MICHIGAN COURT OF APPEALS

MICHIGAN APPEALS REPORTS

CASES DECIDED

IN THE

MICHIGAN

COURT OF APPEALS

FROM

September 14, 2010, through November 23, 2010

JOHN O. JUROSZEK

REPORTER OF DECISIONS

VOLUME 290

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....................................................................... 2011

UDGES

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

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

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

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

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

JOEL P. HOEKSTRA..................................................................... 2011

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

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

WILLIAM C. WHITBECK............................................................. 2011

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

KURTIS T. WILDER...................................................................... 2011

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

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

DONALD S. OWENS..................................................................... 2011

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

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

PAT M. DONOFRIO ...................................................................... 2011

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

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

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

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

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

CYNTHIA DIANE STEPHENS.................................................... 2011

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

DOUGLAS B. SHAPIRO ............................................................... 2011

HIEF

LERK:

SANDRA SCHULTZ MENGEL

ESEARCH

IRECTOR:

LARRY S. ROYSTER

SUPREME COURT

ERM

XPIRES

ANUARY

HIEF

USTICE

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

USTICES

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

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

ROBERT P. YOUNG, J

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

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

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

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

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

From October 13, 2010.

TABLE OF CASES REPORTED

AGE

Allstate Ins Co, McGrath v ................................. 434

American Federation of State, County &

Municipal Employees, Council 25 v Wayne

County .............................................................. 348

American Federation of State, County &

Municipal Employees, Council 25, AFL-CIO

v Hamtramck Housing Comm ........................ 672

Barrow v Detroit Mayor ...................................... 530

Bates Associates, LLC v 132 Associates, LLC ... 52

Beebe v Hartman ................................................. 512

Bennett, People v ................................................. 465

Benson, People v .................................................. 465

Besic v Citizens Ins Co of the Midwest ............. 19

Boonsiri, Hoffman v ............................................ 34

Boucha, People v .................................................. 295

Bradley v State Farm Automobile Ins Co .......... 156

CMS Energy Corp, Dutton Partners, LLC v ..... 635

Cadillac (City of), Haring Charter Twp v .......... 728

Cadillac (City of), Selma Twp v .......................... 728

Carmine, Megee v ................................................ 551

AGE

Cedroni Associates, Inc v Tomblinson, Harburn

Associates, Architects & Planners, Inc .............. 577

Citizens Ins Co of the Midwest, Besic v ............ 19

City of Cadillac, Haring Charter Twp v ............ 728

City of Cadillac, Selma Twp v ............................ 728

City of Detroit, Lafarge Midwest, Inc v ............. 240

Clark, People v ..................................................... 65

Dalton Twp, Michigan’s Adventure, Inc v ........ 328

Dep’t of Human Services, Oakland County v ... 1

Dep’t of Treasury, General Motors Corp v ........ 355

Detroit (City of), Lafarge Midwest, Inc v .......... 240

Detroit Mayor, Barrow v ..................................... 530

Dinardo, People v ................................................. 280

Dutkavich, Thomas v .......................................... 393

Dutton Partners, LLC v CMS Energy Corp ...... 635

Empower Yourself, LLC, Lakeview Commons

Ltd Partnership v ............................................ 503

General Motors Corp v Dep’t of Treasury ........ 355

Hamtramck Housing Comm, American

Federation of State, County & Municipal

Employees, Council 25, AFL-CIO v ................... 672

Haring Charter Twp v City of Cadillac ............. 728

Hartman, Beebe v ................................................ 512

Hoffman v Boonsiri ............................................. 34

Hoffner v Lanctoe ................................................ 449

Human Services (Dep’t of), Oakland County v .... 1

ii 290 M

ICH

AGE

Hunt, People v ..................................................... 317

In re Leete Estate ................................................ 647

In re Nale Estate ................................................. 704

Inyang, Szpak v ................................................... 711

Jenson v Puste ..................................................... 338

Johnson v Pastoriza ............................................. 260

Keinz v Keinz ....................................................... 137

Kid’s Kourt, LLC, Vandonkelaar v ..................... 187

Kieta v Thomas M Cooley Law School .............. 144

King v McPherson Hospital ................................ 299

Lafarge Midwest, Inc v City of Detroit .............. 240

Lakeview Commons Ltd Partnership v

Empower Yourself, LLC .................................. 503

Lanctoe, Hoffner v ............................................... 449

Leete Estate, In re ............................................... 647

Light, People v ..................................................... 717

McGrath v Allstate Ins Co .................................. 434

McPherson Hospital, King v ............................... 299

Megee v Carmine ................................................. 551

Michigan’s Adventure, Inc v Dalton Twp ......... 328

Myland v Myland ................................................. 691

Nale Estate, In re ................................................ 704

ABLE OF

ASES

EPORTED

iii

AGE

Nason v State Employees’ Retirement System ... 416

Oakland County v Dep’t of Human Services .... 1

Oliver v Smith ...................................................... 678

132 Associates, LLC, Bates Associates, LLC v .. 52

1031 Lapeer LLC v Rice ...................................... 225

Pastoriza, Johnson v ............................................ 260

People v Bennett .................................................. 465

People v Benson ................................................... 465

People v Boucha ................................................... 295

People v Clark ...................................................... 65

People v Dinardo .................................................. 280

People v Hunt ...................................................... 317

People v Light ...................................................... 717

People v Redden ................................................... 65

Port Huron Hospital, Swanson v (On Rem) ...... 167

Puste, Jenson v .................................................... 338

Redden, People v .................................................. 65

Rice, 1031 Lapeer LLC v ..................................... 225

Riverton Twp, Schwass v .................................... 220

Schwass v Riverton Twp ..................................... 220

Selma Twp v City of Cadillac ............................. 728

Smith, Oliver v ..................................................... 678

Sparrow Health System, Wilson v ...................... 149

State Employees’ Retirement System, Nason v .. 416

State Farm Automobile Ins Co, Bradley v ......... 156

Swanson v Port Huron Hospital (On Rem) ....... 167

iv 290 M

ICH

AGE

Szpak v Inyang .................................................... 711

Thomas v Dutkavich ........................................... 393

Thomas M Cooley Law School, Kieta v ............. 144

Tomblinson, Harburn Associates, Architects &

Planners, Inc, Cedroni Associates, Inc v ....... 577

Treasury (Dep’t of), General Motors Corp v ..... 355

Vandonkelaar v Kid’s Kourt, LLC ...................... 187

Wayne County, American Federation of State,

County & Municipal Employees, Council

25 v ................................................................... 348

Wilson v Sparrow Health System ....................... 149

ABLE OF

ASES

EPORTED

OURT OF

PPEALS

ASES

OAKLAND COUNTY v DEPARTMENT OF HUMAN SERVICES

Docket No. 288812. Submitted June 23, 2010, at Detroit. Decided

September 14, 2010, at 9:00 a.m.

Oakland County brought an action in the Court of Claims against the

Department of Human Services, seeking declaratory relief and a

refund of monies that defendant had withheld from plaintiff as a

result of retroactive rate increases defendant implemented for ex-

penses related to the supervision and transportation of children

under the control of the Michigan Children’s Institute. Plaintiff

argued that the retroactive rate increases were illegal and thus that

the funds were wrongfully withheld. Plaintiff sought a declaration

that defendant was required to establish the cost of caring for the

children each September, that the rates established by defendant in

September could not go into effect until the following year, and that

defendant was not entitled to retroactively establish or increase such

rates. Defendant moved for summary disposition, contending that

the Court of Claims did not have subject-matter jurisdiction because

the action had not arisen out of contract or tort. The court, Thomas

L. Brown, J., denied defendant’s motion, concluding that the court

had jurisdiction because plaintiff sought monetary damages. The

Court of Appeals granted defendant’s application for leave to appeal.

The Court of Appeals held:

1. It is the essential nature of the claim and not the particular

type of relief sought that determines whether the Court of Claims has

exclusive subject-matter jurisdiction. Under MCL 600.6419(1)(a), the

Court of Claims has exclusive subject-matter jurisdiction over claims

against the state that are ex contractu or ex delicto in nature.

2. Claims that are ex contractu in nature arise out of a contract,

including quasi-contract claims and causes of action arising from

contracts implied in fact or law. An action seeking a refund of fees

paid to or monies withheld by the state is properly characterized as

a claim in assumpsit for money had and received and is ex

contractu in nature. Accordingly, the Court of Claims had exclusive

subject-matter jurisdiction over plaintiff’s claim for a refund.

3. The Court of Claims had concurrent jurisdiction over plain-

tiff’s request for declaratory relief under MCL 600.6419a because

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the request for declaratory relief was ancillary to plaintiff’s ex

contractu claim for a refund. The Court of Claims reached the

correct result, although for the wrong reason.

Affirmed.

HAPIRO

,P.J., concurring, agreed that the Court of Claims

possessed subject-matter jurisdiction over plaintiff’s claim for a

monetary award under MCL 600.6419(1)(a), but based his conclu-

sion on the fact that plaintiff sought monetary damages from a

state agency. The Court of Appeals historically held under MCL

600.6419(1)(a) that the Court of Claims has exclusive jurisdiction

over all cases seeking monetary damages from the state, and more

recent caselaw has not clearly undermined that holding. MCL

600.6419a provided concurrent jurisdiction for the court to deter-

mine plaintiff’s ancillary request for declaratory relief.

URISDICTION —

OURT OF

LAIMS —

ONTRACTU

LAIMS —

CTIONS FOR

ONEY

AD AND

ECEIVED

It is the essential nature of the claim and not the particular type of

relief sought that determines whether the Court of Claims has

exclusive subject-matter jurisdiction; by statute, the Court of

Claims has exclusive subject-matter jurisdiction over claims

against the state that are ex contractu or ex delicto in nature; an

action seeking a refund of fees paid to or monies withheld by the

state is properly characterized as a claim in assumpsit for money

had and received and is ex contractu in nature and therefore within

the exclusive subject-matter jurisdiction of the Court of Claims

(MCL 600.6419[1][a]).

Judith K. Cunningham, Corporation Counsel, and

Mary M. Mara, Assistant Corporation Counsel, for

plaintiff.

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

Solicitor General, and Morris J. Klau, Assistant Attor-

ney General, for defendant.

Before: S

HAPIRO

,P.J., and J

ANSEN

and D

ONOFRIO

,JJ.

ANSEN

, J. Defendant appeals by leave granted the

order of the Court of Claims denying its motion for

summary disposition brought pursuant to MCR

2 290 M

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2.116(C)(4).

We conclude that the Court of Claims relied

on erroneous legal reasoning in this case. However, be-

cause the Court of Claims reached the correct result in

ruling that it possessed subject-matter jurisdiction over

the present controversy, we nonetheless affirm.

Defendant, as the agency responsible for the care and

custody of children who are permanent wards of the state,

has the authority to place and maintain such children who

are under the control of the Michigan Children’s Institute

(MCI) in licensed boarding homes for children. MCL

400.207(7). Expenses related to the supervision and trans-

portation of permanent wards are paid out of the MCI’s

funds subject to partial reimbursement by the county

from which the public ward has been committed. Id. The

county’s liability for the costs associated with the care of a

ward (commonly referred to as a “chargeback rate”) is

determined under the Youth Rehabilitation Services Act,

MCL 803.301 et seq. In general, “the county from which

the public ward is committed is liable to the state for 50%

of the cost of his or her care....”MCL803.305(1).

The Michigan Administrative Code provides that the

daily rate for the cost of caring for wards of the state

must be established in September of the year before the

rate is put into effect. Mich Admin Code, R 400.341.

Thus, for example, in accordance with Rule 400.341, the

cost of caring for MCI wards during 2007 should have

been established in September 2006.

This action resulted after defendant sought to retro-

actively establish the daily rate for the cost of caring for

Defendant’s motion for summary disposition was also brought pur-

suant to MCR 2.116(C)(8). However, the portion of defendant’s motion

brought under subrule (C)(8) is not at issue in the present appeal.

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wards in 2007. In a letter dated July 16, 2007, defen-

dant notified plaintiff and other counties of specified

“state ward chargeback rates for calendar year 2007.”

Defendant declared that the stated rates “will be effec-

tive for calendar year 2007 with a retroactive date of

January 1, 2007. These rates shall remain in effect until

the next scheduled revision in 2008.” Then, in a subse-

quent letter dated July 26, 2007, defendant informed

plaintiff that the chargeback rates for 2007 would be

effective on June 1, 2007, and not fully retroactive as

had been stated in the earlier letter.

Thereafter, in October 2007, defendant notified

plaintiff and others that it had again reviewed and

revised the chargeback rates for 2007. It declared new

rates, which would be retroactive to August 1, 2007, and

indicated that these rates would “remain in effect until

the next scheduled revision on January 1, 2008.”

In late 2007, plaintiff received certain statements

from defendant that included charges of $79,248.22

(described as “prior year balance due”) and $71,517.40

(described as “current year balance due”). These dis-

puted charges of $79,248.22 and $71,517.40 had appar-

ently resulted from defendant’s retroactive rate in-

creases for housing Oakland County youths in state

facilities during 2007. Although the statements indi-

cated that defendant owed plaintiff an overall reim-

bursement of $1,394,070.62, defendant deducted the

disputed amounts, totaling $150,765.62, and remitted

only $1,243,305 to plaintiff.

On January 9, 2008, plaintiff sent a letter to defendant

protesting the retroactive rate increases and explaining

why it believed the retroactive rate increases were illegal.

Plaintiff’s letter demanded that defendant “either remit

the $150,765.62 wrongfully withheld from the County or

provide the state’s legal justification/rationale for the

4 290 M

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withholding of these funds.” According to plaintiff , defen-

dant did not respond to its letter.

In May 2008, plaintiff filed suit against defendant in

the Court of Claims. Plaintiff sought a declaration that

defendant was required to establish the cost of caring for

MCI wards each September, that the rates established by

defendant in September could not go into effect until the

following year, and that defendant was not entitled to

retroactively establish or increase such rates. Plaintiff also

sought a refund of the monies that defendant had with-

held “as a result of [its] illegal retroactive rate increases

for the cost of MCI wards....”

In lieu of answering plaintiff’s complaint, defendant

moved for summary disposition pursuant to MCR

2.116(C)(4) and (8).

Defendant argued that the Court of

Claims did not have subject-matter jurisdiction over the

controversy because the action had not arisen out of

contract or tort. Plaintiff opposed defendant’s motion,

arguing that the Court of Claims had exclusive jurisdic-

tion over the matter because only the Court of Claims

would have the authority to award monetary relief against

defendant. Oral argument was held on October 1, 2008,

and the Court of Claims took the matter under advise-

ment.

The Court of Claims thereafter issued a written

opinion and order denying defendant’s motion for sum-

mary disposition. The Court of Claims ultimately con-

cluded that it had subject-matter jurisdiction over the

controversy, reasoning in relevant part:

Plaintiff suggests Silverman [v Univ of Mich Bd of

Regents], 445 Mich 209[, 516 NW2d 54] (1994) [overruled

in part on other grounds by Parkwood Ltd Dividend

As noted earlier, the portion of the motion brought pursuant to

subrule (C)(8) is not at issue in the present appeal.

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Housing Ass’n v State Housing Dev Auth, 468 Mich 763;

664 NW2d 185 (2003)], is the supporting authority for the

conclusion that the Court of Claims has exclusive jurisdic-

tion over a declaratory action that includes monetary relief

against the State....Based on previous case law and MCL

600.6419(4) this Court finds that if the plaintiff seeks

monetary damages from the state, jurisdiction belongs

exclusively with the Court of Claims. The exception to this

finding is if jurisdiction over the controversy has been

specifically provided or conferred upon another court or

tribunal.

Defendant’s contention that this court lacks jurisdiction

because the Plaintiff’s claim lies neither in tort nor con-

tract, is inaccurate. The Court of Claims [sic] exclusive

jurisdiction is not limited to those actions that arise in

contract or tort, it also has jurisdiction over claims that are

both grounded in declaratory relief and monetary dam-

ages. If this Court adopted Defendant’s position of only

granting jurisdiction over contract and tort claims, many

plaintiffs, including Plaintiff in this case, would be left

without any appropriate venue to bring their claim. This

Court cannot adopt such a view. Therefore, jurisdiction

over this controversy lies exclusively with the Court of

Claims and Defendant’s motion for summary judgment for

lack of subject matter jurisdiction is denied.

Defendant sought leave to appeal in this Court,

arguing that the Court of Claims had erred by ruling

that it possessed subject-matter jurisdiction over the

controversy. We granted defendant’s application for

leave to appeal, limited to the issues raised in the

application. Oakland Co v Dep’t of Human Servs, un-

published order of the Court of Appeals, entered Feb-

ruary 27, 2009 (Docket No. 288812).

Summary disposition is proper when, among other

things, “[t]he court lacks jurisdiction of the subject

6 290 M

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1 [Sept

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matter.” MCR 2.116(C)(4). We review de novo a motion

for summary disposition brought pursuant to subrule

(C)(4). Weishuhn v Catholic Diocese of Lansing, 279

Mich App 150, 155; 756 NW2d 483 (2008). Whether a

court has subject-matter jurisdiction is a question of

law that we review de novo. Jamil v Jahan, 280 Mich

App 92, 99-100; 760 NW2d 266 (2008). We likewise

review de novo issues of statutory interpretation. Toll

Northville Ltd v Northville Twp, 480 Mich 6, 10-11; 743

NW2d 902 (2008).

III

We conclude that the Court of Claims relied on

erroneous legal reasoning in this case. However, we also

conclude that the Court of Claims reached the correct

result in ruling that it possessed subject-matter juris-

diction over the present controversy.

The Court of Claims is a legislatively created court of

limited jurisdiction, and its jurisdiction is entirely

statutory. Parkwood, 468 Mich at 767; Bays v Dep’t of

State Police, 89 Mich App 356, 362; 280 NW2d 526

(1979). The exclusive subject-matter jurisdiction of the

Court of Claims is defined by MCL 600.6419, which

provides in relevant part:

(1) Except as provided in [MCL 600.6419a] and [MCL

600.6440], the jurisdiction of the court of claims, as con-

ferred upon it by this chapter, shall be exclusive....The

court has power and jurisdiction:

(a) To hear and determine all claims and demands,

liquidated and unliquidated, ex contractu and ex delicto,

against the state and any of its departments, commissions,

boards, institutions, arms, or agencies.

(b) To hear and determine any claims or demands,

liquidated or unliquidated, ex contractu or ex delicto,

which may be pleaded by way of counterclaim on the part

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of the state or any department, commission, board, insti-

tution, arm, or agency of the state against any claimant

who may bring an action in the court of claims....

***

(4) This chapter shall not deprive the circuit court of

this state of jurisdiction over...proceedings for declara-

tory or equitable relief, or any other actions against state

agencies based upon the statutes of this state in such case

made and provided, which expressly confer jurisdiction

thereof upon the circuit court....

“Additionally, MCL 600.6419a, which was added in

1984, gives the Court of Claims concurrent jurisdiction

with the circuit courts over any claim for equitable and

declaratory relief that is ancillary to a claim filed under

§ 6419[.]” Parkwood, 468 Mich at 768. Specifically, MCL

600.6419a provides:

In addition to the powers and jurisdiction conferred

upon the court of claims by [MCL 600.6419], the court of

claims has concurrent jurisdiction of any demand for

equitable relief and any demand for a declaratory judgment

when ancillary to a claim filed pursuant to [MCL

600.6419]. The jurisdiction conferred by this section is not

intended to be exclusive of the jurisdiction of the circuit

court over demands for declaratory and equitable relief

conferred by [MCL 600.605].

[

]

We cannot agree with that portion of the lower

court’s opinion and order in which it stated that “[t]he

Court of Claims [sic] exclusive jurisdiction is not limited

to those actions that arise in contract or tort, it also has

MCL 600.605 provides that “[c]ircuit courts have original jurisdiction

to hear and determine all civil claims and remedies, except where

exclusive jurisdiction is given in the constitution or by statute to some

other court or where the circuit courts are denied jurisdiction by the

constitution or statutes of this state.” See also Parkwood, 468 Mich at 768

n4.

8 290 M

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1 [Sept

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jurisdiction over claims that are both grounded in

declaratory relief and monetary damages.” As our Su-

preme Court has observed, “[t]he plain language of

§ 6419(1)(a), the primary source of jurisdiction for the

Court of Claims, does not refer to claims for money

damages or to claims for declaratory relief.” Parkwood,

468 Mich at 772. Instead, the primary jurisdiction-

conferring statute refers only to claims against the state

that are “ex contractu and ex delicto ....” MCL

600.6419(1)(a); see also Parkwood, 468 Mich at 772.

The unmistakable teaching of Parkwood is that the

exclusive subject-matter jurisdiction of the Court of

Claims turns entirely on whether a claim is ex contractu

or ex delicto in nature. And despite the existence of

several earlier, incorrectly decided cases to the contrary,

the Parkwood Court made clear that whether a plaintiff

seeks money damages or other monetary relief is en-

tirely irrelevant to determining whether the Court of

Claims possesses exclusive jurisdiction over the plain-

tiff’s claim under MCL 600.6419(1)(a). In short, it is the

essential nature of the claim—and not the particular

type of relief sought—that determines whether the

Court of Claims possesses exclusive subject-matter ju-

risdiction. For example, although the plaintiff’s claim in

Parkwood sought only declaratory relief and did not

seek money damages, it came within the exclusive

subject-matter jurisdiction of the Court of Claims under

MCL 600.6419(1)(a) because it was based in contract

and therefore ex contractu in nature. Parkwood, 468

Mich at 772.

The critical question in this case was not whether

plaintiff’s claim sought money damages or other mon-

etary relief. Such an inquiry was irrelevant to whether

the Court of Claims possessed exclusive subject-matter

jurisdiction over plaintiff’s claim under MCL

600.6419(1)(a). Instead, the critical question in this

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case was whether plaintiff’s claim against defendant

was ex contractu or ex delicto in nature. For the reasons

that follow, we hold that plaintiff asserted a claim

seeking a refund of the monies withheld by defendant,

accompanied by a prayer for declaratory relief. We

conclude that plaintiff’s claim seeking a refund of the

monies withheld by defendant was ex contractu in

nature and, consequently, within the exclusive subject-

matter jurisdiction of the Court of Claims under MCL

600.6419(1)(a). We further conclude that the Court of

Claims had concurrent jurisdiction under MCL

600.6419a to consider plaintiff’s ancillary request for

declaratory relief.

When ascertaining the exact nature of a plaintiff’s

claim, we are not bound by the plaintiff’s choice of

labels because this would exalt form over substance.

Johnston v City of Livonia, 177 Mich App 200, 208; 441

NW2d 41 (1989). Instead, “the gravamen of an action is

determined by reading the complaint as a whole, and by

looking beyond mere procedural labels to determine the

exact nature of the claim.” Adams v Adams (On Recon-

sideration), 276 Mich App 704, 710-711; 742 NW2d 399

(2007). The essential nature of a plaintiff’s claim

“ ‘must be determined by the... essential facts or

grievance as alleged ....’”Nicholson v Han, 12 Mich

App 35, 43; 162 NW2d 313 (1968) (citation omitted).

The particular type of relief sought is also a relevant

consideration in determining the essential nature of a

plaintiff’s claim. See Adams, 276 Mich App at 715

(observing, among other things, that the plaintiff’s

claim did not sound in fraud because the plaintiff did

not “seek damages for [the] allegedly fraudulent con-

duct”).

In this case, plaintiff’s complaint was simply entitled

“Complaint for Declaratory Judgment” and contained

no internal labels or headings identifying any specific

10 290 M

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1 [Sept

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claims. However, the complaint did set forth detailed

allegations concerning why plaintiff believed defen-

dant’s retroactive rate increases were unlawful and why

plaintiff believed it was improper for defendant to

retain the withheld amount of $150,765.62. It is true, as

explained earlier, that plaintiff specifically sought de-

claratory relief with regard to the legality of defen-

dant’s retroactive rate increases. But plaintiff’s com-

plaint also sought a refund of the monies that defendant

was withholding “as a result of [its] illegal retroactive

rate increases for the cost of MCI wards....” Upon

examination of the complaint as a whole, Adams, 276

Mich App at 710-711, and after having reviewed plain-

tiff’s particular allegations and the specific relief

sought, it is clear to us that plaintiff’s complaint set

forth a claim for money had and received,

seeking a

refund of the monies withheld by defendant. Although

plaintiff also sought declaratory relief in addition to its

request for a refund, we note that declaratory relief is

an equitable remedy and not truly a separate claim.

Mettler Walloon, LLC v Melrose Twp, 281 Mich App 184,

221; 761 NW2d 293 (2008).

The statutory terms “ex contractu” and “ex delicto”

are legal terms that have acquired particular meanings

in the law. See MCL 8.3a. The term “ex delicto” is

defined as “ ‘[f]rom a delict, tort, fault, crime, or mal-

feasance’ ” and describes claims that “ ‘grow out of or

are founded upon a wrong or tort’.” Lowery v Dep’t of

Corrections, 146 Mich App 342, 347-348; 380 NW2d 99

(1985), quoting Black’s Law Dictionary (4th ed), p 660

(alteration in Lowery). In contrast, the term “ex con-

An “action for money had and received” is defined as a common-law

action “by which the plaintiff could recover money paid to the defendant,

the money [usually] being recoverable because (1) the money had been

paid by mistake or under compulsion, or (2) the consideration was

insufficient.” Black’s Law Dictionary (7th ed), p 29.

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tractu” describes “civil actions arising out of contract.”

Lowery, 146 Mich App at 348. But the term “ex con-

tractu” does not merely describe traditional breach-of-

contract claims and claims arising from express con-

tracts; it also encompasses quasi-contract claims and

causes of action arising from contracts implied in fact

and law. Pomann, Callanan & Sofen, PC v Wayne Co

Dep’t of Social Servs, 166 Mich App 342, 347 n 5; 419

NW2d 787 (1988); see also Lim v Dep’t of Transporta-

tion, 167 Mich App 751, 754; 423 NW2d 343 (1988).

It is well settled that an action seeking a refund of fees

paid to the state is properly characterized as a claim in

assumpsit for money had and received. Service Coal Co v

Unemployment Compensation Comm, 333 Mich 526, 530-

531; 53 NW2d 362 (1952); Yellow Freight Sys, Inc v

Michigan, 231 Mich App 194, 203; 585 NW2d 762 (1998),

rev’d on other grounds 464 Mich 21 (2001), rev’d 537 US

36 (2002). The present-day claim for money had and

received arose from the early action of indebitatus as-

sumpsit and is based on the legal fiction of a promise

implied in law.

See Consumers Power Co v Muskegon

Co, 346 Mich 243, 255; 78 NW2d 223 (1956) (S

MITH

,J.,

dissenting), overruled in part by Spoon-Shacket Co, Inc

v Oakland Co, 356 Mich 151 (1959). A claim for money

had and received is ex contractu in nature. See Yellow

Freight, 231 Mich App at 203; see also Rader v Leven-

son, 290 Ga App 227, 230 n 13; 659 SE2d 655 (2008);

Citizens State Bank v Nat’l Surety Corp, 199 Colo 497,

500; 612 P2d 70 (1980); Lang v Friedman, 166 Mo App

354, 362; 148 SW 992 (1912); Johnson v Collier, 161 Ala

204, 208; 49 So 761 (1909); Allen v Frawley, 106 Wis

“In order to afford the remedy demanded by exact justice and adjust

such remedy to a cause of action, the law sometimes indulges in the

fiction of a quasi or constructive contract, with an implied obligation to

pay for benefits received.” Cascaden v Magryta, 247 Mich 267, 270; 225

NW 511 (1929).

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638, 645; 82 NW 593 (1900). We conclude that plaintiff’s

claim seeking a refund of the monies withheld by

defendant was actually a claim for money had and

received. See Yellow Freight, 231 Mich App at 203.

Therefore, even though there was no express contract

between plaintiff and defendant, plaintiff’s claim was

nonetheless ex contractu in nature. See Pomann, 166

Mich App at 347 n 5. Plaintiff’s ex contractu claim

against defendant for money had and received unques-

tionably fell within the exclusive subject-matter juris-

diction of the Court of Claims. MCL 600.6419(1)(a).

We have already explained that plaintiff’s complaint

also contained an associated prayer for declaratory

relief. Indeed, plaintiff sought a declaration that defen-

dant was required to establish the cost of caring for MCI

wards in September, a declaration that the rates estab-

lished by defendant in September could not go into

effect until the following year, and a declaration that

defendant was not entitled to retroactively increase

such rates. Declaratory relief is equitable in nature.

Mettler Walloon, 281 Mich App at 221; Coffee-Rich, Inc

v Dep’t of Agriculture, 1 Mich App 225, 228; 135 NW2d

594 (1965). As discussed previously, MCL 600.6419a

provides that “[i]n addition to the powers and jurisdic-

tion conferred upon the court of claims by [MCL

600.6419], the court of claims has concurrent jurisdic-

tion of any demand for equitable relief and any demand

for a declaratory judgment when ancillary to a claim

filed pursuant to [MCL 600.6419].” The declaratory

relief requested by plaintiff would have facilitated

plaintiff’s efforts to recoup the monies withheld by

defendant and would have prevented defendant from

retroactively increasing the cost of caring for MCI

wards in the future. In other words, plaintiff’s request

for declaratory relief was ancillary to its ex contractu

claim for money had and received. The Court of Claims

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therefore had concurrent jurisdiction over plaintiff’s

demand for declaratory relief. MCL 600.6419a.

We conclude that the Court of Claims had exclusive

subject-matter jurisdiction over plaintiff’s ex contractu

claim seeking a refund of the monies withheld by

defendant. MCL 600.6419(1)(a). We further conclude

that the Court of Claims had concurrent subject-matter

jurisdiction over plaintiff’s ancillary demand for de-

claratory relief. MCL 600.6419a. Although the Court of

Claims relied on erroneous legal reasoning, it reached

the correct result by denying defendant’s motion for

summary disposition under MCR 2.116(C)(4). It is

axiomatic that we will not reverse when the lower 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).

We decline to consider defendant’s argument that

because plaintiff’s claim is rooted in a decision of the

Director of the Department of Human Services, plain-

tiff’s proper recourse was to seek judicial review of that

final agency decision. Defendant raised this argument

for the first time in its reply brief, and the argument has

therefore not been properly presented for appellate

review. MCR 7.212(G); Maxwell v Dep’t of Environmen-

tal Quality, 264 Mich App 567, 576; 692 NW2d 68

(2004).

Affirmed. No taxable costs pursuant to MCR 7.219, a

public question having been involved.

ONOFRIO

, J., concurred.

HAPIRO

,P.J. (concurring). Because I agree that the

Court of Claims possessed subject-matter jurisdiction, I

14 290 M

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concur in the result. I write separately because I con-

clude that the Court of Claims had jurisdiction because

plaintiff sought monetary damages from a state agency.

As noted by the majority, the jurisdiction of the Court

of Claims is set forth in MCL 600.6419, which provides

in relevant part:

(1) Except as provided in [MCL 600.6419a] and [MCL

600.6440], the jurisdiction of the court of claims, as con-

ferred upon it by this chapter, shall be exclusive....The

court has power and jurisdiction:

(a) To hear and determine all claims and demands,

liquidated and unliquidated, ex contractu and ex delicto,

against the state and any of its departments, commissions,

institutions, arms, or agencies.

***

(4) This chapter shall not deprive the circuit court of

jurisdiction over... proceedings for declaratory or equi-

table relief, or any other actions against state agencies

based upon the statutes of this state in such case made and

provided, which expressly confer jurisdiction thereof upon

the circuit court....[Emphasis added.]

MCL 600.6419a then provides additional, concurrent

jurisdiction to the Court of Claims for “any demand for

equitable relief and any demand for a declaratory

judgment when ancillary to a claim filed pursuant to

MCL 600.6419.”

Plaintiff in this case made a claim or demand against

defendant for a monetary award on the basis of its

allegation that defendant had improperly collected

money for expenses related to the supervision and

transportation of wards of the state. Thus, it expressed

a claim against the state pursuant to MCL

600.6419(1)(a), which would be exclusively within the

jurisdiction of the Court of Claims. That plaintiff also

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requested declaratory relief to prevent defendant from

improperly raising rates in the future did not deprive

the Court of Claims of jurisdiction, given that that

request was ancillary to the request for money damages

and, therefore, the Court of Claims had concurrent

jurisdiction over it under MCL 600.6419a.

Michigan caselaw supports this interpretation. Ini-

tially, this Court repeatedly, and without change by our

Supreme Court, held that the Court of Claims had

exclusive jurisdiction over all cases involving money

damages. See Pomann, Callanan & Sofen, PC v Wayne

Co Dep’t of Social Servs, 166 Mich App 342, 346; 419

NW2d 787 (1988) (“This exclusive jurisdiction [in the

Court of Claims] encompasses all claims against the

state and its instrumentalities for money damages.”).

In 1994, our Supreme Court finally addressed the

Court of Claims’ jurisdiction in Silverman v Univ of

Mich Bd of Regents, 445 Mich 209, 215; 516 NW2d 54

(1994) (“This Court has not decided a case in which

[MCL 600.6419a] is at issue....”), overruled in part on

other grounds by Parkwood Ltd Dividend Housing

Ass’n v State Housing Dev Auth, 468 Mich 763; 664

NW2d 185 (2003). Silverman involved a claim for both

equitable relief and money damages, and the Supreme

Court determined that the Court of Claims properly

had jurisdiction. Id. at 217.

Subsequently, the Supreme Court again considered a

Court of Claims jurisdictional issue in Parkwood, 468

Mich 763. Parkwood involved a claim only under

contract—no money damages. Because prior caselaw

had required money damages before the Court of

Claims had jurisdiction, the lower courts had deter-

mined that there was no jurisdiction in light of the lack

of money damages. Our Supreme Court observed, “The

plain language of § 6419(1)(a), the primary source of

16 290 M

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jurisdiction for the Court of Claims, does not refer to

claims for money damages or to claims for declaratory

relief.” Id. at 772. Accordingly, it concluded that noth-

ing in the statute required money damages and explic-

itly “disavow[ed]” any caselaw “that [has] seemingly

interpreted § 6419(1)(a) as granting the Court of

Claims jurisdiction over claims for money damages

only.” Id. at 775 (emphasis added). It left untouched,

however, the prior caselaw providing that when money

damages were involved, the Court of Claims had exclu-

sive jurisdiction.

The most recent case involving Court of Claims

jurisdiction was Duncan v Michigan, 284 Mich App 246;

774 NW2d 89 (2009), rev’d 486 Mich 1071 (2010). In

Duncan, this Court concluded that the claim sounded

neither in contract nor tort, so that the Court of Claims

was without jurisdiction. Id. at 287.

Notably, the plain-

tiffs in Duncan were not seeking money damages; they

were exclusively seeking declaratory relief without a

contract or tort claim, an action for which is explicitly

reserved to the circuit courts. That is not the case here,

given that plaintiff is explicitly requesting money dam-

ages.

Additionally, it makes no difference whether plaintiff

receives monetary damages or a later credit or offset

from future payments. An order that a credit or offset

The continued viability of this holding is in question, however, given

the Supreme Court’s reversal “for the reasons stated in the Court of

Appeals dissenting opinion.” Duncan, 486 Mich at 1071. Because the

dissent never reached the question of jurisdiction in the Court of Claims,

the statements in the majority opinion may now be simply dicta, as they

were unnecessary to the resolution of the case. However, to the extent

that the reversal is viewed as “reversal on other grounds,” the statements

in the majority’s published opinion may remain controlling. Neverthe-

less, the holding does not change the outcome of the present case because,

unlike the present case, Duncan did not involve money damages.

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be provided costs the state money and, therefore, is an

award of money damages, regardless of whether it is

paid or simply offset. See Silverman, 445 Mich at 216 n

7 (“The plaintiff phrases his request for money damages

as a request for a declaratory judgment that he is

entitled to a refund. That does not alter the nature of

the claim—a demand for money damages.”); Parkwood,

468 Mich at 774 n 8 (“[W]e specifically reaffirm the

statements in Silverman recognizing that the nature of

the claim, rather than how the plaintiff phrases the

request for relief, controls how a court will characterize

the claim.”).

Accordingly, because plaintiff’s claim against defen-

dant for money damages gave the Court of Claims

jurisdiction, and MCL 600.6419a provided for concur-

rent jurisdiction for the Court of Claims to determine

the ancillary request for declaratory relief, the Court of

Claims properly denied defendant’s motion for sum-

mary disposition based on lack of jurisdiction.

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,P.J.

BESIC v CITIZENS INSURANCE COMPANY OF THE MIDWEST

Docket No. 291051. Submitted July 6, 2010, at Detroit. Decided Septem-

ber 14, 2010, at 9:05 a.m.

Muhamed Besic, a Michigan resident, brought an action in the

Wayne Circuit Court against Citizens Insurance Company of the

Midwest, Clearwater Insurance Company, and Lincoln General

Insurance Company, seeking first-party no-fault insurance ben-

efits after being injured in a motor vehicle accident in Ohio, while

driving his tractor-trailer hauling freight to New York. Citizens

insured Besic’s household vehicles, Lincoln insured the lessee of

Besic’s tractor, and Clearwater provided a “bobtail” policy to Besic.

Clearwater filed cross-claims against Citizens and Lincoln, assert-

ing that both were higher-priority insurers than it and thus they

were required to reimburse Clearwater for any personal protection

insurance (PIP) benefits it might pay. Clearwater also argued that

if the policy issued by Lincoln did not expressly provide coverage,

then the court should reform the policy to provide coverage

because insurance companies doing business in Michigan must

include PIP coverage in all automobile insurance policies. All

parties filed motions for summary disposition. The court, John H.

Gillis, Jr., J., granted summary disposition to Citizens and Lincoln,

denied Clearwater’s motion for summary disposition, and granted

Besic summary disposition with respect to Clearwater only. Clear-

water appealed.

The Court of Appeals held:

1. When a conflict arises between the terms of an endorsement

and the insurance policy’s form provisions, the terms of the endorse-

ment prevail. An endorsement may grant coverage not otherwise

provided or may remove the effect of particular exclusions. Besic’s

bobtail policy with Clearwater included a form provision excluding

coverage when the vehicle was under dispatch. It also had an

endorsement that excluded PIP benefits under more specific circum-

stances that did not exist at the time of the accident and further

contained an endorsement that provided PIP benefits. Besic was

entitled to PIP coverage under his policy with Clearwater.

2. Under MCL 500.3163(1), an insurer selling automobile

insurance in this state must provide PIP benefits if its insured is

2010] B

ESIC V

ITIZENS

NSURANCE

an out-of-state resident who suffers accidental bodily injury that

occurs in Michigan and arises from the ownership, operation,

maintenance, or use of a motor vehicle as a motor vehicle.

However, that statute does not apply when a Michigan resident

was injured in an out-of-state accident. Because Besic was injured

in Ohio, MCL 500.3163(1) did not apply and did not obligate

Lincoln to provide coverage for his injuries. Moreover, because

Clearwater’s policy provided PIP benefits to Besic, no basis existed

for reforming the Lincoln policy to provide similar coverage.

3. Under MCL 500.3114(1), a person named in a no-fault

insurance policy is entitled to PIP benefits payable in accord with

that policy. However, if the person is an employee who is injured

while an occupant of a vehicle owned by his or her employer, then

the employee is entitled under MCL 500.3114(3) to benefits

payable by the insurer of the vehicle. In the case of a self-employed

person, the insurer of the business vehicle is the insurer with the

highest order of priority for payments. Clearwater, as the insurer

of the business vehicle that Besic occupied when he was injured,

had first priority to pay PIP benefits to Besic.

Affirmed.

1. I

NSURANCE —

NDORSEMENTS —

ONFLICTS

ITH

ORM

ROVISIONS OF

OLI-

CIES

When a conflict arises between the terms of an endorsement and the

insurance policy’s form provisions, the terms of the endorsement

prevail; an endorsement may grant coverage not otherwise pro-

vided or may remove the effect of particular exclusions.

2. I

NSURANCE —

-F

AULT —

ERSONAL

ROTECTION

NSURANCE

ENEFITS —

NJURIES

CCURRING

UT OF

TATE

Under MCL 500.3163(1), an insurer authorized to sell automobile

insurance in this state must provide personal protection insurance

benefits if its insured is an out-of-state resident who suffers

accidental bodily injury that occurs in Michigan and arises from

the ownership, operation, maintenance, or use of a motor vehicle

as a motor vehicle; but that statute does not apply when a

Michigan resident is injured in an out-of-state accident.

3. I

NSURANCE —

-F

AULT —

ERSONAL

ROTECTION

NSURANCE

ENEFITS —

RIORITY OF

NSURERS

A person named in a no-fault insurance policy is entitled to personal

protection insurance benefits payable in accord with that policy;

however, if the person is an employee who is injured while an

occupant of a vehicle owned by his or her employer, then the

20 290 M

ICH

19 [Sept

employee is entitled to benefits payable by the insurer of the

vehicle; in the case of a self-employed person, the insurer of the

business vehicle is the insurer with the highest order priority for

payment of benefits (MCL 500.3114[1], [3]).

Garan Lucow Miller, P.C. (by Daniel S. Saylor and

Caryn A. Gordon), for Citizens Insurance Company of

the Midwest.

Sullivan, Ward, Asher & Patton, P.C. (by Thomas L.

Auth, Jr.), for Clearwater Insurance Company.

Law Offices of Ronald M. Sangster, Jr., PLLC (by

Ronald M. Sangster, Jr.), for Lincoln General Insurance

Company.

Before: M

URRAY

,P.J., and D

ONOFRIO

and G

LEICHER

,JJ.

URIAM

. The dispute before us concerns which of

three insurance companies must shoulder responsibil-

ity for payment of plaintiff Muhamed Besic’s first-party

no-fault insurance benefits. In a summary disposition

ruling, the circuit court imposed liability for all of

Besic’s first-party benefits on defendant Clearwater

Insurance Company, which issued plaintiff a bobtail

insurance policy. Clearwater appeals as of right, and we

affirm.

I. UNDERLYING FACTS AND PROCEEDINGS

In January 2007, Besic, a Michigan resident, sustained

personal injuries in a motor vehicle accident in Ohio. At

the time of the accident, Besic was driving a tractor-trailer

rig, hauling freight from Illinois to New York. Besic owned

the tractor, registered and licensed the vehicle in Michi-

gan, and leased it to MGR Express, Inc., pursuant to a

“Contractor Operating Agreement” (COA). The COA

identified Besic Express, a corporation solely owned by

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Besic, as the contractor and owner of the truck; however,

Besic testified at his deposition that he owned the truck

personally. The COA contemplated that during the term

of the lease, MGR would “assume all responsibility and

pay for all liability insurance” for the truck “while [Besic]

is operating under the terms of this Agreement,” and that

Besic “has and reserves the right to contract indepen-

dently for Workers’ Compensation coverage, bobtail,

[1]

physical damage insurance required hereunder and for

health and accident or other insurance ....”

MGR bought liability insurance for the truck from

defendant Lincoln General Insurance Company. Besic

purchased bobtail insurance coverage from Clearwater.

Defendant Citizens Insurance Company of the Midwest

insured Besic’s household vehicles.

In November 2007, Besic sued Citizens in the Wayne

Circuit Court, seeking payment of first-party no-fault

benefits related to the injuries he sustained in the Ohio

accident. Besic subsequently amended his complaint to

add Clearwater and Lincoln as defendants. In February

2008, Clearwater filed cross-claims against Citizens and

Lincoln, requesting “reimbursement or recoupment...

for the entire amounts of monies paid” by Clearwater and

asserting that Citizens and Lincoln shared “a higher order

of priority to pay Michigan no-fault benefits.” The cross-

claims also sought reformation of the Lincoln policy if the

court determined that it “does not include an express

provision for Michigan no-fault coverage....”

All parties filed motions for summary disposition. At

a September 2008 hearing, the circuit court expressed

on the record its finding that the

“Generally, a ‘bobtail’ policy is a policy that insures the tractor and

driver of a rig when it is operated without cargo or a trailer.” Integral Ins

Co v Maersk Container Serv Co, Inc, 206 Mich App 325, 331; 520 NW2d

656 (1994).

22 290 M

ICH

19 [Sept

Lincoln contract, MGR contract with Muhamed Besic

doesn’t require him to provide PIP [personal injury protec-

tion insurance] coverage, and they provided liability only,

so the Court will grant Lincoln’s motion for Summary

Disposition....

And Clearwater’s argument under the exclusions of

page two subsection C, the Court finds that none of those

apply. Clearwater’s motion for Summary Disposition is

denied.

In October 2008, the court entered an order granting

summary disposition to Citizens and Lincoln, denying

Clearwater summary disposition, and granting Besic sum-

mary disposition with respect to Clearwater only. Besic

settled his claim against Clearwater,

and in March 2009

the circuit court dismissed the action with prejudice.

II. SUMMARY DISPOSITION STANDARD OF REVIEW

Clearwater challenges the circuit court’s summary dis-

position rulings, which we review de novo. Walsh v Tay-

lor, 263 Mich App 618, 621; 689 NW2d 506 (2004). The

circuit court did not specify under which subrule of MCR

2.116(C) it found summary disposition appropriate, but a

review of the record reflects that the court considered

documentation beyond the pleadings and thus made its

summary disposition rulings under MCR 2.116(C)(10).

Subrule (C)(10) tests a claim’s factual support. “In review-

ing a motion under MCR 2.116(C)(10), this Court consid-

ers the pleadings, admissions, affidavits, and other rel-

evant documentary evidence of record in the light most

favorable to the nonmoving party to determine whether

any genuine issue of material fact exists to warrant a

trial.” Walsh, 263 Mich App at 621.

The appellate brief prepared by Citizens represents that Clearwater

paid Besic $175,000 in settlement and continues to pay him personal

injury protection benefits. Besic did not file a brief on appeal.

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III. COVERAGE OF BESIC’S FIRST-PARTY PERSONAL INJURY

PROTECTION BENEFIT CLAIM UNDER CLEARWATER’S

BOBTAIL POLICY

Clearwater initially submits that its bobtail insur-

ance policy plainly offered only limited coverage that

did not apply when Besic had an accident while under

dispatch, the situation in this case. Clearwater empha-

sizes that the bobtail policy endorsement with respect

to Michigan personal injury protection (PIP) coverage

must be read in conjunction with the rest of the policy,

which excludes coverage when the insured suffers in-

jury while under motor dispatch.

When reviewing an insurance policy dispute, an

appellate court looks “ ‘to the language of the insurance

policy and interpret[s] the terms therein in accordance

with Michigan’s well-established principles of contract

construction.’ ” Citizens Ins Co v Pro-Seal Serv Group,

Inc, 477 Mich 75, 82; 730 NW2d 682 (2007), quoting

Henderson v State Farm Fire & Cas Co, 460 Mich 348,

353-354; 596 NW2d 190 (1999).

“First, an insurance contract must be enforced in accor-

dance with its terms. A court must not hold an insurance

company liable for a risk that it did not assume. Second, a

court should not create ambiguity in an insurance policy

where the terms of the contract are clear and precise. Thus,

the terms of a contract must be enforced as written where

there is no ambiguity.” [Citizens Ins Co, 477 Mich at 82,

quoting Henderson, 460 Mich at 354.]

In deciding whether an insured is entitled to insur-

ance benefits, we employ a two-part analysis. Heniser v

Frankenmuth Mut Ins Co, 449 Mich 155, 172; 534

NW2d 502 (1995). “First, we determine if the policy

Personal injury protection coverage is also referred to as personal

protection insurance coverage.

24 290 M

ICH

19 [Sept

provides coverage to the insured.” Id. (quotation marks

and citation omitted). “An insurer is free to define or

limit the scope of coverage as long as the policy lan-

guage fairly leads to only one reasonable interpretation

and is not in contravention of public policy.” Id. at 161.

If the policy does supply coverage, “we then ascertain

whether that coverage is negated by an exclusion. It is

the insured’s burden to establish that his claim falls

within the terms of the policy.” Id. at 172 (quotation

marks and citation omitted).

The Clearwater policy contains a “Certificate of

Non-Trucking Automobile Liability Insurance,” which

states in relevant part, “No coverage is afforded when

the described vehicle(s) is (are): 1. Under motor carrier

direction, control, or dispatch.” The policy also incorpo-

rates an endorsement entitled “Michigan Truckers—

Insurance for Non-Trucking Use,” which reads:

For the covered “auto” described in this endorsement,

LIABILITY COVERAGE, Michigan Personal Injury and

Property Protection coverages are changed as follows:

A. LIABILITY COVERAGE does not apply while the

covered “auto” is used in the business of anyone to whom

it is leased or rented if the lessee has liability insurance

sufficient to pay for damages in accordance with Chapter

31 of the Michigan [Insurance] Code [MCL 500.3101 et

seq.].

B. Michigan Personal Injury and Property Protection

coverages do not apply to “bodily injury” or “property

damage” resulting from the operation, maintenance or use

of the covered “auto” in the business of anyone to whom it

is leased or rented if the lessee has Michigan Personal

Injury and Property Protection coverages on the “auto.”

[Emphasis added.]

As discussed in greater detail in part IV of this

opinion, the lessee of Besic’s truck, MGR, did not buy

“Michigan Personal Injury and Property Protection”

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ESIC V

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coverage for Besic’s truck. In light of the plain and

unambiguous language of the Clearwater “Michigan

Truckers—Insurance for Non-Trucking Use” endorse-

ment, the Clearwater policy thus affords coverage.

Clearwater essentially concedes this conclusion in its

brief:

While [Besic] relied upon this provision as creating a

duty to pay personal protection (“PIP”) benefits, the En-

dorsement’s language did not create such a new duty.

Rather, the Endorsement’s language serves instead

to limit any such duty which may otherwise exist to

pay PIP benefits under the policy to those instances

where PIP coverage is not available under any other

policy. However, as explained, the duty to pay PIP benefits

does not otherwise exist under the policy when the truck is

under dispatch.

We reject Clearwater’s contention that because the

policy language in general excludes coverage while the

truck is under dispatch, the endorsement should be

similarly construed. “[E]ndorsements often are issued

to specifically grant certain coverage or remove the

effect of particular exclusions. Thus, such an endorse-

ment will supersede the terms of the exclusion in

question.” 4 Holmes, Appleman on Insurance (2d ed),

§ 20.1, p 156. “When a conflict arises between the terms

of an endorsement and the form provisions of an

insurance contract, the terms of the endorsement pre-

vail.” Hawkeye-Security Ins Co v Vector Constr Co, 185

Mich App 369, 380; 460 NW2d 329 (1990). “[E]ndorse-

ments by their very nature are designed to trump

general policy provisions, and where a conflict exists

between provisions in the main policy and the endorse-

ment, the endorsement prevails.” Nationwide Mut Ins

Co v Schmidt, 307 F Supp 2d 674, 677 (WD Pa, 2004).

The Clearwater endorsement unambiguously extends

no-fault coverage under the existing circumstances be-

26 290 M

ICH

19 [Sept

cause Michigan no-fault PIP coverage was otherwise

unavailable under MGR’s Lincoln policy.

Moreover, the Clearwater bobtail policy also included

an endorsement for Michigan PIP benefits. An endorse-

ment entitled “Michigan Personal Injury Protection”

sets forth in pertinent part the following:

A. Coverage

We will pay personal injury protection benefits to or for an

“insured” who sustains “bodily injury” caused by an “acci-

dent” and resulting from the ownership, maintenance or use

of an “auto” as an “auto”. These benefits are subject to the

provisions of Chapter 31 of the Michigan Insurance Code.

In straightforward fashion, the terms of the Clearwater

PIP endorsement apply to the basic facts of Besic’s

January 2007 accident in Ohio.

We conclude that on the issue of liability for Besic’s

PIP benefits, the circuit court properly (1) denied

Clearwater summary disposition, (2) granted Besic

summary disposition with respect to Clearwater, and (3)

granted summary disposition to Citizens and Lincoln,

pursuant to MCR 2.116(C)(10) and in accord with the

reasoning set forth in the rest of this opinion.

IV. APPLICABILITY OF LINCOLN POLICY TO BESIC’S CLAIM

FOR PIP BENEFITS

Clearwater next maintains that even if the Lincoln

policy MGR purchased to cover Besic’s truck does not “on

its face” extend PIP coverage, this Court should imply PIP

coverage under the Lincoln policy because Michigan law

mandates that all insurance companies doing business in

Michigan include PIP benefits in all automobile insurance

policies. According to Clearwater, the Lincoln policy con-

templates no-fault coverage in a policy section detailing

“out of state coverage extensions.” Clearwater alterna-

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tively urges that, if this Court interprets the Lincoln

policy language as inapplicable to the present circum-

stances, we should reform Lincoln’s policy to offer Besic

Michigan no-fault PIP benefits.

Clearwater relies on the following italicized policy

language, found in the “Truckers Coverage Form, Li-

ability Coverage” section of the Lincoln policy, in sup-

port of its position that the Lincoln policy covered

Besic’s no-fault PIP expenses:

SECTION II—LIABILITY COVERAGE

A. Coverage

We will pay all sums an “insured” legally must pay as

damages because of “bodily injury” or “property damage”

to which this insurance applies, caused by an “accident”

and resulting from the ownership, maintenance or use of a

covered “auto”.

***

2. Coverage Extensions

***

b. Out-of-State Coverage Extensions

While a covered “auto” is away from the state where it

is licensed we will:

(1) Increase the Limit of Insurance for Liability Cover-

age to meet the limits specified by a compulsory or financial

responsibility law of the jurisdiction where the covered

“auto” is being used....

(2) Provide the minimum amounts and types of other

coverages, such as no-fault, required of out-of-state vehicles

by the jurisdiction where the covered “auto” is being used.

[Emphasis added.]

The emphasized language does not apply in this case

because at the time of the accident Besic undisputedly

28 290 M

ICH

19 [Sept

was using the covered “auto” in Ohio, a state that does

not have a no-fault liability scheme. Most likely, this

section of the Lincoln policy enabled the coverage to

comply with laws such as MCL 500.3163(1), which

contains the following relevant language:

An insurer authorized to transact automobile liability

insurance and personal and property protection insurance

in this state shall file and maintain a written certification

that any accidental bodily injury or property damage

occurring in this state arising from the ownership, opera-

tion, maintenance, or use of a motor vehicle as a motor

vehicle by an out-of-state resident who is insured under its

automobile liability insurance policies, is subject to the

personal and property protection insurance system under

this act.

If Besic had been an Ohio resident injured in a Michigan

crash, MCL 500.3163(1) and the “out-of-state-coverage

extensions” would have compelled Lincoln to supply

first-party no-fault PIP coverage. However, neither the

statute nor the Lincoln policy language applies when a

Michigan resident suffers a vehicle-related injury in

Ohio.

Nor did Lincoln have any statutory obligation to

incorporate no-fault PIP coverage into the policy it sold

to MGR. Clearwater correctly observes that “[w]here an

automobile insurance policy contains an exclusionary

clause that was not contemplated by the Legislature,

that clause is invalid and unenforceable.” Universal

Underwriters Ins Co v State Farm Auto Ins Co, 172

Mich App 342, 346; 431 NW2d 255 (1988). But Lincoln

sold the policy at issue to MGR in Illinois, and not to

Besic in Michigan. Furthermore, “[t]he requirements

for a motor vehicle liability policy may be fulfilled by the

policies of more than one insurance carrier.” State Farm

Mut Auto Ins Co v Auto-Owners Ins Co, 173 Mich App

51, 55; 433 NW2d 323 (1988). Because the Clearwater

2010] B

ESIC V

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policy supplied no-fault PIP coverage for the injuries

Besic suffered in his January 2007 accident, no basis

exists for reforming the Lincoln policy to similarly

provide such coverage.

V. REIMBURSEMENT FOR PIP BENEFITS PAID BY CLEARWATER

Clearwater lastly avers that pursuant to MCL

500.3114, Citizens, the insurer of Besic’s personal ve-

hicles, shares responsibility to pay Besic’s no-fault PIP

benefits. In Clearwater’s view, Citizens stands within

the same order of priority as Clearwater, and thus

Clearwater should receive a pro rata reimbursement for

the first-party no-fault benefits it has paid Besic.

“To determine the priority of insurers liable for

[no-fault PIP] benefits, the claimant must look to [MCL

500.3114].” Auto-Owners Ins Co v State Farm Mut Auto

Ins Co, 187 Mich App 617, 619; 468 NW2d 317 (1991).

The pertinent subsections of MCL 500.3114 instruct as

follows:

(1) Except as provided in subsections (2), (3), and (5), a

personal protection insurance policy described in [MCL

500.3101(1)] applies to accidental bodily injury to the

person named in the policy, the person’s spouse, and a

relative of either domiciled in the same household, if the

injury arises from a motor vehicle accident....

***

(3) An employee, his or her spouse, or a relative of either

domiciled in the same household, who suffers accidental

bodily injury while an occupant of a motor vehicle owned or

registered by the employer, shall receive personal protec-

tion insurance benefits to which the employee is entitled

from the insurer of the furnished vehicle.

MCL 500.3101(1) states, in relevant part:

30 290 M

ICH

19 [Sept

The owner or registrant of a motor vehicle required to

be registered in this state shall maintain security for

payment of benefits under personal protection insurance,

property protection insurance, and residual liability insur-

ance. Security shall only be required to be in effect during

the period the motor vehicle is driven or moved upon a

highway.

In Celina Mut Ins Co v Lake States Ins Co, 452 Mich

84, 89; 549 NW2d 834 (1996), the Supreme Court held

that

it is most consistent with the purposes of the no-fault

statute to apply [MCL 500.3114(3)] in the case of injuries to

a self-employed person. The cases interpreting that section

have given it a broad reading designed to allocate the cost

of injuries resulting from use of business vehicles to the

business involved through the premiums it pays for insur-

ance.

The Supreme Court explained that

requiring both insurers to contribute to the payment of

benefits would run contrary to the overall goal of the

no-fault insurance system, which is designed to provide

victims with assured, adequate, and prompt reparations at

the lowest cost to both the individuals and the no-fault

system. Splitting the obligation to pay would result in

duplicative administrative costs, by requiring several in-

surers to adjust a single claim. [Id.]

In State Farm Mut Auto Ins Co v Sentry Ins, 91 Mich

App 109, 114-115; 283 NW2d 661 (1979), this Court set

forth the same rationale later adopted in Celina:

The exceptions in [MCL 500.3114(2)] and (3) relate to

“commercial” situations. It was apparently the intent of

the Legislature to place the burden of providing no-fault

benefits on the insurers of these motor vehicles, rather

than on the insurers of the injured individual. This scheme

allows for predictability; coverage in the “commercial”

setting will not depend on whether the injured individual is

2010] B

ESIC V

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covered under another policy. A company issuing insurance

covering a motor vehicle to be used in a (2) or (3) situation

will know in advance the scope of the risk it is insuring.

The benefits will be speedily paid without requiring a suit

to determine which of the two companies will pay what is

admittedly due by one of them.

Besic owned the truck and worked as a self-employed

independent contractor for MGR. Consistently with the

Michigan Supreme Court’s analysis in Celina, 452 Mich

at 89, the priority language in MCL 500.3114(3) extends

to the self-employment situation of Besic. With respect

to the additional language comprising MCL

500.3114(3), Besic suffered “accidental bodily injury

while an occupant of a motor vehicle owned or regis-

tered by [his] employer,” given that MRG had leased

Besic’s truck. MCL 500.3101(2)(h) (including in its

definition of “owner” “[a] person renting a motor

vehicle or having the use thereof, under a lease or

otherwise, for a period that is greater than 30 days”).

Because MCL 500.3114(3) applies to the undisputed

facts of this case, it dictates that Besic “shall receive

personal protection insurance benefits to which [he] is

entitled from the insurer of the furnished vehicle.” In

light of the fact that only Clearwater extended PIP

benefits to the truck involved in Besic’s accident, it has

first priority to pay Besic’s first-party benefits.

Clearwater suggests that Smith v Continental West-

ern Ins Co, 169 F Supp 2d 687 (ED Mich, 2001), compels

a different result. In Smith, the plaintiff owned a

tractor registered in Indiana, and he sustained personal

injuries in a Michigan accident. Id. at 689. The plaintiff

sought PIP benefits and sued the insurers for (1) the

company “with whom Plaintiff had a long-term lease to

haul; (2) the short-term lessor for whom Plaintiff

hauled on the day of the accident; and (3) the company”

that provided bobtail coverage for the tractor. Id. The

32 290 M

ICH

19 [Sept

federal district court ruled that although Michigan’s

no-fault act applied, none of the defendants bore re-

sponsibility for paying no-fault benefits because the

plaintiff’s personal insurer occupied a higher priority.

Id. at 692, 695. In reaching its decision, the district

court expressly and repeatedly disclaimed any consid-

eration of MCL 500.3114(3), the controlling insurer

priority provision here. Id. at 694 n 3, 695. Therefore,

Smith is readily distinguishable from the instant case.

Finally, Clearwater asserts in its reply brief that

“there is no record to support which entity may be

properly identified as [Besic’s] employer: Besic Express,

Inc. or MGR Express, Inc., or both.” This potential

distinction among employers is immaterial. In light of

the undisputed fact that Besic was self-employed at the

time of the accident, Celina, 452 Mich at 89, and MCL

500.3114(3) remain the controlling authorities.

Affirmed. Costs to Citizens and Lincoln as the pre-

vailing parties. MCR 7.219(A).

In any event, this Court is “not bound to follow a federal court’s

interpretation of state law.” Doe v Young Marines of the Marine Corps

League, 277 Mich App 391, 399; 745 NW2d 168 (2007).

2010] B

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HOFFMAN v BOONSIRI

Docket No. 292040. Submitted September 8, 2010, at Detroit. Decided

September 14, 2010, at 9:10 a.m.

Corrine A. Hoffman brought a medical-malpractice action in the

Monroe Circuit Court against Manoo Boonsiri, M.D., Manoo

Boonsiri, M.D., P.C., John Doe, M.D., and Mercy Memorial Hospital

System. The malpractice was alleged to have occurred from

February 24 to 27, 2006. Plaintiff sent a notice of intent (NOI) to

bring the action on August 9, 2007. On February 21, 2008, plaintiff

sent a first amended NOI. On June 23, 2008, plaintiff filed her

complaint. Defendants brought motions for summary disposition.

The court, Joseph A. Costello, Jr., J., granted summary disposition

in favor of defendants on the bases that plaintiff failed to file a NOI

in accordance with MCL 600.2912b and the period of limitations

had expired. Plaintiff appealed.

The Court of Appeals held:

1. There is no dispute that the first NOI did not trigger tolling

under MCL 600.5856(c). A second NOI, sent with fewer than 182

days remaining in the limitations period, can initiate tolling under

§ 5856(c) as long as the first NOI did not initiate such tolling. The

first NOI in this action did not trigger tolling, but the filing of the

second NOI did initiate tolling. This case does not implicate the

tacking of successive 182-day periods because the original NOI did

not toll the limitations period. The amended NOI tolled the

limitations period until August 21, 2008.

2. Perfect notice is not required. Deficiencies in the content of

an NOI do not preclude tolling under MCL 600.5856(c).

3. The availability of tolling is not linked to the “waiting” or

“no-suit” period. By providing an initial NOI that did not implicate

tolling together with a second, more-perfect NOI, plaintiff pro-

vided 319 days of notice when the two waiting periods are

aggregated.

4. The pertinent statutes do not indicate that plaintiff’s action

is barred under the circumstances of this case. Nothing in the

applicable statutes precludes the aggregation of the no-

suit/waiting periods involved in providing notice. Plaintiff gave

34 290 M

ICH

34 [Sept

written notice not less than 182 days before she commenced the

action. The order granting summary disposition in favor of defen-

dants must be vacated and the case must be remanded to the trial

court for further proceedings.

Vacated and remanded.

1. L

IMITATION OF

CTIONS —

EDICAL

ALPRACTICE

A medical-malpractice action that is not commenced within the time

prescribed by MCL 600.5838a is barred.

2. L

IMITATION OF

CTIONS —

EDICAL

ALPRACTICE —

OTICES OF

NTENT TO

A second notice of intent to bring a medical malpractice action that

is sent with fewer than 182 days remaining in the limitations

period can initiate tolling under MCL 600.5856(c) as long as the

first notice of intent to sue did not initiate such tolling.

3. L

IMITATION OF

CTIONS —

EDICAL

ALPRACTICE —

OTICES OF

NTENT TO

UE —

EFICIENCIES IN

OTICES

Deficiencies in the content of a notice of intent to bring a medical-

malpractice action do not preclude tolling of the applicable statute

of limitations under MCL 600.5856(c).

Mark Granzotto, P.C. (by Mark Granzotto), and Er-

lich, Rosen & Bartnick, P.C. (by Jeffrey S. Cook), for

Corrine A. Hoffman.

Collins, Einhorn, Farrell & Ulanoff, P.C. (by Noreen

L. Slank and Geoffrey M. Brown), for Manoo Boonsiri,

M.D., and Manoo Boonsiri, M.D., P.C.

Kitch Drutchas Wagner Valitutti & Sherbrook (by

Beth A. Wittman and Ellen Keefe Garner) for Mercy

Memorial Hospital System.

Before: T

ALBOT

,P.J., and M

ETER

and D

ONOFRIO

,JJ.

ONOFRIO

, J. In this medical-malpractice action, plain-

tiff appeals as of right an order granting defendants

summary disposition pursuant to MCR 2.116(C)(7) on the

bases that plaintiff failed to file a notice of intent (NOI) in

2010] H

OFFMAN V

OONSIRI

accordance with MCL 600.2912b and the period of limita-

tions had expired. The issue on appeal involves the timing

of plaintiff’s notices of intent and the filing of plaintiff’s

complaint. Because perfect notice is not required, any

subsequent amended NOI filings can be aggregated with

the original NOI, and plaintiff gave written notice not less

than 182 days before she commenced the action, we vacate

the trial court’s order granting defendants’ motions for

summary disposition and remand for further proceedings.

The pertinent facts relevant to this appeal are not in

dispute. Plaintiff’s complaint alleges that she went to a

hospital of defendant Mercy Memorial Hospital System

(Mercy Hospital) because of problems with an arterio-

venous fistula. Defendant Dr. Manoo Boonsiri per-

formed surgery on February 24, 2006. While plaintiff

was at Mercy Hospital, she suffered severe ischemic

changes to her left hand and arm that went untreated

until she was transferred to another hospital. She

underwent emergency surgery, which was unsuccessful

because of the delay, and now has permanent injury to

her left upper extremity. The only issue on appeal

involves the timing of plaintiff’s notices of intent and

the filing of plaintiff’s complaint. The relevant dates are

as follows:

February 24 to 27, 2006 = Dates of alleged malpractice

August 9, 2007 = NOI sent

February 21, 2008 = First amended NOI sent

June 23, 2008 = Complaint filed

The timing of these actions implicates plaintiff’s

ability to comply with both the two-year statutory

limitations period and the notice waiting period. Plain-

tiff filed her complaint more than two years after the

36 290 M

ICH

34 [Sept

alleged malpractice. Therefore, for the action to be

considered timely, plaintiff must be able to obtain the

benefit of the tolling of the limitations period afforded

by the filing of the amended NOI. With respect to the

amended NOI, however, the complaint was arguably

filed prematurely because the 182-day notice waiting

period had not expired. Thus, for purposes of complying

with the required waiting period, plaintiff relies on the

original NOI. In response, defendants argue that be-

cause plaintiff did not wait the requisite period after

filing the amended NOI, she is not entitled to the tolling

that would otherwise result from an amended NOI.

In the trial court, defendants

moved for summary

disposition pursuant to MCR 2.116(C)(7), asserting that

plaintiff’s complaint was filed only 123 days after she

sent the amended NOI. MCL 600.2912b(1) provides

that a person shall not commence an action alleging

medical malpractice unless the person has given writ-

ten notice “not less than 182 days before the action is

commenced.” Citing Burton v Reed City Hosp Corp, 471

Mich 745; 691 NW2d 424 (2005), defendants argued

that the prematurely filed complaint was insufficient to

commence a cause of action. Defendants contended that

the 182-day tolling of the limitations period that re-

sulted from the filing of the amended NOI ended, at the

latest, on August 27, 2008. According to defendants,

because plaintiff failed to timely commence an action

before the expiration of the limitations period, plain-

tiff’s claims were barred and defendants were entitled

to summary disposition pursuant to MCR 2.116(C)(7).

Defendants’ first motion for summary disposition was filed on behalf

of all the defendants. Mercy Hospital filed an amended motion that raised

the same arguments. Defendants Manoo Boonsiri, M.D., and Manoo

Boonsiri, M.D., P.C. (the Boonsiri defendants), filed a separate motion

that raised the same arguments.

2010] H

OFFMAN V

OONSIRI

In response, plaintiff contended that she complied

with MCL 600.2912b(1) because she filed the complaint

319 days after she sent the original NOI, far exceeding

the 182-day requirement. She contended that the

amended NOI tolled the limitations period and that the

complaint was filed before the limitations period ex-

pired. The Boonsiri defendants countered that although

plaintiff had not added a new defendant in the amended

NOI, she had added new allegations and “when you add

new allegations we’re entitled to another 182 days to

investigate those allegations.” They maintained that

although Mayberry v Gen Orthopedics, PC, 474 Mich 1;

704 NW2d 69 (2005), did not address the situation, the

case illustrated that when a second NOI is filed, a new

waiting period is applied.

After entertaining oral argument on the motions,

the trial court took the matter under advisement and

issued a written opinion that incorporated a separate

memorandum of law. The trial court stated that

Mayberry, 474 Mich at 9-10, indicated that tolling

from a second NOI only applied if the notice other-

wise complied with the requirements of MCL

600.2912b. The trial court concluded that there was

“no legal basis for Plaintiff’s belief that when filing a

second NOI the statutory requirements do not have

to be followed.” The trial court then compared the

original and the amended NOI and noted plaintiff’s

contention that they were essentially the same:

Whether or not this is true, unfortunately, the first

NOI had already expired, and under the application of

the Mayberry case, the second NOI could not be used to

give the Plaintiff the ability to tack an additional or

successive 182 days so as to ‘[enjoy] the benefit of

multiple tolling periods’. Mayberry, supra at 6, 7 and 10;

MCL 600.2912b(6).

38 290 M

ICH

34 [Sept

Accordingly, the trial court granted defendants’ mo-

tions for summary disposition pursuant to MCR

2.116(C)(7). Plaintiff now appeals as of right.

This Court reviews de novo a trial court’s decision on a

motion for summary disposition under MCR 2.116(C)(7)

(claim is barred by statute of limitations). DiP onio Constr

Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43, 46-47;

631 NW2d 59 (2001). When reviewing a motion for

summary disposition under MCR 2.116(C)(7), the trial

court must accept the nonmoving party’s well-pleaded

allegations as true and construe the allegations in the

nonmovant’s favor to determine whether any factual

development could provide a basis for recovery. Amburgey

v Sauder, 238 Mich App 228, 231; 605 NW2d 84 (1999).

Further, we review de novo a question of statutory inter-

pretation. Bush v Shabahang, 484 Mich 156, 164; 772

NW2d 272 (2009).

III

On appeal, plaintiff argues that the trial court erred

by concluding that defendants were entitled to sum-

mary disposition on the ground that plaintiff failed to

comply with the mandatory waiting period provided in

MCL 600.2912b. Plaintiff contends that her complaint

was prematurely filed if the waiting period is measured

from the time that the amended NOI was filed, but not

if the period is measured from the mailing of the

original NOI. Plaintiff further maintains that MCL

600.2912b(1) requires a plaintiff to give written notice

not less than 182 days before the action is commenced,

and because she mailed the first NOI 319 days before

she filed the complaint, she fully complied with MCL

600.2912b(1).

2010] H

OFFMAN V

OONSIRI

A medical-malpractice action that is not commenced

within the time prescribed by MCL 600.5838a is barred.

MCL 600.5838a(2). In the present case, there is no

dispute that the two-year period in MCL 600.5805(6) is

applicable:

(1) A person shall not bring or maintain an action to

recover damages for injuries to persons or property unless,

after the claim first accrued...theaction is commenced

within the periods of time prescribed by this section.

***

(6)...[T]heperiod of limitations is 2 years for an action

charging malpractice. [MCL 600.5805(1) and (6).]

Because plaintiff did not file a complaint within two

years after the claim accrued she relies on the tolling of

the statute of limitations provided in MCL 600.5856(c).

MCL 600.5856(c) states as follows:

The statutes of limitations or repose are tolled in any of

the following circumstances:

***

applicable notice period under section 2912b, if during that

period a claim would be barred by the statute of limitations

or repose; but in this case, the statute is tolled not longer

than the number of days equal to the number of days

remaining in the applicable notice period after the date

notice is given.

Before it was amended by 2004 PA 87, effective April 22,

2004, MCL 600.5856 provided, in pertinent part:

The statutes of limitations or repose are tolled:

***

40 290 M

ICH

34 [Sept

(d) If, during the applicable notice period under section

2912b, a claim would be barred by the statute of limitations

or repose, for not longer than a number of days equal to the

number of days in the applicable notice period after the

date notice is given in compliance with section 2912b.

The referenced section, MCL 600.2912b, governs the

written notice of intent to file a claim. The statute sets

forth requirements with respect to the timing of the

notice and its content. MCL 600.2912b(1) states:

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.

Although the language of the preamendment version of

MCL 600.5856(d) is very similar to the current version

of MCL 600.5856(c), in Bush, 484 Mich at 169, our

Supreme Court explained that the change clarified the

focus of the operative language: “Thus, pursuant to the

clear language of § 2912b and the new § 5856(c), if a

plaintiff complies with the applicable notice period

before commencing a medical malpractice action, the

statute of limitations is tolled.”

The effect of a potential plaintiff’s failure to comply

with the applicable notice period was addressed in

Burton, 471 Mich 745. The Burton Court compared the

prohibition in MCL 600.2912b(1) (“a person shall not

commence an action . . . unless . . .”) to the directive in

MCL 600.2912d(1) that requires an affidavit of merit to

be filed with a complaint. According to the Court, just as

a complaint without an affidavit of merit is insufficient

to commence a suit, Scarsella v Pollak, 461 Mich 547,

A claimant may file an action after a lesser time under certain

circumstances that are not at issue in this matter.

2010] H

OFFMAN V

OONSIRI

549; 607 NW2d 711 (2000), the filing of a complaint

before the expiration of the notice period is not effective

to commence an action. Burton, 471 Mich at 753-754.

“In each instance, the failure to comply with the statu-

tory requirement renders the complaint insufficient to

commence the action.” Id. at 754. We note that in

Burton, the plaintiff only provided a total of 115 days of

notice before filing his complaint. Id. at 748.

In Ellout v Detroit Med Ctr, 285 Mich App 695, 698;

777 NW2d 199 (2009), this Court stated that “[t]he law

is abundantly clear that where a plaintiff has failed to

comply with [MCL 600.2912b] by prematurely filing

suit, the appropriate remedy is dismissal without preju-

dice.” When a case is dismissed for noncompliance with

the notice provisions of MCL 600.2912b, the plaintiff

must still comply with the applicable statute of limita-

tions. Burton, 471 Mich at 753.

Caselaw interpreting former MCL 600.5856(d) indi-

cated that the tolling from the filing of an NOI applied

only when the limitations period would otherwise ex-

pire during the notice period. In Omelenchuk, 461 Mich

at 574, our Supreme Court concluded that the phrase

“[i]f, during the applicable notice period under [MCL

600.2912b], a claim would be barred by the statute of

limitations or repose” in former MCL 600.5856(d) indi-

cated that former MCL 600.5856(d) was not applicable

if the interval during which a potential plaintiff was not

allowed to sue ended before the limitations period

expired. The current version of MCL 600.5856(c) states,

in part, that the statutes of limitations or repose are

tolled “[a]t the time notice is given in compliance with

the applicable notice period under section 2912b, if

during that period a claim would be barred by the

statute of limitations or repose....”Thecurrent ver-

sion essentially reordered the pertinent phrases from

42 290 M

ICH

34 [Sept

the former version. Therefore, we conclude that this

particular holding in Omelenchuk is still valid.

MCL 600.2912b(6) addresses subsequent notices and

provides:

After the initial notice is given to a health professional

or health facility under this section, the tacking or addition

of successive 182-day periods is not allowed, irrespective of

how many additional notices are subsequently filed for that

claim and irrespective of the number of health profession-

als or health facilities notified.

However, as long as an initial notice did not toll the

limitations period, the tolling triggered by a second

notice does not violate MCL 600.2912b(6). In Mayberry,

474 Mich at 3, the Court stated: “We conclude that a

second notice of intent to sue, sent with fewer than 182

days remaining in the limitations period, can initiate

tolling under § 5856(d) as long as the first notice of

intent to sue did not initiate such tolling.”

Here, the parties do not dispute that the first NOI did

not trigger tolling under MCL 600.5856(c). With respect

to the original notice, the interval during which plain-

tiff was not allowed to sue ended on February 5, 2008.

The claim would not have been barred by the statute of

limitations until February 24 to 27, 2008. Therefore,

MCL 600.5856(c) was not applicable with respect to the

original notice. Although plaintiff’s first notice of intent

did not trigger tolling, the filing of the second notice did

initiate tolling. Mayberry, 474 Mich at 3.

At this point, a flaw in the trial court’s analysis is

apparent. The trial court stated: “[U]nder the applica-

tion of the Mayberry case, the second NOI could not be

used to give the Plaintiff the ability to tack an addi-

tional or successive 182 days so as to ‘[enjoy] the benefit

of multiple tolling periods’. Mayberry, supra at 6, 7 and

10; MCL 600.2912b(6).” This case, like Mayberry, does

2010] H

OFFMAN V

OONSIRI

not implicate the tacking of successive 182-day periods

because the original NOI did not toll the limitations

period. Defendants did not contend that tolling from

the second NOI would violate the prohibition on tack-

ing. On appeal, Mercy Hospital acknowledges that the

amended NOI tolled the limitations period until August

21, 2008. The Boonsiri defendants acknowledge that

the first NOI did not trigger tolling under MCL

600.5856(c). Thus, it appears that the trial court may

have misunderstood their argument as well as the

holding of Mayberry.

Defendants also argue that plaintiff’s complaint was

filed prematurely, i.e., in violation of MCL 600.2912b,

and therefore, according to Burton, 471 Mich 745, the

complaint was ineffective to commence an action, and

the period of limitations, as extended by the tolling

from the amended notice, expired no later than August

27, 2008. Plaintiff asserts that she complied with the

“literal requirements of § 2912b(1)” because by filing

the original NOI, she gave defendants “written notice

under this section not less than 182 days before the

action [was] commenced.” Plaintiff claims that this

approach is consistent with the purpose of the manda-

tory waiting period. Plaintiff contends that defendants

had 319 days after the original notice was sent, much

more than the minimum amount of time provided by

the statute, to resolve the case.

Defendant Mercy Hospital responds specifically that

“the difficulty with plaintiff’s argument is that plaintiff

relied upon the amended notice of intent to toll the

limitations period and render her complaint timely.

Plaintiff should not be allowed the benefit of tolling by

the amended notice of intent, while disregarding the

requisite waiting period applicable to the latter notice of

intent.” The Boonsiri defendants similarly argue:

44 290 M

ICH

34 [Sept

“Plaintiff offers no authority for her assertion that she

can have the benefit of NOI tolling under MCL

600.5856(c) and Mayberry, without having to undertake

the burden of waiting 182 (or at least 154) days to file

her complaint.”

Absent some basis in the statutory language, defen-

dants’ contention that the “benefit” of tolling should

only be available in conjunction with the “burden” of

the waiting period is essentially an attempt to invoke a

concept of fairness as a basis for dismissal. But, to the

extent that fairness is a relevant consideration, it

clearly favors plaintiff’s position. “The stated purpose

of § 2912b was to provide a mechanism for ‘promoting

settlement without the need for formal litigation, re-

ducing the cost of medical malpractice litigation, and

providing compensation for meritorious medical mal-

practice claims that would otherwise be precluded from

recovery because of litigation costs....’” Bush, 484

Mich at 174, quoting Senate Legislative Analysis, SB

270, August 11, 1993; House Legislative Analysis, HB

4403-4406, March 22, 1993. Furthermore, “[t]he Legis-

lature surely did not intend its tolling provision as a

trap for the unwary....”Omelenchuk, 461 Mich at 576

n 19. Plaintiff sent defendants notice of her intent to

file a claim on August 9, 2007. Thus, she could have

filed the complaint as early as February 5, 2008. She

filed it on June 23, 2008. The timing of the original NOI

and the complaint afforded the parties ample opportu-

nity to examine and settle the claim without formal

litigation.

Mercy Hospital argues that dismissal of the entire

action is appropriate because it only had 123 days of

notice with respect to the additional allegations in the

amended NOI and the complaint. Mercy Hospital does

not tie this argument to pertinent statutes. The original

2010] H

OFFMAN V

OONSIRI

NOI and the amended NOI include eight identical sub-

paragraphs identifying the standard of care. These include

giving “proper post operative orders... to the nursing

staff and resident physicians regarding contacting the

attending physician surgeon immediately upon observing

signs and symptoms of ischemic changes....” The

amended NOI added the following:

The standard of care for a surgeon faced with a patient

with a failed AV fistula after recent surgery is to do the

following:

***

i. That contact must be made via post operative rounds

and direct communication with the nursing staff and

resident physicians regarding the patient’s post operative

condition every six to eight hours until the patient is ready

for discharge to ensure that proper blood flow has returned

to the affected extremity and to ensure that if blood flow is

compromised that the attending surgeon timely diagnose

and treat the condition prior to permanent damage occur-

ring.

The amended NOI added that Dr. Boonsiri breached the

standard of care by

failing to either personally see the claimant every six to

eight hours post operatively and/or failing to keep in

contact with the nursing staff and the resident physician

every six to eight hours to assess the condition of claim-

ant’s blood flow to her extremity following her surgery.

To the extent that we may analyze Mercy Hospital’s

argument in terms of the applicable statutes, the argu-

ment is essentially that plaintiff’s original NOI was

inadequate to satisfy the requirement in MCL

600.2912b(1) that she provide “written notice under

this section” because it did not contain all the informa-

tion that was later included in the complaint. The

46 290 M

ICH

34 [Sept

absence of these allegations in the original NOI could be

viewed as a deficiency in its content. But deficiencies in

the content of an NOI do not preclude tolling under

MCL 600.5856(c). Bush, 484 Mich at 161, 170 n 26.

other words, perfect notice is not required. Therefore,

Mercy Hospital’s argument that the purported defi-

ciency in notice with respect to the additional allega-

tions warrants dismissal is without merit.

The Boonsiri defendants attempt to support their

position with the language of MCL 600.5856(c), which

they claim indicates that tolling only exists if a waiting

period also exists. The Boonsiri defendants specifically

argue in their brief on appeal:

The language of MCL 600.5856(c) expressly ties the

availability of tolling to the existence of the waiting period:

“The statutes of limitations or repose are tolled in any of

the following circumstances:

***

“(c) At the time notice is given in compliance with the

applicable notice period under section 2912b, if during

that period a claim would be barred by the statute of

limitations or repose; but in this case, the statute is tolled

not longer than the number of days equal to the

number of days remaining in the applicable notice

period after the date notice is given. [MCL 600.5856(c)

(emphasis added).]”

The import of this language is clear: tolling only exists

because, and if, a waiting period exists. Hoffman argues,

essentially, that there was no waiting period triggered by

the service of her amended NOI. If this is true, however, it

would mean that no tolling period was triggered, either,

“Our analysis today explains that the Legislature has made it clear

that a defective NOI does not preclude tolling of the statute of limitations

for cases brought under [MCL 600.5856(c)].” Bush, 484 Mich at 170 n 26.

2010] H

OFFMAN V

OONSIRI

since there is no “applicable notice period” to activate

tolling under MCL 600.5856(c).

Thus, the Boonsiri defendants’ view links the availabil-

ity of tolling to the waiting period applicable in the

specific case. According to their view, where there is no

applicable waiting period for the second notice, there

can be no tolling.

However, the Boonsiri defendants’ view is incompat-

ible with Omelenchuk, 461 Mich at 574-575, which

addressed the meaning of “applicable period” in former

MCL 600.5856(d). The Omelenchuk Court held that the

reference to “ ‘a number of days equal to the number of

days in the applicable notice period’ ” was 182 days, “a

set period defined in the statute....”Omelenchuk, 461

Mich at 574-575. The Omelenchuk Court considered

and rejected an interpretation that the “ ‘applicable

notice period’ ” is equal to the “ ‘no-suit’ period,” id.at

575, which the Boonsiri defendants refer to as “the

waiting period.”

Both this Court and our Supreme Court have reaf-

firmed this aspect of Omelenchuk in decisions address-

ing the current version of MCL 600.5856. In Bush, 484

Mich at 181 n 46, the Court stated, “We note that our

holding today does not conflict with Omelenchuk v City

of Warren, 461 Mich 567, 575; 609 NW2d 177 (2000)

(holding that the statute of limitations remains tolled

for the full 182 days even if the plaintiff takes advan-

tage of the shortened waiting period).” In Vanslem-

brouck v Halperin, 277 Mich App 558, 572; 747 NW2d

311 (2008), this Court stated:

According to defendants, the Legislature’s act of amend-

ing and recodifying the former MCL 600.5856(d) at MCL

600.5856(c) was “to counter the Omelenchuk [C]ourt’s

monolithic application of 182 days of notice of intent

tolling.” However, like former MCL 600.5856(d), MCL

48 290 M

ICH

34 [Sept

600.5856(c) links the tolling period to the applicable notice

period. Omelenchuk, supra, 461 Mich at 575. MCL

600.5856(c) states: “[T]he statute is tolled not longer than

the number of days equal to the number of days remaining

in the applicable notice period....” Thus, like former

MCL 600.5856(d), MCL 600.5856(c) does not link the

tolling period to the period in which the claimant may not

file suit. Id.

In light of the interpretation of “applicable notice

period” in Omelenchuk, 461 Mich at 575, as reaffirmed

in recent decisions, we reject the Boonsiri defendants’

contention that the availability of tolling is linked to the

“waiting” or “no-suit” period.

Defendants contend that Mayberry, 474 Mich 1, illus-

trates that after filing an amended NOI, plaintiff was

required to wait before filing her complaint. In May-

berry, 474 Mich at 4, the pertinent events were as

follows:

November 22, 1999 = Date of alleged malpractice

June 21, 2000 = NOI se nt to Dr. William Kohen

October 12, 2001 = Second NOI sent to Dr. Kohen

(with additional allegations) and

to his professional corporation

March 19, 2002 = Complaint filed

As in the present case, the first NOI did not trigger

tolling under MCL 600.5856(c) because it was filed

more than 182 days before the limitations period would

have expired. The principal holding of Mayberry was

that because the original NOI did not trigger tolling,

the second NOI was eligible to initiate tolling. May-

berry, 474 Mich at 2-3. The decision did not address the

timing of the filing of the complaint, except in a

footnote:

Plaintiffs asserted in the trial court that they were

obligated to wait only 154 days before bringing suit, as

2010] H

OFFMAN V

OONSIRI

opposed to 182 days, because defendants failed to respond

to the notice of intent to sue. See MCL 600.2912d(8).

Defendants have not challenged plaintiffs’ assertion in this

Court, and we do not address this issue, which was not

raised on appeal. [Id. at 4 n 3.]

Mercy Hospital contends, “It is evident, however, that

the Mayberry plaintiffs were cognizant of the fact that

they were required to wait either the 154-day or the

182-day waiting period after sending the second notice

of intent before filing their complaint.”

Mayberry is not instructive on this point. The Court

declined to address the issue. Even if one could assume

from the timing of the plaintiffs’ filing of the complaint

how the plaintiffs’ counsel interpreted the pertinent

statutes, that a particular medical-malpractice litigator

was “cognizant” of an interpretation that required a

delay in filing the complaint is of negligible persuasive

value in determining the correct outcome in this case.

Indeed, what the Mayberry plaintiffs thought—if in fact

that is what they thought—does not make it so.

Additionally, our resolution does not conflict with

Burton.InBurton, the plaintiff only waited 115 days

before commencing his lawsuit. Burton did not deal

with a situation such as the one in the present case

where plaintiff provided the same defendants multiple

notices, in essence making the NOI more perfect. Here,

by providing an initial NOI that did not implicate

tolling together with a second “more perfect” NOI,

plaintiff provided 319 days of notice when the two

waiting periods are aggregated. Burton is neither appli-

cable nor instructive under these facts.

In sum, we conclude that the pertinent statutes do

not indicate that plaintiff’s action is barred under the

50 290 M

ICH

34 [Sept

circumstances of this case.

In fact, no statute prohibits

plaintiff’s procedural handling of the litigation and we

cannot discern any violation of the policy evinced by the

stated statutes. Nothing in the applicable statutes pre-

cludes the aggregation of the no-suit/waiting periods

involved in providing notice. Therefore, defendants’

contention that the filing of plaintiff’s complaint did not

commence the action because she did not comply with

MCL 600.2912b(1) is rejected. Plaintiff gave written

notice not less than 182 days before she commenced the

action.

Vacated and remanded. Plaintiff, being the prevailing

party, may tax costs pursuant to MCR 7.219. We do not

retain jurisdiction.

While plaintiff has raised alternative arguments in favor of reversal,

these arguments do not require our attention in light of our determina-

tion of the principal issue.

2010] H

OFFMAN V

OONSIRI

BATES ASSOCIATES, LLC v 132 ASSOCIATES, LLC

Docket No. 288826. Submitted May 12, 2010, at Detroit. Decided Sep-

tember 14, 2010, at 9:15 a.m.

Bates Associates, L.L.C., brought an action in the Wayne Circuit Court

against 132 Associates, L.L.C ., and the Sault Ste. Marie Tribe of

Chippewa Indians, alleging that they breached a settlement agree-

ment that the parties had reached following a dispute over the sale of

a parking garage. The settlement agreement incorporated by refer-

ence a waiver of sovereign immunity and tribal-court jurisdiction by

the tribe that was included in the original sale agreement and also

contained a choice-of-law provision indicating that the agreement

would be governed by Michigan law. The court, John H. Gillis, Jr., J.,

entered a preliminary injunction that required defendants to transfer

title to the garage to plaintiff. Defendants filed a counterclaim

alleging that they had transferred title to the garage, but plaintiff

owed them $91,619.28. Plaintiff and defendants both moved for

summary disposition. Defendants contended that the tribe’s chief

financial officer had lacked the authority to enter into the settlement

agreement and that the waivers of the tribe’s sovereign immunity

and tribal-court jurisdiction in the agreement were invalid. The court

disagreed and granted summary disposition in favor of plaintiff.

Defendants appealed.

The Court of Appeals held:

1. The trial court correctly granted summary disposition in

plaintiff’s favor. An Indian tribe is subject to suit only if Congress has

authorized the suit or the tribe has clearly and unequivocally waived

its sovereign immunity. The settlement agreement at issue in this

case incorporated the tribe’s waivers of sovereign immunity and

tribal-court jurisdiction set forth in the sale agreement. Because

these waivers were clear and unequivocal, they were enforceable.

2. While the tribe argued that the waivers of sovereign immu-

nity and tribal-court jurisdiction were invalid because they were

not supported by a resolution of the tribe’s board of directors as

required by the tribe’s code, that argument failed under the facts

of the case. The chief financial officer had the authority to enter

into the settlement agreement, there was no indication that

plaintiff was aware that a tribal resolution was necessary for the

52 290 M

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52 [Sept

tribe to waive sovereign immunity and tribal-court jurisdiction,

and the tribe initially acted as if the settlement agreement were

valid. Further, the settlement agreement incorporated by refer-

ence the clear and unequivocal waivers set forth in the sale

agreement and the tribe conceded that the agreement of sale was

authorized by a valid tribal resolution.

Affirmed.

1. I

NDIANS —

OVEREIGN

MMUNITY —

AIVERS —

LEAR AND

NEQUIVOCAL

AIVERS

An Indian tribe is subject to suit only if Congress has authorized the

suit or the tribe has clearly and unequivocally waived its sovereign

immunity.

2. I

NDIANS —

RIBAL

-C

OURT

URISDICTION —

AIVERS —

XPLICIT

AIVERS —

HOICE-OF

-L

ROVISIONS

The inclusion of a choice-of-law provision in a contract to which an

Indian tribe is a party may explicitly waive tribal-court-

jurisdiction.

Barris, Sott, Denn, & Driker, P.L.L.C. (by Morley

Witus, James S. Fontichiaro, and Jeffrey M. Stefan), for

plaintiff.

Abbott Nicholson, P. C . (by George M. Malis, Gene J.

Esshaki, and Christopher R. Gura), for defendants.

Before: S

AAD

,P.J., and H

OEKSTRA

and S

ERVITTO

,JJ.

AAD

,P.J. Defendants, 132 Associates, L.L.C., and the

Sault Ste. Marie Tribe of Chippewa Indians (the Tribe),

appeal the trial court’s grant of summary disposition to

plaintiff, Bates Associates, L.L.C. Though both defen-

dants filed a claim of appeal, only the Tribe challenges

the trial court’s judgment against it. For the reasons set

forth in this opinion, we affirm.

I. FACTS

This dispute arises from the purchase of a parking

garage located near the Greektown Casino in Detroit.

2010] B

ATES

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, LLC

132 A

SSOC

, LLC 53

The Tribe is a federally recognized Indian tribal gov-

ernment that owned 132 Associates and Greektown

Casino, L.L.C. In 2000, the casino sought a license from

the Michigan Gaming Control Board to begin opera-

tions, but it lacked adequate parking. To remedy the

problem, Bates agreed to assign to defendants its right

to purchase a parking garage near the casino. In con-

junction with this assignment, defendants agreed to

make significant repairs to the garage and to give Bates

an option to purchase the garage for $1 at any time

within seven years after the execution of the agree-

ment.

Bates exercised its option to purchase the garage, but

title to the garage was not delivered within the seven-

year option period, and the parties disputed the extent

of repairs needed to render the garage in good condi-

tion. Ultimately, the parties reached a settlement agree-

ment requiring that title to the garage be delivered to

Bates and requiring 132 Associates to pay Bates a total

of $2,250,000 in four installments. After defendants

failed to make their installment payments and refused

to turn over title to the garage, Bates filed suit, alleging

breach of the settlement agreement and requesting an

order requiring defendants to transfer title to the

garage. The trial court entered a preliminary injunction

that required defendants to transfer title to Bates by

June 13, 2008. On June 23, 2008, defendants filed a

counterclaim, alleging that they had transferred title to

the garage to Bates, but Bates owed them $91,619.28,

which it refused to pay.

Bates and defendants filed motions for summary

disposition. Defendants contended that the Tribe’s

chief financial officer (CFO), Victor Matson, lacked

authority to enter into the settlement agreement and

that the waiver of sovereign immunity in the settlement

54 290 M

ICH

52 [Sept

agreement was invalid. The trial court disagreed and

granted summary disposition to Bates.

II. ANALYSIS

The parties’ settlement agreement specifically incor-

porated the waiver of sovereign immunity provided in

§ 10 of their sale agreement. The settlement agreement

stated, in relevant part:

The Tribe’s waiver of sovereign immunity as provided in

Section 10 of the Agreement of Sale attached to the Option

Agreement dated November 3, 2000 is incorporated herein

by reference with regard to any action or proceeding by

Bates to enforce its rights relating to relating to [sic] this

Settlement Agreement, the Tribe’s guaranty, the parties’

agreements, and/or Bates Garage.

Section 10 of the sale agreement provided:

Waiver of Immunity The Seller and the Tribe (in con-

nection with aforemented [sic] guaranty the Tribe) hereby

expressly waive their sovereign immunity from suit should

an action be commenced with respect to this Agreement or

any document executed in connection with this Agreement

of Sale. This waiver (i) is granted to Purchaser, its succes-

sor and assigns; (ii) shall be enforceable in [a] court of

competent jurisdiction; and (iii) the governing law shall be

the internal laws of the State of Michigan. The Seller and

Tribe hereby expressly submit to and consent to the

We review de novo a trial court’s decision on a motion for summary

disposition. Spiek v Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201

(1998). A motion for summary disposition under MCR 2.116(C)(10) is

properly granted if no factual dispute exists, thus entitling the moving

party to judgment as a matter of law. Rice v Auto Club Ins Ass’n, 252

Mich App 25, 31; 651 NW2d 188 (2002). In deciding a motion brought

under subrule (C)(10), a court considers all the evidence, affidavits,

pleadings, and admissions in the light most favorable to the nonmoving

party. Id. at 30-31. The nonmoving party must present more than mere

allegations to establish a genuine issue of material fact for resolution at

trial. Id.at31.

2010] B

ATES

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, LLC

132 A

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, LLC 55

jurisdiction of the Federal District Court for the Eastern

District of Michigan (including all federal courts to

which decisions of the Federal District Court for the

Eastern District of Michigan may be appealed), and the

courts of the State of Michigan (including all courts to

which decisions of the original jurisdiction courts of the

State of Michigan may be appealed). In the event a suit

is commenced, the Seller and Tribe covenant that they

will not dispute the jurisdiction of the United States

District Court for the Eastern District of Michigan and

all federal courts to which decisions of the United States

District Court for the Eastern District of Michigan may

be appealed, and to the jurisdiction of the courts of the

State of Michigan, and all courts to which decisions of

the original jurisdiction courts of the State of Michigan

may be appealed. Seller and Tribe further covenant that

if a suit is commenced on or regarding the subject matter

of this Agreement, it will stipulate and consent to the

jurisdiction of the federal courts or State of Michigan

courts, as described above.

Thus, the settlement agreement incorporated the

Tribe’s waiver of sovereign immunity set forth in the

sale agreement, and this waiver specifically provided

that it was enforceable in a court of competent jurisdic-

tion and that laws of the state of Michigan would

govern.

“As a matter of federal law, an Indian tribe is subject to

suit only where Congress has authorized the suit or the

tribe has waived its immunity.” Kiowa Tribe of Oklahoma

v Mfg Technologies, Inc, 523 US 751, 754; 118 S Ct 1700;

140 L Ed 2d 981 (1998). This immunity applies to a tribe’s

commercial contracts, whether made on or off of an

Indian reservation. Id. at 760. “[T]o relinquish its immu-

nity, a tribe’s waiver must be ‘clear.’ ” C & L Enterprises,

Inc v Citizen Band Potawatomi Indian Tribe of Okla-

homa, 532 US 411, 418; 121 S Ct 1589; 149 L Ed 2d 623

(2001), quoting Oklahoma Tax Comm v Citizen Band

56 290 M

ICH

52 [Sept

Potawatomi Indian Tribe of Oklahoma, 498 US 505, 509;

111 S Ct 905; 112 L Ed 2d 1112 (1991). Likewise, a waiver

cannot be implied and must be unequivocally expressed.

Santa Clara Pueblo v Martinez, 436 US 49, 58; 98 S Ct

1670; 56 L Ed 2d 106 (1978).

In C & L Enterprises, 532 US at 423, the Court ruled

that the respondent Indian tribe had waived its immu-

nity from suit by expressly agreeing to arbitrate dis-

putes with the petitioner, C & L Enterprises, Inc., and

by agreeing that Oklahoma law would govern such

disputes. The tribe contracted with C & L for the

installation of a roof on a building that the tribe owned.

Id. at 414. The parties’ contract was a standard form

agreement requiring that all disputes arising out of or

relating to the contract be resolved by arbitration. The

contract also contained a clause stating that the con-

tract would be governed by the law applicable in the

place where the project was located. Under Oklahoma’s

Uniform Arbitration Act, agreements providing for ar-

bitration in the state of Oklahoma conferred jurisdic-

tion on any court of competent jurisdiction in the state.

Id. at 415-416. Ultimately, an arbitrator rendered an

award in C & L’s favor, andC&Lfiled suit to enforce

the award in an Oklahoma state court of general

jurisdiction. Id. at 416. The tribe sought dismissal of the

suit on the basis of its sovereign immunity, and an

appellate court determined that the tribe had not

waived its immunity with the requisite clarity. Id. at

416-417.

The United States Supreme Court disagreed. The

Court held that the contract’s arbitration provision

required arbitration of all disputes related to the con-

tract and that the contract’s choice-of-law clause made

it clear that the Oklahoma court in whichC&Lfiled

suit was a “ ‘court having jurisdiction’ ” to enforce the

2010] B

ATES

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, LLC

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, LLC 57

arbitrator’s award. Id. at 418-419. The Court stated

that, by selecting Oklahoma law, the parties “effectively

consented to confirmation of the award ‘in accordance

with’ the Oklahoma Uniform Arbitration Act[.]” Id. at

419. The Court recognized that the tribe agreed by

express contract to adhere to the dispute resolution

procedures outlined in the contract. Id. at 420. The

Court acknowledged that there was no requirement

that a waiver contain the words “sovereign immunity”

to be considered explicit rather than implicit. Id. at

420-421. Further, in response to the tribe’s argument

that the form contract designed for private parties

without immunity could not have established a valid

waiver of its tribal immunity, the Court determined

that the contract was not ambiguous and recognized

that the tribe itself had proposed the contract. The

Court thus held that the tribe had clearly consented to

arbitration and to the enforcement of the arbitrator’s

award in an Oklahoma state court. Accordingly, the

Court concluded that the tribe had waived its sovereign

immunity.

Id. at 423.

Because the settlement agreement here incorporated

the Tribe’s waiver of sovereign immunity set forth in

the sale agreement and the waiver unequivocally pro-

vided that it was enforceable in a court of competent

jurisdiction and that laws of the state of Michigan

would govern, the waiver is similar to that in C&L

Enterprises, which stated that Oklahoma law would

govern the dispute and that jurisdiction was proper in

any court of competent jurisdiction in the state of

Oklahoma. Moreover, the waiver in this case is clearer

See also OglalaSiouxTribevC&WEnterprises, Inc, 542 F3d 224,

231 (CA 8, 2008) (holding that the Indian tribe waived its sovereign

immunity with respect to three contracts that contained agreements to

arbitrate as well as other explicit waivers of sovereign immunity).

58 290 M

ICH

52 [Sept

and more explicit than that in C & L Enterprises

because the waiver in that case was simply an arbitra-

tion clause contained in a form agreement. In this case,

neither the settlement agreement nor the sale agree-

ment was a form agreement, and the waiver was clear

and unequivocal. Further, ¶ 11 of the settlement agree-

ment contained additional language stating that the

agreement “shall be governed by and interpreted in

accordance with the laws of the State of Michigan.” As

in C & L Enterprises, this choice-of-law provision ex-

plicitly waived tribal-court jurisdiction. Therefore, be-

cause the waivers of sovereign immunity and tribal-

court jurisdiction were clearly and unambiguously

expressed, they are enforceable. C & L Enterprises, 532

US at 418; Santa Clara Pueblo, 436 US at 58.

The Tribe argues that the purported waivers of

sovereign immunity and tribal-court jurisdiction in the

settlement agreement are invalid because they were not

supported by a resolution of the Tribe’s board of direc-

tors as required under § 44.105 and § 44.109 of the

Tribe’s code. We note that the United States Supreme

Court has not addressed this issue and has not required

anything other than clear, unequivocal language for a

valid waiver. See C & L Enterprises, 532 US at 418;

Santa Clara Pueblo, 436 US at 58. The Tribe argues,

however, that Memphis Biofuels, LLC v Chickasaw

Nation Indus, Inc, 585 F3d 917 (CA 6, 2009), compels

reversal of the trial court’s decision. We are not bound

by decisions of the United States Court of Appeals for

the Sixth Circuit, State Treasurer v Sprague, 284 Mich

App 235, 241-242; 772 NW2d 452 (2009), and we are not

persuaded that Memphis Biofuels warrants reversal.

Memphis Biofuels involved the plaintiff, Memphis

Biofuels, L.L.C. (MBF), and Chickasaw Nation Indus-

tries, Inc. (CNI), a corporation wholly owned by the

2010] B

ATES

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, LLC

132 A

SSOC

, LLC 59

Chickasaw Nation Indian tribe but an entity separate

and distinct from the tribe. In 2006, MBF and CNI

entered into a contract whereby CNI would deliver fuel

and soybean oil to MBF for refinement and resale.

During contract negotiations, MBF insisted on a con-

tractual provision stating that CNI waived any sover-

eign immunity and that its waiver was valid, enforce-

able, and effective. Memphis Biofuels, 585 F3d at 918.

The parties exchanged draft versions of the agreement,

and one of the drafts that CNI’s attorneys reviewed and

approved contained two comments indicating that CNI

board approval was necessary to waive immunity. Id. at

918-919. Ultimately, however, the parties signed the

agreement without obtaining board approval. Id. at

919. Notably, CNI’s charter required board approval in

order to waive sovereign immunity. Id. at 921. After

CNI repudiated the agreement, both parties com-

menced legal action. Id. at 919.

The Sixth Circuit acknowledged that although no

resolution had been passed, both parties signed a

waiver provision waiving all immunities. Id. at 922. The

Sixth Circuit also acknowledged that MBI believed that

CNI had obtained the required approval for its waiver.

Nonetheless, the court held that CNI’s charter con-

trolled and that CNI’s sovereign immunity remained

intact without board approval waiving such immunity.

Id.

A different result was reached in Smith v Hopland

Band of Pomo Indians, 95 Cal App 4th 1; 115 Cal Rptr

2d 455 (2002). In that case, Smith, an architect, entered

into two contracts with the defendant tribe to provide

planning and architectural services. Id. at 3. The con-

tracts included the American Institute of Architects

standard form agreement requiring arbitration of dis-

putes and enforcement of arbitration awards in any

60 290 M

ICH

52 [Sept

court having jurisdiction. Id. After Smith filed suit, the

tribe argued that either a duly enacted tribal ordinance

or a resolution of the tribal council was required to

waive the tribe’s sovereign immunity. Id. at 4-5. Ulti-

mately, the trial court dismissed the action on this basis.

Id. at 5.

On appeal, the court opined that the contractual

language was indistinguishable from that in C&L

Enterprises, and that the only reasonable interpretation

of the terms was that they clearly and explicitly waived

sovereign immunity. Id. at 6. In addressing the tribe’s

argument that the chairperson did not have actual

authority to waive sovereign immunity absent an ordi-

nance or resolution explicitly providing for such a

waiver, the court recognized that the tribe did not

dispute that the chairperson had the authority to nego-

tiate the contracts and execute the final versions that

incorporated the arbitration clause and choice-of-law

provision. Id. at 7. The court also recognized that the

tribe subsequently approved the contracts by resolution

and that Smith gave all members of the tribal council

copies of the contracts at a meeting during which the

council authorized the chairperson to negotiate and

execute the contracts. Id. at 7-8. The court further

recognized that Smith and the tribal council negotiated

the contracts during a subsequent meeting and modi-

fied the contractual terms. Thus, the court held that the

tribal council was fully aware of the contractual terms

and was not presented with a situation in which a tribal

agent signed a contract without authority to act on the

tribe’s behalf. Id. at 8. Thus, the court determined that

the tribe had waived its sovereign immunity. Id. at 12.

The court rejected the tribe’s argument that the

effect of the sovereign-immunity ordinance was to re-

quire the enactment of an ordinance or resolution

2010] B

ATES

SSOC

, LLC

132 A

SSOC

, LLC 61

specifically waiving sovereign immunity notwithstand-

ing that the tribe had authorized one of its officials to

execute the contracts and notwithstanding the tribe’s

subsequent approval of the contracts. Id. at 9. The court

stated that the tribe’s argument assumed that the court

must apply the tribal sovereign-immunity ordinance to

determine that the otherwise binding contracts were

ineffective to waive sovereign immunity because the

explicit waiver was made by contract rather than by

ordinance or resolution. Id. In rejecting that argument,

the court reiterated many of the reasons previously

discussed, but also ruled that federal law rather than

tribal law was applicable to resolve this question and

that, if the court did not refer to federal law, it would

not apply tribal law because the contracts specified that

they were to be governed by California law. Id. at 10.

The court thus determined that the tribe, through its

chairperson and subsequent resolution by the tribal

council, had executed contracts that clearly and explic-

itly waived the tribe’s sovereign immunity. Id. at 12.

The facts of this case warrant a result similar to that

in Smith. Victor Matson, as the Tribe’s CFO, clearly

had authority to enter into the settlement agreement,

as demonstrated by the fact that he was the same

person who signed the deed when title to the garage was

transferred to Bates pursuant to the preliminary in-

junctive order compelling the transfer. Both the Tribe

and Bates made changes to the settlement agreement

during negotiations, and the waiver provisions re-

mained in the final version of the agreement that the

parties executed. Those provisions incorporated the

waiver of sovereign immunity contained in the sale

agreement and specifically provided that the settlement

agreement would be governed by the laws of the state of

Michigan rather than by tribal law. Unlike in Memphis

Biofuels, there is no indication that Bates was aware

62 290 M

ICH

52 [Sept

that a tribal resolution was necessary for the Tribe to

waive its sovereign immunity or tribal-court jurisdic-

tion.

During the months following the execution of the

settlement agreement, neither the Tribe nor the Tribe’s

attorney represented that the agreement was invalid,

and $49,000 was paid to Bates pursuant to the agree-

ment. Not until after Bates filed its complaint did the

Tribe contend that the settlement agreement was un-

enforceable. These factors show that the Tribe was

aware of the settlement negotiations and authorized

Matson to execute the agreement despite the waivers of

sovereign immunity and tribal-court jurisdiction con-

tained therein.

Further, although there was no tribal resolution

specifically pertaining to the waivers of sovereign im-

munity and tribal-court jurisdiction in the settlement

agreement, the Tribe conceded in the trial court that

there was a tribal resolution, Resolution No. 2000-148,

pertaining to the sale agreement and that § 10 of the

sale agreement was incorporated into the settlement

agreement. The Tribe asserted in the trial court that it

had waived its sovereign immunity and tribal-court

jurisdiction with respect to the sale agreement and

option agreement. The Tribe contended that Resolution

No. 2000-148 authorized the waivers of sovereign im-

munity and tribal-court jurisdiction regarding both

agreements and that the only question was whether

those waivers were incorporated into the settlement

agreement. The Tribe argued for the first time in its

motion for reconsideration in the trial court that the

resolution did not waive sovereign immunity with re-

spect to the sale agreement or the option agreement.

The Tribe asserts the same argument in this Court and

contends that the waivers authorized by the resolution

2010] B

ATES

SSOC

, LLC

132 A

SSOC

, LLC 63

pertained only to a guaranty agreement with Bank One.

By conceding that the waivers in the option agreement

and sale agreement were valid, however, the Tribe

waived any argument that they were invalid because

they were not supported by a tribal resolution. A party

may not claim as error on appeal an issue that the party

deemed proper in the trial court because doing so would

permit the party to harbor error as an appellate para-

chute. Marshall Lasser, PC v George, 252 Mich App 104,

109; 651 NW2d 158 (2002).

Accordingly, the circumstances of this case support

the trial court’s determination that the Tribe waived its

sovereign immunity and tribal-court jurisdiction. The

conduct of the parties both during the settlement

agreement negotiations and after the agreement was

executed support this conclusion. The settlement agree-

ment itself contained waivers of sovereign immunity

and tribal-court jurisdiction and incorporated by refer-

ence the clear and unequivocal waivers set forth in the

sale agreement, which the Tribe conceded was sup-

ported by a valid resolution. In light of these facts, the

trial court correctly ruled that the Tribe had waived its

sovereign immunity and tribal-court jurisdiction and

correctly granted summary disposition and entered

judgment in Bates’s favor.

Affirmed.

64 290 M

ICH

52 [Sept

PEOPLE v REDDEN

PEOPLE v CLARK

Docket Nos. 295809 and 295810. Submitted July 7, 2010, at Detroit.

Decided September 14, 2010, at 9:20 a.m.

Robert L. Redden and Torey A. Clark were each charged in the 43rd

District Court with manufacturing 20 or more but less than 200

marijuana plants. At their preliminary examination, defendants

asserted the affirmative defense provided by § 8 of the Michigan

Medical Marihuana Act (MMMA), MCL 333.26428. In support of the

defense, defendants presented testimony from Eric Eisenbud, M.D.,

who had signed authorizations for each defendant, certifying that

they were eligible for registration under the act. Eisenbud had

examined defendants in March 2009, meeting with each for about a

half-hour, including reviewing their medical records, interviewing

them, and physically examining them. The examinations occurred

after the MMMA took effect but before the Department of Commu-

nity Health began issuing registry identification cards under the

MMMA. Eisenbud did not identify defendants’ debilitating medical

conditions in his testimony or in the authorizations he signed. Nor

did defendants present evidence that the amount of marijuana in

their possession was not more than was reasonably necessary for

medical purposes, that they were manufacturing marijuana solely for

medical purposes, or that they suffered from serious or debilitating

medical conditions as defined by MCL 333.26423(a)(2). Although

their medical examinations had taken place before their arrests,

defendants were not issued registry identification cards until after

their arrests. The court, Robert J. Turner, J., dismissed the charges

after finding that defendants had established the defense. On appeal,

the Oakland Circuit Court, Lisa O. Gorcyca, J., reversed, holding that

the district court had abused its discretion by acting as a trier of fact

when it denied the bindover and dismissed the charges. The circuit

court ruled that the affirmative defense needed to be addressed in the

trial court and remanded the case to the district court for further

proceedings. Defendants appealed.

The Court of Appeals held:

1. The MMMA provides two procedural avenues by which a

person facing possible prosecution for violating Michigan’s con-

2010] P

EOPLE V

EDDEN

trolled substances laws may seek to establish use of marijuana for

medical purposes. Individuals may assert immunity from prosecu-

tion under MCL 333.26424 or they may assert an affirmative

defense under MCL 333.26428. Thus, even though defendants did

not possess registry identification cards at the time of their

arrests, the defense provided by the MMMA was available to them,

and the district court did not err by permitting them to raise the

defense.

2. T o establish the medical-purpose defense to a marijuana-

related charge, a defendant without a registry identification card

must satisfy the elements set forth in MCL 333.26428(a). Specifically,

the defendant must show (1) the existence of a bona fide physician-

patient relationship in the course of which the physician recom-

mended the use of marijuana to treat or alleviate the patient’s serious

or debilitating medical condition or the symptoms of the patient’s

serious or debilitating medical condition, (2) that the amount of

marijuana possessed was not more than was reasonably necessary to

ensure the uninterrupted availability of marijuana for the purpose of

treating or alleviating the patient’s condition or symptoms, (3) that

the defendant’s acquisition, possession, cultivation, manufacture,

use, delivery, transfer, or transportation of the specific marijuana

from which the charge arose was for the patient’s medical purposes,

and (4) that the patient had a serious medical condition or had a

debilitating medical condition as defined by MCL 333.26423(a).

There were colorable issues concerning whether a bona fide

physician-patient relationship existed, whether the amount of mari-

juana defendants possessed was reasonable under the statute,

whether the marijuana was being used for medical purposes, and

whether defendants had serious or debilitating medical conditions.

Thus, the district court erred by concluding that defendants satisfied

the requirements of the MMMA as a matter of law, and the circuit

court properly reinstated the charges.

Affirmed and remanded.

O’C

ONNELL

,P.J., concurring, agreed with the majority’s decision

to affirm the circuit court’s reinstatement of the charges against

defendants, but would interpret the statutory defenses more

narrowly. He discussed the history of the act and numerous issues

surrounding the interpretation of the MMMA in an attempt to

establish a framework for addressing those issues, and urged the

legislative and administrative officials authorized to revise the

MMMA or its regulations to take action to clarify the act’s

confusing and conflicting provisions. He also emphasized that the

MMMA does not protect the sale of marijuana under any circum-

stances.

66 290 M

ICH

65 [Sept

1. C

ONTROLLED

UBSTANCES —

EDICAL

ARIJUANA —

RIMINAL

EFENSES —

NREGISTERED

EDICAL

-M

ARIJUANA

SERS

The Michigan Medical Marihuana Act provides two procedural

avenues by which a person facing possible prosecution for a

marijuana-related crime may seek to establish use of marijuana for

medical purposes; individuals may assert immunity from prosecu-

tion under MCL 333.26424 or they may assert an affirmative

defense under MCL 333.26428.

2. C

ONTROLLED

UBSTANCES —

RIMINAL

EFENSES —

EDICAL

ARIJUANA —

NREGISTERED

EDICAL

-M

ARIJUANA

SERS

T o establish the medical-purpose defense to a marijuana-related charge

under the Michigan Medical Marihuana Act, a defendant without a

registry identification card must show (1) the existence of a bona fide

physician-patient relationship in the course of which the physician

recommended the use of marijuana to treat or alleviate the patient’s

serious or the debilitating medical condition or the symptoms of the

patient’s serious or debilitating medical condition, (2) that the

amount of marijuana possessed was not more than was reasonably

necessary to ensure the uninterrupted availability of marijuana for

the purpose of treating or alleviating the patient’s condition or

symptoms, (3) that the defendant’s acquisition, possession, cultiva-

tion, manufacture, use, delivery, transfer, or transportation of the

specific marijuana from which the charge arose was for the patient’s

medical purposes, and (4) that the patient had a serious medical

condition or had a debilitating medical condition as defined in the act

(MCL 333.26423[a], 333.26428[a]).

Michael A. Cox, 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.

Robert Mullen and Associates, PLLC (by Robert S.

Mullen), for defendants.

Amicus Curiae:

Dykema Gossett PLLC (by Shaun M. Johnson and

Nadav Ariel), Daniel S. Korobkin, Michael J. Steinberg,

and Kary L. Moss for the American Civil Liberties

Union Fund of Michigan.

2010] P

EOPLE V

EDDEN

Before: O’C

ONNELL

,P.J., and M

ETER

and O

WENS

,JJ.

ETER

, J. In this case involving the Michigan Medical

Marihuana Act (MMMA), MCL 333.26421 et seq., defen-

dant Robert Lee Redden and defendant Torey Alison

Clark appeal by leave granted a December 10, 2009,

circuit court order reversing for each defendant the

district court’s dismissal of a single count of manufac-

turing 20 or more but less than 200 marijuana plants,

MCL 333.7401(2)(d)(ii). We affirm the circuit court’s

decision to reinstate the charges.

I. FACTS

This case arose from the execution of a search

warrant at defendants’ residence in Madison Heights,

which resulted in the discovery of approximately 1

ounces of marijuana and 21 marijuana plants. Officer

Kirk Walker and Officer Mark Moine of the Madison

Heights Police Department testified that in the evening

of March 30, 2009, they arrived at the residence with

three other officers to execute a search warrant for the

purpose of looking for marijuana and other illegal

substances.

Defendants and another unidentified individual were

found in the residence and were secured by the officers.

The officers found proof of residency for defendants and

$531 in cash. The officers also found three bags of

marijuana in a bedroom. In addition, they found 21

marijuana plants, which were all between three and

four inches tall, on the floor of a closet in the same

bedroom. Field tests of these items were positive for

marijuana. The officers did not find any scales, small

plastic bags, or packaging materials in the residence.

At some point during the search, Redden stated that

he was in pain. Defendants also each turned over

68 290 M

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65 [Sept

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documents regarding their use of marijuana for medical

purposes. The documents, which were dated March 3,

2009, for Redden, and March 4, 2009, for Clark, were

admitted into evidence. Each document stated:

I, Eric Eisenbud, MD, am a physician, duly licensed in

the State of Michigan. I have completed a full assessment of

this patient’s medical history, and I am treating this

patient for a terminal illness or a debilitating condition as

defined in Michigan’s medical marijuana law. I completed a

full assessment of this patient’s current medical condition.

This assessment was made in the course of a bona fide

physician-patient relationship. I have advised the patient

about the potential risks and benefits of the medical use of

marijuana. I have formed my professional opinion that the

potential benefits of the medical use of marijuana would

likely outweigh any health risks for the patient. This

patient is LIKELY to receive therapeutic or palliative

benefit from the medical use of marijuana to treat or

alleviate a serious or debilitating medical condition or

symptoms of the serious or debilitating medical condition.

The MMMA went into effect on December 4, 2008,

but, according to Walker, the state of Michigan did not

begin issuing registry identification cards until April 4,

2009. The Michigan Department of Community Health

issued medical-marijuana registry identification cards

to each defendant on April 20, 2009, but this was after

the search in this case took place.

In the course of the preliminary examination, defen-

dants asserted the affirmative defense contained in § 8

of the MMMA, MCL 333.26428.

In support of the

MCL 333.26428, which is quoted in its entirety later in this opinion,

states that a medical-purpose defense shall be presumed valid if, among

other things,

[a] physician has stated that, in the physician’s professional

opinion, after having completed a full assessment of the patient’s

medical history and current medical condition made in the course

2010] P

EOPLE V

EDDEN

PINION OF THE

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defense, defendants presented testimony from Eric

Eisenbud, M.D., who testified that he had attended the

University of Colorado’s medical school and had been a

physician for 37 years. He was licensed to practice in

seven states, including Michigan, and was board-

certified in ophthalmology. Dr. Eisenbud also had

worked in the past as an emergency room practitioner

and a family practitioner. At the time of the preliminary

examination, Dr. Eisenbud had worked for the past 19

months for The Hemp and Cannabis Foundation

(THCF) Medical Clinic. He testified that he is “not from

Michigan” and was currently working in six out of the

seven states in which he was licensed to practice medi-

cine, although he later suggested that he was working

in all seven states.

Dr. Eisenbud testified that defendants were his pa-

tients and that he examined each of them on March 3,

2009, when both were seeking to be permitted to use

marijuana under the MMMA. A clinic technician

screened defendants before their appointment in a

telephone interview and by reviewing their medical

records. Dr. Eisenbud met with each defendant for

about a half-hour, spending 5 minutes reviewing the

medical records and about 10 minutes on the physical

examination; he also interviewed them. During their

10-minute physical examinations, Dr. Eisenbud exam-

ined both defendants’ general appearance and skin,

listened to their lungs, examined their abdomens, ex-

of a bona fide physician-patient relationship, the patient is likely to

receive therapeutic or palliative benefit from the medical use of

marihuana to treat or alleviate the patient’s serious or debilitating

medical condition or symptoms of the patient’s serious or debili-

tating medical condition[.] [MCL 333.26428(a)(1).]

We note that Dr. Eisenbud did not indicate where his “home base” is,

he did not indicate where his examinations of defendants took place, and

he did not indicate where the TCHF Medical Clinic is located.

70 290 M

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65 [Sept

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amined their heads and necks, did a neurological and

cardiovascular assessment, and assessed their mental

health.

Dr. Eisenbud testified that he signed the authoriza-

tion for each defendant in his professional capacity

because each qualified under the MMMA and each

would benefit medically from using marijuana. He

opined that his relationship with each defendant was a

bona fide physician-patient relationship because he

interviewed defendants, examined them, and looked at

their medical records in order to gain a full understand-

ing of their medical problems. Dr. Eisenbud acknowl-

edged that the THCF Medical Clinic did not require

patients to bring their complete medical records. The

records from Redden were from two years before his

examination by Dr. Eisenbud, and Clark’s records were

from a year before her examination by Dr. Eisenbud.

Regarding Redden, Dr. Eisenbud concluded that he

had a debilitating condition that caused pain, satisfying

the MMMA’s requirements. Regarding Clark, Dr.

Eisenbud concluded from her medical records and in-

terviewing her that she suffered from nausea. Dr.

Eisenbud did not testify regarding what caused Red-

den’s pain or Clark’s nausea. Dr. Eisenbud only exam-

ined each defendant once. He viewed the only risk of

defendants’ using marijuana as related to driving; he

indicated that they should not drive within four hours

of using it.

Dr. Eisenbud testified that defendants had not con-

sulted with any other doctors regarding medical-

marijuana authorization before their appointments

with him. According to Dr. Eisenbud, both defendants

were using other narcotics for their conditions, and he

opined that access to marijuana would give them the

opportunity to wean themselves off of those narcotics.

2010] P

EOPLE V

EDDEN

PINION OF THE

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The parties stipulated that Redden had two previous

convictions for possession of marijuana with intent to

distribute.

During the preliminary examination, the prosecution

argued that defendants were not entitled to assert the

affirmative defense from § 8 of the MMMA because

neither had a registry identification card at the time of

the offense as required by § 4(a) of the MMMA, MCL

333.26424(a).

The prosecution acknowledged that de-

fendants could not have obtained a card previously

because the state had yet to begin issuing them. How-

ever, the prosecution contended that defendants were

required to abstain from marijuana use until they were

able to obtain a card. Defendants argued that the plain

language of § 8 of the MMMA did not require possession

of a card.

The prosecution argued that under the probable-

cause standard, the evidence showed that defendants

were engaged in manufacturing marijuana. The pros-

ecution contended that defendants had failed to comply

with § 8 of the MMMA because they had not shown a

bona fide patient-physician relationship with Dr. Eisen-

bud and also had failed to establish that they possessed

MCL 333.26424(a) provides:

A qualifying patient who has been issued and possesses a

registry identification card shall not be subject to arrest, prosecu-

tion, or penalty in any manner, or denied any right or privilege,

including but not limited to civil penalty or disciplinary action by

a business or occupational or professional licensing board or

bureau, for the medical use of marihuana in accordance with this

act, provided that the qualifying patient possesses an amount of

marihuana that does not exceed 2.5 ounces of usable marihuana,

and, if the qualifying patient has not specified that a primary

caregiver will be allowed under state law to cultivate marihuana

for the qualifying patient, 12 marihuana plants kept in an en-

closed, locked facility. Any incidental amount of seeds, stalks, and

unusable roots shall also be allowed under state law and shall not

be included in this amount.

72 290 M

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65 [Sept

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an amount of marijuana that was not more than was

reasonably necessary to ensure uninterrupted availabil-

ity for the purpose of treating their conditions. Defen-

dants argued that they met the requirements of § 8

because each had a signed authorization from a licensed

physician with whom he or she had a bona fide

physician-patient relationship and who concluded that

each had conditions covered under the MMMA. Defen-

dants also argued that the amount of marijuana was

reasonably necessary.

II. LOWER-COURT RULINGS

The district court noted that the MMMA “is probably

one of the worst pieces of legislation I’ve ever seen in

my life” and went on to state:

[S]ection 8 says section 4 doesn’t really have any mean-

ing. If you don’t have a card and you happen to be arrested,

just make sure you have a doctor who will testify in court

that you needed medical marijuana in order to have that

case dismissed.

The burden’s on defendant at the evidentiary hearing to

have section 8 apply to show what a reasonable amount of

marijuana is. It doesn’t say what a reasonable amount is. It

would seem practical to me that they would have included

the same amount that was in section 4 if they believed that

was a reasonable amount. But, instead, they just leave it to,

I guess, every other judge’s decision as to what they think

is reasonable.

It—it’s just one of the worst pieces of legislation I’ve

ever seen....[I]t appears that section 8, the intent of it is

to allow anyone who possesses marijuana with a doctor’s

certification, I guess at the time of a hearing, that the case

would have to be dismissed. Because it very clearly says in

section [8]b that the charges shall be dismissed following

an evidentiary hearing where the person shows the ele-

2010] P

EOPLE V

EDDEN

PINION OF THE

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ments listed in subsection A. Well, one of the elements in

subsection A is possessing a reasonable quantity of mari-

juana.

I still don’t know what a reasonable quantity of mari-

juana is unless I go to section 4. Section 4 says, 2-point-5

ounces, I believe, 12 plants, but you also have to have a

valid registration card.

So, these people possessed no registration card, but yet

they want the benefit of section 4 to apply to section 8.

The district court also noted that although Dr. Eisen-

bud testified regarding defendants’ legitimate need to

use marijuana for medical purposes, there was no

testimony regarding what was a reasonably necessary

amount for defendants to possess. The district court

concluded that it would simply apply the amount of 2.5

ounces and 12 plants set by § 4 as what was reasonably

necessary, and it granted defendants’ motion to dismiss,

explaining:

For that reason, I believe that section 8 entitles the

defendants to a dismissal, even though they did not possess

the valid medical card, because section 8 says if they can

show the fact that a doctor believed they were likely to

receive the therapeutic benefit, and this doctor testified to

that. And Doctor Eisenbud is a physician, licensed by the

State of Michigan. And that’s the only requirement that

the statute has. You don’t have to be any type of physician,

you just have to be a licensed physician by the State of

Michigan.

So, based on that, I find section 8 does apply. And I

believe I’m obligated to dismiss this matter based on

section 8 of the statute.

Regarding the prosecution’s request for a clarification

of whether the doctor’s testimony rose to the level of

establishing a bona fide physician-patient relationship,

the district court stated:

74 290 M

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65 [Sept

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Based on his testimony, he indicated that he—he read

their medical records, he saw them, and I think his total

time was about a half an hour totally spent with them,

which, based on my own personal experience, I don’t find

inconsistent with my own doctor. So I guess that’s a bona

fide relationship.

The district court entered an order of dismissal on July

17, 2009.

The prosecution appealed the order of dismissal in

the circuit court. On December 18, 2009, the circuit

court issued an opinion and order reversing the district

court’s order and remanding the case to the district

court for further proceedings. The circuit court ruled

that the district court had abused its discretion by not

binding defendants over for trial because it had improp-

erly acted as a trier of fact. The circuit court ruled that,

in this case, the affirmative defense must be addressed

in the trial court in order for proper discovery and

rebuttal to take place.

The circuit court also considered questionable the

issue regarding whether defendants should be allowed

to raise the affirmative defense at all, because defen-

dants did not have valid registry identification cards as

required by § 4 of the MMMA, together possessed more

than the amount of marijuana permitted under § 4, and

did not keep their marijuana plants in “an enclosed,

locked facility,” which is also required under § 4.

The circuit court then emphasized that there was a

disputed question regarding whether Dr. Eisenbud had

a bona fide physician-patient relationship with defen-

dants. The circuit court concluded:

[T]here was competent evidence in support of the bin-

dover. For the district judge to deny the bindover was an

abuse of discretion. Specifically, the district judge failed to

properly exercise his judgment by relying solely on Dr.

2010] P

EOPLE V

EDDEN

PINION OF THE

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Eisenbud’s testimony, and by ignoring the evidence pre-

sented by the People regarding Defendants’ actions that

showed they did not meet the criteria of the affirmative

defense. The evidence in support of the affirmative defense

was not developed sufficiently to support the district

judge’s decision to deny the bindover.

III. A REGISTRY IDENTIFICATION CARD IS NOT REQUIRED

FOR A § 8 DEFENSE

Defendants argue that the circuit court erred by

ruling that because defendants did not obtain registry

identification cards in order to satisfy the conditions of

§ 4 of the MMMA, they could not assert the affirmative

defense contained in § 8.

A. STANDARD OF REVIEW

This issue presents a question of statutory interpre-

tation. We review de novo issues of statutory interpre-

tation. 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 con-

The circuit court’s ruling was somewhat ambiguous with regard to

this issue; it stated that “it is questionable whether Defendants are

entitled to assert the affirmative defense contained in the MMMA.”

76 290 M

ICH

65 [Sept

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sider 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).

B. ANALYSIS

This issue involves §§ 4, 7, and 8 of the MMMA.

Section 4 provides, in relevant part:

(a) A qualifying patient who has been issued and pos-

sesses a registry identification card shall not be subject to

arrest, prosecution, or penalty in any manner, or denied

any right or privilege, including but not limited to civil

penalty or disciplinary action by a business or occupational

or professional licensing board or bureau, for the medical

use of marihuana in accordance with this act, provided that

the qualifying patient possesses an amount of marihuana

that does not exceed 2.5 ounces of usable marihuana, and,

if the qualifying patient has not specified that a primary

caregiver will be allowed under state law to cultivate

marihuana for the qualifying patient, 12 marihuana plants

kept in an enclosed, locked facility. Any incidental amount

of seeds, stalks, and unusable roots shall also be allowed

under state law and shall not be included in this amount.

***

a minor for acting in accordance with this act, unless the

person’s behavior is such that it creates an unreasonable

danger to the minor that can be clearly articulated and

substantiated.

(d) There shall be a presumption that a qualifying

patient or primary caregiver is engaged in the medical use

of marihuana in accordance with this act if the qualifying

patient or primary caregiver:

(1) is in possession of a registry identification card; and

2010] P

EOPLE V

EDDEN

PINION OF THE

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(2) is in possession of an amount of marihuana that does

not exceed the amount allowed under this act. The pre-

sumption may be rebutted by evidence that conduct related

to marihuana was not for the purpose of alleviating the

qualifying patient’s debilitating medical condition or symp-

toms associated with the debilitating medical condition, in

accordance with this act.

[

]

[MCL 333.26424.]

Section 8 provides:

(a) Except as provided in section 7 [MCL 333.26427], a

patient and a patient’s primary caregiver, if any, may assert

the medical purpose for using marihuana as a defense to

any prosecution involving marihuana, and this defense

shall be presumed 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

It is not clear how the immunity from arrest provided in § 4(a)

interplays with the rebuttable presumption in § 4(d)(2). However, that

issue is not before the Court today.

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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).

strates the patient’s medical purpose for using marihuana

pursuant to this section, the patient and the patient’s

primary caregiver shall not be subject to the following for

the patient’s medical use of marihuana:

(1) disciplinary action by a business or occupational or

professional licensing board or bureau; or

(2) forfeiture of any interest in or right to property.

[MCL 333.26428.]

As an initial matter, the plain language of § 8 does

not place any restriction on defendants’ raising of the

affirmative defense. Nevertheless, the prosecution ar-

gues that the affirmative defense under § 8 is unavail-

able to defendants because they did not possess valid

registry identification cards at the time of the offense,

in violation of § 4. The prosecution bases its position on

the language in § 8(a) that provides: “Except as pro-

vided 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 prosecution involv-

ing marihuana, and this defense shall be presumed

valid....”MCL333.26428(a) (emphasis added).

Section 7(b) provides a host of instances for which

the protection of the affirmative defense under § 8

would not be permitted, but none of those situations is

at issue in this case. See MCL 333.26427(b).

However,

the prosecution points to § 7(a), which provides that

“[t]he medical use of marihuana is allowed under state

Section 7 states:

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law to the extent that it is carried out in accordance

(a) The 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.

(b) This act shall not permit any person to do any of the

following:

(1) Undertake any task under the influence of marihuana,

when doing so would constitute negligence or professional mal-

practice.

(2) Possess marihuana, or otherwise engage in the medical use

of marihuana:

(A) in a school bus;

(B) on the grounds of any preschool or primary or secondary

school; or

(3) Smoke marihuana:

(A) on any form of public transportation; or

(B) in any public place.

(4) Operate, navigate, or be in actual physical control of any

motor vehicle, aircraft, or motorboat while under the influence of

marihuana.

(5) Use marihuana if that person does not have a serious or

debilitating medical condition.

(1) A government medical assistance program or commercial or

non-profit health insurer to reimburse a person for costs associ-

ated with the medical use of marihuana.

(2) An employer to accommodate the ingestion of marihuana in

any workplace or any employee working while under the influence

of marihuana.

(d) Fraudulent representation to a law enforcement official of

any fact or circumstance relating to the medical use of marihuana

to avoid arrest or prosecution shall be punishable by a fine of

$500.00, which shall be in addition to any other penalties that may

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with the provisions of this act.” MCL 333.26427(a). The

prosecution contends that this section justifies its posi-

tion that § 4 must be adhered to in order for a defendant

to invoke § 8 because the affirmative defense is only

available to a defendant who complies with the other

provisions of the MMMA.

However, as defendants argue, this position ignores

that the MMMA provides two ways in which to show

legal use of marijuana for medical purposes in accor-

dance with the act. Individuals may either register and

obtain a registry identification card under § 4 or remain

unregistered and, if facing criminal prosecution, be

forced to assert the affirmative defense in § 8.

The plain language of the MMMA supports this view.

Section 4 refers to a “qualifying patient who has been

issued and possesses a registry identification card” and

protects a qualifying patient from “arrest, prosecution,

or penalty in any manner....”

MCL 333.26424(a). On

the other hand, § 8(a) refers only to a “patient,” not a

qualifying patient, and only permits a patient to “assert

the medical purpose for using marihuana as a defense

to any prosecution involving marihuana ....” MCL

333.26428(a). Thus, adherence to § 4 provides protec-

tion that differs from that of § 8. Because of the

differing levels of protection in §§ 4 and 8, the plain

language of the statute establishes that § 8 is applicable

for a patient who does not satisfy § 4.

apply for making a false statement or for the use of marihuana

other than use undertaken pursuant to this act.

(e) All other acts and parts of acts inconsistent with this act do

not apply to the medical use of marihuana as provided for by this

act. [MCL 333.26427.]

A “[q]ualifying patient” is defined as “a person who has been

diagnosed by a physician as having a debilitating medical condition.”

MCL 333.26423(h).

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The language of the ballot proposal itself supports

this interpretation. The ballot proposal, Proposal 08-1,

stated that the law would do the following:

• Permit physician approved use of marijuana by regis-

tered patients with debilitating medical conditions includ-

ing cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other

conditions as may be approved by the Department of

Community Health.

• Permit registered individuals to grow limited amounts of

marijuana for qualifying patients in an enclosed, locked

facility.

• Require Department of Community Health to establish

an identification card system for patients qualified to use

marijuana and individuals qualified to grow marijuana.

• Permit registered and unregistered patients and primary

caregivers to assert medical reasons for using marijuana as

a defense to any prosecution involving marijuana. [Empha-

sis added.]

The ballot proposal explicitly informed voters that the

law would permit registered and unregistered patients

to assert medical reasons for using marijuana as a

defense to any prosecution involving marijuana. The

language supports the view that registered patients

under § 4 and unregistered patients under § 8 would be

able to assert medical use of marijuana as a defense.

Accordingly, we hold that the district court did not err

by permitting defendants to raise the affirmative de-

fense even though neither satisfied the registry-

identification-card requirement of § 4.

Although defendants do not raise this as an issue on appeal, the

prosecution argues that a § 8 defense was not viable because the marijuana

in question was not kept in an “enclosed, locked facility.” We note that the

language concerning an “enclosed, locked facility” is set forth in the context

of § 4, not in the context of § 8. MCL 333.26424(a). Nevertheless, as with the

discovery issue mentioned in footnote 11, we decline to address this issue

without the benefit of full briefing by the parties. Presumably further

proceedings will take place with regard to this issue.

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IV. THE CIRCUIT COURT PROPERLY REVERSED

THE BINDOVER DECISION

Defendants next contend that the circuit court erred

by holding that the district court was precluded from

ruling that defendants’ manufacturing marijuana was

permitted under the MMMA. We find no basis on which

to reverse the circuit court’s disposition because there

are indeed triable issues in this case and the district

court improperly acted as a trier of fact in denying the

bindover.

A. STANDARD OF REVIEW

“A district court’s ruling that alleged conduct falls

within the scope of a criminal law is a question of law

that is reviewed de novo for error, but a decision to bind

over a defendant based on the factual sufficiency of the

evidence is reviewed for an abuse of discretion.” People

v Henderson, 282 Mich App 307, 312; 765 NW2d 619

(2009). When reviewing the bindover decision, a circuit

court must consider the entire record of the preliminary

examination and not substitute its judgment for that of

the district court. Id. at 312-313. This Court reviews de

novo the bindover decision to determine whether the

district court abused its discretion, giving no deference

to the circuit court’s decision. Id. at 313.

B. ANALYSIS

“The primary function of a preliminary examination

is to determine if a crime has been committed and, if so,

if there is probable cause to believe that the defendant

committed it.” People v Glass (After Remand), 464 Mich

266, 277; 627 NW2d 261 (2001). Probable cause is

established by evidence “sufficient to cause a person of

ordinary prudence and caution to conscientiously enter-

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tain a reasonable belief of the accused’s guilt.” People v

Yost, 468 Mich 122, 126; 659 NW2d 604 (2003) (citation

and quotation marks omitted). In order to establish

that a crime has been committed, the prosecution need

not prove each element beyond a reasonable doubt, but

must present some evidence of each element. See id.If

the evidence conflicts or raises a reasonable doubt

concerning the defendant’s guilt, the defendant should

nevertheless be bound over for trial, at which the trier

of fact can resolve the questions. Id. at 128.

This Court has recognized “that affirmative defenses in

criminal cases should typically be presented and consid-

ered at trial and that a preliminary examination is not a

trial.” People v W altonen, 272 Mich App 678, 690 n 5; 728

NW2d 881 (2006). In W altonen, this Court went on to note

that in a situation in which the defense is complete and

there are no conflicting facts regarding the defense, it

could be argued that there would be no probable cause to

believe a crime had been committed. Id.

The district court must consider not only the weight

and competency of the evidence, but also the credibility

of the witnesses, and it may consider evidence in

defense.

People v King, 412 Mich 145, 153; 312 NW2d

629 (1981). As noted, however, the district court cannot

discharge a defendant if the evidence conflicts or raises

reasonable doubt concerning a defendant’s guilt be-

cause this presents an issue for the trier of fact. Id.at

153-154.

There was evidence in this case that the defense was

not complete, cf. Waltonen, 272 Mich App at 690 n 5, and

With regard to preliminary examinations, MCL 766.12 permits “wit-

nesses for the prisoner, if he [has] any, [to] be sworn, examined and

cross-examined,” and MCR 6.110(C) permits “[e]ach party [to] subpoena

witnesses, offer proofs, and examine and cross-examine witnesses at the

preliminary examination.”

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there were colorable issues for the trier of fact, see

King, 412 Mich at 153-154. Specifically, we conclude

that there were colorable issues concerning whether a

bona fide physician-patient relationship existed,

whether the amount of marijuana defendants possessed

was reasonable under the statute, whether the mari-

juana in question was being used for medical purposes,

and whether defendants suffered from serious or debili-

tating medical conditions.

1. BONA FIDE PHYSICIAN-PATIENT RELATIONSHIP

MCL 333.26428(a)(1) states that a medical-purpose

defense shall be presumed valid if, among other require-

ments,

[a] physician has stated that, in the physician’s profes-

sional opinion, after having completed a full assessment of

the patient’s medical history and current medical condition

made in the course of a bona fide physician-patient rela-

tionship, the patient is likely to receive therapeutic or

palliative benefit from the medical use of marihuana to

treat or alleviate the patient’s serious or debilitating medi-

cal condition or symptoms of the patient’s serious or

debilitating medical condition[.]

We conclude that there was evidence in this particu-

lar case that the doctor’s recommendations did not

result from assessments made in the course of bona fide

physician-patient relationships.

Dr. Eisenbud testified

that he was board-certified in ophthalmology. He an-

swered, “That’s right,” when asked the following ques-

We reject defendants’ argument that the prosecution waived the

issue concerning whether a bona fide physician-patient relationship

existed. First, the prosecution clearly did raise the issue below. Second,

the district court had a duty to determine whether there was an issue for

trial; in doing so, it was obligated to review § 8 in its entirety to determine

whether any triable issues existed.

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tion: “So, your sole employment, at this point, is to review

people to see whether or not you think they can have

marijuana under the Michigan Medical Marijuana—or

any other medical marijuana law, correct?” He testified

that he saw Clark and Redden once each and was cur-

rently working in at least six states. He refused to divulge

what defendants’ debilitating medical conditions were. Dr.

Eisenbud indicated that he was not scheduled to see

defendants again until they were due to renew their

documentation for using marijuana for medical purposes.

The MMMA does not define the phrase “bona fide

physician-patient relationship.” When words or phrases

are not defined in a statute, a dictionary may be consulted.

People v Peals, 476 Mich 636, 641; 720 NW2d 196 (2006).

Random House Webster’s College Dictionary (1997) de-

fines “bona fide” as “1. made, done, etc., in good faith;

without deception or fraud. 2. authentic; genuine; real.”

We do not intend to legislate from the bench and define

exactly what must take place in order for a bona fide

physician-patient relationship to exist. We do conclude,

however, that the specific facts in this case, as set forth in

the previous paragraph, were sufficient to raise an issue

for the trier of fact concerning whether the doctor’s

recommendations resulted from assessments made in the

course of bona fide physician-patient relationships be-

tween Dr. Eisenbud and each defendant. Indeed, the facts

at least raise an inference that defendants saw Dr. Eisen-

bud not for good-faith medical treatment but in order to

obtain marijuana under false pretenses. Accordingly, the

district court erred by finding as a matter of law that

defendants had satisfied all the requirements for a § 8

defense.

2. AMOUNT OF MARIJUANA POSSESSED

MCL 333.26428(a)(2) states that the § 8 affirmative

defense will not be presumed valid unless

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[t]he patient and the patient’s primary caregiver, if any,

were collectively in possession of a quantity of marihuana

that was not more than was reasonably necessary to ensure

the uninterrupted availability of marihuana for the pur-

pose of treating or alleviating the patient’s serious or

debilitating medical condition or symptoms of the patient’s

serious or debilitating medical condition....

There was no testimony or evidence presented regard-

ing whether the amount of marijuana possessed by

defendants was “not more than was reasonably neces-

sary to ensure the uninterrupted availability of mari-

huana for the purpose of treating or alleviating the

patient’s... condition or symptoms ....” Id. Defen-

dants were found in possession of approximately 1

ounces of marijuana and 21 marijuana plants. The

district court addressed this element of the affirmative

defense and concluded that because the amount of

marijuana, when divided between defendants, was less

than that of the 2

ounces and 12 marijuana plants

permitted under § 4, this portion of the affirmative

defense was satisfied.

However, the plain language of the statute does not

support that the amount stated in § 4 is equivalent to

the “reasonably necessary” amount under § 8(a)(2).

Indeed, if the intent of the statute were to have the

amount in § 4 apply to § 8, the § 4 amount would have

been reinserted into § 8(a)(2), instead of the language

concerning an amount “reasonably necessary to en-

sure... uninterrupted availability ....” MCL

333.26428(a)(2). Without any evidence on this element

of the affirmative defense, the district court could not

have properly found the affirmative defense established

as a matter of law. There was a colorable question of fact

concerning whether the amount possessed was in accor-

dance with the statute.

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3. PURPOSE OF THE MARIJUANA IN QUESTION

MCL 333.26428(a)(3) indicates that, for the medical-

purpose defense to be valid, evidence must show that

[t]he patient and the patient’s primary caregiver, if any,

were engaged in the acquisition, possession, cultivation,

manufacture, use, delivery, transfer, or transportation of

marihuana or paraphernalia relating to the use of mari-

huana to treat or alleviate the patient’s serious or debili-

tating medical condition or symptoms of the patient’s

serious or debilitating medical condition.

There was testimony and evidence that Redden and

Clark could benefit from the medical use of marijuana.

However, although an inference could be made that the

specific marijuana they allegedly manufactured was being

manufactured for medical purposes, there was no explicit

testimony or other evidence establishing this fact. There-

fore, we find that there was considerable doubt concern-

ing whether defendants satisfied this portion of the de-

fense, see King, 412 Mich at 153-154, and the district

court therefore should not have concluded that the de-

fense was established as a matter of law.

4. SERIOUS OR DEBILITATING MEDICAL CONDITIONS

Dr. Eisenbud did not identify the nature of defen-

dants’ debilitating medical conditions beyond stating

that Redden had “pain” and Clark had “nausea.” Sec-

tion § 7(b)(5) states that the MMMA “shall not permit

any person to . . . [u]se marihuana if that person does

not have a serious or debilitating medical condition.”

MCL 333.26427(b)(5). Section 3, the definitional section

of the MMMA, states in relevant part:

(a) “Debilitating medical condition” means 1 or more of

the following:

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(1) Cancer, glaucoma, positive status for human immu-

nodeficiency virus, acquired immune deficiency syndrome,

hepatitis C, amyotrophic lateral sclerosis, Crohn’s disease,

agitation of Alzheimer’s disease, nail patella, or the treat-

ment of these conditions.

(2) A chronic or debilitating disease or medical condition

or its treatment that produces 1 or more of the following:

cachexia or wasting syndrome; severe and chronic pain;

severe nausea; seizures, including but not limited to those

characteristic of epilepsy; or severe and persistent muscle

spasms, including but not limited to those characteristic of

multiple sclerosis.

(3) Any other medical condition or its treatment ap-

proved by the department, as provided for in [MCL

333.26425(a)]. [MCL 333.26423(a).]

Section 3 does not define the phrase “serious medical

condition.” See MCL 333.26423.

In his written documents, Dr. Eisenbud stated that

each defendant was likely to receive benefit from using

marijuana to “treat or alleviate a serious or debilitating

medical condition ....”However, he stated only that he

was treating each defendant for “a terminal illness or a

debilitating condition as defined in Michigan’s medical

marijuana law.” He then stated at the preliminary

examination that Redden had a “debilitating condi-

tion.” When asked what the condition was, he replied

“pain.” Dr. Eisenbud stated that Clark’s debilitating

condition was “nausea.”

We conclude that defendants did not establish at the

preliminary examination as a matter of law that they had

serious or debilitating medical conditions as required by

the MMMA. With regard to the phrase “serious medical

condition,” Random House Webster’s College Dictionary

(1997) defines “serious,” in this context, as “weighty,

important, or significant” and “giving cause for apprehen-

sion; critical or threatening[.]” Without knowing the na-

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ture of defendants’ medical conditions, it is not possible to

determine whether they are “serious.” With regard to the

phrase “debilitating medical condition,” MCL

333.26423(a)(2) indicates that this phrase includes “[a]

chronic or debilitating disease or medical condition or its

treatment that produces 1 or more of the following:...

severe and chronic pain; severe nausea....”Dr.Eisenbud

indicated that Redden suffered merely from “pain” and

that Clark suffered merely from “nausea.” This evidence

was not sufficient to satisfy the definition set forth in MCL

333.26423(a)(2). The district court therefore erred by

concluding that defendants satisfied the requirements of

the MMMA as a matter of law. Whether each defendant

suffered from a serious or debilitating medical condition is

yet another matter for further proceedings.

The circuit court’s decision to reverse the district

court’s bindover ruling is affirmed, and this case is

remanded for further proceedings. We do not retain

jurisdiction.

WENS

, J., concurred.

O’C

ONNELL

,P.J. (concurring). I concur with the majori-

ty’s decision to affirm the circuit court’s decision to

reinstate the charges against defendants, but write sepa-

rately because I interpret the statutory defenses at issue

more narrowly than does the majority, and also to elabo-

rate on issues raised in the briefs and at oral argument but

not fully addressed by the majority opinion.

Defendants tangentially raise the issue regarding whether the pros-

ecution is entitled to discovery of their medical records. The prosecution

does not substantively address this argument in its appellate brief. We

find that this issue is not currently ripe for review and decline to address

it without the benefit of full briefing by the parties. The circuit court was

evidently cognizant of the implications of further discovery, and presum-

ably further proceedings will occur with respect to it.

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On November 4, 2008, the Michigan Medical Mari-

huana Act (MMMA), MCL 333.26421 et seq., was passed

by initiative and went into effect soon thereafter. It is

without question that this act has no effect on federal

prohibitions of the possession or consumption of mari-

juana.

The Controlled Substances Act, 21 USC 801 et

seq., classifies marijuana as a schedule 1 substance, 21

USC 812(c)(10), meaning that Congress recognizes no

acceptable medical uses for it, and its possession is

generally prohibited. See Gonzales v Raich, 545 US 1,

27; 125 S Ct 2195; 162 L Ed 2d 1 (2005); United States

v Oakland Cannabis Buyers’ Coop, 532 US 483, 491;

121 S Ct 1711; 149 L Ed 2d 722 (2001). As a federal

court in Michigan recently recognized, “It is indisput-

able that state medical-marijuana laws do not, and

cannot, supercede federal laws that criminalize the

possession of marijuana.” United States v Hicks, 722 F

Supp 2d 829, 833 (ED Mich, 2010), citing Gonzales, 545

US at 29 (“The Supremacy Clause unambiguously

provides that if there is any conflict between federal and

state law, federal law shall prevail.”), United States v

$186,416.00 in US Currency, 590 F3d 942, 945 (CA 9,

2010) (“The federal government has not recognized a

legitimate medical use for marijuana, however, and

there is no exception for medical marijuana distribution

or possession under the federal Controlled Substances

Act”), United States v Scarmazzo, 554 F Supp 2d 1102,

1109 (ED Cal, 2008) (“Federal law prohibiting the sale

of marijuana is valid, despite any state law suggesting

medical necessity for marijuana”), and United States v

Landa, 281 F Supp 2d 1139, 1145 (ND Cal, 2003)

(“[O]ur Congress has flatly outlawed marijuana in this

“Marijuana” and “marihuana” are both acceptable spellings for the

name of this drug. The spelling “marihuana” is used in the Public Health

Code, MCL 333.1101 et seq., but “marijuana” is the more commonly used

spelling and so will be used throughout this opinion.

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country, nationwide, including for medicinal pur-

poses.”). Accordingly, “the MMMA has no effect on

federal law, and the possession of marijuana remains

illegal under federal law, even if it is possessed for

medicinal purposes in accordance with state law.”

Hicks, 722 F Supp 2d, at 833, citing Gonzales, 545 US at

27 (“The [Controlled Substances Act] designates mari-

juana as contraband for any purpose[.]”).

Further, the 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 substance 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 supervision,” 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.

Accordingly, mere possession of marijuana remains a

misdemeanor offense, MCL 333.7403(2)(d), and the

manufacture of marijuana remains a felony, MCL

333.7401(2)(d).

Perhaps surprisingly, the purpose of the MMMA is a

bit less revolutionary than one might suspect. MCL

333.26422(b) states as follows:

Data from the Federal Bureau of Investigation Uniform

Crime Reports and the Compendium of Federal Justice

Statistics show that approximately 99 out of every 100

marihuana arrests in the United States are made under

state law, rather than under federal law. Consequently,

changing state law will have the practical effect of protect-

ing from arrest the vast majority of seriously ill people who

have a medical need to use marihuana.

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The MMMA does not codify a right to use marijuana;

instead, it merely provides a procedure through which

seriously ill individuals using marijuana for its palliative

effects can be identified and protected from prosecution

under state law. Although these individuals are still vio-

lating the Public Health Code by using marijuana, the

MMMA sets forth particular circumstances under which

they will not be arrested or otherwise prosecuted for their

lawbreaking. In so doing, the MMMA reflects the practical

determination of the people of Michigan that, while mari-

juana is classified as a harmful substance and its use and

manufacture should generally be prohibited, law enforce-

ment resources should not be used to arrest and prosecute

those with serious medical conditions who use marijuana

for its palliative effects.

Accordingly, the MMMA functions as an affirmative

defense to prosecutions under the Public Health Code,

allowing an individual to use marijuana by freeing him

or her from the threat of arrest and prosecution if that

individual meets all the requirements of the MMMA,

while permitting prosecution under the Public Health

Code if the individual fails to meet any of the require-

ments set forth by the MMMA.

See MCL 333.26422(b);

MCL 333.26427(e).

The problem, however, is that the MMMA is inart-

fully drafted and, unfortunately, has created much

Again, all individuals who possess, use, or manufacture marijuana in

this state, including qualifying patients who have been issued a valid

registry identification card and their primary caregivers, are violating the

federal Controlled Substances Act and are still subject to arrest and

punishment for doing so.

Of course, because the MMMA protects against enforcement of the

Public Health Code under only limited circumstances, an individual who

is using marijuana must satisfy all the requirements of the MMMA or

else remain subject to arrest and prosecution for violating the Public

Health Code.

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confusion regarding the circumstances under which

an individual may use marijuana without fear of

prosecution. Some sections of the MMMA are in

conflict with others, and many provisions in the

MMMA are in conflict with other statutes, especially

the Public Health Code. Further, individuals who do

not have a serious medical condition are attempting

to use the MMMA to flout the clear prohibitions of

the Public Health Code and engage in recreational

use of marijuana. Law enforcement officers, prosecu-

tors, and trial court judges attempting to enforce both

the MMMA and the Public Health Code are hampered

by confusing and seemingly contradictory language,

while healthy recreational marijuana users incor-

rectly view the MMMA as a de facto legalization of

the drug, seemingly unconcerned that marijuana use

remains illegal under both state and federal law.

In this opinion, I will attempt to cut through the haze

surrounding this legislation. In so doing, I note that

neither my opinion nor the majority’s opinion consti-

tutes an attempt to make the law. We are simply

interpreting an act passed by the people of this state. It

is up to the Legislature to revise this act as it sees fit.

I have no doubt that in the minds of some voters in this state,

legalizing marijuana would be good public policy. Others who approved

this act were under the impression that the act’s specific purpose was

limited to permitting the medical use of marijuana by registered

patients with debilitating medical conditions. Still others voted

against this change in the law. Whether decriminalizing the medical

use of marijuana is a good or bad idea for this state is a question of

public policy for our state legislators, the executive branch, and the

citizenry to ponder. It is not for the courts to set public policy. This

Court’s responsibility is simply to interpret this act. Citizens of this

state wishing for revision of the MMMA should take such appropriate

action as attending the public hearings on pertinent pending legisla-

tion or communicating with their elected representatives.

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I. GUIDANCE IS NEEDED

In light of the majority opinion’s resolution of the

issues in this case, one might ask why this concurrence is

of any importance. The answer is simple: delay and

neglect in addressing the proper scope and application of

the MMMA invites and perpetuates error. Judges bear the

responsibility of applying, interpreting, and shaping the

law, and we neglect this responsibility when we fail to

explain, with well-reasoned analysis, our agreement or

disagreement with pertinent points of law. Failure to

engage in the debate hinders our hunt for a statute’s

intended purpose and generally stifles the formation of

sound legal principles. If we all gently withdrew our voices

from the arena of competing ideas, then mistakes would

go unchallenged, and the process of correction could suffer

nearly insurmountable setbacks.

This case proves the rule. At oral argument and in

their briefs, both parties raised numerous questions

regarding the proper interpretation of the provisions of

the MMMA. It was made clear that many provisions of

this act are subject to multiple interpretations and that

obfuscating words and phrases in the MMMA have

caused much confusion on the part of both law enforce-

ment officials and defense attorneys wishing to advise

their clients of their rights and protections under the

law. Defense counsel was particularly concerned that

the law was not specific enough for him to advise his

clients on both the strictures of the MMMA and the

ramifications of certain provisions. The prosecuting

attorney noted that he was unable to advise municipali-

ties, townships, the police, and others regarding

whether particular conduct was permitted or prohibited

under the act. More generally, in the absence of clear

direction from the appellate courts, many citizens be-

2010] P

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lieve that the MMMA supports and legitimizes the

marijuana business.

As defense counsel emphasized at oral argument this

Court could take a case-by-case approach to resolving

all the issues found in the MMMA, addressing particu-

lar provisions piecemeal and in isolation over years and

leaving defendants, prosecutors, law enforcement, en-

trepreneurs, cities, municipalities, townships, and oth-

ers in a state of confusion for a very, very long time.

Or,

in one well-thought-out opinion, it could interpret the

essential provisions of this act, providing a framework

for future application of the new statute and giving fair

notice to all regarding the scope of acceptable conduct

under the MMMA. Counsel for both parties advised this

Court against interpreting the MMMA in a piecemeal

fashion because of the confusion that would persist. I

agree, and this opinion is my attempt to establish the

framework for the law and address those issues not

resolved by the majority opinion.

I also agree with counsel that it is the responsibility

of this Court to interpret this law in a way that gives

Under this piecemeal approach, each case would address a separate,

specific issue involving the MMMA. The lower courts of all 83 Michigan

counties would then opine on each issue (in some cases arriving at

different results). The cases would be appealed to this Court, which

would in response issue published opinions binding all trial courts in the

state. While this may be an efficient and orderly process for some areas

of the law, I suspect that the confusion regarding the circumstances

under which an individual using or possessing marijuana is protected

from arrest or conviction could result in some citizens losing both their

liberty and their property. I am reminded of a statement often attributed

to the eighteenth-century British statesman Edmund Burke: “All that is

necessary for the triumph of evil is for good men to do nothing.” In this

case, the evil at issue is the loss of liberty or property suffered by

individuals who honestly believe that they are in compliance with the

MMMA at the hands of prosecutors and law enforcement officials who

honestly believe that they are properly enforcing the clear provisions of

the Public Health Code.

