30-day notice provision.

The

policy also had language requiring a claimant to notify

State Farm of a UIM claim and to give it “all the details

about the death, injury, treatment, and other informa-

tion that [State Farm] may need as soon as reasonably

possible after the injured insured is first examined or

treated for the injury.” (Emphasis in italics added.) The

trial court denied State Farm’s motion for summary

disposition, noting the existence of an ambiguity when

reading the 30-day notice provision in conjunction with

the provision calling for a claimant to provide State

Farm with notice of a claim and medical details as soon

as reasonably possible.

We find it unnecessary to decide the issue whether

the trial court erred by finding an ambiguity, because

the trial court also ruled that “I don’t really see any real

prejudice here, so I am accordingly going to deny [State

Farm’s] motion for summary disposition and that’s my

decision.” One of the arguments on appeal proffered by

plaintiff in support of affirming the trial court’s denial

There is no indication in the record that Mr. DeFrain had failed to pay

his premiums on the policy that had provided the UIM coverage.

At oral argument, plaintiff’s counsel indicated, without dispute from

State Farm’s counsel, that Mr. DeFrain underwent brain surgery after

the accident and was in intensive care throughout the 30-day notice

period. This fact does not play a role in our analysis and holding.

2011] D

RAIN V

TATE

ARM

715

of State Farm’s motion for summary disposition is that

State Farm did not show any prejudice that resulted

from the failure to comply with the 30-day notice

provision. We agree. Indeed, State Farm makes no

argument that it suffered any prejudice as a result of

the delay.

In Jackson v State Farm Mut Auto Ins Co, 472 Mich

942 (2005), our Supreme Court, in lieu of granting leave

to appeal, vacated a judgment entered by this Court and

reinstated an order of summary dismissal entered by

the trial court “for the reasons stated in the Court of

Appeals dissent.” As revealed in this Court’s opinion in

Jackson, the injured insured failed to comply with a

similar 30-day notice provision with respect to a claim

for UIM benefits after being injured in a hit-and-run

accident. Jackson v State Farm Mut Auto Ins Co,

unpublished opinion per curiam of the Court of Ap-

peals, issued October 5, 2004 (Docket No. 246388). The

majority found the existence of an ambiguity in the

policy and held that the trial court erred by granting

State Farm’s motion for summary disposition. Id. at 1.

In light of its holding, the Court found it unnecessary to

address the plaintiff’s argument that the notice provi-

sion was enforceable only if State Farm could prove

prejudice. Id. at 4. The dissent, however, addressed the

prejudice issue and rejected the argument that preju-

dice had to be established. The dissent found that

Wendel v Swanberg, 384 Mich 468; 185 NW2d 348

(1971), which was cited by the plaintiff in support of the

prejudice argument, was “distinguishable on the basis

that it d[id] not involve a condition precedent to the

filing of an action against an insurer, but, rather, when

reasonable notice of a pending lawsuit is given to the

insurance carrier.” Jackson, unpub op at 4 (G

RIFFIN

,J.,

dissenting). The dissent also stated that “the present

716 291 M

ICH

713 [Mar

case d[id] not involve any statutory obligations; instead,

it entail[ed] a matter of contractual interpretation.” Id.

We initially note that “because uninsured motorist

benefits are not required by statute, interpretation of

the policy dictates under what circumstances those

benefits will be awarded.” Rohlman v Hawkeye-Security

Ins Co, 442 Mich 520, 525; 502 NW2d 310 (1993). Here,

on the prejudice issue, plaintiff also cites Wendel, which

was distinguished and rejected in the Jackson dissent

adopted by the Supreme Court. However, plaintiff also

cites Koski, 456 Mich 439, which concerned the inter-

pretation and application of a homeowner’s insurance

policy. Under the policy, in the event of an accident or

claim, the insured was required to immediately forward

to Allstate any legal papers received by the insured

concerning the accident or claim (the notice-of-suit

provision). The Court stated, “plaintiff’s duty to imme-

diately forward any legal papers relating to a claim is a

condition precedent to Allstate’s liability under [the]

policy.” Id. at 444 (emphasis added). Thus, the two

grounds cited by the dissent in Jackson for distinguish-

ing Wendel and rejecting application of a prejudice

requirement, i.e., the 30-day hit-and-run notice provi-

sion was a condition precedent to liability and the

provision entailed a matter of contractual interpreta-

tion and not statutory obligations, were both present in

Koski, i.e., the notice-of-suit provision was a condition

precedent to liability and the provision entailed a mat-

ter of contractual interpretation and not statutory

obligations. Therefore, Jackson squarely stands in di-

rect conflict with Koski. The Koski Court ruled that “it

is a well-established principle that an insurer who seeks

to cut off responsibility on the ground that its insured

did not comply with a contract provision requiring

notice immediately or within a reasonable time must

establish actual prejudice to its position.” Koski, 456

2011] D

RAIN V

TATE

ARM

717

Mich at 444 (emphasis added). We find that Jackson is

of questionable and limited value because it did not

address Koski, which apparently was not argued there,

and which constitutes binding precedent that we are

not free to disregard.

The 30-day notice provision here did not require

notice immediately or within a reasonable time, but

there is no reason why the actual-prejudice require-

ment from Koski would not apply because of that

distinction. The well-established prejudice principle

from Koski is offended and essentially discarded by not

applying it in the case at bar, and Koski is a fully

developed and reasoned opinion on the subject of preju-

dice in the context of insurance law, whereas the

Supreme Court’s order in Jackson is merely a cursory

order. The proposition that we should give more weight

to a Supreme Court opinion than to a Supreme Court

order, aside from being self-evident, is reflected in how

the Supreme Court itself has at times treated its own

orders. For example, in Mullins v St Joseph Mercy Hosp,

271 Mich App 503, 506; 722 NW2d 666 (2006), rev’d 480

Mich 948 (2007), this Court ruled that a prior Supreme

Court opinion had to be applied retroactively where

“the Michigan Supreme Court ha[d] plainly and unam-

biguously expressed its intent that the decision ...ap-

plie[d] retroactively” in three consecutive orders. How-

ever, the Supreme Court reversed this Court’s ruling,

holding that its earlier opinion was not fully retroactive

despite the fact that it had issued three orders com-

manding retroactive application, and the Court did not

even bother to discuss stare decisis in ignoring and

essentially overruling its prior orders. 480 Mich 948.

Finally, we note this Court’s decision in Bradley v

State Farm Mut Auto Ins Co, 290 Mich App 156; 810

NW2d 836 (2010), wherein we applied the Koski preju-

718 291 M

ICH

713 [Mar

dice requirement when the plaintiff failed to join State

Farm and the tortfeasors in a suit as required by the

UIM benefits provision of the insurance policy. We held

that “because defendant suffered no prejudice from the

failure to join, defendant should not be relieved of

liability to provide uninsured-motorist benefits to plain-

tiff, who had paid premiums for that coverage.” Id. at

160. The Bradley panel also discussed Rory v Continen-

tal Ins Co, 473 Mich 457, 461; 703 NW2d 23 (2005), in

which the Supreme Court held that an unambiguous

provision in a UIM policy must be enforced as written

regardless of the equities and the provision’s reason-

ableness. The majority opinion in Bradley stated that

“Koski carved out a narrow prejudice requirement

relative to all insurance contracts, and Rory did not

overrule the Supreme Court’s earlier ruling in Koski,

which we find controlling.” Bradley, 290 Mich App at

161. The Court, id. at 161 n 1, further observed:

The dissent disagrees that defendant should be required

to show prejudice, asserting that Rory controls....Rory,

however, did not examine the prejudice principle discussed

in Koski. Moreover, Tenneco [v Amerisure Mut Ins Co, 281

Mich App 429, 447-448; 761 NW2d 846 (2008)], which was

decided in 2008 and after Rory was issued, and which

constitutes binding precedent, acknowledged the continu-

ing application of Koski.TheTenneco panel also cited

additional, earlier Michigan Supreme Court precedent sup-

porting imposition of a prejudice requirement. Id. at 448.

In sum, we hold that, regardless of the order in

Jackson, Koski demands that we affirm the trial court’s

order denying State Farm’s motion for summary dispo-

sition.

Affirmed. Plaintiff, as the prevailing party, is

awarded costs pursuant to MCR 7.219.

2011] D

RAIN V

TATE

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719

BIONDO v BIONDO

Docket No. 294694. Submitted January 5, 2011, at Detroit. Decided

March 15, 2011, at 9:00 a.m.

James F. and Mary L. Biondo were granted a consent judgment of

divorce in the Oakland Circuit Court, Cheryl A. Matthews, J. The

judgment equally divided the martial estate and required them to

“equalize their social security benefits.” When Mary sought a

court order compelling performance of the judgment’s social

security provision, James asserted that federal law preempted its

enforcement. The court entered an order providing that it would

enforce the social security provision. James appealed by leave

granted.

The Court of Appeals held:

1. Federal law preempts state law under the Supremacy

Clause, US Const, art VI, cl 2, when Congress so intends. Federal

law generally does not preempt state laws governing divorce or

domestic relations. State family and family-property laws must do

major damage to clear and substantial federal interests before the

Supremacy Clause will demand that state law be overridden.

2. Section 407(a) of the Social Security Act, 42 USC 407(a),

prohibits the assignment of social security benefits and removes

social security benefits from the reach of attachment, garnish-

ment, or other legal process. 42 USC 407(a) bars automatic, direct

payments of social security benefits from one spouse to another

and offsetting awards intended to compensate one spouse for the

value of the benefit expected by the other. 42 USC 407(a) preempts

the social security equalization provision in the parties’ consent

judgment.

3. Although federal law preempts a portion of the parties’

judgment of divorce, the trial court still possessed subject-matter

jurisdiction to enter the judgment.

4. The inclusion of the social security equalization provision

was the result of a mutual mistake of the parties. Therefore, the

trial court may modify the judgment’s property-settlement provi-

sions on remand.

720 291 M

ICH

720 [Mar

5. The trial court, on remand, may consider the parties’

anticipated social security benefits as one factor, among others, to

be considered when devising an equitable distribution of the

marital property. The trial court may not treat social security

benefits as tantamount to a marital asset but may take into

account, in a general sense, the extent to which social security

benefits received by the parties affect the following factors for

consideration when dividing marital property: (a) the duration of

the marriage, (2) the contributions of the parties to the marital

estate, (3) the age of the parties, (4) the health of the parties, (5)

the life status of the parties, (6) the necessities and circumstances

of the parties, (7) the earning abilities of the parties, (8) the past

relations and conduct of the parties, and (9) general principles of

equity.

Reversed and remanded.

1. C

ONSTITUTIONAL

AW —

UPREMACY

LAUSE —

ONFLICT OF

AWS —

IVORCE —

OMESTIC

ELATIONS

Federal law preempts state law under the Supremacy Clause when

Congress so intends; although federal law generally does not

preempt state laws governing divorce or domestic relations, the

Supremacy Clause will demand that state law be overridden when

state family and family-property laws do major damage to clear

and substantial federal interests (US Const, art VI, cl 2).

2. C

ONSTITUTIONAL

AW —

UPREMACY

LAUSE —

ONFLICT OF

AWS —

OCIAL

ECURITY —

ARTIAL

ROPERTY

The Social Security Act prohibits the assignment of social security

benefits and removes social security benefits from the reach of

attachment, garnishment, or other legal process; the Supremacy

Clause preempts state laws regarding the division of martial

property only to the extent that such laws are inconsistent with

the provision of the Social Security Act prohibiting the assign-

ment, attachment, or garnishment of social security benefits (US

Const, art VI, cl 2; 42 USC 407[a]).

3. D

IVORCE —

ARITAL

ROPERTY —

OCIAL

ECURITY

ENEFITS

A trial court dividing marital property may consider the following

factors: (1) the duration of the marriage, (2) contributions of the

parties to the marital estate, (3) the age of the parties, (4) the

health of the parties, (5) the life status of the parties, (6) the

necessities and circumstances of the parties, (7) the earning

abilities of the parties, (8) the past relations and conduct of the

parties, and (9) general principles of equity; although the court

may not treat social security benefits as tantamount to a marital

2011] B

IONDO V

IONDO

721

asset, the court may take into account, in a general sense, the

extent to which social security benefits received by the parties

affect the factors the court considers in dividing marital property

(42 USC 407[a]).