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fair notice to all concerned regarding what conduct is

allowed and what conduct is prohibited under this law.

Without some guidance from the appellate courts, the

lower courts will continue to stumble about. The system

of justice will become hopelessly unpredictable and

intolerably frustrating for the people it was established

to serve. Right or wrong, we all have the duty to

interpret the law to the best of our abilities. Any delay

in this process frustrates those citizens who are making

a good faith effort to adhere to the law.

II. ONE STATUTE, COMPETING GOALS

Proposal 1 on the 2008 ballot, which presented the

MMMA to the people of this state for a vote, described

the proposed MMMA as purporting to do the follow-

ing:

• Permit physician approved use of marijuana by regis-

tered patients with debilitating medical conditions includ-

ing cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other

conditions as may be approved by the Department of

Community Health.

• Permit registered individuals to grow limited amounts

of marijuana for qualifying patients in an enclosed, locked

facility.

• Require Department of Community Health to estab-

lish an identification card system for patients qualified to

use marijuana and individuals qualified to grow marijuana.

• Permit registered and unregistered patients and

primary caregivers to assert medical reasons for using

marijuana as a defense to any prosecution involving

marijuana.

Yet in its summary of the intended effect of the MMMA,

this ballot proposal obfuscated the more confusing and

contradictory aspects of the actual legislation. The

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statutory language creates a maze for the reader, mak-

ing the statute susceptible to multiple interpretations.

The MMMA is based on model legislation provided by

the Marijuana Policy Project (MPP), a lobbying group

based in Washington, D. C., and organized to decrimi-

nalize both the medical and recreational uses of mari-

juana. The statutory language of the MMMA was

drafted by Karen O’Keefe, the director of state policies

at the MPP in Washington, D.C.

Interestingly, the

confusion caused by reading the statute piecemeal and

out of context has seemed to work to the advantage of

those who share the MPP’s wish for outright legaliza-

tion of marijuana. Taking advantage of the confusion

from the MMMA, proponents of liberalized marijuana

regulations claim that the MMMA legalizes shops that

sell marijuana, collective growing facilities, and the

cultivation and sale of marijuana as a commercial crop.

Further, those individuals who primarily wish to use

marijuana recreationally are taking advantage of “pot

docs” who will give them written certifications for the

medical use of marijuana without bothering to establish

either a bona fide physician-patient relationship or the

existence of a terminal or debilitating medical condi-

tion.

In looking at the specific provisions of the MMMA, it

is important to remember that this act is based on a

premise—namely, that marijuana can be used for medi-

cal purposes—that is in obvious contravention to the

Public Health Code. By classifying marijuana as a

schedule 1 controlled substance under the Public

On its website, the MPP advertises its involvement in the ballot

initiative, noting, “Michigan passed MPP’s ballot initiative to permit

terminally and seriously ill patients to use medical marijuana with their

doctors’ approval....” Marijuana Policy Project, Our History

<http://www.mpp.org/about/history.html> (accessed September 10,

2010).

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Health Code, the people of this state, through their

elected representatives, have determined that mari-

juana “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

supervision.” MCL 333.7211. This clearly contravenes

the rationale for the MMMA, which indicates that

provisions should be made to permit seriously ill indi-

viduals to use marijuana for medical purposes without

fear of arrest because “[m]odern medical research . . .

has discovered beneficial uses for marihuana in treating

or alleviating the pain, nausea, and other symptoms

associated with a variety of debilitating medical condi-

tions.” MCL 333.26422(a).

The obvious solution to this problem would simply be

to amend the Public Health Code to make marijuana a

schedule 2 or schedule 3 controlled substance.

With

such an amendment, state law would not prohibit a

licensed prescriber from prescribing marijuana if, in the

prescriber’s professional opinion, the drug would effec-

tively treat the pain, nausea, and other symptoms

associated with certain debilitating medical conditions.

MCL 333.7303a. Curiously, however, the MMMA has no

provisions to repeal the contradictory portions of the

Public Health Code or to ensure the controlled, moni-

tored distribution of marijuana to seriously ill individu-

als in accordance with the well-tested provisions of the

A substance may be included in schedule 2 if the substance has a high

potential for abuse and that abuse may lead to severe psychic or physical

dependence, but the substance also has “currently accepted medical use

in treatment in the United States, or currently accepted medical use with

severe restrictions.” MCL 333.7213. A substance may be included in

Schedule 3 if the substance has a potential for abuse less than a schedule

1 or schedule 2 controlled substance and abuse of the substance may lead

to moderate or low physical dependence or high psychological depen-

dence, but the substance also has “currently accepted medical use in

treatment in the United States.” MCL 333.7215.

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Public Health Code.

Instead, it creates a new system,

untested in this state, in which a physician merely

“certifies” that an individual would likely “benefit”

from using marijuana to alleviate pain, nausea, or other

symptoms, while leaving it to the patient to register

under the act and to self-regulate the quality and

quantity of marijuana the patient uses.

Accordingly, the confusing nature of the MMMA, and

its susceptibility to multiple interpretations, creates an

untoward risk for Michiganders.

Reading the statute

carelessly or out of context could result in jail or prison

time for many of our citizens. Until our Supreme Court

and the Legislature clarify and define the scope of the

MMMA, it is important to proceed cautiously when

seeking to take advantage of the protections in it. Those

citizens who proceed without due caution will become

test cases and may lose both their property and their

liberty.

Critics might argue that reclassifying marijuana under the Public

Health Code would be ineffective because it would require doctors to

ignore federal provisions banning them from prescribing marijuana. Yet

it is important to remember that the entirety of the MMMA stands in

conflict with federal law. Accordingly, such criticism would less likely

stem from a desire to adhere to federal law than from a desire to steer the

risk associated with breaking federal law away from those perceived as

less willing to take that risk. The Catch-22 here is that doctors would not,

and should not, put their medical licenses at risk.

At the preliminary examination in this matter, the learned Judge

Robert Turner, a veteran of many years on the bench, stated that the

MMMA “is one of the worst pieces of legislation I have ever seen in my

life.” In interpreting this act, Judge Turner assumed that the sole

purpose of it was to set forth the rules and regulations for the medical use

of marijuana in Michigan, but it is becoming increasingly clear that the

act is being used as a subterfuge to legalize marijuana in Michigan. It is

well crafted in its obfuscations, ambiguous language, and confusingly

overlapping sections.

Until our Supreme Court provides a final comprehensive interpre-

tation of this act, it would be prudent for the citizens of this state to avoid

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III. THROUGH THE MAZE

The MMMA consists of 10 sections detailing the

protections, procedures, and defenses surrounding the

medical use of marijuana in this state. However, much

of the confusion caused by the MMMA arises from

difficulty understanding the interplay among §§ 4, 7,

and 8. Section 4 addresses the protections afforded to

qualifying patients, caregivers, and others under the

act:

(a) A qualifying patient who has been issued and pos-

sesses a registry identification card shall not be subject to

arrest, prosecution, or penalty in any manner, or denied

any right or privilege, including but not limited to civil

penalty or disciplinary action by a business or occupational

or professional licensing board or bureau, for the medical

use of marihuana in accordance with this act, provided that

the qualifying patient possesses an amount of marihuana

that does not exceed 2.5 ounces of usable marihuana, and,

if the qualifying patient has not specified that a primary

caregiver will be allowed under state law to cultivate

marihuana for the qualifying patient, 12 marihuana plants

kept in an enclosed, locked facility. Any incidental amount

of seeds, stalks, and unusable roots shall also be allowed

under state law and shall not be included in this amount.

(b) A primary caregiver who has been issued and pos-

sesses a registry identification card shall not be subject to

arrest, prosecution, or penalty in any manner, or denied

any right or privilege, including but not limited to civil

penalty or disciplinary action by a business or occupational

or professional licensing board or bureau, for assisting a

qualifying patient to whom he or she is connected through

all use of marijuana if they do not wish to risk violating state law. I again

issue a stern warning to all: please do not attempt to interpret this act on

your own. Reading this act is similar to participating in the Triwizard

Tournament described in J.K. Rowling’s Harry Potter and the Goblet of

Fire: the maze that is this statute is so complex that the final result will

only be known once the Supreme Court has had an opportunity to review

and remove the haze from this act.

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the department’s registration process with the medical use

of marihuana in accordance with this act, provided that the

primary caregiver possesses an amount of marihuana that

does not exceed:

(1) 2.5 ounces of usable marihuana for each qualifying

patient to whom he or she is connected through the

department’s registration process; and

(2) for each registered qualifying patient who has speci-

fied that the primary caregiver will be allowed under state

law to cultivate marihuana for the qualifying patient, 12

marihuana plants kept in an enclosed, locked facility; and

(3) any incidental amount of seeds, stalks, and unusable

roots.

a minor for acting in accordance with this act, unless the

person’s behavior is such that it creates an unreasonable

danger to the minor that can be clearly articulated and

substantiated.

(d) There shall be a presumption that a qualifying

patient or primary caregiver is engaged in the medical use

of marihuana in accordance with this act if the qualifying

patient or primary caregiver:

(1) is in possession of a registry identification card; and

(2) is in possession of an amount of marihuana that does

not exceed the amount allowed under this act. The pre-

sumption may be rebutted by evidence that conduct related

to marihuana was not for the purpose of alleviating the

qualifying patient’s debilitating medical condition or symp-

toms associated with the debilitating medical condition, in

accordance with this act.

(e) A registered primary caregiver may receive compen-

sation for costs associated with assisting a registered

qualifying patient in the medical use of marihuana. Any

such compensation shall not constitute the sale of con-

trolled substances.

(f) A physician shall not be subject to arrest, prosecu-

tion, or penalty in any manner, or denied any right or

privilege, including but not limited to civil penalty or

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disciplinary action by the Michigan board of medicine, the

Michigan board of osteopathic medicine and surgery, or any

other business or occupational or professional licensing

board or bureau, solely for providing written certifications,

in the course of a bona fide physician-patient relationship

and after the physician has completed a full assessment of

the qualifying patient’s medical history, or for otherwise

stating that, in the physician’s professional opinion, a

patient is likely to receive therapeutic or palliative benefit

from the medical use of marihuana to treat or alleviate the

patient’s serious or debilitating medical condition or symp-

toms associated with the serious or debilitating medical

condition, provided that nothing shall prevent a profes-

sional licensing board from sanctioning a physician for

failing to properly evaluate a patient’s medical condition or

otherwise violating the standard of care for evaluating

medical conditions.

(g) A person shall not be subject to arrest, prosecution,

or penalty in any manner, or denied any right or privilege,

including but not limited to civil penalty or disciplinary

action by a business or occupational or professional licens-

ing board or bureau, for providing a registered qualifying

patient or a registered primary caregiver with marihuana

paraphernalia for purposes of a qualifying patient’s medi-

cal use of marihuana.

(h) Any marihuana, marihuana paraphernalia, or licit

property that is possessed, owned, or used in connection

with the medical use of marihuana, as allowed under this

act, or acts incidental to such use, shall not be seized or

forfeited.

(i) A person shall not be subject to arrest, prosecution,

or penalty in any manner, or denied any right or privilege,

including but not limited to civil penalty or disciplinary

action by a business or occupational or professional licens-

ing board or bureau, solely for being in the presence or

vicinity of the medical use of marihuana in accordance with

this act, or for assisting a registered qualifying patient with

using or administering marihuana.

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(j) A registry identification card, or its equivalent, that is

issued under the laws of another state, district, territory,

commonwealth, or insular possession of the United States

that allows the medical use of marihuana by a visiting

qualifying patient, or to allow a person to assist with a

visiting qualifying patient’s medical use of marihuana,

shall have the same force and effect as a registry identifi-

cation card issued by the department.

(k) Any registered qualifying patient or registered pri-

mary caregiver who sells marihuana to someone who is not

allowed to use marihuana for medical purposes under this

act shall have his or her registry identification card re-

voked and is guilty of a felony punishable by imprisonment

for not more than 2 years or a fine of not more than

$2,000.00, or both, in addition to any other penalties for

the distribution of marihuana. [MCL 333.26424.]

The unusual structure of this section reflects the

intent of the MMMA as set forth in MCL 333.26422(b).

Instead of describing an affirmative right to grow,

possess, or use marijuana, § 4 simply indicates that

registered qualifying patients, primary caregivers, and

physicians are protected from arrest, prosecution, or

penalty if they meet the specific requirements set

forth.

Most legislation either grants rights and privileges to citizens by

stating that a person may do a certain activity or it makes certain activity

illegal. In either circumstance, the statute affirmatively indicates what

an individual may or may not do. The MMMA does the opposite; instead

of granting a right or implementing a prohibition, the statute leaves the

underlying prohibition of the manufacture, possession, or use of mari-

juana intact and states that individuals meeting certain criteria “shall

not be subject to arrest, prosecution, or penalty” for using, possessing, or

growing marijuana under specified circumstances. As a result, this state

finds itself in the unusual position of having a statute that precludes

enforcement, in certain circumstances, of another statute that makes

certain activity illegal. Needless to say, this decision to use one statute to

undercut the enforceability of another statute, instead of simply redefin-

ing the circumstances under which marijuana use and possession are

legal in this state, greatly adds to the confusion that surrounds this act.

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A closer look at the pertinent subsections of § 4

further shows this to be the case. Section 4(a) specifies

that a qualifying patient with a registry identification

card is not subject to arrest, prosecution, or penalty “for

the medical use of marihuana in accordance with this

act....”MCL333.26424(a). MCL 333.26423(h) defines

a “qualifying patient” as “a person who has been

diagnosed by a physician as having a debilitating medi-

cal condition.” Accordingly, even if a qualifying patient

has a registry identification card, that patient is en-

titled to protection under the MMMA only if he or she

has also been diagnosed with a debilitating medical

condition. In order to “diagnose” a patient, a physician

must “determine the identity of (a disease, illness, etc.)

by a medical examination.” Random House Webster’s

College Dictionary (2001). Accordingly, regardless of

whether an individual has a registry identification card,

that individual is not a “qualifying patient” under the

MMMA and, therefore, is not entitled to the act’s

protections unless a physician has determined that the

patient suffers from an identifiable debilitating condi-

tion.

Under § 4(a), a qualifying patient may engage in the

“medical use” of marijuana without fear of arrest.

Interestingly, the term “medical use,” as defined by the

MMMA, is much broader than one would anticipate.

MCL 333.26423(e) defines the term “medical use” as

“the acquisition, possession, cultivation, manufacture,

use, internal possession, delivery, transfer, or transpor-

Thus, an individual is not entitled to protection under the MMMA if

a physician has acknowledged only that the individual suffers from

symptoms of a disease or illness (such as pain, nausea, or anxiety) but has

not actually diagnosed that person as having a debilitating disease or

illness. Also, the term “medical use” is only employed in specific sections

of this act, while the term “use” is employed in other sections, thereby

suggesting two separate meanings for the term “use” within the act.

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tation of marihuana or paraphernalia relating to the

administration of marihuana to treat or alleviate a

registered qualifying patient’s debilitating medical con-

dition or symptoms associated with the debilitating

medical condition.” The definition of “medical use” is

unexpectedly broad: although a qualifying patient may

not sell marijuana, just about anything else an indi-

vidual can do with marijuana would be considered

medical use under the MMMA.

Section 4(a) also provides that a qualifying patient is

not subject to arrest, prosecution, or penalty for the

medical use of marijuana if that patient has no more

than 12 marijuana plants in an enclosed, locked facility.

MCL 333.26424(a). Alternatively, the qualifying patient

may designate a primary caregiver to grow up to 12

An example of this conflict is § 4(a) and § 7(b)(2) of the act. Section

4(a) allows 18-year-old high school students to grow and use marijuana if

they are properly registered with the state. MCL 333.26424(a). Section

4(a) also states that as long as he or she is a qualifying patient who has

a registry card, the student “shall not be subject to arrest, prosecution, or

penalty in any manner” whatsoever. Id. Reading § 4(a) in isolation allows

18-year-old students to possess marijuana in our schools without being

subject to arrest, prosecution, or penalty in any manner whatsoever.

Conflicting with § 4(a) is § 7(b)(2)(B), which provides that one may not

possess marijuana on the grounds of any preschool or primary or

secondary school. MCL 333.26427(b)(2)(B).

Sections 4(b) and 7(b)(5) are also in conflict. Section 7(b)(5) states

that a person may not use marijuana if that person does not have a

serious or debilitating medical condition. MCL 333.26427(b)(5). Section

4(b) allows primary caregivers to assist qualifying patients. MCL

333.26424(b). Nothing in § 4(a) or (b) allows primary caregivers to use

marijuana, unless they qualify under § 4(a). The conflict arises because

the act allows primary caregivers to grow marijuana, but it prohibits

those who are not “qualifying patients” to use marijuana. I note that

caregivers receive registration cards under the statute but are not

required to have a “written certification” stating they have a debilitating

condition. The only logical conclusion is that “primary caregivers” who

do not possess a “qualifying patient” registry card are not permitted to

use marijuana under the MMMA.

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plants in an enclosed, locked facility. However, because

the statute provides that a qualified patient may be in

possession of the specified number of marijuana plants

only if the patient has not designated a primary car-

egiver to grow marijuana for him or her, if the qualified

patient has made such a designation, the statute pro-

vides that qualified patient no protection from arrest if

found in the possession of any marijuana plants.

Section 4(b) specifies the circumstances in which a

registered primary caregiver is protected from arrest.

MCL 333.26424(b). MCL 333.26423(g) defines a “pri-

mary caregiver” as “a person who is at least 21 years old

and who has agreed to assist with a patient’s medical

use of marihuana and who has never been convicted of

a felony involving illegal drugs.” Section 4(b) specifies

that a registered primary caregiver may assist only a

qualifying patient

to whom he or she is connected

through the registration process with the medical use of

marijuana. Accordingly, a primary caregiver may not

assist any qualifying patient in the acquisition, posses-

sion, cultivation, manufacture, use, internal possession,

delivery, transfer, or transportation of marijuana unless

that caregiver is connected to that qualifying patient

The act uses both the terms “qualifying patient” and “patient.”

While qualifying patients enjoy greater protections under § 4 than

patients do under § 8, both qualifying patients and patients must follow

all the provisions of the act, including the requirement that all patients

growing marijuana do so in an enclosed, locked facility. Growing mari-

juana in the backyard thus subjects the grower and the homeowner to the

penalties found in the Public Health Code. This requirement is consistent

with the language of the ballot proposal. Whether each patient’s 12

marijuana plants must be grown in a separate locked facility is an issue

best left for another day. Those caregivers who commingle various

patients’ plants in one facility may look forward to becoming test cases.

Primary caregivers may have only five patients and, if the qualifying

patient designates him- or herself as his or her own caregiver, then that

caregiver is allowed only four additional patients. MCL 333.26426(d).

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through registration with the Department of Commu-

nity Health (DCH). Section 6(d) specifies that “each

qualifying patient can have no more than 1 primary

caregiver, and a primary caregiver may assist no more

than 5 qualifying patients with their medical use of

marihuana.” MCL 333.26426(d). Accordingly, no pri-

mary caregiver who wishes to benefit from the protec-

tions offered by the MMMA may assist more than five

qualifying patients in acquiring, possessing, cultivating,

manufacturing, using, internally possessing, delivering,

transferring, or transporting marijuana, presuming

that the five qualifying patients in question are con-

nected to that caregiver through the department’s

registration process.

Any assistance that any primary

caregiver provides on behalf of any qualifying patient to

whom that caregiver is not connected by the registra-

tion process is not subject to the protections of the

MMMA.

Similarly, a primary caregiver may not possess more

than “12 marihuana plants kept in an enclosed, locked

facility” for each qualifying patient to whom the care-

giver is connected through the registration process and

who has that patient’s permission to cultivate the

allotment of marijuana plants. MCL 333.26424(b)(2).

MCL 333.26423(c) defines an “enclosed, locked facility”

Many Michiganders are faced with the often unwelcome intrusion of

medical-marijuana dispensaries in their communities, and local govern-

ments are faced with the difficult task of determining whether they are

obliged to allow such dispensaries to operate in their communities. Yet,

interestingly, under a proper reading of § 4(b), the operation of a

dispensary would make little economic sense, because in order to abide by

the provisions of the MMMA, the dispensary would have to be operated

entirely by one individual, and could have, at most, five customers. This

is because, first, the MMMA has no provision for the sale of marijuana

and, second, a primary caregiver is permitted to receive compensation

only for the costs associated with assisting a qualifying patient to whom

he or she is connected through registration with the DCH.

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as “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 qualify-

ing patient.” Although it is unclear from the statute

whether each grouping of 12 plants must be in a

separate enclosed, locked facility,

it is clear that under

no circumstances may a primary caregiver be in posses-

sion of more than a total of 60 marijuana plants,

presuming that the primary caregiver acts in that

capacity for the statutory maximum of five qualifying

patients, all of whom have given the caregiver the

authority to cultivate marijuana for them. Because a

qualified patient who has designated a primary car-

egiver to cultivate marijuana for him or her may not

him- or herself have possession of any marijuana plants,

the primary caregiver is the only individual permitted

to be in possession of the qualifying patient’s marijuana

plants under this circumstance. Accordingly, this means

that each set of 12 plants permitted under the MMMA

to address the purported medical needs of a particular

qualifying patient must be kept in an enclosed, locked

facility that can only be accessed by one individual,

either the qualifying patient or the qualifying patient’s

primary caregiver; any other individual with access to

the marijuana plants designated for a particular quali-

Anyone growing more than 12 plants in one separate enclosed,

locked facility should not complain or be surprised when or if a federal

drug enforcement agent appears. Again, under federal law, cultivating

marijuana is illegal. Growing large quantities of marijuana in an

enclosed, locked facility is the same as waving a red flag in front of a

3,000-pound bull. Any questions in this regard are quickly answered

by reading the Gus Burns article in the April 22, 2010, Saginaw News,

Federal agents and sheriff’s deputies say seized marijuana in Saginaw

County was illegal and not medicine. <http://www.mlive.com/

news/saginaw/index.ssf/2010/04/federal_agents_and_sheriffs_de.html>

(accessed September 13, 2010). Caregivers who do not want to become a test

case should proceed with caution. No clear, reliable, or lasting resolution to

this conflict between state and federal law seems in view.

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fying patient would be considered in possession of

marijuana and subject to arrest and prosecution for

violating the Public Health Code.

It is important to remember that under the laws of this state, “[a]

person need not have actual physical possession of a controlled

substance to be guilty of possessing it. Possession may be either actual

or constructive.” People v Wolfe, 440 Mich 508, 519-520; 489 NW2d 748

(1992). “Constructive possession exists when the totality of the

circumstances indicates a sufficient nexus between the defendant and

the controlled substance.” People v Meshell, 265 Mich App 616, 622;

696 NW2d 754 (2005). The “essential” element is that a defendant has

“dominion or right of control over the drug with knowledge of its

presence and character.” People v McKinney, 258 Mich App 157, 165;

670 NW2d 254 (2003) (quotation marks and citation omitted). “Be-

cause it is difficult to prove an actor’s state of mind, only minimal

circumstantial evidence...andthereasonable inferences that arise

from the evidence” are required to prove that a defendant had

constructive possession. People v Brown, 279 Mich App 116, 136-137;

755 NW2d 664 (2008). Accordingly, an individual who places himself in

the proximity of marijuana is at risk of being charged with possession

of the substance.

In light of these rules concerning what constitutes possession, the

MMMA places the entire burden of cultivating a particular qualifying

patient’s marijuana plants on one individual (either the qualifying

patient or his or her primary caregiver). No other individual can legally

even water the plants or enter the enclosed, locked facility to turn on a

grow light without risking arrest and prosecution for violating the Public

Health Code. This means that primary caregivers and qualifying patients

cannot legally form a cooperative and grow marijuana in a shared facility

without violating the MMMA and thus being subject to arrest and

prosecution under the Public Health Code.

Presumably the drafters affiliated with the Marijuana Policy

Project agree. Diane Byrum, a spokesperson for the proposal indicated

that “[t]he Michigan proposal wouldn’t permit the type of cooperative

growing that allows pot shops to exist in California. Those kinds of

operations are what have faced federal crackdowns.” Satyanarayana,

Is Marijuana Good Medicine? Detroit Free Press, October 25, 2008,

available at <http://www.freep.com/article/20081025/NEWS15/

810250341/Is-marijuana-good-medicine> (accessed September 10,

2010). Accordingly, before the November 2008 vote on this ballot

proposal, even the drafters of the MMMA were unequivocal that the

statute would not permit marijuana growing cooperatives in Michigan.

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Section 4(e) permits a registered primary caregiver to

receive compensation for the costs associated with

assisting a registered qualifying patient in the medical

use of marijuana. MCL 333.26424(e). However, under

§ 4(b), a registered primary caregiver may assist only a

registered qualifying patient to whom he or she is

connected through registration with the DCH. MCL

333.26424(b). Accordingly, §§ 4(b) and 4(e) can only be

reconciled by concluding that the primary caregiver’s

“compensation for costs associated with assisting a

registered qualifying patient in the medical use of

marihuana” will come from only a registered qualifying

patient to whom he or she is connected through the

department’s registration process.

MCL 333.26424(e).

Because a primary caregiver may assist only the five or

fewer qualifying patients to whom the caregiver is

connected through the registration process, there is no

circumstance under the MMMA in which the primary

caregiver can provide assistance to any other qualifying

patient, and receive compensation in exchange, without

being subject to arrest and prosecution under the

Public Health Code.

Stated another way, only the person the qualifying patient names as

his or her primary caregiver on the registration form can receive

compensation for associated costs, and that compensation can only be

received from the “qualifying patient to whom he or she is connected

through the department’s registration process....”MCL333.26424(b).

A familiar example may help clarify how the provisions of the

MMMA are connected to each other. Michigan has statutory qualifica-

tions for persons entering into a state of matrimony. See MCL 551.1

(restricting marriage to couples of opposite gender); MCL 551.3 (disquali-

fying couples who are of specified, close degrees of familial affinity).

There is also a registration requirement in the form of a marriage license.

MCL 551.2. Married couples have many statutory rights and duties. See,

e.g., MCL 205.93(3)(a) (the right to transfer property and free from use

tax); MCL 600.2162 (the right to not testify against a spouse); MCL 552.7

(authorizing actions for separate maintenance). The registration, or

licensing, requirement inheres in all statutory references to marriage,

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In addition, a primary caregiver may receive compen-

sation for only the costs associated with assisting a

registered qualifying patient in the medical use of

marijuana. Id. This simply means that the primary

caregiver may receive reimbursement for monetary

expenses incurred in the course of assisting the quali-

fying patient in the medical use of marijuana. The

statute does not authorize compensation for the labor

involved in cultivating marijuana or for otherwise as-

sisting the qualifying patient in its use, nor does it

indicate that the primary caregiver may profit finan-

cially from this role.

Section 4(f) protects a physician from arrest for

providing written certifications if the certifications

were provided in the course of a bona fide physician-

patient relationship and if the physician first completed

a full assessment of the qualifying patient’s medical

history. MCL 333.26424(f). Unfortunately, the statute

does not indicate how the existence of an authentic

physician-patient relationship can be discerned. How-

ever, a fact-finder might wish to ask certain questions

when determining whether the physician-patient rela-

tionship was authentic, including (a) whether the phy-

sician signing the written certification form was the

patient’s primary caregiver, (b) whether the patient had

an established history of receiving medical care from

that physician, (c) whether the physician diagnosed a

and thus there is no need to repeat it with each statutory mention. For

example, MCL 206.311(3) authorizes the filing of joint tax returns by

“husband and wife,” but does not reiterate that this concerns couples

licensed to marry each other. To conclude that any married person,

qualified and registered under the laws of this state, may file jointly with

any other married person, so qualified and registered, would be nonsen-

sical and lead to an absurd result. As the statutory registration, or

licensing, requirement carries through all marriage law, so should the

registration requirement of the MMMA be understood as carrying

through all provisions of that act.

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particular debilitating medical condition instead of sim-

ply stating that a patient’s reported symptoms must be

the result of some such unidentified condition, (d)

whether the physician was paid specifically to sign the

written certification, and (e) whether the physician has

a history of signing an unusually large number of

certifications. Needless to say, those doctors hired spe-

cifically to sign certification forms are suspect and

deserve special scrutiny by prosecutors, the DCH, and

the legislative oversight committees of both the House

and Senate.

Section 4(f) also indicates that

[a] physician shall not be subject to arrest...forotherwise

stating that, in the physician’s professional opinion, a

patient is likely to receive therapeutic or palliative benefit

from the medical use of marihuana to treat or alleviate the

patient’s serious or debilitating medical condition or symp-

toms associated with the serious or debilitating medical

condition....”[MCL333.26424(f)]

This provision does not create an alternative scenario

under which a physician may issue a written certifica-

tion to a patient in the absence of a bona fide physician-

patient relationship with that patient or a full assess-

ment of the patient’s medical history. Instead, this

provision merely provides a physician with additional

protection from legal penalties, or disciplinary action by

The DCH should keep track of the number of certification forms each

doctor signs. If it is determined that certain doctors are collecting money

for routinely signing the forms, those doctors should be disqualified from

participation in the Michigan medical marihuana program. It is beyond

question that one doctor treating 100, 500, or 1,000 terminally ill patients

in the course of 10-minute examinations has not been acting pursuant to

bona fide physician-patient relationships. A revolving-door, rubber-

stamp, assembly-line certification process does not constitute activity “in

the course of a bona fide physician-patient relationship,” especially when

the doctor fails to set any medical boundaries for his or her patients and

fails to monitor the patient’s progress on a regular basis.

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a professional licensing board if the physician opines in

general that an individual might benefit from the

medical use of marijuana.

Section 4(i) provides that “[a] person shall not be

subject to arrest...solely for being in the presence

or vicinity of the medical use of marihuana in accor-

dance with this act, or for assisting a registered

qualifying patient with using or administering mari-

huana.” MCL 333.26424(i). In a possible attempt at

chicanery, the drafters of the act thus slipped into

this subsection the term “person,” instead of discuss-

ing the protections and responsibilities of a “car-

egiver” or “qualifying patient.” R eading § 4(i) in

isolation could cause one to conclude that it consti-

tutes a nullification of all provisions in the Public

Health Code that punish individuals who come in

contact with marijuana. However, when reading § 4(i)

in context, it is clear that it is not, and is not intended

to function as, a permission slip to manufacture or

sell marijuana in Michigan. First, because the MMMA

does not grant rights to anyone, the use of the word

“person” instead of the more specific terms “qualify-

ing patient” and “primary caregiver” does not consti-

tute an expansion of any rights. Instead, although a

“person” may not be subject to arrest under § 4(i) for

“assisting a registered qualifying patient with using

or administering marihuana,” it is clear that this

protection does not extend to assisting a registered

qualifying patient in the medical use of marijuana as

defined by MCL 333.26423(e). Instead, this protec-

tion from arrest only extends to providing assistance

in “using or administering” marijuana, which is

much more limited. Such assistance would be in the

nature of holding or rolling a marijuana cigarette,

filling a pipe, or preparing marijuana-laced brownies

for the qualifying patient suffering from a terminal

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illness or a debilitating condition. Section 4(i) does

not protect persons generally from arrest for acquir-

ing, possessing, cultivating, manufacturing, deliver-

ing, transferring, or transporting marijuana on be-

half of the qualifying patient.

Finally, § 4(k) imposes a penalty on those registered

qualifying patients or registered primary caregivers

who sell marijuana to “someone who is not allowed to

use marihuana for medical purposes under this

act....” MCL 333.26424(k). The penalty is severe: a

violator faces up to two years in prison or a fine of up to

$2,000, or both. However, that this subsection specifies

a particular punishment for a specific type of violation

does not mean that, by default, the sale of marijuana to

someone who is allowed to use marijuana for medical

purposes under this act is permitted. The MMMA does

not give any individual permission to sell marijuana in

the state of Michigan for any purpose. Instead, the

MMMA merely identifies circumstances under which

qualifying patients and primary caregivers are pro-

tected from arrest and prosecution for the “medical

use” of marijuana. If the drafters of this statute had

wanted to legalize the sale of marijuana to qualifying

patients from primary caregivers or other qualifying

patients, they would have included the term “sale” in

the definition of “medical use.” MCL 333.26423(e).

They did not and, therefore, the sale of marijuana is not

a permitted activity under § 4.

Stated differently, the

As explained earlier, § 4(e) permits a primary caregiver to receive

compensation for the costs associated with assisting a registered qualify-

ing patient to whom he or she is connected through the DCH’s registra-

tion process. Again, this means that the primary caregiver may receive

reimbursement for monies paid in the course of assisting the qualifying

patient in the medical use of marijuana, but may not receive compensa-

tion or otherwise profit from the labor involved in cultivating marijuana

or otherwise assisting the qualifying patient in its medical use.

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MMMA does not legalize the sale of marijuana to any

individual, even one registered as a qualifying patient.

Section 7 of the act is very specific about use of

marijuana for medical purposes. It provides as follows:

(a) The 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.

(b) This act shall not permit any person to do any of the

following:

(1) Undertake any task under the influence of mari-

huana, when doing so would constitute negligence or

professional malpractice.

(2) Possess marihuana, or otherwise engage in the

medical use of marihuana:

(A) in a school bus;

(B) on the grounds of any preschool or primary or

secondary school; or

(3) Smoke marihuana:

(A) on any form of public transportation; or

(B) in any public place.

(4) Operate, navigate, or be in actual physical control of

any motor vehicle, aircraft, or motorboat while under the

influence of marihuana.

(5) Use marihuana if that person does not have a serious

or debilitating medical condition.

(1) A government medical assistance program or com-

mercial or non-profit health insurer to reimburse a person

for costs associated with the medical use of marihuana.

Accordingly, I can find no circumstance under which the MMMA

legalizes the sale of marijuana by medical-marijuana dispensaries. The

statute simply does not permit that activity.

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(2) An employer to accommodate the ingestion of mari-

huana in any workplace or any employee working while

under the influence of marihuana.

(d) Fraudulent representation to a law enforcement

official of any fact or circumstance relating to the medical

use of marihuana to avoid arrest or prosecution shall be

punishable by a fine of $500.00, which shall be in addition

to any other penalties that may apply for making a false

statement or for the use of marihuana other than use

undertaken pursuant to this act.

(e) All other acts and parts of acts inconsistent with this

act do not apply to the medical use of marihuana as

provided for by this act. [MCL 333.26427.]

When interpreting § 7, it is important to remember

that an individual acquires protection from arrest and

prosecution under this act only if suffering from serious

or debilitating medical condition. A person without

such a condition, as defined by the act and diagnosed by

a physician, is prohibited from using marijuana and

remains subject to the penalties set forth in the Public

Health Code. Section 7(b)(5) acts as an affirmative

defense to a prosecution under the Public Health Code,

meaning that the defendant has the responsibility of

establishing that he or she was suffering from a serious

or debilitating medical condition as a prerequisite to

establishing a medical-marijuana defense. Once the

defendant has presented sufficient evidence to establish

the existence of a sufficiently serious medical condition,

the prosecution may seek to rebut it, including by

cross-examination of the defendant’s physician regard-

ing whether the defendant had a serious or debilitating

medical condition. Of course, the prosecution may also

call medical expert witnesses to rebut the defendant’s

evidence.

A defendant asserting the medical-marijuana defense

bears the burden of establishing the existence of a

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qualifying medical condition; a mere assertion is not

sufficient.

Further, it logically follows that a defendant

resorting to that defense by placing into evidence his or

her medical condition necessarily waives any physician-

patient privilege that would otherwise limit a prosecu-

tor’s prerogative to question the defendant’s physician

or examine pertinent medical records.

In the present case, both defendants contend that

they are entitled to assert an affirmative defense under

§ 8 of the MMMA. Section 8 addresses affirmative

defenses for patients and caregivers under the act. It

reads as follows:

(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;

Although most qualifying patients and primary caregivers appar-

ently believe that they are immune from arrest or prosecution if they

possess registry identification cards, the MMMA makes no such provi-

sion. Instead, the act leaves a qualifying patient or primary caregiver

subject to criminal proceedings for any conduct not for the purposes of

alleviating the qualifying patient’s debilitating medical condition or its

symptoms. MCL 333.26424(a) and (b); MCL 333.26427(b)(5). In my

opinion, all certification forms should include a warning that, even

though the patient has a registry identification card, the patient could

still be prosecuted for conduct that is not in strict accordance with the

provisions of the MMMA.

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(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).

strates the patient’s medical purpose for using marihuana

pursuant to this section, the patient and the patient’s

primary caregiver shall not be subject to the following for

the patient’s medical use of marihuana:

(1) disciplinary action by a business or occupational or

professional licensing board or bureau; or

(2) forfeiture of any interest in or right to property.

[MCL 333.26428.]

In this section, the act speaks for the first time in

terms of a patient instead of a qualifying patient. The

purpose of § 8 is to establish an affirmative defense for

those marijuana users and growers who are not regis-

tered with the state. Read out of context and with a

limitless imagination, one could conclude that qualify-

ing patients, patient caregivers, physicians, or persons

in general may not be arrested or prosecuted for any

actions involving marijuana, i.e., the act in essence

legalizes marijuana in Michigan. But, as I have previ-

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ously stated, the language of the ballot proposal and a

contextual reading of the act belie this premise.

In order for defendants to assert an affirmative

defense under § 8(a)(1), they must first establish that

Dr. Eric Eisenbud, the physician who signed their

medical-marijuana authorizations, treated them in the

course of a bona fide physician-patient relationship, and

they must further establish under § 7(b)(5) that they

have a serious or debilitating condition. Both defen-

dants have failed to establish either prerequisite to

asserting a § 8 affirmative defense.

At issue is the phrase, “in the course of a bona fide

physician-patient relationship.” This phrase has three

components: physician-patient relationship, bona fide,

and in the course of. When construing a statute, a court

should presume that every word has some meaning; a

construction rendering some part nugatory or surplus-

age should be avoided. People v Seiders, 262 Mich App

702, 705; 686 NW2d 821 (2004). “Physician-patient

relationship” clearly means that a patient must have

the traditional doctor-patient relationship. Use of the

qualifier “bona fide” indicates that the drafters of this

act were concerned about such doctors as the one in

Livingston County described in part IV of this opinion

who routinely sell written certifications for profit,

rather than provide them for any genuine medical

reason. Any such doctor is not engaging in the good-

faith practice of medicine, and any such certifications

must be disallowed under this act.

“In the course of”

Some seek marijuana for treatment of depression and anxiety disorders.

At the very least, the progress of such treatments should be carefully

monitored by a doctor. But the MMMA appears to discard the concept of any

monitoring within the “bona fide” physician-patient relationship. If moni-

toring of patients is not taking place, how can the physician-patient

relationship be a bona fide one? Should the medical profession step forward

on this issue? I note that the medical profession generally opposed the

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clearly means that the bona fide relationship has been

in existence beyond just one occasion. An individual

who visits a doctor for the first time for the sole purpose

of obtaining certification for the medical use of mari-

juana, especially after an arrest on drug charges, does

not satisfy the requirement that the certification come

about in the course of a bona fide physician-patient

relationship. Conversely, a primary-care physician who

has long been treating a patient suffering from a

terminal illness or a serious or debilitating condition is

certainly acting in the course of a bona fide physician-

patient relationship.

Certain protocols must be adhered to, or elements met,

before a bona fide physician-patient relationship can be

established. Among these are the following: the physician

must create and maintain medical records; the physician

must have a complete understanding of the patient’s

medical history; specific medical issues must be identified

and plans developed to address each; treatment must be

conducted in a professional setting; the physician must,

when appropriate, set boundaries for the patient; and the

physician must monitor the patient’s progress. Important

for the treatment of most medical conditions, especially

those involving chronic pain, is continuity of treatment.

Some chronic-pain patients with serious or debilitating

conditions need constant monitoring for their own safety.

I note that, in the present case, while some of these

protocols or elements were present in Dr. Eisenbud’s

treatment of defendants, others were lacking in both

substance and process.

In order to have a bona fide physician-patient relation-

ship, a legal duty must be established between the physi-

MMMA because, as one official put it, “ ‘it’s not in the public health interest

to see people smoke.’ ” Satyanarayana, n 17 supra, quoting Donald Allen,

director of the Office of Drug Control and P olicy.

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cian and his or her patient. If no duty arises from the

relationship, then no legally recognizable physician-

patient relationship exists. Only once a physician-patient

relationship is established and a treatment plan is insti-

tuted may a physician be held liable for malpractice under

Michigan law. However, by insulating a physician from

“prosecution, or penalty in any manner,” including “civil

penalty” in connection with that physician’s certification

of a patient for the medical use of marijuana, § 4(f) leaves

a physician so acting unaccountable in the matter to

society and to his or her patient. MCL 333.26424(f). It is

problematic to classify as bona fide a physician-patient

relationship when the physician has no enforceable duties

to the patient. In my opinion, because physicians such as

Dr. Eisenbud, in the course of approving written certifica-

tions for the medical use of marijuana, do not establish a

legally binding physician-patient relationship in the mat-

ter, such relationships, in the eyes of the law, are not bona

fide.

In this regard, the Catch-22 for patients is found in

§§ 4(f) and 8(a). Section 4(f) provides that “a physician

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....”MCL333.26424(f).

But § 8(a) of the act states that a patient can assert a

medical-marijuana defense if in the course of a bona fide

physician-patient relationship the physician makes cer-

tain statements and authorizes the patient to use

marijuana. MCL 333.26428(a). It would be unusual, if

not outright peculiar, for the law to recognize a

physician-patient relationship if no potential liability

attached to the actions of the treating physician. Be-

cause one part of the MMMA provides that no civil

liability, and thus no potential malpractice liability,

attaches to physicians who authorize the medical use of

marijuana, while another part of the act states that a

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physician must have a bona fide physician-patient rela-

tionship to assert the affirmative medical-marijuana

defense, the act presents a seemingly irreconcilable

internal conflict.

Adding to the confusion in this case is that, according

to the record, all of Dr. Eisenbud’s patients visited him

for a single treatment plan and for no other purpose. In

each instance then, the patient is not only directing the

treatment plan, but setting his or her own boundaries

and monitoring his or her own progress. It strains

credibility to suggest that a treatment plan has already

been established before the doctor has examined the

patient. The confusion is resolved by simply concluding

that a one-stop shopping event to obtain a permission

slip to use marijuana under § 8 does not meet the

requirement of § 8(a)(1) that the authorization occur in

the course of a bona fide physician-patient relationship.

Stated another way, a § 8 affirmative defense is not

available unless the testifying physician is the patient’s

treating physician for the underlying serious or debili-

tating condition. Dr. Eisenbud was not either defen-

dant’s treating physician, and therefore the § 8 affirma-

tive defense was not available to them.

In an attempt to explain and help this Court interpret

the protections contained in the MMMA, Karen O’Keefe,

who was identified in part II of this opinion as director of

state policies at the MPP in Washington, D .C., filed an

affidavit in this case. In the affidavit, Ms. O’Keefe stated,

in paragraph 4, that she was the “principal drafter of

Michigan’s medical marijuana ballot initiative.” In para-

graph 7 she stated, “We intended for both Michigan law

and MPP’s model legislation to include two levels of

protection,” i.e., defenses, with § 4 providing the greater

level of protection and § 8 a lesser level of protection.

While that affidavit might assist this Court in separating

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those two types of protection, it does not address any

protections under either § 4 or § 8 concerning the sale of

marijuana in Michigan. What it does accomplish is to

confirm that the MMMA was intended to provide defenses

from arrest and prosecution for the use of small amounts

of marijuana for medical purposes. But neither the affida-

vit nor the act itself asserts that the MMMA provides any

protections for the sale of marijuana in Michigan. T o have

authorized the sale of marijuana in Michigan, the MMMA

would have had to specifically make such provision. It did

not. I further note that the language of the ballot proposal

did not mention that the sale of marijuana was included in

the act. It is therefore clear that neither § 4 nor § 8 of the

MMMA affords any protections for the sale of marijuana

in Michigan.

IV. WHAT MUST BE INCLUDED IN THE WRITTEN CERTIFICATION

AND HOW DOES ONE OBTAIN A WRITTEN CERTIFICATION

FROM A QUALIFIED PHYSICIAN?

Through no fault on the part of legitimate patients

and caregivers who are taking pains in good faith to

The MMMA contains a number of Catch-22 situations for the unsus-

pecting. The act allows someone who is properly registered to possess

marijuana, but anyone receiving compensation for the marijuana from

someone other than the registrant’s primary caregiver may be prosecuted.

The act also allows caregivers and patients to grow marijuana, but then

provides that this must be done in an enclosed, locked facility. Anyone

growing marijuana in his or her backyard can thus be prosecuted under the

Public Health Code. Another peculiarity is that patients or their caregivers

may grow marijuana, but there is no provision for the legal purchase of

marijuana seeds or plants in the first instance. The act also includes no

caregiver-reporting requirement, which raises the questions, How much

may a caregiver charge his or her qualifying patient and how does a

caregiver report the income on tax returns? Another oddity is that the act

allows a patient or primary caregiver to possess 2.5 ounces of marijuana and

12 plants. MCL 333.26424(a) and (b). What is the legal consequence if the

plants are all harvested at the same time and they happen to produce more

than 2.5 ounces?

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comply with the law and conduct themselves accord-

ingly, the current written certification process reflects

badly on them. The process also reflects badly on

legitimate physicians who honestly believe that mari-

juana would assist their patients.

Section 3(l) of the MMMA defines “written certifica-

tion” as

a document signed by a physician, stating the patient’s

debilitating medical condition and stating that, in the

physician’s professional opinion, the patient is likely to

receive therapeutic or palliative benefit from the medical

use of marihuana to treat or alleviate the patient’s debili-

tating medical condition or symptoms associated with the

debilitating medical condition. [MCL 333.26424(l).]

In the present case, defendants’ written certification

forms fail to set forth their respective debilitating

medical conditions and therefore are invalid on their

faces. I further regard the process used to obtain the

written certification under the current administrative

rules as suspect and opine that § 3(l) is clearly the most

abused section in the MMMA.

I do not direct my critical comments toward those

qualifying patients who do in fact have a serious debilitat-

ing condition and seek some therapeutic or palliative

solace in marijuana. This act was intended to help those

individuals. My comments are directed at those who are

currently abusing the written certification process, i.e.,

the majority of the persons who are becoming certified at

this time. My comments are also directed at those who are

charged with the oversight of the administrative process.

At oral argument, it was revealed that a certain

Livingston County doctor was selling written certifica-

I reiterate that, even with a registry identification card, a qualifying

patient can be prosecuted for uses of marijuana exceeding the scope of the

statutory defenses. See MCL 333.26424(d)(2).

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tions for $50. Apparently all one had to do to obtain a

written certification to use marijuana was to show up at

this doctor’s house and slip $50 under the door. This

history of the written certification process may in fact

jeopardize the entire medical-marijuana process for

those who are legitimately entitled to use it. New

checks and balances on this process are certainly nec-

essary to resolve this problem.

I will set forth the histories of the MMMA and its

written certification process in parts V and VI of this

opinion and leave readers to form their own opinions

whether the written certification process is serving its

legitimate purpose or is being abused. It is within the

province of our legislative and executive officials to

retain or change that process. But I reiterate that in the

present case both defendants’ written certifications

did not comply with the statute and were therefore

invalid ab initio.

The balance of this opinion will

There currently exist no checks and balances on physicians signing

the written certification forms. A simple revision of the form that

requires a doctor under penalty of perjury to attest that each patient has

a serious or debilitating condition and name that condition might clean

up the process. Doctors who are indiscriminately selling written certifi-

cations could then be penalized by the courts for issuing false certificates.

This would work an important reform, given that § 4(f) appears to

immunize even physicians who intentionally sign false certifications.

Limiting the number of certifications one doctor may sign might further

deter fraudulent certifications.

In the present case, Dr. Eisenbud testified that he met with each

defendant for about a half-hour, spending 5 minutes reviewing the

medical records and about 10 minutes on the physical examination, while

also interviewing them. On those bases, Dr. Eisenbud then certified that

he was treating both defendants “for a terminal illness or a debilitating

condition.” Such foolishness is so obvious on its face as to deserve no

more than a footnote in this opinion to expose it, although I note that

even Dr. Eisenbud’s certifications appear to be more credible than the

Livingston County doctor described in the previous paragraph.

The certification forms at issue here stated:

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address issues concerning the written certification pro-

cess, which the Legislature or the DCH are free to

change if persuaded that a problem exists.

V. THE HISTORY OF THE MMMA

The MMMA has a noble purpose, i.e., providing an

avenue for improving the health or comfort of those

afflicted with a serious or debilitating medical condi-

tion.

One supposes that most citizens voting for the

MMMA envisioned that those individuals suffering

I, Eric Eisenbud, MD, am a physician, duly licensed in the State of

Michigan. I have completed a full assessment of this patient’s medical

history, and I am treating this patient for a terminal illness or a

debilitating condition as defined in Michigan’s medical marijuana

law. I completed a full assessment of this patient’s current medical

condition. This assessment was made in the course of a bona fide

physician-patient relationship. I have advised the patient about the

potential risks and benefits of the medical use of marijuana. I have

formed my professional opinion that the potential benefits of the

medical use of marijuana would likely outweigh any health risks for

the patient. This patient is LIKELY to receive therapeutic or pallia-

tive benefit from the medical use of marijuana to treat or alleviate a

serious or debilitating medical condition or symptoms of the serious

or debilitating medical condition.

I note that Dr. Eisenbud attempted to specify neither what the ailment

was, nor whether it constituted a terminal illness or a debilitating

condition.

Some assert that marijuana is not a bad thing, especially in light of

current research, and that those thinking otherwise are illogical prudes.

Then there is the view of the National Institute on Drug Abuse, which

maintains that marijuana smoke contains 50 to 70 percent more carci-

nogenic hydrocarbons than tobacco smoke. NIDA InfoFacts: Marijuana

<http://www.nida.nih.gov/infofacts/marijuana.html> (accessed Septem-

ber 10, 2010). The Partnership for a Drug Free America similarly reports

that “[s]tudies show that someone who smokes five joints per week may

be taking in as many cancer-causing chemicals as someone who smokes

a full pack of cigarettes every day.” Drug Guide <http://

www.drugfree.org/portal/drug_guide/marijuana> (accessed September

10, 2010). While each of these views is legitimate, for the purposes of this

opinion I am not concerned with which view the law should reflect. This

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from such conditions would visit their regular doctors,

obtain prescriptions for marijuana, and then have the

prescription filled at a licensed pharmacy. Citizens

would rightly expect such a process because the drug-

delivery system in Michigan has always dispensed drugs

in this manner.

The DCH is the agency charged with regulating

this new industry. Under the act, the DCH was

required to draft within 120 days administrative

rules to implement the act. MCL 333.26425(a). The

Governor oversees administrative agencies such as

the DCH, and the Legislature also plays a role,

maintaining checks and balances to ensure that ad-

ministrative agencies function properly. Under the

normal process, those elected or appointed officials

would maintain sufficient control of the process to

assure that a schedule 1 drug would not be sold,

distributed, or otherwise transferred to the public

without a legitimate process in place to regulate the

use, sale, and delivery of that drug.

Further, in legitimate medical practice, doctors

would observe their ethical duties to sign their names to

written certification forms only if their patients were

actually suffering from terminal illnesses or serious

or debilitating medical conditions, as the act speci-

fies.

No ethical doctor would advertise for sale to

Court’s job is to interpret statutes as they are written. Public policy is

determined by the other branches of government.

A question that arises is, Why is there the need for a specialized

medical-marijuana business, instead of dispensing through pharmacies

as is the case of other legal prescription drugs, if the marijuana is for

medical purposes? The answer, in many cases, is that the medical purpose

is mere pretext.

In proper medical practice, when a doctor prescribes a drug, that

doctor carefully monitors the patient to see if the drug is working, if

there are side effects, etc. Shouldn’t doctors similarly monitor their

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That someone is spending money to run such an ad well

proves that confusion runs rampant concerning what is,

and is not, subject to prosecution under the MMMA.

Unfortunately, the administrative rules associated with

the MMMA do not provide for any checks and balances on

the accuracy of the medical certifications signed by these

doctors. At 1,000 new registry applicants a week,

Michi-

gan will soon have more registered marijuana users

than unemployed individuals—an incredible legacy for

the Great Lakes State. And soon we will even have

graduates from the Medical Marijuana Academy.

What has been lost in the rush to implement the

MMMA is a comprehensive set of administrative rules.

Under MCL 333.26425(a), the DCH only had 120 days

to draft the administrative rules that are currently in

effect.

As demonstrated by the rules that did come into

being, this was a totally unreasonable time limit for

such a task.

No system of regulation can succeed without a clear

set of rules. Those wishing to use marijuana need to

know when, how, and under what conditions they can

legally do so. Providers need to know under what

conditions they can legally grow, harvest, and distribute

their product, and the operators of the new medical-

marijuana clinics that appear to be springing up on

See Yung, Even in a poor economy, the pot industry grows, Detroit

Free Press, June 21, 2010, p 4A.

Mich Admin Code, R 333.101 et seq.

The current administrative rules include no reporting requirements,

no log-keeping requirements, and no directions for school officials or law

enforcement officers on how to regulate the new medical-marijuana

industry. The DCH should continue the rule-making process, taking

pains to hear from all interested parties. At oral argument, the attorneys

for both sides expressed their approval of a negotiated rule-making

process. The goal would be to set boundaries for all activities and persons

associated with the MMMA.

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every corner need to know if they are in fact set up to

dispense marijuana to the public legally. Until today, the

DCH, the Legislature, and the appellate courts have

answered very few of these questions. Pressure and

confusion results from trying to operate under a system

in which no one has stepped forward and stated specifi-

cally what actions are legal and what actions are not. It

appears that most elected officials, including my col-

leagues, understand the political nature of this contro-

versy and simply choose to address the MMMA only to

the extent that a particular occasion requires. I, on the

other hand, right or wrong, prefer giving some notice to

those concerned before they are deprived of their liberty

and property.

What is clear from reading the lower court record in

this case is that no one has set out a comprehensive plan

to implement the new MMMA. The job of setting public

policy should not be handed to the courts as a consequence

of the inaction of legislative or administrative officials.

Those elected and appointed officials can choose to remain

silent and allow the courts to interpret this act piecemeal

or on a case-by-case basis. Or the statute can be revised, or

the pertinent administrative rules revised, to provide a

clear direction to all citizens, including the judges of the

courts, who are affected by this act.

VII. CONCLUSION

To quote from Sir Walter Scott’s 1808 poem,

Marmion, canto 6, stanza 17, “O, what a tangled web we

weave, / When first we practise to deceive!” Of central

I am reminded of Shakespeare’s sentiments, “Yet the first bringer of

unwelcome news / Hath but a losing office,” (The Second Part of King

Henry the Fourth, act 1, sc 1), and “Come hither, sir. / Though it be

honest, it is never good / To bring bad news,” (Antony and Cleopatra,act

2, sc 5), and a more modern equivalent: Please don’t shoot the messenger.

134 290 M

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importance to this appeal is the question, Is the MMMA

a subterfuge for legalizing marijuana in this state, or is

it a legitimate medical reform intended to help only

those individuals who have a terminal illness or a

serious or debilitating medical condition?

The answer is simple. For those who instituted the

process of placing the proposal on the ballot, the MMMA

was both an avenue for allowing society to explore the

medical uses of marijuana and a first step in legalizing

marijuana in Michigan. F or some citizens who voted for

the initiative petition out of empathy for the terminally ill

or those suffering from debilitating conditions, it was a

vote for a medical process that would help those in need.

Unfortunately for all concerned with the implementation

of the medical mission, including compassionate-care

groups, marijuana growers, marijuana users, marijuana

dispensers, the police, prosecutors, municipalities, town-

ships, etc., the act has resulted in much confusion. And it

has suggested itself to many purely recreational mari-

juana consumers as a vehicle to aid in their continuing

illicit indulgence in that vice.

In any event, the MMMA is currently the law in

Michigan. To the extent possible, it must be adminis-

tered in a manner that protects the rights of all our

citizens. When prosecutors and defense attorneys agree

that the law is hazy and unclear and poses hazards to all

concerned because it does not with sufficient clarity

identify what conduct is subject to prosecution, it is

time for action from our legislative and executive offi-

cials. While the MMMA may be controversial and

polarizing, politics should be set aside in the interest of

the rule of law in our state.

I note that Senators Roger Kahn, Wayne Kuipers, and Gerald Van

Woerkom have introduced bills that might resolve some of the issues

raised in this opinion. See SB 616, SB 617, and SB 618 of 2009.

2010] P

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With the MMMA, two roads have diverged in the

forest:

one leads to refining and distilling the admin-

istrative rules and other law associated with the act,

and the other leads to the regulators and regulated

alike being totally confused concerning how to give

effect to the act. The former leads to the orderly

implementation of the MMMA, while the latter leads to

disrespect for the law and possibly contempt for the rule

of the law itself.

Our legislative and administrative

officials must make a choice: they can either clarify the

law with legislative refinements and a comprehensive

set of administrative rules, or they can do nothing. In

this situation, not deciding is, in fact, a decision to do

nothing.

This line is adapted from the beginning of Robert Frost’s poem, The

Road Not Taken (“Two roads diverged in a yellow wood....”).

An example of confusion at best, or disrespect for the law at worst, is

that there is a marijuana shop in Lansing that is less than 100 feet from

a school. Clearly, this shop is in violation of the federal Safe and

Drug-Free Schools and Communities Act, 20 USC 7101 et seq.

I recall an old cartoon that depicted a king in his palace, with his

subjects outside rioting, pillaging, and otherwise destroying the kingdom.

The king asks, “Why are they rioting, I didn’t do anything?” His wisest

advisor responds, “Maybe that is the problem.”

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KEINZ v KEINZ

Docket No. 292781. Submitted September 14, 2010, at Detroit. Decided

September 16, 2010, at 9:00 a.m.

Diane M. Keinz obtained a divorce from Kenneth C. Keinz in the St.

Clair Circuit Court in 2005 and was granted child support. In

2008, plaintiff moved to increase defendant’s child support obliga-

tion. At the initial hearing on the motion, defendant stated that his

usual biweekly gross income was $1,594.56. However, because of

voluntary overtime, defendant’s actual earnings were nearly

double that amount. On the basis of the parties’ assertions at the

hearing, the referee recommended a slight decrease in defendant’s

monthly child support payments. Plaintiff objected, but the court,

James P. Adair, J., adopted the referee’s recommendation. Plaintiff

moved to set aside the order. The court granted the motion and

referred the case to the Friend of the Court, which made a new

recommendation, in light of the parties’ actual incomes, to in-

crease defendant’s child support payments. Plaintiff moved for

entry of an order consistent with that recommendation and for

sanctions. The parties ultimately settled the support issue, but

plaintiff continued to request that the court sanction defendant for

initially misrepresenting his income. Defendant contended that he

had not reported his voluntary overtime because he had reduced

expectations of similar overtime income in the future. The court

denied plaintiff’s request for sanctions, concluding that defendant

had not intentionally misled the referee. Plaintiff appealed.

The Court of Appeals held:

1. Under MCL 600.2591(1), a court may award attorney fees

and costs to a prevailing party as sanctions if an action or defense

was frivolous. Because the parties’ settlement resulted in a higher

child support award, plaintiff won on the entire record and, thus,

was the prevailing party as defined in MCL 600.2591(3)(b).

2. In light of defendant’s admission that he had already earned

$40,000 by the time of the initial hearing in July 2008 and that he

ultimately earned $81,808.32 that year, defendant had no reason-

able basis to believe that the biweekly gross income he reported to

the referee, which would have totaled only $41,458.56 annually,

was true. Thus, his initial opposition to the motion to increase

2010] K

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137

child support was frivolous under MCL 600.2591(3)(a)(ii), and the

circuit court abused its discretion by denying plaintiff’s motion for

sanctions.

Reversed and remanded.

OSTS —

TTORNEY

EES —

ANCTIONS —

REVAILING

ARTIES —

IVORCE —

HILD

UPPORT —

ETTLEMENTS

A court may award attorney fees and costs to a prevailing party as

sanctions if an action or defense was frivolous; a party who moved

for higher child support payments and received higher child

support payments as the result of a settlement is a prevailing party

(MCL 600.2591[1]).

Lorrie J. Zahodnic, P. C . (by Lorrie J. Zahodnic), for

plaintiff.

Samuel J. Behringer, Jr., for defendant.

Before: W

ILDER

,P.J., and C

AVANAGH

and M. J. K

ELLY

JJ.

ILDER

,P.J. Plaintiff appeals as of right the circuit

court’s order denying her motion to shift her attorney

fees and costs to defendant. We reverse and remand.

This appeal has been decided without oral argument

pursuant to MCR 7.214(E).

The parties’ 2005 divorce judgment granted plaintiff

primary physical custody of the parties’ two minor

children and required defendant to pay child support in

the amount of $682.88 a month for two children and

$449.51 a month for one child “until Defendant returns

to his employment from Disability,” after which the

obligation would be $785.27 a month for two children

and $516.67 a month for one child.

In 2008, plaintiff moved to increase defendant’s

support obligations. At the hearing in July 2008, both

parties proceeded without assistance of counsel. Defen-

dant stated that his biweekly gross income was

138 290 M

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137 [Sept

$1,594.56 (which would generate an annual income of

$41,458.56) and produced a letter from his employer

that mirrored his representations. Defendant explained

that his gross income was based on his “usual[]” work

schedule of 36 hours in one week and 48 hours the next

week at his hourly pay rate of $17.84. After inquiring

about plaintiff’s income and the parties’ sundry ex-

penses, the referee recommended that defendant’s gen-

eral care assessment be $734 a month for the two

children and $481 a month for one child.

Plaintiff filed objections on the grounds that the

referee did not ask defendant what his income was in

2007 and that defendant had not provided his W-2 Form

for that year. Nonetheless, the referee’s recommenda-

tion was adopted in a court order. Plaintiff moved to set

aside that order. The circuit court granted the motion

and reserved the question of attorney fees. The matter

was referred to the Friend of the Court for the purpose

of calculating child support for two minor children in

accordance with the true incomes of the parties.

A new recommendation followed, this time for sup-

port in the amount of $1,090 a month for two children

and $709 a month for one child. Plaintiff moved for

entry of an order consistent with that recommendation

and for sanctions.

The parties appeared for an evidentiary hearing and

settled the support issue. Plaintiff’s attorney reported

that in addition to agreements concerning health-care

expenses, “[t]he parties have come to agreement re-

garding the Uniform Child Support Order by modifying

it retroactive to April 29th, 2008 wherein [defendant]

will pay to [plaintiff] child support for two children in

the amount of $1,175, and for one child the amount of

$800.” The hearing continued on the issue of sanctions.

Plaintiff argued that defendant had misrepresented his

2010] K

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139

income at the initial hearing on the motion to increase

his support obligations, thereby requiring numerous

court appearances that would have otherwise been

unnecessary.

Defendant admitted that, by the time of the first

hearing in July 2008, at which he reported a biweekly

gross income that would have totaled $41,458.56 for the

year, he had already earned $40,000 and that he ulti-

mately earned $81,808.32 in 2008. Defendant’s attor-

ney averred that defendant excluded voluntary over-

time when reporting his usual work schedule because

he had reduced expectations of similar future income as

a result of the economy and a health condition that

caused a doctor to recommend that he work 60 hours a

week or less. Defendant’s attorney also averred that

expenses from the divorce had made it difficult for

defendant to get back on his feet.

At the conclusion, the circuit court held as follows:

[T]here was not an intentional or deliberate act or

motive on the part of the Defendant which could...give

rise to a consideration that is lack of or intended...

misleading information to the Friend of the Court, particu-

larly in reviewing the transcript of the Friend of the Court

hearing on July 7th, 2008, which would cause the Court to

conclude that... there should be leveled... the reim-

bursement of an attorney fees or costs in this case and,

therefore the request by the Plaintiff for...attorney fees

and/or cost[s] is denied.

On appeal, plaintiff argues that she is entitled to

costs and attorney fees on the grounds that she was the

prevailing party and that defendant caused unneces-

sary court appearances and delayed resolution of the

case by maintaining positions with no reasonable basis

in law or fact.

140 290 M

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This Court reviews a trial court’s ruling on a motion

for costs and attorney fees for an abuse of discretion.

Klinke v Mitsubishi Motors Corp, 219 Mich App 500,

518; 556 NW2d 528 (1996); In re Condemnation of

Private Prop for Hwy Purposes, 221 Mich App 136,

139-140; 561 NW2d 459 (1997). An abuse of discretion

occurs when the decision results in an outcome falling

outside the range of principled outcomes. Radeljak v

DaimlerChrysler Corp, 475 Mich 598, 603; 719 NW2d

40 (2006). A trial court’s findings of fact, such as

whether a party’s position was frivolous, may not be set

aside unless they are clearly erroneous. MCR 2.613(C);

see Kitchen v Kitchen, 465 Mich 654, 661; 641 NW2d

245 (2002).

“Awards of costs and attorney fees are recoverable

only where specifically authorized by a statute, a court

rule, or a recognized exception.” Phinney v Perlmutter,

222 Mich App 513, 560; 564 NW2d 532 (1997). MCL

600.2591(1) grants a court the authority to award

sanctions in the form of attorney fees and costs to a

prevailing party if an action or defense is deemed

“frivolous.” For an action or defense to be considered

“frivolous,” at least one of the following conditions

must be met:

(i) The party’s primary purpose in initiating the ac-

tion...wastoharass, embarrass, or injure the prevailing

party.

(ii) The party had no reasonable basis to believe that the

facts underlying that party’s legal position were in fact

true.

(iii) The party’s legal position was devoid of arguable

legal merit. [MCL 600.2591(3)(a).]

Plaintiff first argues that she was a “prevailing

party” for purposes of MCL 600.2591(1). The circuit

court did not resolve this question, instead concluding

2010] K

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141

that the defense was not frivolous. Nevertheless, ac-

cording to MCL 600.2591(3)(b), a “prevailing party” is

“a party who wins on the entire record.” Because the

parties’ settlement resulted in a higher support award,

we agree with plaintiff that she was the prevailing party

on her motion.

Defendant relies on MRE 408 to argue that consid-

eration of the parties’ settlement should be precluded.

MRE 408 provides:

Evidence of (1) furnishing or offering or promising to

furnish, or (2) accepting or offering or promising to accept,

a valuable consideration in compromising or attempting to

compromise a claim which was disputed as to either

validity or amount, is not admissible to prove liability for or

invalidity of the claim or its amount. Evidence of conduct

or statements made in compromise negotiations is likewise

not admissible.... This rule also does not require exclu-

sion when the evidence is offered for another purpose, such

as proving bias or prejudice of a witness, negativing a

contention of undue delay, or proving an effort to obstruct

a criminal investigation or prosecution.

Because the settlement is not offered to prove defen-

dant’s liability for the amount of child support to which

the parties agreed, but is offered to prove whether

plaintiff is a prevailing party, we reject defendant’s

argument.

Plaintiff next argues that defendant deceived the

referee by offering evidence that his biweekly gross

income was $1,594.56 when he knew that he actually

earned more, thereby requiring additional proceedings,

We also note that trial courts possess the inherent authority to

sanction litigants and their attorneys. “This power is not governed so

much by rule or statute, but by the control necessarily vested in courts to

manage their own affairs so as to achieve the orderly and expeditious

disposition of cases.” Maldonado v Ford Motor Co, 476 Mich 372, 376; 719

NW2d 809 (2006).

142 290 M

ICH

137 [Sept

including those on the motion to set aside the order

resulting from the referee’s recommendation, and de-

laying resolution of the matter. We agree. In light of

defendant’s admission that he had already earned

$40,000 by the time of the July 2008 hearing and that

he ultimately earned $81,808.32 in 2008, defendant had

no reasonable basis to believe that the biweekly gross

income he reported to the referee, which would have

totaled $41,458.56 annually, was true. Consequently, we

agree with plaintiff that defendant’s initial opposition

to the motion to increase child support was frivolous.

Defendant explains that his self-serving omission of

evidence regarding his voluntary overtime was made in

light of an anticipated loss of that overtime in the

future. Defendant then correctly argues that a trial

court has discretion to deviate from the child support

formula when application of the formula would be

unjust or inappropriate. See MCL 552.605(2). However,

even if the anticipated loss of overtime would have

made application of the formula using his actual income

in July 2008 unjust, defendant had no reasonable basis

to believe that the biweekly gross income he reported to

the referee was true. Moreover, it would have been in

the referee’s discretion, not defendant’s, to recommend

a deviation from the formula after child support was

calculated using accurate facts.

Because plaintiff was the prevailing party and defen-

dant asserted a frivolous defense, we conclude that the

circuit court abused its discretion by denying plaintiff’s

motion for attorney fees and costs pursuant to MCL

600.2591(1). We reverse and remand to the circuit court

for further proceedings consistent with this opinion. We

do not retain jurisdiction. As the prevailing party,

plaintiff may tax costs pursuant to MCR 7.219.

2010] K

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KIETA v THOMAS M COOLEY LAW SCHOOL

Docket No. 291608. Submitted July 14, 2010, at Lansing. Decided

September 16, 2010, at 9:05 a.m.

Christine Kieta, a student at Thomas M. Cooley Law School, brought

an action in the Kent Circuit Court against the law school, seeking

injunctive relief to prevent the law school from conducting formal

proceedings to investigate plaintiff’s alleged violations of the law

school’s student honor code. The court, Paul J. Sullivan, J., denied

the request for injunctive relief, but allowed plaintiff to amend her

complaint to raise claims of breach of contract and arbitrary and

capricious conduct. The hearing at the law school proceeded, and

the hearing panel concluded that there was clear and convincing

evidence to support a determination that plaintiff had lied in

violation of the honor code. The panel also held that there was not

clear and convincing evidence to support the charge of failing to

cooperate with the initial review. The panel determined that three

hours of counseling and instruction in civility, ethics, and stress

management was an appropriate remedy. The panel stated that a

summary of the decision would be placed in plaintiff’s student file,

but expressly concluded that the nature and the circumstances of

the violation would not prevent plaintiff’s admission to the bar.

After the panel rendered its decision, plaintiff attempted to pursue

her action in the trial court, but the court granted the law school’s

motion for summary disposition and denied plaintiff’s motion

requesting the court to apply judicial estoppel. The court held that

the honor code had not given rise to an enforceable contract and

that the law school had not engaged in arbitrary and capricious

conduct. After the court’s decision, plaintiff graduated from the

law school and was admitted to the Illinois bar. Plaintiff appealed

the order granting defendant’s motion for summary disposition.

The Court of Appeals held:

Under MCR 7.203(A), a party must be an aggrieved party in

order to appeal. A party is entitled to appeal when the party has an

interest in the subject matter of the controversy and is injuriously

affected or aggrieved by the lower court’s judgment or order. An

issue becomes moot when a subsequent event renders it impossible

for the appellate court to fashion a remedy. The Court of Appeals

144 290 M

ICH

144 [Sept

could not provide a remedy in this case because after the trial court

granted the law school’s motion for summary disposition, plaintiff

graduated from the law school. Plaintiff’s appeal was thus moot.

Appeal dismissed.

1. A

PPEAL —

UDGMENTS —

RDER

A party must be an aggrieved party in order to appeal; a party is

entitled to appeal a lower court’s judgment or order when the

party has an interest in the subject matter of the controversy and

is injuriously affected or aggrieved by the judgment or order (MCR

7.203[A]).

2. A

PPEAL —

OOT

SSUES

An issue becomes moot for purposes of appealing a lower court’s

determination regarding the issue when a subsequent event ren-

ders it impossible for the appellate court to fashion a remedy.

Christine Kieta in propria persona.

Garan Lucow Miller, P.C. (by Megan K. Cavanagh

and Michael P. McCasey), for Thomas M. Cooley Law

School.

Before: F

ORT

OOD

,P.J., and B

ORRELLO

and S

TEPHENS

JJ.

URIAM.

Plaintiff appeals as of right the circuit

court order granting defendant’s motion for summary

disposition. We dismiss the appeal as moot.

Plaintiff was a student at defendant law school when

she failed to attend her intraschool moot court class and

turn in an assignment worth 10 points. The following

week, she reported that she had not turned in the

assignment because she was not proud of it. When

instructed to e-mail the assignment immediately after

class so that it could be determined if points could be

awarded, plaintiff admitted that she had been dishonest

with her professor about the status of the assignment.

The professor referred the matter to the assistant dean

2010] K

IETA V

OOLEY

CHOOL

145

of students for review under the school’s honor code.

After attempts to resolve the matter informally failed

because plaintiff refused to cooperate, formal proceed-

ings for lying and for failing to cooperate (termed

“toleration”) in violation of the law school’s honor code

were commenced. Plaintiff filed a complaint seeking

injunctive relief to prevent the hearing from occurring.

The trial court denied the motion, but allowed plaintiff

to amend her complaint to raise claims of breach of

contract and arbitrary and capricious conduct. Despite

the amended complaint, plaintiff continued to request

injunctive relief to prevent damage to her reputation,

her academic record, and her admission to the bar.

Plaintiff did not identify monetary damages arising

from any alleged breach of contract.

After the hearing was completed, the panel concluded

that there was clear and convincing evidence to support

the honor-code violation of lying, but did not find clear

and convincing evidence to support the honor-code

violation of toleration. With regard to the penalty for

the violation, the panel concluded that three hours of

counseling and instruction in civility, ethics, and stress

management was appropriate. More importantly, the

panel held that a summary of the decision would be

placed in plaintiff’s file, but expressly concluded that

the nature and circumstances of the violation would not

prevent plaintiff’s admission to the bar.

After the panel rendered its decision, plaintiff at-

tempted to pursue her lawsuit, but the trial court

granted defendant’s motion for summary disposition

and denied plaintiff’s motion for application of judicial

Plaintiff’s brief on appeal does not comply with the requirements of

MCR 7.212(C)(6) because it does not contain a statement of all the

material facts, both favorable and unfavorable. In fact, it does not

identify the underlying factual basis for the honor-code violations.

146 290 M

ICH

144 [Sept

estoppel. The trial court held that the honor code did

not give rise to an enforceable contract and that the law

school had not engaged in arbitrary and capricious

conduct. After the trial court’s decision, plaintiff gradu-

ated from defendant law school and was admitted to the

Illinois bar. Nonetheless, plaintiff filed an appeal of the

order granting defendant’s motion for summary dispo-

sition.

In order to appeal, a party must be an aggrieved

party. MCR 7.203(A). “It is a cardinal principle, which

applies alike to every person desiring to appeal, that he

must have an interest in the subject-matter of the

litigation. Otherwise he can have no standing to ap-

peal.” Allen v Soule, 191 Mich 194, 197; 157 NW 383

(1916). On appeal, the litigant must demonstrate that

he or she is affected by the decision of the trial court.

George Realty Co v Paragon Refining Co of Mich, 282

Mich 297, 300; 276 NW 455 (1937); see also Ford Motor

Co v Jackson (On Rehearing), 399 Mich 213, 226 n 9;

249 NW2d 29 (1976) (stating that a party is entitled to

appeal when it is interested in the subject matter of the

controversy and is injuriously affected or aggrieved by

the lower court’s judgment or order) (citation omitted).

An issue becomes moot when a subsequent event ren-

ders it impossible for the appellate court to fashion a

remedy. In re Contempt of Dudzinski, 257 Mich App 96,

112; 667 NW2d 68 (2003).

The summary of the facts of this case demonstrates

that we cannot provide a remedy from the trial court’s

decision. Defendant sought to investigate an incident

between plaintiff, who was a student, and a professor

wherein the professor accused plaintiff of lying in

violation of the student honor code. Defendant sought

to informally resolve the matter, but plaintiff refused to

cooperate. Consequently, defendant commenced formal

2010] K

IETA V

OOLEY

CHOOL

147

proceedings against plaintiff. Plaintiff was found to

have violated the honor code and ordered to complete

three hours of counseling. After the hearing was held

and the sanction was imposed, plaintiff pursued her

claims of breach of contract and arbitrary and capri-

cious conduct. However, plaintiff has since graduated

from defendant law school. In light of plaintiff’s gradu-

ation, we cannot fashion a remedy, and her appeal is

moot.

Id.

Dismissed as moot. Defendant, as the prevailing

party, may tax costs. MCR 7.219.

At oral argument, plaintiff refused to answer questions regarding the

underlying incident. Moreover, plaintiff alleged that she had incurred

damages, but could not identify harm flowing from any alleged breach of

contract or to her reputation. See Alan Custom Homes, Inc v Krol, 256

Mich App 505, 512; 667 NW2d 379 (2003). Indeed, but for the filing of

this appeal, the underlying incident would have merely remained part of

the plaintiff’s law school file.

For purposes of completeness, we note that the student honor code

did not create a contract, see Cuddihy v Wayne State Univ Bd of

Governors, 163 Mich App 153, 156-158; 413 NW2d 692 (1987), and

plaintiff failed to establish a genuine issue of material fact regarding the

alleged arbitrary and capricious conduct, see Quinto v Cross & Peters Co,

451 Mich 358, 362; 547 NW2d 314 (1996).

148 290 M

ICH

144 [Sept

WILSON v SPARROW HEALTH SYSTEM

Docket No. 290895. Submitted June 16, 2010, at Lansing. Decided

September 21, 2010, at 9:00 a.m.

David L. and Sheryl J. Wilson brought an action in the Ingham

Circuit Court against Sparrow Health System, Sparrow Develop-

ment Corporation, and East Lansing Athletic Club, Inc., doing

business as Michigan Athletic Club, Inc., alleging, in part, negli-

gence and defamation. The action arose from an incident that

occurred at defendants’ athletic club when a man exposed himself

to two female lifeguards. The executive director of the athletic club

conducted an internal investigation of the incident and, during the

investigation, showed the lifeguards photographs of 16 male

members of the athletic club who had used the facility on the

evening that the incident occurred. The lifeguards identified David

Wilson as the man who had exposed himself. The executive

director reported the offense and the results of his investigation to

the police, who conducted their own investigation. David Wilson

was subsequently arrested and charged with indecent exposure,

but the charge was dropped after another indecent-exposure

incident occurred at the athletic club, the perpetrator was caught,

and he confessed that he was the man who had exposed himself in

the prior incident. Defendants moved for summary disposition,

and the court, William E. Collette, J., granted summary disposition

in their favor. Plaintiffs appealed.

The Court of Appeals held:

1. The conduct complained of by plaintiffs did not cause their

injuries. It was the police and the prosecuting attorney, not

defendants, who concluded that there was probable cause to

pursue the matter against David Wilson. Any causal contribution

of defendants’ investigation to plaintiffs’ alleged injuries was cut

off by the actions of the police and the prosecuting attorney. It was

not reasonably foreseeable when defendants conducted their own

investigation that law enforcement officials would do anything

other than conduct an independent investigation and then arrive

at their own independent judgment regarding whether to bring

the charge against David Wilson. The conduct of the police and the

prosecuting attorney constituted a superseding cause of plaintiffs’

2010] W

ILSON V

PARROW

EALTH

149

alleged injuries, and defendants cannot be held liable for those

injuries as a matter of law. Holding otherwise would have a chilling

effect on citizens who discharge their civic duty to both inquire

into and report information about possible criminal conduct to law

enforcement officials. The trial court correctly granted summary

disposition in favor of defendants on the negligence claim.

2. Because the police had told defendants that David Wilson

was their prime suspect in the indecent-exposure incidents when

defendants created and distributed to their managers and life-

guards a memorandum that referred to David Wilson as a previ-

ously identified suspect and because the memorandum specifically

stated that David Wilson was a suspect, not the person who had

committed the acts, the statement in the memorandum was not

false and was not defamatory. The trial court correctly granted

summary disposition in favor of defendants on the defamation

claim.

Affirmed.

IBEL AND

LANDER —

EFAMATION —

EFENSES —

RUTH.

To establish a claim for defamation, a plaintiff must show (1) that a

false and defamatory statement concerning the plaintiff was made,

(2) that the defendant made an unprivileged publication to a third

party, (3) fault that amounted to at least negligence on the part of

the publisher, and (4) either actionability of the statements irre-

spective of special harm or the existence of special harm that the

publication caused; truth is an absolute defense to a defamation

claim.

Sinas, Dramis, Brake, Boughton & McIntyre, P.C. (by

James F. Graves and Steven A. Hicks), for plaintiffs.

Johnson & Wyngaarden, P.C. (by Robert M. Wyn-

gaarden and Michael L. Van Erp), for defendants.

Before: M

URRAY

,P.J., and S

AAD

and M. J. K

ELLY

,JJ.

AAD

, J. Plaintiffs appeal the trial court’s order that

granted defendants’ motion for summary disposition

pursuant to MCR 2.116(C)(10). Because plaintiffs failed

to make out prima facie cases of negligence and defa-

mation, we affirm.

150 290 M

ICH

149 [Sept

I. FACTS

This action arises from an incident that occurred at

the Michigan Athletic Club (MAC) in East Lansing at

approximately 10:00 p.m. on August 25, 2006. That

evening, a man exposed himself to two female life-

guards as they were closing the pool. The lifeguards

reported the incident to the manager, who in turn

reported it to the MAC’s executive director. Before he

reported the incident to the police, the executive direc-

tor conducted an investigation to determine if the police

should be contacted. The executive director compiled 16

photographs of male MAC members who had used their

membership cards to check in on the evening of August

25. Plaintiff David Wilson

was one of those men. The

executive director showed the photographs to the life-

guards and they identified Wilson as the man who

exposed himself. After their identification, the execu-

tive director reported the offense to the police and

relayed the results of his internal investigation. The

police conducted their own investigation, interviewed

all relevant witnesses, and ultimately arrested Wilson

and charged him with indecent exposure. After another

indecent-exposure incident occurred at the MAC, the

perpetrator was caught, and he confessed that he was

the man who had exposed himself in the August 25,

2006, incident as well. Later, the police dropped the

charge against Wilson.

Plaintiffs filed a complaint against defendants alleg-

ing multiple theories of liability, including common-law

negligence and defamation. Following some discovery,

defendants moved for summary disposition pursuant to

MCR 2.116(C)(10). The trial court ruled that defen-

We will refer to David Wilson as “Wilson” and to David and Sheryl

Wilson as “plaintiffs.”

2010] W

ILSON V

PARROW

EALTH

151

dants did not owe plaintiffs a legal duty and granted

defendants’ motion for summary disposition on plain-

tiffs’ negligence claim. The trial court also granted

summary disposition to defendants on plaintiffs’ defa-

mation claim.

II. NEGLIGENCE

“This Court reviews de novo the grant or denial of a

motion for summary disposition to determine if the

moving party is entitled to judgment as a matter of

law.” In re Handelsman, 266 Mich App 433, 435; 702

NW2d 641 (2005), citing Maiden v Rozwood, 461 Mich

109, 118; 597 NW2d 817 (1999). The moving party is

entitled to judgment as a matter of law when viewing

the evidence in the light most favorable to the nonmov-

ing party, Corley v Detroit Bd of Ed, 470 Mich 274, 278;

681 NW2d 342 (2004), and drawing all reasonable

inferences in favor of the nonmovant, Scalise v Boy

Scouts of America, 265 Mich App 1, 10; 692 NW2d 858

(2005), the court finds that no genuine issue of material

fact exists, Maiden, 461 Mich at 120.

Though the trial court ruled that defendants did not

owe a duty to plaintiffs regarding defendants’ investi-

gation, we need not address the question of defendants’

legal duty because we hold that the conduct complained

of did not cause plaintiffs’ injuries. Were we to hold that

defendants owed Wilson a duty of care in conducting

their investigation, Wilson’s claim would nonetheless

fail because, as a matter of law, defendants did not

proximately cause any of plaintiffs’ alleged injuries. The

gravamen of plaintiffs’ complaint is that the police

wrongfully charged Wilson with the crime of indecent

exposure. After defendants conducted a modest, pre-

liminary internal investigation following complaints of

a crime, they turned the matter over to the police. It

152 290 M

ICH

149 [Sept

was then in the hands of law enforcement officials to

pursue the matter, and it was the prosecutor’s decision

whether the police had gathered sufficient evidence

against Wilson to bring criminal charges. People v

Jackson, 192 Mich App 10, 15; 480 NW2d 283 (1991).

When a citizen places information or a complaint in

the hands of the police, even if the information is

flawed, and then the police conduct their own investi-

gation and, with the prosecutor, determine that there is

probable cause to pursue the matter, that decision is

entirely outside the authority or control of the private

citizen. Even if Wilson was incorrectly identified by the

female lifeguards who witnessed the crime, the police

conducted their own investigation, gathered evidence,

and interviewed all relevant witnesses, and it was the

police and the prosecutor, not defendants, who con-

cluded that there was sufficient probable cause to

pursue the matter. Had plaintiffs produced some evi-

dence showing that defendants’ investigation somehow

contributed to plaintiffs’ injuries, any causal contribu-

tion of defendants’ investigation to plaintiffs’ alleged

injuries was nonetheless cut off by the actions of the

police and the prosecutor. And it was simply not rea-

sonably foreseeable when defendants conducted their

own investigation into the August 25, 2006, incident

that law enforcement officials would do anything more

or less than conduct an independent investigation and

then arrive at their own independent judgment regard-

ing whether to bring charges against Wilson. Thus, the

conduct of the police and the prosecutor constituted a

superseding cause of plaintiffs’ alleged injuries, and

defendants cannot be held liable as a matter of law. See

Ridley v Detroit, 231 Mich App 381, 389-390; 590 NW2d

69 (1998). We further observe that, were we to hold

otherwise, it would have a chilling effect on citizens who

discharge their civic duty to both inquire into and

2010] W

ILSON V

PARROW

EALTH

153

report information about possible criminal conduct to

law enforcement officials. Indeed, institutions such as

businesses, schools, and municipalities and employers

are often put in a position where they must investigate

alleged criminal activity while accommodating impor-

tant competing interests and must decide how to pursue

complaints and what information, if any, to report to

outside authorities. To impose legal responsibility on

these citizens for the later, independent decisions of law

enforcement officials would unduly restrict the citizens’

ability to discharge their legal rights and duties to

report criminal wrongdoing. Indeed, it is a fundamental

“right and privilege of [a citizen] secured by the consti-

tution and laws of the United States to aid in the

execution of the laws of [his or her] country by giving

information to the proper authorities.” Hall v Pizza Hut

of America, Inc, 153 Mich App 609, 615; 396 NW2d 809

(1986). Were our courts to impose civil liability on

citizens who turn information over to the police and

prosecutors, it would, quite simply, undermine this

basic constitutional principle and impede criminal in-

vestigations. Accordingly, and for the reasons stated,

the trial court correctly granted summary disposition to

defendants on plaintiffs’ negligence claim.

III. DEFAMATION

Plaintiffs argue that the trial court erred when it

dismissed their defamation claim. To establish a claim

for defamation, the plaintiff must show (1) that “a false

and defamatory statement concerning the plaintiff”

was made, (2) that the defendant made “an unprivi-

leged publication to a third party, (3) fault amounting to

at least negligence on the part of the publisher, and (4)

either actionability of the statements irrespective of

special harm, or the existence of special harm caused by

154 290 M

ICH

149 [Sept

the publication.” Gonyea v Motor Parts Fed Credit

Union, 192 Mich App 74, 76-77; 480 NW2d 297 (1991).

Truth is an absolute defense to a defamation claim.

Porter v Royal Oak, 214 Mich App 478, 486; 542 NW2d

905 (1995). Plaintiffs’ claim centers on a memorandum

distributed to all MAC managers and lifeguards that

outlined the procedures for handling indecent-exposure

incidents. That memorandum referred to a previously

identified suspect, i.e., David Wilson.

The trial court ruled that at the time defendants

circulated the memorandum containing the alleged

defamatory statement, the police had told defendants

that Wilson was the “prime suspect” in the indecent-

exposure incidents. The court explained that because

the memorandum merely relayed information that de-

fendants received from the police, allegations about

Wilson contained in the document were neither false

nor defamatory. Because Wilson was, in fact, a suspect

in the indecent-exposure incidents when the memoran-

dum was created and circulated and the memorandum

specifically stated that he was a suspect, not the person

who had committed the acts, defendants’ statement was

not defamatory. Id. Therefore, the trial court did not err

when it held that plaintiffs were not entitled to relief on

their defamation claim.

Affirmed.

2010] W

ILSON V

PARROW

EALTH

155

BRADLEY v STATE FARM MUTUAL AUTOMOBILE

INSURANCE COMPANY

Docket No. 292716. Submitted September 15, 2010, at Lansing. Decided

September 28, 2010, at 9:00 a.m.

Stephanie M. Bradley brought an action in the St. Clair Circuit

Court against State Farm Mutual Automobile Insurance Com-

pany, the insurer of her automobile, alleging breach of contract

resulting from State Farm’s refusal to settle plaintiff’s claim for

uninsured-motorist benefits under her policy. Plaintiff had been

injured in an accident that occurred when her vehicle was

struck by a vehicle that was driven by William Bowen, III, and

owned by Sandra Bowen. After the accident, plaintiff had

originally brought an action against William and Sandra, but it

was determined during discovery that William was specifically

excluded as a driver under Sandra’s automobile insurance

policy because he was charged with stealing Sandra’s vehicle.

Sandra was then dismissed from that action. William, who was

uninsured, failed to defend, and a default judgment for $50,000

was entered against William after the court determined that

plaintiff had suffered a serious impairment of a body function,

following which plaintiff brought the present action. State Farm

moved for summary disposition, arguing that plaintiff had

breached her contract by failing to join William and Sandra as

parties, which was required by the provision in the policy that

mandated joinder of all tortfeasors in any suit brought against

State Farm under the policy. The trial court, Daniel J. Kelly, J.,

agreed with State Farm and granted its motion. Plaintiff

appealed.

The Court of Appeals held:

1. Although the Supreme Court held in Rory v Continental

Ins Co, 473 Mich 457 (2005), that an unambiguous provision in

an uninsured-motorist policy must be enforced as written, Rory

did not overrule the holding in Koski v Allstate Ins Co, 456 Mich

439 (1998), that an insurer that seeks to cut off responsibility on

the ground that its insured did not comply with a contract

provision requiring notice must establish actual prejudice to its

position. The Koski principle is equally applicable to an analo-

156 290 M

ICH

156 [Sept

gous provision requiring the joinder of all tortfeasors in any suit

brought against the insurer by the insured. State Farm’s

subrogation rights will not be prejudiced by allowing this suit to

be litigated.

2. The insurance policy provided that State Farm would not be

bound by any judgment obtained without its consent or by any

default judgment against any person other than State Farm.

Therefore, plaintiff was contractually precluded from contending

that the default judgment against William entitled her to collect

certain sums from State Farm in uninsured-motorist benefits.

Plaintiff may not rely on the prior suit against William and

Sandra, and in this case she must still prove her tort case in

relation to the accident, including establishing that she suffered a

serious impairment of a body function.

Reversed and remanded.

OEKSTRA

, J., dissenting, noted that the joinder provision in the

insurance policy required plaintiff to join State Farm, William

Bowen, and Sandra Bowen in a lawsuit seeking uninsured-motor-

vehicle benefits. The provision is unambiguous and must be

enforced as written. Rory required the enforcement of unambigu-

ous contract provisions as written unless the provisions violated

law or public policy or one of the traditional contract defenses

applied. While agreeing that Rory did not overrule the specific

legal principle stated in Koski that required a showing of prejudice,

Judge H

OEKSTRA

disagreed with the majority’s decision to require

defendant to show prejudice. Prejudice is not a traditional contract

defense, and the joinder provision in the policy contained no

prejudice exception.

NSURANCE —

NINSURED

-M

OTORIST

ENEFITS —

CTIONS —

OINDER OF

ORT-

FEASORS —

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

position, however, in order to cut off its responsibility under an

uninsured-motorist policy provision that requires the joinder of all

tortfeasors in any suit brought against the insurer by the insured

on the basis that the insured failed to comply with the joinder

provision.

Daniel Randazzo for plaintiff.

James C. Rabaut & Associates (by Steven A. Kohler)

for defendant.

2010] B

RADLEY V

TATE

ARM

157

Before: M

URPHY

, C.J., and H

OEKSTRA

and S

TEPHENS

JJ.

URPHY

, C.J. In this action involving uninsured-

motorist benefits, plaintiff appeals as of right the trial

court’s order granting summary disposition in favor of

defendant pursuant to MCR 2.116(C)(10). We reverse.

This case has been decided without oral argument

pursuant to MCR 7.214(E).

Plaintiff was injured in a car accident on March 8,

2007, in St. Clair County, Michigan. Plaintiff’s vehicle

was struck on the passenger side by a vehicle driven by

an uninsured motorist, William Bowen, III (hereafter

referred to as “Bowen”). As a result of the accident,

plaintiff sustained multiple injuries.

Before filing the instant action against defendant,

the insurer of her vehicle, plaintiff filed a complaint on

June 18, 2007, against Bowen as the driver of the car

that caused the collision and Sandra Kay Bowen as the

owner of that car. AIG was the insurer of Sandra

Bowen’s vehicle. The prior complaint alleged that Bo-

wen was driving the car with Sandra Bowen’s knowl-

edge and consent. However, it was determined during

the discovery process that Bowen was specifically ex-

cluded as a driver under the AIG policy because he was

charged with stealing the vehicle. Sandra Bowen was

thereafter dismissed from that suit.

Bowen failed to defend against the prior lawsuit and,

following testimony, a default judgment was entered

against him. The trial court in the prior action took

testimony from plaintiff and determined that she had

suffered a serious impairment of body function. The

default judgment was for $50,000 and was entered May

12, 2008.

158 290 M

ICH

156 [Sept

PINION OF THE

OURT

Thereafter, plaintiff unsuccessfully attempted to

settle with defendant, her insurance company, following

entry of the default judgment in the 2007 lawsuit.

Plaintiff claimed that she was entitled to recover ben-

efits under an uninsured-motor-vehicle provision in her

policy. The policy limit for uninsured-motorist benefits

was $25,000. When defendant refused to settle, plaintiff

filed the instant complaint, claiming breach of contract.

Defendant moved for summary disposition, arguing

that plaintiff had breached the contract by failing to

join Bowen and Sandra Bowen as parties, given their

statuses as driver and owner, respectively, or to join

defendant in the prior lawsuit, which was required in

order for plaintiff to recover benefits under the policy.

The trial court agreed and granted summary disposi-

tion in favor of defendant pursuant to MCR

2.116(C)(10), determining that plaintiff breached the

contract when she failed to follow the unambiguous

language of the policy that required joinder of all

tortfeasors in the suit brought against defendant. Ac-

cordingly, plaintiff was not entitled to uninsured-

motorist benefits.

On appeal, plaintiff presents myriad arguments in

support of reversal, but we need only address plaintiff’s

contention that, essentially, defendant incurred no

prejudice by her failure to join Bowen and Sandra

Bowen as party defendants.

This Court reviews de novo the grant or denial of a

motion for summary disposition. Brown v Brown, 478

Mich 545, 551; 739 NW2d 313 (2007). When reviewing

a motion brought under MCR 2.116(C)(10), this Court

considers the pleadings, admissions, and other evidence

submitted by the parties in a light most favorable to the

nonmoving party. Brown, 478 Mich at 551-552. A deci-

sion granting summary disposition is appropriate if

2010] B

RADLEY V

TATE

ARM

159

PINION OF THE

OURT

there is no genuine issue of any material fact and the

moving party is entitled to judgment as a matter of law.

Id. at 552.

Because uninsured-motorist coverage is not statuto-

rily mandated, the language of the insurance policy

governs the conditions of coverage. Stoddard v Citizens

Ins Co of America, 249 Mich App 457, 460; 643 NW2d

265 (2002). The interpretation of an insurance contract,

including resolution of whether an ambiguity exists in

the contract, is a question of law that is reviewed de

novo on appeal. Wilkie v Auto-Owners Ins Co, 469 Mich

41, 47; 664 NW2d 776 (2003). The language in the

insurance contract is given its plain and ordinary mean-

ing if apparent to a reader of the instrument. Id. at

47-48.

Plaintiff argues that the language in the insurance

contract requiring joinder of any tortfeasors reflects an

attempt to protect defendant’s subrogation rights, but

plaintiff’s act of procuring a default judgment, as op-

posed to a settlement agreement with a release, in an

amount that exceeded the policy limit did not infringe

defendant’s subrogation rights; defendant can still re-

cover against Bowen. This argument necessarily ac-

knowledges that plaintiff failed to comply with the

joinder provision, but because defendant suffered no

prejudice from the failure to join, defendant should not

be relieved of liability to provide uninsured-motorist

benefits to plaintiff, who had paid premiums for that

coverage.

In Koski v Allstate Ins Co, 456 Mich 439, 444; 572

NW2d 636 (1998), our Supreme Court indicated that,

generally speaking, one who files suit for performance

of a contractual obligation must prove that all contrac-

tual conditions prerequisite to performance have been

satisfied. However, the Court continued by stating that

160 290 M

ICH

156 [Sept

PINION OF THE

OURT

“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 requir-

ing notice immediately or within a reasonable time

must establish actual prejudice to its position.” Id.; see

also Tenneco Inc v Amerisure Mut Ins Co, 281 Mich App

429, 447-448; 761 NW2d 846 (2008).

Although we are not specifically addressing a notice

provision, the joinder provision here served a compa-

rable purpose, which was to give defendant the oppor-

tunity to protect its financial interests by exercising

investigatory, defense, and subrogation rights. We con-

clude that the Koski principle is equally applicable to an

analogous joinder provision; there is no valid distin-

guishing reason not to apply Koski. We acknowledge our

Supreme Court’s decision in Rory v Continental Ins Co,

473 Mich 457, 461; 703 NW2d 23 (2005), wherein the

Court held that an unambiguous provision in an

uninsured-motorist policy must be enforced as written

regardless of the equities and reasonableness of the

provision. However, Koski carved out a narrow preju-

dice requirement relative to all insurance contracts,

and Rory did not overrule the Supreme Court’s earlier

ruling in Koski, which we find controlling.

With respect to subrogation, the insurance policy

provided: “If we are obligated under this policy to make

payment to or for a person who has a legal right to

The dissent disagrees that defendant should be required to show

prejudice, asserting that Rory controls given that it is the latest pro-

nouncement of our Supreme Court concerning construction of an insur-

ance policy. Rory, however, did not examine the prejudice principle

discussed in Koski. Moreover, Tenneco, 281 Mich App at 447-448, which

was decided in 2008 and after Rory was issued, and which constitutes

binding precedent, acknowledged the continuing application of Koski.

The Tenneco panel also cited additional, earlier Michigan Supreme Court

precedent supporting imposition of a prejudice requirement. Id. at 448.

2010] B

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collect from another party, then we will be subrogated

to that right to the extent of our payment.”

Subrogation rights can be acquired by way of con-

tractual assignment or under principles of equity. Citi-

zens Ins Co of America v Buck, 216 Mich App 217, 226;

548 NW2d 680 (1996). Here, defendant can subrogate

itself with respect to plaintiff’s right to enforce the

$50,000 default judgment against Bowen, at least up to

the policy limit of $25,000, and attempt collection from

Bowen if defendant becomes obligated, through litiga-

tion or settlement, to pay benefits to plaintiff. Bowen

was not released from liability. Whether Bowen is

ultimately collectible is irrelevant, given that the same

problem would exist even had Bowen, Sandra Bowen,

and defendant been joined in a lawsuit. And $50,000 is

more than enough to cover defendant’s potential liabil-

ity to plaintiff, considering that the policy limit for

uninsured-motorist benefits was $25,000. Accordingly,

defendant’s subrogation rights will not be prejudiced by

allowing the instant suit to be litigated.

With respect to defendant’s right to defend, defen-

dant maintains that entry of the default judgment

resulted in the loss of an opportunity to challenge the

elements of plaintiff’s tort action, which thereby pre-

cludes defendant from challenging its liability under

the insurance policy. Defendant’s argument lacks merit.

The insurance policy provides that defendant is not

bound by any “judgment obtained without [defen-

dant’s] written consent,” nor is it bound by any “default

judgment against any person . . . other than [defen-

dant].” Therefore, plaintiff is contractually precluded

from contending that the default judgment entitles her

to collect certain sums from defendant in uninsured-

motorist benefits. Regardless of the default judgment,

and in the context of this insurance action, plaintiff will

162 290 M

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PINION OF THE

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still have to prove her tort case in relation to the

accident, including establishing that she suffered a

serious impairment of a body function, an issue now

controlled by McCormick v Carrier, 487 Mich 180, 184;

795 NW2d 517 (2010), overruling Kreiner v Fischer, 471

Mich 109; 683 NW2d 611 (2004).

The doctrine of collateral estoppel does not apply

here because defendant did not have any opportunity,

let alone a full, fair, and adequate opportunity, to

litigate the issues of negligence and serious impairment

of body function, given plaintiff’s conduct in failing to

join defendant in the first suit as called for by the

insurance policy. Monat v State Farm Ins Co, 469 Mich

679, 682-683&n2;677NW2d 843 (2004).

Plaintiff cannot simply rely on the prior suit that led

to the default judgment; the case effectively starts from

scratch. Under those circumstances, defendant will not

be deprived of its right to defend and thus will not be

prejudiced by our allowing the instant suit to be liti-

gated.

In light of our holding, it is unnecessary to address

the additional arguments presented by plaintiff.

Reversed and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction. Having

fully prevailed on appeal, plaintiff is awarded taxable

costs pursuant to MCR 7.219.

TEPHENS

, J., concurred.

OEKSTRA

,J.(dissenting). Because I disagree with the

majority’s conclusion that defendant is required to

show prejudice from plaintiff’s failure to join defendant

in a lawsuit with Sandra Bowen and William Bowen,

III, I respectfully dissent.

This Court is obligated to follow the most recent

pronouncement of the Supreme Court on a principle of

2010] B

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,J.

law. Washington Mut Bank, FA v ShoreBank Corp, 267

Mich App 111, 119; 703 NW2d 486 (2005). The Supreme

Court’s most recent pronouncement on how an insur-

ance policy is to be construed is found in Rory v

Continental Ins Co, 473 Mich 457; 703 NW2d 23 (2005).

Pursuant to Rory, an insurance policy is subject to the

same rules of contract construction that apply to other

species of contract. Id. at 461. The rules of contract

construction provide that an unambiguous contract

provision is to be enforced as written unless the provi-

sion violates law or public policy or one of the tradi-

tional contract defenses applies. Id. at 461, 468, 470.

Plaintiff’s insurance policy includes uninsured-

motor-vehicle coverage. Because such coverage is not

required by the no-fault act, MCL 500.3101 et seq., the

rights and limitations of that coverage are purely con-

tractual. Rory, 473 Mich at 465-466. The provision for

uninsured-motor-vehicle coverage in plaintiff’s insur-

ance policy requires that if the parties are unable to

agree about whether plaintiff is legally entitled to

collect compensatory damages from the owner or driver

of an uninsured motor vehicle or the amount of those

damages, plaintiff “shall... file a lawsuit” against

defendant, the owner and the driver of the uninsured

motor vehicle, and any third party who may be liable for

plaintiff’s injuries. The term “shall” denotes mandatory

conduct. Nuculovic v Hill, 287 Mich App 58, 62; 783

NW2d 124 (2010). This joinder provision is unambigu-

ous; it required plaintiff to join defendant, Sandra

Bowen, and William Bowen, III, in a lawsuit seeking

uninsured-motor-vehicle benefits. Because the joinder

provision is unambiguous, it must be enforced as writ-

ten. Rory, 473 Mich at 461.

I find no merit to plaintiff’s argument that certain elements of the

provision for uninsured-motor-vehicle coverage violate public policy.

164 290 M

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156 [Sept

ISSENTING

PINION BY

OEKSTRA

,J.

I agree with the majority that Rory did not overrule

the specific legal principle stated in Koski v Allstate Ins

Co, 456 Mich 439, 444; 572 NW2d 636 (1998), 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.” “[T]o overrule is to declare that a rule of law

no longer has precedential value.” Sumner v Gen Mo-

tors Corp (On Remand), 245 Mich App 653, 665; 633

NW2d 1 (2001); see also Black’s Law Dictionary (7th ed)

(defining “overrule” as “to overturn or set aside (a

precedent) by expressly deciding that it should no

longer be controlling law”). In Rory, the Supreme Court

did not address whether, and consequently did not

declare that, the prejudice principle stated in Koski was

no longer a controlling legal principle.

Nonetheless, I disagree with the majority’s decision

to require defendant to show prejudice from plaintiff’s

failure to comply with the joinder provision. Prejudice is

not a traditional contract defense. See Rory, 473 Mich

at 470 n 23 (“Examples of traditional defenses include

duress, waiver, estoppel, fraud, or unconscionability.”).

Moreover, this Court is mandated to enforce an unam-

biguous contractual provision as written. Id. at 461.

The majority, by requiring defendant to show prejudice

from plaintiff’s failure to comply with the joinder pro-

vision, fails to enforce the joinder provision as written.

First, the provision does not strip plaintiff of her right to a jury trial

because it expressly provides that if the parties are unable to reach an

agreement regarding uninsured-motor-vehicle benefits, plaintiff must

file a lawsuit. Second, while the provision states that defendant is not

bound by any judgment obtained without its written consent, this would

clearly not pertain to a judgment obtained directly against defendant

itself as a party to a lawsuit. I also find no merit to plaintiff’s argument

that the insurance policy is an unconscionable adhesion contract.

2010] B

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,J.

The joinder provision contains no prejudice exception.

With its decision to apply the prejudice principle stated

in Koski to the joinder provision, the majority fails to

follow the Supreme Court’s most recent pronounce-

ment on how to construe an insurance policy.

Because plaintiff did not join defendant in a lawsuit

with Sandra Bowen and William Bowen, III, plaintiff

failed to comply with the unambiguous terms of her

insurance policy. For this reason, I would affirm the

trial court’s order granting summary disposition to

defendant.

I acknowledge that in Tenneco Inc v Amerisure Mut Ins Co, 281 Mich

App 429; 761 NW2d 846 (2008), this Court applied the prejudice principle

of Koski. Ultimately, however, the Court concluded that the defendant

insurance company was prejudiced by the plaintiff’s failure to provide

prompt notice of suits, claims, or demands. Thus, there was no reason for

the Court to address whether Koski and its prejudice principle remained

binding precedent. Indeed, the Court never cited Rory, and it did not

address the effect of Rory on the prejudice principle stated in Koski.In

this context, while Tenneco is binding precedent, MCR 7.215(C)(2),

Tenneco is not controlling on the question presented in this case.

166 290 M

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PINION BY

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,J.

SWANSON v PORT HURON HOSPITAL (ON REMAND)

Docket Nos. 275404 and 278491. Submitted January 25, 2010, at Lan-

sing. Decided June 24, 2010. Approved for publication September

28, 2010, at 9:05 a.m.

Heather Swanson brought a medical malpractice action in the St.

Clair Circuit Court against Port Huron Hospital (also known as

Port Huron Hospital Medical Group), Jeannie L. Rowe, D.O., and

Bluewater Obstetrics and Gynecology, P.C. Plaintiff alleged, in

part, that Dr. Rowe’s negligence during a laparoscopic procedure

to remove an ovarian cyst resulted in a puncture wound to her

aorta and a scar around her navel as a result of a laparotomy

performed to repair the aorta. Port Huron was dismissed from the

proceedings. After the close of plaintiff’s proofs, the remaining two

defendants moved for a directed verdict, arguing that plaintiff’s

affidavit of merit had not sufficiently specified the element of

proximate cause, as MCL 600.2912d(1)(d) required, because it did

not properly describe the manner in which defendants’ breach

caused plaintiff’s injury. The court, Daniel J. Kelly, J., denied the

motion, concluding that the affidavit was sufficient. After the jury

returned a verdict in plaintiff’s favor, defendants moved for

judgment notwithstanding the verdict or a new trial, arguing

again that the affidavit of merit was deficient and also that

plaintiff’s notice of intent had failed to comply with MCL

600.2912b. The court denied the motion. Defendants appealed,

and plaintiff appealed the court’s award of attorney fees and costs.

After consolidating the appeals, the Court of Appeals, W

HITBECK

P.J., and O

WENS

, J., (O’C

ONNELL

, J., dissenting), reversed in an

unpublished opinion per curiam, issued June 2, 2009 (Docket Nos.

275404 and 278491), concluding that the notice of intent was

defective, and remanded the case for entry of an order vacating the

verdict and judgment against defendants. In lieu of granting

plaintiff’s application for leave to appeal, the Supreme Court

vacated the judgment of the Court of Appeals and remanded for

that court to reconsider the parties’ appeals in light of Bush v

Shabahang, 484 Mich 156 (2009), and MCL 600.2301. 485 Mich

1008 (2009).

On remand, the Court of Appeals held:

2010] S

WANSON V

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) 167

1. MCL 600.2301 allows a court to amend any process, plead-

ing, or proceeding in an action for the furtherance of justice on

terms that are just. Bush held that MCL 600.2301 may be used to

cure defects in a notice of intent. Under Bush, the applicability of

MCL 600.2301 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. In medical malpractice cases,

in which the defendants are health professionals with enough

medical expertise to understand the nature of the claims against

them, defects present in a notice of intent do not implicate

substantial rights. When a plaintiff makes a good-faith attempt to

comply with the requirements for the notice of intent set forth in

MCL 600.2912b, allowing an amendment to cure any defects in the

notice, rather than dismissing the action without prejudice, is in

the furtherance of justice.

2. Plaintiff’s notice of intent was defective because it failed to

provide sufficient statements regarding the breach of the standard

of care, the actions that defendants should have taken to comply

with that standard, and proximate cause. However, plaintiff pro-

vided an explanation of the factual basis of her claim and made a

good-faith effort to comply with the statutory content require-

ments by alleging numerous standards of practice or care she

considered applicable. The defects in her notice did not warrant

dismissal and should be disregarded.

3. The trial court erred by instructing the jury on the doctrine

of res ipsa loquitur. That instruction is appropriate when the

requesting party presents sufficient evidence (1) that the event

was of a kind that ordinarily does not occur in the absence of

someone’s negligence, (2) that it was caused by an agency or

instrumentality within the exclusive control of the defendant, (3)

that it was not due to any voluntary action or contribution on the

part of the plaintiff, and (4) that evidence of the true explanation

of the event is more readily accessible to the defendant than the

plaintiff. At trial, both plaintiff and defendants presented evidence

that plaintiff’s injury was a known complication of laparoscopic

surgery and could occur in the absence of any negligence on the

part of the treating physician. Accordingly, the jury was incorrectly

instructed, and reversal was required.

Reversed and remanded.

1. N

EGLIGENCE —

EDICAL

ALPRACTICE —

OTICE OF

NTENT TO

ILE

UIT —

EFECTS IN

OTICE —

MENDMENT OF

OTICE

MCL 600.2301 allows for the amendment of processes, pleadings, or

proceedings and may be used to cure defects in a notice of intent

168 290 M

ICH

167 [Sept

under MCL 600.2912b; determining whether MCL 600.2301 ap-

plies involves 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; in medical malpractice cases, in which the

defendants are health professionals with enough medical expertise

to understand the nature of the claims against them, defects

present in a notice of intent do not implicate substantial rights;

when a plaintiff makes a good-faith attempt to comply with the

requirements for the notice of intent set forth in MCL 600.2912b,

allowing an amendment to cure any defects in the notice is in the

furtherance of justice.

2. N

EGLIGENCE —

PSA

OQUITUR —

LEMENTS

Instructing a jury on the doctrine of res ipsa loquitur is appropriate

when the requesting party presents sufficient evidence (1) that the

event was of a kind that ordinarily does not occur in the absence of

someone’s negligence, (2) that it was caused by an agency or

instrumentality within the exclusive control of the defendant, (3)

that it was not due to any voluntary action or contribution on the

part of the plaintiff, and (4) that evidence of the true explanation

of the event is more readily accessible to the defendant than the

plaintiff.

Sachs Waldman, Professional Corporation (by Linda

Turek), for Heather Swanson.

Chapman and Associates, P.C. (by Ronald W. Chap-

man and Brian J. Richtarcik), for Jeannie L. Rowe,

D.O., and Bluewater Obstetrics and Gynecology, P.C.

ON REMAND

Before: W

HITBECK

,P.J., and O’C

ONNELL

and O

WENS

,JJ.

URIAM

. This matter returns to this Court on

remand from the Michigan Supreme Court

with the

direction that we evaluate the merits of these appeals in

light of Bush v Shabahang

and MCL 600.2301. We

reverse.

Swanson v Port Huron Hosp, 485 Mich 1008 (2009).

Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009).

2010] S

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I. OVERVIEW

This is a consolidated appeal arising out of a medical

malpractice action filed by plaintiff, Heather Swanson,

against defendants, Port Huron Hospital (also known

as Port Huron Hospital Medical Group), Jeannie L.

Rowe, D.O., and Bluewater Obstetrics and Gynecology,

P.C. Swanson alleged, in part, that Dr. Rowe’s negli-

gence during a laparoscopic procedure to remove an

ovarian cyst resulted in a puncture wound to Swanson’s

aorta and then a scar around her navel as a result of a

laparotomy performed to repair the aorta. In Docket

No. 275404, Dr. R owe and Bluewater appeal as of right

the jury trial judgment in Swanson’s favor. In Docket

No. 278491, Swanson appeals as of right the trial

court’s award of attorney fees and costs. The trial court

dismissed Port Huron Hospital from the proceedings

below, and thus it is not a party to either appeal.

II. UNDERLYING FACTS AND PROCEDURAL HISTORY

On April 9, 2002, 16-year-old Swanson went to the

Port Huron Hospital emergency room, complaining of

severe pain in the lower right quadrant. An ultrasound

showed a 4-centimeter ovarian cyst, and the hospital

admitted her. The attending physician requested an

obstetrics/gynecology consultation with Dr. Rowe. Dr.

Rowe then diagnosed Swanson as having a right ova-

rian cyst. Swanson was discharged from the hospital on

April 11, 2002, even though her pain was allegedly

continuous and she was experiencing nausea and vom-

iting.

On April 12, 2002, Swanson returned to see Dr.

Rowe, still complaining of severe pain in the lower right

quadrant, nausea, and vomiting. A pelvic ultrasound

showed that the cyst had grown to 5.6 centimeters. Dr.

170 290 M

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167 [Sept

Rowe recommended a laparoscopy and drainage of the

cyst. According to Dr. Rowe, in discussing the procedure

with Swanson and her mother, Dr. Rowe informed them

that the risks involved in such treatment included “the

risk of possible injury to bowel, blood vessels or other

pelvic organs....” Swanson’s mother admitted that

Dr. Rowe told her that damage to blood vessels could

occur, but she claimed that she thought that meant

“little vessels,” not the “main aorta.” Later that same

day, the hospital readmitted Swanson and scheduled

her for a laparoscopy with a possible right ovarian

cystectomy and a possible appendectomy later that

same evening. Before the procedure, Swanson’s mother

signed an “Authorization, Release and Waiver” form

and an informed consent form.

At 6:30 p.m. on April 12, 2002, Dr. Rowe performed

the laparoscopy. The laparoscopy was initiated by in-

serting a Veress needle through the umbilical fold into

the abdomen. More specifically, the Veress needle was

inserted caudally, at an angle toward the feet, while Dr.

Rowe lifted up on the abdomen with a towel clip. Once

the Veress needle was inserted into the abdomen, car-

bon dioxide gas was passed through the needle into the

abdomen to insufflate the abdomen. According to Dr.

Rowe, the Veress needle was then withdrawn from the

abdomen and a trocar inserted at an angle towards the

feet, through which a camera was used to observe the

ovarian cyst. At that time, Dr. Rowe observed some

bright red blood in the peritoneal cavity. Dr. Rowe was

not immediately able to locate the exact source of the

bleeding, but it appeared to stop, so she proceeded to

drain the cyst.

While Dr. Rowe was withdrawing the instruments

from the surgical site, she observed a large “pulsating”

mass (i.e., a retroperitoneal hematoma). Dr. Rowe con-

2010] S

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) 171

sulted a general surgeon, who immediately recom-

mended a vascular consultation with Dr. Khattab Jo-

seph. With Dr. Rowe’s assistance, Dr. Joseph then

performed an exploratory laparotomy. According to Dr.

Rowe, during this second procedure, an incision was

made approximately 2 inches above the umbilicus,

extending to about 3 inches below the umbilicus. Dr.

Joseph and Dr. Rowe identified a “very small” punc-

ture, “like a needle puncture,” at the distal portion of

the aorta at its bifurcation. Dr. Joseph repaired the

puncture with two “very fine sutures.” Dr. Joseph

opined that, given the puncture’s small size, the Veress

needle had caused it. Dr. Rowe also opined that the

puncture was caused when she inserted the Veress

needle. Dr. Rowe then closed the incision without

further complications.

On April 18, 2002, the hospital discharged Swanson.

Swanson alleged that at the time of her discharge, she

had continued pain in the lower right quadrant, a

significant amount of pain from gas, and straining with

bowel movements. Dr. Rowe testified that Swanson was

discharged with medication to treat nausea and pain,

but she was in stable condition.

In April 2004, Swanson initiated this lawsuit by

mailing a notice of intent

to defendants. The notice of

intent alleged that the applicable standard of care

required defendants, inter alia, to “appropriately evalu-

ate the aforementioned patient, including but not lim-

ited to, assessing the abdomen and abdominal struc-

tures in order to determine the appropriate amount of

force needed to perform a laparoscopy”; “appropriately

identify the location of the aorta and other anatomical

structures prior to placing the veress needle . . . [and]

the trocar”; and “protect vital structures, such as the

MCL 600.2912b.

172 290 M

ICH

167 [Sept

aorta from surgical injury.” With respect to breach of

the standard of care, the notice of intent stated, “The

applicable Standard of Practice and Care was breached

as evidenced by the failure to do those things set forth

in Section II above.” Regarding what actions should

have been taken to comply with the standard of care,

the notice of intent stated, “The action that should have

been taken to achieve compliance with the Standard of

Care should have been those things set forth in Section

II above.” And with respect to proximate cause, the

notice of intent stated, “As a result of the defendants’

gross and blatant negligence, Heather Swanson sus-

tained injury to the main artery in her body, necessitat-

ing a surgical repair that rendered this teenager per-

manently scarred and disfigured, along with

intermittent diarrhea and abdominal pain.”

In October 2004, Swanson filed her complaint and

affidavit of merit.

Swanson’s affidavit of merit, signed

by Dr. Jon Hazen, explained the proximate cause ele-

ment as follows: “As a direct result of Defendants’ gross

and blatant negligence, Heather Swanson sustained

injury to the main artery in her body, necessitating a

surgical repair that rendered this teenager permanently

scarred and disfigured, along with intermittent diar-

rhea and abdominal pain.”

During the September 2006 jury trial, Swanson’s pri-

mary theory of liability was premised on allegations that

Dr. Rowe inserted the Veress needle or trocar at the wrong

angle into the abdomen and used too much force during

the insertion. At the close of Swanson’s proofs, defendants

moved for a directed verdict, arguing that Swanson’s

affidavit of merit did not sufficiently specify the element of

proximate cause, as MCL 600.2912d(1)(d) required, be-

cause it did not describe the manner in which defendants’

MCL 600.2912d.

2010] S

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) 173

breach “factually and foreseeably” caused Swanson’s in-

jury. The trial court denied the motion, concluding that

the affidavit was sufficient.

Following deliberations, the jury returned a verdict

in Swanson’s favor, finding that Swanson had sustained

an injury, that defendants were negligent, and that

defendants’ negligence was the proximate cause of

Swanson’s injury. Defendants then moved for a judg-

ment notwithstanding the verdict (JNOV) or a new

trial, arguing again that Swanson’s affidavit of merit

was deficient and also arguing that Swanson’s notice of

intent failed to comply with MCL 600.2912b. The trial

court denied defendants’ motion.

III. PRIOR APPELLATE PROCEEDING

Defendants appealed in this Court (Docket No.

275404), arguing, in pertinent part, that the trial court

clearly erred by denying their motion for JNOV or a

new trial. Defendants argued they were entitled to a

JNOV because Swanson’s notice of intent “failed to

sufficiently specify proximate cause by failing to detail

the manner in which defendants’ alleged breach of the

standard of care factually and foreseeably caused injury

to Swanson’s aorta.”

A majority of this Court (W

HITBECK

,P.J., and O

WENS

J.) reversed the judgment against defendants on the

ground that the notice of intent was defective and

remanded the case for entry of an order vacating the

verdict and judgment against defendants.

The Swan-

son majority reasoned:

Swanson v Port Huron Hosp, unpublished opinion per curiam of the

Court of Appeals, issued June 2, 2009 (Docket Nos. 275404 and 278491),

p3.

Id.at6.

174 290 M

ICH

167 [Sept

Here, the notice of intent alleged that the applicable

standard of care required defendants to, inter alia, “appro-

priately evaluate [Swanson], including but not limited to,

assessing the abdomen and abdominal structures in order

to determine the appropriate amount of force needed to

perform a laparoscopy;” “appropriately identify the loca-

tion of the aorta and other anatomical structures prior to

placing the veress needle...[and/or] the trocar . . .;” and

“protect vital structures, such as the aorta from surgical

injury.” With respect to breach, Swanson’s notice of intent

merely stated, “The applicable Standard of Practice and

Care was breached as evidenced by the failure to do those

things set forth in Section II above.” Regarding what

actions should have been taken to comply with the stan-

dard of care, the notice of intent simply stated, “The action

that should have been taken to achieve compliance with the

Standard of Care should have been those things set forth in

Section II above.” And with respect to proximate cause, the

notice of intent stated:

“As a result of the defendants’ gross and blatant negli-

gence, Heather Swanson sustained injury to the main artery

in her body, necessitating a surgical repair that rendered this

teenager permanently scarred and disfigured, along with

intermittent diarrhea and abdominal pain.”

Swanson’s notice of intent is very similar in its deficien-

cies to the notice of intent in Miller [v Malik, 280 Mich App

687, 696-697; 760 NW2d 818 (2008)]. The notice of intent

here was similarly inadequate to meet the requirement of

MCL 600.2912b(4)(e). Here, although Swanson stated that

“defendants’ gross and blatant negligence” caused “injury

to the main artery in her body,” nowhere did she state how

the defendants were negligent other than by breaching the

enumerated standards of care. In other words, there is no

indication in the notice of intent how defendants caused or

could have avoided the injury to Swanson’s artery. Like in

Miller, Swanson did identify certain duties in the standard

of care portion of the notice of intent, but she failed to

describe the manner in which any failure on the part of

defendants to perform any of these duties caused Swan-

son’s injury.

2010] S

WANSON V

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) 175

For example, although Swanson asserted that defen-

dants had a duty to appropriately evaluate Swanson, in-

cluding “assessing the abdomen and abdominal structures

in order to determine the appropriate amount of force

needed to perform a laparoscopy,” Swanson never ex-

plained how determining the appropriate amount of force

would have prevented injury to the aorta, nor did she allege

that Dr. Rowe actually used anything other than the

appropriate amount of force. Similarly, Swanson did not

explain how identifying “the location of the aorta and other

anatomical structures” would have prevented injury to the

aorta. Further, Swanson failed to explain how Dr. Rowe

was supposed to “protect vital structures, such as the aorta

from surgical injury.”

Thus, “Although the instant notice of intent may con-

ceivably have apprised [defendants] of the nature and

gravamen of [Swanson’s] allegations, this is not the statu-

tory standard; § 2912b(4)(e) requires something more.”

The mere correlation between alleged malpractice and an

injury is insufficient to show proximate cause. We therefore

conclude that the notice of intent was not sufficiently

stated to put the defendants on statutorily sufficient notice

of the nature of the claim.

[

]

Accordingly, the Swanson majority held that the trial

court erred by denying defendants’ motion for a JNOV

and reversed the verdict against defendants.

Judge O’C

ONNELL

, dissenting, stated that he believed

Miller was wrongly decided and that the notice of intent

filed in the instant case was sufficient.

Swanson sought leave to appeal in the Michigan

Supreme Court. And in December 2009, the Supreme

Court entered an order vacating the judgment in Swan-

son and remanding “for reconsideration of the parties’

Id. at 5-6 (citations omitted) (alterations other than addition of

citation in original).

Id. at2(O’C

ONNELL

, J., dissenting).

176 290 M

ICH

167 [Sept

appeals in light of this Court’s decision in Bush v

Shabahang, 484 Mich 156 (2009), and MCL 600.2301.”

IV. NOTICE OF INTENT

A. STANDARD OF REVIEW

Defendants argue that the trial court clearly erred by

denying their motions for JNOV or a new trial because

Swanson’s notice of intent failed to sufficiently specify

proximate cause by failing to detail the manner in

which defendants’ alleged breach of the standard of

care factually and foreseeably caused injury to Swan-

son’s aorta. Whether a notice of intent complies with

the requirements of MCL 600.2912b is a question of law

that this Court reviews de novo.

B. BUSH v SHABAHANG

In Bush, the plaintiff filed a notice of intent several

days before the expiration of the period of limitations.

The plaintiff then filed a medical malpractice action 175

days after serving notice on the defendants.

The

defendants sought summary disposition, arguing that

the notice of intent did not comply with MCL 600.2912b

and that the plaintiff had failed to wait the required 182

days before filing the complaint.

The trial court

granted summary disposition in favor of several defen-

dants, but denied summary disposition for other defen-

dants, and held that the complaint had not been filed

Swanson, 485 Mich 1008.

Jackson v Detroit Med Ctr, 278 Mich App 532, 545; 753 NW2d 635

(2008).

Bush, 484 Mich at 162.

Id.

2010] S

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prematurely.

This Court affirmed in part, reversed in

part, and remanded.

On appeal, the Supreme Court first considered

whether the filing of a defective notice of intent tolls the

period of limitations for a medical malpractice action.

The Court concluded that, pursuant to the clear lan-

guage of MCL 600.2912b, which requires that a plaintiff

file an notice of intent not less than 182 days before a

medical malpractice action is commenced, and MCL

600.5856(c), which provides that the period of limita-

tions is tolled “[a]t the time notice is given in compli-

ance with the applicable notice period under section

2912b,” if the plaintiff complies with the applicable

notice period before commencing a medical malpractice

action, the period of limitations is tolled.

Thus, the

filing of a timely notice of intent tolls the period of

limitations in a medical malpractice action “despite the

presence of defects in the [notice of intent].”

The Court then proceeded to consider what conse-

quences attach to the filing of a defective notice of

intent.

The Court reviewed the legislative history of

the statute creating notices of intent and concluded

that the Legislature did not intend that a defective

notice of intent be grounds for a dismissal with preju-

dice pursuant to MCL 600.2912b.

Thus, the Court

found it appropriate to consider other relevant statu-

tory provisions “to see if other appropriate remedies

Id. at 163.

Bush v Shabahang, 278 Mich App 703, 727; 753 NW2d 271 (2008).

Bush, 484 Mich at 164.

Id. at 169.

Id. at 170.

Id.

Id. at 172-175.

178 290 M

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167 [Sept

exist....”

The Court then found applicable MCL

600.2301, which provides:

The court in which any action or proceeding is pending,

has power to amend any process, pleading or proceeding in

such action or proceeding, either in form or substance, for

the furtherance of justice, on such terms as are just, at any

time before judgment rendered therein. The court at every

stage of the action or proceeding shall disregard any error

or defect in the proceedings which do not affect the

substantial rights of the parties.

The Court reasoned that giving notice of intent “is a

part of a medical malpractice ‘proceeding’ ” and there-

fore that MCL 600.2301 “applies to the [notice of

intent] ‘process.’ ”

The Court therefore held that MCL

600.2301 “may be employed to cure defects in [a notice

of intent]”

and stated as follows regarding the use of

MCL 600.2301 in such a manner:

We recognize that § 2301 allows for amendment of

errors or defects, whether the defect is in form or in

substance, but only when the amendment would be “for

the furtherance of justice.” Additionally, § 2301 mandates

that courts disregard errors or defects when those errors or

defects do not affect the substantial rights of the parties.

Thus, the applicability of § 2301 rests on a two-pronged

test: first, whether a substantial right of a party is impli-

cated 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.” Given that [notices of

intent] are served at such an early stage in the proceedings,

so-called “defects” are to be expected. The statute contem-

plates that medical records may not have been turned over

before the [notice of intent] is mailed to the defendant.

Defendants who receive these notices are sophisticated

Id. at 176.

Id. at 176-177.

Id. at 177.

2010] S

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health professionals with extensive medical background

and training. Indeed, these same defendants are allowed

to act as their own reviewing experts. A defendant who

has enough medical expertise to opine in his or her own

defense certainly has the ability to understand the

nature of claims being asserted against him or her even

in the presence of defects in the [notice of intent].

Accordingly, we conclude that no substantial right of a

health care provider is implicated. Further, we hold that

the second prong of the test, which requires that the cure

be in the furtherance of justice, is satisfied when a party

makes a good-faith attempt to comply with the content

requirements of § 2912b. Thus, only when a plaintiff has

not made a good-faith attempt to comply with § 2912b(4)

should a trial court consider dismissal of an action

without prejudice.

[

]

The Court then examined the notice of intent at issue

in the case before it and agreed with this Court that,

while the vast majority of the notice of intent complied

with MCL 600.2912b(4), portions of it were defective.

But the Court held that those defects could be cured by

amendment pursuant to MCL 600.2301 and thus af-

firmed this Court’s decision in part, reversed it in part,

and remanded the matter to the trial court for further

proceedings.

C. ANALYSIS ON REMAND

On remand in this case, this Court must reexamine

the notice of intent in light of the Supreme Court’s

decision in Bush and MCL 600.2301. As stated earlier,

the Court explained in Bush that “the applicability of

§ 2301 rests on a two-pronged test: first, whether a

Id. at 177-178 (citations omitted).

Id. at 178-180.

Id. at 180-181, 185.

180 290 M

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167 [Sept

substantial right of a party is implicated and, second,

whether a cure is in the furtherance of justice.”

With respect to the substantial-right prong of the

test, the Bush Court explained that in medical mal-

practice cases, the defendants who receive the notice

of intent “are sophisticated health professionals with

extensive medical background and training.”

And,

according to the Court, “[a] defendant who has

enough medical expertise to opine in his or her own

defense certainly has the ability to understand the

nature of claims being asserted against him or her

even in the presence of defects in the [notice of

intent].”

Thus, because defendants here are health

care providers, like the Bush defendants, no substantial

rights are implicated.

Turning to the furtherance-of-justice prong, the

Bush Court explained that this prong is satisfied “when

a party makes a good-faith attempt to comply with the

content requirements of § 2912b. Thus, only when a

plaintiff has not made a good-faith attempt to comply

with § 2912b(4) should a trial court consider dismissal

of an action without prejudice.”

We continue to believe that Swanson’s notice of

intent was defective because it failed to meet the

minimum requirements of MCL 600.2912b(4)(c), (d),

and (e).

With respect to breach of the standard of

care,

Swanson’s notice of intent merely stated, “The

Id. at 177.

Id. at 178.

Id.

Judge O’C

ONNELL

is of the opinion that the notice of intent was

sufficient, and for the reasons stated by the trial court, both Judges

O’C

ONNELL

and O

WENS

are of the opinion that the affidavit of merit was

sufficient.

MCL 600.2912b(4)(c).

2010] S

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applicable Standard of Practice and Care was breached

as evidenced by the failure to do those things set forth

in Section II above.” Regarding what actions should

have been taken to comply with the standard of care,

the notice of intent simply stated, “The action that

should have been taken to achieve compliance with the

Standard of Care should have been those things set

forth in Section II above.” And with respect to proxi-

mate cause, the notice of intent failed to describe the

manner in which any failure on the part of defendants

caused Swanson’s injury.

However, despite these defects, Swanson did explain

the factual basis for her claim

and alleged numerous

standards of practice or care that she deemed applicable

to defendants’ conduct.

Notably, Swanson’s notice of

intent alleged that the applicable standard of care

required defendants to, among other things, “appropri-

ately evaluate [Swanson], including but not limited to,

assessing the abdomen and abdominal structures in

order to determine the appropriate amount of force

needed to perform a laparoscopy”; “appropriately iden-

tify the location of the aorta and other anatomical

structures prior to placing the veress needle . . . [and]

the trocar;” and “protect vital structures, such as the

aorta from surgical injury.”

In Bush, although acknowledging arguably more

egregious defects in the notice of intent,

the Court

MCL 600.2912b(4)(d).

MCL 600.2912b(4)(e).

MCL 600.2912b(4)(a).

MCL 600.2912b(4)(b).

In Bush, with respect to defendant West Michigan Cardiovascular

Surgeons, the plaintiff’s notice failed to adequately address the standard

of care under a direct theory of liability for failure to properly train or

hire, failed to state how West Michigan Cardiovascular’s hiring and

182 290 M

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167 [Sept

nevertheless held that the plaintiffs had made a good-

faith attempt to comply with the content requirements

of MCL 600.2912b and that the defects did not warrant

dismissal of the claim.

According to the Bush Court,

“These types of defects fall squarely within the ambit of

§ 2301 and should be disregarded or cured by amend-

ment.”

Thus, looking at Swanson’s notice as a whole and

comparing its defects to those in Bush, we conclude that

her notice of intent was a good-faith attempt to comply

with the content requirements of MCL 600.2912b.

Therefore, dismissal of her claims was not warranted.

With respect to the appropriate remedy, we further

conclude that, in light of our conclusion regarding the

trial court’s res ipsa loquitur instruction, discussed in

part V, these defects should be disregarded.

V. RES IPSA LOQUITUR INSTRUCTION

A. STANDARD OF REVIEW

We review for an abuse of discretion a trial court’s

determination whether a jury instruction is applicable

to the facts of the case.

training practices violated the standard of care, failed to state which

hiring practices or training methods it should have employed, and failed

to state how those improper practices proximately caused the alleged

injuries. Bush, 484 Mich at 179. And with respect to defendant Spectrum

Health’s nursing staff and physician assistants, the plaintiff’s notice

failed to state a separate standard of care for the nurses and physician

assistants, failed to delineate the specific actions taken by the nursing

staff or physician assistants that purportedly breached the standard of

care, and failed to state the manner in which the identified breaches

proximately caused the alleged injuries. Id. at 179-180.

Bush, 484 Mich at 180.

Id.

People v Gillis, 474 Mich 105, 113; 712 NW2d 419 (2006); Bordeaux

v Celotex Corp, 203 Mich App 158, 168-169; 511 NW2d 899 (1993).

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B. ANALYSIS

Michigan Model Civil Jury Instruction 30.05, the res

ipsa loquitur instruction, states in pertinent part:

If you find that the defendant had control over the [body

of the plaintiff / instrumentality which caused the plaintiff’s

injury], and that the plaintiff’s injury is of a kind which

does not ordinarily occur without someone’s negligence,

then you may infer that the defendant was negligent.

M Civ JI 30.05 also includes the following use note:

“This instruction should be given only if there is expert

testimony that the injury does not ordinarily occur

without negligence, or if the court finds that such a

determination could be made by the jury as a matter of

common knowledge.” Accordingly, the following condi-

tions must be met for a plaintiff to invoke the res ipsa

loquitur doctrine:

(1) the event must be of a kind which ordinarily does not

occur in the absence of someone’s negligence;

(2) it must be caused by an agency or instrumentality

within the exclusive control of the defendant;

(3) it must not have been due to any voluntary action or

contribution on the part of the plaintiff; and

(4) [e]vidence of the true explanation of the event must

be more readily accessible to the defendant than to the

plaintiff.

[

]

In order for the court to give a requested jury instruc-

tion, the requesting party must present sufficient evi-

dence to warrant the instruction.

At trial, both plaintiff and defendants presented

expert witness testimony to explain how the injury to

Woodard v Custer, 473 Mich 1, 7; 702 NW2d 522 (2005) (citations and

quotation marks omitted) (alteration in Woodard).

Bordeaux, 203 Mich App at 169.

184 290 M

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167 [Sept

Swanson’s aorta could have occurred. Both Dr. Rowe

and Laura Williams, the surgical technologist, testified

that Dr. Rowe inserted the Veress needle and the trocar

at the appropriate angle. Nevertheless, Swanson’s ex-

pert, Dr. Hazen, testified that the injury must have

occurred because Dr. Rowe improperly inserted an

instrument (most likely the trocar) at the wrong angle.

However, Dr. Hazen also admitted that injury to the

aorta can occur during this type of laparoscopic surgery

two times out of a thousand. Moreover, defendants’

experts testified that Dr. Rowe performed Swanson’s

surgery within the applicable standard of care and that

injury to the aorta is a known complication of a properly

performed laparoscopic procedure. Specifically, defen-

dants’ two expert witnesses, Dr. Samuel McNeeley, Jr.,

and Dr. William Floyd, who are board-certified in ob-

stetrics and gynecology, both testified that a laparo-

scopic procedure like that performed on Swanson is a

“blind procedure” and confirmed that one of the known

risks associated with such procedures is injury to blood

vessels, including the aorta. Therefore, it is clear that

the evidence did not support an instruction that Swan-

son’s injury was of a kind that does not ordinarily occur

without someone’s negligence.

In this case, both defendants’ experts and Swanson’s

expert, Dr. Hazen, testified that Swanson’s injury was a

known complication of laparoscopic surgery that can

occur in the absence of any negligence on the part of the

treating physician and indeed does occur up to two

times out of a thousand without any negligence on the

part of the treating physician. Since this type of injury

is a known complication of laparoscopic surgery, and

since this type of injury can occur without any negli-

gence on the part of the treating physician, it is axiom-

atic that instructing the jury on the doctrine of res ipsa

loquitur was an abuse of discretion. Given that this

2010] S

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error alone merits reversal, we need not address the

parties’ remaining arguments.

We reverse on the basis of the erroneous res ipsa

loquitur instruction and remand for further proceed-

ings consistent with this opinion. We do not retain

jurisdiction. Defendant, being the prevailing party, may

tax costs pursuant to MCR 7.219.

186 290 M

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167 [Sept

VANDONKELAAR v KID’S KOURT, LLC

Docket No. 292856. Submitted September 8, 2010, at Grand Rapids.

Decided September 30, 2010, at 9:00 a.m.

Chadwick Vandonkelaar, a minor, by his next friend, Tonya L. Slager,

his mother, brought an action in the Ottawa Circuit Court against

Kid’s Kourt, L.L.C., and Maryanne Barringer, seeking damages for

injuries sustained at defendants’ daycare center when a metal pipe

holding a large roll of paper dislodged and plaintiff’s finger was

crushed and lacerated. Defendants admitted liability in relation to

plaintiff’s premises-liability claim, but contested the extent of the

damages. Defendants moved for leave to file a notice of nonparties

at fault and to amend their affirmative defenses. Defendants

sought to designate plaintiff’s parents as nonparties at fault for

their alleged failure to follow the prescribed course of medical

treatment for plaintiff after surgery was performed on his finger.

Defendants also sought to add affirmative defenses that alleged

that plaintiff’s injuries were caused by acts or omissions of his

parents that were beyond the control of defendants and to reserve

the right to have the trier of fact allocate fault under MCR

2.112(K). The parties agreed that plaintiff’s parents were pro-

tected by parental immunity, considering that the parents’ alleged

inaction and failures pertained to plaintiff’s medical care. The

parties disagreed regarding the effect of that immunity on the

question whether fault could be allocated to the parents as

nonparties, thereby potentially minimizing the extent of the

damages for which defendants would be liable. The court, Edward

R. Post, J., denied the motion, concluding that the immunity

enjoyed by plaintiff’s parents precluded defendants from naming

them as nonparties at fault because their immunity exempted

them from any legal duty to obtain medical care for plaintiff.

Defendants appealed by leave granted.

The Court of Appeals held:

1. Under the principles of joint and several liability existing

before the enactment of the comparative-fault statutes, MCL

600.2956, MCL 600.2957, and MCL 600.6304, defendants and

plaintiff’s parents could only have been held severally liable

2010] V

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because their negligence did not produce a single, indivisible

injury, and a court could not have imposed joint and several

liability.

2. The purpose of enacting the comparative-fault statutes was

to eliminate joint and several liability in situations in which such

liability existed. The comparative-fault statutes were not appli-

cable here because this case was not one in which there would have

been joint and several liability before the enactment of the

comparative-fault statutes. The comparative-fault statutes are

inapplicable with respect to fact patterns entailing multiple torts

separated in time, multiple torts separated by individual causal

chains, and multiple torts that did not produce a single, indivisible

injury.

3. There was no dispute that plaintiff’s parents did not con-

tribute to the cause of plaintiff’s injuries arising from the incident

at the daycare center, although their inaction may have caused

plaintiff to later suffer separate, more extensive, and divisible

damage.

4. “Injury” and “damages,” while interrelated, are two distinct

concepts for purposes of the comparative-fault statutes. Damages

can only be the result of an injury. Damages cannot arise on their

own, but must flow from an injury.

5. When subsections (1)(b) and (2) of MCL 600.6304 are read

together, consideration of the causal relation between the conduct

and the claimed damages means consideration of conduct that

jointly contributed to the injury and the damages flowing from

that particular conduct and resulting injury. The subsections do

not direct a trier of fact to consider damages unrelated to conduct

that produced or caused the underlying injury. The conduct of

plaintiff’s parents constituted a possible subsequent, separate tort

that was not part of the causal chain with respect to the finger

injuries that occurred at the daycare center, but initiated a new

causal chain leading to its own set of damages, which plaintiff

could not recover because of parental immunity.

6. The conduct or inaction of plaintiff’s parents was not the

factual or proximate cause of plaintiff’s joint and tendon injuries

suffered at the daycare center. The parents’ conduct could not

constitute “fault” for purposes of the statutory definition of

“fault” found in MCL 600.6304(8).

7. As a matter of law, defendants were the only parties at fault

and there were no other tortfeasors with respect to the conduct

that was the factual and proximate cause of the injuries to

plaintiff’s finger at the daycare center. Thus, any presumed

188 290 M

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187 [Sept

negligence by plaintiff’s parents in regard to plaintiff’s medical

treatment after the injuries occurred at the daycare center did not

trigger the need to assess their fault for purposes of the

comparative-fault statutes.

Affirmed and remanded.

URRAY

, J., dissenting, stated two reasons for not joining the

majority opinion. First, the majority decided this case on the basis

of a theory neither raised nor decided in the trial court and not

raised in the Court of Appeals. Second, the majority erred by

holding that the comparative-fault statutes did not apply to this

case. The parents’ alleged failure to take the child to the pre-

scribed follow-up care was not a separate tort that initiated a new

causal chain leading to its own set of damages. Rather, the

permanent injury to plaintiff’s finger was an element of the

damages that plaintiff sought to recover from defendants. An

argument could be made that the parents at least in part caused

that damage by breaching their duty to provide proper medical

care to plaintiff. Consequently, the injury at the daycare center, the

immediate harm that was caused, and any lasting damage are all

part of plaintiff’s lawsuit and, as in all cases involving nonparties

at fault, defendants asserted that more than one potential person

caused at least some of the harm at issue. Because the

comparative-fault statutes reveal a legislative intent to allocate

liability according to the relative fault of all persons contributing

to the accrual of a plaintiff’s damages, defendants should have

been allowed to argue to the jury that plaintiff’s parents were at

least partially at fault for some of the damages plaintiff suffered.

Plaintiff’s parents had a common-law duty to provide appropriate

medical care for plaintiff, and the doctrine of parental immunity

did not abrogate this duty. Therefore, the existence of parental

immunity cannot preclude an allocation of fault under the

comparative-fault statutes. The trial court’s order should be

reversed, and the case should be remanded for further proceed-

ings.

EGLIGENCE —

OMPARATIVE

-F

AULT

TATUTES —

OINT

IABILITY —

EVERAL

IABILITY

The purpose of enacting the comparative-fault statutes was to

eliminate joint and several liability in situations in which that

liability exists; the comparative-fault statutes are inapplicable

with respect to fact patterns entailing multiple torts separated in

time, multiple torts separated by individual causal chains, and

multiple torts that did not produce a single, indivisible injury

(MCL 600.2956, 600.2957, 600.6304).

2010] V

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Buckfire & Buckfire, P. C . (by Thomas N. Economy

and George G. Burke, III), for plaintiff.

Smith Haughey Rice & Roegge (by Marilyn S. Nickell

Tyree) for defendants.

Before: M

URPHY

, C.J., and S

AWYER

and M

URRAY

,JJ.

URPHY

, C.J. Defendants appeal by leave granted the

trial court’s order denying their motions to file a notice

of nonparties at fault and to amend their affirmative

defenses, along with the court’s order denying defen-

dants’ motion for reconsideration. This premises-

liability case arose from injuries to his finger suffered

by plaintiff, Chadwick Vandonkelaar (Chad), a minor, at

defendants’ daycare center. And defendants, while ad-

mitting liability, contended that some fault should be

allocated to Chad’s parents because they were negligent

in failing to follow a prescribed course of medical

treatment after surgical repair of the finger. The trial

court, relying on Romain v Frankenmuth Mut Ins Co,

483 Mich 18; 762 NW2d 911 (2009), held that there

could be no allocation of fault in regard to the parents

because they were immune from suit, which necessarily

meant that they had no “legal duty” to obtain proper

medical care, a prerequisite under Romain before any

fault could be attributed to them under the

comparative-fault statutes.

We affirm, although for

reasons different from those offered by the trial court.

We conclude that the comparative-fault statutes have

no application in this case because, as a matter of law

and indisputably, defendants were the only parties at

fault and there were no other tortfeasors with respect to

the conduct that was the factual and proximate cause of

When we speak of the comparative-fault statutes, we refer to MCL

600.2956, MCL 600.2957, and MCL 600.6304.

190 290 M

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187 [Sept

PINION OF THE

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the injuries to Chad’s finger that occurred at the daycare

center. Any presumed negligence by the parents in regard

to Chad’s medical treatment after the injuries occurred at

the daycare center did not trigger the need to assess their

fault for purposes of the comparative-fault statutes, given

that such negligence was not part of the causal chain in

regard to his finger’s becoming crushed and lacerated in

the first place. Rather, any negligent conduct by the

parents constituted a subsequent, separate tort that ini-

tiated a new causal chain leading to its own set of

damages, which, we note, would not be recoverable by

Chad because of parental immunity. See Plumley v Klein,

388 Mich 1, 8; 199 NW2d 169 (1972).

I. BACKGROUND

Chad, six years old at the time, sustained injuries

while at defendants’ daycare center in May 2007. Chad

placed his right middle finger into the end of a metal

pipe that held a large roll of paper, and the pipe

dislodged from the paper-roller frame, crushing and

lacerating Chad’s finger. The preoperative diagnosis

indicated that Chad suffered a “middle finger extensor

tendon injury” and an “[o]pen distal interphalangeal

joint injury.” Surgery on the finger was performed by

Dr. Donald Condit, and the surgical procedure entailed

repair of the extensor tendon, along with “middle finger

debridement and repair with pinning of distal interpha-

langeal joint injury.”

Defendants admitted their liability in relation to a

premises-liability claim pursued by Chad, through his

mother, Tonya L. Slager, as next friend, in October

2008, but defendants contested the extent of the dam-

ages.

The trial court dismissed the claims of gross negligence and nuisance

on defendants’ motion for summary disposition.

2010] V

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The trial court limited discovery “to the question of the

mechanics of the injury” and to Chad’s “reaction, pain,

and other damages.”

In April 2009, defense counsel had the opportunity to

meet with Dr. Condit, and they discussed the doctor’s

findings and opinions concerning Chad’s injuries, treat-

ment, and prognosis. Defense counsel averred, on the

basis of the conversation at this meeting, that Dr.

Condit had prescribed physical therapy once a week for

four weeks following the surgery, but Chad had only

attended an initial evaluation and one therapy session.

Defense counsel further averred that Dr. Condit had

indicated that it was his intent to have Chad attend at

least 8 to 12 physical therapy sessions over a three-

month period in order to improve the finger’s range of

motion as well as to alleviate stiffness and swelling in

the fingertip. According to the affidavit filed by defense

counsel, Dr. Condit informed counsel that the failure to

continue with the therapy had a “very significant”

effect on Chad’s recovery.

On the basis of this information, defendants moved

for leave to file a notice of nonparties at fault and to

amend their affirmative defenses. Defendants sought to

designate Chad’s parents as nonparties at fault for their

failure to follow Dr. Condit’s advice and failure to

ensure Chad’s attendance at follow-up physician ap-

pointments and physical therapy. Defendants also

sought to add affirmative defenses, alleging that Chad’s

injuries were caused by acts or omissions by his parents

that were beyond the control of defendants and reserv-

ing the right to have the trier of fact allocate fault under

MCR 2.112(K).

MCR 2.112(K) incorporates MCL 600.2957 and MCL 600.6304 and

addresses procedural and notice requirements with respect to fault

allocation.

192 290 M

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187 [Sept

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At the hearing on the motions, the parties agreed

that Chad’s parents were immune from civil liability,

considering that their alleged inaction and failures

pertained to Chad’s medical care. Indeed, in Plumley,

388 Mich at 8, our Supreme Court abolished general

intrafamily tort immunity, but with some exceptions,

holding:

A child may maintain a lawsuit against his parent for

injuries suffered as a result of the alleged ordinary negli-

gence of the parent. Like our sister states, however, we note

two exceptions to this new rule of law: (1) where the alleged

negligent act involves an exercise of reasonable parental

authority over the child; and (2) where the alleged negli-

gent act involves an exercise of reasonable parental discre-

tion with respect to the provision of food, clothing, housing,

medical and dental services, and other care.

See also Spikes v Banks, 231 Mich App 341, 348; 586

NW2d 106 (1998).

Even though there was agreement that Chad’s par-

ents were protected by immunity, the parties vigorously

disagreed about the effect of that immunity on the

question whether fault could be allocated to the parents

as nonparties, thereby potentially minimizing the ex-

tent of the damages that could be the responsibility of

defendants. More specifically, the crux of the question

in the trial court focused on whether a person or entity

protected by immunity could nonetheless be named as a

In determining whether a defendant was exercising reasonable pa-

rental authority, the question to be answered is not whether the defen-

dant acted negligently, but whether the alleged act reasonably fell within

one of the Plumley exceptions. Spikes, 231 Mich App at 348-349; Phillips

v Deihm, 213 Mich App 389, 395; 541 NW2d 566 (1995). Here, the

inaction at issue reasonably fell within one of the Plumley exceptions

because Chad’s parents were clearly exercising their discretion with

respect to the provision of medical services and care. Again, there was

and is no dispute on this matter.

2010] V

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nonparty at fault. In answering that question, our

Supreme Court’s holding in Romain made it necessary

to determine whether the nonparty owed a “legal duty”

to the injured person. In Romain, 483 Mich at 20-22,

the Michigan Supreme Court ruled as follows concern-

ing the comparative-fault statutes:

We write briefly to eliminate a conflict between two

published Court of Appeals opinions. Specifically, we over-

rule the statement in Kopp v Zigich [268 Mich App 258,

260; 707 NW2d 601 (2005)] that “a plain reading of the

comparative fault statutes does not require proof of a duty

before fault can be apportioned and liability allocated.”

That is an incorrect statement of Michigan law. In Jones v

Enertel, Inc [254 Mich App 432, 437; 656 NW2d 870

(2002)], the Court of Appeals held that “a duty must first

be proved before the issue of fault or proximate cause can

be considered.” Under the “first out” rule of MCR

7.215(J)(1), the Kopp panel should have followed Jones or

declared a conflict under MCR 7.215(J)(2). Because the

Kopp panel did not declare a conflict, Jones is the control-

ling precedent and proof of a duty is required “before fault

can be apportioned and liability allocated” under the

comparative fault statutes, MCL 600.2957 and MCL

600.6304.

In addition to being the controlling precedent under the

court rules, Jones correctly stated Michigan negligence

law; Kopp did not. As noted by this Court in Riddle v

McLouth Steel Products Corp [440 Mich 85, 99; 485 NW2d

676 (1992)]:

“ ‘In a common law negligence action, before a plain-

tiff’s fault can be compared with that of the defendant, it

obviously must first be determined that the defendant was

negligent. It is fundamental tort law that before a defen-

dant can be found to have been negligent, it must first be

determined that the defendant owed a legal duty to the

plaintiff.’ ”

The same calculus applies to negligent actors under the

comparative fault statutes. A common-law negligence

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claim requires proof of (1) duty; (2) breach of that duty; (3)

causation, both cause in fact and proximate causation; and

(4) damages. Therefore, under Michigan law, a legal duty is

a threshold requirement before there can be any consider-

ation of whether a person was negligent by breaching that

duty and causing injury to another. Thus, when the Legis-

lature refers to the common-law term “proximate cause” in

the comparative fault statutes, it is clear that for claims

based on negligence “ ‘it must first be determined that the

[person] owed a legal duty to the plaintiff.’ ” Additionally,

MCL 600.6304(8) includes in the definition of fault “a

breach of a legal duty... that is a proximate cause of

damage sustained by a party.” Before there can be “a

breach of a legal duty,” there must be a legal duty. Without

owing a duty to the injured party, the “negligent” actor

could not have proximately caused the injury and could not

be at “fault” for purposes of the comparative fault statutes.

[Citations omitted; some alterations in original.]

The trial court concluded that the immunity enjoyed

by Chad’s parents precluded defendants from naming

them as nonparties at fault because their immunity

exempted them from having any legal duty to obtain

medical care for Chad. Accordingly, the trial court

denied defendants’ motion and the subsequent motion

for reconsideration. This Court then granted defen-

dants’ application for leave to appeal. Slager v Kids

Court, LLC, unpublished order of the Court of Appeals,

entered July 14, 2009 (Docket No. 292856).

II. ANALYSIS

For the reasons set forth later in this opinion, we find

it unnecessary to determine whether Chad’s parents

had a legal duty to obtain medical care for him despite

their immunity from liability because we conclude that

the comparative-fault statutes are simply not impli-

cated regardless of any parental duty.

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A. STANDARD OF REVIEW

The issue on which we base our holding concerns

interpretation of the comparative-fault statutes. Statu-

tory construction is a question of law subject to review

de novo. Detroit v Ambassador Bridge Co, 481 Mich 29,

35; 748 NW2d 221 (2008).

B. JOINT AND SEVERAL LIABILITY BEFORE ENACTMENT OF THE

COMPARATIVE-FAULT STATUTES

In Kaiser v Allen, 480 Mich 31, 37; 746 NW2d 92

(2008), our Supreme Court, examining MCL 600.2957

and MCL 600.6304, stated:

The tort-reform statutes have abolished joint and sev-

eral liability in cases in which there is more than one

tortfeasor actively at fault. Traditionally, before tort re-

form, under established principles of joint and several

liability, when the negligence of multiple tortfeasors pro-

duced a single indivisible injury, the tortfeasors were held

jointly and severally liable. Watts v Smith, 375 Mich 120,

125; 134 NW2d 194 (1965); Maddux v Donaldson, 362 Mich

425, 433; 108 NW2d 33 (1961).

In Watts, 375 Mich at 125, the Michigan Supreme

Court, quoting Meier v Holt, 347 Mich 430, 438-439; 80

NW2d 207 (1956), observed:

“ ‘Although it is not always definitely so stated the rule

seems to have become generally established that, although

there is no concert of action between tort-feasors, if the

cumulative effect of their acts is a single, indivisible injury,

which it cannot certainly be said would have resulted but

for the concurrence of such acts, the actors are to be held

liable as joint tort-feasors; whereas, if the results, as well as

the acts, are separable, in theory at least, so that it can be

said that the act of each would have resulted in some injury,

however difficult it may be as a practical matter to estab-

lish the exact proportion of injury caused thereby, each can

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be held liable only for so much of the injury as was caused

by his act.’ (1 Cooley on Torts [4th ed], § 86, pp 279, 280).”

[Alteration in original.]

Under the principles of joint and several liability,

tortfeasors could be held jointly and severally liable

despite there being no common duty, common design, or

concert of action as long as their negligence produced a

single, indivisible injury. Markley v Oak Health Care

Investors of Coldwater, Inc, 255 Mich App 245, 252; 660

NW2d 344 (2003).

Here, it cannot be concluded that defendants’ negli-

gence and the parents’ presumed negligence produced a

single, indivisible injury, the injuries being a “middle

finger extensor tendon injury” and an “[o]pen distal

interphalangeal joint injury.” Any negligence by the

parents was not a cause of the tendon and joint injuries

brought about by the occurrence at the daycare center.

Rather, the acts of defendants, as well as the results of

their tortious conduct, are separable from the acts of

the parents, as well as the results of the parents’

assumed tortious conduct, so that “ ‘ “it can be said that

the act[s] of each would have resulted in some injury,

however difficult it may be as a practical matter to

establish the exact proportion of injury caused

thereby.” ’ ” Watts, 375 Mich at 125 (citations omitted).

Therefore, under the principles of joint and several

liability that existed before the enactment of the

comparative-fault statutes, defendants and the parents

in the instant case could only have been held severally

liable, i.e., liable “ ‘ “only for so much of the injury as

was caused by his act.” ’ ” Id. (citations omitted). A

court could not have imposed joint and several liability.

For purposes of this opinion and our analysis, we are effectively

treating the two defendants as a single unit and the two parents as a

single unit.

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C. THE COMPARATIVE-FAULT STATUTES

As indicated in Kaiser, 480 Mich at 37, the “tort-

reform statutes...abolished joint and several liability

in cases in which there is more than one tortfeasor

actively at fault.” Indeed, the Legislature expressed

that sentiment in MCL 600.2956, wherein it is pro-

vided:

Except as provided in [MCL 600.6304 (an exception not

applicable here)], in an action based on tort or another

legal theory seeking damages for personal injury, property

damage, or wrongful death, the liability of each defendant

for damages is several only and is not joint. However, this

section does not abolish an employer’s vicarious liability for

an act or omission of the employer’s employee.

Accordingly, because the purpose of enacting the

comparative-fault statutes was to eliminate joint and

several liability in situations in which that liability

existed, and because the case at bar is not one in which

there would have been joint and several liability before

enactment of the statutes, the comparative-fault stat-

utes are not applicable here. There was no need for the

legislation to address situations in which there would

solely be several liability based on existing common law,

considering that simple causation-damage principles

would effectively result in a tortfeasor’s only being held

responsible for injuries caused by his or her tortious

conduct. However, it is necessary to examine the lan-

guage in MCL 600.2957 and MCL 600.6304 to see if

they are consistent with our conclusion. MCL 600.2957

provides, in relevant part:

(1) In an action based on tort or another legal theory

seeking damages for personal injury, property damage, or

wrongful death, the liability of each person shall be allo-

cated under this section by the trier of fact and, subject to

[MCL 600.6304], in direct proportion to the person’s per-

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centage of fault. In assessing percentages of fault under

this subsection, the trier of fact shall consider the fault of

each person, regardless of whether the person is, or could

have been, named as a party to the action.

***

(3) Sections 2956 to 2960 [MCL 600.2956 to 600.2960]

do not eliminate or diminish a defense or immunity that

currently exists, except as expressly provided in those

sections. Assessments of percentages of fault for nonparties

are used only to accurately determine the fault of named

parties. If fault is assessed against a nonparty, a finding of

fault does not subject the nonparty to liability in that

action and shall not be introduced as evidence of liability in

another action.

We find nothing in MCL 600.2957 that conflicts with

our assessment that the comparative-fault statutes are

inapplicable with respect to fact patterns entailing

multiple torts separated in time, multiple torts sepa-

rated by individual causal chains, and multiple torts

that did not produce a single, indivisible injury.

MCL 600.6304 provides, in pertinent part:

(1) In an action based on tort or another legal theory

seeking damages for personal injury, property damage, or

wrongful death involving fault of more than 1 person,

including third-party defendants and nonparties, the court,

unless otherwise agreed by all parties to the action, shall

instruct the jury to answer special interrogatories or, if

there is no jury, shall make findings indicating both of the

following:

(a) The total amount of each plaintiff’s damages.

(b) The percentage of the total fault of all persons that

contributed to the death or injury, including each plaintiff

and each person released from liability under [MCL

600.2925d], regardless of whether the person was or could

have been named as a party to the action.

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(2) In determining the percentages of fault under sub-

section (1)(b), the trier of fact shall consider both the

nature of the conduct of each person at fault and the extent

of the causal relation between the conduct and the dam-

ages claimed.

(3) The court shall determine the award of damages to

each plaintiff in accordance with the findings under sub-

section (1),...andshall enter judgment against each party,

including a third-party defendant....

(4) Liability in an action to which this section applies is

several only and not joint. Except as otherwise provided in

subsection (6) [medical malpractice cases], a person shall

not be required to pay damages in an amount greater than

his or her percentage of fault as found under subsection

(1)....

***

(8) As used in this section, “fault” includes an act, an

omission, conduct, including intentional conduct, a breach

of warranty, or a breach of a legal duty, or any conduct that

could give rise to the imposition of strict liability, that is a

proximate cause of damage sustained by a party.

As indicated already, MCL 600.6304(1)(b) requires

the trier of fact to allocate the “percentage of the total

fault of all persons that contributed to the death or

injury ....”

(Emphasis added.) Again, there is no dis-

pute that Chad’s parents did not contribute to the cause

of Chad’s injuries, i.e., the tendon and joint injuries

produced by the underlying occurrence at the daycare

center, although their inaction may have caused Chad

to later suffer separate, more extensive, and divisible

damage. At this point, it is appropriate to note, for

purposes of the comparative-fault statutes, that the

Because the instant case involves an injury and not a death, we shall

solely use the term “injury” for the remainder of this opinion when

discussing the statutory language.

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concepts of “injury” and “damages,” while interrelated,

are two distinct concepts. In Shinholster v Annapolis

Hosp, 471 Mich 540, 552 n 6; 685 NW2d 275 (2004), the

Court, construing MCL 600.6304, indicated that “dam-

age cannot arise on its own, but must flow from an

injury” and that “[d]amage can only be the result of an

injury.” The Shinholster Court continued, stating,

“[F]irst an injury to plaintiff must exist and the trier of

fact must then determine whether plaintiff

[

]

consti-

tuted a proximate cause of such injury before there is

any need for the trier of fact to focus on plaintiff’s

damages.” Id. (emphasis added).

As indicated already, MCL 600.6304(2) requires the

trier of fact, in “determining the percentages of fault

under subsection (1)(b),” to “consider both the nature of

the conduct of each person at fault and the extent of the

causal relation between the conduct and the damages

claimed.” (Emphasis added.) This language is simply to

be incorporated into and made a part of the assessment

that must be undertaken in regard to MCL

600.6304(1)(b), which, again, focuses on contribution to

the “injury.” Accordingly, when subsections (1)(b) and

(2) of MCL 600.6304 are read together, consideration of

the causal relation between the conduct and the

claimed damages means consideration of conduct that

jointly contributed to the injury and the damages flow-

ing from that particular conduct and resulting injury.

Those statutory subsections, when read together, do not

direct a trier of fact to consider damages unrelated to

conduct that produced or caused the underlying injury.

Once again, the conduct or inaction of Chad’s parents

Shinholster concerned whether any fault could be allocated to the

plaintiff’s decedent for causing her own death; however, the quoted

language would be equally applicable to any other party or nonparty

alleged to be at fault for causing an injury or death.

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played no role in causing the tendon and joint injuries

or the incident producing those injuries. Therefore,

MCL 600.6304 would not even permit the trier of fact to

consider any injuries that the parents may have caused

Chad to suffer. The parents’ conduct constituted a

possible subsequent, separate tort that was not part of

the causal chain with respect to the finger injuries and

the occurrence at the daycare center.

Finally, we examine MCL 600.6304(8), which defines

“fault” as conduct “that is a proximate cause of damage

sustained by a party.” This provision must also be read

in the context of the “fault” allocation that the trier of

fact must make under MCL 600.6304(1)(b). Accord-

ingly, the examination of whether a person’s conduct

was a “proximate cause of damage sustained by a

party,” MCL 600.6304(8), necessarily means conduct

that contributed to the injury and the damages flowing

from that particular conduct and resulting injury. The

conduct or inaction of Chad’s parents was not the

factual or proximate cause of Chad’s tendon and joint

injuries that he suffered at the daycare center. Accord-

ingly, their conduct could not constitute fault for pur-

poses of the statutory definition of “fault” found in

MCL 600.6304(8).

In sum, the comparative-fault statutes are not impli-

cated under the circumstances of this case.

However,

The dissent takes us to task for deciding this case on a theory that was

neither raised in the trial court nor raised or briefed on appeal. We do

note that the broad issue raised on appeal and addressed by us concerns

whether the comparative-fault statutes are applicable, although we

acknowledge that our analysis and approach with respect to that issue

differs entirely from the arguments presented by the parties. In Mack v

Detroit, 467 Mich 186, 206; 649 NW2d 47 (2002), our Supreme Court

addressed and analyzed a governmental-immunity issue that was neither

raised nor briefed by the parties, but the issue was a topic of discussion

at oral argument. The Mack Court adamantly opposed the “position that

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on remand, and under general principles of tort law,

plaintiff will have to prove by a preponderance of the

evidence that any claimed damages were the factual and

proximate result of defendants’ negligence, and defen-

dants’ negligence alone, which will potentially afford

defendants some protection from being assessed dam-

ages that they did not cause. See Wischmeyer v Schanz,

449 Mich 469, 484; 536 NW2d 760 (1995); Moning v

Alfono, 400 Mich 425, 437; 254 NW2d 759 (1977).

III. CONCLUSION

We hold that the comparative-fault statutes have no

application in this case because, as a matter of law and

indisputably, defendants were the only parties at fault

and there were no other tortfeasors with respect to the

conduct that was the factual and proximate cause of the

injuries to Chad’s finger in the occurrence at the

daycare center. Any presumed negligence by the par-

ents in regard to Chad’s medical treatment after the

although a controlling legal issue is squarely before this Court,...the

parties’ failure... to offer correct solutions to the issue limits this

Court’s ability to probe for and provide the correct solution.” Id. at 207.

The Court continued by noting that “[s]uch an approach would seriously

curtail the ability of this Court to function effectively and...actually

make oral argument a moot practice.” Id. At oral argument here, counsel

for both parties were questioned regarding whether it could be argued

that the comparative-fault statutes were not implicated because there

was clearly no fault on the part of Chad’s parents in connection with the

injury-producing incident. Were we to decide this case on the duty-versus-

immunity arguments under the facts presented, we would implicitly be

conveying to the bench and bar that the comparative-fault statutes are

indeed generally implicated in circumstances in which a party or non-

party was not the proximate cause of a plaintiff’s injury or the injury-

producing incident. In our estimation, however, this is not a correct legal

conclusion for the reasons already stated. Consistently with Mack,we

find that a controlling legal issue is squarely before us and must be

analyzed regardless of the lack of briefing and the failure to raise the

issue.

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injuries occurred at the daycare center did not trigger

the need to assess their fault for purposes of the

comparative-fault statutes, given that such negligence

was not part of the causal chain in regard to his finger’s

becoming crushed and lacerated in the first place.

Rather, any negligent conduct by the parents consti-

tuted a subsequent, separate tort that initiated a new

causal chain leading to its own set of damages. However,

on remand, and under general principles of tort law,

plaintiff will have to prove by a preponderance of the

evidence that any claimed damages were caused solely

by defendants’ negligence.

Affirmed and remanded. Given our resolution of this

appeal on grounds not addressed by the parties, we

decline to award any party taxable costs. MCR 7.219(A).

AWYER

, J., concurred.

URRAY

,J.(dissenting). In this interlocutory appeal,

we granted leave to appeal to decide whether the trial

court erred in denying defendants’ motion for leave to

file a notice of nonparties at fault. The trial court had

concluded that because the would-be nonparties at

fault, the minor child’s parents, had parental immunity

from their alleged failure to adequately provide medical

care to their child, they could not be nonparties at fault

under the controlling statute. The majority does not

answer the question decided by the trial court and

briefed and argued by the parties (and on which we

granted leave to appeal), but instead decides that the

statute is wholly inapplicable for reasons of its own.

With all due respect to my colleagues, I would address

the issue decided below and addressed by the parties,

and in doing so would hold that the existence of

parental immunity does not foreclose an allocation of

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fault under the comparative-fault statutes. Accordingly,

I would reverse and remand this case.

I. FACTS AND PROCEEDINGS

The facts of this case are undisputed, and arise out of

the injuries the six-year-old plaintiff sustained while in

defendants’ daycare facility on May 9, 2007. The inju-

ries occurred when plaintiff placed his middle finger

into one end of a metal pipe that held a large roll of

paper. The pipe dislodged from the paper-roller frame,

and the child’s finger was crushed and lacerated. The

paper roller was homemade and maintained by defen-

dant Maryanne Barringer. Defendants do not contest

their liability under these facts, but instead challenge

the extent of plaintiff’s damages.

Seventeen months after the injuries, the child, by his

next friend and mother, Tonya Slager, filed suit, alleging

gross negligence, nuisance, and premises liability. De-

fendants admitted liability on the premises-liability

theory, and the court dismissed plaintiff’s gross-

negligence and nuisance claims on defendants’ motion

for summary disposition. The court also limited discov-

ery to evidence concerning the occurrence, the extent of

the injuries, and damages.

Before entry of that order, on April 7, 2009, defense

counsel met with the child’s treating orthopedic sur-

geon, Dr. Michael Condit, to discuss the doctor’s find-

ings and opinions regarding the child’s injuries, treat-

ment, and prognosis. Defense counsel averred that

although Dr. Condit had prescribed physical therapy

once a week for four weeks following surgery on the

Although the majority opinion has sufficiently detailed the material

facts, I add my version simply to provide the reader with some context

when reviewing my substantive analysis.

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finger, the child was dismissed from therapy after only

attending the initial evaluation and one session because

of his failure to return to therapy. According to defense

counsel, Dr. Condit indicated that his intent was for the

child to attend at least 8 to 12 sessions over a three-

month period to improve the range of motion as well as

to alleviate the stiffness and swelling in the fingertip. In

Dr. Condit’s estimation, the failure to continue therapy

had a “very significant” impact on the child’s recovery.

Based on the information acquired from Dr. Condit,

defendants quickly moved for leave to file a notice of

nonparties at fault and to amend their affirmative

defenses. The notice sought to designate the child’s

parents, Tonya Slager and Chadwick Vandonkelaar, Sr.,

as nonparties at fault for failing to follow Dr. Condit’s

advice and failing to ensure their son’s attendance at

follow-up physician appointments and physical therapy.

The amended affirmative defenses sought to allege that

the injuries were caused by acts or omissions over which

defendants had no control and reserved defendants’

right to seek fault allocations under MCR 2.112(K).

At the ensuing motion hearing, the parties disputed

whether parental immunity precluded an allocation of

fault.

Siding with plaintiff, the court ruled that paren-

tal immunity did preclude an allocation of fault based

on our Supreme Court’s ruling in Romain v Franken-

muth Mut Ins Co, 483 Mich 18; 762 NW2d 911 (2009),

which held that the comparative-fault statutes

require

that a party owe a legal duty before the party may be

named a nonparty at fault. The court concluded that

the immunity enjoyed by plaintiff’s parents precluded

their being named nonparties at fault because their

immunity exempted them from any legal duties. Ac-

Plaintiff did not dispute defendants’ summary of Dr. Condit’s report.

See MCL 600.2957 and MCL 600.6304.

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cordingly, defendants’ motions were denied, as was

their subsequent motion for reconsideration. We then

granted defendants’ application for leave to appeal

these orders, Slager v Kids Court, LLC, unpublished

order of the Court of Appeals, entered July 14, 2009

(Docket No. 292856).

II. ANALYSIS

As they argued in the trial court, defendants main-

tain on appeal that the tort-reform legislation of 1995

permits naming plaintiff’s parents as nonparties at

fault and that the court’s ruling that parental immunity

eliminated any legal duty was erroneous. This argu-

ment raises questions concerning statutory interpreta-

tion and the existence of a legal duty, both of which are

subject to review de novo. Office Planning Group, Inc v

Baraga-Houghton-Keweenaw Child Dev Bd, 472 Mich

479, 488; 697 NW2d 871 (2005); Dyer v Trachtman, 470

Mich 45, 49; 679 NW2d 311 (2004).

In 1995, the Legislature enacted comprehensive tort-

reform legislation. Romain, 483 Mich at 25 (Y

OUNG

,J.,

dissenting). An important aspect of this reform was the

replacement of the common-law doctrine of joint and

several liability with the doctrine of several liability.

MCL 600.2956. To this end, the Legislature passed

MCL 600.2957 and MCL 600.6304, known as the

comparative-fault statutes, which require fact-finders

to assess fault in personal injury actions according to an

individual’s degree of fault irrespective of the individu-

al’s involvement in the suit. “The significance of the

change is that each tortfeasor will pay only that portion

of the total damage award that reflects the tortfeasor’s

percentage of fault,” i.e., the tortfeasor will pay only his

“ ‘fair share liability.’ ” Smiley v Corrigan, 248 Mich

App 51, 55; 638 NW2d 151 (2001) (citation omitted).

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Section 2957(1) provides:

In an action based on tort or another legal theory

seeking damages for personal injury, property damage, or

wrongful death, the liability of each person shall be allo-

cated under this section by the trier of fact and, subject to

section 6304, in direct proportion to the person’s percent-

age of fault. In assessing percentages of fault under this

subsection, the trier of fact shall consider the fault of each

person, regardless of whether the person is, or could have

been, named as a party to the action. [MCL 600.2957(1).]

Section 6304 similarly provides, in part:

(1) In an action based on tort or another legal theory

seeking damages for personal injury, property damage, or

wrongful death involving fault of more than 1 person,

including third-party defendants and nonparties, the court,

unless otherwise agreed by all parties to the action, shall

instruct the jury to answer special interrogatories or, if

there is no jury, shall make findings indicating both of the

following:

(a) The total amount of each plaintiff’s damages.

(b) The percentage of the total fault of all persons that

contributed to the death or injury, including each plaintiff

and each person released from liability under [MCL

600.2925d], regardless of whether the person was or could

have been named as a party to the action.

***

(2) In determining the percentages of fault under sub-

section (1)(b), the trier of fact shall consider both the

nature of the conduct of each person at fault and the extent

of the causal relation between the conduct and the dam-

ages claimed. [MCL 600.6304.]

“Fault” is defined broadly to include “an act, an

omission, conduct, including intentional conduct, a

breach of warranty, or a breach of a legal duty, or any

conduct that could give rise to the imposition of strict

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liability, that is a proximate cause of damage sustained

by a party.” MCL 600.6304(8). Notably, the assessment

of fault against a nonparty does not subject the non-

party to liability, but is only used to determine the

percentage of fault, if any, of the named parties in an

action. MCL 600.2957(3).

Recently, our Supreme Court in Romain clarified

what is necessary to allocate nonparty fault under the

comparative-fault statutes for negligence claims. Spe-

cifically, the Court affirmed the holding of Jones v

Enertel, Inc, 254 Mich App 432, 437; 656 NW2d 870

(2002), that “a duty must first be proved before the

issue of fault or proximate cause can be considered.”

Romain, 483 Mich at 20.

The Romain Court, however,

did not address whether the existence of immunity

abolishes a duty per se (and therefore precludes an

assessment of percentage of fault under the

comparative-fault statutes as the trial court found) or

whether an immunity serves only to protect the non-

party from being personally subject to liability when a

duty otherwise exists. In fact, Romain did not discuss

immunity at all, but instead focused on whether a duty

was required to be proved before a person could be

named a nonparty at fault.

A. IS THERE A DUTY?

Concerning the threshold issue of duty in the case at

hand, it is well established that parents have a duty to

provide for the support and maintenance of their minor

children, including the provision of medical care. Ad-

In reaching this decision, the Romain Court overruled this Court’s

most recent pronouncement on this issue in Kopp v Zigich, 268 Mich App

258, 260; 707 NW2d 601 (2005), that “a plain reading of the comparative

fault statutes does not require proof of a duty before fault can be

apportioned and liability allocated.” Romain, 483 Mich at 20.

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dressing this point directly, this Court has stated that a

“parent’s duty to support a minor child requires the

parent to furnish all necessaries essential to the health

and comfort of the child, including, for example, medi-

cal care.” Manley v Detroit Auto Inter-Ins Exch, 127

Mich App 444, 453; 339 NW2d 205 (1983), aff’d in part

and rev’d in part on other grounds 425 Mich 140 (1986).

That this is a legal as well as a moral duty is

universally recognized in jurisdictions throughout this

country, and Michigan is no exception. Plumley v Klein,

388 Mich 1,8&n6;199NW2d 169 (1972) (referring to

the rule that a minor child may sue his parent in tort,

and therefore in negligence, as the “original common-

law rule”); 59 Am Jur 2d, Parent and Child, § 45, p 213

(“A [parent’s] duty to support and maintain minor

children is universally recognized . . .[e]ven in the ab-

sence of statute....”); see also Fonken v Fonken, 334

Ark 637, 642; 976 SW2d 952 (1998) (“[A] parent has a

legal duty to support his minor children, regardless of

the existence of a support order.”); Stecyk v Bell Heli-

copter Textron, Inc, 53 F Supp 2d 794, 800 (ED Pa, 1999)

(“Pennsylvania imposes an independent common law

duty upon the parent to support a minor child....”),

citing Blue v Blue, 532 Pa 521, 529; 616 A2d 628 (1992);

RJD v Vaughan Clinic, PC, 572 So 2d 1225, 1227 (Ala,

1990) (“Alabama has long recognized the principle that

parents are, by the common law, under the legal duty of

providing medical attention for their children.”);

Rounds Bros v McDaniel, 133 Ky 669, 674; 118 SW 956

(1909) (“ ‘Three leading duties of parents as to their

legitimate children are recognized at the common law:

First, to protect; second, to educate; third, to maintain

them.’ ”), quoting Schouler on Domestic Relations, p

415; Niewiadomski v United States, 159 F2d 683, 686

(CA 6, 1947) (“At common law a parent is charged with

the duty of educating and supporting a minor

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child . . . .”); Doughty v Engler, 112 Kan 583, 585; 211 P

619 (1923) (stating that parents have a legal obligation

independent of statute to support their minor child).

Consequently, these parents had a common-law duty to

provide the appropriate medical care for their child. As

such, unless their parental immunity provides other-

wise, they could be named nonparties at fault.

B. THE IMPACT OF AN IMMUNITY

Although parents traditionally enjoyed immunity

from suit by their minor child should they breach the

duties owed to the child, the modern rule is that a child

may sue his parents for negligence. Plumley, 388 Mich

at 8. An exception to this rule in Michigan, however,

extends immunity to parents “where the alleged negli-

gent act involves an exercise of reasonable parental

discretion with respect to the provision of food, cloth-

ing, housing, medical and dental services, and other

care.” Id. According to plaintiff, the existence of this

immunity abolished any duty his parents owed him.

Resolution of the effect of an immunity on a duty,

however, is not an open question. Indeed, as explained

later in this opinion, though an immunity will prevent

a party from being held liable for breach of a duty, the

preexisting duty remains intact despite the liability

shield provided by the immunity. Our Supreme Court

has recognized this distinction in the context of the

“highway exception” to governmental immunity

and

has concluded that the availability of an immunity is

relevant to whether recourse exists for the breach of an

existing duty. Nawrocki v Macomb Co Rd Comm, 463

Mich 143, 157; 615 NW2d 702 (2000). As Nawrocki

explained:

MCL 691.1402(1).

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Because immunity necessarily implies that a “wrong”

has occurred, we are cognizant that some tort claims,

against a governmental agency, will inevitably go unrem-

edied. Although governmental agencies may be under many

duties, with regard to services they provide to the public,

only those enumerated within the statutorily created excep-

tions are legally compensable if breached.[Id. (emphasis

added).]

Accordingly, the availability of an immunity has no

bearing on whether a duty exists, but rather focuses on

redressability. In other words, an immunity functions

“as a defense so that acts that would otherwise be

tortious are permissible because of the circumstances in

which they occur.” Domestic Linen Supply & Laundry

Co v Stone, 111 Mich App 827, 833; 314 NW2d 773

(1981).

Significantly, the language of the comparative-fault

statutes reflects this distinction. Concerning immunity,

MCL 600.2957(3) provides:

Sections 2956 to 2960 [MCL 600.2956 to MCL 600.2960]

do not eliminate or diminish a defense or immunity that

currently exists, except as expressly provided in those

sections. Assessments of percentages of fault for nonparties

are used only to accurately determine the fault of named

parties. If fault is assessed against a nonparty, a finding of

fault does not subject the nonparty to liability in that

action and shall not be introduced as evidence of liability in

another action. [Emphasis supplied.]

By stating that a fact-finder’s assessment of the

percentage of a nonparty’s fault does not eliminate or

diminish an immunity, § 2957(3) necessarily presup-

poses that an immunity does not abrogate a duty.

Otherwise, there would be no need to preserve that

immunity after fault has been allocated. Put differently,

if an immunity were to abrogate a duty, an allocation of

fault could never come into play because as Romain

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held, a nonparty’s duty is necessary to allocate non-

party fault in the first place. Without an allocation of

fault, no predicate would exist to eliminate the immu-

nity § 2957(3) otherwise seeks to preserve. Under the

interpretation offered by plaintiff, the reference to

immunity in § 2957(3) would be rendered superfluous,

and we must avoid a construction of a statute that

would render part of the statute surplusage or nuga-

tory. Robinson v City of Lansing, 486 Mich 1, 21; 782

NW2d 171 (2010) (citation omitted).

In reaching the opposite conclusion, the trial court

cited the Black’s Law Dictionary (8th ed) definition of

“immunity” as an “exemption from a duty, liability”

and another source that defined “immunity” as an

“[e]xemption from normal legal duties, penalties, or

liabilities, granted to a special group of people.” How-

ever, saying that one is “exempt” from a legal duty is

not the same as saying that no duty exists. Indeed,

according to the Random House College Dictionary (rev

ed, 1988), “exempt” means (as a verb) “to free from an

obligation or liability to which others are subject” or (as

an adjective) that one is “released from, or not subject

to, an obligation, liability....”Clearly, to be freed or

released from an obligation does not mean that there is

no obligation to begin with. Instead, it means one

cannot be liable for failing to adhere to the obligation.

Otherwise, there would exist nothing from which one

would be freed or released.

From the foregoing, it follows that the immunity

enjoyed by plaintiff’s parents did not abolish their duty

to seek appropriate medical care in the first place.

Indeed, a number of our sister states granting parental

immunity have also found that such immunity does not

serve to abolish an already existing duty. See, e.g.,

Doering v Copper Mountain, Inc, 259 F3d 1202, 1216

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(CA 10, 2001) (“When the Colorado Supreme Court

adopted the parental immunity doctrine, it indicated

that courts adhering to the doctrine did so for public

policy reasons, not because parents owe no duty of due

care to their children.”), citing Trevarton v Trevarton,

151 Colo 418, 421-422; 378 P2d 640 (1963); Larson v

Buschkamp, 105 Ill App 3d 965, 969; 435 NE2d 221

(1982) (stating that the doctrine of parental immunity

is a procedural rather than substantive bar to actions

between a parent and child); Emery v Emery, 45 Cal 2d

421, 427 n 3; 289 P2d 218 (1955) (“The parent’s

immunity...from tort liability is based on the minor

child’s disability to sue rather than on the absence of a

violated duty.”); Davis v Smith, 126 F Supp 497, 504

(ED Pa, 1954) (stating that parental immunity “is given

as a means of enabling the parent to discharge his

duties in preserving the domestic tranquility”), aff’d

253 F2d 286 (CA 3, 1958); Dunlap v Dunlap, 84 NH 352,

372; 150 A 905 (1930) (“Such immunity as the parent

may have from suit by the minor child for personal tort,

arises from a disability to sue, and not from lack of

violated duty.”).

Therefore, since the duty to seek appropriate medical

care was incumbent upon the parents irrespective of

their immunity, the doctrine of parental immunity does

not as a matter of law preclude an allocation of fault

under the comparative-fault statutes. Instead, the im-

munity plaintiff’s parents enjoy insulates them from

liability should the fact-finder allocate a percentage of

The historical approach to parental immunity in Michigan reflects the

same distinction. In Plumley the Court overturned a prior decision, Elias

v Collins, 237 Mich 175; 211 NW 88 (1926), that had enforced parental

immunity under all circumstances. Plumley, 388 Mich at 8. But in doing

so, the Plumley Court did not create new duties vis-à-vis parent and child.

Instead, it merely lifted the immunity granted parents for violation of

most of those existing common-law duties.

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fault to them for any breach of that duty,

MCL

600.2957(3), and they were subsequently sued. Addi-

tionally, a holding that the existence of parental immu-

nity does not preclude an allocation of fault is consis-

tent not only with the language of § 2957(3), but also

with the broad purpose of the comparative-fault stat-

utes, which is to ensure that defendants are only liable

for their “ ‘fair share liability,’ ” Smiley, 248 Mich App

at 55, and therefore is in keeping with our obligation to

construe statutes “reasonably, in a manner that is

consistent with the purpose of the legislation,” Koivisto

v Davis, 277 Mich App 492, 497; 745 NW2d 824 (2008).

(Citation omitted.)

Plaintiff argues that in overruling Kopp v Zigich, 268

Mich App 258; 707 NW2d 601 (2005), the Romain Court

rejected the notion that fault can be allocated against a

nonparty who is immune from liability. However, in

finding an allocation of fault appropriate, the Kopp

Court actually sidestepped the issue concerning immu-

nity.

Instead, the rationale underlying the Kopp deci-

sion was that the plaintiff’s employer (a nonparty to the

action) could be a proper party at fault under the

exclusive-remedy provision of the Worker’s Disability

Compensation Act (WDCA), MCL 418.101 et seq., even

though that act also rendered the employer immune

from a suit in negligence. Kopp, 268 Mich App at 261. In

other words, Kopp did not rely on or even discuss the

interplay between a party’s immunity and a party’s

The contrary holding of Byrne v Schnieder’s Iron & Metal, Inc, 190

Mich App 176, 185; 475 NW2d 854 (1991), was made before the

enactment of tort-reform legislation and, therefore, has no bearing on

this conclusion.

In this respect, defendants’ reliance on Dresser v Cradle of Hope

Adoption Ctr, Inc, 421 F Supp 2d 1024, 1027 (ED Mich, 2006), is

misplaced since that court misinterpreted Kopp on this issue of immu-

nity.

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duty in determining that an allocation of fault was

appropriate. Rather, Kopp looked to the broad defini-

tion of “fault” contained in MCL 600.6304(8) and

concluded that the exclusive-remedy provision of the

WDCA was a sufficient basis for allocating fault under

that definition. Id. at 260-261. It was from this line of

reasoning that Kopp concluded that no proof of a duty

was required before fault could be allocated, and it is

this conclusion that the Romain Court specifically

overruled. Romain, 483 Mich at 20. Thus, the effect of

immunity on the allocation of fault was untouched by

Romain and is ripe for our review.

Finally, plaintiff claims that because proximate, or

legal, cause is essentially a policy question overlap-

ping the concept of duty, see Moning v Alfono, 400

Mich 425, 438-439; 254 NW2d 759 (1977), it must be

determined at this juncture whether the conduct of

plaintiff’s parents was the proximate cause of plain-

tiff’s injuries. The thrust of plaintiff’s argument on

this point is that since public policy renders parents

immune from legal responsibility for certain conduct,

that same policy necessarily makes it impossible for

the same conduct to be the proximate, or legal, cause

of a plaintiff’s injuries. However, even assuming that

such an analysis is not premature, where duty and

proximate clause intersect is on the issue of foresee-

In a similar vein, plaintiff claims that in affirming Jones,theRomain

Court approved of the reasoning in Jones that “a party adjudicated to be

without fault may not have fault allocated to him under the guise of the

doctrine of several liability.” Jones, 254 Mich App at 437. This statement,

however, has no effect on this conclusion because, as previously noted,

the existence of immunity does not abrogate the parents’ duty. And in any

event, the affirmative defense negating an allocation of fault in Jones was

the open-and-obvious-danger doctrine—a doctrine that our Supreme

Court has determined attacks the duty element in a common-law

negligence action. Id. at 437, citing Riddle v McLouth Steel Prod Corp,

440 Mich 85, 96; 485 NW2d 676 (1992).

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ability. Id. at 439, citing Palsgraf v Long Island R Co,

248 NY 339; 162 NE 99 (1928). In contrast, the very

foundations of parental immunity are “the duties and

responsibilities [parents] assume within the house-

hold” as well as the need “to avoid judicial interven-

tion into the core of parenthood and parental disci-

pline....” Hush v Devilbiss Co, 77 Mich App 639,

645-646; 259 NW2d 170 (1977) (emphasis added).

And in any event, plaintiff has neither argued nor

cited any authority for the proposition that the policy

considerations underlying parental immunity were in

any way related to matters of foreseeability.

For two reasons, I cannot join the majority opinion.

First, and as noted at the outset, the majority is admit-

tedly deciding this case based upon a theory neither raised

nor decided below, nor raised before our Court. As ex-

plained in my partial dissent in People v Michielutti, 266

Mich App 223, 230-231; 700 NW2d 418 (2005), rev’d in

part 474 Mich 889 (2005):

As any casual reader of the Michigan Appeals Reports

will recognize, we quite frequently inform parties that

we will not address an issue not raised or decided by the

trial court, on the basis that it is not properly preserved.

Adam v Sylvan Glynn Golf Course, 197 Mich App 95, 98;

494 NW2d 791 (1992); People v Stacy, 193 Mich App 19,

28; 484 NW2d 675 (1992). We are likewise disinclined to

review issues that are actually raised by the parties, but

not adequately briefed. See, e.g., Steward v Panek, 251

Mich App 546, 558; 652 NW2d 232 (2002). The general

rationale supporting these prudent rules of appellate

procedure is that it is best to decide issues with the

benefit of briefing and argument. Bradley v Saranac Bd

of Ed, 455 Mich 285, 302-303; 565 NW2d 650 (1997).

Although we will, at times, decide a legal issue when the

facts necessary to its resolution are properly before us,

that is usually invoked when a party raises the issue to

2010] V

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this Court as an alternative means to affirm. See

Spruytte v Owens, 190 Mich App 127, 132; 475 NW2d 382

(1991).

We should likewise refuse to engage our discretion in

deciding this case on a theory that was not presented by

the parties.

Second, the majority errs by holding that the

comparative-fault statutes are inapplicable to this case.

The parents’ alleged failure to take the child to the

prescribed follow-up care is not as the majority states a

“separate tort that initiated a new causal chain leading to

its own set of damages.” Rather, as plaintiff’s complaint

itself makes clear, the alleged permanent injury to the

child’s finger is an element of the damages plaintiff seeks

to recover against defendants. Based on Dr. Condit’s

statements, surely there is an argument to be made that

plaintiff’s parents at least in part caused that damage by

breaching their duty to provide proper medical care to

their son. Consequently, the injury at the child-care facil-

ity, the immediate harm that was caused, and any lasting

damage are all part of plaintiff’s lawsuit, and as in all

nonparty-at-fault cases, defendants are asserting that

more than one person potentially caused at least some of

the damages at issue. And because these statutes reveal “a

legislative intent to allocate liability according to the

relative fault of all persons contributing to the accrual of

a plaintiff’s damages,” Lamp v Reynolds, 249 Mich App

591, 596; 645 NW2d 311 (2002), citing Wysocki v Felt, 248

Mich App 346, 364; 639 NW2d 572 (2001), defendants

should be allowed to argue to the jury that plaintiff’s

parents are at least partially at fault for some of the

damages plaintiff has suffered. (Emphasis supplied.) The

statutory language already discussed supports that intent,

and the majority’s decision that the parents are not

capable of being nonparties at fault guts the entire statu-

tory scheme.

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III. CONCLUSION

Plaintiff’s parents had a common-law duty to provide

appropriate medical care for their child, and the doc-

trine of parental immunity did not abrogate this duty.

Therefore, the existence of parental immunity cannot

preclude an allocation of fault under the comparative-

fault statutes. As the trial court erred by ruling other-

wise, I would reverse the trial court’s order denying

defendants’ motions for leave to file a notice of nonpar-

ties at fault and to amend their affirmative defenses

and remand for further proceedings.

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SCHWASS v RIVERTON TOWNSHIP

Docket No. 292737. Submitted September 9, 2010, at Lansing. Decided

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

Roy and Susan Hackert and Theodore and Joan Schwass petitioned

the Michigan Tax Tribunal after Riverton Township reassessed

parcels of real property they owned and raised the taxable value of

the property beginning with tax year 2006, following conveyances

by deed of the property from two partnerships to petitioners. Roy

Hackert and Theodore Schwass were the only partners of the

partnerships. Respondent had raised the taxable value of the

property pursuant to MCL 211.27a(3), which allows taxing bodies

to reassess a property’s taxable value upon the sale or transfer of

the property according to the following year’s state equalized

value, a process commonly called “uncapping.” The Tax Tribunal

affirmed the reassessment, concluding that the conveyances were

not within one of the exceptions to uncapping identified in MCL

211.27a(7). Petitioners appealed.

The Court of Appeals held:

Uncapping occurs when a transfer of ownership occurs. MCL

211.27a(6) lists several types of conveyances that qualify as a transfer

of ownership, including a conveyance by deed. Certain types of

conveyances are excepted and do not give rise to uncapping, including

a joint tenancy exception set forth in MCL 211.27a(7)(h). Asserting

that tenancies in partnership such as those involved in each convey-

ance here are functionally equivalent to joint tenancies, petitioners

argued that the joint tenancy exception applied and prohibited

uncapping. Conveyances by deed involving tenancies in partnership

are not included in the exceptions, however, and the Legislature did

not include tenancies in partnership when it used the term “joint

tenancy” in the exception provided by MCL 211.27a(7)(h). Thus the

joint tenancy exception did not apply.

Affirmed.

AXATION —

ROPERTY

AX —

AXABLE

ALUE —

RANSFER OF

ROPERTY —

NCAPPING —

ENANCIES IN

ARTNERSHIP

MCL 211.27a(3) provides that the taxable value of real property is

reassessed upon the sale or transfer of the property according to

220 290 M

ICH

220 [Sept

the following year’s state equalized value, a process called “uncap-

ping”; under MCL 211.27a(7), certain types of conveyances are

excepted and do not give rise to uncapping, but conveyances by

deed involving tenancies in partnership are not among them.

Mark A. Pehrson, P.C. (by Mark A. Pehrson), for

petitioners.

Before: B

ORRELLO

,P.J., and J

ANSEN

and B

ANDSTRA

,JJ.

URIAM

. Petitioners appeal by right an order of

the Michigan Tax Tribunal (MTT) affirming respon-

dent’s assessment of their real property. We affirm. This

appeal has been decided without oral argument. MCR

7.214(E).

Petitioners are two husband-and-wife couples, Roy

and Susan Hackert and Theodore and Joan Schwass.

All the real estate at issue was owned by two partner-

ships, Tero Farms and KaJo Farms, of which Roy

Hackert and Theodore Schwass were the only partners.

The partnerships deeded the real estate parcels to one

or the other of the individual partners and their respec-

tive spouses. Following these conveyances, respondent

reassessed the parcels and raised the taxable values of

the property beginning with tax year 2006. Petitioners

asserted that the conveyance of property from the

partnerships to the individual partners was not a trans-

fer that would operate to remove the cap on the

property’s taxable values. The MTT initially adopted

the hearing referee’s proposed opinion in its final order

affirming the assessment. However, after petitioners

filed their claim of appeal in this Court, the MTT issued

a “Corrected Final Opinion and Judgment” in which it

concluded that the hearing referee’s statutory basis for

deciding the matter was erroneous, but that the error

was harmless because the conveyances were not within

2010] S

CHWASS V

IVERTON

221

one of the identified exceptions to uncapping.

The

MTT therefore affirmed the result that petitioners’

property was subject to uncapping unless an affidavit

was filed stating that the property was qualified agri-

cultural property.

We review de novo legal questions decided by the

MTT. See Cowles v Bank West, 476 Mich 1, 13; 719

NW2d 94 (2006); see also Blaser v East Bay Twp, 242

Mich App 249, 252; 617 NW2d 742 (2000). Statutory

interpretation is a question of law subject to de novo

review. Detroit v Ambassador Bridge Co, 481 Mich 29,

35; 748 NW2d 221 (2008).

The Michigan Constitution and Michigan statutory

law permit the taxable value of real property to be

reassessed upon the sale or transfer of the property

according to the following year’s state equalized value.

Const 1963, art 9, § 3; MCL 211.27a(3); Signature Vil-

las, LLC v Ann Arbor, 269 Mich App 694, 696-697; 714

NW2d 392 (2006). This is known as “uncapping” the

taxable value. Id. at 697. Uncapping occurs whenever a

“transfer of ownership” occurs. MCL 211.27a(3).

“[T]ransfer of ownership” is “the conveyance of title to

or a present interest in property, including the benefi-

cial use of the property, the value of which is substan-

tially equal to the value of the fee interest.” MCL

211.27a(6). The statute lists several types of convey-

ances that qualify as a “transfer of ownership,” includ-

ing “[a] conveyance by deed.” MCL 211.27a(6)(a). The

statute also lists certain types of conveyances that are

excepted from this definition and do not give rise to

uncapping. MCL 211.27a(7).

Because the incorrect statutory basis of the original final order has

been vacated, we need not address petitioners’ argument that the

decision contained erroneous legal reasoning.

222 290 M

ICH

220 [Sept

In the instant case, the property was conveyed by

deed. Accordingly, the conveyance was a “transfer of

ownership” under MCL 211.27a(6)(a) unless one of the

exceptions of MCL 211.27a(7) was applicable. Before

the property was conveyed, it was owned by a partner-

ship. Under Michigan law, “[a] partner is a co-owner

with his partners of specific partnership property hold-

ing as a tenant in partnership[.]” MCL 449.25(1).

Petitioners assert that there is no functional difference

between a tenancy in partnership, which existed here,

and a joint tenancy. Accordingly, they contend that the

joint tenancy exception set out in MCL 211.27a(7)(h)

should control and the taxable value should not be

uncapped.

We disagree. The statutory scheme unambiguously

identifies the types of conveyances that do not trigger

uncapping, and conveyances involving tenancies in

partnership are not among those listed. See MCL

211.27a(7). Nor can we assume that the Legislature

intended to include tenancies in partnership when it

used the term “joint tenancy” in the exception provided

by MCL 211.27a(7)(h). In Wengel v Wengel, 270 Mich

App 86, 93; 714 NW2d 371 (2006), this Court identified

the five types of coownership in this state, listing joint

tenancies and tenancies in partnership separately: “In

Michigan, there are five common types or forms of

concurrent ownership that are recognized relative to

the ownership of real property, and those are tenancies

in common, joint tenancies, joint tenancies with full

rights of survivorship, tenancies by the entireties, and

tenancies in partnership.” Although joint tenancies and

tenancies in partnership are similar, they remain legally

distinct forms of ownership, and the Uniform Partner-

ship Act does not identify property held by a partner-

ship as property held in “joint tenancy.” Moreover,

because MCL 449.25 was enacted by 1917 PA 72, long

2010] S

CHWASS V

IVERTON

223

before the process of uncapping was devised by the

Legislature, it cannot be said that the Legislature was

unaware of tenancies in partnership at the time it

amended MCL 211.27a(7) in 1994 to provide for uncap-

ping. See 1994 PA 415. Petitioners essentially ask this

Court to make a policy decision, an argument more

properly addressed to the Legislature. It is well settled

that “questions of Michigan tax policy are determined

by the Legislature, not the courts.” TMW Enterprises

Inc v Dep’t of Treasury, 285 Mich App 167, 180; 775

NW2d 342 (2009).

Affirmed. No taxable costs pursuant to MCR 7.219, a

public question having been involved.

224 290 M

ICH

220 [Sept

1031 LAPEER LLC v RICE

Docket No. 290995. Submitted July 13, 2010, at Detroit. Decided August

5, 2010. Approved for publication October 7, 2010, at 9:00 a.m.

1031 Lapeer LLC and William R. Hunter brought an action in the

Oakland Circuit Court against Ricky L. Rice, doing business as R.

L. Rice Properties, alleging that defendant failed to inform them

that property they had leased from him was contaminated. Plain-

tiffs sought rescission of the lease and damages, claiming that

defendant had committed silent fraud and fraudulent misrepre-

sentation and had breached the lease. Plaintiffs moved for partial

summary disposition, after which defendant also moved for partial

summary disposition. The court, Steven N. Andrews, J., denied

defendant’s motion and granted partial summary disposition in

favor of plaintiffs, concluding that the lease was void because

defendant had failed to disclose that the property was contami-

nated. Plaintiffs’ fraud claims proceeded to trial. The jury found in

plaintiffs’ favor, and a judgment was entered against defendant.

Defendant appealed.

The Court of Appeals held:

1. Part 201 of the Natural Resources and Environmental

Protection Act, MCL 324.20101 et seq., provides for appropriate

response activities related to environmental contamination. MCL

324.20116(1) prohibits a person from transferring an interest in

real property that is a “facility,” as defined by MCL 324.20101(o),

without notifying the transferee in writing that the property is a

facility and disclosing the general nature and extent of the

contamination. Although the act does not specify a remedy for a

violation of this provision, contracts founded on acts prohibited by

statute or made in violation of public policy are void. Given that

defendant did not dispute that the property at issue was consid-

ered a facility, he was prohibited from transferring an interest in

the property without providing plaintiffs written notice that the

property was a facility. Because defendant failed to provide such

notice, the lease contract was founded on an act prohibited by

statute and was thus void. Public policy also supported this

finding. Enforcement of the contract made without the disclosure

2010] 1031 L

APEER

LLC

ICE

225

would be against public policy because it exposed plaintiffs to

significant costs and liability. Thus, the trial court correctly ruled

that the lease contract was void.

2. Defendant’s argument that he was entitled to summary

disposition on plaintiffs’ fraud claims because plaintiffs did not

reasonably rely on defendant’s alleged misrepresentations failed.

Defendant had actual knowledge of the contamination and did not

unequivocally advise plaintiffs of that fact in writing. A misrepre-

sentation need not be by words alone, but can be shown if a party

required to disclose intentionally suppresses material facts to

create a false impression to the other party. Whether defendant

intentionally failed to advise plaintiffs of the contamination and

whether the contract reasonably placed plaintiffs on notice of the

contamination were proper questions for the jury.

Affirmed.

ROPERTY —

NVIRONMENT —

ATURAL

ESOURCES AND

NVIRONMENTAL

ROTEC-

TION

CT —

RANSFER OF

ACILITIES —

AILURE TO

ROVIDE

RITTEN

OTICE THAT THE

ROPERTY WAS A

ACILITY —

FFECT ON

ONTRACT

Part 201 of the Natural Resources and Environmental Protection

Act prohibits a person from transferring an interest in real

property that meets specific criteria with respect to environmental

contamination and thus is defined as a “facility” under the act

without notifying the transferee in writing that the property is a

facility and disclosing the general nature and extent of the

contamination; there is no statutorily specified remedy for a

violation of this requirement, but contracts founded on acts

prohibited by statute or made in violation of public policy are void;

thus, a contract transferring an interest in property that is a

facility without the required notice is void (MCL 324.20101[o],

324.20116[1]).

Phillip B. Maxwell & Associates, P.L.L.C. (by Phillip

B. Maxwell), for plaintiffs.

Hartrick & Chapman, P.L.L.C. (by Bruce G. Har-

trick), for defendant.

Before: S

HAPIRO

,P.J., and S

AAD

and S

ERVITTO

,JJ.

URIAM

. Defendant appeals as of right a trial

court order granting partial summary disposition in

226 290 M

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plaintiffs’ favor and denying defendant’s motion for

partial summary disposition. Because the trial court

properly found the lease at issue void, and because

defendant was not entitled to partial summary disposi-

tion in his favor, we affirm.

In May 2006, plaintiffs and defendant entered into a

lease agreement whereby plaintiffs were to lease a gas

station from defendant for a period of 10 years. Appar-

ently, the site of the gas station had been found to be a

site of environmental contamination in 1996—a fact

known by defendant but not disclosed to plaintiffs at

the time of the lease. Plaintiffs contacted the Michigan

Department of Environmental Quality (MDEQ) in late

2007 and were advised of the contamination. They

thereafter initiated the instant lawsuit, alleging that

defendant had violated his statutory duty to inform

them of the property’s status as a site of environmental

contamination. Plaintiffs’ specific causes of action in-

cluded silent fraud, fraudulent misrepresentation, and

breach of the lease. Plaintiffs sought damages as well as

rescission of the lease.

Plaintiffs moved for partial summary disposition

pursuant to MCR 2.116(C)(10), contending that the

lease at issue was void and that they had established the

elements of their claims against defendant, leaving only

the issue of damages for trial. Defendant also moved for

partial summary disposition in his favor asserting,

among other things, that plaintiffs had failed to exhaust

their administrative remedies under the former Michi-

gan Environmental Response Act, that plaintiffs’

claims were barred by the statute of frauds, and that

plaintiffs had not reasonably relied on any alleged

written or oral representation.

The trial court granted plaintiffs’ motion for partial

summary disposition and denied defendant’s motion for

partial summary disposition, ruling:

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The first portion of Plaintiffs’ Motion for Summary

Disposition based on MCL 324.20116(1) on the grounds

that subject lease for 1031 Lapeer Road was prohibited

because of Defendant’s failure to disclose to Plaintiffs the

fact that the site was contaminated, is granted and the

subject lease is determined to be void. Consequently, De-

fendant’s Motion for Partial Summary Disposition seeking

a determination of liability under the subject lease is

denied, with prejudice.

The second portion of Plaintiff’s [sic] Motion for Sum-

mary Disposition regarding Plaintiff’s [sic] fraud counts is

denied, without prejudice.

Plaintiffs’ fraud claims proceeded to trial, and the jury

ultimately found in plaintiffs’ favor. Judgment was

accordingly entered against defendant in the amount of

$83,000 plus interest and costs. This appeal followed.

On appeal, defendant challenges the trial court’s

order declaring the lease at issue void, granting plain-

tiffs’ motion for partial summary disposition, and deny-

ing defendant’s motion for partial summary disposition.

We review de novo a trial court’s decision on a motion

for summary disposition. Ardt v Titan Ins Co, 233 Mich

App 685, 688; 593 NW2d 215 (1999). A motion brought

under MCR 2.116(C)(10) tests a claim’s factual support.

“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 favorable 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). Summary disposition

may be granted under MCR 2.116(C)(10) when there is

no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. Steward v

Panek, 251 Mich App 546, 555; 652 NW2d 232 (2002).

“Additionally, we review de novo issues of statutory

228 290 M

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225 [Oct

interpretation.” Universal Underwriters Ins Group v

Auto Club Ins Ass’n, 256 Mich App 541, 544; 666 NW2d

294 (2003).

On appeal, defendant first asserts that partial sum-

mary disposition in plaintiffs’ favor was inappropriate

because a failure to disclose to a tenant that property

has been determined to be a site of “environmental

contamination,” as defined in MCL 324.20101(1)(o),

does not void the parties’ commercial lease. We dis-

agree.

Part 201 of the Natural Resources and Environmen-

tal Protection Act (NREPA), MCL 324.20101 et seq.,

was enacted by 1994 PA 451 as part of the repeal and

reenactment of numerous environmental statutes. Part

201 was the reenactment of the former Environmental

Response Act, MCL 299.601 et seq. Cairns v East

Lansing, 275 Mich App 102, 108; 738 NW2d 246 (2007).

MCL 324.20102 includes the following among the ex-

press purposes of part 201 of NREPA:

appropriate response activity to eliminate unacceptable

risks to public health, safety, or welfare, or to the environ-

ment from environmental contamination at facilities

within the state.

(d) That there is a need for additional administrative

and judicial remedies to supplement existing statutory and

common law remedies.

***

(h) That this part is intended to provide remedies for

facilities posing any threat to the public health, safety, or

welfare, or to the environment, regardless of whether the

release or threat of release of a hazardous substance

occurred before or after October 13, 1982, the effective date

of the former environmental response act, Act No. 307 of

the Public Acts of 1982, and for this purpose this part shall

be given retroactive application. However, criminal and

2010] 1031 L

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civil penalties provided in this part shall apply to violations

of this part that occur after July 1, 1991.

Consistently with those purposes, part 201 provides for

certain penalties for violations of specific provisions

within the act. For example, MCL 324.20107a(1)(a)

states that a person who owns or operates property that

the person knows is a facility containing hazardous

substances shall, among other things, undertake mea-

sures that are necessary to prevent exacerbation of the

existing contamination. MCL 324.20107a(2) provides,

“Notwithstanding any other provision of this part, a

person who violates subsection (1) is liable for response

activity costs and natural resource damages....”

There is no specified remedy, however, for a violation of

MCL 324.20116(1).

MCL 324.20116(1), a component of part 201 of

NREPA, provides:

A person who has knowledge or information or is on

notice through a recorded instrument that a parcel of his or

her real property is a facility shall not transfer an interest

in that real property unless he or she provides written

notice to the purchaser or other person to which the

property is transferred that the real property is a facility

and discloses the general nature and extent of the release.

“Facility,” for purposes of MCL 324.20116(1), is defined

any area, place, or property where a hazardous substance

in excess of the concentrations which satisfy the require-

ments of [MCL 324.20120a(1)(a)] or (17) or the cleanup

criteria for unrestricted residential use under part 213

[MCL 324.21301 et seq.] has been released, deposited,

disposed of, or otherwise comes to be located. Facility does

not include any area, place, or property at which response

activities have been completed which satisfy the cleanup

criteria for the residential category provided for in [MCL

324.20120a(1)(a)] and (17) or at which corrective action

230 290 M

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225 [Oct

has been completed under part 213 which satisfies the

cleanup criteria for unrestricted residential use. [MCL

324.20101(o).]

Defendant does not dispute that the gas station he

leased to plaintiffs is considered a “facility” under this

definition or that he leased the premises to plaintiffs

without advising them of its status as a facility, contrary

to MCL 324.20116(1). Defendant does dispute, however,

whether a transfer of an interest in property in viola-

tion of MCL 324.20116(1) necessarily renders the trans-

fer instrument (in this case, the lease contract) void.

As previously indicated, there is no remedy specified

for a violation of MCL 324.20116(1). But “[c]ontracts

founded on acts prohibited by a statute, or contracts in

violation of public policy, are void.” Michelson v Voison,

254 Mich App 691, 694; 658 NW2d 188 (2003). Again,

MCL 324.20116(1) provides that if a person knows that

the real property is a facility, the person “shall not”

transfer an interest in that real property unless he or

she provides written notice to the transferee that the

real property is a facility. The word “shall” is generally

used to designate a mandatory provision. AFSCME,

AFL-CIO Mich Council 25 v Highland Park Bd of Ed,

214 Mich App 182, 186; 542 NW2d 333 (1995). Con-

versely, then, the term “shall not” may be reasonably

construed as a prohibition. Because defendant was

prohibited from transferring any interest in the prop-

erty at issue unless he provided plaintiffs with written

notice that the property was a facility, and defendant

admittedly failed to provide plaintiffs with such a

written notice, the contract was founded on an act

prohibited by statute and was thus void.

Moreover, public policy supports finding the contract

void. MCL 324.20107a provides:

2010] 1031 L

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(1) A person who owns or operates property that he or

she has knowledge is a facility shall do all of the following

with respect to hazardous substances at the facility:

(a) Undertake measures as are necessary to prevent

exacerbation of the existing contamination.

(b) Exercise due care by undertaking response activity

necessary to mitigate unacceptable exposure to hazardous

substances....

***

(2) Notwithstanding any other provision of this part, a

person who violates subsection (1) is liable for response

activity costs and natural resource damages attributable to

any exacerbation of existing contamination and any fines

or penalties imposed under this part resulting from the

violation of subsection (1)....

“Operator” is defined at MCL 324.20101(1)(y) as “a

person who is in control of or responsible for the

operation of a facility.” Plaintiffs, having run the gas

station and car wash located on the property found to be

a facility, are arguably operators of the facility.

Given that one who obtains ownership over or be-

comes an operator of a facility risks exposure to poten-

tially significant costs and liability, enforcement of a

contract made without the disclosure required under

MCL 324.20116(1) would be against public policy. “It is

well established that the courts of this state will not

enforce, either in law or in equity, a contract which

violates a statute or which is contrary to public policy.”

Shapiro v Steinberg, 176 Mich App 683, 687; 440 NW2d

9 (1989). The trial court appropriately found the lease

contract at issue to be void.

Defendant next contends that summary disposition

was appropriate in his favor on any one of the grounds

232 290 M

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225 [Oct

he presented to the court in his motion for partial

summary disposition. We disagree.

Defendant presented four distinct grounds to the

trial court on which he claimed summary disposition

was appropriate in his favor: plaintiffs’ lack of legal

capacity to sue, plaintiffs’ failure to exhaust their

administrative remedies, application of the statute of

frauds to plaintiffs’ claims and the existence of no

genuine issue of material fact, and no reasonable reli-

ance by plaintiffs on any alleged written or oral misrep-

resentation. We shall address each ground in turn.

With respect to a lack of legal capacity to sue,

defendant asserts that the lease at issue was signed on

May 30, 2007, by plaintiff William Hunter, Brian

Hunter, and Owen W. O’Berry, Jr., doing business as

1031 Lapeer LLC. Defendant points out that the lease is

not with 1031 Lapeer, a Michigan corporation, and, in

fact, 1031 Lapeer was not incorporated until June 1,

2007—after the lease was signed. We would note, how-

ever, that the lease identifies the signatories, “DBA

1031 Lapeer LLC,” as tenants and that the lease was

signed by the named parties “d/b/a 1031 Lapeer LLC.”

Furthermore, even if 1031 Lapeer lacked the legal

capacity to sue, the complaint was not filed solely in the

name of 1031 Lapeer. Instead, William R. Hunter is also

a named plaintiff. That being so, it is unclear what

effect defendant would hope the potential dismissal of

1031 Lapeer as a plaintiff would have.

In any event, defendant has cited no law whatsoever,

or even a basic court rule, to support his position. An

appellant may not, in his or her brief on appeal, simply

announce a position or assert an error and then leave it

to this Court to discover and rationalize the basis for

the appellant’s claims, unravel and elaborate upon the

arguments, and search for authority to support his or

2010] 1031 L

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her position. People v Kelly, 231 Mich App 627, 640-641;

588 NW2d 480 (1998). Defendant has thus abandoned

this claim.

Defendant next asserts that summary disposition

should have been granted in his favor because of

plaintiffs’ alleged failure to exhaust their administra-

tive remedies. According to defendant, MCL

324.20135(3)(a) requires that before one may bring a

private action against an “owner or operator” for

injunctive relief, a written notice of intent to sue

must be given to the MDEQ and that, additionally, a

cause of action may not be brought if the state is not

diligently pursuing compliance. Defendant contends

that because no notice was provided as required by

statute and the state of Michigan is working with

defendant toward compliance, plaintiffs’ action is

barred. We disagree.

MCL 324.20135 provides:

(1) Except as otherwise provided in this part, a person,

including a local unit of government on behalf of its

citizens, whose health or enjoyment of the environment is

or may be adversely affected by a release from a facility or

threat of release from a facility, other than a permitted

release or a release in compliance with applicable federal,

state, and local air pollution control laws, by a violation of

this part or a rule promulgated or order issued under this

part, or by the failure of the directors to perform a

nondiscretionary act or duty under this part, may com-

mence a civil action against any of the following:

(a) An owner or operator who is liable under [MCL

324.20126] for injunctive relief necessary to prevent irrepa-

rable harm to the public health, safety, or welfare, or the

environment from a release or threatened release in rela-

tion to that facility.

***

234 290 M

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225 [Oct

(3) An action shall not be filed under subsection (1)(a) or

(b) unless all of the following conditions exist:

(a) The plaintiff has given at least 60 days’ notice in

writing of the plaintiff’s intent to sue, the basis for the suit,

and the relief to be requested to each of the following:

(i) The department [MDEQ].

(ii) The attorney general.

(iii) The proposed defendants.

(b) The state has not commenced and is not diligently

prosecuting an action under this part or under other

appropriate legal authority to obtain injunctive relief con-

cerning the facility or to require compliance with this part

or a rule or an order under this part.

This statute, known as the “citizens suit” provision

of part 201, Cairns, 275 Mich App at 114, clearly

governs only those lawsuits brought by a “person,

including a local unit of government on behalf of its

citizens, whose health or enjoyment of the environment

is or may be adversely affected by a release from a

facility or threat of release from a facility ....”More-

over, the lawsuits governed by this statute are specified

as those against an owner or operator for injunctive

relief. Plaintiffs have not brought suit in the position of

citizens whose health or enjoyment of the environment

may be adversely affected by the contamination at

issue. Instead, their lawsuit finds its genesis in the

parties’ contract and is based on fraud and statutory

violations. Plaintiffs sought rescission of the contract as

well as damages—not injunctive relief.

Clearly, then,

MCL 324.20135 is inapplicable in this matter.

Next, defendant contends that summary disposition

was appropriate in his favor because the statute of

While plaintiffs did initially seek injunctive relief, the injunction

sought was to enjoin enforcement of the lease.

2010] 1031 L

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frauds bars plaintiffs’ claims and there is no genuine

issue of material fact. The entirety of defendant’s

argument on this issue consists of this single, one-

sentence bare assertion, supported by no law or fact.

Again, a party may not simply announce a position or

assert an error on appeal and leave it to this Court to

discover and rationalize the basis for his or her claims.

Kelly, 231 Mich App at 640-641.

Finally, defendant claims that summary disposition

should have been entered in his favor on plaintiffs’

fraud claims because plaintiffs did not reasonably rely

on any alleged written or oral misrepresentation. Ac-

cording to defendant, because plaintiffs had the means

to discover all the information about the contamination

and suffered no damages as the result of any alleged

misrepresentation, their fraud claims necessarily fail.

We disagree.

To establish actionable fraud, a plaintiff must show

that (1) the defendant made a material representation,

(2) the representation was false, (3) the defendant knew

the representation was false or recklessly made the

representation as a positive assertion without knowl-

edge of its truth, (4) the defendant made the represen-

tation with the intention that the plaintiff act on it, (5)

the plaintiff acted in reliance on the representation, and

(6) the plaintiff suffered injury. Johnson v Wausau Ins

Co, 283 Mich App 636, 643; 769 NW2d 755 (2009).

Additionally, “[s]uppression of facts and truths can

constitute silent fraud where the circumstances are

such that there exists a legal or equitable duty to

disclose.” Mable Cleary Trust v Edward-Marlah Muzyl

Trust, 262 Mich App 485, 500; 686 NW2d 770 (2004).

Importantly, to sustain a claim of fraud, the plaintiff

must have reasonably relied on the false representa-

tion. Nieves v Bell Indus, Inc, 204 Mich App 459, 464;

236 290 M

ICH

225 [Oct

517 NW2d 235 (1994). “There can be no fraud where a

person has the means to determine that a representa-

tion is not true.” Id.

In this case, defendant identifies several provisions

within the parties’ contract that expressly mentioned

contamination, asserting that such references essen-

tially placed plaintiffs on notice of existing contamina-

tion. Specifically, defendant cites ¶ (8) of the contract,

which provided that the tenant would not be liable for

any acts or omissions of the landlord for his failure to

comply with laws, orders, regulations, or ordinances,

including soil-contamination requirements. The para-

graph further provided that

[i]n the event the Landlord’s obligations as to pre-existing

contamination on the property are expanded as a result of

future changes in environmental laws and/or regulations

by any governmental agency, it is agreed that Landlord’s

obligations as to the pre-existing contamination on the

property will include Landlord’s obligation to comply with

those new governmental laws and regulations at Land-

lord’s sole expense.

Defendant also cites ¶ (14) of the lease, which provided

that if any upgrade work was required for the

underground-storage tanks, the landlord would be

solely responsible for making and paying for those

upgrade activities. Defendant further notes ¶ (33),

which states:

[I]n the event any government agency requires cleanup

of environmental contamination which exists on the prop-

erty at the time of this Lease Agreement which is the

Landlord’s responsibility and the Landlord fails or refuses

to pay for the required cleanup and the Tenant is obligated

to pay for the cleanup which is the Landlord’s responsibil-

ity, Landlord and Landlord’s other property or any part-

ners shall be subject to levy or execution as a result of

2010] 1031 L

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tenant’s obligation to pay for the cleanup that is the

obligation of Landlord to pay.

Defendant also agreed, in ¶ (35) of the lease, that he

would indemnify plaintiffs and hold them harmless

from any liability and expenses for preexisting contami-

nation. Defendant contends that no fraud can lie given

that plaintiffs had notice, through the contractual lan-

guage cited, that the site was contaminated and when

plaintiffs otherwise had the means to discover whether

any representation regarding the contamination was

true. Given the numerous references to preexisting

contamination, the contract could be viewed as putting

plaintiffs on notice of preexisting contamination. Fur-

ther, because plaintiffs discovered that the site was

contaminated by contacting the MDEQ mere months

after the lease was executed, it might be reasonably

argued that plaintiffs could have discovered this infor-

mation before entering into the lease.

However, defendant undisputedly had actual knowl-

edge of existing contamination and did not unequivocally

advise plaintiffs of this fact in a writing that disclosed the

general nature and extent of the contamination as re-

quired by MCL 324.20116(1). As stated in M&D,Incv

McConkey, 231 Mich App 22, 25; 585 NW2d 33 (1998), “A

misrepresentation need not necessarily be words alone,

but can be shown where the party, if duty-bound to

disclose, intentionally suppresses material facts to create a

false impression to the other party.” Whether defendant

intentionally failed to advise plaintiffs of the known con-

tamination was a question of fact for the jury, as was

whether the contract itself reasonably placed plaintiffs on

notice that the site was contaminated. Because defendant

had a statutory duty to disclose to plaintiffs the fact that

the site had been found to be contaminated before trans-

ferring any interest in the subject property to them, and

238 290 M

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225 [Oct

did not do so, and because questions of fact existed

regarding the fraud claims, the fraud claims properly

withstood summary disposition.

Moreover, the fraud issue was submitted to a jury,

which found that defendant had, in fact, engaged in

fraud and thus awarded plaintiffs damages on the fraud

claims. Because defendant did not appeal the jury

verdict itself, any error by the trial court in denying

defendant’s motion for partial summary disposition on

plaintiffs’ fraud claims would be irrelevant because no

matter what this Court’s ruling on the summary dispo-

sition issue, the jury verdict would still stand.

With respect to defendant’s argument concerning

plaintiffs’ damages, we would note that defendant as-

serts that no damages were suffered because plaintiffs

did not pay any MDEQ response costs. Plaintiffs have

never claimed that they paid MDEQ cleanup costs.

Instead, plaintiffs asserted in their complaint that the

damages they suffered as a result of defendant’s fraud

were the over $200,000 they invested in the property,

and the facing of potential liability for environmental

cleanup costs. Defendant’s assertion regarding dam-

ages, then, is misplaced.

Affirmed. Plaintiffs, as the prevailing parties, may

tax costs.

2010] 1031 L

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LAFARGE MIDWEST, INC v CITY OF DETROIT

Docket No. 289292. Submitted April 7, 2010, at Detroit. Decided October

12, 2010, at 9:00 a.m.

Lafarge Midwest, Inc., petitioned the Tax Tribunal after the city of

Detroit included a tax for servicing school debt on its 2005, 2006,

and 2007 property tax bills, despite the fact that the property was

located in a renaissance zone and was thus generally exempt from

tax under MCL 211.7ff(1). Lafarge moved for summary disposi-

tion, arguing that none of the exceptions to the general exemption

applied. In particular, Lafarge argued that because the tax had

been approved by school district electors, rather than electors of a

“local governmental unit” as defined by the Michigan Renaissance

Zone Act, the exception from exemption in MCL 211.7ff(2)(b) did

not apply. The Tax Tribunal agreed that school districts were not

included in the definition of “local governmental unit” in MCL

125.2683. The tribunal granted Lafarge’s motion and ordered the

city to remove the tax from Lafarge’s tax bills and refund any

overpaid taxes. The city appealed.

The Court of Appeals held:

Under MCL 211.7ff(1), property in a renaissance zone is

exempt from taxes collected under the General Property Tax Act

unless an exception applies. The exception for ad valorem property

taxes under MCL 211.7ff(2)(b) only extends to those levied “for the

payment of principal and interest of obligations approved by the

electors or obligations pledging the unlimited taxing power of the

local governmental unit.” This language unambiguously excepts

only obligations approved by the electors of the local governmental

unit and obligations pledging the unlimited taxing power of the

local governmental unit. MCL 125.2683 defines “local governmen-

tal unit” as “a county, city, village, or township,” which does not

include a school district. The exception for obligations approved by

the electors of a local governmental unit did not apply. Thus,

Lafarge’s property was exempt from the tax.

Affirmed.

K. F. K

ELLY

, J., dissenting, would have held that MCL 211.7ff(2)(b)

unambiguously provides an exception permitting ad valorem prop-

erty taxes on property in renaissance zones if the tax is levied for

240 290 M

ICH

240 [Oct

obligations approved by the electors or for obligations pledging the

unlimited taxing power of the local governmental unit. The phrase

“of the local governmental unit” refers only to “obligations pledg-

ing the unlimited taxing power,” not “obligations approved by the

electors.” Because the tax resulted from an obligation approved by

the school district’s electors, the exception applied, and Lafarge’s

property should have been subject to taxation. The Tax Tribunal’s

decision should have been reversed.

AXATION —

ENAISSANCE

ONE

CT —

XEMPTION

ROM

AXATION —

XCEP-

TIONS —

ROPERTY

AXES

Property located in a renaissance zone is exempt from taxes under

the General Property Tax Act unless an exception applies; the

statutory exception for ad valorem property taxes only extends to

those levied for the payment of principal and interest of obliga-

tions approved by the electors of the local governmental unit or for

obligations pledging the unlimited taxing power of the local

governmental unit; because a school district is not a local govern-

mental unit under the Michigan Renaissance Zone Act, an obliga-

tion approved by the electors of a school district does not fall

within the exception (MCL 125.2683, MCL 211.7ff[2][b]).

Dickinson Wright PLLC (by Robert F. Rhoades and

Adam D. Grant) for petitioner.

Krystal A. Crittendon, Corporation Counsel, and

Joanne D. Stafford and Kevin Richard, Assistant Cor-

poration Counsels, for respondent.

Before: J

ANSEN

,P.J., and C

AVANAGH

and K. F. K

ELLY

JJ.

AVANAGH

, J. Respondent, the city of Detroit, appeals

as of right an order of the Michigan Tax Tribunal

granting petitioner’s motion for summary disposition

under MCR 2.116(C)(10). We affirm.

Petitioner, Lafarge Midwest, Inc., was responsible for

the payment of ad valorem property taxes on three

parcels of land that are the site of its cement plant,

which is located within the Delray Renaissance Zone in

2010] L

AFARGE

IDWEST V

ETROIT

241

PINION OF THE

OURT

Detroit. In 2005, 2006, and 2007 petitioner’s real prop-

erty tax bills included a school debt service tax of 13

mills, consistent with the school district electors’ ap-

proval of $116,156,390 in school building and site

bonds. The 13-mill property tax was levied by the

Detroit Public School District for retirement of bonded

debt. Petitioner filed a petition with the Michigan Tax

Tribunal, challenging the tax on the ground that the

property was subject to the Michigan Renaissance Zone

Act (RZA), MCL 125.2681 et seq., and exempt from this

school debt service tax.

Subsequently, petitioner moved for summary dispo-

sition, arguing that the property was exempt from the

school debt service tax because none of the exceptions to

the general exemption set forth in MCL 211.7ff applied

to the property. First, petitioner argued, the tax levied

was not a special assessment under the exception set

forth in MCL 211.7ff(2)(a). Second, because the school

debt service tax was not levied by a “local governmental

unit,” i.e., a county, city, village, or township, the

exception to the general exemption set forth in MCL

211.7ff(2)(b) did not apply. Third, the tax was not levied

pursuant to any of the Revised School Code sections

listed under the exception set forth in MCL

211.7ff(2)(c). And, fourth, a casino was not being oper-

ated on the property, so the exception set forth under

MCL 211.7ff(3) did not apply.

More particularly, with regard to the second excep-

tion to the exemption, petitioner argued that a “school

district” is not considered a “local governmental unit”

under the definition provided in the RZA, MCL

125.2683(g).

And contrary to respondent’s anticipated

claim, the definition of “local governmental unit” pro-

This is the current citation. At other times relevant in this case, the

definition has appeared in other subdivisions of this section.

242 290 M

ICH

240 [Oct

PINION OF THE

OURT

vided in the General Property Tax Act was inapplicable

to this case involving the RZA. In support of its position,

petitioner cited the case of Kinder Morgan Mich, LLC v

City of Jackson, 277 Mich App 159, 166; 744 NW2d 184

(2007), which held that MCL 211.7ff must be liberally

construed to effectuate the purposes of the RZA—

securing tax relief for properties located in renaissance

zones. Accordingly, petitioner argued, because the debt

obligations were approved by school district electors

and not electors “of the local governmental unit,” this

exception to the general exemption did not apply. Thus,

petitioner’s property was exempt from the tax, and it

was entitled to a refund of the overpaid tax as well as an

order granting summary disposition in its favor.

In response to petitioner’s motion for summary dis-

position, the city argued that MCL 211.7ff(2)(b) actu-

ally contains two separate and independent clauses.

The statute provides that property in a renaissance

zone is not exempt from the collection of “[a]d valorem

property taxes specifically levied for the payment of

principal and interest of obligations approved by the

electors or obligations pledging the unlimited taxing

power of the local governmental unit.” MCL

211.7ff(2)(b) (emphasis added). A t issue in the Kinder case

was the second clause, not the first clause, and because the

first clause was at issue in this case, Kinder provides no

guidance. The city claimed that the tax was levied “to

satisfy the indebtedness of the School District of the City

of Detroit.” Thus, the fact that the school district is not a

“local governmental unit” as that term is defined in the

RZA is irrelevant; the tax was levied for the repayment of

principal and interest of obligations approved by the

electors. The city argued that if the “Legislature [had]

intended for the limiting term ‘local governmental unit’ to

apply to both clauses of MCL 211.7ff(2)(b) it could have

easily done so by the simple placement of a couple

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of commas.” Accordingly, the city requested that the

tribunal deny petitioner’s motion for summary disposi-

tion and enter a judgment in the city’s favor.

The Tax Tribunal agreed with petitioner, holding

that the definition of “local governmental unit” does

not include school districts and that the city’s “stance of

the Legislature’s intent [is] unconvincing.” The tribu-

nal concluded that, in light of the clear definition of

“local governmental unit,” as well as the mandate to

read the property tax act in conjunction with the RZA,

a clerical error or mutual mistake of fact existed and

resulted in an error on petitioner’s tax bills. Accord-

ingly, petitioner’s motion for summary disposition was

granted, and the city was ordered to remove the school

debt tax from the taxes charged to the property and

refund any overpaid taxes. This appeal followed.

On appeal, the city argues that the general exemp-

tion set forth in MCL 211.7ff(1) did not apply to

petitioner’s property; rather, the exception to that ex-

emption set forth in MCL 211.7ff(2)(b) applied because

the tax at issue was approved by the school district

electors for payment of school debt principal and inter-

est. We disagree.

In the absence of fraud, our review of the Tax

Tribunal’s decision is limited to determining whether

the tribunal misapplied the law or adopted a wrong

principle. Wexford Med Group v City of Cadillac, 474

Mich 192, 201; 713 NW2d 734 (2006). The tribunal’s

interpretation of a statute, however, presents a question

of law that is reviewed de novo on appeal. Pittsfield

Charter Twp v Washtenaw Co, 468 Mich 702, 707; 664

NW2d 193 (2003).

MCL 125.2682 of the RZA provides:

The legislature of this state finds and declares that

there exists in this state continuing need for programs to

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assist certain local governmental units in encouraging

economic development, the consequent job creation and

retention, and ancillary economic growth in this state. To

achieve these purposes, it is necessary to assist and encour-

age the creation of renaissance zones and provide tempo-

rary relief from certain taxes within the renaissance zones.

In accord, MCL 125.2689(2)(a) of the RZA states that,

except as provided in MCL 125.2690, property in a

renaissance zone is exempt from the collection of taxes

under MCL 211.7ff of the General Property Tax Act.

And MCL 211.7ff provides in part as follows:

(1) For taxes levied after 1996, except as otherwise

provided in subsections (2) and (3) and except as limited in

subsections (4), (5), and (6), real property in a renaissance

zone and personal property located in a renaissance zone is

exempt from taxes collected under this act to the extent

and for the duration provided pursuant to the Michigan

renaissance zone act, 1996 PA 376, MCL 125.2681 to

125.2696.

(2) Real and personal property in a renaissance zone is

not exempt from collection of the following:

(a) A special assessment levied by the local tax collecting

unit in which the property is located.

(b) Ad valorem property taxes specifically levied for the

payment of principal and interest of obligations approved

by the electors or obligations pledging the unlimited taxing

power of the local governmental unit.

revised school code, 1976 PA 451, MCL 380.705, 380.1211c,

and 380.1212.

The dispute between the parties came to be centered

on the interpretation of MCL 211.7ff(2)(b). The city

argues that this exception to the general exemption

applied to petitioner’s property because the taxes were

“levied for the payment of principal and interest of

obligations approved by the electors.” The taxes were

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not levied for “obligations pledging the unlimited tax-

ing power of the local governmental unit.” The city

argues that the statute details two separate debt obli-

gations that are excepted from the exemption and that

the modifying phrase “of the local governmental unit”

only applies—consistently with the rule of the last

antecedent—to the second type of debt obligation for

which taxes may be levied, not the first type of debt

obligation, which is the one at issue here. In contrast,

petitioner argues that the phrase “of the local govern-

mental unit” applies and modifies both types of debt

obligations, consistently with the plain language and

purpose of the RZA. Thus, petitioner argues, because

the statute itself requires a different interpretation

than would be accorded by the application of the rule of

the last antecedent, that rule does not apply. See Sun

Valley Foods Co v Ward, 460 Mich 230, 237; 596 NW2d

119 (1999).

The primary goal in construing a statute is to discern

and give effect to the intent of the Legislature. Murphy

v Mich Bell Tel Co, 447 Mich 93, 98; 523 NW2d 310

(1994). The first criterion in determining intent is the

specific language of the statute. United States Fidelity

& Guaranty Co v Mich Catastrophic Claims Ass’n (On

Rehearing), 484 Mich 1, 13; 795 NW2d 101 (2009). The

fair and natural import of the terms employed, in view

of the subject matter of the law, governs. People v

McGraw, 484 Mich 120, 124; 771 NW2d 655 (2009). If

the plain and ordinary meaning of the statutory lan-

guage is clear, i.e., unambiguous, the Legislative intent

is clear. Nastal v Henderson & Assoc Investigations, Inc,

471 Mich 712, 720; 691 NW2d 1 (2005); Lansing Mayor

v Pub Serv Comm, 470 Mich 154, 157; 680 NW2d 840

(2004). In such a case, the Legislature is presumed to

have intended the meaning it plainly expressed; thus,

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no further judicial construction is required or permit-

ted, and the statute must be enforced as written.

Nastal, 471 Mich at 720.

With regard to the issue of statutory ambiguity, the

Lansing Mayor Court held that “a provision of the law

is ambiguous only if it ‘irreconcilably conflict[s]’ with

another provision, [Klapp v United Ins Group Agency,

Inc, 468 Mich 459, 467; 663 NW2d 447 (2003)], or when

it is equally susceptible to more than a single meaning.”

Lansing Mayor, 470 Mich at 166 (first alteration in

Lansing Mayor). When is a provision equally suscep-

tible to more than a single meaning? The Lansing

Mayor Court held that a “reasonable disagreement” is

not the standard for identifying ambiguity. Id. at 168.

That is, “[a] provision is not ambiguous just because

‘reasonable minds can differ regarding’ the meaning of

the provision.” People v Gardner, 482 Mich 41, 50 n 12;

753 NW2d 78 (2008), quoting Lansing Mayor, 470 Mich

at 165. The Lansing Mayor Court concluded that “a

finding of ambiguity is to be reached only after ‘all other

conventional means of [ ] interpretation’ have been

applied and found wanting.” Lansing Mayor, 470 Mich

at 165, quoting Klapp, 468 Mich at 474 (alteration in

Lansing Mayor). That is, “ambiguity is a finding of last

resort.” Lansing Mayor, 470 Mich at 165 n 6.

The provision at issue in this case is MCL

211.7ff(2)(b), which provides for the collection of

[a]d valorem property taxes specifically levied for the

payment of principal and interest of obligations approved

by the electors or obligations pledging the unlimited taxing

power of the local governmental unit.

According to the city, the phrase should be read as

follows: “Ad valorem property taxes specifically levied

for the payment of principal and interest of [(1)] obli-

gations approved by the electors or [(2)] obligations

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pledging the unlimited taxing power of the local gov-

ernmental unit.” Thus the phrase “principal and inter-

est of” would apply to both types of obligations, but the

phrase “of the local governmental unit” would apply

only to the second type of obligation, in accordance with

the rule of the last antecedent. However, the statutory

provision could also be read in the following manner:

“Ad valorem property taxes specifically levied for the

payment of [(1)] principal and interest of obligations

approved by the electors or [(2)] obligations pledging

the unlimited taxing power of the local governmental

unit.” Thus the phrase “principal and interest of”

would only apply to obligations approved by the electors

and not the obligations pledging the unlimited taxing

power of the local governmental unit. In Kinder, 277

Mich App at 168-169, the respondent, the city of Jack-

son, made such an argument. In this case, the city of

Detroit declines to take that position, claiming that the

phrase “principal and interest of” “clearly” applies to

both obligations, although it fails to identify why this

interpretation is “clearly” accurate.

Petitioner offers the following construction of the

statutory provision: “Ad valorem property taxes specifi-

cally levied for the payment of principal and interest of

[(1)] obligations approved by the electors or [(2)] obli-

gations pledging the unlimited taxing power[,] of the

local governmental unit.” The phrase “principal and

interest of” would apply to both types of obligations,

and the phrase “of the local governmental unit” would

apply to both types of obligations. It follows, then, that

another possible construction of the statutory provision

is the following: “Ad valorem property taxes specifically

levied for the payment of [(1)] principal and interest of

obligations approved by the electors or [(2)] obligations

pledging the unlimited taxing power[,] of the local

governmental unit.” The phrase “principal and interest

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of” would only apply to obligations approved by the

electors and not obligations pledging the unlimited

taxing power, and the phrase “of the local governmental

unit” would apply to both types of obligations.

As set forth earlier, to construe a statute we must first

examine its language, according every word and phrase its

plain and ordinary meaning and considering the gram-

matical context. MCL 8.3a; United States Fidelity, 484

Mich at 13. First, we turn to the phrase “principal and

interest of .” The issue whether this phrase applies only to

“obligations approved by the electors” or whether it also

applies to “obligations pledging the unlimited taxing

power of the local governmental unit” has not been raised

in this case. This issue was raised in Kinder, but the

Kinder Court was not required to construe the provision

on the facts of that case. Kinder, 277 Mich App at 168-169.

Because this issue was not raised by the parties, we need

not construe this statutory language but will assume for

purposes of this case that the phrase applies to both

obligations.

Next, we consider whether the phrase “of the local

governmental unit” applies to “obligations approved by

the electors,” as held by the Tax Tribunal. Guidance is

gleaned from the statutory language. The Legislature

used the word “the” with respect to “electors.” “The” is

a definite article that, when used especially before a

noun—like “electors”—has a specifying or particulariz-

ing effect. See Robinson v City of L ansing, 486 Mich 1,

14; 782 NW2d 171 (2010). Following the rationale of

Robinson, because MCL 211.7ff(2)(b) refers to “the

electors,” we must determine to which “specific or

particular” electors it refers.

If the provision had

The Robinson Court construed the “two-inch rule” set forth in MCL

691.1402a(2) of the governmental tort liability act, MCL 691.1401 et seq.

Robinson, 486 Mich at 3, 5.

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simply said “electors,” it might have referred to electors

generally, as the dissent opines. However, because the

phrase “of the local governmental unit” is within the

same statutory provision, we conclude that “the elec-

tors” must be the electors of the local governmental

unit. This interpretation recognizes that the Legisla-

ture is presumed to be familiar with the rules of

statutory construction, as well as the rules of grammar.

See 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). This construction

is also in compliance with the mandate to “ ‘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.’ ” Klapp, 468 Mich at

468, quoting State Farm Fire & Cas Co v Old Republic

Ins Co, 466 Mich 142, 146; 644 NW2d 715 (2002). The

dissent’s interpretation of the provision ignores, and

thereby renders surplusage or nugatory, the word “the”

in “the electors.” Accordingly, we also reject the dis-

sent’s claim that “[n]othing in the plain language of

MCL 211.7ff(2)(b) specifies or limits which ‘electors’

must approve the obligation.”

The city argues that, under the rule of the last

antecedent, the modifying clause “of the local govern-

mental unit” should only apply to the antecedent “ob-

ligations pledging the unlimited taxing power” and not

to “obligations approved by the electors.” Clearly, the

rule of the last antecedent does not apply when its

application results in a construction that is contrary to

the plain language of the statute. See Sun Valley Foods,

460 Mich at 237. As discussed earlier, the statutory

provision itself refers to “the electors,” not merely

“electors” in general.

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Further, as our Supreme Court noted in Robinson,

486 Mich at 15, “to discern the Legislature’s intent,

statutory provisions are not to be read in isolation;

rather, context matters, and thus statutory provisions

are to be read as a whole.” Therefore, we turn to MCL

211.7ff(2), which provides in relevant part:

Real and personal property in a renaissance zone is not

exempt from collection of the following:

(a) A special assessment levied by the local tax collecting

unit in which the property is located.

(b) Ad valorem property taxes specifically levied for the

payment of principal and interest of obligations approved

by the electors or obligations pledging the unlimited taxing

power of the local governmental unit.

revised school code, 1976 PA 451, MCL 380.705, 380.1211c,

and 380.1212.

The statute clearly states that the exemption does not

apply to “[a] special assessment levied by the local tax

collecting unit” or to “[a]d valorem property taxes

levied for payment of...obligations pledging the un-

limited taxing power of the local governmental unit.”

MCL 211.7ff(2)(a) and (b) (emphasis added). It would be

inherently inconsistent to construe the statute so as to

require the payment of ad valorem property taxes levied

for obligations approved by any group of “electors”

rather than, consistent with the statutory language and

overall scheme, just “the electors” of the local govern-

mental unit. This construction (1) complies with the

mandate that “[e]ffect is to be given to every provision,

and the whole statute is to be considered in order to

achieve a harmonious and consistent result,” Ferguson

v Pioneer State Mut Ins Co, 273 Mich App 47, 52; 731

NW2d 94 (2006), and (2) recognizes the fact that the

Legislature is under no “obligation to cumbersomely

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repeat language that is sufficiently incorporated into a

statute by the use of such terms as ‘the,’ ‘such,’ and

‘that,’ ” Robinson, 486 Mich at 17.

In summary, we agree with the Tax Tribunal’s con-

clusion, albeit for different reasons, that the levy of the

tax on petitioner’s property was improper in that the

taxes were not levied for the payment of “obligations

approved by the electors” within the meaning of MCL

211.7ff(2)(b). After applying conventional means of

statutory interpretation, we conclude that the phrase

“of the local governmental unit” clearly applies to both

the “obligations approved by the electors” and the

“obligations pledging the unlimited taxing power.”

There is no ambiguity. Thus, the Tax Tribunal properly

granted petitioner’s motion for summary disposition

and properly ordered the removal of the school debt

service taxes from the taxes charged to petitioner’s

property, as well as a refund of any overpaid taxes.

Affirmed.

ANSEN

,P.J., concurred.

K. F. K

ELLY

,J.(dissenting). I respectfully dissent. I

disagree with the majority’s interpretation of the

phrase “of the local government unit” in MCL

211.7ff(2)(b) as applying to both “obligations approved

by the electors” and “obligations pledging the unlimited

taxing power.” Despite its conclusion that the provision

is unambiguous, the majority reads additional terms

into MCL 211.7ff(2)(b) and, thus, its holding is contrary

to the plain language of the statute and also to the rules

of statutory construction. In my view, the language of

MCL 211.7ff(2)(b) is clear and unambiguous, and judi-

cial construction of its language is not permitted. I

would apply the plain and ordinary meaning of the

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provision to the circumstances at issue and reverse the

Tax Tribunal’s decision that respondent improperly

assessed the tax.

This Court reviews the Tax Tribunal’s interpretation

of a statute de novo. See Pittsfield Charter Twp v

Washtenaw Co, 468 Mich 702, 707; 664 NW2d 193

(2003). When interpreting the meaning of a statute, this

Court’s goal is to determine and give effect to the

Legislature’s intent. The first step is to review the

language used. Institute in Basic Life Principles, Inc v

Watersmeet Twp (After Remand), 217 Mich App 7, 12;

551 NW2d 199 (1996). The Legislature is presumed to

intend the meaning that is plainly expressed by the

words written. Id. If the language of a statute is clear

and unambiguous, then judicial construction is not

necessary, nor is it even permitted, Mt Pleasant v State

Tax Comm, 477 Mich 50, 53; 729 NW2d 833 (2007), and

this Court must apply as written the language of the

statute to the facts at issue, People v Barbee, 470 Mich

283, 286; 681 NW2d 348 (2004), even if it results in an

absurd outcome, Decker v Flood, 248 Mich App 75, 84;

638 NW2d 163 (2001). A statutory provision “is am-

biguous only if it ‘irreconcilably conflict[s]’ with an-

other 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; alteration in original). Further, I

must emphasize that the reason for these well-

established rules of statutory interpretation is to ensure

that the courts of this state adhere to their judicial role

of applying the law and do not overstep their bounds by

acting in a legislative capacity. In other words, the rules

of statutory interpretation necessarily mandate judicial

restraint in order to ensure the integrity of the separate

branches of government. “[I]n our democracy, a legisla-

ture is free to make inefficacious or even unwise policy

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choices. The correction of these policy choices is not a

judicial function as long as the legislative choices do not

offend the constitution.” Decker, 248 Mich App at 84

(citation and quotation marks omitted; alteration in

original).

The facts of this matter are not in dispute. Rather,

the central issue is a question of law: Whether peti-

tioner is subject to ad valorem tax liability under the

language of MCL 211.7ff(2)(b). The Tax Tribunal an-

swered this question in the negative, determining that

the Legislature’s intent under the Michigan Renais-

sance Zone Act (RZA), MCL 125.2681 et seq., directed

this result.

The Legislature enacted the RZA to assist “local

governmental units in encouraging economic develop-

ment” by permitting the creation of renaissance zones

within which entities would be provided temporary

relief from certain taxes. MCL 125.2682. Consistent

with this purpose, MCL 125.2689(2)(a) of the RZA

provides, in part, that “property located in a renais-

sance zone is exempt from the collection of taxes

under...[s]ection 7ff of the general property tax act

[(GPTA)], 1893 PA 206, MCL 211.7ff.” And consistent

with this mandate, MCL 211.7ff(1) provides an exemp-

tion from taxation under the GPTA:

For taxes levied after 1996, except as otherwise provided

in subsection[] (2)...,real property in a renaissance zone

and personal property located in a renaissance zone is

exempt from taxes collected under this act to the extent

and for the duration provided pursuant to the Michigan

renaissance zone act, 1996 PA 376, MCL 125.2681 to

125.2696.

Subsection 2 of MCL 211.7ff provides a list of excep-

tions to this exemption:

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Real and personal property in a renaissance zone is not

exempt from collection of the following:

(a) A special assessment levied by the local tax collecting

unit in which the property is located.

(b) Ad valorem property taxes specifically levied for the

payment of principal and interest of obligations approved by

the electors or obligations pledging the unlimited taxing

power of the local governmental unit.

revised school code, 1976 PA 451, MCL 380.705, 380.1211c,

and 380.1212. [MCL 211.7ff(2) (emphasis added).]

In other words, under these limited circumstances the

exemption from taxation under the GPTA, which is

mandated by the RZA, does not apply and an entity will

be subject to tax liability.

The only exception to the exemption that is at issue

here is MCL 211.7ff(2)(b). Under this provision, an

entity with real or personal property in a renaissance

zone will be subject to an ad valorem property tax that

was “specifically levied for the payment of principal and

interest of [(1)] obligations approved by the electors or

[(2)] obligations pledging the unlimited taxing power of

the local governmental unit.” Id. A plain reading of this

provision’s terms reveals no ambiguity. Reasonable

minds cannot differ in the conclusion that this provi-

sion provides an exception to the RZA exemption if an

ad valorem tax is levied for obligations approved by the

electors or for obligations pledging the unlimited taxing

power of the local governmental unit. Simply put, an ad

valorem tax will be applicable if either of these two

types of obligations exist.

Despite its conclusion that MCL 211.7ff(2)(b) is un-

ambiguous, the majority somehow concludes that the

exception to the exemption found in it only applies if an

ad valorem tax is levied for obligations approved by the

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electors of a local governmental unit or obligations

pledging the unlimited taxing power of the local gov-

ernmental unit. This construction bends the rules of

statutory interpretation and adds additional language

to the statute. Nothing in the plain language of MCL

211.7ff(2)(b) specifies or limits which “electors” must

approve the obligation. The majority’s conclusion that

the electors must be “of the local governmental unit,”

which by definition does not include school boards

(and

would mean that the exception language would not

apply), is contrary to the plain language of the provi-

sion. The phrase “of the local governmental unit” only

refers to the immediately antecedent phrase, i.e., “ob-

ligations pledging the unlimited taxing power.” Nothing

in the grammatical structure of MCL 211.7ff(2)(b)

suggests that “of the local governmental unit” also

applies to the phrase “obligations approved by the

electors.” This construction comports with the common

grammatical rule of construction, and a common under-

standing of the English language, “that a modifying

clause will be construed to modify only the last ante-

cedent unless some language in the statute requires a

different interpretation.” People v Small, 467 Mich 259,

263&n4;650NW2d 328 (2002) (noting that “[u]nless

set off by commas, a modifying word or phrase, where

no contrary intention appears, refers solely to the last

antecedent”). “[T]he statutory language must be read

and understood in its grammatical context.” People v

Jackson, 487 Mich 783, 791; 790 NW2d 340 (2010). The

majority’s interpretation ignores this grammatical rule

by adding a comma before the modifying phrase “of a

governmental unit” and thereby reading an otherwise

Currently, section 3(g) of the RZA, MCL 125.2683(g), defines “local

governmental unit” as “a county, city, village, or township.” At other

times relevant to this case, the definition has appeared in different

subdivisions of this section.

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nonexistent limitation into the statute—that “obliga-

tions approved by electors” means obligations approved

by electors of a local governmental unit, which only

includes counties, cities, villages, or townships. “[A

court] cannot read restrictions or limitations into a

statute that plainly contains none.” Rusnak v Walker,

273 Mich App 299, 305; 729 NW2d 542 (2006).

The majority further justifies its interpretation by

opining that the failure to add the phrase “of a govern-

mental unit” after “obligations approved by the electors”

renders the term “the,” as used before “electors,” nuga-

tory. It is true that the article “the” is a definite article

that may have a specifying effect in some contexts. How-

ever, it does not follow that the term “the” is necessarily

rendered surplusage if the phrase “obligations approved

by the electors” is not read to mean “obligations approved

by the electors [of the local governmental unit].” I would

note that the article “the” may also be used to designate a

noun “as being used generically,” Random House Web-

ster’s College Dictionary (1997),

and that that is how the

Legislature used the term “the” here. The majority,

however, defines the term “the” to require that the

particular electors be defined and then goes a step

further to conclude that those electors must be “of the

local governmental unit.” This is not what the provision

states.

I agree with the majority that statutory provisions

must not be read in isolation, but in the context of the

statutory scheme as a whole. See Robinson, 486 Mich at

15. However, nothing in the language of MCL 211.7ff(2)

renders my interpretation “inherently inconsistent”

with the statutory language or the overall scheme of the

An example of how the term “the” may be used in this way is the

following: “The dog is a quadruped.” Random House Webster’s College

Dictionary (1997).

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statute, as the majority asserts. As previously stated,

MCL 211.7ff(2) provides a list of exceptions to the RZA

exemption:

Real and personal property in a renaissance zone is not

exempt from collection of the following:

(a) A special assessment levied by the local tax collecting

unit in which the property is located.

(b) Ad valorem property taxes specifically levied for the

payment of principal and interest of obligations approved

by the electors or obligations pledging the unlimited taxing

power of the local governmental unit.

revised school code, 1976 PA 451, MCL 380.705, 380.1211c,

and 380.1212. [Emphasis added.]

The majority implies that because the statute’s “exemp-

tion does not apply to ‘[a] special assessment levied by

the local tax collecting unit’ or to ‘[a]d valorem property

taxes levied for payment of...obligations pledging the

unlimited taxing power of the local governmental

unit,’ ” it must also follow that the ad valorem tax

levied under MCL 211.7ff(2)(b) for obligations approved

by the electors must be approved by “ ‘the electors’ of

the local governmental unit” rather than “any group of

‘electors’....”This position is logically untenable; it is

based on erroneous deductive reasoning in regard to the

relationship between subdivisions (a) and (b) of MCL

211.7ff(2). Moreover, I would also point out that the

Legislature’s inclusion in subdivision (c) of MCL

211.7ff(2) of an exception to the RZA exemption for

taxes levied under the Revised School Code does not

mandate the conclusion that MCL 211.7ff(2)(b) must be

construed to preclude an ad valorem tax levied for an

obligation approved by electors who happen to be a

particular school district’s electors. And it must be

noted that a school district can encompass more than

258 290 M

ICH

240 [Oct

ISSENTING

PINION BY

K. F. K

ELLY

,J.

one discrete local governmental unit or only part of one

or more local governmental units. Had the Legislature

wished to preclude such an outcome, it could have

included the language “of a local governmental unit”

after the phrase “obligations approved by the electors.”

It chose not to do so. The majority has otherwise failed

to explain what inherent inconsistency arises within

the statutory scheme if MCL 211.7ff(2)(b) is given its

plain and ordinary meaning, i.e., the RZA exemption is

inapplicable if an ad valorem tax is levied for obligations

approved by the electors or for obligations pledging the

unlimited taxing power of the local government unit.

For the foregoing reasons, I disagree with the majori-

ty’s construction of MCL 211.7ff(2)(b), which impermis-

sibly interprets that unambiguous provision and con-

cludes that “the phrase ‘of the local governmental unit’

clearly applies to both the ‘obligations approved by the

electors’ and the ‘obligations pledging the unlimited

taxing power.’ ” Under the circumstances of this case,

an ad valorem tax was levied that was a school debt

service tax of 13 mills as a result of the school district

electors’ approval of $116,156,390 in bonds. This was

an “obligation[] approved by the electors,” and there-

fore petitioner is subject to taxation under MCL

211.7ff(2)(b). Petitioner cannot avail itself of the RZA’s

exemption because the factual circumstances fall within

the exception to the exemption. I would conclude, then,

that the taxes were properly levied against petitioner. I

would reverse the decision of the Tax Tribunal.

2010] L

AFARGE

IDWEST V

ETROIT

259

ISSENTING

PINION BY

K. F. K

ELLY

,J.

JOHNSON v PASTORIZA

Docket No. 288338. Submitted April 6, 2010, at Lansing. Decided October

12, 2010, at 9:05 a.m.

Candice Johnson and Baby Johnson, Candice’s child who died

following its premature birth on November 1, 2005, brought an

action in the Jackson Circuit Court against Rajan Pastoriza, M.D.,

and Rajan Pastoriza, M.D., P.L.C., doing business as Women’s First

Health Services, alleging medical malpractice and negligence un-

der MCL 600.2922a as a result of defendants’ failure to perform a

cerclage that Candice requested during her pregnancy with Baby

Johnson to prevent the baby’s premature birth. The court, Tho-

mas D. Wilson, J., denied defendants’ motion for summary dispo-

sition and ordered that Candice must have a personal representa-

tive appointed for the estate of the deceased child and amend her

complaint to bring a claim concerning the child under the

wrongful-death act, MCL 600.2922 and MCL 600.2922a. The

Court of Appeals granted defendants’ application for leave to

appeal in an unpublished order, entered February 26, 2009 (Docket

No. 288338).

The Court of Appeals held:

1. MCL 600.2922, which allows an action for wrongful death,

was amended by 2005 PA 270, effective December 19, 2005, to add

the language “or death as described in section 2922a” in order to

clarify MCL 600.2922 and MCL 600.2922a and to resolve a

controversy regarding whether they allow an action brought on

behalf of a nonviable fetus. Therefore, MCL 600.2922, as amended

by 2005 PA 270, may be applied retroactively from April 1, 2000,

the effective date of the last prior amendment of MCL 600.2922

before its amendment in 2005. MCL 600.2922, as amended by 2005

PA 270, retroactively applied in this case.

2. MCL 600.2922 does not require a plaintiff to establish that

the injury was caused by an act. Rather, it provides that liability is

possible when the injury is caused by wrongful act, neglect, or fault

of another. While MCL 600.2922 refers to a death as described in

MCL 600.2922a, it does not indicate that the death in question

must occur in the manner described in MCL 600.2922a, which

refers to wrongful or negligent acts that result in a miscarriage or

260 290 M

ICH

260 [Oct

stillbirth. Plaintiffs’ allegation that defendants caused the injuries

when they neglected to perform the requested procedure in a

timely manner, when accepted as true, sufficiently established a

cause of action under MCL 600.2922.

3. MCL 600.2922a(2)(b) provides that a person is not liable for

damages for the death of an embryo or fetus if the death was the

result of a medical procedure performed by a physician or other

licensed health professional within the scope of his or her practice

and (1) performed with the pregnant individual’s consent, (2)

performed with the consent of an individual who could lawfully

provide consent on the pregnant individual’s behalf, or (3) per-

formed without consent as necessitated by a medical emergency.

4. The phrase “as necessitated by a medical emergency” in

MCL 600.2922a(2)(b) was meant to describe only situations in

which consent need not be obtained because of the surrounding

circumstances. The trial court erred by interpreting the medical-

procedure exception as applying only when the medical procedure

was necessitated by a medical emergency. Because consent was not

at issue in this case, it was irrelevant whether a medical emer-

gency occurred. MCL 600.2922a(2)(b) clearly provides an excep-

tion to MCL 600.2922a if the death of the fetus was the result of

the performance of a medical procedure. In this case, however,

there was no medical procedure performed, and plaintiffs’ claim

was based on a failure or refusal to perform an explicitly requested

medical procedure. MCL 600.2922a(2)(b) did not apply to the

factual allegations in this case.

5. Under MCL 600.2922(2), a wrongful-death action must be

brought in the name of the personal representative of the estate.

An individual cannot maintain an action in his or her name under

the wrongful-death act. Plaintiffs, however, were properly granted

leave to amend their complaint so that the action would be brought

under the wrongful-death act in the name of the personal repre-

sentative of the estate of Baby Johnson.

6. The language “or death as described in section 2922a” that

was added to MCL 600.2922 in 2005 was added to clarify that a

wrongful-death action can be brought not only for the death of a

person, pursuant to MCL 600.2922, but also for the death of an

embryo or fetus, pursuant to MCL 600.2922a. The Legislature did

not intend to supersede the general proposition stated in McClain

v Univ of Mich Bd of Regents, 256 Mich App 492 (2003), that a

plaintiff can bring a cause of action for damages in the plaintiff’s

own right as a result of a miscarriage in order to recover tort

damages. The trial court properly denied defendants’ motion for

2010] J

OHNSON V

ASTORIZA

261

summary disposition and properly granted plaintiffs an opportu-

nity to amend the complaint to comply with statutory require-

ments.

Affirmed.

AVIS

,P.J., did not participate.

1. S

TATUTES —

ETROACTIVITY —

RONGFUL

-D

EATH

TATUTE

MCL 600.2922, as amended by 2005 PA 270, may be applied

retroactively to April 1, 2000.

2. N

EGLIGENCE —

RONGFUL

-D

EATH

TATUTE —

MBRYOS OR

ETUSES —

EDICAL

-P

ROCEDURE

XCEPTION

MCL 600.2922a(2)(b) provides that a person is not liable for dam-

ages for the death of an embryo or fetus if the death was the result

of a medical procedure performed by a physician or other licensed

health professional within the scope of his or her practice and (1)

performed with the pregnant individual’s consent, (2) performed

with the consent of an individual who may lawfully provide

consent on the pregnant individual’s behalf, or (3) performed

without consent as necessitated by a medical emergency.

3. N

EGLIGENCE —

RONGFUL

-D

EATH

TATUTE —

CTIONS —

ARTIES —

LAIMS

An action under the wrongful-death statute must be brought in the

name of the personal representative of the estate of the deceased;

the persons who may be entitled to damages under the statute

must submit to the personal representative a claim for those

damages (MCL 600.2922[7]).

Ferris & Salter, P.C. (by Don Ferris), for plaintiffs.

Kitch Drutchas Wagner Valitutti & Sherbrook (by

Beth A. Wittmann and Ellen Keefe-Garner) for defen-

dants.

Before: D

AVIS

,P.J., and D

ONOFRIO

and S

TEPHENS

,JJ.

URIAM.

In this cause of action involving the

wrongful-death act, MCL 600.2922 and MCL 600.2922a,

defendants appeal by leave granted the trial court’s denial

of their motion for summary disposition. On appeal,

262 290 M

ICH

260 [Oct

defendants argue that none of plaintiffs’ claims are com-

pensable under the wrongful-death act. We affirm.

I. SUBSTANTIVE FACTS

As alleged by plaintiffs in their first amended com-

plaint, the medical history of plaintiff Candice Johnson

(hereafter Johnson) reflects that her cervix is incompe-

tent. Johnson’s incompetent cervix resulted in her

having a number of miscarriages. However, in 1999,

defendant Dr. Rajan Pastoriza’s predecessor, Dr. Dennis

Means, performed a cerclage on Johnson when she was

16 weeks pregnant. As a result of the procedure,

Johnson’s pregnancy proceeded to a full-term vaginal

birth in 2000. In 2001, when Johnson was once again 16

weeks pregnant, Dr. Means performed another cerclage,

which resulted in that pregnancy reaching 36 weeks. A

cesarean section was performed to prevent a breech

delivery. In 2002, Dr. Means once again performed a

cerclage on Johnson early in the second trimester of a

pregnancy. Dr. Means removed the cerclage suture

shortly before Johnson vaginally delivered a full-term

baby.

Johnson became pregnant again in June 2005. On

August 25, 2005, Johnson began receiving treatment

from defendant Dr. Rajan Pastoriza and defendant

Rajan Pastoriza, M.D., P.L.C. Dr. Pastoriza possessed all

of Johnson’s previous medical records. An August 25,

2005, note reveals that an ultrasound was scheduled to

be conducted at 12 weeks’ gestation with a possible

cerclage to follow. On September 9, 2005, Johnson

appeared at Foote Hospital in Jackson because of vagi-

nal bleeding. An ultrasound was performed, which

showed a live fetus at 12 weeks’ gestation. Personnel at

the hospital recommended bed rest and indicated that

Johnson should follow up with her obstetrician.

2010] J

OHNSON V

ASTORIZA

263

Johnson followed up with Dr. Pastoriza on September

13, 19, and 23, as well as on October 6. Dr. Pastoriza’s

records from September and October 2005 continued to

note Johnson’s history of an incompetent cervix and

cerclages.

On October 12, 2005, another ultrasound was or-

dered because of Johnson’s short cervix. The ultra-

sound revealed a viable fetus at almost 17 weeks’

gestation. The findings of the ultrasound also revealed

that the length of Johnson’s cervix was consistent with

the length of Johnson’s cervix when the cerclages were

performed during her previous successful pregnancies.

On October 19, 2005, during an examination by Dr.

Pastoriza, Johnson complained of cramping and de-

scribed a “feeling like pre-term labor.” Thereafter,

Johnson asked Dr. Pastoriza to perform a cerclage, but

he refused to do so.

On November 1, 2005, Johnson went into premature

labor, which resulted in advanced cervical dilation. She

went to Foote Hospital and was subsequently trans-

ferred to Sparrow Hospital in Lansing to receive an

emergency cerclage. The emergency cerclage did not

prevent the baby’s premature birth at 20 weeks’ gesta-

tion, and, as alleged in the first amended complaint,

“Johnson lost the 20 week old fetus shortly after the

transfer.”

Subsequently, Johnson attempted to have another

child and received a cerclage. However, Johnson asserts

that as a result of a significant and permanent cervical

tear, which she suffered during the emergency cerclage

at Sparrow Hospital, the cerclage during this pregnancy

failed. Dr. Michael Berke, a board-certified obstetrician,

opined that to a reasonable degree of medical certainty,

Johnson’s cervix would never have been permanently

torn if Dr. Pastoriza had timely performed a cerclage in

264 290 M

ICH

260 [Oct

October 2005. Dr. Berke also opined that to a reason-

able degree of medical certainty, Johnson would never

have another vaginal birth and that it would be difficult

for her to successfully give birth to another child.

II. PROCEDURAL HISTORY

Plaintiffs, Candice Johnson and Baby Johnson, the

child who died following its premature birth on Novem-

ber 1, 2005, subsequently brought suit. Plaintiffs al-

leged two counts, one of medical malpractice and one of

negligence under MCL 600.2922a, which is a portion of

the wrongful-death act. MCL 600.2922a(1) provides as

follows: “A person who commits a wrongful or negligent

act against a pregnant individual is liable for damages if

the act results in a miscarriage or stillbirth by that

individual, or physical injury to or the death of the

embryo or fetus.” Thereafter, defendants moved for

summary disposition pursuant to MCR 2.116(C)(8) and

(10). Defendants moved for summary disposition pur-

suant to MCR 2.116(C)(8) on the ground that the

wrongful-death act allows recovery for the death of a

fetus only when “death as described in section 2922a

[MCL 600.2922a]” occurs. Defendants asserted that no

“death as described in section 2922a” occurred “be-

cause § 2922a clearly requires an affirmative act, as

opposed to a nonobservable negligent omission that

causes a death.” In contrast, plaintiffs argued that

defendant doctor’s refusal to perform the cerclage was

an act of commission and, in addition, that MCL

600.2922a ties into the wrongful-death act, which al-

lows actions for the death of a fetus when it is caused by

a wrongful act or neglect.

At the September 11, 2008, hearing on the summary

disposition motion, defendants also asserted that under

MCL 600.2922a(2)(b), acts by medical professionals are

2010] J

OHNSON V

ASTORIZA

265

specifically excluded. MCL 600.2922a(2)(b) provides

that the section allowing for liability does not apply to

“[a] medical procedure performed by a physician or

other licensed health professional within the scope of

his or her practice and with the pregnant individual’s

consent or the consent of an individual who may law-

fully provide consent on her behalf or without consent

as necessitated by a medical emergency.” The court said

that it interpreted the statute as saying that the provi-

sion only applies when the act in question is necessi-

tated by a medical emergency. Defendants argued that

the medical-emergency provision relates to the notion

of consent and does not apply when a patient is inca-

pable of giving consent. Plaintiffs argued that MCL

600.2922a(2)(b) by its own terms applies to the perfor-

mance of a medical procedure, but noted that their

cause of action was based on the failure to perform a

medical procedure.

Defendants also argued that

to the extent [Johnson] is seeking damages for her own

emotional distress under a “bystander” theory for witness-

ing injury to the fetus, such a claim should be dismissed

pursuant to MCR 2.116(C)(8) because it cannot be brought

outside the wrongful death act, and because plaintiff failed

to allege the elements of such a claim.

The court noted that that argument would cause

Johnson to request to amend her complaint, and de-

fense counsel replied that that would be futile because,

as just argued, Johnson could not state a wrongful-

death claim in light of that act’s requirement of a

“death as described in section 2922a” in order to

recover for the death of a fetus.

Lastly, defendants argued that summary disposition

of Johnson’s claim for emotional damages for grief and

sorrow for her baby’s death was proper under the ruling

266 290 M

ICH

260 [Oct

in McClain v Univ of Mich Bd of Regents, 256 Mich App

492; 665 NW2d 484 (2003). Johnson argued that she

had also suffered and alleged physical injuries as well as

emotional distress. Johnson had alleged that she had an

unsuccessful emergency cerclage just before the prema-

ture birth. Her attorney told the court that the emer-

gency cerclage ripped, causing physical injury. She also

argued that McClain did not do away with actions on

behalf of a mother because MCL 600.2922a(3) states,

“This section does not prohibit a civil action under any

other applicable law.”

The trial court denied defendants’ motion for sum-

mary disposition, ruling that Johnson had alleged that

she had asked defendant doctor to perform a cerclage,

but he did not, and that could be interpreted as an

affirmative act. The court also said:

And taking all the facts in the light most favorable to the

plaintiff, I don’t believe that I can rule this, as a matter of

law, that they cannot develop a cause of action either by

amending under 2922a and filing [inaudible] that statute

through the Wrongful Death Act, or pursuing, as is now the

case, under McClain.

Defendants subsequently sought leave to appeal, which

this Court granted in an unpublished order, entered

February 26, 2009 (Docket No. 288338).

III. APPLICABLE STANDARDS OF REVIEW

This Court reviews de novo a motion for summary

disposition. Teel v Meredith, 284 Mich App 660, 662;

774 NW2d 527 (2009). This Court must review the

record in the same manner as the trial court to deter-

mine whether the movant was entitled to judgment as a

matter of law. Morales v Auto-Owners Ins Co, 458 Mich

288, 294; 582 NW2d 776 (1998). Although defendants

initially brought their motion pursuant to multiple

2010] J

OHNSON V

ASTORIZA

267

court rules, it was subsequently conceded that the

motion was pursuant solely to MCR 2.116(C)(8). A

motion for summary disposition pursuant to MCR

2.116(C)(8) tests the legal sufficiency of the complaint.

Dolan v Continental Airlines, 454 Mich 373, 380; 563

NW2d 23 (1997). The motion may not be supported

with documentary evidence, affidavits, admissions, or

depositions because pursuant to MCR 2.116(G)(5), the

trial court must only rely on the pleadings. Patterson v

Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). All

well-pleaded factual allegations are accepted as true

and construed in a light most favorable to the nonmo-

vant. Wade v Dep’t of Corrections, 439 Mich 158, 162-

163; 483 NW2d 26 (1992). However, “the mere state-

ment of a pleader’s conclusions, unsupported by

allegations of fact, will not suffice to state a cause of

action.” ETT Ambulance Serv Corp v Rockford Ambu-

lance, Inc, 204 Mich App 392, 395; 516 NW2d 498

(1994). A motion under MCR 2.116(C)(8) may be

granted only when the claims alleged “are so clearly

unenforceable as a matter of law that no factual devel-

opment could possibly justify recovery.” Wade, 439 Mich

at 163.

Additionally, this appeal requires this Court to con-

sider the meaning of MCL 600.2922 and MCL

600.2922a. The meaning of a statute is a question of law

that is reviewed de novo. Lesner v Liquid Disposal, Inc,

466 Mich 95, 99; 643 NW2d 553 (2002). As provided in

USAA Ins Co v Houston Gen Ins Co, 220 Mich App 386,

389-390; 559 NW2d 98 (1996):

The primary goal of statutory interpretation is to 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

268 290 M

ICH

260 [Oct

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. [Citations omitted.]

If judicial construction is warranted, this Court should

construe the statute according to its common meaning,

and common sense should not be abandoned. Jordan v

Jarvis, 200 Mich App 445, 451; 505 NW2d 279 (1993);

Marquis v Hartford Accident & Indemnity (After Re-

mand), 444 Mich 638, 644; 513 NW2d 799 (1994). “Terms

that are not defined in a statute must be given their plain

and ordinary meanings, and it is appropriate to consult a

dictionary definition for those meanings.” Hamed v

Wayne Co, 284 Mich App 681, 694; 775 NW2d 1 (2009).

IV. PLAINTIFFS’ CLAIM FOR THE DEATH OF BABY JOHNSON

Defendants first assert that the trial court erred by

denying their motion for summary disposition regard-

ing plaintiffs’ claim arising out of the death of plaintiff

Baby Johnson. We disagree.

Defendants argue that summary disposition should

have been granted because plaintiffs cannot state a

claim for a “death as described in” MCL 600.2922a.

MCL 600.2922(1), as amended by 2005 PA 270, cur-

rently provides:

Whenever the death of a person, injuries resulting in

death, or death as described in section 2922a shall be

caused by wrongful act, neglect, or fault of another, and the

act, neglect, or fault is such as would, if death had not

ensued, have entitled the party injured to maintain an

action and recover damages, the person who or the corpo-

ration that would have been liable, if death had not ensued,

shall be liable to an action for damages, notwithstanding

the death of the person injured or death as described in

2010] J

OHNSON V

ASTORIZA

269

section 2922a, and although the death was caused under

circumstances that constitute a felony.

At the time of the alleged negligence in this matter,

MCL 600.2922, as amended by 2000 PA 56, was slightly

different and did not include the language regarding

“death as described in section 2922a.” Therefore, before

determining whether MCL 600.2922 allows for a recov-

ery in this instance, this Court must first determine

which version of that statute applies.

It has been held that in determining whether a

statute should be applied prospectively or retroactively,

the intent of the Legislature controls. Frank W Lynch &

Co v Flex Technologies, Inc, 463 Mich 578, 583; 624

NW2d 180 (2001). Specifically, “a statute is presumed to

operate prospectively unless the Legislature either ex-

pressly or impliedly indicates an intention to give the

statute retroactive effect.” Allstate Ins Co v Faulhaber,

157 Mich App 164, 166; 403 NW2d 527 (1987). However,

as this Court has previously explained, the rule that a

statute is presumed to operate prospectively

does not apply to statutory amendments which can be

classified as remedial or procedural in nature. Further, a

statute which operates in furtherance of a remedy already

existing and which neither creates new rights nor destroys

existing rights is held to operate retroactively unless a

contrary legislative intent is manifested.

A statute is considered remedial or procedural if it is

designed to correct an existing oversight in the law or

redress an existing grievance. Those statutory amend-

ments which imply an intention to reform or extend

existing rights are generally viewed as remedial. [Id. at

166-167 (citations omitted).]

In addition, “[a]n amendment may apply retroactively

where the Legislature enacts an amendment to clarify

an existing statute and to resolve a controversy regard-

270 290 M

ICH

260 [Oct

ing its meaning.” Mtg Electronic Registration Sys, Inc v

Pickrell, 271 Mich App 119, 126; 721 NW2d 276 (2006)

(emphasis added).

In this case, it is clear that MCL 600.2922 was amended

to add the language “or death as described in section

2922a” in order to clarify both MCL 600.2922 and MCL

600.2922a and to resolve a controversy regarding their

meaning. During the discussion of the proposed 2005

amendment of MCL 600.2922 to add the language “or

death as described in section 2922a,” it was indicated

during deliberations in the House of Representatives that

MCL 600.2922a had been enacted to “amend the...

wrongful death statute...toextend...civil penalties to

conduct causing the death of an embryo or fetus.” House

Legislative Analysis, HB 4777, October 24, 2005, at 1.

The House legislative analysis went on to indicate:

It was believed at the time that [the enactment of MCL

600.2922a] closed the loophole in the wrongful death

statute and so would apply to all situations in which

conduct toward a pregnant woman resulted in the death of

the embryo or fetus she carried.

However, in subsequent civil actions, courts around the

state have apparently only looked at Section 2922 of the

wrongful death statute and not Section 2922a. Most nota-

bly, in McClain v University of Michigan Board of Regents,

256 Mich App 492 (2003), the court held that “under

Michigan law, an action for wrongful death, MCL 600.2922,

cannot be brought on behalf of a nonviable fetus, because a

nonviable fetus is not a ‘person’ within the meaning of the

wrongful-death act.”

Once again, it has become clear that legislation is

needed to clarify the legislature’s intent of providing a

“[L]egislative bill analyses are not official statements of legislative

intent” but nonetheless “may be of probative value.” Seaton v Wayne Co

Prosecutor (On Second Remand), 233 Mich App 313, 321 n 3; 590 NW2d

598 (1998) (citing cases).

2010] J

OHNSON V

ASTORIZA

271

cause of action for the wrongful death of not only a person,

but also an embryo or fetus. [Id. at 1-2.]

On the basis of the foregoing, we conclude that the 2005

amendment of MCL 600.2922, which added the lan-

guage “or death as described in section 2922a,” was

enacted in order to clarify MCL 600.2922 and MCL

600.2922a and to resolve a controversy regarding their

meaning. Therefore, MCL 600.2922, as amended by

2005 PA 270, which was immediately effective on De-

cember 19, 2005, may be applied retroactively from

April 1, 2000, the effective date of the last prior amend-

ment of MCL 600.2922 before its amendment in 2005.

Mtg Electronic Registration Sys, 271 Mich App at 126.

Having determined that MCL 600.2922, as amended

by 2005 PA 270, retroactively applies, we must next

determine whether defendants’ conduct was actionable

considering the language of MCL 600.2922a. As noted,

MCL 600.2922a provides for liability against “[a] per-

son who commits a wrongful or negligent act against a

pregnant individual...iftheactresults in a...still-

birth....”Citing that language, defendants argue that

plaintiffs are only entitled to relief if they can establish

that the injury in question was caused by “a wrongful or

negligent act,” as opposed to an omission. We disagree

with defendants’ interpretation of the applicable statu-

tory scheme. Pursuant to MCL 600.2922, a party need

not establish that the injury was caused by an act.

Rather, MCL 600.2922 specifically provides that liabil-

ity is possible when the injury is “caused by wrongful

act, neglect, or fault of anothe r....” While MCL

600.2922 refers to a “death as described in [MCL

600.2922a],” it does not indicate that the death in

question must occur in the manner described in MCL

600.2922a. Plaintiffs are alleging that defendants

caused their injuries when they neglected to perform

272 290 M

ICH

260 [Oct

the requested procedure in a timely manner. That

allegation, when accepted as true, sufficiently estab-

lished a cause of action pursuant to MCL 600.2922.

We note that even if we were to agree with defen-

dants’ interpretation and conclude that plaintiffs were

required to establish that an affirmative act caused the

injuries, defendants would still not be entitled to relief.

It is improper in this instance to classify defendants’

alleged conduct as an omission. The pleadings on which

this motion must be considered note that Johnson

specifically requested the performance of a cerclage and

defendants consciously chose to deny the request. Their

conduct in denying the requested care is tantamount to

an affirmative act.

In addition to arguing that a cause of action was not

permitted because there was no act that led to plain-

tiffs’ injuries, defendants also assert that plaintiffs’

cause of action is barred by MCL 600.2922a(2)(b) and

that the trial court misinterpreted that statutory pro-

vision. While we agree that the trial court’s interpreta-

tion of MCL 600.2922a(2)(b) was inaccurate, we further

conclude that a correct interpretation of that provision

does not lead to the conclusion that plaintiffs’ action

was barred. This Court can affirm a trial court’s deci-

sion when the trial court reached the correct decision

albeit for the wrong reason. Lane v KinderCare Learn-

ing Ctrs, Inc, 231 Mich App 689, 697; 588 NW2d 715

(1998).

MCL 600.2922a(2)(b) provides that a person is not

liable for damages for the death of an embryo or fetus if

the death is the result of “[a] medical procedure per-

formed by a physician or other licensed health profes-

sional within the scope of his or her practice and with

the pregnant individual’s consent or the consent of an

individual who may lawfully provide consent on her

2010] J

OHNSON V

ASTORIZA

273

behalf or without consent as necessitated by a medical

emergency.” The trial court indicated that it inter-

preted the medical-procedure exception as applying

only when the medical procedure was necessitated by a

medical emergency. We disagree. MCL 600.2922a(2)(b)

provides three exceptions enumerating when a person

is not liable for damages for the death of an embryo or

fetus: (1) if the death is the result of “[a] medical

procedure performed by a physician or other licensed

health professional within the scope of his or her

practice and with the pregnant individual’s consent,”

(2) if the death is the result of “[a] medical procedure

performed by a physician or other licensed health

professional within the scope of his or her practice and

with the” consent of an individual who may lawfully

provide consent on the pregnant individual’s behalf, or

(3) if the death is the result of “[a] medical procedure

performed by a physician or other licensed health

professional within the scope of his or her practice” and

without consent “as necessitated by a medical emer-

gency.” Thus, the phrase “as necessitated by a medical

emergency” is meant to describe only situations in

which consent need not be obtained because of the

surrounding circumstances. Therefore, because consent

is not at issue in the present case, it is irrelevant

whether a medical emergency occurred.

MCL 600.2922a(2)(b) clearly provides that there is

an exception to MCL 600.2922a if the death of the fetus

is the result of the performance of a medical procedure.

However, in this case, there was no medical procedure

performed. Rather, the claim was based on defendants’

failure or refusal to perform an explicitly requested

medical procedure. Consequently, we find that MCL

600.2922a(2)(b) is inapplicable to the factual allegations

in this case.

274 290 M

ICH

260 [Oct

V. DAMAGES FOR EMOTIONAL DISTRESS

Defendants next argue that Johnson cannot recover

for emotional distress damages because the wrongful-

death act only allows for claims brought by a personal

representative of the estate of the deceased and does not

allow recovery for individual claims. We disagree.

MCL 600.2922 provides, in part:

(2) Every action under this section shall be brought by,

and in the name of, the personal representative of the

estate of the deceased. Within 30 days after the commence-

ment of an action, the personal representative shall serve a

copy of the complaint and notice as prescribed in subsec-

tion (4) upon the person or persons who may be entitled to

damages under subsection (3) in the manner and method

provided in the rules applicable to probate court proceed-

ings.

(3) . . . [T]he person or persons who may be entitled to

damages under this section shall be limited to any of the

following who suffer damages and survive the deceased:

(a) The deceased’s spouse, children, descendants, par-

ents, grandparents, brothers and sisters, and, if none of

these persons survive the deceased, then those persons to

whom the estate of the deceased would pass under the laws

of intestate succession determined as of the date of death of

the deceased.

(b) The children of the deceased’s spouse.

deceased, except those whose relationship with the dece-

dent violated Michigan law, including beneficiaries of a

trust under the will, those persons who are designated in

the will as persons who may be entitled to damages under

this section, and the beneficiaries of a living trust of the

deceased if there is a devise to that trust in the will of the

deceased.

***

2010] J

OHNSON V

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275

(6) In every action under this section, the court or jury

may award damages as the court or jury shall consider fair

and equitable, under all the circumstances including rea-

sonable medical, hospital, funeral, and burial expenses for

which the estate is liable; reasonable compensation for the

pain and suffering, while conscious, undergone by the

deceased during the period intervening between the time of

the injury and death; and damages for the loss of financial

support and the loss of the society and companionship of

the deceased....

***

(d) After a hearing by the court, the court shall order

payment from the proceeds of the reasonable medical,

hospital, funeral, and burial expenses of the decedent for

which the estate is liable. The proceeds shall not be applied

to the payment of any other charges against the estate of

the decedent. The court shall then enter an order distrib-

uting the proceeds to those persons designated in subsec-

tion (3) who suffered damages and to the estate of the

deceased for compensation for conscious pain and suffer-

ing, if any, in the amount as the court or jury considers fair

and equitable considering the relative damages sustained

by each of the persons and the estate of the deceased. If

there is a special verdict by a jury in the wrongful death

action, damages shall be distributed as provided in the

special verdict.

***

(7) A person who may be entitled to damages under this

section must present a claim for damages to the personal

representative on or before the date set for hearing on the

motion for distribution of the proceeds under subsection

(6). The failure to present a claim for damages within the

time provided shall bar the person from making a claim to

any of the proceeds.

Thus, pursuant to MCL 600.2922(2), an action under

the wrongful-death act must be brought in the name of

276 290 M

ICH

260 [Oct

the personal representative of the estate of the de-

ceased. In addition, although the claim is brought in the

name of the personal representative, the persons who

may be entitled to damages must submit a claim for

those damages to the personal representative. MCL

600.2922(7). The trial court or the jury then awards the

amount of damages that it believes is fair and equitable

considering the amount of damages sustained by each

person and the estate of the deceased. MCL

600.2922(6)(d). Consequently, pursuant to the plain

language of the statute, an individual cannot maintain

an action in his or her name under the wrongful-death

act. MCL 600.2922(2); USAA Ins Co, 220 Mich App at

389-390. However, although plaintiffs did not properly

bring their claim in the name of the personal represen-

tative, but only in the names of Johnson and her baby

who died following its premature birth on November 1,

2005, the trial court clearly stated in its order denying

defendants’ motion for summary disposition that

“plaintiffs must appoint a personal representative for

the estate of baby Johnson and amend the complaint to

bring such a claim through the wrongful death act.”

Plaintiffs were properly granted leave to amend their

complaint. MCR 2.116(I)(5) provides that when sum-

mary disposition is sought “based on subrule (C)(8), (9),

or (10), the court shall give the parties an opportunity

to amend their pleadings as provided by MCR 2.118,

unless the evidence then before the court shows that

amendment would not be justified.” The deficiency in

plaintiffs’ complaint can be corrected through amend-

ment. Therefore, summary disposition would have been

improper.

Finally, defendants also argue that the wrongful-

death act is the exclusive remedy in this case because

McClain was superseded by the 2005 amendment of

MCL 600.2922 when that amendment eliminated any

2010] J

OHNSON V

ASTORIZA

277

individual claim of a mother outside the wrongful-death

act. In the alternative, defendants argue that if Mc-

Clain remains valid, this Court should overrule that

decision because it was wrongly decided. We conclude

that the holding in McClain is still valid, and we refrain

from holding that it was wrongly decided.

In McClain, 256 Mich App at 496, the plaintiff filed a

medical-malpractice action relating to the death of her

fetus. The Court indicated that the wrongful-death act,

specifically MCL 600.2922, did not apply to the case

because MCL 600.2922 dealt with a person and not a

nonviable fetus. Id. at 495-496. Thus, the Court specifi-

cally indicated that the parent in that case could not

recover damages for the loss of society and companion-

ship. Id. The Court, however, indicated that a “plain-

tiff’s cause of action for damages in her own right as a

result of her miscarriage is well grounded in Michigan

law” and, thus, that the plaintiff could recover damages

that are recoverable in a tort action. Id. at 496. The

Court went on to conclude that the plaintiff could

recover damages for emotional distress, mental an-

guish, and grief and sorrow. Id. at 500-503. Further,

other damages would be available to a plaintiff who

could prove them, such as damages for physical pain

and suffering, fright, shock, denial of social pleasure

and enjoyment, embarrassment, humiliation, or other

appropriate damages. Id. at 498-499.

Defendants’ contention that McClain was super-

seded by the 2005 amendment of MCL 600.2922 is

without merit. The only language that was added to

MCL 600.2922 as a result of the 2005 amendment was

the language “or death as described in section 2922a.”

That language appears to have only been added to

clarify that a wrongful-death action can be brought not

only for the death of a person, pursuant to MCL

278 290 M

ICH

260 [Oct

600.2922, but also for the death of an embryo or fetus,

pursuant to MCL 600.2922a. There is no indication in

the statute or in the legislative history of the enactment

of the 2005 amendment of MCL 600.2922 that the

Legislature intended to supersede the general proposi-

tion that a plaintiff can bring a cause of action for

damages in the plaintiff’s own right as a result of a

miscarriage in order to recover tort damages. Absent

any evidence of the Legislature’s intent to eliminate a

plaintiff’s ability to bring such a cause of action, it

would be improper for this Court to conclude that

McClain is no longer good law regarding that point.

Furthermore, we are not persuaded by defendants’

assertions that McClain was incorrectly decided. As a

result, defendants are not entitled to relief.

VI. CONCLUSION

When viewing the evidence in the light most favor-

able to plaintiffs, we conclude that the trial court

properly denied defendants’ motion for summary dispo-

sition regarding each count of plaintiffs’ complaint and

properly granted plaintiffs an opportunity to amend

that complaint to comply with the statutory require-

ments.

Affirmed.

AVIS

,P.J., did not participate.

2010] J

OHNSON V

ASTORIZA

279

PEOPLE v DINARDO

Docket No. 294194. Submitted October 6, 2010, at Detroit. Decided

October 12, 2010, at 9:10 a.m.

John T. Dinardo was charged in the 37th District Court with

operating a motor vehicle while intoxicated, third offense, MCL

257.625(1) and (9)(c). At his preliminary examination, defen-

dant moved to suppress the results of the breath test adminis-

tered by Officer Michael Lake using a DataMaster machine

after defendant’s arrest. Although the DataMaster machine had

generated a printed “ticket” for the tests, the ticket was not

available by the time of the preliminary examination. Lake had

recorded the DataMaster results on a DI-177 breath-test report,

which was available. The court, Jennifer M. Faunce, J., granted

defendant’s motion to suppress but bound him over to the

Macomb Circuit Court for trial as charged. Defendant again

moved to suppress the DataMaster test results, and the circuit

court, Edward A. Servitto, Jr., J., held a hearing at which

defendant argued that the lack of the DataMaster ticket ren-

dered other evidence regarding the test results inadmissible

hearsay and denied him his constitutional right to confront the

witnesses against him. The prosecution argued that the Data-

Master machine was not a declarant, so Lake’s testimony

repeating the recorded test results would not be hearsay and

also argued that because Lake had read the original test results

and recorded them on the DI-177 report at the time, he had

personal knowledge of the results and should be able to present

them as testimony. The circuit court concluded that the report

was hearsay and could not be admitted. The circuit court

further held that although Lake could testify if he had an

independent recollection of the breath-test results, the report

could not be used to refresh Lake’s memory. The circuit court

subsequently denied the prosecution’s motion for reconsidera-

tion, concluding that the test itself was testimonial in nature

and that the test results therefore implicated defendant’s

constitutional right to confront the witnesses against him. The

prosecution appealed.

The Court of Appeals held:

280 290 M

ICH

280 [Oct

1. The circuit court erred by concluding that the DataMaster

ticket was testimonial in nature. The Confrontation Clause of the

Sixth Amendment guarantees that a person facing criminal pros-

ecution has the right to be confronted with the witnesses against

him or her, and § 20 of article 1 of the Michigan Constitution

provides the same protection. Testimonial statements of witnesses

absent from trial are admissible only when the original declarant

is unavailable and the defendant has had a prior opportunity to

cross-examine that declarant. Statements are testimonial if the

primary purpose of the statements or the questioning that elicited

them was to establish or prove past events potentially relevant to

later criminal prosecution.

2. Laboratory reports prepared by nontestifying analysts are

testimonial hearsay. Data that are automatically generated by a

machine and presented without human input, analysis, or inter-

pretation are not testimonial because the machine is not a witness

in any constitutional sense. The DataMaster ticket was generated

by the machine without human input and no expert interpretation

was required for the test results to be understood. The Confron-

tation Clause did not restrict the admissibility of the DataMaster

results.

3. The DataMaster test results were not hearsay under Michi-

gan law. Under MRE 801(c), hearsay is 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.

Although a printout of information entered into a machine by a

person is hearsay, a printout of machine-generated information

does not constitute hearsay because a machine is not a person and

therefore, under MRE 801(6), is not a declarant capable of making

a statement.

4. The DI-177 report, while hearsay, was admissible as a

recorded recollection. A hearsay document may be admitted under

MRE 803(5) if the document pertains to matters about which the

declarant once had knowledge, the declarant now has an insuffi-

cient recollection about those matters, and the document is shown

to have been made by the declarant or, if made by one other than

the declarant, to have been examined by the declarant and shown

to accurately reflect the declarant’s knowledge when the matters

were fresh in his or her memory. The DI-177 report satisfied the

criteria because Lake saw the DataMaster ticket and therefore had

personal knowledge of the information at the time he recorded it

onto the DI-177 report, he indicated that he no longer had any

independent recollection of the specific results printed on the

DataMaster ticket, and he personally prepared the DI-177 report.

2010] P

EOPLE V

INARDO

281

Lake should be permitted to read the contents of the report into

evidence at trial and testify regarding the test results.

Reversed and remanded to the circuit court.

1. C

ONSTITUTIONAL

AW —

VIDENCE —

IGHT OF

ONFRONTATION —

ESTIMONIAL

TATEMENTS —

ACHINE

-G

ENERATED

EST

ESULTS

Testimonial statements of witnesses absent from trial are admissible

only when the original declarant is unavailable and the defendant

has had a prior opportunity to cross-examine that declarant;

statements are testimonial if the primary purpose of the state-

ments or the questions that elicited them was to establish or prove

past events potentially relevant to later criminal prosecution;

although laboratory reports prepared by nontestifying analysts are

testimonial hearsay, data that are automatically generated by a

machine and presented without human input, analysis, or inter-

pretation are not testimonial because the machine is not a witness

in any constitutional sense. (US Const, Am VI; Const 1963, art 1,

§ 20).

2. E

VIDENCE —

EARSAY —

ECLARANT —

ACHINE

-G

ENERATED

EST

ESULTS

Hearsay is a statement other than one made by the declarant while

testifying at the trial or hearing offered in evidence to prove the

truth of the matter asserted; a printout of machine-generated

information does not constitute hearsay because a machine is not

a person and therefore not a declarant capable of making a

statement (MRE 801[b], [c]).

3. E

VIDENCE —

EARSAY —

ECORDED

ECOLLECTION

XCEPTION

A hearsay document may be admitted if the document pertains to

matters about which the declarant once had knowledge, the

declarant now has an insufficient recollection about those matters,

and the document is shown to have been made by the declarant or,

if made by one other than the declarant, to have been examined by

the declarant and shown to accurately reflect the declarant’s

knowledge when the matters were fresh in his or her memory

(MRE 803[5]).

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

Solicitor General, Eric J. Smith, Prosecuting Attorney,

Robert Berlin, Chief Appellate Lawyer, and Mary Jo

Diegel, Assistant Prosecuting Attorney, for the people.

John T. Dinardo in propria persona.

282 290 M

ICH

280 [Oct

Before: F

ORT

OOD

,P.J., and J

ANSEN

and W

HITBECK

JJ.

ANSEN

, J. The prosecution appeals by leave granted

the circuit court’s order suppressing evidence of certain

DataMaster breath-test results. For the reasons set

forth in this opinion, we reverse the circuit court’s

order and remand for further proceedings consistent

with this opinion.

In November 2008, defendant was arrested on suspi-

cion of drunk driving and taken to the Warren Police

Department for alcohol testing using a DataMaster

machine. Warren Police Officer Michael Lake adminis-

tered the DataMaster test. Lake testified that he moni-

tored defendant for at least 15 minutes before admin-

istering the test, then took two breath samples two

minutes apart in accordance with standard procedures.

Lake wrote the test results on a DI-177 breath-test

report. According to Lake’s DI-177 report, the Data-

Master machine indicated that both samples registered

alcohol levels of 0.20 percent.

At the preliminary examination, Lake testified that

he had administered the DataMaster tests and had

written down the results on his DI-177 report. However,

he testified that he did not have a copy of the original

DataMaster “ticket,”

which had been printed directly

from the machine at the time of the tests. Defendant

had been given a copy of the DataMaster ticket, but the

original ticket could not be found and no copies were

A DataMaster ticket apparently states the blood alcohol percentage

for each sample, the time when the testing procedure began (including

the observation period before the test), and the exact time when each

sample was taken and analyzed.

2010] P

EOPLE V

INARDO

283

available by the time of the preliminary examination.

Officer Lake admitted that he could not independently

recollect the specific results of defendant’s breath tests,

but recalled that he had written them down at the time

on the DI-177 report, which was available.

Defendant moved to suppress the breath-test results

at the preliminary examination. The district court

granted defendant’s motion to suppress but nonethe-

less bound defendant over to the circuit court for trial

on a charge of operating a motor vehicle while intoxi-

cated, third offense. MCL 257.625(1) and (9)(c).

Following bindover, defendant moved the circuit court

to suppress the DataMaster test results and sought an

evidentiary hearing on the issue. Defendant argued that

the lack of the DataMaster ticket rendered other evidence

regarding the test results inadmissible hearsay and denied

him his constitutional right to confront the witnesses

against him. Because the relevant facts did not appear to

be in dispute, the circuit court dispensed with an eviden-

tiary hearing. The prosecution argued that the district

court had erred by ruling the test results inadmissible.

The prosecution argued that the DataMaster machine

was not a declarant, so the officer’s testimony repeating

the recorded test results would not be hearsay. The

prosecution also argued that because Officer Lake had

read the original test results and recorded them directly

onto the DI-177 report at the time, he had personal

knowledge of the results and should be able to present

them in his testimony.

The circuit court concluded that the DI-177 report

was hearsay and could not be admitted into evidence.

The court noted that if Officer Lake had an indepen-

dent recollection of the breath-test results, he might be

able to testify regarding the numbers he had read from

the DataMaster ticket. However, the court stated that if

284 290 M

ICH

280 [Oct

Lake lacked any independent recollection of the results

and could not produce the DataMaster ticket, he would

have no basis for testifying about the breath-test re-

sults. The court also ruled that if Lake could not

specifically remember the contents of the DataMaster

ticket, he could not testify regarding what he may have

written on the DI-177 report. The prosecution argued

that Lake should be able to use the DI-177 report to

refresh his memory, even if the DI-177 report was itself

inadmissible. The circuit court disagreed, noting that

use of the DI-177 report would not effectively “refresh”

Lake’s memory of the DataMaster results, but instead

just show him what numbers he had written down.

The prosecution next argued that even without the

test results, Lake should be able to testify that defen-

dant’s blood alcohol level exceeded the legal limit,

which resulted in defendant being booked and charged.

The prosecution further argued that defendant was not

prejudiced by the lack of the DataMaster ticket because

defendant had been given a copy of the DataMaster

machine’s printout. Defense counsel countered that

defendant did not have a copy of the DataMaster ticket.

The court agreed that Officer Lake could testify that

defendant was arrested following the DataMaster test

results. However, the court noted that because the

DataMaster ticket would have shown when the ma-

chine was last purged, the duration of the required

observation period before testing, and the times that

the specific breath samples were taken, the DataMaster

ticket would have helped to establish the reliability of

the breath tests. The court reasoned that, without this

information, the reliability of the test results would be

suspect, and the defense would be denied the opportu-

nity to question the reliability of the results. The

prosecution argued that whether the proper protocol

was followed prior to defendant’s breath tests went to

2010] P

EOPLE V

INARDO

285

the weight of the evidence rather than its admissibility

and noted that defense counsel would be permitted to

cross-examine Officer Lake regarding the procedures

followed and the lack of supporting documentation. The

court disagreed with the prosecution, stating that be-

cause the entire testing process had been documented

on the DataMaster ticket, the ticket was the foundation

for determining defendant’s blood alcohol level and

whether the proper procedures were followed. The

court stated that without the ticket, the test results

could not be admitted.

The circuit court entered an order granting defen-

dant’s motion to exclude the DataMaster test results.

The order provided in relevant part that the prosecu-

tion would be “precluded from arguing at trial that

defendant’s [blood alcohol content] was .08 or in excess

of .08,” that the prosecution “can only argue [at trial]

that defendant was operating under the influence of

alcoholic liquor under MCL 257.625,” and that the

prosecution would be permitted to “present testimony

that defendant was charged and arrested after the

Datamaster results showed .08 or more based upon the

independent recollection of the police officer only to

show why defendant was arrested and charged.”

The prosecution moved for reconsideration, to ad-

journ trial, and to stay the proceedings pending an

interlocutory appeal. The prosecution also apparently

filed a motion to reverse the district court’s order

suppressing evidence of the DataMaster test results.

The circuit court addressed these motions, explaining

that it had never considered or reviewed the district

court’s decision, but had instead addressed the admis-

sibility of the DataMaster test results de novo on the

facts presented by the parties. Citing Melendez-Diaz v

Massachusetts, 557 US 305; 129 S Ct 2527; 174 L Ed 2d

286 290 M

ICH

280 [Oct

314 (2009), Crawford v Washington, 541 US 36; 124 S

Ct 1354; 158 L Ed 2d 177 (2004), and People v Bryant,

483 Mich 132; 768 NW2d 65 (2009), the circuit court

concluded that “[t]here’s no question that the test itself

was testimonial in nature” and that the test results

therefore implicated defendant’s constitutional right to

confront the witnesses against him. The circuit court

denied the prosecution’s motions for reconsideration

and to stay the proceedings pending appeal, but granted

the motion to adjourn trial.

The prosecution sought leave to appeal in this Court,

arguing that the circuit court had erred by suppressing

evidence of the DataMaster test results. This Court

granted the prosecution’s application for leave to appeal

and stayed all proceedings in the circuit court.

In general, we review for an abuse of discretion a

circuit court’s decision concerning the admission of

evidence. People v Lukity, 460 Mich 484, 488; 596 NW2d

607 (1999). However, we review de novo the circuit

court’s ultimate decision on a motion to suppress evi-

dence, as well as all preliminary questions of law. Id.;

People v Akins, 259 Mich App 545, 563; 675 NW2d 863

(2003). Similarly, whether the admission of evidence

would violate a defendant’s constitutional right of con-

frontation is a question of law that we review de novo.

Bryant, 483 Mich at 138.

III

We conclude that the DataMaster ticket at issue in

this case was neither testimonial in the constitutional

People v Dinardo, unpublished order of the Court of Appeals, entered

November 2, 2009 (Docket No. 294194).

2010] P

EOPLE V

INARDO

287

sense nor hearsay under Michigan law. We further

conclude that the DI-177 report constituted a re-

corded recollection under MRE 803(5). Accordingly,

the circuit court erred by suppressing evidence of the

DataMaster breath-test results, by ruling that Officer

Lake’s testimony concerning the DataMaster results

would violate defendant’s constitutional right to con-

front the witnesses against him, and by precluding

Lake from reading the contents of the DI-177 report

into evidence.

The Confrontation Clause of the United States

Constitution provides that “[i]n all criminal prosecu-

tions, the accused shall enjoy the right...to be

confronted with the witnesses against him.” US

Const, Am VI. This “bedrock procedural guarantee

applies to both federal and state prosecutions.” Craw-

ford, 541 US at 42. The Michigan Constitution pro-

vides the same guarantee for criminal defendants.

Const 1963, art 1, § 20; see also People v Bean, 457

Mich 677, 682; 580 NW2d 390 (1998). Testimonial

statements of witnesses absent from trial are there-

fore admissible only when the original declarant is

unavailable and the defendant has had a prior oppor-

tunity to cross-examine that declarant. Crawford, 541

US at 59; Bryant, 483 Mich at 138. Ordinarily,

whether a statement is testimonial in nature depends

on whether it constitutes a “ ‘declaration or affirma-

tion made for the purpose of establishing or proving

some fact.’ ” Crawford, 541 US at 51 (citation omit-

ted). More particularly, we have explained that

“[s]tatements are testimonial where the ‘primary

purpose’ of the statements or the questioning that

elicits them ‘is to establish or prove past events

potentially relevant to later criminal prosecution.’ ”

People v L ewis (On Remand), 287 Mich App 356, 360;

288 290 M

ICH

280 [Oct

788 NW2d 461 (2010), quoting Davis v Washington,

547 US 813, 822; 126 S Ct 2266; 165 L Ed 2d 224

(2006).

In Melendez-Diaz, 557 US at ___; 129 S Ct at 2531-

2532, the United States Supreme Court held that

“certificates of analysis” showing the results of chemi-

cal testing of seized narcotics constituted “testimonial

statements” under Crawford. The certificates at issue

in Melendez-Diaz were sworn statements by laboratory

analysts that reported the results of analyses performed

on the seized drug samples. The Melendez-Diaz Court

explained:

The documents at issue here, while denominated by

Massachusetts law “certificates,” are quite plainly affida-

vits: “declaration[s] of facts written down and sworn to by

the declarant before an officer authorized to administer

oaths.” They are incontrovertibly a “ ‘solemn declaration

or affirmation made for the purpose of establishing or

proving some fact.’ ” The fact in question is that the

substance found in the possession of Melendez-Diaz and his

codefendants was, as the prosecution claimed, cocaine—the

precise testimony the analysts would be expected to pro-

vide if called at trial. The “certificates” are functionally

identical to live, in-court testimony, doing “precisely what a

witness does on direct examination.” [Id. at ___; 129 S Ct at

2532 (citations omitted).]

Similarly, this Court has held that laboratory reports

prepared by nontestifying analysts are “testimonial

hearsay” within the meaning of Crawford. See, e.g.,

People v Payne, 285 Mich App 181, 198; 774 NW2d 714

(2009); People v Lonsby, 268 Mich App 375, 392-393;

707 NW2d 610 (2005). Such reports constitute testimo-

nial hearsay that may not be admitted in evidence

unless (1) it is shown that the analyst who prepared the

report is unavailable to testify at trial and (2) the

defendant has had a prior opportunity to cross-examine

2010] P

EOPLE V

INARDO

289

the analyst. Payne, 285 Mich App at 198-199; see also

Melendez-Diaz, 557 US at ___; 129 S Ct at 2532.

We cannot conclude that the original DataMaster

ticket, showing the breath-test procedures and defen-

dant’s specific blood alcohol level, amounted to testimo-

nial hearsay within the meaning of Crawford.Asex-

plained previously, the Confrontation Clause

guarantees a criminal defendant the right “to be con-

fronted with the witnesses against him.” US Const, Am

VI (emphasis added). The documents at issue in

Melendez-Diaz, Payne, and Lonsby constituted testimo-

nial hearsay precisely because they were all prepared by

human analysts who recorded the results of various

laboratory tests and set down their own conclusions in

written form. Such human analysts are unquestionably

“witnesses” within the meaning of the Sixth Amend-

ment. In contrast, the DataMaster ticket at issue in this

case was generated entirely by a machine without the

input of any human analyst. No human analyst entered

data into the DataMaster machine or recorded findings

or conclusions on the DataMaster printout. Nor was

any expert interpretation required for the DataMaster

test results to be understood. Indeed, similar to the

fingerprint cards at issue in People v Jambor (On

Remand), 273 Mich App 477, 488; 729 NW2d 569

(2007), the DataMaster ticket “contained no subjective

statements” and did not detail the results of any work

performed by a nontestifying analyst. Instead, defen-

dant simply blew into the DataMaster machine, where-

upon the machine automatically analyzed his breath

and reported the results of its analysis in the form of a

printed ticket. The machine was the sole source of the

test results, which spoke entirely for themselves. We

agree with courts from other jurisdictions that have

held that a machine is not a witness in the constitu-

tional sense and that data automatically generated by a

290 290 M

ICH

280 [Oct

machine are accordingly nontestimonial in nature. See,

e.g., Wimbish v Commonwealth, 51 Va App 474, 483-

484; 658 SE2d 715 (2008); United States v Moon, 512

F3d 359, 362 (CA 7, 2008); United States v Washington,

498 F3d 225, 230 (CA 4, 2007); Caldwell v State, 230 Ga

App 46, 47; 495 SE2d 308 (1997). As the Virginia Court

of Appeals has aptly explained, “information generated

by a machine, and presented without human analysis or

interpretation is not testimonial because the machine is

not a witness in any constitutional sense and thus the

data standing alone is not a testimonial statement

under the Confrontation Clause of the Sixth Amend-

ment.” Wimbish, 51 Va App at 484 n 2. Because the

DataMaster breath-test results, printed on the Data-

Master ticket, were self-explanatory data produced en-

tirely by a machine and not the out-of-court statements

of a witness, the Confrontation Clause did not place any

restrictions on their admissibility. See id. at 484.

We also conclude that the DataMaster test results did

not constitute hearsay under Michigan law. “Hearsay”

is defined 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,” MRE 801(c), and “declarant” is defined as “a

person who makes a statement,” MRE 801(b) (emphasis

added). A printout of machine-generated information,

as opposed to a printout of information entered into a

machine by a person, does not constitute hearsay be-

cause a machine is not a person and therefore not a

declarant capable of making a statement. See, e.g., State

v Reynolds, 746 NW2d 837, 843 (Iowa, 2008); United

States v Hamilton, 413 F3d 1138, 1142 (CA 10, 2005);

United States v Khorozian, 333 F3d 498, 506 (CA 3,

2003); State v Weber, 172 Or App 704, 709; 19 P3d 378

(2001); State v Van Sickle, 120 Idaho 99, 102; 813 P2d

910 (1991). Indeed, as one well-known Michigan trea-

2010] P

EOPLE V

INARDO

291

tise explains, “[w]hen ...a ‘fact’ is ‘asserted’ by a

non-human entity, such as a clock ‘telling the time’ or a

tracking dog following a scent, the ‘statement’ is not

hearsay because the ‘declarant’ is not a ‘person.’ ”

Robinson, Longhofer & Ankers, Michigan Court Rules

Practice: Evidence (2d ed), § 801.3, pp 7-8. The Data-

Master machine at issue in the present case is not a

declarant because it is not a person, but a tool for

analysis that self-generates test results and prints those

results on a paper ticket. Since the DataMaster ma-

chine is not a declarant capable of making a statement,

the results that it generates are not hearsay.

Lastly, although the DI-177 report unquestionably

constituted hearsay under Michigan law, we conclude

that admission of the DI-177 report would not violate

defendant’s constitutional right of confrontation and

that Officer Lake should be entitled to read the con-

tents of the DI-177 report into evidence pursuant to

MRE 803(5). As noted previously, Officer Lake filled out

the DI-177 report at the time of the DataMaster testing,

contemporaneously recording defendant’s breath-test

results on the DI-177 report as those results were

automatically generated by the DataMaster machine.

While Lake’s written documentation of defendant’s

breath-test results on the DI-177 report constituted

testimonial hearsay, Lake is available to testify and to

be cross-examined at trial regarding the contents of the

report. Because Lake is available to testify and to be

cross-examined concerning his out-of-court assertions

on the DI-177 report, his testimony regarding the

contents of the DI-177 report will not violate defen-

dant’s constitutional right to confront the witnesses

against him. See Crawford, 541 US at 59.

Nor should the contents of the DI-177 report be

excluded from evidence as inadmissible hearsay. It is

292 290 M

ICH

280 [Oct

true that Officer Lake has no independent recollection

of the specific numbers that were printed on the Data-

Master ticket. However, Lake recorded defendant’s

blood alcohol levels on the DI-177 report at the same

time as he read the results from the DataMaster ticket.

Accordingly, we conclude that the DI-177 report quali-

fies as a recorded recollection under MRE 803(5), which

excludes from the hearsay rule

[a] memorandum or record concerning a matter about

which a witness once had knowledge but now has insuffi-

cient recollection to enable the witness to testify fully and

accurately, shown to have been made or adopted by the

witness when the matter was fresh in the witness’ memory

and to reflect that knowledge correctly.

As this Court has explained, hearsay documents may

be admitted as recorded recollections under MRE

803(5) if they meet three requirements:

“(1) The document must pertain to matters about which

the declarant once had knowledge; (2) [t]he declarant must

now have an insufficient recollection as to such matters;

[and] (3) [t]he document must be shown to have been made

by the declarant or, if made by one other than the

declarant, to have been examined by the declarant and

shown to accurately reflect the declarant’s knowledge

when the matters were fresh in his memory.” [People v

Daniels, 192 Mich App 658, 667-668; 482 NW2d 176 (1992)

(citation omitted).]

In this case, the DI-177 report plainly satisfies all three

requirements for admissibility. Officer Lake saw the

DataMaster ticket and therefore had personal knowl-

edge of the breath-test results at the time he recorded

them onto the DI-177 report. Furthermore, Lake has

indicated that he no longer has any independent recol-

lection of the specific results printed on the DataMaster

ticket. Lastly, it is undisputed that Lake personally

prepared the DI-177 report. Because the DI-177 report

2010] P

EOPLE V

INARDO

293

meets all requirements for admissibility under MRE

803(5), Daniels, 192 Mich App at 667-668, Officer Lake

will be permitted to read its contents into evidence at

trial.

In sum, while the DataMaster ticket showed facts

relevant to the ultimate issue of defendant’s guilt, the

ticket was neither a testimonial statement nor hearsay

because it was not the statement of a witness or a

declarant. Instead, the DataMaster ticket was gener-

ated by a machine, following an entirely automated

process that did not rely on any human input, data

entry, or interpretation. Because the DataMaster ticket

was not a testimonial hearsay statement, Officer Lake

will be permitted to testify regarding the breath-test

results. Moreover, because the contemporaneously pre-

pared DI-177 report constitutes a recorded recollection

pursuant to MRE 803(5), Lake will be permitted to read

its contents into evidence at trial.

Reversed and remanded to the circuit court for

further proceedings consistent with this opinion. We do

not retain jurisdiction.

Although the contents of the DI-177 report may be admitted and read

into evidence at trial, we note that the report “may not itself be received

as an exhibit unless offered by an adverse party.” MRE 803(5).

294 290 M

ICH

280 [Oct

PEOPLE v BOUCHA

Docket No. 289197. Submitted May 4, 2010, at Lansing. Decided August

31, 2010. Approved for publication October 12, 2010, at 9:15 a.m.

Barry D. Boucha was found responsible in the 83rd District Court,

Daniel L. Sutton, J., for exceeding statutory axle-weight require-

ments while driving his tractor-trailer, a civil infraction, MCL

257.722 and 257.724. He testified that he had raised three of the

axles of his trailer for approximately two miles while driving a

series of curves that would have been impossible to negotiate

safely with the axles down and did not lower the axles for the

straight sections between the curves because of the time it took to

restore air to the axle system and the brakes. A police officer

followed him through the curves and stopped him after the last

one. The officer weighed the truck, but although the axles were

down when he stopped the vehicle, the officer weighed the vehicle

with the axles in the positions they were in during the curves. Five

of the six axles were overweight, and the officer issued defendant

a citation. Defendant appealed in the Roscommon Circuit Court.

The court, Michael J. Baumgartner, J., affirmed, and defendant

appealed by leave granted.

The Court of Appeals held:

MCL 257.724a(1) permits lift axles to be raised when the

vehicle is negotiating a turn. Defendant submitted evidence of the

curves in the roadway, and the curves permitted him to raise the

axles while he negotiated them, that is, defendant had to turn the

vehicle in order to negotiate the changes in the roadway. There was

no evidence contradicting defendant’s assertions that it was nec-

essary to raise his axles. MCL 257.724a(2) requires that to

determine if the vehicle was overweight, it must be weighed with

all the lift axles lowered. Therefore, because defendant had raised

the axles to negotiate a turn, the officer should have weighed the

vehicle with the axles down. The citation was invalid and must be

dismissed.

Reversed.

Paul M. Ross, P.C. (by Paul M. Ross), for defendant.

2010] P

EOPLE V

OUCHA

295

Before: B

ANDSTRA

,P.J., and F

ORT

OOD

and D

AVIS

,JJ.

URIAM

. Defendant appeals by leave granted the

circuit court’s order, which affirmed the district court’s

decision finding defendant responsible for operating an

overweight vehicle in violation of MCL 257.722 and

257.724, a civil infraction. We reverse.

On January 14, 2008, defendant hauled a load of pine

chips with a tractor-trailer on Maple Valley Road. Defen-

dant had three of his trailer axles raised for approximately

two miles through a series of curves. Defendant testified

that it would have been impossible to negotiate the curves,

at any speed, with his axles down because the dropped

axles created too much resistance to make the curves. He

asserted that on a prior occasion he forgot to lift the axles

on this stretch of road and ended up driving in the other

lane, almost in the gravel. Defendant asserted that he

could not lower the axles in the straight sections between

the curves because it took too long for the air compressor

to pump air into the system that supported the axles and

the brakes. He testified that his axles were down after he

negotiated the curves and when he was stopped by the

police officer who had been following him. Defendant

alleged that his load was not overweight when all the axles

were down. The police officer concluded that five of the six

axles were overweight. The officer testified that he

weighed the vehicle with the axles in the positions they

were in when traveling on the curves in the roadway.

Following a formal hearing, defendant was found

responsible for the civil infraction and fined for the

violation. The circuit court affirmed the violation, albeit

on other grounds. We granted defendant’s application

for leave to appeal. The prosecution has not filed a brief

in opposition to the appeal.

MCL 257.724a provides in relevant part:

296 290 M

ICH

295 [Oct

(1) The axle weight requirements of this chapter do not

apply to a vehicle equipped with lift axles during the period

in which axles are raised to negotiate an intersection,

driveway, or other turn and until the lift axles are fully

engaged after the period of time or the distance necessary

to negotiate that intersection, driveway, or other turn.

(2) If a vehicle is to be weighed to determine whether the

vehicle is being operated in violation of this act or a rule

promulgated under this act or of a local ordinance substan-

tially corresponding to this act or a rule promulgated under

this act and the vehicle is equipped with lift axles that have

been raised to allow the vehicle to negotiate an intersec-

tion, driveway, or other turn, the vehicle shall be weighed

only after the lift axles have been fully lowered and are

under operational pressure as provided in subsection (1).

Statutory construction issues present questions of

law reviewed de novo. People v Keller, 479 Mich 467,

473; 739 NW2d 505 (2007). When interpreting a stat-

ute, courts must ascertain the legislative intent by

examining the words of the statute. People v Plunkett,

485 Mich 50, 58; 780 NW2d 280 (2010). Terms in a

statute are to be construed reasonably in accordance

with their plain and ordinary meaning. People v Yamat,

475 Mich 49, 56; 714 NW2d 335 (2006).

The word “turn” when used as a noun is defined as

“a movement of partial or total rotation: a turn of the

handle,” or “a place where a road, river, or the like

turns[.]” Random House Webster’s College Dictionary

(2000), p 1410. In the present case, the police officer

testified that he followed defendant through a series of

curves in the roadway. Additionally, defendant submit-

ted photographs demonstrating that there were eight

curves in the roadway with signs warning drivers of the

curves and the applicable speed limit. Defendant re-

ported that the distance between each sign ranged from

of a mile to

of a mile. Therefore, the axle-weight

requirements were inapplicable during the period in

2010] P

EOPLE V

OUCHA

297

which the axles were raised to negotiate the curves in

the roadway. MCL 257.724a(1). That is, defendant had

to turn the vehicle to negotiate the changes in the

roadway. It is important to note that the prosecution did

not present any testimony to contradict defendant’s

assertions that it was necessary to raise axles to nego-

tiate this stretch of the roadway or regarding the time

to restore compression in the braking system. Because

defendant raised his axles “to allow the vehicle to

negotiate [a]...turn,” the officer should have weighed

defendant’s vehicle with the axles down. MCL

257.724a(2). In light of the fact that the officer weighed

the vehicle with the axles raised, as they had been while

defendant negotiated the curves, contrary to MCL

257.724a(2), defendant’s citation was invalid and must

be dismissed.

Reversed.

In light of our conclusion regarding the statutory language, we need

not address defendant’s challenges to the circuit court’s other rulings.

298 290 M

ICH

295 [Oct

KING v McPHERSON HOSPITAL

Docket No. 284436. Submitted July 12, 2010, at Lansing. Decided

October 19, 2010, at 9:00 a.m.