Gornbein Smith Peskin-Shepherd PLLC (by Danielle

A. Smith) for James F. Biondo.

Colleen V. Ronayne for Mary L. Biondo.

Before: K. F. K

ELLY

,P.J., and G

LEICHER

and S

TEPHENS

JJ.

LEICHER

, J. James Franklin Biondo and Mary Lynne

Biondo were married for more than 40 years. Their

consent judgment of divorce equally divided the marital

estate and required them to “equalize their social

security benefits.” When Mary Biondo sought a court

order compelling performance of the judgment’s social

security provision, James Biondo asserted that federal

law preempted its enforcement. The circuit court ruled

that “[a] deal is a deal,” and declined to strike the social

security provision from the divorce judgment. We

granted leave to appeal to consider whether federal law

preempts the consent judgment’s social security for-

mula. We hold that it does, reverse the circuit court

ruling to the contrary, and remand for further proceed-

ings.

I. UNDERLYING FACTS AND PROCEEDINGS

The parties married in 1964, and in July 2007

consented to the entry of a divorce judgment. During

the marriage, James Biondo worked for Ford Motor

Company, while Mary Biondo cared for the parties’ two

children, who are now adults. The marital property

included a home in Birmingham, two vehicles, and

several bank accounts. The consent judgment “reserved

722 291 M

ICH

720 [Mar

for future adjudication” the issue of spousal support

derived from “earned income,” and forever barred spou-

sal support based on nonearned income. A specific

provision, entitled “Social Security Benefits,” obligated

the parties to “equalize their social security benefits.”

After entry of the divorce judgment, the parties stipu-

lated to the entry of a qualified domestic relations order

(QDRO), which allocated to Mary Biondo 50 percent of

James Biondo’s accrued retirement benefits as of the

date of the divorce. The parties agree that they intended

the consent judgment’s property division to equally

divide the marital estate.

In July 2009, Mary Biondo filed in the circuit court a

motion seeking “compliance” with the judgment’s “So-

cial Security Benefits provision.” Mary Biondo averred

that James Biondo had failed to make timely and full

social security equalization payments. James Biondo

responded that the judgment’s social security formula

violated federal law, and that any order enforcing the

social security benefits term would be invalid. After a

motion hearing, the circuit court entered an order

announcing in relevant part that “the Court will en-

force the property settlement provision regarding Social

Security Benefits contained in the July 10, 2007 con-

sent judgment of divorce.” We granted James Biondo’s

application for leave to appeal. Biondo v Biondo, un-

published order of the Court of Appeals, entered Feb-

ruary 23, 2010 (Docket No. 294694).

II. ANALYSIS

James Biondo contends that the circuit court “lack[ed]

subject matter jurisdiction to enforce the social security

property provision of the parties’...judgment of di-

vorce.” According to James Biondo, 42 USC 407 preempts

state courts from transferring any of an individual’s social

2011] B

IONDO V

IONDO

723

security benefits “by any legal process to any...person

other than that person whom the Federal Government

intended to be the recipient of those benefits.” “Whether

a trial court has subject-matter jurisdiction is a question of

law that this Court reviews de novo.” Etefia v Credit

Technologies, Inc, 245 Mich App 466, 472; 628 NW2d 577

(2001). We also review de novo whether federal law

preempts state law. People v Kanaan, 278 Mich App 594,

601; 751 NW2d 57 (2008).

“Under the Supremacy Clause of the United States

Constitution, US Const, art VI, cl 2, federal law pre-

empts state law where Congress so intends.” Konynen-

belt v Flagstar Bank, FSB, 242 Mich App 21, 25; 617

NW2d 706 (2000). Generally, federal law does not

preempt laws governing divorce or domestic relations, a

legal arena belonging to the states rather than the

United States. Hisquierdo v Hisquierdo, 439 US 572,

581; 99 S Ct 802; 59 L Ed 2d 1 (1979). Thus, “[s]tate

family and family-property law must do major damage

to clear and substantial federal interests before the

Supremacy Clause will demand that state law be over-

ridden.” Id. (quotation marks and citation omitted).

Here, we consider whether the federal interest in social

security benefits preempts enforcement of the parties’

agreement to equalize their social security benefits.

We begin our analysis by consulting the specific

federal statute at issue, § 407(a) of the Social Security

Act:

The right of any person to any future payment under

this subchapter shall not be transferable or assignable, at

law or in equity, and none of the moneys paid or payable or

rights existing under this subchapter shall be subject to

execution, levy, attachment, garnishment, or other legal

process, or to the operation of any bankruptcy or insol-

vency law. [42 USC 407(a)].

724 291 M

ICH

720 [Mar

James Biondo’s preemption argument rests on the

language of this statute prohibiting transfer, assign-

ment, “execution, levy, attachment, garnishment,” or

application of “other legal process” to a beneficiary’s

right to collect social security benefits. In Hisquierdo,

439 US 572, the United States Supreme Court con-

strued strikingly similar language in the Railroad Re-

tirement Act of 1974 (RRA), 45 USC 231 et seq.

The

parties in Hisquierdo divorced in California. His-

quierdo, 439 US at 573. The California Supreme Court

ruled that the husband’s railroad retirement benefits

constituted community property subject to division in

the divorce judgment. Id. The United States Supreme

Court reversed the California Supreme Court, holding

that 45 USC 231m preempted California’s community-

property law. Hisquierdo, 439 US at 590. The United

States Supreme Court explained that the statutory

language comprising 45 USC 231m reflected congres-

sional intent that a “specified beneficiary” would re-

ceive benefits undiminished by “attachment and antici-

pation.” Hisquierdo, 439 US at 582. The statute’s

“critical terms” prohibiting assignment, garnishment,

attachment or subjection to legal process “prevent[] the

vagaries of state law from disrupting the national

scheme, and guarantee[] a national uniformity that

enhances the effectiveness of congressional policy.” Id.

at 582, 584.

The statutory language at issue in Hisquierdo, 45 USC 231m(a),

directs that

not withstanding any other law of the United States, or of any

State, territory, or the District of Columbia, no annuity or supple-

mental annuity shall be assignable or be subject to any tax or to

garnishment, attachment, or other legal process under any cir-

cumstances whatsoever, nor shall the payment thereof be antici-

pated[.]

2011] B

IONDO V

IONDO

725

Notably, in Hisquierdo the Supreme Court inter-

preted § 231m as not only barring automatic, direct

payments of RRA benefits from one spouse to another,

but as also prohibiting “offsetting award[s]” intended

to compensate one spouse for the value of the benefit

expected by the other. Id. at 588. The Supreme Court

reasoned that because § 231m contemplates that pay-

ments are not to be “anticipated,” an award intended to

offset future payments would permit a divorcing spouse

to receive a beneficial interest in retirement payments

that had not yet accrued to the other spouse. Id. The

Court further observed that a counterbalancing award

of RRA benefits “would upset the statutory balance and

impair [the retiree’s] economic security just as surely as

would a regular deduction from his benefit check.” Id.

Consequently, the Court concluded that state marital-

property laws must yield to Congress’s determination

that RRA benefits “should go to the retired worker

alone....”Id. at 590.

Like 45 USC 231m of the RRA, 42 USC 407(a)

prohibits the assignment of social security benefits and

removes social security benefits from the reach of

“attachment, garnishment, or other legal process....”

That virtually identical language appears in both stat-

utes compels us to apply Hisquierdo, and to declare that

§ 407(a) preempts the social security equalization pro-

vision in the Biondos’ consent judgment. We find addi-

tional support for our holding in Hisquierdo itself,

where the Supreme Court specifically analogized the

RRA to the Social Security Act, observing that the

former RRA “was amended several times to make it

conform more closely to the existing Social Security

Act.” Hisquierdo, 439 US at 574 n 3.

The Supreme Court in Hisquierdo also identified another similarity

shared by the RRA and the Social Security Act: “Like Social Security, and

726 291 M

ICH

720 [Mar

Furthermore, we find it significant that Congress

created an exception to 42 USC 407(a) when it enacted

42 USC 659(a), which permits the states to employ

social security benefits for the enforcement of child

support and alimony obligations. Application of social

security benefits for marital property purposes remains

specifically excluded from this exception, because Con-

gress declared in 42 USC 659(i)(3)(B)(ii) that the term

“alimony” does not encompass “any payment or trans-

fer of property or its value by an individual to the

spouse or a former spouse of the individual in compli-

ance with any community property settlement, equi-

table distribution of property, or other division of prop-

erty between spouses or former spouses.” Therefore, we

conclude that the circuit court erred by enforcing the

consent judgment’s social security provision.

In reaching this conclusion, we specifically reject

James Biondo’s suggestion that the circuit court did not

possess subject-matter jurisdiction to enter the terms of

the parties’ consent judgment of divorce. That federal

law has preempted a portion of the parties’ consent

judgment of divorce in no manner deprives the circuit

court of subject-matter jurisdiction in this divorce mat-

ter. The Social Security Act simply does not divest state

courts of subject-matter jurisdiction in divorce cases.

Rather, the Supremacy Clause preempts state laws

regarding the division of marital property only to the

extent they are inconsistent with 42 USC 407(a). The

Michigan Supreme Court has explained this distinction

as follows:

The loose practice has grown up, even in some opinions,

of saying that a court had no “jurisdiction” to take certain

unlike most private pension plans, railroad retirement benefits are not

contractual. Congress may alter, and even eliminate, them at any time.”

Id. at 575.

2011] B

IONDO V

IONDO

727

legal action when what is actually meant is that the court

had no legal “right” to take the action, that it was in error.

If the loose meaning were correct it would reduce the

doctrine of res judicata to a shambles and provoke endless

litigation, since any decree or judgment of an erring

tribunal would be a mere nullity. [Buczkowski v Bucz-

kowski, 351 Mich 216, 222; 88 NW2d 416 (1958).]

Although the circuit court erred by ordering the social

security equalization, it did not exceed its subject-

matter jurisdiction in doing so. Const 1963, art 6, § 13;

MCL 552.6(1).

Having determined that federal law preempts the

social security equalization formula in the Biondos’

divorce judgment, we now address the consequences of

this decision.

It is a well-settled principle of law that courts are bound

by property settlements reached through negotiations and

agreement by parties to a divorce action, in the absence of

fraud, duress, mutual mistake, or severe stress which

prevented a party from understanding in a reasonable

manner the nature and effect of the act in which she was

engaged. [Keyser v Keyser, 182 Mich App 268, 269-270; 451

NW2d 587 (1990).]

This Court has described a mutual mistake as a situa-

tion “where the parties have a common intention,” but

the resulting judgment rests on a common error. Vil-

ladsen v Villadsen, 123 Mich App 472, 477; 333 NW2d

311 (1983) (quotation marks and citation omitted). In

drafting the consent judgment, the parties incorrectly

deemed their social security benefits marital property,

to be equally divided along with the rest of the marital

estate. Because no prior published Michigan caselaw

removed social security benefits from the realm of

marital property, we view the consent judgment’s inclu-

sion of the social security equalization term as a mutual

728 291 M

ICH

720 [Mar

mistake. Accordingly, on remand the circuit court may

modify the judgment’s property-settlement provisions.

We anticipate that on remand the Biondos will con-

test whether the amount of the parties’ anticipated

social security benefits may play any part in a modified

judgment reallocating marital property. We consider

this important question to offer guidance to the parties

and the circuit court. In Sparks v Sparks, 440 Mich 141,

159-160; 485 NW2d 893 (1992), our Supreme Court set

forth the following relevant factors for consideration

when dividing marital property: “(1) duration of the

marriage, (2) contributions of the parties to the marital

estate, (3) age of the parties, (4) health of the parties, (5)

life status of the parties, (6) necessities and circum-

stances of the parties, (7) earning abilities of the par-

ties, (8) past relations and conduct of the parties, and

(9) general principles of equity.” The amount of a

spouse’s anticipated or received social security benefits

qualifies as relevant to several of the Sparks factors,

including the contributions each made to the marital

estate, their “necessities and circumstances,” and “gen-

eral principles of equity.” Id. at 160.