Diana King, as personal representative of the estate of Andrew

Baker, deceased, brought a medical malpractice action in the

Livingston Circuit Court on March 1, 2004, against McPherson

Hospital, also known as Trinity Health-Michigan (McPherson),

and Michael Briggs, D.O., Merle Hunter, M.D., and Emergency

Physicians Medical Group, P.C. (the EPMG defendants), alleging

that defendants’ failure to properly diagnose Baker’s medical

condition on September 6, 2001, led to his death on September 8,

2001. The EPMG defendants, with McPherson concurring, moved

for summary disposition on September 20, 2004, arguing that the

statute of limitations barred the complaint because it was not filed

within two years after Diana King was appointed personal repre-

sentative. Defendants relied on Waltz v Wyse, 469 Mich 642 (2004),

which held that sending a notice of intent to file the action under

MCL 600.2912b does not toll the wrongful death saving provision

found in MCL 600.5852. Defendants also contended that Waltz

applied retroactively. Also on September 20, 2004, Timothy King

(hereafter plaintiff) was appointed successor personal representa-

tive of the estate. Plaintiff argued that this case could be distin-

guished from Waltz because the notice of intent in this case was

mailed within two years after the date of defendants’ alleged

malpractice. Plaintiff argued that Waltz cannot be applied retro-

actively, that the complaint was timely under Omelenchuk v City of

Warren, 461 Mich 567 (2000), and that the court should apply

judicial tolling to the limitations period to save the cause of action.

On October 28, 2004, the court, Daniel A. Burress, J., denied

defendants’ motion. Defendants sought leave to appeal, and the

Court of Appeals, O

WENS

,P.J., and C

AVANAGH

and N

EFF

, JJ., reversed

the trial court’s order in an unpublished opinion per curiam,

issued July 12, 2005 (Docket Nos. 259136 and 259229), on the

basis that the complaint was untimely pursuant to Waltz. The

Supreme Court denied plaintiff’s application for leave to appeal,

King v Briggs, 474 Mich 981 (2005), and motion for reconsidera-

tion, King v Briggs, 474 Mich 1113 (2006). On remand in the trial

court, the EPMG defendants moved for an order of dismissal, and

McPherson

2010] K

ING V

HERSON

OSP

299

concurred with the motion. On January 26, 2007, the trial court,

David J. Reader, J., granted the motion and dismissed plaintiff’s

claims. The Court of Appeals dismissed plaintiff’s claim of appeal

regarding that order for lack of jurisdiction in an unpublished

order, entered April 11, 2007 (Docket No. 276287), and denied

plaintiff’s motion for reconsideration in an unpublished order,

entered June 1, 2007 (Docket No. 276287). On November 28, 2007,

the Supreme Court decided Mullins v St Joseph Mercy Hosp, 480

Mich 948 (2007), concluding that the Waltz decision does not apply

to any cause of action filed after Omelenchuk was decided in which

the saving period had expired (i.e., two years had elapsed since the

personal representative was appointed) sometime between the

date that Omelenchuk was decided and within 182 days after Waltz

was decided. The Supreme Court held that Waltz controlled all

other causes of action. On January 24, 2008, plaintiff moved to set

aside the trial court’s order dismissing his claims, relying on

Mullins and arguing that, with respect to the previous opinion of

the Court of Appeals holding that plaintiff’s claims were time-

barred, the law of the case doctrine was inapplicable because an

intervening change in the law had occurred. McPherson argued

that the law of the case doctrine applied regardless of the inter-

vening change in the law, that the trial court lacked jurisdiction to

grant relief under MCR 7.215(F)(1)(a), and that the holding in

Mullins did not reverse the previous appellate decisions in this

case. The EPMG defendants additionally contended that the trial

court lacked authority to vacate a previous judgment of the Court

of Appeals and that MCR 2.612(C)(1)(a), (e), and (f) were inappli-

cable. The trial court denied plaintiff’s motion, concluding that the

law of the case was the order of the Court of Appeals telling the

trial court to dismiss the case. The Court of Appeals denied

plaintiff’s application for leave to appeal in an unpublished order,

entered July 10, 2008 (Docket No. 284436). The Supreme Court, in

lieu of granting leave to appeal, remanded the case to the Court of

Appeals for consideration as on leave granted. 482 Mich 1154

(2008). On April 27, 2010, the Court of Appeals, D

AVIS

,P.J., and

ONOFRIO

and S

TEPHENS

, JJ., issued an opinion in which it stated

that, pursuant to MCR 2.612(C)(1)(f), plaintiff should prevail.

Nevertheless, the Court affirmed the trial court’s order on the

basis of the decision in Farley v Carp, 287 Mich App 1 (2010),

noting that it was following Farley only because it was required to

follow it pursuant to MCR 7.215(C)(2) and (J)(1). The Court of

Appeals noted its disagreement with Farley and called for the

convening of a special panel of the Court of Appeals to resolve the

conflict. 288 Mich App 801 (2010). The Court of Appeals then

300 290 M

ICH

299 [Oct

ordered that a special panel be convened to resolve the conflict and

vacated the April 27, 2010, opinion of the Court of Appeals. 288

Mich App 801 (2010).

After consideration by the special panel, the Court of Appeals

held:

It is not disputed that this case was closed at the time that

Mullins was decided. Under People v Maxson, 482 Mich 385 (2008),

Reynoldsville Casket Co v Hyde, 514 US 749 (1995), Sumner v Gen

Motors Corp (On Remand), 245 Mich App 653 (2001), and Gillispie

v Detroit Housing Comm Bd of Tenant Affairs, 145 Mich App 424

(1985), a case given retroactive application only applies to pending

cases. Therefore, the partial retroactive application of Waltz that

was granted in Mullins could not apply to this closed case. While

MCR 2.612(C)(1)(f) allows relief from a final judgment in certain

circumstances, not reviving this case would not be an extraordi-

nary circumstance for which relief should be granted under that

court rule. Defendants’ rights would be substantially detrimen-

tally affected if this case were to be revived. There was no

suggestion that defendants did anything inappropriate in obtain-

ing the final judgment. Therefore, relief was not available under

MCR 2.612(C)(1)(f).

Affirmed.

O’C

ONNELL

, J., concurring in part and dissenting in part, stated

that the majority opinion misconstrued both the scope and the

purpose of the Supreme Court’s order in Mullins. The Mullins

order was not an intervening change of the law. In its use of the

words “any causes of action,” the Supreme Court did not limit the

palliative nature of its order to only those cases still pending.

Rather than being limited to a select group of plaintiffs, the

Mullins order should be applied to all the litigants who had

properly initiated actions under the rules that controlled before

Waltz but had their litigation halted by the Waltz decision before

receiving their day in court. This is how the Mullins order, an

extraordinary edict by the Supreme Court, was intended to be

applied. The original panel in this case properly applied the

Mullins order, and a limited application of the order will result in

a miscarriage of justice.

1. J

UDGMENTS —

ELIEF

ROM

UDGMENTS

Relief from a final judgment under MCR 2.612(C)(1)(f) requires both

the presence of extraordinary circumstances that mandate setting

aside the judgment to achieve justice and a demonstration that

setting aside the judgment will not detrimentally effect the sub-

stantial rights of the opposing party; extraordinary circumstances

2010] K

ING V

HERSON

OSP

301

warranting relief from a judgment generally arise when the

judgment was obtained by the improper conduct of a party.

2. J

UDGMENTS —

ETROACTIVE

PPLICATION OF

UDGMENTS —

LOSED

ASES

New legal principles, even when applied retroactively, do not apply to

cases already closed; when a case is given some form of retroactive

application, it does not apply to cases that are no longer pending.

Mark Granzotto, P.C. (by Mark Granzotto), for Timo-

thy King.

Johnson & Wyngaarden, P.C. (by David R. Johnson

and Michael L. Van Erp), for McPherson Hospital.

Tanoury, Nauts, McKinney & Garbarino, P.L.L.C. (by

William A. Tanoury and Anita Comorski), for Michael

Briggs, D.O., Merle Hunter, M.D., and Emergency Phy-

sicians Medical Group, P.C.

Before: K. F. K

ELLY

,P.J., and M

ARKEY

, O’C

ONNELL

ALBOT

ILDER

URRAY

, and F

ORT

OOD

,JJ.

URRAY

,J.

I. INTRODUCTION

The question presented to this panel is whether

plaintiff may invoke MCR 2.612(C)(1)(f) to reinstate a

case after entry of a final judgment in favor of defen-

dants because of a subsequent change or clarification in

the law. In the prior decision in this case, King v

McPherson Hosp, 288 Mich App 801 (2010) (King I), the

panel held that a plaintiff should be able to prevail

under the court rule, but could not because of the prior

decision in Farley v Carp, 287 Mich App 1; 782 NW2d

508 (2010), with which it disagreed. Accordingly, the

prior panel called for a vote of all members of the Court

on whether to convene a conflict panel to resolve this

dispute, MCR 7.215(J)(3)(a), which obviously a majority

302 290 M

ICH

299 [Oct

PINION OF THE

OURT

of the judges agreed to do. See King v McPherson Hosp,

288 Mich App 801 (2010) (order vacating prior opinion).

For the reasons that follow, we hold that the trial court

properly held that plaintiff could not reinstate the case

under MCR 2.612(C)(1)(f).

II. BACKGROUND

This case, as well as Farley and another pertinent

case, Kidder v Ptacin, 284 Mich App 166; 771 NW2d 806

(2009), involves the Supreme Court’s decision in Mul-

lins v St Joseph Mercy Hosp, 480 Mich 948 (2007), in

which the Court held that its prior holding in Waltz v

Wyse, 469 Mich 642; 677 NW2d 813 (2004), had only

limited retroactive application. Specifically, the Mullins

Court held in its order:

We reverse the July 11, 2006, judgment of the Court of

Appeals. MCR 7.302(G)(1). We conclude that this Court’s

decision in Waltz v Wyse, 469 Mich 642 [677 NW2d 813]

(2004), does not apply to any causes of action filed after

Omelenchuk v City of Warren, 461 Mich 567 [609 NW2d

177] (2000), was decided in which the saving period ex-

pired, i.e., two years had elapsed since the personal repre-

sentative was appointed, sometime between the date that

Omelenchuk was decided and within 182 days after Waltz

was decided. All other causes of action are controlled by

Waltz. In the instant case, because the plaintiff filed this

action after Omelenchuk was decided and the saving period

expired between the date that Omelenchuk was decided

and within 182 days after Waltz was decided, Waltz is not

applicable. Accordingly, we remand this case to the Wash-

tenaw Circuit Court for entry of an order denying the

defendants’ motion for summary disposition and for fur-

ther proceedings not inconsistent with this order. [Mullins,

480 Mich at 948.]

Because plaintiff’s action fell within the “any causes

of action” language and was otherwise within the

2010] K

ING V

HERSON

OSP

303

PINION OF THE

OURT

pertinent time frame as described in Mullins, and

plaintiff had litigated the statute-of-limitations issue up

and down the judicial system, the prior panel held that

relief should be available under the court rule. King I,

288 Mich App 801. We respectfully disagree.

III. ANALYSIS

As mentioned in the introduction, we hold that

plaintiff cannot obtain relief from a final judgment

under MCR 2.612(C)(1)(f) based upon a partially retro-

active change or clarification in the law because, as

explained below, both the Michigan and United States

Supreme Court, as well as our Court, have held that

even a case given full retroactivity does not apply to a

closed case, as this one was when Mullins was decided.

We first have to recall that this case is before us on

appeal from a trial court’s grant of a motion for relief

from judgment brought pursuant to MCR

2.612(C)(1)(f). As explained in Heugel v Heugel, 237

Mich App 471, 478-479; 603 NW2d 121 (1999):

In order for relief to be granted under MCR

2.612(C)(1)(f), the following three requirements must be

fulfilled: (1) the reason for setting aside the judgment must

not fall under subsections a through e, (2) the substantial

rights of the opposing party must not be detrimentally

affected if the judgment is set aside, and (3) extraordinary

circumstances must exist that mandate setting aside the

judgment in order to achieve justice. Altman v Nelson, 197

Mich App 467, 478; 495 NW2d 826 (1992); McNeil v Caro

Community Hosp, 167 Mich App 492, 497; 423 NW2d 241

(1988). Generally, relief is granted under subsection f only

when the judgment was obtained by the improper conduct

of the party in whose favor it was rendered. Altman, supra;

McNeil, supra.

As recently noted in Rose v Rose, 289 Mich App 45, 58;

795 NW2d 611 (2010), “[w]ell-settled policy consider-

304 290 M

ICH

299 [Oct

PINION OF THE

OURT

ations favoring finality of judgments circumscribe relief

under MCR 2.612(C)(1),” and although relief under

subrule (C)(1)(f) is the widest avenue for relief under

this court rule, it nonetheless requires “the presence of

both extraordinary circumstances and a demonstration

that setting aside the judgment will not detrimentally

affect the substantial rights of the opposing party.” And

our caselaw has long recognized that this court rule

“contemplates that extraordinary circumstances war-

ranting relief from a judgment generally arise when the

judgment was obtained by the improper conduct of a

party.” Id. at 62, citing Heugel, 237 Mich App at 479;

see, also, Lark v Detroit Edison Co, 99 Mich App 280,

283; 297 NW2d 653 (1980).

In order to obtain relief under this subsection, then,

plaintiff had to prove that keeping in place a final

judgment after the caselaw the judgment was based

upon was partially retroactively reversed (i.e., the “cir-

cumstances”) was so extraordinary that plaintiff should

be afforded relief and that doing so would not be

detrimental to defendants. Such a conclusion cannot be

squared with a clear and unequivocal rule from our

Supreme Court, a rule that itself is premised on United

States Supreme Court precedent. The rule, plainly and

recently set forth in People v Maxson, is that “ ‘[n]ew

legal principles, even when applied retroactively, do not

apply to cases already closed.’ ” People v Maxson, 482

Mich 385, 387; 759 NW2d 817 (2008), quoting Rey-

noldsville Casket Co v Hyde, 514 US 749, 758; 115 S Ct

1745; 131 L Ed 2d 820 (1995) (emphasis supplied).

The

Even more recently, a plurality of the Court noted that its decision

reversing the retroactive application of a prior case would apply to any

injuries inflicted prior to its earlier decision, but only “as long as the

claim has not already reached final resolution in the court system.”

Bezeau v Palace Sports & Entertainment, Inc, 487 Mich 455, 468; 795

NW2d 797 (2010) (opinion by W

EAVER

, J.).

2010] K

ING V

HERSON

OSP

305

PINION OF THE

OURT

basis for this longstanding rule is that “at some point,

‘the rights of the parties should be considered fro-

zen’....”Reynoldsville Casket, 514 US at 758, quoting

United States v Donnelly Estate, 397 US 286, 296; 90 S

Ct 1033; 25 L Ed 2d 312 (1970) (Harlan, J., concurring).

In Sumner v Gen Motors Corp (On Remand), 245 Mich

App 653; 633 NW2d 1 (2001), our Court discussed this

very point. Writing for the Court, Judge O’C

ONNELL

explained why an intervening change of law was not a

basis upon which to obtain relief from judgment:

In any event, we would not be inclined to grant relief

from the judgment in Sumner I [Sumner v Gen Motors

Corp, 212 Mich App 694; 538 NW2d 112 (1995)]. An

intervening change in law is not an appropriate basis for

granting relief from a judgment; indeed, if it were, “it is not

clear why all judgments rendered on the basis of a particu-

lar interpretation of law should not be reopened when the

interpretation is substantially changed.” 2 Restatement

Judgments, 2d, § 73, illustration 4, p 200. [Id. at 667.]

An earlier case coming to the same conclusion is

Gillispie v Detroit Housing Comm Bd of Tenant Affairs,

145 Mich App 424; 377 NW2d 864 (1985). There, the

parties had agreed that a judgment after a trial should be

entered in a particular, agreed-upon amount, and the

defendant satisfied the judgment on January 20, 1984. Id.

at 426. In August of that same year, the plaintiff filed a

motion for relief from judgment, arguing that a decision

issued just after the judgment was entered (Gage v Ford

Motor Co, 133 Mich App 366; 350 NW2d 257 [1984], aff’d

in part and rev’d in part 423 Mich 250 [1985]) showed that

the interest calculations used for the judgment were the

result of a mutual mistake, GCR 1963, 528.3(1), which is

now MCR 2.612(C)(1)(a). Id. at 426-427. The trial court

denied the motion, and our Court affirmed. In discussing

whether a subsequent decision should apply retroactively

to a closed case, we stated:

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Three considerations are often applied to control retro-

activity: (1) the purpose of the new rule, (2) the litigants’

reliance on the old rule, and (3) the impact of the rule on

the administration of justice. Consideration of the third

factor alone militates in favor of denying the retroactive

application of Gage to the present case. As the trial court

noted, if Gage were to be applied to cases in which a

satisfaction of judgment had already been executed, “[w]e

could have 10,000 people coming back here and asking the

court to change their judgments”. The court’s concern is

not without basis. The application of Gage to an action

which is no longer pending could well open the floodgates

to other litigants eager to increase their recovery and could

lead to disasterous results in relation to matters properly

considered closed.

Moreover, even if retroactive application was deemed

fitting, it would not extend to cases in which the cause of

action is no longer pending. Normally, application of a new

rule of law falls within one of three categories. A new rule

of law may be (1) applied in all cases in which a cause of

action has accrued and which are still lawfully pending,

plus all future cases, (2) applied to the case at bar and all

future cases, or (3) applied only to future cases. Even the

most far reaching category would not encompass the present

case. We believe it is clear that retroactive application of

Gage would be inappropriate in the present case. [Id.at

429-430 (emphasis added).]

Here, it is undisputed that the case was closed at the

time Mullins was decided. No appeal was pending

before this Court or the Supreme Court, no motion was

pending before the trial court, and the final judgment in

favor of defendants had been entered. Under the Michi-

gan Supreme Court decision in Maxson and the United

States Supreme Court decision in Reynoldsville Casket,

as well as our decisions in Sumner and Gillispie, the

partial retroactive application of Waltz that was granted

in Mullins could not apply to this closed case. Hence,

not reviving this case would not be an extraordinary

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circumstance under MCR 2.612(C)(1)(f), but instead

would be the required course of action under binding

precedent. Additionally, defendants’ rights would be

substantially detrimentally affected since they would

now be required to relitigate a case that had already

been through the appellate process, resulting in a final

judgment that had been left idle for seven months.

There is also no suggestion that defendants did any-

thing inappropriate in obtaining the final judgment.

Rose, 289 Mich App at 62. As such, relief was not

available under MCR 2.612(C)(1)(f).

In his usual colorful and articulate way, our dissent-

ing colleague argues that the order in Mullins was not

a “change in the law,” so the cases upon which we rely

for our holding simply do not apply. After careful

consideration of this position, there are several reasons

why we respectfully conclude otherwise. First, the point

of Maxson and the other cases is that when a case—here

Waltz—is given some form of retroactive application,

the retroactivity does not apply to cases that are no

longer pending. The fact that these cases arose in the

context of a motion for relief from judgment is because

such a motion would only be brought if a new case were

released that potentially revives what was already

closed.

Second, whether one views the Mullins order as a

change in the law or merely a “clarification” of the

retroactivity of Waltz is of no moment. For there can be

no dispute that prior to the Mullins order there was a

conflict panel decision of this Court, see Mullins v St

Joseph Mercy Hosp, 271 Mich App 503; 722 NW2d 666

(2006), as well as at least one prior published opinion,

see Ousley v McLaren, 264 Mich App 486; 691 NW2d

817 (2004), holding that Waltz had full retroactive

application. Thus, the Mullins order was the Supreme

308 290 M

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Court’s decision clarifying the law on this issue. Be-

cause the Mullins order provided an answer different

from that of the Mullins conflict panel and a prior

published case, plaintiff attempted to use this new,

favorable ruling on retroactivity to reopen his closed

case. Consequently, we believe this case falls squarely

within the cases we have applied here.

Finally, as noted in King I, although “[t]he Supreme

Court in its use of the words ‘any causes of action’ did

not limit the palliative nature of its order to only those

cases still pending,” King I, 288 Mich App at 810,

it did

not have to be so precise in this case since the law

described above already makes clear that a retroactive

decision does not apply to closed cases. If the Court had

been crafting an exception to this apparently uniform

rule, then it would have likely said so, but it did not.

Hence, cases such as Maxson, Reynoldsville Casket,

Sumner, and Gillispie control the outcome of this

appeal. Some will certainly say, as have our dissenting

colleagues and the prior King I panel, that this conclu-

sion is “unfair” since plaintiff diligently pursued his

rights and arguments up and down the judicial system.

Indeed, the dissent adopts the King I panel’s view of

failing “to see the fairness in allowing only pending

actions to receive the benefit of the Supreme Court’s

Indeed, the Supreme Court’s Mullins order is analogous to a decision

from the United States Supreme Court that resolves a conflict among the

federal circuit courts of appeals. The federal courts have held that a

Supreme Court decision breaking a conflict is not an extraordinary

circumstance sufficient to reopen a case. See, e.g., United States ex rel

Garibaldi v Orleans Parish Sch Bd, 397 F3d 334, 337-340 (CA 5, 2005);

see, also, Smith v Arbella Mut Ins Co, 49 Mass App 53, 55-56; 725 NE2d

1080 (2000).

The usual “limited” retroactive application typically applies to pend-

ing cases in which a challenge has been raised and preserved. Devillers v

Auto Club Ins Ass’n, 473 Mich 562, 586; 702 NW2d 539 (2005); People v

Cornell, 466 Mich 335, 367; 646 NW2d 127 (2002).

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order....”But“fairness” cannot override our obliga-

tion to follow binding decisions from the appellate

courts of this state, which without exception indicate

that a case given retroactive application only applies to

pending cases, i.e., it does not apply to closed cases.

James B Beam Distilling Co v Georgia, 501 US 529,

541-542; 111 S Ct 2439; 115 L Ed 2d 481 (1991), the

United States Supreme Court recognized the somewhat

arbitrary result in precluding a closed case from being

revived through retroactive application of caselaw (even

one dismissed on statute-of-limitations grounds), but

nonetheless concluded that finality principles overrode

any such concerns:

Of course, retroactivity in civil cases must be limited by

the need for finality, see Chicot County Drainage Dist. v.

Baxter State Bank, 308 U.S. 371 [60 S Ct 317; 84 L Ed 329]

(1940); once suit is barred by res judicata or by statutes of

limitation or repose, a new rule cannot reopen the door

already closed. It is true that one might deem the distinc-

tion arbitrary, just as some have done in the criminal

context with respect to the distinction between direct

review and habeas: why should someone whose failure has

otherwise become final not enjoy the next day’s new rule,

from which victory would otherwise spring? . . . Insofar as

equality drives us, it might be argued that the new rule

Interestingly, neither the dissent in Farley, nor the dissent in this

case, nor the panel in King I even give lip service to the standards

articulated in cases like Rose, which entails a multi-faceted inquiry.

There is no doubt that plaintiff would have had a timely suit had a final

judgment not been entered at the time Mullins was decided, but again

the fact is that it was over, and no caselaw, statute, or court rule has been

pointed out by the parties or prior courts that would authorize disregard-

ing Maxson and similar cases in the name of fairness. Additionally, were

we to agree with the dissent in this case, what would be the objective rule

to apply in determining how long a case needs to have been final and

closed before it cannot be revived by application of a retroactive case?

One year, two years? Perhaps no limitation? This is an important

question, and one the dissent has not answered.

310 290 M

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should be applied to those who had toiled and failed, but

whose claims are now precluded by res judicata; and that it

should not be applied to those who only exploit others’

efforts by litigating in the new rule’s wake.

As to the former, independent interests are at stake; and

with respect to the latter, the distinction would be too

readily and unnecessarily overcome. While those whose

claims have been adjudicated may seek equality, a second

chance for them could only be purchased at the expense of

another principle. “ ‘Public policy dictates that there be an

end of litigation; that those who have contested an issue

shall be bound by the result of that contest, and that matters

once tried shall be considered forever settled as between the

parties.’”Federated Department Stores, Inc. v. Moitie, 452

U.S. 394, 401 [101 S Ct 2424; 69 L Ed 2d 103] (1981)

(quoting Baldwin v. Iowa State Traveling Men’s Assn., 283

U.S. 522, 525 [51 S Ct 517; 75 L Ed 1244] (1931)). Finality

must thus delimit equality in a temporal sense, and we must

accept as a fact that the argument for uniformity loses force

over time. [Emphasis added.]

Because this case was closed when Mullins was decided,

we affirm the trial court’s denial of the motion for relief

from judgment, as the ruling did not constitute an

abuse of discretion.

Affirmed.

K. F. K

ELLY

,P.J., and M

ARKEY

ALBOT

, and W

ILDER

JJ., concurred with M

URRAY

,J.

O’C

ONNELL

,J.(concurring in part and dissenting in

part). I concur with the majority that plaintiff diligently

pursued his rights and arguments up and down the

judicial system, including an appeal to our Supreme

Court. I also concur with the majority and the panel in

King v McPherson Hosp, 288 Mich App 801 (2010)

(King I), that a limited application of the now famous

order in Mullins v St Joseph Mercy Hosp, 480 Mich 948

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(2007) (Mullins III), is “unfair” and, in my opinion, will

result in a miscarriage of justice.

I write separately to state that the majority opinion

misconstrues both the scope and purpose of the Su-

preme Court’s order in Mullins III. The Mullins III

order was not, as the majority opinion speculates, an

“intervening change of the law.” The law remained the

same after the effective date of the Mullins III order as

it was before the Mullins III order was entered. In this

regard, the order was an extraordinary edict from our

Supreme Court.

Rather than limit the Mullins III

order to a select group of plaintiffs, I would apply the

Mullins III order to all litigants unceremoniously

thrown off the litigation train before receiving their day

in court. This is how the Mullins III order was intended

to be applied and how the King I panel applied this

order. I see no justice or equity in creating two classes of

plaintiffs and then unjudiciously picking which class of

plaintiffs will have their day in court and which class of

plaintiffs will be denied their day in court. To operate in

such a manner is to re-create the same firestorm that

generated the Mullins III order in the first place.

I. HISTORY OF THE MULLINS ORDER

In reality, the Supreme Court’s order in Mullins III

operates as a pardon for those plaintiffs who failed to

timely discern the ramifications of the Supreme Court’s

Because the Supreme Court’s order in Mullins III did not change the

current state of the law, the majority’s reliance on well-written cases such

as Sumner v Gen Motors Corp (On Remand), 245 Mich App 653; 633

NW2d 1 (2001), and People v Maxson, 482 Mich 385; 759 NW2d 817

(2008), is misplaced.

Ironically, four of the Court of Appeals judges involved in the current

dispute (Judge D

ONOFRIO

on the King I panel and Judges K. F. K

ELLY

O’C

ONNELL

, and T

ALBOT

on this special panel) were also involved in the

Mullins appellate decisions.

312 290 M

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,J.

decision in Waltz v Wyse.

The Mullins III order recog-

nized the difficult time this Court experienced inter-

preting the current state of medical-malpractice law. It

also recognized that numerous plaintiffs, through no

fault of their own, had lost their ability to pursue their

causes of action. In McLean v McElhaney, 269 Mich App

196, 207-208; 711 NW2d 775 (2005) (O’C

ONNELL

,P.J.,

dissenting), rev’d 480 Mich 978 (2007), I metaphorically

described the confused state of the law as follows:

The finest legal augur with the keenest sight and all the

birds in the autumn sky could not have anticipated Waltz’s

outcome with enough certainty to provide rudimentary

counsel to a prospective client. This analysis would also

lead to the conclusion that equity forbids retroactive appli-

cation of Waltz.

Undeniably, Omelenchuk [v City of Warren, 461 Mich 567;

609 NW2d 177 (2000)] stood as an unchallenged and clear

pronouncement of the controlling timetables until Waltz

changed them. Plaintiffs responded to the original schedules

by timely arriving at the station, buying an outrageously

expensive ticket, and boarding the correct train. Fueled by

even more money, the litigation engine pulled smoothly out of

the station and chugged its way up to speed. Now Ousley [v

McLaren, 264 Mich App 486; 691 NW2d 817 (2004)] ceremo-

niously presents plaintiffs with the Supreme Court’s newly

revised timetables; paternalistically explains to them how,

under the new schedules, they were technically tardy to the

station; warmly apologizes for the fallibility and humanness

of the legal system; and demands that we unceremoniously

throw plaintiffs from the speeding train. I do not see any

justice or equity in this course of action. Ousley should be

disregarded, Waltz should only receive prospective applica-

tion, and I would reverse.

It is important to remember that every judge on this

Court experienced some difficulties in attempting to fol-

low the then current state of medical-malpractice law.

Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004).

2010] K

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Because of these difficulties, Judge F

ITZGERALD

and I

declared a conflict with Ousley in the majority opinion in

Mullins v St Joseph Mercy Hosp, 269 Mich App 586; 711

NW2d 448 (2006) (Mullins I). Our Court then voted to

convene a conflict panel and vacated part of the Mullins I

opinion, and, in Mullins v St Joseph Mercy Hosp, 271

Mich App 503; 722 NW2d 666 (2006) (Mullins II), the

conflict panel produced four separate, divergent opinions.

I believe it is fair to say that even the conflict panel was

conflicted. Unfortunately, the Mullins II majority side-

stepped the substantive analysis of the issue raised in

Mullins I (whether Waltz should be applied prospectively

or retroactively) and chose to resolve the case on the basis

of a series of nonbinding remand orders the Supreme

Court had issued, leaving both the bench and bar in a

state of confusion.

After the aborted attempt in Mullins

II to resolve the retroactivity issue, I described the

chaotic situation in Ward v Siano, 272 Mich App 715,

721-722, 744; 730 NW2d 1 (2006) (O’C

ONNELL

, J., con-

curring), rev’d 480 Mich 979 (2007):

The issue that truly ignited the firestorm was the

related holding that because MCL 600.5852 was a “saving

provision,” the medical malpractice tolling provision, MCL

600.5856, did not toll it. Waltz, [469 Mich] at 655. This was

an issue of first impression on a settled area of law whose

resolution would ordinarily be limited to prospective appli-

cation. See Pohutski v City of Allen Park, 465 Mich 675,

696-697; 641 NW2d 219 (2002); Bryant v Oakpointe Villa

Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004).

It was not a nominal extension of understood principles,

but the plowing under of familiar and common legal

concepts and the reversal of years of standard practice. The

ingrained nature of the pre-Waltz approach to tolling

Mullins II, 271 Mich App at 506-509, quoting Wyatt v Oakwood Hosp

& Med Ctrs, 472 Mich 929 (2005), Evans v Hallal, 472 Mich 929 (2005),

and Forsyth v Hopper, 472 Mich 929 (2005). The confusion then turned to

whether the Supreme Court’s remand orders were binding on this Court.

314 290 M

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ONNELL

,J.

statutes, saving statutes, and other extensions of limita-

tions periods, can best be seen by considering the legal

concepts that developed along the way.

***

With more than 60 cases involving Waltz issues in various

stages of the appellate process, the time is ripe for the

Supreme Court to address the substantive issue presented to

the Mullins II conflict panel. Without a plenary discussion of

the issues, we are left only with the remand orders. In my

opinion, only a learned and exhaustive opinion will amicably

put these and other unsettled issues to rest. I would simply

ask that the Supreme Court grant leave to appeal in one of

these cases and resolve the issue of whether Waltz should be

applied prospectively or retroactively.

[

]

II. THE SUPREME COURT’S EDICT

Mullins II was appealed to the Supreme Court, which

resulted in an end to the chaos and produced the now

famous Mullins III edict:

We reverse the July 11, 2006, judgment of the Court of

Appeals. MCR 7.302(G)(1). We conclude that this Court’s

decision in W altz v Wyse, 469 Mich 642 (2004), does not apply

to any causes of action filed after Omelenchuk v City of

Warren, 461 Mich 567 (2000), was decided in which the saving

period expired, i.e., two years had elapsed since the personal

representative was appointed, sometime between the date

that Omelenchuk was decided and within 182 days after

Waltz was decided. All other causes of action are controlled by

In my concurring opinion in Ward, I requested that the Supreme

Court grant leave to appeal to determine the propriety of prospective or

retroactive application of Waltz. It appears that the Mullins III order was

the response to this request. In my opinion, the Mullins III order is an

astonishing statement by our Supreme Court. It was a bold, assertive

order issued to correct a wrong turn by this Court. The Supreme Court

should be commended for their foresight; in one paragraph they devised

the perfect solution for the then-existing problem.

2010] K

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Waltz. In the instant case, because the plaintiff filed this

action after Omelenchuk was decided and the saving period

expired between the date that Omelenchuk was decided and

within 182 days after W altz was decided, Waltz is not appli-

cable. Accordingly, we remand this case to the Washtenaw

Circuit Court for entry of an order denying the defendants’

motion for summary disposition and for further proceedings

not inconsistent with this order. Reported below: 271 Mich

App 503. [Mullins III, 480 Mich at 948.]

The Supreme Court order did not change the law;

instead, it created a window in which Waltz did not

apply retroactively. In my opinion, the Supreme Court

order applies to all plaintiffs who were dispatched to the

dustbin.

All plaintiffs who were properly on the litiga-

tion train and who properly exhausted all their appel-

late remedies should get their tickets stamped and be

placed back on the litigation train with full rights and

privileges. As the King I panel stated, “The Supreme

Court in its use of the words, ‘any causes of action’ did

not limit the palliative nature of its order to only those

cases still pending.” King I, 288 Mich App at 810.

I concur with the result reached in the King I

opinion. I would reverse the decision of the trial court.

ORT

OOD

, J., concurred with O’C

ONNELL

,J.

I note that the King I opinion and the Mullins III order do not fit into

the category described as conventional legal analysis. Both are extraor-

dinary statements that were made to afford justice to those plaintiffs who

failed to comprehend the significance of Waltz.

I am puzzled at the majority’s attempt to place a square peg in a

round hole. This type of thinking is what caused the chaos in the first

place. See Ousley, 264 Mich App 486.

As evidence of the complexity of this issue, I note that those Court of

Appeals judges who have opined on the King case are split five to five: five

judges favor limited application of the Mullins III order, and five judges

favor applying the Mullins III order to all litigants who are denied their

day in court.

316 290 M

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PEOPLE v HUNT

Docket No. 292639. Submitted October 13, 2010, at Detroit. Decided

October 19, 2010, at 9:05 a.m.

A Wayne Circuit Court jury convicted Christopher R. Hunt of

kidnapping, two counts of assault with a dangerous weapon, and

possession of a firearm during the commission of a felony. The

charges arose from a kidnapping at gunpoint in which defendant

participated with two other men and beatings that occurred

during the course of events. The court, Timothy M. Kenny, J.,

sentenced defendant to concurrent terms of 15 to 30 years for

kidnapping and 1 to 4 years for felonious assault, plus a consecu-

tive 2-year term for felony-firearm. The sentence was based in part

on a score of 50 points for offense variable (OV) 7, which involves

aggravated physical abuse, including sadism, torture, or excessive

brutality. Defendant appealed, challenging his sentencing.

The Court of Appeals held:

1. Under MCL 777.37(1)(a), 50 points must be assessed for OV

7 when a victim was treated with sadism, torture, or excessive

brutality or conduct designed to substantially increase the fear

and anxiety a victim suffered during the offense. Scores of 50

points for OV 7 have been upheld when the defendant committed

specific acts of sadism, torture, or excessive brutality. However,

defendant’s actions alone did not qualify as sadism, torture, or

excessive brutality because he did not himself commit, take part

in, or encourage others to commit such acts. The testimony

established that defendant had a gun at various times throughout

the crime but did not take part in the beatings or fire a weapon,

although others involved did. Defendant did not participate in

tying up the victims and did not encourage any of the other

perpetrators to act as they did. His participation in helping to

move the victims also did not rise to the level of sadism, torture, or

excessive brutality. Transportation of a victim to a place of greater

danger may be scored under OV 8, MCL 777.38(2)(b), but zero

points must be assessed for OV 8 when the sentencing offense is

kidnapping. The trial court should have assessed zero points for

OV 7.

2010] P

EOPLE V

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317

2. Sentencing must be based on accurately scored sentencing

guidelines. Had the guidelines been properly scored, defendant’s

recommended minimum sentence range for kidnapping would

have been 9 to 15 years instead of 11.25 to 18.75 years. Although

defendant’s minimum sentence of 15 years was within the cor-

rectly calculated range, it was at the top of that range rather than

the middle. The minimum sentence of 15 years showed an intent

by the trial court to sentence defendant in the middle of the range.

Defendant is entitled to resentencing.

Convictions affirmed, sentences vacated, and case remanded

for resentencing.

ENTENCES —

ENTENCING

UIDELINES —

FFENSE

ARIABLE

—

ADISM

ORTURE

XCESSIVE

RUTALITY

Fifty points must be assessed under the sentencing guidelines for

offense variable 7 (aggravated physical abuse) when a victim was

treated with sadism, torture, or excessive brutality or conduct de-

signed to substantially increase the fear and anxiety a victim suffered

during the offense; score of 50 points is appropriate when the

defendant committed specific acts of sadism, torture, or excessive

brutality; only the defendant’s actual participation should be scored,

however, and 50 points should not be assessed for sadism, torture, or

excessive brutality if the defendant did not commit, take part in, or

encourage others to commit such acts (MCL 777.37[1][a]).

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 Lori Baughman Palmer, Assis-

tant Prosecuting Attorney, for the people.

State Appellate Defender (by Desiree M. Ferguson)

for defendant.

Before: M

URRAY

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

ELLY

and D

ONOFRIO

JJ.

URIAM

. Defendant appeals as of right his jury

trial convictions of kidnapping, MCL 750.349, two

counts of assault with a dangerous weapon (felonious

assault), MCL 750.82, and possession of a firearm

during the commission of a felony (felony-firearm),

318 290 M

ICH

317 [Oct

MCL 750.227b. The trial court sentenced defendant to

concurrent prison terms of 15 to 30 years for kidnap-

ping and 1 to 4 years for felonious assault, and a

consecutive 2-year term for felony-firearm. Defendant’s

sole challenge on appeal is his sentencing. We affirm

defendant’s convictions; however, because the trial

court erred when it assessed 50 points for offense

variable (OV) 7, we vacate defendant’s sentence for

kidnapping and remand for resentencing in accordance

with this opinion.

I. FACTS

This case arises from a kidnapping at gunpoint that

occurred on June 7, 2008, in Detroit. On the date in

question, Sierra Burton and her ex-boyfriend, Jonathan

Broadus, were at a house on Audubon in Detroit. Burton

testified that at about 6:00 p.m., during a child’s birthday

party, defendant, Richard Harden, and Darnell Chapell

ran into the house with guns. Defendant and Chapell had

handguns, and Harden had a long gun or assault rifle.

According to Burton, all three men directed Burton and

Broadus to go downstairs at gunpoint. Broadus’s testi-

mony was conflicting with regard to whether defendant

was present at this time and, if he was present, whether

he had a gun. Harden and Chapell then began asking

about the whereabouts of Harden’s distinctive purple

Caprice Classic, which had been stolen. It appeared to

Burton that Broadus seemed to know about the missing

Caprice. Burton testified that at some point she attempted

to use a cell phone, but defendant “snatched” it. Burton

also stated that when defendant took the phone, defen-

dant’s gun was “just in his hand” and not pointed at her,

though she felt scared. Broadus testified that Harden hit

him with the assault rifle.

2010] P

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319

After about two minutes in the basement, the men

led Burton and Broadus out of the basement and then

out of the house. The men walked Burton and Broadus

to Chapell’s apartment in a house at the corner of

Audubon and Warren. Inside, the men kept asking

where the car was in an “aggressive” manner, and

Burton perceived it as a threat. Harden did most of the

questioning. After Broadus told the men something

about the car, the men escorted them outside into two

cars. Defendant, Chapell, and Harden all had their guns

at this time. They drove to a house on Lakeview. When

they arrived, about five strangers were on the porch.

Harden jumped out of the car and asked them about the

location of his car. Defendant stayed in the car. Harden

then started shooting at a boy on the porch, and the boy

ran inside. No one else fired shots or got out of the cars.

Both cars left the house and drove to an abandoned

house on Beaconsfield, about three minutes away. Every-

one went inside, but then Harden and defendant went to

get another car. Burton, Broadus, and Chapell waited in

the vacant house for them to return. Chapell still had his

gun. After about 30 minutes, defendant and Harden

returned. Burton, Broadus, defendant, Chapell, and

Harden all piled into a white truck and returned to

Chapell’s apartment on Audubon. Harden ran into

the apartment, while defendant and Chapell stayed in

the truck with Burton and Broadus. While Burton did

not see defendant or Chapell with a gun at this time,

she did not feel free to leave because Chapell said,

“Don’t move.” Harden then came out and told them

to come inside. When they went in, Harden again

starting asking Broadus about the car. Harden tied

Broadus’s and Burton’s hands behind their backs

with a telephone cord, shoestrings, and an extension

cord. Broadus answered questions about the car, but

320 290 M

ICH

317 [Oct

then a man named “Black” came in and beat Broadus

with his fists. Broadus said that he had seen “Monk”

driving the car.

Next, defendant, Harden, and Chapell took Burton

and Broadus on a ride to another street looking for

Harden’s stolen Caprice, a man named Courtney

Gillon, known as “Monk,” or Gillon’s house. They did

not find Gillon’s house and returned to Chapell’s apart-

ment. While there, Chapell called Broadus’s and Bur-

ton’s families and told them to tell their parents that

they were all right. Chapell and Broadus did so, speak-

ing to Broadus’s nephew. At this point Burton and

Broadus were still tied up and Harden still had a gun.

After about an hour or two, Harden and Chapell untied

them. Defendant was sitting at a table. Black then

walked Burton to Black’s house around the corner on

Courville, where they waited for defendant, Harden,

and Chapell to bring Broadus.

Defendant, Harden, Chapell, and Broadus went to

pick up Michael Webster and his sister, Unique Webster,

from a house on Drexel. When they got to Michael

Webster’s house, Harden held the gun to Broadus’s

back and they walked into the house. One of the other

men was also carrying a gun. The assailants forced the

Websters and Broadus into a Suburban. Later, they all

returned to the house on Courville. Unique Webster

was Gillon’s girlfriend, and she said that Gillon lived at

a house on Bluehill. Everyone got back into the Subur-

ban and drove to Bluehill.

At the house on Bluehill, Chapell and Harden walked

Unique Webster to the side door, where she knocked.

Defendant stayed in the car with Burton, Broadus, and

Michael Webster. Gillon answered the door. Harden then

“[g]rabbed him by his arms” and “snatched him out [of]

the house.” Chapell and Harden were holding handguns

2010] P

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321

and fired shots into the ground. They pushed Gillon into

the truck with defendant, Burton, and Broadus.

Next, they returned to Chapell’s apartment, and some-

one phoned Black. Black returned, and he, Chapell, and

Harden beat Gillon using “[s]hoestrings, telephone cords,

extension cords, chairs.” The beating lasted about 30 to 45

minutes. Defendant was in the other room with Burton,

Broadus, Michael Webster, and Unique Webster. Defen-

dant did not appear to be armed at this time, but again,

neither Burton nor Broadus felt free to leave because

Harden and others were still armed. At some point the

beating began again in the other room, and they heard

Gillon screaming and then gunshots inside the apartment.

Shortly thereafter, Black left.

Finally, after 45 minutes to an hour, Burton and

Broadus heard the sound of police sirens from the street

below. Harden tried to conceal his gun in the ceiling

tiles and told the victims to say that they were family

members and pretend that they were there willingly.

Burton was in the same room as Broadus, Michael

Webster, and Gillon. When the police knocked, defen-

dant was in another room or apartment. Harden and

Chapell left. Defendant then left with Unique Webster.

No one opened the door, and police officers used a

battering ram to get inside. Burton and Broadus told

the police what happened, explaining that they had

been kidnapped by defendant, Harden, and Chapell.

For his participation in the incident, the jury con-

victed defendant of kidnapping, two counts of felonious

assault, and felony-firearm. Defendant now appeals as

of right but only challenges his sentencing.

II. STANDARD OF REVIEW

When scoring the sentencing guidelines, “[a] trial

court determines the sentencing variables by reference

322 290 M

ICH

317 [Oct

to the record, using the standard [of proof] of prepon-

derance of the evidence.” People v Osantowski, 481

Mich 103, 111; 748 NW2d 799 (2008). Interpretation

and application of the sentencing guidelines is a ques-

tion of law, reviewed de novo. People v Cannon, 481

Mich 152, 156; 749 NW2d 257 (2008).

III. ANALYSIS

Defendant argues that he is entitled to resentencing

because the trial court erred when it assessed 50 points

for OV 7. MCL 777.37 provides:

(1) Offense variable 7 is aggravated physical abuse.

Score offense variable 7 by determining which of the

following apply and by assigning the number of points

attributable to the one that has the highest number of

points:

(a) A victim was treated with sadism, torture, or

excessive brutality or conduct designed to substantially

increase the fear and anxiety a victim suffered during

the offense ........................................................ 50 points

(b) No victim was treated with sadism, torture, or

excessive brutality or conduct designed to substantially

increase the fear and anxiety a victim suffered during the

offense ...................................................................... 0 points

(2) Count each person who was placed in danger of

injury or loss of life as a victim.

(3) As used in this section, “sadism” means conduct that

subjects a victim to extreme or prolonged pain or humilia-

tion and is inflicted to produce suffering or for the offend-

er’s gratification.

The trial court assessed 50 points for OV 7 because

(1) the victims were moved from location to location, (2)

a substantial beating was inflicted, designed to increase

fear, and (3) one of the victims was beaten by multiple

individuals. However, of these three factors, only the

2010] P

EOPLE V

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323

first applies to defendant’s role in the criminal enter-

prise. Defendant maintains that his role was minimal.

The record seems to support his contention. While

defendant was present and did have a gun at various

times throughout the crime, at no time did defendant

take part in a beating or fire a weapon. In fact, it

appears that the testimony may have been conflicting

with regard to whether defendant ever pointed a

weapon at one of the victims. Burton testified that

defendant, along with Harden and Chapell, ushered her

and Broadus down the stairs at gunpoint when they

first stormed the house on Audubon. Broadus waivered

about whether defendant was present at the house on

Audubon and, if defendant was present, whether he was

armed. The record shows that defendant did not par-

ticipate in tying up Burton and Broadus. Harden alone

tied them up. Defendant did not strike any blows

against Broadus. Black beat up Broadus. Later, when

Gillon was kidnapped, defendant waited in the car

while Chapell and Harden grabbed Gillon and fired

shots into the ground. Then, at Chapell’s apartment,

Chapell, Harden, and Black beat up Gillon. Defendant,

sitting at a table, did not participate. Importantly, there

was no testimony that defendant ever encouraged

Chapell, Harden, or Black in any of their behaviors.

Thus, under these circumstances, Burton’s testimony

that defendant, along with Harden and Chapell, pointed

his weapon at her at the first house was not sufficient to

demonstrate acts that qualify as “sadism, torture, or

excessive brutality” under OV 7.

Cases upholding scores of 50 points for OV 7 are

distinguishable because they involve specific acts of

sadism, torture, or excessively brutal acts by the defen-

dant. In People v Wilson, 265 Mich App 386, 396-398;

695 NW2d 351 (2005), the defendant was convicted of

assault with intent to commit great bodily harm less

324 290 M

ICH

317 [Oct

than murder after inflicting a prolonged and severe

beating that left lasting and serious effects. The defen-

dant in that case choked the victim a number of times,

cut her, dragged her, and kicked her in the head. After

her hospital stay, the victim was in a wheelchair for

three weeks and used a cane for another three weeks. In

another case in which 50 points were assessed for OV 7,

the defendant was convicted of kidnapping, felonious

assault, and felony-firearm after he held the victim at

gunpoint for nine hours, made her look down the barrel

of a gun, repeatedly threatened to kill her and himself,

and asked her what her son would feel like when he saw

yellow crime tape around his mother’s house. People v

Mattoon, 271 Mich App 275, 276; 721 NW2d 269 (2006),

and People v Mattoon, unpublished opinion per curiam

of the Court of Appeals, issued October 18, 2007

(Docket No. 272549) (after remand). Similarly, in People

v Hornsby, 251 Mich App 462, 468-469; 650 NW2d 700

(2002), the defendant pointed a gun at the victim,

cocked it, and repeatedly threatened the victim and

others in a store. In People v Kegler, 268 Mich App 187,

189-190; 706 NW2d 744 (2005), the defendant removed

the victim’s clothes, assisted with carrying him naked

outside, and admitted that she wanted to humiliate him

by leaving him outside naked. In People v James, 267

Mich App 675, 680; 705 NW2d 724 (2005), the defen-

dant repeatedly stomped on the victim’s face and chest

and deprived the victim of oxygen for several minutes,

causing him to sustain brain damage and become coma-

tose. And in People v Horn, 279 Mich App 31, 46-48; 755

NW2d 212 (2008), the defendant terrorized and abused

his wife with recurring and escalating acts of violence,

including threatening to kill her.

Unlike the defendants in those cases, while defen-

dant was present and armed during the commission of

the crimes here, he did not himself commit, take part in,

2010] P

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325

or encourage others to commit acts constituting “sa-

dism, torture, or excessive brutality” under OV 7.

Moreover, unlike OV 1, OV 2, and OV 3, OV 7 does not

state that “[i]n multiple offender cases, if 1 offender is

assessed points for [the applicable behavior or result],

all offenders shall be assessed the same number of

points.” See MCL 777.31(2)(b), MCL 777.32(2), MCL

777.33(2)(a). For OV 7, only the defendant’s actual

participation should be scored. In this case, the record

reflects that defendant’s actions alone did not qualify as

“sadism, torture, or excessive brutality” under OV 7.

And the movement of the victims did not justify a

50-point score for OV 7. Transportation to a place of

greater danger is appropriately scored under OV 8, but

must be given a score of zero points when, as here, the

sentencing offense is kidnapping. MCL 777.38(2)(b).

The trial court’s comments included the OV 8 factor in

its discussion of OV 7. There was testimony that defen-

dant held and pointed a gun. However, again, the use of

a gun is inherent in the felony-firearm and felonious

assault crimes, and defendant, unlike the others, did

not fire the gun, threaten to fire it, or hit the victims

with it. For a good portion of the time, the victims who

testified did not see him holding a gun. For all these

reasons, defendant’s own conduct toward the victims

did not qualify as “sadism, torture, or excessive brutal-

ity” or justify a score of 50 points on OV 7.

Finally, defendant is correct that resentencing is

required even though the minimum sentence he re-

ceived for the kidnapping conviction, 15 years, falls

within the recommended minimum sentence range

calculated under the guidelines after the correction.

Sentencing must be based on accurately scored guide-

lines. MCL 769.34(10). Without the 50-point score for

OV 7, defendant’s offense variable level and prior

326 290 M

ICH

317 [Oct

record variable level place him in the D-III cell of the

sentencing grid for offense class A, with a recommended

minimum sentence range of 9 to 15 years, rather than

in the D-V cell, with a recommended minimum sentence

range of 11.25 to 18.75 years. MCL 777.62. When the

guidelines are correctly scored, a minimum sentence of

15 years is at the top rather than the middle of the

guidelines range. The sentence given by the trial court

showed an intent to sentence defendant in the middle of

the minimum sentence range. In People v Francisco,

474 Mich 82, 92; 711 NW2d 44 (2006), the Court

mandated resentencing in a similar situation, since the

sentence imposed “stands differently in relationship to

the correct guidelines range than may have been the

trial court’s intention.” Francisco also stated that

“when a trial court sentences a defendant in reliance

upon an inaccurate guidelines range, it does so in

reliance upon inaccurate information.” Id.at89n7.

Defendant is entitled to resentencing.

IV. CONCLUSION

Because the trial court erred when it assessed 50

points for offense variable 7, we vacate defendant’s

sentence for kidnapping and remand for resentencing

in accordance with this opinion.

Affirmed in part, vacated in part, and remanded for

resentencing in accordance with this opinion. We do not

retain jurisdiction.

2010] P

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327

MICHIGAN’S ADVENTURE, INC v DALTON TOWNSHIP

Docket No. 292148. Submitted October 8, 2010, at Lansing. Decided

October 21, 2010, at 9:00 a.m.

Michigan’s Adventure, Inc., filed a petition in the Tax Tribunal,

seeking to invalidate a special assessment imposed on property it

owned by Dalton Township for the construction of a sewer project.

Three townships, including respondent, entered into an agree-

ment with Muskegon County to facilitate sewer construction, MCL

123.731 et seq. Respondent sought to raise funds for the construc-

tion by creating a special assessment district. Petitioner objected

to respondent’s special assessment at a meeting concerning the

proposed district, but respondent declined to alter the proposed

special assessment. In the tribunal, respondent moved for sum-

mary disposition, contending that petitioner had failed to file a

written protest of the special assessment as required and that its

petition to the tribunal had not been timely filed. The tribunal

denied the motion, and subsequently entered judgment in peti-

tioner’s favor and vacated the special assessment. Respondent

appealed.

The Court of Appeals held:

1. MCL 123.751 et seq. sets forth procedures related to special

assessments. The procedures, however, only apply when a board of

public works has imposed a special assessment under MCL

123.743(1). In this case, respondent imposed the special assess-

ment under MCL 123.743(2) and (3). Thus, petitioner was not

required to file a written objection to the special assessment under

MCL 123.754, and the filing deadline in that statute was also

inapplicable. Because petitioner objected to the special assessment

district and its inclusion on the special assessment roll at the

meeting held on the special assessment in order to invoke the

tribunal’s jurisdiction, respondent was not entitled to summary

disposition as a matter of law.

2. Under MCL 205.735(3), a party must file an appeal with the

tribunal within 35 days of the final decision. Respondent’s board

did not render a final decision at the meeting concerning the

special assessment, but continued to consider the matter before

finally confirming the special assessment roll. Thus, petitioner

328 290 M

ICH

328 [Oct

timely filed its petition within 35 days of respondent’s final

decision, and the tribunal reached the correct result in rejecting

respondent’s motion for summary disposition.

3. A special assessment is valid if (1) the improvement subject

to the assessment confers a benefit on the assessed property and

not just on the community as a whole and (2) the amount of the

special assessment is reasonably proportionate to the benefit

derived from the improvement. A key question is whether the

market value of the property was increased as a result of the

improvement. The tribunal’s ruling vacating the special assess-

ment in this case was supported by competent, material, and

substantial evidence, including expert testimony that the installa-

tion of the sewer line would not increase the property’s value, that

the property did not require a sewer line because petitioner

disposed of its sewage through the use of sewage lagoons, and that

the assessment was not proportionate because the cost of the

sewer line in front of petitioner’s property was only a fraction of

the special assessment imposed on it.

Affirmed.

1. T

AXATION —

PECIAL

SSESSMENTS —

UNICIPAL

PECIAL

SSESSMENTS —

ROCEDURES

The procedures applicable to special assessments imposed by a board

of public works under chapter 2 of 1957 PA 185 do not apply to

special assessments imposed by a municipality other than a county

(MCL 123.743; MCL 123.751 et seq.).

2. T

AXATION —

PECIAL

SSESSMENTS

A special assessment is valid if (1) the improvement subject to the

special assessment confers a benefit on the assessed property and

not just the community as a whole and (2) the amount of the

special assessment is reasonably proportionate to the benefit

derived from the improvement; a key question is whether the

property’s market value increased as a result of the improvement.

Parmenter O’Toole (by John C. Schrier and Adam G.

Zuwerink) for petitioner.

Wease Halloran, PLC (by Joshua M. Wease and

Michele L. Halloran), for respondent.

Before: S

AWYER

,P.J., and F

ITZGERALD

and S

AAD

,JJ.

2010] M

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AAD

, J. Respondent, Dalton Township, appeals an

order of the Michigan Tax Tribunal that vacated a

special assessment respondent had imposed on property

owned by petitioner, Michigan’s Adventure, Inc. Re-

spondent also appeals the tribunal’s order that denied

its motion for summary disposition. For the reasons set

forth in this opinion, we affirm.

I. MOTION FOR SUMMARY DISPOSITION

Respondent argues that the tribunal should have

granted it summary disposition under MCR

2.116(C)(4). Respondent maintains that petitioner

failed to file a written protest of the special assessment

as required by MCL 123.754 and failed to file a timely

appeal to the tribunal.

We review de novo the Tax

Tribunal’s decision regarding a motion for summary

disposition. Signature Villas, LLC v Ann Arbor, 269

Mich App 694, 698; 714 NW2d 392 (2006).

A. WRITTEN PROTEST

In this case, three townships entered into an agree-

ment with Muskegon County to facilitate various sewer

projects. See MCL 123.731 et seq. In such an undertak-

ing, a municipality may raise funds through any of the

following methods: imposing service charges, imposing

special assessments, exacting charges, setting aside

state funds, or setting aside other available money. MCL

Petitioner incorrectly claims that this issue was not preserved. This

issue was preserved because it was raised before and addressed and

decided by the tribunal. Polkton Charter Twp v Pellegrom, 265 Mich App

88, 95; 693 NW2d 170 (2005). Petitioner also incorrectly asserts that

respondent’s appeal is moot on the ground that respondent satisfied the

judgment ordered by the tribunal. However, because neither the tribunal

nor the Court of Appeals granted a stay, respondent was obligated to

comply with the tribunal’s judgment. MCR 7.209(A)(1). The fact of

compliance does not render moot an appeal of the substantive issue.

330 290 M

ICH

328 [Oct

123.742(2). “The governing body shall cause a special

assessment roll to be prepared and the proceedings of

the special assessment roll and the making and collec-

tion of the special assessments shall be in accordance

with the provisions of the statute or charter governing

special assessments in the municipality ....” MCL

123.743(3). Pursuant to MCL 123.731(k), the “govern-

ing body” of a township is “the township board[.]” With

respect to special assessments under MCL 123.743(2),

our Supreme Court has stated that one hearing is

required. Gaut v City of Southfield, 388 Mich 189, 200;

200 NW2d 76 (1972).

As noted, respondent complains that petitioner failed

to file a written objection to the special assessment

under MCL 123.754. Respondent is mistaken because

the procedures under MCL 123.751 et seq. are appli-

cable only if the board of public works imposes an

assessment under MCL 123.743(1). That was not the

case here because respondent imposed a special assess-

ment under MCL 123.743(2) and (3), which provide, in

part:

(2) If a municipality other than a county operating

under this act elects to raise moneys to pay all or any

portion of its share of the cost of a project by assessing the

cost upon benefited lands, its governing body shall do so by

resolution and fix the district for assessment.

(3) The governing body shall cause a special assessment

roll to be prepared and the proceedings of the special

assessment roll and the making and collection of the

special assessments shall be in accordance with the provi-

sions of the statute or charter governing special assess-

ments in the municipality....

Under MCL 123.743(4), any person assessed has the

right to raise an objection to the special assessment

district. Unlike MCL 123.754, MCL 123.743(4) does not

state that the person objecting must submit a written

2010] M

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331

objection in writing or file an appeal before the tribunal

within 30 days. We construe the Legislature’s omissions

as intentional. GMAC LLC v Dep’t of Treasury, 286

Mich App 365, 372; 781 NW2d 310 (2009). MCL 123.754

is not applicable, and therefore petitioner was obliged

only to protest at the hearing held for the purpose of

confirming the special assessment roll. MCL 205.735(2)

(“For a special assessment dispute, the special assess-

ment must be protested at the hearing held for the

purpose of confirming the special assessment roll before

the tribunal acquires jurisdiction of the dispute.”).

Respondent set a meeting for May 30, 2006, to provide

a forum for residents, property owners, and interested

persons to discuss the improvement, the special assess-

ment district, and the special assessment roll. The

record demonstrates that petitioner’s representative

attended the meeting on May 30, 2006, and, according

to both the meeting minutes and the representative’s

affidavit, petitioner’s representative objected to the

special assessment district and the special assessment.

Because petitioner raised an objection to the special

assessment district and its inclusion on the special

assessment roll in order to invoke the tribunal’s juris-

diction in this matter, respondent was not entitled to

summary disposition as a matter of law. MCL

123.743(4); MCL 205.735(2).

B. TIMING OF PETITIONER’S APPEAL TO THE TRIBUNAL

With respect to respondent’s claim that petitioner’s

appeal to the tribunal was untimely, we hold that

respondent’s claim lacks merit. MCL 123.743(4) does

not contain a deadline for filing an appeal before the

tribunal. The filing deadline in MCL 123.754 is inappli-

cable because, as discussed, there was no hearing before

the board of public works. Under MCL 205.735(3), a

332 290 M

ICH

328 [Oct

party must file an appeal with the tribunal within 35

days of the final decision. “Final decision” has not been

defined by our courts in cases involving a township

board’s final decision on a special assessment. Black’s

Law Dictionary (7th ed) equates “final decision” with

“final judgment,” which has the following relevant

definition: “A court’s last action that settles the rights

of the parties and disposes of all issues in controversy,

except for the award of costs (and, sometimes, attor-

ney’s fees) and enforcement of the judgment.” Addition-

ally, under the Administrative Procedures Act, a deci-

sion without further proceedings becomes the final

decision. MCL 24.281(3). Thus, the final decision on the

assessment is the date that triggers the timing for filing

an appeal.

The record reflects that the Dalton Township

board did not render a final decision at the May 30,

2006, meeting on the special assessment. R ather, the

record shows that as of May 30, respondent’s board

continued to consider corrections to the special as-

sessment roll. While respondent’s board ordered and

directed its treasurer to collect the special assess-

ments as identified on the special assessment roll,

respondent’s supervisor later informed certain busi-

ness owners that respondent’s board would be recon-

firming the special assessment roll at its next regular

meeting. There is little indication of what occurred at

the subsequent hearing, other than a discussion of

the sewer-line projects. However, respondent’s super-

visor subsequently informed business owners, includ-

ing petitioner, that their assessment amounts had

been recalculated and that respondent’s board would

be reconfirming the special assessment roll at its next

meeting, on July 10, 2006. Later, respondent’s coun-

sel sent an undated letter to business owners, includ-

ing petitioner, stating that “it was the recommenda-

2010] M

ICHIGAN

’

DVENTURE V

ALTON

333

tion and final determination not to make any

adjustments in the proposed assessments.” Petition-

er’s representative claimed that petitioner received

this letter on July 26, 2006, and no evidence contra-

dicts this assertion. Thus, it appears from the record

that respondent did not confirm the special assess-

ment roll until some time after the July 10, 2006,

regular meeting of respondent’s board. Accordingly,

respondent did not render a final decision regarding

petitioner’s special assessment until some time after

the July 10, 2006, regular meeting. Therefore, peti-

tioner’s August 8, 2006, petition was timely filed

within the 35-day period provided under MCL

205.735(3). R espondent was not entitled to summary

disposition for failure of petitioner to file a timely

appeal to the tribunal.

In so ruling, we note that the tribunal improperly

held that MCL 123.752 and MCL 123.754 applied here.

The tribunal, nonetheless, denied respondent’s motion

for summary disposition. Because the tribunal reached

the right result, we will not disturb the ruling. See

Gleason v Dep’t of Transp, 256 Mich App 1, 3; 662

NW2d 822 (2003).

II. THE TRIBUNAL’S DECISION TO VACATE

THE SPECIAL ASSESSMENT

Respondent claims that the tribunal’s ruling that

vacated the special assessment was not supported by

competent, material, and substantial evidence. Absent

fraud, we review a decision by the tribunal to determine

whether it erred in applying the law or adopted a wrong

legal principle. Ford Motor Co v City of Woodhaven, 475

Mich 425, 438; 716 NW2d 247 (2006). “All factual

findings are final if supported by competent, material,

334 290 M

ICH

328 [Oct

and substantial evidence.” Wayne Co v State Tax Comm,

261 Mich App 174, 186; 682 NW2d 100 (2004).

“[S]pecial assessments are presumed to be valid.”

Kadzban v City of Grandville, 442 Mich 495, 505; 502

NW2d 299 (1993). Accordingly, a municipality’s deci-

sion regarding a special assessment will be upheld

unless “there is a substantial or unreasonable dispro-

portionality between the amount assessed and the value

which accrues to the land as a result of the improve-

ments.” Dixon Rd Group v City of Novi, 426 Mich 390,

403; 395 NW2d 211 (1986). A special assessment will be

deemed valid if it meets two requirements: (1) the

improvement subject to the special assessment must

confer a benefit on the assessed property and not just

the community as a whole and (2) the amount of the

special assessment must be reasonably proportionate to

the benefit derived from the improvement. Kadzban,

442 Mich at 500-502. A key question is whether the

market value of the property was increased as a result

of the improvement. Id. at 501.

Common sense dictates that in order to determine

whether the market value of an assessed property has been

increased as a result of an improvement, the relevant

comparison is not between the market value of the assessed

property after the improvement and the market value of

the assessed property before the improvement, but rather it

is between the market value of the assessed property with

the improvement and the market value of the assessed

property without the improvement. [Ahearn v Bloomfield

Charter Twp, 235 Mich App 486, 496; 597 NW2d 858

(1999).]

The testimony and valuation report of petitioner’s

expert witness constituted competent, material and

substantial evidence on which the tribunal properly

based its decision. Petitioner’s expert opined that the

installation of a sewer line in a rural setting would not

2010] M

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’

DVENTURE V

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335

increase a property’s value, and respondent’s expert did

not refute the findings or conclusions of petitioner’s

expert. Further, the sewer line would not benefit peti-

tioner’s property because the property does not require

a sewer line—petitioner disposes of its sewage by means

of operational sewage lagoons.

Moreover, connecting to

the sewer line would constitute a substantial expense to

petitioner, while its continued maintenance of the sew-

age lagoons is relatively simple, and petitioner’s costs

associated with operating the sewage lagoons appear to

be relatively modest. Evidence also showed that peti-

tioner’s property would not benefit from the sewer line

in the future. Development of the property is not

necessarily limited because of petitioner’s use of sewage

lagoons, but is constricted as a result of the Department

of Environmental Quality’s wetlands protections and

because the soil on the property is not well suited for

development. And although the sewer line may some-

how benefit the property in the future, that is not a

valid basis for finding a benefit to the property justify-

ing an assessment imposed by the township on the

property owner at this time. Oneida Twp v Eaton Co

Drain Comm’r, 198 Mich App 523, 528; 499 NW2d 390

(1993).

Importantly, to protect private property rights,

Michigan law also requires that the total amount of the

assessment must be no greater than what was reason-

ably necessary to cover the cost of the work. Id. at 528

n 5. The special assessment at issue here fails to meet

that requirment because it was undisputed that the

total cost of the sewer line in front of petitioner’s

A sewage lagoon, also called a wastewater stabilization lagoon, is “a

type of treatment system constructed of ponds or basins designed to

receive, hold, and treat sanitary wastewater for a predetermined amount

of time through a combination of physical, biological, and chemical

processes.” MCL 324.3120(11)(o).

336 290 M

ICH

328 [Oct

property would be $60,000 to $80,000, whereas petition-

er’s special assessment was $600,000.

We hold that a reasonable person would accept the

foregoing record evidence as sufficient to support the

tribunal’s ruling. Ultimately, the tribunal’s key finding—

that the property’s value was not enhanced by the sewer-

line improvement—was supported by competent, mate-

rial, and substantial evidence. The sewer line at issue

conferred little or no benefit on petitioner, resulted in no

increase in the value of the land assessed, and conse-

quently furnished no basis for this special assessment. See

Kadzban, 442 Mich at 500-502.

Affirmed.

Respondent also claims that the tribunal failed to set forth “a viable

rendition of factual findings and conclusions of law” necessary for this

Court to engage in appellate review. Respondent failed to include this

argument in its statement of questions presented and, therefore, this

argument was not properly presented for appellate consideration. MCR

7.212(C)(5). Nonetheless, the record reflects that the tribunal complied

with the requirements of MCL 205.751(1) and MCL 24.285, though it did

not separately identify the “findings of fact” and “conclusions of law.”

The tribunal provided a concise statement of facts and conclusions of law

on the record, based its decision on the evidence, and correctly applied

the law.

2010] M

ICHIGAN

’

DVENTURE V

ALTON

337

JENSON v PUSTE

Docket No. 292731. Submitted October 12, 2010, at Detroit. Decided

October 21, 2010, at 9:05 a.m.

Brandi Jenson filed a petition in the Wayne Circuit Court for a

personal protection order (PPO) against Paul Puste after the two

were divorced. The petition was granted, and the PPO was entered

in November 2006. When the PPO expired in November 2007,

Jenson did not renew it. In 2009, Puste moved for entry of a

consent order to vacate the PPO nunc pro tunc andtosealthe

court file. The court, Eric W. Cholack, J., denied the motion after

concluding that MCR 8.119(F)(5) prohibited the court from sealing

a court order or opinion. Puste appealed.

The Court of Appeals held:

The trial court correctly concluded it lacked authority to seal

the order. MCR 8.119(F)(1) provides that a court may not seal

court records unless (1) a party has filed a written motion that

identifies the specific interest to be protected, (2) the court has

made a finding of good cause, in writing or on the record, that

specifies the grounds for the order, and (3) there is no less

restrictive means to adequately protect the specific interest as-

serted. Although the court rule thus allows a court to exercise its

discretion in sealing court records, which include orders such as

the PPO in this case, MCR 8.119(F)(5) specifically prohibits a

court from sealing court orders and opinions. The limited discre-

tionary authority extended to a court deciding a motion to seal

court records under MCR 8.119(F)(1) is not extended to a court

deciding a motion to seal a court order or court opinion under MCR

8.119(F)(5).

Affirmed.

OURTS —

ECORDS —

EALING

OURT

ECORDS —

RDERS

A court may not seal court records unless (1) a party has filed a

written motion that identifies the specific interest to be protected,

(2) the court has made a finding of good cause, in writing or on the

record, that specifies the grounds for the order, and (3) there is no

less restrictive means to adequately protect the specific interest

338 290 M

ICH

338 [Oct

asserted; however, the court is specifically prohibited from sealing

a court order or opinion (MCR 8.119[F] [1], [5]).

Forrest & Smith, P.C. (by Nicole L. Smith), for Paul

Puste.

Before: M

URRAY

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

ELLY

and D

ONOFRIO

JJ.

K. F. K

ELLY

, J. Defendant, Paul Puste, appeals as of

right the trial court’s order denying his motion for

entry of a consent order to vacate a personal protection

order (PPO) nunc pro tunc

and to seal the court file

pursuant to MCR 8.119(F). Resolution of this matter

requires us to determine whether a trial court has the

authority to seal a PPO pursuant to MCR 8.119(F). The

trial court held that it did not, and we agree. We hold

that under the plain language of MCR 8.119(F)(5), a

court is prohibited from sealing court orders and court

opinions. We affirm.

I. BASIC FACTS

The parties to this action were divorced in March

2006 after 23 years of marriage. In November 2006,

plaintiff petitioned for entry of a PPO against defen-

dant. Plaintiff indicated that defendant was repeatedly

calling her and her friends, tapping on her windows at

night, and entering her home without permission.

Plaintiff was fearful that defendant’s actions would

escalate into violence because defendant had recently

lost his job as a hospital administrator and between

January and March 2006 had struck her, knocked her

down, and spat on her. On November 27, 2006, plain-

A judgment or order entered nunc pro tunc is one that is entered on

a day after the time that it should have been entered, as of the earlier

date. See Black’s Law Dictionary (9th ed), pp 920, 1174.

2010] J

ENSON V

USTE

339

tiff’s petition was granted and a PPO was entered

against defendant. This order prohibited defendant

from contacting plaintiff, from following her, and from

otherwise appearing within her sight, among other

prohibited contact. The order remained in effect for a

year, apparently without further incident. Plaintiff did

not seek to renew the PPO after it expired in November

2007.

On April 3, 2009, defendant moved for entry of a

consent order to vacate the PPO nunc pro tunc and to

seal the court file. Defendant contended that, even

though the PPO had been removed from the Michigan

State Police’s Law Enforcement Information Network

(LEIN) system, a background check of defendant

through the court system revealed the existence of the

expired PPO. Defendant alleged that he had been

unable to obtain new employment because his back-

ground check revealed the PPO. Accordingly, defendant

asked the court to find good cause to seal the court file

pursuant to MCR 8.119(F)(1) and enter a consent order

to vacate the PPO nunc pro tunc. Defendant filed a copy

of the consent order with the motion, which both

plaintiff and defendant had signed.

Plaintiff did not appear at the motion hearing on

April 24, 2009. At that hearing, the trial court indicated

that it was “not convinced [that it had] the authority to

seal the file.” The court suggested that it did not have

the power to do so pursuant to MCR 8.119(F)(5) and

that the matter was an inappropriate use of a court’s

power to give legal effect nunc pro tunc. Instead of

denying the motion, the trial court allotted defendant

additional time to brief the issues.

In his brief, defendant argued that he had shown

good cause for sealing the record and that no less

restrictive means existed to protect the interest af-

340 290 M

ICH

338 [Oct

fected, i.e., his ability to find new employment, as

required by MCR 8.119(F)(1). Defendant further ar-

gued that MCR 8.119(F)(5) grants a court discretion to

seal a court order or opinion.

At the next motion

hearing on May 15, 2009, the trial court denied defen-

dant’s motion, reasoning that MCR 8.119(F)(5) does not

grant a court discretion to seal a court order or opinion.

Plaintiff was also not present at this hearing and has

not filed any documents with the trial court or this

Court. Defendant now appeals.

II. STANDARDS OF REVIEW

T o the extent that a trial court has discretion to seal

court records, we review its decision for an abuse of

discretion. See Int’l Union, United Auto, Aerospace &

Agricultural Implement Workers of America v Dorsey,

268 Mich App 313, 329; 708 NW2d 717 (2005), rev’d in

part on other grounds 474 Mich 1097 (2006). A court

abuses its discretion when its decision falls outside the

range of reasonable and principled outcomes. Saffian v

Simmons, 477 Mich 8, 12; 727 NW2d 132 (2007). We

review de novo the trial court’s interpretation of the court

rule. Decker v Rochowiak, 287 Mich App 666, 674; 791

NW2d 507 (2010). The principles that apply to statutory

construction apply equally to our interpretation of court

rules. Green v Ziegelman, 282 Mich App 292, 301; 767

NW2d 660 (2009). Our goal in interpreting a court rule is

to give effect to the intent of the Supreme Court, the

drafter of the rules. Vyletel-Rivard v Rivard, 286 Mich

App 13, 21; 777 NW2d 722 (2009). The first step in doing

so is analyzing the language used because the words

contained in the court rule are the most reliable evidence

After the April hearing, defendant abandoned his argument as it

related to his motion for the court to vacate the PPO nunc pro tunc.He

also did not in this Court brief the issue or provide any supporting law.

2010] J

ENSON V

USTE

341

of the drafters’ intent. Green, 282 Mich App at 301. We

must consider the provision in its entirety and its place

within the context of the rules in order to produce a

harmonious whole. Henry v Dow Chem Co, 484 Mich 483,

495; 772 NW2d 301 (2009). If the rule’s language is plain

and unambiguous, then judicial construction is not per-

mitted and the rule must be applied as written. Vyletel-

Rivard, 286 Mich App at 22. “[W]hen reasonable minds

can differ on the meaning of the language of the rule, then

judicial construction is appropriate.” Wilcoxon v Wayne

Co Neighborhood Legal Servs, 252 Mich App 549, 553;

652 NW2d 851 (2002).

III. ANALYSIS

On appeal, defendant contends that the trial court

erred by denying his motion to seal the PPO-related

court file, including the 2006 PPO. He argues that MCR

8.119 gives the trial court discretion to seal these

documents and that sealing the records is justified upon

his showing of good cause and the fact that no less

restrictive means are available to adequately protect his

interest. We disagree with defendant’s interpretation of

the court rule.

MCR 8.119 governs a court’s maintenance of court

records, the public’s access to those records, and the

circumstances under which a court may seal, or per-

petually prohibit the public’s access to, those records.

The rule “applies to all actions in every trial court,”

MCR 8.119(A), and implicitly recognizes that court

records often pertain to matters in which the public has

an interest. See MCR 8.119(E) (granting public access

to copy records for a “reasonable cost”); MCR

8.119(F)(1) (conditioning a party’s ability to seal court

records on a showing that other less restrictive means

of protecting the interest affected are not available);

342 290 M

ICH

338 [Oct

MCR 8.119(F)(2) (mandating that a court consider the

public’s interest when determining whether good cause

has been shown). The rule broadly defines “court

records” as including “all documents and records of any

nature that are filed with the clerk in connection with

the action.” MCR 8.119(F)(4).

At issue here is subrule (F), MCR 8.119(F), which

establishes a procedure by which a court may seal court

records. Subrule (F), titled “Sealed Records,” provides:

(1) Except as otherwise provided by statute or court rule,

a court may not enter an order that seals courts records,in

whole or in part, in any action or proceeding, unless

(a) a party has filed a written motion that identifies the

specific interest to be protected,

(b) the court has made a finding of good cause, in

writing or on the record, which specifies the grounds for

the order, and

effectively protect the specific interest asserted.

(2) In determining whether good cause has been shown,

the court must consider,

(a) the interests of the parties, including, where there is

an allegation of domestic violence, the safety of the alleged

or potential victim of the domestic violence, and

(b) the interest of the public.

(3) The court must provide any interested person the

opportunity to be heard concerning the sealing of the

records.

(4) For purposes of this rule, “court records” includes all

documents and records of any nature that are filed with the

clerk in connection with the action. Nothing in this rule is

intended to limit the court’s authority to issue protective

orders pursuant to MCR 2.302(C).

[

]

Pursuant to an order issued May 18, 2010, our Supreme Court

amended subrule (F)(4), effective September 1, 2010, to clarify that

2010] J

ENSON V

USTE

343

(5) A court may not seal a court order or opinion,

including an order or opinion that disposes of a motion to

seal the record.

(6) Any person may file a motion to set aside an order

that disposes of a motion to seal the record, or an objection

to entry of a proposed order. MCR 2.119 governs the

proceedings on such a motion or objection. If the court

denies a motion to set aside the order or enters the order

after objection is filed, the moving or objecting person may

file an application for leave to appeal in the same manner

as a party to the action. See MCR 8.116(D).

(7) Whenever the court grants a motion to seal a court

record, in whole or in part, the court must forward a copy

of the order to the Clerk of the Supreme Court and to the

State Court Administrative Office. [MCR 8.119(F) (empha-

sis added).]

Subrule (F)(1) prohibits a court from entering an

order sealing “court records, in whole or in part” unless

a party has filed a motion identifying the interest to be

protected, the court has made a finding of good cause,

and sealing the records is the least restrictive means of

protecting the interest identified. MCR 8.119(F)(1).

Thus, whenever a party moves to seal a “court record,”

the court may not do so unless it finds, in its discretion-

ary capacity, that the party has met the requirements of

subrule (F)(1)(a), (b), and (c).

materials filed with a court that relate to a motion to seal a record are

nonpublic until the court disposes of the motion. 486 Mich lxii, lxiii.

Subrule (F)(4) now provides:

For purposes of this rule, “court records” includes all docu-

ments and records of any nature that are filed with the clerk in

connection with the action. Nothing in this rule is intended to

limit the court’s authority to issue protective orders pursuant to

MCR 2.302(C). Materials that are subject to a motion to seal a

record in whole or in part shall be held under seal pending the

court’s disposition of the motion.

This amendment has no effect on defendant’s appeal.

344 290 M

ICH

338 [Oct

Clearly, the definition of “court records” encom-

passes court orders, like the PPO at issue in this case, as

well as court opinions, which are documents or records

that, in practice, are filed with a court’s clerk in

connection with an action. See MCR 8.119(F)(4). How-

ever, subrule (F)(5) specifically prohibits a court from

sealing court orders and opinions. The subrule states,

“A court may not seal a court order or opinion , including

an order or opinion that disposes of a motion to seal the

record.” MCR 8.119(F)(5) (emphasis added). Signifi-

cantly, this subrule does not give a court the authority

to exercise discretion in deciding whether to seal these

two types of court records, unlike the limited discretion

that subrule (F)(1) allows when a motion involves other

court records. Thus, reading subrules (F)(1) and (F)(5)

together, in light of the definition of “court records,” it

is clear that subrule (F)(1) is an inclusive provision that

applies to all court records, but subrule (F)(5) is an

exclusive provision that excepts from the requirements

of subrule (F)(1) court orders and opinions. In other

words, the limited discretionary authority extended to a

court deciding a motion to seal court records under

subrule (F)(1) is not extended to a court deciding a

motion to seal a court order or court opinion under

subrule (F)(5).

The remaining question is whether the plain lan-

guage of subrule (F)(5) provides a court with any

amount of discretion under circumstances in which a

party moves to seal a court order or opinion. Defendant

is of the view that the words “may not” provide a court

with the discretionary authority to do so. We disagree.

It is true that the term “may” is typically used in a

discretionary fashion. However, under some circum-

stances the words “may not” can mean “cannot” or

“shall not.” See Walters v Nadell, 481 Mich 377, 383;

751 NW2d 431 (2008). And indeed, while the word

2010] J

ENSON V

USTE

345

“may” denotes permissive authority or discretion, the

word “not” is used to express “negation, denial, refusal,

[or] prohibition.” Random House Webster’s College Dic-

tionary (1997). Thus, coupled together, the word “not”

negates the permissive authority alluded to by the word

“may.”

Our understanding of these words as granting a

court no discretionary authority in the context of sub-

rule (F)(5) is further supported by a reading of subrule

(F) as a whole. As noted, while subrule (F)(1) prohibits

a court from sealing “court records,” it provides excep-

tions to this general rule by granting a court some

discretion to seal court records under certain circum-

stances. Conversely, subrule (F)(5) singles out particu-

lar court records—court orders and opinions—and sim-

ply states that they “may not” be sealed; the subrule

does not explicitly grant any discretionary authority

similar to that provided in subrule (F)(1). For us to

declare that court orders and opinions are subject to the

same discretionary authority as other court records

under subrule (F)(1), as defendant would have this

Court do, would make subrule (F)(5) a superfluous

provision and would render it nugatory. Adopting such

an interpretation is contrary to the rules of statutory

interpretation and to the plain language of the provi-

sion. Johnson v White, 261 Mich App 332, 348; 682

NW2d 505 (2004). Our viewpoint is further supported

by the maxim, “[W]here a statute contains a general

provision and a specific provision, the specific provision

controls.” Gebhardt v O’Rourke, 444 Mich 535, 542-543;

510 NW2d 900 (1994). Thus, there is no reason to

impute the discretionary authority granted to a court

ruling on a motion to seal court records under subrule

(F)(1) to a court deciding whether to seal a court order

or opinion under subrule (F)(5). Rather, the Supreme

Court specifically drafted a separate provision that

346 290 M

ICH

338 [Oct

pertains only to court orders and opinions, and the

Court specifically chose not to attach any language

subjecting this prohibition to any exceptions that would

allow a court to exercise discretion.

Lastly, in light of the court rule’s general purpose of

providing public access to court records, the intent of

the rule is contrary to a reading that would grant a

court unbridled discretion in deciding whether to seal a

court order or opinion. Arguably, a court’s orders and

opinions are most responsive to the public’s interest in

significant legal events affecting the community,

and

public access to orders and opinions is imperative to

ensuring the integrity of this state’s judiciary. Accord-

ingly, we hold that a court is prohibited from sealing

court orders and court opinions under MCR

8.119(F)(5), given that subrule’s plain language.

Affirmed.

See In re Contempt of Henry, 282 Mich App 656, 678; 765 NW2d 44

(2009) (“[A] court speaks through its written orders and judg-

ments....”).

2010] J

ENSON V

USTE

347

AMERICAN FEDERATION OF STATE, COUNTY AND

MUNICIPAL EMPLOYEES, COUNCIL 25 v WAYNE COUNTY

Docket No. 290273. Submitted July 13, 2010, at Detroit. Decided October

26, 2010, at 9:00 a.m.

The American Federation of State, County and Municipal Employ-

ees, Council 25, and its affiliated locals 25, 101, 409, 1659, 1862,

2057, 2926, and 3317 brought an action in the Wayne Circuit Court

against Wayne County, seeking, in part, an order to compel the

arbitration of a dispute between the parties regarding retiree

health benefits. The relevant collective-bargaining agreement

(CBA) between the parties expired on July 31, 2008. The dispute

did not arise until September 3, 2008, at the earliest. The arbitra-

tion provision of the CBA provided that it applied to differences

that arose during the term of the agreement. Plaintiffs contended

that the disputed health benefits were vested rights and, therefore,

the right to arbitration provided in the CBA continued after the

CBA expired. The court, Gershwin A. Drain, J., entered an order

compelling arbitration of the dispute. Defendant appealed by leave

granted.

The Court of Appeals held:

1. The plain language of the CBA provided that the dispute

was not arbitrable because it arose after the expiration of the CBA

and not during the agreement’s term.

2. Although the Supreme Court has held that the right to

grievance arbitration survives the expiration of a CBA when the

dispute concerns the kinds of rights that could accrue or vest

during the term of the CBA, this rule does not negate explicit

language in a CBA that contravenes the rule of postexpiration

arbitrability. The CBA here explicitly provided that the right to

arbitration under the CBA was extinguished when the CBA

expired.

3. There is a presumption of arbitrability when a CBA contains

an arbitration clause. Therefore, an order to arbitrate the particu-

lar grievance should not be denied unless it may be said with

positive assurance that the arbitration clause is not susceptible of

an interpretation that covers the asserted dispute. Doubts should

be resolved in favor of the coverage. The arbitration clause in this

348 290 M

ICH

348 [Oct

case was not susceptible of an interpretation that covers this

dispute because it limited the grievance procedure to differences

arising during the term of the CBA and it was undisputed here

that the differences did not arise during that term. Defendant thus

rebutted the presumption of arbitrability. The trial court erred by

ordering arbitration.

Reversed and remanded.

1. L

ABOR

ELATIONS —

RBITRATION —

OLLECTIVE

-B

ARGAINING

GREEMENTS —

XPIRED

GREEMENTS

The right to grievance arbitration survives the expiration of a

collective-bargaining agreement that provides the right to arbitra-

tion when the dispute concerns the kinds of rights that could

accrue or vest during the term of the agreement; this rule,

however, does not negate explicit language in a collective-

bargaining agreement that contravenes the rule, and parties may

explicitly agree that accrued and vested rights and the right to

arbitrate concerning them are extinguished when their collective-

bargaining agreement expires.

2. L

ABOR

ELATIONS —

RBITRATION —

OLLECTIVE

-B

ARGAINING

GREEMENTS —

RESUMPTION OF

RBITRABILITY

There is a presumption of arbitrability when a collective-bargaining

agreement contains an arbitration clause; an order to arbitrate a

particular grievance should not be denied unless it may be said

with positive assurance that the arbitration clause is not suscep-

tible of an interpretation that covers an asserted dispute; doubts

should be resolved in favor of coverage.

Miller Cohen, P.L.C. (by Bruce A. Miller and Robert D.

Fetter), for plaintiffs.

William M. Wolfson, Interim Corporation Counsel,

Bruce A. Campbell, Assistant Corporation Counsel, and

W. Steven Pearson, Principal Attorney, for defendant.

Before: S

HAPIRO

,P.J., and S

AAD

and S

ERVITTO

,JJ.

AAD

, J. Defendant appeals by leave granted a circuit

court order that compelled arbitration of this dispute

over retiree health benefits. For the reasons set forth

2010] AFSCME C

OUNCIL

AYNE

349

below, we reverse and remand for further proceedings.

Defendant argues that it is not required to arbitrate

this dispute because the contract in question provides

for arbitration only of those claims that arose during

the term of the parties’ collective-bargaining agreement

(CBA).

There exists “a strong presumption in favor of

using negotiated grievance procedures for resolving

disputes over the interpretation or application of a

collective bargaining agreement.” AFSCME v Highland

Park Bd of Ed, 457 Mich 74, 84; 577 NW2d 79 (1998).

Notwithstanding this presumption, no duty to arbitrate

a labor dispute arises solely by operation of law. Litton

Fin Printing Div v NLRB, 501 US 190, 200; 111 S Ct

2215; 115 L Ed 2d 177 (1991). “The duty to arbitrate

grievances arises from [the] contractual agreement

between an employer and its employees. Absent such an

agreement, neither party is obliged to submit to binding

arbitration.” Ottawa Co v Jaklinski, 423 Mich 1, 22; 377

NW2d 668 (1985) (opinion by W

ILLIAMS

, C.J.).

Though, contrary to defendant’s arguments, the

plain language of article 10.03 of the CBA does not

The trial court’s order also denied plaintiffs’ motion for a preliminary

injunction, but no party has appealed that ruling.

We review de novo a trial court’s determination whether an issue is

subject to arbitration. Rooyakker & Sitz, PLLC v Plante & Moran, PLLC,

276 Mich App 146, 152; 742 NW2d 409 (2007). We also review de novo as

a question of law issues involving contract interpretation. Kloian v

Domino’s Pizza, LLC, 273 Mich App 449, 452; 733 NW2d 766 (2006).

When interpreting a contract, we examine the contractual language

to determine the intent of the parties. Quality Prod & Concepts Co v

Nagel Precision, Inc, 469 Mich 362, 375; 666 NW2d 251 (2003). This

Court must examine the language of the contract and accord the words

their ordinary and plain meanings if such meanings are apparent. Wilkie

v Auto-Owners Ins Co, 469 Mich 41, 47; 664 NW2d 776 (2003). If the

language is unambiguous, courts must interpret and enforce the contract

as written. Quality Prod, 469 Mich at 375. “[A]n unambiguous contrac-

tual provision is reflective of the parties’ intent as a matter of law.” Id.

350 290 M

ICH

348 [Oct

preclude arbitration in this case, arbitration is plainly

precluded under article 10.01, which provides: “In the

event differences should arise between the Employer

and the Union during the term of this Agreement as to

the interpretation and application of any of its provi-

sions, the parties shall act in good faith to promptly

resolve such differences in accordance with the follow-

ing procedures....”(Emphasis added.) The dispute at

issue is a “difference” that arose between plaintiffs and

defendant regarding the interpretation and application

of article 30.11(B) of the CBA, which allows eligible

employees retiring after December 1, 1997, to select a

medical-benefit plan from available plans offered dur-

ing open enrollment. Thus, if the dispute had arisen

“during the term of [the] Agreement,” article 10.01

would seemingly require that the parties employ the

grievance procedure of the CBA, including arbitration.

However, because the dispute arose after the agreement

expired, plaintiffs are not entitled to arbitration.

It is undisputed that the 2000-2004 CBA expired on

July 31, 2008, when a successor agreement was ex-

ecuted. It is also undisputed that the “difference”

involved in this case did not arise until September 3,

2008, at the earliest, when defendant notified retirees of

the modifications to their prescription-drug benefits

scheduled to take effect on October 1, 2008. Thus, the

dispute arose after the expiration of the 2000-2004 CBA

and not “during the term of [the] Agreement....”

Accordingly, under the plain language of article 10.01,

the dispute is not arbitrable.

Plaintiffs argue that because the retirees’ health

benefits are “vested” rights, the right to arbitration

continued after the expiration of the 2000-2004 CBA. In

Jaklinski, 423 Mich at 22 (opinion by W

ILLIAMS

, C.J.),

our Supreme Court held that “the right to grievance

2010] AFSCME C

OUNCIL

AYNE

351

arbitration survives the expiration of the collective

bargaining agreement when the dispute concerns the

kinds of rights which could accrue or vest during the

term of the contract.”

The Court noted, however, that

this rule does not negate explicit language in a CBA that

contravenes the rule of postexpiration arbitrability. Id.

at 24-25. The Court stated:

Nothing stated here should be interpreted to mean that

the parties to a collective bargaining agreement cannot

explicitly agree to terms which depart from any rule

announced here. They may agree to their own definition of

“accrued” or “vested” rights. They may explicitly agree to

extend beyond contract expiration any substantive or pro-

cedural rights. They may explicitly agree that accrued and

vested rights and the right to arbitrate concerning them

also extinguish at contract termination. [Id.]

As already discussed, the language of article 10.01 reflects

the parties’ agreement that the right to arbitration under

the CBA was extinguished when the CBA expired.

This Court analyzed a similar arbitration provision in

Highland Park v Mich Law Enforcement Union, Team-

sters Local No 129, 148 Mich App 821, 823; 385 NW2d 701

(1986), which involved a CBA between the city of High-

land Park and a union representing patrolmen and corpo-

rals in the city’s police department. The CBA expired on

June 30, 1982. Thereafter, six command officers unexpect-

edly retired and, on August 6, 1982, the mayor appointed

six people to fill the vacancies. The union contended that

the appointments failed to comply with the CBA and

ultimately demanded arbitration. The city asserted that

the dispute was not arbitrable. Id.

See also Litton, 501 US at 205-206 (recognizing that there exists a

presumption of arbitrability when an action taken after the expiration of

a CBA infringes on a right that accrued or vested under the CBA).

352 290 M

ICH

348 [Oct

This Court acknowledged that the right to arbitra-

tion may survive the expiration of a CBA when the

dispute involves accrued or vested rights. Highland

Park, 148 Mich App at 825. However, this Court ruled

that the specific language in the CBA did not provide for

arbitration when the grievance did not arise during the

term of the agreement. The arbitration clause provided

as follows: “ ‘It is mutually agreed that all grievances,

arising under and during the life of the Agreement,

shall be settled in accordance with the procedure herein

provided.’ ” Id. This Court noted that the grievances at

issue were based on events that occurred after the

expiration of the CBA and held that “[a]lthough the

grievances would have been arbitrable had they arisen

during the life of the agreement, under the terms of the

agreement they are not arbitrable after expiration.” Id.

The language of the CBA in Highland Park is similar to

the language in the CBA before us.

Plaintiffs correctly argue that there is a presumption

of arbitrability when a CBA contains an arbitration

clause. See Cleveland Electric Illuminating Co v Utility

Workers Union of America, Local 270, 440 F3d 809, 814

(CA 6, 2006). “An order to arbitrate the particular

grievance should not be denied unless it may be said

with positive assurance that the arbitration clause is

We further note that the language here is different from that at issue

in Litton, 501 US at 205, which the Court characterized as an “unlimited

arbitration clause....”TheclauseinLitton provided: “ ‘Differences that

may arise between the parties hereto regarding this Agreement and any

alleged violations of the Agreement, the construction to be placed on any

clause or clauses of the Agreement shall be determined by arbitration in

the manner hereinafter set forth.’ ” Id. at 194. Notably absent is any

language limiting the right of arbitration to the duration of the agree-

ment. Thus, the Court held that any dispute arising under the agreement

was subject to arbitration even after the expiration of the agreement. Id.

at 205. Again, the CBA at issue here does not contain language similar to

that in Litton.

2010] AFSCME C

OUNCIL

AYNE

353

not susceptible of an interpretation that covers the

asserted dispute. Doubts should be resolved in favor of

coverage.” United Steelworkers of America v Warrior &

Gulf Navigation Co, 363 US 574, 582-583; 80 S Ct 1347;

4 L Ed 2d 1409 (1960). Because the arbitration clause

here limited the grievance procedure to differences

arising “during the term of [the] Agreement,” and it is

undisputed that the differences at issue in this case did

not arise during the term of the 2000-2004 CBA, the

clause is not susceptible of an interpretation that covers

this dispute. Thus, defendant has rebutted the pre-

sumption of arbitrability.

To summarize, because the dispute in this case arose

after the expiration of the 2000-2004 CBA, and the

contractual language limits the right of arbitration to

disputes arising “during the term of [the] Agreement,”

the dispute is not arbitrable and the trial court erred by

ordering arbitration.

Because plaintiffs filed this action simply to enforce

the arbitration provision of the CBA, and because we

hold that this dispute is not arbitrable, we need not

decide defendant’s argument that plaintiffs lack stand-

ing to bring claims on behalf of retirees. Reversed and

remanded for further proceedings consistent with this

opinion. We do not retain jurisdiction.

354 290 M

ICH

348 [Oct

GENERAL MOTORS CORPORATION

v DEPARTMENT OF TREASURY

Docket No. 291947. Submitted August 3, 2010, at Lansing. Decided

October 28, 2010, at 9:00 a.m.

General Motors Corporation (GM) filed suit in the Court of Claims

against the Department of Treasury, seeking refunds of taxes it

paid under the Use Tax Act, MCL 205.91 et seq., for its employees’

use of GM-manufactured “program vehicles” for tax periods from

October 1, 1996, to August 31, 2007. GM argued that the use of

program vehicles was exempt from taxation because the vehicles

were purchased for resale or demonstration purposes under MCL

205.94(1)(c), as interpreted by Betten Auto Ctr, Inc v Dep’t of

Treasury, 272 Mich App 14 (2006), aff’d in part 478 Mich 864

(2007). GM also argued that 2007 PA 103, which amended the Use

Tax Act to obviate the holding of Betten, was improperly enacted

special legislation and that, if applied retroactively as provided in

the amendatory act itself, the amendment would violate GM’s

right to due process. Finally, GM contended that its employees’ use

of program vehicles was exempt from taxation under the act, even

as amended. The court, Rosemarie E. Aquilina, J., agreed and

granted GM partial summary disposition, concluding that the

retroactive effect of 2007 PA 103 violated GM’s right to due

process because an 11-year retroactivity period was contrary to the

holding of United States v Carlton, 512 US 26 (1994), which

permitted only a modest period of retroactivity for economic

legislation. The court also held that 2007 PA 103 violated the

prohibition of special legislation in Const 1963, art 4, § 29, because

it was enacted for the sole purpose of preventing GM from

receiving use tax refunds. Finally, the court ruled that GM’s

program vehicles were exempt from use tax under MCL

205.94(1)(c), as amended by 2007 PA 103, because GM manufac-

tured cars for resale and demonstration purposes and was not

licensed as a new vehicle dealer and, thus, was not limited to the

exemption for only 25 vehicles set forth in MCL 205.94(l)(c)(iii).

The department appealed, and GM cross-appealed.

The Court of Appeals held:

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1. The trial court erred by finding that the retroactive appli-

cation of the legislation violated GM’s due process rights. The Use

Tax Act provides exemptions from use taxation for certain prop-

erty. Before the enactment of 2007 PA 103, property purchased for

resale or demonstration purposes was exempt under MCL

205.94(1)(c). Under Betten, even though automobiles in a dealer’s

inventory were used before being resold, because they had been

purchased for resale and were eventually resold, they were exempt

from use taxation under that exemption. 2007 PA 103 amended

the Use Tax Act to make taxable any use of property purchased for

resale other than as passive inventory and changed the definitions

of some terms in the act. Those amendments were retroactively

made effective beginning September 30, 2002 and for all tax years

that were open under the statute of limitations provided in MCL

205.27a. Under Carlton, retroactive legislation to correct an un-

anticipated revenue loss caused by poor drafting of a law or by a

judicial decision is rationally related to a legitimate legislative

purpose, though the period of retroactivity must be limited by due

process considerations to a modest time frame. 2007 PA 103 did

not exceed the modest retroactive period allowed because it did not

impose a wholly new tax but confirmed a tax assessed and paid for

years. GM did not act in reliance on an expectation that its use of

program vehicles would be exempt from use taxation or have a

vested right to the continuation of a tax statute, and the Legisla-

ture responded promptly to Betten when it amended the statute.

Finally, GM voluntarily waived application of the statute of

limitations.

2. The trial court erred by concluding that 2007 PA 103

violated Const 1963, art 4, § 29, which prohibits enactment of a

special act when a general act can be made applicable. Legislation

may be general in the constitutional sense even if in its application

it affects only one person or place as long as the law is general and

uniform in its operation on all persons in like circumstances.

Nothing in the language of 2007 PA 103 limited its application to

GM only, either prospectively or retrospectively. The evidence

showed that the proposed legislation was enacted in compliance

with all the procedural requirements of Const 1963, art 4, §§ 22,

26, and 33.

3. Although the language of MCL 205.94(1)(c) as amended did

not limit application of the exemption for property purchased for

demonstration purposes to new car dealers, GM did not qualify for

either that exemption or the exemption for property purchased for

resale because it manufactured, rather than purchased, its pro-

gram vehicles. For the same reason, it did not qualify for the

356 290 M

ICH

355 [Oct

exemption that existed before the statute was amended. GM’s use

of program vehicles was for its own research and promotion; it did

not demonstrate vehicles for the purpose of inducing actual retail

sales to customers.

4. Retroactive application of 2007 PA 103 did not violate the

Due Process Clause or the Taking Clause, US Const, Am V. A

government’s exercise of the taxing power does not constitute a

Fifth Amendment taking unless the taxation is so arbitrary that it

is a confiscation of property. 2007 PA 103 furthered a legitimate

state interest, and its retroactive application was rationally related

to that legitimate state interest.

5. The title of 2007 PA 103 satisfied the Title-Object Clause of

Const 1963, art 4, § 24. No law may embrace more than one object,

which must be expressed in the title of the act. The object of a law

is its general purpose or aim. Every detail of an amendatory act

need not be specified in its title as long as the title comprehen-

sively declares the one main general purpose of the act. 2007 PA

103 identified its purpose as amending specific sections of the Use

Tax Act, which is what it did. Nothing more was constitutionally

required.

Reversed and remanded.

1. S

TATUTES —

MENDMENT —

ETROACTIVITY

The retroactive application of 2007 PA 103, which amended provi-

sions of the Use Tax Act, MCL 205.91 et seq., to clarify the

application of that act to exempt property converted to a taxable

use and to remedy any misinterpretation that resulted from the

holding in Betten Auto Ctr v Dep’t of Treasury, 272 Mich App 14

(2006), aff’d in part 478 Mich 864 (2007), does not violate any due

process rights (Const 1963, art 1, § 17).

2. S

TATUTES —

PECIAL

EGISLATION

Const 1963, art 4, § 29 prohibits the enactment of special legislation

if a general act can be made applicable; the fact that a law only

applies to a limited number, however, does not make it special

rather than general legislation; legislation may be general in the

constitutional sense even if in its application it affects only one

person or place as long as the law is general and uniform in its

operation on all persons in like circumstances.

3. T

AXATION —

AX —

XEMPTIONS —

UTOMOBILES —

URCHASED FOR

ESALE OR

EMONSTRATION

URPOSES

The exemptions from the Use Tax Act for property purchased for

demonstration purposes and for property purchased for resale

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require that the property be purchased, not merely manufactured,

to qualify for the exemptions; a purchase requires a transfer of

property for consideration from one person to another; for pur-

poses of the exemptions, a purchase does not include a manufac-

turer’s obtaining property that it manufactures from a subsidiary

of the manufacturer (MCL 205.94[1][c][iii]).

4. S

TATUTES —

ITLE

-O

BJECT

LAUSE —

MENDATORY

CTS

No Michigan law may embrace more than one object, which must be

expressed in the title of the act; the object of a law is its general

purpose or aim; every detail of an act need not be specified in its

title as long as the title comprehensively declares the one main

general purpose of the act and provisions in the body of the act not

directly mentioned in the title are germane, auxiliary, or incidental

to that general purpose; the general object of an amendatory act is

to amend provisions of a statute (Const 1963, art 4, § 24).

Honigman Miller Schwartz and Cohn LLP (by Alan

M. Valade, June Summers Haas, and John D. Pirich)

and Sutherland Asbill & Brennan LLP (by Kent L.

Jones, Daniel H. Schlueter, and Jeffrey N. Starkey) for

plaintiff.

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

Solicitor General, and Bruce C. Johnson, Drew M.

Taylor, and Heidi L. Johnson-Mehney, Assistant Attor-

neys General, for defendant.

Before: M. J. K

ELLY

,P.J., and M

ARKEY

and O

WENS

,JJ.

URIAM

. Defendant, the Department of Treasury

(Treasury), appeals by leave the order of the Court of

Claims granting the motion of plaintiff General Motors

Corporation (GM) for partial summary disposition with

respect to liability on GM’s two claims for refunds of

taxes it paid on its employees’ use of GM-manufactured

“program vehicles” for tax periods from October 1,

1996, to August 31, 2007. GM asserts the use of

program vehicles was exempt from taxation because the

vehicles were “purchased for resale [or] demonstration

358 290 M

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355 [Oct

purposes” under MCL 205.94(1)(c), as interpreted by

Betten Auto Ctr, Inc v Dep’t of Treasury, 272 Mich App

14; 723 NW2d 914 (2006), aff’d in part and vacated in

part 478 Mich 864 (2007). GM also asserts that 2007 PA

103, which amended the Use Tax Act, MCL 205.91 et

seq., to obviate the holding of Betten, was improperly

enacted special legislation and, if applied retroactively,

would violate GM’s constitutional right to due process.

Finally, GM contends that its employees’ use of pro-

gram vehicles was exempt from taxation under the Use

Tax Act, even as amended.

The Court of Claims agreed with GM and ruled that

the retroactive effect of 2007 PA 103 violated GM’s

right to due process because an 11-year period of

retroactive application was contrary to the holding of

United States v Carlton, 512 US 26; 114 S Ct 2018; 129

L Ed 2d 22 (1994), which permitted only a “modest”

period of retroactivity for economic legislation. The

Court of Claims also held that 2007 PA 103, if applied

retroactively, would violate Michigan’s Constitution re-

garding special legislation, Const 1963, art 4, § 29,

because it was enacted for the sole purpose of prevent-

ing GM from receiving use tax refunds. Finally, the

Court of Claims ruled that GM’s program vehicles were

exempt from use tax under MCL 205.94(1)(c), as

amended by 2007 PA 103, because “GM manufactured

cars for resale and demonstration purposes” and “is not

licensed as a new vehicle dealer, and thus, is not limited

to the exemption on only 25 vehicles as set forth in MCL

205.94(l)(c)(iii).” We reverse.

I. LEGAL AND FACTUAL BACKGROUND

In its opinion and order, the Court of Claims summa-

rized the factual background that frames the legal

issues presented on this appeal:

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As part of General Motors’ (“GM”) manufacturing and

reselling business, it tests, evaluates, demonstrates, and

markets its vehicles and vehicles purchased for resale for

[sic] GM subsidiaries. All of GM’s salaried personnel in the

United States in executive, professional, technical, and

other positions, with certain limited exceptions are re-

quired, to drive a GM inventory vehicle in one of the

Vehicle Programs as an integral part of their job assign-

ment. GM’s employee evaluations of driving performance

assist GM in the marketing, testing, research, and design of

vehicles by testing and collecting data from real world

vehicle operation. The vehicles are held in inventory for

resale and later sold to the final consumer. The employee’s

family and household members are prohibited from driving

program vehicles except in very limited circumstances.

During all the years in issue, GM was required by the

Michigan Department of Treasury (“Treasury”), through

audit enforcement, to self-assess and remit use taxes on its

vehicle inventory operated under the Vehicle Program, and

on Marketing Vehicles.

In Betten Auto Center v. Dep’t of Treasury, 478 Mich. 864

(2007), the Michigan Supreme Court affirmed a portion of

a Court of Appeals decision where cars sold by a new car

dealer are exempt from liability for any interim use to

which the dealer puts them, pending resale, under the

resale exemption. While Betten appeals were pending, GM

filed two use tax refund claims. The first was filed on

August 25, 2006, asking for a refund of $65,324,061 for

October 1, 1996—March 26, 2002. Treasury placed the

claim in abeyance. GM filed a second refund claim on

September 14, 2007 seeking $51,433,651 for March 26,

2002—August 31, 2007.

On October 1, 2007, House Bill 4882 became law, as

2007 PA 103, amending the Use Tax Act. Treasury denied

GM’s refund claims on October 25, 2007, basing the denial

on the statutory language of 2007 PA 103, which made

clear GM’s employees’ use of the vehicles made the vehicles

ineligible for the resale exemption. Enacting Section 2 of

2007 PA 103 made the amendments effective retroactively,

beginning September 30, 2002, and for all tax years not

360 290 M

ICH

355 [Oct

barred by the applicable statute of limitations. GM then

brought suit, timely filing its initial Complaint in the Court

of Claims on December 27, 2007. GM now brings this

Motion for Summary Disposition pursuant to MCR

2.116(C)(10), asserting there are no genuine issues with

respect to any material fact, and thus, GM is entitled to

judgment as a matter of law. Treasury asks that GM’s

motion to [sic] be denied and summary disposition be

entered for Treasury pursuant to MCR 2.116(I)(2) and

MCR 2.116(C)(8).

We summarize the legal history regarding the Betten

decision, the Use Tax Act, and its amendment by 2007

PA 103 before addressing the parties’ arguments.

The use tax is designed to complement the tax imposed

under the General Sales Tax Act, MCL 205.51 et seq.

People v Rodriguez, 463 Mich 466, 467 n 1; 620 NW2d 13

(2000). At all pertinent times, the Use T ax Act imposed “a

specific tax for the privilege of using, storing, or consum-

ing tangible personal property in this state at a rate equal

to 6% of the price of the property.” MCL 205.93(1).

Property is exempt from use taxation if it is “sold in this

state on which transaction a tax is paid under the general

sales tax act” and “if the tax was due and paid on the retail

sale to a consumer.” MCL 205.94(1)(a). Thus, the use tax

“applies to certain personal property transactions in

which the seller does not collect a sales tax on behalf of the

state.” Rodriguez, 463 Mich at 467 n 1. Before its 2007

amendment, the Use T ax Act, in general, placed the

ultimate responsibility for payment of its levy on the

ultimate consumer or purchaser of tangible property.

MCL 205.97; World Book, Inc v Dep’t of Treasury, 459

Mich 403, 408, 415-416; 590 NW2d 293 (1999); Betten, 272

Mich App at 19.

At issue in the present case are exemptions from use

taxation for property “purchased for resale, demonstra-

tion purposes,” which before 2007 PA 103 provided:

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(1) The following are exempt from the tax levied under

this act, subject to subsection (2):

***

poses, or lending or leasing to a public or parochial school

offering a course in automobile driving except that a

vehicle purchased by the school shall be certified for

driving education and shall not be reassigned for personal

use by the school’s administrative personnel. For a dealer

selling a new car or truck, exemption for demonstration

purposes shall be determined by the number of new cars

and trucks sold during the current calendar year or the

immediately preceding year without regard to specific

make or style according to the following schedule of 0 to 25,

2 units; 26 to 100, 7 units; 101 to 500, 20 units; 501 or

more, 25 units; but not to exceed 25 cars and trucks in 1

calendar year for demonstration purposes. Property pur-

chased for resale includes promotional merchandise trans-

ferred pursuant to a redemption offer to a person located

outside this state or any packaging material, other than

promotional merchandise, acquired for use in fulfilling a

redemption offer or rebate to a person located outside this

state.

***

(2) The property or services under subsection (1) are

exempt only to the extent that the property or services are

used for the exempt purposes if one is stated in subsection

(1). The exemption is limited to the percentage of exempt

use to total use determined by a reasonable formula or

method approved by the department. [MCL 205.94, as

amended by 2004 PA 172.]

In Betten, the plaintiffs were “all licensed automobile

dealerships selling both new and used automobiles

[that] paid [Treasury] a total of $48,449.74 in use taxes

on vehicles that plaintiffs purchased for resale, allowed

their employees to use, and ultimately resold.” Betten,

362 290 M

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355 [Oct

272 Mich App at 15. The plaintiffs had filed their claims

for refunds after this Court decided Crown Motors of

Charlevoix, Ltd v Dep’t of Treasury, unpublished opin-

ion per curiam of the Court of Appeals, issued Novem-

ber 4, 2003 (Docket No. 240555).

The Crown case also involved a new and used car

dealership and, although the parties agreed that the

plaintiff had purchased all vehicles for resale and in fact

resold them, Treasury asserted that the interim use of

the vehicles was subject to use tax. Relying on Rod-

riguez, 463 Mich 471-472, the Crown Court reasoned

that the exemption for property “purchased for resale”

in MCL 205.94(1)(c) was clear and unambiguous and

that this language “ ‘conveys a legislative intent incon-

sistent with purchase for another purpose.’ ” Crown,

unpub op at 3, quoting Rodriguez, 463 Mich at 472.

Thus, the Crown Court held that the plaintiff was not

liable for use tax because its inventory vehicles were

purchased for resale, and although it was subject to

interim use, under Rodriquez, “property is either pur-

chased for resale or it is not; here, it was indeed

purchased for resale.” Crown, unpub op at 3.

The Crown Court also rejected Treasury’s argument

that the plaintiff’s interim use of the vehicles resulted

in their “conversion” to a taxable use. Treasury relied

on MCL 205.97, which at that time provided, in part,

that “[e]ach consumer storing, using or otherwise con-

suming in this state tangible personal property or

services purchased for or subsequently converted to

such purpose or purposes shall be liable for the tax

imposed by this act....” The Court noted that the

primary purpose of this section was to impose the

economic burden of the use tax on the consumers of

property and that the Legislature had provided no

guidance regarding “how or when property can be

2010] G

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‘converted’ from one purpose to another.” Crown, un-

pub op at 3. The Crown Court also held that 1979 AC, R

205.9 did not apply because it addressed situations in

which property purchased for resale was consumed

rather than resold, whereas in Crown, the parties

agreed that all property was ultimately resold. Crown,

unpub op at 3. Consequently, the Court ruled that

Treasury had not supported its conversion theory with

applicable and binding authority. Id.

Because Crown was unpublished, it lacked binding

precedential authority, MCR 7.215(C)(1), and on this

basis, Treasury denied the Betten plaintiffs’ claim for a

refund. Betten, 272 Mich App at 16. But Treasury

conceded that the plaintiffs were entitled to a demon-

stration exemption for up to 25 vehicles because the

Legislature had adopted a formula for taxing demon-

stration vehicles in excess of that number. Id. at 16-17,

20; see 2002 PA 110.

The Betten Court held that even though the plain-

tiffs’ inventories of vehicles for sale were used in the

interim before resale, “the vehicles in question are

exempt from the imposition of a use tax under the

resale exemption contained in MCL 205.94(1)(c).”

Betten, 272 Mich App at 20. The Betten Court, like the

Crown Court, relied on Rodriguez and the clear and

unambiguous language of MCL 205.94(1)(c). The Court

noted that the parties essentially agreed that the ve-

hicles in question were purchased as inventory for

resale and that the vehicles were, in fact, resold. There-

fore, the Court held “the resale exemption applies to all

the vehicles in question.” Betten, 272 Mich App at 21.

2002 PA 110 amended MCL 205.93(2), effective March 27, 2002. GM

apparently bases the time frames for its refund claims on the effective

date of 2002 PA 110, and the parties signed waivers keeping the statute

of limitations open for claims dating back to October 1, 1996. MCL

205.27a(3)(b).

364 290 M

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355 [Oct

Treasury also asserted in Betten that the interim

employee use of the inventory vehicles resulted in their

“conversion” to a taxable use. In light of the Crown

decision “and for other reasons,” the Betten Court was

not persuaded by Treasury’s conversion argument.

Betten, 272 Mich App at 21-22. One of the “other

reasons” for rejecting the conversion argument, the

Court explained, was that MCL 205.97 imposed liability

for use tax only on a “consumer.” The Court held “that

plaintiffs’ employees’ limited use of the vehicles did not

transform plaintiffs or their employees into ‘consum-

ers’ of the vehicles under MCL 205.97.” Id. at 22. The

Betten Court also utilized a dictionary definition of

“consumer” to buttress this conclusion and reasoned

that our Supreme Court had held that the “ ‘the appro-

priate party to pay a use tax is the consumer, not the

seller.’ ” Id., quoting World Book, 459 Mich at 415-416.

Although concluding the exemption for property

“purchased for resale” applied, the Betten Court also

held that vehicles in excess of 25 were taxable under

MCL 205.93(2), as amended by 2002 PA 110. Betten, 272

Mich App at 23-26. Our Supreme Court subsequently

vacated that part of the decision but affirmed this

Court’s decision regarding MCL 205.94(1)(c). Betten

Auto Ctr, Inc v Dep’t of Treasury, 478 Mich 864 (2007).

This Court decided Betten on August 1, 2006. On

August 25, 2006, GM filed its first claim for a refund of

the use taxes paid on its employees’ use of program

vehicles over the period from October 1, 1996, to March

26, 2002. Treasury held GM’s claim in abeyance pend-

ing appeal of Betten to our Supreme Court, which issued

its order on May 25, 2007. Betten, 478 Mich 864. On

June 7, 2007, HB 4882, which later became 2007 PA

103, was introduced in the Michigan House of Repre-

sentatives. Treasury and the Legislature clearly were

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concerned regarding the impact of the Betten decision

on state revenue. The legislative analysis for HB 4882

stated:

The Department of Treasury estimates that the Betten

Auto Center decision (See Background Information) has a

potential one-time cost of $250.2 million based on refund

claims received from automobile manufacturers and deal-

erships, and projected on-going costs of $29.2 million. To

the extent the bill reduces refund claims and subjects

converted property and services to taxation, the state

would realize cost savings on the order of the above cited

figures. [House Legislative Analysis, HB 4882, August 29,

2007, p 2.]

Our Supreme Court denied reconsideration in Betten

on July 9, 2007. Betten Auto Ctr v Dep’t of Treasury, 478

Mich 938 (2007). On September 14, 2007, GM filed its

second claim for a refund of the use taxes paid on its

employees’ use of program vehicles for the period from

March 28, 2002, to August 31, 2007.

Meanwhile, the Michigan House approved HB 4882

on September 24, 2007, and the Michigan Senate ap-

proved the bill on September 30, 2007. The Governor

signed HB 4882 into law on October 1, 2007, and it

became 2007 PA 103. The Legislature gave the act

retroactive effect by providing as follows:

Enacting section 1. It is the intent of the legislature that

this amendatory act clarify that a person who acquires

tangible personal property for a purpose exempt under the

use tax act, 1937 PA 94, MCL 205.91 to 205.111, who

subsequently converts that property to a use taxable under

the use tax act, 1937 PA 94, MCL 205.91 to 205.111, is

liable for the tax levied under the use tax act, 1937 PA 94,

MCL 205.91 to 205.111.

Enacting section 2. This amendatory act is curative and

intended to prevent any misinterpretation of the ability of

a taxpayer to claim an exemption from the tax levied under

366 290 M

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the use tax act, 1937 PA 94, MCL 205.91 to 205.111, based

on the purchase of tangible personal property or services

for resale that may result from the decision of the Michigan

court of appeals in Betten Auto Center, Inc v Department

of Treasury, No. 265976, as affirmed by the Michigan

Supreme Court. This amendatory act is retroactive and is

effective beginning September 30, 2002 and for all tax

years that are open under the statute of limitations pro-

vided in section 27a of 1941 PA 122, MCL 205.27a. [2007

PA 103.]

2007 PA 103 thus amended the Use Tax Act to

“clarify” that essentially any use of property purchased

for resale other than as passive inventory results in

conversion of the property such that the use is taxable.

2007 PA 103 did this by amending several provisions. It

amended § 7 of the Use Tax Act by striking the word

“consumer” and inserting the word “person” so that

“[e]ach person storing, using, or consuming in this state

tangible personal property or services is liable for the

tax levied under this act....”MCL205.97(1) (italicized

words added by 2007 PA 103). The amendments also

expanded the definition of “use” to provide that “[c]on-

verting tangible personal property acquired for a use

exempt from the tax levied under this act to a use not

exempt from the tax levied under this act is a taxable

use.” MCL 205.92(b). In addition, MCL 205.97(2) was

added to provide: “A person who acquires tangible

personal property or services for any tax-exempt use

who subsequently converts the tangible personal prop-

erty or service to a taxable use, including an interim

taxable use, is liable for the tax levied under this act.”

Further, the definition of “purchase” was amended to

include “converting tangible personal property ac-

quired for a use exempt from the tax levied under this

act to a use not exempt from the tax levied under this

act.” MCL 205.92(e).

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The pertinent section imposing on “every person in

this state a specific tax for the privilege of using,

storing, or consuming tangible personal property in this

state” was amended by 2007 PA 103 to add that the “act

applies to a person who acquires tangible personal

property or services that are subject to the tax levied

under this act for any tax-exempt use who subsequently

converts the tangible personal property or service to a

taxable use, including an interim taxable use.” MCL

205.93(1). The 2007 amendment also defined the word

“convert” to mean

putting a service or tangible personal property acquired for

a use exempt from the tax levied under this act at the time

of acquisition to a use that is not exempt from the tax

levied under this act, whether the use is in whole or in part,

or permanent or not permanent. [MCL 205.92(q).]

The word “consumer” was amended to include “[a]

person who has converted tangible personal property or

services acquired for storage, use, or consumption in

this state that is exempt from the tax levied under this

act to storage, use, or consumption in this state that is

not exempt from the tax levied under this act.” MCL

205.92(g)(ii). 2007 PA 103, however, did not disturb the

holdings of Crown and Betten with respect to new

vehicle dealers, providing in MCL 205.92(q) that “a

motor vehicle purchased for resale by a new vehicle

dealer licensed under section 248(8)(a) of the Michigan

vehicle code, 1949 PA 300, MCL 257.248, and not titled

in the name of the dealer shall not be considered to be

converted before sale or lease by that dealer.”

On the parties’ motions for summary disposition, the

Court of Claims ruled in favor of GM, holding that

giving retroactive effect to 2007 PA 103 would violate

GM’s right to due process, that the act violated Michi-

gan’s constitutional provision regarding special legisla-

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tion, Const 1963, art 4, § 29, and that GM’s program

vehicles were exempt from use tax under MCL

205.94(1)(c), as amended by 2007 PA 103. This Court

granted Treasury’s application for leave to appeal, and

GM asserts in a timely cross-appeal several alternative

grounds to affirm the Court of Claims.

II. STANDARD OF REVIEW

Claims that a statute is unconstitutional, as well as

statutory interpretation, are questions of law this Court

reviews de novo. Dep’t of Transp v Tomkins, 481 Mich

184, 190; 749 NW2d 716 (2008). A trial court’s decision

to grant a motion for summary disposition is also

reviewed de novo. Id.

Statutes are presumed to be constitutional, and this

presumption is especially strong with respect to tax

legislation. Caterpillar, Inc v Dep’t of Treasury, 440

Mich 400, 413; 488 NW2d 182 (1992); Ammex, Inc v

Dep’t of Treasury, 273 Mich App 623, 635; 732 NW2d

116 (2007). The party challenging the constitutionality

of the statute has the burden of proving the law’s

invalidity. People v Sadows, 283 Mich App 65, 67; 768

NW2d 93 (2009). “The rules of statutory construction

provide that a clear and unambiguous statute is not

subject to judicial construction or interpretation.”

GMAC LLC v Dep’t of Treasury, 286 Mich App 365, 372;

781 NW2d 310 (2009). In other words, “when a statute

plainly and unambiguously expresses the legislative

intent, the role of the court is limited to applying the

terms of the statute to the circumstances in a particular

case.” Id. A party claiming an exemption from a tax has

the burden of establishing that it applies:

Tax exemptions are disfavored, and the burden of prov-

ing an entitlement to an exemption is on the party claiming

the right to the exemption. Tax exemptions are in deroga-

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tion of the principle that all shall bear a proportionate

share of the tax burden, and therefore, a tax exemption

shall be strictly construed. [Id. at 374-375 (citations omit-

ted).]

Furthermore,

“ ‘if an exemption is found to exist, it must not be enlarged

by construction, since the reasonable presumption is that

the State has granted in express terms all it intended to

grant at all, and that unless the privilege is limited to the

very terms of the statute the favor would be extended

beyond what was meant.’ ” [Id. at 375, quoting Detroit v

Detroit Commercial College, 322 Mich 142, 148-149; 33

NW2d 737 (1948), quoting 2 Cooley, Taxation (4th ed),

§ 672, p 1403.]

III. DUE PROCESS

“The Fourteenth Amendment to the United States

Constitution and Const 1963, art 1, § 17 guarantee that

no state shall deprive any person of ‘life, liberty or

property, without due process of law.’ ” People v Sierb,

456 Mich 519, 522; 581 NW2d 219 (1998). Although

textually only providing procedural protections, the

Due Process Clause has a substantive component that

protects individual liberty and property interests from

arbitrary government actions. Id. at 522-523; Cummins

v Robinson Twp, 283 Mich App 677, 700-701; 770 NW2d

421 (2009). But to be protected by the Due Process

Clause, a property interest must be a vested right.

Detroit v Walker, 445 Mich 682, 698-699; 520 NW2d 135

(1994); Sherwin v State Hwy Comm’r, 364 Mich 188,

200; 111 NW2d 56 (1961). A vested right is “an interest

that the government is compelled to recognize and

protect of which the holder could not be deprived

without injustice.” Walker, 445 Mich at 699. More

specifically, a vested right

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“ ‘is something more than such a mere expectation as may

be based upon an anticipated continuance of the present

general laws; it must have become a title, legal or equitable,

to the present or future enjoyment of property, or to the

present or future enforcement of a demand, or a legal

exemption from a demand made by another.’ ” [GMAC, 286

Mich App at 377, quoting Cusick v Feldpausch, 259 Mich

349, 352; 243 NW 226 (1932), quoting 2 Cooley, Constitu-

tional Limitations (8th ed), p 749.]

GM’s claim for a refund of use taxes it paid was not

a vested right but rather a mere expectation that its

claim might succeed in light of the Betten decision.

GM’s claim rests on the theory that it held a vested

chose in action—its refund claim—and relies on cases

involving rights of action for damages to property or

personal injury. But this case involves a tax—not a right

of action—and the United States Supreme Court has

opined that

“[t]axation is neither a penalty imposed on the taxpayer

nor a liability which he assumes by contract. It is but a way

of apportioning the cost of government among those who in

some measure are privileged to enjoy its benefits and must

bear its burdens. Since no citizen enjoys immunity from

that burden, its retroactive imposition does not necessarily

infringe due process....”[Carlton, 512 US at 33, quoting

Welch v Henry, 305 US 134, 146-147; 59 S Ct 121; 83 L Ed

87 (1938).]

GM, as a taxpayer, does not have a vested right in a tax

statute or in the continuance of any tax law. Walker, 445

Mich at 703; GMAC, 286 Mich App at 377-778.

But we also reject Treasury’s argument that GM’s

claim regarding retroactivity is a “red herring” because

2007 PA 103 is curative legislation merely bringing

clarity to existing law. “An amendment may apply

retroactively where the Legislature enacts an amend-

ment to clarify an existing statute and to resolve a

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controversy regarding its meaning.” Mtg Electronic Reg-

istration Sys, Inc v Pickrell, 271 Mich App 119, 126; 721

NW2d 276 (2006). An amendment that affects substantive

rights generally will not fall within this rule. See Brewer v

A D Transp Express, Inc, 486 Mich 50, 57; 782 NW2d 475

(2010). Although 2007 PA 103 clarified some parts of the

Use Tax Act, it also codified Treasury’s theory regarding

the conversion of property held for a tax-exempt use to a

taxable use that this Court had held was not part of the

statute before its amendment. That is, because the

amendment affected substantive rights or obligations, it

cannot come within the rule permitting retroactive “re-

medial” amendments.

On the other hand, we reject as well GM’s assertion

that the Legislature acted illegitimately when it enacted

2007 PA 103 for the purpose of reversing a judicial

decision and thus failed to satisfy the first Carlton due

process criterion for permissible retroactive legislation:

specifically, that the Legislature’s “purpose in enacting

the amendment was neither illegitimate nor arbitrary.”

Carlton, 512 US at 32. This is a negative statement of the

substantive due process requirement that legislation that

does not affect a suspect classification or involve the

deprivation of a fundamental right must merely bear a

reasonable relation to a permissible legislative objective.

Trentadue v Buckler Automatic Lawn Sprinkler Co, 479

Mich 378, 404; 738 NW2d 664 (2007). Retroactive eco-

nomic legislation must satisfy this rational basis test both

for its prospective as well as its retrospective application.

See Carlton, 512 US at 30-31.

GM’s claim that the Legislature acted illegitimately

is without merit.

While the Legislature may not re-

Indeed, GM waived this claim by not raising it below. The Court of

Claims noted that “[GM] does not claim the legislature’s purpose” in

enacting 2007 PA 103 “was illegitimate or arbitrary.”

372 290 M

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verse a judicial decision or repeal a final judgment,

Wylie v Grand Rapids City Comm, 293 Mich 571, 582;

292 NW 668 (1940), that did not occur here. The Betten

decision held the exemption for property “purchased for

resale” applied to automobile dealers despite interim

business use before resale. But 2007 PA 103 specifically

exempted licensed new vehicle dealers from its conver-

sion net. MCL 205.92(q). The amendment also added

that the “purchased for resale” exemption includes

“[m]otor vehicles purchased for resale purposes by a

new vehicle dealer licensed under section 248(8)(a) of

the Michigan vehicle code, 1949 PA 300, MCL 257.248.”

MCL 205.94(1)(c)(iv). Consequently, 2007 PA 103 did

not “reverse a judicial decision or repeal [a] final

judgment....”Wylie, 293 Mich at 582. Moreover, it is

legitimate for the Legislature to amend a law that it

believes the judiciary has wrongly interpreted. See Gen

Motors v Romein, 503 US 181, 191; 112 S Ct 1105; 117

L Ed 2d 328 (1992); GMAC, 286 Mich App at 380 (“[I]t

is the province of the Legislature to acquiesce in the

judicial interpretation of a statute or to amend the

legislation to obviate a judicial interpretation.”).

A legislature’s action to mend a leak in the public

treasury or tax revenue—whether created by poor

drafting of legislation in the first instance or by a

judicial decision—with retroactive legislation has al-

most universally been recognized as “rationally related

to a legitimate legislative purpose.” Carlton, 512 US at

35. But the Court of Claims here found that 2007 PA

103 violated due process on the basis that the Carlton

majority held that substantive due process places tem-

poral limits on the reach of retroactive tax legislation

and that 2007 PA 103 exceeded those limits. The

Carlton majority upheld under the Due Process Clause

the retroactive legislation in that case because “[f]irst,

Congress’ purpose in enacting the amendment was

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neither illegitimate nor arbitrary.” Carlton, 512 US at

32. Specifically, the Court found that “Congress acted to

correct what it reasonably viewed as a mistake” in the

original legislation “that would have created a signifi-

cant and unanticipated revenue loss.” Id. Further, there

was nothing to indicate that Congress deliberately

sought to induce taxable transactions. Id. The Carlton

majority also opined that Congress imposed only a

“modest” period of retroactivity:

Second, Congress acted promptly and established only a

modest period of retroactivity....Congress “almost with-

out exception” has given general revenue statutes effective

dates prior to the dates of actual enactment. This “custom-

ary congressional practice” generally has been “confined to

short and limited periods required by the practicalities of

producing national legislation.”...InWelch v Henry, 305

US 134 (1938), the Court upheld a Wisconsin income tax

adopted in 1935 on dividends received in 1933. The Court

stated that the “ ‘recent transactions’ ” to which a tax law

may be retroactively applied “must be taken to include the

receipt of income during the year of the legislative session

preceding that of its enactment.” Id., at 150. Here, the

actual retroactive effect of the 1987 amendment extended

for a period only slightly greater than one year. Moreover,

the amendment was proposed by the IRS in January 1987

and by Congress in February 1987, within a few months of

[26 USC] 2057’s original enactment. [Id. at 32-33.]

Additionally, in distinguishing cases from a different

era, the Carlton majority opined that the retroactive

legislation “at issue here certainly is not properly

characterized as a ‘wholly new tax,’ and its period of

retroactive effect is limited.” Id. at 34. But in summa-

rizing its holding, the Court did not specifically include

a temporal “modesty” requirement: “Because we con-

clude that retroactive application of the 1987 amend-

ment to § 2057 is rationally related to a legitimate

legislative purpose, we conclude that the amendment as

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applied to Carlton’s 1986 transactions is consistent

with the Due Process Clause.” Id. at 35.

We agree that a majority of justices on the United

States Supreme Court would hold that the Due Process

Clause imposes some limit on the retroactive reach of

tax legislation. The Kentucky Supreme Court in Miller

v Johnson Controls, Inc, 296 SW3d 392 (Ky, 2010),

attempted to synthesize the views of the justices in

Carlton and concluded that the modesty requirement is

part of the rational basis test with its length determined

on a case-by-case basis considering the totality of the

facts and circumstances. The Kentucky Supreme Court

opined:

Retroactive application of a statute need only be (1)

supported by a legitimate legislative purpose (2) furthered

by rational means, which includes an appropriate modesty

requirement. This requires analysis of the facts and cir-

cumstances of each case, rather than applying a specified

modesty period. The pertinent question is whether the

period of retroactivity is one that makes sense in support-

ing the legitimate governmental purpose (rationally re-

lated).

***

Clearly, eight of the nine justices viewed what may

“rationally further” a legitimate governmental interest as

being broader than the one year that only Justice

O’Connor would impose as a “modesty” measure. Thus

what is “modest” or acceptable for due process purposes

depends on the facts of the case, including notice, settled

expectations, detrimental reliance, etc. [Id. at 399.]

Balancing the government’s interest in retroactive

application of a statute against that of the taxpayer’s

interest in finality must be added to this mix of circum-

stances to determine whether the limit of modest ret-

roactivity is reached. Justice O’Connor in her concur-

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ring opinion in Carlton noted that no case had held that

the government has “unlimited power to ‘readjust

rights and burdens... and upset otherwise settled

expectations.’ ” Carlton, 512 US at 37 (O’Connor, J.,

concurring) (citation omitted). In Justice O’Connor’s

view, “The governmental interest in revising the tax

laws must at some point give way to the taxpayer’s

interest in finality and repose.” Id. at 37-38.

The totality of circumstances in this case establishes

that the retroactive application of 2007 PA 103 does not

exceed the modesty limitation of the Due Process

Clause. First, the amendment does not reach back in

time to assess a “wholly new tax” on long-concluded

transactions. Rather, it seeks to confirm a tax that had

been assessed by Treasury and paid by taxpayers for

many years. Indeed, GM never sought to contest its

liability for the use taxes it paid for years until after the

Betten decision, which extended a hope that such a

refund claim might be successful. Second, GM did not

act in reliance on an expectation its activity would not

be taxed. Instead, GM utilized some of its manufactured

vehicles for its own business purposes with notice that

Treasury had asserted that such activity was taxable. In

short, GM did not rely on the preamendment version of

the Use Tax Act to its detriment. Third, the Legislature

acted promptly in response to the Betten decision to

correct what might have resulted in a significant loss of

previously collected revenue. Fourth, the nominal pe-

riod to which the amendment retrospectively applies—

five years—cannot be said to extend beyond the taxpay-

ers’ interest in finality and repose because the period of

retroactivity is consistent with the applicable statute of

limitations. Moreover, although 2007 PA 103 applies in

the case of GM beyond the statute of limitations’

general rule, it does so only because GM voluntarily

waived application the statute of limitations. By its

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waiving application of the statute of limitations, we

conclude that GM has also waived any interest it may

have had under the Due Process Clause to “finality and

repose.” Carlton, 512 US at 37-38 (O’Connor, J

concur-

ring). Finally, the period of retroactive application for

2007 PA 103 is comparable to the time frames of other

retroactive legislation that this Court, other state

courts, and federal courts have held were within the

modesty limits of the Due Process Clause.

In summary, GM has not overcome the presumption

that 2007 PA 103 is constitutional, and the Court of

Claims erred by concluding otherwise. 2007 PA 103 does

not violate due process because the act “is rationally

related to a legitimate legislative purpose”—the limit-

See GMAC, 286 Mich App at 378 (affirming a seven-year retroactive

application of an amendment to MCL 205.54i); Enterprise Leasing Co of

Phoenix v Arizona Dep’t of Revenue, 221 Ariz 123; 211 P 3d 1 (Ariz App,

2008) (approving a six-year period of retroactivity amending pollution

control tax credit excluding property attached to motor vehicles); King v

Campbell Co, 217 SW3d 862 (Ky App, 2006) (upholding 2005 legislation

denying refunds of county taxes overpaid since 1986 under a 2004 judicial

decision); Miller, 296 SW3d 392 (affirming legislation adopted in 2000

that retroactively ratified a 1988 tax agency policy barring related

business entities from filing unified returns, which a 1994 judicial

decision had ruled violated Kentucky law); Zaber v City of Dubuque, 789

NW2d 634 (Iowa, 2010) (approving legislation ratifying city-imposed

cable television franchise fees retroactively for 5

/2 years after a court had

ruled the fees illegal); Canisius College v United States, 799 F2d 18 (CA

2, 1986) (approving tax legislation with four-year retroactivity that

ratified an IRS revenue ruling of doubtful validity); Licari v Internal

Revenue Comm’r, 946 F2d 690, 695 (CA 9, 1991) (approving the four-year

retroactive application of an enhanced tax penalty approved as “a

rational means by which to guard the public fisc by reimbursing the

government for heavy burden of investigative and prosecutorial costs

incident to ferreting out tax underpayment”); Tate & Lyle, Inc v Internal

Revenue Serv Comm’r, 87 F3d 99 (CA 3, 1996) (upholding six-year

retroactive application of a tax regulation requiring the taxpayer to use a

cash method of accounting); Montana Rail Link, Inc v United States,76

F3d 991 (CA 9, 1996) (approving four-year retroactive application of a tax

statute).

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ing of an interpretation of the Use Tax Act that might

have caused significant and unanticipated loss of tax

revenue that had been collected in good faith. See

Carlton, 512 US at 32, 35. To the extent the Due

Process Clause limits the reach of retroactive legislation

to only a modest time frame, that limitation was not

exceeded here. 2007 PA 103 does not readjust rights and

burdens or upset settled expectations such that GM’s

“interest in finality and repose” exceeds the state’s

interest in revising the Use Tax Act to protect the

precarious public treasury from refund claims that are

as much as 11 years old. GM does not have a protected,

vested right to the continuation of a tax statute, and the

period of retroactivity here does not exceed the limits of

the Due Process Clause. The Court of Claims’ ruling to

the contrary must be reversed.

IV. SPECIAL LEGISLATION

Treasury argues that the Court of Claims clearly

erred by ruling that 2007 PA 103 violates the Michigan

constitutional provision restricting special legislation.

We agree.

Const 1963, art 4, § 29 provides:

The legislature shall pass no local or special act in any

case where a general act can be made applicable, and

whether a general act can be made applicable shall be a

judicial question. No local or special act shall take effect

until approved by two-thirds of the members elected to and

serving in each house and by a majority of the electors

voting thereon in the district affected. Any act repealing

local or special acts shall require only a majority of the

members elected to and serving in each house and shall not

require submission to the electors of such district.

“ ‘The mere fact that a law only applies... to a

limited number does not make it special instead of

378 290 M

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general. It may be general within the constitutional

sense and yet, in its application, only affect one person

or one place.’ ” Rohan v Detroit Racing Ass’n, 314 Mich

326, 349; 22 NW2d 433 (1946) (citation omitted). If a

law is general and uniform in its operation upon all

persons in like circumstances, it is general in the

constitutional sense. Id at 350.

In this case, no language in 2007 PA 103 limits its

application to only GM. Further, GM concedes that in

its prospective application the act is “clearly general

legislation applicable to all taxpayers.” Yet there is

nothing in the retrospective application of the law that

changes its general character. While it is clear that 2007

PA 103 was intended to preclude large refund claims,

particularly by automobile manufacturers, the lan-

guage used by the statute is general and has broad

application. The only evidence that GM asserts sup-

ports its claim is Treasury’s revised estimates of lost

revenue when it learned that other automobile manu-

facturers (Ford Motor Company and DaimlerChrysler

Corporation) did not intend to seek use tax refunds in

the wake of the Betten decision. However, the fact that

other vehicle manufacturers decided not to seek a use

tax refund does mean that the act did not apply to Ford

and DaimlerChrysler. Instead, other manufacturers

might have reasoned that the Legislature would act

promptly to adopt legislation “to obviate a judicial

interpretation.” GMAC, 286 Mich App at 380. If so,

those taxpayers might have rationally decided to invest

resources on manufacturing and marketing automo-

biles rather than pursuing a likely futile refund claim

for use taxes that had been paid and accounted for in

prior years. In sum, nothing on the face of 2007 PA 103,

or any evidence presented below, supports the conclu-

sion that 2007 PA 103 is special legislation governed by

Const 1963, art 4, § 29.

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The Court of Claims’ reasoning regarding the lack of

legislative committee hearings, which GM does not

appear to adopt, also does not support the court’s

ruling. The Court of Claims cited no legal authority for

concluding that the lack of committee hearings was a

basis for holding that 2007 PA 103 is special legislation.

As Treasury argues, GM participated in the political

process during the Legislature’s deliberative process,

and 2007 PA 103 was adopted in compliance with all

requisite procedural requirements. Although no com-

mittee hearings were held on HB 4882 before its adop-

tion, it became law because it satisfied the constitu-

tional requirements of bicameralism and presentment.

Const 1963, art 4, §§ 22, 26, and 33. The lack of com-

mittee hearings is irrelevant. “[T]he Journals of the

House and Senate are conclusive evidence of those

bodies’ proceedings, and when no evidence to the con-

trary appears in the journal, [courts] will presume the

propriety of those proceedings.” Michigan Taxpayers

United, Inc v Governor, 236 Mich App 372, 379; 600

NW2d 401 (1999). Nothing here rebuts the presump-

tion of propriety regarding the enactment of 2007 PA

103. The Court of Claims must be reversed on this

issue.

V. STATUTORY CONSTRUCTION

Treasury argues that the Court of Claims abused its

discretion by allowing GM to amend its complaint and

erred by ruling that GM qualified for an exemption

from use taxes for demonstration purposes.

Treasury

It is not entirely clear whether the Court of Claims based this ruling

on the statute as amended by 2007 PA 103 or as the statute existed before

the amendment. Because the court cited MCL 205.94(1)(c)(iii), which

reflects the changes in the structure of subdivision (c) made by 2007 PA

103, we assume that the court based its ruling on the amended statute.

380 290 M

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355 [Oct

also asserts the exemption provided by MCL

205.94(1)(c)(iii) is only available for new car dealers. We

disagree.

Treasury has not established that the Court of

Claims abused its discretion by allowing GM to amend

its complaint to add a claim that its program vehicles

were also exempt under the “demonstration purposes”

exemption. While the amendment asserted a new legal

theory, it did not raise a new claim and Treasury has not

shown that granting the amendment prejudiced it.

Furthermore, nothing in the first clause of MCL

205.94(1)(c)(iii) limits its application to new car dealers as

Treasury asserts. The plain language of the amended

statute provides in part: “The following are exempt from

the tax levied under this act...:Property purchased for

demonstration purposes.” MCL 205.94(1)(c)(iii). Al-

though the subparagraph places limits on the exemp-

tion for new vehicle dealers, the “demonstration

purposes” exemption is not itself limited to new car

dealers. Nevertheless, for the reasons set forth later,

we conclude as a matter of statutory construction

that GM does not qualify for either the “purchased

for resale” or “purchased for demonstration pur-

poses” exemption because it manufactured rather

than purchased its program vehicles and because its

program vehicles were not used for demonstration

purposes at the retail sales level.

Although GM asserts it clearly was entitled to an

exemption from use taxation under the preamendment

version of MCL 205.94(1)(c) for “[p]roperty purchased

for resale, demonstration purposes,” its actions in not

filing a claim for a refund until after this Court decided

Betten belie this contention. We agree with Treasury

that clear differences exist between GM and the Betten

plaintiffs. Most notably, GM manufactures new ve-

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hicles, marketing them through retailers like the Betten

plaintiffs, who were new and used vehicle dealers. The

Betten plaintiffs “purchased for resale” the vehicles in

their inventory, and the exemption of MCL 205.94(1)(c)

remained despite other interim business use before a

resale occurred. Betten, 272 Mich App at 20, 23. This

Court rejected Treasury’s argument that the Betten plain-

tiffs’ vehicles were “converted” to a taxable use by apply-

ing dictionary definitions to the word “consumer” in MCL

205.97, Betten, 272 Mich App at 22, but our Supreme

Court criticized using a dictionary when the Use Tax Act

provided its own definitions, Betten, 478 Mich App at 864.

Thus, the Use Tax Act’s own definitions must be applied

if available. Before the enactment of 2007 PA 103, the Use

T ax Act defined “purchase” as follows:

“Purchase” means to acquire for a consideration,

whether the acquisition is effected by a transfer of title, of

possession, or of both, or a license to use or consume;

whether the transfer is absolute or conditional, and by

whatever means the transfer is effected; and whether

consideration is a price or rental in money, or by way of

exchange or barter. [MCL 205.92(e), as amended by 2004

PA 172 (emphasis added).]

As defined by MCL 205.92(e), “purchase” explicitly

requires an acquisition of property for consideration of

something of value—money or other property. Also,

“purchase” explicitly requires a transfer of property,

either of title or possession, or a license to use or

consume, which implicitly must occur from one person

to another. While GM might have acquired the materi-

als and labor necessary to assemble its vehicles, it did

not acquire them for consideration in a transfer from

another person. The Court of Claims noted that “GM

manufactured cars for resale and demonstration pur-

poses through its Vehicle Programs in question.” (Em-

phasis added.)

382 290 M

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355 [Oct

GM admits that it manufactured the majority of its

program vehicles but that some were obtained from its

subsidiaries. We conclude that GM’s acquisition of

vehicles from its subsidiaries does not come within the

definition of “purchase” under MCL 205.92(e) because

a transfer for consideration is explicitly required by

subsection (e), which implicitly requires a transfer from

one person to another. The use tax applies to a “per-

son,” MCL 205.93(1), and “person” is defined to include

any “firm, partnership, joint venture, association ,...

company,...oranyother group or combination acting

as a unit, and the plural as well as the singular number,

unless the intention to give a more limited meaning is

disclosed by the context.” MCL 205.92(a). GM and its

subsidiaries “acting as a unit” constitute a “person”

under the Use Tax Act, and that person manufactures

vehicles that are marketed to the public through retail

dealers. We hold that GM cannot “purchase” vehicles

from itself (its subsidiaries) to qualify for a use tax

exemption under MCL 205.94(1)(c).

The Legislature in adopting the Use Tax Act clearly

recognized the distinction between the words “pur-

chase” and “manufacture.” In the very next subdivision

after defining “purchase,” MCL 205.92(f) defines the

word “price,” in part, by defining “manufacture.” In

relation to defining “price” for tangible personal prop-

erty affixed to real estate, MCL 205.92(f) provided

before amendment by 2007 PA 103: “For purposes of

this subdivision, ‘manufacture’ means to convert or

condition tangible personal property by changing the

form, composition, quality, combination, or character of

the property....” Thus, we find that GM did not

“purchase” its inventory of vehicles as “purchase” is

defined by the Use Tax Act; it “manufactured” them.

Consequently, GM did not have a vested right to a

refund of use tax paid under the “purchased for resale”

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exemption as it existed before the enactment of 2007 PA

103. In addition, this same analysis applies to the

“purchased for demonstration purposes” exemption as

it existed before the enactment of 2007 PA 103. This is

because the word “purchased” in the phrase “[p]roperty

purchased for resale [or] demonstration purposes” in

MCL 205.94(1)(c) modified both “resale” and “demon-

stration purposes.” In other words, a prerequisite for

the application of either exemption is that property be

“purchased” for either “resale” or “demonstration pur-

poses.” Since GM did not “purchase” its vehicles, but

“manufactured” them, GM does not qualify for either

exemption. This conclusion is buttressed by the rule of

statutory construction that tax exemptions must be

strictly construed, must never be implied, and must be

expressed by the Legislature in clear and unmistakable

terms. See GMAC, 286 Mich App at 375.

This analysis applies with respect to GM’s claims for

a refund under the Use Tax Act both before and after

the act’s amendment by 2007 PA 103. Under both

versions of the act, exemptions for resale and demon-

stration purposes depend on property being “pur-

chased” for those purposes. Although the 2007 legisla-

tion did amend the definition of “purchase” to include

conversion from a nontaxable use to a taxable use, this

amendment does not assist GM. Specifically, 2007 PA

103 added to MCL 205.92(e) the following: “Purchase

includes converting tangible personal property acquired

for a use exempt from the tax levied under this act to a

use not exempt from the tax levied under this act.” But

the definition of “purchase” as discussed earlier re-

mains. The amended definition does not help GM

because its vehicles are manufactured rather than

purchased. A conversion from nontaxable to taxable use

cannot occur if the property and its use do not qualify

initially as exempt.

384 290 M

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355 [Oct

Moreover, we conclude Treasury correctly asserts the

“demonstration purposes” exemption is intended to

apply at the retail sales level, i.e., to permit use without

tax of demonstrator vehicles for the purpose of inducing

actual sales from actual prospective consumers. This

conclusion is supported by GM’s own argument that

this Court should apply the Michigan Vehicle Code

definition of “demonstrator” as “a motor vehicle used

by a prospective customer or a motor vehicle dealer or

his agent for testing and demonstration purposes.”

MCL 257.11a. This definition describes a dealer’s, deal-

er’s agent’s, or customer’s (an actual retail purchaser)

testing or demonstrating a motor vehicle. Dealers sell

and customers buy. So the only reasonable reading of

this definition is that it relates to “testing and demon-

stration” in furtherance of a potential retail sale. In

contrast, GM uses its program vehicles for purposes of

quality control and to increase awareness in the general

public of its products. As GM summarizes in its brief on

appeal, “the purpose of the Vehicle Programs is to

collect data essential to the evaluation of product qual-

ity and performance in a continuous and timely man-

ner, and to increase the visibility of, and consumer

interest in, GM vehicles.” Because GM does not use its

program vehicles for the purpose of inducing actual

retail sales by demonstrating vehicles to actual custom-

ers but rather for quality control and marketing, it does

not qualify for the “purchased for demonstration pur-

poses” exemption of MCL 205.94(1)(c)(iii).

Given our construction of the statute, we hold that

the Court of Claims erred by ruling that “GM is exempt

from paying use tax on all vehicles used for resale and

demonstration purposes.” GM does not qualify for the

resale exemption or the “demonstration purposes” ex-

emption under either version of the Use Tax Act.

Indeed, this construction of the statute renders GM’s

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constitutional claims moot because even if we were to

determine that 2007 PA 103 was unconstitutional, GM

would not be entitled to the relief it seeks, a refund of

use taxes paid. An issue is moot if an event has occurred

that renders it impossible for the court to grant relief.

City of Warren v Detroit, 261 Mich App 165, 166 n 1; 680

NW2d 57 (2004). An issue is also moot when a judg-

ment, if entered, cannot for any reason have a practical

legal effect on the existing controversy. People v Rich-

mond, 486 Mich 29, 34-35; 782 NW2d 187 (2010). But

we may review a moot issue if it is publicly significant

and likely to recur, yet may evade judicial review. City of

Warren, 261 Mich App at 166 n 1. We have done so here.

In sum, the Court of Claims erred by ruling as a

matter of statutory construction that “GM is exempt

from paying use tax on all vehicles used for resale and

demonstration purposes.” GM did not “purchase” its

vehicle inventory as that word is defined by MCL

205.92(e); rather, GM manufactured those vehicles.

MCL 205.94(1)(c) requires that property be purchased

for resale or demonstration purposes to assert those

exemptions from use taxation. Moreover, because GM

does not use its program vehicles for the purpose of

inducing actual retail sales by demonstrating vehicles

to actual customers but rather for quality control and

marketing in the broad sense, it does not qualify for the

“purchased for demonstration purposes” exemption of

MCL 205.94(1)(c)(iii), as amended by 2007 PA 103.

VI. GM’S CROSS-APPEAL

GM presents several arguments in its cross-appeal as

alternative grounds to affirm the Court of Claims’

ruling in its favor. Generally, an issue is not properly

preserved if it is not raised before, addressed by, or

decided by the lower court or administrative tribunal.

386 290 M

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355 [Oct

Polkton Twp v Pellegrom, 265 Mich App 88, 95; 693

NW2d 170 (2005). Although this Court need not ad-

dress an unpreserved issue, it may overlook preserva-

tion requirements when the failure to consider an issue

would result in manifest injustice, if consideration is

necessary for a proper determination of the case, or if

the issue involves a question of law and the facts

necessary for its resolution have been presented. Smith

v Foerster-Bolser Constr, Inc, 269 Mich App 424, 427;

711 NW2d 421 (2006). Because the issues GM raises

present questions of law and the facts necessary to

resolve them have been presented, this Court may

address them. Id. In addition, Treasury concedes that

the issues GM raises on cross-appeal have been properly

preserved. Because the parties have briefed the issues

raised, there is no impediment to this Court’s deciding

them.

A. THE TAKING CLAUSE

GM argues that the retroactive application of 2007

PA 103 denied it a vested right to a refund of use taxes

paid in error, which violates both the Due Process

Clause and the Taking Clause. US Const, Am V. We

disagree.

We reject GM’s claim to a vested right and its due

process arguments for the reasons already discussed.

GM’s Fifth Amendment argument also fails. The gov-

ernment’s exercise of its taxing power “does not consti-

tute a Fifth Amendment taking unless the taxation is so

‘arbitrary as to constrain to the conclusion that it was

not the exertion of taxation, but a confiscation of

property....’”Quarty v United States, 170 F3d 961,

969 (CA 9, 1999), quoting Brushaber v Union Pacific R

Co, 240 US 1, 24; 36 S Ct 236; 60 L Ed 493 (1916). In

this case, 2007 PA 103 furthered a legitimate state

2010] G

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interest of preserving the public treasury, and its retro-

active application is rationally related to this legitimate

state interest. Consequently, 2007 PA 103 does not

violate the Due Process Clause. Carlton, 512 US at

30-31, 33. Having satisfied the Due Process Clause, it

would be illogical to find the retroactive application of

2007 PA 103 so arbitrary as to offend the Taking Clause.

See Quarty, 170 F3d at 969. GM’s Taking Clause claim

fails to serve as an alternative basis to sustain the Court

of Claims’ ruling.

B. THE TITLE-OBJECT CLAUSE

GM argues that the title of 2007 PA 103 fails to

satisfy the Title-Object Clause of the Michigan Consti-

tution. Const 1963, art 4, § 24 provides in part: “No law

shall embrace more than one object, which shall be

expressed in its title.” The “object” of a law is its

general purpose. GM contends that the title of 2007 PA

103 does not mention that it is given retroactive effect,

clarifies the Betten decision, eliminates GM’s resale

exemption, and redefines the term “convert.” There-

fore, GM argues, the act violates Const 1963, art 4, § 24.

We disagree.

The purpose of the Title-Object Clause is to ensure

“that legislators and the public receive proper notice of

legislative content and prevents deceit and subterfuge.”

Pohutski v Allen Park, 465 Mich 675, 691; 641 NW2d

219 (2002). “The ‘object’ of a law is defined as its

general purpose or aim.” Id. The constitutional require-

ment should be construed reasonably and permits a bill

enacted into law to “include all matters germane to its

object, as well as all provisions that directly relate to,

carry out, and implement the principal object.” Id.

Finally, the constitutional requirement is not that the

title refer to every detail of the act; rather, “[i]t is sufficient

388 290 M

ICH

355 [Oct

that ‘the act centers to one main general object or purpose

which the title comprehensively declares, though in gen-

eral terms, and if provisions in the body of the act not

directly mentioned in the title are germane, auxiliary, or

incidental to that general purpose....’”[Id. at 691-692,

quoting City of Livonia v Dep’t of Social Servs, 423 Mich

466, 501; 378 NW2d 402 (1985) (citations omitted).]

Enrolled House Bill 4882 that the Governor signed

into law on October 1, 2007, becoming 2007 PA 103, is

titled:

AN ACT to amend 1937 PA 94, entitled “An act to

provide for the levy, assessment and collection of a specific

excise tax on the storage, use or consumption in this state

of tangible personal property and certain services; to

appropriate the proceeds thereof; and to prescribe penal-

ties for violations of the provisions of this act,” by amend-

ing sections 2, 3, 4, and 7 (MCL 205.92, 205.93, 205.94, and

205.97), sections 2, 3, and 4 as amended by 2004 PA 172.

The title thus states that the act’s general object is to

amend §§ 2, 3, 4, and 7 of the Use Tax Act, which are

codified in MCL 205.92, 205.93, 205.94, and 205.97.

This title clearly states the act’s general purpose, and

all details in 2007 PA 103 are germane to this object.

The particular details of the amendments of §§ 2, 3, 4,

and 7 of the Use Tax Act need not be specified in the

amendatory act’s title to withstand scrutiny under

Const 1963, art 4, § 24. Pohutski, 465 Mich at 691-692.

Indeed, the title succinctly states its one, and only one,

general purpose. Nothing more is constitutionally re-

quired. GM has not overcome the presumption that

2007 PA 103 is constitutional. Health Care Ass’n Work-

ers Compensation Fund v Bureau of Worker’s Compen-

sation Dir, 265 Mich App 236, 251; 694 NW2d 761

(2005). GM’s Title-Object Clause argument fails to

serve as an alternative basis to sustain the Court of

Claims’ ruling.

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C. PERIOD OF RETROACTIVITY

GM argues that assuming that 2007 PA 103 is

constitutional, its plain terms limit its retroactive effect

to tax periods beginning September 30, 2002. GM

argues that, at a minimum, it is entitled to a tax refund

for the period from October 1, 1996, to September 29,

2002. GM contends that the word “and” in enacting

section 2 of 2007 PA 103 establishes two conditions for

the amendment’s retroactive application, both of which

must be satisfied. We disagree.

First, GM’s underlying premise—that it is entitled to

a use tax refund under the Use Tax Act as it existed

before the enactment of 2007 PA 103, as interpreted by

the Betten decision—is misplaced for the reasons dis-

cussed in part V of this opinion. Second, the Legisla-

ture’s use of the conjunction “and” does not serve to

establish two criteria for the retroactive application of

2007 PA 103; rather, it sets alternative temporal mark-

ers for the extent of the act’s retroactive application.

When drafting statutes, the Legislature often mis-

uses the words “and” and “or.” Miller-Davis Co v

Ahrens Const, Inc, 285 Mich App 289, 308; 777 NW2d

437 (2009). The words used in a statute must be

construed in light of the general purpose the Legisla-

ture sought to accomplish. Id. Further, “[o]nce the

intention of the Legislature is discovered, this intent

prevails regardless of any conflicting rule of statutory

construction.” GMAC, 286 Mich App at 372. The Leg-

islature expressly sought to apply 2007 PA 103 retroac-

tively, and the phrase at issue sets the outer limits—not

conditions—for that retroactivity.

“The term ‘and’ is defined as a conjunction, and it

means ‘with; as well as; in addition to[.]’ ” Amerisure

Ins Co v Plumb, 282 Mich App 417, 428; 766 NW2d 878

(2009), quoting Random House Webster’s College Dic-

390 290 M

ICH

355 [Oct

tionary (1997). Thus, the pertinent sentence may be

read: “This amendatory act is retroactive and is effec-

tive beginning September 30, 2002 [as well as; in

addition to] for all tax years that are open under the

statute of limitations provided in section 27a of 1941 PA

122, MCL 205.27a.” See enacting section 2 of 2007 PA

103. Because MCL 205.27a, to which the Legislature

specifically referred when it set its temporal limits for

retroactivity, permits the tolling of the period of limita-

tions by agreement extending back before September

30, 2002, limiting the retroactive application of 2007 PA

103 to tax periods beginning September 30, 2002, only

would render the latter part of the sentence nugatory.

We conclude that the Legislature intended to extend the

retroactive application of 2007 PA 103 back to Septem-

ber 30, 2002, “as well as” or “in addition to” as far back

as any tax year for which the statute of limitations may

be open under MCL 205.27a. This interpretation is

consistent with the general purpose of the statute to

limit refund claims premised on the Betten decision.

The Legislature intended that the act apply to all

taxpayers that might still be able to claim a refund.

GM’s interpretation of the sentence at issue would

frustrate the Legislature’s intent. The intention of the

Legislature prevails regardless of any conflicting rule of

statutory construction. GMAC, 286 Mich App at 372.

D. THE SEPARATION OF POWERS

GM argues that Treasury’s failure to act on GM’s

August 25, 2006, refund claim in light of the published

Betten decision denied GM its right to due process and

also violated the constitutional principle of the separa-

tion of powers. We disagree.