A number of state courts have addressed the extent

to which a divorce court may consider social security

benefits when formulating an equitable division of

property. The Iowa Supreme Court has held that social

security benefits may generally inform a property divi-

sion:

We see a crucial distinction between: (1) adjusting

property division so as to indirectly allow invasion of

benefits; and (2) making a general adjustment in dividing

marital property on the basis that one party, far more than

the other, can reasonably expect to enjoy a secure retire-

ment. It should not invalidate a property division if a

disproportionate expectation regarding social security ben-

2011] B

IONDO V

IONDO

729

efits is acknowledged in the court’s assessment of the

equities. [In re Marriage of Boyer, 538 NW2d 293, 296

(Iowa, 1995).]

In Boyer, the Iowa Supreme Court rejected the notion

that “the federal preemption legislation requires state

courts under these circumstances to purge so obvious

an economic reality” as disproportionate anticipated

social security benefits. Id. Similarly, the Maine Su-

preme Judicial Court has reasoned:

The court’s role in property division is to accomplish a

just division that takes into account “all relevant factors.”

Just as few married couples engaged in a serious assess-

ment of their retirement resources would ignore the avail-

ability of Social Security benefits, courts should not be

required to ignore reality and fashion a distributive award

of the parties’ retirement and other marital assets divorced

from the actual “economic circumstances of each spouse at

the time the division of property is to become effective.”

19-A M.R.S. § 953(1)(C); see also In re Marriage of Boyer,

538 N.W.2d [at] 293-94...(stating that “a state court is

not required to pretend to be oblivious of the fact that one

party expects benefits that will not be enjoyed by the

other”). Failing to consider Social Security benefit pay-

ments a spouse can reasonably be expected to receive in the

near future may result in a distorted picture of that

spouse’s financial needs, and, in turn, an inequitable

division of the marital property. [Depot v Depot, 2006 ME

25, ¶ 17; 893 A2d 995 (2006).]

And the Colorado Court of Appeals has expressed:

“[W]hile a trial court may not distribute marital prop-

erty to offset the computed value of Social Security

benefits, it may premise an unequal distribution of

property—using, for example, a 60-40 formula instead

of 50-50—on the fact that one party is more likely to

enjoy a secure retirement.” In re Marriage of More-

house, 121 P3d 264, 267 (Colo App, 2005).

730 291 M

ICH

720 [Mar

We join the majority of state courts that have consid-

ered this question, and hold that the circuit court may

consider the parties’ anticipated social security benefits

as one factor, among others, to be considered when

devising an equitable distribution of marital property.

We caution that in endeavoring to divide the marital

estate, the court may not treat social security benefits

as tantamount to a marital asset. Instead, the circuit

court may take into account, in a general sense, the

extent to which social security benefits received by the

parties affect the Sparks factors.

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

2011] B

IONDO V

IONDO

731

PECIAL

RDERS

SPECIAL ORDERS

In this section are orders of the Court of general

interest to the bench and bar of the state.

Order Entered March 1, 2011:

In re S

MITH

, Docket No. 299300. The Court, on its own motion, orders

that the February 15, 2011, opinion is hereby amended. The opinion

released as an unpublished opinion per curiam is amended to be an

opinion per curiam for publication.

The Clerk’s Office is directed to provide a copy of this order to the

Reporter’s Office along with a copy of the opinion per curiam.

In all other respects, the February 15, 2011, opinion remains un-

changed, and the filing deadline for any additional relief shall run from

that date. Reported at 291 Mich App 621.

Order Entered March 14, 2011:

LINE

EPARTMENT OF

RANSPORATION

, Docket No. 295652; reported at

291 Mich App 651. The Court orders that a special panel shall not be

convened pursuant to MCR 7.215(J) to resolve the conflict between this

case and McCahan v Brennan, 291 Mich App 430; 804 NW2d 906 (2011).

PECIAL

RDERS

801

INDEX-DIGEST

INDEX–DIGEST

ACTIONS

See, also,

NSURANCE

OURT OF

LAIMS

1. The requirement stated in MCL 600.6431(3), that in all

actions against the state for property damage or personal

injuries the claimant must file with the clerk of the Court

of Claims a notice of intention to file a claim or the claim

itself within six months following the event giving rise to

the cause of action, is a condition precedent to suing the

state; substantial compliance does not satisfy the statute,

and the state is not required to show actual prejudice when

a plaintiff fails to comply with the statutory notice require-

ment. McCahan v Brennan, 291 Mich App 430.

2. Kline v Dep’t of Transportation, 291 Mich App 651.

ADMINISTRATIVE AGENCIES—See

OURTS

ADMINISTRATIVE LAW—See

OURTS

AXATION

AFFIRMATIVE DEFENSES—See

ONTROLLED

UBSTANCES

1, 2

LEADING

1, 2

AFFIRMATIVE DEFENSES TO FORFEITURE—See

ORFEITURES AND

ENALTIES

ALIMONY—See

IVORCE

851

ANTISUIT INJUNCTIONS OF SISTER STATES—See

ONSTITUTIONAL

APPEAL

See, also,

AXATION

RIAL

1, 2

TANDARDS OF

EVIEW

1. Questions concerning the applicability of the Uniform

Enforcement of Foreign Judgments Act and the Full

Faith and Credit Clause of the United States Constitu-

tion are reviewed de novo on appeal; decisions to dismiss

a case on the basis of the doctrine of forum non

conveniens or to dismiss a case that is properly within

the jurisdiction of the court on the basis of pending or

available litigation in an alternative, foreign forum are

reviewed for an abuse of discretion (US Const, art IV,

§ 1; MCL 691.1171 et seq.). Hare v Starr Commonwealth

Corp, 291 Mich App 206.

ORDS AND

HRASES

2. Attorney General v Blue Cross Blue Shield of Michigan,

291 Mich App 64.

APPEARANCE OF IMPROPRIETY IN PUBLIC

SERVICE COMMISSION FUNDING—See

UBLIC

TILITIES

APPOINTMENT OF RECEIVERS—See

IVORCE

ARREST RECORDS—See

UVENILE

ASSAULT AND BATTERY

OMESTIC

IOLENCE

1. A violation of the domestic violence statute requires the

commission of an assault or an assault and battery; a

battery is an intentional, unconsented to, and harmful

or offensive touching of the person of another or of

something closely connected with the person; it does not

matter whether the touching caused an injury; every

battery includes an assault; an assault is an attempt to

commit a battery or an unlawful act that places another

person in reasonable apprehension of receiving an imme-

852 291 M

ICH

diate battery; intent may be inferred from all the facts and

circumstances, and only minimal circumstantial evidence

from which intent may be inferred need be presented

(MCL 750.81[2]). People v Cameron, 291 Mich App 599.

ASSESSED VALUATIONS—See

AXATION

4, 7

ASSESSMENT OF PROSECUTION COSTS AS A

PROBATION TERM—See

RIMINAL

ASSIGNMENT OF SOCIAL SECURITY BENEFITS—See

ONSTITUTIONAL

ATTACHMENT OF SOCIAL SECURITY

BENEFITS—See

ONSTITUTIONAL

ATTORNEY AND CLIENT—See

RIMINAL

1, 2

AUTHORIZATION OF A TRESPASS—See

RESPASS

AUTOMOBILES—See

RIMINAL

9, 10, 11

EGLIGENCE

EARCHES AND

EIZURES

BANISHMENT OF RIOTERS FROM CAMPUSES—See

ENTENCES

BATTERY—See

SSAULT AND

ATTERY

BEST INTERESTS OF THE CHILD—See

ARENT AND

HILD

BUILDING OPEN TO THE PUBLIC—See

OVERNMENTAL

MMUNITY

NDEX

-D

IGEST

853

BURDEN OF PROOF FOR INEFFECTIVE

ASSISTANCE OF COUNSEL—See

RIMINAL

BURGLARY TOOLS—See

RIMINAL

CALCULATION OF WORK-LOSS BENEFITS—See

NSURANCE

CANCELLATION OF POLICIES—See

NSURANCE

CHANGES IN CHILD’S LEGAL RESIDENCE—See

ARENT AND

HILD

CHANGES IN PARENTING TIME—See

ARENT AND

HILD

5, 6

CHANGES OF CIRCUMSTANCES WARRANTING

SPOUSAL-SUPPORT MODIFICATIONS—See

IVORCE

CHILD CUSTODY ACT—See

ARENT AND

HILD

1, 4, 6

CHILD ENTICEMENT—See

RIMINAL

CIRCUMSTANCES PERMITTING PARENTING-TIME

MODIFICATIONS—See

ARENT AND

HILD

CITATIONS FOR CIVIL INFRACTIONS,

MISDEMEANORS, OR ORDINANCE

V IOLATIONS—See

RETRIAL

ROCEDURE

CIVIL DISORDER—See

ENTENCES

CLAIMS AGAINST ESTATES—See

ECURED

RANSACTIONS

854 291 M

ICH

CLOSING TRIALS TO THE PUBLIC—See

ONSTITUTIONAL

CODE OF CRIMINAL PROCEDURE—See

RETRIAL

ROCEDURE

COLLATERAL ATTACKS ON FOREIGN

JUDGMENTS—See

UDGMENTS

COLLATERAL CONSEQUENCES OF GUILTY

PLEAS—See

RIMINAL

COLLECTION GUARANTIES—See

ONTRACTS

COLLEGES—See

ENTENCES

COMITY—See

PPEAL

UDGMENTS

COMMENCEMENT OF FOIA ACTION—See

IMITATION OF

CTIONS

COMMUNITY COLLEGES—See

ENTENCES

CONCEALMENT OF ASSETS—See

IVORCE

CONDITIONS PRECEDENT TO BRINGING AN

ACTION AGAINST THE STATE—See

CTIONS

CONFIDENTIAL INFORMATION—See

RETRIAL

ROCEDURE

3, 4

CONFIDENTIALITY OF INFORMATION RELATED TO

CRIMINAL INVESTIGATION—See

RETRIAL

ROCEDURE

NDEX

-D

IGEST

855

CONFLICT OF LAWS—See

ONSTITUTIONAL

11, 12

CONFRONTATION CLAUSE—See

ONSTITUTIONAL

1, 2

CONSEQUENCES OF GUILTY PLEAS—See

RIMINAL

CONSPIRACY—See

ENTENCES

CONSTITUTIONAL LAW

See, also,

PPEAL

UDGMENTS

ONFRONTATION

LAUSE

1. An accused person has a constitutional right to confront

the witnesses against him or her; when determining

whether the right of confrontation would be infringed by

permitting testimony by means of two-way, interactive

video technology, a trial court must hear evidence and

make case-specific findings that the use of such technology

is necessary to further a public policy or state interest

important enough to outweigh the defendant’s right of

confrontation and that it preserves all the other elements

of the Confrontation Clause (US Const, Am VI; Const

1963, art 1, § 20). People v Buie (After Remand), 291 Mich

App 259.

2. A court may take trial testimony by way of two-way,

interactive video technology when the defendant is

present in the courtroom or has waived the right to be

present if there is a showing of good cause and the

parties consent; defense counsel may waive a defen-

dant’s right of confrontation, but only if the waiver is a

legitimate trial tactic or strategy and the defendant does

not object to the decision (MCR 6.006[C]). People v Buie

(After Remand), 291 Mich App 259.

RIMINAL

3. The de novo standard of review is properly employed in

reviewing a defendant’s challenge to the sufficiency of

the evidence to support the defendant’s conviction;

reviewing an issue de novo requires the reviewing court

856 291 M

ICH

to address a legal issue anew, without deference to the

trial court’s conclusion on the issue. People v Harverson,

291 Mich App 171.

ULL

AITH AND

REDIT

LAUSE

4. The Full Faith and Credit Clause of the United States

Constitution does not compel a forum state court to

recognize and enforce sister-state antisuit injunctions

(US Const, art IV, § 1). Hare v Starr Commonwealth

Corp, 291 Mich App 206.

5. Under the Full Faith and Credit Clause of the United

States Constitution, a foreign judgment is conclusive

and must be recognized if jurisdiction has been obtained

over the parties and the subject matter; however, the

courts of this state are not obliged under the federal

constitution to give a foreign judgment full faith and

credit when the issuing court lacked jurisdiction over

the subject matter or the parties, and a valid judgment

affecting a nonresident’s rights or interests may only be

entered by a court having personal jurisdiction over that

defendant (US Const, art IV, § 1). Pecoraro v Rostagno-

Wallat, 291 Mich App 303.

UDGMENTS OF

ISTER

TATES

6. A sister-state judgment must constitute a final judg-

ment on the merits in order to qualify for recognition

under the Full Faith and Credit Clause of the United

States Constitution (US Const, art IV, § 1). Hare v Starr

Commonwealth Corp, 291 Mich App 206.

IGHT TO

UBLIC

RIAL

7. A trial court may not close the courtroom to the public

unless the party seeking closure advances an overriding

interest that is likely to be prejudiced and the trial court

considers all reasonable alternatives to closing the pro-

ceeding; however, the failure of the defendant to timely

assert the right to a public trial forecloses the later grant

of relief. People v Vaughn, 291 Mich App 183.

ELF

-I

NCRIMINATION

8. The Fifth Amendment privilege against self-incrimination

operates not only in criminal trials, but also protects an

individual from official questioning in any other proceed-

ing, civil or criminal, formal or informal, administrative or

judicial, or investigatory or adjudicatory where the an-

swers might incriminate the individual in future criminal

proceedings; the privilege protects an individual from

NDEX

-D

IGEST

857

being forced to answer any question that would furnish a

link in the chain of evidence needed to prosecute; to

sustain the privilege, it need only be evident from the

implications of the question, in the setting in which it is

asked, that a responsive answer or an explanation of why

it cannot be answered might be dangerous because injuri-

ous disclosure could result; a court should bar a claim of

privilege only when the individual’s answer cannot possi-

bly be incriminating (US Const, Am V). PCS4LESS, LLC

v Stockton, 291 Mich App 672.

9. The Fifth Amendment privilege against self-

incrimination may apply when a governmental sub-

poena compels the holder of a document to perform an

act that may have testimonial aspects and an incrimi-

nating effect; the act of producing a document may be

subject to the privilege even though the contents of the

document are not privileged (US Const, Am V).

PCS4LESS, LLC v Stockton, 291 Mich App 672.

10. The Fifth Amendment privilege against self-

incrimination may not be asserted on behalf of another

and cannot be utilized by or on behalf of any organi-

zation, such as a corporation; organizations with inde-

pendent existence apart from their individual mem-

bers may not assert the privilege; the custodian of an

organization’s records may not refuse to produce the

records even if those records might incriminate the

custodian personally (US Const, Am V). PCS4LESS,

LLC v Stockton, 291 Mich App 672.

UPREMACY

LAUSE

11. Federal law preempts state law under the Supremacy

Clause when Congress so intends; although federal law

generally does not preempt state laws governing di-

vorce or domestic relations, the Supremacy Clause will

demand that state law be overridden when state family

and family-property laws do major damage to clear and

substantial federal interests (US Const, art VI, cl 2).

Biondo v Biondo, 291 Mich App 720.

12. The Social Security Act prohibits the assignment of

social security benefits and removes social security

benefits from the reach of attachment, garnishment, or

other legal process; the Supremacy Clause preempts

state laws regarding the division of martial property

only to the extent that such laws are inconsistent with

the provision of the Social Security Act prohibiting the

assignment, attachment, or garnishment of social se-

858 291 M

ICH

curity benefits (US Const, art VI, cl 2; 42 USC 407[a]).

Biondo v Biondo, 291 Mich App 720.

CONSTRUCTION LIENS—See

IENS

CONTINUING PATTERN OF CRIMINAL

BEHAVIOR—See

ENTENCES

2, 3

CONTRACTORS—See

IENS

CONTRACTS

UARANTY

ONTRACTS

1. A guaranty of payment is absolute while a guaranty of

collection is conditional and becomes fixed only if the

creditor exercises reasonable diligence in collecting from

the principal debtor; when the unambiguous terms of a

guaranty unconditionally guarantee payment, the credi-

tor has no obligation to the guarantor to attempt to

enforce the loan terms against the borrower. Comerica

Bank v Cohen, 291 Mich App 40.

2. In a case in which the guarantor is entitled to notice, a

failure to give notice of the principal’s default does not

discharge the guarantor unless the guarantor has actual

loss or damages, and then only the amount of loss or

damage is discharged. Comerica Bank v Cohen, 291

Mich App 40.

CONTROLLED SUBSTANCES

See, also,

ORFEITURES AND

ENALTIES

EDICAL

ARIJUANA

1. A person facing possible prosecution for violating Michi-

gan’s controlled substances laws may assert an affirma-

tive defense under MCL 333.26428(a) if a physician has

stated that, in the physician’s professional opinion, the

patient is likely to receive therapeutic or palliative

benefit from the medical use of marijuana to treat or

alleviate the patient’s serious or debilitating medical

condition or symptoms of the patient’s serious or debili-

tating medical condition; but the physician’s statement

NDEX

-D

IGEST

859

must have been made before the person’s arrest. People

v Kolanek, 291 Mich App 227.

2. The affirmative defense provided under the Michigan

Medical Marihuana Act for a person whose physician

has stated that medical use of marijuana would provide

therapeutic or palliative benefits for the person is effec-

tive only if the patient actively sought physician ap-

proval on or after December 4, 2008 (MCL

333.26428[a]). People v Kolanek, 291 Mich App 227.

3. Marijuana plants cultivated for medical purposes must

be kept in an enclosed, locked facility, which is defined

under the Michigan Medical Marihuana Act as a closet,

room, or other enclosed area equipped with locks or

other security devices; under the statute, a proper

enclosure must be similar to a closet or room, that is, it

must be stationary and closed on all sides, and the

facility must have locks limiting access to the person

authorized under the act to grow the marijuana or the

qualifying patient (MCL 333.26423[c], 333.26424[a]).

People v King, 291 Mich App 503.

CORPORATIONS

See, also,

ONSTITUTIONAL

EALTH

-C

ARE

ORPORATIONS

1. The restrictions on permissible activities by a health-

care corporation in MCL 550.1207(1)(o) do not expressly

prohibit any particular activity undertaken by a health-

care corporation’s subsidiary that is not a health-care

corporation. Attorney General v Blue Cross Blue Shield

of Michigan, 291 Mich App 64.

COSTS OF PROSECUTION—See

RIMINAL

COURT OF CLAIMS—See

CTIONS

1, 2

COURTS

DMINISTRATIVE

1. The doctrine of primary jurisdiction is applicable where

the issues presented are of a type that an administrative

agency possesses superior knowledge and expertise over

the courts and that involve a regulatory area unfamiliar

to the courts; referral to an agency is appropriate for

860 291 M

ICH

preliminary resort for ascertaining and interpreting the

circumstances underlying legal issues to thereafter be

decided by the courts; it is the courts, not administrative

agencies, that have ultimate authority over statutory

interpretation and any statutory interpretation ren-

dered by an administrative agency is not binding on the

courts. Attorney General v Blue Cross Blue Shield of

Michigan, 291 Mich App 64.

CREDIBILITY OF WITNESSES—See

AXATION

CREDITORS—See

ECURED

RANSACTIONS

CRIME AGAINST A PERSON OR PROPERTY—See

ENTENCES

CRIMINAL DEFENSES—See

ONTROLLED

UBSTANCES

1, 2

CRIMINAL LAW

See, also, A

SSAULT AND

ATTERY

ONSTITUTIONAL

ONTROLLED

UBSTANCES

OBBERY

TTORNEY AND

LIENT

1. A defendant need only be made aware of the direct

consequences of a guilty plea in order for the defen-

dant’s counsel to provide effective assistance; a defen-

dant’s ignorance of the collateral consequences of a plea

does not render the plea involuntary, and counsel’s

failure to properly advise regarding the collateral con-

sequences of a plea does not bear on whether the

defendant properly understood the decision to enter the

plea. People v Fonville, 291 Mich App 363.

2. To provide effective assistance of counsel, defense coun-

sel must advise a defendant contemplating a plea of

guilty with regard to an offense listed in the Sex

Offenders Registration Act that as a consequence of the

guilty plea, the defendant will be required to register

under the act; a failure to provide that information

NDEX

-D

IGEST

861

affects whether the plea was knowingly made (MCL

28.721 et seq.). People v Fonville, 291 Mich App 363.

HILD

NTICEMENT

3. The offense of child enticement involves the leading,

taking, carrying away, decoying, or enticing away of a

child under 14 yeas of age with the intent to detain or

conceal the child from the child’s parent; although the

offense includes no express sexual component as a

requirement for a conviction of the offense, the Legisla-

ture has deemed registration under the Sex Offenders

Registration Act for those convicted of that offense a

necessary measure to protect the safety and welfare of

children in the state; requiring persons convicted of

offenses listed in the Sex Offenders Registration Act to

tended to chastise, deter, or discipline an offender, but it

is merely a remedial regulatory scheme furthering a

legitimate state interest and does not constitute cruel or

unusual punishment, (MCL 28.721a, 28.722[e][vii],

28.723, 750.350). People v Fonville, 291 Mich App 363.

OSTS OF

ROSECUTION

4. A trial court must have statutory authority to order a

criminal defendant to pay costs associated with his or

her trial; when authorized, those costs must bear a

reasonable relation to the expenses actually incurred in

the prosecution, and the costs may not include expendi-

tures made for the maintenance and functioning of

governmental agencies that are to be borne by the

public irrespective of specific violations of the law; the

justification for the costs must be made part of the trial

court record to allow an appellate court to determine

whether the costs were allowable. People v Dilworth, 291

Mich App 399.

OMESTIC

IOLENCE

5. MCL 768.27b allows trial courts to admit relevant

evidence of other domestic assaults to prove any issue,

even the character of the accused, if the evidence meets

the requirements of MRE 403; under MRE 403 the

reviewing court must first decide if the evidence was

unfairly prejudicial and then weigh the probativeness or

relevance of the evidence against the unfair prejudice to

determine whether any prejudicial effect substantially

outweighed the probative value of the evidence. People v

Cameron, 291 Mich App 599.

862 291 M

ICH

FFECTIVE

SSISTANCE OF

OUNSEL

6. A defendant asserting a claim of ineffective assistance of

counsel must show that defense counsel’s performance

fell below an objective standard of reasonableness under

prevailing professional norms and that defense coun-

sel’s deficient performance so prejudiced the defendant

that there is a reasonable probability that, but for

counsel’s errors, the result of the proceeding would have

been different; in this process, the defendant must

overcome the strong presumption that defense counsel’s

performance constituted sound trial strategy. People v

Fonville, 291 Mich App 363.

UILTY

LEAS

7. When reviewing whether the factual basis for a defen-

dant’s guilty plea was adequate, the Court of Appeals

considers whether the fact-finder could have found the

defendant guilty on the basis of the facts elicited from

the defendant at the plea proceeding; a factual basis to

support a plea exists if an inculpatory inference can be

drawn from what the defendant admitted, even if an

exculpatory inference could also be drawn and the

defendant asserts that the latter is the correct inference;

even if the defendant denies an element of the crime, the

trial court may properly accept the plea if an inculpatory

inference can still be drawn from what the defendant

admitted. People v Fonville, 291 Mich App 363.

8. A court should grant a motion to withdraw a guilty plea

before sentencing only if the defendant shows that

withdrawal of the plea is in the interest of justice, which

requires the defendant to articulate a fair and just

reason for withdrawing the plea; fair and just reasons

include claims of actual innocence or a valid defense to

the charge, not dissatisfaction with the sentence or

incorrect advice from defense counsel (MCR 6.310[B]).

People v Fonville, 291 Mich App 363.