GM’s argument on this issue has no merit. Indeed,

GM cites no authority for the proposition that a judg-

2010] G

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ment in favor of one party must be applied to a different

person or entity that was not a party to the judgment

and has different factual circumstances. Even if GM

were correct that it would be entitled to a refund if the

principles of Betten were applied to GM’s factual situa-

tion, GM cites no authority that would preclude Trea-

sury from litigating whether the Betten rationale should

be extended to GM’s factual situation. The failure to

cite authority for a position constitutes abandonment of

that issue. Mettler Walloon, LLC v Melrose Twp, 281

Mich App 184, 221; 761 NW2d 293 (2008).

In addition, as discussed already, GM is not entitled

to a refund under the statute as amended pursuant to

the Due Process Clause. And even under the statute

before its amendment, GM was not entitled to a use tax

exemption intended for “[p]roperty purchased for re-

sale, demonstration purposes....” MCL 205.94(1)(c),

as amended by 2004 PA 172. Finally, Treasury’s actions

did not offend the constitutional principle of the sepa-

ration of powers because by holding GM’s claim in

abeyance, Treasury was not reversing, repealing, or

otherwise failing to comply with the Betten judgment.

See Taxpayers United for the Mich Constitution, Inc v

Detroit, 196 Mich App 463, 468-469; 493 NW2d 463

(1992), and Wylie, 293 Mich at 582. This argument fails

to serve as an alternative basis to sustain the Court of

Claims’ ruling.

VII. CONCLUSION

For the reasons discussed in this opinion, we reverse

and remand for entry of judgment in favor of the

Department of Treasury. We do not retain jurisdiction.

No taxable costs shall be assessed pursuant to MCR

7.219 because questions of public policy are involved.

392 290 M

ICH

355 [Oct

THOMAS v DUTKAVICH

Docket No. 293229. Submitted October 12, 2010, at Marquette. Decided

October 28, 2010, at 9:05 a.m.

Robert A. Thomas brought a quiet-title action in the Schoolcraft

Circuit Court against Laverne and Marilyn Dutkavich and the

Schoolcraft County Sheriff in which he also alleged slander of title.

The Dutkaviches had previously obtained a judgment of approxi-

mately $30,000 against Steve Pelletier. Despite his outstanding

judgment debt, Pelletier purchased the real property at issue, a

condominium unit, through a warranty deed recorded in January

2007. In July 2007, the Dutkaviches filed a notice of judgment lien

against the property. In September 2007, Pelletier and his wife,

Kelly Jo Pelletier, executed a warranty deed transferring the

property to Thomas. Although the proceeds of the sale were

sufficient to satisfy the judgment, Pelletier failed to distribute any

of the sale proceeds to the Dutkaviches. Several months later,

following a request by the Dutkaviches, a notice of levy on real

estate was executed and recorded by the Schoolcraft County

Sheriff’s Department. Thomas then filed suit. The Dutkaviches

filed a counterclaim, asserting that Thomas should have directed a

payment to them when he purchased the condominium and

seeking a money judgment. Thomas moved for summary disposi-

tion. The court, William W. Carmody, J., granted Thomas’s motion

for summary disposition, concluding that Thomas had no duty to

ensure that the Dutkaviches were paid out of the sale proceeds.

The court’s order also provided that the notice of judgment lien

was discharged and dismissed the sheriff from the action. The

Dutkaviches appealed.

The Court of Appeals held:

1. Under the Michigan judgment lien act (MJLA), MCL

600.2801 et seq., a judgment can be enforced by recording a

judgment lien on appropriate property. MCL 600.2803 provides

that if a judgment creditor records a notice of judgment lien with

the register of deeds for the county in which the property is

located, the judgment lien attaches to the judgment debtor’s

interest in the property.

2010] T

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393

2. Under MCL 600.2807(1), a judgment lien does not attach to

an interest in real property owned as tenants by the entirety

unless the judgment was entered against both the husband and

the wife. In this case, the judgment was entered against Steve

Pelletier alone, but Kelly Jo Pelletier had only a dower interest in

the property. The Pelletiers did not hold the property as tenants by

the entirety. The Legislature did not protect those with only a

dower interest in property from the filing of a judgment lien, and

the judgment lien properly attached to the condominium regard-

less of Kelly Jo Pelletier’s dower interest.

3. Under MCL 600.2819, the judgment debtor is obligated to

pay the judgment creditor from the real estate sale proceeds.

Because Thomas was not the judgment debtor, he was not obli-

gated to pay the Dutkaviches, and the trial court properly dis-

missed the Dutkaviches’ counterclaim for money damages.

4. The Legislature did not directly address the resulting status

of a judgment lien when the judgment debtor, although capable of

doing so, has failed to make a required payment to the judgment

creditor under MCL 600.2819. However, related provisions in the

MJLA indicate that a judgment lien remains attached to the

property despite new ownership when a lien has not been fully

discharged. The necessary corollary is that when no payment has

been made to the judgment creditor from available real estate sale

proceeds, the judgment lien remains attached to the property and

is not dischargeable except upon full payment. Therefore, the trial

court erred by discharging the lien, and Thomas’s slander-of-title

claim should have been dismissed.

5. Although the judgment lien remained attached to the prop-

erty, MCL 600.2819 does not allow foreclosure of a lien created

under the MJLA. However, the Dutkaviches might have been able

to levy on the property under MCL 600.6018, which is the

provision of the Revised Judicature Act traditionally governing the

collection of judgments and executions against real property.

Because the trial court failed to address the arguments raised by

the Dutkaviches under MCL 600.6018, remand was necessary.

Affirmed in part, reversed in part, and remanded.

1. L

IENS —

UDGMENT

IENS —

TTACHMENT —

ENANTS BY THE

NTIRETY —

OWER

NTEREST OF

ONDEBTOR

A judgment lien under the Michigan judgment lien act does not

attach to an interest in real property owned as tenants by the

entirety unless the judgment was entered against both the hus-

band and the wife; however, the statute does not protect a woman

who has only a dower interest in property from the filing and

394 290 M

ICH

393 [Oct

attachment of a judgment lien when her spouse is the sole

judgment debtor (MCL 600.2807[1]).

2. L

IENS —

UDGMENT

IENS —

ALE OF

ROPERTY —

AYMENT

EQUIRED BY

UDGMENT

EBTOR

The judgment debtor is obligated under the Michigan judgment lien

act to pay the judgment creditor from the proceeds of a sale of real

estate to which a judgment lien had attached; the purchaser of the

property is not obligated to pay the judgment creditor (MCL

600.2819).

3. L

IENS —

UDGMENT

IENS —

ALE OF

ROPERTY —

AILURE OF THE

UDGMENT

EBTOR TO

ATISFY THE

UDGMENT —

WNER —

IEN

TATUS

A judgment lien recorded under the Michigan judgment lien act

remains attached to the property and is not dischargeable if the

judgment debtor has not made payment from the proceeds of a sale

of the property despite the fact of new ownership of the property

(MCL 600.2801 et seq.).

4. L

IENS —

UDGMENT

IENS —

ORECLOSURE

There is no right to foreclose a judgment lien created under the

Michigan judgment lien act (MCL 600.2819).

Plunkett Cooney (by Mary Massaron Ross, Hilary A.

Ballentine, and James J. Murray) for Robert A. Tho-

mas.

Randolph B. Osstyn for Laverne and Marilyn Dut-

kavich.

Amicus Curiae:

Buckles & Buckles, PLC (by Michael H. R. Buckles),

and Roger L. Premo for the Michigan Creditors Bar

Association.

Before: M

URPHY

, C.J., and B

ECKERING

and M. J. K

ELLY

JJ.

URPHY

, C.J. Defendants Laverne and Marilyn Dut-

kavich appeal as of right the trial court’s order granting

summary disposition in favor of plaintiff, R obert A.

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395

Thomas, with respect to his action to quiet title to real

property, a condominium unit, and his claim of slander

of title. The order granting summary disposition in

favor of Thomas also effectively dismissed a counter-

claim filed by the Dutkaviches. This appeal requires us

to interpret the Michigan judgment lien act (MJLA),

MCL 600.2801 et seq., and to determine whether a

judgment lien survives and can be foreclosed on after

the judgment debtor’s conveyance of the encumbered

real property to a vendee who had record notice of the

lien, but no available closing proceeds were distributed

to the judgment creditor in whole or partial satisfaction

of the underlying judgment. The Dutkaviches, who

were the underlying judgment creditors, had sought to

levy or foreclose on the property, which Thomas had

purchased from the underlying judgment debtor, Steve

Pelletier, without any proceeds going to pay off the

judgment lien despite sufficient funds being available to

discharge the lien. The trial court found that Thomas

was not at fault for Pelletier’s failure to use the closing

proceeds to pay off the Dutkaviches, and the court

ordered the discharge of the judgment lien. We hold

that the MJLA, while not permitting the foreclosure of

the judgment lien and not giving Thomas any statutory

obligation to have made payment to the Dutkaviches,

did require that the judgment lien remain attached to

the property. We also hold, however, that outside the

MJLA, the Dutkaviches may be able to levy on the

property pursuant to MCL 600.6018, which is the

traditional method of executing on realty to satisfy a

judgment. A remand is necessary to explore the issue of

levying pursuant to MCL 600.6018. Therefore, the trial

court erred by discharging the judgment lien and erred

by not considering MCL 600.6018. Consistently with

our holding, the Dutkaviches’ counterclaim seeking to

hold Thomas personally liable was properly dismissed;

396 290 M

ICH

393 [Oct

Thomas’s slander-of-title claim should have been dis-

missed; Thomas’s quiet-title count should have been

dismissed with regard to his request that the court

discharge the judgment lien; and, with regard to levy

and foreclosure under the quiet-title count, Thomas

was entitled to the favorable ruling relative to the

MJLA, but levying under MCL 600.6018 needs to be

examined on remand. Accordingly, we affirm in part,

reverse in part, and remand.

I. FACTUAL AND PROCEDURAL BACKGROUND

On December 6, 2004, in the Delta County Circuit

Court, the Dutkaviches obtained a judgment against

Steve Pelletier in the amount of $29,183.

A warranty

deed, executed on December 29, 2006, and recorded on

January 24, 2007, indicates that Pelletier purchased the

real property at issue, a condominium unit located in

Schoolcraft County, from Miller Point Development,

L.L.C. Pelletier is the only vendee named in the war-

ranty deed. A future-advances mortgage, executed on

December 29, 2006, and recorded on February 7, 2007,

reflects that Pelletier, along with his wife Kelly Jo

Pelletier, obtained a mortgage on the property from the

State Savings Bank of Manistique (mortgagee bank).

On July 20, 2007, the Dutkaviches filed a notice of

judgment lien with the register of deeds office in

Schoolcraft County with respect to the condominium

unit. The notice provided that the balance owing on the

judgment had increased to $33,368. On September 12,

2007, a real estate closing was held in which Steve and

We note that the notice of judgment lien reflects that the judgment was

entered on December 6, 2003; however, the request and order to seize

property and the notice of levy on real estate indicate that the judgment was

entered on December 6, 2004. The judgment itself is not contained in the

lower court record. The discrepancy does not affect our analysis and ruling.

2010] T

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397

Kelly Jo Pelletier executed a warranty deed conveying the

property to Thomas. The warranty deed was recorded the

following day. The mortgage on the property held by the

mortgagee bank, with the P elletiers as mortgagors, was

discharged the day before the closing. According to the

warranty deed and the closing statement, the sale price

for the property was $53,000. The settlement information

contained in the closing statement indicates that, after

taking into account the payment of taxes, title insurance,

and closing fees, the P elletiers were paid $51,784.

None of

the proceeds from the sale were distributed to the Dut-

kaviches; there was no effort to satisfy the judgment lien

despite the undisputed fact that the notice of judgment

lien had been recorded before the closing. The trial court

record does not include any documentary evidence con-

cerning conversations at the closing or how the closing

was conducted, let alone evidence revealing why the

parties decided to proceed without designating a payment

for the Dutkaviches. The closing documentation reflects

that Fox Real Estate, Inc., was involved in the transaction.

On January 18, 2008, pursuant to a request by the

Dutkaviches, the Delta Circuit Court entered an order

to seize property relative to the judgment, which now

had grown to $33,556, given accruing interest and

postjudgment costs. A report of collection activity under

the order to seize property reveals that a deputy sheriff

was unable to locate any personal property held by

Steve Pelletier that exceeded the statutory exemption.

About a week later, in February 2008, a notice of levy on

real estate was executed and recorded by a deputy

sheriff with the Schoolcraft County Sheriff’s Depart-

ment.

The settlement information does not show that the mortgagee bank

received any distribution from the sale proceeds and, as previously noted,

the mortgage was discharged the day before the closing.

398 290 M

ICH

393 [Oct

On March 2, 2009, Thomas filed the instant quiet-

title action in the Schoolcraft Circuit Court against the

Dutkaviches and the Schoolcraft County Sheriff (SCS).

Count I of the complaint, which pertained to all defen-

dants, alleged that Thomas had purchased the property

from the Pelletiers, that Steve Pelletier, but not his wife

Kelly Jo, was subject to the Delta Circuit Court judg-

ment obtained in favor of the Dutkaviches; that the

Dutkaviches had recorded the notice of judgment lien

before the sale of the property to Thomas; and that the

Dutkaviches, through the efforts of a deputy sheriff

employed by the SCS, had recorded the notice of levy on

real estate following the sale. Plaintiff further alleged,

as part of count I, that he owned the property free and

clear of the Dutkaviches’ interest and that, under MCL

600.2819, there could be no foreclosure on the lien and

Thomas could not be held liable to the Dutkaviches.

MCL 600.2819 provides:

There is no right to foreclose a judgment lien created

under this chapter. At the time the judgment debtor makes

a conveyance, as that term is defined in section 35 of 1846

RS 65, MCL 565.35, of, sells under an executory contract,

or refinances the interest in real property that is subject to

the judgment lien, the judgment debtor shall pay the

amount due to the judgment creditor, as determined under

[MCL 600.2807(3)], to the judgment creditor.

According to Thomas, because the notice of levy

was recorded after he purchased the property and

after Steve Pelletier no longer held any interest in the

property, the notice of levy was invalid under the

MJLA. In count II of the complaint, Thomas alleged

slander of title against the Dutkaviches, claiming

that they had refused to discharge the judgment lien

despite his requests for discharge and that their

refusal constituted malice. In his prayer for relief,

Thomas asked the trial court to declare the judgment

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lien and notice of levy void and order them dis-

charged, to declare the warranty deed conveying the

property to Thomas as superior to any interest held

by the Dutkaviches, and to compensate Thomas for

the damages and costs that he had incurred as a

result of the slander of title.

The Dutkaviches filed a counterclaim, alleging that

Thomas had failed to direct a payment to the Dutkav-

iches from the money being paid by Thomas to the

Pelletiers at the closing, as was necessary to discharge

the judgment lien. The Dutkaviches maintained that

Thomas had paid the Pelletiers $51,784 at the closing

and, therefore, there was more than enough money

available from which Thomas could and should have

paid the Dutkaviches. This claim sought a money judg-

ment against Thomas.

Thomas moved for summary disposition, present-

ing an argument that paralleled the allegations in his

complaint, as previously set forth. He also argued

that it was improper for the Dutkaviches to have

recorded the notice of judgment lien when the judg-

ment was solely against Steve Pelletier and that

property held as a tenancy by the entirety cannot be

subject to a lien and levy on the basis of a judgment

entered against only one of the spouses. The Dutkav-

iches responded by contending that the amount due

under the judgment lien was not paid to them upon

sale of the property as required by the MJLA. Accord-

ing to the Dutkaviches, discharge of the judgment

lien would only be proper if the lien had been paid in

full from the proceeds of the real estate transaction

between Thomas and the Pelletiers. Therefore, Tho-

mas was not entitled to summary disposition. The

Dutkaviches also argued that the property had pre-

viously been deeded to Steve Pelletier in his name

400 290 M

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only, and not to Steve and Kelly Jo Pelletier, and thus

Thomas’s argument premised on the existence of a

tenancy by the entirety was inapplicable. Finally, the

Dutkaviches asserted that they could levy on the

property pursuant to MCL 600.6018, which is the

traditional method to execute on realty. The SC S also

moved for summary disposition, arguing in part that,

when filing the notice of levy, he was acting in

accordance with various statutory requirements and

was acting in good faith and without malice.

At the hearing on the motions for summary disposi-

tion, the trial court initially entered a stipulated order

as between Thomas and the SCS that discharged the

notice of levy and resulted in the dismissal of the SCS

from the case.

The trial court then proceeded to hold

that Thomas had no duty under MCL 600.2819 to make

sure that the Dutkaviches were paid out of the sale

proceeds. The court, concluding that Thomas was not at

fault, granted his motion for summary disposition with-

out any mention of MCL 600.6018. Subsequently, an

order was entered that provided that Thomas’s motion

for summary disposition was granted, the notice of

judgment lien was discharged, and the order could be

recorded with the register of deeds to effectuate the

discharge.

Thomas’s claim on appeal that the Dutkaviches joined the stipulation

is not supported by the record.

The trial court never specifically touched on the Dutkaviches’ coun-

terclaim at the hearing on the motions for summary disposition. But the

court’s finding that Thomas was without fault and had no duty relative

to MCL 600.2819 would negate the counterclaim that Thomas should be

held liable on a money judgment for not having directed payment of the

sale proceeds to the Dutkaviches in order to satisfy the judgment lien.

The final order subsequently entered by the trial court indicated that it

resolved all pending claims and closed the case, which order necessarily

encompassed the counterclaim.

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II. ANALYSIS

A. APPELLATE ARGUMENTS

The Dutkaviches argue that payment in full is a

prerequisite to discharging a judgment lien under the

MJLA and there was no payment here whatsoever.

They contend that the judgment lien was properly

recorded before the Pelletiers sold the property to

Thomas, that Thomas thus had constructive notice of

the lien and was not a bona fide purchaser for value,

and that the judgment lien was an appropriate cloud on

Thomas’s title, given that Thomas had failed to demand

that the lien be discharged with proceeds from the sale.

The Dutkaviches, while acknowledging that their un-

derlying judgment was entered solely against Steve

Pelletier, also maintain that the judgment lien properly

attached to the property because Pelletier had pur-

chased the property in his own name and the property

was not held as a tenancy by the entirety. Next, the

Dutkaviches assert that they could levy on the property

pursuant to MCL 600.6018, even if they could not

foreclose under the MJLA. Finally, the Dutkaviches

argue that equity requires that they be paid the amount

due on the judgment.

Thomas contends that MCL 600.2819 requires the

judgment debtor alone to pay the judgment creditor

with proceeds from a sale of the property in order to

satisfy the judgment; there is no such duty with respect

to the purchaser of the property, regardless of whether

the purchaser has constructive notice of the judgment

lien. Thomas also contends that equity does not favor

the Dutkaviches, as they had available the remedy of

foreclosing on the property before the sale, yet they

failed to act until after Thomas acquired his interest in

the condominium unit. Thomas further argues that

402 290 M

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MCL 600.6018 is not applicable because the levy was

recorded after he purchased the property. Finally, and in

the alternative, Thomas maintains that the judgment

lien did not properly attach to the property because the

underlying judgment was solely against Steve Pelletier

and the lien attempted to encumber property in which

Kelly Jo Pelletier had a dower interest.

B. STANDARD OF REVIEW

This Court reviews de novo a trial court’s ruling on a

motion for summary disposition. Manuel v Gill, 481

Mich 637, 643; 753 NW2d 48 (2008). We also review de

novo issues of statutory construction. Detroit v Ambas-

sador Bridge Co, 481 Mich 29, 35; 748 NW2d 221

(2008).

C. PRINCIPLES OF STATUTORY CONSTRUCTION

In McCormick v Carrier, 487 Mich 180, 191-192; 795

NW2d 517 (2010), our Supreme Court recited the

well-established principles of statutory construction:

The primary goal of statutory construction is to give

effect to the Legislature’s intent. This Court begins by

reviewing the language of the statute, and, if the language

is clear and unambiguous, it is presumed that the Legisla-

ture intended the meaning expressed in the statute. Judi-

cial construction of an unambiguous statute is neither

required nor permitted. When reviewing a statute, all

non-technical words and phrases shall be construed and

understood according to the common and approved usage

of the language, and, if a term is not defined in the statute,

a court may consult a dictionary to aid it in this goal. A

court should consider the plain meaning of a statute’s

words and their placement and purpose in the statutory

scheme. Where the language used has been subject to

judicial interpretation, the legislature is presumed to have

2010] T

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used particular words in the sense in which they have been

interpreted. [Citations and quotation marks omitted.]

D. DISCUSSION

The MJLA was enacted pursuant to 2004 PA 136 and

made effective on September 1, 2004. Under the MJLA,

a “judgment” is defined as including “a final judgment”

of a “court of record of this state.” MCL 600.2801(a)(i).

Thus, the judgment obtained by the Dutkaviches

against Steve Pelletier in the Delta Circuit Court quali-

fied as a judgment for purposes of the MJLA and could

be enforced by the recording of a judgment lien on

appropriate property. A “judgment lien” is defined as

“an encumbrance in favor of a judgment creditor

against a judgment debtor’s interest in real property,

including, but not limited to, after acquired property.”

MCL 600.2801(c). If a judgment creditor records a

notice of judgment lien with the register of deeds for the

county in which the real property is located, the judg-

ment lien attaches to the judgment debtor’s interest in

the real property. MCL 600.2803. “The judgment lien

attaches at the time the notice of judgment lien is

recorded or, for after acquired property, at the time the

judgment debtor acquires the interest in the property.”

Id. The notice of judgment lien must conform to the

technical requirements of MCL 600.2805(1) and (2) and

must be served on the judgment debtor in accordance

with either MCL 600.2805(3) or (4).

We shall first address the argument that the judg-

ment lien never properly attached to the property

because the judgment was against Steve Pelletier but

the lien was recorded against property in which Kelly Jo

Pelletier held a dower interest. “A judgment lien does

Thomas does not argue that the Dutkaviches failed to comply with

MCL 600.2805.

404 290 M

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393 [Oct

not attach to an interest in real property owned as

tenants by the entirety unless the underlying judgment

is entered against both the husband and wife.” MCL

600.2807(1). There is no dispute that the Delta County

judgment was entered solely against Steve Pelletier and

that the warranty deed reflecting a conveyance of the

property listed only Steve Pelletier as the purchaser or

vendee.

“[A]n estate by entireties refers to a form of co-

ownership held by husband and wife with right of

survivorship[.]” Lilly v Schmock, 297 Mich 513, 517;

298 NW 116 (1941). “Our longstanding common law

provides that, when a deed is conveyed to a husband

and wife, the property is held as a tenancy by the

entirety.” Walters v Leech, 279 Mich App 707, 711; 761

NW2d 143 (2008) (emphasis added). A tenancy by the

entirety may be created by a deed conveying property to

a husband and wife “jointly,” by a deed conveying

property to a husband and wife as “joint tenants,” or by

a deed conveying property to a husband and wife

“jointly and not as tenants in common[.]” 1 Cameron,

Michigan Real Property Law (3d ed), § 9.13, p 327,

citing Goethe v Gmelin, 256 Mich 112; 239 NW 347

(1931), Dutcher v Van Duine, 242 Mich 477; 219 NW 651

(1928), and Hoyt v Winstanley, 221 Mich 515; 191 NW

213 (1922).

Kelly Jo Pelletier was not named in the

warranty deed that conveyed the property from Miller

Point Development, L.L.C., to Steve Pelletier; therefore,

no tenancy by the entirety was created. And there is no

deed showing that Steve Pelletier ever subsequently

conveyed the property to himself and Kelly Jo jointly.

Although a conveyance of land made to two or more persons is

generally construed to create an estate in common and not a joint

tenancy, an exception exists when the conveyance is made to a husband

and wife. MCL 554.44 and MCL 554.45.

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Simply because Kelly Jo Pelletier executed the war-

ranty deed, along with Steve Pelletier, with respect to

the later conveyance to Thomas does not mean that the

property had been held by Steve and Kelly Jo as tenants

by the entirety. Rather, this was likely done because

“the statute of frauds requires both the seller and his

wife with a dower interest to sign a purchase agreement

in order to create a valid contract for the sale of land.”

Slater Mgt Corp v Nash, 212 Mich App 30, 32; 536

NW2d 843 (1995).

With respect to the dower-interest argument, “dower

is a longstanding historical right that preexisted even

the formation of our nation and that has become

embedded in Michigan . . . law.” In re Miltenberger, 482

Mich 901, 904 (2008) (C

ORRIGAN

, J., concurring). MCL

558.1 provides, “The widow of every deceased person,

shall be entitled to dower, or the use during her natural

life, of

part of all the lands whereof her husband was

seized of an estate of inheritance, at any time during

the marriage, unless she is lawfully barred thereof.”

“Dower may be relinquished or conveyed as provided

by law.” Const 1963, art 10, § 1. This constitutional

provision “makes it clear that the drafters of the

Michigan Constitution intended to recognize dower as a

legitimate property interest.” In re Miltenberger Estate,

275 Mich App 47, 56; 737 NW2d 513 (2007). The right

of dower is a contingent estate that becomes vested on

the death of the husband and is to be protected before

and after vesting. Oades v Std S & L Ass’n, 257 Mich

469, 473; 241 NW 262 (1932). When a husband owns an

estate of inheritance in real estate, “his wife has a

dower interest in that property.” Slater Mgt, 212 Mich

App at 31. “The dower interest attaches on marriage

Dower interests are also addressed in MCL 700.2202, part of the

Estates and Protected Individuals Code (EPIC), MCL 700.1101 et seq.

406 290 M

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393 [Oct

and applies to land the husband owned before marriage

and brings into the marriage as well as land acquired

during the marriage.” 1 Cameron, § 8.3, p 287. No sole

act of a husband can prejudice his wife’s right to dower.

Oades, 257 Mich at 473. A husband cannot deprive his

wife of her dower rights, and she can only be divested of

those rights by an act of the state or by or in conse-

quence of her own voluntary actions. Greiner v Klein,

28 Mich 12, 17 (1873).

The Legislature referred only to “tenants by the

entirety” in MCL 600.2807(1) without any mention of a

wife’s dower interests or rights. Given the extensive

statutory and constitutional history of dower rights, we

cannot deem the failure by the Legislature to include a

reference to dower interests in the MJLA as an over-

sight but rather as a conscious decision to only protect

tenancies by the entirety from the filing of a judgment

lien when one spouse was not a judgment debtor. If we

were to hold that a judgment lien under the MJLA

cannot attach to property in which a wife has only a

dower interest when the wife was not subject to the

underlying judgment, we would improperly be reading

language into the statute that simply does not exist.

Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642

NW2d 663 (2002) (“A . . . court may read nothing into

an unambiguous statute that is not within the manifest

intent of the Legislature as derived from the words of

the statute itself.”).

Furthermore, we fail to see how the recording of the

judgment lien on the property, in and of itself, deprived

or divested Kelly Jo Pelletier of any dower interest that

she held under the law. There was no attempt to

foreclose on the judgment lien before the sale of the

property to Thomas, and we ultimately hold in this

opinion that the judgment lien cannot be foreclosed on

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under the MJLA, which is consistent with MCL

600.2819. Also, Kelly Jo Pelletier participated in the

Pelletier-Thomas closing and executed the warranty

deed conveying the property, thereby voluntarily extin-

guishing or relinquishing her dower interest. Const

1963, art 10, § 1; In re Stroh Estate, 151 Mich App 513,

516; 392 NW2d 192 (1986) (“No contract of sale or

conveyance by a husband without his wife’s signature

will operate to divest her of her dower.”). Indeed, even

when we examine the issue at the point in time at which

the judgment lien attached to the property, which was

before the sale to Thomas, the worst case scenario from

Mrs. Pelletier’s perspective would be a sale or refinanc-

ing of the property resulting in a payment to the

Dutkaviches under MCL 600.2819. However, she could

fully protect her dower interest in either circumstance,

as the sale or refinancing could not come to fruition

until she was in full agreement with the terms of the

transaction and executed the necessary documentation.

In sum, we are not prepared to find a divestiture of a

dower interest on the basis of the attachment of a

judgment lien to property with respect to which a wife

has a dower interest, but no liability on the underlying

judgment, and when payment to a judgment creditor on

a sale or refinancing is the only possible consequence

flowing from the lien. Accordingly, the judgment lien

here properly attached to the property regardless of any

dower interest held by Kelly Jo Pelletier.

Next, we hold that the judgment lien must remain

attached to the property and could not have been

discharged by the sale of the property to Thomas. As

indicated previously, MCL 600.2819 provides that when

a judgment debtor sells an interest in the property

subject to the judgment lien, “the judgment debtor shall

pay the amount due to the judgment creditor, as deter-

mined under [MCL 600.2807(3)], to the judgment credi-

408 290 M

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tor.” (Emphasis added.) We first note that, under the

clear and unambiguous language of MCL 600.2819, the

obligation or duty to pay the judgment creditor from

real estate sale proceeds rests solely with the judgment

debtor, here Steve Pelletier. Therefore, Thomas had no

such obligation, and the Dutkaviches’ counterclaim

seeking to hold him liable on a money judgment fails.

The MJLA reflects that the Legislature did not specifi-

cally contemplate a judgment debtor capable of making

the required payment to the judgment creditor under

MCL 600.2819 but failing to do so, let alone directly

address the resulting status of the judgment lien upon

the failure. However, various statutes within the MJLA

aside from MCL 600.2819 effectively answer these

questions.

With respect to a sale or refinancing of the property,

MCL 600.2807(3), which is cross-referenced in MCL

600.2819, provides:

If property subject to a judgment lien recorded under

this chapter is sold or refinanced, proceeds of the sale or

refinancing due to a judgment creditor are limited to the

judgment debtor’s equity in the property at the time of the

sale or refinancing after all liens senior to the judgment

lien, property taxes, and costs and fees necessary to close

the sale or refinancing are paid or extinguished.

Therefore, MCL 600.2807(3) contemplates situations

in which a judgment debtor sells his or her property, but

because of the limited equity in the property, the

judgment lien may not be fully satisfied. When the

funds available following a sale are insufficient to

entirely satisfy the judgment lien, the MJLA requires

that MCL 600.2807(3) be read in conjunction with MCL

600.2811, which provides in relevant part:

If payment on a judgment lien is made from the judg-

ment debtor’s equity as described in [MCL 600.2807(3)]

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and is not payment in full of the amount due on the lien,

the judgment creditor or the judgment creditor’s attorney

shall record a partial discharge of judgment lien for the

amount paid. [Emphasis added.]

Accordingly, even after a successful conveyance of the

property to a vendee who takes fee simple title and the

payment of some monies to the judgment creditor, if an

outstanding balance remains on the judgment lien, the

lien is only partially discharged and effectively contin-

ues to be an encumbrance on the property despite the

new ownership. Furthermore, MCL 600.2813(2) also

addresses a partial payment of the judgment lien when

the equity in the property falls short of the amount

owing on the lien:

If a judgment debtor has paid a judgment in full or has

made a partial payment from equity as described in section

[MCL 600.2807(3)], has sent a request [for discharge]

under subsection (1), and is unable, after exercising due

diligence, to locate the judgment creditor or the judgment

creditor’s attorney, the judgment debtor may record an

affidavit that complies with this subsection with the regis-

ter of deeds with whom the judgment lien is recorded. The

judgment debtor shall state in the affidavit that the judg-

ment debtor sent a request under subsection (1) to the

judgment creditor or the judgment creditor’s attorney and

shall attach to the affidavit a copy of a written instrument

that evidences payment of the judgment and a copy of the

receipt for the certified mailing of the request. Recording

the affidavit, written instrument, and receipt discharges

the judgment lien completely or, if payment is made from

the judgment debtor’s equity as described in [MCL

600.2807(3)] and is not payment in full of the amount due

on the lien, partially to the extent of the amount paid.

[Emphasis added.]

Again, this language contemplates the continued

attachment of a judgment lien on property despite new

ownership when the lien has not been fully discharged.

410 290 M

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The necessary corollary is that, when no payment

whatsoever has been made to the judgment creditor

from available real estate sale proceeds, as was the case

here, the judgment lien remains attached to the prop-

erty and is not dischargeable except upon full payment.

If partial payment does not result in the full discharge

of a judgment lien, no payment at all certainly cannot

result in a discharge.

Although this outcome may appear unfair to Thomas

at first glance, it is required by the statutory language

and, moreover, Thomas had, at a minimum, construc-

tive notice of the recorded judgment lien. See Ame-

riquest Mortgage Co v Alton, 273 Mich App 84, 93-94;

731 NW2d 99 (2006). Despite the notice, Thomas de-

cided to proceed with the closing without demanding

that payment be made to the judgment creditors, the

Dutkaviches, so that the lien would be extinguished.

Although the onus was on Steve Pelletier under MCL

600.2819 to make the payment to the Dutkaviches,

Thomas, as the purchaser, certainly had the ability to

direct and dictate where his funds would go as part of

the closing settlement, at least to the extent that he

could have chosen to walk away from the transaction

had it not met with his satisfaction.

This might explain

the Legislature’s decision to allow judgment liens to

remain attached to conveyed property when only partial

payment on the lien was made. In such a scenario, the

purchaser, having constructive notice of the lien, would

have the ability and choice to not proceed with the

closing and, if the purchaser decided to proceed, he or

she would do so knowing that the judgment lien re-

mained a cloud on the title and could be problematic. In

For this reason and given the constructive notice of the judgment lien,

Thomas’s argument that his due process rights will be violated if the lien

remains attached lacks merit.

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a modern real estate transaction, it is difficult to

conceive, given the general demands and requirements

of new mortgagees and title insurers and escrow agents,

that a transaction would be completed and closed ab-

sent full discharge of outstanding liens, yet it did occur

here.

Our conclusion is further supported by MCL

600.2809. Under MCL 600.2809(1) through (4), a judg-

ment lien expires five years after the date that it was

recorded, unless the judgment itself expires beforehand,

at which time the lien would also expire, or unless the

lien is rerecorded, which a judgment creditor may only

do once, not less than 120 days before the expiration

date of the initial judgment lien. MCL 600.2809(6)

addresses the extinguishment of a judgment lien, pro-

viding:

A judgment lien is extinguished when 1 or more of the

following are recorded with the office of the register of

deeds where the judgment lien is recorded:

(a) A discharge of judgment lien signed by the judgment

creditor or the judgment creditor’s attorney.

(b) A certified copy of a satisfaction of judgment that has

been filed with the court that issued the judgment.

judgment lien.

(d) A copy of the judgment debtor’s discharge in bank-

ruptcy issued by a United States bankruptcy court and a

copy of the bankruptcy schedule listing the judgment debt.

This subdivision does not apply if an order entered in the

judgment debtor’s bankruptcy case determining that the

debt is nondischargeable is recorded with the register of

deeds.

Aside from the circumstance described in MCL

600.2809(6)(c), none of these events occurred in this

case. With respect to MCL 600.2809(6)(c), there is of

412 290 M

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393 [Oct

course the trial court’s order discharging the judgment

lien. However, this provision cannot allow a judgment

lien to be and remain discharged simply because the

trial court so ordered when the order was subject to

appeal and did not otherwise comply with the MJLA, as

we have held. Accordingly, there is no statutory basis to

discharge the judgment lien.

Despite the fact that the judgment lien must remain

attached to the condominium unit, it is clear that the

MJLA does not allow foreclosure of the lien. As indi-

cated, MCL 600.2819 provides that “[t]here is no right

to foreclose a judgment lien created under this chapter.”

The Legislature could not have been any clearer on the

subject.

Thus, a purchaser may decide to proceed with

a real estate transaction when the judgment lien has

not been fully discharged, assuming that new mortgag-

ees and title insurers allow this to occur, given that the

lien cannot be foreclosed on. But doing so could create

problems for the purchaser in the future if he or she

seeks to sell the property, considering that a subsequent

purchaser would likely be hesitant to buy clouded

property. We do note that such a subsequent sale would

not implicate MCL 600.2819 and the need to pay the

judgment creditor because MCL 600.2819 only applies

when the “judgment debtor makes a conveyance.” (Em-

phasis added.)

The Dutkaviches present an argument under MCL

600.6018, claiming that this provision, which is not part

of the MJLA, allows levying on the property if the

conveyance between Thomas and the Pelletiers was

fraudulent. MCL 600.6018 provides as follows:

For this reason, we reject the argument that resort to equity is proper

to allow foreclosure of the judgment lien. When a statute governs

resolution of a particular issue, a court lacks the authority to invoke

equity in contravention of the statute. Devillers v Auto Club Ins Ass’n,

473 Mich 562, 590 n 65; 702 NW2d 539 (2005).

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All the real estate of any judgment debtor, including, but

not limited to, interests acquired by parties to contracts for

the sale of land, whether in possession, reversion or re-

mainder, lands conveyed in fraud of creditors, equities and

rights of redemption, leasehold interests including mining

licenses, for mining ore or minerals, but not including

tenancies at will, and all undivided interests whatever, are

subject to execution, levy and sale except as otherwise

provided by law. [Emphasis added.]

This provision is part of chapter 60 of the Revised

Judicature Act (RJA), MCL 600.6001 et seq., and tradi-

tionally governed the collection of judgments and ex-

ecutions against real property. George v Sandor M

Gelman, PC, 201 Mich App 474, 477; 506 NW2d 583

(1993). “Under the scheme provided in chapter 60, the

creditor must first obtain a judgment for the amount

owed, then execute that judgment against the debtor’s

property.” Id. We note that the MJLA provides that “[a]

judgment lien is in addition to and separate from any

other remedy or interest created by law or contract.”

MCL 600.2817. The Legislature did not repeal MCL

600.6018 and, therefore, the MJLA and MCL 600.6018

are two different mechanisms by which a judgment

creditor can attempt collection on a judgment by going

after real property. There are undoubtedly differences

between the MJLA and MCL 600.6018, including, most

significantly, that the MJLA does not allow foreclosure,

but the MJLA also does not contain the many exemp-

tions, restrictions, and procedural requirements associ-

ated with levying against real property under MCL

600.6018. See chapter 60 of the RJA, MCL 600.6001 et

seq. The trial court never explored the issue of allowing

the Dutkaviches to levy on the property under MCL

600.6018. Whether they can levy on the property under

MCL 600.6018 and the rest of chapter 60 of the RJA

requires a detailed examination of the statutory scheme

414 290 M

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393 [Oct

and proof of a fraudulent transfer. Remand is appropri-

ate for development of the arguments and evidence. In

the meantime, the judgment lien must remain attached

to the property under the MJLA, although that lien

cannot be foreclosed on.

III. CONCLUSION

In sum, we hold that the MJLA, while not permitting

foreclosure of the judgment lien and not giving Thomas

any statutory obligation to have made payment to the

Dutkaviches, requires that the judgment lien remain

attached to the property. We also hold, however, that

outside the MJLA, the Dutkaviches may be able to levy

on the property pursuant to MCL 600.6018, which is

the traditional method of executing on realty to satisfy

a judgment. Remand is necessary to explore the issue of

levying pursuant to MCL 600.6018. Therefore, the trial

court erred by discharging the judgment lien and erred

by not considering MCL 600.6018. Consistently with

our holding, the Dutkaviches’ counterclaim seeking to

hold Thomas personally liable on a money judgment

was properly dismissed; Thomas’s slander-of-title

claim, which pertained to the judgment lien, should

have been dismissed; Thomas’s quiet-title count should

have been dismissed with regard to his request that the

court discharge the judgment lien; and, with regard to

levy and foreclosure under the quiet-title count, Tho-

mas was entitled to the favorable ruling relative to the

MJLA, but levying under MCL 600.6018 needs to be

examined on remand.

Accordingly, we affirm in part, reverse in part, and

remand. We do not retain jurisdiction. No party having

fully prevailed, taxable costs are not awarded under

MCR 7.219.

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NASON v STATE EMPLOYEES’ RETIREMENT SYSTEM

Docket No. 290431. Submitted October 12, 2010, at Marquette. Decided

October 28, 2010, at 9:10 a.m.

Michael Nason, a corrections officer, shattered his right heel bone

while on vacation and submitted an application for non-duty-

related disability retirement benefits to the Office of Retirement

Services, which denied the application. Nason then sought a

hearing with the State Office of Administrative Hearings and

Rules. Following a hearing, the hearing referee issued a proposal

for decision, concluding that Nason had suffered a total and

permanent disability that rendered him unable to adequately and

safely perform his job and that he was entitled to benefits. The

hearing referee recommended that the State Employees’ Retire-

ment Board adopt her findings of fact and conclusions of law. The

State Employees’ Retirement System filed exceptions, challenging

the hearing referee’s recommendation. The board, relying on

Knauss v State Employees’ Retirement Sys, 143 Mich App 644

(1985), determined that petitioner was not entitled to non-duty-

related disability retirement status and benefits under MCL 38.24

because, on the basis of Nason’s past experience and training, he

was still able to perform jobs other than his corrections officer job.

Nason appealed in the Marquette Circuit Court, and the court,

Thomas L. Solka, J., reversed and remanded the case to the board

for the entry of a decision awarding Nason non-duty-related

disability retirement benefits. The Court of Appeals granted the

retirement system’s application for leave to appeal.

The Court of Appeals held:

MCL 38.24(1) sets forth the requirements for retirement from

state employment because of total incapacitation not related to the

employee’s performance of his or her duty. The plain and unam-

biguous language of MCL 38.24(1)(b), which refers to the total

incapacitation of a member of the retirement system for further

performance of duty, only allows consideration of whether the

member can perform the state job from which the member seeks

retirement because of a non-duty-related injury or disease, not

other employment positions or fields for which the member may be

qualified by experience and training. When determining whether

416 290 M

ICH

416 [Oct

the member is totally incapacitated, it is impermissible to contem-

plate other jobs or employment fields that might be suitable for the

member. The total incapacitation must be related to the member’s

performance as a state employee and the member’s incapacity to

continue performing, or to further perform, the state job from

which the member seeks retirement. To the extent that Knauss,

which is not binding under MCR 7.215(J)(1), conflicted with this

holding, it must be disavowed. The circuit court’s order must be

vacated, and the case must be remanded to the board to address

the issue whether Nason was totally incapacitated relative to his

job as a corrections officer.

Circuit court order vacated and case remanded to the State

Employees’ Retirement Board for further proceedings.

MPLOYMENT —

TATE

MPLOYEES —

ETIREMENT —

-D

UTY

-R

ELATED

NJURY

ISEASE —

ORDS AND

HRASES —

UTY —

OTALLY

NCAPACITATED

The term “duty” in the phrase “totally incapacitated for further

performance of duty” in MCL 38.24(1)(b) refers or relates solely to

the state job from which the member of the State Employees’

Retirement System seeks retirement on the basis of a non-duty-

related injury or disease; when determining whether the member

is totally incapacitated an thus eligible to retire, it is impermissible

to consider other jobs or employment fields that might be suitable

for the member; total incapacitation relates solely to the incapacity

of the member to continue performing, or to further perform, the

state job from which the member seeks retirement.

Pence & Numinen, P.C. (by Karl P. Numinen and

Melanie J. Rohr), for Michael Nason.

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

Solicitor General, and Stephen M. Rideout and Kyle P.

McLaughlin, Assistant Attorneys General, for the State

Employees’ Retirement System.

Before: M

URPHY

, C.J., and B

ECKERING

and M. J. K

ELLY

JJ.

URPHY

, C.J. In this case involving petitioner’s re-

quest for non-duty-related disability retirement status

and benefits pursuant to § 24 of the State Employees’

Retirement Act (SERA), MCL 38.1 et seq., respondent,

2010] N

ASON V

SERS 417

the State Employees’ Retirement System (SERS), ap-

peals by leave granted the circuit court’s order that

reversed the decision of the State Employees’ Retire-

ment Board (the Board) to deny petitioner retirement

benefits.

We vacate the circuit court’s order and re-

mand the case to the Board for further proceedings

consistent with this opinion.

I. OVERVIEW

Petitioner, a corrections officer, shattered his right

calcaneus or heel bone while on vacation and subse-

quently submitted an application for retirement ben-

efits to the Office of Retirement Services, which denied

the application. Petitioner, seeking to dispute the appli-

cation denial, then filed a request for a hearing with the

State Office of Administrative Hearings and Rules, and

a hearing was scheduled pursuant to the Administra-

tive Procedures Act (APA), MCL 24.201 et seq. Follow-

ing a hearing before a hearing referee, the referee

issued a proposal for decision, determining that peti-

tioner had suffered a total and permanent disability,

that the disability rendered petitioner unable to ad-

equately and safely perform his job as a corrections

officer, and that petitioner was entitled to benefits. The

hearing referee recommended that the Board adopt her

findings of fact and conclusions of law. The SERS filed

exceptions to the proposal for decision, challenging the

hearing referee’s recommendation.

We note that the administrative proceedings initiated by petitioner

listed the SERS as the respondent, but in the circuit court appeal the

Board was named as the respondent. On appeal in this Court, the filings

by respondent-appellant refer to the SERS as the respondent. Because we

believe that the SERS is the properly designated respondent, with the

Board being the arbiter of the dispute, we shall treat the SERS as the

respondent-appellant.

418 290 M

ICH

416 [Oct

The Board, relying on Knauss v State Employees’

Retirement Sys, 143 Mich App 644; 372 NW2d 643

(1985), determined that petitioner was not entitled to

retirement status and benefits under § 24 of the SERA,

MCL 38.24, because petitioner, on the basis of his past

experience and training, was still able to perform jobs

other than a corrections officer. On petitioner’s appeal

in the circuit court, the court reversed and remanded

the case to the Board for entry of a decision awarding

petitioner non-duty-related disability retirement ben-

efits. The circuit court placed the focus on petitioner’s

experience and training as a corrections officer, reason-

ing that the Board had “reached too far back into

[petitioner’s] employment history . . . before he had any

real training and experience....”

We hold that, when read in context, the plain and

unambiguous language of MCL 38.24(1)(b), which re-

fers to a member’s

“total[] incapacitat[ion] for further

performance of duty,” only allows consideration of

whether a member can perform the state job from which

the member seeks retirement because of the non-duty-

related injury or disease, not other employment positions

or fields for which the member may be qualified by

experience and training. To the extent that Knauss, which

is not binding on us, MCR 7.215(J)(1), conflicts with our

holding, it is disavowed, given that it did not honor the

comparable language in MCL 38.21, the statutory provi-

sion that governs duty-related disability retirement status

and benefits. Because it is unclear from its decision

whether the Board found that petitioner was totally

incapacitated relative to his job as a corrections officer, we

vacate the circuit court’s order and remand the case to the

Board to directly address that issue.

For purposes of the SERA, a “member” is “a state employee included

in the membership of the retirement system[.]” MCL 38.1f(1).

2010] N

ASON V

SERS 419

II. UNDERLYING FACTS

At the administrative hearing, petitioner testified

that he was 44 years of age, that he was a high school

graduate, and that he had taken one semester of crimi-

nal justice courses, as required to obtain employment

with the Michigan Department of Corrections (DOC).

Following graduation from high school, petitioner had

worked for Marquette Bottling Works as a truck driver

and salesman of Pepsi products for approximately five

years. He next worked for Nelson Chevy-Olds selling

cars for 2

years. Petitioner further testified that he

also worked odd jobs, including a job at his parents’

store and selling satellite dishes door to door. He started

working with the DOC in April 1989.

In February 2006, petitioner was in Tobago on vaca-

tion, and as he was walking out of the ocean, a roughly

15-foot wave crested, picking him up and driving his

right heel into the hard sand. Petitioner suffered a

shattered right calcaneus. He was placed on long-term

disability in March 2006.

Petitioner originally saw an orthopedic surgeon, Dr.

Robert H. Blotter, about a month after the accident. As

a result of the injury, petitioner underwent various

surgeries, with numerous pins and screws being placed

in his heel. He had to wear a full cast and was still

accommodating his injury at the time of the hearing.

Petitioner was told that his injury was permanent and

that he would be unable to return to work as a correc-

tions officer. He further testified: “I can’t run. I can’t do

steps. The ability to respond to any incident in the

prison just isn’t there. I don’t know if I would trust

myself letting somebody else being dependent on me

after working in the prison for 18 years.”

As of the hearing date, petitioner still suffered from

sharp pain while walking, along with discomfort and a

420 290 M

ICH

416 [Oct

tingling ache all day long. Petitioner testified that he

was told by Dr. Blotter that he will likely need to have

his ankle fused, which would cause him to completely

lose mobility but would remove the pain.

In a letter dated a few months before the hearing, Dr.

Blotter indicated that petitioner was stable, but he

would not be able to walk effectively on uneven surfaces

and might need additional surgery in several years if

the pain becomes worse. Dr. Blotter stated that he did

not believe that petitioner would be able to return to his

old job with the DOC. However, on the basis of indepen-

dent medical examinations, Dr. Russell E. Holmes

opined that petitioner’s injury did not render him

totally disabled.

On December 13, 2007, the hearing referee issued

her proposal for decision. As already indicated, the

referee, recommending that the Board adopt her factual

findings and legal conclusions, determined that peti-

tioner had suffered a total and permanent disability,

that the disability rendered petitioner unable to ad-

equately and safely perform his job as a corrections

officer, and that he was entitled to benefits. The hearing

referee focused solely on petitioner’s job as a corrections

officer with the DOC, observing:

Petitioner[] submitted substantive and material evi-

dence that he has a total and permanent disability, which

shows that he has met the criteria for non-duty disability

retirement benefits pursuant to Section 24 of the Act. The

Petitioner[’s] employment history with the State [of]

We note that the parties stipulated at the hearing that petitioner’s

application was filed within one year of his termination from state

employment and that petitioner was a state employee for at least 10 years

before his termination. See MCL 38.24(1)(a) (an application for benefits

must be filed no later than one year after termination of state employ-

ment) and (c) (the member must have been a state employee for a

minimum of 10 years).

2010] N

ASON V

SERS 421

Michigan has been only as a corrections officer. With his

current impairment, the Petitioner would not be able to

guarantee the safety and security of the prison inmates and

his fellow corrections officer[s]. He walks with a limp and

sometimes uses a cane when necessary, which makes his

impairment apparent and obvious. The Petitioner is unable

to stand for long periods of time, run, and walk on uneven

surfaces. He could be a target or weak point for the

inmates, which would put the other prison inmates and

corrections officers at increased risk if he was to return to

his job. Finally, the Petitioner’s employer did not make any

reasonable accommodations so that he could return to his

correction officer position with his limitations.

The SERS filed exceptions with the Board with

respect to the hearing referee’s recommendation. The

Board, declining to adopt the referee’s recommendation

and taking note of petitioner’s work history, issued a

decision and order on April 10, 2008, ruling, as follows:

1. In this proceeding Petitioner has the burden of

proving, by a preponderance of the evidence, that he is

entitled to non-duty disability retirement benefits under

Section 24 of the Act. Petitioner must show that he is

unable to engage in employment reasonably related to his

past experience and training because of a disability that is

likely to be permanent. Knauss [143 Mich App 644].

2. While the Petitioner presented documentation from

his treating physician, Dr. Blotter, that he will not be able

to run or walk effectively on uneven surfaces, the Peti-

tioner can still perform other jobs that he has performed in

the past, as he possesses experience and training in a

number of occupations that he was employed in prior to

working for the state.

3. As the Petitioner has not established by a preponder-

ance of the evidence that he cannot engage in employment

reasonably related to his past experience and training, the

Petitioner is not eligible for non-duty disability retirement

benefits pursuant to MCL 38.24.

422 290 M

ICH

416 [Oct

Petitioner appealed in the circuit court, arguing that

the Board’s ruling was erroneous as a matter of law and

that the decision was arbitrary, capricious, and based on

a misapplication of the law. At oral argument in the

circuit court, the court opined:

I think the question is, is [petitioner] able to return to

employment, based on his training and his experience, that

he is qualified to perform. And I think we have to look at

this in the context of 17 years of employment, much like

the 10-year [licensed practical nurse] in the Knauss case,

his training, taking courses to qualify to apply for employ-

ment, and then training for work with the [DOC]. It is a

matter of relativity, but I think, frankly, the board reached

too far back into...[petitioner’s] employment history, all

the way to post high school, before he had any real training

and experience, to reach the conclusion that he was able to

perform some of that work, therefore he did not meet the

test of total and permanent incapacity.

I find this to be an error of law by the board in

application of the Knauss case to the statute, and by reason

of that error, I’m going to remand this back to the board for

entry of a decision adopting the proposal for decision of the

[hearing referee]....Thatisthedecision of the Court.

In an order subsequently entered by the circuit court,

the court reversed the Board’s decision and remanded

the case for entry of an order approving petitioner’s

application for non-duty-related disability retirement

benefits. The SERS appeals by leave granted.

III. ANALYSIS

A. STANDARD OF REVIEW—CIRCUIT COURT

In Dignan v Mich Pub Sch Employees Retirement Bd,

253 Mich App 571, 576; 659 NW2d 629 (2002), this

Court, setting forth the applicable standard of review

relative to a circuit court’s review of a decision of the

Board, stated:

2010] N

ASON V

SERS 423

A circuit court’s review of an administrative agency’s

decision is limited to determining whether the decision was

contrary to law, was supported by competent, material, and

substantial evidence on the whole record, was arbitrary or

capricious, was clearly an abuse of discretion, or was

otherwise affected by a substantial and material error of

law. “Substantial” means evidence that a reasoning mind

would accept as sufficient to support a conclusion. Courts

should accord due deference to administrative expertise

and not invade administrative fact finding by displacing an

agency’s choice between two reasonably differing views.

[Citations omitted.]

B. OUR STANDARD OF REVIEW

We review a circuit court’s decision on an adminis-

trative appeal to determine whether the circuit court

applied correct legal principles and whether the court

misapprehended or grossly misapplied the substantial-

evidence test to the agency’s factual findings, which

essentially constitutes a clearly erroneous standard of

review. Jackson-Rabon v State Employees’ Retirement

Sys, 266 Mich App 118, 119; 698 NW2d 157 (2005). A

finding is clearly erroneous when, after review of the

record, this Court is left with a definite and firm

conviction that a mistake was made. Id. at 119-120.

Further, we ultimately decide this case on the basis of

our interpretation of MCL 38.24, and this Court re-

views de novo issues of statutory construction. In re

Complaint of Rovas Against SBC Mich, 482 Mich 90,

102; 754 NW2d 259 (2008). “When considering an

agency’s statutory construction, the primary question

presented is whether the interpretation is consistent

with or contrary to the plain language of the statute.”

Id. at 108. Although a court must consider an agency’s

interpretation of a statute, “the court’s ultimate con-

cern is a proper construction of the plain language of

424 290 M

ICH

416 [Oct

the statute.” Id. We do note that in the case at bar the

Board relied on Knauss in regard to the interpretation

of MCL 38.24 and not on any independent agency

construction of the statute.

C. GOVERNING PRINCIPLES OF STATUTORY CONSTRUCTION

In Zwiers v Growney, 286 Mich App 38, 44; 778

NW2d 81 (2009), this Court recited the well-established

principles of statutory construction:

Our primary task in construing a statute is to discern

and give effect to the intent of the Legislature. The words

contained in a statute provide us with the most reliable

evidence of the Legislature’s intent. In ascertaining legis-

lative intent, this Court gives effect to every word, phrase,

and clause in the statute. We must consider both the plain

meaning of the critical words or phrases as well as their

placement and purpose in the statutory scheme. This Court

must avoid a construction that would render any part of a

statute surplusage or nugatory. The statutory language

must be read and understood in its grammatical context,

unless it is clear that something different was intended. If

the wording or language of a statute is unambiguous, the

Legislature is deemed to have intended the meaning clearly

expressed, and we must enforce the statute as written. A

necessary corollary of these principles is that a court may

read nothing into an unambiguous statute that is not

within the manifest intent of the Legislature as derived

from the words of the statute itself. [Citations and quota-

tion marks omitted.]

Keeping these principles of statutory construction in

mind, we commence our discussion of MCL 38.24.

D. DISCUSSION

Before examining this Court’s decision in Knauss,we

shall independently construe § 24 of the SERA without

contemplation of Knauss. MCL 38.24(1) provides:

2010] N

ASON V

SERS 425

Except as may otherwise be provided in [MCL 38.33 and

38.34], a member who becomes totally incapacitated for

duty because of a personal injury or disease that is not the

natural and proximate result of the member’s performance

of duty may be retired if all of the following apply:

(a) The member, the member’s personal representative

or guardian, the member’s department head, or the state

personnel director files an application on behalf of the

member with the retirement board no later than 1 year

after termination of the member’s state employment.

(b) A medical advisor conducts a medical examination of

the member and certifies in writing that the member is

mentally or physically totally incapacitated for further

performance of duty, that the incapacitation is likely to be

permanent, and that the member should be retired.

years. [Emphasis added.]

According to MCL 38.24(1)(b), the question of total

incapacitation is examined in relationship to the fur-

ther performance of duty. Thus, in general, a member

could be considered totally incapacitated if the mem-

ber’s injury prevents him or her from performing the

member’s particular job duties. But another member

with a different job, having the exact same injury, might

not be considered totally incapacitated if the member is

still capable of performing his or her particular job

duties. Stated otherwise, an injury that hinders one

person in performing his or her job duties might not

hinder another person who works in a different field

given the uniqueness of tasks related to each particular

job. And MCL 38.24(1)(b) requires consideration of the

injury-to-duty relationship. The issue then becomes

whether it is proper to consider not only the state job

and associated duties from which a member wishes to

retire because of an injury or disease, but also any other

job that the member, taking into consideration his or

426 290 M

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416 [Oct

her past training and experience, may still be capable of

performing. In resolving this issue, it is necessary to

unravel the meaning and extent of the word “duty” as

used in MCL 38.24(1)(b).

For the reasons hereinafter stated, we conclude that

“duty” refers or relates solely to the state job from

which the member seeks retirement on the basis of a

non-duty-related injury or disease; therefore, it is im-

permissible, in determining whether the member is

totally incapacitated, to contemplate other jobs or em-

ployment fields that might be suitable for the member.

We initially note that the term “duty” is not defined

in the SERA. See MCL 38.1c (definitions of words

beginning with the letter “d”). MCL 38.24(1) provides

that the injury or disease cannot be “the natural and

proximate result of the member’s performance of

duty....” MCL 38.21(1)(b), on the other hand, per-

tains to situations in which the injury or disease “is the

natural and proximate result of the member’s perfor-

mance of duty.” (Emphasis added.) These causation

provisions address two different scenarios: one in which

a member’s injury or disease arises directly from the

performance of duty and one in which the injury or

disease does not arise from the performance of duty. In

both instances, the language “performance of duty”

clearly and unambiguously refers to work-related or

job-related activities, which necessarily means that

“duty” can only relate to state employment. In other

words, the Legislature envisioned occasions when a

member is injured at work while on a state job and

occasions, like that which occurred here, when the

member, although employed in a state job at the time, is

injured outside work. Either way, the term “duty” is a

reference or relates to a state job held by the member. It

would be nonsensical and unworkable to conclude, for

2010] N

ASON V

SERS 427

purposes of causation under MCL 38.24(1) and

38.21(1)(b) that performance of “duty” related to per-

formance of a job or jobs, unrelated to state employ-

ment, for which a member had prior relevant training

and experience. And where that identical language,

“performance of duty,” is again used in MCL 38.24(1)(b)

with regard to total incapacitation, its definition, for

purposes of cohesiveness and harmony, must parallel its

meaning elsewhere in the statute and the SERA overall.

Accordingly, the term “duty” in MCL 38.24(1)(b) refers

or relates to state employment, and thus the total

incapacitation must relate to the member’s perfor-

mance as a state employee.

Because a member may have held different state jobs

during his or her career, and because a member may

have been injured while performing one particular state

job with the effect of the injury only becoming disabling

later while in a new state job, we next need to address

whether MCL 38.24(1)(b) requires contemplation of all

previous state jobs or only the one from which a

member seeks to retire. The answer to this question is

found in the use of the word “further” in MCL

38.24(1)(b) when describing the performance of duty.

This indicates that the Legislature was speaking of a

duty the performance of which would have been con-

tinuing or extended but for the injury or disease suf-

fered by the member. Thus, total incapacitation neces-

sarily relates solely to the incapacity of the member to

continue performing, or to further perform, the state

job from which the member seeks retirement. Addi-

tional support for this conclusion is found in MCL

38.33(a), which is referred to in MCL 38.24(1). MCL

38.33(a) provides for postretirement medical examina-

tions of persons retired under, in part, MCL 38.21 or

38.24. If, upon the medical examination, the medical

advisor reports and the Board concurs that the retiree

428 290 M

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416 [Oct

“is physically capable of resuming employment,” the

retiree must be restored to active service with the state

and the retirement benefits must be terminated. MCL

38.33(a) (emphasis added). To resume employment

means that the member would be picking up where he

or she left off, i.e., continuing the state job from which

the member retired. Determining the physical capacity

to work under MCL 38.33(a) is thus related to the

capacity to perform the state job from which the mem-

ber retired.

Furthermore, MCL 38.33(b) also supports our hold-

ing in this case, and it provides as follows:

If the secretary reports and certifies to the retirement

board that a person retired under... [MCL 38.24]...is

engaged in a gainful occupation paying more than the

difference between his or her disability retirement allow-

ance and his or her final compensation, and if the retire-

ment board concurs in the report, then his or her retire-

ment allowance shall be reduced to an amount which

together with the amount earned by him or her shall equal

his or her final compensation. Should the earnings of the

person retired under...[MCL38.24]...belater changed,

the amount of his or her retirement allowance shall be

further modified in like manner. [Emphasis added.]

This language clearly and unambiguously contem-

plates situations in which a member is employed, yet

has also retired from state employment because of a

non-duty-related injury or disease and is collecting state

disability retirement benefits. MCL 38.33(b) is com-

pletely consistent with our interpretation of MCL

38.24, given that, under our analysis, a member could

be totally incapacitated from performing his or her

state job and thus receive disability retirement benefits,

but not be totally incapacitated relative to performing a

different job and thus be “engaged in a gainful occupa-

tion,” MCL 38.33(b). For example, under MCL 38.33(b),

2010] N

ASON V

SERS 429

if a member’s final compensation (annual rate of pay)

was $50,000 at the time of retirement and the member

then began receiving $25,000 in annual retirement

benefits, the member would still be permitted to work

at a new job and earn up to $25,000 a year without loss

of any of his or her retirement benefits. Disability

retirement benefits are not terminated in full merely

because the member may be working at a new job for

which he or she has past experience and training.

We now examine this Court’s decision in Knauss. The

panel considered whether the petitioner, Teresa

Knauss, was eligible for duty-related disability retire-

ment benefits under MCL 38.21, which, as indicated,

contains the same language, “performance of duty,” as

MCL 38.24. Knauss worked as a licensed practical nurse

at a medical facility, and she injured her right knee in

the course of her employment. Because of her knee

injury, Knauss could no longer perform her nursing

duties. The Board denied her request for disability

retirement benefits, but the circuit court, for reasons

fairly consistent with our analysis in this opinion,

including citation of MCL 38.33(b), reversed that ruling

and awarded her benefits. The circuit court concluded

that the question whether there was a total disability

under the statute related to Knauss’s capacity to per-

form her previous job as a nurse. Knauss, 143 Mich App

at 645-648.

The Knauss panel essentially agreed with the circuit

court’s construction of the statute, but then deviated

from the circuit court’s analysis:

We also read MCL 38.33(b)... as anticipating that a

person receiving disability-retirement benefits could be

employed in another job. One cannot harmonize the Leg-

islature’s allowing a disabled person to work in another job

See the definitions contained in MCL 38.1e(2) and MCL 38.1b(2).

430 290 M

ICH

416 [Oct

while receiving benefits with the board’s interpretation of

“totally incapacitated for duty...” as meaning “totally

incapacitated from any duty”.

We disagree, however, with the trial court’s decision that

the Legislature intended that a person who cannot perform

his or her previous job should always be entitled to

disability-retirement benefits. In an analogous situation

dealing with total-disability benefits provided by a private

insurance company, this Court recognized that there are

three ways of interpreting the term “total disability”[.]

[Knauss, 143 Mich App at 648.]

The Knauss panel, quoting Chalmers v Metro Life Ins

Co, 86 Mich App 25, 30-31; 272 NW2d 188 (1978),

proceeded to list the three interpretations or views and

then held that the “intermediate view” would control.

Knauss, 143 Mich App at 649. The intermediate view

examines the question whether there is a total disabil-

ity by looking at whether a person is able to engage in

employment reasonably related to his or her past expe-

rience without limiting the examination to looking only

at the job that was held when the disability arose, but

also without being so expansive as to allow consider-

ation of any job whatsoever. Id. The Knauss Court,

which also cited this Court’s decision in Herring v

Golden State Mut Life Ins Co, 114 Mich App 148; 318

NW2d 641 (1982), then engaged in the following rea-

soning:

We recognize that the insurance policies involved in

Chalmers and Herring provided for benefits when the

insured was unable to engage in any and every gainful

occupation for which the insured was fitted by education,

training or experience. In other jurisdictions that have also

adopted the “intermediate” definition of total disability,

the courts have concluded that an insurance policy requir-

ing that the disabled person be unable to engage in any

gainful employment should be interpreted as providing

benefits when the person is unable to engage in employ-

2010] N

ASON V

SERS 431

ment reasonably related to the person’s past experience

and training. [Knauss, 143 Mich App at 649-650 (emphasis

added; citations omitted).]

Therefore, the Knauss panel not only entirely ig-

nored the language of MCL 38.21 and MCL 38.33

despite agreeing with the circuit court’s interpretation

of those provisions, it then proceeded to rely on cases

interpreting language from insurance policies that were

all-encompassing—i.e., considered any gainful employ-

ment based on past experience and training—and was

completely different from and contradictory to the

language of MCL 38.21.

Knauss is not binding on us,

MCR 7.215(J)(1), and we disavow it with respect to the

issue presented, given that it did not honor the plain

language of MCL 38.21, and by analogy MCL 38.24.

Finally, we acknowledge that in VanZandt v State

Employees’ Retirement Sys, 266 Mich App 579, 595-596;

701 NW2d 214 (2005), a case that is binding on us under

MCR 7.215(J)(1), this Court placed some reliance on

Knauss. However, VanZandt did not cite Knauss in

connection with the issue that we are addressing.

Rather, VanZandt, in citing Knauss, was addressing the

petitioner’s criticism that the Board, in rejecting her

claim for benefits, improperly relied on evidence of the

petitioner’s lifestyle and her ability to function outside

the workplace when making the determination whether

she was totally incapacitated (because of depression)

relative to performing her job as a youth specialist.

VanZandt, 266 Mich App at 594 (“[E]vidence that

petitioner was able to function normally in maintaining

a home and caring for three small children, two of

We note that the panel ended up affirming the circuit court’s decision,

not its analysis, on the basis that under the intermediate standard,

Knauss’s only training and experience was as a nurse. Knauss, 143 Mich

App at 650.

432 290 M

ICH

416 [Oct

whom had learning disabilities, is probative relative to

whether petitioner could function in a workplace set-

ting in which her primary responsibility was supervis-

ing troubled youth.”). Our holding is not in conflict with

VanZandt, and to the extent that elements of Knauss

supported the ruling in VanZandt, we are not disavow-

ing those elements of Knauss. Indeed, we would agree

that here, had there been any evidence showing that

petitioner was engaging in physical activities at home

that discredited his claim that he could not perform

comparable activities at the prison, that evidence would

certainly have been admissible.

IV. CONCLUSION

We hold that when read in context, the plain and

unambiguous language of MCL 38.24, which refers to a

member’s “total[] incapacitat[ion] for further perfor-

mance of duty,” only allows consideration of whether a

member can perform the state job from which the

member seeks retirement because of the non-duty-

related injury or disease, not other employment posi-

tions or fields for which the member may be qualified by

experience and training. To the extent that Knauss

conflicts with our holding, it is disavowed, given that it

did not honor the comparable language in MCL 38.21,

the statutory provision that governs duty-related dis-

ability retirement status and benefits. Because it is

unclear from its decision whether the Board found that

petitioner was totally incapacitated relative to his job as

a corrections officer, we vacate the circuit court’s order

and remand the case to the Board to directly address

that issue.

Vacated and remanded to the State Employees’ Re-

tirement Board for proceedings consistent with this

opinion. We do not retain jurisdiction.

2010] N

ASON V

SERS 433

McGRATH v ALLSTATE INSURANCE COMPANY

Docket No. 289210. Submitted June 15, 2010, at Lansing. Decided

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

James P. McGrath, as personal representative of the estate of Mary

J. McGrath, deceased, brought an action in the Otsego Circuit

Court against Allstate Insurance Company and Inergy Propane,

LLC, formerly known as Gaylord Gas, seeking damages for water

damage that occurred at Mary’s house in Gaylord when water

pipes ruptured because of a lack of heat in the house after the

propane tank ran out of propane. Allstate, which insured the

property, had denied coverage on the basis that Mary had failed to

comply with the requirement of the policy that she notify Allstate

of any changes in the use or occupancy of the residence premises.

Allstate noted that the home had not been used as Mary’s

residence for more than two years before the water damage

occurred and that Allstate had not been notified of that fact.

Gaylord Gas, which had had an agreement with Mary to keep the

propane tank full in return for Mary’s agreement to pay her bill

and keep the driveway reasonably clear of snow, had cancelled the

agreement after its delivery driver found the driveway to the

property impassable. Following case evaluation, the gas company

reached a settlement with plaintiff. The court, Janet M. Allen, J.,

denied two motions for summary disposition filed by Allstate. A

jury found in favor of plaintiff and, pursuant to stipulation,

Allstate was ordered to pay plaintiff $100,000. The court then

denied Allstate’s motion for postjudgment relief. Allstate appealed.

The Court of Appeals held:

1. The trial court erred when it denied Allstate’s motions for

summary disposition. The insurance policy did not cover the

damage to the house because, at the time of the loss, the house was

not a “dwelling” as defined by the policy. The policy defined

“dwelling” as a family building structure “where you reside”

(meaning the insured) and that was principally used as a private

residence. This section thus contained a statement of coverage

that required that the insured live at the premises at the time of

the loss. The policy stated that the “insured premises” means the

residence premises, and the coverage section stated that the

434 290 M

ICH

434 [Nov

insured’s “dwelling” was the covered property. The definition of

“residence premises” used the word “dwelling.” Therefore, the

term “dwelling” was an integral part of the term “residence

premises,” which in turn was an independent part of the term

“insured premises.” Because the phrase “where you reside” was

not merely used to describe the dwelling but was an independent

part of the definition of “residence premises,” the phrase was not

merely an affirmative warranty that the insured lived in the

dwelling when the insured originally entered into the insurance

contract, but required that the insured reside at the premises at

the time of the loss. Because Mary did not reside at the Gaylord

property at the time of the loss, she failed to comply with the policy

terms, and the trial court erred when it denied Allstate’s motions

for summary disposition.

2. The trial court erred by ascribing a technical meaning to the

undefined term “reside,” when the common understanding of the

term required that Mary live at the Gaylord address at the time of

the loss. While ambiguities in an insurance contract must be

construed against the insurer, which has a superior understanding

of the terms it employs, in order to bind relatively unsophisticated

insureds, insureds should not be allowed to employ a sophisticated

version of a term to create an ambiguity. It was undisputed that

Mary did not satisfy the unambiguous requirement that she

“reside” in the house when the loss occurred.

3. The court should have granted summary disposition in favor

of Allstate in light of Mary’s failure to provide adequate notice of

the change in occupancy of the Gaylord property. The policy placed

on the policyholder the responsibility to inform the insurer of a

change in occupancy. That Mary’s daughter notified Allstate that

Mary’s billing address had changed was insufficient as a matter of

law to put Allstate on notice that Mary no longer lived full-time at

the Gaylord property and did not obligate Allstate to inquire

further about the occupancy of the home. The judgment on the

jury verdict must be vacated

Reversed and judgment vacated.

1. I

NSURANCE —

ROPERTY

NSURANCE —

ORDS AND

HRASES —

WELLING —

ESIDE

Language in an insurance policy providing that to be a “dwelling”

covered by the policy, the building must be identified in the policy

declarations, the insured must reside there, and the building must

be used as a private residence indicates that the insured must

reside at the property not only at the time the policy becomes

2010] M

RATH V

LLSTATE

435

effective, but also at the time of a loss sought to be covered under

the policy; the term “reside” requires that the insured actually live

at the property.

2. I

NSURANCE —

ROPERTY

NSURANCE —

OTICE OF

HANGE OF

ILLING

DDRESS

—

OTICE OF

HANGE OF

CCUPANCY OF

NSURED

REMISES

An insured’s act of notifying its real property insurer that the

insured’s billing address has changed is insufficient as a matter of

law to put the insurer on notice that the insured no longer lived

full-time at the property or to obligate the insurer to inquire

further about the occupancy of the property.

Fabian, Sklar & King, P.C. (by Patrick A. King), for

James P. McGrath.

Garan Lucow Miller, P.C. (by Megan K. Cavanagh

and Michael J. Swogger), for Allstate Insurance Com-

pany.

Before: M

URRAY

,P.J., and S

AAD

and M. J. K

ELLY

,JJ.

AAD

, J. Defendant Allstate Insurance Company ap-

peals an order of judgment and an order that denied its

motion for postjudgment relief. Allstate also appeals

two orders that denied its motions for summary dispo-

sition. For the reasons set forth below, we reverse the

trial court’s denials of Allstate’s motions for summary

disposition and vacate the judgment on the jury verdict.

I. FACTS

In July 1992, the decedent, Mary McGrath, bought a

home in Gaylord, Michigan, and insured it with All-

state. Until 1998, Ms. McGrath lived in the Gaylord

home for most of the year and spent winters in Florida.

On November 5, 1992, Ms. McGrath executed a “keep

full” agreement with defendant Inergy Propane, LLC,

formerly known as Gaylord Gas (hereinafter “Gaylord

Gas”), to ensure that there was sufficient propane to

436 290 M

ICH

434 [Nov

heat the house during the winter. Under the agreement,

Gaylord Gas would send a delivery driver to the house

on a regular basis to check the amount of propane

remaining in the tank and add propane if needed. The

agreement with Gaylord Gas required Ms. McGrath to

pay her bill and ensure that the driveway remained

reasonably clear of snow.

In 1998, Ms. McGrath developed dementia and

Alzheimer’s disease and, as her condition deteriorated,

Ms. McGrath’s daughter Cathy moved into the Gaylord

house with Ms. McGrath to help take care of her. By

2003, Cathy was unable to care for her mother alone,

and Cathy and her siblings decided that Ms. McGrath

and Cathy should move to and live in an apartment in

Farmington Hills, where Ms. McGrath would be closer

to family and her doctors. Cathy changed Ms.

McGrath’s billing address and notified Allstate that the

insurance bills should be sent to their address in

Farmington Hills. After Ms. McGrath moved to Farm-

ington Hills, the Gaylord house was no longer used as a

full-time residence, though Ms. McGrath left the ma-

jority of her belongings there and family members

visited the house on occasion for weekends or holiday

vacations. Ms. McGrath also visited the Gaylord prop-

erty for a few days in October 2005. The record reflects

that Cathy spent a night at the Gaylord house around

Thanksgiving 2005, but no one else visited the property

during the winter of 2005-2006. In late May of 2006,

Brian McGrath, Ms. McGrath’s son, discovered that his

mother’s property had suffered extensive water damage.

Plaintiff , James McGrath, Ms. McGrath’s son, reported

the loss to Allstate, and Allstate paid for the initial cleanup

and investigated the cause of the damage.

Allstate concluded that the water damage was caused

by a frozen pipe that had ruptured because of a lack of

heat in the house. Sometime between November 2005

2010] M

RATH V

LLSTATE

437

and May 2006, the propane tank at the Gaylord prop-

erty ran out of fuel, which rendered the furnace inop-

erable. The record reflects that Gaylord Gas canceled

the “keep full” agreement with Ms. McGrath on Decem-

ber 19, 2005, after its delivery driver found the drive-

way impassable. It is undisputed that the driveway of

the Gaylord property was not plowed during the winter

of 2005-2006. On June 15, 2006, Allstate informed

plaintiff over the telephone that it would not pay for the

water damage, and Allstate sent a formal denial-of-

coverage letter on June 22, 2006.

Plaintiff filed a complaint against Allstate for breach

of contract, and he also asserted a claim of negligence

against Gaylord Gas. Plaintiff settled the claim against

Gaylord Gas after case evaluation. Allstate filed two

motions for summary disposition pursuant to MCR

2.116(C)(10), and the trial court denied both motions. A

jury found in favor of plaintiff and, pursuant to stipu-

lation, Allstate was ordered to pay plaintiff $100,000.

The trial court denied Allstate’s motion for postjudg-

ment relief on November 13, 2008.

II. ANALYSIS

We hold that the trial court erred when it denied

Allstate’s motions for summary disposition.

We review the denial of a motion for summary disposition de novo.

Hastings Mut Ins Co v Safety King, Inc, 286 Mich App 287, 291; 778 NW2d

275 (2009). A motion for summary disposition under MCR 2.116(C)(10) tests

the factual sufficiency of the case. Corley v Detroit Bd of Ed, 470 Mich 274,

278; 681 NW2d 342 (2004). The moving party is entitled to a grant of

summary disposition if the party demonstrates that no genuine issue of

material fact exists. Coblentz v City of Novi, 475 Mich 558, 569; 719 NW2d

73 (2006). “A genuine issue of material fact exists when the record leaves

open an issue on which reasonable minds could differ.” Bennett v Detroit

Police Chief, 274 Mich App 307, 317; 732 NW2d 164 (2007). A plaintiff must

support its claim with pleadings, affidavits, depositions, admissions, and any

438 290 M

ICH

434 [Nov

The rules of contract interpretation apply to the

interpretation of insurance contracts. Citizens Ins Co v

Pro-Seal Serv Group, Inc, 477 Mich 75, 82; 730 NW2d

682 (2007). The language of insurance contracts should

be read as a whole and must be construed to give effect

to every word, clause, and phrase. Klapp v United Ins

Group Agency, Inc, 468 Mich 459, 467; 663 NW2d 447

(2003). When the policy language is clear, a court must

enforce the specific language of the contract. Heniser v

Frankenmuth Mut Ins Co, 449 Mich 155, 160; 534

NW2d 502 (1995). However, if an ambiguity exists, it

should be construed against the insurer. Id. An insur-

ance contract is ambiguous if its provisions are subject

to more than one meaning. Vushaj v Farm Bureau Gen

Ins Co of Mich, 284 Mich App 513, 515; 773 NW2d 758

(2009), citing Raska v Farm Bureau Mut Ins Co of Mich,

412 Mich 355, 362; 314 NW2d 440 (1982). An insurance

contract is not ambiguous merely because a term is not

defined in the contract. Vushaj, 284 Mich App at 515.

Any terms not defined in the contract should be given

their plain and ordinary meaning, id., which may be

determined by consulting dictionaries, Citizens Ins Co,

477 Mich at 84.

In its motions for summary disposition, Allstate

argued that the policy does not cover the damage to the

Gaylord property because Ms. McGrath failed to comply

with the policy terms. Specifically, Allstate asserted

that, contrary to the requirements of the policy, Ms.

McGrath did not reside at the Gaylord property at the

time of the loss and failed to notify Allstate of the

change in title, occupancy, or use of the property. In

essence, Allstate claimed that because the nature of the

other admissible evidence. Coblentz, 475 Mich at 569. Mere speculation and

conjecture cannot give rise to a genuine issue of material fact. Quinto v

Cross & Peters Co, 451 Mich 358, 371-372; 547 NW2d 314 (1996).

2010] M

RATH V

LLSTATE

439

risk insured is greater for an unoccupied home, All-

state’s policy required that Ms. McGrath reside in the

home and notify Allstate if this changed. Allstate as-

serted that Ms. McGrath did not meet these obligations

of the policy.

We agree with Allstate that the insurance policy does

not cover the damage to the Gaylord house because, at

the time of the loss, it was not a “dwelling” as defined

by the policy. The policy states that Allstate will “cover

sudden and accidental direct physical loss” of covered

property, which includes “[y]our dwelling including

attached structures.” As defined in the policy, “ ‘You’ or

‘your’–means the person named on the Policy Declara-

tions as the insured and that person’s resident spouse.”

“Dwelling” is defined as “a one, two, three or four

family building structure, identified as the insured

property on the Policy Declarations, where you reside

and which is principally used as a private residence.”

The policy further states that the insured “must pay the

premium when due and comply with the policy terms

and conditions, and inform [Allstate] of any change in

title, use or occupancy of the residence premises.”

“Residence premises” is defined as “the dwelling,

other structures and land located at the address stated

on the Policy Declarations.”

The critical inquiry here is whether the phrase “where

you reside” in the definition of the covered “dwelling”

precludes coverage because of Ms. McGrath’s extended

absence from the insured property. Plaintiff contends that

the phrase “where you reside” is merely descriptive of the

property and that it constitutes only an affirmative war-

ranty that Ms. McGrath lived in the house when she

originally entered into the insurance contract with All-

state. Allstate maintains that the phrase “where you

440 290 M

ICH

434 [Nov

reside” is a statement of coverage that requires that the

insured live at the premises at the time of the loss.

We agree with Allstate. Random House Webster’s

College Dictionary (2000) defines the verb “reside” in

part as “to dwell permanently or for a considerable

time; live.” Accord The American Heritage Dictionary of

the English Language (3d ed, 1996) (“To live in a place

permanently or for an extended period.”). The policy

states that the “insured premises” means “the resi-

dence premises” and the coverage section states that

the insured’s “dwelling” is the covered property. (Bold-

face omitted.) The definition of “residence premises”

uses the word “dwelling,” which is specifically defined

as a building structure “where you reside and which is

principally used as a private residence.” (Emphasis

added and boldface omitted.) Thus, the term “dwelling”

is an integral part of the term “residence premises,”

which in turn is an independent part of the term

“insured premises.” In Heniser, 449 Mich at 167, our

Supreme Court ruled that, because the phrase “where

you reside” was “not used to describe the dwelling but

is an independent part of the definition of ‘residence

premises,’ ” the phrase is not merely an affirmative

warranty, but requires that the insured reside at the

premises at the time of the loss.

This differs from the policy in Reid v Hardware Mut

Ins Co of the Carolinas, Inc, 252 SC 339, 342; 166 SE2d

317 (1969), which was contrasted by the Heniser Court

and which described the property itself as a “one story

frame constructed, approved roof, owner occupied, one

family dwelling.” (Emphasis added.) In Reid, the court

ruled that the phrase describing the property as “owner

occupied” “is a description merely and is not an agree-

ment that the insured should continue in the occupa-

tion of it.” Id. at 346. The Heniser Court further

2010] M

RATH V

LLSTATE

441

observed that the “owner occupied” language in Reid

“was in a list of statements describing the building

covered by the policy,” making it “clear that ‘owner

occupied’ was simply a description of the dwelling in the

same way that stating the building had an ‘approved

roof’ merely commented on the structure at the time

the policy was created.” Heniser, 449 Mich at 167 n 13.

Again, here, “where you reside” is an independent part

of the definition of “dwelling,” which not only defines

the covered property, but is also incorporated in the

definition of “residence premises.” The language is not

merely descriptive of the Gaylord house, but constitutes

a statement of coverage; to be a “dwelling” covered by

the policy, the building must be identified in the policy

declarations, the insured must reside there, and the

building must be used as a private residence. This

indicates that the insured must reside at the property

not only at the time the policy becomes effective, but at

the time of the loss.

The trial court implicitly acknowledged that Ms.

McGrath had to reside at the Gaylord property when

the water damage occurred, but erroneously ruled that

plaintiff had established an issue of fact on this ques-

tion. Specifically, the trial court ruled that because

evidence showed that, despite her move to Farmington

Hills in 2003, Ms. McGrath intended to return to the

Gaylord house at some time in the future, she “resided”

in the house when the pipes burst during the winter of

2005-2006. We hold that the trial court’s ruling is based

on a misinterpretation of Heniser.InHeniser, the

plaintiff sold his property on a land contract, and the

property was destroyed by a fire a few months later.

Heniser, 449 Mich at 157. The insurer denied coverage

because Mr. Heniser did not reside in the house when

the fire occurred. Our Supreme Court noted that the

term “reside” may be ambiguous in some contexts, but

442 290 M

ICH

434 [Nov

was not ambiguous in Mr. Heniser’s policy, which,

again, provided that the “ ‘residence premises’ ” are

“ ‘where you reside....’” Id. at 158 n 1. The Court

observed that, in some circumstances, such as those

involving the Freedom of Information Act, MCL 15.231

et seq., or the Child Custody Act, MCL 722.21 et seq., the

term “reside” may have a legal or technical meaning

beyond mere physical presence, including “the intent to

live at that location at sometime in the future, a

meaning similar to the legal concept of domicile.”

Heniser, 449 Mich at 163. However, the Court declined

to rule that “reside” should be given a “sophisticated”

meaning in the home insurance context under the

policy language at issue. Id. The Court ultimately

concluded that Mr. Heniser could not satisfy either

interpretation of “reside” because, as a result of selling

the house, he did not physically live there and he clearly

lacked any intent to return. We hold that any discussion

by the Court in Heniser with regard to Mr. Heniser’s

failure to satisfy either the “general or popular mean-

ing” or “technical” standard was merely obiter dictum

and that the term “reside” requires that the insured

actually live at the property. Again, the Heniser Court

rejected the notion that a more technical meaning

should be applied in this context in order to construe an

unambiguous term in favor of insurance coverage:

The policy of interpreting ambiguities in a contract against

insurers is rooted in the fact that insurers have superior

understanding of the terms they employ, which should not

bind relatively unsophisticated insureds. This goal is not

furthered by allowing insureds to employ a sophisticated

version of a term to create a claim of ambiguity. [Id.]

As in Heniser, there is no ambiguity in the Allstate

policy issued to Ms. McGrath. Accordingly, it was error

for the trial court to ascribe a technical meaning to the

2010] M

RATH V

LLSTATE

443

term “reside” when the common understanding of the

term required that Ms. McGrath live at the Gaylord

address at the time of the loss. It is undisputed that Ms.

McGrath did not physically live at the Gaylord address

when the pipes froze and burst or for two years before

the loss and, therefore, she did not satisfy the require-

ment that she “reside” in the house when the loss

occurred.

The multiple risks assumed by an insurer in exchange

for an insurance premium are tied to an understanding

that the building structure covered is where the insured

dwells either permanently or for a considerable period

because the risks assumed are clearly affected by the

presence of the insured in the dwelling and the associated

activities stemming from this presence. Unoccupied or

vacant homes, with no resident present to oversee security

or maintenance, are at greater risk for break-ins, vandal-

ism, fire, and water damage of exactly the kind that

occurred in this case. We recognize that an insured may be

We also observe that Ms. McGrath arguably did not live at the

Gaylord address when the loss occurred or when the policy came into

effect. Justice L

EVIN

argued in his dissent in Heniser that if Mr. Heniser

had resided at the property when he received his homeowners insurance

renewal certificate, he may have reasonably concluded that he was

covered for the policy year. Heniser, 449 Mich at 175 (L

EVIN

, J., dissent-

ing). Here, in response to Allstate’s motion for summary disposition,

plaintiff pointed out that Allstate issued a renewal policy after Ms.

McGrath had moved out of the Gaylord house in 2003, and plaintiff

affirmatively argued that “[t]his was a different policy period, during

which a different insurance contract was in force.” Were we to conclude

that the phrase “where you reside” in the policy does not require that an

insured will be physically present in the dwelling throughout the policy

period, plaintiff’s position would suggest that Ms. McGrath had to at

least reside at the Gaylord property when she received the renewal

certificate or on the date it became effective. However, we decline to

address this issue because our holding resolves the matter and because,

despite plaintiff’s assertions, the parties did not attach evidence of a

policy renewal to their briefs below and this issue was not argued before

or decided by the trial court.

444 290 M

ICH

434 [Nov

away from a property temporarily for travel or because of

illness, and the policy clearly contemplates temporary

absences, without curtailing coverage. As one example,

the frozen-pipes exclusion limits an insured’s ability to

recover for a loss when a building structure is vacant or

unoccupied unless the insured takes reasonable measures

to prevent such damage. This exclusion implicitly recog-

nizes that the insured may be away from the property, but

be covered for the loss. This is not inconsistent with the

definition of “reside” as defined above. Indeed, the fact

that Ms. McGrath had established the habit of vacationing

in Florida during the winters in the 1990s did not change

the character of the dwelling or her living arrangements.

During that time, she resided on the property, albeit for

fewer than 12 months of the year, but it remained her

home base and the residence to which she regularly

returned. At issue here is undisputed evidence that Ms.

McGrath lived full-time in an apartment in Farmington

Hills for more than two years before the loss occurred. She

traveled once to the property for a very brief visit during

those years, and it is clear that the Farmington Hills

apartment had become her fixed residence. Because Ms.

McGrath did not reside at the Gaylord property, she failed

to comply with the policy terms, and the trial court erred

when it denied Allstate’s motions for summary disposi-

tion.

We also agree with Allstate that the trial court should

have granted Allstate’s motions for summary disposi-

tion in light of Ms. McGrath’s failure to provide ad-

equate notice of the change in occupancy of the Gaylord

property. Allstate’s argument relies on the following

language in the insurance policy:

In reliance on the information you have given us,

Allstate agrees to provide the coverages indicated on the

Policy Declarations. In return, you must pay the premium

2010] M

RATH V

LLSTATE

445

when due and comply with the policy terms and conditions,

and inform us of any changes in title, use or occupancy of

the residence premises.

Allstate also relies on the following language: “No suit

or action may be brought against us unless there has

been full compliance with all policy terms.”

Again, Ms. McGrath moved to Farmington Hills in

November 2003, and it is undisputed that Cathy noti-

fied Allstate of the change of billing address. The

question is whether Cathy’s notification was sufficient

to put Allstate on notice that there might have been a

change in occupancy of the insured property. The par-

ties do not dispute that it is common in the context of

insurance contracts that the insured’s billing address is

different from the address of the property insured.

Importantly, the term “occupancy” in this policy is

found in the phrase “any change in title, use or occu-

pancy of the residence premises.” The use of the

term “title” appears to address any changes in posses-

sory interest of the Gaylord property. Further, the

policy defines “residence premises” as “the dwelling,

other structures and land located at the address,” and

“dwelling” is defined as structures where the insured

“reside[s].” In keeping with our holding that Ms.

McGrath did not reside on the property, the home

cannot be deemed her dwelling and thus was not her

residence premises. Accordingly, because Ms. McGrath

did not reside on the Gaylord property, she did not

occupy it, which is a change requiring notification.

Plaintiff asserts that, because Ms. McGrath lived in

the Gaylord home for approximately 14 years and

because no evidence showed that she had ever changed

her billing address before, Allstate should have ques-

tioned why Cathy changed the billing address. However,

the policy places on the policyholder the responsibility

446 290 M

ICH

434 [Nov

to inform the insurer of a change in occupancy. Further,

a person may change a billing address for myriad

reasons that would not raise a suspicion that residency

has changed. As one example, the children of an elderly

person may decide to assume the responsibility for

paying a parent’s bills, and thus make arrangements for

those bills to be sent somewhere other than the parent’s

residential address. Because a billing address may differ

from the address of a residence premises for various

reasons, the act of notifying Allstate that Ms.

McGrath’s billing address had changed was insufficient

as a matter of law to put Allstate on notice that Ms.

McGrath no longer lived full-time at the Gaylord prop-

erty.

On this discrete question, we agree with the reason-

ing in Luster Estate v Allstate Ins Co, 598 F3d 903 (CA

7, 2010). In that case, Mrs. Luster was injured in a fall

when she was 83 years old and, after a hospitalization,

she moved to an extended-care facility, leaving unoccu-

pied her home insured by Allstate. Id. at 905. Mrs.

Luster executed a power of attorney to her lawyer, Rick

Gikas, who notified Allstate about his appointment and

changed the billing address for the insurance premi-

ums. Id. Mrs. Luster never returned to the home, it

remained unoccupied, and she died 4

years after her

injury. Id. Three months after her death, the house

caught fire, and Mr. Gikas filed a claim with Allstate,

which denied the claim after learning that the house

had been unoccupied for several years. Id. When con-

sidering whether there was adequate notice by virtue of

the change of billing address, the Court opined:

Gikas didn’t notify Allstate until after the fire that the

house was unoccupied. He argues that the notice he gave

Allstate, shortly after Mrs. Luster left the house for good—

that he had a power of attorney and premiums should be

billed to his office—gave the insurance company con-

2010] M

RATH V

LLSTATE

447

structive notice that the house was unoccupied, or at least

obligated the company to inquire about its occupancy. That

is a frivolous argument. Allstate knew that Luster was 83,

so it would come as no surprise to learn that she had

executed a power of attorney and that the holder of the

power would be handling her finances. That did not indi-

cate that she’d moved out of the house. [Id. at 906.]

As in Luster, we hold that the mere change of the billing

address by Cathy for her elderly parent did not put

Allstate on notice that Ms. McGrath had moved away

from the insured property and did not obligate Allstate

to inquire further about the occupancy of the home.

Indeed, since Cathy notified Allstate of a change in the

billing address, she could clearly have advised Allstate

of the crucial fact that her mother no longer lived at the

Gaylord address. We will not speculate why Cathy failed

to do so, but rule only that it was the insured’s

obligation to do so under the policy. The failure to notify

Allstate about the change in occupancy violated the

terms of the contract, and Allstate could properly deny

coverage for a loss that occurred more than two years

later. This constituted another basis on which the trial

court should have granted summary disposition to

Allstate.

In light of our rulings, we need not consider the other

arguments raised on appeal. For the reasons given, we

reverse the trial court’s denials of summary disposition

to Allstate and vacate the judgment on the jury verdict.

448 290 M

ICH

434 [Nov

HOFFNER v LANCTOE

Docket No. 292275. Submitted October 12, 2010, at Marquette. Decided

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

Charlotte Hoffner brought a personal injury action in the Gogebic

Circuit Court against Fitness Xpress (an exercise facility), Mousie,

Incorporated (which operated Fitness Xpress), Pamela Mack and

Tiffani Aho (who owned Mousie), and Richard and Lori Lanctoe

(who owned the building and property where Mousie leased space

for Fitness Xpress) after she slipped and fell on an icy sidewalk in

front of the facility. Blue Cross Blue Shield of Michigan, Hoffner’s

insurer, intervened as a party plaintiff. Defendants moved for

summary disposition, arguing that Aho, Mack, and Fitness Xpress

should be dismissed from the suit because they did not have

possession and control of the sidewalk outside the facility, that all

defendants had been released from liability by a release Hoffner

signed as part of her membership with Fitness Xpress, and that

defendants owed no duty to Hoffner because the ice was an open

and obvious hazard that was avoidable. The court, Joseph D.

Zeleznik, J., found there were genuine issues of material fact

concerning whether Fitness Xpress, Mack, and Aho could be held

responsible as possessors of the premises where Hoffner fell, the

scope of the release, and the nature of the icy condition that led to

Hoffner’s injury. Defendants appealed.

The Court of Appeals held:

1. The trial court erred by finding that a genuine question of

material fact existed concerning whether Fitness Xpress, Mack,

and Aho possessed the premises where Hoffner fell. Premises

liability is based on both possession and control over the land

because the person having possession and control is normally best

able to prevent harm to others. Possession for purposes of pre-

mises liability depends on the actual exercise of dominion and

control over the property. The evidence included Fitness Xpress’s

rental contract, which expressly provided that the Lanctoes were

responsible for snow removal for the sidewalks. There were several

other businesses in the same building that used the same sidewalk

and, although Fitness Xpress occasionally salted the sidewalk, it

had not assumed the duty of doing so, nor had it taken possession

2010] H

OFFNER V

ANCTOE

449

of the sidewalk. Thus, the evidence did not support a conclusion

that Fitness Xpress, Mack, and Aho exercised dominion and

control over the sidewalk. Those defendants were entitled to

summary disposition as a matter of law.

2. The trial court did not err by finding that questions of

material fact existed concerning the effect of the release signed by

Hoffner. A release must be interpreted according to its plain and

ordinary meaning. If the contractual language is clear, construc-

tion of the release is a question of law for the court. However, if the

release is subject to two reasonable interpretations, factual devel-

opment is necessary to determine the intent of the parties. The

release could reasonably have been interpreted broadly, as releas-

ing all claims, including a slip and fall, or narrowly, as releasing

only claims related to the exercise and weight loss activities

occurring at Fitness Xpress. Because the release was ambiguous,

summary disposition was not appropriate.

3. The trial court correctly denied summary disposition on the

issue of premises liability because the icy condition was effectively

unavoidable. While a landowner’s duty of care to invitees does not

generally require the removal of open and obvious dangers, a

landowner has a duty to protect invitees from an open and obvious

danger when special aspects of the condition make it unreasonably

dangerous, that is, when the danger is effectively unavoidable or

imposes a uniquely high likelihood of harm or severity of harm. A

business owner cannot defend a claim by arguing that customers it

has invited onto its premises technically had the option of declin-

ing the invitation and that the condition was therefore avoidable.

Even though the ice in this case, which was at the facility’s only

customer entrance, was an open and obvious hazard, it was

effectively unavoidable and therefore defendants had a duty to

protect invitees from that hazard. There was no alternative route

that Hoffner could have used to enter the facility, and because she

had a contract with Fitness Xpress, she had been invited to enter

the premises. Defendants could not avoid their duty of care owed

to customers by arguing that Hoffner did not have to enter the

facility.

Affirmed in part, reversed in part, and remanded.

1. N

EGLIGENCE —

REMISES

IABILITY —

REMISES

OSSESSOR —

UTY

Premises liability is based on both possession and control over the

land because the person having possession and control is normally

best able to prevent harm to others; possession for purposes of

premises liability depends on the actual exercise of dominion and

control over the property; a person, however, may be under a legal

450 290 M

ICH

449 [Nov

duty with respect to premises by voluntarily assuming a function

that the person is not legally required to perform.

2. N

EGLIGENCE —

REMISES

IABILITY —

NVITEES —

PEN AND

BVIOUS

ANGERS —

PECIAL

SPECTS

A landowner generally does not have a duty to remove open and

obvious dangers, but a landowner does have a duty to protect

invitees from an open and obvious danger when special aspects of

the condition make it unreasonably dangerous, that is, when the

danger is effectively unavoidable or imposes a uniquely high

likelihood of harm or severity of harm; a business owner cannot

defend a claim by arguing that customers it has invited onto its

premises technically had the option of declining the invitation and

that the condition was therefore avoidable.

A. Dennis Cossi Law Office (by A. Dennis Cossi) for

Charlotte Hoffner.

Dean & Pope, P.C. (by Michael K. Pope), for Richard

and Lori Lanctoe, Pamela Mack, Tiffani Aho, and

Mousie, Incorporated.

Before: M

URPHY

, C.J., and B

ECKERING

and M. J. K

ELLY

JJ.

URIAM

. Defendants appeal by leave granted an

order of the trial court denying their motion for sum-

mary disposition pursuant to MCR 2.116(C)(7) and (10)

in this premises liability claim. The trial court found

that there were genuine issues of material fact concern-

ing whether certain defendants could be held respon-

sible as “possessors” of the premises where plaintiff

Charlotte Hoffner fell, the scope of a release signed by

Hoffner, and the nature of the condition on defendants’

premises that led to Hoffner’s injury. We affirm in part,

reverse in part, and remand.

On January 28, 2006, Hoffner slipped and fell on ice

on the sidewalk in front of the entrance to an exercise

2010] H

OFFNER V

ANCTOE

451

facility, defendant Fitness Xpress.

Hoffner had joined

Fitness Xpress approximately two weeks before her fall

and was entering the facility at its only customer

entrance. Hoffner reported that she saw the sidewalk

had “glare ice” on it as she approached from her vehicle,

but she believed that because she was wearing good

boots and it was a short distance, she could safely walk

across it to enter Fitness Xpress.

I. POSSESSION AND CONTROL OF THE PREMISES

Defendants argue that Aho, Mack, and Fitness

Xpress could not properly be included as defendants

because they did not have possession and control of the

sidewalk outside the exercise facility where Hoffner fell.

We agree.

A trial court’s determination of a motion for sum-

mary disposition is reviewed de novo. Ormsby v Capital

Welding, Inc, 471 Mich 45, 52; 684 NW2d 320 (2004).

When reviewing a motion brought under MCR

2.116(C)(10), the court considers the affidavits, deposi-

tions, pleadings, admissions, and other evidence sub-

mitted by the parties in the light most favorable to the

nonmoving party. Rose v Nat’l Auction Group, 466 Mich

453, 461; 646 NW2d 455 (2002). Summary disposition is

appropriate if there is no genuine issue regarding any

material fact and the moving party is entitled to judg-

ment as a matter of law. Id.

“[T]he invitee status of a plaintiff, alone, does not

create a duty under premises liability law unless the

invitor has possession and control of the premises on

which the plaintiff was injured.” Orel v Uni-Rak Sales Co,

Fitness Xpress was operated by defendant Mousie, Incorporated,

which was owned by defendants Pamela Mack and Tiffani Aho. Defen-

dants Richard and Lori Lanctoe owned the building and property where

Mousie, Incorporated, leased space for Fitness Xpress.

452 290 M

ICH

449 [Nov

Inc, 454 Mich 564, 565; 563 NW2d 241 (1997). In the

context of premises liability law, possession has been

defined as “ ‘[t]he right under which one may exercise

control over something to the exclusion of all others.’”

DerbabianvS&CSnowplowing, Inc, 249 Mich App 695,

703; 644 NW2d 779 (2002), quoting Black’s Law

Dictionary (7th ed). Control has been defined as “ ‘exer-

cis[ing] restraint or direction over; dominate, regulate, or

command,’ ” Derbabian, 249 Mich App at 703, quoting

Random House Webster’s College Dictionary (1995), p

297, and as “ ‘the power to... manage, direct, or over-

see,’ ” Derbabian, 249 Mich App at 703-704, quoting

Black’s Law Dictionary (7th ed). While possession and

control are certainly indicative of title ownership of land,

ownership of the land alone is not dispositive because

these possessory rights can be “ ‘loaned’ ” to another.

Orel, 454 Mich at 568, quoting Merritt v Nickelson, 407

Mich 544, 552-553; 287 NW2d 178 (1980). The question is

whether Aho, Mack, and Fitness Xpress, as leaseholders of

an area inside the Lanctoes’ building, had possession and

control of the sidewalk outside their facility.

In Merritt, 407 Mich at 552, quoting 2 Restatement

Torts, 2d, § 328 E, p 170, the Court defined “possessor

of land” as follows:

“(a) a person who is in occupation of the land with

intent to control it or

“(b) a person who has been in occupation of land with

intent to control it, if no other person has subsequently

occupied it with intent to control it, or

“(c) a person who is entitled to immediate occupation of

the land, if no other person is in possession under Clauses

(a) and (b).”

See also Derbabian, 249 Mich App at 702. Premises

liability is based on both possession and control over the

land because the person having such possession and

2010] H

OFFNER V

ANCTOE

453

control is normally best able to prevent harm to others.

Id. at 705, citing Merritt, 407 Mich at 552.

Paragraph 19 of the lease between the Lanctoes and

Fitness Xpress specifically addressed who was respon-

sible for the care of the sidewalk and parking lot:

LANDLORD shall be responsible for removal of snow

from the leased facility as LANDLORD deems necessary,

including from the roof, sidewalks, and parking lots.

LANDLORD shall be responsible, and shall hold TENANT

harmless for, any and all injuries, accidents, or other

liability related to [its] failure to maintain and remove

snow according to [its] obligations under this Lease.

Additionally, evidence was presented that defendants

understood that the Lanctoes were responsible for the

exterior areas of the premises, but Fitness Xpress had a

bucket of salt that it used to help keep the sidewalk

clear. There was evidence that the Lanctoes cleared

snow and ice from the area later during the day of

Hoffner’s fall. The Lanctoes’ building also housed sev-

eral other businesses, including Lori Lanctoe’s, which

had customers entering the building using the sidewalk

that fronted Fitness Xpress.

Plaintiffs argue that ¶ 19 of the lease specifically

referred to the sidewalk as part of the “leased facility,”

thus establishing Fitness Xpress’s duty to maintain the

area. However, the lease specifically stated that Fitness

Xpress was leasing “approximately 2000 square feet of

floor space situated in the rental unit of a building.”

Plaintiffs also argue that Fitness Xpress exercised con-

trol over the parking lot and sidewalk for the purposes

of parking customers’ cars and entrance into the build-

ing. However, this use of the premises did not necessar-

ily establish control over the area. As noted, there were

several other businesses using the same building.

454 290 M

ICH

449 [Nov

Plaintiffs also argue that Fitness Xpress assumed a

duty by applying salt to the sidewalk at times. “A party

may be under a legal duty when it voluntarily assumes a

function that it is not legally required to perform,” and

once “a duty is voluntarily assumed, it must be performed

with some degree of skill and care.” ZychowskivAJ

Marshall Co, Inc, 233 Mich App 229, 231; 590 NW2d 301

(1998). However, the evidence did not demonstrate that

the Fitness Xpress defendants assumed care of the side-

walk from the Lanctoes, considered the sidewalk their

responsibility, or endangered customers by intermittently

applying additional salt. A defendant can plow or salt a

sidewalk without assuming a duty or taking possession or

control over the sidewalk. Devine v Al’s Lounge, Inc, 181

Mich App 117, 120; 448 NW2d 725 (1989).

Possession for purposes of premises liability depends on

the actual exercise of dominion and control over the

property. Derbabian, 249 Mich App at 704. The evidence

here indicated that by contract, and by the actions and

intent of the parties, Fitness Xpress, Mack, and Aho did

not exercise dominion and control over the sidewalk.

Therefore, they were not in the best position to prevent

the kind of harm incurred by Hoffner and were not the

possessors of the sidewalk. See id. at 702, 705. We thus

find that the trial court erred by finding a genuine issue of

material fact regarding whether Fitness Xpress, Aho, and

Mack could be assigned liability for Hoffner’s fall on the

sidewalk, and those defendants were entitled to summary

disposition as a matter of law. See Rose, 466 Mich at 461.

II. SCOPE OF HOFFNER’S RELEASE

Defendants also argue that a release of liability

agreed to by Hoffner and Fitness Xpress as part of her

membership contract precluded liability for all defen-

dants for slip-and-fall accidents on the sidewalk. We

2010] H

OFFNER V

ANCTOE

455

disagree. Summary disposition of a plaintiff’s complaint

is proper when there exists a valid release of liability

between the parties. MCR 2.116(C)(7). In reviewing a

motion for summary disposition based on a release

barring a claim, this Court considers the affidavits,

depositions, admissions, and other documentary evi-

dence to determine whether the movant is entitled to

summary disposition as a matter of law. Tarlea v

Crabtree, 263 Mich App 80, 87-88; 687 NW2d 333

(2004). The evidence is viewed in the light most favor-

able to the nonmoving party, and all legitimate infer-

ences in favor of the nonmoving party are drawn.

Jackson v Saginaw Co, 458 Mich 141, 142; 580 NW2d

870 (1998). A release of liability is valid if it is fairly and

knowingly made. Wyrembelski v St Clair Shores, 218

Mich App 125, 127; 553 NW2d 651 (1996).

“A contract must be interpreted according to its plain

and ordinary meaning.” Holmes v Holmes, 281 Mich App

575, 593; 760 NW2d 300 (2008). If contractual language is

clear, construction of the contract is a question of law for

the court. Id. at 594. A contract is not ambiguous if it

fairly produces only one interpretation, even if it is inart-

fully worded or clumsily arranged. Id.

Given our finding that Fitness Xpress, Aho, and

Mack were entitled to summary disposition for lack of

possession and control of the premises where Hoffner

fell, we focus our analysis on the applicability of the

release as it pertains to the Lanctoes. Arguably, the

Lanctoes could potentially have been released from

liability by the language of the contract, even though

they were not specifically named in the release, in light

of the broad language to release and forever discharge

“all others” from liability.

However, in light of the fact

As our Supreme Court recently set forth in Shay v Aldrich, 487 Mich

648, 675-676; 790 NW2d 629 (2010),

456 290 M

ICH

449 [Nov

that we agree with the trial court that the scope of

activities released by the contract is ambiguous, and

thus agree that summary disposition was not appropri-

ate, we need not now decide this issue.

The indemnification portion of the Fitness Xpress

membership contract provides, in relevant part:

INDEMNIFICATION: Member...hereby agrees to in-

demnify, defend and hold harmless, Fitness Xpress, a

division of Mousie Inc. and its officers, employees, contrac-

tors, agents, successors or assigns from any and all claims

for liability against [sic] without limitation, including...

expenses incurred either directly or indirectly by reason of,

resulting from, or associated in anyway [sic] without limi-

tation, with the Membership and/or Fitness Xpress. Mem-

ber also acknowledges that she has reviewed and executed

to determine whether an unnamed party is released from liability

by broad or vague release language, the party’s status as a

third-party beneficiary must be established by an objective analy-

sis of the release language. However, traditional contract prin-

ciples continue to apply to the release, and courts may consider the

subjective intent of the named and unnamed parties to the release

under certain circumstances, such as when there is a latent

ambiguity. The third-party-beneficiary statute indicates that the

Legislature intended to allow parties who are direct beneficiaries

to sue to enforce their rights, but the statute expressly states that

third-party beneficiaries have only the “same right” to enforce as

they would if the promise had been made directly to them. MCL

600.1405. That is, the statute creates a cause of action, but it is not

intended to afford third parties greater rights than they would

have if they had been the original promisee.

The Shay Court also noted the following:

[A] latent ambiguity has been described as one that “ ‘arises

not upon the words of the will, deed or other instrument, as looked

at in themselves, but upon those words when applied to the object

or to the subject which they describe.’ ” “ ‘And where, from the

evidence which is introduced, there arises a doubt as to what party

or parties are to receive the benefit [of a contract], parol evidence

is admissible to determine such fact.’ ” [Id. at 671-672 (citations

omitted; second alteration in Shay).]

2010] H

OFFNER V

ANCTOE

457

the Waiver of Liability attached hereto as part of this

agreement prior to engaging in any physical activities or

programs at Fitness Xpress according to the RELEASE

below.

[

]

Nothing in the indemnification provision related to the

Lanctoes; however, the release portion of the contract

contained a broader disclaimer, which provided, in

pertinent part:

RELEASE: I, the member or participant..., under-

stand and agree that fitness activities including weight loss

may be hazardous activities and I... should contact a

healthcare professional or doctor before beginning any new

activities or weight loss program. I am voluntarily partici-

pating in these activities and using the Fitness Xpress,

(Mousie Inc.) facilities and equipment, at my sole risk, with

full knowledge of the dangers involved. I hereby agree to

expressly assume and accept any and all risks of injury or

death related hereto.

In consideration of being allowed to participate in the

activities and programs of Fitness Xpress (Mousie, Inc.)

and use of its facilities and equipment, in the addition of

any payment of any fees or charges, I do hereby waive,

release and forever discharge Fitness Xpress, Mousie Inc.

its officers, agents, employees, representatives, executors,

and all others from any responsibilities or liabilities for any

injuries or damage resulting from my and/or my daugh-

ter(s) [sic], or my belongings, including those caused by any

negligent act or commission, in connection with

participation/membership or use of equipment at Fitness

Xpress and Mousie Inc. [Emphasis added.]

If the text in the release is unambiguous, we must

ascertain the parties’ intentions from the plain, ordi-

nary meaning of the language of the release. Genesee

Foods Servs, Inc v Meadowbrook, Inc, 279 Mich App

649, 655; 760 NW2d 259 (2008).

No waiver of liability form has ever been produced.

458 290 M

ICH

449 [Nov

The Lanctoes argue that the release portion of the

contract applied to their liability for Hoffner’s slip and

fall on the ice before entering the exercise facility

because the accident was included in the contract’s

language releasing “all others from any responsibilities

or liabilities for any injuries,” including those caused by

“any negligent act or commission, in connection with

participation/membership” at Fitness Xpress. The con-

tract’s use of broad language releasing “all others” could

potentially be interpreted as including any claim that

Hoffner could bring against the Lanctoes. See Shay, 487

Mich at 675-676. Further, a release including language

such as “ ‘any and all claims, demands, damages, rights of

action, or causes of action,... arising out of the Mem-

ber’s...useofthe...facilities’ ” can express an intention

to disclaim liability for all negligence. Skotak v V ic Tanny

Int’l, Inc, 203 Mich App 616, 619; 513 NW2d 428 (1994).

However, the contract at issue released liability for claims

“in connection with participation/membership or use of

equipment at Fitness Xpress and Mousie Inc.” and stated

that Hoffner was “using the Fitness Xpress (Mousie Inc.)

facilities and equipment, at my sole risk.” This language

provided an apparent limitation of liability related to the

actual use of the fitness facility and its equipment, not

liability encountered en route to the fitness center. Plain-

tiffs also maintain that the language “release and forever

discharge...from any responsibilities or liabilities for any

injuries or damage resulting from my and/or my daugh-

ter(s) [sic], or my belongings, including those caused by

any negligent act or commission, in connection with

participation/membership or use of equipment” was am-

biguous concerning which actions triggered the release.

The trial court found the contract ambiguous and

stated that a jury could conclude that the release

applied to all activities or only to some activities. The

court commented that the release seemed to pertain to

2010] H

OFFNER V

ANCTOE

459

the nature of the business, i.e., fitness activities and

equipment, rather than falling on a sidewalk outside

the exercise facility. The language of the contract could

reasonably be interpreted broadly, to include a slip and

fall while attempting to enter Fitness Xpress, or nar-

rowly, to include only activities related to exercise and

weight loss that were specifically discussed in the

release portion of the contract. “If the contract is

subject to two reasonable interpretations, factual devel-

opment is necessary to determine the intent of the

parties and summary disposition is therefore inappro-

priate.” Meagher v Wayne State Univ, 222 Mich App

700, 722; 565 NW2d 401 (1997). Therefore, the trial

court did not err by denying summary disposition to

defendants on this issue.

III. OPEN AND OBVIOUS DANGER DOCTRINE

Defendants also argue that plaintiffs’ claim should be

barred by application of the open and obvious danger

doctrine. Hoffner was an invitee: one who is invited

onto the land for a commercial purpose. See Stitt v

Holland Abundant Life Fellowship, 462 Mich 591, 597;

614 NW2d 88 (2000). “The landowner has a duty of

care, not only to warn the invitee of any known dangers,

but the additional obligation to also make the premises

safe, which requires the landowner to inspect the pre-

mises and, depending upon the circumstances, make

any necessary repairs or warn of any discovered haz-

ards.” Id.

However, this duty does not generally encompass

removal of open and obvious dangers “where the dan-

gers are known to the invitee or are so obvious that the

invitee might reasonably be expected to discover them.”

Riddle v McLouth Steel Prod Corp, 440 Mich 85, 96; 485

NW2d 676 (1992). Whether a danger is open and

460 290 M

ICH

449 [Nov

obvious depends on whether it is reasonable to expect

that an average person with ordinary intelligence would

have discovered it upon casual inspection. Joyce v

Rubin, 249 Mich App 231, 238; 642 NW2d 360 (2002).

In this case, it is not disputed that the ice in front of the

entrance to the exercise facility posed an open and

obvious danger. Hoffner testified that she saw that the

sidewalk was covered by “glare ice” as she approached it

from the parking lot, but thought that she could cross it

safely.

Defendants argue that the trial court erred by find-

ing that the ice could reasonably be found to constitute

a special aspect that made the condition unreasonably

dangerous because it was effectively unavoidable. If

special aspects of a condition make even an open and

obvious risk unreasonably dangerous, the land pos-

sessor has a duty to undertake reasonable precautions

to protect invitees from that risk. Lugo v Ameritech

Corp, Inc, 464 Mich 512, 517; 629 NW2d 384 (2001). A

special aspect exists when the danger, although open

and obvious, is effectively unavoidable or imposes a

uniquely high likelihood of harm or severity of harm.

Id. at 518-519. In considering what constitutes a special

aspect, a court must evaluate the objective nature of the

condition of the premises, not the subjective degree of

care used by the plaintiff or other idiosyncratic factors

related to the particular plaintiff. Bragan v Symanzik,

263 Mich App 324, 332; 687 NW2d 881 (2004), citing

Lugo, 464 Mich at 523-524.

Defendants argue that the ice was avoidable because

Hoffner did not have to attempt to enter the exercise

facility and voluntarily confront the ice.

In Lugo, 464

Defendants argued at the hearing of this matter that as an alternative

to entering Fitness Xpress over the glare ice blocking the only entrance,

Hoffner could have called Fitness Xpress and demanded that it salt the

2010] H

OFFNER V

ANCTOE

461

Mich at 518, the Court described a hypothetical ex-

ample of standing water at the only exit of a commercial

building as being “effectively unavoidable” because no

alternative route is available. Defendants note that the

Lugo example considered a plaintiff who could not exit,

rather than a plaintiff who could choose not to enter.

Defendants assert that a danger is not unavoidable if

the plaintiff is not required to confront the hazard.

However, in Robertson v Blue Water Oil Co, 268 Mich

App 588, 590-591; 708 NW2d 749 (2005), this Court

described testimony concerning an “unusually severe

and uniform ice storm that covered the entire area

surrounding defendant’s [gas] station,” causing what

was described as extremely icy conditions in the park-

ing lot where the plaintiff slipped and fell as he walked

from the pump at which he had paid for fuel to the

station’s convenience store where he wished to pur-

chase windshield washer fluid and coffee. The defen-

dant argued that the condition was avoidable because

the plaintiff could have gone to a different service

station to make his purchases of fuel, coffee, and

windshield washer fluid, but this Court concluded,

emphasizing that the defendant had invited the plain-

tiff to the premises as a business, that the ice was

unavoidable. Id. at 593-594. The Robertson Court rea-

soned:

Even if there were [available alternatives], the scope of

the inquiry is limited to “the objective nature of the

condition of the premises at issue.” Therefore, the only

inquiry is whether the condition was effectively unavoid-

able on the premises. Here, there was clearly no alternative,

ice-free path from the gasoline pumps to the service sta-

sidewalk, after which she would presumably have waited for the salt to

take effect. Such an alternative notably contradicts defendants’ argu-

ment that Fitness Xpress had no possession or control over the sidewalk

and, thus, no obligation to salt it.

462 290 M

ICH

449 [Nov

tion, a fact of which defendant had been made aware

several hours previously. The ice was effectively unavoid-

able. [Id. (citations omitted).]

Moreover, the Robertson Court dismissed the idea that

the defendant could avail itself of the argument that the

condition was avoidable simply because the plaintiff

could find another business to patronize, holding:

Finally, and more significantly, plaintiff was a paying

customer who was on defendant’s premises for defendant’s

commercial purposes, and thus he was an invitee of defen-

dant. See Stitt v Holland Abundant Life Fellowship, 462

Mich 591, 596-598, 603-604; 614 NW2d 88 (2000). As our

Supreme Court noted, “invitee status necessarily turns on

the existence of an ‘invitation.’ ” Id. at 597-598. Defen-

dant’s contention that plaintiff should have gone elsewhere

is simply inconsistent with defendant’s purpose in operat-

ing its gas station. The logical consequence of defendant’s

argument would be the irrational conclusion that a busi-

ness owner who invites customers onto its premises would

never have any liability to those customers for hazardous

conditions as long as the customers even technically had

the option of declining the invitation.

***

Even if the record showed that plaintiff was aware of a

realistic, safe alternative location to purchase his fuel,

coffee, and windshield washer fluid, where defendant has

invited the public, and by extension plaintiff, onto its

premises for commercial purposes, we decline to absolve

defendant of its duty of care on that basis. To do so would

be disingenuous. Therefore, we conclude that the trial

court appropriately denied defendant’s motions. [Id.at

594-595 (emphasis omitted).]

Further, even in the hypothetical example of standing

water blocking the only exit to a building described in

Lugo, 464 Mich at 518, the Supreme Court apparently

would not have absolved the theoretical defendant of

2010] H

OFFNER V

ANCTOE

463

responsibility when the theoretical plaintiff chose to

leave the building and confront an unavoidable danger,

rather than choosing to avoid the danger by waiting

until the water had cleared.

In reaching its decision that summary disposition

was inappropriate, the trial court noted that Hoffner

had contracted to use Fitness Xpress and may have

needed to use it for health reasons. Because there was

only one customer entrance to the facility that was

fronted by the icy sidewalk, “the objective nature of the

condition of the premises at issue” reveals that the icy

sidewalk was effectively unavoidable as it related to the

use of the premises. See id. at 523-524; Robertson, 268

Mich App at 594-595. There was no alternative route

Hoffner could have taken in order to enter the exercise

facility.

Additionally, Hoffner was an invitee by virtue

of her contract with Fitness Xpress, and the Robertson

Court held that it would be disingenuous to relieve

defendants of their duty of care under similar circum-

stances. See Robertson, 268 Mich App at 595. Therefore,

we conclude that the trial court appropriately denied

defendants’ motion on this ground.

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. We do

not retain jurisdiction.

We find unconvincing defendants’ argument at the hearing that if

plaintiff had approached the glare ice from a different angle she might

have had more success.

464 290 M

ICH

449 [Nov

PEOPLE v BENNETT

PEOPLE v BENSON

Docket Nos. 286960 and 287768. Submitted December 9, 2009, at

Detroit. Decided November 2, 2010, at 9:10 a.m.

Paula R. Bennett and Kyron D. Benson were convicted of first-degree

murder following a joint trial before separate juries in the Wayne

Circuit Court, Michael J. Callahan, J. Bennett was convicted on a

theory of aiding and abetting Benson to commit the murder.

Benson was also convicted of possession of a firearm during the

commission of a felony and possession of a firearm by a felon. Both

were sentenced to life in prison for the murder conviction, and

Benson was also sentenced to two years in prison for the felony-

firearm conviction and one to five years in prison for the felon-in-

possession conviction. Bennett (Docket No. 286960) and Benson

(Docket No. 287768) appealed separately. The Court of Appeals

consolidated the appeals.

The Court of Appeals held:

1. The elements of first-degree murder are the intentional

killing of a human with premeditation and deliberation. A defen-

dant may be vicariously liable for murder on a theory of aiding and

abetting. The elements of aiding and abetting are (1) the crime

charged was committed by the defendant or some other person, (2)

the defendant performed acts or gave encouragement that assisted

the commission of the crime, and (3) the defendant intended the

commission of the crime or had knowledge that the principal

intended its commission at the time that the defendant gave aid

and encouragement. An aider and abetter’s knowledge of the

principal’s intent can be inferred from the facts and circumstances

surrounding an event.

2. There was considerable evidence from which the jury could

have inferred that Bennett knew of Benson’s intent to kill the

victim at the time that Bennett gave Benson directions to where

the victim lived. The evidence belied Bennett’s argument on

appeal that she did not want Benson to kill the victim. The

evidence did not negate the critical element of Bennett’s

knowledge of Benson’s specific intent to kill the victim. Sufficient

2010] P

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ENNETT

465

evidence supported the conclusion of the jury that Bennett was

guilty of first-degree murder on a theory of aiding and abetting.

3. The prosecutor did not give the jury the impression that she

had special knowledge regarding the innocence of the suspects

that the police had questioned before they focused on defendants

by failing to elicit details regarding the alibis or other exonerating

details pertaining to those prior suspects. Because the truth or

falsity of the prior suspects’ alibis was not directly relevant to

defendants’ guilt, the failure to pursue the question did not raise

an inference of special knowledge regarding the innocence of the

prior suspects. Nor did the prosecutor vouch for the credibility of

the investigator.

4. There was legally sufficient evidence for a person of ordi-

nary caution and prudence to have a reasonable belief that Benson

committed the crime of murdering the victim. The presentation of

sufficient evidence to convict at trial rendered any alleged errone-

ous bindover decision harmless.

5. A statement made to an acquaintance outside a formal

proceeding, with no indication that it was made for the purposes of

identifying the perpetrator of a crime, is a nontestimonial state-

ment that does not implicate the Confrontation Clause. The

statement may be admitted as substantive evidence at trial pur-

suant to MRE 804(b)(3).

6. A statement that is a command rather than an assertion is

not hearsay under MRE 801.

Affirmed.

HAPIRO

, J., concurring in part and dissenting in part, concurred

in the affirmance of the first-degree-murder conviction of Benson,

but dissented from the affirmance of Bennett’s conviction on the

basis that no evidence supported the conclusion that Bennett

wanted the victim to be harmed, let alone killed. In addition, the

nature of the criminal jury instruction on aiding and abetting that

was given by the trial court failed to have the jury consider

whether Bennett subjectively knew, i.e., believed, that Benson

intended to kill at the time Bennett provided assistance to Benson.

The jury instruction instead asked the jury to make a determina-

tion based on an objective test, i.e., whether a reasonable person

would or should have known of Benson’s intent. Therefore,

because it could not be determined whether the jury found that

Bennett had the necessary subjective intent, Bennett’s conviction

should be reversed and the matter should be remanded for a new

trial. Moreover, if reversal were not required on this basis, the

matter should be remanded for a hearing pursuant to People v

466 290 M

ICH

465 [Nov

Ginther, 390 Mich 436 (1973), to consider whether Bennett

received effective assistance of trial counsel. There was a substan-

tial likelihood that Bennett was convicted on the basis of a finding

that she was grossly negligent in failing to recognize that Benson

intended to commit a murder at the time she provided assistance

to him. In the context of the unusual facts of this case, the criminal

jury instruction created a standard that allowed for conviction of

first-degree murder, not on the basis of an intent, but on the basis

of gross negligence. The failure of Bennett’s counsel to request a

modification of the jury instruction fell below an objective stan-

dard of reasonableness under prevailing professional norms, and

there was a reasonable probability that, but for counsel’s error, the

result of the proceedings would have been different. The jury

should have been instructed that Bennett’s actions must have

been taken with the actual knowledge that the assistance the

actions provided would be used to accomplish a murder or some

criminal plan that the murder of the victim was fairly within.

Various other alleged errors by Bennett’s trial counsel also re-

quired a remand for a Ginther hearing. Judge S

HAPIRO

stated that

the Legislature should consider amending MCL 767.39 and MCL

750.316 so as to modify the statutory punishment for aiding and

abetting first-degree murder, given the wide range of culpability

within the scope of the broad definition of aiding and abetting.

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 Jason W. Williams, Assistant

Prosecuting Attorney, for the people.

State Appellate Defender (by Gail Rodwan) for Paula

R. Bennett.

Burkett & Associates, Inc. (by Raymond R. Burkett),

for Kyron D. Benson.

Before: M

ETER

,P.J., and B

ORRELLO

and S

HAPIRO

,JJ.

ORRELLO

, J. In these consolidated appeals, both

defendants appeal their convictions arising out of the

shooting death of Stephanie McClure in 2007.

2010] P

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467

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In Docket No. 286960, defendant, Paula Renai Ben-

nett, appeals as of right her conviction by a jury of

first-degree murder, MCL 750.316. Bennett was sen-

tenced to life in prison. For the reasons set forth in this

opinion, we affirm.

In Docket No. 287768, defendant, Kyron Darell Ben-

son, appeals as of right his convictions by a jury of

possession of a firearm during the commission of a

felony (felony-firearm), MCL 750.227b, possession of a

firearm by a felon, MCL 750.224f, and first-degree

murder, MCL 750.316. Benson was sentenced to two

years in prison for the felony-firearm conviction, one to

five years in prison for the felon-in-possession convic-

tion, and life in prison for the first-degree-murder

conviction. For the reasons set forth in this opinion, we

affirm.

I. FACTS

Defendants lived together in Bennett’s apartment.

The victim, Stephanie McClure, was Bennett’s friend

and sometimes stayed at Bennett’s apartment. In Oc-

tober 2007, defendants discovered that several items,

including a PlayStation 2, clothes, and shoes, had been

stolen from Bennett’s apartment. Benson became angry

over the stolen items and began to blame McClure for

stealing them. Benson started making threatening com-

ments to several people about McClure, including com-

menting that he wanted to kill McClure for stealing the

items. Benson told one of the persons to whom he had

indicated that he wanted to kill McClure, Breanna

Kandler, one of Bennett’s friends, that he would kill

Defendants were tried together before separate juries. This Court

consolidated the appeals in the interest of the “efficient administration of

the appellate process.” People v Bennett, unpublished order of the Court

of Appeals, entered July 23, 2009 (Docket Nos. 286960 and 287768).

468 290 M

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465 [Nov

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Kandler too if she “[said] anything” about his threats.

Benson wanted Kandler to drive him to McClure’s

trailer to get the apartment key back from McClure.

Kandler testified that she took Benson’s threats seri-

ously and, accordingly, refused to take Benson to Mc-

Clure’s trailer.

Later in the evening, defendants and several of their

friends were at Bennett’s apartment. They noticed that

defendants’ puppy was missing and were looking

around the apartment for the dog. Benson joked that

maybe the dog was in the freezer, and when he checked

in the freezer, he did indeed find the puppy, which was

dead. Benson immediately accused McClure of killing

the dog as well. Two of Bennett’s friends testified that

they thought Benson had killed the dog because of the

way he reacted to finding it. After the dead dog was

disposed of, defendants and their friends went to a

Dairy Mart. While at the Dairy Mart, Kandler saw

Benson take a gun out of his car and put it in his pants.

Another friend, Jessica Fritz, testified that she had

previously seen her boyfriend sell a gun to Benson.

Later that evening, Bennett and Benson left their

friends, stating that they were going to “get [their] stuff

back.”

Benson then called his friend Michael Larvaidan and

asked him to meet defendants at a Kroger store. Lar-

vaidan had spoken to Benson about the stolen items

several times in the preceding days. He testified that he

tried to get Benson to calm down about the incident.

According to Larvaidan, while at Kroger, Benson was

angry and “going on about trying to get his stuff

back,...talking about going to kill [McClure].” Benson

showed Larvaidan a gun while he was talking about

this. After Larvaidan got into the car with defendants,

Bennett directed Benson to go to “Holiday West,” the

2010] P

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469

PINION OF THE

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trailer park where McClure lived. Benson drove accord-

ing to Bennett’s directions. Once they reached the

trailer park, Bennett specifically directed Benson to

McClure’s trailer. They saw McClure standing outside

by the trailer, in front of a car. Benson said, “That’s

her.”

Larvaidan testified that he told Benson, “[D]rive off.”

Benson drove around the trailer park and then parked

the car. Larvaidan told him “just to talk to her. Don’t do

nothing stupid.” Benson got out of the car and walked

toward McClure’s trailer. Bennett moved to the driver’s

seat, and she and Larvaidan continued to drive around

the trailer park. While they were driving around, Lar-

vaidan saw Benson talking to McClure. After several

minutes they heard three or four gunshots and then

saw Benson running away. Bennett started crying as

soon as they heard the gunshots. Bennett drove toward

where Benson was running, and Benson got back in the

car. Larvaidan asked Benson, “Why?” Benson re-

sponded that “he would have lost respect in the...

hood.” Larvaidan also said, “[You] better hope she’s

dead . . . ’cause if she’s not, [you’re] going to jail.”

Because Bennett was charged with murder on a

theory of aiding and abetting Benson, several witnesses

testified regarding the interactions between defendants

and Bennett’s conduct toward Benson. The evidence

presented demonstrated that Bennett was present

when Benson started making threats about killing

McClure, as well as threats toward Kandler. Benson was

also yelling at Bennett at this time, telling her that she

“was dumb for giving [McClure] a key.” Kandler testi-

fied before Bennett’s jury only that Bennett told her

that she thought Benson “looked pretty serious” about

killing McClure, although Kandler testified that she

never witnessed Bennett agree to kill McClure.

470 290 M

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465 [Nov

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Fritz testified that she heard defendants arguing for

an extended period before they went to McClure’s

trailer; Benson was again yelling at Bennett because

she had given a key to McClure. Bennett told Benson

that she had filed a report with the police and that the

police would take care of it. Fritz could not recall

Benson’s response to Bennett. After the argument,

Bennett told Fritz that she and Benson were “leaving to

get their stuff back.”

Finally, Larvaidan testified that Benson was talking

openly in the car about shooting McClure just before

Bennett gave Benson directions to McClure’s trailer.

Bennett did not respond to these comments. Larvaidan

also testified that after they heard gunshots, Bennett

immediately began crying and drove back around to-

ward McClure’s trailer, where they observed Benson

running away.

Following numerous seemingly erroneous leads, the

police eventually arrested defendants for the murder of

Stephanie McClure. After defendants were arrested,

Benson was observed telling Bennett under the door

between their jail cells, “Don’t talk.”

Following trial,

defendants were found guilty on all counts and sen-

tenced as previously stated. These appeals ensued.

II. DOCKET NO. 286960: PEOPLE v BENNETT

Bennett’s first argument on appeal is that there was

insufficient evidence to prove that she aided and abet-

ted Benson in the commission of first-degree murder.

This Court reviews de novo claims of insufficient

evidence, viewing the evidence in the light most favor-

able to the prosecution, to determine whether a rational

trier of fact could find that the essential elements of the

This evidence was presented to Benson’s jury only.

2010] P

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471

PINION OF THE

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crime were proved beyond a reasonable doubt. People v

Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005)

(opinion by K

ELLY

, J.). Further, this Court must defer to

the fact-finder’s role in determining the weight of the

evidence and the credibility of the witnesses. People v

Fletcher, 260 Mich App 531, 561; 679 NW2d 127 (2004).

“[C]onflicts in the evidence must be resolved in favor of

the prosecution.” Id. at 562. Circumstantial evidence

and reasonable inferences arising therefrom may con-

stitute proof of the elements of the crime. People v

Carines, 460 Mich 750, 757; 597 NW2d 130 (1999).

The elements of first-degree murder are (1) the

intentional killing of a human (2) with premeditation

and deliberation. People v Taylor, 275 Mich App 177,

179; 737 NW2d 790 (2007); MCL 750.316(1)(a). A

defendant may be vicariously liable for murder on a

theory of aiding and abetting. People v Usher, 196 Mich

App 228, 232-233; 492 NW2d 786 (1992), overruled in

part on other grounds by People v Perry, 460 Mich 55,

64-65 (1999). The elements of aiding and abetting are

(1) the crime charged was committed by the defendant or

some other person; (2) the defendant performed acts or

gave encouragement that assisted the commission of the

crime; and (3) the defendant intended the commission of

the crime or had knowledge that the principal intended its

commission at the time that [the defendant] gave aid and

encouragement. [People v Robinson, 475 Mich 1, 6; 715

NW2d 44 (2006) (quotation marks and citations omitted).]

See also MCL 767.39. Bennett asserts that the prosecu-

tion did not prove the third element of aiding and

abetting—that Bennett knew Benson intended to kill

the victim at the time she directed him to where the

victim lived.

There was evidence presented to the jury that dem-

onstrated Bennett’s desire to let the police resolve the

472 290 M

ICH

465 [Nov

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issue of the victim’s alleged theft of items from Bennett

and Benson. Testimony elicited at trial clearly indicated

that Bennett went to the police station to report the

theft. Fritz testified that Bennett and Benson fought

about the theft and that Benson blamed Bennett for

giving the victim a key to their apartment. When

Bennett and Benson left to go to the victim’s trailer,

Bennett told Fritz only that they were going to retrieve

the stolen items. Nobody heard Bennett agree to help

Benson kill the victim. Fritz testified that Bennett told

Benson at one point while he was making his threats,

“No, I can’t do it.” Finally, Bennett acted shocked and

upset after the victim was shot.

There was also evidence presented at trial from three

witnesses who testified that during the day preceding

the murder, Benson threatened, in Bennett’s presence,

to kill the victim. Kandler testified that she took Ben-

son’s threats seriously enough to refuse to drive Benson

to see the victim. Kandler also testified that Bennett

told her that Benson seemed serious when he was

making his threats. After Bennett’s statement to Fritz

about retrieving the stolen items, Benson repeated his

threat in Bennett’s presence, and Bennett saw Benson

show a gun to Larvaidan just before the murder. Ben-

nett agreed to direct Benson directly to the victim’s

trailer even after Bennett saw Benson with the gun and

heard his threats to kill McClure and even though she

took the threats seriously. Larvaidan also testified that

Benson talked openly in the car about shooting the

victim just before Bennett gave Benson directions to the

victim’s trailer. Testimony further indicated that after

Bennett had directed Benson to the victim’s trailer and

Benson had got out of the vehicle after positively

identifying the victim, Bennett then assumed the wheel

of the car, drove around the trailer park, and drove the

2010] P

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ENNETT

473

PINION OF THE

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car back around toward the victim’s trailer after she

and Larvaidan heard shots and observed Benson run-

ning away.

Pursuant to Robinson, 475 Mich at 6, in order for the

prosecution to prevail on the element of aiding and

abetting raised in Bennett’s appeal, the prosecution

must prove that the defendant either intended the

commission of the crime or had knowledge that the

principal intended its commission at the time that the

defendant gave aid and encouragement. To the extent

that Bennett directs this Court to conflicts in the

testimony, we note that it is the jury’s role to weigh the

evidence and resolve any conflicts. Fletcher, 260 Mich

App at 561-562. An aider and abetter’s knowledge of the

principal’s intent can be inferred from the facts and

circumstances surrounding an event. People v Turner,

213 Mich App 558, 568; 540 NW2d 728 (1995), disap-

proved in part on other grounds in People v Mass, 464

Mich 615, 628 (2001). Despite Bennett’s directing this

Court’s attention to some evidence that suggests that it

was not Bennett’s desire to kill the victim, there was

considerable evidence from which the jury could have

inferred that Bennett knew of Benson’s intent. She

observed and heard Benson make multiple and serious

threats to kill the victim. She saw him with a gun

immediately before directing him to the location of the

shooting and driving there with him. Consequently, the

evidence presented at trial belies Bennett’s argument

on appeal that she did not want Benson to kill the

victim. However, even if we concluded that the evidence

established that Bennett may have been reluctant to

have Benson kill the victim, that evidence does not

negate the critical element of Bennett’s knowledge of

Benson’s specific intent to kill the victim. The evidence

proffered by Bennett on appeal merely demonstrates

that Bennett may have been unenthusiastic about the

474 290 M

ICH

465 [Nov

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prospect of Benson’s killing the victim. Such evidence

does not negate the fact that Bennett was aware of

Benson’s specific intent to kill the victim. Thus, we find

that there was sufficient evidence from which the jury

could conclude that Bennett was guilty of first-degree

murder on a theory of aiding and abetting.

Bennett next argues that the prosecutor committed

misconduct by failing to adequately plumb the depths of

the investigation by the officer in charge into prior

suspects in the case. Bennett also argues that the

prosecutor bolstered the officer’s testimony in her clos-

ing argument.

In order to preserve an issue of prosecutorial miscon-

duct, a defendant must contemporaneously object and

request a curative instruction. People v Unger, 278 Mich

App 210, 235; 749 NW2d 272 (2008). Bennett’s trial

counsel objected to the prosecutor’s questioning in one

instance, with respect to whether the officer’s investi-

gation changed his recommendation of whom to charge

in this case. Thus, with respect to this alleged error, this

issue was preserved. Bennett’s trial counsel did not

raise any other objections concerning this issue; there-

fore, the issue was not preserved with respect to other

alleged errors.

Issues of prosecutorial misconduct are reviewed de

novo to determine whether the defendant was denied a

fair and impartial trial. People v Akins, 259 Mich App

545, 562; 675 NW2d 863 (2003). Further, allegations of

prosecutorial misconduct are considered on a case-by-

case basis, and the reviewing court must consider the

prosecutor’s remarks in context. Id.

Unpreserved issues are reviewed for plain error af-

fecting substantial rights. Carines, 460 Mich at 763.

“Reversal is warranted only when plain error resulted

in the conviction of an actually innocent defendant or

2010] P

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475

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seriously affected the fairness, integrity, or public repu-

tation of judicial proceedings.” People v Callon, 256

Mich App 312, 329; 662 NW2d 501 (2003). “Further,

[this Court] cannot find error requiring reversal where

a curative instruction could have alleviated any preju-

dicial effect.” Id. at 329-330.

Bennett argues that the prosecutor “vouched [for] or

bolstered” Officer John Toth’s testimony by eliciting

answers from him about the nature of his investigation

and the exoneration of prior suspects. Bennett argues

that the prosecutor asked Toth whether his investiga-

tion eliminated possible suspects other than defendants

but did not provide corroborating evidence to support

Toth’s conclusions. Bennett cites United States v Fran-

cis, 170 F3d 546, 551 (CA 6, 1999), which stated, in

relevant part:

A prosecutor may ask a government agent or other

witnesses whether he was able to corroborate what he

learned in the course of a criminal investigation. However,

if the prosecutor pursues this line of questioning, she must

also draw out testimony explaining how the information

was corroborated and where it originated.

The Francis court also discussed the rationale underly-

ing this discussion: “The prosecutor’s failure to intro-

duce to the jury whether the information was corrobo-

rated via documents, searches, conversations, or other

means, would lead a reasonable juror to believe that the

prosecutor was implying a guarantee of truthfulness

based on facts outside the record.” Id.

This underlying rationale is echoed in Michigan

caselaw: “Included in the list of improper prosecutorial

commentary or questioning is the maxim that the

prosecutor cannot vouch for the credibility of his wit-

nesses to the effect that he has some special knowledge

concerning a witness’ truthfulness.” People v Bahoda,

476 290 M

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465 [Nov

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448 Mich 261, 276; 531 NW2d 659 (1995). The danger is

that the jury will be persuaded by the implication that

the prosecutor has knowledge that the jury does not and

decide the case on this basis rather than on the evidence

presented. Id.; People v Matuszak, 263 Mich App 42,

54-55; 687 NW2d 342 (2004).

In this case, the prosecutor took T oth through a lengthy

discussion of his investigation of multiple suspects and

drew out the chain of interviews and the investigation

that led to suspicion of defendants. The questioning about

which Bennett complains relates to the exoneration of the

prior suspects. Bennett argues that the prosecutor left the

jury with the impression that the prosecutor had special

knowledge regarding the innocence of the prior suspects

by failing to elicit details regarding their alibis or other

exonerating details.

Bennett’s entire argument relies on an analogy to the

Francis case. However, the facts presented in this case

differ substantially from the circumstances in Francis.

In Francis, the officer was testifying about statements

he received from a witness about the defendant. Fran-

cis, 170 F3d at 551. He testified that he corroborated

the statements without indicating how he had done so.

Id. In this case, the testimony Bennett questions per-

tained merely to the exoneration of other suspects, none

of whom were on trial or witnesses against defendants

in this case. The credibility of other suspects’ alibis was

not directly relevant to defendants’ guilt or innocence.

The purpose of the prosecutor’s line of questioning did

not pertain to evidence regarding the guilt or innocence

of defendants, but merely provided a context for the

jury of the officer’s investigation and how it eventually

led to defendants. Further, the prosecution is not re-

quired to disprove everyone else’s guilt; rather, the

prosecution is only required to present evidence of the

2010] P

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defendant’s guilt. Because the truth or falsity of the

prior suspects’ alibis was not directly relevant to defen-

dants’ guilt, the failure to pursue the question did not

raise an inference of special knowledge regarding the

truth of Toth’s testimony. Bahoda, 448 Mich at 276.

Bennett also argues that the prosecutor improperly

bolstered Toth’s testimony in her closing argument. A

prosecutor may not vouch for the credibility of his or

her witnesses. People v Schutte, 240 Mich App 713, 722;

613 NW2d 370 (2000), overruled in part on other

grounds by Crawford v Washington, 541 US 36; 124 S

Ct 1354; 158 L Ed 2d 177 (2004). However, a prosecutor

may comment on his or her own witnesses’ credibility,

especially when credibility is at issue. People v Thomas,

260 Mich App 450, 455; 678 NW2d 631 (2004); Schutte,

240 Mich App at 721-722. The prosecutor is free to

argue from the evidence and its reasonable inferences

in support of a witness’s credibility. Schutte, 240 Mich

App at 721. The prosecutor must refrain from com-

menting on his or her “personal knowledge or belief

regarding the truthfulness of the...witnesses,” Thomas,

260 Mich App at 455, or “convey[ing] a message to the

jury that the prosecutor had some special knowledge or

facts indicating the witness’ truthfulness,” Bahoda, 448

Mich at 277.

The prosecutor argued that the jury should focus on

the evidence against defendants rather than consider

the possibilities raised by defense counsel that someone

else could have committed the crime and that the police

did not adequately rule out other suspects. She stated,

“[F]rankly, Martians from outer space might have done

it, too. But that’s not what happened. That’s not what

the evidence shows.” Additionally, the prosecutor ar-

gued that the police conducted a proper investigation by

not jumping to conclusions about possible suspects.

478 290 M

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465 [Nov

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We cannot identify in the prosecutor’s closing argu-

ment any intimation that she had special knowledge

regarding Toth’s investigation or that she put a “stamp

of approval” on the testimony. She merely summarized

Toth’s testimony that the police investigated several

leads before identifying defendants as suspects to rebut

the suggestion that the police haphazardly identified

defendants. She made no comments about the sub-

stance of Toth’s investigation. The closest she came to

putting her “stamp of approval” on the testimony was

by stating that the officers did the investigation “to the

best of their ability” and that Toth “did what an officer

should do and try to get to the truth.” These statements

were innocuous and unspecific, again simply rebutting

the suggestion that the officers did not do an adequate

investigation. Further, the statements developed an

argument based on the evidence and the reasonable

inferences arising from the evidence. Schutte, 240 Mich

App at 721. Finally, the prosecutor did not claim to

know anything about the investigation beyond what

was shown by the evidence—that the police investi-

gated multiple leads before focusing on defendants.

Bahoda, 448 Mich at 277. The prosecutor’s remarks

were proper.

We affirm the conviction and sentence of defendant

Paula Renai Bennett.

III. DOCKET NO. 287768: PEOPLE v BENSON

Benson initially argues that the trial court erred

when it denied his motion to quash the district court’s

bindover decision. “A circuit court’s decision to grant or

deny a motion to quash charges is reviewed de novo to

determine if the district court abused its discretion in

binding over a defendant for trial.” People v Jenkins,

244 Mich App 1, 14; 624 NW2d 457 (2000). Questions of

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constitutional law are reviewed de novo. People v Davis,

472 Mich 156, 159; 695 NW2d 45 (2005).

At the preliminary examination, Fritz and Kandler

testified against both defendants. Fritz testified that

Bennett told her after the murder that Benson “did it.”

This testimony was admitted only against Bennett.

Benson argues that, absent this testimony, the prosecu-

tion failed to produce sufficient evidence to bind him

over on the charges at his preliminary examination.

“The purpose of a preliminary examination is to

determine whether probable cause exists to believe that

a crime was committed and that the defendant commit-

ted it.” People v Lowery, 274 Mich App 684, 685; 736

NW2d 586 (2007). Accordingly, the prosecutor need not

demonstrate guilt beyond a reasonable doubt at the

preliminary-examination stage. Id. Probable cause is

established if “a person of ordinary caution and pru-

dence [could] conscientiously entertain a reasonable

belief of the defendant’s guilt.” Id. (quotation marks

and citation omitted).

At the preliminary examination, Fritz testified that

Benson was angry at the victim for stealing the items

and he threatened to kill the victim. Fritz testified that

she witnessed Benson and Bennett leave together to

find the victim just before the killing. She testified that

Bennett returned from that trip and looked upset.

Kandler also testified that she had heard Benson

threatening to kill the victim earlier in the day before

she was killed. Thus, multiple witnesses heard Benson

threaten to kill the victim, Benson was observed leaving

to look for the victim just before her death, and Bennett

returned from the trip crying and upset. Benson argues

that the district court must necessarily have considered

At trial, the testimony was admitted against Benson as an excited

utterance.

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Fritz’s further testimony that Bennett told her that

Benson killed the victim because this other evidence

was insufficient to establish probable cause. However,

we conclude that even without Bennett’s statements,

there was legally sufficient evidence for a “person of

ordinary caution and prudence” to have a reasonable

belief that Benson committed the crime of murdering

the victim. Moreover, the presentation of sufficient

evidence to convict at trial renders any erroneous

bindover decision harmless. People v Libbett, 251 Mich

App 353, 357; 650 NW2d 407 (2002).

Benson next argues that the trial court erred when it

admitted on several occasions testimonial hearsay that

violated his right of confrontation. Benson raised these

issues in a motion for a new trial and argues on appeal

that the trial court should have granted a new trial. The

decision whether to grant a new trial is within the trial

court’s discretion and is, therefore, reviewed for an

abuse of discretion. People v Brown, 279 Mich App 116,

144; 755 NW2d 664 (2008); People v Lester, 232 Mich

App 262, 271; 591 NW2d 267 (1998). Questions of

constitutional law are reviewed de novo. Davis, 472

Mich at 159.

“The Confrontation Clause of the Sixth Amendment

bars the admission of ‘testimonial’ statements of a

witness who did not appear at trial, unless the witness

was unavailable to testify and the defendant had a prior

opportunity to cross-examine the witness.” People v

Walker (On Remand), 273 Mich App 56, 60-61; 728

NW2d 902 (2006). In People v Taylor, 482 Mich 368,

378-379; 759 NW2d 361 (2008), our Supreme Court

held with regard to whether a statement is testimonial:

The overruling of [Ohio v Roberts, 448 US 56; 100 S Ct

2531; 65 L Ed 2d 597 (1980)] by the United States Supreme

Court in Crawford and Davis [v Washington, 547 US 813;

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126 S Ct 2266; 165 L Ed 2d 224 (2006)] undermines the

analytical underpinnings of this Court’s decision in [People v

Poole, 444 Mich 151; 506 NW2d 505 (1993)], which was

entirely predicated on Roberts. Thus, the holding in P oole

that a codefendant’s nontestimonial statement is governed by

both MRE 804(b)(3) and the Confrontation Clause is no

longer good law.... Accordingly, the admissibility of the

statements in this case is governed solely by MRE 804(b)(3).

This Court’s MRE 804(b)(3) analysis in Poole remains valid,

however, and provides the applicable standard for determin-

ing the admissibility of a codefendant’s statement under the

hearsay exception for statements against a declarant’s penal

interest. MRE 804(b)(3) provides:

“(b) Hearsay exceptions. The following are not excluded

by the hearsay rule if the declarant is unavailable as a

witness:

***

“(3) Statement against interest. A statement which was

at the time of its making so far contrary to the declarant’s

pecuniary or proprietary interest, or so far tended to

subject the declarant to civil or criminal liability, or to

render invalid a claim by the declarant against another,

that a reasonable person in the declarant’s position would

not have made the statement unless believing it to be true.

A statement tending to expose the declarant to criminal

liability and offered to exculpate the accused is not admis-

sible unless corroborating circumstances clearly indicate

the trustworthiness of the statement.”

In Poole [444 Mich at 161], this Court held:

“[W]here, as here, the declarant’s inculpation of an accom-

plice is made in the context of a narrative of events, at the

declarant’s initiative without any prompting or inquiry, that

as a whole is clearly against the declarant’s penal interest and

as such is reliable, the whole statement—including portions

that inculpate another—is admissible as substantive evidence

at trial pursuant to MRE 804(b)(3).”

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Thus, our Supreme Court has ruled that a statement

made to an acquaintance, outside a formal proceeding,

is a nontestimonial statement and may be admitted as

substantive evidence at trial pursuant to MRE

804(b)(3). Taylor, 482 Mich at 378-379. Benson argues

that Fritz’s testimony that Bennett told her that Ben-

son killed the victim violated his right of confrontation.

Bennett’s statements were made to Fritz, a friend, and

not within a formal proceeding. Thus, they were non-

testimonial and do not implicate the Confrontation

Clause. Id. Benson next argues that Kandler’s testi-

mony that Bennett told her cousin that Benson was

threatening to kill the victim was a Confrontation

Clause violation. Because this statement was to an

acquaintance and there is no indication that it was

made for the purposes of identifying the perpetrator of

a crime, the statement was nontestimonial and did not

implicate the Confrontation Clause. Id. at 378; Walker,

273 Mich App at 63.

Benson next argues that Larvaidan’s testimony

about a conversation he had with his father about

whether to talk to the police violated his right of

confrontation. Larvaidan’s father told Larvaidan to

“tell the truth.” This statement was not hearsay be-

cause it did not contain an assertion; it was a command.

MRE 801; People v Jones (On Rehearing After Remand),

228 Mich App 191, 204-205; 579 NW2d 82 (1998), mod

458 Mich 862 (1998). Moreover, the statement was

nontestimonial because it had nothing to do with Ben-

son or his alleged conduct and it was not made for

testimonial purposes. Taylor, 482 Mich at 378; Walker,

273 Mich App at 63.

Finally, Benson argues that Kathleen McIntyre’s

testimony that her mother told her “to leave the room”

while she spoke to Bennett on the phone also violated

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his right of confrontation. Like Larvaidan’s testimony,

this statement was not even an assertion, let alone

testimonial. Taylor, 482 Mich at 378; Walker, 273 Mich

App at 63; Jones, 228 Mich App at 204-205.

Benson also argues that the prosecutor committed

misconduct by referring in her opening statement to

Fritz’s testimony regarding Bennett’s statements.

However, because the statements were in fact admitted,

and we have concluded that they were properly admit-

ted, the prosecutor did not err. People v King, 215 Mich

App 301, 307; 544 NW2d 765 (1996).

Benson finally makes the same argument as Bennett

that the prosecutor improperly vouched for and bol-

stered Toth’s testimony through her questioning and

closing remarks. We have already concluded that the

questioning of Toth did not constitute misconduct.

Further, the prosecutor’s argument to Benson’s jury

was largely the same as her argument to Bennett’s jury,

and we conclude that she was not bolstering Toth’s

testimony or intimating to the jury that she had special

knowledge regarding Toth’s investigations.

We affirm the convictions and sentences of defendant

Kyron Darell Benson.

Affirmed.

Benson also raises in his statement of questions presented the

argument that Fritz’s testimony was inadmissible hearsay erroneously

admitted. Benson waived this argument because he failed to provide any

support for the contention. “An appellant may not merely announce his

position and leave it to this Court to discover and rationalize the basis for

hisclaims....”People v Kelly, 231 Mich App 627, 640-641; 588 NW2d

480 (1998). Benson also argued that the same testimony was a violation

of the Confrontation Clause, but neglected to present the issue in his

statement of questions presented. Thus, this argument is also waived.

English v Blue Cross Blue Sheild of Mich, 263 Mich App 449, 459; 688

NW2d 523 (2004).

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ETER

,P.J., concurred.

HAPIRO

,J.(concurring in part and dissenting in

part). I concur in the majority’s affirmance of the

convictions of defendant Kyron Benson in Docket No.

287768. I do not believe that any of the issues raised by

Benson have merit and, further, the evidence against

him for the murder of the victim was overwhelming.

It is in part because of the overwhelming evidence

against Benson that I must dissent from the affirmance

of defendant Paula Bennett’s conviction in Docket No.

286960. Bennett was convicted of aiding and abetting a

first-degree murder that was committed by her boy-

friend, Benson, because she told him where the victim

lived and helped direct him there. However, I find no

evidence in the record to support a conclusion that

Bennett wanted the victim to be harmed, let alone

killed. Further, I conclude that the nature of the crimi-

nal jury instruction on aiding and abetting failed to

have the jury consider the fundamental issue in this

case, i.e., whether Bennett subjectively knew, i.e., be-

lieved, that Benson intended to kill at the time she

provided assistance. Rather, the instruction asked the

jury to make a determination based on an objective test,

i.e., whether a reasonable person would or should have

known of Benson’s intent. Therefore, I do not believe

that we can determine whether the jury found that

Bennett had the necessary subjective intent, and so I

would reverse the conviction and remand for a new

trial. I further conclude that if reversal were not re-

quired on this basis, the case would still have to be

remanded for a Ginther

hearing.

Finally, while it may be of little consequence to this

defendant, I believe that the Legislature should con-

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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sider amending MCL 767.39 and MCL 750.316 to

modify the statutory punishment for aiding and abet-

ting first-degree murder. Given the wide range of cul-

pability within the scope of the broad definition of

aiding and abetting, I believe that sentencing judges

should have the discretion to sentence an aider and

abettor of first-degree murder to any term of years, life

with parole, or life without parole.

I. FACTS RELATING TO THE INTENT AND KNOWLEDGE OF BENNETT

The victim, Stephanie McClure, had stayed for sev-

eral days at the apartment shared by Benson and

Bennett. When McClure left their apartment, she alleg-

edly stole several items.

Bennett reported the theft to

the police. She repeatedly stated that she simply wanted

her things back and did not want any harm to come to

McClure, whom she had known for many years and

considered a friend.

There is no evidence that Bennett wanted Benson to

harm, let alone shoot, McClure. Although Benson made

many threats against McClure, there is no evidence that

Bennett joined in the threats or approved of them. T o the

contrary, the evidence demonstrates that Bennett repeat-

edly disagreed with Benson when he made these threats

and that when he made them, she “cried and freaked out,”

“[a]nd she didn’t want him to do it.” Indeed, at one point

when Benson insisted that Bennett help him carry out his

threats, Bennett stated: “No, I can’t do it. I’m not like

you.” According to a witness to this interaction, Bennett

was crying and “made it very clear to him that she

thought it was over because she had went and made a

police report. But he just kept yelling.”

Although the record does not contain evidence that the victim

committed theft, it was not disputed by the prosecution.

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Bennett’s response to the theft was to take the

appropriate and lawful action, i.e., going to the police to

report the theft. It is difficult to understand why

Bennett would identify herself to the police and link

herself to accusations against McClure if her intent was

to kill McClure or if she believed or expected that her

boyfriend was going to kill McClure.

In addition, Benson’s threats waxed and waned, and

sometimes he indicated his agreement with Bennett

that they should just get their things back from Mc-

Clure and that could be the end of the dispute. Consis-

tent with that fact, the uncontradicted testimony of

Jessica Fritz was that when Bennett and Benson left

their apartment to go to McClure’s home, “Paula came

out to tell me that they were leaving to go get their stuff

back from [McClure] and her house keys that [McClure]

had.” Bennett’s behavior following the shooting was

consistent with her statement that her expectation was

that they were going to get their things back and that

she did not expect violence. Although Bennett did not

see Benson shoot McClure, she heard the shots. Her

reaction was to immediately begin to cry. Upon arriving

at her apartment shortly thereafter, Bennett displayed

shock and distress. A witness testified: “I woke up to

her slamming and opening the door, opening the door

real wide. Her eyes were real big. Her hands were

shaking like this and she’s crying.”

Four witnesses other than Bennett heard Benson’s

threats against the victim. Three of them testified that

they did not believe that Benson would carry them out.

Further, none of them took any action to prevent the

killing because they did not believe Benson would actually

carry out his threats. Fritz testified that she heard threats

by Benson. She testified that she did not like Benson

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,J.

“because of the things he did to [Bennett].”

Fritz testi-

fied that she heard Benson make several threats to kill

the victim, but that she did not believe he actually

intended to because, “I didn’t think he was stupid

enough to shoot somebody.” She further testified that

when Bennett told her that Benson had shot the victim,

“I didn’t believe her at all. My mind was, I was in shock

basically. . . . I thought she was lying.”

Most significant in this regard was the testimony of

Michael Larvaidan. Larvaidan knew Benson and rode

with him and Bennett to the trailer park in which

McClure lived. He testified that, during the drive,

Benson did threaten to kill McClure, but he did not

believe that Benson would actually do so. The question

was put to him directly during his testimony:

Q. Did you really expect that he was going to kill

anybody?

A.No.