OTOR

EHICLES

9. The term “operating” in the statute prohibiting opera-

tion of a motor vehicle while under the influence of or

visibly impaired by alcoholic liquor or a controlled

substance must be defined in terms of the danger that

the statute seeks to prevent: the collision of a vehicle

being operated by a person under the influence of or

visibly impaired by alcoholic liquor or a controlled

substance with other persons or property; once a person

NDEX

-D

IGEST

863

using a motor vehicle as a motor vehicle has put the

vehicle in motion, or in a position posing a significant

risk of causing a collision, such a person continues to

operate it until the vehicle is returned to a position

posing no such risk (MCL 256.625). People v Lechleitner,

291 Mich App 56.

10. The statute that provides that a person may be con-

victed when the person operates a motor vehicle while

under the influence of or visibly impaired by alcoholic

liquor or a controlled substance and by the operation of

the vehicle causes the death of another person does not

require that the defendant’s vehicle be in motion at the

time of the accident causing the death, but rather that

the victim’s death be caused by the defendant’s opera-

tion of the vehicle while intoxicated (MCL 257.625[4]).

People v Lechleitner, 291 Mich App 56.

OSSESSION OF

URGLARY

OOLS

11. MCL 750.116 prohibits the knowing possession of a

tool, implement, or device adapted and designed for

breaking open any building, room, vault, safe, or other

depository to steal property held within; the term

“depository” includes motor vehicles. People v Osby,

291 Mich App 412.

FFENDERS

EGISTRATION

12. Juveniles convicted of first-, second-, or third-degree

criminal sexual conduct or charged with those crimes

and convicted of certain lesser offenses may petition

the court to remove their names from the sex offender

registry in certain circumstances, but there is no

provision allowing juveniles initially charged with

fourth-degree criminal sexual conduct to petition for

removal of their names from the registry (MCL

28.728c[15]). In re MS, 291 Mich App 439.

CRIMINAL SEXUAL CONDUCT—See

RIMINAL

CUSTODIANS OF DOCUMENTS—See

ONSTITUTIONAL

CUSTODY OF CHILDREN—See

ARENT AND

HILD

1, 2

864 291 M

ICH

CUSTOMER CHOICE AND ELECTRICITY

RELIABILITY ACT—See

UBLIC

TILITIES

DEATH OF SPOUSAL-SUPPORT PAYORS—See

IVORCE

DEFECTIVE NOTICE OF INTENT TO FILE SUIT—See

EGLIGENCE

DEFENSES—See

ONTROLLED

UBSTANCES

1, 2

DELIBERATIVE-PROCESS PRIVILEGE FOR

GOVERNMENTAL MATERIALS—See

RETRIAL

ROCEDURE

DEPOSITORIES BROKEN INTO WITH BURGLARY

TOOLS—See

RIMINAL

DESIGN DEFECTS IN PUBLIC BUILDINGS—See

OVERNMENTAL

MMUNITY

DESIGNATED DELIVERY SERVICES FOR FILING

TAX TRIBUNAL PETITIONS—See

AXATION

DIES, FORMS, AND TOOLS—See

IENS

DIRECT CONSEQUENCES OF GUILTY PLEAS—See

RIMINAL

DISCHARGE AND DISMISSAL OF JUVENILE

PROCEEDINGS—See

UVENILE

DISCHARGE OF GUARANTORS—See

ONTRACTS

DISCOVERY—See

RETRIAL

ROCEDURE

1, 2, 3, 4

NDEX

-D

IGEST

865

DISMISSALS OF TAX TRIBUNAL ACTIONS—See

AXATION

DIVORCE

See, also,

ONSTITUTIONAL

ONCEALMENT OF

SSETS

1. In a divorce case, a circuit court may appoint a receiver

over a third-party corporation in the face of allegations

that one of the divorcing spouses used the corporate

form to conceal assets or funds that could be used to

satisfy a judgment debt to the other spouse. Shouneyia

v Shouneyia, 291 Mich App 318.

URISDICTION

2. “Resided,” as used in MCL 552.9(1), is interpreted as

“residence” and defined as “a place of abode accompa-

nied with the intention to remain”; “intention to re-

main” does not mean a commitment to stay perma-

nently or indefinitely, but only that a person reside in an

area permanently enough to have legal relations and

responsibilities. Kar v Nanda, 291 Mich App 284.

ARITAL

ROPERTY

3. A trial court dividing marital property may consider the

following factors: (1) the duration of the marriage, (2)

contributions of the parties to the marital estate, (3) the

age of the parties, (4) the health of the parties, (5) the life

status of the parties, (6) the necessities and circumstances

of the parties, (7) the earning abilities of the parties, (8) the

past relations and conduct of the parties, and (9) general

principles of equity; although the court may not treat

social security benefits as tantamount to a marital asset,

the court may take into account, in a general sense, the

extent to which social security benefits received by the

parties affect the factors the court considers in dividing

marital property (42 USC 407[a]). Biondo v Biondo, 291

Mich App 720.

POUSAL

UPPORT

4. Spousal support may continue, undergo modification, or

be implemented for the first time following the payor

spouse’s death; the burden of proving the need for modi-

fication rests on the party objecting to the previously

determined support amount; a court may implement spou-

sal support for the first time following the payor spouse’s

death if the divorce judgment reserved the question of

support for further determination. Luckow Estate v

Luckow, 291 Mich App 417.

866 291 M

ICH

DOCTRINE OF PRIMARY JURISDICTION—See

OURTS

DOMESTIC RELATIONS—See

ONSTITUTIONAL

DOMESTIC VIOLENCE—See

SSAULT AND

ATTERY

RIMINAL

DOMINANT ESTATES—See

ROPERTY

DRAIN CODE—See

RAINS

DRAINAGE—See

ROPERTY

DRAINS

See, also,

ROPERTY

RESPASS

RAIN

ODE

1. Chapter 4 of the Drain Code concerns the procedures

applicable to proposed drains rather than established

drains (MCL 280.71 et seq.). Wiggins v City of Burton,

291 Mich App 532.

DRUNK DRIVING—See

RIMINAL

9, 10

ENTENCES

1, 6

DUTY OF DEPARTMENT OF HUMAN SERVICES TO

FACILITATE REUNIFICATION—See

ERMINATION OF

ARENTAL

IGHTS

EASEMENTS—See

ROPERTY

EFFECTIVE ASSISTANCE OF COUNSEL—See

RIMINAL

1, 2, 6

ELEMENTS OF ASSAULT—See

SSAULT AND

ATTERY

NDEX

-D

IGEST

867

ELEMENTS OF BATTERY—See

SSAULT AND

ATTERY

ELEMENTS OF CHILD ENTICEMENT—See

RIMINAL

ELEMENTS OF POSSESSING BURGLARY

TOOLS—See

RIMINAL

ESTABLISHED DRAINS—See

RAINS

ESTATES AND PROTECTED INDIVIDUALS

CODE—See

ECURED

RANSACTIONS

ESTOPPEL OF INSURER—See

NSURANCE

EVIDENCE—See

RIMINAL

AXATION

EXCULPATORY INFERENCES FROM GUILTY

PLEAS—See

RIMINAL

FACTORS FOR CHANGING CHILD’S

RESIDENCE—See

ARENT AND

HILD

FACTUAL BASIS OF GUILTY PLEAS—See

RIMINAL

FAILURE OF INSURER TO INVESTIGATE RISK—See

NSURANCE

FAILURES TO REPAIR OR MAINTAIN PUBLIC

BUILDINGS—See

OVERNMENTAL

MMUNITY

868 291 M

ICH

FAIR AND JUST REASONS TO WITHDRAW GUILTY

PLEAS—See

RIMINAL

FAIR MARKET VALUE—See

AXATION

FAMILY LAW—See

ONSTITUTIONAL

FEDERAL PREEMPTION—See

ONSTITUTIONAL

11, 12

FIFTH AMENDMENT—See

ONSTITUTIONAL

8, 9, 10

FILING PERIOD FOR CONSTRUCTION LIENS—See

IENS

FILING TAX TRIBUNAL PETITIONS—See

AXATION

FINAL DISPOSITION OF CLAIMS FOR PURPOSES OF

APPEAL—See

PPEAL

FINAL JUDGMENTS—See

ONSTITUTIONAL

FINGERPRINT RECORDS—See

UVENILE

FOREIGN JUDGMENTS—See

ONSTITUTIONAL

UDGMENTS

FORFEITURES AND PENALTIES

ONTROLLED

UBSTANCES

1. Property that is used to aid in the violation of the state’s

controlled substance proscriptions may be subject to

forfeiture under MCL 333.7521; MCL 333.7521(1)(f)

provides an affirmative defense to the forfeiture if the

NDEX

-D

IGEST

869

property owner lacked knowledge of or did not consent

to the illegal act on which the forfeiture is premised;

although the burden is on the claimant to affirmatively

prove the facts supporting the defense, the claimant is

not required to show that it did everything that reason-

ably could be expected of it to prevent the activity. In re

Forfeiture of a Quantity of Marijuana, 291 Mich App

243.

FORUM NON CONVENIENS—See

PPEAL

FRAUD—See

NSURANCE

FREEDOM OF INFORMATION ACT—See

IMITATION OF

CTIONS

FULL FAITH AND CREDIT CLAUSE—See

PPEAL

ONSTITUTIONAL

4, 5, 6

UDGMENTS

GARNISHMENT OF SOCIAL SECURITY

BENEFITS—See

ONSTITUTIONAL

GOVERNMENTAL AGENCY DOCUMENTS—See

RETRIAL

ROCEDURE

GOVERNMENTAL IMMUNITY

UBLIC

-B

UILDING

XCEPTION

1. Under the public-building exception to governmental

immunity from tort liability, a design defect is a danger-

ous condition inherent in the design itself, such as its

characteristics, functioning, and purpose; in contrast, a

failure to repair or maintain is caused by extrinsic

circumstances, such as a malfunction, deterioration, or

instability of part of the building or the improper

securing, construction, or installation of a fixture that is

part of the building; reparative or preventative mea-

sures may supplement the existing structure to preserve

the existing design, and an action that was originally a

870 291 M

ICH

design decision could be transformed into a failure to

repair or maintain by subsequent improper installation,

malfunction, deterioration, or instability (MCL

691.1406, 691.1407[1]). Tellin v Forsyth Twp, 291 Mich

App 692.

2. A building is open to the public for purposes of the

public-building exception to governmental immunity

from tort liability if any part of it remains open to the

public; in determining whether a building is open to the

public, the focus is on the intended use of the building

and not merely on the hours of operation (MCL

691.1406, 691.1407[1]). Tellin v Forsyth Twp, 291 Mich

App 692.

GUARANTY CONTRACTS—See

ONTRACTS

1, 2

GUILTY PLEAS—See

RIMINAL

1, 2, 7, 8

HEALTH-CARE CORPORATIONS—See

ORPORATIONS

IMPAIRMENT OF A BODY FUNCTION—See

EGLIGENCE

INCITEMENT TO RIOT—See

ENTENCES

INCREASING THE FLOW OR CONCENTRATION

OF SURFACE WATERS ONTO A SERVIENT

ESTATE—See

ROPERTY

INCULPATORY INFERENCES FROM GUILTY

PLEAS—See

RIMINAL

INEFFECTIVE ASSISTANCE OF COUNSEL—See

RIMINAL

1, 2, 6

INFORMANTS—See

EARCHES AND

EIZURES

NDEX

-D

IGEST

871

INNOCENT OWNERS—See

ORFEITURES AND

ENALTIES

INSTRUCTIONS TO JURY—See

RIAL

INSURANCE

-F

AULT

1. An insurer may not use fraud as a basis to void com-

pletely coverage under an insurance policy once an

innocent third party has been injured, but an insurer

may use fraud as a defense to void optional insurance

coverage in excess of the statutory minimum amounts;

an insurer may not deny coverage on the basis of fraud

after it has collected premiums, however, when it easily

could have ascertained the fraud at the time the con-

tract was formed (MCL 257.520[f][1], [g]). Titan Ins Co

v Hyten, 291 Mich App 445.

2. An insurer may cancel a no-fault policy if the risk is

unacceptable to the insurer, but only within 55 days of

the policy’s issuance; if the insurer opts against under-

taking an investigation of the risk it is insuring within

that time, it may not use later-acquired information to

terminate its policy obligations except under very lim-

ited circumstances (MCL 500.3220). Titan Ins Co v

Hyten, 291 Mich App 445.

3. The work-loss benefits payable under the no-fault act

are based on loss of income from work an injured person

would have performed if he or she had not been injured;

if a claimant has missed work, the only determination to

be made is the amount of income lost as a consequence

of not performing that work (MCL 500.3107[1][b]. Co-

pus v MEEMIC Insurance Co, 291 Mich App 593.

4. An insured may be entitled to personal protection insur-

ance benefits under the no-fault act for psychological

injuries caused by witnessing the accident that killed the

insured’s child; the insured need not be involved in the

accident itself or be injured by physical contact with a

motor vehicle to be entitled to benefits (MCL 500.3105[1]).

Boertmann v Cincinnati Ins Co, 291 Mich App 683.

NINSURED

-M

OTORIST

ENEFITS

5. An unambiguous provision in an uninsured-motorist

policy must be enforced as written, regardless of the

872 291 M

ICH

equities and reasonableness of the provision; an insurer

must establish actual prejudice to its position, however,

in order to cut off its responsibility under an uninsured-

motorist policy provision that requires the insured to

report an accident involving a hit-and-run motor vehicle

to the police within 24 hours and to the insurer within

30 days when the insured has failed to timely comply

with the notice provision. DeFrain v State Farm Mutual

Ins Co, 291 Mich App 713.

INTENTION TO REMAIN IN ABODE—See

IVORCE

INVESTIGATIVE STOPS—See

EARCHES AND

EIZURES

INVESTIGATIVE SUBPOENAS—See

RETRIAL

ROCEDURE

INVITEES—See

EGLIGENCE

JOINDER OF THIRD-PARTY CORPORATIONS—See

IVORCE

JOINT AND SEVERAL LIABILITY—See

RESPASS

JOINT CUSTODY—See

ARENT AND

HILD

JOINT TORTFEASORS—See

RESPASS

JUDGMENT DEBTORS AND CREDITORS—See

IVORCE

JUDGMENT NOTWITHSTANDING THE

VERDICT—See

RIAL

JUDGMENTS

See, also,

ONSTITUTIONAL

5, 6

NDEX

-D

IGEST

873

OREIGN

UDGMENTS

1. A judgment entered in another state is presumptively

valid and subject to recognition under the Full Faith and

Credit Clause of the United States Constitution, al-

though a collateral attack on such a judgment may be

made in a Michigan court by showing that the judgment

was void for want of jurisdiction over the subject matter

or the parties in the court that issued it. Hare v Starr

Commonwealth Corp, 291 Mich App 206.

RDERS

2. The rule of comity is not allowed to operate when it will

contravene the rights of a citizen of the state where the

action is brought or contravene that state’s policies or

interests. Hare v Starr Commonwealth Corp, 291 Mich

App 206.

NIFORM

NFORCEMENT OF

OREIGN

UDGMENTS

3. A foreign judgment, to be enforceable under the Uni-

form Enforcement of Foreign Judgments Act, must have

been entered by a court having jurisdiction over the

parties and the subject matter (MCL 691.1171 et seq.).

Hare v Starr Commonwealth Corp, 291 Mich App 206.

JUDGMENTS OF SISTER STATES—See

ONSTITUTIONAL

JURISDICTION—See

ONSTITUTIONAL

IVORCE

UDGMENTS

JURY INSTRUCTIONS—See

RIAL

JUVENILE ADJUDICATIONS FOR PURPOSES OF

SCORING OFFENSE VARIABLE 13—See

ENTENCES

JUVENILE LAW

ISCHARGE AND

ISMISSAL OF

UVENILE

ROCEEDINGS

1. Fingerprints and arrest cards shall be destroyed if (1)

the case involves a juvenile who was adjudicated and

found not to be within the provisions of MCL

874 291 M

ICH

712A.2(a)(1) (i.e., those found not to be within the

jurisdiction of the family division of circuit court), or (2)

the accused is found not guilty; the dismissal of a case

does not constitute a finding of not guilty (MCL

28.243[8]). In re Klocek, 291 Mich App 9.

JUVENILES CONVICTED OF CRIMINAL SEXUAL

CONDUCT—See

RIMINAL

LEGAL CUSTODY—See

ARENT AND

HILD

LEGITIMACY PRESUMPTION—See

ARENT AND

HILD

3, 4

LIENS

ONSTRUCTION

IENS

1. Under the Construction Lien Act, a construction lien must

be filed with the register of deeds within 90 days after the

lien claimant’s last furnishing of labor or material for the

improvement; an “improvement” is work that confers

value beyond the value furnished at the time the initial

installation work was completed; it does not include the

performance of warranty work to correct deficiencies in

work performed or defects in fixtures installed by the

contractor; the distinguishing factor between a repair

constituting an improvement to the real property and

warranty work is whether the work in question conferred

any value beyond the value furnished by the completion of

the original work (MCL 570.1104[5], 570.1111[1]). Stock

Bldg Supply, LLC v P arsley Homes of Mazuchet Harbor,

LLC, 291 Mich App 403.

OLDER’S

IENS

2. The molder’s lien act requires a moldbuilder to perma-

nently record on every die, mold, or form the moldbuild-

er’s name, street address, city, and state; this require-

ment demands the presence of permanently affixed

details on the mold, die, or tool itself for an enforceable

lien to be created (MCL 445.619[1], [3]). CG Automation

& Fixture, Inc v Autoform, Inc, 291 Mich App 333.

LIMITATION OF ACTIONS

See, also,

EGLIGENCE

NDEX

-D

IGEST

875

REEDOM OF

NFORMATION

1. The Freedom of Information Act requires that a public

body respond to a request for public records either by

granting it or by issuing a written notice to the request-

ing person denying the request; if a public body denies a

request for information, the requesting person may

commence an action in the circuit court to compel the

public body’s disclosure of the public records within 180

days after a public body’s determination to deny a

request; the public body must undertake an affirmative

step reasonably calculated to bring the denial notice to

the attention of the requesting party; merely creating a

document denying a record request is insufficient to

start the running of the 180-day time limit (MCL

15.235[2][b], 15.240[1][b]). Prins v Michigan State Po-

lice, 291 Mich App 586.

LOCKED FACILITIES FOR STORING MEDICAL

MARIJUANA—See

ONTROLLED

UBSTANCES

LOW-INCOME AND ENERGY EFFICIENCY

FUND—See

UBLIC

TILITIES

MARIJUANA—See

ONTROLLED

UBSTANCES

1, 2, 3

MARTIAL PROPERTY—See

ONSTITUTIONAL

IVORCE

MEDICAL MALPRACTICE—See

EGLIGENCE

MEDICAL MARIJUANA—See

ONTROLLED

UBSTANCES

1, 2, 3

MICHIGAN MEDICAL MARIHUANA ACT—See

ONTROLLED

UBSTANCES

1, 2, 3

MICHIGAN VEHICLE CODE—See

RETRIAL

ROCEDURE

876 291 M

ICH

MISDEMEANOR PROSECUTIONS—See

RETRIAL

ROCEDURE

5, 6

MISREPRESENTATION BY APPLICANT—See

NSURANCE

MISREPRESENTATION BY INSURED—See

NSURANCE

MODIFICATIONS OF SPOUSAL SUPPORT—See

IVORCE

MOLDBUILDERS’ IDENTIFICATION—See

IENS

MOLDER’S LIENS—See

IENS

MORBIDITY AND MORTALITY INFORMATION—See

RETRIAL

ROCEDURE

MOTIONS AND ORDERS—See

RIAL

MOTIONS TO WITHDRAW GUILTY PLEAS—See

RIMINAL

MOTOR VEHICLES—See

RIMINAL

9, 10, 11

NSURANCE

EARCHES AND

EIZURES

NATURAL SERVITUDES—See

ROPERTY

NECESSITY OF TIMELY OBJECTION TO CLOSED

TRIAL—See

ONSTITUTIONAL

NEGLIGENCE

EDICAL

ALPRACTICE

1. Griesbach v Ross (On Remand), 291 Mich App 295.

NDEX

-D

IGEST

877

-F

AULT

2. Nelson v Dubose, 291 Mich App 496.

REMISES

IABILITY

3. A condition creates an open and obvious danger for

which a premises possessor may be liable if it is reason-

able to expect an average person of ordinary intelligence

to discover the danger upon casual inspection; a condi-

tion that is not visible to a reasonable and sighted

person is not an open and obvious danger. Watts v

Michigan Multi-King, Inc, 291 Mich App 98.

NO-FAULT—See

NSURANCE

1, 2, 3, 4

EGLIGENCE

NONPROFIT HEALTH CARE CORPORATION

REFORM ACT—See

ORPORATIONS

NOT-GUILTY PLEAS—See

RETRIAL

ROCEDURE

NOTICE OF INTENT TO FILE A CLAIM AGAINST

THE STATE—See

CTIONS

1, 2

NOTICE OF INTENT TO FILE SUIT—See

EGLIGENCE

NOTICE TO GUARANTOR OF DEFAULT—See

ONTRACTS

OBJECTIONS TO CLOSED TRIAL—See

ONSTITUTIONAL

OFFENSE CLASSES—See

ENTENCES

OFFENSE VARIABLE 9—See

ENTENCES

4, 5

OFFENSE VARIABLE 13—See

ENTENCES

2, 3

878 291 M

ICH

OFFENSE VARIABLE 3—See

ENTENCES

OPEN AND OBVIOUS DANGERS—See

EGLIGENCE

OPERATING A MOTOR VEHICLE—See

RIMINAL

OPERATION OF MOTOR VEHICLES WHILE

INTOXICATED AND CAUSING DEATH—See

RIMINAL

9, 10

OPERATIONAL EXPENSES OF PUBLIC SERVICE

COMMISSION—See

UBLIC

TILITIES

OPTIONAL COVERAGE—See

NSURANCE

ORDERS—See

UDGMENTS

PARENT AND CHILD

HILD

USTODY

1. A court may grant joint physical custody of a child to

both parties while granting sole legal custody to one

party under proper circumstances (MCL 722.26a[7]).

Dailey v Kloenhamer, 291 Mich App 660.

USTODY OF

HILDREN

2. A parent of a child whose custody is governed by court

order may change a legal residence of the child to a

location that is more than 100 miles from the child’s

legal residence at the time of the commencement of the

action in which the order is issued if the court, after

complying with MCL 722.31(4), which sets forth factors

to be considered in a change of domicile, permits the

change of residence; before allowing the change, the

court must be satisfied that it is possible to order a

modification of the parenting-time schedule in a manner

that can provide an adequate basis for preserving and

fostering the parental relationship between the child

and each parent; the modified parenting-time schedule

NDEX

-D

IGEST

879

need not be equal with the current visitation plan, and

the correct inquiry under factor (c) is not which plan

(the current plan or the proposed plan) is the best plan,

but whether the proposed parenting-time schedule pro-

vides a realistic opportunity to preserve and foster the

parental relationship previously enjoyed by the nonre-

locating parent. McKimmy v Melling, 291 Mich App 577.

EGITIMACY

RESUMPTION

3. Under the Paternity Act, when a child is born to a

married woman, her husband is presumed to be the

legal father; a putative father of that child has standing

to bring suit only if the court has determined that the

child is not the issue of that marriage; such a determi-

nation must be an affirmative finding by the court

regarding the child’s paternity in a prior legal proceed-

ing that settled the controversy between the mother and

the legal father (MCL 722.711[a], MCL 722.714). Pec-

oraro v Rostagno-Wallat, 291 Mich App 303.

4. Whether a putative father would be considered a natu-

ral or biological parent under the Child Custody Act is

irrelevant unless he can first establish paternity under

Michigan’s Paternity Act; without standing under the

Paternity Act, the putative father must be considered a

nonparent under the Child Custody Act, and his child

custody claim is barred. Pecoraro v Rostagno-Wallat, 291

Mich App 303.

ARENTING

IME

5. A court may modify or amend its previous parenting-

time order for proper cause shown or because of a

change of circumstances; although normal life changes

are insufficient grounds to change a minor child’s cus-

todial environment, if a change in parenting time is not

so significant that it results in a change in the minor

child’s custodial environment, then normal life changes

may constitute a change of circumstances sufficient to

modify parenting time (MCL 722.27[1][c]). Shade v

Wright, 291 Mich App 17.