In addition, Larvaidan testified that he had spoken

with Benson two or three times by phone earlier in the

day and that while Benson had seemed upset about the

theft, he stated only that he was going to get his stuff from

McClure and made no threats against her. Indeed, Ben-

son’s action in stopping on the way to McClure’s trailer to

pick up Larvaidan and bring him along for the ride would

not appear, to an observer, to be consistent with an intent

to commit a murder. Larvaidan testified that he sat in the

front passenger seat next to Benson, that during the

10-minute drive he told Benson to cool down and not do

anything stupid, and that he had previously calmed Ben-

son down in situations when Benson was angry. He

At the preliminary examination, Fritz testified that she had previ-

ously witnessed Benson beating Bennett.

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testified that after he told Benson to calm down, Benson

did not repeat the threat to shoot McClure.

One witness, Breanna Kandler, testified that she

believed Benson’s threats were serious. Kandler went

with Bennett to the police department to report the

alleged theft by McClure. She testified that after mak-

ing the police report, she and Bennett picked up Ben-

son, who had known of the alleged theft before Bennett

made the police report. She testified that during the

drive, Benson was threatening to kill McClure, during

which, as already noted, Bennett was “crying and

freaking out.” She testified that Bennett “was scared.

And she didn’t want him to do it.”

Kathleen McIntyre, another witness, thought Ben-

nett had “made it very clear to [Benson] that she

thought it was over because [Bennett] had went and

made a police report. But [Benson] just kept yelling”

despite the fact that Bennett told him several times that

she had made a police report and that was all they

should do. According to McIntyre, Benson alternated

during this conversation between threatening to kill

McClure and saying that all he wanted to do was get his

stuff back from her. Fritz corroborated this with her

testimony that in her statement to the prosecutor’s

office she stated that Benson “was talking about people

walking all over [Bennett]” and that Bennett indicated

that she wanted to let the police handle it.

The prosecution never argued that the evidence

supported a finding that Bennett wanted Benson to

shoot the victim or, indeed, harm her in any way.

Further, the evidence overwhelmingly supports a deter-

mination that Bennett’s purpose in going to the trailer

park was to get her belongings back from McClure, that

she did not want McClure hurt, and that although

Benson had made remarks regarding wanting to kill

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McClure, Bennett did not believe that Benson intended

to shoot McClure and, like Larvaidan who was also in

the vehicle, was shocked that Benson had done so. The

uncontradicted evidence clearly supports the conclusion

that Bennett did not share Benson’s intent to harm,

shoot, or kill McClure and that she did not intend to aid

Benson in committing murder by directing him to the

trailer park. Rather, the evidence supports the view

that Bennett believed that she was directing Benson to

McClure’s residence in the hopes of reacquiring the

belongings McClure had allegedly stolen from her. Ben-

nett’s reactions to the murder displayed shock and

distress, not satisfaction. The other person in the car at

the time of the shooting did not believe that Benson was

going to shoot McClure, and three others who heard the

threats did not consider them credible. The only one

who did believe the threats to be credible testified that

Bennett was frightened by Benson and that Bennett did

not want McClure harmed.

II. AIDING-AND-ABETTING INSTRUCTION

The trial judge gave CJI2d 8.1, the criminal jury

instruction on aiding and abetting. As a general rule,

this instruction properly sets forth the required proofs

for an aiding-and-abetting conviction. However, the

instruction does not clearly address the very specific

question of intent raised in this case. Therefore, I

conclude that the instruction could not assure that the

jury considered and decided the central question in the

case, i.e. whether Bennett gave assistance to the killer

for the purpose of aiding him in his crime.

The instruction sets forth three elements. The first is

that the crime was committed. That is not at issue in

Bennett’s appeal, because Bennett does not now assert

490 290 M

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that Benson did not murder the victim.

The second

element is that “before or during the crime, the defen-

dant did something to assist in the commission of the

crime.” The use of the verb form “to assist” is confusing

in that it can be interpreted to mean either that the

defendant acted in order to assist in the commission of

the crime or that the defendant’s action, though not

intended to aid in the commission of a crime, had that

result. The third element provides that “the defendant

must have intended the commission of the crime alleged

or must have known that the other person intended its

commission at the time of giving the assistance.” I

believe the phrase “must have known,” rather than

“knew,” converts the standard from a subjective one to

that of a reasonable person. While this is of little

consequence in most cases in which the action in

question could not have had any purpose other than

assisting the commission of the crime, I believe it was

central to the verdict in this case.

As already discussed, there was no evidence that

Bennett wanted this crime to be committed. Indeed, the

prosecutor recognized this when she stated in closing

argument: “I’m not going to stand here and tell you

that Paula Bennett wanted [Benson] to kill [McClure]

necessarily. . . . I don’t have to prove that.” The ques-

tion for the jury, then, was whether Bennett “must have

known” that Benson intended to kill McClure. This

instruction is capable of allowing a conviction based on

gross negligence by Bennett because it readily allows

the jury to apply a “should have known” standard. If,

whether because of stupidity, fear, self-delusion, or some

other reason, the aider provides the assistance with the

But see the discussion later in this opinion regarding ineffective

assistance of trial counsel due, in part, to the decision to argue that

Benson did not commit the murder.

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genuine subjective belief that it will not aid in a crime,

then our system, which is based on personal culpability,

cannot countenance a murder conviction. See People v

Usher, 196 Mich App 228, 232-233; 492 NW2d 786

(1992) (“[T]o be convicted of aiding and abetting first-

degree murder a defendant must...participate in the

crime while knowing that a coparticipant possessed the

requisite intent.”), overruled in part on other grounds

by People v Perry, 460 Mich 55, 64-65 (1999) (emphasis

added).

Under our law, those who commit a homicide because

of gross negligence, rather than as a result of an intent

to kill, are guilty of involuntary manslaughter, not

murder. The statutory punishment for involuntary

manslaughter, while severe, is very different from that

imposed for murder. It is difficult to understand, then,

why someone who did not kill, but who, through gross

negligence, aided a killer, should be sentenced as a

murderer. Therefore, at least in the context of this case,

the proper third element of the aiding-and-abetting

instruction should require that “the defendant must

have given the assistance with the intent that it aid in

the commission of the crime” rather than that the

defendant “must have known” what the killer’s intent

was.

This case is fundamentally different from that analyzed in People v

Kelly, 423 Mich 261; 378 NW2d 365 (1985). In Kelly, the Supreme Court

concluded that subjective knowledge of the precise crime ultimately

committed was not an element of the offense of aiding and abetting,

provided that the crime “ ‘was fairly within the criminal plan....’”Id.

at 278. Thus, although subjective knowledge of the precise offense

ultimately committed is not required, there must still have been some

“criminal plan” that the aider was aware of and chose to aid. This

principle has since been applied, for example, to cases of armed robbery

in which the abettor was aware of the intent to rob, but not that his or

her coperpetrator planned to use a weapon. See, e.g., Guilty Plea Cases,

395 Mich 96, 130; 235 NW2d 132 (1975); People v Young, 114 Mich App

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After a full and detailed review of the record, I

conclude that there is a substantial likelihood that

Bennett was convicted on the basis of a finding that she

was grossly negligent in failing to recognize that her

boyfriend intended to commit a murder at the time she

provided the assistance. In the context of the unusual

facts of this case, the criminal jury instruction creates a

standard that allows for conviction of first-degree mur-

der, not on the basis of an intent, but on the basis of

gross negligence.

Bennett argues that there was insufficient evidence

of her subjective intent and so her conviction should be

vacated. While this is a close question, I conclude that a

reasonable jury could infer that Bennett did subjec-

tively know that Benson was going to the victim’s house

to kill her rather than simply recover the stolen prop-

erty. However, the jury was never clearly asked to

determine that question. Rather, the instruction could

readily have been read to permit, if not require, that the

jury apply an objective standard. In my view, Bennett’s

argument that the jury could not have found sufficient

evidence of subjective intent implicitly raises the ques-

tion whether the jury understood that this is what it

was to determine. I recognize that defense counsel did

not request a modification of the jury instruction. I

believe that this failure to request a modification of the

central jury instruction 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. Smith v Spisak, 558 US ___, ___; 130 S

Ct 676, 685; 175 L Ed 2d 595, 604 (2010); United States

61, 65; 318 NW2d 606 (1982). Under Kelly and the other cases following

it, the abettor must still be a voluntary participant in a criminal plan. The

issue in this case, which the jury did not answer, is whether Bennett

understood at all that she was assisting in a criminal enterprise.

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v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657

(1984); Strickland v Washington, 466 US 668, 688, 694;

104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Frazier,

478 Mich 231, 243; 733 NW2d 713 (2007). And, as

already discussed, I conclude there were multiple other

errors that also contribute to my view regarding

whether Bennett received effective assistance.

Our system is not perfect and should not be held to a

standard of perfection. However, I do not believe that

we can affirm a conviction of first-degree murder—

particularly one based solely on an aiding-and-abetting

theory—when the jury was not properly advised what

the fundamental question was that it was to answer. We

should not uphold the imposition of a sentence of life

without parole when there remains a serious question

whether the jury accurately understood the nature of

the element of the offense primarily at issue. For this

reason, I conclude that Bennett’s conviction should be

reversed and the case retried with a proper instruction,

i.e., one that explicitly requires that the defendant’s

actions were taken with the actual knowledge that the

assistance they provided would be used to accomplish a

murder or some criminal plan in which the murder of

the victim was “ ‘fairly within the criminal plan....’”

People v Kelly, 423 Mich 261, 278; 378 NW2d 365

(1985).

III. INEFFECTIVE ASSISTANCE OF COUNSEL

As already discussed, I believe defense counsel’s

failure to request a proper instruction on the only

element at issue constituted ineffective assistance of

counsel. However, I also conclude that, even absent that

Seen5ofthisopinion.

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error, other actions by defense counsel would require

that we remand this case for a Ginther hearing.

There was overwhelming evidence that Benson com-

mitted this cold-blooded murder. Further, there was no

evidence to contradict the testimony of Larvaidan that

Bennett provided Benson with the location of the vic-

tim’s trailer. Both the practicality of trial tactics and the

actual events as related by multiple witnesses man-

dated the defense that Bennett did not believe that

Benson would murder the victim and that she did not

want any harm to come to the victim. In terms of trial

strategy, the entire defense effort would have to focus

on separating Bennett’s actions from Benson’s in the

eyes of the jury.

Even Benson’s counsel expected that this would be

the core of Bennett’s defense, because before the onset

of trial, he moved to sever his client’s case from Ben-

nett’s. Benson’s counsel filed an affidavit that stated

“[t]hat the defenses [of Benson and Bennett] are an-

tagonistic and [Benson] will contend that he had noth-

ing to do with the murder of Stephanie McClure[.

T]herefore the defenses will be mutually exclusive and

irreconcilable and not simply inconsistent.” (Emphasis

added.) Benson’s counsel recognized that the evidence

of Bennett’s own statements that Benson shot the

victim would be admissible at a joint trial because,

although they were out-of-court declarations, they were

the statements of a defendant and therefore admissible

under MRE 801(d)(2). At the hearing on Benson’s

motion, the prosecutor objected to separate trials, but

indicated that she would not object to separate juries.

Benson’s counsel was satisfied with this approach be-

cause it ensured that his client’s jury would not hear

Bennett’s statements that Benson shot the victim.

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,J.

Bennett’s counsel made no argument at the hearing,

and the trial court entered an order for a single trial

with separate juries.

Bennett’s counsel originally appeared to recognize

his client’s best defense because he argued at the

preliminary examination:

[T]he evidence I heard, at least indicates that [Bennett]

spent all day trying to, um, basically diffuse [sic] this

situation. She kept repeatedly saying all she wanted was

her property back, and that she didn’t want anybody to be

injured or killed.

***

And, also from statements, first that, uh, she had

indicated that she was trying to calm things—that the

testimony indicated that she was trying to calm things

down, and, no matter how aggravated, uh, Mr. Benson may

have been. Secondly, uh, that she disbelieved that he was

gonna act. I think that these two things are inconsistent

with being an aider and abettor.

However, at trial, Bennett’s counsel did little, if any-

thing, to present this defense. Instead, he adopted what

appeared to be a “team” strategy with Benson’s counsel

and even during closing focused on the premise that

Benson did not kill McClure:

In retrospect at least, the decision to allow the cases to be tried

together, but with separate juries, left Bennett with the worst of both

worlds. The Bennett jury heard all the details of Benson’s cold-blooded

murder and were presumably justifiably outraged. In addition, they saw

the two defendants and their counsel put forward a unified defense.

However, the only person they could punish was Bennett. Had Bennett’s

case been tried separately, much of the evidence concerning Benson

would not have been received by the jury. Had the two cases been tried

before a single jury, that jury’s outrage would have focused primarily on

Benson, rather than falling solely on Bennett.

496 290 M

ICH

465 [Nov

PINION BY

HAPIRO

,J.

My client is not charged with killing anybody. What she

is charged with is what’s called aiding and abetting. In

order to be guilty of aiding and abetting, the first thing, and

this is as [the prosecutor] said, regardless of the other jury,

you have to be convinced that Kyron Benson committed a

murder. Because if he’s not guilty, she didn’t aid and abet

him.

Given that Bennett’s jury, unlike Benson’s jury, had

heard multiple witnesses testify that Bennett told them

that Benson killed McClure, it is difficult to fathom why

her counsel tried to argue to the jury that Bennett

should be acquitted because Benson did not commit the

murder. This was even more peculiar given Larvaidan’s

eyewitness testimony clearly demonstrating that Ben-

son committed the murder. Nevertheless, in his closing

argument, Bennett’s counsel spent more time arguing

that there was reasonable doubt regarding the guilt of

Benson than he did arguing that despite Benson’s

evident guilt, Bennett should not be convicted of aiding

and abetting. This bizarre focus on Benson’s possible

innocence was not merely a useless argument; it was

wholly counterproductive because, by “defending” Ben-

son, Bennett’s attorney linked her fate to his. If Ben-

nett’s counsel was going to argue that Benson did not

kill McClure in the face of all the evidence to the

contrary, including Bennett’s own statements, he

greatly undercut the argument that Bennett did not

know Benson intended to kill McClure. By tying Ben-

nett’s defense to Benson, rather than conceding Ben-

son’s guilt and focusing solely on Bennett being in the

wrong place at the wrong time and not realizing what

Benson was going to do, Bennett’s counsel created a

scenario that made it appear as though both defendants

were in the scheme together, making Bennett’s best

defense seem even less probable.

2010] P

EOPLE V

ENNETT

497

PINION BY

HAPIRO

,J.

The perception that defendants were trying the case

together was only enhanced when Benson’s counsel

deferred to Bennett’s counsel to conduct the entire

cross-examination of the medical examiner. Why Ben-

nett’s counsel chose to conduct that examination on

behalf of both defendants remains a mystery, particu-

larly given that the medical examiner’s testimony had

nothing to do with Bennett’s defense. Indeed, during

closing arguments, Bennett’s counsel told the jury, “We

spent a lot of time listening to evidence and a lot of it

didn’t have a darn thing to do with my client.” The

decision to have Bennett’s counsel cross-examine the

medical examiner only served to further connect both

defendants in the jury’s mind, thereby creating preju-

dice to Bennett.

In addition, I question Bennett’s counsel’s decision

not to impeach Kandler with her preliminary-

examination testimony. Kandler was the only witness

who testified at trial that she believed Benson’s threats.

However, Kandler admitted at the preliminary exami-

nation that in her statement to the police, she wrote

that she “didn’t really think he was gonna do it,”

meaning she didn’t think Benson was going to kill

McClure. Kandler further testified at the preliminary

examination that she thought Benson was “just blowing

off steam” and agreed that she never actually thought

that Benson was going to kill somebody that evening. At

trial, when Benson’s attorney attempted to question

Kandler regarding her previous statements, the trial

court sustained the prosecution’s objection that

whether Kandler thought Benson was serious was ir-

relevant. Although Kandler’s testimony may have been

irrelevant with regard to Benson, it was certainly

relevant with regard to Bennett, particularly given that

Kandler was the only person to testify at trial that she

believed Benson’s threats. However, Bennett’s counsel

498 290 M

ICH

465 [Nov

PINION BY

HAPIRO

,J.

never challenged the trial court’s ruling regarding the

relevancy of Kandler’s previous statements about Ben-

nett and, therefore, foreclosed his opportunity to im-

peach the only witness who indicated that Benson’s

threat seemed worthy of belief.

To the extent that one may argue that the instruc-

tional error was waived, I question the decision of

Bennett’s counsel not to request an instruction on

being an accessory after the fact. Granted, it is arguable

that her attorney elected to go for an “all or nothing”

defense, which is not necessarily ineffective assistance

of counsel. People v Nickson, 120 Mich App 681, 687;

327 NW2d 333 (1982). However, given that the price of

that decision was to risk life in prison without the

possibility of parole, I believe that this should be

explored at a Ginther hearing as well.

Finally, although I recognize that the law does not

require an on-the-record waiver of a defendant’s deci-

sion not to testify, People v Simmons, 140 Mich App 681,

684; 364 NW2d 783 (1985), I am concerned about the

lack of such a record under the circumstances of this

case. Given the nature of the defense presented, it

certainly would have been helpful to a reviewing court

to have a record of the nature of Bennett’s understand-

ing regarding her rights and the risks and benefits of

I recognize that the trial court would not have been required to give

this instruction. People v Perry, 460 Mich 55; 594 NW2d 477 (1999).

However, it would have been within the trial court’s discretion to do so.

Id. at 63 n 19. Further, given the risk that Bennett’s “jury might have

chosen to convict [her] not because it [was] persuaded that [she was]

guilty of capital murder, but simply to avoid setting [her] free,” id.at

73-74 (B

RICKLEY

, J., dissenting) (quotation marks and citations omitted),

it seems unreasonable for her counsel not to have attempted to provide

an avenue for the jury to punish Bennett without subjecting her to

imprisonment for life without parole.

2010] P

EOPLE V

ENNETT

499

PINION BY

HAPIRO

,J.

testifying.

As with the other issues just discussed, I

believe this issue should be explored at a Ginther

hearing.

IV. SENTENCING AND THE PRINCIPLE OF PROPORTIONALITY

While it may be of little consequence to Bennett, I

suggest that this case is an example of why the Legis-

lature should consider amending MCL 767.39, which

mandates that someone convicted of aiding and abet-

ting be subject to the same punishment as the primary

offender. Under our system of indeterminate sentenc-

ing, a trial court retains broad discretion in fashioning

the sentence of the abettor based on his or her indi-

vidual culpability, extent of involvement, intent, and

other factors. Thus, although the abettor will receive

the same statutory maximum, his or her minimum

term will vary, depending on the circumstances, from

that of the primary offender. One could argue that such

discretion is required by due process given that the

ultimate basis for our criminal law is individual culpa-

bility. “[T]he criminal law . . . is concerned not only

with guilt or innocence in the abstract but also with the

degree of criminal culpability.” Mullaney v Wilbur, 421

US 684, 697-698; 95 S Ct 1881; 44 L Ed 2d 508 (1975),

cited with approval by the Michigan Supreme Court in

People v Aaron, 409 Mich 672, 711; 299 NW2d 304

(1980).

However, in the setting of first-degree murder, the

sentence is not indeterminate. It is determinate—life in

prison without the possibility of parole. I question

This might also have cleared up any concerns arising out of state-

ments made by Bennett’s counsel at the preliminary examination that

Bennett had been beaten by Benson and “there may be a basis for her

being fearful of [Benson] [t]hat might lead her to, uh, say things that

would be more harmful to herself and protective of [Benson].”

500 290 M

ICH

465 [Nov

PINION BY

HAPIRO

,J.

whether a blanket application of that punishment to

an abettor, regardless of the circumstances and his or

her individual level of culpability, is consistent with

due process. It is certainly not consistent, at least in

some cases, with the principle of proportionality. See

People v Bennett, 241 Mich App 511, 517; 616 NW2d

703 (2000) (“By sentencing defendant to life impris-

onment, the sentencing court ‘has left no room for

the principle of proportionality to operate on an

offender convicted of [criminal sexual conduct] who

has a previous record for this kind of offense or whose

criminal behavior is more aggravated than in [defen-

dant’s] case.’ ”), quoting People v Milbourn, 435 Mich

630, 668-669; 461 NW2d 1 (1990) (alterations in

Bennett); see also People v Smith, 482 Mich 292, 305;

754 NW2d 284 (2008) (“ ‘[T]he appropriate sentence

range is determined by reference to the principle of

proportionality; it is a function of the seriousness of

the crime and of the defendant’s criminal history.’ ”)

(citation omitted). Thus, I respectfully suggest that

the Legislature consider allowing the sentencing

court some degree of discretion in sentencing defen-

dants who are found guilty on an aiding-and-abetting

theory when the primary offense carries a determi-

nant sentence.

V. CONCLUSION

In a system of justice based on individual culpability,

I do not believe we can properly affirm a first-degree-

murder conviction purely on the basis of an aiding-and-

abetting theory when there is a serious question

whether the jury ever made a determination regarding

the defendant’s subjective intent, knowledge, and indi-

vidual culpability. Thus, I believe we should reverse

Bennett’s conviction and remand her case for a new

2010] P

EOPLE V

ENNETT

501

PINION BY

HAPIRO

,J.

trial. Alternatively, I believe we should remand her case

for a Ginther hearing to address the concerns regarding

her representation I have raised in this dissent.

502 290 M

ICH

465 [Nov

PINION BY

HAPIRO

,J.

LAKEVIEW COMMONS LIMITED PARTNERSHIP v

EMPOWER YOURSELF, LLC

Docket No. 291728. Submitted September 9, 2010, at Detroit. Decided

September 16, 2010. Approved for publication November 9, 2010,

at 9:00 a.m.

Lakeview Commons Limited Partnership filed suit in the Oakland

Circuit Court against Empower Yourself, L.L.C., Hamsa, L.L.C.,

and Troy and Phyllis Swalwell to collect payments due under a

lease to Empower, a fitness and yoga business owned by the

Swalwells. Empower breached the lease with plaintiff in August

2007. That same month, the Swalwells created Hamsa, L.L.C., also

a fitness and yoga business. The parties filed cross-motions for

summary disposition. The court, Rae Lee Chabot, J., granted both

motions in part and denied both motions in part, entering judg-

ment in favor of plaintiff against Empower, but denying plaintiff’s

motion with respect to the other defendants. The court also

dismissed plaintiff’s counts seeking to impose successor liability on

Hamsa and to pierce the corporate veils of Empower and Hamsa.

Plaintiff sought interlocutory appeal.

The Court of Appeals held:

1. The trial court erred by granting defendants summary

disposition on the issue of successor liability. The principles of

successor liability apply to limited liability companies as well as

corporations. Under those principles, if a predecessor company

acquires a successor by merger, the successor generally assumes

all of the predecessor’s liabilities. If the purchase occurs by the

exchange of cash for assets, the successor is not liable for its

predecessor’s liabilities unless an exception applies. The five

recognized exceptions are (1) when there was an express or

implied assumption of liability, (2) when the transaction

amounted to a consolidation or merger, (3) when the transaction

was fraudulent, (4) when some elements of a good-faith pur-

chase were lacking or the transfer was without consideration

and the predecessor’s creditors were not provided for, and (5) when

the successor is a mere continuation or reincarnation of the prede-

cessor. A prima facie case of continuity of enterprise exists when

the plaintiff establishes the following: (1) a continuation

2010] L

AKEVIEW

OMMONS V

MPOWER

OURSELF

503

of the predecessor company, so that there was a continuity of

management, personnel, physical location, assets, and general

business operations of the predecessor, (2) that the predecessor

ceased its ordinary business operations, liquidated, and dis-

solved as soon as legally and practically possible, and (3) that

the successor company assumed those liabilities and obligations

of the predecessor ordinarily necessary for the uninterrupted

continuation of normal business operations of the predecessor.

An additional relevant consideration is whether the successor

held itself out to the world as the effective continuation of the

predecessor. Plaintiff presented evidence that there had been a

continuation in management, personnel, assets, and general

business operations of Empower by Hamsa that was sufficient

to raise a genuine issue of material fact regarding whether

Hamsa was merely a continuation of Empower.

2. The trial court correctly found that there was no question

of material fact regarding piercing the corporate veil. The

elements for piercing the corporate veil apply to limited liability

companies. Those elements are (1) that the business entity was

a mere instrumentality of another individual or entity, (2) that

the business entity was used to commit a wrong or fraud, and

(3) that there was an unjust injury or loss to the plaintiff. The

corporate forms of Empower and Hamsa were respected

throughout, and the fact that part of the reason Empower

ceased operations was to avoid the lease agreement with plain-

tiff was not alone sufficient to raise a genuine issue of material

fact regarding whether Empower’s or Hamsa’s corporate veils

should be pierced.

Affirmed in part, reversed in part, and remanded.

1. C

ORPORATIONS —

IMITED

IABILITY

OMPANIES —

UCCESSOR

IABILITY

Under the principles of successor liability, if a predecessor com-

pany acquires a successor by merger, the successor generally

assumes all of the predecessor’s liabilities; if the purchase

occurs by the exchange of cash for assets, the successor is not

liable for its predecessor’s liabilities unless an exception ap-

plies; the five recognized exceptions are (1) when there was an

express or implied assumption of liability, (2) when the trans-

action amounted to a consolidation or merger, (3) when the

transaction was fraudulent, (4) when some elements of a

good-faith purchase were lacking or the transfer was without

consideration and the predecessor’s creditors were not provided

for, and (5) when the successor is a mere continuation or

reincarnation of the predecessor.

504 290 M

ICH

503 [Nov

2. C

ORPORATIONS —

IMITED

IABILITY

OMPANIES —

UCCESSOR

IABILITY

A successor limited liability company can be held liable for its

predecessor’s liabilities when the successor is a mere continuation

or reincarnation of the predecessor; a prima facie case of continu-

ity of enterprise exists when the plaintiff establishes the following:

(1) a continuation of the predecessor company, so that there is a

continuity of management, personnel, physical location, assets,

and general business operations of the predecessor, (2) that the

predecessor ceased its ordinary business operations, liquidated,

and dissolved as soon as legally and practically possible, and (3)

that the successor assumed those liabilities and obligations of the

predecessor ordinarily necessary for the uninterrupted continua-

tion of normal business operations of the predecessor company; an

additional relevant consideration is whether the successor held

itself out to the world as the effective continuation of the prede-

cessor.

3. C

ORPORATIONS —

IMITED

IABILITY

OMPANIES —

IERCING THE

ORPORATE

EIL

The elements for piercing the corporate veil apply to limited liability

companies; those elements are (1) that the business entity is a

mere instrumentality of another individual or entity, (2) that the

business entity was used to commit a wrong or fraud, and (3) that

there was an unjust injury or loss to the plaintiff.

Maddin, Hauser, Wartell, Roth & Heller, P.C. (by

Michelle C. Harrell), for plaintiff.

Law Office of Steiner & Steiner, PLLC (by Wilfred

Eric Steiner), for defendants.

Before: O

WENS

,P.J., and W

HITBECK

and F

ORT

OOD

,JJ.

URIAM

. Plaintiff appeals by leave granted the

trial court’s order granting in part summary disposition

in favor of defendants. We affirm in part and reverse in

part.

This action arises out of a breached lease agreement

between plaintiff and Empower Yourself, L.L.C. On

appeal, plaintiff argues that the trial court erred by

granting defendants’ motion for summary disposition

2010] L

AKEVIEW

OMMONS V

MPOWER

OURSELF

505

because a genuine issue of material fact existed regard-

ing (1) whether Hamsa, L.L.C., was a mere continuation

of Empower and (2) whether the corporate veil of

Empower and Hamsa should be pierced to hold defen-

dants Troy Swalwell (Troy) and Phyllis Swalwell (Phyl-

lis) personally liable. We agree that there was a genuine

issue of material fact regarding whether Hamsa was the

mere continuation of Empower, but held that there was

no genuine issue of material fact regarding piercing the

corporate veil.

This Court reviews de novo the grant or denial of a

motion for summary disposition under MCR

2.116(C)(10). Latham v Barton Malow Co, 480 Mich

105, 111; 746 NW2d 868 (2008). A motion brought

pursuant to MCR 2.116(C)(10) tests the factual support

of a plaintiff’s claim, and is reviewed by considering the

pleadings, admissions, and other evidence submitted by

the parties in the light most favorable to the nonmoving

party. Id. Summary disposition is proper if there is “no

genuine issue regarding any material fact and the

moving party is entitled to judgment as a matter of

law.” Id. 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

party.” Allison v AEW Capital Mgt, LLP, 481 Mich 419,

425; 751 NW2d 8 (2008). This Court considers only the

evidence that was properly presented to the trial court

in deciding the motion. Peña v Ingham Co Rd Comm,

255 Mich App 299, 310; 660 NW2d 351 (2003). Succes-

sor liability is derived from equitable principles and is

reviewed de novo on appeal. Zantel Mktg Agency v

Whitesell Corp, 265 Mich App 559, 568; 696 NW2d 735

(2005).

The basic rule in Michigan regarding successor liabil-

ity is as follows:

506 290 M

ICH

503 [Nov

The traditional rule of successor liability examines the

nature of the transaction between predecessor and succes-

sor corporations. If the acquisition is accomplished by

merger, with shares of stock serving as consideration, the

successor generally assumes all its predecessor’s liabilities.

However, where the purchase is accomplished by an ex-

change of cash for assets, the successor is not liable for its

predecessor’s liabilities unless one of five narrow excep-

tions applies. The five exceptions are as follows:

“(1) where there is an express or implied assumption of

liability; (2) where the transaction amounts to a consolida-

tion or merger; (3) where the transaction was fraudulent;

(4) where some of the elements of a purchase in good faith

were lacking, or where the transfer was without consider-

ation and the creditors of the transferor were not provided

for; or (5) where the transferee corporation was a mere

continuation or reincarnation of the old corporation.”

[Foster v Cone-Blanchard Machine Co, 460 Mich 696, 702;

597 NW2d 506 (1999), quoting Turner v Bituminous Cas

Co, 397 Mich 406, 417 n 3; 244 NW2d 873 (1976) (citations

and quotation marks omitted).]

Furthermore, Foster explained the “mere continua-

tion” doctrine:

After examining the relevant policy concerns, this Court

in Turner concluded that a continuity of enterprise be-

tween a successor and its predecessor may force a successor

to “accept the liability with the benefits” of such continuity.

Turner held that a prima facie case of continuity of

enterprise exists where the plaintiff establishes the follow-

ing facts: (1) there is continuation of the seller corporation,

so that there is a continuity of management, personnel,

physical location, assets, and general business operations

of the predecessor corporation; (2) the predecessor corpo-

ration ceases its ordinary business operations, liquidates,

and dissolves as soon as legally and practically possible;

and (3) the purchasing corporation assumes those liabili-

ties and obligations of the seller ordinarily necessary for

the uninterrupted continuation of normal business opera-

tions of the selling corporation. Turner identified as an

2010] L

AKEVIEW

OMMONS V

MPOWER

OURSELF

507

additional principle relevant to determining successor li-

ability, whether the purchasing corporation holds itself out

to the world as the effective continuation of the seller

corporation. [Foster, 460 Mich at 703-704 (citation omit-

ted).]

This Court recently held in RDM Holdings, Ltd v

Continental Plastics Co, 281 Mich App 678, 717-719;

762 NW2d 529 (2008), that successor liability applies to

corporations and limited liability companies in purely

commercial contexts, such as a breach of a lease agree-

ment. In RDM Holdings, the plaintiff was a commercial

business that entered into a lease agreement with

Continental-Lighting, L.L.C. (Lighting). Lighting filed

for bankruptcy and, subsequently, Continental-Coating,

L.L.C. (Coating), was created. The trial court granted

summary disposition, finding no genuine issue of mate-

rial fact regarding whether Coating was liable for the

breach of the lease agreement under a successor-

liability theory. This Court reversed, concluding that

the plaintiff had presented sufficient evidence to create

a genuine issue of material fact because the plaintiff

had presented evidence reflecting a continuation in

management, personnel, assets, and general business

operations of Lighting by Coating. Id. at 682-683,

718-719.

In looking at the record in the light most favorable to

plaintiff, there was a genuine issue of material fact

regarding whether Hamsa was the mere continuation of

Empower. Empower ceased operations in August 2007,

the same month in which Hamsa was created. Both

Empower and Hamsa were in the business of health,

fitness, personal training, and yoga. Empower and

Hamsa served the same geographic area, Oakland

County. Empower and Hamsa operated in the same

manner. Both provided a venue for independent-

contractor yoga teachers to teach classes to students.

508 290 M

ICH

503 [Nov

Phyllis owned 80 percent and Troy owned 20 percent of

both Empower and Hamsa. Phyllis was the president

and managing member of both Empower and Hamsa,

and Troy was the vice president and registered agent of

both Empower and Hamsa. Troy also signed the annual

reports and prepared the tax returns for both Empower

and Hamsa. Empower and Hamsa did not keep a

corporate minute book or an operating agreement. Both

held informal meetings and did not keep minutes from

the informal meetings. Neither Empower nor Hamsa

distributed earnings to its members. Troy and Phyllis

were signatories on both Empower’s and Hamsa’s bank

accounts. Empower’s business telephone number be-

came Hamsa’s business telephone number. Empower

had a website from 2004 until 2007. Then, in 2007,

Hamsa created a website. Hamsa’s website stated that

Hamsa was formerly known as Empower and gave

details on its new location. Reasonable minds could

differ regarding whether Hamsa was the mere continu-

ation of Empower. Therefore, the record provided raised

a genuine issue of material fact regarding whether

Hamsa was merely a continuation of Empower.

Plaintiff also argues there was a genuine issue of fact

regarding whether the corporate veil of Empower and

Hamsa should be pierced. An appellate court’s review of

a decision not to pierce the corporate veil is de novo

because of the equitable nature of the remedy. Foodland

Distrib v Al-Naimi, 220 Mich App 453, 456; 559 NW2d

379 (1996).

In general, “the law treats a corporation as an

entirely separate entity from its stockholders, even

where one person owns all the corporation’s stock.” Id.

However, the courts can ignore this corporate fiction

when it is invoked to subvert justice. Id. Traditionally,

the “basis for piercing the corporate veil has been to

2010] L

AKEVIEW

OMMONS V

MPOWER

OURSELF

509

protect a corporation’s creditors where there is a unity

of interest of the stockholders and the corporation and

where the stockholders have used the corporate struc-

ture in an attempt to avoid legal obligations.” Id.

Piercing the corporate veil requires the following

elements: (1) the corporate entity is a mere instrumen-

tality of another individual or entity, (2) the corporate

entity was used to commit a wrong or fraud, and (3)

there was an unjust injury or loss to the plaintiff. Rymal

v Baergen, 262 Mich App 274, 293-294; 686 NW2d 241

(2004). “There is no single rule delineating when a

corporate entity should be disregarded, and the facts

are to be assessed in light of a corporation’s economic

justification to determine if the corporate form has been

abused.”

Id. at 294.

Looking at the evidence in the light most favorable to

plaintiff, there is no genuine issue of material fact

regarding whether Empower’s or Hamsa’s corporate

veils should be pierced. The corporate forms of Em-

power and Hamsa were respected. Troy stated that the

activities of Empower and Hamsa were not com-

mingled. Empower paid its bills through its bank ac-

count, and Hamsa paid its bills through its bank ac-

count. Empower and Hamsa each filed separate state

and federal tax returns. Troy stated that the rent and

other expenses incurred by Empower exceeded its rev-

enue, so he personally loaned Empower about $100,000.

Troy would directly deposit the loaned money into

Empower’s bank account, and then Empower itself

would pay its monthly bills. Additionally, Troy person-

ally paid for various assets of Empower, and then upon

Empower’s ceasing operations, he left those assets with

This Court applied these same rules to determine whether the

corporate veil of a limited liability company should be pierced. RDM

Holdings, 281 Mich App at 715.

510 290 M

ICH

503 [Nov

Empower. Troy stated that any check written to Troy or

Phyllis by Empower was for the partial repayments of

Troy’s loans. Troy stated that he personally paid for

Empower’s leased vehicle for his personal use after

Empower ceased operations. Additionally, the record

does not show that plaintiff will suffer an unjust loss

because plaintiff already has a valid judgment against

Empower for breaching the lease agreement. While

Troy admitted that part of the reason Empower ceased

operations was to avoid the lease agreement with plain-

tiff, this alone was not sufficient to raise a genuine issue

of material fact regarding whether Empower’s or Ham-

sa’s corporate veils should be pierced.

Affirmed in part, reversed in part, and remanded for

further proceedings. We do not retain jurisdiction.

2010] L

AKEVIEW

OMMONS V

MPOWER

OURSELF

511

BEEBE v HARTMAN

Docket No. 292194. Submitted September 8, 2010, at Lansing. Decided

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

Donald and Eve Beebe brought an action in the Branch Circuit Court

for medical malpractice and derivative claims against Richard J.

Hartman, D.O., Community Health Center of Branch County, Chris-

tina Sheely, D.O., and Family Practice & Orthopedic Care Center,

P.L.L.C. Donald Beebe had fractured his leg in an accident that

occurred when he drove a snowmobile after he had been drinking

beer. When he was admitted for surgery, he had a blood alcohol

content showing that he was intoxicated. Sheely operated on his leg,

with Hartman assisting. After surgery, Beebe suffered from intense

pain and numbness and swelling of his foot. Several months later, he

was diagnosed as having deep compartment syndrome in his leg,

which caused pain in the leg and contracture of his toes and allegedly

resulted from the surgery performed by Sheely. After the Beebes

sued, Community Health Center moved for summary disposition, in

which the other defendants concurred, arguing that the complaint

was barred by MCL 600.2955a because Donald Beebe was intoxicated

at the time of the accident and 50 percent or more the cause of the

snowmobile accident. The court, Pamela L. Lightvoet, J ., denied the

motion. After Hartman and Community Health Center were dis-

missed by stipulation, the remaining defendants moved to dismiss the

cause of action. The court entered the parties’ stipulation that

plaintiff’s intoxication was 50 percent or more the cause of the

snowmobile accident that resulted in his injury and, after that,

granted the defendants’ motion to dismiss, finding that Beebe’s

impaired ability to function was due to his intoxication and that, as a

result, he was 50 percent or more the cause of the event that resulted

in his injuries. Plaintiffs appealed.

The Court of Appeals held:

1. MCL 600.2955a(1) provides an absolute defense when as a

result of impairment from alcohol, the plaintiff is 50 percent or more

the cause of the accident or event that resulted in the plaintiff’s

injury. In order for the statute to apply, the plaintiff’s impairment

from alcohol must have been the cause of the accident or event, and

the particular accident or event must have resulted in the particular

512 290 M

ICH

512 [Nov

injury. The one particular accident or event that resulted in the pain

and the contracture of plaintiff’s toes was defendants’ alleged medical

malpractice, not the snowmobile accident. Furthermore, the one

specific result of defendants’ alleged medical malpractice was the

pain in plaintiff’s leg and the contracture of his toes. This injury was

separate and distinct from the leg fractures plaintiff suffered as a

result of his intoxication. The trial court erred by finding that the

snowmobile accident rather than the medical malpractice was the

event to be analyzed under MCL 600.2955a.

2. For MCL 600.2955a(1) to apply, plaintiff’s impairment from

alcohol must have been the one proximate cause of plaintiff’s injuries

suffered as a result of compartment syndrome. Even assuming that

plaintiff’s impairment was a proximate cause of his injuries, defen-

dants were also a proximate cause of those injuries when the evidence

was viewed in a light most favorable to plaintiff. Thus, the defense

provided by MCL 600.2955a did not apply in this case.

Reversed.

ANDSTRA

, J., concurring, agreed that the relevant event was the

alleged malpractice, not the snowmobile accident and that the

statutory defense was thus unavailable to defendants. He would

have declined to address the issue of causation because doing so

resulted in dicta, but noted further that, for the statute to apply, a

plaintiff’s alcohol impairment need not be the one proximate cause

of the event giving rise to the injury. It would be sufficient if the

plaintiff’s impairment, considered with any other proximate

causes, constituted 50 percent or more of the cause of the event

resulting in the injury.

Law Offices of David A. Priehs, P.C. (by David A.

Priehs), for Donald and Eva Beebe.

Plunkett Cooney (by Robert G. Kamenec) for Chris-

tina Sheely, D.O., and Family Practice & Orthopedic

Care Center, P.L.L.C.

Before: B

ORRELLO

,P.J., and J

ANSEN

and B

ANDSTRA

,JJ.

ORRELLO

,P.J. Plaintiffs Donald and Eva Beebe

appeal

Eva Beebe’s claim is for loss of society, services, companionship, comfort

and consortium, which is a derivative action. Wilson v Alpena Co Rd Comm,

474 Mich 161, 163 n 1; 713 NW2d 717 (2006). Therefore, this opinion refers

to Donald Beebe as “plaintiff .”

2010] B

EEBE V

ARTMAN

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as of right the trial court’s order granting a motion for

dismissal pursuant to MCL 600.2955a by defendants

Christina Sheely, D.O., and Family Practice & Orthope-

dic Care Center, P.L.L.C. For the reasons set forth in

this opinion, we reverse.

I. FACTS AND PROCEDURAL HISTORY

On August 26, 2004, plaintiff was celebrating his

thirty-third birthday at his home while working on

his snowmobile with a friend. As he worked, plaintiff

consumed about 11 cans of beer between noon and

8:00 p.m. At about 8:00 p.m., plaintiff drove the

snowmobile across his lawn. According to plaintiff, as

he was driving the snowmobile, he “grabbed ahold of

the throttle, and I just stood straight up and it

dumped me off.” Plaintiff put his right leg down to

catch himself and injured it. He was transported to

the emergency room at defendant Community Health

Center of Branch County where defendant Richard J.

Hartman, Jr., D.O., diagnosed him as having frac-

tures of the tibia and fibula in his right leg. Blood

alcohol testing from a sample taken at 9:10 p.m. at

Community Health Center indicated that plaintiff

had a blood alcohol content of 0.13 percent. On

August 27, 2004, Dr. Sheely performed surgery on

plaintiff’s right leg, and Dr. Hartman assisted. The

surgery entailed a “[c]losed reduction of right tibia

and fibula with intramedullary nailing of the tibia

locked both proximally and distally.” Plaintiff suf-

fered from intense postsurgical pain in his right leg,

as well as numbness and swelling in his right foot. He

was discharged from the hospital the day after sur-

gery. In January 2005, plaintiff sought medical care

from Dr. Tudor Tien, who concluded that plaintiff

had “sustained flexion contractures of his toes in his

514 290 M

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512 [Nov

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right foot” and that “[t]he cause of his symptoms are

most likely from a deep compartment syndrome in his

leg.” In May 2005, Dr. Tien performed extensive

reconstructive surgery of plaintiff’s right leg.

In February 2007, plaintiff filed a medical malprac-

tice complaint against defendants, alleging that de-

fendants failed to diagnose and treat him for com-

partment syndrome in his lower right leg after they

performed surgery on the leg and that as a result, he

“has been and remains lame and disabled from many

vocational, recreational, household and personal ac-

tivities and in pain.” According to the complaint,

defendants failed to appreciate and understand the

signs and symptoms of compartment syndrome, failed

to recognize plaintiff’s symptoms as consistent with

compartment syndrome, failed to perform examina-

tions or testing to confirm or rule out compartment

syndrome, failed to diagnose and treat compartment

syndrome, and failed to consult with or refer plaintiff

to a physician who could recognize the signs and

symptoms of compartment syndrome.

In December 2007, Community Health Center

moved for summary disposition under MCR

2.116(C)(10), arguing that plaintiff’s complaint for

damages was barred by MCL 600.2955a because

plaintiff was intoxicated at the time of the snowmo-

bile accident and plaintiff was 50 percent or more the

cause of the snowmobile accident that resulted in his

leg injuries. Drs. Hartman and Sheely and Family

Practice & Orthopedic Care Center filed a concur-

rence in Community Health Center’s motion for

summary disposition. On April 16, 2008, the trial

court ruled that in light of Harbour v Correctional

Med Servs, Inc, 266 Mich App 452; 702 NW2d 671

(2005), the applicable “event” under MCL 600.2955a

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EEBE V

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was the snowmobile accident and not defendants’

medical treatment of plaintiff’s leg. However, the

trial court denied defendants summary disposition

“because questions of fact remain regarding whether

Mr. Beebe’s intoxication was 50% or more the cause”

of the snowmobile accident that resulted in his injury.

On April 21, 2009, Dr. Sheely and Family Practice

& Orthopedic Care Center

moved to dismiss plain-

tiff’s cause of action. Anticipating the parties’ stipu-

lation that plaintiff’s consumption of alcohol was

more than 50 percent the cause of the snowmobile

accident that resulted in plaintiff’s injury, defendants

asserted that there was now no issue of material fact

regarding whether plaintiff’s intoxication was more

than 50 percent the cause of his injury and that

summary disposition was therefore proper under

MCL 600.2955a. On May 5, 2009, the trial court

entered the parties’ order stipulating that plaintiff’s

“impaired ability to function due to the influence of

intoxicating liquor was 50% or more the cause of the

snowmobile accident of August 26, 2004 which re-

sulted in fractures to his right tibia and fibula

pursuant to MCL 600.2955(a) [sic].” On that same

date, the trial court granted defendants’ motion to

dismiss “because [plaintiff] had an impaired ability to

function due to the influence of intoxicating liquor

and that as a result of that impaired ability, [plaintiff]

was fifty percent or more the cause of the event that

resulted in Plaintiffs’ injuries as alleged in the Com-

plaint.” Plaintiffs appeal as of right the trial court’s

dismissal of his medical malpractice action.

By this time, Community Health Center and Dr. Hartman had been

dismissed from the case by stipulation. We will refer to Dr. Sheely and

Family Practice & Orthopedic Care Center as “defendants” for the

remainder of this opinion

516 290 M

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II. STANDARD OF REVIEW

This Court’s review of a trial court’s grant of sum-

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

is as

follows:

This Court reviews de novo a trial court’s grant or

denial of summary disposition under MCR 2.116(C)(10).

Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572

NW2d 201 (1998). A motion brought under MCR

2.116(C)(10) tests the factual support for a claim. Downey

v Charlevoix Co Rd Comm’rs, 227 Mich App 621, 625; 576

NW2d 712 (1998). The pleadings, affidavits, depositions,

admissions, and any other documentary evidence submit-

ted by the parties must be considered by the court when

ruling on a motion brought under MCR 2.116(C)(10).

Downey, supra at 626; MCR 2.116(G)(5). When reviewing a

decision on a motion for summary disposition under MCR

2.116(C)(10), this Court “must consider the documentary

evidence presented to the trial court ‘in the light most

favorable to the nonmoving party.’ ” DeBrow v Century 21

Great Lakes, Inc (After Remand), 463 Mich 534, 539; 620

NW2d 836 (2001), quoting Harts v Farmers Ins Exchange,

461 Mich 1, 5; 597 NW2d 47 (1999). A trial court has

properly granted a motion for summary disposition under

MCR 2.116(C)(10) “if the affidavits or other documentary

evidence show that there is no genuine issue in respect to

any material fact, and the moving party is entitled to

judgment as a matter of law.” Quinto v Cross & Peters Co,

For review purposes, we treat the trial court’s granting of defendants’

motion to dismiss as a granting of summary disposition under MCR

2.116(C)(10). The trial court originally denied defendants’ motion for

summary disposition pursuant to MCL 600.2955a because it concluded

that there was a question of material fact regarding whether plaintiff’s

intoxication was 50 percent or more the cause of his injury. The trial

court’s granting of defendants’ motion to dismiss in light of the parties’

stipulation that plaintiff’s intoxication was 50 percent or more the cause

of the snowmobile accident that resulted in the fractures to plaintiff’s

right tibia and fibula was tantamount to a ruling that there was no

genuine issue of material fact regarding whether plaintiff’s intoxication

was 50 percent or more the cause of his injuries.

2010] B

EEBE V

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451 Mich 358, 362; 547 NW2d 314 (1996). [Clerc v

Chippewa Co War Mem Hosp, 267 Mich App 597, 601; 705

NW2d 703 (2005), remanded on other grounds 477 Mich

1067 (2007).]

This case involves the construction of MCL

600.2955a. This Court reviews de novo the interpreta-

tion of a statute. Manske v Dep’t of Treasury, 282 Mich

App 464, 468; 766 NW2d 300 (2009).

III. ANALYSIS

At issue in this case is the interpretation and appli-

cation of MCL 600.2955a.

MCL 600.2955a provides an

absolute defense when impairment from alcohol is 50

percent or more the cause of the accident or event that

resulted in the plaintiff’s injury:

(1) It is an absolute defense in an action for the death of

an individual or for injury to a person or property that the

individual upon whose death or injury the action is based

had an impaired ability to function due to the influence of

intoxicating liquor or a controlled substance, and as a

result of that impaired ability, the individual was 50% or

more the cause of the accident or event that resulted in the

death or injury. If the individual described in this subsec-

tion was less than 50% the cause of the accident or event,

an award of damages shall be reduced by that percentage.

(2) As used in this section:

(a) “Controlled substance” means that term as defined

in section 7104 of the public health code, Act No. 368 of the

Public Acts of 1978, being section 333.7104 of the Michigan

Compiled Laws.

Plaintiff argues on appeal that MCL 600.2955a does not apply to medical

malpractice actions. We decline to address this issue because plaintiff did not

raise the issue below and the trial court did not address it; therefore, it is

unpreserved. F ast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489

(1999). F or purposes of this case, we presume, without deciding, that MCL

600.2955a applies to medical malpractice actions.

518 290 M

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(b) “Impaired ability to function due to the influence of

intoxicating liquor or a controlled substance” means that,

as a result of an individual drinking, ingesting, smoking, or

otherwise consuming intoxicating liquor or a controlled

substance, the individual’s senses are impaired to the point

that the ability to react is diminished from what it would be

had the individual not consumed liquor or a controlled

substance. An individual is presumed under this section to

have an impaired ability to function due to the influence of

intoxicating liquor or a controlled substance if, under a

standard prescribed by section 625a of the Michigan ve-

hicle code, Act No. 300 of the Public Acts of 1949, being

section 257.625a of the Michigan Compiled Laws, a pre-

sumption would arise that the individual’s ability to oper-

ate a vehicle was impaired.

“[T]he absolute defense of impairment provided by

MCL 600.2955a serves a unique legislative purpose.”

Harbour, 266 Mich App at 460. By enacting the statute,

the Legislature “ ‘sought to place more responsibility

on intoxicated plaintiffs who are equally or more to

blame for their injuries, therefore marking a shift

toward personal responsibility envisioned by overall

tort reform.’ ” Id. at 461, quoting Wysocki v Felt, 248

Mich App 346, 358-359; 639 NW2d 572 (2001).

The primary objective in construing a statute is to

discern and give effect to the Legislature’s intent.

People v Williams, 475 Mich 245, 250; 716 NW2d 208

(2006). The words used in a statute provide the most

reliable evidence of the Legislature’s intent. Neal v

Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004).

“Every word or phrase of a statute will be assigned its

plain and ordinary meaning unless defined in the stat-

ute.” Piccalo v Nix (On Remand), 252 Mich App 675,

679; 653 NW2d 447 (2002). If the language of the

statute is clear and unambiguous, the Court must

follow it, and further judicial construction is neither

2010] B

EEBE V

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permitted nor required. Robinson v Detroit, 462 Mich

439, 459; 613 NW2d 307 (2000).

MCL 600.2955a provides an absolute defense in this

case if plaintiff “was 50% or more the cause of the

accident or event that resulted in the death or injury.”

MCL 600.2955a(1). The trial court ruled that the appli-

cable “event” under MCL 600.2955a(1) that resulted in

plaintiff’s injury was the snowmobile accident and not

defendants’ medical treatment of plaintiff’s leg. In

Piccalo, this Court interpreted the word “event” in

MCL 600.2955a(1) broadly, meaning “ ‘something that

happens or is regarded as happening; an occurrence,

especially one of some importance’ or ‘the outcome,

issue, or result of anything.’ ” Piccalo, 252 Mich App at

680, quoting The Random House Dictionary of the

English Language: Second Edition Unabridged, p 671.

Analogous caselaw arising from this Court’s and our

Supreme Court’s interpretations and applications of

the governmental tort liability act is instructive. MCL

691.1407(2) provides that when certain conditions are

met, governmental employees are immune from tort

liability for damages they caused. For purposes of our

discussion, the relevant language of MCL 691.1407(2)

states that a governmental employee is immune from

tort liability if, among other conditions, “[t]he . . . em-

ployee’s... conduct does not amount to gross negli-

gence that is the proximate cause of the injury or

damage.” MCL 691.1407(2)(c) (emphasis added).

In 1994, our Supreme Court held that the word “the”

preceding “proximate cause” in MCL 691.1407(2)(c) did

not indicate that the conduct was required to be the sole

proximate cause of the injury in order to overcome

immunity. Dedes v Asch, 446 Mich 99, 107; 521 NW2d

488 (1994). Six years later, the Supreme Court over-

ruled Dedes in part in Robinson, 462 Mich at 458-459.

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According to our Supreme Court’s decision in Robinson,

the Legislature’s use of the definite article indicated the

Legislature’s intent to limit tort liability except when

the governmental employee’s gross negligence was “the

one most immediate, efficient, and direct cause of the

injury or damage, i.e., the proximate cause.” Robinson,

462 Mich at 462. This Court has followed Robinson in

strictly limiting tort liability when a governmental

employee’s negligence is merely a cause, rather than the

cause of the plaintiff’s injuries. See Costa v Community

Emergency Med Servs, Inc, 263 Mich App 572, 579; 689

NW2d 712 (2004).

A. THE INJURY

Applying the same analysis used by our Supreme

Court in its interpretation and application of the

governmental tort liability act to MCL 600.2955a(1),

we first must identify “the injury.” Here, the trial

court failed to properly identify “the injury” that was

the basis for the action. Under MCL 600.2955a(1), a

plaintiff’s impaired ability to function because of

intoxicating liquor is an absolute defense if the

plaintiff’s impaired ability to function “was 50% or

more the cause of the accident or event that resulted

in the death or injury.” (Emphasis added.) “[T]he

Legislature is presumed to understand the meaning

of the language it enacts into law....”Robinson, 462

Mich at 459. Furthermore, “[e]ach word of a statute

is presumed to be used for a purpose.” Id. As previ-

ously discussed, the Legislature’s repeated use of the

word “the” rather than “a” in MCL 600.2955a(1) is

significant. Thus, in order for the absolute defense of

impairment statute to apply, the plaintiff’s impair-

ment from alcohol must have been “the cause of the

accident or event,” and the particular accident or

2010] B

EEBE V

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event must have resulted in the particular injury. The

one particular accident or event that resulted in the

pain and the contracture of the toes of plaintiff’s

right foot was defendants’ alleged medical malprac-

tice, not the snowmobile accident. Furthermore, the

one specific result of defendants’ alleged medical

malpractice was the pain in plaintiff’s right leg and

the contracture of the toes of his right foot.

In this case, there were two distinct injuries that

were the result of two separate accidents or events.

The first accident or event was plaintiff’s snowmobile

accident; the injuries that resulted from this accident

or event were tibia and fibula fractures in plaintiff’s

right leg. The second accident or event was defen-

dants’ alleged medical malpractice in failing to diag-

nose and treat plaintiff’s compartment syndrome; the

injuries from this accident or event included pain and

the contracture of the toes of plaintiff’s right foot.

The basis of a medical malpractice action is an injury

to an individual that is the proximate result of alleged

medical malpractice. See MCL 600.2912a. The rel-

evant injury for purposes of plaintiff’s medical mal-

practice action was not the fractures of the bones in

his right leg, but the separate and distinct injury to

plaintiff that resulted from defendants’ alleged medi-

cal malpractice. According to plaintiff, defendants’

medical malpractice in failing to diagnose and treat

the compartment syndrome that developed in his

right leg after Drs. Sheely and Hartman performed

surgery on the leg caused injury in the form of pain

and contracture of the toes on plaintiff’s right foot.

Hence, the injury giving rise to plaintiff’s complaint

is based on plaintiff’s medical malpractice action,

which was a separate and distinct injury from those

suffered as a result of plaintiff’s intoxication.

522 290 M

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B. THE CAUSE

Under the plain language of MCL 600.2955a(1), the

plaintiff’s impairment from alcohol must have been

“the cause,” meaning the proximate cause that resulted

in the particular injury. MCL 600.2955a(1). Causation

includes both cause in fact and legal, or proximate,

causation. Skinner v Square D Co, 445 Mich 153,

162-163; 516 NW2d 475 (1994). Cause in fact requires a

showing that but for the defendant’s actions, the plain-

tiff’s injury would not have occurred, while legal causa-

tion relates to the foreseeability of the consequences of

the defendant’s conduct. Id. at 163.

As noted previously, when considering a decision on a

motion for summary disposition under MCR

2.116(C)(10), we must review “ ‘the pleadings, admis-

sions, and other evidence submitted by the parties in

the light most favorable to the nonmoving party.’ ”

Odom v Wayne Co, 482 Mich 459, 466-467; 760 NW2d

217 (2008), quoting Brown v Brown, 478 Mich 545,

551-552; 739 NW2d 313 (2007). Viewing the evidence in

a light most favorable to plaintiff, plaintiff was not the

“proximate cause” of the pain in his right leg and the

contracture of the toes of his right foot. Robinson, 462

Mich at 462. For this reason alone, summary disposition

based on the absolute defense of impairment provided

by MCL 600.2955a would be improper.

For the absolute defense of impairment provided by

the statute to apply, plaintiff’s impairment from alcohol

must also have been the one proximate cause of plain-

tiff’s injuries suffered as a result of compartment syn-

drome.

“[L]egal cause or ‘proximate cause’ normally

We recognize that the proper standard for proximate causation in a

negligence action is that the negligence must be “a proximate cause” not

“the proximate cause.” Kirby v Larson, 400 Mich 585, 605-606; 256

2010] B

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involves examining the foreseeability of consequences,

and whether a defendant should be held legally respon-

sible for such consequences.” Skinner, 445 Mich at 163.

“To establish legal cause, the plaintiff must show that it

was foreseeable that the defendant’s conduct ‘may

create a risk of harm to the victim, and . . . [that] the

result of that conduct and intervening causes were

foreseeable.’ ” Weymers v Khera, 454 Mich 639, 648; 563

NW2d 647 (1997), quoting Moning v Alfono, 400 Mich

425, 439; 254 NW2d 759 (1977). There may be more

than one proximate cause of an injury. Brisboy v Fibre-

board Corp, 429 Mich 540, 547; 418 NW2d 650 (1988).

Frequently, two causes will operate concurrently so that

both constitute a direct proximate cause of the injury

that results. Id.

Even assuming that plaintiff’s impairment because

of the influence of intoxicating liquor was a proximate

cause of the leg injuries that resulted from the compart-

ment syndrome, defendants would also be a proximate

cause of those injuries if the evidence is viewed in a light

most favorable to plaintiff. There was evidence that

compartment syndrome can be a complication of frac-

tures of the tibia and fibula and that plaintiff developed

a deep compartment syndrome in his right leg after

defendants performed surgery on the leg. There was

also evidence that defendants did not diagnose or treat

plaintiff’s compartment syndrome and that plaintiff

suffered pain and contracture in the toes of his right

foot as a result of the compartment syndrome. In this

case, we do not decide whether both plaintiff and

defendants were proximate causes of the pain or the

NW2d 400 (1977). However, we are analyzing causation in the context of

the language used in the statute providing an absolute defense for

impairment, and the language in the statute requires that the impair-

ment be “the” one “cause of the accident or event that resulted in the...

injury.” MCL 600.2955a(1).

524 290 M

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contracture of the toes of plaintiff’s right foot and, if

they both were proximate causes, whether plaintiff’s

impairment was a substantial factor in producing the

pain and the contractures. We also do not decide

whether defendants’ alleged medical malpractice was

foreseeable or whether it was an independent, interven-

ing cause sufficient to sever the causal connection

between plaintiff’s impairment from alcohol and the

injuries that resulted from defendants’ alleged malprac-

tice. Generally, proximate cause is a factual issue to be

decided by the trier of fact.

Nichols v Dobler, 253 Mich

App 530, 532; 655 NW2d 787 (2002). Our task in this

case is limited to determining whether plaintiff was the

proximate cause of the pain and the contracture of the

toes of his right foot under MCL 600.2955a(1). Viewing

the evidence in a light most favorable to plaintiff, we

conclude that defendants may have been the proximate

cause of the injuries plaintiff suffered as a result of the

compartment syndrome; consequently, MCL 600.2955a

does not apply to the facts of this case.

C. POLICY CONSIDERATIONS

Policy reasons support our construction of MCL

600.2955a. Concluding that the applicable accident or

event in this case was the snowmobile accident rather

than the alleged medical malpractice would effectively

provide a blanket shield to medical care providers from

medical malpractice actions in all cases in which the

plaintiff patient was impaired when he or she sought

treatment even if the medical care providers committed

medical malpractice and caused a separate and discrete

The court should decide proximate causation as a matter of law only

if reasonable minds could not differ regarding the proximate cause of the

plaintiff’s injury. Nichols v Dobler, 253 Mich App 530, 532; 655 NW2d 787

(2002).

2010] B

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injury to the impaired plaintiff. Any construction of

MCL 600.2955a that would result in such a blanket

shield from liability for medical care providers is con-

trary to the policy in this state that allows patients

injured by medical malpractice to seek recourse for

their injuries in the form of a medical malpractice

action. Moreover, interpreting MCL 600.2955a in a

manner that would shield medical care providers from

liability when the patient was impaired would not

further the purposes and policies underlying the de-

fense. Although the Legislature’s purpose in enacting

MCL 600.2955a was “ ‘to place more responsibility on

intoxicated plaintiffs who are equally or more to blame

for their injuries’ ” by “ ‘marking a shift toward per-

sonal responsibility,’ ” Harbour, 266 Mich App at 461,

quoting Wysocki, 248 Mich App at 358-359, this purpose

would not be served if a plaintiff, albeit an intoxicated

plaintiff, were precluded from bringing an action to

recover for separate and discrete injuries that were the

result of medical malpractice and not the plaintiff’s

intoxication. Such an outcome would result in an ineq-

uitable shifting of the blame that would favor a negli-

gent medical care provider who was more at fault for

the injury than the intoxicated plaintiff.

D. HARBOUR IS DISTINGUISHABLE

Furthermore, our decision in Harbour does not re-

quire a contrary result in this case because Harbour is

distinguishable both factually and legally from the

instant case.

In Harbour, the plaintiff’s decedent was

arrested for driving while under the influence of intoxi-

cating liquor and taken to jail. Harbour, 266 Mich App

Plaintiff asserts that this Court’s decision in Harbour was wrongly

decided and requests this Court to convene a conflict panel pursuant to

MCR 7.215(J)(3). We decline to do so.

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at 454. At the jail, a nurse assessed him and placed him

on “sick call” in a holding cell. Id. Approximately two

hours after the nurse assessed him, the plaintiff’s

decedent “died as a result of irregular heart rhythms

caused by acute alcohol withdrawal.” Id. This Court

ruled that alcohol withdrawal meets the broad defini-

tion of an “event” under MCL 600.2955a(1). Id. at 459.

Because the decedent’s alcohol-related impairment

caused the acute withdrawal that was the most imme-

diate, efficient and direct cause of the decedent’s death,

the defendant was entitled to the absolute defense of

impairment provided by MCL 600.2955a. Id. at 463.

Unlike the facts of this case, there was only one

injury in Harbour, the decedent’s death. In the instant

case, there were two distinct injuries: plaintiff’s frac-

tured tibia and fibula and the injuries to plaintiff’s right

leg that resulted from the compartment syndrome.

Significantly, the causal connection between the dece-

dent’s impairment from alcohol and his death was

unusually strong in Harbour because the decedent

literally drank himself to death. In Harbour it was

difficult for the plaintiff to dispute that the decedent’s

impairment from alcohol resulted in his death when

“[p]laintiff’s own evidence was unequivocal that the

decedent’s chronic alcohol abuse and . . . his alcohol-

related impairment caused the acute withdrawal that

was the ‘most immediate, efficient, and direct cause’ of

his death.” Id., quoting Robinson, 462 Mich at 446.

Furthermore, the plaintiff’s expert witness in Harbour

admitted that what might have happened if the dece-

dent had been treated differently by the nurse was

“pure speculation.” Id. In contrast to Harbour, the

causal connection between plaintiff’s impairment in

this case and the pain and contracture of the toes in his

right foot was not as clear-cut because viewing the

evidence in a light most favorable to plaintiff, there may

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have been more than one cause that resulted in the pain

and contractures, and for MCL 600.2955a to apply,

plaintiff’s impairment from alcohol must have been the

one cause that resulted in the pain and the contracture

of the toes of his right foot. Harbour is also distinguish-

able on the basis that the alleged medical malpractice

was not a discrete injurious event because the dece-

dent’s own consumption of alcohol resulted in his death

from acute alcohol withdrawal, whereas in the instant

case, the injuries that plaintiff suffered as a result of

compartment syndrome were discrete injuries that

were not influenced by plaintiff’s impairment from

alcohol.

In sum, we hold that the applicable “accident or

event” under MCL 600.2955a(1) was defendants’ al-

leged medical malpractice. Viewing the evidence in a

light most favorable to plaintiff, there was more than

one cause that resulted in the pain and the contracture

of the toes in plaintiff’s right foot. Therefore, MCL

600.2955a(1) does not apply to the facts of this case.

Reversed.

ANSEN

, J., concurred.

ANDSTRA

,J.(concurring). I concur with the decision

of the majority because, as explained in part III(A) of its

opinion, for purposes of MCL 600.2955a(1), the relevant

“event that resulted in the...injury” here was not the

snowmobile accident and leg fractures suffered by

plaintiff but, as alleged, the malpractice and resulting

pain and contracture of plaintiff’s right foot. Accord-

ingly, the majority correctly concludes that the defense

provided by the statute is unavailable to defendants.

There is thus no need to further consider whether

the defense is unavailable because of the language in

528 290 M

ICH

512 [Nov

ONCURRING

PINION BY

ANDSTRA

,J.

the statute concerning the causal relationship between

plaintiff’s alleged injury and his liquor-impaired ability

to operate the snowmobile. To do so, as the majority

does in part III(B) of its opinion, results in dicta.

Further, the majority incorrectly says that “[f]or the

absolute defense of impairment provided by the statute

to apply, plaintiff’s impairment from alcohol must also

have been the one proximate cause of plaintiff’s injuries

suffered as a result of compartment syndrome.” Ante at

523. Unlike the statute at issue in Robinson v Detroit,

462 Mich 439; 613 NW2d 307 (2000), which apparently

provides the majority the logical basis for this conclu-

sion, the statute here does not refer to “the proximate

cause.” Instead, MCL 600.2955a(1) limits its protection

to situations in which the plaintiff “was 50% or more

the cause of the... event that resulted in the...

injury.” MCL 600.2955a(1). Thus, for the statute to

apply, a plaintiff’s alcohol impairment need not be “the

one proximate cause” of the event giving rise to an

injury; it is sufficient if a plaintiff’s impairment, con-

sidered alongside any other proximate causes, consti-

tuted 50 percent or more of the cause of the event

resulting in the injury.

2010] B

EEBE V

ARTMAN

529

ONCURRING

PINION BY

ANDSTRA

,J.

BARROW v DETROIT MAYOR

Docket No. 298128. Submitted November 2, 2010, at Detroit. Decided

November 9, 2010, at 9:10 a.m.

Tommy Joe Barrow sought leave in the Wayne Circuit Court to file a

complaint for quo warranto under MCL 600.4505 against the

mayor of Detroit, the city of Detroit, elections officials of Detroit

and Wayne County, and others after he lost the 2009 Detroit

mayoral election. He alleged that there was a likelihood that he

was in fact elected and that the mayor had usurped the office as a

result of ballot tampering. The Wayne County Board of Canvassers

granted Barrow a recount, which confirmed the results of the

election, but when he requested the county prosecutor and the

Attorney General to initiate quo warranto proceedings, each

declined. The Secretary of State conducted an inquiry in response

to a letter Barrow sent to that office, but concluded that no

fraudulent vote manipulation had occurred. After a hearing on the

Barrow’s application for leave to file a quo warranto action, the

court, Isidore B. Torres, J., denied Barrow’s application, conclud-

ing that Barrow had failed to provide sufficient factual support for

his allegations that election irregularities resulted in the mayor

usurping his office and thus that the application lacked sufficient

apparent merit to justify further inquiry by quo warranto. Barrow

appealed.

The Court of Appeals held:

The trial court did not abuse its discretion by denying leave to

file the action. Under MCR 3.306(B)(3)(a) and MCL 600.4501, a

person may apply to the Attorney General to bring an action for

quo warranto alleging a usurpation of office. If the Attorney

General refuses the request, the person may apply privately to the

court under MCR 3.306(B)(3)(b) for leave to file the action. An

application for leave to file an action for quo warranto must make

a precise and positive showing of a clear case of right and that

public policy will be served by the proceeding. The application

must disclose sufficient facts and grounds and sufficient apparent

merit to justify further inquiry by quo warranto proceedings.

Leave should not be granted if the applicant swears to a conclusion

only. The only specific facts Barrow alleged in his application were

530 290 M

ICH

530 [Nov

the number of ballots deemed uncountable, the number of votes in

the original election, and the number of votes it would take to

change the outcome. The other allegations were beliefs, suspicions,

and conclusions without specific factual support.

Affirmed.

ARRANTO —

PPLICATION FOR

EAVE TO

ILE

CTION —

UFFICIENCY OF

LEADINGS

A person may apply to the Attorney General to bring an action for

quo warranto alleging a usurpation of office; if the Attorney

General refuses the request, the person may apply privately to the

court for leave to file the action; an application for leave to file an

action for quo warranto must make a precise and positive showing

of a clear case of right and that public policy will be served by the

proceeding; the application must disclose sufficient facts and

grounds and sufficient apparent merit to justify further inquiry by

quo warranto proceedings; leave should not be granted if the

applicant swears to a conclusion only (MCL 600.4501; MCR

3.306[B][3][b]).

Clarence B. Tucker, Sr., P.L.L.C. (by Clarence B.

Tucker, Sr.), for Tommy Joe Barrow.

Honigman Miller Schwartz and Cohn LLP (by John

D. Pirich and Andrea L. Hansen) for the Mayor of

Detroit.

Krystal A. Crittendon, Corporation Counsel, and

Joanne D. Stafford, Assistant Corporation Counsel, for

the city of Detroit, the Detroit Board of Canvassers, the

Detroit Election Commission, the Detroit City Clerk,

and members of the board of canvassers and elections

commission.

Marianne Talon, Corporation Counsel, and Janet

Anderson-Davis, Assistant Corporation Counsel, for the

Wayne County Board of Canvassers and its members.

Before: S

ERVITTO

,P.J., and Z

AHRA

and D

ONOFRIO

,JJ.

2010] B

ARROW V

ETROIT

AYOR

531

URIAM

. Appellant, Tommy Joe Barrow, appeals

as of right an opinion and order denying his emergency

application for leave to file a complaint for quo war-

ranto. Appellant filed this action for quo warranto in

order to challenge the outcome of the November 2009

election of appellee Dave Bing as mayor of the city of

Detroit. Because the trial court did not err by denying

appellant’s application for leave for the reason that

appellant failed to allege specific facts warranting fur-

ther inquiry by quo warranto, we affirm.

This action arises out of the November 3, 2009,

general election in which both appellant and Dave Bing

appeared on the ballot as candidates for mayor of the

city of Detroit. On November 16, 2009, the board of city

canvassers declared that appellant had received 50,785

votes and Bing received 70,166 votes in the mayoral

election and certified Mayor Bing as the winner. On

November 20, 2009, appellant filed a recount petition

alleging “fraud, deliberate mistake and electronic ma-

nipulation” of the ballots cast in the election. At a

meeting on November 23, 2009, the Wayne County

Board of Canvassers approved appellant’s recount peti-

tion. Thereafter, the Wayne County Board of Canvass-

ers informed appellant that the recount would com-

mence on December 9, 2009.

Before the recount date, on November 24, 2009,

appellant sent a letter to the Wayne County Clerk

requesting that she secure the ballots pending the

recount, alleging that the ballots were “under the sole

control of the building Janitor.” On the same day, the

Wayne County Board of Canvassers, through its attor-

ney, sent appellant an e-mail informing him that Michi-

gan election law contained procedures for ballot secu-

532 290 M

ICH

530 [Nov

rity pending a recount and that “[a]bsent a court order,

the statutory procedures will be followed.” It is undis-

puted that appellant did not seek a court order.

The recount was held on December 9, 2009, as

scheduled. Following the recount, the Wayne County

Board of Canvassers met and addressed appellant’s

various challenges at a series of meetings on December

11, 15, 18, 22, and 23, 2009. On December 23, 2009, the

Wayne County Board of Canvassers approved a motion

to certify the election, despite appellant’s assertion

“that there were 49,386 votes that were not recount-

able.” The Wayne County Board of Canvassers’ certifi-

cation of the results of the recount as 47,062 votes for

appellant and 65,946 votes for Mayor Bing was filed on

December 24, 2009.

On December 30, 2009, appellant wrote letters of

complaint to the Wayne County Prosecutor, the Michi-

gan Attorney General, and the Bureau of Elections of

the Michigan Secretary of State, asking each to initiate

an investigation. On January 5, 2010, appellant again

wrote to the Attorney General, asking him to initiate

quo warranto proceedings. On January 15, 2010, the

prosecutor declined to proceed. On February 9, 2010,

the Attorney General informed appellant by letter that

he had routed appellant’s letter to the criminal division

for review and that review of the appellant’s complaint

materials was complete. In the letter, the Attorney

General explained that there was a “lack of evidence of

criminal intent to defraud,” contrary to appellant’s

allegations, and declined to take further action at that

time. On February 23, 2010, the Attorney General also

declined to seek a writ of quo warranto. On February

23, 2010, the Secretary of State issued a letter inform-

ing appellant that she had conducted an inquiry into

appellant’s complaint, that the investigation revealed

2010] B

ARROW V

ETROIT

AYOR

533

“no evidence to indicate or suggest that any type of

fraudulent vote manipulation occurred during or after

the administration of the election,” and that the inves-

tigation was concluded.

On April 2, 2010, appellant filed an “Emergency

Application for Leave to File Quo Warranto Action” in

the circuit court, alleging that various election law

errors, mistakes, and violations were committed that

undermined any confidence in the outcome of the

election. The Wayne County appellees

filed an answer

on April 7, 2010, denying appellant’s allegations that

Mayor Bing had usurped the office of mayor and was

not entitled to that office on the basis of the election of

November 3, 2009. On April 8, 2010, the Wayne County

appellees filed a brief in support of their answer, argu-

ing that appellant had failed to make out a prima facie

case of fraud or error or show that he was entitled to the

mayor’s position. They also argued that appellant’s

application was time-barred or barred by laches.

Mayor Bing filed an answer to the application, deny-

ing appellant’s allegations on April 9, 2010. On May 3,

2010, Mayor Bing filed a brief in support, arguing that

appellant had failed to show factual support for his

allegations. The city of Detroit appellees

filed an ap-

pearance on May 4, 2010, but did not file an answer or

a brief in opposition to appellant’s application. On May

7, 2010, appellant filed a reply brief in support of his

application, arguing that a “monumental number of

irregularities which may have indeed derived from

The Wayne County appellees consist of the Wayne County Board of

Canvassers and its members: Krista Hartounian, Carol Larkin, Joseph

Xuereb, and John Doe #2.

The city of Detroit appellees consist of (1) the city of Detroit, (2) the

Detroit Board of Canvassers and its members, Dorothy Burrell, Edward

Hartounian, and Walter Kroppy, and (3) the Detroit Elections Commis-

sion and its members, Daniel Baxter, Edwin Ukagbu, and George Azzuz.

534 290 M

ICH

530 [Nov

fraud or gross errors” justified inquiry by quo warranto.

Appellant also denied that his application was time-

barred or barred by laches or would cause harm or

undue expense to the public.

At a hearing on May 10, 2010, appellant argued that

the trial court should grant his request for leave to

proceed in quo warranto because of appellees’ failure to

comply with mandatory provisions concerning ballot

container seals and calibration of clocks in the voting

machines, resulting in 59,135 ballots not being re-

counted, which were more than enough to change the

outcome of the election. Appellant maintained that he

was not asserting material fraud or error, which would

have been subject to a 30-day limitations period.

The county appellees countered that because propo-

sitions B and S were on the same ballot as the mayor’s

race, the statutory subsection of MCL 600.4545 dealing

with material fraud or error applied and appellant’s

application was time-barred. The county appellees ar-

gued that if the election were declared invalid, a new

election would be required, including a new primary, at

substantial public cost. The county appellees argued

that appellant had failed to plead specific facts neces-

sary for the court to conclude that fraud or irregulari-

ties existed and, instead, had simply promised to de-

velop supporting evidence at a later date. Further, the

county appellees argued that appellant’s allegations

were unsupported because the Attorney General and

the Secretary of State had both investigated the matter

and neither had found evidence of fraud or vote ma-

nipulation.

Mayor Bing adopted the county appellees’ argu-

ments, noting that appellant had stated in his reply

brief that he observed numerous irregularities that

“may have indeed derived from fraud or gross errors.”

2010] B

ARROW V

ETROIT

AYOR

535

Mayor Bing also observed that such speculation was

insufficient to meet the required specificity standard.

Mayor Bing then summarized the substantive allega-

tions of appellant’s application and argued that appel-

lant had failed to make allegations that were factually

specific enough to justify further inquiry by quo war-

ranto. Mayor Bing noted that approximately 80 out of

100 absentee precincts were counted before those bal-

lots were deemed unrecountable and that the results of

that recount (before it was halted) agreed with the

original results. Further, there was no evidence that the

polls were open fewer hours than required by law, so

those 9,649 ballots (while unrecountable) were unre-

markable. Moreover, Michigan election law requires

that when precincts are deemed unrecountable because

of sealing issues, the original results stand.

The city appellees adopted the arguments made by

the other attorneys, adding that holding a new election

would cost approximately $2 million and would cause

“extreme” financial hardship. In reply, appellant’s

counsel admitted that “we don’t know how [the irregu-

larities] happened. Could have been inadvertence, in-

competence, could have been any number of reasons,”

so “[w]e didn’t plead that.” The trial court took the

matter under advisement.

On May 11, 2010, the trial court issued an opinion

and order denying appellant’s application. The trial

court stated that when determining whether to grant

leave, it was required to determine “whether the appli-

cation discloses sufficient apparent merit to justify

further inquiry by quo warranto proceedings.” The trial

court found that appellant’s essential claim was that

Detroit election officials had made such numerous errors,

and mistakes, and had engaged in such numerous viola-

tions of Michigan election law that the number of ballots

536 290 M

ICH

530 [Nov

deemed not to be recountable or tainted was more than six

(6) times the number necessary to alter the outcome of the

city’s general election for mayor.

The trial court observed that appellant claimed in

particular that 41,485 absentee ballots and 8,001 other

ballots were deemed unrecountable; that another 9,649

ballots had dates and times calling into question

whether the precincts were open during the hours

required by law; that a total of 59,135 ballots (47.4

percent of the total vote for mayor) were found to be

unrecountable; that “ ‘an additional unknown number

of countable ballots have likely been tampered with and

manipulated, further eliminating any reasonable cer-

tainty as to the true outcome of the election’ ”; and,

thus, that “ ‘there exists no reasonable certainty that

any winner could be determined accurately and with

the required legal certainty.’ ”

The trial court specifically found the following:

As the aforementioned portions of Plaintiff’s

[

]

applica-

tion illustrate, Plaintiff has failed to allege any specific

facts establishing that ballots were tampered with and/or

manipulated, or that Defendants engaged in unlawful acts.

Even assuming that Plaintiff’s action is premised on ir-

regularities as opposed to actual ballot tampering or other

illegal acts, he has failed to state facts sufficient to support

an inquiry into whether Bing usurped the office of mayor

on the basis of those irregularities. Specifically, Plaintiff

has failed to allege facts in support of his conclusion that

any ballots which were not recounted were not valid as

cast. He has also failed to provide factual support for his

allegations that the Detroit Board of Canvassers “repeat-

edly violated statute election law and procedures.”

Although no suit was filed in this case, the trial court proceedings

consistently refer to appellant as “Plaintiff” and appellees as “Defen-

dants.” For simplicity’s sake, we have not changed these designations in

quoted material.

2010] B

ARROW V

ETROIT

AYOR

537

The trial court concluded that appellant had failed to

show that his application had “sufficient apparent

merit to justify further inquiry by quo warranto” pro-

ceedings into Mayor Bing’s position as mayor of the city

of Detroit and denied appellant’s application for leave.

This appeal followed.

Appellant’s sole argument on appeal is that the

trial court erred by denying his application for leave

to file an action for quo warranto because the appli-

cation disclosed sufficient merit to justify further

inquiry by quo warranto proceedings. Appellant as-

serts that he proceeded under MCL 600.4505 and

alleged usurpation due to the massive number of

irregularities (i.e., errors, mistakes, and violations of

Michigan election laws). Appellant maintains that his

application was based on the 59,135 irregular ballots

resulting from numerous election law violations that

were disclosed by the December 2009 recount and

that he did not allege election fraud and did not seek

to set aside the entire November 2009 election.

The county appellees, the city appellees, and Mayor

Bing all respond that the trial court correctly held

that appellant failed to allege specific facts warrant-

ing further inquiry by quo warranto and, for that

reason, properly denied appellant’s application. The

county appellees argue that caselaw requires appel-

lant to offer “critical facts” in support of his applica-

On June 16, 2010, this Court denied appellant’s motion for peremp-

tory reversal. Barrow v Detroit Mayor, unpublished order of the Court of

Appeals, entered June 16, 2010 (Docket No. 298128). On June 18, 2010,

this Court granted in part the city of Detroit’s motion to expedite this

appeal. Barrow v Detroit Mayor, unpublished order of the Court of

Appeals, entered June 18, 2010 (Docket No. 298128).

538 290 M

ICH

530 [Nov

tion for leave to file an action for quo warranto

showing a prima facie case of usurpation and that he

did not do so. The county appellees contend that the

trial court could not determine from the face of

appellant’s application that fraud or errors were

committed. Additionally, the county appellees assert

that appellant failed to include allegations showing

his entitlement to the office of mayor, not mere

uncertainty concerning the true outcome.

The city appellees argue that appellant’s applica-

tion for leave to proceed by quo warranto alleged no

facts to support his claims that ballots were tainted,

that the winner of the election could not be ascer-

tained, that errors and mistakes were made, or that

Detroit election officials engaged in numerous elec-

tion law violations. Similarly, Mayor Bing asserts that

appellant failed to allege, much less offer proof of, any

actual facts that would warrant further investigation

by quo warranto. Mayor Bing contends that appellant

has offered speculation rather than any facts tending

to show that the election was improper and simply

complains that various authorities failed to take the

steps he requested concerning his various concerns.

III

A court’s decision whether to grant or deny an applica-

tion for leave to proceed by quo warranto is reviewed for

an abuse of discretion. Shoemaker v City of Southgate,24

Mich App 676, 680-681; 180 NW2d 815 (1970); McDonald

v Jackson, 3 Mich App 287, 288-290; 142 NW2d 42 (1966).

An abuse of discretion occurs only when the trial court’s

decision falls outside the range of “reasonable and prin-

cipled outcome[s].” Maldonado v Ford Motor Co, 476

Mich 372, 388; 719 NW2d 809 (2006).

2010] B

ARROW V

ETROIT

AYOR

539

“Quo warranto” literally means “by what authority.”

Black’s Law Dictionary (8th ed), p 1285. It is “[a]

common-law writ used to inquire into the authority by

which a public office is held or a franchise is claimed.” Id.

MCR 3.306 governs actions for quo warranto. The rule

provides, in pertinent part:

(A) Jurisdiction.

(1) An action for quo warranto against a person who

usurps, intrudes into, or unlawfully holds or exercises a

state office, or against a state officer who does or suffers an

act that by law works a forfeiture of the office, must be

brought in the Court of Appeals.

(2) All other actions for quo warranto must be brought

in the circuit court.

(B) Parties.

(1) Actions by Attorney General. An action for quo

warranto is to be brought by the Attorney General when

the action is against:

(a) a person specified in subrule (A)(1);

(b) a person who usurps, intrudes into, or wrongfully

holds or exercises an office in a public corporation created

by this state’s authority[.]

***

(3) Application to Attorney General.

(a) A person may apply to the Attorney General to have

the Attorney General bring an action specified in subrule

(B)(1). The Attorney General may require the person to give

security to indemnify the state against all costs and expenses

of the action. The person making the application, and any

other person having the proper interest, may be joined as

parties plaintiff.

(b) If, on proper application and offer of security, the

Attorney General refuses to bring the action, the person may

540 290 M

ICH

530 [Nov

apply to the appropriate court for leave to bring the action

himself or herself.

is brought against the defendant for usurping an office, the

complaint may name the person rightfully entitled to the

office, with an allegation of his or her right to it, and that

person may be made a party. [Emphasis added.]

MCL 600.4501 echoes the court rule’s provision

allowing a private party to bring an action for quo

warranto by leave of court if the Attorney General

refuses to act. A quo warranto action may be brought

under MCL 600.4505, which provides:

(1) In actions brought against persons for usurpation of

office, the judgment may determine the right of the defen-

dant to hold the office. If a party plaintiff alleges that he is

entitled to the office, the court may decide which of the

parties is entitled to hold the office.

(2) If judgment is rendered in favor of a party who is

averred to be entitled to the office, he is entitled, after

taking the oath of office, and executing any official bond

which is required by law, to take the office. Such party shall

be given all the books and papers in the custody of the

defendant, or within his power, belonging to the office.

[Emphasis added.]

An action under MCL 600.4505 is appropriate when the

plaintiff seeks to challenge the defendant’s right to hold

office, but fraud or error is not alleged. See People ex rel

Wexford Co Prosecuting Attorney v Kearney, 345 Mich

680, 692; 77 NW2d 115 (1956). A plaintiff can prevail

under MCL 600.4505 only by showing “his own good

title” to the office. Ebright v Buck, 326 Mich 208, 212;

40 NW2d 122 (1949); see also Marian v Beard, 259 Mich

183, 185-187; 242 NW 880 (1932).

“[A]ny damages sustained because of the usurpa-

tion” can be recovered under MCL 600.4511, and such a

claim may be asserted independently, or as part of the

2010] B

ARROW V

ETROIT

AYOR

541

plaintiff’s action for quo warranto. Additionally, under

MCL 600.4515, a court may award costs and may fine a

defendant “found or adjudged guilty of usurping or

intruding into or unlawfully holding or exercising any

office....”

An action in the nature of quo warranto may be

brought under MCL 600.4545, which provides:

(1) An action may be brought in the circuit court of any

county of this state whenever it appears that material

fraud or error has been committed at any election in such

county at which there has been submitted any constitu-

tional amendment, question, or proposition to the electors

of the state or any county, township, or municipality

thereof.

(2) Such action shall be brought within 30 days after

such election by the attorney general or the prosecuting

attorney of the proper county on his own relation, or on the

relation of any citizen of said county without leave of the

court, or by any citizen of the county by special leave of the

court or a judge thereof. Such action shall be brought

against the municipality wherein such fraud or error is

alleged to have been committed.

(3) After such action is brought the procedure shall

conform as near as may be to that provided by law for

actions for quo warranto. [Emphasis added.]

Accordingly, the 30-day limit applies only if the plaintiff

alleges material fraud or error under MCL 600.4545.

Kearney, 345 Mich at 692. Under MCL 600.4545, “ma-

terial fraud or error” means fraud or error that “might

have affected the outcome of the election.” St Joseph

Twp v City of St Joseph, 373 Mich 1, 6; 127 NW2d 858

(1964). While a “but for” showing is not necessary, the

plaintiff’s “proofs must be sufficient to support a fact

finding that enough votes were tainted by the alleged

fraud to affect the outcome.” Id.

542 290 M

ICH

530 [Nov

A traditional quo warranto action under MCL

600.4505 seeks to “try title” to the disputed office. Risk

v Lincoln Charter Twp Bd of Trustees, 279 Mich App

389, 390 n 1; 760 NW2d 510 (2008). An action in the

nature of quo warranto is brought to challenge the

validity of the election itself. Id. MCL 600.4545 “does

not apply to quo warranto actions to try title to a

particular office, but only to test the validity of an

election with regard to a constitutional amendment,

question or proposition.” Stokes v Clerk of the Monroe

Co Canvassers, 29 Mich App 80, 84; 184 NW2d 746

(1970). “[H]owever,... actions in the nature of quo

warranto... are functionally equivalent to traditional

quo warranto actions and are consequently reviewable in

the same manner.” Risk, 279 Mich App at 390-391 n 1.

MCR 3.301(A)(1)(d) and (2) “govern the procedure

for seeking the writs or relief formerly obtained by the

writs,” including a writ of quo warranto. In that regard,

MCR 3.301(A)(3) provides that “[t]he general rules of

procedure apply except as otherwise provided in this

subchapter.” MCR 2.111(A)(1) requires that allegations

made in a pleading be clear, concise, and direct. MCR

2.112(B)(1) requires that fraud and mistake be pleaded

with particularity. Other matters, including malice,

intent, and knowledge, can be pleaded generally under

MCR 2.112(B)(2). MCR 3.301 does not otherwise con-

tain pleading requirements for a petition for leave to

proceed by quo warranto. Nonetheless, our Supreme

Court has held that an application for leave to file an

action for quo warranto “should be so clear and positive

in its statement of facts as to make out a clear case of

right; and should be so framed as to sustain a charge of

perjury if any material allegation is false.” Boucha v

Alger Circuit Judge, 159 Mich 610, 611; 124 NW 532

2010] B

ARROW V

ETROIT

AYOR

543

(1910), citing Cain v Brown, 111 Mich 657, 660; 70 NW

337 (1897); see also Vrooman v Michie, 69 Mich 42, 46;

36 NW 749 (1888).

Vrooman was “the first instance of [quo warranto]

proceedings by a private relator....” Vrooman,69

Mich at 46. On appeal, the Supreme Court held that the

trial court had properly dismissed the action because

the plaintiff failed to respond substantively to the

defendant’s argument that, as supervisor, the plaintiff

was disqualified from holding the appointed office in

question. Id. at 45-46. Nonetheless, the Supreme Court

found it “proper to remark on some peculiarities of the

present record.” Id. at 46. In dicta, the Vrooman Court

stated that leave had been improperly granted by the

trial court because the statute “does not contemplate

that leave shall be granted without some showing [that

the plaintiff is entitled to the office], as it was in this

case.” Id. at 46. The Court stated that when leave of the

court is required for a given action, “[c]ourts can never

act unless upon some responsible showing, and, as it is

contrary to public policy to allow persons to be need-

lessly annoyed by vexatious claims, the statute . . . does

not, as construed, permit a relator to proceed without

exacting a very precise and positive showing.” Id. The

Court observed that

a chief object in requiring leave is to prevent vexatious

prosecutions; and the rule is inflexible that there must be

affidavits so full and positive from persons knowing the

facts as to make out a clear case of right in such a way that

perjury may be brought if any material allegation is false.

[Id.]

The Court stated that “the relator is not allowed to

proceed without showing, not merely a good case in law

against respondent, but also that public policy will be

subserved by the proceeding.” Id. at 46-47. Finally, the

544 290 M

ICH

530 [Nov

Court stated that “[a]s no showing was made to obtain

leave to file the information in the present case, leave

should not have been granted.”

Id.at47.

In Boucha, 159 Mich at 610-611, the petition alleged

that the election board had failed to count 11 votes in

the relator’s favor, allegedly because the ballots con-

tained distinguishing marks when in fact they did not,

that the real reason the election board refused to count

those votes was that a majority of the board opposed the

relator’s election as township supervisor, and that the

board had illegally counted “between one and ten

ballots” for the relator’s rival even though those ballots

contained distinguishing marks and were therefore

illegal. The Boucha Court stated that “[t]he law re-

quires a precise and positive showing before the court

will interfere” in the results of an election. Id. at 611. It

also stated that an application for leave to file a com-

plaint for quo warranto must “make a showing suffi-

ciently clear and definite as to facts, to make out a

prima facie case....” Id. (quotation marks omitted).

The Court also observed that leave should not be

granted where the applicant “swears to a conclusion

only.” Id.

In Penn Sch Dist No7vLewis Cass Intermediate Sch

Dist Bd of Ed, 14 Mich App 109, 117; 165 NW2d 464

(1968), this Court stated that Vrooman and Boucha,

among others, did not apply to actions brought under

MCL 600.4545. In that case, however, the Court was

discussing standing, not pleading requirements, and

accordingly concluded that, unlike the plaintiff in an

The Court also observed that in the “information” filed after being

granted leave of the court, the plaintiff did “not point out the defect

supposed to exist in respondent’s title, but simply denies its validity.” Id.

at 43. The plaintiff also “does not claim to hold any title himself to the

office, except as asserting a right to hold over under an old appoint-

ment....”Id.

2010] B

ARROW V

ETROIT

AYOR

545

action under MCL 600.4505, a plaintiff in an action

under MCL 600.4545 need not show a special interest

in, or entitlement to, the position in question. Id.at

117-118. However, the Court agreed with Vrooman and

Boucha that the controlling considerations in determin-

ing whether to grant leave are whether the applicant

made the appropriate request to the Attorney General

and “whether the application discloses sufficient appar-

ent merit to justify further inquiry by quo warranto

proceedings.” Id. at 118.

In sum, leave to file an action for quo warranto is

properly denied (as futile) when the application fails to

disclose sufficient facts and grounds, and sufficient

apparent merit, to justify further inquiry by quo war-

ranto proceedings. 4 Longhofer & McKenna, Michigan

Court Rules Practice (5th ed), pp 444-445; Grand Rap-

ids v Harper, 32 Mich App 324, 329; 188 NW2d 668

(1971).

In the present case, appellant’s application alleged

that Mayor Bing usurped the office of mayor. Appellant

requested leave to file an action for quo warranto under

MCL 600.4505, based on the Attorney General’s refusal

to proceed. As far as his own entitlement to the office,

appellant alleged that “[t]here is a likelihood that

Plaintiff was in fact elected and Defendant David Bing

has usurped the office.” (Emphasis added.) Appellant

alleged that before the primary election he “suspected”

that ballot tampering would occur at the primary and

that the authorities refused to act on those concerns

before or after the primary. Appellant also alleged in his

application that before the general election he was

“concern[ed]” that “computer manipulation and ballot

tampering” would occur at the general election, but the

546 290 M

ICH

530 [Nov

authorities again refused to act before the election.

After the general election, appellant sought a recount

“based on computer manipulation and absentee ballot

tampering,” and his request for a recount was ap-

proved.

Appellant further alleged in his application, in par-

ticular:

8. The facts of this case and the evidence to be developed

will show that:

***

e. Upon being granted the recount, Plaintiff immedi-

ately requested, in writing, that the county impound and

secure the ballots as he believed that absentee and other

voter ballot tampering would occur before the recount

could begin. The county refused to act upon his request.

f. During the recount conducted by the Wayne County

Board of Canvassers it was revealed that Detroit election

officials had made such numerous errors, and mistakes,

and had engaged in such numerous violations of Michigan

election law that the number of ballots deemed not to be

recountable and or tainted was more than six (6) times

than [sic] the number necessary to alter the outcome of the

city’s General election for mayor.

g. The recount also revealed that Detroit election offi-

cials had failed to perform and enforce numerous proce-

dures and requirements set forth by the State of Michigan

designed to ensure the integrity of elections.

h. As a direct and proximate result, the Wayne County

Board of Canvassers determined:

i. that 100% of the city’s 41,485 absentee voter ballots

were not recountable.

ii. that an additional 8,001 of the city’s polling precincts’

voter ballots were not recountable.

iii. that no less than an additional 9,649 precinct polling

voter ballots had dates and times for which it could not be

2010] B

ARROW V

ETROIT

AYOR

547

determined with certainty that they had been cast in

compliance with the state law requiring polls to remain

open from 7am until 8pm.

iv. [t]hat the total number of ballots tainted and or

deemed not recountable by the Board of Canvassers was

59,135. [Emphasis added.]

Appellant also alleged that the official results of the

election were 70,166 votes for Mayor Bing and 50,785

votes for appellant, a difference of 19,381 votes. Appel-

lant further specifically alleged:

11. While the Board of Canvassers determined that

59,135 ballots were deemed not recountable and or tainted

(47.4% of the total cast for mayor), Plaintiff believed and

continues to believe that an additional unknown number of

the countable ballots have likely been tampered with and

manipulated, further eliminating any reasonable certainty

as to the true outcome of the election.

12. The actual number of ballots necessary to change

and alter the outcome of the election was only 9,692

(19,381 divided by 2 plus 1).

13. Had a full County canvass resulted in a deduction of

9,692 ballots from Defendant and, of necessity, an addition

of 9,692 ballots to Plaintiff, it would have altered the

outcome of the election.

14. Insofar as 59,135 ballots were deemed not recount-

able or tainted, there exists no reasonable certainty that

any winner could be determined accurately and with the

required legal certainty.

15. Defendant Wayne County Board of Canvassers

erred, breached its duty and abused its authority and

discretion when despite having 59,135 out of a total of

124,802 (Defendant’s 70,166, Plaintiff’s 50,785, all others

3,851) ballots cast being tainted at [sic] which only 9,692

ballots separated Defendant from Plaintiff, it issued a

certificate of election to the Defendant.

16. Defendant Detroit Board of canvassers similarly

erred, breached its duty and abused its authority and

548 290 M

ICH

530 [Nov

discretion when it repeatedly violated state election law

and procedures in furtherance of the errors and irregulari-

ties.

17. As a direct and proximate result of the foregoing,

there exists no reasonable certainty as to which candidate

received the greatest number of legitimate, valid, and legal

votes and thus remediation is required.

Finally, appellant alleged that the trial court had the

authority to “see that this challenge to title is heard and

resolved.”

Our review of the record reveals that the only specific

facts alleged by appellant were the number of ballots

deemed unrecountable, the number of votes in the origi-

nal election, and the number of votes it would take to

change the outcome. Appellant “suspected” that ballot

tampering occurred in the general election, but did not

allege that it did. Appellant alleged that Detroit election

officials committed “numerous errors, and mistakes,” and

engaged in “numerous violations of Michigan election

law,” but did not state what those errors, mistakes, or

violations were or whether they were committed before,

during, or after the election. Appellant further alleged

that, after the election, Detroit election officials “failed to

perform and enforce numerous procedures and require-

ments” to ensure the integrity of the ballots, but did not

specify what protocols were violated or how. Appellant

alleged that 59,135 ballots were found to be “tainted and

or deemed not recountable,” but did not state how or why.

Appellant expressed his belief that “an additional un-

known number of the countable ballots have likely been

tampered with and manipulated,” but again failed to state

how or when.

Appellant alleged that, given the number of unre-

countable ballots, there was no certainty concerning the

outcome. He alleged that, given the uncertainty, the

2010] B

ARROW V

ETROIT

AYOR

549

county board of canvassers erred, breached its duty, and

abused its authority and discretion by certifying Mayor

Bing as the winner. Appellant alleged that the Detroit

Board of Canvassers similarly erred, breached its duty,

and abused its authority and discretion when it repeat-

edly violated state election laws and procedures in

furtherance of the errors and irregularities, but again

failed to state what those errors or violations were, or

when and how they occurred.

Since filing his application, appellant has made some

effort to specify the particular errors and violations of law

of which he complains and discusses them at length on

appeal. However, appellant never attempted to amend his

application to add any specific, precise, definite, or clear

and positive factual allegations. Thus, we conclude that

the trial court correctly concluded that appellant’s appli-

cation failed to disclose sufficient facts and grounds and

sufficient apparent merit to justify further inquiry by quo

warranto proceedings. Appellant’s conclusory allegations

that mistakes, errors, and election law violations occurred

were simply insufficient to justify granting leave to file an

action for quo warranto.

We conclude that the trial court correctly held that

appellant had failed to allege specific facts warranting

further inquiry by quo warranto and properly denied

appellant’s application. For this reason, we need not reach

any of the remaining issues raised by appellant—none of

which the trial court decided. Nonetheless, the irregulari-

ties appellant alleges do not tend to show that any

unrecountable ballots were not valid as originally cast or

that Mayor Bing usurped the office of mayor.

Affirmed. Appellees, being the prevailing parties,

may tax costs pursuant to MCR 7.219.

550 290 M

ICH

530 [Nov

MEGEE v CARMINE

Docket No. 292207. Submitted November 2, 2010, at Detroit. Decided

November 16, 2010, at 9:00 a.m.

Joan C. Carmine moved in the Macomb Circuit Court, seeking to

enforce a 1989 divorce judgment and an incorporated qualified

domestic relations order (QDRO) that awarded her as part of the

property division 50 percent of the disposable retirement pay that

Ronald A. Megee would receive as a result of his service in the

United States Navy. The QDRO provided that Megee could not

make another benefit election that would reduce the monthly

pension allotment without Carmine’s written consent. However,

Megee made a unilateral and voluntary postjudgment election to

waive the retirement pay and instead receive monthly combat-

related special compensation (CRSC), 10 USC 1413a, contrary to

the terms of the divorce judgment. As a result, Carmine had ceased

receiving funds under the QDRO. The court, Mary A. Chrza-

nowski, J., entered an order requiring Megee to act as trustee for

the benefit of Carmine with respect to half of his monthly CRSC,

which funds were then to be delivered to Carmine. Megee appealed

by leave granted.

The Court of Appeals held:

1. Following a divorce, a military spouse remains financially

responsible to compensate his or her former spouse in an amount

equal to the share of retirement pay ordered to be distributed to

the former spouse as part of their divorce judgment’s property

division when the military spouse makes a unilateral and volun-

tary postjudgment election to waive the retirement pay in favor of

disability benefits contrary to the terms of the divorce judgment.

The compensation to be paid the former spouse as his or her share

of the property division in lieu of the waived retirement pay may

come from any source the military spouse chooses, but it must be

paid to avoid contempt of court. The military spouse may use

CRSC funds to satisfy the obligation if he or she chooses to do so.

Because the ordered replacement compensation must relate to the

military spouse’s retirement-pay obligation and not the disability

pay being received, and because the military spouse, having made

the election, will no longer actually be receiving the retirement

2010] M

EGEE V

ARMINE

551

pay, it may be necessary on occasion to review and determine

whether any adjustments to the retirement pay would have been

made had the military spouse continued receiving the retirement

pay.

2. The Uniformed Services Former Spouses’ Protection Act,

specifically 10 USC 1408(c)(1), permits a court to treat only

“disposable retired pay” as property of the service member and his

or her spouse subject to division in a state court divorce decree.

CRSC is not retired pay. Therefore, the trial court erred by

dividing plaintiff’s CRSC.

3. The ruling of the trial court that required Megee to pay

Carmine from CRSC funds in an amount equal to half of his CRSC

was reversed and the case remanded to the trial court for the entry

of an order requiring Megee to compensate Carmine with monthly

payments, from any source or combination of sources he chose, in

an amount equal to 50 percent of the retirement pay that Megee

would have been receiving but for his election to waive the

retirement pay in favor of disability benefits.

Reversed and remanded.

RMED

ERVICES —

IVORCE —

ROPERTY

IVISIONS —

ETIREMENT

AY —

OSTJUDGMENT

LECTIONS TO

AIVE

ETIREMENT

AY —

ISABILITY

ENEFITS

A military spouse remains financially responsible to compensate his

or her former spouse in an amount equal to the share of retirement

pay ordered to be distributed to the former spouse as part of their

divorce judgment’s property division when the military spouse

makes a unilateral and voluntary postjudgment election to waive

the retirement pay in favor of disability benefits contrary to the

terms of the divorce judgment; the compensation to be paid the

former spouse as his or her share of the property division in lieu of

the retirement pay can come from any source the military spouse

chooses and must be paid to avoid contempt of court.

Steven S. Vernier for Ronald A. Megee.

Before: M

URPHY

, C.J., and M

ETER

and S

HAPIRO

,JJ.

URPHY

, C.J. Plaintiff appeals by leave granted the

trial court’s order that directed him to act as trustee for

the benefit of defendant with respect to half of plain-

tiff’s monthly combat-related special compensation

552 290 M

ICH

551 [Nov

(CRSC), 10 USC 1413a, which funds were then to be

delivered to defendant. We reverse and remand.

I. OVERVIEW

Pursuant to a divorce judgment entered in Septem-

ber 1989, defendant was awarded 50 percent of plain-

tiff’s Navy disposable retirement pay as part of the

property division, and the judgment incorporated a

qualified domestic relations order (QDRO) to enforce

that provision. The QDRO acknowledged the 50 percent

division of plaintiff’s disposable retirement pay, also

referred to therein as his pension, and it prevented

plaintiff from making another benefit election “that

would otherwise reduce the monthly pension allotment

without the written consent of [defendant].”According

to defendant, she began receiving her share of plain-

tiff’s retirement pay in January 2008, although plaintiff

claims that defendant had been receiving her share of

his retirement pay since 1994. In 2008, plaintiff was

officially diagnosed, for purposes of entitlement to dis-

ability benefits, as being disabled as a result of combat-

related activities and exposure to Agent Orange in

Vietnam. He was declared eligible to elect CRSC, but

that election would require plaintiff to waive further

receipt of his retirement pay. Plaintiff elected to receive

CRSC, resulting in termination of his retirement pay

and thus the cessation of funds flowing to defendant

under the QDRO. Defendant moved to enforce the

divorce judgment and the QDRO, and the trial court

entered the challenged order that effectively forces

plaintiff to pay defendant half of his CRSC.

We hold that following a divorce, a military spouse

remains financially responsible to compensate his or

her former spouse in an amount equal to the share of

retirement pay ordered to be distributed to the former

2010] M

EGEE V

ARMINE

553

spouse as part of the divorce judgment’s property

division when the military spouse makes a unilateral

and voluntary postjudgment election to waive the re-

tirement pay in favor of disability benefits contrary to

the terms of the divorce judgment. Conceptually, and

consistently with extensive caselaw from other jurisdic-

tions, we are dividing waived retirement pay in order to

honor the terms and intent of the divorce judgment.

Importantly, we are not ruling that a state court has the

authority to divide a military spouse’s CRSC, nor that

the military spouse can be ordered by a court to pay the

former spouse using CRSC funds. Rather, the compen-

sation to be paid the former spouse as his or her share

of the property division in lieu of the waived retirement

pay can come from any source the military spouse

chooses, but it must be paid to avoid contempt of court.

To be clear, nothing in this opinion should be construed

as precluding a military spouse from using CRSC funds

to satisfy the spouse’s obligation if desired. In these

situations, because the ordered replacement compensa-

tion must relate to the military spouse’s retirement-pay

obligation and not the disability pay now being re-

ceived, and because the military spouse, having made

the election, will no longer actually be receiving the

retirement pay, it may be necessary on occasion to

review and determine whether any adjustments to the

retirement pay would have been made had the military

spouse continued receiving the retirement pay.

Accordingly, although we agree with the trial court

that plaintiff must compensate defendant, we reverse

the trial court’s ruling because its order required plain-

tiff to pay defendant from CRSC funds and required

plaintiff to pay an amount equal to half of his CRSC and

not half of his envisioned retirement pay. We remand for

entry of an order requiring plaintiff to compensate

defendant with monthly payments, from any source or

554 290 M

ICH

551 [Nov

combination of sources chosen, in an amount equal to

50 percent of the retirement pay that he would be

receiving but for his election to waive the retirement

pay in favor of disability benefits.

II. FACTUAL AND PROCEDURAL BACKGROUND

The parties were married in June 1966 and had two

children who were born in 1968 and 1971. Plaintiff is a

veteran who served in the Navy from September 1966

to June 1970 and then again from March 1974 to June

1994. He engaged in combat-related activities and was

exposed to Agent Orange while serving in Vietnam. On

July 26, 1988, plaintiff filed a complaint for divorce, and

subsequently defendant filed a counterclaim for di-

vorce. On September 12, 1989, a divorce judgment was

entered and, although not titled a consent judgment, it

is clear from the record that it was entered with the

consent of the parties; there was no trial. The divorce

judgment dissolved the marriage; awarded defendant

$100 a week in periodic spousal support for five years,

or until her death or remarriage, whichever occurred

first; ordered plaintiff to pay child support arrearages at

the rate of $25 a week until the balance was paid in full;

and divided the parties’ property. The property-

settlement portion of the judgment indicated that de-

fendant was awarded a mortgagee’s interest in a parcel

of property located in Georgia, that plaintiff was or-

dered to pay all joint marital debts previously incurred,

that plaintiff was awarded the entire interest in a

vacation-resort membership, that defendant was

awarded two motor vehicles, that the parties were

awarded their own personal property that was in their

possession, and that certain bonds were to be divided 60

percent to 40 percent, with defendant taking the larger

share. The judgment further provided:

2010] M

EGEE V

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555

IT IS FURTHER ORDERED AND ADJUDGED that

JOAN C. MEGEE shall be awarded 50% interest in

RONALD A. MEGEE’S U.S. Navy disposable retirement or

retainer pay at such time as he receives it. The parties

approve and incorporate by reference a [QDRO] attached

as Exhibit A of this Judgment of Divorce.

With respect to the QDRO referred to in the divorce

judgment, it provided, in pertinent part, as follows:

7.) The parties agree and the Court orders that JOAN C.

MEGEE shall receive fifty (50%) percent of RONALD A.

MEGEE’S Navy disposable retirement or retainer pay as

property settlement when he begins receiving the same.

***

11.) RONALD A. MEGEE shall make no other benefit

election included but not limited to an annuity or survivor-

ship option that would otherwise reduce the monthly

pension allotment without the written consent of JOAN C.

MEGEE.

***

13.) The parties agree that their mutual intent is to

provide JOAN C. MEGEE with fifty (50%) percent of

RONALD A. MEGEE’s disposable retirement or retainer

pay.

According to military records contained in the lower-

court file, plaintiff ceased working at his job in May

2004.

The military was in possession of a record from the

Social Security Administration (SSA) indicating that the

SSA had characterized plaintiff as being disabled since

February 2005. Plaintiff suffers from posttraumatic stress

disorder (PTSD), peripheral neuropathy of the lower

Plaintiff was no longer in the military at this point, and the record

does not contain any information on the nature of the job that plaintiff

stepped down from in May 2004.

556 290 M

ICH

551 [Nov

extremities (left and right side), and diabetes mellitus.

The Department of Veterans Affairs (VA), pursuant to a

decision in August 2008, determined that “[t]he effective

date of individual unemployability [was] June 30, 2006,”

for purposes of entitlement to VA combat-related disabil-

ity pay, which is different from CRSC, as discussed here-

inafter. The VA document indicates that plaintiff sought

but was denied VA disability benefits in 2007, but the 2008

assessment found a “clear and unmistakable error” in the

2007 decision relative to ratings or percentages that the

VA ascribes for each service-connected disability on the

basis of severity and that affect the decision to award

benefits.

Also in 2008, the Secretary of the Navy’s Combat-

Related Special Compensation Board (Board) approved

plaintiff’s application for CRSC, predicated, in part, on

the VA’s finding of a compensable disability, along with

the Board’s own independent findings that plaintiff’s

PTSD, neuropathies, and diabetes all resulted from

either direct engagement in an armed conflict or

through an instrumentality of war, in this case exposure

to Agent Orange. The retroactive effective date for

plaintiff’s entitlement to CRSC was January 2008. As

will be explained later in our review of the United

States Code, plaintiff could not legally receive, in com-

bination, his disposable retirement pay, VA disability

benefits, and CRSC. Rather, he had to elect either

retirement pay coupled with VA disability benefits or

choose CRSC standing on its own. While there is a lack

of documentary evidence on the subject, there is no

dispute that plaintiff elected CRSC, effectively discon-

tinuing receipt of his retirement pay and defendant’s

share of that pay.

Defendant argued in the trial court that she began

receiving her assigned share of plaintiff’s retirement

2010] M

EGEE V

ARMINE

557

pay in January 2008 and received it through August 1,

2008, at which time she ceased receiving anything.

Plaintiff claimed that defendant started receiving her

50 percent share of his disposable retirement pay in

June 1994, not January 2008. The dispute on this

matter was never addressed in the trial court, but we do

note that plaintiff’s military service ended in June

1994.

Defendant moved to enforce the divorce judgment

and the QDRO in February 2009, asserting that plain-

tiff had elected, in violation of the judgment and the

QDRO, to receive disability benefits, i.e., CRSC, instead

of his retirement pay. Defendant requested that the

trial court order plaintiff to withdraw his election to

receive CRSC in place of retirement pay or, in the

alternative, order plaintiff to act as a trustee relative to

50 percent of his benefits, given the clear intent to

provide for an equal division reflected in the divorce

judgment and the QDRO, and then order him to deliver

the funds to defendant. In response, plaintiff admitted

that he currently received CRSC, but countered that

CRSC is not disposable retirement pay and that, for

purposes of the divorce judgment and the QDRO, his

election did not need defendant’s approval because the

approval provision only pertained to elections relative

to variations under the broad umbrella of disposable

retirement pay, not a disability-related election. Plain-

tiff maintained that, once he became eligible for and

selected CRSC for his injuries sustained in service to his

country, the disposable retirement pay subject to the

QDRO was no longer subject to division. Relying on

Mansell v Mansell, 490 US 581; 109 S Ct 2023; 104 L Ed

2d 675 (1989), plaintiff further contended that federal

law precluded the court from ordering him to give any

of his CRSC to defendant, which, admittedly, left defen-

dant with nothing.

558 290 M

ICH

551 [Nov

Finding it to be the fair thing to do, given the clear

intent in the divorce judgment and the QDRO that

defendant receive half of plaintiff’s pension, the trial

court ordered plaintiff to act as trustee for the benefit of

defendant with respect to half of plaintiff’s benefits and

then deliver those funds to defendant. The ruling

essentially ordered plaintiff to turn over half of his

CRSC to defendant.

On plaintiff’s motion for reconsideration, the trial

court, in denying the motion, determined that it had not

committed a palpable error. The court further ruled

that Mansell was inapplicable because in that case the

disability benefits were already being received when the

divorce judgment was entered and the instant action

entailed a postjudgment election of disability benefits

and waiver of retirement pay.

III. ANALYSIS

A. STANDARD OF REVIEW

We review de novo questions of law, Oakland Co Bd

of Co Rd Comm’rs v Mich Prop & Cas Guaranty Ass’n,

456 Mich 590, 610; 575 NW2d 751 (1998), including

issues of statutory construction, Feyz v Mercy Mem

Hosp, 475 Mich 663, 672; 719 NW2d 1 (2006), and we

find that interpretation of the divorce judgment and the

QDRO is also a question of law, thereby necessitating

review de novo.

B. UNITED STATES CODE

There are a number of pertinent federal statutes that

we shall initially review before engaging in a discussion

of the issues presented.

Members of the Navy who serve for a specified

period, generally at least 20 years, are entitled to retire

2010] M

EGEE V

ARMINE

559

and to receive retirement pay. 10 USC 6321 et seq.

Military veterans in general are entitled to compensa-

tion for service-connected disabilities under 38 USC

1101 et seq., which we have referred to in this opinion as

“VA disability benefits.” Further, CRSC is available to

an “eligible combat-related disabled uniformed services

retiree who elects [such] benefits ....” 10 USC

1413a(a). CRSC is “not retired pay.” 10 USC 1413a(g).

To be eligible for CRSC, a person must be a member of

the uniformed services who is entitled to retired pay

and who has a combat-related disability. 10 USC

1413a(c). A combat-related disability is defined as fol-

lows:

In this section, the term “combat-related disability”

means a disability that is compensable under the laws

administered by the Secretary of Veterans Affairs and

that—

(1) is attributable to an injury for which the member

was awarded the Purple Heart; or

(2) was incurred (as determined under criteria pre-

scribed by the Secretary of Defense)—

(A) as a direct result of armed conflict;

(B) while engaged in hazardous service;

lating war; or

(D) through an instrumentality of war. [10 USC

1413a(e).]

Plaintiff qualified for the three different forms of ben-

efits already discussed—disposable retirement pay, VA

disability benefits, and CRSC.

Pursuant to 10 USC 1414(a)(1), and effective Janu-

ary 1, 2004, “a member or former member of the

uniformed services who is entitled for any month to

retired pay and who is also entitled for that month to

560 290 M

ICH

551 [Nov

veterans’ disability compensation for a qualifying

service-connected disability... is entitled to be paid

both for that month ....” This concurrent receipt of

military retirement pay and VA disability benefits is

commonly referred to as CRDP, which stands for “con-

current retirement and disability pay.” See Jackson v

Jackson, 319 SW3d 76, 77 (Tex App, 2010). Because

plaintiff was eligible for retirement pay and VA disabil-

ity benefits, CRDP was an available option for plaintiff.

A person who is qualified for CRDP and who is also

qualified for CRSC, such as plaintiff, may elect to

receive CRDP or CRSC, “but not both.” 10 USC

1414(d)(1); see also 10 USC 1413a(f) (indicating that

CRSC and CRDP must be coordinated under 10

USC 1414[d]). During an annual open-enrollment pe-

riod, a person has the “right to make an election to

change” from CRDP to CRSC or “the reverse, as the

case may be.” 10 USC 1414(d)(2). Plaintiff elected

CRSC, which effectively discontinued his retirement

pay that had been subject to the QDRO, halting pay-

ments to defendant.

The Uniformed Services Former Spouses’ Protection

Act (USFSPA), 10 USC 1408, generally governs the

distribution of a spouse’s military retirement pay to a

former spouse pursuant to a court order, including state

court final decrees of divorce issued in accordance with

the state’s laws and providing for the division of prop-

erty expressed as a percentage of disposable retirement

pay. 10 USC 1408(a)(1)(A) and (2). Section 1408(c)(1)

provides, in pertinent part:

Subject to the limitations of this section, a court may

treat disposable retired pay payable to a member for pay

periods beginning after June 25, 1981, either as property

solely of the member or as property of the member and his

spouse in accordance with the law of the jurisdiction of

such court. [10 USC 1408(c)(1).]

2010] M

EGEE V

ARMINE

561

Accordingly, disposable retired or retirement pay

can be treated by a court as joint property and thus

subject to division in a state court divorce decree. As

used in the USFSPA, the term “disposable retired pay”

is defined, in relevant part, as “the total monthly

retired pay to which a member is entitled less amounts

which . . . are deducted from the retired pay of such

member... as a result of a waiver of retired pay

required by law in order to receive compensation under

title 5 or title 38[.]” 10 USC 1408(a)(4)(B). We note that,

while VA disability benefits are provided for in title 38,

the right to CRSC is found in title 10, not title 5 or title

38. As we will explain in our analysis of Mansell, which

involved a waiver of retirement pay in favor of title 38

VA disability benefits,

the fact that CRSC is a title 10

benefit is of some significance. Finally, the total amount

of the disposable retirement pay of a military spouse

that a court orders payable to the other spouse “may

not exceed 50 percent of such disposable retire[ment]

pay.” 10 USC 1408(e)(1).

With these provisions in mind, we now proceed to our

discussion of the issues presented on appeal.

C. DISCUSSION

We begin by first holding that, contrary to plaintiff’s

contention, his unilateral decision to elect CRSC was

contrary to the terms and intent of the QDRO and

We shall interchangeably use the terms “disposable retirement pay”

and “disposable retired pay” for purposes of this opinion.

As indicated earlier, 10 USC 1414(a)(1), post-Mansell, now permits a

member or former member to receive his or her full retirement pay and

VA disability benefits without reduction in the retirement pay when VA

disability benefits are chosen. See Mansell, 490 US at 583 n 1 (“[I]f a

military retiree is eligible for $1500 a month in retirement pay and $500

a month in disability benefits, he must waive $500 of retirement pay

before he can receive any disability benefits.”).

562 290 M

ICH

551 [Nov

therefore the divorce judgment, given that the judg-

ment incorporated by reference the QDRO. The clear

language in the judgment and the QDRO required a 50

percent division of plaintiff’s disposable retirement pay,

and plaintiff was barred from making any “other ben-

efit election . . . that would otherwise reduce the

monthly pension allotment without the written consent

of [defendant].” Plaintiff elected a benefit other than

retirement pay when he elected CRSC to the exclusion

of retirement pay, the election reduced and indeed

eliminated defendant’s monthly share of plaintiff’s re-

tirement pay, and there is no claim that defendant gave

consent of any kind for plaintiff to make the CRSC

election. The parties had also agreed that their mutual

intent was to provide defendant with 50 percent of

plaintiff’s retirement pay. The decision to elect CRSC

and to waive in its entirety the retirement pay was

inconsistent with the declared mutual intent. The ques-

tion now becomes one of remedy.

We find that the issue properly framed is whether a

military spouse remains financially responsible to com-

pensate his or her former spouse in an amount equal to

the share of retirement pay ordered to be distributed to

the former spouse as part of a divorce judgment’s

property division when the military spouse makes a

unilateral and voluntary postjudgment election to

waive the retirement pay in favor of disability benefits

contrary to the terms of the divorce judgment.

In Mansell, a United States Supreme Court case, the

husband, who had been in the military, was receiving

retirement pay along with, pursuant to a waiver of a

portion of the retirement pay, VA disability benefits. He

was receiving both benefits at the time of the divorce.

Pursuant to a property settlement that was incorpo-

rated into the divorce decree, the husband agreed to pay

2010] M

EGEE V

ARMINE

563

the wife 50 percent of his total military retirement pay,

including that portion of retirement pay that he had

waived in order to receive disability benefits. The hus-

band then requested the trial court to modify the

divorce decree by removing the provision requiring him

to share his total retirement pay with his wife; he did

not want to pay her a sum equal to half of the waived

retirement pay. The trial court denied the request. The

case made its way through the California appellate

courts, with the husband arguing that the USFSPA and

the statute protecting his disability benefits precluded

the trial court from treating as community property

that portion of his retirement pay that had been waived

in favor of disability benefits. Mansell, 490 US at

585-587.

The Mansell Court stated that it was being called

upon to decide whether state courts, consistently with

the USFSPA, “may treat as property divisible upon

divorce military retirement pay waived by the retiree in

order to receive veterans’ disability benefits.” Id. at

583. The Court held that state courts lacked the author-

ity to make such a division, thereby ruling in favor of

the husband. Id. The Court concluded that Congress

had specifically enacted the USFSPA to change preex-

isting federal law that had completely preempted the

application of state law to military retirement pay. Id. at

587-588. The Mansell Court noted that the USFSPA

granted state courts the authority to divide military

retirement pay as property, but the section of the

USFSPA defining the term “disposable retired pay”

specifically and clearly excluded military retirement

Although addressing a case from a community-property state, the

Court noted that its decision was equally applicable to equitable-

distribution states, which would include Michigan. Mansell, 490 US at

584n2.

564 290 M

ICH

551 [Nov

pay that had been waived in order to receive VA

disability payments, which is a benefit found in title 38.

Id. at 588-589. The USFSPA’s definitional section relied

on and quoted by the Court was 10 USC 1408(a)(4)(B),

which, as indicated earlier, excludes from consideration

as disposable retired pay amounts waived pursuant to

law “in order to receive compensation under title 5 or

title 38[.]” Mansell, 490 US at 589 n 9. Once again,

CRSC is compensation received under title 10, and

plaintiff here did not waive his right to retirement pay

in order to receive compensation under title 5 or title

38, but to receive title 10 compensation.

The Mansell Court ruled that, although the USFSPA

now granted authority to state courts to divide as

property a military spouse’s disposable retirement pay

in general, states continued to be federally preempted

from dividing as property disposable retirement pay

that had been waived in order to receive VA disability

benefits. Id. at 590-592. The Court ultimately held:

Thus, the legislative history, read as a whole, indicates

that Congress intended both to create new benefits for

former spouses and to place limits on state courts designed

to protect military retirees. Our task is to interpret the

statute as best we can, not to second-guess the wisdom of

the congressional policy choice....Given Congress’ mixed

purposes, the legislative history does not clearly support

Mrs. Mansell’s view that giving effect to the plain and

precise language of the statute would thwart the obvious

purposes of the Act.

We realize that reading the statute literally may inflict

economic harm on many former spouses. But we decline to

misread the statute in order to reach a sympathetic result

when such a reading requires us to do violence to the plain

language of the statute and to ignore much of the legisla-

tive history. Congress chose the language that requires us

to decide as we do, and Congress is free to change it.

2010] M

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565

For the reasons stated above, we hold that the Former

Spouses’ Protection Act does not grant state courts the

power to treat as property divisible upon divorce military

retirement pay that has been waived to receive veterans’

disability benefits. [Id. at 594-595.]

We glean from Mansell some important, but subtle,

points. First, Mansell did not entail an attempted

division or distribution of the husband’s VA disability

benefits; rather, it concerned payments to the wife in an

amount equal to half of the husband’s total retirement

pay, even though a portion of that pay was no longer

being received by the husband, considering that he had

waived receipt of that portion in favor of VA disability

benefits. The trial court here effectively divided plain-

tiff’s CRSC and, although Mansell did not directly

address division of disability pay, the USFSPA clearly

does not allow such a division. Subsection (c)(1) of the

USFSPA, 10 USC 1408(c)(1), permits a court to treat

only “disposable retired pay” as “property of the mem-

ber and his spouse,” and CRSC is “not retired pay,” 10

USC 1413a(g). Accordingly, the trial court erred by

dividing plaintiff’s CRSC and forcing plaintiff to pay a

portion of his CRSC to defendant. However, on the

subject addressed in Mansell, i.e., dividing waived re-

tirement pay, the Mansell decision actually supports

making plaintiff in the case at bar pay defendant half of

the retirement pay that he would be receiving but for

his election to take CRSC.

The Mansell Court con-

cluded that waived retirement pay could not be divided

We recognize that it sounds a bit odd to speak of making a party pay

half of monies not actually being received; however, conceptually it is

analogous to imputing income to a party in the context of a child- or

spousal-support matter and then ordering that party to make a payment

based on income not actually being received. See Moore v Moore, 242

Mich App 652, 655; 619 NW2d 723 (2000) (stating that when a party

voluntarily reduces his or her income, a court may impute income to that

party in order to arrive at an appropriate spousal-support award).

566 290 M

ICH

551 [Nov

as property in circumstances in which the pay had been

waived in favor of title 38 VA disability benefits, given

that the definition of “disposable retired pay” in 10

USC 1408(a)(4)(B) excludes consideration of amounts

waived in order to receive title 5 or title 38 compensa-

tion. Under the reasoning and rationale of Mansell,

there would be no prohibition here against considering

for division waived retirement pay under the USFSPA

because we are addressing a waiver of title 10 CRSC not

mentioned in 10 USC 1408(a)(4)(B). Thus, all of plain-

tiff’s envisioned yet waived military-retirement pay can

be divided without offending the USFSPA or Mansell.

Accordingly, there is no bar to ordering plaintiff to

compensate defendant in an amount equal to 50 percent

of plaintiff’s envisioned retirement pay as intended

under the terms of the divorce judgment after plaintiff

made a unilateral and voluntary postjudgment election

to waive his retirement pay in favor of disability ben-

efits contrary to the terms of the judgment.

Moreover, even aside from the title 10–title 38 dis-

tinction, our holding is consistent with appellate-court

rulings from many other states on the issue. In review-

ing these cases, we shall not provide too much in the

way of details regarding the underlying facts because,

for the most part, they are essentially the same as those

that transpired here, i.e., postjudgment waivers of re-

tirement pay in exchange for disability benefits that

leave the nonmilitary, former spouse with reduced or no

funds despite a divorce decree or settlement calling for

the division of the military spouse’s retirement pay. We

do note that most of these cases involved VA disability

benefits and not CRSC, which makes the case for a

division of retirement pay waived in favor of CRSC even

more compelling considering that Mansell and the

USFSPA could be viewed as being somewhat problem-

atic with respect to retirement pay waived in favor of

2010] M

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ARMINE

567

title 38 VA disability benefits. Also, a number of these

cases did not involve judgment language, as is present

here, requiring approval from the former spouse before

the military spouse could make a different election, and

plaintiff here consented to the preapproval condition,

yet did not honor it. Indeed, a consent judgment is in

the nature of a contract. Laffin v Laffin, 280 Mich App

513, 517; 760 NW2d 738 (2008).

In Bandini v Bandini, 935 NE2d 253, 263 (Ind App,

2010), the Indiana Court of Appeals stated in a CRSC

case that Mansell and the USFSPA do “not preclude

state courts from requiring a military spouse to com-

pensate a former spouse when the latter’s share of

retirement pay is reduced by the military spouse’s

unilateral post-dissolution waiver of retirement pay in

favor of disability benefits.” The court held “that a

military spouse may not, by a post-decree waiver of

retirement pay in favor of disability benefits or CRSC,

unilaterally and voluntarily reduce the benefits

awarded the former spouse in a dissolution decree.” Id.

at 264. The Indiana Court of Appeals concluded that the

trial court had properly ordered the military spouse

(husband) to compensate his former wife for the reduc-

tion in her share of retirement pay that was caused by

the husband’s CRSC election. Id. Consistently with our

ruling, the Indiana court warned, “Because Husband is

free to compensate Wife from any of his available assets,

the trial court’s order on remand need not and should

not specify his CRSC benefit as the source of this

compensation.” Id. at n 10 (emphasis added). One of the

reasons the court gave for distinguishing Mansell was

that Mansell was addressing a predissolution waiver of

retirement pay and the Supreme Court did not “imply

that a post-dissolution waiver need be treated the same

way.” Id. at 263.

568 290 M

ICH

551 [Nov

In Resare v Resare, 908 A2d 1006 (RI, 2006), the

family court, after first emphasizing that it was not

ordering the division of any disability benefits, ordered

the military spouse to pay a sum equal to 35 percent of

the gross pension that would have been in effect had the

military spouse not unilaterally modified the stipulated

property division with a pension waiver. The Rhode

Island Supreme Court, affirming the family court’s

ruling, held that the lower court had properly predi-

cated its order on breach-of-contract principles. Id. at

1010.

In Hadrych v Hadrych, 2007 NMCA 1, ¶ 13; 140 NM

829, 833; 149 P3d 593 (NM App, 2006), the New Mexico

Court of Appeals, indicating that it was adopting the

majority view, held that the lower court had properly

ordered the military spouse to compensate his former

spouse for the reduction in retirement benefits that

occurred when the military spouse converted them to

disability benefits. The lower court’s ruling had not

identified the disability benefits as being the source for

the ordered compensation, leaving it to the military

spouse to determine how to pay the compensation and

utilize whatever assets he chose to satisfy the obliga-

tion. Id. The court of appeals stated that it was critical

that “the court order [did] not specifically require that

disability benefits provide the source of the funds paid

to the non-military spouse.” Id. at ¶ 14; 140 NM at 833

(citation and quotation marks omitted).

In In re Marriage of Warkocz, 141 P3d 926, 928 (Colo

App, 2006), the Colorado Court of Appeals agreed with

the nonmilitary spouse “that the trial court erred in

failing to award her the amount she would have re-

ceived from husband’s military pay had he not applied

for, and received, disability benefits.” The court held

that, consistent with public policy and decisions in

2010] M

EGEE V

ARMINE

569

other jurisdictions, a trial court is not precluded from

equitably enforcing a separation agreement. Id. at 930.

The court stated that neither the USFSPA nor United

States Supreme Court precedent requires “courts to

completely ignore the economic consequences of a mili-

tary retiree’s decision to waive retirement pay in order

to collect disability pay.” Id. (citation and quotation

marks omitted).

In Black v Black, 2004 ME 21, ¶ 10; 842 A2d 1280,

1285 (Me, 2004), the Maine Supreme Judicial Court

held that Mansell and the USFSPA do not limit the

authority of state courts “to grant postjudgment relief

when military retirement pay previously divided by a

divorce judgment is converted to disability pay, so long

as the relief awarded does not itself attempt to divide

disability pay as marital property.”

In Shelton v Shelton, 119 Nev 492, 496-498; 78 P3d

507 (2003), the Nevada Supreme Court held that a

military spouse was contractually obligated under a

divorce settlement agreement to continue paying his

former wife $577 a month, even though the agreement

indicated that the payment represented half of the

military retirement pension and the military spouse

had waived that pension in order to receive disability

benefits.

We agree with the following sentiments expressed by

the New Jersey Superior Court, Appellate Division, in

Whitfield v Whitfield, 373 NJ Super 573, 582-583; 862

A2d 1187 (2004):

It is important to emphasize the procedural posture of

this case. The issue is one of enforcement of a prior

equitable distribution award, not a present division of

assets. Wife does not seek to divide her former husband’s

disability benefits in violation of Mansell. Nor does she

seek a greater percentage of her husband’s military pen-

570 290 M

ICH

551 [Nov

sion than she originally received at the time of his retire-

ment pursuant to court order. Moreover, wife does not seek

to alter the terms of her veteran-spouse’s retirement plan

or to compel the Department of Defense to make direct

payments to her in excess of those permitted by federal law.

The remedy she seeks, and that to which she is entitled, is

an enforcement of the original order which was in effect

before her former husband retired and unilaterally elected

the waiver. [The trial court] appropriately accomplished

that result by requiring husband to make up the shortfall

in his former wife’s equitable distribution award occa-

sioned by his actions.

The trial court’s determination does not hinder hus-

band’s receipt of veterans’ disability benefits. Nor does it

impinge upon federal statutory rights husband has under

the USFSPA or violate the doctrine of pre-emption. Rather,

the determination is whether under our state law the trial

court has the authority to interpret and enforce a judicial

decree entered prior to the retiree’s unilateral election of a

method of payment that has tax advantages to him and

adverse consequences to his former wife. We conclude that

our court does have that authority. This was an appropriate

remedy to avoid the inequities that would be imposed on a

spouse who had no control over, but suffered the conse-

quences of, the other’s unilateral election to switch retire-

ment benefits to tax-free disability benefits.

In In re Marriage of Krempin, 70 Cal App 4th 1008,

1015; 83 Cal Rptr 2d 134 (1999), the California Court of

Appeal noted that out-of-state precedents had reached

“nearly universal” consensus that equitable action to

compensate the nonmilitary spouse is appropriate, on

one theory or another, when that spouse’s share of

retirement pay is reduced by the military spouse’s

postjudgment waiver of retirement pay.

In Danielson v Evans, 201 Ariz 401, 407-409; 36 P3d

749 (Ariz App, 2001), the Arizona Court of Appeals

upheld an order that required the military spouse to

pay his former wife the difference between the value of

2010] M

EGEE V

ARMINE

571

the retirement pay as it was envisioned at the time of

the divorce and the reduced amount that she actually

received after a waiver.

In Krapf v Krapf, 439 Mass 97, 105-108; 786 NE2d

318 (2003), the Massachusetts Supreme Judicial Court

held, under theories of breach of a duty of good faith

and fair dealing, that it was proper to order the military

spouse to pay his former wife an amount equal to the

military retirement pay she would have received under

a settlement agreement had the husband not waived

the pay in favor of disability benefits. The court stated

that there was no violation of Mansell or the USFSPA

when the order at issue “merely enforced the defen-

dant’s contractual obligation to his former wife, which

he may satisfy from any of his resources.” Id. at 108.

In In re Marriage of Nielsen, 341 Ill App 3d 863,

869-870; 792 NE2d 844 (2003), the Illinois Appellate

Court ruled:

[W]e believe that a party’s vested interest in a military

pension cannot be unilaterally diminished by an act of a

military spouse, and we apply this principle to the present

case. Here, the parties agreed that Susan would receive

“25% of the gross retired or retainer pay due Mark.” It is

clear that the parties intended that Susan would receive a

percentage of Mark’s total retirement pay and not just his

disposable retired or retainer pay. The parties’ intent was

incorporated into the judgment for dissolution. Mark re-

tired and the judgment for dissolution was implemented.

However, Mark thereafter decided to accept an increased

amount of disability benefits. This resulted in a reduction

of Mark’s disposable retired or retainer pay. This accord-

ingly reduced Susan’s entitlement. Mark certainly had a

legal right to receive disability benefits, but his doing so

caused a diminution in the amount of his retirement pay

that Susan had been receiving for over three years. Mark’s

decision frustrated the parties’ intent and the trial court’s

judgment for dissolution. Indeed, to allow Mark to unilat-

572 290 M

ICH

551 [Nov

erally diminish Susan’s interest in his military pension

would constitute an impermissible modification of a divi-

sion of marital property. As such, we affirm the trial court’s

order of November 3, 2000, in which it ruled that Susan

was entitled to an amount equal to 25% of Mark’s military

pension as it existed on the date he retired. Because the

trial court’s November 3, 2000, order does not directly

assign Mark’s military disability pay, it does not offend the

United States Supreme Court’s ruling in Mansell.

In Johnson v Johnson, 37 SW3d 892, 897-898 (Tenn,

2001), the Tennessee Supreme Court held that a mari-

tal dissolution agreement that divides military retire-

ment benefits gives the nonmilitary spouse a vested

interest in his or her portion of the benefits, which

cannot thereafter be unilaterally diminished by an act

of the military spouse, given that such an act would

constitute an impermissible modification and violation

of the agreement. The court remanded the case for

entry of an order providing the nonmilitary spouse with

a monthly payment equal to her share of the waived

retirement pay without dividing the military spouse’s

disability pay. Id. at 898.

Next, we wish to touch on two recent Texas cases

addressing CRSC and waivers of retirement pay. In

Sharp v Sharp, 314 SW3d 22 (Tex App, 2009), the Texas

Court of Appeals addressed a waiver of retirement pay

in exchange for CRSC, and it rejected the nonmilitary

spouse’s motion to enforce and clarify the divorce

judgment. However, it appears that the argument posed

by the nonmilitary spouse was simply that CRSC con-

stituted military retirement pay for purposes of the

judgment. And the appellate court merely held that

CRSC is not retirement pay and thus the judgment did

not divide CRSC that might have become payable at a

later date. Id. at 25. The nonmilitary spouse was

essentially seeking a portion of the CRSC. We agree, as

2010] M

EGEE V

ARMINE

573

already noted, that CRSC is not retirement pay and is

not subject to division; however, our analysis is couched

in terms of dividing waived retirement pay and ordering

replacement compensation, which matters the Sharp

panel did not address. Indeed, Mansell and the litany of

cases distinguishing Mansell are not even mentioned in

Sharp.

In Jackson, 319 SW3d 76, the Texas Court of Appeals

addressed a situation in which the military spouse

(husband) had been appointed as trustee in a divorce

judgment with respect to his ex-wife’s interest in his

disposable retirement pay, and he later became eligible

for VA disability benefits and then CRSC, which he

elected to receive. As in Sharp, the Jackson panel found

that only retirement pay was subject to division, and it

further ruled that the military spouse had no fiduciary

obligation in regard to the CRSC. Id. at 81. The Jackson

case, like the Sharp case, examined the issue from the

perspective of dividing and awarding the CRSC funds

and not the approach that we and numerous other

jurisdictions have chosen. And again, we agree that

CRSC is not subject to division.

While there are a few cases ruling differently, see,

e.g., In re Marriage of Pierce, 26 Kan App 2d 236, 240;

982 P2d 995 (1999) (finding no relief available for

ex-wife after former husband waived his military retire-

ment pay in favor of disability benefits), the overwhelm-

ing weight of the caselaw from other jurisdictions

supports our resolution of this appeal. By this opinion,

Michigan now joins those jurisdictions providing relief

to the nonmilitary spouse.

IV. CONCLUSION

We hold that a military spouse remains financially

responsible to compensate his or her former spouse in

574 290 M

ICH

551 [Nov

an amount equal to the share of retirement pay ordered

to be distributed to the former spouse as part of a

divorce judgment’s property division when the military

spouse makes a unilateral and voluntary postjudgment

election to waive the retirement pay in favor of disabil-

ity benefits contrary to the terms of the divorce judg-

ment. Conceptually, and consistently with extensive

caselaw from other jurisdictions, we are dividing waived

retirement pay in order to honor the terms and intent of

the divorce judgment. Importantly, we are not ruling

that a state court has the authority to divide a military

spouse’s CRSC, nor that the military spouse can be

ordered by a court to pay the former spouse using CRSC

funds. Rather, the compensation to be paid the former

spouse as his or her share of the property division in

lieu of the waived retirement pay can come from any

source the military spouse chooses, but it must be paid

to avoid contempt of court. To be clear, nothing in this

opinion should be construed as precluding a military

spouse from using CRSC funds to satisfy the spouse’s

obligation if desired. In these situations, because the

ordered replacement compensation must relate to the

military spouse’s retirement-pay obligation and not the

disability pay now being received, and because the

military spouse, having made the election, will no

longer actually be receiving the retirement pay, it may

be necessary on occasion to review and determine

whether any adjustments to the retirement pay would

have been made had the military spouse continued

receiving the retirement pay.

Accordingly, although we agree with the trial court

that plaintiff must compensate defendant, we reverse

the trial court’s ruling because its order required plain-

tiff to pay defendant from CRSC funds and required

plaintiff to pay an amount equal to half of his CRSC and

not half of his envisioned retirement pay. We remand for

2010] M

EGEE V

ARMINE

575

entry of an order requiring plaintiff to compensate

defendant with monthly payments, from any source or

combination of sources chosen, in an amount equal to

50 percent of the retirement pay that he would be

receiving but for his election to waive the retirement

pay in favor of disability benefits.

Reversed and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction.

576 290 M

ICH

551 [Nov

CEDRONI ASSOCIATES, INC v TOMBLINSON, HARBURN

ASSOCIATES, ARCHITECTS & PLANNERS, INC

Docket No. 287024. Submitted May 11, 2010, at Detroit. Decided Novem-

ber 16, 2010, at 9:05 a.m.

Cedroni Associates, Inc., the lowest bidder for a school construction

project of the Davison Community Schools (DCS), brought an

action in the Genesee Circuit Court against Tomblinson, Harburn

Associates, Architects & Planners, Inc. (an architectural firm the

DCS hired to assist with the bid-selection process by reviewing and

evaluating bid applications, investigating competing contractors

and their references, expressing opinions and views on contractor

competence and workmanship, and making recommendations

regarding which contractor should be awarded the project), after

the DCS awarded the contract for the project to the second lowest

bidder following defendant’s recommendations. The court, Judith

A. Fullerton, J., granted summary disposition in favor of defendant

on the basis that plaintiff’s claim of tortious interference with a

business expectancy failed to state a claim on which relief could be

granted because plaintiff lacked a valid business expectancy in

being awarded the contracts. Plaintiff appealed.

The Court of Appeals held:

1. A genuine issue of material fact existed with respect to the

elements of plaintiff’s cause of action. The trial court erred as a

matter of law by holding that plaintiff lacked a valid business

expectancy. Plaintiff, as the lowest bidder, submitted evidence

sufficient to create a factual dispute with respect to whether it was

a responsible contractor to the extent that the trier of fact could

have concluded that there existed a reasonable probability or

likelihood that plaintiff would have been awarded the project

absent the alleged tortious interference. Plaintiff submitted evi-

dence sufficient to create a factual dispute with respect to whether

defendant’s conduct was intentional and improper, motivated by

malice and not by legitimate business reasons.

2. The submission of the lowest bid, in and of itself, is inad-

equate to sustain a plaintiff’s suit in such a case.

3. Although the exercise of professional business judgment in

making recommendations relative to governmental contracts and

2010] C

EDRONI

SSOC V

OMBLINSON,

ARBURN

SSOC

577

projects must be afforded some level of protection and deference,

litigation will not be precluded when evidence exists suggesting

that the ostensible exercise of professional business judgment was

in reality a disguised attempt to intentionally and improperly

interfere with the contractual or expectant business relationships

of others.

4. With respect to a claim of tortious interference with a

business expectancy, the plaintiff must prove (1) the existence of a

valid business expectancy, (2) knowledge of the expectancy on the

part of the defendant, (3) an intentional interference by the

defendant inducing or causing a termination of the expectancy,

and (4) resultant damage to the plaintiff.

5. The following principles apply in determining whether a

valid business expectancy existed: (1) the presence of some level of

discretion exercisable by a governmental body or decision-maker

does not automatically preclude a recognition of a valid business

expectancy, (2) if the discretion is expansive and not restricted by

limiting criteria and factors to the extent that it makes it impos-

sible to reasonably infer that the claimed expectancy would likely

have come to fruition, there is no valid business expectancy, (3) an

expectancy must generally be specific and reasonable, (4) it must

be shown that there was a reasonable likelihood or probability that

the expectant relationship would have developed as desired absent

tortious interference with the expectancy, (5) a party need not

prove that the expectancy equated to a certainty or guarantee, (6)

innate optimism or mere hope is insufficient, and (7) the prior

history of the governmental body or decision-maker and governing

internal and external rules, policies, and laws constitute factors for

a court to consider in determining whether a business expectancy

was valid and likely achievable.

6. The provisions of the DCS’s fiscal management policy and

project manual that reserved the DCS’s right to reject any or all

bids were subject to the provision requiring an award to be made

to the lowest responsible bidder. The “right to reject” provisions

remained entirely enforceable in all circumstances other than the

particular situation in which the bid was submitted by the lowest

responsible bidder.

7. Although MCL 380.1267 provides that the DCS could reject

any or all bids, it did not restrict the DCS from imposing its own

criteria and limitations on itself relative to the bidding process and

the acceptance and rejection of bids. Therefore, the DCS’s fiscal

management policy was relevant to analyzing whether plaintiff

had a valid business expectancy.

578 290 M

ICH

577 [Nov

8. A plaintiff alleging tortious interference with a business

expectancy must demonstrate that the defendant acted both

intentionally and either improperly or without justification. The

plaintiff must allege the intentional doing of a wrongful act per se

or the doing of a lawful act with malice and unjustified in law for

the purpose of invading the contractual rights or business rela-

tionship with another. A wrongful act per se is an act that is

inherently wrongful or an act that can never be justified. When a

defendant’s conduct was not wrongful per se, the plaintiff must

demonstrate specific affirmative acts that corroborate the unlaw-

ful purpose. To establish that a lawful act was done with malice

and without justification, the plaintiff must prove with particular-

ity affirmative actions that the defendant took that corroborate

the improper motive.

9. A trier of fact, viewing the conflicting and inconsistent

evidence and the inferences arising from it in a light most

favorable to plaintiff, could reasonably have concluded that defen-

dant acted with malice, in a wrongful manner per se, unethically,

with an improper motive and absence of justification, or deceitfully

with respect to the damaging information and recommendation

conveyed to the DCS. Summary disposition was inappropriate in

light of the record.

10. A genuine issue of material fact existed regarding whether

the employee who conducted defendant’s review of the bids before

recommending that plaintiff not be awarded the project was

honestly acting for the benefit of the DCS or whether she was

acting solely for her own benefit and out of motivation to harm

plaintiff. Therefore, summary disposition was improper.

Reversed and remanded.

K. F. K

ELLY

, J., dissenting, stated that the trial court properly

granted summary disposition in favor of defendant. Plaintiff failed

to state a claim on which relief could be granted because, in

recommending that the DCS reject plaintiff’s bid, defendant was

acting as an agent of the DCS, not an independent third party. In

addition, plaintiff lacked a valid business expectancy since the

DCS’s decision was highly discretionary and, by statute, it had

broad and unfettered discretion to reject any or all bidders. None

of the bidders had any prospective advantage or business expect-

ancy; rather, each of their interests was limited to an expectancy

that the bidding process would be fair and free of fraud. Plaintiff

failed to show any fraud, injustice, or violation of trust in the

bidding process. Plaintiff failed to show that defendant’s conduct

was malicious or wrongful or that defendant’s allegedly wrongful

2010] C

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579

conduct caused plaintiff to lose the award of the contract. Defen-

dant’s actions were justified as actions based on a legitimate

business decision.

1. T

ORTS —

NTERFERENCE

ITH A

USINESS

XPECTANCY —

LEMENTS

A plaintiff seeking to litigate a claim of tortious interference with a

valid business expectancy must prove (1) the existence of a valid

business expectancy, (2) knowledge of the expectancy on the part

of the defendant, (3) an intentional interference by the defendant

inducing or causing a termination of the expectancy, and (4)

resultant damage to the plaintiff; a valid business expectancy is

one in which there exists a reasonable likelihood or probability

that the expectancy will come to fruition.

2. T

ORTS —

NTERFERENCE

ITH A

USINESS

XPECTANCY

The principles to be applied in determining whether a valid business

expectancy exists for purposes of determining whether a defen-

dant tortiously interfered with that business expectancy include

(1) the presence of some level of discretion exercisable by a

governmental body or decision-maker does not automatically

preclude a recognition of a valid business expectancy, (2) if the

discretion of the governmental body or decision-maker is expan-

sive and not restricted by limiting criteria and factors to the extent

that it makes it impossible to reasonably infer that the claimed

expectancy would likely have come to fruition, there is no valid

business expectancy, (3) an expectancy must generally be specific

and reasonable, (4) it must be shown that there was a reasonable

likelihood or probability that the expectant relationship would

have developed as desired absent tortious interference with the

expectancy, (5) a party need not prove that the expectancy equated

to a certainty or guarantee, (6) innate optimism or mere hope is

insufficient, and (7) the prior history of the governmental body or

decision-maker and governing internal and external rules, policies,

and laws constitute factors for a court to consider in determining

whether a business expectancy was valid and likely achievable.

3. S

CHOOLS —

ONSTRUCTION

ONTRACTS —

EJECTION OR

CCEPTANCE OF

IDS

The provision of the Revised School Code regarding competitive

bidding for contracts for the construction of a new school building

or addition to or repair or renovation of an existing school building

that provides that the board of a school district or intermediate

school district or the board of directors of a public school academy

may reject any or all bids does not restrict the board from imposing

its own criteria and limitations on itself relative to the bidding

process and the acceptance or rejection of bids (MCL 380.1267[6]).

580 290 M

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577 [Nov

4. T

ORTS —

NTERFERENCE

ITH A

USINESS

XPECTANCY —

RONGFUL

CTS

E—

AWFUL

CTS

ONE

ITH

ALICE AND

NJUSTIFIED IN

A plaintiff claiming tortious interference with a business expectancy

must demonstrate that the defendant acted both intentionally and

either improperly or without justification; one who alleges tortious

interference with a contractual or business relationship must

allege the intentional doing of a wrongful act per se or the doing of

a lawful act with malice and unjustified in law for the purpose of

invading the contractual rights or business relationship of an-

other; a wrongful act per se is an act that is inherently wrongful or

that can never be justified under any circumstances; the plaintiff

must demonstrate specific, affirmative acts that corroborate the

unlawful purpose of the interference when the defendant’s con-

duct was not wrongful per se; to establish that a lawful act was

done with malice and without justification, the plaintiff must

prove with particularity affirmative acts taken by the defendant

that corroborate the improper motive of the interference; when

motivated by legitimate business reasons, a defendant’s actions do

not constitute improper motive or interference.

5. T

ORTS —

NTERFERENCE

ITH A

USINESS

XPECTANCY —

GENTS —

HIRD

ARTY TO

ONTRACT OR

USINESS

ELATIONSHIP

A plaintiff must establish that the defendant was a third party to the

contract or business relationship in order to maintain a claim of

tortious interference with a business expectancy; corporate agents

are not liable for tortious interference with respect to the corpo-

ration’s contracts and relationships when acting for the benefit of

the corporation and within the scope of their authority; an agent

can be liable, however, if the agent acted not for the benefit of the

corporation or entity involved in the transaction or prospective

transaction, but for his or her own benefit or pursuant to a

personal motive.

McAlpine & Associates, P.C. (by Mark L. McAlpine

and Ryan W. Jezdimir), for plaintiff.

Sullivan, Ward, Asher & Patton, P.C. (by Kevin J.

Gleeson and Maria L. Meldrum), for defendant.

Before: M

URPHY

, C.J., and K. F. K

ELLY

and S

TEPHENS

JJ.

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URPHY

, C.J. Plaintiff appeals as of right the trial

court’s order granting summary disposition in favor of

defendant. This case involves a claim of tortious interfer-

ence with a business expectancy arising out of , allegedly,

defendant’s improper conduct, communications, and rec-

ommendations that resulted in a school district’s decision

not to award plaintiff a construction project despite plain-

tiff’s submission of the lowest bid. We hold that genuine

issues of material fact existed with respect to the elements

of plaintiff’s cause of action. More specifically, we reject

the trial court’s determination that, as a matter of law,

plaintiff lacked a valid business expectancy. Plaintiff , as

the lowest bidder, submitted evidence sufficient to create a

factual dispute with respect to whether it was a “respon-

sible” contractor to the extent that the trier of fact could

have concluded that there existed a reasonable probability

or likelihood that plaintiff would have been awarded the

project absent the alleged tortious interference. There-

fore, there was a genuine issue of material fact with

respect to whether plaintiff had a valid business expect-

ancy. We emphasize that the submission of the lowest bid,

in and of itself , was inadequate to sustain plaintiff’s suit.

We reject any rule per se that would allow litigation to

proceed simply on the basis of proof of the lowest bid,

except, of course, if no additional criteria needed to be

satisfied, which is unlikely. Absent sufficient additional

evidence on relevant award criteria, there would be no

valid business expectancy. We further reject the trial

court’s determination that, as a matter of law, plaintiff

failed to show that defendant did anything improper.

Plaintiff submitted evidence sufficient to create a factual

dispute with respect to whether defendant’s conduct was

intentional and improper, motivated by malice and not

legitimate business reasons. On this issue, we emphasize

that the exercise of professional business judgment in

making recommendations relative to governmental con-

582 290 M

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577 [Nov

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tracts and projects must be afforded some level of protec-

tion and deference. But we will not preclude litigation

when there exists evidence suggesting that the ostensible

exercise of professional business judgment is in reality a

disguised or veiled attempt to intentionally and improp-

erly interfere with the contractual or expectant business

relationships of others. Here, issues of fact were estab-

lished and, accordingly, we reverse and remand.

I. BACKGROUND

The Davison Community Schools (DCS) opened bid-

ding on a construction project that entailed work at two

school sites. Pursuant to a contract, defendant, an

architectural firm, assisted the DCS with the bid-

selection process by reviewing and evaluating bid appli-

cations, investigating competing contractors and their

references, expressing opinions and views on contractor

competence and workmanship, and making recommen-

dations regarding which contractor should be awarded

the project. Plaintiff’s bid was the lowest submitted to

the DCS by any contractor. After entertaining all the

submitted bids, the DCS, as recommended by defen-

dant, elected to award the contract on the construction

project to the contractor that had submitted the second

lowest bid, not plaintiff.

Plaintiff filed suit against defendant, alleging a single

count of, as framed by plaintiff, tortious interference

with prospective economic relations.

Plaintiff asserted

that there existed an expectancy of a valid business

relationship developing between it and the DCS, that

defendant was aware of the expectancy, that defendant

intentionally interfered with the expectant relationship

For purposes of this opinion, we shall refer to plaintiff’s claim as

“tortious interference with a business expectancy.”

2010] C

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by wrongfully claiming that plaintiff was unqualified to

perform the work on the project, that defendant’s

wrongful interference terminated the expectancy, and

that plaintiff suffered damages as a result of the inter-

ference, including lost profits. In our analysis, we shall

explore in detail the nature of the documentary evi-

dence and how it relates to the issues presented.

The trial court granted defendant’s motion for sum-

mary disposition under MCR 2.116(C)(10), ruling that

the evidence failed to show that plaintiff had a reason-

able or valid expectation of entering into a business

relationship with the DCS and that the evidence fell

short of showing that defendant did anything improper.

II. ANALYSIS

A. STANDARD OF REVIEW AND GENERAL

SUMMARY-DISPOSITION PRINCIPLES

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).

MCR 2.116(C)(10) provides for summary disposition when

there is no genuine issue regarding any material fact and

the moving party is entitled to judgment or partial judg-

ment as a matter of law. A motion brought under MCR

2.116(C)(10) tests the factual support for a party’s cause of

action. Skinner v Square D Co, 445 Mich 153, 161; 516

NW2d 475 (1994). A trial court may grant a motion for

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

pleadings, affidavits, and other documentary evidence,

when viewed in a light most favorable to the nonmovant,

show that there is no genuine issue with respect to any

material fact. Quinto v Cross & Peters Co, 451 Mich 358,

362; 547 NW2d 314 (1996), citing MCR 2.116(G)(5). The

trial court’s task in reviewing the motion entails consid-

eration of the record evidence and all reasonable infer-

584 290 M

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577 [Nov

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ences arising from that evidence. Skinner, 445 Mich at

161. “A genuine issue of material fact exists when the

record, giving the benefit of reasonable doubt to the

opposing party, leaves open an issue upon which

reasonable minds might differ.” West v Gen Motors

Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). A

court may only consider substantively admissible

evidence actually proffered relative to a motion for

summary disposition under MCR 2.116(C)(10).

Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817

(1999). The trial court is not permitted to assess

credibility, to weigh the evidence, or to determine

facts, and if material evidence conflicts, it is not

appropriate to grant a motion for summary disposi-

tion under MCR 2.116(C)(10). Skinner, 445 Mich at

161; Hines v Volkswagen of America, Inc, 265 Mich

App 432, 437; 695 NW2d 84 (2005).

B. VALID BUSINESS EXPECTANCY

On appeal, plaintiff first argues that the trial court

erred by granting the motion for summary disposition

when there was evidence sufficient to create a factual

issue regarding whether plaintiff, as a qualified and

responsible bidder that submitted the lowest bid, had a

valid business expectancy. We agree.

1. THE CASELAW

With respect to a claim of tortious interference with

a business expectancy, a plaintiff must prove (1) the

existence of a valid business expectancy, (2) knowledge

of the expectancy on the part of the defendant, (3) an

intentional interference by the defendant inducing or

causing a termination of the expectancy, and (4) result-

ant damage to the plaintiff. Dalley v Dykema Gossett

PLLC, 287 Mich App 296, 323; 788 NW2d 679 (2010);

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Blazer Foods, Inc v Restaurant Props, Inc, 259 Mich

App 241, 254; 673 NW2d 805 (2003). A valid business

expectancy is one in which there exists a reasonable

likelihood or probability that the expectancy will come

to fruition; mere wishful thinking is not sufficient to

support a claim. First Pub Corp v Parfet, 246 Mich App

182, 199; 631 NW2d 785 (2001), vacated in part on

other grounds 468 Mich 101 (2003); Trepel v Pontiac

Osteopathic Hosp, 135 Mich App 361, 377; 354 NW2d

341 (1984).

In Joba Constr Co, Inc v Burns & Roe, Inc, 121 Mich

App 615; 329 NW2d 760 (1982), the plaintiff was a

corporation that engaged in underground and heavy-

duty construction, and the defendant was a firm of

consulting engineers that had been retained by the

Detroit Public Lighting Commission (PLC) under con-

tract relative to a planned expansion of a utility station.

Comparable to defendant’s duties here, the engineering

firm had contracted “to prepare construction specifica-

tions, evaluate bids made by contractors and make

recommendations to the PLC as to which contractor

should be awarded contracts.” Id. at 624. The plaintiff

submitted the lowest bid, but the engineering firm

recommended that the PLC award the construction

contract to another contractor “as it felt plaintiff was

unqualified to perform the contract.” Id. The PLC

followed the defendant’s recommendation, and the

plaintiff was denied the contract. On another utility

project, a general contractor had been awarded a con-

struction contract by the PLC, and that contractor had

designated the plaintiff as a subcontractor. The engi-

neering firm, however, indicated that the plaintiff was

an unacceptable subcontractor, and the plaintiff was

then removed from the project. The plaintiff sued the

defendant for tortious interference with prospective

586 290 M

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advantageous economic relations, and the jury returned

a verdict in favor of the plaintiff in the amount of

$272,368. Id. at 624-625.