6. A trial court may order a change in parenting time if it

finds the change is in the child’s best interests; both the

statutory best-interest factors in the Child Custody Act

and the factors listed in the parenting-time statute are

relevant to parenting-time decisions, but the court must

880 291 M

ICH

make findings on only the contested factors (MCL

722.23, MCL 722.27a[6]). Shade v Wright, 291 Mich App

17.

PARENTAL RIGHTS—See

ERMINATION OF

ARENTAL

IGHTS

PARENTING TIME—See

ARENT AND

HILD

2, 5, 6

PATERNITY ACT—See

ARENT AND

HILD

3, 4

PATTERN OF FELONIOUS CRIMINAL ACTIVITY—See

ENTENCES

2, 3

PAYMENT GUARANTIES—See

ONTRACTS

PEER-REVIEW PRIVILEGE—See

RETRIAL

ROCEDURE

PERIODS OF LIMITATIONS—See

IMITATION OF

CTIONS

PERMANENTLY DEPRIVING THE OWNER OF

PROPERTY—See

OBBERY

PERMANENTLY RECORDED MOLDBUILDERS’

IDENTIFICATION—See

IENS

PERPETRATORS AS VICTIMS UNDER SENTENCING

GUIDELINES—See

ENTENCES

PERSONAL JURISDICTION—See

ONSTITUTIONAL

PERSONAL PROTECTION INSURANCE

BENEFITS—See

NSURANCE

NDEX

-D

IGEST

881

PETITIONS FOR REMOVAL FROM SEX OFFENDER

REGISTRY—See

RIMINAL

PHYSICAL INJURY TO VICTIM—See

ENTENCES

PHYSICIAN-PATIENT PRIVILEGE—See

RETRIAL

ROCEDURE

PLEADING

FFIRMATIVE

EFENSES

1. The term “pleading” as defined in the Michigan Court

Rules includes only (1) a complaint, (2) a cross-claim, (3)

a counterclaim, (4) a third-party complaint, (5) an

answer to a complaint, cross-claim, counterclaim, or

third-party complaint, and (6) a reply to an answer; no

other filings constitute pleadings; affirmative defenses,

filed separately from an answer, are not pleadings (MCR

2.110[A]). McCracken v City of Detroit, 291 Mich App

522.

ESPONSES TO

LEADINGS

2. The only pleadings requiring a response are (1) a

complaint, (2) a counterclaim, (3) a cross-claim, (4) a

third-party complaint, or (5) an answer demanding a

reply; affirmative defenses filed separately from an

answer are not pleadings requiring a response even if

they include a demand for a response. McCracken v City

of Detroit, 291 Mich App 522.

PLEAS—See

RETRIAL

ROCEDURE

POSSESSION OF BURGLARY TOOLS—See

RIMINAL

PREEMPTION—See

ONSTITUTIONAL

11, 12

PREJUDICE FROM FAILURE TO COMPLY WITH

NOTICE REQUIREMENTS—See

CTIONS

1, 2

882 291 M

ICH

PREJUDICE TO INSURER—See

NSURANCE

PREMISES LIABILITY—See

EGLIGENCE

PRESUMPTION OF LEGITIMACY—See

ARENT AND

HILD

3, 4

PRESUMPTION OF VALIDITY OF FOREIGN

JUDGMENTS—See

UDGMENTS

PRETRIAL PROCEDURE

ISCOVERY

1. MCL 767A.8 makes confidential certain items related to

an investigation, including (1) petitions for immunity,

(2) orders granting immunity, (3) transcripts of testi-

mony delivered to witnesses pursuant to grants of

immunity, and (4) records, documents, and physical

evidence obtained by the prosecuting attorney pursuant

to an investigation under the investigative-subpoena

statutes; under MCL 767A.5(6), transcripts of witness

testimony are only available to a criminal defendant

when the charges result from information obtained

through investigative subpoenas and (a) the testimony

is that of the defendant or (b) the testimony is that of

witnesses who will testify at trial. Truel v City of

Dearborn, 291 Mich App 125.

2. The deliberative-process privilege, which protects cer-

tain governmental material, is qualified rather than

absolute and can be overcome by a sufficient showing of

need, which must be determined on a case-by-case, ad

hoc basis in which the court balances the evidentiary

need against the harm that could result from disclosure,

taking into account such factors as the relevance of the

evidence, the availability of other evidence, the serious-

ness of the case, the role of the government, and the

chilling effect on future governmental action. Truel v

City of Dearborn, 291 Mich App 125.

3. Records, data, and knowledge collected by a peer review

committee are confidential and may only be used for the

purposes of a peer review committee to reduce morbidity

NDEX

-D

IGEST

883

and mortality and to ensure quality of care (MCL

333.21515). Johnson v Detroit Medical Center, 291 Mich

App 165.

4. Under the physician-patient privilege, a physician may

not disclose any information acquired by the physician

in attending a patient if the information was necessary

for the treatment or the prescription of treatment of the

patient; this privilege belongs to the patient, and only

the patient may waive it (MCL 600.2157). Johnson v

Detroit Medical Center, 291 Mich App 165.

ISDEMEANOR

ROSECUTIONS

5. City of Plymouth v McIntosh, 291 Mich App 152.

6. Under MCL 764.9g, in order for the prosecution of a

misdemeanor to continue after a defendant pleads not

guilty, a sworn complaint must be filed; there is no

requirement that the sworn complaint be filed after the

plea is made, only that it is filed some time before

additional proceedings take place after the plea. City of

Plymouth v McIntosh, 291 Mich App 152.

PRIMARY JURISDICTION DOCTRINE—See

OURTS

PRIOR BAD ACTS—See

RIMINAL

PRIOR RECORD VARIABLE 5—See

ENTENCES

PRIOR TERMINATION OF PARENTAL RIGHTS TO

CHILD’S SIBLING—See

ERMINATION OF

ARENTAL

IGHTS

PRIORITY OF SECURITY INTERESTS—See

ECURED

RANSACTIONS

PRIVILEGE AGAINST SELF-INCRIMINATION—See

ONSTITUTIONAL

8, 9, 10

PRIVILEGES—See

RETRIAL

ROCEDURE

2, 4

PRODUCTION OF DOCUMENTS—See

ONSTITUTIONAL

884 291 M

ICH

PROPERTY

RAINAGE

1. The natural flow of surface water from an upper, domi-

nant estate forms a natural servitude that encumbers a

lower, servient estate, but the owner of the upper estate

may not increase the amount or concentrate the flow of

water onto the servient estate; a person who increases

the flow of water from an upper estate onto a lower

estate may be held liable for trespass. Wiggins v City of

Burton, 291 Mich App 532.

ASEMENTS

2. To determine the scope of an express easement, courts

should first look to the language of the easement itself;

when that language is clear it must be enforced as

written; an express easement for storm detention is

limited to the detention of waters that naturally flow to

the easement as a result of storms; the installation of a

drainage system to carry surface water to a storm-

detention easement falls outside the scope of the express

easement when the easement does not include language

relating to the installation of pipes or drains. Wiggins v

City of Burton, 291 Mich App 532.

PROPERTY DIVISIONS—See

ONSTITUTIONAL

IVORCE

PROPOSED DRAINS—See

RAINS

PROSECUTION COSTS—See

RIMINAL

PSYCHOLOGICAL INJURIES—See

NSURANCE

PUBLIC-BUILDING EXCEPTION—See

OVERNMENTAL

MMUNITY

1, 2

PUBLIC RECORDS—See

IMITATION OF

CTIONS

PUBLIC SERVICE COMMISSION—See

UBLIC

TILITIES

1, 2, 3

NDEX

-D

IGEST

885

PUBLIC TRIALS—See

ONSTITUTIONAL

PUBLIC UTILITIES

UBLIC

ERVICE

OMMISSION

1. In the absence of specific statutory authorization, ret-

roactive ratemaking in utility cases is prohibited, and

past expenses and costs are not recoverable under a

future rate; however, retroactive ratemaking involves a

change either upward or downward in rates charged by

a utility for its service under a lawful order and thus

does not take place where a prospective rate takes into

account a past expense, such as when the Public Service

Commission permits a utility to use deferred-cost ac-

counting. In re Consumers Energy Application for Rate

Increase, 291 Mich App 106.

2. Under the Customer Choice and Electricity Reliability

Act, MCL 460.10 et seq., the Public Service Commission

is authorized to administer the low-income and energy

efficiency fund (LIEEF); MCL 460.10d(7) delineates a

source for funding the LIEEF, but does not restrict

funding of the LIEEF to excess securitization savings

and permits the continuation of the LIEEF through the

provision of ongoing appropriations beyond the initial

six-year period. In re Consumers Energy Application for

Rate Increase, 291 Mich App 106.

3. The Public Service Commission may accept funding for

consultants from a regulated party only when statuto-

rily authorized. In re Consumers Energy Application for

Rate Increase, 291 Mich App 106.

PUTATIVE FATHERS—See

ARENT AND

HILD

3, 4

RATEMAKING AUTHORITY—See

UBLIC

TILITIES

1, 2

REASONABLE SUSPICION JUSTIFYING

AUTOMOBILE SEARCH—See

EARCHES AND

EIZURES

REASONS TO WITHDRAW GUILTY PLEAS—See

RIMINAL

886 291 M

ICH

REBUTTAL OF PATERNITY PRESUMPTION—See

ARENT AND

HILD

3, 4

RECEIVERS—See

IVORCE

REFORMATION OF POLICIES—See

NSURANCE

REGISTRATION AS SEX OFFENDER FOLLOWING

GUILTY PLEA—See

RIMINAL

REGISTRATION AS SEX OFFENDER FOR

CONVICTION OF CHILD ENTICEMENT—See

RIMINAL

REPEAT DRUNK-DRIVING OFFENDERS—See

ENTENCES

RESIDENCE OF CHILDREN—See

ARENT AND

HILD

RESIDENCY—See

IVORCE

RESPONSES TO PLEADINGS—See

LEADING

RETROACTIVE RATEMAKING—See

UBLIC

TILITIES

REUNITING PARENT AND CHILD—See

ERMINATION OF

ARENTAL

IGHTS

REVIEW DE NOVO OF SUFFICIENCY OF

EVIDENCE—See

ONSTITUTIONAL

REVIEW OF HEARING REFEREES’ DECISIONS

BY TAX TRIBUNAL—See

AXATION

NDEX

-D

IGEST

887

RIGHT OF CONFRONTATION—See

ONSTITUTIONAL

1, 2

RIGHT TO PUBLIC TRIAL—See

ONSTITUTIONAL

RIOTING—See

ENTENCES

ROBBERY

NARMED

OBBERY

1. Unarmed robbery is a specific intent crime for which the

prosecution must establish that the defendant intended to

permanently deprive the owner of property; to perma-

nently deprive in the context of unarmed robbery does not

require, in a literal sense, that the defendant have an

intent to permanently deprive the owner of property,

rather, the intent to permanently deprive includes the

retention of property without such retention being for the

purpose of returning the property within a reasonable

time or the retention of property with the intent to return

the property only if the owner pays some compensation for

its return (MCL 750.530). People v Harverson, 291 Mich

App 171.

RULE OF COMITY—See

UDGMENTS

SCOPE OF EASEMENTS—See

ROPERTY

SEARCHES AND SEIZURES

UTOMOBILES

1. An unnamed informant’s contemporaneous face-to-face

tip to the police about erratic driving may be sufficient

to justify an investigative stop of the driver’s moving

vehicle under the totality of the circumstances; the tip

must identify the vehicle, support an inference of a

traffic violation, and be corroborated in its innocent

details by the police (US Const, Am IV; Const 1963,

art 1, § 11). People v Barbarich, 291 Mich App 468.

SECURED TRANSACTIONS

LAIMS

GAINST

STATES

1. The Estates and Protected Individuals Code (EPIC)

888 291 M

ICH

precludes all proceedings to enforce a claim against an

estate before the appointment of a personal representa-

tive except a proceeding brought by a secured creditor of

the decedent to enforce the creditor’s security; security

interests are governed by article 9 of the Uniform

Commercial Code, and no provision of EPIC requires a

secured creditor that is otherwise entitled to exhaust a

security to first bring a claim against the estate in order

to be permitted to exhaust the security upon default,

even though there will be insufficient funds in the estate

to pay priority claims and allowances (MCL 440.9101 et

seq.; MCL 700.3104, 700.3805, 700.3809). In re Lundy

Estate, 291 Mich App 347.