On appeal, the defendant claimed that the trial

court had erred by denying its motion for a directed

verdict, arguing “that it was entitled to a directed

verdict as plaintiff failed to produce sufficient evi-

dence to raise a question of fact as to a valid expect-

ancy that the contracts would have been awarded to

plaintiff absent defendant’s alleged interference.” Id.

at 633. The defendant maintained that “the discre-

tionary factors going into the determination of who is

the lowest qualified bidder preclude[d] plaintiff from

proving it had an expectation of being awarded the

contracts.” Id. at 634 (emphasis added). The Joba

Constr panel stated that, to support the tortious-

interference claim, the plaintiff had to prove that it

was reasonably likely or probable that a specific and

reasonable economic advantage or expectancy would

indeed develop and occur. Id. at 634-635. The panel

stated that the plaintiff was not required to demon-

strate a guaranteed relationship, considering that

anything defined as prospective in nature would

necessarily be uncertain, and stated that while cer-

tainties need not be shown, there must be something

more than innate optimism or mere hope. Id. at 635.

This Court concluded that the plaintiff had submitted

“sufficient evidence to create a question of fact as to

whether it was the lowest qualified bidder and thus

had a legitimate expectancy in obtaining the con-

tracts....”Id.

While the Joba Constr opinion did indicate that the plaintiff was the

lowest bidder on the first project, it did not reveal the nature of the

evidence presented at trial with respect to the plaintiff being a “quali-

fied” bidder.

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In Trepel, 135 Mich App at 377-381, this Court tackled

the issue of whether the trial court had properly granted

summary disposition on a counterclaim of tortious inter-

ference with a prospective advantage, focusing attention

on the lower court’s determination that no valid business

expectancy existed. The counterclaim was pursued by one

of the defendants, a hospital, against the plaintiff , a

radiologist. The hospital had applied for approval of a

bond issue from the Michigan State Hospital Finance

Authority (the authority), and the authority had granted

tentative approval of a proposed sale of municipal bonds.

The final step before consummation of the sale was

obtaining approval of the sale by the Municipal Finance

Commission (MFC), but the scheduled approval was sub-

stantially delayed and, as a consequence, the hospital ran

out of money and had to obtain alternative financing at a

much higher interest rate. The plaintiff had allegedly

made good on threats to the hospital to send letters to the

MFC in which he claimed that certificates of need filed by

the hospital were defective. The alleged intent behind the

sending of the letters by the plaintiff was to interfere with

the hospital’s application for approval of the bond issue,

which approval was ultimately never obtained. Id. at

366-369.

The Trepel panel, examining whether the hospital

had a valid business expectancy in obtaining approval of

the bond issue from the government, first noted that

there was an absence of Michigan caselaw “relating to

interference with discretionary governmental action.”

Id. at 378 (emphasis added). This Court proceeded to

review three federal court decisions, two of which

approved of interference suits brought by parties that

had submitted the most favorable bids on governmental

contracts, Lewis v Bloede,202F7(CA4,1912), and

Pedersen v United States, 191 F Supp 95 (D Guam,

1961), and one in which the court rejected a suit arising

588 290 M

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out of a city council’s decision relative to a request to

close and relocate an alley that was delayed because of

the need to hear from interested parties, Carr v Brown,

395 A2d 79 (DC App, 1978). Trepel, 135 Mich App at

379-380. The Trepel panel then ruled as follows:

In the instant case, the discretion to be exercised by the

MFC appears to be somewhat greater than that attributed

to the governmental bodies in Lewis and Pedersen, supra,

but significantly less than that in Carr. We perceive that

Carr is a gloss on the general rule. It applies to situations

where too many factors are in play to be able to reasonably

infer that, but for defendant’s allegedly wrongful action,

plaintiff likely would have obtained the desired advantage.

In this case, the MFC’s grant of approval must be preceded

by the determinations required by statute. A trier of fact

might be persuaded that defendant hospital could ascertain

with reasonable certainty whether the items listed in the

statute were satisfied so that MFC approval was a prob-

ability. If the question were whether defendant hospital’s

application for a loan was denied because of [the plaintiff’s]

interference, defendant hospital would have made out a

cause of action because a trier of fact could assess the

causal effect of the [plaintiff’s] actions.

However, where the MFC approval is only delayed, as

alleged here, the problem becomes more difficult. The MFC

is required to make findings of fact before granting ap-

proval. Obviously, that task takes a certain amount of time

to accomplish. However, the procedure involved is not a

notice and comment type hearing, as in Carr, designed to

let interested parties express their opposition. Defendant

hospital should have the opportunity to prove its allegation

that approval was “scheduled” for September 11, 1979.

In Lewis, [202 F at] 20-21, and Carr, [395 A2d at] 84,

reference is made to the prior history of the governmental

entity in granting approval. Defendant hospital has sought

to introduce evidence by way of affidavit of the MFC’s

perfect record in approving bond issues already approved

by the Michigan State Hospital Finance Authority. We

2010] C

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believe such evidence if otherwise admissible could per-

suade a trier of fact at a contested trial. [Id. at 380-381.]

From Joba Constr, Trepel, and First Pub, and cases

relied on therein, we derive the following principles to

apply in determining whether there exists a valid busi-

ness expectancy: (1) the presence of some level of

discretion exercisable by a governmental body or

decision-maker does not automatically preclude a rec-

ognition of a valid business expectancy, (2) if the discre-

tion is expansive and not restricted by limiting criteria

and factors to an extent that it makes it impossible to

reasonably infer that the claimed expectancy would

likely have come to fruition, there is no valid business

expectancy, (3) an expectancy must generally be specific

and reasonable, (4) it must be shown that there was a

reasonable likelihood or probability that the expectant

relationship would have developed as desired absent

tortious interference with the expectancy, (5) a party

need not prove that the expectancy equated to a cer-

tainty or guarantee, (6) innate optimism or mere hope

is insufficient, and (7) the prior history of the govern-

mental body or decision-maker and governing internal

and external rules, policies, and laws constitute factors

for a court to consider in determining whether a busi-

ness expectancy was valid and likely achievable. Of

course, when addressing a motion for summary dispo-

sition under MCR 2.116(C)(10), these principles must

be viewed in the context of determining whether a

genuine issue of material fact exists on contemplation

of the documentary evidence.

2. APPLICATION OF THE LAW TO THE FACTS

We begin by examining the documents governing the

DCS and the bid-selection process. DCS’s fiscal man-

agement policy (FMP) indicates multiple times that the

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DCS Board of Education (Board) has and reserves the

right to reject any or all bids. In one section of the FMP,

it provides that the reservation of the right to reject

bids includes “the bid of any contractor who is not

reasonably determined to be ‘responsible’ in conjunc-

tion with this policy.” The FMP, however, also provides:

TheBoard...hereby establishes this policy to satisfy

its statutory duty to competitively bid contracts for con-

struction of a new school building, or an addition to or

repair or renovation of an existing school building of the

[DCS], except for repairs in emergency situations. Bids

shall be awarded in compliance with applicable bidding

obligations imposed by law to the “lowest responsible

bidder.” [Emphasis added.]

This language, including use of the word “shall,”

indicates that if a bidding contractor submits the lowest

bid on a project and is deemed “responsible,” the Board

is mandated to award the project to that contractor. In

re Kostin Estate, 278 Mich App 47, 57; 748 NW2d 583

(2008) (“ ‘Shall’ is mandatory.”). There appears to be

some tension between this provision and the FMP’s

language that gives the Board the authority to reject

any or all bids, giving rise to the question whether the

Board has the discretion to reject a bid from the “lowest

responsible bidder.” The term “lowest responsible bid-

der” is defined in the FMP as being

[t]he Responsible Contractor that has submitted a fully

complete and responsive bid that provides the lowest net

dollar cost for all labor and materials required for the

complete performance of the work of the Construction

Project let for bid. Such bid must satisfy the requirements

of all applicable local, state, and federal laws, this Policy,

any administrative rules associated with this Policy devel-

oped by the Superintendent at the Board’s direction, and

bid documents used to solicit bids, and any other guidelines

and specifications required for the Construction Project.

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Because a bidder with the net lowest dollar cost bid may

not be a Responsible Contractor, the lowest dollar cost

bidder may not always receive award of the bid.

This definition refers to the term “Responsible Con-

tractor,” and the FMP also defines that term as being

[a] contractor determined by the Board to be sufficiently

qualified to satisfactorily perform the Construction

Project, in accordance with all applicable contractual and

legal requirements. The Board’s determination shall be

based upon: (1) an overall review of the Responsibility

Criteria listed below and the contractor’s responses, or

failure to respond, to same; (2) the contractor’s compliance

with this Policy and all applicable local, state and federal

laws; (3) the input of the District’s architect(s) [here

defendant] and/or construction manager(s), if any; (4)

review of the contractor’s proposed subcontractors; and (5)

other relevant factors particular to the Construction

Project.

The FMP then provides a definition of “Responsibility

Criteria,” which sets forth a nonexclusive list of criteria

that can be examined and weighed by the Board in

determining whether a contractor is responsible.

In his affidavit, the superintendent of the DCS, R.

Clay Perkins, averred that the DCS had the authority

and right under the FMP to reject any or all bids and

that the FMP specifically apprised contractors that the

lowest bidder might not always be awarded a project.

The trial court was also provided with a project

manual drafted by defendant that addressed the adver-

tisement of bids and the planned construction to be

undertaken at the two work sites, Hill Elementary

School and Siple Elementary School. The project

manual twice indicates that the DCS “reserves the right

to accept or reject any or all offers.” But the manual also

provides that the DCS “reserves the right to reject any

or all bids where incomplete or irregular, lacking bid

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bond, data required by bidding documents, or where

proposals exceed funds available.” (Emphasis added.)

This provision suggests that there is somewhat of a

limitation on the grounds pursuant to which a bid can

be rejected.

Defendant’s reliance on the language in the FMP and

project manual that gives the DCS the right to reject

any or all bids reflects a failure to appreciate the

language in the FMP that requires the DCS to award a

project to the lowest responsible bidder. Indeed, defen-

dant fails to even acknowledge the provision concerning

the “lowest responsible bidder” mandate, let alone

argue that it is negated by or subject to the language in

the FMP and project manual on which defendant relies.

Defendant’s position suggests that the DCS has com-

plete and unfettered discretion to reject a bid, but this is

inconsistent with the “lowest responsible bidder” pro-

vision that mandates an award and inconsistent with

the language in the project manual that indicates that

the DCS has the right to reject bids, but only for certain

reasons.

We hold, as a matter of law, that the multiple provi-

sions reserving the right to reject bids are subject to the

provision requiring an award to be made to the lowest

responsible bidder; otherwise, the “lowest responsible

bidder” provision is rendered meaningless and nuga-

tory. In Klapp v United Ins Group Agency, Inc, 468 Mich

459, 468; 663 NW2d 447 (2003), our Supreme Court

stated:

Just as “[c]ourts 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 nuga-

tory,” courts must also give effect to every word, phrase,

and clause in a contract and avoid an interpretation that

would render any part of the contract surplusage or nuga-

tory. [Citation omitted.]

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We find no reason not to apply this same construction

principle when interpreting the FMP. Further, our in-

terpretation does not render the “right to reject” pro-

visions surplusage or nugatory, given that they remain

entirely enforceable in all circumstances other than a

particular situation in which the bid being addressed

was submitted by the lowest responsible bidder. Aside

from the “lowest responsible bidder” provision itself,

our conclusion finds some additional support in the

FMP, in which, as already indicated, one of the provi-

sions reserving the right to reject a bid also provides

that the reservation encompasses “the bid of any con-

tractor who is not reasonably determined to be ‘respon-

sible’ in conjunction with this policy.” This language

tends to honor and can be read consistently with the

“lowest responsible bidder” mandate. Further support

can be found in the FMP’s definition of “lowest respon-

sible bidder,” which provides, “Because a bidder with

the net lowest dollar cost bid may not be a Responsible

Contractor, the lowest dollar cost bidder may not always

receive award of the bid.” By corollary, this language

suggests that if a contractor submits the lowest bid, it

would be awarded the project at issue if the contractor

is also properly characterized as being “responsible.”

Ultimately, our ruling rests on the fact that any other

interpretation would render surplusage and nugatory

the FMP’s language that “[b]ids shall be awarded in

compliance with applicable bidding obligations imposed

by law to the ‘lowest responsible bidder.’ ” (Emphasis

added.)

We next need to address whether plaintiff submitted

evidence sufficient to create a genuine issue of material

fact on the question whether it had a valid business

expectancy, accepting the undisputed fact that plaintiff

submitted the lowest bid and taking into consideration

our construction of the FMP. Our attention must focus

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on the requirement that the contractor or bidder be

“responsible.” The Board certainly has some discretion

in making this determination. However, we are not

prepared to rule that, as a matter of law, a contractor

that submitted the lowest bid on a project, thereby

satisfying one of the FMP award prerequisites of the

“lowest responsible bidder” clause, can never establish

a valid business expectancy merely because the Board

had some discretion in determining whether that con-

tractor was responsible.

The Board’s discretion in awarding a project is not

expansive or unrestricted by limiting criteria and fac-

tors to an extent that it makes it impossible to reason-

ably infer that plaintiff’s claimed expectancy would

likely have come to fruition. Rather, the FMP limits the

discretion to an assessment of whether a contractor is

“responsible,” and that determination is subject to the

factors and criteria delineated in the definitional sec-

tion of the FMP. In determining whether a contractor is

responsible, the ultimate question to be answered by

the Board, according to the FMP, is whether the con-

tractor is “sufficiently qualified to satisfactorily per-

form the Construction Project, in accordance with all

applicable contractual and legal requirements.” Cer-

tainly, a contractor submitting the lowest bid on a

project, such as plaintiff, may be able to prove with

testimony and other evidence that it was sufficiently

qualified to complete the project in a satisfactory and

legally and contractually compliant manner, to the

extent that a trier of fact could conclude that there

existed a reasonable likelihood or probability that the

contractor would have been awarded the project absent

tortious interference by a defendant. Supporting evi-

dence that goes beyond innate optimism or mere hope

could easily exist if a contractor truly has a stellar track

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record in the construction field; certainty or a guaran-

tee of an award need not be shown.

We shall now examine the documentary evidence

presented in the trial court. Defendant’s representa-

tive, Jackie Hoist, contacted and interviewed persons

identified on plaintiff’s bidder-qualification form in

order to obtain opinions on the quality and timeliness of

plaintiff’s work on past projects. Hoist’s typewritten

notes of the responses and opinions supposedly commu-

nicated to her reflect some negative reviews of plain-

tiff’s work, the harshest of which came from Hoist

herself, who had worked with plaintiff on multiple

projects.

The notes, however, also reflect some positive

reviews, e.g., Richard Cedroni

“managed it well,”

“hands on job,” “supervision was good,” “would work

with them again,” “asked [plaintiff] to bid a lot of their

jobs,” “did a good job,” “very dependable,” “do what

they [s]ay they will,” “[s]chedule was fine,” “[w]ork was

very good as a whole,” “[v]ery reasonable on change

orders,” “[w]ork quality was good,” “redid work when

necessary,” and “[p]aperwork end was good.” These

responses and opinions came from many individuals

and concerned several projects.

Additionally, the lower

court record contains an affidavit by Cedroni and a

letter from Cedroni to the DCS, which was also distrib-

uted at a public meeting to DCS committee members

who were engaged in making a recommendation to the

Board to award the project to US Construction and

Hoist noted that, on one project, some of plaintiff’s work was the

worst that she had ever seen.

Cedroni is plaintiff’s president and principal representative.

The documentary evidence is not clear regarding whether Hoist’s

notes themselves were shared with the DCS; however, defendant’s brief

in the trial court indicated that the notes were indeed shared and that the

DCS chose another contractor on the basis of the notes and the

information contained therein.

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Design Services, LLC. Cedroni’s affidavit and his circu-

lated letter averred and expressed that plaintiff had

performed quality work, had timely completed awarded

projects, and had received excellent reviews, all with

respect to numerous construction projects. The affida-

vit and letter were detailed and discussed specifics

regarding the various projects, and they addressed and

challenged the proclaimed negative opinions garnered

by Hoist in her investigation conducted on behalf of

defendant.

In light of the documentary evidence indicating that

plaintiff was sufficiently qualified to complete the project

in a satisfactory manner, we conclude that a genuine issue

of material fact existed concerning whether plaintiff was a

responsible contractor to the extent that a trier of fact

could conclude that there existed a reasonable likelihood

or probability that plaintiff would have been awarded the

project absent the alleged tortious interference by defen-

dant. Stated otherwise, there was a genuine issue of

material fact regarding whether plaintiff had a valid

business expectancy.

As indicated in our introduction, we emphasize that

the submission of the lowest bid, in and of itself, was

inadequate to sustain plaintiff’s suit. We reject any per

se rule that would allow litigation to proceed simply on

the basis of proof of the lowest bid, except, of course,

when no additional criteria needed to be satisfied,

Hoist’s notes and Cedroni’s affidavit and letter do raise concerns

about hearsay. However, neither party argued in the trial court, nor

argues on appeal, that any of the documentary evidence should be

disregarded and not considered on the basis of hearsay. Indeed, both

parties place some reliance on all three of the documents. Given that

the parties have effectively agreed to allow consideration of the

documents and their contents, we shall not engage in any hearsay

analysis.

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which is unlikely. Absent sufficient additional evidence

on relevant award criteria, there would be no valid

business expectancy.

We find it necessary to address some of the criticisms

leveled by the dissent regarding the issue whether there

could be a valid business expectancy. Initially, the dis-

sent asserts that no cause of action exists to protect

bidders on a governmental contract, citing Talbot Pav-

ing Co v Detroit, 109 Mich 657, 661-662; 67 NW 979

(1896). First, Talbot Paving addressed an action by a

contractor against a municipality, and here plaintiff is

not suing the DCS, but is proceeding on a tortious-

interference claim against defendant. Next, Talbot Pav-

ing allowed for the possibility of a suit against a

municipality if fraud were involved. Id. at 662. As can

be gleaned from our discussion later in this opinion,

there was evidence presented suggesting fraudulent

conduct on the part of defendant. The dissent also cites

Leavy v City of Jackson, 247 Mich 447, 450-451; 226 NW

214 (1929), another suit against the municipality itself,

and Leavy recognized that a suit by a bidder could be

maintained if the municipality did not act in good faith

in the exercise of honest discretion or if fraud, injustice,

or a violation of trust permeated the bidding process.

Once again, as reflected later in our opinion, there is

evidence indicating bad faith, a lack of honesty, injus-

tice, and fraud.

The dissent contends that there could be no valid

business expectancy because MCL 380.1267 gave the DCS

unfettered discretion to reject a bid, since the statute

provides no limiting criteria and because the FMP does

not have the force of law. MCL 380.1267(6) provides, in

part, that “[t]he board, intermediate school board, or

board of directors may reject any or all bids, and if all bids

are rejected, shall readvertise in the manner required by

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this section.” We first note that MCL 380.1267(6) does not

restrict a board from imposing its own criteria and limi-

tations on itself relative to the bidding process and the

acceptance and rejection of bids. While the statutory

language, standing alone, places no limits on discretion,

the dissent’s position ignores the reality that the FMP

governed the bidding process. Superintendant P erkins

averred that the FMP guided the bidding process and that

the process involved identifying the lowest responsible

bidder. The FMP itself provides that projects “requiring

competitive bids shall be made in accordance with current

statutes, the creation of bid specifications, and adherence

to the District’s bidding procedure[.]” (Emphasis added.)

The FMP further provides that the requirements of the

FMP “shall be incorporated into all bid documents used to

solicit bids for construction projects[.]” We therefore con-

clude that the FMP is absolutely relevant to analyzing the

issue whether plaintiff had a valid business expectancy.

Finally, we reject the dissent’s reliance on unpub-

lished opinions. MCR 7.215(J).

C. TORTIOUS INTERFERENCE—INTENTIONAL AND

IMPROPER CONDUCT

Plaintiff next argues that the trial court erred by

granting the motion for summary disposition when a

genuine issue of material fact existed with respect to

whether defendant’s communications to the DCS that

plaintiff was not qualified constituted intentional and

improper conduct.

1. THE CASELAW

In regard to a claim of tortious interference with a

business expectancy, a plaintiff must demonstrate that

the defendant acted both intentionally and either im-

properly or without justification. Dalley, 287 Mich App

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at 323. “[O]ne who alleges tortious interference with

a contractual or business relationship must allege the

intentional doing of a per se wrongful act or the doing

of a lawful act with malice and unjustified in law for

the purpose of invading the contractual rights or

business relationship of another.” Badiee v Brighton

Area Sch, 265 Mich App 343, 367; 695 NW2d 521

(2005), quoting CMI Int’l, Inc v Intermet Int’l Corp,

251 Mich App 125, 131; 649 NW2d 808 (2002),

quoting Feldman v Green, 138 Mich App 360, 378; 360

NW2d 881 (1984) (quotation marks omitted). A

wrongful act per se is an act that is inherently

wrongful or an act that can never be justified under

any circumstances. Badiee, 265 Mich App at 367;

PrysakvRLPolkCo, 193 Mich App 1, 12-13; 483

NW2d 629 (1992). When a defendant’s conduct was

not wrongful per se, the plaintiff must demonstrate

specific, affirmative acts that corroborate the unlaw-

ful purpose of the interference. Badiee, 265 Mich App

at 367. To establish that a lawful act was done with

malice and without justification, a plaintiff must

prove, with particularity, affirmative acts taken by

the defendant that corroborate the improper motive

of the interference. Mino v Clio Sch Dist, 255 Mich

App 60, 78; 661 NW2d 586 (2003); see also Dalley, 287

Mich App at 324. “Where the defendant’s actions

were motivated by legitimate business reasons, its

actions would not constitute improper motive or

interference.” Id. (quotation marks and citation omit-

ted).

A false accusation may provide a basis to pursue a

claim of tortious interference. First Pub, 246 Mich App

at 199. In Trepel, 135 Mich App at 377, this Court noted

that the defendant’s counterclaim of tortious interfer-

ence “clearly allege[d] unethical conduct—sending let-

ters knowing them to contain false allegations.”

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2. APPLICATION OF THE LAW TO THE FACTS

The FMP provides that the determination whether a

contractor is a responsible contractor shall be based, in

part, on “the input of the [DCS’s] architect,” which in

this case was defendant. The contract between the DCS

and defendant provides that defendant “shall assist the

[DCS] in obtaining competitive bids and shall assist the

[DCS] in awarding and preparing contracts for con-

struction.” Superintendent Perkins averred that plain-

tiff had submitted the lowest bid, but, “[b]ased on the

review by the Board Committee and the recommenda-

tions of [defendant], [the DCS] decided to award the

Project to US Construction[.]” There is no dispute that,

consistently with its obligation to provide assistance in

the bid-selection process, defendant made a recommen-

dation and conveyed information to the DCS regarding

plaintiff and its bid. Hoist sent a letter on behalf of

defendant to the DCS in which she stated:

We have reviewed the apparent low bidder[’]s proposal,

references, past experience and qualifications. At the close

of the review, we recommend that you move to the second

low bidder, US Construction....Theyhave provided con-

struction services for other projects designed by [us] & for

[the DCS], and have performed the work adequately.

It can reasonably be inferred from this letter that

Hoist, and thus defendant, found that plaintiff had a

poor work history and consequently would not ad-

equately perform the work on the project at issue. And

Perkins’s averment indicating that the award decision

was based, in part, on defendant’s recommendation

provides evidence of a causal relationship between

defendant’s conduct and the decision to award the

project to US Construction instead of plaintiff. Further

support of a causal relationship is an e-mail to Perkins

from the DCS’s director of finance and operations,

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Daniel Romzek, in which he stated that Hoist “still

stands by her recommendation not to proceed with the

low bidder, and I told her that we will rely on her

reference checks and recommendation for our recom-

mendation to the board.” For these reasons, we respect-

fully disagree with the dissent’s position that plaintiff

failed to establish causation.

There was conflicting evidence presented regarding

plaintiff’s workmanship on various projects. In Hoist’s

notes, she indicated that the contact person on a

construction project involving toilet buildings at the

Island Lake State Park stated that plaintiff had failed to

meet the project’s schedule, failed to follow the plans

and specifications, failed to provide supervision, and

failed to follow up on matters. The contact person also

stated that plaintiff’s work was of poor quality and that

he believed that “the state put [Cedroni] on their ‘may

not bid’ list.” Cedroni asserted in his affidavit that the

contact person on the Island Lake project was employed

by defendant, which acted as the architect on the

project. Cedroni further averred that plaintiff “timely

and properly completed all work on the project consid-

ering the design errors of [defendant].” Cedroni addi-

tionally attested that “[t]he work was fully completed

and was of good quality, as proven by [plaintiff’s] receipt

of full payment for the project[, and plaintiff] had

on-site supervision during the entire course of the

project.”

In Hoist’s notes, she indicated that she spoke with a

person from Architectural Systems Group regarding a

prime subcontract and that the individual stated that

plaintiff was “[n]ot good to deal with.” In Cedroni’s

affidavit, he averred that plaintiff “is currently working

with Architectural Systems Group as part of a $170,000

contract[.]”

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In Hoist’s notes, she indicated that Ken Kander, a

contact person on a construction project involving the

Holly Academy, stated that he would not say anything

negative about plaintiff, nor would he say anything

positive. Another contact person on the Holly Academy

project supposedly told Hoist that he would never hire

plaintiff for the DCS construction project. In Cedroni’s

affidavit, he attested as follows regarding the Holly

Academy project, for which defendant provided archi-

tectural services:

Ken Kander will attest that Cedroni completed quality

work on the project, had appropriate levels of supervision,

and addressed any concerns of the owner. The problems on

this construction project were due to [defendant]. [Plain-

tiff] suggested an alternative ballast to the one [defendant]

had specified. [Defendant] rejected [plaintiff’s] proposal.

[Defendant’s] specified ballasts were problematic and

[plaintiff’s] subcontractor has made repeated visits to the

construction project to address the problems. In fact, Holly

Academy has since retained a new architect rather than

work any further with [defendant].

[

]

In his letter presented to the DCS committee in-

volved in the bidding process, Cedroni stated that he

had spoken to the owner of the Holly Academy numer-

ous times “and he was very happy with our quality and

performance on the project and would not hesitate to

utilize our services again.”

Returning to our hearsay concern, aside from again noting that

neither party raises hearsay issues, we would note that Cedroni’s claims

with respect to what others told him about plaintiff’s workmanship

would not be hearsay in the context of this issue because their statements

would not be offered to prove the truth of the matter asserted. MRE

801(c). For purposes of this issue, statements that, for example, plaintiff

did quality work on a project would not be used to prove that plaintiff

indeed did quality work, but simply to show that the declarant made a

statement contrary to one attributed to him or her in Hoist’s notes,

calling into question Hoist’s truthfulness and showing improper conduct.

See Merrow v Bofferding, 458 Mich 617, 631; 581 NW2d 696 (1998).

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Hoist’s notes also reflect her own thoughts regarding

plaintiff’s workmanship on projects that plaintiff and

defendant worked on together. According to Hoist,

plaintiff’s work at Holly Academy lacked supervision

and showed poor workmanship. She also indicated that

the quality of plaintiff’s work on the project was reflec-

tive of their bid “and about what I expected from

Cedroni, but in addition to the low quality, his follow-up

on construction issues, especially with regard to their

lighting problem, is unacceptable to me.” In an e-mail

from Hoist to Kander regarding the Holly Academy

project, Hoist complained of plaintiff’s failure to deal

with a problem with lights, and she then stated, “So,

here’s where the rubber may hit the road for Cedroni,

[h]e was low bidder on some work we are doing for [the

DCS].” Regarding a construction project involving a

maintenance building in Rochester Hills, Hoist de-

scribed some of plaintiff’s work as the worst that she

had ever seen. With respect to that project, Cedroni

averred that the problems were caused by defendant.

In his letter presented to the DCS committee,

Cedroni made the following observations regarding his

company:

I have personally contacted all parties on this document

[Hoist’s notes] and all admitted to talking to Jackie. They

all reported giving good reviews and glowing reports of our

performance, except for one architect. After speaking with

this architect and explaining to him that his comment

could be viewed as damaging, he stated he didn’t think his

review was particularly bad and he would have no problem

working with us in the future.

***

...I have found no definitive reason as to why my

company should not be recommended for this project. I am

offering to complete this job at nearly $50,000 less than the

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next lowest bidder....Wehave never been removed from

a project and never received a poor review from any

architect/owner we’ve worked with. Even after our last

project with [defendant], I was told they had no issue with

our performance and we could use them as a reference for

future work.

Viewing the conflicting and inconsistent evidence

and the inferences arising from it in a light most

favorable to plaintiff, a trier of fact could reasonably

conclude that defendant acted with malice, in a wrong-

ful manner per se, unethically, with an improper motive

and absence of justification, or deceitfully with respect

to the damaging information and recommendation con-

veyed to the DCS. If plaintiff’s evidence were found to

be credible by the trier of fact, it could reasonably

conclude that defendant acted intentionally and im-

properly in an effort to interfere with plaintiff’s busi-

ness expectancy, i.e., being awarded the construction

project by the DCS. It is quite evident in reviewing the

documentary evidence that a great deal of friction and

animosity had developed between plaintiff and defen-

dant over past projects by the time the bid-selection

process took place here, and a trier of fact could

determine that defendant’s recommendation was moti-

vated by malice and not legitimate business reasons.

Summary disposition was simply inappropriate in light

of the record.

As indicated in our introduction, we emphasize that

the exercise of professional business judgment in mak-

ing recommendations relative to governmental con-

tracts and projects must be afforded some level of

protection and deference. But we will not preclude

litigation when there exists evidence suggesting that

the ostensible exercise of professional business judg-

ment is in reality a disguised or veiled attempt to

intentionally and improperly interfere with the contrac-

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tual or expectant business relationships of others.

There is evidence here indicating that defendant,

through Hoist, was being untruthful and inaccurate in

its portrayal of plaintiff. The trier of fact must sort

through all the conflicting evidence and assess the

credibility of the parties’ claims and their witnesses.

Finally, the dissent posits that there was no evidence

that Hoist provided false information to the DCS or had

an improper motive and that the information supplied

by Hoist simply constituted a negative opinion. The

dissent asserts that the evidence merely reflected pro-

fessional disagreements. We respectfully conclude that

the dissent fails to view the evidence in a light most

favorable to plaintiff and fails to consider reasonable

inferences arising from the evidence. A reasonable

inference arising from Cedroni’s affidavit is that Hoist

was lying, and Cedroni’s letter indicates that glowing

reviews were given to Hoist, which, if true, would

directly establish that she was lying. Taking into con-

sideration Cedroni’s affidavit and letter, along with the

other documentary evidence, and viewing it in a light

most favorable to plaintiff, this case entails more than

professional disagreements and negative opinions.

D. DEFENDANT’S RELATIONSHIP WITH THE DCS

The dissent argues that defendant is entitled to

summary disposition on the basis that defendant was

not a third party to the prospective contract or relation-

ship between plaintiff and the DCS; rather, defendant

was an agent of the DCS and thus a tortious-

interference cause of action cannot be maintained. We

initially note that defendant itself does not make this

argument, nor did the trial court address this issue.

A plaintiff must establish that the defendant was a

third party to the contract or business relationship in

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order to maintain a tortious-interference claim, and

therefore corporate agents are not liable for tortious

interference with respect to corporation contracts and

relationships when acting for the benefit of the corpo-

ration and within the scope of their authority. Lawsuit

Fin, LLC v Curry, 261 Mich App 579, 593; 683 NW2d

233 (2004); Reed v Mich Metro Girl Scout Council, 201

Mich App 10, 13; 506 NW2d 231 (1993). For purposes of

examining and applying this particular principle of law,

we first question whether it is proper to classify defen-

dant as a “corporate agent” rather than a “third party”

relative to the relationship between plaintiff and the

DCS. The caselaw addressing the principle has almost

always been in the context of a situation in which the

defendant was an actual employee or officer of the

corporation or entity involved in the relationship or

prospective relationship. Reed, 201 Mich App at 13

(executive director and chief officer of the defendant

Girl Scout council); Bradley v Philip Morris, Inc, 194

Mich App 44, 46; 486 NW2d 48 (1992), vacated in part

on other grounds 440 Mich 870 (1992) (employees of

tobacco company); Feaheny v Caldwell, 175 Mich App

291, 294-295; 437 NW2d 358 (1989) (top executives of

Ford Motor Company); Dzierwa v Mich Oil Co, 152

Mich App 281, 283; 393 NW2d 610 (1986) (president

and director of oil company); Stack v Marcum, 147 Mich

App 756, 758; 382 NW2d 743 (1985) (employee super-

visor at phone company); Tash v Houston, 74 Mich App

566, 568; 254 NW2d 579 (1977) (president of union).

There is no indication that Hoist or any of defendant’s

personnel were employees or officers of the DCS. While

Lawsuit Fin did not involve a defendant who was an

employee or officer, the alleged interference occurred

within the sanctity of the attorney-client relationship.

Lawsuit Fin, 261 Mich App at 583.

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Nevertheless, assuming for the sake of argument

that defendant was an agent of the DCS and not a third

party relative to the relationship between plaintiff and

the DCS, that would not automatically insulate defen-

dant from liability. Instead, even an agent can be held

liable for tortious interference if the agent acts not for

the benefit of the corporation or entity involved in the

transaction or prospective transaction, but for his or

her own benefit or pursuant to a personal motive. Reed,

201 Mich App at 13; Bradley, 194 Mich App at 50-51

(examining whether actions were based on personal

motivation or for personal benefit); Feaheny, 175 Mich

App at 294-295 (examining whether the defendants

acted out of a personal motive to harm the plaintiff or to

acquire a pecuniary advantage); Stack, 147 Mich App at

759-760 (examining whether the conduct at issue was to

further the defendant’s own ends); Tash, 74 Mich App

at 571-574 (stating that the defendant agent must not

act for a strictly personal motive and must proceed with

an honest belief that actions will benefit the company).

Reviewing the evidence in a light most favorable to

plaintiff, and taking into consideration reasonable in-

ferences arising from the evidence, a genuine issue of

material fact existed regarding whether Hoist was hon-

estly acting for the benefit of the DCS or whether she

was acting solely for her own benefit and out of moti-

vation to harm plaintiff. As already indicated, a trier of

fact, on the basis of the evidence, could reasonably

conclude that defendant acted with malice, in a wrong-

ful manner per se, unethically, with an improper motive

and absence of justification, or deceitfully in regard to

the damaging information and recommendation con-

veyed to the DCS. There was evidence of an acrimoni-

ous relationship between Hoist and Cedroni, and it

could reasonably be inferred from the e-mail Hoist sent

to Kander, when considered in conjunction with the

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other evidence, that Hoist was out to sabotage plain-

tiff’s efforts in the bid process. If the information

conveyed to the DCS was fabricated, and given the

history between Hoist and Cedroni, one could conclude

that Hoist was driven by a personal motive to get back

at Cedroni and not by a good-faith attempt to benefit

the DCS. The winning contractor was to work with

defendant in completing the project, and Hoist’s recom-

mendation benefited her in that she would not be forced

to work on the project with Cedroni, of whom she had a

very negative opinion. Again, issues of fact abound and

summary disposition was improper. We further note

that very little discovery had taken place before the

summary disposition motion was granted, and further

discovery could greatly sharpen the issues presented.

Finally, this Court’s decision in Joba Constr would

effectively have to be ignored on the issue now raised by

the dissent, given that the defendant engineering firm

in that case was also arguably an agent for the city.

III. CONCLUSION

In light of the documentary evidence indicating that

plaintiff was sufficiently qualified to complete the

project in a satisfactory manner, we conclude that a

genuine issue of material fact existed concerning

whether plaintiff was a responsible contractor to the

extent that the trier of fact could conclude that there

existed a reasonable likelihood or probability that plain-

tiff would have been awarded the project absent the

alleged tortious interference by defendant. Thus, there

was a genuine issue of material fact regarding whether

plaintiff had a valid business expectancy.

Furthermore, viewing the conflicting and inconsis-

tent evidence and the inferences arising from it in a

light most favorable to plaintiff, a trier of fact could

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reasonably conclude that defendant acted intentionally

and improperly in an effort to interfere with plaintiff’s

business expectancy.

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

Having fully prevailed on appeal, plaintiff is awarded

taxable costs pursuant to MCR 7.219.

TEPHENS

, J., concurred.

K. F. K

ELLY

,J.(dissenting). I respectfully dissent. The

trial court correctly determined that plaintiff lacked a

valid business expectancy in a potential governmental

contract. In my view, plaintiff merely had a legitimate

expectancy that the bidding process would be openly

and fairly conducted and, thus, it had to establish fraud,

injustice, or violation of trust in order to avoid summary

disposition. Moreover, even assuming that the majori-

ty’s framework of analysis is correct, plaintiff nonethe-

less failed to show that defendant did anything im-

proper or that its conduct was anything other than the

exercise of professional business judgment. Accordingly,

I would affirm the trial court’s order granting summary

disposition in favor of defendant.

I. STATEMENT OF FACTS

This action arises out of the bidder selection process

for a construction project undertaken by the Davison

School District that involved renovations and new con-

struction at the Hill and Siple elementary schools (the

project). In June 2003, the school district contracted

with defendant to provide professional architectural

and engineering services for the project. In addition to

providing these services, defendant agreed to assist the

school district in the administration and implementa-

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ISSENTING

PINION BY

K. F. K

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,J.

tion of the project, to provide evaluations and recom-

mendations during all phases of the project, and to help

the school district obtain competitive bids. With regard

to the competitive-bidding process, it was defendant’s

role to assist the school district with “bid validation or

proposal evaluation and determination of the successful

bid or proposal, if any.” In this capacity, defendant was

responsible for advertising the project and distributing

bidding documents to prospective bidders and, if re-

quested by the school district, for assisting in interview-

ing, selecting, and negotiating with prospective contrac-

tors. Defendant designated Jackie Hoist to act as its

designated representative to assist the district with the

project.

With respect to the competitive-bidding process, the

school district’s fiscal management policy (FMP) pro-

vides that bids shall be awarded consistently with

applicable law. The applicable provision of law, MCL

380.1267, provides, in relevant part:

(1) Before commencing construction of a new school

building, or addition to or repair or renovation of an

existing school building, except repair in emergency situa-

tions, the board of a school district...shall obtain com-

petitive bids on all the material and labor required for the

complete construction of a proposed new building or addi-

tion to or repair or renovation of an existing school

building.

(2) The board...shall advertise for the bids required

under subsection (1) by placing an advertisement for bids

at least once in a newspaper of general circulation in the

area where the building or addition is to be constructed or

where the repair or renovation of an existing building is to

take place and by posting an advertisement for bids for at

least 2 weeks on the department of management and

budget website on a page on the website maintained for

this purpose or on a website maintained by a school

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organization and designated by the department of manage-

ment and budget for this purpose....

***

(6) At a public meeting identified in the advertisement

for bids described in subsection (3), the board... or its

designee shall open and read aloud each bid that the

board...received at or before the time and date for bid

submission specified in the advertisement for bids. The

board... may reject any or all bids, and if all bids are

rejected, shall readvertise in the manner required by this

section. [Emphasis added.]

The FMP further provides that “[b]ids shall be

awarded...tothe‘lowest responsible bidder.’ ” The

FMP indicates that the lowest responsible bidder, i.e.,

the responsible contractor that submits the lowest

bid, is not necessarily the lowest overall bidder be-

cause that bidder might not be a responsible contrac-

tor. In determining who is a responsible contractor,

the FMP directs the district’s school board to rely on

a variety of factors, including responsibility criteria

and the recommendation of the architect. R esponsi-

bility criteria take into account a wide variety of

information relating to a particular contractor, such

as projects completed during the last three years,

experience with projects similar to those being bid on,

and references from third persons who have hired the

contractor, and, importantly, the FMP defines a re-

sponsible contractor as a contractor “determined by

the Board to be sufficiently qualified to satisfactorily

perform the [c]onstruction project....”Further, un-

der the FMP, the board specifically reserves “the right

to reject any or all bids, including the bid of any

contractor who is not reasonably determined to be

‘responsible’ in conjunction with this policy.”

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In July 2007, defendant prepared a project manual

for the project. The manual established a method by

which the school district would procure bids on the

project consistent with applicable law, see MCL

380.1267. It provided a bid advertisement, which re-

quired bidders to submit a bidder-qualification form

with their proposals and indicated that “offer[s] will be

required to be submitted under a condition of irrevoca-

bility for a period of thirty (30) days after submission”

and that the “[o]wner reserves the right to accept or

reject any or all offers.” Bid instructions provided to

applicants contained similar provisions.

In October 2007, plaintiff submitted a bid on the

project. In its application, plaintiff identified five public-

sector educational clients that it had completed projects

for and a contact person for each of them, including (1)

Irene Hughes Building, contact John Tagle, (2) Holly

Academy, contact Les Hartzman, (3) Detroit Public

Schools, contact Tim Rothermel, (4) Denby High

School, contact Rob Marintette, and (5) Southwestern

High School, contact Tom Miller. Plaintiff also identi-

fied three current or prior similar projects to those at

issue here: (1) Holly Academy, contact Les Hartzman,

(2) Madison Heights Library, contact Elizabeth Muzyk,

and (3) Warren Consolidated Schools, contact David

Gassen. Plaintiff included the necessary contact infor-

mation for each of these previous clients. Notably, Hoist

had personal knowledge of plaintiff’s work product

because defendant had worked with plaintiff on the

Holly Academy project.

Apparently, the purpose of the 30-day irrevocability period was to give

the district time to determine whether bidders were responsible contrac-

tors.

Elizabeth’s surname was spelled “Muzyk” in plaintiff’s documents

and “Musyk” in defendant’s documents.

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On October 17, 2007, the school board opened all

the contractors’ bids. Of the six bids submitted,

plaintiff’s bid was the lowest. Defendant then

checked plaintiff’s references, and Hoist conducted

interviews. Hoist spoke to several of plaintiff’s iden-

tified contacts, including Tagle, Hartzman, Rother-

mel, Muzyk, and Gassen. She also spoke with Ken

Kander, another person affiliated with the Holly

Academy project; Jim Tomblinson and Bryan Hall,

who had apparently worked with plaintiff on other

projects; and two persons identified as R on K and

Aaron W. According to plaintiff, Kander and Hall

were outside sources, while Tomblinson, Ron, and

Aaron were affiliated with defendant. These people

had differing opinions regarding plaintiff’s work,

both positive and negative. Apparently, Hoist made

notes of these conversations, which provided:

Contact #1 — David Gassen — Partners in Architecture

2005 or 2006 thinks $600,000 Warren Consolidated Schools

Service Center Connecting Links.

Work was a tight schedule, people were in the building, He

managed it well, hands on job, supervision was good, would

work with them again. His firm has asked them to bid a lot

of their jobs.

Contact #2 — Jim Tomblinson

2003 or 2004

State Island Lake State Park Toilet Buildings

Cedroni didn’t meet the project schedule

Did not follow plans and specs

Lack of supervision

No follow-up

Poor quality

He thinks the state put him on their “may not bid” list

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Contact #3 — Bryan Hall regarding a prime sub-

contract — casework

Architectural Systems Group

Says Not good to deal with

Contact #4 — Tim Rothermel — ABC Paving

Detroit Public Schools Jayne Field Fieldhouse. $80,000

exterior and interior work, concrete, finishes, and cmu.

Worked for them but not recently, did a good job, very

dependable, do what they way [sic] they will. Schedule was

fine, they ended up getting into winter conditions but it

was not Cedroni’s fault.

Contact #5 — Elizabeth Musyk — Eares and Associates

$700,000 — City of Madison Heights Library, January

2007, grand opening was in July. Work was very good as a

whole. Problems with the electrical sub who did not finish

on time. Schedule lag. DTE got them behind as too. Did as

much as possible to keep (on schedule). Very reasonable on

change orders.

Contact #6 — John Tagle

Irene Hughes Building Alterations, Flint — State of Michi-

gan job $100,000

Work quality was good, redid work when necessary. Did not

follow documents closely. Fairly good. P aperwork end was

good. Schedule — didn’t meet deadlines but not all his fault.

The fire marshal and the state agencies were involved. There

were some things/issues created that didn’t have to be cre-

ated. He did things his own way, then they had to scramble

and re-design

Contact #7 — Les Hartzman

Holly Academy, 2006 $260,000

Laughed, said he didn’t have a problem with the guy. Would

not hire him for this job.

Contact #8 — Ken Kander

2006 Holly Academy $260,000.

Declined to comment

I won’t say anything negative but I won’t say anything

positive either.

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Myself

Worked with him on several projects. Rochester [H]ills

Maintenance addition, Rochester Hills Paths and Vault

Toilets, and Holly Academy.

Some of the work at the Maintenance addition was the

worst I’d seen — I told him that. Holly as [sic] lacking

supervision and workmanship was poor. The quality level

received is reflective of their bid and about what I expected

from Cedroni, but in addition to the low quality, his

follow-up on construction issues, especially with regard to

their lighting problem, is unacceptable to me.

Ron K. reminded me that the Paths and vaults project

was so late that the owner almost lost their grant money

and had to finish up the work themselves just to close out

the contract.

Aaron W. reminded me that when we did pre-award

interview at Holly — I warned him that past shortcomings

will not be tolerated.

Ultimately, Hoist did not recommend plaintiff to

the school district, and plaintiff was made aware that

it had not been recommended. In response, Richard

Cedroni, plaintiff’s president, wrote a letter to “All

Interested Parties” regarding the matter. In the let-

ter, he stated:

Jackie Hoist was forthcoming enough to let me know

she intended to not recommend our company as general

contractors for this project. I admire her frankness, but I

obviously do not agree with her evaluation. . . . I have

personally contacted all [our references] and all admitted

to talking with Jackie. They all reported giving good

reviews and glowing reports of our performance, except for

one architect. After speaking with this architect and ex-

plaining to him that his comment could be viewed as

damaging, he stated he didn’t think his review was par-

ticularly bad and he would have no problem working with

us in the future.

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Quite truthfully, I was shocked to hear her intentions, as

we have recently worked together to complete a classroom

renovation at Holly Academy. The project was successfully

completed on time, with the only difficulty coming from the

state office of fire and safety....Ihave spoken with [the]

owner numerous times and he was very happy with our

quality and performance on the project and would not

hesitate to utilize our services again.

Based upon my research, I have found no definitive

reason as to why my company should not be recommended

for this project. I am offering to complete this job at nearly

$50,000 less than the next lowest bidder.... We have

never been removed from a project and never received a

poor review from any architect/owner we’ve worked with.

Even after our last project with [defendant], I was told they

had no issue with our performance and we could use them

as a reference for future work.

On October 30, 2007, a district committee held a

meeting regarding the bids. Cedroni appeared at the

meeting, distributed copies of his letter, and addressed

the committee. Plaintiff did not allege that the state-

ments of the respective references were not made, or

that Hoist had transcribed them inaccurately; rather,

plaintiff merely disagreed with the content of the opin-

ions expressed. Ultimately, the committee approved

defendant’s recommendation to award the contract to

the second lowest bidder, “contingent upon review of”

Cedroni’s letter, and forwarded its recommendation to

the school board. After further review, and based on the

recommendations of the committee and defendant, the

board awarded the contract to the second lowest bidder,

US Construction and Design Services, LLC. At the time,

US Construction had an active contract with the school

district and was performing in a satisfactory manner.

On May 20, 2008, plaintiff filed suit against defen-

dant for tortious interference with business relations.

Defendant moved for summary disposition pursuant to

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MCR 2.116(C)(8) and (10). After arguments, the court

determined that plaintiff did not have a valid business

expectancy because all the documentation indicated

that the lowest overall bidder was not guaranteed to

receive the contract and the board never implied that it

would accept plaintiff’s bid. The court also determined

that there was no evidence indicating that defendant’s

conduct was improper. It therefore granted defendant’s

motion pursuant to MCR 2.116 (C)(10).

II. STANDARD OF REVIEW

We review de novo a trial court’s ruling on a motion for

summary disposition. Gillie v Genesee Co Treasurer, 277

Mich App 333, 344; 745 NW2d 137 (2007). “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). When reviewing a motion under MCR

2.116 (C)(10), this Court considers the pleadings, admis-

sions, affidavits, and other relevant record evidence in the

light most favorable to the nonmoving party to determine

whether any genuine issue of material fact exists warrant-

ing a trial. Walsh v T aylor, 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 opposing party, leaves open an issue upon which

reasonable minds might differ.” West, 469 Mich at 183. A

motion under MCR 2.116(C)(8) tests the legal sufficiency

of a complaint. Badiee v Brighton Area Sch, 265 Mich App

343, 351; 695 NW2d 521 (2005). “The motion may be

granted only where the claims are so clearly unenforce-

able as a matter of law that no factual development could

possibly justify recovery.” Cummins v Robinson Twp, 283

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Mich App 677, 689-690; 770 NW2d 421 (2009) (quotation

marks and citation omitted).

III. ANALYSIS

Plaintiff first argues that the trial court erred by

granting summary disposition in favor of defendant on

plaintiff’s claim of tortious interference with a prospec-

tive economic advantage. I disagree. In my view, plain-

tiff failed to state a claim and otherwise failed to

produce evidence of an intentional interference that

caused a breach of the alleged business expectancy. In

essence, plaintiff’s claim is nothing more than dissatis-

faction with the school district’s ultimate choice of a

contractor.

As noted by the majority, the requisite elements for

tortious interference with advantageous business rela-

tionships or prospective economic relations are (1) the

existence of a valid business relationship or expectancy,

(2) knowledge of the relationship or expectancy on the

part of the interferer, (3) an intentional interference

causing a breach or termination of the relationship or

expectancy, and (4) resulting damage to the party whose

relationship or expectancy has been disrupted. At issue

here are the first and third elements.

The first element requires proof of “the existence of

a valid business relationship or the expectation of such

a relationship between the plaintiff and some third

party....”Blazer Foods, Inc v Restaurant Props, Inc,

259 Mich App 241, 254; 673 NW2d 805 (2003). A valid

business expectancy is one that is reasonably likely or

probable, not merely hoped for. First Pub Corp v Parfet,

246 Mich App 182, 199; 631 NW2d 785 (2001), vacated

in part on other grounds 468 Mich 101 (2003). The third

element requires a plaintiff to prove “the intentional

doing of a per se wrongful act or the doing of a lawful act

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with malice and unjustified in law for the purpose of

invading the contractual rights or business relationship

of another.” Badiee, 265 Mich App at 367 (quotation

marks and citation omitted). “Where the defendant’s

actions were motivated by legitimate business reasons,

its actions would not constitute improper motive or

interference.” Mino v Clio Sch Dist, 255 Mich App 60,

78; 661 NW2d 586 (2003) (quotation marks and citation

omitted).

A. PLAINTIFF FAILED TO ESTABLISH THAT DEFENDANT

IS AN INDEPENDENT THIRD PARTY

Although the trial court dismissed plaintiff’s claim

on the basis of MCR 2.116(C)(10), I would also conclude

that an additional basis for dismissal exists under MCR

2.116(C)(8). “To maintain a cause of action for tortious

interference, the plaintiff must establish that the defen-

dant was a ‘third party’ to the contract rather than an

agent of one of the parties acting within the scope of its

authority as an agent.” Lawsuit Fin, LLC v Curry, 261

Mich App 579, 593; 683 NW2d 233 (2004), citing Reed v

Mich Metro Girl Scout Council, 201 Mich App 10, 13;

506 NW2d 231 (1993). The reason for this rule is

common sense: An agent who is not acting solely on his

or her own behalf, but is acting within the scope of an

agency relationship, cannot be said to interfere with a

business expectancy or contract because the agent’s

actions, as an arm of the principal, are imputed to the

principal. Whether an agency relationship exists and

the extent of its scope are questions of fact. See Echelon

Homes, LLC v Carter Lumber Co, 261 Mich App 424,

434-435; 683 NW2d 171 (2004) rev’d on other grounds

472 Mich 192 (2005).

Defendant was not a third party to the prospective

contract; rather defendant was acting as the school

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board’s agent. The contractual agreement between the

school board and defendant directed defendant, at the

school board’s request, to assist the school board in the

competitive-bidding process. Thus, defendant stood in a

fiduciary relationship with the school board, and it was

incumbent on defendant to act in good faith and in the

school board’s best interest when it assisted the school

board in the selection of contractors for the project.

Nothing in the record shows that defendant was acting

solely for its own benefit, or otherwise outside its

agency relationship with the school district, when it

recommended that US Construction, instead of plain-

tiff, be awarded the project. And although there is some

indication that Hoist had negative opinions of plaintiff’s

work, there is no indication that defendant’s motives

were strictly personal or that defendant would directly

benefit from not recommending plaintiff. Accordingly,

when defendant chose not to recommend plaintiff for

the project, it did so as an agent of the school board

rather than as an independent third party. As such,

plaintiff’s claim of tortious interference cannot lie

against defendant. While this argument was never

raised by defendant or addressed by the trial court, it

alone provides a sufficient basis for dismissal and is an

additional reason for affirming the trial court’s deci-

sion.

B. PLAINTIFF HAD NO VALID BUSINESS EXPECTANCY

Next, even assuming that defendant could be liable

for tortious interference, I would conclude, contrary to

the majority’s position, that plaintiff lacked any busi-

ness expectancy, valid or otherwise. Plaintiff merely

stood in the position of a “disappointed bidder” on a

construction contract. Michigan law makes clear that

disappointed bidders for governmental contracts have

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no action at law to recover lost profits, let alone any

protected interest in being awarded a governmental

contract. See Talbot Paving Co v Detroit, 109 Mich 657,

661-662; 67 NW 979 (1896). As our Supreme Court has

stated: “ ‘The exercise of discretion to accept or reject

bids [involving public contracts] will only be controlled

by the courts when necessary to prevent fraud, injustice

or the violation of a trust.’ ” Leavy v City of Jackson, 247

Mich 447, 450; 226 NW 214 (1929), quoting 3 McQuil-

lin, Municipal Corporations (2d ed), § 1340, p 919

(emphasis added). Accordingly, there is no cause of

action for damages in connection with alleged impropri-

eties in the highly discretionary process for awarding

public contracts absent fraud, injustice, or violation of

trust.

This principle is consistent with public policy—

competitive bidding is designed for the benefit of tax-

payers, not bidders, Lasky v Bad Axe, 352 Mich 272,

276; 89 NW2d 520 (1958)—and with the relevant stat-

ute, which provides the school district with absolute

and unfettered discretion in determining whether to

award a contractor a project, MCL 380.1267.

As such,

because a bidder has no valid business expectation, or

interest in a prospective economic advantage, when it

submits a bid to a governmental entity that has full

discretion in the award process, like the school board in

the instant case, it cannot sue a nonagent third party

for tortious interference with that alleged expectancy.

EBI Detroit, Inc v Detroit, unpublished opinion per curiam of the

Court of Appeals, issued April 30, 2009 (Docket No. 277953). Although

this case is not binding, MCR 7.215(C)(1), this Court may view it as

persuasive, Dyball v Lennox, 260 Mich App 698, 705 n 1; 680 NW2d 522

(2004).

Section 1267 of the Revised School Code, MCL 380.1 et seq., estab-

lishes procedures that school districts must abide by when constructing a

new school building. MCL 380.1267(6) requires bids to be read aloud at

a public meeting and provides that “[t]he board, intermediate school

board, or board of directors may reject any or all bids....”

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Indeed, when the ultimate decision to enter into a

business relationship is, by statute, a highly discretion-

ary decision, a plaintiff cannot establish that its “busi-

ness expectancy” was a reasonable likelihood or possi-

bility and not merely wishful thinking. Trepel v Pontiac

Osteopathic Hosp, 135 Mich App 361, 377-381; 354

NW2d 341 (1984). This is not to say that a lawsuit for

tortious interference with discretionary governmental

action can never succeed as the majority notes; how-

ever, the category of cases in which such a suit may lie

is very narrow and must involve fraud, injustice, or

violation of trust. Stated differently, while a plaintiff

has no business expectancy in a bidding process that

vests absolute discretion in the governmental authority,

a plaintiff does have a legitimate expectancy that the

bid it submits will be evaluated fairly and openly and

will be subject to the same or similar scrutiny as other

bids, so that the plaintiff’s bid stands on an even

playing field with all other bids.

Because the instant matter involves a claim of tor-

tious interference with a business expectancy allegedly

stemming from the school board’s competitive-bidding

process, the question becomes, What degree of discre-

tion was allowed to the school district and was it such a

high degree that no business expectancy could flow

from the bidding process? By statute, the competitive-

bidding process here was highly discretionary in nature.

The statute provides no limiting criteria, and thus it

can be said the discretion granted to the school board in

awarding a contract for construction is unfettered and

the broadest discretionary authority possible. See MCL

380.1267. Further, the fact that plaintiff was not

awarded the contract even after it had a full and fair

opportunity to be heard at a public forum supports my

conclusion that the award of the contract to US Con-

struction was a highly discretionary governmental ac-

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tivity in which “too many factors [were] in play to be

able to reasonably infer that...plaintiff likely would

have obtained the desired advantage.” Trepel, 135 Mich

App at 380. Accordingly, I would conclude, given the

absolute discretion vested in the school district in

regard to the bidding process, that plaintiff had no valid

business expectancy; rather, it merely had an expect-

ancy that its bid would be evaluated fairly and openly,

absent any fraud, injustice, or violation of trust.

Implicit in this conclusion is my rejection of the

majority’s contrary position that the school district’s

discretion was limited. The bidding instructions clearly

informed all bidders that the lowest bidder, or in fact

any bidder, was not guaranteed to receive a contract. All

the accompanying documentation related to the bidding

process reiterated the board’s full discretion to reject

any and all bids. For example, the district’s advertise-

ment for bids provided, “Owner reserves the right to

accept or reject any and all offers”; the instructions

provided to bidders indicated that the board reserved

the right to reject or accept any bids in its “best

interest”; and, the FMP also contained language reserv-

ing the board’s discretion to “reject any or all bids.” I

acknowledge, as the majority points out, that the FMP

also mandates that the board select the “lowest respon-

sible bidder.” However, the majority’s reliance on this

language to conclude that the school district’s discre-

tion was limited, thereby creating a valid business

expectancy in an exercise of discretionary governmental

authority using principles of contract interpretation, is

puzzling. The FMP did not have the force of law, and its

distribution to all competing bidders did not create an

enforceable contract or even an expectancy in a busi-

ness relationship. Rather, in my view, the FMP is akin

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to an employer’s policy manual and merely informs

contractors how the school board intends to proceed in

the selection process.

Turning to the instant matter, because plaintiff had

no valid business expectancy, plaintiff had to show that

defendant interfered with its expectation that its bid

would be treated fairly in the bidding process, which

required plaintiff to show fraud, injustice, or violation

of a trust. There is no evidence in the record substan-

tiating fraud, let alone any allegations that defendant

engaged in any fraudulent or unjust activity. Indeed,

plaintiff even admits that in Cedroni’s letter to the

school district, he was simply attempting to substitute

his own judgment for that of the school district. While

plaintiff may believe its president’s judgment to be

superior to that of the school board, the statute endows

the school board, not plaintiff, with the discretion to

award contracts in the school board’s best interest.

Further, I find the majority’s reliance on Joba Constr

Co, Inc v Burns & Roe, Inc, 121 Mich App 615; 329

NW2d 760 (1982), unpersuasive as support for its

position that plaintiff had a valid business expectancy

by virtue of its low bid. In that case, the defendant was

the engineer for a project undertaken by the city of

Detroit and, like defendant in this case, was to “evalu-

ate bids made by contractors and make recommenda-

tions to the [city] as to which contractor should be

awarded contracts.” Id. at 624. Initially, the defendant

recommended that the contract not be awarded to the

plaintiff, the lowest bidder, because “it felt plaintiff was

unqualified to perform the contract,” and the contract

was awarded to another bidder. Id. Subsequently, an-

other contract was awarded to a different general

contractor that “had designated plaintiff as its proposed

excavation and piling subcontractor.” Id. at 624-625. At

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the defendant’s direction, the plaintiff was removed as

the subcontractor. Id. at 625. This Court held that the

trial court had properly denied the defendant’s motion

for a directed verdict, concluding that the “plaintiff

presented sufficient evidence to create a question of fact

as to whether it was the lowest qualified bidder and

thus had a legitimate expectancy in obtaining the

contracts” at issue. Id. at 635.

While a superficial reading of Joba Constr suggests

that it is applicable to this matter, I would conclude that

its value as a guide to this Court is nonexistent. The

Joba Constr Court never explained the nature of the

evidence presented that gave rise to a legitimate busi-

ness expectancy, and the Court never described what

discretion, if any, the city of Detroit had to remove a

subcontractor from the project. Thus, it is unclear

whether the Court meant to suggest that simply being

the lowest bidder in the bidding process is sufficient to

establish a legitimate business expectancy or whether

because the plaintiff had contracted with the general

contractor and was already performing the role of a

subcontractor it had some legitimate expectancy in the

continuation of the same. Further, given the foregoing,

the facts of Joba Constr are clearly distinguishable from

the present matter. Here, plaintiff was never awarded a

contract for the project through a general contractor

and then subsequently removed from the project like

the plaintiff in Joba Constr. Rather, the present matter

is limited to the highly discretionary bidding process

before a contract is awarded that school districts use

when undertaking a school-construction project. Thus,

the exact issue that was before the Joba Constr Court is

not now before this Court. In any case, the decision in

Joba Constr is not binding on this Court. Although a

published opinion generally has precedential effect un-

der the rule of stare decisis, MCR 7.215(C)(2), a rule of

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law established in a published opinion issued before

November 1, 1990, need not be followed, MCR

7.215(J)(1).

More persuasive and on point is the case of Mago

Constr Co v Anderson, Eckstein & Westrick, Inc, unpub-

lished opinion per curiam of the Court of Appeals,

issued November 8, 1996 (Docket No. 183479).

Mago, the plaintiff was the lowest bidder for a munici-

pal contract. The defendant engineering consultant

apparently recommended that the plaintiff’s bid be

accepted, but rescinded that recommendation when it

was discovered that the plaintiff’s bond was deficient,

even though it turned out that every bidder’s bond was

nonconforming. Id. at 1-2. This Court affirmed the trial

court’s grant of summary disposition in favor of the

defendant, ruling, in part, that the evidence did not

establish that the plaintiff had a legitimate expectation

of receiving the contract. Id. at 2. It explained:

Where the ultimate decision to enter into a business

relationship is a highly discretionary decision reposed

within the structure of a governmental entity, it becomes

more difficult for a plaintiff to prove that it had an

expectancy of doing business with the governmental body.

Here, the fact that [the second lowest bidder] was awarded

the contract at a city council meeting after all interested

parties were given a chance to be heard supports the view

that the award of the contract was a highly discretionary

governmental activity in which “too many factors [were] in

play to be able to reasonably infer that...plaintiff would

have obtained the desired advantage.” Moreover, the bid-

ding instructions clearly informed plaintiff that the lowest

bidder was not guaranteed to receive the water main

improvement contract. Lastly, the fact that plaintiff sub-

mitted a nonconforming bid should have negated any

Again, while I recognize this case is not binding precedent, MCR

7.215(C)(1), I do view it as persuasive. See Dyball, 260 Mich App at 705

n1.

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expectation that it might have had regarding the possibility

of receiving the contract. [Id. at 3 (citations omitted).]

Apart from the bond issue, Mago is identical to this

case. Plaintiff knew from the outset that the lowest

bidder was not guaranteed to be awarded the contract,

that the selection of the winning bidder depended on

the evaluation of numerous criteria, and that the deci-

sion was made at a public meeting at which interested

parties, including plaintiff, were permitted to speak.

An additional case I find persuasive is EBI-Detroit,

Inc v Detroit, 279 Fed Appx 340 (CA 6, 2008), in which

the plaintiff was the low bidder on a project commis-

sioned by the Detroit Water and Sewer Department

(DWSD) and its bid was rejected. Id. at 343. The

plaintiff filed suit in the Wayne Circuit Court, and the

defendants removed it to federal court. Regarding the

plaintiff’s state-law claim for tortious interference

against two of the DWSD’s directors, the appellate

court held that the plaintiff did not have a valid

business expectancy. Id. at 352-353. It explained:

[H]owever one describes EBI’s relationship with DWSD,

it is not the kind of relationship that can support a tortious

interference claim. Michigan courts have already rejected

the idea that a disappointed bidder has a valid business

expectancy in a potential government contract. Timmons v.

Bone, [unpublished opinion per curiam of the Court of

Appeals, issued April 23, 2002 (Docket No. 228942)] 2002

WL 745089, at *2 (Mich.Ct.App. April 23, 2002). We agree,

and note that holding otherwise would give any low respon-

sive bidder an immediate business expectancy in the gov-

ernment contract at issue. EBI had a “unilateral hope” of

winning the contract, nothing more, so its tortious inter-

ference claim cannot proceed. [Id.]

In summary, given that the school board expressly

reserved the right to reject any bid under MCL

380.1267, I conclude that while plaintiff’s status as the

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lowest bidder created the mere possibility that it would

be in contention to be awarded the contract, it did not

create a reasonably likely or probable expectation that

it would, in fact, be awarded the contract. Because

plaintiff had no business expectancy in the highly

discretionary bidding process and it only had an expect-

ancy that its bid would be treated fairly, it was required

to come forward with some evidence of fraud, injustice,

or violation of trust. It failed to do so, and therefore the

trial court properly granted defendant summary dispo-

sition under MCR 2.116(C)(10).

C. PLAINTIFF DID NOT ESTABLISH INTENTIONAL INTERFERENCE

Even assuming that the majority’s framework of

analysis is correct, i.e., that plaintiff had some valid

business expectancy, I would nonetheless conclude that

plaintiff’s claim fails on the third element necessary to

establish a claim of tortious interference. The claim

requires proof that the defendant intentionally inter-

fered with the existence of a valid business relationship

or expectancy and that the interference induced or

caused a breach or termination of the relationship or

expectancy. BPS Clinical Laboratories v Blue Cross &

Blue Shield of Mich (On Remand), 217 Mich App 687,

698-699; 552 NW2d 919 (1996); Lakeshore Community

Hosp, Inc v Perry, 212 Mich App 396, 401; 538 NW2d 24

(1995). In addition to being intentional, the interfer-

ence must be improper, i.e., illegal, unethical, or fraudu-

lent. Trepel, 135 Mich App at 374. To prove that the

defendant acted improperly, the plaintiff must show the

intentional doing of an act that is wrongful per se or the

intentional doing of a lawful act with malice and unjus-

tified in law. Advocacy Org for Patients & Providers v

Auto Club Ins Ass’n, 257 Mich App 365, 383; 670 NW2d

569 (2003). “A wrongful act per se is an act that is

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inherently wrongful or an act that can never be justified

under any circumstances.” PrysakvRLPolkCo, 193

Mich App 1, 12-13; 483 NW2d 629 (1992). If the plaintiff

relies on the intentional doing of a lawful act done with

malice and unjustified in law, the plaintiff “must dem-

onstrate, with specificity, affirmative acts by the defen-

dant that corroborate the improper motive of the inter-

ference.” BPS Clinical Laboratories, 217 Mich App at

699. The defendant does not act improperly when its

actions are motivated by legitimate business reasons.

Id. Plaintiff does not and did not meet this burden; it

has shown neither interference nor causation.

1. INTENTIONAL INTERFERENCE

Plaintiff contends that a question of fact existed

regarding whether defendant provided the school board

false information. I disagree. Plaintiff fails to identify

any evidence in the record substantiating this claim.

Plaintiff’s argument seems to rely on Hoist’s notes from

the reference checks, which related to projects plaintiff

worked on. However, there is no evidence in the record

indicating that Hoist’s notes contained false reports.

Noticeably absent from the record is any affidavit or

proof that Hoist’s notes were made up, slanted, or

created out of whole cloth. In fact, plaintiff has never

asserted that the comments recorded in Hoist’s notes

were not actually made. Indeed, Cedroni’s letter to the

school district made no such allegations, but simply

asserted that he disagreed with the references. Plaintiff

chose not to submit any affidavits from these references

asserting that they had provided glowing references of

plaintiff’s work or that they never made the statements

recorded in Hoist’s notes. A party cannot create a

question of fact to avoid summary disposition by mere

allegations or promises that a claim will be supported

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by evidence at trial. Maiden v Rozwood, 461 Mich 109,

121; 597 NW2d 817 (1999); Barnard Mfg Co, Inc v Gates

Performance Engineering, Inc, 285 Mich App 362, 377;

775 NW2d 618 (2009). Plaintiff’s reliance, as well as the

majority’s reliance, on Cedroni’s letter to create a

question of material fact is simply erroneous because

the letter contains inadmissible hearsay within hearsay.

Nuculovic v Hill, 287 Mich App 58, 62; 783 NW2d 124

(2010) (noting the well-established rule that when

reviewing a motion to dismiss based on MCR

2.116(C)(10), only evidence that is admissible is consid-

ered).

Further, it is obvious from the record that plaintiff

and defendant have had disagreements in the past

while working together on previous projects and that

their relationship was contentious at times. Consider-

ing that the parties worked together on complex, large,

and costly construction projects, it is not difficult to

imagine professional disagreements occurring. Plain-

tiff’s attempt to blame defendant for the professional

disagreements, however, does not create a legitimate

question of fact, absent some other substantiating evi-

dence, that defendant acted on improper motives. As

noted, a plaintiff must identify specific affirmative acts

that corroborate the alleged improper motive. BPS

Clinical Laboratories, 217 Mich App at 699. A review of

the record, in a light most favorable to plaintiff, reveals

that this evidence is lacking. At best, the most that can

be inferred is that Hoist had a negative opinion of

plaintiff’s work on the basis of prior experience. Report-

ing that information to the school board, however, was

not malicious or wrongful conduct; rather, defendant

was merely acting within its capacity to make recom-

mendations to the school district, as was required under

its contract with the school district. There simply is no

question that defendant’s actions were justified as

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actions based on a legitimate business decision. Accord-

ingly, plaintiff has failed to establish any question of

material fact that defendant acted improperly.

2. CAUSATION

Even if defendant had acted improperly, however,

plaintiff has failed to show that this allegedly improper

conduct actually interfered with plaintiff’s supposed

business expectancy. Defendant’s recommendation was

but one factor that the school district was to consider in

determining which contractor to award the contract.

After receiving defendant’s recommendation and

Cedroni’s letter, a district committee considered the

recommendation and the letter. The committee then

made a recommendation to the school board, which, in

turn, consistenly with the FMP, considered a number of

responsibility criteria, defendant’s recommendation,

and Cedroni’s letter. As noted, the responsibility crite-

ria take into account a wide variety of information

relating to a particular contractor, such as projects

completed during the last three years, experience with

projects similar to those being bid on, and references

from third persons that have hired the contractor.

Discretion was vested in the board to select the contrac-

tor that it viewed to be qualified to perform the job. The

school board ultimately selected the second lowest

bidder, US Construction, which at that time had an

active contract with the school district and was per-

forming well. In other words, defendant’s recommenda-

tion was only one factor taken into account when the

board made its determination. Defendant has presented

no evidence showing that the board relied solely on

information submitted by defendant or that, absent the

recommendation, plaintiff would have been awarded

the contract. Accordingly, plaintiff has also failed to

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establish causation. See Barnard Mfg, 285 Mich App at

377 (“[A] party ‘may not rest upon the mere allegations

or denials of his or her pleading, but must, by affidavits

or as otherwise provided [in MCR 2.116], set forth

specific facts showing that there is a genuine issue for

trial.’ ”) (citation omitted).

IV. CONCLUSION

In my view, the trial court properly granted summary

disposition for defendant. Plaintiff never established

that defendant was an independent third party. Rather,

in recommending that the school board reject plaintiff’s

bid, defendant was acting as an agent of the school

board. Thus, plaintiff failed to state a claim on which

relief could be granted. Reed, 201 Mich App at 13. Even

if this were not the case, I would conclude that plaintiff

lacked any valid business expectancy. The school

board’s decision was highly discretionary and, by stat-

ute, it had broad and unfettered discretion to reject any

or all bidders. Thus, none of the bidders in the bidding

process had any prospective advantage or business

expectancy; rather, each of their interests was limited to

an expectancy that the bidding process would be fair

and free of fraud. To sustain a claim of tortious inter-

ference on this basis, a party must show fraud, injustice,

or violation of trust in the bidding process. Plaintiff

made no such showing here. Even if the majority’s

framework of analysis were correct, plaintiff failed to

show that defendant’s conduct was malicious or wrong

or that defendant’s allegedly wrongful conduct caused

plaintiff to lose the award of the contract. Plaintiff is

merely a disappointed bidder in the competitive-bidding

process that believes its judgment should be substituted

for that of the governmental agency. The majority’s

opinion sanctions this position. In effect, it will allow all

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disgruntled bidders for governmental contracts to state

a claim of intentional interference with a business

expectancy against the government’s agent based on

the agent’s negative professional opinion of the claim-

ant. Unfortunately, the majority has failed to see this

lawsuit for what it really is: plaintiff’s attempt to

punish or obtain damages from defendant for express-

ing its opinion that plaintiff performed poorly on pre-

vious projects.

I would affirm.

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DUTTON PARTNERS, LLC v CMS ENERGY CORPORATION

Docket No. 292094. Submitted September 13, 2010, at Detroit. Decided

September 21, 2010. Approved for publication November 16, 2010,

at 9:10 a.m.

Dutton Partners, LLC, brought an action for negligence and trespass

in the Oakland Circuit Court against CMS Energy Corporation,

alleging that defendant was liable for damage resulting from a

natural gas pipeline rupture that occurred in an easement on

plaintiff’s property. Defendant moved for summary disposition,

asserting that plaintiff had sued the wrong party; that its subsid-

iary, Consumers Energy Company, not defendant, owned and

maintained the pipeline; and that amending the complaint would

be futile because the period of limitations had expired with respect

to Consumers. The court, Fred M. Mester, J., denied the motion,

concluding that defendant’s liability arose not only from owner-

ship of the pipeline but also from its maintenance, and denied

plaintiff’s motion to amend because Consumers did not have

notice of the complaint within the limitations period. Defendant

renewed its motion after discovery, arguing that there was no

question of material fact that it did not own and was not respon-

sible for maintaining the pipeline. Plaintiff responded that defen-

dant was the alter ego of Consumers and identified evidence that,

among other things, defendant and Consumers had the same

corporate address, shared the same board of directors and corpo-

rate executives, and had made joint financial filings. The court,

Lisa O. Gorcyca, J., denied the motion, concluding that factual

questions remained about whether defendant and Consumers

were alter egos. Defendant appealed.

The Court of Appeals held:

The trial court erred by denying summary disposition because

there was no evidence of fraud, misuse, or wrongdoing required to

justify ignoring the separate corporate entities. Absent some abuse

of the corporate form, parent and subsidiary corporations are

treated as separate entities. In order to state a claim for tort

liability based on an alleged parent-subsidiary relationship, a

plaintiff must allege the existence of a parent-subsidiary relation-

ship and facts that justify piercing the corporate veil. Such facts

2010] D

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must show evidence of fraud, wrongdoing, or misuse of the

corporate form. It is not enough that one corporation is the mere

instrumentality of the other. Although there was evidence that

showed that defendant and Consumers were alter egos, there was

no evidence of fraud, wrongdoing, or misuse and thus no justifi-

cation to ignore their separate corporate identities.

Reversed and remanded for dismissal with prejudice.

ORPORATIONS —

UBSIDIARIES —

IERCING THE

ORPORATE

EIL

Absent some abuse of the corporate form, parent and subsidiary

corporations are treated as separate entities; to state a claim for

tort liability based on an alleged parent-subsidiary relationship, a

plaintiff must allege the existence of a parent-subsidiary relation-

ship and facts that justify piercing the corporate veil; the plaintiff

must show all the following: (1) that the corporate entity is a mere

instrumentality of another entity or individual, (2) that the

corporate entity was used to commit fraud or a wrong, and (3) that,

as a result, the plaintiff suffered an unjust injury or loss.

Padilla Kostopoulos, PLLC (by K. Dino Kostopoulos,

Gerald V. Padilla, and Daniel V. Padilla), for plaintiff.

Sullivan, Ward, Asher & Patton, P.C. (by Scott D.

Feringa and Ronald S. Lederman), for defendant.

Before: G

LEICHER

,P.J., and Z

AHRA

and K. F. K

ELLY

,JJ.

URIAM

. CMS Energy Corporation, defendant,

appeals by leave granted the trial court’s opinion and

order denying its motion for summary disposition.

reverse and remand.

I. BASIC FACTS AND PROCEDURE

Plaintiff, Dutton Partners, LLC, owns a 177-acre

development, known as “Stonegate Ravines,” located in

Orion Township, Michigan. An easement across the

property contains an underground pipeline, which is

Dutton Partners, LLC v CMS Energy Corp, unpublished order of the

Court of Appeals, entered August 24, 2009 (Docket No. 292094).

636 290 M

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used for the transportation and distribution of natural

gas. On May 1, 2005, part of the pipeline ruptured and

allegedly exploded, or at least caused natural gas to be

released into the atmosphere. At the time, plaintiff was

still working on the development of Stonegate Ravines

and, as a result of the pipe’s rupture, had to temporarily

cease its construction on the project.

On April 30, 2008, plaintiff filed a two-count com-

plaint alleging that defendant was negligent and that

its conduct, which allegedly caused the pipe to explode,

had created a nuisance and trespass on plaintiff’s

property. Plaintiff’s complaint was filed one day before

the period of limitations expired. See MCL 600.5805(10)

(setting the limitations period for ordinary negligence

actions at three years). In its answer to the complaint,

defendant asserted that plaintiff had sued the wrong

party.

A. DEFENDANT’S CORPORATE STRUCTURE

Defendant is a corporation organized under Michi-

gan’s laws and is a utility holding company. Defendant

does not have any daily operations and has no employ-

ees; instead, it derives income from the holdings of its

subsidiaries in the form of dividends received on secu-

rities. Its subsidiaries are involved in various sectors of

the power and energy industries. A majority of defen-

dant’s income derives from only one of its subsidiaries,

Consumers Energy Company.

Consumers owns, operates, and maintains the pipe-

line involved in the underlying incident. However, de-

fendant and Consumers are separate Michigan corpo-

rations, allegedly each with its own officers and board of

directors. And although defendant owns 100 percent of

Consumers, defendant does not own or operate any of

Consumers’ gas pipelines or related infrastructure.

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Consumers controls its own day-to-day operations,

while defendant only concerns itself with regard to

major policy issues affecting Consumers. Further, the

two companies allegedly keep separate books and

records, their financial results are reported separately,

and each entity’s board of directors has its own meet-

ings and separate minutes are kept.

Other attributes of the two corporations, however,

are not so distinct. Consumers and defendant share the

same physical address; Consumers’ universal resource

locator (URL), or its website domain, is registered to

defendant; the two share the same in-house counsel; all

of Consumers’ and defendant’s filings with the Securi-

ties and Exchange Commission (SEC) are filed jointly;

the two entities share the same code of conduct, ethics

manual, and set of governing principles; and defendant

includes all of Consumers’ assets, including its pipe-

lines, on its balance sheets and depreciates those assets

for its accounting purposes.

B. MOTION FOR SUMMARY DISPOSITION

On September 24, 2008, defendant moved for sum-

mary disposition under MCR 2.116(C)(10), arguing that

plaintiff had sued the incorrect party. In its brief in

support, defendant argued that it is a utility holding

company separate from Consumers. Defendant relied

on the affidavits of Catherine Reynolds, who testified

that defendant’s corporate structure is separate from

Consumers’ structure, and David Montague, who ex-

plained Consumers’ role pre- and postinvestigation of

the ruptured pipeline.

Plaintiff countered that its suit against defendant was

appropriate because defendant allegedly is the alter ego of

Consumers. Plaintiff supported its position that Consum-

ers and defendant are the same entity by relying on

638 290 M

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publicly available information showing, among other

things, that the two share the same corporate address and

had made joint filings to the SEC . Further, contrary to

Reynolds’s affidavit, plaintiff asserted that Consumers

and defendant shared the same board of directors and

corporate executives, relying on information from defen-

dant’s 2007 annual report and defendant’s website. Plain-

tiff asserted that summary disposition should be denied

because a question of material fact remained regarding

whether defendant is the alter ego of Consumers. It also

contended that that it should be allowed further discovery

because defendant’s liability was not limited to “owner-

ship” of the pipeline, but included maintenance, repair,

and inspection of the pipeline.

Before the trial court could rule on defendant’s

motion for summary disposition, plaintiff moved to

amend the pleadings to add Consumers as a party.

Defendant countered that leave to amend should be

denied because the period of limitations had expired on

plaintiff’s claims.

The trial court, Judge Fred M. Mester presiding,

denied defendant’s motion for summary disposition and

also denied plaintiff’s motion to amend the complaint.

In denying plaintiff’s motion to amend, the court found

that Consumers did not have notice of the lawsuit

within the limitations period and, thus, granting the

motion to amend would be futile. With regard to defen-

dant’s motion for summary disposition, the court ex-

plained: “[T]his Court finds that because the allegation

of the Complaint [sic] are not limited to liability based

on ownership of the line but also as to the maintenance,

repair and inspection of the pipeline, defendant may be

liable to the Plaintiff in other capacities than as the

owner.” The trial court made no explicit ruling regard-

ing plaintiff’s alter-ego theory.

2010] D

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C. RENEWED MOTION FOR SUMMARY DISPOSITION

After further discovery, defendant renewed its mo-

tion for summary disposition. In its renewed motion,

defendant argued that there was no question of fact

that defendant does not own and is not responsible for

maintenance of the pipeline at issue. In its view, the

only question left to pursue was whether defendant had

any of those responsibilities; it interpreted Judge

Mester’s order as precluding plaintiff’s alter-ego theory

of liability. Defendant relied on a second affidavit pre-

pared by Montague, which indicated that defendant has

no responsibilities for maintenance and repair of the

pipeline.

Plaintiff responded, arguing that Judge Mester’s

ruling had not precluded its alter-ego theory. It reaf-

firmed its original position that defendant was an

appropriate party because it is the alter ego of Consum-

ers. Plaintiff did not provide any evidence that defen-

dant was responsible for the pipeline’s maintenance,

repair, or inspection.

In the interim, a new trial judge, Judge Lisa Gorcyca,

was assigned to the case. After oral argument, the trial

court issued a written opinion and order denying defen-

dant’s renewed motion for summary disposition, con-

cluding that defendant misinterpreted Judge Mester’s

ruling. The court stated:

[T]he undisputed evidence presents material factual

questions regarding whether the two entities are alter egos

of one another: (1) The CMS Energy 2007 Annual Report

identifies “gas pipelines” of Consumers Energy as an asset

of CMS Energy; (2) Both companies have the same physical

address and phone number; (3) In the Internet Universal

Resource Locator, www.consumersenergy.com has been

registered to “CMS Energy,” not to Consumers Energy; (4)

Both entities share the same in-house counsel; (5) Consum-

640 290 M

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635 [Nov

ers Energy’s letterhead describes Consumers Energy as “A

CMS Energy Company;” (6) CMS enjoys the accounting

benefit of depreciating the gas pipelines which are suppos-

edly owned by its subsidiary.

In sum, this Court finds that Judge Mester’s previous

ruling were [sic] appropriate. Defendant has not presented

any basis to set aside that ruling.

Defendant now appeals this order in this Court.

II. STANDARD OF REVIEW

We review de novo the trial court’s decision on

defendant’s renewed motion for summary disposition.

Fries v Mavrick Metal Stamping, Inc, 285 Mich App

706, 712; 777 NW2d 205 (2009). A motion brought

under MCR 2.116(C)(10) tests the factual sufficiency of

the complaint. Woodman v Kera, LLC, 280 Mich App

125, 134; 760 NW2d 641 (2008). We must review all the

evidence in a light most favorable to the nonmoving

party. Houdek v Centerville Twp, 276 Mich App 568,

572-573; 741 NW2d 587 (2007). Summary disposition is

appropriate when there is no genuine issue of material

fact and a party is entitled to judgment as a matter of

law. Woodman, 280 Mich App at 134. A genuine issue of

material fact exists if the record leaves open an issue

upon which reasonable minds could differ. Tenneco Inc

v Amerisure Mut Ins Co, 281 Mich App 429, 443; 761

NW2d 846 (2008).

III. ANALYSIS

Defendant argues that the trial court, Judge Gorcyca

presiding, erred by finding that factual questions re-

mained with respect to plaintiff’s alter-ego theory of

We note that a successor judge has the authority to enter whatever

orders his or her predecessor could have entered. MCR 2.613(B).

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liability. We agree with defendant. At the outset, we

note that the propriety of the trial court’s ruling was

questionable in the first instance. Plaintiff never

pleaded facts supporting its alter-ego theory in its

complaint and never moved to amend to add such facts;

thus, plaintiff’s complaint likely could have been dis-

missed for failure to state a claim.

However, because

the trial court treated the alter-ego theory of liability as

if it had been properly pleaded and raised, and ulti-

mately denied defendant’s renewed motion on the basis

of plaintiff’s alter-ego theory, we will treat the matter as

if it had been properly presented and preserved.

Plaintiff’s suit seeks to pierce the corporate veil and

hold defendant liable for the acts of its subsidiary,

Consumers.

“[I]n order to state a claim for tort liability

based on an alleged parent-subsidiary relationship, a

plaintiff would have to allege: (1) the existence of a

parent-subsidiary relationship, and (2) facts that justify

Despite this deficiency, defendant never moved to dismiss on this

basis under MCR 2.116(C)(8); rather, both of its motions were based

solely on MCR 2.116(C)(10). Defendant does argue on appeal, however,

that plaintiff failed to plead specific facts seeking to have the trial court

disregard defendant’s corporate form and suggests that plaintiff’s alter-

ego argument was therefore waived and should have been dismissed for

failure to state a claim. Defendant could have raised this basis for

dismissal in its renewed motion for summary disposition, but failed to do

so. Rather, it continued to defend itself against plaintiff’s alter-ego theory,

in effect forfeiting its own waiver argument. Thus, we consider defen-

dant’s argument under MCR 2.116(C)(8) to be unpreserved, and we will

not dispose of this appeal on (C)(8) grounds.

Plaintiff’s case differs from the traditional lawsuit in which a party

seeks to pierce the corporate veil because plaintiff is not attempting to

hold liable defendant’s individual corporate executives or shareholders.

See Rymal v Baergen, 262 Mich App 274, 293; 686 NW2d 241 (2004)

(“The traditional basis for piercing the corporate veil has been to protect

a corporation’s creditors where there is a unity of interest of the

stockholders and the corporation and where the stockholders have used

the corporate structure in an attempt to avoid legal obligations.”)

(citation and quotation marks omitted).

642 290 M

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635 [Nov

piercing the corporate veil.” Seasword v Hilti, Inc (After

Remand), 449 Mich 542, 548; 537 NW2d 221 (1995).

It is undisputed in this case that Consumers is

defendant’s subsidiary. Thus, the pertinent question is

whether plaintiff has alleged sufficient facts to justify

piercing the corporate veil. It is well settled under

Michigan law that “absent some abuse of corporate

form, parent and subsidiary corporations are separate

and distinct entities.” Id. at 547. However, the courts

may ignore this presumption and the corporate veil may

be pierced if, under the circumstances, respecting an

otherwise separate corporate existence will “subvert

justice or cause a result that would be contrary to some

other clearly overriding public policy.” Wells v Firestone

Tire & Rubber Co, 421 Mich 641, 650; 364 NW2d 670

(1984). For the corporate veil to be pierced, the plaintiff

must aver facts that show (1) that the corporate entity

is a mere instrumentality of another entity or indi-

vidual, (2) that the corporate entity was used to commit

fraud or a wrong, and (3) that, as a result, the plaintiff

suffered an unjust injury or loss. RDM Holdings, Ltd v

Continental Plastics Co, 281 Mich App 678, 715; 762

NW2d 529 (2008).

At least in the context of tort liability, relevant factors in

showing that a subsidiary is a “mere instrumentality” of its

parent might be that the parent and subsidiary shared

principal offices, or had interlocking boards of directors or

frequent interchanges of employees, that the subsidiary is

the parent’s exclusive distributing arm, or the parent’s

revenues are entirely derived from sales by the subsidiary.

[Seasword, 449 Mich at 548 n 10.]

The trial court denied defendant’s renewed motion

for summary disposition, finding that material ques-

tions of fact existed regarding “whether the two entities

are alter egos of one another,” including:

2010] D

UTTON

ARTNERS,

LLC

CMS E

NERGY

ORP

643

(1) The CMS Energy 2007 Annual Report identifies “gas

pipelines” of Consumers Energy as an asset of CMS En-

ergy; (2) Both companies have the same physical address

and phone number; (3) In the Internet Universal Resource

Locator, www.consumersenergy.com has been registered to

“CMS Energy,” not to Consumers Energy; (4) Both entities

share the same in-house counsel; (5) Consumers Energy’s

letterhead describes Consumers Energy as “A CMS Energy

Company;” (6) CMS enjoys the accounting benefit of de-

preciating the gas pipelines which are supposedly owned by

its subsidiary.

We do not disagree with the trial court’s ruling in this

regard. Legitimate questions exist regarding whether

Consumers is a mere instrumentality of defendant,

given the conflicting evidence presented below. How-

ever, the trial court erred by denying summary disposi-

tion because plaintiff failed to demonstrate any evi-

dence of fraud, wrongdoing, or misuse of the corporate

form. And after our review of the record, we cannot find

any factual evidence showing that defendant merely

used Consumers to commit fraudulent or otherwise

wrongful acts. Nothing in the record demonstrates that

Consumers was so controlled or manipulated by defen-

dant in relation to Consumers’ maintenance, owner-

ship, and repair of the pipeline that defendant was

somehow abusing its corporate shield for its own pur-

poses. Thus, given the absence of any evidence of fraud

or misuse, summary disposition for defendant should

have been granted.

Significantly, plaintiff does not identify in its brief on

appeal any evidence of fraud, wrongdoing, or misuse.

Rather, it simply argues that Michigan law does not

require such a showing in order for a parent corporation

to be held liable for the acts of its subsidiary. We

disagree. Plaintiff has cited no binding authority for its

644 290 M

ICH

635 [Nov

proposition that it is sufficient to show merely that

CMS and Consumers are alter egos.

Further, defendant’s reliance on CMS Energy Corp v

Attorney General, 190 Mich App 220; 475 NW2d 451

(1991), for the same proposition is unavailing. In CMS

Energy Corp, this Court affirmed a decision of the

Michigan Public Service Commission (PSC) that disre-

garded the separate corporate identities of Consumers

and CMS Energy in a ruling that subjected certain

Consumers’ proceeds received from its own assets to

the PSC’s regulations. Id. at 231-233. Consumers had

transferred the proceeds at issue to its nonregulated

subsidiaries for purposes of insulating those funds from

regulation, and those subsidiaries were subsequently

transferred to CMS Energy’s control. Id. at 223-226.

Although the panel cited the proposition that fraud

need not be shown to consider the entities as one, it did

not rely on that proposition alone for its conclusion that

the PSC appropriately “pierce[d] the corporate veil of

the nonregulated corporate entities.” Id. at 232. The

Court explicitly cited some misuse of the corporate form

that did occur under the circumstances; specifically, the

subsidiaries held by Consumers were transferred to

CMS Energy for the sole purpose of “avoid[ing] regula-

tion of the proceeds to be generated by those assets.” Id.

Thus, CMS Energy Corp does not support plaintiff’s

position, but refutes it.

Because a showing of fraud, wrongdoing, or misuse is

required under Michigan law in order to prevail on an

alter-ego theory of liability and because plaintiff prof-

fered no such evidence, the trial court erred by denying

defendant’s renewed motion for summary disposition.

We were unable to locate any binding Michigan case that has held that

the corporate veil may be disregarded absent a showing of fraud,

wrongdoing, or some misuse of the corporate form.

2010] D

UTTON

ARTNERS,

LLC

CMS E

NERGY

ORP

645

Plaintiff has not presented sufficient facts in support of

its alter-ego theory of liability, and the case cannot go

forward on this basis. The matter also cannot proceed

against defendant in its individual capacity. Plaintiff

concedes in its brief on appeal that “ownership as well

as responsibility for repair, maintenance, and inspec-

tions of [the pipeline] rests with Consumers . . . and not

[defendant].” Thus, there is no genuine question of

material fact that defendant was not negligent and did

not otherwise trespass on plaintiff’s property. On re-

mand, the trial court shall enter an order in defendant’s

favor dismissing the case with prejudice.

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

646 290 M

ICH

635 [Nov

In re LEETE ESTATE

Docket No. 293979. Submitted November 5, 2010, at Grand Rapids.

Decided November 16, 2010, at 9:15 a.m.

Appellant Frederick D. Leete IV filed a petition in the Emmet

County Probate Court for the probate of the estate of his father,

Frederick D. Leete III, and was appointed personal representa-

tive. Appellee Cynthia K. Sherman, as personal representative

of the estate of Barbara K. Leete who was the wife of Frederick

Leete III, sought a determination of the rights of Barbara’s

estate in the Leete estate. Barbara’s death certificate showed

that she had died at an unknown time on February 28, 2008,

and her husband died at 9:10 p.m. on March 3, 2008. Both were

residents of Indiana, but they owned property in Michigan.

Appellee argued that Barbara’s estate was entitled under MCL

700.2702(3) to a one-half interest in property the deceased

couple had owned jointly as tenants by the entirety because

Frederick did not survive Barbara by more than 120 hours. The

court, Frederick R. Mulhauser, J., granted an adjournment to

allow appellant time to substantiate his claim that Barbara had

died more than 120 hours before her husband and subsequently

entered an order on May 19, 2009, stating that if appellant

failed to do so within 90 days, appellee’s petition seeking half of

any jointly owned property would be granted. The parties also

signed the order, each noting that it was “approved as to form.”

After 90 days, appellant had produced no evidence regarding the

time of Barbara’s death, but instead relied on arguments that

the property should be distributed consistently with Frederick’s

will, which stated that Barbara would inherit the property only

if she survived him by 30 days. In the alternative, appellant

argued that MCL 700.2702(3) was inapplicable because it be-

came effective four years after the execution of the quitclaim

deed by which the property was conveyed to Barbara and

Frederick as tenants by the entirety. The court granted sum-

mary disposition in appellee’s favor on August 20, 2009, finding

no clear and convincing evidence that Frederick had survived

Barbara by more than 120 hours and that Barbara’s estate was

entitled to half of any jointly owned property.

2010] In re L

EETE

STATE

647

The Court of Appeals held:

1. Under MCR 2.602(B)(2), an order must be entered if its

form is approved by all the parties and if, in the court’s

determination, it is in conformity with the court’s decision. The

May 19 order was valid because the parties agreed to its form

and the court stated at the hearing that it would follow

appellee’s proposed course of action if both parties agreed to the

form of the order. The August 20 order granting summary

disposition was valid because it was entered pursuant to the

procedure established in the probate court’s earlier order, which

the parties had approved, and it was in conformity with the

court’s decision that appellee’s motion would be granted if

appellant failed to produce evidence that Frederick had sur-

vived Barbara by more than 120 hours.

2. Under MCL 700.1303(1), probate courts have concurrent

legal and equitable jurisdiction to determine property rights and

interests and to ascertain if individuals have survived. Under MCL

700.1301(b), the Estates and Protected Individuals Code (EPIC)

applies to a nonresident’s property located in this state. Appellant

identified Frederick’s domicile as Michigan, but even if he had

been an Indiana resident, EPIC applied to the property located in

Michigan.

3. MCL 700.8101(2)(a), (d), and (e) provide that EPIC applies

to a governing instrument executed before EPIC came into effect

as long as the statute does not affect an accrued right and as long

as the governing instrument does not contain a clear indication of

contrary intent. There were no governing instruments in this case

that indicated an explicit intent that some other law or rule should

be applied. Appellant did not have an accrued right in the property

at the time of Frederick’s and Barbara’s deaths because his

interest was still subject to change.

4. Under MCL 700.2701 and 700.2702(3), a coowner must

survive a deceased coowner by more than 120 hours to be entitled

to property that passes due to a right of survivorship, unless a

governing instrument expressly provides otherwise. If two coown-

ers with rights of survivorship die within 120 hours of one another,

the property is divided in equal shares between each coowner’s

estate. Survivorship must be proved by clear and convincing

evidence. There were no governing instruments indicating a

contrary intent, and there was no evidence showing that Frederick

survived Barbara by more than 120 hours. Therefore, the probate

court correctly ordered the property divided between the two

estates.

Affirmed.

648 290 M

ICH

647 [Nov

1. C

OURTS —

RDERS —

ALIDITY

A court must sign and enter an order if all parties approve the form

of the order and, in the court’s determination, the order is in

conformity with the court’s decision (MCR 2.602[B]).

2. E

STATES IN

ROPERTY —

STATES AND

ROTECTED

NDIVIDUALS

ODE —

ONRESIDENTS

The Estates and Protected Individuals Code applies to a nonresi-

dent’s property located in this state (MCL 700.1301[b]).

3. E

STATES IN

ROPERTY —

STATES AND

ROTECTED

NDIVIDUALS

ODE —

CCRUED

IGHT

The Estates and Protected Individuals Code applies to a governing

instrument executed before the code came into effect as long as the

code does not affect an accrued right and as long as the governing

instrument, including a will or a deed, does not contain a clear

indication of contrary intent (MCL 700.8101[2][a], [d], and [e]).

4. E

STATES IN

ROPERTY —

STATES AND

ROTECTED

NDIVIDUALS

ODE —

IMULTANEOUS

-D

EATH

ROVISION

The Estates and Protected Individuals Code requires that a coowner

survive a deceased coowner by more than 120 hours to be entitled

to property that passes due to a right of survivorship, unless a

governing instrument, including a will or a deed, expressly pro-

vides otherwise; if two coowners with rights of survivorship die

within 120 hours of one another, the property is divided in equal

shares between each coowner’s estate; survivorship must be

proved by clear and convincing evidence (MCL 700.2702[3]).

Chalgian & Tripp L aw Offices, PLLC (by Douglas G.

Chalgian), for Frederick D. Leete IV.

Running, Wise & Ford, P.L.C. (by Kent E. Gerberding

and Thomas A. Grier), for Cynthia K. Sherman.

Before: M. J. K

ELLY

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

ELLY

and

ORRELLO

,JJ.

URIAM

. In this probate case, we must decide

whether the probate court properly entered an order

pursuant to MCR 2.602(B)(2) and correctly interpreted

2010] In re L

EETE

STATE

649

and applied the Estates and Protected Individuals Code

(EPIC), MCL 700.1101 et seq., and its simultaneous-

death provision, MCL 700.2702. Appellant, Frederick D.

Leete IV, would have us conclude that the summary

disposition order in favor of appellee, Cynthia K. Sher-

man, is void and that EPIC is inapplicable. We disagree

and we affirm the probate court’s order.

I. BASIC FACTS

In 2008, Frederick DeLand Leete III and Barbara R.

Leete, 80 and 75 years old respectively, had been mar-

ried for 34 years and lived in Brownsburg, Indiana.

They had no children from their marriage, but each had

children from previous marriages. The Leetes owned, as

tenants by the entirety, a cottage located in Mackinaw

City in Emmet County, Michigan, which is the property

that is the subject of this dispute. Apparently, Frederick

had inherited this property, which had been in the Leete

family for about 100 years. Nonetheless, Frederick and

Barbara executed a quitclaim deed, dated October 29,

1996, which indicated that Frederick and Barbara

would own, as tenants by the entirety,

[a]ll those portion of lots 59 and 60 of Block A in the Village

of Mackinaw City, according to the recorded plat thereof, as

lie North of the 15 ft. alley or service roadway bisecting said

lots,

ALSO

Lot 61 of Block A in the Village of Mackinaw City,

according to the recorded plat thereof, including all of said

lot lying on both sides of the existing service road;

TOGETHER WITH ALL TANGIBLE PERSONAL

PROPERTY IN OR ON SAID PREMISES[.]

On February 28, 2008, at an unknown time, Freder-

ick allegedly left his vehicle running in the garage after

650 290 M

ICH

647 [Nov

returning from the store. That same day, Barbara’s

daughter went to Barbara and Frederick’s home and

discovered Barbara dead and Frederick unconscious.

At the time, the car’s engine was still warm, but it was

no longer running because it had run out of gas.

Frederick was taken to the hospital, but he expired on

March 3, 2008, at 9:10 p.m. Barbara’s death certificate

lists her date of death as February 28, 2008, time

“unknown.” The cause of their deaths was carbon

monoxide poisoning. Barbara died intestate, but Fred-

erick had a will, dated September 20, 1974.

On May 23, 2008, appellant, who was Frederick’s

son, filed a petition for probate and appointment as the

personal representative of Frederick’s estate. Accord-

ingly, Frederick’s will was submitted to probate, and

appellant was appointed personal representative to

administer Frederick’s estate. With regard to the dis-

puted property, Frederick’s will provided:

I give and bequeath to my wife, Barbara R. Leete, if she

shall survive me for a period of more than thirty (30) days,

all real estate and improvements thereon of which I may

die the owner or parr [sic] owner, specifically including the

real estate and improvements located on Lot 62, Block “A”,

Mackinaw City, Emmett County, Michigan. In the event my

said wife shall not survive me for a period of more than

thirty (30) days, then I give and bequeath such real estate

to my aforenamed children who survive me for a period of

more than thirty (30) days, per stirpes and not per capita.

Appellant filed an inventory of Frederick’s estate, list-

ing among Frederick’s assets the property located in

Mackinaw City.

On November 24, 2008, appellee, who was Barbara’s

daughter and the personal representative of Barbara’s

The exact time Barbara and Frederick were discovered is unclear. The

police report indicates that the event was reported about 1:40 p.m.

2010] In re L

EETE

STATE

651

estate, filed an appearance in the case, giving notice to

Frederick’s estate that Barbara’s estate sought a one-

half interest in all jointly owned property because

Frederick had not survived Barbara by more than 120

hours.

The legal basis for appellee’s claim is MCL

700.2702(3) of EPIC, which provides:

Except as provided in subsection (4), if it is not estab-

lished by clear and convincing evidence that 1 of 2 co-

owners with right of survivorship survived the other co-

owner by 120 hours,

of the co-owned property passes as if

1 had survived by 120 hours and

as if the other had

survived by 120 hours. If there are more than 2 co-owners

and it is not established by clear and convincing evidence

that at least 1 of them survived the others by 120 hours, the

property passes in the proportion that 1 bears to the whole

number of co-owners. For the purposes of this subsection,

“co-owners with right of survivorship” includes joint ten-

ants, tenants by the entireties, and other co-owners of

property or accounts held under circumstances that en-

titles 1 or more to the whole of the property or account on

the death of the other or others. [Emphasis added.]

Accordingly, on February 23, 2009, appellee filed a

petition for a determination of the rights of Barbara’s

estate and requested appellant to amend the inventory

of Frederick’s estate in conformance with the statute.

In response, appellant asserted that MCL

700.2702(3) was inapplicable and asked that the Macki-

naw City property be distributed according to Freder-

ick’s will, as if Frederick had survived Barbara. Appel-

lant alleged that Barbara died on February 27, 2008,

and that Frederick, thus, died more than 120 hours

The year 2008 was a leap year and, thus, the dates between Barbara’s

and Frederick’s deaths included February 28 and 29, and March 1, 2, and

3. The longest length of time possible between Barbara’s and Frederick’s

deaths would be 117 hours and 10 minutes. This calculation assumes that

Barbara died at the earliest time possible on February 28, i.e., immedi-

ately after the day began at midnight.

652 290 M

ICH

647 [Nov

after Barbara’s death. Appellant did not provide any

evidence in support of this allegation. Appellant also

argued that even if MCL 700.2702(3) was applicable, an

exception in MCL 700.2702(4) applied and required

that the property be divided according to the “govern-

ing instrument,” Frederick’s will. Appellant requested

the court to adjourn the proceedings for appellant to

substantiate his claim that Barbara died more than 120

hours before Frederick’s death.

The probate court granted appellant’s request for an

adjournment. However, instead of producing evidence

related to the time of Barbara’s death, appellant moved

for summary disposition under MCR 2.116(C)(8) and

(10). Appellant asserted that the property should be

distributed consistently with Frederick’s will and that

even if the will were not the “governing instrument,”

MCL 700.2702(3) was inapplicable because it became

effective four years after the deed was executed. In

appellant’s view, once Barbara died the property passed,

in whole, to Frederick and his will precluded the prop-

erty’s division.

Appellee countered that Barbara’s estate was en-

titled to summary disposition based on MCR 2.116(I)(2)

and (C)(10). Appellee argued that EPIC explicitly ap-

plies to the factual circumstances at issue and that the

deed, not Frederick’s will, was the governing instru-

ment at issue. Appellee further asserted that because

Frederick and Barbara died within 120 hours of each

other, one-half the interest of the Mackinaw City prop-

erty vested in Barbara’s estate under MCL 700.2702(3).

In response, appellant argued that his interpretation of

EPIC was correct. However, appellant asked for addi-

tional time to pursue factual evidence with regard to

the time of Barbara’s death.

2010] In re L

EETE

STATE

653

At the motion hearing, the probate court initially

denied both parties’ motions for summary disposition.

However, appellee’s attorney presented to the court an

order that the court indicated it would “follow” and sign

if both parties agreed to “the form of that order.” The

order provided, in relevant part:

IT IS HEREBY ORDERED that unless Frederick D.

Leete IV, Personal Representative of the Estate of Freder-

ick Deland Leete III, Deceased, within [90] days from the

date hereof, submits evidence that Frederick Deland Leete,

III, survived Barbara R. Leete by 120 hours, the relief

requested by the Petition and Motion For Summary Dispo-

sition filed by Cynthia K. Sherman, Personal Representa-

tive of the Estate of Barbara R. Leete, Deceased, shall be

GRANTED, and the attached proposed Order shall be

entered.

In the event such evidence of survival is submitted,

Petitioner shall have [90] days to respond to such evidence,

and the Court, if necessary, may schedule an evidentiary

hearing to resolve the dispute.

Both attorneys for the parties signed the order “ap-

proved as to form,” and the probate court entered the

order on May 19, 2009.

Ninety days later, on August 20, 2009, the court

entered an order granting summary disposition in ap-

pellee’s favor. It found “no clear and convincing evi-

dence” that Frederick had survived Barbara by 120

hours and that Barbara’s estate was entitled to half of

any coowned property pursuant to MCL 700.2702(3). It

ordered appellant to amend his inventory accordingly.

This appeal followed.

II. ENTRY OF THE ORDER

Appellant first argues that the probate court’s Au-

gust 20 order is void because it did not meet the

654 290 M

ICH

647 [Nov

requirements of MCR 2.602(B). We disagree. Appellant

never raised this issue below, the probate court did not

consider or decide this issue, and the matter is unpre-

served for appeal. People v Metamora Water Serv, Inc,

276 Mich App 376, 382; 741 NW2d 61 (2007). Thus, this

Court is not required to consider appellant’s argument.

See Royal Prop Group, LLC v Prime Ins Syndicate, Inc,

267 Mich App 708, 720-721; 706 NW2d 426 (2005). We

also note that a party may not successfully obtain

appellate relief on the basis of a position contrary to

that which the party advanced in the lower court.

Phinney v Perlmutter, 222 Mich App 513, 544; 564

NW2d 532 (1997). Arguably, we should thus dismiss

appellant’s argument at the outset because appellant

affirmatively agreed to the entry of the May 19 order,

which, by its operation, resulted in the entry of the

August 20 order that he now claims is void. Nonethe-

less, we will review appellant’s argument because this

Court may review an unpreserved issue if it presents a

question of law and all the facts necessary for its

resolution are before the Court. Rudolph Steiner Sch of

Ann Arbor v Ann Arbor Charter Twp, 237 Mich App

721, 740; 605 NW2d 18 (1999).

A trial court’s interpretation and application of a

court rule is a question of law that this Court reviews de

novo. See Marketos v American Employers Ins Co, 465

Mich 407, 412; 633 NW2d 371 (2001). Court rules are

subject to the same rules of construction as statutes.

Vyletel-Rivard v Rivard, 286 Mich App 13, 21; 777

NW2d 722 (2009). Our goal in interpreting the meaning

of a court rule is to give effect to the intent of the

drafters. Id. We first examine the language used. Kloian

v Domino’s Pizza, LLC, 273 Mich App 449, 458; 733

NW2d 766 (2006). The drafters are assumed to have

intended the effect of the language plainly expressed,

and we must give every word its plain and ordinary

2010] In re L

EETE

STATE

655

meaning. Brausch v Brausch, 283 Mich App 339, 348;

770 NW2d 77 (2009). If the language is plain and

unambiguous, then we must apply the language as

written. Vyletel-Rivard, 286 Mich App at 22. In such

instances, judicial construction is neither necessary nor

permitted. Kloian, 273 Mich App at 458.

At issue in the present matter is MCR 2.602, which

governs the “entry of judgments and orders.” MCR

2.602(B), titled “Procedure of Entry of Judgments and

Orders,” provides:

An order or judgment shall be entered by one of the

following methods:

(1) The court may sign the judgment or order at the time

it grants the relief provided by the judgment or order.

(2) The court shall sign the judgment or order when its

form is approved by all the parties and if, in the court’s

determination, it comports with the court’s decision.

(3) Within 7 days after the granting of the judgment or

order, or later if the court allows, a party may serve a copy

of the proposed judgment or order on the other parties,

with a notice to them that it will be submitted to the court

for signing if no written objections to its accuracy or

completeness are filed with the court clerk within 7 days

after service of the notice. The party must file with the

court clerk the original of the proposed judgment or order

and proof of its service on the other parties.

***

(4) A party may prepare a proposed judgment or order

and notice it for settlement before the court. [Emphasis

added.]

Thus, under MCR 2.602(B), for an order to be valid, it

must be entered in one of four ways: it may be signed at

the time relief is granted; it may be signed when its

“form” is approved by all the parties and if, in the

656 290 M

ICH

647 [Nov

court’s determination, it comports with the court’s

decision; it may be entered pursuant to the “seven-day

rule”; or, it may be prepared and noticed for settlement

before the court.

The only relevant subrule of MCR 2.602(B) for pur-

poses of this appeal is MCR 2.602(B)(2). The language

of that provision is plain and unambiguous. An order

must be signed and entered if two requirements are

met: (1) the order’s “form” is approved by all the parties

and (2) in the court’s determination, the order is in

conformity with the court’s decision. The term “form”

is not defined by the court rule and, in such instances,

this Court may rely on dictionary definitions to give

terms their plain and ordinary meanings. See Kloian,

273 Mich App at 458-459. Black’s Law Dictionary (9th

ed) defines “form” as “[t]he outer shape or structure of

something, as distinguished from its substance or mat-

ter,” or as an “[e]stablished...procedure.” Thus, for

the first condition of MCR 2.602(B)(2) to be met, the

parties must agree regarding the order’s structure or, if

relevant, any procedure that it may establish for the

disposition of the matter before the court.

Although the probate court initially denied both

parties’ motions for summary disposition at the motion

hearing on May 19, 2009, indicating that the case

needed “to be developed a little more,” it retracted this

initial disposition and adopted the parties’ suggested

course of proceeding with the matter. Specifically, ap-

pellee’s counsel informed the court that he had pre-

sented appellant’s counsel with a proposed form and

order, indicating that if, within 90 days of the motion

hearing, appellant did not present clear and convincing

evidence that Frederick had died more than 120 hours

after Barbara, appellee’s motion for summary disposi-

tion would be granted. The probate court then stated

2010] In re L

EETE

STATE

657

that it would follow this suggestion and would sign the

proposed order if “both [parties] agree to the form of

th[e] order....” Subsequently, the court signed an

order consistent with appellee’s suggestion, which both

parties’ counsels also signed, each writing above his or

her signature, “approved as to form.”

Given these facts, the probate court entered the May

19 order consistently with MCR 2.602(B)(2). The first

requirement of MCR 2.602(B)(2) was met: both parties

agreed to the form of the order, which in this case

involved the entry of a subsequent order granting

summary disposition for appellee if certain conditions

were not met. Counsels’ signatures on the order, juxta-

posed with the phrase “approved as to form” above each

signature, are evidence that the order’s form was ap-

proved by all parties. Moreover, the second requirement

of MCR 2.602(B)(2) was also met, given the court’s

unequivocal statement at the motion hearing that it

would follow appellee’s suggested course of action so

long as “both [parties] agree to the form of th[e]

order....” The parties did so agree, and the court

signed the order. In addition, because a court speaks

through its written orders, the court’s signature on the

May 19 order implies that the substance of the order

was in conformity with its decision to follow appellee’s

suggested course of action. Accordingly, the May 19

order was properly entered under MCR 2.602(B)(2).

Further, because the May 19 order was validly en-

tered and the August 20 order was entered pursuant to

the procedure established in the May 19 order, we also

conclude that the August 20 order was validly entered

under the same subrule. As already explained, the

August 20 order was entered by operation of the proce-

dure set forth in the May 19 order. It would be illogical

for us to conclude that the August 20 order was not

658 290 M

ICH

647 [Nov

validly entered pursuant to MCR 2.602(B)(2), given

that the parties agreed to the form of the May 19 order,

which specifically contemplated entry of the August 20

order and was signed by the court consistently with its

decision. In other words, under the circumstances of

this case, the parties’ initial agreement about form in

the first order was imputed to all subsequent orders

entered consistently with that original agreement.

Thus, because the parties agreed with respect to form

and the order was consistent with the court’s decision,

the August 20 order was validly entered pursuant to

MCR 2.602(B)(2).

Lastly, for us to declare that the August 20 order was

invalidly entered would allow litigants to haphazardly

agree to the entry of orders that envision the entry of

additional orders and later escape the effect of those

subsequently entered orders on appeal by declaring the

later orders void. The outcome would be a waste of

judicial resources and would unnecessarily increase the

cost of litigation to the parties’ detriment. Moreover, we

note, contrary to appellant’s argument, that nothing in

the plain language of MCR 2.602(B)(2) explicitly pro-

hibits the type of conditional order that was entered in

this matter. Nor do we agree with appellant’s argument

that the order was not in conformity with the probate

court’s decision. Accordingly, we conclude that both the

May 19 and August 20 orders were validly entered

pursuant to MCR 2.602(B)(2).

III. SUMMARY DISPOSITION

Appellant next contends that the probate court erred

by granting appellee summary disposition. We review

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

disposition. Royal Prop Group, 267 Mich App at 713.

Because the probate court’s August 20 order necessarily

2010] In re L

EETE

STATE

659

relied on facts outside the pleadings, we will treat the

court’s grant of summary disposition as based on MCR

2.116(C)(10). A motion is properly granted under this

subrule if no genuine issue of material facts exists and

the moving party is entitled to judgment as a matter of

law. Royal Prop Group, 267 Mich App at 713. In

reviewing a lower court’s decision, we must view all the

submitted admissible evidence in a light most favorable

to the nonmoving party. In re Smith Estate, 252 Mich

App 120, 123; 651 NW2d 153 (2002). “A genuine issue of

material fact exists when the record, giving the benefit

of reasonable doubt to the opposing party, leaves open

an issue upon which reasonable minds might differ.”

West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d

468 (2003).

At the outset, we note that appellant’s argument on

appeal is responsive not to the existence of a factual

question, but to an interpretation of the applicable law.

Specifically, appellant posits that we should reverse the

probate court’s August 20 order because it made no

findings about the applicability and effect of Indiana

law, whether EPIC applied, whether a contrary intent

precluded the application of MCL 700.2702(3), and

whether an exception to the 120-hour rule applied, see

MCL 700.2702(4). Appellant also asserts that the pro-

bate court applied the incorrect standard of proof.

We disagree that reversal is required on the basis of

the probate court’s alleged failure to make any conclu-

sions with regard to the applicable law. This position is

without support in the record. Rather, the probate

court—by adopting appellee’s suggested course of ac-

tion at the May 19 motion hearing, which appellant

agreed to in form only, and by entering the August 20

order in conformity therewith—concluded that appel-

lee’s interpretation of the relevant statutes was correct

660 290 M

ICH

647 [Nov

and narrowed the dispositive issue to whether Freder-

ick passed away more than 120 hours after Barbara

under MCL 700.2702(3). Thus, our review is limited to

whether the probate court’s interpretation of EPIC was

correct, which is a question of law we review de novo. In

re Clarence W Temple & Florence A Temple Marital

Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008).

The same rules of construction apply as those discussed

earlier in reference to court rules.

A. DOES MICHIGAN PROBATE LAW APPLY?

In 1998, the Michigan Legislature enacted EPIC,

1998 PA 386, which became effective April 1, 2000. The

new law, which repealed and replaced the Revised

Probate Code, 1978 PA 642, MCL 700.1 et seq., was

intended to modernize probate practice by simplifying

and clarifying the law concerning decedents’ affairs and

by creating a more efficient probate system. MCL

700.1201; MCL 700.1303(3). Consistently with this pur-

pose, the Legislature expanded the probate court’s

powers and included “provisions designed to reduce

court involvement in trusts and estates.” In re Nestor-

ovski Estate, 283 Mich App 177, 190; 769 NW2d 720

(2009). Accordingly, EPIC confers on Michigan probate

courts the exclusive legal and equitable jurisdiction of

matters that “relate[] to the settlement of a deceased

individual’s estate, whether [the decedent died] testate

or intestate, [if the decedent] was at the time of death

domiciled in the county or was at the time of death

domiciled out of state leaving an estate within the

county to be administered ....’” MCL 700.1302;

Nestorovski, 283 Mich App at 189. In addition, MCL

700.1303(1) provides probate courts with further juris-

dictional authority, which includes, in part, concurrent

legal and equitable jurisdiction to determine a property

2010] In re L

EETE

STATE

661

right or interest, authorize the partition of property,

authorize or compel specific performance of a contract

in a joint or mutual will, and ascertain if individuals

have survived. EPIC also explicitly states that it applies

to “[a] nonresident’s property that is located in this

state....”MCL700.1301(b).

Appellant contends that the probate court’s failure to

consider the effect and application of Indiana laws of

survivorship requires reversal and remand. We dis-

agree. Implicit in the probate court’s decision was the

conclusion that Indiana law was inapplicable to the

administration of Frederick’s estate and that Michigan

law was the correct choice of law. We see no error in this

ruling. Although Frederick had a residence, and died, in

Indiana, appellant filed an affidavit of domicile with the

probate court that listed Frederick’s domicile as 804

Lakeside Drive, Mackinaw City, Michigan. Thus, appli-

cation of EPIC to the administration of Frederick’s

estate was appropriate. See MCL 700.1301(a).

Even if we were to assume that Frederick was an

Indiana resident, we would reach the same conclusion.

Michigan probate courts have jurisdiction over property

located in this state, including property that is owned

by a nonresident decedent, MCL 700.1302, and EPIC

explicitly applies to a nonresident’s property located in

Michigan, MCL 700.1301(b). Moreover, neither Freder-

ick’s will nor any other documentary evidence evinces

an intent that Indiana law should apply to the admin-

istration of his estate. And while Indiana undoubtedly

has some interest in the administration of the estates of

its deceased residents, Michigan’s interest in the

present matter is greater, given the fact that the prop-

erty at issue is located in Michigan and in value

comprises the bulk of the assets of Frederick’s estate.

See Frydrych v Wentland, 252 Mich App 360, 363-364;

662 290 M

ICH

647 [Nov

652 NW2d 483 (2002) (explaining choice-of-law analy-

sis). Thus, application of EPIC, as opposed to Indiana

law, was appropriate.

B. DOES EPIC OR FORMER LAW APPLY?

Appellant next argues that EPIC is inapplicable

because the deed and Frederick’s will predate EPIC’s

effective date and because its application would affect

an “accrued right.” We disagree. EPIC specifically “ap-

plies to a governing instrument executed by a decedent

dying after [April 1, 2000, as long as it does not] impair

an accrued right....” MCL 700.8101(2)(a) and (d).

Further, “[a] rule of construction . . . provided in this

act applies to a governing instrument executed before

[April 1, 2000] unless there is a clear indication of a

contrary intent.” MCL 700.8101(2)(e). Thus, EPIC ap-

plies to a governing instrument executed before EPIC

came into effect, as long as it does not affect an accrued

right and as long as the governing instrument does not

contain a contrary intent. See Temple Marital Trust,

278 Mich App at 127-128. Under EPIC, “governing

instrument” is defined as including both a will and a

deed. MCL 700.1104(k).

The governing instrument here, be it Frederick’s will

or the deed, was created before EPIC became effective,

but neither instrument contains an explicit intent that

EPIC should not apply. There is no mention in either

instrument that some other law or rule should be

enforced. And although both instruments were created

before EPIC’s effective date of April 1, 2000, no accrued

right therein would be impaired by applying EPIC. This

Court has recognized that an accrued right is similar to

one that has vested. Smith Estate, 252 Mich App at

127-128. However, in the context of EPIC, “an ‘accrued

right’...mean[s] something other than a right under a

2010] In re L

EETE

STATE

663

will upon the testator’s death . . . [and] is a legal right to

the exclusion of any other right or claim to it.” Id.at

128-129. In other words, even though a devise under a

will vests upon the death of the testator, it is not an

accrued right under EPIC because “it is not so fixed

that it cannot be changed.” Id. at 128. This understand-

ing of the term “accrued right” is consistent with MCL

700.8101(2)(d), which states, in part, “If a right is

acquired . . . upon the expiration of a prescribed period

of time that commences to run by the provision of a

statute before [April 1, 2000], the provision remains in

force with respect to that right.” Appellant obtained no

fixed or accrued right by way of Frederick’s will before

April 1, 2000. See MCL 700.8101(2)(d). Nor did he

acquire such a right at the time of Frederick’s and

Barbara’s deaths because his interest in the Mackinaw

City property was still subject to change. Accordingly,

EPIC governs the present matter, and the probate court

did not err by concluding the same.

C. DOES EPIC’S 120-HOUR RULE APPLY?

At the outset, we note that the 120-hour rule, or

simultaneous-death provision, is not new to Michigan

probate law. Its origin is related to the problematic

administration of the common-law rule that an heir or

devisee had to survive the testator by only an instant in

order to receive a donative transfer under the testator’s

will. 1 Restatement Property, 3d, Wills and Other

Donative Transfers, § 1.2, pp 32-33. Administration of

this common-law concept became problematic in the

early twentieth century when vehicular accidents re-

sulting in simultaneous deaths became more common.

Id. at 33. Thus, in the context of simultaneous deaths,

some new rule was necessary to ensure that each

decedent’s property passed to his or her heirs and avoid

664 290 M

ICH

647 [Nov

the expense of double probate administration. Id.

Michigan first adopted a survival requirement in 1941,

see Uniform Simultaneous Death Act, 1941 PA 73,

former MCL 720.101 through 720.108; and a survival-

period requirement of 120 hours in 1978, see Revised

Probate Code, 1978 PA 642, specifically former MCL

700.107 and 700.132. The latter requirement is meant

to ensure that a decedent’s property passes to a benefi-

ciary who can personally benefit, as opposed to a

beneficiary who became deceased a short time later,

meaning that the property would ultimately pass to

that beneficiary’s heirs. 1 Restatement, § 1.2, p 34.

In Michigan, the 120-hour survival requirement did not

always apply to nonprobate transfers, such as joint estates

with rights of survivorship. In re VanConett Estate, 262

Mich App 660, 667-668; 687 NW2d 167 (2004) (explaining

that jointly held property with rights of survivorship

typically passes automatically to the surviving tenant

upon one tenant’s death and is not subject to devise under

a will). While the 120-hour rule was only applicable to

wills under the Revised Probate Code, see former MCL

700.132, EPIC expanded the 120-hour rule to cover all

events, governing instruments, and coownerships. Jacobs,

EPIC 386 PA 1998—Rules of construction and interpre-

tation for transfers upon death, 79 Mich B J 345 (2000);

compare former MCL 700.107, former MCL 700.132, and

MCL 700.2702.

Appellant asserts that EPIC’s 120-hour rule is inappli-

cable because (1) a “contrary intention” exists, embodied

in Frederick’s will, see MCL 700.2701, and (2) an excep-

tion to the 120-hour rule applies, see MCL 700.2702(4).

1. MCL 700.2701

The provisions appellant relies on, MCL 700.2701

and MCL 700.2702, are in EPIC’s article II (regarding

2010] In re L

EETE

STATE

665

intestacy, wills, and donative transfers) part 7 (regard-

ing rules of construction applicable to governing instru-

ments). MCL 700.2701 provides:

In the absence of a finding of a contrary intention, the

rules of construction in this part control the construction of

a governing instrument. The rules of construction in this

part apply to a governing instrument unless the application

of a particular section is limited by its terms to a specific

type of provision or governing instrument. [Emphasis

added.]

MCL 700.1104(k) defines “governing instrument” as

used in EPIC to mean

a deed; will; trust; insurance or annuity policy; account

with POD [pay on death] designation; security registered

in beneficiary form (TOD [transfer on death]); pension,

profit-sharing, retirement, or similar benefit plan; instru-

ment creating or exercising a power of appointment or a

power of attorney; or dispositive, appointive, or nominative

instrument of any similar type. [Emphasis added.]

Clearly, EPIC defines “governing instrument”

broadly. The term includes both a will and a deed. MCL

700.2701 is plain and unambiguous. It indicates that

the rules of construction articulated in part 7 of EPIC,

as they pertain to governing instruments, will not apply

if the relevant governing instrument contains a con-

trary intent. Thus, there must be some explicit recog-

nition in that instrument that EPIC will not apply. This

intent may be manifested, for example, by a specific

directive that EPIC does not apply or that other rules

apply, such as those articulated in the former Revised

Probate Code or in another state’s probate code. In this

case, neither the deed nor the will, nor any other

instrument, declares such a contrary intent. Both in-

struments are silent on the matter. Thus, MCL

700.2701 does not function to preclude application of

666 290 M

ICH

647 [Nov

part 7 of EPIC, which includes the simultaneous-death

provision articulated in MCL 700.2702.

2. MCL 700.2702

The section immediately following MCL 700.2701 is

EPIC’s simultaneous-death provision. MCL 700.2702(3),

provides, in relevant part:

Except as provided in subsection (4), if it is not estab-

lished by clear and convincing evidence that 1 of 2 co-

owners with right of survivorship survived the other co-

owner by 120 hours,

of the co-owned property passes as if

1 had survived by 120 hours and

as if the other had

survived by 120 hours. If there are more than 2 co-owners

and it is not established by clear and convincing evidence

that at least 1 of them survived the others by 120 hours, the

property passes in the proportion that 1 bears to the whole

number of co-owners. For the purposes of this subsection,

“co-owners with right of survivorship” includes joint ten-

ants, tenants by the entireties, and other co-owners of

property or accounts held under circumstances that en-

titles 1 or more to the whole of the property or account on

the death of the other or others. [Emphasis added.]

There is no dispute between the parties regarding the

meaning of this language and, indeed, we are of the

view that this language is clear. If two coowners with

rights of survivorship die within 120 hours of one

another, then the property does not pass in whole to the

last surviving coowner but is divided in equal shares

between each coowner’s estate. Conversely, if clear and

convincing evidence shows that one coowner survived

the other by 120 hours or more, then the estate of the

longer surviving coowner receives the whole property

consistently with his or her right of survivorship.

The “clear and convincing” evidence standard in the context of the

simultaneous-death provision was newly included under EPIC. Compare

2010] In re L

EETE

STATE

667

MCL 700.2702(4) provides a list of exceptions to the

general rule established in MCL 700.2702(3). It states:

Survival by 120 hours is not required under any of the

following circumstances:

(a) The governing instrument contains language dealing

explicitly with simultaneous deaths or deaths in a common

disaster and that language is operable under the facts of

the case. Language dealing explicitly with simultaneous

deaths includes language in a governing instrument that

creates a presumption that applies if the evidence is not

sufficient to determine the order of deaths.

(b) The governing instrument expressly indicates that an

individual is not required to survive an event, including the

death of another individual, by any specified period or ex-

pressly requires the individual to survive the event by a

specified period. Survival of the event or the specified period,

however, must be established by clear and convincing evi-

dence.

would cause a nonvested property interest or a power of

appointment to fail to qualify for validity under section

2(1)(a), (2)(a), or (3)(a) of the uniform statutory rule against

perpetuities, 1988 PA 418, MCL 554.72, or to become invalid

under section 2(1)(b), (2)(b), or (3)(b) of the uniform statutory

rule against perpetuities, 1988 PA 418, MCL 554.72.

(d) The application of a 120-hour requirement of sur-

vival to multiple governing instruments would result in an

unintended failure or duplication of a disposition. Survival,

however, must be established by clear and convincing

evidence.

Thus, under these limited, articulated circumstances,

the 120-hour rule is inapplicable.

former MCL 700.107 and former MCL 700.132 with MCL 700.2702. This

evidentiary burden serves to resolve doubtful questions in favor of

nonsurvival and better serves the decedent’s intent that his or her

property pass to heirs and only to persons who can personally benefit

from it. 1 Restatement, § 1.2, p 35.

668 290 M

ICH

647 [Nov

Because there is no evidence in the present case

demonstrating that Frederick survived Barbara by

more than 120 hours—and appellant identifies no such

evidence on appeal, in the record or otherwise, and

makes no argument relating to the substance of this

issue—the 120-hour rule applies and one-half of the

Mackinaw City property vested in Barbara’s estate,

unless appellant can substantiate that one of the excep-

tions in MCL 700.2702(4) is applicable. The only excep-

tion that appellant argues is applicable is MCL

700.2702(4)(d). However, we disagree. While this case

does involve multiple governing instruments—

Frederick’s 1974 will and the 1996 deed—we are not of

the view that application of the 120-hour rule would

result in an “unintended failure... of a disposition.”

Certainly, Frederick indicated in his 1974 will that

Barbara must survive him by more than 30 days in

order to receive a full ownership interest in the Macki-

naw City property. At the time, Frederick was presum-

ably the sole owner of the property. However, Frederick

and Barbara executed a quitclaim deed in 1996 that

conveyed the Mackinaw City property to Barbara and

Frederick as tenants by the entirety. Clearly, as is

evident from the execution of the deed, Frederick’s

intent with respect to the disposition of the Mackinaw

City property changed in 1996. “A conveyance by a

testator of... his property after making his will re-

vokes the will.” In re Smith, 191 Mich 694, 701; 158 NW

148 (1916); cf. MCL 700.2507. Thus, a portion of

Frederick’s will was effectively revoked with respect to

this particular property because the conveyance was

inconsistent with the will’s provision regarding the

disposition of the Mackinaw City property at Freder-

ick’s death. And, accordingly, it cannot be said that the

application of the 120-hour rule under the present

2010] In re L

EETE

STATE

669

circumstances would result in an unintended failure of

disposition. Rather, adherence to the 1974 will would

have that effect.

Accordingly, appellant has failed to show that any of

the exceptions to the 120-hour rule are applicable. The

trial court did not err by applying the 120-hour rule to

the present circumstances. And because clear and con-

vincing evidence does not show that Frederick survived

Barbara by 120 hours or more, the Mackinaw City

property is properly divided between their respective

estates consistently with MCL 700.2702(3).

D. DID THE PROBATE COURT APPLY

THE WRONG STANDARD OF PROOF?

Finally, we also reject appellant’s last argument that

the probate court applied the incorrect standard of

proof. Appellant takes issues with the court’s written

statement in its August 20 order, which stated, “There

is no clear and convincing evidence that Frederick

Deland Leete, III, survived Barbara R. Leete by 120

hours....”However, appellants’s allegation takes the

probate court’s statement out of context. The clear and

convincing evidentiary burden is mandated by MCL

700.2702(1), which provides, in part: “[A]n individual

who is not established by clear and convincing evidence

to have survived an event, including the death of

another individual, by 120 hours is considered to have

predeceased the event.” This provision establishes a

party’s burden of proof with regard to the 120-hour

rule. Thus, when the probate court’s order is read as a

whole, it means that appellant failed to bring forth any

clear and convincing evidence, as required by the stat-

ute, that would create a question of fact, when viewed in

a light most favorable to appellant, that Frederick

survived Barbara by 120 hours. There is no indication

670 290 M

ICH

647 [Nov

in the probate court’s August 20 order that it applied

the incorrect standard of proof. The trial court properly

granted summary disposition in appellee’s favor.

Affirmed.

2010] In re L

EETE

STATE

671

AMERICAN FEDERATION OF STATE, COUNTY & MUNICIPAL

EMPLOYEES, COUNCIL 25, AFL-CIO v HAMTRAMCK HOUSING

COMMISSION

Docket No. 293505. Submitted November 3, 2010, at Detroit. Decided

November 18, 2010, at 9:00 a.m.

American Federation of State, County & Municipal Employees,

Council 25, AFL-CIO, and its affiliated Local 666 brought an action

in the Wayne Circuit Court against the Hamtramck Housing

Commission, seeking, under the arbitration provision of the par-

ties’ collective-bargaining agreement, arbitration of a dispute. The

court, Jeanne Stempien, J., denied plaintiff’s motion for summary

disposition and dismissed the case, holding that plaintiff had

waived the right to arbitrate the grievance because the delay in

filing for arbitration was not reasonable. Plaintiff appealed.

The Court of Appeals held:

The collective-bargaining agreement clearly required arbitra-

tion of unresolved grievances that had been processed through the

grievance procedure. Nothing in the agreement explicitly excludes

determination of the issue of timeliness by the arbitrator. In light

of the presumption in favor of arbitrability, and the fact that

nothing in the language of the agreement provides positive assur-

ance that the arbitration clause does not cover the question of

timeliness, it must be concluded that the arbitrator, not the trial

court, must decide the issue. Allowing the arbitrator to determine

the question of timeliness is consistent with the purpose of

arbitration. Absent specific contractual language to the contrary,

whether the demand for arbitration is made before or after

expiration of the contract is not determinative of the arbitrability

of the grievance. The trial court, on remand, must enter an order

compelling arbitration.

Reversed and remanded.

1. L

ABOR

ELATIONS —

RBITRATION —

UTY TO

RBITRATE

The duty to arbitrate grievances arises from the contractual agree-

ment between an employer and its employees; where an employer

and a union have contractually agreed to arbitration, in the

672 290 M

ICH

672 [Nov

absence of explicit contractual direction to the contrary, all doubts

regarding the proper forum should be resolved in favor of arbitra-

tion.

2. A

RBITRATION —

COPE OF

RBITRATION —

RESUMPTION OF

RBITRABILITY

Any ambiguity concerning whether a specific issue falls within the

scope of an arbitration clause, such as whether a claim is timely,

must be resolved in favor of submitting the question to the

arbitrator for resolution; there is a presumption of arbitrability

unless it may be said with positive assurance that the arbitration

clause is not susceptible of an interpretation that covers the

asserted dispute; doubts should be resolved in favor of coverage.

3. A

RBITRATION —

RBITRABILITY OF

RIEVANCES —

IMING OF

EMAND FOR

RBITRATION

Whether a demand for arbitration is made before or after the

expiration of the contract containing an arbitration clause is not

determinative of the arbitrability of a grievance under the contract

absent specific contractual language to the contrary.

Cassandra D. Harmon-Higgins and Miller Cohen,

P.L.C. (by Bruce A. Miller and Ada A. Verloren), for

plaintiff.

Plunkett Cooney (by Ernest R. Bazzana) for defendant.

Before: M

URPHY

, C.J., and M

ETER

and S

HAPIRO

,JJ.

URIAM

. Plaintiff appeals as of right a circuit court

order denying plaintiff’s motion for summary disposition

and dismissing its complaint for arbitration on the basis

that plaintiff “waived the right to arbitrate the subject

grievance because the delay in filing for arbitration was

not reasonable....”Wereverse and remand for the entry

of an order compelling arbitration because the issue

whether the grievance was not arbitrable because of

laches was an issue for the arbitrator to decide, not the

trial court.

We review de novo a trial court’s decision on a motion

for summary disposition. Maiden v Rozwood, 461 Mich

2010] AFSCME

AMTRAMCK

OUSING

OMM

673

109, 118; 597 NW2d 817 (1999). Although plaintiff

was the party who moved for summary disposition,

the trial court granted judgment in favor of defen-

dant pursuant to MCR 2.116(I)(2) (“If it appears to

the court that the opposing party, rather than the

moving party, is entitled to judgment, the court may

render judgment in favor of the opposing party.”).

Whether a court or an arbitrator should decide

whether laches and waiver preclude arbitration of a

grievance is a question of law also subject to review de

novo. See Gregory J Schwartz & Co, Inc v Fagan, 255

Mich App 229, 231; 660 NW2d 103 (2003).

Procedural questions such as timeliness are gener-

ally left to the arbitrator. Brown v Holton Pub Sch, 397

Mich 71, 73; 243 NW2d 255 (1976). “The duty to

arbitrate grievances arises from [the] contractual

agreement between an employer and its employees.”

Ottawa Co v Jaklinski, 423 Mich 1, 22; 377 NW2d 668

(1985) (opinion by W

ILLIAMS

, C.J.). Where an employer

and a union have contractually agreed to arbitration, in

the absence of explicit contractual direction to the

contrary, all doubts regarding the proper forum should

be resolved in favor of arbitration:

[A]ny ambiguity concerning whether a specific issue

falls within the scope of arbitration, such as whether a

claim is timely, must be resolved in favor of submitting the

question to the arbitrator for resolution. See AT&T Tech-

nologies, [Inc v Communications Workers of America, 475

US 643, 650 ;106 S Ct 1415; 89 L Ed 2d 648 (1986)]. In

other words, there is a presumption of arbitrability “ ‘un-

less it may be said with positive assurance that the arbi-

tration clause is not susceptible of an interpretation that

covers the asserted dispute. Doubts should be resolved in

favor of coverage.’ ” Id., quoting United Steelworkers of

America v Warrior & Gulf Navigation Co (On Remand),

363 US 574, 582-583; 80 S Ct 1347;4LEd2d1409 (1960).

674 290 M

ICH

672 [Nov

[Amtower v William C Roney & Co (On Remand), 232 Mich

App 226, 234-235; 590 NW2d 580 (1998).]

[

]

The arbitration provision in the parties’ collective-

bargaining agreement (CBA) provides:

Any unresolved grievances which relate to the interpre-

tation, application, or enforcement of any specific article or

section of this contract, or any supplementary agreement

or letters and memorandums of understanding appended

to this contract, which have been fully processed through

the last step of the grievance procedure, shall be submitted

to arbitration in strict accordance with the following:

***

In any matter submitted to an arbitrator pursuant to

this Agreement, the arbitrator shall strictly limit his/her

decision to the interpretation, application or enforcement

of this agreement and he/she shall be without power and

authority to make any decision contrary to, or inconsistent

with, or modifying or varying in any way, the terms of this

Agreement.

The language of the provision clearly requires arbi-

tration of unresolved grievances that have been pro-

cessed through the grievance procedure. Moreover,

there is nothing in the provision that explicitly excludes

the issue of timeliness from the arbitrator. In light of

the presumption in favor of arbitrability, and the fact

that nothing in the language provides “positive assur-

ance” that the arbitration clause does not cover the

question of timeliness, we are bound to conclude that it

is the arbitrator, not the trial court, that must decide

the issue. Amtower, 232 Mich App at 235 (quotation

marks and citations omitted).

Although Amtower itself is not a labor case, it draws its applicable

legal principles from cases that are labor cases. Accordingly, we conclude

that it is appropriate to cite Amtower in this context.

2010] AFSCME

AMTRAMCK

OUSING

OMM

675

Furthermore, we conclude that allowing the arbitrator

to determine the question of timeliness is consistent with

the purpose of arbitration. Allowing procedural challenges

to be heard by a court rather than by the arbitrator runs

contrary to the presumption of arbitrability and would

leave every arbitration subject to piecemeal litigation, a

result contrary to a central purpose of arbitration. See

John Wiley & Sons, Inc v Livingston, 376 US 543, 558; 84

S Ct 909; 11 L Ed 2d 898 (1964), holding that reserving

procedural issues for the courts would create “the difficult

task of separating related issues” as well as “eliminate the

prospect of a speedy arbitrated settlement of the dispute,

to the disadvantage of the parties (who, in addition, will

have to bear increased costs),” all of which are “contrary

to the aims of national labor policy.”

Because we conclude that the determinations regarding

timeliness and the application of the defense of laches

must be made by the arbitrator, we need not decide

whether the trial court erred in its analysis of the issue.

Finally, we disagree with defendant’s contention that

it was not required to arbitrate the grievance because

the CBA expired before plaintiff demanded arbitration.

Although defendant cites Ottawa Co, 423 Mich 1, that

case does not support defendant’s position. In that case,

the Court held that

the right to grievance arbitration survives the expiration of

the collective bargaining agreement when the dispute

concerns the kinds of rights which could accrue or vest

during the term of the contract.... [S]uch a rule recog-

nizes and sustains both fundamental principles of law and

the right of employees and employers to develop the

common law of labor relations in their collective bargaining

agreements. [Id. at 22 (opinion by W

ILLIAMS

, C.J.).]

[

]

See also Ottawa Co, 423 Mich at 24 n 9 (opinion by W

ILLIAMS

, C.J.), and

its approval of the holding in Northern California Dist Council of Hod

Carriers v Pennsylvania Pipeline, Inc, 103 Cal App 3d 163; 162 Cal Rptr

851 (1980),

676 290 M

ICH

672 [Nov

Therefore, absent specific contractual language to the

contrary, whether the demand for arbitration is made

before or after expiration of the contract is not deter-

minative of the arbitrability of the grievance.

Reversed and remanded to the trial court for an

entry of an order compelling arbitration. We do not

retain jurisdiction. Plaintiff may tax costs pursuant to

MCR 7.219.

cert den 449 US 874 (1980), that the right to arbitrate “vests” on the date

the alleged grievance arises, and is thus enforceable even if it is not

demanded until after the contract expires.

Contrary to defendant’s assertion at oral argument, AFSCME, Coun-

cil 25 v Wayne Co, 290 Mich App 348; ___ NW2d ___ (2010), is

inapplicable to the present case. In AFSCME, the language of the

contract explicitly provided that arbitration would apply only to “ ‘dif-

ferences...aris[ing] between the Employer and the Union during the

term of this agreement ....’”Id. at 351 (emphasis added). Given that the

dispute in AFSCME did not arise until more than a month after the

relevant agreement had expired, we concluded that the dispute did not

fall within the scope of the arbitration defined by the contract. By

contrast, in this case, there is no basis to exclude the substantive dispute

from arbitration and the only issue concerns the timing of the demand for

arbitration—something that was not at issue in AFSCME. AFSCME did

not deal with an attempt to divide a dispute into arbitrable and

nonarbitrable portions. Instead, it was controlled by explicit contract

language taking the entire dispute out of mandatory arbitration and it

provides no guidance on the issue before us here.

2010] AFSCME

AMTRAMCK

OUSING

OMM

677

OLIVER v SMITH

Docket No. 292585. Submitted October 12, 2010, at Grand Rapids.

Decided November 23, 2010, at 9:00 a.m.

Gary Oliver filed a complaint in the Wayne Circuit Court against

police officer Cory Smith and others, asserting claims of assault

and battery, negligence, and civil rights violations arising out of

Smith’s alleged use of excessive force when arresting Oliver. Smith

moved for summary disposition under MCR 2.116(C)(7) and (10),

arguing that he was entitled to governmental immunity under

MCL 691.1407(2) and (7) because his conduct in handcuffing

Oliver during the arrest had not amounted to gross negligence.

The court, John A. Murphy, J., denied the motion without preju-

dice, concluding that while Oliver had not produced documentary

evidence establishing a genuine issue of material fact regarding

whether Smith’s conduct caused Oliver to suffer an injury, sum-

mary disposition was premature because discovery had not been

completed and Oliver still had time to produce documentary

evidence of an injury. Smith appealed. The Court of Appeals

affirmed, holding that handcuffing a person too tightly may

constitute gross negligence for purposes of governmental immu-

nity if physical injury resulted. The Court of Appeals also held that

Smith had failed to meet his initial burden of providing evidence in

support of his motion for summary disposition, however the Court

of Appeals also indicated that Smith might be entitled to summary

disposition at the conclusion of discovery. 269 Mich App 560

(2006). Following the continuation of discovery in the trial court,

Smith filed another motion for summary disposition, which the

trial court denied. The trial court concluded that evidence that

Smith had laughed when Oliver complained that the handcuffs

were on too tightly suggested that Smith may not have been acting

in good faith, and thus there was a question of material fact for the

jury. The trial court also held that the handcuffing had been a

ministerial, as opposed to a discretionary, act. Smith appealed.

The Court of Appeals held:

1. Smith is a lower-level governmental employee not entitled

to the absolute immunity provided by MCL 691.1407(5).

678 290 M

ICH

678 [Nov

2. Smith was acting within the scope of his authority and was

discharging a governmental function while arresting Oliver and

taking him into custody.

3. There was no evidence establishing that it was Smith’s acts

alone that were the one most immediate, efficient, and direct cause

preceding Oliver’s injury. Because it cannot be said that Smith’s

acts constituted the proximate cause of Oliver’s injuries, Smith

met his burden of proof in establishing his entitlement to govern-

mental immunity under MCL 691.1407(2). The trial court erred by

not granting Smith’s motion for summary disposition of Oliver’s

gross negligence claim under MCR 2.116(C)(7).

4. The question with regard to the assault and battery claim is

whether Smith acted in good faith when he selected how tightly to

handcuff Oliver, not whether Smith had a good-faith basis for

handcuffing Oliver. Under the facts indicating that the police

officers were faced with an unruly individual who was verbally

belligerent, actively disturbing a police inquiry, and creating a

dangerous situation for the officers, and who was intent on

physically resisting the arrest, it is likely that Oliver caused his

own injuries by his repeated efforts to physically thwart the

officers’ attempts to restrain him. Considering the vast array of

emotions that Smith’s laughter could signify and viewing the

evidence in the light most favorable to Oliver, Oliver’s reliance on

the laughter alone, without more, did not create a justiciable

question of fact with regard to whether Smith had acted in good

faith when he placed the cuffs on Oliver.

5. Although handcuffing a person under normal circumstances

incident to an arrest without resistance may be a ministerial act,

Oliver’s conduct in this case together with the concern for the

officers’ safety transformed the act of handcuffing Oliver into a

discretionary act. Smith’s actions were discretionary actions to

which governmental immunity applied.

Reversed.

1. G

OVERNMENTAL

MMUNITY —

OVERNMENTAL

MPLOYEES —

ORTS —

EGLI-

GENT

ORTS —

ORDS AND

HRASES —

ROXIMATE

AUSE

A trial court, when a defendant raises the affirmative defense of

individual governmental immunity to a negligent-tort claim, must

determine if the defendant caused an injury or damage while

acting in the course of employment or service or on behalf of the

defendant’s governmental employer and whether (1) the defen-

dant was acting or reasonably believed that he or she was acting

within the scope of his or her authority, (2) the governmental

agency was engaged in the exercise or discharge of a governmental

2010] O

LIVER V

MITH

679

function, and (3) the defendant’s conduct amounted to gross

negligence that was the proximate cause of the injury or damage;

“proximate cause,” in this context, is the one most immediate,

efficient, and direct cause preceding the injury or damage (MCL

691.1407[2]).

2. G

OVERNMENTAL

MMUNITY —

OVERNMENTAL

MPLOYEES —

ORTS —

NTEN-

TIONAL

ORTS

A trial court, when a defendant raises the affirmative defense of

individual governmental immunity to an intentional-tort claim,

must determine whether the defendant established that he or she

is entitled to individual governmental immunity by showing (1)

the acts were undertaken during the course of employment and

the defendant was acting, or reasonably believed that he or she

was acting, within the scope of his or her authority, (2) the acts

were undertaken in good faith, or were not undertaken with

malice, and (3) the acts were discretionary, as opposed to ministe-

rial.

3. G

OVERNMENTAL

MMUNITY —

OVERNMENTAL

MPLOYEES —

ORDS AND

HRASES —

ROSS

EGLIGENCE

“Gross negligence” by a governmental employee, for purposes of

governmental immunity, involves conduct so reckless as to dem-

onstrate a substantial lack of concern for whether an injury

results; the issue is a factual question for the jury if reasonable

jurors could honestly reach different conclusions regarding

whether the subject conduct constituted gross negligence; the

issue may be determined by the court in response to a motion for

summary disposition if reasonable minds could not differ regard-

ing whether the subject conduct constituted gross negligence.

4. G

OVERNMENTAL

MMUNITY —

OVERNMENTAL

MPLOYEES —

ORTS —

NTEN-

TIONAL

ORTS

A governmental employee enjoys a qualified right to immunity with

regard to alleged intentional torts if (1) the employee’s challenged

acts were undertaken during the course of employment and the

employee was acting, or reasonably believed that he or she was

acting, within the scope of his or her authority, (2) the acts were

undertaken in good faith, or were not undertaken with malice, and

(3) the acts were discretionary, rather than ministerial, in nature;

the “good faith” element is subjective in nature.

Law Offices of Scott E. Combs (by Scott E. Combs) for

Gary Oliver.

680 290 M

ICH

678 [Nov

Cummings, McClorey, Davis & Acho, P.L.C. (by Jo-

seph Nimako and Jeffrey R. Clark), for Cory Smith.

Before: M

URRAY

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

ELLY

and D

ONOFRIO

JJ.

URIAM

. In this tort action alleging excessive use

of force by a police officer, defendant Cory Smith

appeals as of right the trial court’s order denying his

motion for summary disposition based on governmental

immunity. This is the second time that this case is

before this Court. This Court previously affirmed the

trial court’s order denying a previous motion for sum-

mary disposition made by defendant.

Oliver v Smith,

269 Mich App 560; 715 NW2d 314 (2006). Because the

trial court erred by denying defendant’s motion for

summary disposition, we reverse.

The facts underlying this appeal were summarized in

our previous opinion:

The events giving rise to this appeal occurred on No-

vember 9, 2001. On that date, defendant, an officer with

the Dearborn Heights Police Department, arrested plaintiff

for interfering with a police officer after plaintiff was

disruptive and uncooperative while defendant and another

officer attempted to administer field sobriety tests to the

driver of a vehicle in which plaintiff was a passenger. As a

result of the arrest, plaintiff filed a complaint against the

city, the police department, and two police officers, includ-

ing defendant. The complaint contained claims of assault

and battery, negligence, and civil rights violations. In the

complaint, plaintiff alleged that defendant used excessive

force when he arrested him because he intentionally hand-

cuffed plaintiff’s wrists too tightly with the intent to inflict

harm. The complaint further alleged that defendant’s use

of excessive force caused plaintiff to suffer physical and

mental injuries. [Id. at 561-562.]

References to “defendant” in the singular are to Smith alone.

2010] O

LIVER V

MITH

681

Defendant Smith advanced his previous motion for

summary disposition under MCR 2.116(C)(7) and (10),

arguing that he was entitled to governmental immunity

under the governmental immunity act, MCL 691.1401

et seq., because his conduct did not amount to gross

negligence under MCL 691.1407(2)(c) and (7)(a). The

trial court denied the motion. In so ruling, the court

noted that plaintiff failed to produce documentary evi-

dence to establish a genuine issue of material fact

regarding whether defendant’s conduct caused plaintiff

to suffer an injury. However, the court, in essence,

concluded that summary disposition was premature

because discovery was not complete and plaintiff still

had time to produce documentary evidence of injury.

Defendant appealed as of right the denial of his

previous motion for summary disposition. On appeal,

this Court affirmed the trial court’s ruling. In reaching

this result, this Court held that handcuffing an indi-

vidual too tightly may constitute gross negligence for

purposes of governmental immunity if physical injury

results, and we also held that defendant failed to meet

his initial burden of providing evidence in support of his

motion for summary disposition. Oliver, 269 Mich App

at 566-568. However, this Court indicated that defen-

dant might be entitled to summary disposition at the

conclusion of discovery:

Because the trial court denied defendant’s motion for

summary disposition without prejudice, both parties will

have sufficient opportunity to compile additional evidence,

and, if he so desires, defendant can bring another motion

for summary disposition at the end of the discovery period.

[Id. at 568.]

The trial court granted summary disposition in favor of all defendants

except Smith on plaintiff’s state-law claims. The federal issues raised in

the case were removed to a federal court. Thus, only the state-law claims

against defendant are in dispute here.

682 290 M

ICH

678 [Nov

At the end of the discovery period, defendant filed

another motion for summary disposition, which the

trial court denied. Defendant has again appealed as of

right in this Court.

A trial court’s decision on a motion for summary

disposition is reviewed de novo. Dressel v Ameribank,

468 Mich 557, 561; 664 NW2d 151 (2003). “With regard

to a motion for summary disposition pursuant to MCR

2.116(C)(7), this Court reviews the affidavits, pleadings,

and other documentary evidence presented by the par-

ties and ‘accept[s] the plaintiff’s well-pleaded allega-

tions, except those contradicted by documentary evi-

dence, as true.’ ” Young v Sellers, 254 Mich App 447,

449-450; 657 NW2d 555 (2002), quoting Novak v Na-

tionwide Mut Ins Co, 235 Mich App 675, 681; 599 NW2d

546 (1999). In ruling on a motion for summary disposi-

tion under MCR 2.116(C)(10), “a court must consider

the pleadings, affidavits, depositions, admissions, and

other documentary evidence submitted in the light

most favorable to the nonmoving party.” Scalise v Boy

Scouts of America, 265 Mich App 1, 10; 692 NW2d 858

(2005). Summary disposition is appropriate under MCR

2.116(C)(10) when “[e]xcept as to the amount of dam-

ages, 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.”

The Supreme Court in Odom v Wayne Co, 482 Mich

459, 479-480; 760 NW2d 217 (2008), set forth the

following steps that a court must follow when a defen-

dant raises the affirmative defense of individual govern-

mental immunity:

(1) Determine whether the individual is a judge, a

legislator, or the highest-ranking appointed executive offi-

cial at any level of government who is entitled to absolute

immunity under MCL 691.1407(5).

2010] O

LIVER V

MITH

683

(2) If the individual is a lower-ranking governmental

employee or official, determine whether the plaintiff

pleaded an intentional or a negligent tort.

(3) If the plaintiff pleaded a negligent tort, proceed

under MCL 691.1407(2) and determine if the individual

caused an injury or damage while acting in the course of

employment or service or on behalf of his governmental

employer and whether:

(a) the individual was acting or reasonably believed that

he was acting within the scope of his authority,

(b) the governmental agency was engaged in the exer-

cise or discharge of a governmental function, and

gence that was the proximate cause of the injury or

damage.

(4) If the plaintiff pleaded an intentional tort, determine

whether the defendant established that he is entitled to

individual governmental immunity under the Ross [v Con-

sumers Power Co (On Rehearing), 420 Mich 567; 363 NW2d

641 (1984)] test by showing the following:

(a) The acts were undertaken during the course of

employment and the employee was acting, or reasonably

believed that he was acting, within the scope of his author-

ity,

(b) the acts were undertaken in good faith, or were not

undertaken with malice, and

Following the steps provided in Odom, we first observe

that defendant is indisputably a lower-level governmen-

tal employee not entitled to the absolute immunity

provided by MCL 691.1407(5). It is also plain that

plaintiff pleaded both negligent and intentional torts.

We will address both alleged torts in turn.

As was clarified in Odom, in order to determine

whether defendant is entitled to summary disposition

under MCR 2.116(C)(7), the proper inquiry is whether

684 290 M

ICH

678 [Nov

defendant has met his burden of proof in establishing

that he is entitled to governmental immunity as a

matter of law. Odom, 482 Mich at 479. Governmental

immunity from negligence claims applies to officers of a

governmental agency when they are acting, or reason-

ably believe they are acting, within the scope of their

employment, they are exercising or discharging a gov-

ernmental function, and their conduct does not amount

to gross negligence that is the proximate cause of the

injury or damage. Id. at 479-480; MCL 691.1407(2).

Here, there is no doubt that defendant was acting

within the scope of his authority and was discharging a

governmental function during the time he was arrest-

ing plaintiff and taking him into police custody. Thus,

the only remaining question with regard to the gross-

negligence claim is whether defendant’s conduct

amounted to gross negligence that was the proximate

cause of the injury or damage.

For the purpose of governmental immunity, “gross

negligence” by an employee involves “conduct so reck-

less as to demonstrate a substantial lack of concern for

whether an injury results.” MCL 691.1407(7)(a); Costa

v Community Emergency Med Servs, Inc, 475 Mich 403,

411; 716 NW2d 236 (2006). It has been characterized as

a willful disregard of safety measures and a singular

disregard for substantial risks. Tarlea v Crabtree, 263

Mich App 80, 90; 687 NW2d 333 (2004). If reasonable

jurors could honestly reach different conclusions re-

garding whether conduct constitutes gross negligence,

the issue is a factual question for the jury. However, if

reasonable minds could not differ, the issue may be

determined by a motion for summary disposition. Jack-

son v Saginaw Co, 458 Mich 141, 146-147; 580 NW2d

870 (1998). When this case was first before this Court,

we held “that a police officer’s conduct of handcuffing

an individual too tightly does not constitute gross

2010] O

LIVER V

MITH

685

negligence unless physical injury results,” and the case

then continued in the trial court with the completion of

discovery. Oliver, 269 Mich App at 566.

In the trial court, plaintiff presented evidence that he

suffered from continuing pain and decreased strength

and range of motion, as well as wrist abrasions appar-

ent immediately after his arrest. We held in our previ-

ous opinion in this case: “Evidence that handcuffing

caused some pain but not injury is insufficient to

establish excessive force in applying the handcuffs; if

injury is minimal or nonexistent, then the force creat-

ing it must also be minimal and, therefore, not exces-

sive.” Id. at 566. The evidence presented by plaintiff

was generally subjective and difficult to verify. However,

if plaintiff’s complaints are believed, then he has suf-

fered more than “some pain” and minimal injury and

has suffered an injury that affects his ability to work

and perform daily activities. Because the question turns

on plaintiff’s credibility, it would be proper to submit to

a jury if the alleged gross negligence was the proximate

cause of the injury or damage.

Proximate cause in the context of MCL 691.1407(2)

refers to the cause that is “the one most immediate,

efficient, and direct cause preceding an injury.” Robin-

son v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000).

Taking the evidence in the light most favorable to

plaintiff, there was simply no evidence establishing that

it was defendant’s acts alone that were “the one most

immediate, efficient, and direct cause preceding [plain-

tiff’s] injury.” Id. The record evidence shows that plain-

tiff got out of the vehicle and began yelling at the

officers to let the driver go after the police stopped the

vehicle. Plaintiff was belligerent and failed to comply

with the officers’ orders to remain in the vehicle,

making it unsafe for them to continue the field sobriety

686 290 M

ICH

678 [Nov

tests of the driver. The police attempted to arrest

plaintiff for hindering that process but plaintiff refused

to place his hands behind his back so that he could be

handcuffed. Defendant managed to place one cuff on

plaintiff’s right wrist, but plaintiff then began to pull

away. Accordingly, a second officer had to help defen-

dant pull plaintiff’s left arm behind his back in order to

handcuff plaintiff. As a result, plaintiff was also ar-

rested for resisting arrest. Plaintiff does not seem to

dispute the majority of the police evidentiary account of

what occurred during the arrest but adds that defen-

dant threw him to the ground in order to handcuff him.

Under these circumstances, it cannot be said that

defendant’s acts alone were “the one most immediate,

efficient, and direct cause preceding [plaintiff’s] injury.”