SELF-INCRIMINATION—See

ONSTITUTIONAL

8, 9, 10

SENTENCE ENHANCEMENTS—See

ENTENCES

SENTENCES

RUNK

RIVING

1. A prior conviction of operating a motor vehicle while a

minor and with any bodily alcohol content, MCL

257.625(6), may be used to increase the sentences.

People v Bulger, 291 Mich App 1.

FFENSE

ARIABLE

2. Ten points must be scored under offense variable 13,

regarding a continuing pattern of criminal behavior, if

the defendant’s offense was part of a pattern of feloni-

ous criminal activity involving a combination of 3 or

more crimes against a person or property; an appropri-

ate juvenile adjudication constitutes criminal activity, a

criminal conviction is not required (MCL 777.43[1][d]).

People v Harverson, 291 Mich App 171.

3. To determine whether a conspiracy conviction may be

used when scoring offense variable 13 (continuing pat-

tern of criminal behavior) under the sentencing guide-

lines, the sentencing court must consider the nature of

the offense underlying the conspiracy; a conspiracy to

commit a crime designated under the guidelines as a

crime against a person or property may be used when

scoring offense variable 13 (MCL 777.18, 777.21[4],

777.43[1]). People v Jackson, 291 Mich App 644.

NDEX

-D

IGEST

889

FFENSE

ARIABLE

4. People v Lechleitner, 291 Mich App 56.

5. Scoring offense variable 9 for multiple victims may be

appropriate, although the defendant may have robbed

only one victim, when there were other individuals

present at the scene of the robbery who were placed in

danger of injury or loss of life during the robbery (MCL

777.39). People v Harverson, 291 Mich App 171.

RIOR

ECORD

ARIABLE

6. The phrase “under the influence of or impaired by”

alcohol in the statute regarding the scoring of prior

record variable 5 refers to the drunk-driving statute,

MCL 257.625, as a whole and not to specific crimes that

include the same language as an element; a prior

conviction under MCL 257.625(6) of operating a motor

vehicle while a minor and with any bodily alcohol

content may be used in scoring prior record variable 5

(MCL 777.55). People v Bulger, 291 Mich App 1.

IOTING

7. A court, as part of the sentence for a conviction of any

offense that the court determines was directly related to a

riot, incitement to riot, unlawful assembly, or civil disorder

on or within 2,500 feet of a public community college,

college, or university campus in Michigan, may order the

defendant not to enter any public community college,

college, or university campus for one year following the

imposition of the sentence or one year following the

completion of any term of incarceration; if the defendant

was also sentenced to a term of incarceration, the ban is in

addition to the term of incarceration and does not begin to

run until after the defendant completes the term of incar-

ceration (MCL 769.1g[1][a][ii]). City of East Lansing v

Thompson, 291 Mich App 34.

ENTENCING

UIDELINES

8. Offense variable 3, physical injury to a victim, may only

be scored when a person is harmed by the criminal

actions of the charged party, not by the actions of

another person present when the crime is committed

(MCL 777.33). People v Laidler, 291 Mich App 199.

SENTENCING GUIDELINES—See

ENTENCES

2, 3, 4, 6, 8

SERIOUS IMPAIRMENT OF A BODY FUNCTION—See

EGLIGENCE

890 291 M

ICH

SERVIENT ESTATES—See

ROPERTY

SERVITUDES—See

ROPERTY

SEX OFFENDERS REGISTRATION ACT—See

RIMINAL

2, 3, 12

SISTER-STATE ANTISUIT INJUNCTIONS—See

ONSTITUTIONAL

SISTER-STATE JUDGMENTS—See

ONSTITUTIONAL

SIXTH AMENDMENT—See

ONSTITUTIONAL

1, 2

SOCIAL SECURITY BENEFITS—See

ONSTITUTIONAL

12—See

IVORCE

SOLE LEGAL CUSTODY—See

ARENT AND

HILD

SOURCE OF FUNDING FOR LOW-INCOME AND

ENERGY EFFICIENCY FUND—See

UBLIC

TILITIES

SPOUSAL SUPPORT—See

IVORCE

STANDARDS OF REVIEW—See

PPEAL

ONSTITUTIONAL

RIAL

1, 2

STANDING UNDER PATERNITY ACT—See

ARENT AND

HILD

STATUTORY AUTHORITY OF PUBLIC SERVICE

COMMISSION TO ACCEPT FUNDING—See

UBLIC

TILITIES

NDEX

-D

IGEST

891

STOP AND FRISK—See

EARCHES AND

EIZURES

STORM-DETENTION EASEMENTS—See

ROPERTY

SUBJECT-MATTER JURISDICTION—See

ONSTITUTIONAL

UDGMENTS

SUBPOENAS—See

ONSTITUTIONAL

SUBSIDIARIES OF HEALTH-CARE

CORPORATIONS—See

ORPORATIONS

SUBSTANTIAL COMPLIANCE WITH NOTICE

REQUIREMENTS—See

CTIONS

1, 2

SUFFICIENCY OF THE EVIDENCE—See

ONSTITUTIONAL

SUPREMACY CLAUSE—See

ONSTITUTIONAL

11, 12

SURFACE WATERS—See

ROPERTY

1, 2

SWORN COMPLAINTS FOR MISDEMEANORS—See

RETRIAL

ROCEDURE

5, 6

TAX TRIBUNAL—See

AXATION

1, 2, 3, 4, 5, 6, 7

TAXATION

DMINISTRATIVE

1. Review of decisions of the Tax Tribunal by the Court of

Appeals is, in the absence of fraud, limited to determin-

ing whether the tribunal made an error of law or

adopted a wrong principle; the factual findings of the

892 291 M

ICH

tribunal are final provided that they are supported by

competent and substantial evidence. President Inn

Properties, LLC v City of Grand Rapids, 291 Mich App

625.

RIBUNAL

2. A petition filed in the Tax Tribunal is considered filed on

or before the expiration of the period provided in MCL

205.735a for the filing of the petition if the petition is

given to a delivery service designated by the Tax Tribu-

nal for delivery on or before the expiration of the time

period and the petition is delivered by the designated

delivery service. Grimm v Dep’t of Treasury , 291 Mich

App 140.

3. The Tax Tribunal, before imposing the sanction of

dismissal for failure to comply with its rules or orders,

should consider (1) whether the violation was willful or

accidental, (2) the party’s history of refusing to comply

with previous orders of the Tax Tribunal, (3) the preju-

dice to the opposing party, (4) whether there exists a

history of deliberate delay, (5) the degree of compliance

with other parts of the Tax Tribunal’s orders, (6)

attempts to cure the defect, and (7) whether a lesser

sanction would better serve the interests of justice.

Grimm v Dep’t of Treasury , 291 Mich App 140.

4. The Tax Tribunal must determine the most accurate

valuation under the individual circumstances of the

case; even when a petitioner fails to prove by the greater

weight of the evidence that a challenged assessment is

wrong, the tribunal may not automatically accept the

valuation on the tax rolls and must make an indepen-

dent valuation. President Inn Properties, LLC v City of

Grand Rapids, 291 Mich App 625.

5. The Tax Tribunal, in considering a proposed decision of

a hearing referee, may make its own determinations

regarding the credibility of witnesses and the weight to

be assigned to the evidence in the record. President Inn

Properties, LLC v City of Grand Rapids, 291 Mich App

625.

6. The Tax Tribunal is not obligated to accept the valua-

tion figures or approach to valuation advanced by the

parties; any method for determining true cash value

that is recognized as accurate and reasonably related to

fair market valuation is an acceptable indicator of true

cash value; regardless of the valuation approach em-

NDEX

-D

IGEST

893

ployed, the final value determination must represent

the usual price for which the property would sell; a

valuation method is wrong only if it does not lead to the

most accurate determination of the property’s true cash

value or fair market value. President Inn Properties,

LLC v City of Grand Rapids, 291 Mich App 625.

7. A property’s assessed valuation on the tax rolls carries

no presumption of validity in Tax Tribunal proceedings

regarding the valuation of the property; the Tax Tribu-

nal may adopt the assessed valuation as its independent

finding of true cash value when there is competent and

substantial evidence supporting the valuation. Presi-

dent Inn Properties, LLC v City of Grand Rapids, 291

Mich App 625.

TERMINATION OF PARENTAL RIGHTS

UTY OF

EPARTMENT OF

UMAN

ERVICES TO

ACILITATE

EUNIFICATION

1. In re Smith, 291 Mich App 621.

TERRY STOPS—See

EARCHES AND

EIZURES

TESTIMONY BY VIDEO TECHNOLOGY—See

ONSTITUTIONAL

TORTS—See

OVERNMENTAL

MMUNITY

1, 2

EGLIGENCE

1, 2, 3

RESPASS

TRESPASS

See, also,

ROPERTY

OINT

ORTFEASORS

1. All persons who instigate, command, encourage, advise,

ratify, or condone the commission of a trespass are

cotrespassers and are jointly and severally liable as joint

tortfeasors; a property owner who requests drainage

relief from a city and authorizes the construction of a

drainage system by the city, the installation of which

constitutes a trespass on another’s land, may be held

liable for the trespass even though he or she did not

personally set foot on the property. Wiggins v City of

Burton, 291 Mich App 532.

894 291 M

ICH

TRIAL

See, also,

ONSTITUTIONAL

1, 2

URY

NSTRUCTIONS

1. A trial court’s decision regarding what jury instructions

should be given is reviewed on appeal for an abuse of

discretion; a result that falls outside the range of prin-

cipled outcomes is an abuse of discretion. Nelson v

Dubose, 291 Mich App 496.

OTIONS AND

RDERS

2. A trial court’s decision to grant a motion for judgment

notwithstanding the verdict is reviewed de novo on

appeal; the jury’s verdict must stand if reasonable jurors

could have reached different conclusions; judgment not-

withstanding the verdict is only appropriate if the

evidence fails to establish a claim as a matter of law.

Nelson v Dubose, 291 Mich App 496.

TRUE CASH VALUE—See

AXATION

6, 7

TWO-WAY, INTERACTIVE VIDEO TECHNOLOGY—See

ONSTITUTIONAL

1, 2

UNARMED ROBBERY—See

OBBERY

UNDER THE INFLUENCE OF OR IMPAIRED BY

ALCOHOL—See

ENTENCES

UNIFORM COMMERCIAL CODE—See

ECURED

RANSACTIONS

UNIFORM ENFORCEMENT OF FOREIGN

JUDGMENTS ACT—See

PPEAL

UDGMENTS

UNINSURED-MOTORIST BENEFITS—See

NSURANCE

UNIVERSITIES—See

ENTENCES

NDEX

-D

IGEST

895

UNLAWFUL ASSEMBLY—See

ENTENCES

UNREGISTERED MEDICAL MARIJUANA USERS—See

ONTROLLED

UBSTANCES

1, 2

USE OF MOTOR VEHICLES AS MOTOR

VEHICLES—See

NSURANCE

VALUATIONS OF PROPERTY—See

AXATION

4, 6

VEHICLE CODE—See

RETRIAL

ROCEDURE

VICTIMS FOR PURPOSES OF SCORING OFFENSE

VARIABLES—See

ENTENCES

5, 8

VIDEO TESTIMONY—See

ONSTITUTIONAL

1, 2

VISITATION—See

ARENT AND

HILD

5, 6

WAIVER OF PHYSICIAN-PATIENT PRIVILEGE—See

RETRIAL

ROCEDURE

WARRANTY WORK—See

IENS

WATERS AND WATERCOURSES—See

ROPERTY

1, 2

WEIGHT ASSIGNED TO EVIDENCE—See

AXATION

WITNESSES—See

ONSTITUTIONAL

1, 2

AXATION

896 291 M

ICH

WORDS AND PHRASES—See

PPEAL

IVORCE

RIMINAL

OBBERY

ENTENCES

WORK-LOSS BENEFITS—See

NSURANCE

NDEX

-D

IGEST

897