Robinson, 462 Mich at 459. The wrist and hand injury is

not clearly attributable to defendant alone and instead

may just as fairly be attributed to plaintiff. The facts as

developed clearly indicate that plaintiff was actively

resisting arrest and the record indicates that plaintiff’s

injuries were just as likely caused by his own efforts to

thwart the officers’ attempts to restrain him. Plaintiff

could have caused his own injuries when he: (1) refused

to place his hands behind his back to allow the officers

to handcuff him and the officers had no other option but

to pull plaintiff’s left arm, wrist, and hand behind his

back, (2) continued to resist when he pulled away from

the officers after defendant was able to affix the first

cuff, or (3) forced the officers to restrain him on the

ground after he continued to refuse to submit to the

officers’ orders. Because, even when reviewing the facts

in the light most favorable to plaintiff, it cannot be said

that defendant’s acts constituted the proximate cause of

plaintiff’s injuries, defendant has met his burden of

proof in establishing entitlement to governmental im-

munity under MCL 691.1407(2). The trial court there-

2010] O

LIVER V

MITH

687

fore erred by not granting defendant’s motion for

summary disposition of plaintiff’s “gross negligence”

claim under MCR 2.116(C)(7).

In Odom, 482 Mich at 480, our Supreme Court stated

that the proper method for determining whether gov-

ernmental immunity applies to intentional torts (such

as assault and battery) is to apply the test set forth in

Ross. The Odom Court stated that employees enjoy a

qualified right to immunity if (1) the employee’s chal-

lenged acts were undertaken during the course of

employment and the employee was acting, or reason-

ably believed he or she was acting, within the scope of

his or her authority, (2) the acts were undertaken in

good faith, or were not undertaken with malice, and (3)

the acts were discretionary, rather than ministerial, in

nature. Odom, 482 Mich at 480 citing Ross, 420 Mich at

633.

With regard to the assault and battery claim, defen-

dant was clearly acting during the course of his employ-

ment and within the scope of his authority. The parties’

primary disagreement is whether defendant was acting

in good faith when he handcuffed plaintiff. “The good-

faith element of the Ross test is subjective in nature. It

protects a defendant’s honest belief and good-faith

conduct with the cloak of immunity while exposing to

liability a defendant who acts with malicious intent.”

Odom, 482 Mich at 481-482. Here, the trial court

concluded that plaintiff’s evidence that defendant

laughed when he complained that the handcuffs were

on too tightly suggested that defendant may not have

been acting in good faith, and thus, there was a ques-

tion of material fact for a jury.

Defendant’s argument in response focuses on

whether he honestly believed there was a need to

handcuff plaintiff, but that is not the issue in question.

688 290 M

ICH

678 [Nov

Under Ross, what is in question is whether defendant

acted in good faith when he selected how tightly to

handcuff plaintiff, not whether defendant had a good-

faith basis for handcuffing plaintiff. Plaintiff relies

solely on defendant’s laughter when plaintiff informed

him that the handcuffs were too tight to suggest that

defendant’s decision in that regard may not have been

made in good faith. But defendant’s laughter after

plaintiff’s complaint could just as fairly indicate his

disbelief of plaintiff, thinking that if he loosened the

handcuffs, plaintiff might again endeavor to resist,

thereby creating another dangerous situation that de-

fendant was not willing to risk. The laughter could also

indicate that defendant was flabbergasted with plaintiff

after plaintiff’s obstreperous behavior, and had nothing

to do with his previous act of cuffing plaintiff. When

looking at the situation as a whole, the officers were

faced with an unruly individual who was verbally bel-

ligerent, actively disturbing a police inquiry, and creat-

ing a dangerous situation for the officers involved.

Plaintiff was intent on physically resisting arrest and as

a result, plaintiff’s injuries were just as likely caused by

his own repeated efforts to physically thwart the offic-

ers’ attempts to restrain him and regain control of the

situation. Under these facts, considering the vast array

of emotions defendant’s laughter could signify, even

when viewing the evidence in the light most favorable

to plaintiff, plaintiff’s reliance on the laughter alone,

without more, did not create a justiciable question of

fact with regard to whether defendant acted in good

faith when he placed the cuffs on plaintiff.

Defendant also contends that the trial court erred

when it concluded that handcuffing was a ministerial,

as opposed to a discretionary, act. “ ‘Discretionary-

decisional’ acts are those which involve significant

decision-making that entails personal deliberation, de-

2010] O

LIVER V

MITH

689

cision, and judgment. ‘Ministerial-operational’ acts in-

volve the execution or implementation of a decision and

entail only minor decision-making.” Ross, 420 Mich at

592. In reaching its conclusion, the trial court relied on

Watson v Quarles, 146 Mich App 759; 381 NW2d 811

(1985). Citing Ross, Watson held that an officer’s deci-

sion concerning what type of action to take, e.g., to

make an arrest, issue a warning, or wait for assistance,

is a discretionary act entitled to immunity. However, the

execution of that decision is merely a ministerial act. Id.

at 764-765. This Court has also observed that, “[i]t was

generally conceded in Ross that a police officer’s use of

excessive force in effectuating an arrest is a ministerial

act and not entitled to the cloak of immunity.” Butler v

Detroit, 149 Mich App 708, 718; 386 NW2d 645 (1986).

Here, defendant was faced with an aggressive indi-

vidual who was intent on physically and forcefully

resisting the officers’ efforts to restrain him. While

handcuffing an individual under normal circumstances

incident to an arrest without resistance may be a

ministerial act, plaintiff’s conduct in this case, given his

belligerent attitude, physical resistance to being ar-

rested, and defiant refusal to put his arms behind his

back to be handcuffed, together with the concern for the

officers’ safety transformed the act of handcuffing

plaintiff into a discretionary act. Under these circum-

stances, defendant’s actions, in deciding how to respond

to plaintiff, safely defuse the situation, and effectuate a

lawful arrest of plaintiff as he resisted, were clearly

discretionary. Accordingly, it is a decision to which

governmental immunity applies.

Reversed. Defendant, being the prevailing party, may

tax costs pursuant to MCR 7.219.

690 290 M

ICH

678 [Nov

MYLAND v MYLAND

Docket No. 292868. Submitted November 4, 2010, at Grand Rapids.

Decided November 23, 2010, at 9:05 a.m.

Kimberly Myland obtained a divorce from Thomas Myland in the

Kalamazoo Circuit Court, Family Division. To calculate plaintiff’s

spousal-support award, the court, Curtis J. Bell, J., imputed a

$7,000 annual income to plaintiff, who was physically impaired,

then multiplied the difference between defendant’s income and

plaintiff’s imputed income by 0.25, a factor it chose because the

parties had been married for 25 years. The court denied plaintiff’s

need-based request for attorney fees. Plaintiff appealed.

The Court of Appeals held:

1. The trial court’s use of a formula to determine the spousal-

support award in place of considering the relevant required factors

was an error of law. A trial court has discretion to award spousal

support under MCL 552.23, but it must balance the incomes and

needs of the parties in a way that will not impoverish either party

and is just and reasonable under the circumstances. Among the

factors a court must consider in determining a spousal-support

award are (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, (11)

contributions of the parties to the joint estate, (12) a party’s fault

in causing the divorce, (13) the effect of cohabitation on a party’s

financial status, and (14) general principles of equity. A court

should make specific factual findings regarding the factors that are

relevant to the particular case. The trial court’s formula in this

case did not adequately account for many factors that were highly

relevant to this proceeding.

2. The trial judge clearly erred by concluding that plaintiff was

able to work and by imputing to her an income of $7,000 after

having considered the judge’s own medical ailments rather than

2010] M

YLAND V

YLAND

691

the plaintiff’s situation, which included a diagnosis of progressive

multiple sclerosis, cognitive disabilities, and limited work experi-

ence.

3. The trial court erred by failing to consider plaintiff’s needs,

specifically her health-care costs, and by determining that plaintiff

should not be awarded any additional support to cover those costs,

which resulted in a spousal-support award that would not cover

her living expenses. In determining that plaintiff could pay for her

health insurance from her spousal support, the trial court ignored

the disparate economic positions of the parties. Plaintiff suffered

from a severe, progressive physical impairment and had no mean-

ingful work experience, no specialized training, and no real poten-

tial to earn any income, whereas defendant was healthy, earned

about $62,500 a year in a field in which he had years of experience,

and had a retirement account and health care coverage for which

he paid $41 a month.

4. The trial court did not err by failing to enforce a stipulation

between the parties that, according to plaintiff, required defendant

to sell a vehicle he owned and use the proceeds to pay marital debt.

The record indicated that the parties merely agreed that the car

was defendant’s separate property and that, if he sold it, plaintiff

would receive an accounting of the sale and the proceeds would be

applied to the marital debt. Because there was no indication of a

mutual mistake, fraud, duress, or severe stress and plaintiff’s

interpretation of the stipulation had no support in the record, the

trial court properly enforced the stipulation according to its plain

terms.

5. The trial court’s refusal to award plaintiff’s need-based

request attorney fees on the ground that neither party had

engaged in egregious conduct or wasteful litigation constituted an

error of law. Under MCR 3.206(C)(2)(a), a party who requests

attorney fees and expenses must establish that the party is unable

to bear the expense of the action and that the other party is able

to pay. In a divorce action, this rule requires an award of attorney

fees only as necessary to enable a party to prosecute or defend the

suit without invading the same spousal assets on which the party

is relying for support. On remand, the trial court must apply the

correct legal analysis, giving special consideration to the specific

financial situations of the parties and the equities involved, and

must also consider whether plaintiff would be entitled to appellate

attorney fees pursuant to MCR 3.206(C)(1) under the same

analysis.

Reversed and remanded for further proceedings.

692 290 M

ICH

691 [Nov

1. D

IVORCE —

POUSAL

UPPORT —

POUSAL

-S

UPPORT

ACTORS

The statutory provision governing awards of spousal support in

divorce actions prohibits the use of rigid and arbitrary formulas

that fail to account for the parties’ unique circumstances and

relative positions; a trial court must consider the relevant spousal-

support factors to balance the incomes and needs of the parties in

a way that will not impoverish either party and is just and

reasonable under the circumstances; among the factors a court

must consider in determining a spousal-support award are (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, (11) contributions of

the parties to the joint estate, (12) a party’s fault in causing the

divorce, (13) the effect of cohabitation on a party’s financial status,

and (14) general principles of equity (MCL 552.23).

2. D

IVORCE —

TTORNEY

EES —

EED

-B

ASED

TTORNEY

EES

A court may not refuse a need-based request for attorney fees on the

ground that neither party had engaged in egregious conduct or

wasteful litigation; a party who requests attorney fees and ex-

penses must establish that the party is unable to bear the expense

of the action and that the other party is able to pay; in a divorce

action, this rule requires an award of attorney fees only as

necessary to enable a party to prosecute or defend a suit without

invading the same spousal assets on which the party is relying for

support (MCR 3.206[C][2][a]).

Miller Johnson (by Julie A. Sullivan and Eric J.

Griswold) for Kimberly Myland.

Stancati & Associates, P.C. (by Ross F. Stancati), for

Thomas Myland.

Before: M. J. K

ELLY

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

ELLY

and B

ORRELLO

JJ.

F. K

ELLY

, J. This appeal from a divorce judgment

requires us to determine whether the trial court’s

2010] M

YLAND V

YLAND

693

application and use of an arbitrary formula to calculate

an award of spousal support was fair and equitable

under the circumstances of this case. We hold that MCL

552.23 prohibits the use of rigid and arbitrary formulas

that fail to account for the parties’ unique circum-

stances and relative positions and reaffirm the mandate

that a trial court awarding spousal support must con-

sider the relevant factors. Further, we must also deter-

mine whether a trial court may disregard MCR

3.206(C)(2)(a) when considering a request for attorney

fees based on need and merely rely on whether a party

engaged in either egregious conduct or wasteful litiga-

tion. Under these circumstances, we conclude that the

trial court failed to apply the proper needs-based analy-

sis. Accordingly, we reverse and remand.

I. SPOUSAL SUPPORT

Plaintiff first argues that the trial court erred by

failing to adequately consider the parties’ ages,

health, and abilities to work; their respective abilities

to pay alimony; their needs; and their prior standard

of living. Plaintiff also asserts that the trial court

clearly erred by imputing $7,000 in income to her and

by failing to consider the costs of the health insurance

she purchased pursuant to the Consolidated Omnibus

Budget Reconciliation Act (COBRA), 29 USC 1161 et

seq. We agree. We review a trial court’s findings of

fact related to an award of spousal support for clear

error. Moore v Moore, 242 Mich App 652, 654; 619

NW2d 723 (2000). “A finding is clearly erroneous if

the appellate court is left with a definite and firm

conviction that a mistake has been made.” Id.at

654-655. “If the trial court’s findings are not clearly

erroneous, this Court must then decide whether the

dispositional ruling was fair and equitable in light of

694 290 M

ICH

691 [Nov

the facts.” Berger v Berger, 277 Mich App 700, 727;

747 NW2d 336 (2008). We must affirm the trial

court’s dispositional ruling unless we are firmly con-

vinced that it was inequitable. Id.

A trial court has discretion to award spousal sup-

port under MCL 552.23. Korth v Korth, 256 Mich App

286, 288; 662 NW2d 111 (2003). The primary purpose

of spousal support is to “balance the incomes and

needs of the parties in a way that will not impoverish

either party” on the basis of what is “just and

reasonable under the circumstances of the case.”

Moore, 242 Mich App at 654. Among the factors to be

considered are

(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, (11) contri-

butions of the parties to the joint estate, (12) a party’s fault

in causing the divorce, (13) the effect of cohabitation on a

party’s financial status, and (14) general principles of

equity. [Olson v Olson, 256 Mich App 619, 631; 671 NW2d

64 (2003) (citations omitted).]

“The trial court should make specific factual findings

regarding the factors that are relevant to the particular

case.” Korth, 256 Mich App at 289.

In this case, the trial court determined that defen-

dant’s income was $62,500 a year and imputed $7,000

in income to plaintiff. It then awarded plaintiff spousal

support of $13,875 a year ($1,156 a month) after

considering only the length of the parties’ marriage. To

reach this number, the trial court applied a mechanistic

2010] M

YLAND V

YLAND

695

formula,

stating that it had “a formula that it has

utilized in the past” and it was “using that as a

guideline....” Accordingly, the court multiplied the

difference between defendant’s income and plaintiff’s

imputed income ($62,500 - $7,000 = $55,000) by 0.25.

The trial court stated that it chose 0.25 on the basis of

the number of years the parties were married—25.

This limited, arbitrary, and formulaic approach is

without any support in the law. It totally fails to

consider the unique circumstances of the parties’ re-

spective positions and fails to reach an outcome that

balances the parties’ needs and incomes. In short, we

cannot sanction the use of such a blunt tool in any

spousal support determination, and the trial court’s use

of this formula here was an error of law. Given the trial

court’s use and application of its formula, it is not

surprising that it failed to consider the factors relevant

to an award of spousal support, aside from the length of

the parties’ marriage and their relative incomes. In-

deed, this formula does not adequately account for

many factors that were highly relevant to this proceed-

ing, including the parties’ ages, health, abilities to

work, needs, previous standard of living, and whether

one of them would be supporting a dependent. The trial

court considered none of these required factors in the

instant proceeding.

Moreover, the trial court clearly erred by imputing to

plaintiff an income of $7,000. As noted, the trial court

made no explicit finding regarding plaintiff’s health or

her ability to work, nor did it make any finding that

plaintiff had voluntarily reduced her income. The trial

judge simply cited excerpts of the deposition of plain-

The trial court offered no legal authority in support of this particular

formula, and we have found no legal authority that supports such a

formula.

696 290 M

ICH

691 [Nov

tiff’s doctor and considered the judge’s own personal

medical ailments before concluding that plaintiff could

work and could earn $7,000 a year. This finding was

clearly erroneous. First, parties to a divorce action “are

entitled to individual consideration based on the law

and facts applicable to their case, not on anecdotal

experiences of the trial court.” Cf. Brausch v Brausch,

283 Mich App 339, 354; 770 NW2d 77 (2009) (applying

this principle to a custody action). Thus, the trial

judge’s comments that despite his own ailments, he

planned to work until he was “not able to do anything”

and “when you don’t have any options and you gotta

work, you gotta work,” were an entirely irrelevant and

inappropriate basis on which to conclude that plaintiff

herself had the ability to work. Second, after a review of

the deposition of plaintiff’s doctor and plaintiff’s testi-

mony, it is clear that plaintiff does not have the ability

to work or to earn $7,000 a year because of her

progressive multiple sclerosis (MS). Plaintiff testified

that she could not work and that she suffered numbness

in her extremities, blurred vision, clumsiness, confu-

sion, lack of bladder control, chronic fatigue, drowsi-

ness, vertigo, and depression. Plaintiff’s doctor, Phillip

Green, also testified that plaintiff suffered from weak-

ness, clumsiness, decreased cognition, and confusion

and that her condition would worsen over time. Accord-

ing to Dr. Green, plaintiff’s intelligence quotient was in

the 23d percentile, and her cognitive ability to process

information and act on the information was in the 8th

percentile. Dr. Green testified that plaintiff was not

capable of full-time employment and indicated that

part-time employment was “possible . . . but not prob-

able,” especially because of the progressive nature of

her MS. Further, plaintiff’s only work experience is

childcare and waitressing—two physically demanding

jobs that plaintiff could not reasonably be expected to

2010] M

YLAND V

YLAND

697

perform—and she lacks any valuable job skills that

would qualify her for skilled employment. In light of

this evidence, and a lack of any evidence that plaintiff

voluntarily reduced her income, we have a definite

and firm conviction that the trial court made a

mistake by concluding that plaintiff had the ability to

work and earn an income and by imputing to her a

$7,000 income.

We also note, as plaintiff points out, that the trial

court erred by failing to consider plaintiff’s needs,

specifically her health-care costs, and by determining

that plaintiff should not be awarded any additional

support to cover those costs. Presently, plaintiff pays

$383 a month for COBRA benefits. The trial court

determined that plaintiff could pay for COBRA from

her spousal support and did not award any additional

amount to cover her health-care costs. However, in

making this determination, the trial court ignored the

disparate economic positions of the parties. As noted,

plaintiff suffers from a severe physical impairment that

will become worse with time, and she has no meaning-

ful work experience, no specialized training, and no real

potential to earn any income. In comparison, defendant

is healthy, he earns about $62,500 a year (approxi-

mately $5,200 a month) in a field in which he has years

of experience, and he has a retirement account and

health-care coverage for which he pays $41 a month. In

consideration of the parties’ relative positions and

plaintiff’s needs, it would not have been inequitable for

the trial court to require defendant to maintain plain-

tiff’s health insurance. See Voukatidis v Voukatidis, 195

Mich App 338, 339; 489 NW2d 512 (1992). The trial

court, however, failed to even address the parties’

relative positions. The trial court also overlooked the

fact that its spousal support award would not even

698 290 M

ICH

691 [Nov

cover plaintiff’s living expenses.

Although the trial

court likely expected plaintiff to make up the difference

through her separate individual earnings, we have

already concluded that the trial court clearly erred by

determining that plaintiff had the ability to work and

earn an income. Accordingly, on remand, the trial court

must specifically consider plaintiff’s needs, and specifi-

cally her health-related needs, in light of the fact that

she has no earning potential and no ability to work.

In summary, an application of the general principles

of equity, within the confines of the applicable statute

and relevant caselaw, supports a conclusion that plain-

tiff is entitled to a greater amount of spousal support

than the trial court awarded. Plaintiff has no earning

ability, has severe health problems, and has significant

costs associated with her health care, while defendant is

relatively young, in good health, employed, earns a

decent salary, and has relatively low living expenses.

The trial court’s award of spousal support, in light of

plaintiff’s health condition and earning ability, was

deficient and clearly inequitable. On remand, the trial

court must consider the relevant factors as they pertain

to the parties and make specific findings of fact that

justify its ultimate award of spousal support. In doing

so, it must keep in mind that its goal is to reach a result

that is just and reasonable under the circumstances and

that “balance[s] the incomes and needs of the parties in

a way that will not impoverish either party.” Moore, 242

Mich App at 654. Finally, given the statutory mandate

of MCL 552.23, we must emphasize that there is no

room for the application of any rigid and arbitrary

Under the division of property, plaintiff was responsible for half of the

marital debt and the marital home’s mortgage until the home is sold—

approximately $1000 a month. Housing and COBRA alone, totaling

$1,383 per month, would cost more than the $1,156 in monthly support

that the trial court awarded.

2010] M

YLAND V

YLAND

699

formulas when determining the appropriate amount of

spousal support and the trial court on remand must

proceed accordingly.

II. STIPULATION

Next, plaintiff argues that the trial court erred by

failing to enforce a stipulation between the parties that

required defendant to sell his 1969 Pontiac Firebird and

use the proceeds to pay marital debt. We disagree. “A

settlement agreement, such as a stipulation and prop-

erty settlement in a divorce, is construed as a contract.”

MacInnes v MacInnes, 260 Mich App 280, 283; 677

NW2d 889 (2004). The same legal principles that gov-

ern the construction and interpretation of contracts

govern the parties’ purported settlement agreement in

a divorce case. Id. The existence and interpretation of a

contract involves a question of law that this Court

reviews de novo. Kloian v Domino’s Pizza, LLC, 273

Mich App 449, 452; 733 NW2d 766 (2006).

Under MCR 2.507(G),

[a]n agreement or consent between the parties or their

attorneys respecting the proceedings in an action, subse-

quently denied by either party, is not binding unless it was

made in open court, or unless evidence of the agreement is

in writing, subscribed by the party against whom the

agreement is offered or by that party’s attorney.

Further,

[i]t 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).]

700 290 M

ICH

691 [Nov

In this case, the record does not support a conclusion

that the parties entered into a binding stipulation that

required defendant to sell the Firebird to pay the

marital debt. Rather, the parties merely agreed that the

Firebird would be considered defendant’s separate

property and that, should defendant decide to sell it,

plaintiff would be entitled to receive an accounting of

the sale and the proceeds would be applied to the

marital debt. Thus, whether to sell the Firebird re-

mained in defendant’s sole discretion, and, to plaintiff’s

detriment, he decided not to sell it. Accordingly, con-

trary to plaintiff’s position, the trial court did not err by

adhering to the parties’ stipulation and excluding the

Firebird from the distribution of the assets.

Further, we note that although plaintiff advances an

alternative interpretation of the stipulation, she does

not even argue that she entered into the stipulation

because of a mutual mistake. Therefore, absent an

indication of fraud, duress, or severe stress, the stipu-

lation must be enforced according to its plain terms.

Plaintiff does not assert that any of these foregoing

circumstances existed, and her interpretation of the

stipulation has no support in the record. Her argument

on appeal is simply an attempt to avoid the effect of the

stipulation and to regain that which she forfeited by

agreeing to it: an adjudication of whether the Firebird

constituted defendant’s separate property and, if so,

whether it could be invaded under MCL 552.23. No

relief is warranted on this basis.

III. ATTORNEY FEES

Plaintiff also asserts that the trial court abused its

discretion by denying her need-based request for attor-

ney fees. We agree. We review for an abuse of discretion

a trial court’s decision whether to award attorney fees.

2010] M

YLAND V

YLAND

701

Reed v Reed, 265 Mich App 131, 164; 693 NW2d 825

(2005). We review findings of fact for clear error and

questions of law de novo. Stallworth v Stallworth, 275

Mich App 282, 288; 738 NW2d 264 (2007).

The applicable court rule, MCR 3.206(C)(2)(a),

states:

A party who requests attorney fees and expenses must

allege facts sufficient to show that

(a) the party is unable to bear the expense of the action,

and that the other party is able to pay....

This Court has interpreted this rule to require an award

of attorney fees in a divorce action “only as necessary to

enable a party to prosecute or defend a suit.” Gates v

Gates, 256 Mich App 420, 438; 664 NW2d 231 (2003).

With respect to a party’s ability to prosecute or defend

a divorce action, a party “may not be required to invade

her assets to satisfy attorney fees when she is relying on

the same assets for her support.” Maake v Maake, 200

Mich App 184, 189; 503 NW2d 664 (1993). Further, a

party sufficiently demonstrates an inability to pay at-

torney fees when that party’s yearly income is less than

the amount owed in attorney fees. Stallworth, 275 Mich

App at 288-289.

In this case, the trial court stated that it only awards

attorney fees if a party engaged in egregious conduct or

wasteful litigation and indicated that plaintiff could use

her spousal support to pay her attorney, stating:

With regard to attorney fees, this Court has never

granted attorney fees unless the Court felt that there was

an egregious—egregious conduct by [sic] the part of one of

the litigants or wastefulness with regard to their actions. I

always believe that everyone should, you know, with what-

ever allocation of assets pay their attorney fees. And so, I’m

denying the invitation to assess attorney fees.

702 290 M

ICH

691 [Nov

This basis for denying plaintiff attorney fees consti-

tuted an error of law. See Maake, 200 Mich App at 189;

Gates, 256 Mich App at 438. It was incumbent upon the

trial court to consider whether attorney fees were

necessary for plaintiff to defend her suit, including

whether, under the circumstances, plaintiff would have

to invade the same spousal support assets she is relying

on to live in order to pay her attorney fees and whether,

under the specific circumstances, defendant has the

ability to pay or contribute to plaintiff’s fees. See Gates,

256 Mich App at 438; MCR 3.206(C)(2)(a). Thus, on

remand, the trial court must apply the correct legal

analysis, giving special consideration to the specific

financial situations of the parties and the equities

involved. In addition, the trial court must also consider

whether plaintiff is entitled to appellate attorney fees

pursuant to MCR 3.206(C)(1), applying the same analy-

sis.

Reversed and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction.

2010] M

YLAND V

YLAND

703

In re NALE ESTATE

Docket No. 293802. Submitted November 10, 2010, at Detroit. Decided

November 23, 2010, at 9:10 a.m.

Fayette L. Nale was convicted by a jury in the Macomb Circuit Court

of the voluntary manslaughter of her husband, Michael L. Nale.

Julia Cook, the successor personal representative of Michael

Nale’s estate, then petitioned the Macomb County Probate Court

for an order requiring Fayette Nale to forfeit and revoke all

benefits from the decedent’s estate. The probate court, Pamela G.

O’Sullivan, J., entered an order granting the petition. Fayette Nale

appealed, contending that the terms “feloniously and intention-

ally,” as used in MCL 700.2803, the statute providing for such

forfeiture by an individual who feloniously and intentionally kills

the decedent, refers to first- and second-degree murder, but not

manslaughter.

The Court of Appeals held:

1. The Supreme Court has defined voluntary manslaughter as

an intentional killing committed under the influence of passion or

hot blood produced by adequate provocation and before a reason-

able time has passed for the blood to cool. An essential element of

the crime of voluntary manslaughter is the intent to kill or commit

serious bodily harm. Voluntary manslaughter has been specifically

designated by the courts as an “intentional killing.” The common-

law application of the “slayer rule,” which prohibits a person who

commits a murder from benefitting from the person’s criminal act

or a devisee from taking under the will of a testator whose death

was caused by the criminal and felonious act of the devisee,

extends beyond the crime of murder to manslaughter.

2. Had the Legislature intended to limit the operation of MCL

700.2803 to instances where the beneficiary murders the decedent,

it could have used the term “murder.” Because voluntary man-

slaughter is an intentional killing and the common-law slayer rule

has never been limited to the crime of murder, MCL 700.2803

operates to prevent one convicted of voluntary manslaughter from

benefitting from the estate of the victim.

Affirmed.

704 290 M

ICH

704 [Nov

RIMINAL

AW —

ORFEITURES AND

ENALTIES —

OLUNTARY

ANSLAUGHTER —

ECEDENTS

’E

STATES —

ORDS AND

HRASES —

NTENTIONALLY

The term “intentionally” in the statute providing that an individual

who feloniously and intentionally kills the decedent forfeits all

benefits with respect to the decedent’s estate and providing that if

the decedent died intestate, the decedent’s intestate estate passes

as if the killer disclaimed his or her intestate share, prevents a

person convicted of voluntary manslaughter from benefitting from

the victim’s estate (MCL 700.2803).

Simasko, Simasko & Simasko, P.C. (by Scott E.

Bright), for Julia Cook.

Sherry A. Wells for Fayette L. Nale.

Before: O

WENS

,P.J., and W

HITBECK

and F

ORT

OOD

,JJ.

URIAM

. Respondent appeals as of right the

probate court’s grant of petitioner’s petition for forfei-

ture and revocation of benefits. Respondent argues that

the probate court improperly construed MCL 700.2803,

Michigan’s “slayer statute,” as preventing her, as one

convicted of the voluntary manslaughter of the dece-

dent, from receiving benefits from the decedent’s es-

tate. We affirm. This appeal has been decided without

oral argument pursuant to MCR 7.214(E).

I. FACTS

Respondent’s husband, Michael Stephen Nale (the

“decedent”), was stabbed to death on September 13,

2007. Respondent was charged with second-degree

murder, MCL 750.317, in his death. On February 19,

2009, a jury convicted her of voluntary manslaughter,

MCL 750.321, and she was sentenced to 34 to 180

months in prison.

On August 5, 2009, petitioner, Julia Cook, successor

personal representative of the decedent’s estate, filed in

2010] In re N

ALE

STATE

705

the Macomb County Probate Court a petition for for-

feiture and revocation of benefits, arguing that respon-

dent had forfeited all benefits from the decedent’s

estate under MCL 700.2803 because she had “feloni-

ously and intentionally” killed the decedent. Respon-

dent argued that the term “feloniously and intention-

ally,” as used in MCL 700.2803, refers to first- and

second-degree murder, but not manslaughter. At a hear-

ing on the petition, the court disagreed and entered an

order granting the petition.

II. STANDARD OF REVIEW

In general, an appeal from a probate court decision is

on the record, not de novo. MCL 600.866(1); In re

Temple Marital Trust, 278 Mich App 122, 128; 748

NW2d 265 (2008). Nonetheless, questions of law, such

as issues of statutory construction, are reviewed de

novo. Temple, 278 Mich App at 128. The instant case

involves a question of law construing MCL 700.2803,

and our review is de novo.

III. ANALYSIS

When interpreting statutes, a court’s primary goal is

to determine and give meaning to the Legislature’s

intent. McJunkin v Cellasto Plastic Corp, 461 Mich 590,

598; 608 NW2d 57 (2000). Once ascertained, the Legis-

lature’s intent must prevail despite any conflicting rule

of statutory construction. Terzano v Wayne Co, 216

Mich App 522, 526-527; 549 NW2d 606 (1996). This

Court may determine legislative intent by considering

the language of the statute and the general scope the

statute seeks to accomplish or the evil it seeks to

remedy. Cowen v Dep’t of Treasury, 204 Mich App 428,

431-432; 516 NW2d 511 (1994). In construing the

language of a statute, “the Legislature is deemed to act

706 290 M

ICH

704 [Nov

with an understanding of common law in existence

before the legislation was enacted.” NationvWDE

Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997).

The Estates and Protected Individuals Code (EPIC),

MCL 700.1101 et seq., provides that a devisee who

“feloniously and intentionally” kills a decedent forfeits

all benefits from the decedent’s estate. MCL 700.2803

states, in pertinent part:

(1) An individual who feloniously and intentionally kills

the decedent forfeits all benefits under this article with

respect to the decedent’s estate, including an intestate

share, an elective share, an omitted spouse’s or child’s

share, a homestead allowance, a family allowance, and

exempt property. If the decedent died intestate, the dece-

dent’s intestate estate passes as if the killer disclaimed his

or her intestate share.

(2) The felonious and intentional killing of the decedent

does all of the following:

(a) Revokes all of the following that are revocable:

(i) Disposition or appointment of property made by the

decedent to the killer in a governing instrument.

(ii) Provision in a governing instrument conferring a

general or nongeneral power of appointment on the killer.

(iii) Nomination of the killer in a governing instrument,

nominating or appointing the killer to serve in a fiduciary

or representative capacity, including a personal represen-

tative, executor, trustee, or agent.

(b) Severs the interests of the decedent and killer in

property held by them at the time of the killing as joint

tenants with the right of survivorship, transforming the

interests of the decedent and killer into tenancies in

common.

This provision, sometimes referred to as a “slayer rule,”

is derived from the common-law rules that one who

commits a murder cannot benefit by his or her criminal

2010] In re N

ALE

STATE

707

act and that no devisee can take under the will of a

testator whose death has been caused by the criminal

act of the devisee. Garwols v Bankers Trust Co, 251

Mich 420, 428; 232 NW 239 (1930).

Respondent was convicted of voluntary manslaugh-

ter. She argues that manslaughter does not involve an

“intentional killing,” and notes that she was specifically

acquitted of murdering her husband. Thus, respondent

asserts that MCL 700.2803 does not prevent her from

receiving benefits from the estate of her late husband.

The issue in this case rests, therefore, on the meaning

of the term “intentionally” as used by the Legislature in

MCL 700.2803 when describing the killing of a dece-

dent.

The manslaughter statute, MCL 750.321, encom-

passes two types of common-law manslaughter: volun-

tary and involuntary. People v Townes, 391 Mich 578,

588-589; 218 NW2d 136 (1974). Although the punish-

ment for manslaughter is defined by statute, the com-

mon law defines the elements of voluntary and invol-

untary manslaughter. People v Pouncey, 437 Mich 382,

388; 471 NW2d 346 (1991).

The Michigan Supreme Court has defined voluntary

manslaughter as an intentional killing committed un-

der the influence of passion or hot blood produced by

adequate provocation and before a reasonable time has

passed for the blood to cool. People v Mendoza, 468 Mich

527, 534-535; 664 NW2d 685 (2003), citing Maher v

People, 10 Mich 212, 219 (1862); People v Fortson, 202

Mich App 13, 19; 507 NW2d 763 (1993). An essential

element of the crime of voluntary manslaughter is the

intent to kill or commit serious bodily harm. People v

Delaughter, 124 Mich App 356, 360; 335 NW2d 37

(1983). Murder and voluntary manslaughter are both

homicides that share the element of being “intentional”

708 290 M

ICH

704 [Nov

killings. People v Hess, 214 Mich App 33, 38; 543 NW2d

332 (1995). However, the existence of provocation char-

acterizes the offense of voluntary manslaughter,

Pouncey, 437 Mich at 388, whereas the presence of

malice characterizes murder, Mendoza, 468 Mich at

534-535.

In contrast, involuntary manslaughter has been de-

fined as “ ‘the killing of another without malice and

unintentionally, but in doing some unlawful act not

amounting to a felony nor naturally tending to cause

death or great bodily harm, or in negligently doing some

act lawful in itself, or by the negligent omission to

perform a legal duty.’ ” People v Scott, 29 Mich App 549,

551; 185 NW2d 576 (1971), quoting People v Ryczek, 224

Mich 106, 110; 194 NW 609 (1923). Courts have, there-

fore, specifically designated voluntary manslaughter an

“intentional” killing.

Before the enactment of MCL 700.2803 and its pre-

decessor, MCL 700.251, the Michigan Supreme Court

twice referred favorably to a description of the common-

law “slayer rule” as described in Wharton on Homicide

(3d ed), § 665:

“To permit a person who commits a murder, or any

person claiming under him, to benefit by his criminal act,

would be contrary to public policy. And no devisee can take

under the will of a testator whose death has been caused by

the criminal and felonious act of the devisee himself. And in

applying this rule, no distinction can be made between a

death caused by murder and one caused by manslaughter.”

[Garwols, 251 Mich at 428 (emphasis added); see also

Budwit v Herr, 339 Mich 265, 270-271; 63 NW2d 841

(1954), quoting with approval Garwols quoting Wharton.]

While those cases did not involve the application of the

common-law rule in the context of manslaughter, they

nonetheless reveal that the common-law application of

the slayer rule extends beyond the crime of murder to

manslaughter.

2010] In re N

ALE

STATE

709

When the Legislature enacts statutes in derogation

of the common law, it is presumed to know the existence

of the common law. Wold Architects & Engineers v

Strat, 474 Mich 223, 234; 713 NW2d 750 (2006). Had

the Legislature, knowing the state of the common law,

intended to limit the operation of MCL 700.2803 to

instances where the beneficiary murders the decedent,

it could have used that specific term.

Furthermore,

when a statute contravenes the common law, courts

must construe the statute so that it results in the least

change in the common law. Nation, 454 Mich at 494.

Given that there is no reason to believe that the

Legislature intended to limit the operation of MCL

700.2803 in this way, it is fair to conclude that it

intended to encompass the crimes that the common law

deems “intentional killings,” including voluntary man-

slaughter.

Because voluntary manslaughter has been defined by

Michigan courts as an intentional killing, and because

the common law “slayer rule” has never been limited to

the crime of murder, it follows logically that MCL

700.2803 operates to prevent one convicted of voluntary

manslaughter from benefiting from the estate of the

decedent. Because respondent was convicted of volun-

tary manslaughter, she is subject to the forfeiture rule

of MCL 700.2803.

Affirmed.

Cf. Ernsting v Ave Maria College, 274 Mich App 506, 513; 736 NW2d

574 (2007) (stating that had the Legislature intended to limit the term

“law enforcement agency” to mean only state and local law enforcement

agencies, it could have expressly so stated, as it did in other sections of

the Whistleblowers’ Protection Act, MCL 15.361 et seq.).

710 290 M

ICH

704 [Nov

SZPAK v INYANG

Docket No. 292625. Submitted November 10, 2010, at Detroit. Decided

November 23, 2010, at 9:15 a.m.

David and Michelle Szpak, individually, and Michelle Szpak as next

friend of the minor, Alexa Szpak, brought a medical malpractice

action in the Oakland Circuit court against Alexa’s treating

physicians, Joy Inyang, M.D., Michael Falzon, M.D., and B. Najem,

M.D., and their principals, Huron Valley Hospitals, Inc. (HVH),

and Huron Valley Pediatrics, P.C. (HVP), alleging negligence and

derivative claims. To ensure compliance with the Health Insur-

ance Portability and Accountability Act (HIPAA), 42 USC 1320d et

seq., counsel for Najem and HVP filed a motion in which Inyang,

Falzon, and HVH joined, seeking a qualified protective order

covering ex parte interviews with any treating physicians and

prohibiting them from using or disclosing any health information

acquired in the covered interviews, as required by HIPAA. 45 CFR

164.512(e)(1). The court, Denise Langford Morris, J., granted the

order but added conditions requested by plaintiffs requiring that

plaintiffs’ counsel be given notice of the interviews, permitting

plaintiffs’ counsel to be present at the interviews, and barring

defense counsel from any ex parte interviews with David’s and

Michelle’s treating physicians. The court subsequently dismissed

the claims of David and Michelle Szpak because the period of

limitations had expired before they brought their claims. Najem

and HVP appealed; Inyang, Falzon, and HVH cross-appealed.

The Court of Appeals held:

Ex parte interviews by defense counsel are permitted under

Michigan law, and nothing in HIPAA specifically precludes them.

However, under MCR 2.302(C), when a party seeking discovery

moves for a qualified protective order as required by HIPAA, on

reasonable notice and for good cause shown, the court may issue

any order that justice requires to protect a party or person from

annoyance, embarrassment, oppression, or undue burden or ex-

pense. Thus, the conditions imposed on the ex parte interviews

must be those that justice requires. The first part of the protective

order—the portion sought by defendants—specifically prohibited

defendants from using or disclosing any health information ac-

2010] S

ZPAK V

NYANG

711

quired in the covered interviews, as required by HIPAA. The

additional conditions imposed by the court—that plaintiffs’ coun-

sel must have notice and may be present at the interviews—were

sought by plaintiffs only in response to the motion, and had no

bearing on the disclosure of health information. Although plain-

tiffs argued that the treating physicians in this case could be

subject to intimidation during the interviews, they did not identify

any facts supporting the fear that defense counsel would intimi-

date treating physicians during voluntary ex parte interviews.

Because there was no showing that justice required the conditions

requested by plaintiffs and imposed by the court, the court abused

its discretion when it imposed conditions unrelated to compliance

with HIPAA or any related privacy concerns.

Reversed in part, vacated in part, and remanded for further

proceedings.

EALTH —

EALTH

NSURANCE

ORTABILITY AND

CCOUNTABILITY

CT —

EDICAL

ALPRACTICE —

ARTE

NTERVIEWS WITH

EALTH

-C

ARE

ROVIDERS —

ROTECTIVE

RDERS

Ex parte interviews by defense counsel are permitted under Michi-

gan law as long as the party seeking discovery moves for a qualified

protective order as required by HIPAA; on reasonable notice and

for good cause shown, the court may issue any order that justice

requires to protect a party or person from annoyance, embarrass-

ment, oppression, or undue burden or expense (42 USC 1320d et

seq.; 45 CFR 164.512[e][1]; MCR 2.302[C]).

Kelman Loria, PLLC (by Charles H. Chomet), for

David, Michelle, and Alexa Szpak.

Corbet, Shaw, Essad & Tucciarone, P.L.L.C. (by

Daniel R. Corbet and Joshua O. Booth) for Joy Inyang,

M.D., Michael Falzon, M.D., and Huron Valley Hospi-

tals, Inc.

Plunkett Cooney (by Robert G. Kamenec) and Foster

Swift Collins & Smith, P.C. (by Bruce A. Vande Vusse),

for B. Najem, M.D., and Huron Valley Pediatrics, P.C.

Before: O’C

ONNELL

,P.J., and B

ANDSTRA

and M

URRAY

JJ.

712 290 M

ICH

711 [Nov

URIAM

. Defendants

appeal by leave granted

the

trial court’s order granting in part and denying in part

defendants’ motion for a qualified protective order in this

medical malpractice action. Defendants argue that the

trial court abused its discretion when it imposed certain

conditions on the protective order. We agree, and therefore

reverse in part and vacate in part the qualified protective

order.

Defendants argue that where a qualified protective

order is entered to ensure compliance with the Health

Insurance Portability and Accountability Act (HIPAA),

42 USC 1320d et seq., it was an abuse of discretion also

to require that plaintiffs receive notice of, and an

opportunity to attend, ex parte interviews by defense

counsel with plaintiff Alexa’s treating physicians.

A trial court’s decision on discovery motion is reviewed

for an abuse of discretion. Holman v Rasak, 486 Mich 429,

436; 785 NW2d 98 (2010). Questions of statutory inter-

pretation are reviewed de novo as questions of law. Id.

The parties agree that the trial court is authorized to

permit ex parte meetings with witnesses, in the inter-

Defendants-appellants, B. Najem, M.D., and Huron Valley Pediatrics,

P.C., actually filed the application for leave to appeal, and defendants-

cross-appellants, Joy Inyang, M.D., Michael Falzon, M.D., and Huron

Valley Hospitals, Inc., filed a cross-appeal raising the identical issue

raised by defendants-appellants. Defendants-cross-appellants had like-

wise filed a concurrence with defendants-appellants’ motion in the trial

court that is the subject of this appeal. Accordingly, we will address the

two claims together on appeal.

Szpak v Inyang, unpublished order of the Court of Appeals, entered

October 16, 2009 (Docket No. 292625).

The protective order actually prohibited all ex parte contact with the

treating physicians of plaintiffs David Szpak and Michelle Szpak. The

trial court has since dismissed the individual claims of David and

Michelle, leaving only the claims of Alexa, their daughter. As a result,

defendants’ challenge to § II of the order concerning the physicians of

David and Michelle is now moot.

2010] S

ZPAK V

NYANG

713

ests of efficient discovery. Our Supreme Court has

recently affirmed this position on facts very similar to

the instant case. In Holman, the Court stated:

Ex parte interviews are permitted under Michigan law,

and nothing in HIPAA specifically precludes them. Because

it is possible for defense counsel to insure that any disclo-

sure of protected health information by the covered entity

complies with [HIPAA] by making “reasonable efforts” to

obtain a qualified protective order, HIPAA does not pre-

empt Michigan law concerning ex parte interviews. [Hol-

man, 486 Mich at 442; see also G P Enterprises, Inc v

Jackson Nat’l Life Ins Co, 202 Mich App 557, 567; 509

NW2d 780 (1993) (ex parte interviews with treating phy-

sicians are generally proper).]

Toward the end of its opinion, the Court concluded that

“a trial court retains its discretion under MCR 2.302(C)

to issue protective orders and to impose conditions on

ex parte interviews.” Holman, 486 Mich at 447-448.

The Court in Holman, however, was not asked to

consider the validity of any actual conditions imposed

on ex parte interviews.

MCR 2.302(C) provides, in relevant part:

On motion by a party or by the person from whom

discovery is sought, and on reasonable notice and for good

cause shown, the court in which the action is pending may

issue any order that justice requires to protect a party or

person from annoyance, embarrassment, oppression, or

undue burden or expense....

Thus, the issue to be resolved is whether there has been a

demonstration of good cause requiring the conditions

imposed by the trial court on the proposed ex parte

interviews, i.e., whether imposition of § I(D). (requiring

defendants to give plaintiffs’ attorney notice of the time,

date and locations of meeting) and § I(E). (allowing plain-

tiffs’ counsel to attend the meetings) of the order was an

abuse of discretion.

714 290 M

ICH

711 [Nov

The protective order in this case was sought by

defendants in an effort to comply with HIPAA. See

Holman, 486 Mich at 438-442 (discussing HIPAA re-

quirements and Michigan law). The first part of the

protective order—the portion sought by defendants—

specifically prohibits defendants from using or disclos-

ing any health information acquired in the covered

interviews, as required by HIPAA. See 45 CFR

164.512(e)(1)(v). The additional conditions imposed by

the trial court—that plaintiffs’ counsel must have no-

tice and may be present at the interviews—were sought

by plaintiffs only in response to appellants’ motion and

have no bearing on the disclosure of health information.

Thus, MCR 2.302(C) requires that the additional con-

ditions be justified in their own right.

Plaintiffs argued in the trial court that the treating

physicians in this case could be subject to intimidation

“when confronted with an Order permitting him or her

to meet with Defense counsel.” Plaintiffs further argue

on appeal that “topics of conversation that could arise

in an ex parte conversation are subjects such as mal-

practice in general, the witness’s insurance company,

how premiums could rise against all doctors in the

event of a verdict, mutual acquaintances, just to name a

few.” We observe that the specter of intimidation raised

by plaintiffs would be theoretically present in any

medical malpractice case. Plaintiffs have not identified

any facts in this case supporting a specific fear that

defense counsel would “intimidate” the treating physi-

cians during a voluntary ex parte interview. See Herald

Co v Tax Tribunal, 258 Mich App 78, 88-89; 669 NW2d

862 (2003) (protective order appropriate to protect

trade secrets); Bloomfield Charter Twp v Oakland Co

Clerk, 253 Mich App 1, 35-36; 654 NW2d 610 (2002)

(protective order proper in the absence of any demon-

stration that proposed discovery is relevant). Further,

2010] S

ZPAK V

NYANG

715

plaintiffs have not argued that the interviews sought by

defendants are not relevant to the issues in this case, or

that there is any specific danger of “annoyance, embar-

rassment, oppression, or undue burden or expense.”

MCR 2.302(C). They only argue that there is a gener-

alized danger of intimidation.

Thus, in the words of MCR 2.302(C), there has been

no showing that “justice requires” the conditions re-

quested by plaintiffs and imposed by the trial court.

Because the trial court’s authority to issue a protective

order is defined by MCR 2.302(C), the trial court abused

its discretion when it imposed the conditions within

§ I(D) and § I(E) of the order on ex parte interviews

with the treating physicians unrelated to compliance

with HIPAA, or any related privacy concerns, and in the

absence of evidence to support a reasonable concern for

intimidation, harassment, and the like. Donkers v Ko-

vach, 277 Mich App 366, 368; 745 NW2d 154 (2007)

(error of law may lead to abuse of discretion).

Reversed in part, vacated in part, and remanded for

further proceedings. We do not retain jurisdiction.

No costs, neither party having prevailed in full. MCR

7.219(A).

Defendants have not challenged any parts of the order other than

§ I(D) and § I(E), except § II, which is already noted as now moot.

716 290 M

ICH

711 [Nov

PEOPLE v LIGHT

Docket No. 293746. Submitted November 10, 2010, at Detroit. Decided

November 23, 2010, at 9:20 a.m.

Michael D. Light pleaded no contest in the Leelanau Circuit Court to

a charge of unarmed robbery and was sentenced by the court,

Thomas G. Power, J. Defendant appealed by leave granted, con-

tending that the court erred by scoring 5 points for sentencing

offense variable (OV) 12, MCL 777.42, after determining that

defendant had committed two contemporaneous felonious crimi-

nal acts involving crimes other than the sentencing offense, i.e.,

carrying a concealed weapon and either larceny from a person or

larceny in a building. It was unclear from the record which form of

larceny the court chose to use for its scoring decision.

The Court of Appeals held:

1. A felonious criminal act is defined to be contemporaneous if

the act occurred within 24 hours of the sentencing offense and will

not result in a separate conviction. When scoring OV 12, a court

must look beyond the sentencing offense and consider as contem-

poraneous felonious criminal acts only those separate acts or

behavior that did not establish the sentencing offense.

2. Defendant’s physical act of wrongfully taking money from

the owner of a grocery store while inside the grocery store was,

for purposes of scoring OV 12, the same single act for all forms

of larceny—robbery, larceny from a person, and larceny in a

building. Therefore, even though the trial court sentenced

defendant for unarmed robbery, defendant’s sentencing offense

included all acts occurring in an attempt to commit the larceny,

or during the commission of the larceny, or in flight or at-

tempted flight after the commission of the larceny, or in an

attempt to retain possession of the property. Here, the robbery

completely subsumed the larceny.

3. Because defendant’s sentencing offense was unarmed rob-

bery, neither larceny from a person nor larceny in a building could

be used as a contemporaneous felonious criminal act to increase

defendant’s OV 12 score.

2010] P

EOPLE V

IGHT

717

4. Defendant’s act of carrying a concealed weapon contempo-

raneously with the robbery provided a proper basis for determin-

ing that defendant committed one contemporaneous felonious

criminal act for purposes of scoring OV 12. Defendant should have

been assessed only 1 point under OV 12. A different recommended

minimum guideline range results when OV 12 is properly scored.

The sentencing order must be reversed and the case must be

remanded to the trial court for resentencing.

Reversed and remanded.

1. S

ENTENCES —

FFENSE

ARIABLE

12 — C

ONTEMPORANEOUS

ELONIOUS

RIMINAL

CTS

A felonious criminal act is contemporaneous with the sentencing

offense, for purposes of scoring offense variable 12, if the act

occurred within 24 hours of the sentencing offense and will not

result in a separate conviction; a court must look beyond the

sentencing offense and consider as contemporaneous felonious

criminal acts only those separate acts or behavior that did not

establish the sentencing offense (MCL 777.42).

2. S

ENTENCES —

FFENSE

ARIABLE

12 — U

NARMED

OBBERY —

ARCENY

ROM

ERSON —

ARCENY IN A

UILDING

Neither larceny from a person nor larceny in a building may be used

as a contemporaneous felonious criminal act to increase the

offense variable 12 score of a defendant convicted of unarmed

robbery when the physical act of taking that supported the

unarmed robbery conviction is the same physical act used to

establish larceny from a person or larceny in a building (MCL

750.357, 750.360, 750.530, 777.42).

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

Solicitor General, and Joseph T. Hubbell, Prosecuting

Attorney, for the people.

Law Offices of Suzanna Kostovski (by Suzanna Kos-

tovski) for defendant.

Before: O

WENS

,P.J., and W

HITBECK

and F

ORT

OOD

JJ.

URIAM

. Defendant, Michael Light, appeals by

leave granted his prison sentence imposed after plead-

718 290 M

ICH

717 [Nov

ing no contest to a charge of unarmed robbery.

The

trial court sentenced Light to serve a prison term of 4 to

15 years, with credit for 242 days served in jail. We

conclude that the trial court did not properly score

offense variable (OV) 12

when it sentenced Light.

Therefore, we reverse and remand this case to the trial

court for resentencing consistent with this opinion.

I. BASIC FACTS

A. OVERVIEW

On December 28, 2007, Light approached the Cherry

Bend grocery store and stood outside for approximately

20 minutes. After waiting outside, Light entered the

store and took a six-pack of beer from the cooler. Light

proceeded to the check-out counter and handed the beer

to Daniel Plamondon, the store’s owner. Then, Light

pulled out a four- or five-inch knife and held it in a

stabbing position. While wielding the knife, Light

yelled, “[G]ive me your f---ing money.” Plamondon

handed Light approximately $300, and Light fled.

Immediately after, Plamondon called 911 and his neigh-

bor, Suttons Bay Police Chief Del Moore.

Chief Moore responded to the scene and followed

Light’s footprints in the fresh snow south to a resi-

dence. As Chief Moore approached the residence, he

MCL 750.530. The prosecution originally charged Light with armed

robbery , MCL 750.529, and notified him that he could be sentenced as a

second-offense habitual offender, MCL 769.10, but agreed to dismiss the

habitual-offender sentence enhancement notice pursuant to a June 23,

2008 plea agreement.

MCL 777.42.

The prosecutor’s presentence investigation report indicated that two

young children were present in the store at the time, although subse-

quent questioning by the police showed that the children had been

oblivious to the events that took place.

2010] P

EOPLE V

IGHT

719

observed Light standing outside. Light matched Pla-

mondon’s description of the robber, so Chief Moore

gave an oral command to Light. Because Light did not

respond to Chief Moore’s oral command and because

he appeared to be preparing to escape, Chief Moore

drew his gun and arrested Light. Plamondon identi-

fied Light in a photo lineup, and two witnesses from

the store’s parking lot identified Light in a physical

lineup.

B. LIGHT’S PLEA AGREEMENT AND SENTENCING

As previously stated, the prosecutor charged Light

with armed robbery.

The prosecutor also filed a notice

of Light’s status as a second-offense habitual offender.

However, as part of a plea agreement, the prosecutor

later dismissed the habitual-offender notice.

During sentencing, Light’s attorney objected to the

scoring of 5 points for sentencing OV 12. The trial

court overruled the objection, finding that Light had

committed two or more contemporaneous felonious

acts. The trial court used the carrying of a concealed

weapon as one of the two contemporaneous felonious

criminal acts because of the knife that Light carried

and then used to commit the robbery. For the second

contemporaneous act, the trial court considered both

larceny from a person and larceny in a building. The

trial court may have determined that larceny in a

building was an appropriate contemporaneous act

because it is a cognate lesser offense of robbery.

However, the trial court’s statements on the record

were unclear regarding which form of larceny it

ultimately chose to use for its scoring decision.

See MCL 750.529.

See MCL 769.10.

720 290 M

ICH

717 [Nov

II. TRIAL COURT’S SCORING OF OV 12

A. STANDARD OF REVIEW

When a defendant appeals his or her sentence, we

review the trial court’s scoring decision “to deter-

mine whether the trial court properly exercised its

discretion and whether the record evidence ad-

equately supports a particular score.”

Because this

appeal also involves a question of the interpretation

of the statutory sentencing guidelines under MCL

769.34, we review it de novo.

B. THE PLAIN LANGUAGE OF OV 12

Under MCL 777.42, OV 12 establishes the scoring

guidelines for the trial court to use “to determine

whether [a] defendant engaged in any ‘contemporane-

ous felonious criminal acts.’ ”

“If [the] defendant did

not engage in any contemporaneous felonious criminal

acts, the trial court [must] score OV 12 at zero points.”

“However, if [the] defendant did engage in contempo-

raneous felonious criminal acts, the trial court [must]

evaluate the number of acts and whether the acts

constituted crimes against a person or other crimes, see

MCL 777.42(1)(a) to (f), and then assign ‘the number of

points attributable to the [corresponding subdivision of

the statute] that has the highest number of points,’

MCL 777.42(1).”

Specifically, if the trial court finds

that the defendant committed two contemporaneous

felonious criminal acts involving other crimes, then the

People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003).

People v Babcock, 469 Mich 247, 253; 666 NW2d 231 (2003); People v

Bemer, 286 Mich App 26, 31; 777 NW2d 464 (2009).

Bemer, 286 Mich App at 32, quoting MCL 777.42(1).

Id., citing MCL 777.42(1)(g).

Id. (some alteration by Bemer).

2010] P

EOPLE V

IGHT

721

trial court may allocate 5 points for OV 12.

C. INTERPRETING THE LANGUAGE OF OV 12

This Court interprets sentencing guidelines in accor-

dance with the rules of statutory construction.

The primary goal of statutory construction is to give effect

to the intent of the Legislature. If the language of the statute

is unambiguous, judicial construction is not permitted be-

cause the Legislature is presumed to have intended the

meaning it plainly expressed. Judicial construction is appro-

priate, however, if reasonable minds can differ concerning the

meaning of a statute. Where ambiguity exists, this Court

seeks to effectuate the Legislature’s intent by applying a

reasonable construction based on the purpose of the statute

and the object sought to be accomplished. “The court must

look to the object of the statute, the harm it is designed to

remedy, and apply a reasonable construction that best accom-

plishes the purpose of the statute.” In construing a statute,

the statutory provisions must be read in the context of the

entire statute in order to produce a harmonious whole; courts

must avoid a construction that would render statutory lan-

guage nugatory.

[

]

As stated, MCL 777.42 establishes the scoring guide-

lines to determine a defendant’s OV 12 sentencing score

for any “contemporaneous felonious criminal acts.”

“A

felonious criminal act is defined to be contemporaneous if

the act occurred within 24 hours of the sentencing offense

and will not result in a separate conviction.”

According

to the Michigan Supreme Court, “ ‘the Legislature unam-

biguously made it known when behavior outside the

MCL 777.42(1)(e).

People v Lyons (After Remand), 222 Mich App 319, 322; 564 NW2d

114 (1997).

McLaughlin, 258 Mich App at 672-673 (citations omitted).

See MCL 777.42(1); Bemer, 286 Mich App at 32.

Bemer, 286 Mich App at 32-33, citing MCL 777.42(2)(a) (emphasis

added).

722 290 M

ICH

717 [Nov

offense being scored is to be taken into account.’ ”

Significantly, OV 12 distinguishes within the same sen-

tence between the “act” that occurred and the “sentenc-

ing offense.”

This indicates that the Legislature specifi-

cally intended to draw a distinction between the two

words.

There is support for this rationale within the

language of two other offense variables, O V 11 and OV 13.

OV 11 states, “Multiple sexual penetrations of the victim

by the offender extending beyond the sentencing offense

may be scored in offense variables 12 or 13.”

Thus, the

language of O V 11 suggests that the Legislature did not

intend for contemporaneous felonious criminal acts to be

the same acts that established the sentencing offense.

Likewise, the language of OV 13 indicates that a trial

court should allocate points when the “[sentencing] of-

fense was part of a pattern of felonious criminal activ-

ity....”

OV 13 clearly distinguishes the offense from the

activity. Therefore, when scoring OV 12, a court must look

beyond the sentencing offense and consider only those

separate acts or behavior that did not establish the sen-

tencing offense.

D. APPLYING THE LANGUAGE OF OV 12 TO

LIGHT’S UNARMED-ROBBERY CONVICTION

In this case, Light pleaded guilty to a charge of “un-

armed robbery” under MCL 750.530. The Legislature

defined “unarmed robbery” as follows:

People v McGraw, 484 Mich 120, 125; 771 NW2d 655 (2009), quoting

People v Sargent, 481 Mich 346, 349; 750 NW2d 161 (2008) (emphasis

added).

MCL 777.42(2)(a)(i).

See United States Fidelity & Guaranty Co v Mich Catastrophic

Claims Ass’n (On Rehearing), 484 Mich 1, 14; 795 NW2d 101 (2009)

(noting that “[w]hen the Legislature uses different words, the words are

generally intended to connote different meanings”).

MCL 777.41(2)(b) (emphasis added).

MCL 777.43(1)(a) through (f) (emphasis added).

2010] P

EOPLE V

IGHT

723

(1) A person who, in the course of committing a larceny

of any money or other property that may be the subject of

larceny, uses force or violence against any person who is

present, or who assaults or puts the person in fear, is guilty

of a felony punishable by imprisonment for not more than

15 years.

(2) As used in this section, “in the course of committing

a larceny” includes acts that occur in an attempt to commit

the larceny, or during commission of the larceny, or in flight

or attempted flight after the commission of the larceny, or

in an attempt to retain possession of the property.

[

]

Neither party disputes that the trial court scored OV

12 on the basis of the sentencing offense of unarmed

robbery. Further, neither party disagrees that carrying

a concealed weapon constituted one of the two contem-

poraneous felonious acts needed to score 5 points for

OV 12. However, the parties differ in their views about

which form of larceny the trial court properly used as

the second contemporaneous felonious act, which al-

lowed the trial court to allocate 5 points for OV 12.

Light argues that the trial court erred by allocating 5

points for his OV 12 score because the trial court

incorrectly identified larceny from a person as the

second separate contemporaneous felonious act. Light

further argues that larceny from a person is a necessar-

ily included lesser offense of robbery

and that it

cannot be labeled as a contemporaneous felonious act

for the purpose of scoring OV 12. Accordingly, Light

claims that, at most, the trial court should have only

assessed 1 point under OV 12 for carrying a concealed

weapon. Light contends that this would result in a total

OV level of III, PRV Level C, for a guideline range of 19

MCL 750.530.

People v Adams, 128 Mich App 25, 31; 339 NW2d 687 (1983) (noting

that “the larceny which is an element of robbery is a larceny from a

person”).

724 290 M

ICH

717 [Nov

to 38 months

and that the trial court’s sentence of 48

months falls outside the minimum guideline range.

In contrast, the prosecution argues that the trial court

correctly scored 5 points for OV 12 because larceny in a

building is not a necessarily included lesser offense of

robbery, but rather a cognate offense.

The prosecution

concludes that the trial court properly used larceny in a

building and carrying a concealed weapon as two separate

contemporaneous felonious acts under OV 12.

Light is correct that larceny from a person is a neces-

sarily included lesser offense of robbery.

Likewise, the

prosecution is correct that larceny in a building is a

cognate offense of robbery because robbery does not

include the “building” element and larceny does not

require the use of force.

And, as previously stated, the

trial court did not clearly state whether it based its scoring

on larceny from a person or larceny in a building. How-

ever, for OV 12 scoring purposes, Light’s physical act of

wrongfully taking Plamondon’s money while inside a

grocery store is the same single act for all forms of

larceny—robbery, larceny from a person, and larceny in a

building. Therefore, even though the trial court sentenced

Light for unarmed robbery, Light’s sentencing offense

included all acts “occur[ring] in an attempt to commit the

larceny, or during commission of the larceny, or in flight or

attempted flight after the commission of the larceny, or in

an attempt to retain possession of the property.”

See MCL 777.64.

See also People v Ramsey, 218 Mich App 191, 195; 553 NW2d 360

(1996).

People v Cornell, 466 Mich 335, 356; 646 NW2d 127 (2002) (noting

that it is impossible to commit the greater offense without first having

committed the included lesser offense).

See People v Stein, 90 Mich App 159, 167; 282 NW2d 269 (1979).

MCL 750.530(2).

2010] P

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IGHT

725

Here, the robbery completely subsumed the larceny.

The fact that the larceny occurred in a building, and

thus could have subjected Light to multiple convic-

tions,

does not change the outcome. Even though the

trial court did not convict Light of either form of

larceny, both offenses form the basis of Light’s “sen-

tencing offense” of unarmed robbery. Because Light’s

sentencing offense was unarmed robbery, neither form

of larceny could be used as the contemporaneous felo-

nious act needed to increase Light’s OV 12 score. In

other words, the language of OV 12 clearly indicates

that the Legislature intended for contemporaneous

felonious criminal acts to be acts other than the sen-

tencing offense and not just other methods of classify-

ing the sentencing offense.

III. CONCLUSION

The trial court erred when it determined that larceny

from a person or larceny in a building was a contempo-

raneous felonious act under MCL 777.42. Because both

forms of larceny served as the basis of Light’s sentenc-

ing offense, the trial court should not have scored 5

points for Light’s unarmed-robbery conviction under

OV 12. However, the parties do not dispute that Light’s

act of carrying a concealed weapon provides a proper

basis for a contemporaneous felonious criminal act for

purposes of scoring OV 12. The act of carrying a

concealed weapon occurred contemporaneous with the

robbery. Accordingly, the trial court should have assessed

only 1 point under MCL 777.42(1)(f) for carrying a con-

cealed weapon. This correction reduces Light’s total OV

score from level IV to level III (from 35 points to 31

points), which will change the recommended minimum

See People v Smith, 478 Mich 292, 296, 300-301; 733 NW2d 351

(2007).

726 290 M

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717 [Nov

guideline range to 19 to 38 months.

Therefore, be-

cause the erroneous score would result in a different

recommended range when corrected, we reverse and

remand this case to the trial court for resentencing

consistent with this opinion.

Reversed and remanded. We do not retain jurisdic-

tion.

See MCL 777.64.

People v Francisco, 474 Mich 82, 89 n 8; 711 NW2d 44 (2006).

2010] P

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727

HARING CHARTER TWP v CITY OF CADILLAC

SELMA TWP v CITY OF CADILLAC

Docket Nos. 292122 and 292164. Submitted September 8, 2010, at

Lansing. Decided October 12, 2010. Approved for publication

November 23, 2010, at 9:25 a.m.

Haring Charter Township and Selma and Clam Lake Townships

brought separate actions in the Wexford Circuit Court against the

city of Cadillac, raising counts for breach of contract, seeking specific

performance, and requesting declaratory judgment regarding the

parties’ rights under disputed contracts. In 1977 and 1980, the

townships, through Wexford County, entered into agreements with

the city for the provision of wastewater treatment and disposal

services. The agreements expressly provided they are to terminate on

May 12, 2017, and may be renewed by mutual agreement of the

parties. In 2006, defendant notified plaintiffs that it did not intend to

renew the contracts after May 2017. These suits followed. The court,

William M. Fagerman, J., consolidated the cases, and defendant

moved for summary disposition of the request for declaratory judg-

ment. Regarding the parties’ rights under the agreements, plaintiffs

asserted that they had not merely contracted for services for a finite

length of time but had purchased a percentage of the system and thus

had ownership rights that could not be terminated unilaterally by

defendant. Plaintiffs asserted that defendant had a duty to provide

wastewater treatment services through the “design life” of the

system, which was, according to them, 75 years, and that the

contracts only set forth the terms under which the services were to be

provided. The court found there was no ambiguity in the contracts’

termination clauses, concluding that plaintiffs had purchased “capac-

ity” in the system for a fixed length of time, not ownership rights, and

that federal regulations regarding “design life” did not create an

ambiguity in the contracts. Under MCL 123.742, the contracts could

not exceed 40 years, and their expiration date, set at 40 years from

execution of the 1977 contract, showed the parties were aware of the

statutory limitation. Defendant was not a public utility and so

statutes concerning such entities were inapplicable. The court

granted defendant’s motion for summary disposition on the issue.

Haring Township and Selma Township appealed separately, and the

Court of Appeals consolidated the appeals.

728 290 M

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728 [Nov

The Court of Appeals held:

1. The contracts are unambiguous. Both the 1977 and 1980

contracts contain an explicit expiration date; they are fixed-term

contracts that expire on May 12, 2017. Plaintiffs were purchasing

“capacity” of the system for that length of time; there is no

indication that plaintiffs were purchasing any ownership interest

in defendant’s facilities. To the contrary, the contracts explicitly

provided that defendant’s system and plaintiffs’ systems are

separate, and defendant and plaintiffs are separately responsible

for the operation, maintenance, expansion, improvements, and

administration of their own systems. There were no provisions in

the contracts for shared ownership or for plaintiffs to have any

ownership interest in defendant’s system.

2. Under the Federal Water Pollution Control Act of 1972, the

federal government provided grants for the construction and

expansion of wastewater treatment works, but imposed certain

requirements on recipients of grant funding. Grant money had to

be used solely for the purposes of the project as approved.

However, at the time the grants were awarded to defendant, the

regulations did not require defendant to provide services to

plaintiffs for the “design life” of the facilities. Nor did they require

defendant to operate the treatment works in a particular manner

or for a particular period of time. Defendant used the money

according to the requirement that it be used solely for the project

as approved.

3. Under MCL 123.742(1), the parties had discretion to enter

into a contract for sewage disposal for a period not exceeding 40

years. Because this is discretionary, defendant is not a public

utility and thus had no legal duty to continue to provide sewage

disposal services beyond the unambiguous date of the contracts.

Affirmed.

ANSEN

, J., dissenting, would have dismissed these matters as

unripe for adjudication. The contracts had an express termination

date of May 12, 2017. Although defendant gave notice in 2006 that

it did not intend to renew the contracts after May 2017, it does not

necessarily follow that future city administrators actually will

decline to renew the contracts; they might instead decide to renew

them and continue providing services to plaintiffs.

1. W

ASTE —

ASTEWATER

REATMENT

ERVICES —

EDERAL

RANTS —

EQUIRE-

MENTS

Federal grant money provided for the construction and expansion of

wastewater treatment works imposes certain requirements on

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729

recipients of grant funding; however, the regulations in effect in

1974 did not require the project to be operated for the length of its

design life (40 CFR 35.935-1[b]).

2. M

UNICIPAL

ORPORATIONS —

ONTRACTS —

EWAGE

REATMENT —

IME

IMIT

Parties have discretion to enter into a contract for sewage disposal

for a period not exceeding 40 years; this does not make either party

a public utility and thus the parties have no legal duty to continue

to provide sewage disposal services beyond the unambiguous date

of the contracts (MCL 123.742[1]).

Mika Meyers Beckett & Jones, PLC (by Ronald M.

Redick), and Marco S. Menezes for Haring Charter

Township.

Mika Meyers Beckett & Jones, PLC (by Ronald M.

Redick), for Selma Township.

McCurdy Wotila & Porteous, Professional Corpora-

tion (by Roger L. Wotila and Nathan Piwowarski), for

the city of Cadillac.

Amici Curiae:

Bauckham, Sparks, Lohrstorfer, Thall & Seeber, P.C.

(by John H. Bauckham), for the Michigan Townships

Association.

Varnum LLP (by Randall W. Kraker and Beverly

Holaday) for the Michigan Municipal League.

Before: B

ORRELLO

,P.J., and J

ANSEN

and B

ANDSTRA

,JJ.

ANDSTRA

, J. In Docket No. 292122, plaintiff, Haring

Charter Township, appeals by leave granted the May 4,

2009, order granting partial summary disposition in

favor of defendant, city of Cadillac. In Docket No.

292164, plaintiff, Selma Township, appeals as of right

the May 4, 2009, order granting summary disposition in

favor of defendant, city of Cadillac. We affirm.

730 290 M

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I. FACTS AND PROCEEDINGS BELOW

These consolidated cases arise from a dispute about

the scope and meaning of contracts between plaintiffs

and defendant for the provision of wastewater treat-

ment services to the townships. By their express terms,

these contracts expire on May 12, 2017. After defendant

informed plaintiffs that it did not intend to renew the

contracts, plaintiffs filed the instant actions asserting

that defendant is obligated to continue providing waste-

water treatment and disposal services to them for the

“design life” of the treatment system, which plaintiffs

assert to be at least 75 years. Plaintiffs do not dispute

that the contracts specify an expiration date of May 12,

2017, but they argue that this date applies only to the

particular terms and conditions set forth in the con-

tracts and not to defendant’s obligation to provide

wastewater treatment services. Defendant moved for

summary disposition, asserting that the contracts ex-

pire on May 12, 2017, as clearly and explicitly stated

therein, and that it has no duty to provide wastewater

treatment services to plaintiffs beyond that date. The

trial court agreed, and granted defendant’s motion.

A. BACKGROUND

In 1975, having become concerned about water qual-

ity in Lake Cadillac and Lake Mitchell, plaintiffs, defen-

dant, Cherry Grove Township, and Wexford County

(the County), prepared a “Facilities Plan,” as part of an

application for grant funding under the Federal Water

Pollution Prevention and Control Act of 1972, 33 USC

1251 et seq., (more commonly referred to as the “Clean

Water Act” or “CWA”) for the expansion and improve-

ment of defendant’s wastewater treatment facilities

to service the region. R equired as part of the grant

application process, the Facilities Plan sought “to

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define the wastewater collection needs in the City of

Cadillac for the next twenty year period” and to project

the needs of the townships for wastewater treatment

“through the year 1995.” It originally envisioned eleven

wastewater treatment service districts, primarily

within the surrounding townships, creating a wastewa-

ter “treatment loop” around Lakes Mitchell and Cadil-

lac to protect the lakes from adverse environmental

effects arising from the presence and use of septic

systems to manage waste. However, the Facilities Plan

was amended by the parties to reflect that local political

processes resulted in only certain service districts being

approved by local governments for subsequent design

and construction. The remaining service districts, in-

cluding Haring Township, were not included in the

initial implementation of the treatment system.

The portion of the Facilities Plan authored by the

County utilized the following depreciation schedule, “as-

suming zero salvage value at the end of the period,” when

analyzing the cost effectiveness of various approaches to

wastewater treatment for the affected areas:

Land Does not

Depreciate

Structures (concrete, piping, earthwork, etc.) 40 years

Process Equipment (lift stations, aeration 20 Years

equip., etc.)

Auxiliary equipment (electrical, lab 15 years

equipment, auxiliary power, etc)

In this context, the County represented that no compo-

nent of the treatment works, other than the land upon

which it sits, had a service life longer than 40 years.

Observing that the future projections would entirely con-

sume the then-existing capacity of the treatment plant in

20 years, defendant, in its portion of the Facilities Plan,

set treatment plant expansion for 1990.

732 290 M

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Ultimately, defendant received approximately $5.3

million in grant funds for expanding and improving its

existing treatment facility in accordance with the Fa-

cilities Plan. In 1977, defendant and the Wexford

County Board of Public Works (on behalf of the then-

participating townships of Selma, Clam Lake, and

Cherry Grove) entered into a contract for the collection

and treatment of wastewater from those townships (the

1977 Contract). This contract provided that the County

would construct and operate sanitary sewer collection

systems in the townships (the “County System”) that

the County would connect to defendant’s system (the

“City System”) for transportation of all wastewater

emanating from the County System to defendant’s

wastewater treatment plant for treatment and disposal.

The 1977 Contract afforded the County certain “capac-

ity rights”: the right to send up to 360,000 gallons of

wastewater daily to the City System for treatment and

disposal. In exchange for reservation of this capacity,

the County (on behalf of the then-participating town-

ships) paid defendant $566,728, an amount constituting

18 percent of the local cost share of construction (in-

cluding 18 percent of the local cost share of the 1962

construction of defendant’s treatment plant) and corre-

sponding to 18 percent, or 360,000 gallons daily, of the

facility’s then-existing treatment capacity of 2.0 million

gallons daily (MGD). The 1977 Contract provided fur-

ther:

1. The City, to the best of its ability, agrees to sell, and

the County agrees to purchase, sewage treatment and

disposal service for the County System....

2. It is agreed that those portions of the City System

within the City Limits shall remain the sole and exclusive

responsibility of the City, for all operations, maintenance,

expansions, additions, improvements and administration

including review and revision of the charge for treatment.

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3. It is agreed that those portions of the County System

outside of the City Limits shall remain the sole and

exclusive responsibility of the County for all operations,

maintenance, expansion, additions, improvements and ad-

ministration, unless otherwise provided in this Agreement.

The County shall have the sole responsibility for expansion

of the County System so long as the quantity of wastewater

emanating from such County System, as expanded, does

not exceed the capacity of the City System available to the

County as authorized herein and set forth on Table 1. The

County shall be responsible for all costs for distribution,

maintenance and collection of charges for the County

System.

Finally, the contract specified that it

shall become effective upon execution by the duly autho-

rized representatives of the parties hereto and approval

and confirmation by the Commission of the City of Cadil-

lac, the Board of Public Works of the County of Wexford

and the Wexford County Board of Commissioners, and

shall remain in effect for a period of forty (40) years from the

date hereof, and at the end of said forty (40) year period,

this agreement may be renewed for successive ten (10) year

terms, by mutual agreement. [Emphasis added.]

The effective date of the agreement being May 13, 1977,

it is undisputed that the terms of the contract expire on

May 12, 2017.

By 1980, Haring Township determined that it, too,

wished to obtain wastewater treatment services via the

County and City Systems. Accordingly, on April 8, 1980,

the County, acting on behalf of Haring Township,

entered into an agreement with defendant for the

provision of additional wastewater treatment services

to the County to accommodate Haring Township (the

1980 Contract). The 1980 Contract provided that the

County would construct and operate a sanitary sewer

system in Haring Township, which it would connect to

the City System for the transportation of all wastewater

734 290 M

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emanating from the Haring Township System to defen-

dant’s wastewater treatment plant for treatment and

disposal.

Like the 1977 Contract, the 1980 Contract provides

that the city agreed to sell and the County agreed to

purchase “sewage treatment and disposal service,” for

Haring Township, “up to a maximum capacity of

100,000 gallons per day average daily flow,” and the

County agreed, “subject to the terms and conditions of

an agreement between it and Haring Township,” to pay

buy-in costs of $69,283, an amount constituting five

percent of the local cost share of construction (including

5 percent of the 70 percent local share of costs of the

1962 construction of defendant’s wastewater treatment

plant, as well as of later improvements to the treatment

technology) and corresponding to a treatment capacity

of 100,000 gallons per day average daily flow, or five

percent of the then existing treatment capacity of 2.0

MGD. The 1980 Contract provided further that the

operation, maintenance, expansion, improvements and ad-

ditions, and administration (including the review and revi-

sion of rates and charges charged to users within the City)

of the City System shall be and remain the sole and

exclusive responsibility of the City. The County shall have

no obligation[,] liability, or responsibility for the City

System.

***

...[T]heresponsibility for operation, maintenance, ex-

pansion, additions, improvements, and administration (in-

cluding review and revision of rates and charges to users

outside the City and within the Haring Township System)

shall be the sole and exclusive responsibility of the County.

The City shall have no obligation, liability, or responsibility

for the Haring Township System. The County, subject to

the terms and conditions of an agreement between it and

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Haring Township, shall have the ability to expand the

Haring Township System within the [designated geo-

graphic] area..., so long as the quantity of wastewater

emanating from the Haring Township System, as ex-

panded, does not exceed the [contracted-for] capacity [of

100,000 gallons per day average daily flow]. The County,

subject to the terms and conditions of an agreement

between it and Haring Township, shall be responsible for

all costs of distribution, maintenance and collection of

charges for the Haring Township System.

The 1980 Contract also specified that it

shall become effective only upon its execution by the

authorized representatives of the parties hereto after its

approval and authorization for execution by the Commis-

sion of the City of Cadillac, the Board of the Department of

Public Works and the Wexford County Board of Commis-

sioners and the simultaneous execution of an agreement

between the County and Haring Township after approval

and authorization of execution of said agreement by the

respective parties to that agreement. Once effective, the

agreement shall remain in effect until May 12 of the year

2017. At that time, the agreement may be renewed if the

parties agree for successive ten (10) year terms. Either

party may terminate this agreement at the end of the initial

or subsequent terms upon a two (2) year written notice to the

other party. [Emphasis added.]

Defendant had undertaken several improvement

projects to the treatment system, at a cost of nearly $6

million, during the 1990s, including projects to increase

biological treatment measures, increase hydraulic ca-

pacity, and increase treatment and collection capacity,

without financial contribution from the plaintiffs. In

November 2006, defendant provided written notice to

plaintiffs that it did not intend to renew the contracts

upon their expiration in May 2017. Thereafter, Haring

Township filed its three-count complaint, alleging that

defendant has a legal obligation to continue providing

736 290 M

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wastewater treatment and disposal service to the town-

ship after the “ostensible” expiration of the 1980 con-

tract on May 12, 2017.

Shortly thereafter, Selma and

Clam Lake Townships filed a one-count complaint also

alleging that defendant has a legal obligation to con-

tinue providing wastewater treatment and disposal

service beyond May 12, 2017.

B. TRIAL COURT PROCEEDINGS

Defendant filed motions for summary disposition, un-

der MCR 2.116(C)(8) and (10), asserting that the 1977 and

1980 contracts clearly provide it with the authority to

discontinue wastewater treatment services to plaintiffs as

of May 12, 2017. Plaintiffs responded by seeking summary

disposition pursuant to MCR 2.116(I)(2), asserting, con-

sistent with their complaints, that defendant has an

obligation to continue to provide services after May 12,

2017. Plaintiffs asserted that under the terms of the 1977

and 1980 contracts, plaintiffs acquired contractual own-

ership of, and title to, a portion of the capacity of defen-

dant’s sewer system, that defendant is required to provide

services to the townships through at least the expiration

of the “design life” of the grant-funded sewage collection

system pursuant to requirements imposed on defendant

by the CWA’s grant-funding program and associated fed-

eral regulations, and that defendant has held itself out as

a public utility in the townships.

The trial court granted defendant’s motions for sum-

mary disposition by written opinion and order, conclud-

ing that the language of the contracts was “clear and

explicit” and provided a specific termination date of

May 12, 2017, that permissive language allowing exten-

sions of the contracts did not create a right in any of the

contracting parties to an automatic extension, and that

Haring Township’s complaint sets forth three counts; only count III

is at issue here.

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it was required to enforce the contracts as written. In

reaching this result, the trial court concluded that

plaintiffs did not purchase an ownership interest in the

sewer system, but rather purchased a certain capacity

of service in terms of millions of gallons per day for a

fixed term expiring on May 12, 2017. The trial court

also rejected plaintiffs’ argument that the contracts

contain a latent ambiguity as a result of any obligation

imposed by the CWA. Finally, the trial court concluded

that defendant had not become a public utility within

plaintiff townships.

II. ANALYSIS OF THE ISSUES RAISED ON APPEAL

On appeal, plaintiffs assert that the 1977 and 1980

contracts are both patently and latently ambiguous and

that defendant has an extracontractual legal duty to

continue providing wastewater treatment service to the

townships beyond the expiration of the Contracts.

Plaintiffs agree that

the particular terms and conditions upon which the City

has been providing sewage treatment and disposal services,

as reflected in the 1977 and 1980 Contracts, unambigu-

ously expire after May 12, 2017, such that the City does not

thereafter have to provide [such services] to the Townships

on those particular terms and conditions.

However, plaintiffs argue that, nonetheless, defendant

“is legally obligated to continue providing sewage treat-

ment and disposal services to the Townships after May

12, 2017,” on “payment terms that comply with appli-

cable state and federal law.” Therefore, plaintiffs assert,

the trial court erred by granting defendant’s motions

for summary disposition.

This Court reviews de novo a trial court’s decision to

grant summary disposition. Maiden v Rozwood, 461

Mich 109, 118; 597 NW2d 817 (1999). This appeal also

738 290 M

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involves questions of statutory and contract interpreta-

tion. “[B]oth the interpretation of a statute and a

contract are questions of law this Court reviews de

novo.” Burkhardt v Bailey, 260 Mich App 636, 646; 680

NW2d 453 (2004). When interpreting a contract, this

Court is to discern the parties’ intent by reading the

contract as a whole. Roberts v Titan Ins Co (On Recon-

sideration), 282 Mich App 339, 357; 764 NW2d 304

(2009) (“When presented with a contractual dispute, a

court must read the contract as a whole with a view to

ascertaining the intention of the parties, determining

what the parties’ agreement is, and enforcing it.”). If a

contract is unambiguous, then it must be enforced by

its plain terms. DaimlerChrysler Corp v Wesco Distri-

bution, Inc, 281 Mich App 240, 248; 760 NW2d 828

(2008); Rowe v Montgomery Ward & Co, Inc, 437 Mich

627, 650; 473 NW2d 268 (1991). Terms are ambiguous

only if they cannot possibly be read together in har-

mony. Cole v Ladbroke Racing Mich, Inc, 241 Mich App

1, 13; 614 NW2d 169 (2000). Furthermore, a court will

not create ambiguity where none previously existed.

Smith v Physicians Health Plan, Inc, 444 Mich 743,

759; 514 NW2d 150 (1994).

Plaintiffs first argue that they contracted not only for

ongoing sewage treatment and disposal services from

defendant, but that they also purchased—and thus

own—capacity in the City System in the amounts

designated in the respective contracts. They refer to

their required, up-front, “buy-in” payments to defen-

dant, corresponding “on a one-for-one basis with the

actual costs-of-construction for the capacity that was

granted to the Townships,” and assert that considering

these payments “it is absurd to suggest that the Town-

ships were paying only for ‘service’ for a fixed term,

instead of purchasing ‘capacity.’ ” Plaintiffs further

assert that they will continue to own capacity in the

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City System after May 12, 2017, and that this owner-

ship interest renders the expiration dates specified in

the contracts “patently ambiguous.” We disagree.

Both the 1977 and 1980 contracts contain an explicit

expiration date; they are fixed-term contracts that

expire on May 12, 2017. Indeed, plaintiffs acknowledge

as much. Therefore, the trial court’s conclusion that the

contracts expire on that date was indisputably correct.

Contrary to plaintiffs’ arguments, we agree with the

trial court that defendant’s obligation to provide ser-

vices under the contracts ends on May 12, 2017. The

contracts do not provide for any automatic extension, or

right to an extension; rather they provide only that the

parties may by mutual agreement, extend the contracts.

We find no patent or latent ambiguity in the plain

expiration date set forth in the contracts.

Further, the up-front payments required by the con-

tracts do not compel a different result. The contracts,

by their plain terms, provide plaintiffs with the right to

utilize a certain capacity—that is, with “capacity

rights”—for a fixed term to expire as specified in the

contracts. The contracts are thus akin to leases—here,

for a certain amount of wastewater treatment capacity

for a fixed term, in exchange for an up-front payment

correlating to the cost of construction of the treatment

system, together with monthly payments for the

amount of wastewater actually treated.

There is no

indication that plaintiffs were purchasing any owner-

ship interest in defendant’s facilities. The contracts

explicitly provide that all responsibility for the opera-

The contracts resemble a vehicle lease, in which a certain lump sum

payment is due at signing, and additional monthly payments are made for

the duration of the lease. In that situation, there is no basis for asserting

that a lessee has purchased an ongoing ownership interest in the vehicle,

merely because a percentage of its worth was paid at the start of the

contract. Yet that is essentially what plaintiffs are asserting here.

740 290 M

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728 [Nov

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tion, maintenance, expansion, improvements and ad-

ministration of the City System rests exclusively with

defendant and that the County was to have no obliga-

tion, liability, or responsibility for that system,

while at

the same time the County was to bear all responsibility

for the County System, including the Haring Township

system, with the City bearing no obligation, liability, or

responsibility for that system.

Plaintiffs next argue that defendant has an ongoing

obligation to provide wastewater treatment and disposal

services beyond the expiration date of the contracts as a

result of extrinsic requirements imposed on defendant by

the CW A. Plaintiffs rely on 40 CFR 35.935-1(b), which sets

forth the responsibilities borne by a grant recipient:

The 1977 Contract specifically provides that “[i]t is agreed that those

portions of the City System within the City Limits shall remain the sole

and exclusive responsibility of the City, for all operations, maintenance,

expansions, additions, improvements and administration including re-

view and revision of the charge for treatment.” (Emphasis added.)

Likewise, the 1980 Contract states that

[i]t is agreed by the parties that the operation, maintenance,

expansion, improvements and additions, and administration (in-

cluding the review and revision of the rates and charges charged to

users within the City) of the City System shall be and remain the

sole and exclusive responsibility of the City. The County shall have

no obligation[,] liability, or responsibility for the City System.

[Emphasis added.]

The 1977 Contract provides that “[i]t is agreed that those portions of the

County System outside of the City Limits shall remain the sole and exclusive

responsibility of the County for all operations, maintenance, expansions,

additions, improvements and administration, unless otherwise provided in

this Agreement.” Similarly, the 1980 Contract provides that

[i]t is agreed that the responsibility for operation, maintenance,

expansion, additions, improvements, and administration (including

review and revision of rates and charges to users outside the City and

within the Haring Township System) shall be the sole and exclusive

responsibility of the County. The City shall have no obligation,

liability, or responsibility for the Haring T ownship System.

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By its acceptance of the grant, the grantee agrees to

complete the treatment works in accordance with the

facilities plan, plans and specifications, and related grant

documents approved by the Regional Administrator, and to

maintain and operate the treatment works to meet the

enforceable requirements of the Act for the design life of

the treatment works. The Regional Administrator is au-

thorized to seek specific enforcement or recovery of funds

from the grantee, or to take other appropriate action...if

he determines that the grantee has failed to make good

faith efforts to meet its obligations under the grant.

Plaintiffs argue that, pursuant to this regulation, defen-

dant is obligated to provide wastewater treatment service

to them for the “design life” of the treatment facility,

regardless of the term of the contract, and further, that

the “design life” of the instant treatment system is 75

years to perpetuity, as averred by plaintiffs’ engineering

expert. Plaintiffs cite State Hwy Comm’r v Detroit City

Controller, 331 Mich 337, 352; 49 NW2d 318 (1951), to

establish that parties reach agreements with awareness of

the statutory law in effect at the time of the agreement

and therefore that statutory law becomes part of the

agreement, and Universal Underwriters Ins Co v

Kneeland, 464 Mich 491, 496-498; 628 NW2d 491 (2001),

and Stillman v Goldfarb, 172 Mich App 231, 239-241; 431

NW2d 247 (1988), to establish that courts are compelled

to construe contracts in accordance with applicable statu-

tory law whenever it is possible to do so. Thus, plaintiffs

assert that “the obligations of the CWA clearly ‘enter into

and form a part’ of the Contracts” and therefore, defen-

dant has a continuing obligation to provide wastewater

treatment services beyond May 12, 2017, as part of those

contracts.

Plaintiffs note that they are not asserting “direct claims against the

City under the CWA,” but, rather, are

742 290 M

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As plaintiffs acknowledge, however, 40 CFR

35.935-1(b), is not applicable here because it was not

in effect in 1975, when the Facilities Plan was prepared

and submitted, or in 1976 and 1977 when the grants

were actually awarded to defendant; 40 CFR 35.935-1

did not go into effect until October 1, 1978. 43 Fed Reg

44022 (September 27, 1978). Therefore, as plaintiffs

acknowledge before this court, “these grants were sub-

ject to the 1974 [United States Environmental Protec-

tion Agency (EPA)] regulations.” The 1974 regulations

speak in terms of the “service life” of various parts of

the treatments works, which the regulations define as

the “period of time during which a component of a

waste treatment management system will be capable of

performing a function.” 40 CFR Appendix A(d)(4); 39

Fed Reg 5269 (February 11, 1974). The regulations

further provide that

The service life of treatment works for a cost-

effectiveness analysis shall be as follows:

Land................................ Permanent

Structures...........................30-50 years

(includes plant buildings, concrete process tankage,

basins, etc.; sewage collection and conveyance pipelines;

lift station structures; tunnels; outfalls)[.]

relying upon the CWA and its implementing regulations for the

purpose of demonstrating that the ostensible May 12, 2017 expi-

ration date of the Contracts could not, at the time of Contract

formation, have been understood by the parties to represent a date

at which the City could wholly abandon its obligation to provide

sewage treatment and disposal services to the Service Districts

within the Townships.

In fact, while the CWA regulation upon which plaintiffs seek to rely

authorizes the regional administrator to take action if he determines that

the grantee is not compliant with the requirements and regulations

governing use of the grant and the resulting treatment works, it does not

confer standing on private parties to seek such enforcement. 40 CFR

35.935-1(b).

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Process equipment.................... 15-30 years

(includes major process equipment such as clarifier

mechanisms, vacuum filters, etc.; steel process tankage

and chemical storage facilities; electrical generating

facilities on standby service only).

Auxiliary equipment.................. 10-15 years

(includes instruments and control facilities; sewage

pumps and electric motors; mechanical equipment such

as compressors, aeration systems, centrifuges, chlorina-

tors, etc,; electrical generating facilities on regular ser-

vice).

Other service life periods will be acceptable when suffi-

cient justification can be provided. [CFR 40 Appendix

A(f)(7); 39 Fed Reg 5270 (February 11, 1974).]

Accordingly, as previously noted, the cost-

effectiveness analysis set forth in the 1975 Facilities

Plan, submitted by the parties as part of their applica-

tion for grant funding under the CWA, identifies the

service life of the components of the treatment works as

follows:

Land Does not

Depreciate

Structures (concrete, piping, earthwork, etc.) 40 years

Process Equipment (lift stations, aeration 20 Years

equip., etc.)

Auxiliary equipment (electrical, lab 15 years

equipment, auxiliary power, etc)

Plaintiffs assert that 40 CFR 35.935-1(b), although

not directly applicable here, merely reflects a preexist-

ing requirement culled from a combination of then-

existing EPA regulations and grant documents and thus

that the obligation to provide service for the “design

life” of the treatment works was part of the parties’

agreement, regardless of the effective dates of that

agreement. More specifically, plaintiffs note that the

1974 regulations required that defendant use the

744 290 M

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awarded grant funds to complete the construction of an

“operable treatment works” and “a complete waste

treatment system . . . of which the project is a part,” 40

CFR 35.935-1 and 35.905-3, and further, that grant

agreements signed by defendant require that the treat-

ment works be “completed as a cost-effective, integral

component of the overall program to provide a complete

waste treatment system,” and that the grantee “agrees

that the funds awarded will be used solely for the

purposes of the project as approved,” here, to “service

the City of Cadillac and portions of the townships” with

wastewater treatment services. Plaintiffs assert that

the 1974 regulations and grant agreements, considered

together, require that defendant use the grant monies

solely for the purposes of providing wastewater collec-

tion, transport, treatment, and disposal services to the

designated township service districts, and that if defen-

dant ceases using the treatment works to collect, trans-

port, treat, and dispose of plaintiffs’ wastewater, it will

have ceased using the grant monies “solely for the

purposes of the project approved” in violation of the

1974 regulations. From this, plaintiffs assert that de-

fendant has a continuing extracontractual duty to op-

erate the treatment works for the benefit of plaintiff

townships for the “design life” of the treatment works,

which plaintiffs assert is at least 75 years. We disagree.

There is no dispute that the grant monies received by

defendant were, in fact, used “solely for the purposes of

the project as approved”: to construct the treatment

works described in the approved Facilities Plan. There

is no assertion that defendant misappropriated grant

funds for any other purpose. There is nothing in the

regulations explicitly imposing a perpetual duty to

operate the treatment works in a particular manner or

for a particular period of time. The 1974 regulations

required that the Facilities Plan include a “cost-

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effectiveness analysis” defining the service life of the

treatment works’s various component parts, 40 CFR

35.917-1(d); 39 Fed Reg 5253 (February 11, 1974), and

the 1975 Facilities Plan did so, indicating that no

component’s service life exceeded 40 years, consistent

with the applicable regulation.

Additionally, plaintiffs’ argument completely disre-

gards the import of the term “service life” and the

definition of “service life” provided in the 1974 regula-

tions. Plaintiffs continue to refer to “design life”: the

term used in the 1978 regulations. Plaintiffs correctly

point out that the 1974 regulations define “service life”

in the context, and for purposes, of cost-effectiveness

analysis. However, plaintiffs can point to nothing in the

1974 regulations specifically obligating defendant to

operate the treatment works for the “design life” of the

system, or indeed, for any particular period of time.

Rather, as pieced together by plaintiffs, the regulations

require that defendant complete and operate the project

as approved: that is, as set forth by the Facilities Plan,

which included the parties’ representation of the ser-

vice life of the system’s components. In this regard, we

find the definition of “service life” set forth in the 1974

regulations to be persuasive in considering whether the

CWA and its implementing regulations impose any duty

on defendant to operate the treatment works beyond

the expiration date of the contracts. We conclude that

the regulations impose no such duty.

Defendant completed construction of the treatment

works in accordance with the Facilities Plan and has

maintained and operated the treatment works as contem-

plated; plaintiffs do not assert otherwise. At issue is

simply whether on May 12, 2017, defendant will have

done so for the proper amount of time, or whether

defendant is obligated to continue to provide such services

746 290 M

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beyond that date. Considering the 1974 regulations and

the representations set forth in the approved Facilities

Plan, we conclude that it will have done so, and there

being no ambiguity in the expiration date set forth in the

1977 and 1980 contracts, the contracts, and all accompa-

nying duties expire on that date.

Finally, plaintiffs argue that defendant has held itself

out as a public utility in plaintiff townships and as a

consequence defendant remains obligated to continue

providing sewer service to the townships beyond the

expiration of the contract. In support of this assertion,

plaintiffs note the definition of a public utility set forth

in Schurtz v Grand Rapids, 208 Mich 510, 524; 175 NW

421 (1919):

Both parties note that MCL 123.742(1) provides:

A county operating under this act and any 1 or more munici-

palities including the county itself may enter in a contract or

contracts for the acquisition, improvement, enlargement, or ex-

tension of a water supply, a sewage disposal, or a refuse system, or

the making of lake improvements or erosion control systems and

for the payment of the costs by the contracting municipalities,

with interest, over a period not exceeding 40 years.

Thus, plainly under Michigan law, the 1977 and 1980 contracts could not

exceed 40 years in duration. Defendant points to this as further evidence

that the parties understood that defendant’s obligation to provide

services could not extend beyond the expiration date of the contracts.

Plaintiffs argue, however, that the existence of the statute, which

prevented the parties from contracting for a term exceeding 40 years

regardless of any continuing duty on the part of defendant to operate the

treatment facility for plaintiffs’ benefit beyond that period of time,

demonstrates, again, a latent ambiguity with regard to the import and

effect of that expiration date on defendant’s duty to provide treatment

services. In advancing this argument, plaintiffs rely on the notion that

they purchased, and continue to own, capacity in defendant’s system.

However, for the reasons previously discussed, plaintiffs do not own

capacity in defendant’s treatment system, and defendant has no ongoing,

underlying legal duty to continue to provide wastewater treatment

services to plaintiffs beyond the plain and unambiguous date set forth in

the contracts.

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“[P]ublic utility” means every corporation...that may

own, control, or manage, except for private use, any equip-

ment, plant or generating machinery in the operation of a

public business or utility. Utility means the state or quality

of being useful. Was this plant one useful to the public? If

so, it was a public utility.

Plaintiffs observe that defendant is the only source of

sewage treatment in the townships. Plaintiffs assert

that “[i]t cannot be doubted . . . that the City Sewage

System is a ‘public utility’ for purposes of Michigan

law” and that defendant has held itself out as a public

utility within certain areas of the townships by entering

into the 1977 and 1980 contracts. However, Michigan

law provides municipalities with the discretion to pro-

vide services to extraterritorial units such as the town-

ships. See MCL 123.742(1); Nelson v Wayne Co, 289

Mich 284, 297-299; 286 NW 617 (1939).

Additionally,

the Michigan Constitution, as well as Michigan statu-

tory law, provides for and recognizes defendant’s discre-

The plaintiff in Nelson challenged the denial of his request to tap into

a water main constructed under a contract entered into between the

Detroit Board of Water Commissioners and Wayne County to supply

water from Detroit to the Wayne County Training School. The Supreme

Court affirmed that denial, explaining that

[t]he courts as a rule are not disposed to interfere with the

management of an authorized business, conducted by the munici-

pal authorities presumably in the interest and for the benefit of

the city and its inhabitants, unless dishonesty or fraud is manifest,

or the vested power with its implied discretion has been clearly

exceeded or grossly abused....

...[A city] may conduct [a utility] in the manner which

promises the greatest benefit to the city and its inhabitants in the

judgment of the city council; and it is not within the province of

the court to interfere with the reasonable discretion of the council

in such matters. [Nelson, 289 Mich at 297-298 (quotation marks

and citations omitted).]

748 290 M

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728 [Nov

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tion in extending sewage removal services beyond its

border. Article 7, § 24 of the 1963 Michigan Constitu-

tion provides that

[s]ubject to this constitution, any city or village may

acquire, own or operate, within or without its corporate

limits, public service facilities for supplying water, light,

heat, power, sewage disposal and transportation to the

municipality and the inhabitants thereof.

Any city or village may sell and deliver heat, power or

light without its corporate limits in an amount not exceed-

ing 25 percent of that furnished by it within the corporate

limits, except as greater amounts may be permitted by law;

may sell and deliver water and provide sewage disposal

services outside of its corporate limits in such amount as

may be determined by the legislative body of the city or

village; and may operate transportation lines outside the

municipality within such limits as may be prescribed by

law. [Emphasis added.]

Likewise, MCL 123.742(1) provides that municipalities

“may enter into a contract or contracts for...sewage

disposal . . . for the payment of the costs by the con-

tracting municipalities, with interest, over a period not

exceeding 40 years.” (Emphasis added.) And, MCL

123.232 provides that “[a]ny 2 or more political subdi-

visions may contract for the joint ownership, use and/or

operation of sewers and/or sewage disposal facilities....

Any such contract...shall be effective for such term as

shall be prescribed therein not exceeding 50 years.”

Each of these provisions contains the term “may,”

indicating permissive, discretionary activity. Gulley-

Reaves v Baciewicz, 260 Mich App 478, 485; 679 NW2d

98 (2004). Thus, plainly, Michigan law affords defen-

dant the ability to provide sewage treatment services

beyond its borders, subject to contracts of limited

duration; however, there is nothing in Michigan law

requiring that defendant do so. Simply by exercising its

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discretion to provide wastewater treatment services to

plaintiffs for a fixed duration in accordance with appli-

cable law, defendant did not become a public utility

obligated to continue to provide that service beyond the

expiration of the contract.

In sum, the issue presented here is straightforward:

Do the 1977 and 1980 contracts expire on May 12, 2017,

as plainly stated therein? We find no basis for conclud-

ing that the contracts mean anything other than that

which they plainly provide. Therefore, the trial court

did not err by concluding that defendant’s duty to

provide wastewater treatment services to plaintiffs was

governed by the 1977 and 1980 contracts, which expire

“as prescribed therein,” on May 12, 2017.

We affirm. Defendant, being the prevailing party,

may tax costs pursuant to MCR 7.219.

ORELLO

,P.J., concurred.

ANSEN

,J.(dissenting). Because I would dismiss these

consolidated matters as unripe for adjudication, I re-

spectfully dissent. Defendant city of Cadillac executed

contracts with plaintiff townships for the provision of

wastewater treatment services. By their express terms,

these contracts were set to expire May 12, 2017. The

contracts provided that “[e]ither party may terminate

this agreement at the end of the initial term or subse-

quent terms upon a two (2) year written notice to the

other party.” In November 2006, defendant provided

written notice to plaintiffs that it did not intend to

renew the contracts upon their expiration in May 2017.

Having determined that defendant is not obligated to provide waste-

water treatment services for the “design life” of the treatment works, we

need not address the issue whether plaintiffs successfully established a

genuine issue of material fact as to the length of the “design life” of the

system.

750 290 M

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728 [Nov

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,J.

Thereafter, plaintiffs brought the instant actions in the

Wexford Circuit Court, alleging that defendant had a

legal obligation to continue providing wastewater treat-

ment services to them beyond that date. With respect to

this issue, the circuit court ultimately granted sum-

mary disposition for defendant, ruling that defendant

was entitled to abide by the express termination date of

May 12, 2017, and that defendant could accordingly

terminate its services to plaintiffs at that time.

In my opinion, these consolidated matters are unripe

for adjudication. At the time of the circuit court’s

ruling, the termination date of the parties’ contracts

remained years away. Indeed, defendant was not con-

tractually required to provide written notice of its

intent to terminate the contracts until two years before

May 2017—in other words, May 2015, still almost five

years in the future. Although defendant notified plain-

tiffs in November 2006 that it did not intend to renew

the contracts or continue providing wastewater treat-

ment services beyond May 2017, it does not necessarily

follow that defendant will actually terminate its ser-

vices to plaintiffs at that time. While Cadillac’s current

city council and city administrators may fully intend to

terminate the wastewater treatment services to plain-

tiffs on May 12, 2017, it is axiomatic that one city

council may not bind its successors in office. See Hazel

Park v Potter, 169 Mich App 714, 722-723; 426 NW2d

789 (1988); see also Malcolm v East Detroit, 437 Mich

132, 139; 468 NW2d 479 (1991). In fact, future Cadillac

city councils and city administrators may view the

situation completely differently, and might, for reasons

unknowable at this time, determine that the contracts

should be renewed and that the services should be

continued. The point is that we simply do not know

what will happen in the future, and therefore the

present controversy strikes me as entirely unripe for

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judicial consideration. See Citizens Protecting Michi-

gan’s Constitution v Secretary of State, 280 Mich App

273, 282; 761 NW2d 210 (2008) (stating that “[a] claim

is not ripe if it rests upon contingent future events that

may not occur as anticipated, or may not occur at all”);

Huntington Woods v Detroit, 279 Mich App 603, 615-

616; 761 NW2d 127 (2008) (observing that “[t]he doc-

trine of ripeness is designed to prevent the adjudication

of hypothetical or contingent claims before an actual

injury has been sustained” and that “[a] claim is not

ripe if it rests upon contingent future events that may

not occur as anticipated, or indeed may not occur at

all”) (quotation marks and citations omitted). It is well

settled that “[t]he ripeness doctrine requires the judi-

ciary to refrain from giving advisory opinions on hypo-

thetical issues.” 1A CJS, Actions, § 75, p 287.

Because these consolidated matters are not yet ripe

for adjudication, the circuit court should have dismissed

plaintiffs’ claims on the ground of ripeness. I would

dismiss the present consolidated appeals for this same

reason.

752 290 M

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728

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,J.

INDEX-DIGEST

INDEX–DIGEST

ABSOLUTE DEFENSE OF IMPAIRMENT—See

EGLIGENCE

ABUSE—See

ENTENCES

ACCIDENT OR EVENT RESULTING IN PLAINTIFF’S

INJURY—See

EGLIGENCE

ACCRUED RIGHTS UNDER WILL OR DEED—See

STATES IN

ROPERTY

ACTIONS FOR MONEY HAD AND RECEIVED—See

URISDICTION

ACTIONS FOR WRONGFUL DEATH—See

EGLIGENCE

AFFIRMATIVE DEFENSES—See

ONTROLLED

UBSTANCES

1, 2

OVERNMENTAL

MMUNITY

1, 2

AGENTS—See

ORTS

AGGRAVATED PHYSICAL ABUSE—See

ENTENCES

AIDING AND ABETTING—See

RIMINAL

851

ALIMONY—See

IVORCE

AMENDATORY PUBLIC ACTS—See

ONSTITUTIONAL

AMENDMENTS OF NOTICE OF INTENT TO FILE

SUIT—See

EGLIGENCE

AMENDMENTS OF STATUTES—See

TATUTES

APPEAL

UDGMENTS

1. Kieta v Thomas M Cooley Law School, 290 Mich App 144.

OOT

SSUES

2. Kieta v Thomas M Cooley Law School, 290 Mich App 144.

ROSECUTORIAL

ISCONDUCT

3. People v Bennett, 290 Mich App 465.

APPLICATION FOR LEAVE TO FILE ACTION—See

ARRANTO

APPROVAL OF FORM OF ORDERS—See

OURTS

ARBITRABILITY OF GRIEVANCES—See

RBITRATION

ARBITRATION

See, also,

ABOR

ELATIONS

1, 2, 3

RIEVANCES

1. Whether a demand for arbitration is made before or

after the expiration of the contract containing an arbi-

tration clause is not determinative of the arbitrability of

a grievance under the contract absent specific contrac-

tual language to the contrary. American Federation of

State, County & Municipal Employees, Council 25, AFL-

CIO v Hamtramck Housing Comm, 290 Mich App 672.

COPE OF

RBITRATION

2. Any ambiguity concerning whether a specific issue falls

852 290 M

ICH

within the scope of an arbitration clause, such as

whether a claim is timely, must be resolved in favor of

submitting the question to the arbitrator for resolution;

there is a presumption of arbitrability unless it may be

said with positive assurance that the arbitration clause

is not susceptible of an interpretation that covers the

asserted dispute; doubts should be resolved in favor of

coverage. American Federation of State, County & Mu-

nicipal Employees, Council 25, AFL-CIO v Hamtramck

Housing Comm, 290 Mich App 672.

ARMED SERVICES

IVORCE

1. A military spouse remains financially responsible to

compensate his or her former spouse in an amount

equal to the share of retirement pay ordered to be

distributed to the former spouse as part of their divorce

judgment’s property division when the military spouse

makes a unilateral and voluntary postjudgment election

to waive the retirement pay in favor of disability ben-

efits contrary to the terms of the divorce judgment; the

compensation to be paid the former spouse as his or her

share of the property division in lieu of the retirement

pay can come from any source the military spouse

chooses and must be paid to avoid contempt of court.

Megee v Carmine, 290 Mich App 551.

ATTACHMENT OF JUDGMENT LIENS—See

IENS

1, 3

ATTORNEY FEES—See

OSTS

IVORCE

AUTOMOBILES—See

AXATION

AXLE-WEIGHT RESTRICTIONS ON TRUCKS—See

EHICLE

ODE

BENEFITS FOR INJURIES OCCURRING OUT OF

STATE—See

NSURANCE

NDEX

-D

IGEST

853

BIDDING FOR SCHOOL CONSTRUCTION

CONTRACTS—See

CHOOLS

BILLING ADDRESS FOR INSURANCE—See

NSURANCE

BINDOVERS—See

RIMINAL

BOLSTERING OF WITNESSES’ TESTIMONY—See

PPEAL

CAUSATION—See

OVERNMENTAL

MMUNITY

EGLIGENCE

1, 3

CHILD SUPPORT—See

OSTS

CHOICE-OF-LAW PROVISIONS—See

NDIANS

CLEAR AND UNEQUIVOCAL WAIVERS OF

SOVEREIGN IMMUNITY—See

NDIANS

CLOSED CASES TO WHICH RETROACTIVE

DECISIONS DO NOT APPLY—See

UDGMENTS

COLLECTIVE-BARGAINING AGREEMENTS—See

ABOR

ELATIONS

1, 2

COMPARATIVE-FAULT STATUTES—See

EGLIGENCE

CONFLICTS WITH FORM PROVISIONS OF

POLICIES—See

NSURANCE

CONFRONTATION CLAUSE—See

ONSTITUTIONAL

1, 2

854 290 M

ICH

CONSTITUTIONAL LAW

ONFRONTATION

LAUSE

1. People v Bennett, 290 Mich App 465.

VIDENCE

2. Testimonial statements of witnesses absent from trial

are admissible only when the original declarant is un-

available and the defendant has had a prior opportunity

to cross-examine that declarant; statements are testi-

monial if the primary purpose of the statements or the

questions that elicited them was to establish or prove

past events potentially relevant to later criminal pros-

ecution; although laboratory reports prepared by non-

testifying analysts are testimonial hearsay, data that are

automatically generated by a machine and presented

without human input, analysis, or interpretation are

not testimonial because the machine is not a witness in

any constitutional sense. (US Const, Am VI; Const 1963,

art 1, § 20). People v Dinardo, 290 Mich App 280.

ITLE

-O

BJECT

LAUSE

3. No Michigan law may embrace more than one object,

which must be expressed in the title of the act; the object

of a law is its general purpose or aim; every detail of an

act need not be specified in its title as long as the title

comprehensively declares the one main general purpose

of the act and provisions in the body of the act not

directly mentioned in the title are germane, auxiliary, or

incidental to that general purpose; the general object of

an amendatory act is to amend provisions of a statute

(Const 1963, art 4, § 24). General Motors Corp v Dep’t of

Treasury, 290 Mich App 355.

CONSTRUCTION CONTRACTS—See

CHOOLS

CONSTRUCTION OF CONTRACTS—See

ONTRACTS

CONTAMINATED PROPERTY—See

ROPERTY

CONTEMPORANEOUS FELONIOUS CRIMINAL

ACTS—See

ENTENCES

1, 2

NDEX

-D

IGEST

855

CONTINUITY OF ENTERPRISE DOCTRINE—See

ORPORATIONS

CONTRACT ACTIONS—See

URISDICTION

CONTRACT RECISSION FOR FAILURE TO PROVIDE

NOTICE OF CONTAMINATION—See

ROPERTY

CONTRACTS

See, also,

URISDICTION

UNICIPAL

ORPORATIONS

ONSTRUCTION OF

ONTRACTS

1. Haring Charter Twp v City of Cadillac, 290 Mich App 728.

CONTRACTS WITH INDIAN TRIBES—See

NDIANS

CONTROLLED SUBSTANCES

RIMINAL

EFENSES

1. People v Redden, 290 Mich App 65.

EDICAL

ARIJUANA

2. People v Redden, 290 Mich App 65.

CONVEYANCES OF PROPERTY—See

AXATION

COOWNERS—See

STATES IN

ROPERTY

CORPORATE VEIL—See

ORPORATIONS

3, 4

CORPORATIONS

IMITED

IABILITY

OMPANIES

1. Under the principles of successor liability, if a predeces-

sor company acquires a successor by merger, the succes-

sor generally assumes all of the predecessor’s liabilities;

if the purchase occurs by the exchange of cash for assets,

the successor is not liable for its predecessor’s liabilities

unless an exception applies; the five recognized excep-

856 290 M

ICH

tions are (1) when there was an express or implied

assumption of liability, (2) when the transaction

amounted to a consolidation or merger, (3) when the

transaction was fraudulent, (4) when some elements of

a good-faith purchase were lacking or the transfer was

without consideration and the predecessor’s creditors

were not provided for, and (5) when the successor is a

mere continuation or reincarnation of the predecessor.

Lakeview Commons Ltd Partnership v Empower Your-

self, LLC, 290 Mich App 503.

2. A successor limited liability company can be held liable for

its predecessor’s liabilities when the successor is a mere

continuation or reincarnation of the predecessor; a prima

facie case of continuity of enterprise exists when the

plaintiff establishes the following: (1) a continuation of the

predecessor company, so that there is a continuity of

management, personnel, physical location, assets, and

general business operations of the predecessor, (2) that the

predecessor ceased its ordinary business operations, liqui-

dated, and dissolved as soon as legally and practically

possible, and (3) that the successor assumed those liabili-

ties and obligations of the predecessor ordinarily necessary

for the uninterrupted continuation of normal business

operations of the predecessor company; an additional

relevant consideration is whether the successor held itself

out to the world as the effective continuation of the

predecessor. Lakeview Commons Ltd P artnership v Em-

power Yourself, LLC, 290 Mich App 503.

3. The elements for piercing the corporate veil apply to

limited liability companies; those elements are (1) that

the business entity is a mere instrumentality of another

individual or entity, (2) that the business entity was

used to commit a wrong or fraud, and (3) that there was

an unjust injury or loss to the plaintiff. Lakeview Com-

mons Ltd Partnership v Empower Yourself, LLC, 290

Mich App 503.

UBSIDIARIES

4. Absent some abuse of the corporate form, parent and

subsidiary corporations are treated as separate entities;

to state a claim for tort liability based on an alleged

parent-subsidiary relationship, a plaintiff must allege

the existence of a parent-subsidiary relationship and

facts that justify piercing the corporate veil; the plaintiff

must show all the following: (1) that the corporate entity

NDEX

-D

IGEST

857

is a mere instrumentality of another entity or indi-

vidual, (2) that the corporate entity was used to commit

fraud or a wrong, and (3) that, as a result, the plaintiff

suffered an unjust injury or loss. Dutton Partners, LLC

v CMS Energy Corp, 290 Mich App 635.

COSTS

TTORNEY

EES

1. Keinz v Keinz, 290 Mich App 137.

COURT OF CLAIMS—See

URISDICTION

COURTS

RDERS

1. A court must sign and enter an order if all parties

approve the form of the order and, in the court’s

determination, the order is in conformity with the

court’s decision (MCR 2.602[B]). In re Leete Estate, 290

Mich App 647.

EALING

OURT

ECORDS

2. A court may not seal court records unless (1) a party has

filed a written motion that identifies the specific interest

to be protected, (2) the court has made a finding of good

cause, in writing or on the record, that specifies the

grounds for the order, and (3) there is no less restrictive

means to adequately protect the specific interest as-

serted; however, the court is specifically prohibited from

sealing a court order or opinion (MCR 8.119[F] [1], [5]).

Jenson v Puste, 290 Mich App 338.

CRIMINAL DEFENSES—See

ONTROLLED

UBSTANCES

1, 2

CRIMINAL LAW

See, also,

ONTROLLED

UBSTANCES

1, 2

ENTENCES

1, 2, 3

IDING AND

BETTING

1. People v Bennett, 290 Mich App 465.

ORFEITURES AND

ENALTIES

2. The term “intentionally” in the statute providing that

an individual who feloniously and intentionally kills the

decedent forfeits all benefits with respect to the dece-

858 290 M

ICH

dent’s estate and providing that if the decedent died

intestate, the decedent’s intestate estate passes as if the

killer disclaimed his or her intestate share, prevents a

person convicted of voluntary manslaughter from ben-

efitting from the victim’s estate (MCL 700.2803). In re

Nale Estate, 290 Mich App 704.

RELIMINARY

XAMINATIONS

3. People v Bennett, 290 Mich App 465.

DATAMASTER TESTS—See

VIDENCE

DECEDENTS’ ESTATES—See

RIMINAL

STATES IN

ROPERTY

DECLARANTS—See

VIDENCE

DEEDS—See

STATES IN

ROPERTY

DEFAMATION—See

IBEL AND

LANDER

DEFECTS IN NOTICE OF INTENT TO FILE SUIT—See

IMITATION OF

CTIONS

EGLIGENCE

DEFENSES—See

ONTROLLED

UBSTANCES

1, 2

OVERNMENTAL

MMUNITY

1, 2

IBEL AND

LANDER

DEMANDS FOR ARBITRATION—See

RBITRATION

DEMONSTRATION EXEMPTION FROM USE

TAX—See

AXATION

DISABILITY BENEFITS—See

RMED

ERVICES

NDEX

-D

IGEST

859

DISCOVERY—See

EALTH

DISCRETIONARY ACTS—See

OVERNMENTAL

MMUNITY

2, 4

DIVORCE—See

See, also, A

RMED

ERVICES

OSTS

TTORNEY

EES

1. A court may not refuse a need-based request for attor-

ney fees on the ground that neither party had engaged

in egregious conduct or wasteful litigation; a party who

requests attorney fees and expenses must establish that

the party is unable to bear the expense of the action and

that the other party is able to pay; in a divorce action,

this rule requires an award of attorney fees only as

necessary to enable a party to prosecute or defend a suit

without invading the same spousal assets on which the

party is relying for support (MCR 3.206[C][2][a]). My-

land v Myland, 290 Mich App 691.

POUSAL

UPPORT

2. The statutory provision governing awards of spousal

support in divorce actions prohibits the use of rigid and

arbitrary formulas that fail to account for the parties’

unique circumstances and relative positions; a trial

court must consider the relevant spousal-support fac-

tors to balance the incomes and needs of the parties in a

way that will not impoverish either party and is just and

reasonable under the circumstances; among the factors

a court must consider in determining a spousal-support

award are (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, (11) contributions of the parties to the

joint estate, (12) a party’s fault in causing the divorce,

(13) the effect of cohabitation on a party’s financial

860 290 M

ICH

status, and (14) general principles of equity (MCL

552.23). Myland v Myland, 290 Mich App 691.

DOWER INTEREST OF NONDEBTOR—See

IENS

DUE PROCESS—See

TATUTES

DUTIES OF PREMISES POSSESSORS AND

LESSEES—See

EGLIGENCE

DUTY TO ARBITRATE LABOR GRIEVANCES—See

ABOR

ELATIONS

DWELLING FOR PURPOSES OF COVERAGE—See

NSURANCE

ELEMENTS OF AIDING AND ABETTING—See

RIMINAL

ELEMENTS OF DEFAMATION—See

IBEL AND

LANDER

ELEMENTS OF RES IPSA LOQUITOR—See

EGLIGENCE

ELEMENTS OF TORTIOUS INTERFERENCE WITH A

BUSINESS EXPECTANCY—See

ORTS

EMBRYOS—See

EGLIGENCE

EMPLOYEES—See

OVERNMENTAL

MMUNITY

1, 2, 3, 4

EMPLOYMENT

TATE

MPLOYEES’

ETIREMENT

YSTEM

1. The term “duty” in the phrase “totally incapacitated for

further performance of duty” in MCL 38.24(1)(b) refers

or relates solely to the state job from which the member

NDEX

-D

IGEST

861

of the State Employees’ Retirement System seeks retire-

ment on the basis of a non-duty-related injury or dis-

ease; when determining whether the member is totally

incapacitated an thus eligible to retire, it is impermis-

sible to consider other jobs or employment fields that

might be suitable for the member; total incapacitation

relates solely to the incapacity of the member to con-

tinue performing, or to further perform, the state job

from which the member seeks retirement. Nason v State

Employees’ Retirement System, 290 Mich App 416.

ENDORSEMENTS—See

NSURANCE

ENTITLEMENT TO APPEAL—See

PPEAL

ENVIRONMENT—See

ROPERTY

ESTATES AND PROTECTED INDIVIDUALS

CODE—See

STATES IN

ROPERTY

1, 2, 3

ESTATES IN PROPERTY

STATES AND

ROTECTED

NDIVIDUALS

ODE

1. The Estates and Protected Individuals Code applies to a

nonresident’s property located in this state (MCL

700.1301[b]). In re Leete Estate, 290 Mich App 647.

2. The Estates and Protected Individuals Code applies to a

governing instrument executed before the code came

into effect as long as the code does not affect an accrued

right and as long as the governing instrument, including

a will or a deed, does not contain a clear indication of

contrary intent (MCL 700.8101[2][a], [d], and [e]). In re

Leete Estate, 290 Mich App 647.

3. The Estates and Protected Individuals Code requires that

a coowner survive a deceased coowner by more than 120

hours to be entitled to property that passes due to a right

of survivorship, unless a governing instrument, including

a will or a deed, expressly provides otherwise; if two

coowners with rights of survivorship die within 120 hours

of one another, the property is divided in equal shares

between each coowner’s estate; survivorship must be

862 290 M

ICH

proved by clear and convincing evidence (MCL

700.2702[3]). In re Leete Estate, 290 Mich App 647.

EVIDENCE

See, also,

ONSTITUTIONAL

1, 2

EARSAY

1. Hearsay is a statement other than one made by the

declarant while testifying at the trial or hearing offered in

evidence to prove the truth of the matter asserted; a

printout of machine-generated information does not con-

stitute hearsay because a machine is not a person and

therefore not a declarant capable of making a statement

(MRE 801[b], [c]). P eople v Dinardo, 290 Mich App 280.

2. A hearsay document may be admitted if the document

pertains to matters about which the declarant once had

knowledge, the declarant now has an insufficient recol-

lection about those matters, and the document is shown

to have been made by the declarant or, if made by one

other than the declarant, to have been examined by the

declarant and shown to accurately reflect the

declarant’s knowledge when the matters were fresh in

his or her memory (MRE 803[5]). People v Dinardo, 290

Mich App 280.

EX CONTRACTU CLAIMS AGAINST THE STATE—See

URISDICTION

EX PARTE INTERVIEWS WITH HEALTH-CARE

PROVIDERS—See

EALTH

EXCEPTIONS TO EXEMPTIONS FOR RENAISSANCE

ZONES—See

AXATION

EXCESSIVE BRUTALITY—See

ENTENCES

EXEMPTIONS FOR RENAISSANCE ZONES—See

AXATION

EXEMPTIONS FROM USE TAX—See

AXATION

NDEX

-D

IGEST

863

EXPIRATION DATES—See

ONTRACTS

EXPIRED COLLECTIVE-BARGAINING

AGREEMENTS—See

ABOR

ELATIONS

EXPLICIT WAIVERS OF JURISDICTION—See

NDIANS

FACILITIES UNDER NATURAL RESOURCES AND

ENVIRONMENTAL PROTECTION ACT—See

ROPERTY

FACTORS FOR DETERMINING SPOUSAL

SUPPORT—See

IVORCE

FAILURE OF JUDGMENT DEBTOR TO SATISFY THE

JUDGMENT—See

IENS

FAILURE TO PROVIDE WRITTEN NOTICE THAT

PROPERTY IS A CONTAMINATED FACILITY—See

ROPERTY

FEDERAL GRANTS FOR WASTEWATER

TREATMENT—See

ASTE

FETUSES—See

EGLIGENCE

FINAL JUDGMENTS—See

UDGMENTS

FIRST-DEGREE MURDER—See

RIMINAL

FORECLOSURE OF LIENS—See

IENS

864 290 M

ICH

FORFEITURES AND PENALTIES—See

RIMINAL

FORSEEABILITY—See

EGLIGENCE

FORM OF ORDERS—See

OURTS

FRIVOLOUS ACTIONS OR DEFENSES—See

OSTS

GENERAL LEGISLATION OR ACTS—See

TATUTES

GOVERNMENTAL IMMUNITY

MPLOYEES

1. A trial court, when a defendant raises the affirmative

defense of individual governmental immunity to a

negligent-tort claim, must determine if the defendant

caused an injury or damage while acting in the course of

employment or service or on behalf of the defendant’s

governmental employer and whether (1) the defendant

was acting or reasonably believed that he or she was

acting within the scope of his or her authority, (2) the

governmental agency was engaged in the exercise or

discharge of a governmental function, and (3) the defen-

dant’s conduct amounted to gross negligence that was

the proximate cause of the injury or damage; “proximate

cause,” in this context, is the one most immediate,

efficient, and direct cause preceding the injury or dam-

age (MCL 691.1407[2]). Oliver v Smith, 290 Mich App

678.

2. A trial court, when a defendant raises the affirmative

defense of individual governmental immunity to an

intentional-tort claim, must determine whether the

defendant established that he or she is entitled to

individual governmental immunity by showing (1) the

acts were undertaken during the course of employment

and the defendant was acting, or reasonably believed

that he or she was acting, within the scope of his or her

authority, (2) the acts were undertaken in good faith, or

NDEX

-D

IGEST

865

were not undertaken with malice, and (3) the acts were

discretionary, as opposed to ministerial. Oliver v Smith,

290 Mich App 678.

3. “Gross negligence” by a governmental employee, for

purposes of governmental immunity, involves conduct

so reckless as to demonstrate a substantial lack of

concern for whether an injury results; the issue is a

factual question for the jury if reasonable jurors could

honestly reach different conclusions regarding whether

the subject conduct constituted gross negligence; the

issue may be determined by the court in response to a

motion for summary disposition if reasonable minds

could not differ regarding whether the subject conduct

constituted gross negligence. Oliver v Smith, 290 Mich

App 678.

4. A governmental employee enjoys a qualified right to

immunity with regard to alleged intentional torts if (1)

the employee’s challenged acts were undertaken during

the course of employment and the employee was acting,

or reasonably believed that he or she was acting, within

the scope of his or her authority, (2) the acts were

undertaken in good faith, or were not undertaken with

malice, and (3) the acts were discretionary, rather than

ministerial, in nature; the “good faith” element is sub-

jective in nature. Oliver v Smith, 290 Mich App 678.

GRIEVANCES—See

RBITRATION

GROSS NEGLIGENCE—See

OVERNMENTAL

MMUNITY

1, 3

HEALTH

EALTH

NSURANCE

ORTABILITY AND

CCOUNTABILITY

1. Ex parte interviews by defense counsel are permitted

under Michigan law as long as the party seeking discov-

ery moves for a qualified protective order as required by

HIPAA; on reasonable notice and for good cause shown,

the court may issue any order that justice requires to

protect a party or person from annoyance, embarrass-

ment, oppression, or undue burden or expense (42 USC

1320d et seq.; 45 CFR 164.512[e][1]; MCR 2.302[C]).

Szpak v Inyang, 290 Mich App 711.

866 290 M

ICH

HEALTH-CARE PROVIDERS—See

EALTH

HEALTH INSURANCE PORTABILITY AND

ACCOUNTABILITY ACT—See

EALTH

HEARSAY—See

ONSTITUTIONAL

VIDENCE

1, 2

HOMEOWNER’S INSURANCE—See

NSURANCE

HOMICIDE—See

RIMINAL

IMPROPER ARGUMENTS—See

PPEAL

IMPROPER VOUCHING FOR CREDIBILITY OF

WITNESSES—See

PPEAL

IMPROVEMENTS SUBJECT TO SPECIAL

ASSESSMENTS—See

AXATION

INDIANS

OVEREIGN

MMUNITY

1. An Indian tribe is subject to suit only if Congress has

authorized the suit or the tribe has clearly and un-

equivocally waived its sovereign immunity. Bates Asso-

ciates, LLC v 132 Associates, LLC, 290 Mich App 52.

RIBAL

-C

OURT

URISDICTION

2. The inclusion of a choice-of-law provision in a contract

to which an Indian tribe is a party may explicitly waive

tribal-court-jurisdiction. Bates Associates, LLC v 132

Associates, LLC, 290 Mich App 52.

INJURIES OCCURRING OUT OF STATE—See

NSURANCE

NDEX

-D

IGEST

867

INSTRUCTIONS TO JURY—See

EGLIGENCE

INSURANCE

NDORSEMENTS

1. When a conflict arises between the terms of an endorse-

ment and the insurance policy’s form provisions, the

terms of the endorsement prevail; an endorsement may

grant coverage not otherwise provided or may remove

the effect of particular exclusions. Besic v Citizens Ins

Co of the Midwest, 290 Mich App 19.

-F

AULT

2. Under MCL 500.3163(1), an insurer authorized to sell

automobile insurance in this state must provide per-

sonal protection insurance benefits if its insured is an

out-of-state resident who suffers accidental bodily injury

that occurs in Michigan and arises from the ownership,

operation, maintenance, or use of a motor vehicle as a

motor vehicle; but that statute does not apply when a

Michigan resident is injured in an out-of-state accident.

Besic v Citizens Ins Co of the Midwest, 290 Mich App 19.

3. A person named in a no-fault insurance policy is

entitled to personal protection insurance benefits

payable in accord with that policy; however, if the

person is an employee who is injured while an occu-

pant of a vehicle owned by his or her employer, then

the employee is entitled to benefits payable by the

insurer of the vehicle; in the case of a self-employed

person, the insurer of the business vehicle is the

insurer with the highest order priority for payment of

benefits (MCL 500.3114[1], [3]). Besic v Citizens Ins

Co of the Midwest, 290 Mich App 19.

ROPERTY

NSURANCE

4. Language in an insurance policy providing that to be a

“dwelling” covered by the policy, the building must be

identified in the policy declarations, the insured must

reside there, and the building must be used as a private

residence indicates that the insured must reside at the

property not only at the time the policy becomes effec-

tive, but also at the time of a loss sought to be covered

under the policy; the term “reside” requires that the

insured actually live at the property. McGrath v Allstate

Ins Co, 290 Mich App 434.

868 290 M

ICH

5. An insured’s act of notifying its real property insurer

that the insured’s billing address has changed is insuf-

ficient as a matter of law to put the insurer on notice

that the insured no longer lived full-time at the property

or to obligate the insurer to inquire further about the

occupancy of the property. McGrath v Allstate Ins Co,

290 Mich App 434.

NINSURED

-M

OTORIST

ENEFITS

6. 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 position, however,

in order to cut off its responsibility under an uninsured-

motorist policy provision that requires the joinder of all

tortfeasors in any suit brought against the insurer by

the insured on the basis that the insured failed to

comply with the joinder provision. Bradley v State Farm

Automobile Ins Co, 290 Mich App 156.

INTENTIONAL TORTS—See

OVERNMENTAL

MMUNITY

2, 4

INTENTIONALLY—See

RIMINAL

INTERFERENCE WITH A BUSINESS

EXPECTANCY—See

ORTS

1, 2, 3, 4

INTOXICATED PLAINTIFFS—See

EGLIGENCE

INVITEES—See

EGLIGENCE

JOINDER OF TORTFEASORS—See

NSURANCE

JOINT LIABILITY—See

EGLIGENCE

JUDGMENT LIENS—See

IENS

1, 2, 3, 4

NDEX

-D

IGEST

869

JUDGMENTS

See, also,

PPEAL

ELIEF

ROM

UDGMENTS

1. Relief from a final judgment under MCR 2.612(C)(1)(f)

requires both the presence of extraordinary circum-

stances that mandate setting aside the judgment to

achieve justice and a demonstration that setting aside

the judgment will not detrimentally effect the substan-

tial rights of the opposing party; extraordinary circum-

stances warranting relief from a judgment generally

arise when the judgment was obtained by the improper

conduct of a party. King v McPherson Hospital, 290

Mich App 299.

ETROACTIVE

PPLICATION OF

UDGMENTS

2. New legal principles, even when applied retroactively, do

not apply to cases already closed; when a case is given

some form of retroactive application, it does not apply to

cases that are no longer pending. King v McPherson

Hospital, 290 Mich App 299.

JURISDICTION

See, also,

NDIANS

OURT OF

LAIMS

1. It is the essential nature of the claim and not the

particular type of relief sought that determines whether

the Court of Claims has exclusive subject-matter juris-

diction; by statute, the Court of Claims has exclusive

subject-matter jurisdiction over claims against the state

that are ex contractu or ex delicto in nature; an action

seeking a refund of fees paid to or monies withheld by

the state is properly characterized as a claim in assump-

sit for money had and received and is ex contractu in

nature and therefore within the exclusive subject-

matter jurisdiction of the Court of Claims (MCL

600.6419[1][a]). Oakland County v Dep’t of Human

Services, 290 Mich App 1.

JURY INSTRUCTIONS—See

EGLIGENCE

KNOWLEDGE OF PRINCIPAL’S INTENT—See

RIMINAL

870 290 M

ICH

LABOR RELATIONS

RBITRATION

1. The right to grievance arbitration survives the expira-

tion of a collective-bargaining agreement that provides

the right to arbitration when the dispute concerns the

kinds of rights that could accrue or vest during the term

of the agreement; this rule, however, does not negate

explicit language in a collective-bargaining agreement

that contravenes the rule, and parties may explicitly

agree that accrued and vested rights and the right to

arbitrate concerning them are extinguished when their

collective-bargaining agreement expires. American Fed-

eration of State, County & Municipal Employees, Coun-

cil 25 v Wayne County, 290 Mich App 348.

2. There is a presumption of arbitrability when a

collective-bargaining agreement contains an arbitration

clause; an order to arbitrate a particular grievance

should not be denied unless it may be said with positive

assurance that the arbitration clause is not susceptible

of an interpretation that covers an asserted dispute;

doubts should be resolved in favor of coverage. Ameri-

can Federation of State, County & Municipal Employees,

Council 25 v Wayne County, 290 Mich App 348.

3. The duty to arbitrate grievances arises from the con-

tractual agreement between an employer and its em-

ployees; where an employer and a union have contrac-

tually agreed to arbitration, in the absence of explicit

contractual direction to the contrary, all doubts regard-

ing the proper forum should be resolved in favor of

arbitration. American Federation of State, County &

Municipal Employees, Council 25, AFL-CIO v

Hamtramck Housing Comm, 290 Mich App 672.

LARCENY FROM THE PERSON—See

ENTENCES

LARCENY IN A BUILDING—See

ENTENCES

LAWFUL ACTS DONE WITH MALICE AND

UNJUSTIFIED IN LAW—See

ORTS

LIABILITY OF SUCCESSOR COMPANIES—See

ORPORATIONS

1, 2

NDEX

-D

IGEST

871

LIBEL AND SLANDER

EFAMATION

1. Wilson v Sparrow Health System, 290 Mich App 149.

LIENS

UDGMENT

IENS

1. A judgment lien under the Michigan judgment lien act

does not attach to an interest in real property owned as

tenants by the entirety unless the judgment was entered

against both the husband and the wife; however, the

statute does not protect a woman who has only a dower

interest in property from the filing and attachment of a

judgment lien when her spouse is the sole judgment

debtor (MCL 600.2807[1]). Thomas v Dutkavich, 290

Mich App 393.

2. The judgment debtor is obligated under the Michigan

judgment lien act to pay the judgment creditor from the

proceeds of a sale of real estate to which a judgment lien

had attached; the purchaser of the property is not

obligated to pay the judgment creditor (MCL 600.2819).

Thomas v Dutkavich, 290 Mich App 393.

3. A judgment lien recorded under the Michigan judgment

lien act remains attached to the property and is not

dischargeable if the judgment debtor has not made pay-

ment from the proceeds of a sale of the property despite

the fact of new ownership of the property (MCL 600.2801

et seq.). Thomas v Dutkavich, 290 Mich App 393.

4. There is no right to foreclose a judgment lien created

under the Michigan judgment lien act (MCL 600.2819).

Thomas v Dutkavich, 290 Mich App 393.

LIMITATION OF ACTIONS

EDICAL

ALPRACTICE

1. A medical-malpractice action that is not commenced

within the time prescribed by MCL 600.5838a is barred.

Hoffman v Boonsiri, 290 Mich App 34.

2. A second notice of intent to bring a medical malpractice

action that is sent with fewer than 182 days remaining

in the limitations period can initiate tolling under MCL

600.5856(c) as long as the first notice of intent to sue did

not initiate such tolling. Hoffman v Boonsiri, 290 Mich

App 34.

3. Deficiencies in the content of a notice of intent to bring

872 290 M

ICH

a medical-malpractice action do not preclude tolling of

the applicable statute of limitations under MCL

600.5856(c). Hoffman v Boonsiri, 290 Mich App 34.

LIMITED LIABILITY COMPANIES—See

ORPORATIONS

1, 2, 3

MACHINE-GENERATED TESTS FOR BLOOD

ALCOHOL LEVEL—See

ONSTITUTIONAL

VIDENCE

MANSLAUGHTER—See

RIMINAL

MARIJUANA—See

ONTROLLED

UBSTANCES

1, 2

MEDICAL MALPRACTICE—See

EALTH

IMITATION OF

CTIONS

1, 2, 3

EGLIGENCE

2, 3

MEDICAL MARIJUANA—See

ONTROLLED

UBSTANCES

1, 2

MEDICAL-PROCEDURE EXCEPTION TO

WRONGFUL-DEATH ACTIONS FOR EMBRYOS OR

FETUSES—See

EGLIGENCE

MICHIGAN JUDGMENT LIEN ACT—See

IENS

1, 2, 3, 4

MICHIGAN MEDICAL MARIHUANA ACT—See

ONTROLLED

UBSTANCES

1, 2

MICHIGAN RENAISSANCE ZONE ACT—See

AXATION

MICHIGAN VEHICLE CODE—See

EHICLE

ODE

NDEX

-D

IGEST

873

MILITARY DISABILITY BENEFITS—See

RMED

ERVICES

MILITARY RETIREMENT PAY—See

RMED

ERVICES

MISCONDUCT OF PROSECUTING ATTORNEYS—See

PPEAL

MOOT ISSUES—See

PPEAL

MOTIONS AND ORDERS—See

OURTS

MOTIONS TO QUASH BINDOVERS—See

RIMINAL

MOTOR VEHICLES—See

EHICLE

ODE

MUNICIPAL CORPORATIONS

ONTRACTS

1. Parties have discretion to enter into a contract for

sewage disposal for a period not exceeding 40 years; this

does not make either party a public utility and thus the

parties have no legal duty to continue to provide sewage

disposal services beyond the unambiguous date of the

contracts (MCL 123.742[1]). Haring Charter Twp v City

of Cadillac, 290 Mich App 728.

MUNICIPAL SPECIAL ASSESSMENTS—See

AXATION

MURDER—See

RIMINAL

NATURAL RESOURCES AND ENVIRONMENTAL

PROTECTION ACT—See

ROPERTY

NEED-BASED ATTORNEY FEES—See

IVORCE

874 290 M

ICH

NEGLIGENCE

See, also,

OVERNMENTAL

MMUNITY

1, 3

EALTH

OMPARATIVE

-F

AULT

TATUTES

1. The purpose of enacting the comparative-fault statutes

was to eliminate joint and several liability in situations

in which that liability exists; the comparative-fault

statutes are inapplicable with respect to fact patterns

entailing multiple torts separated in time, multiple torts

separated by individual causal chains, and multiple torts

that did not produce a single, indivisible injury (MCL

600.2956, 600.2957, 600.6304). Vandonkelaar v Kid’s

Kourt, LLC, 290 Mich App 187.

EDICAL

ALPRACTICE

2. MCL 600.2301 allows for the amendment of processes,

pleadings, or proceedings and may be used to cure

defects in a notice of intent under MCL 600.2912b;

determining whether MCL 600.2301 applies involves 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; in medical malpractice cases, in

which the defendants are health professionals with

enough medical expertise to understand the nature of

the claims against them, defects present in a notice of

intent do not implicate substantial rights; when a plain-

tiff makes a good-faith attempt to comply with the

requirements for the notice of intent set forth in MCL

600.2912b, allowing an amendment to cure any defects

in the notice is in the furtherance of justice. Swanson v

Port Huron Hospital (On Rem), 290 Mich App 167.

3. Beebe v Hartman, 290 Mich App 512.

REMISES

IABILITY

4. Premises liability is based on both possession and con-

trol over the land because the person having possession

and control is normally best able to prevent harm to

others; possession for purposes of premises liability

depends on the actual exercise of dominion and control

over the property; a person, however, may be under a

legal duty with respect to premises by voluntarily as-

suming a function that the person is not legally required

to perform. Hoffner v Lanctoe, 290 Mich App 449.

5. A landowner generally does not have a duty to remove

NDEX

-D

IGEST

875

open and obvious dangers, but a landowner does have a

duty to protect invitees from an open and obvious danger

when special aspects of the condition make it unreason-

ably dangerous, that is, when the danger is effectively

unavoidable or imposes a uniquely high likelihood of harm

or severity of harm; a business owner cannot defend a

claim by arguing that customers it has invited onto its

premises technically had the option of declining the invi-

tation and that the condition was therefore avoidable.

Hoffner v Lanctoe, 290 Mich App 449.

PSA

OQUITUR

6. Instructing a jury on the doctrine of res ipsa loquitur is

appropriate when the requesting party presents sufficient

evidence (1) that the event was of a kind that ordinarily

does not occur in the absence of someone’s negligence, (2)

that it was caused by an agency or instrumentality within

the exclusive control of the defendant, (3) that it was not

due to any voluntary action or contribution on the part of

the plaintiff, and (4) that evidence of the true explanation

of the event is more readily accessible to the defendant

than the plaintiff . Swanson v Port Huron Hospital (On

Rem), 290 Mich App 167.

UPERSEDING

AUSES OF

NJURIES

7. Wilson v Sparrow Health System, 290 Mich App 149.

RONGFUL

-D

EATH

TATUTE

8. MCL 600.2922a(2)(b) provides that a person is not liable

for damages for the death of an embryo or fetus if the

death was the result of a medical procedure performed

by a physician or other licensed health professional

within the scope of his or her practice and (1) performed

with the pregnant individual’s consent, (2) performed

with the consent of an individual who may lawfully

provide consent on the pregnant individual’s behalf, or

(3) performed without consent as necessitated by a

medical emergency. Johnson v Pastoriza, 290 Mich App

260.

9. An action under the wrongful-death statute must be

brought in the name of the personal representative of

the estate of the deceased; the persons who may be

entitled to damages under the statute must submit to

the personal representative a claim for those damages

(MCL 600.2922[7]). Johnson v Pastoriza, 290 Mich App

260.

876 290 M

ICH

NO-FAULT—See

NSURANCE

2, 3

NON-DUTY-RELATED INJURY OR DISEASE—See

MPLOYMENT

NONRESIDENTS OWNING PROPERTY—See

STATES IN

ROPERTY

NONTESTIMONIAL STATEMENTS—See

ONSTITUTIONAL

NOTICE OF CHANGE OF BILLING ADDRESS—See

NSURANCE

NOTICE OF CHANGE OF OCCUPANCY OF INSURED

PREMISES—See

NSURANCE

NOTICE OF CONTAMINATED PROPERTY—See

ROPERTY

NOTICE OF INTENT TO FILE SUIT—See

IMITATION OF

CTIONS

2, 3

EGLIGENCE

OCCUPANCY OF INSURED PREMISES—See

NSURANCE

OFFENSE VARIABLE 7—See

ENTENCES

OFFENSE VARIABLE 12—See

ENTENCES

1, 2

120-HOUR RULE—See

STATES IN

ROPERTY

OPEN AND OBVIOUS DANGERS—See

EGLIGENCE

OPINIONS—See

OURTS

NDEX

-D

IGEST

877

ORDERS—See

PPEAL

OURTS

1, 2

PARTIES ENTITLED TO WRONGFUL-DEATH

DAMAGES—See

EGLIGENCE

PAYMENTS BY JUDGMENT DEBTOR—See

IENS

PERIODS OF LIMITATIONS—See

IMITATION OF

CTIONS

2, 3

PERSONAL PROTECTION INSURANCE

BENEFITS—See

NSURANCE

2, 3

PERSONAL REPRESENTATIVES—See

EGLIGENCE

PHYSICIANS—See

EALTH

PIERCING THE CORPORATE VEIL—See

ORPORATIONS

3, 4

POSSESSORS OF PREMISES—See

EGLIGENCE

POSTJUDGMENT ELECTIONS TO WAIVE MILITARY

RETIREMENT PAY—See

RMED

ERVICES

PREJUDICE TO INSURERS—See

NSURANCE

PRELIMINARY EXAMINATIONS—See

RIMINAL

PREMISES LIABILITY—See

EGLIGENCE

4, 5

878 290 M

ICH

PRESERVING APPELLATE ISSUES—See

PPEAL

PRESUMPTION OF ARBITRABILITY—See

RBITRATION

ABOR

ELATIONS

PREVAILING PARTIES ENTITLED TO COSTS—See

OSTS

PRIORITY OF INSURERS—See

NSURANCE

PROCEDURES FOR MUNICIPAL

SPECIAL ASSESSMENTS—See

AXATION

PROPERTY

See, also,

STATES IN

ROPERTY

NVIRONMENT

1. Part 201 of the Natural Resources and Environmental

Protection Act prohibits a person from transferring an

interest in real property that meets specific criteria with

respect to environmental contamination and thus is de-

fined as a “facility” under the act without notifying the

transferee in writing that the property is a facility and

disclosing the general nature and extent of the contami-

nation; there is no statutorily specified remedy for a

violation of this requirement, but contracts founded on

acts prohibited by statute or made in violation of public

policy are void; thus, a contract transferring an interest in

property that is a facility without the required notice is

void (MCL 324.20101[o], 324.20116[1]). 1031 Lapeer LLC

v Rice, 290 Mich App 225.

PROPERTY DIVISIONS—See

RMED

ERVICES

PROPERTY INSURANCE—See

NSURANCE

4, 5

PROPERTY PURCHASED FOR RESALE OR

DEMONSTRATION PURPOSES—See

AXATION

NDEX

-D

IGEST

879

PROPERTY SUBJECT TO SPECIAL

ASSESSMENTS—See

AXATION

3, 4

PROPERTY TAX—See

AXATION

1, 2, 3, 4

PROSECUTORIAL MISCONDUCT—See

PPEAL

PROTECTIVE ORDERS—See

EALTH

PROXIMATE CAUSE—See

OVERNMENTAL

MMUNITY

EGLIGENCE

1, 3, 7

PUBLIC UTILITIES—See

UNICIPAL

ORPORATIONS

QUALIFIED IMMUNITY—See

OVERNMENTAL

MMUNITY

QUO WARRANTO

PPLICATION FOR

EAVE TO

ILE

CTION

1. A person may apply to the Attorney General to bring an

action for quo warranto alleging a usurpation of office; if

the Attorney General refuses the request, the person

may apply privately to the court for leave to file the

action; an application for leave to file an action for quo

warranto must make a precise and positive showing of a

clear case of right and that public policy will be served

by the proceeding; the application must disclose suffi-

cient facts and grounds and sufficient apparent merit to

justify further inquiry by quo warranto proceedings;

leave should not be granted if the applicant swears to a

conclusion only (MCL 600.4501; MCR 3.306[B][3][b]).

Barrow v Detroit Mayor, 290 Mich App 530.

RECORDED-RECOLLECTION EXCEPTION TO

HEARSAY RULE—See

VIDENCE

880 290 M

ICH

RECORDS—See

OURTS

REJECTION OR ACCEPTANCE OF BIDS FOR

SCHOOL CONSTRUCTION—See

CHOOLS

RELIEF FROM JUDGMENTS—See

UDGMENTS

RENAISSANCE ZONE ACT—See

AXATION

REQUIREMENTS FOR WASTEWATER TREATMENT

GRANTS—See

ASTE

RES IPSA LOQUITUR—See

EGLIGENCE

RESALE EXEMPTION FROM USE TAX—See

AXATION

RESIDING IN DWELLING FOR PURPOSES OF

COVERAGE—See

NSURANCE

RETIREMENT FROM STATE EMPLOYMENT—See

MPLOYMENT

RETIREMENT PAY—See

RMED

ERVICES

RETROACTIVE APPLICATION OF JUDGMENTS—See

UDGMENTS

RETROACTIVITY OF AMENDMENTS OF

STATUTES—See

TATUTES

REVISED SCHOOL CODE—See

CHOOLS

NDEX

-D

IGEST

881

RIGHT OF CONFRONTATION—See

ONSTITUTIONAL

ROBBERY—See

ENTENCES

SADISM—See

ENTENCES

SALE OF PROPERTY SUBJECT TO JUDGMENT

LIEN—See

IENS

2, 3

SANCTIONS FOR FRIVOLOUS ACTIONS OR

DEFENSES—See

OSTS

SCHOOL DISTRICT TAX LEVIES—See

AXATION

SCHOOLS

ONSTRUCTION

ONTRACTS

1. The provision of the Revised School Code regarding

competitive bidding for contracts for the construction of

a new school building or addition to or repair or reno-

vation of an existing school building that provides that

the board of a school district or intermediate school

district or the board of directors of a public school

academy may reject any or all bids does not restrict the

board from imposing its own criteria and limitations on

itself relative to the bidding process and the acceptance

or rejection of bids (MCL 380.1267[6]). Cedroni Associ-

ates, Inc v Tomblinson, Harburn Associates, Architects

& Planners, Inc, 290 Mich App 577.

SCOPE OF ARBITRATION—See

RBITRATION

SEALING COURT RECORDS—See

OURTS

SENTENCES

FFENSE

ARIABLE

882 290 M

ICH

1. A felonious criminal act is contemporaneous with the

sentencing offense, for purposes of scoring offense vari-

able 12, if the act occurred within 24 hours of the

sentencing offense and will not result in a separate

conviction; a court must look beyond the sentencing

offense and consider as contemporaneous felonious

criminal acts only those separate acts or behavior that

did not establish the sentencing offense (MCL 777.42).

People v Light, 290 Mich App 717.

2. Neither larceny from a person nor larceny in a building

may be used as a contemporaneous felonious criminal

act to increase the offense variable 12 score of a defen-

dant convicted of unarmed robbery when the physical

act of taking that supported the unarmed robbery

conviction is the same physical act used to establish

larceny from a person or larceny in a building (MCL

750.357, 750.360, 750.530, 777.42). People v Light, 290

Mich App 717.

ENTENCING

UIDELINES

3. Fifty points must be assessed under the sentencing guide-

lines for offense variable 7 (aggravated physical abuse)

when a victim was treated with sadism, torture, or exces-

sive brutality or conduct designed to substantially increase

the fear and anxiety a victim suffered during the offense;

score of 50 points is appropriate when the defendant

committed specific acts of sadism, torture, or excessive

brutality; only the defendant’s actual participation should

be scored, however, and 50 points should not be assessed

for sadism, torture, or excessive brutality if the defendant

did not commit, take part in, or encourage others to

commit such acts (MCL 777.37[1][a]). People v Hunt, 290

Mich App 317.

SENTENCING GUIDELINES—See

ENTENCES

1, 2, 3

SETTLEMENTS—See

OSTS

SEVERAL LIABILITY—See

EGLIGENCE

SEWAGE TREATMENT—See

UNICIPAL

ORPORATIONS

NDEX

-D

IGEST

883

SIMULTANEOUS-DEATH PROVISION—See

STATES IN

ROPERTY

SIXTH AMENDMENT—See

ONSTITUTIONAL

1, 2

SLAYER RULE—See

RIMINAL

SOVEREIGN IMMUNITY—See

NDIANS

SPECIAL ASPECTS OF OPEN AND OBVIOUS

DANGERS—See

EGLIGENCE

SPECIAL ASSESSMENTS—See

AXATION

3, 4

SPECIAL LEGISLATION OR ACTS—See

TATUTES

SPOUSAL SUPPORT—See

IVORCE

STATE EMPLOYEES’ RETIREMENT SYSTEM—See

MPLOYMENT

STATUTES

See, also,

ONSTITUTIONAL

MENDMENTS OF

TATUTES

1. The retroactive application of 2007 PA 103, which

amended provisions of the Use Tax Act, MCL 205.91 et

seq., to clarify the application of that act to exempt

property converted to a taxable use and to remedy any

misinterpretation that resulted from the holding in Betten

Auto Ctr v Dep’t of Treasury, 272 Mich App 14 (2006),

aff’d in part 478 Mich 864 (2007), does not violate any due

process rights (Const 1963, art 1, § 17). General Motors

Corp v Dep’t of Treasury, 290 Mich App 355.

884 290 M

ICH

ETROACTIVITY

2. MCL 600.2922, as amended by 2005 PA 270, may be

applied retroactively to April 1, 2000. Johnson v Pas-

toriza, 290 Mich App 260.

PECIAL

EGISLATION OR

CTS

3. Const 1963, art 4, § 29 prohibits the enactment of special

legislation if a general act can be made applicable; the fact

that a law only applies to a limited number, however, does

not make it special rather than general legislation; legis-

lation may be general in the constitutional sense even if in

its application it affects only one person or place as long as

the law is general and uniform in its operation on all

persons in like circumstances. General Motors Corp v

Dep’t of Treasury, 290 Mich App 355.

STATUTES OF LIMITATIONS—See

IMITATION OF

CTIONS

SUBJECT-MATTER JURISDICTION—See

URISDICTION

SUBSIDIARIES—See

ORPORATIONS

SUCCESSOR LIABILITY—See

ORPORATIONS

1, 2

SUFFICIENCY OF APPLICATION FOR LEAVE TO

FILE QUO WARRANTO ACTION—See

ARRANTO

SUPERSEDING CAUSES OF INJURIES—See

EGLIGENCE

SURVIVAL STATUTES—See

STATES IN

ROPERTY

TAXABLE VALUE—See

AXATION

TAXATION

ROPERTY

1. MCL 211.27a(3) provides that the taxable value of real

NDEX

-D

IGEST

885

property is reassessed upon the sale or transfer of the

property according to the following year’s state equal-

ized value, a process called “uncapping”; under MCL

211.27a(7), certain types of conveyances are excepted

and do not give rise to uncapping, but conveyances by

deed involving tenancies in partnership are not among

them. Schwass v Riverton Twp, 290 Mich App 220.

ENAISSANCE

ONE

2. Property located in a renaissance zone is exempt from

taxes under the General Property Tax Act unless an

exception applies; the statutory exception for ad valo-

rem property taxes only extends to those levied for the

payment of principal and interest of obligations ap-

proved by the electors of the local governmental unit or

for obligations pledging the unlimited taxing power of

the local governmental unit; because a school district is

not a local governmental unit under the Michigan

Renaissance Zone Act, an obligation approved by the

electors of a school district does not fall within the

exception (MCL 125.2683, MCL 211.7ff[2][b]). Lafarge

Midwest, Inc v City of Detroit, 290 Mich App 240.

PECIAL

SSESSMENTS

3. The procedures applicable to special assessments im-

posed by a board of public works under chapter 2 of 1957

PA 185 do not apply to special assessments imposed by a

municipality other than a county (MCL 123.743; MCL

123.751 et seq.). Michigan’s Adventure, Inc v Dalton

Twp, 290 Mich App 328.

4. A special assessment is valid if (1) the improvement

subject to the special assessment confers a benefit on the

assessed property and not just the community as a whole

and (2) the amount of the special assessment is reasonably

proportionate to the benefit derived from the improve-

ment; a key question is whether the property’s market

value increased as a result of the improvement. Michi-

gan’s Adventure, Inc v Dalton Twp, 290 Mich App 328.

5. The exemptions from the Use T ax Act for property pur-

chased for demonstration purposes and for property pur-

chased for resale require that the property be purchased,

not merely manufactured, to qualify for the exemptions; a

purchase requires a transfer of property for consideration

from one person to another; for purposes of the exemp-

886 290 M

ICH

tions, a purchase does not include a manufacturer’s ob-

taining property that it manufactures from a subsidiary of

the manufacturer (MCL 205.94[1][c][iii]). General Motors

Corp v Dep’t of Treasury, 290 Mich App 355.

TENANCIES IN PARTNERSHIP—See

AXATION

TENANTS BY THE ENTIRETY—See

IENS

TESTIMONIAL STATEMENTS—See

ONSTITUTIONAL

1, 2

THIRD PARTY TO CONTRACT OR BUSINESS

RELATIONSHIP—See

ORTS

TIME LIMIT FOR SEWAGE DISPOSAL

CONTRACTS—See

UNICIPAL

ORPORATIONS

TIMING OF DEMANDS FOR ARBITRATION—See

RBITRATION

TITLE-OBJECT CLAUSE—See

ONSTITUTIONAL

TOLLING OF MEDICAL MALPRACTICE PERIOD OF

LIMITATIONS—See

IMITATION OF

CTIONS

2, 3

TORT REFORM—See

EGLIGENCE

TORTS

See, also,

OVERNMENTAL

MMUNITY

1, 2, 4

NTERFERENCE

ITH A

USINESS

XPECTANCY

1. A plaintiff seeking to litigate a claim of tortious inter-

ference with a valid business expectancy must prove (1)

the existence of a valid business expectancy, (2) knowl-

edge of the expectancy on the part of the defendant, (3)

an intentional interference by the defendant inducing or

NDEX

-D

IGEST

887

causing a termination of the expectancy, and (4) result-

ant damage to the plaintiff; a valid business expectancy

is one in which there exists a reasonable likelihood or

probability that the expectancy will come to fruition.

Cedroni Associates, Inc v Tomblinson, Harburn Associ-

ates, Architects & Planners, Inc, 290 Mich App 577.

2. The principles to be applied in determining whether a

valid business expectancy exists for purposes of determin-

ing whether a defendant tortiously interfered with that

business expectancy include (1) the presence of some level

of discretion exercisable by a governmental body or

decision-maker does not automatically preclude a recogni-

tion of a valid business expectancy, (2) if the discretion of

the governmental body or decision-maker is expansive and

not restricted by limiting criteria and factors to the extent

that it makes it impossible to reasonably infer that the

claimed expectancy would likely have come to fruition,

there is no valid business expectancy, (3) an expectancy

must generally be specific and reasonable, (4) it must be

shown that there was a reasonable likelihood or probabil-

ity that the expectant relationship would have developed

as desired absent tortious interference with the expect-

ancy, (5) a party need not prove that the expectancy

equated to a certainty or guarantee, (6) innate optimism or

mere hope is insufficient, and (7) the prior history of the

governmental body or decision-maker and governing in-

ternal and external rules, policies, and laws constitute

factors for a court to consider in determining whether a

business expectancy was valid and likely achievable.

Cedroni Associates, Inc v Tomblinson, Harburn Associ-

ates, Architects & Planners, Inc, 290 Mich App 577.

3. A plaintiff claiming tortious interference with a business

expectancy must demonstrate that the defendant acted

both intentionally and either improperly or without justi-

fication; one who alleges tortious interference with a

contractual or business relationship must allege the inten-

tional doing of a wrongful act per se or the doing of a lawful

act with malice and unjustified in law for the purpose of

invading the contractual rights or business relationship of

another; a wrongful act per se is an act that is inherently

wrongful or that can never be justified under any circum-

stances; the plaintiff must demonstrate specific, affirma-

tive acts that corroborate the unlawful purpose of the

interference when the defendant’s conduct was not wrong-

888 290 M

ICH

ful per se; to establish that a lawful act was done with

malice and without justification, the plaintiff must prove

with particularity affirmative acts taken by the defendant

that corroborate the improper motive of the interference;

when motivated by legitimate business reasons, a defen-

dant’s actions do not constitute improper motive or inter-

ference. Cedroni Associates, Inc v Tomblinson, Harburn

Associates, Architects & Planners, Inc, 290 Mich App 577.

4. A plaintiff must establish that the defendant was a third

party to the contract or business relationship in order to

maintain a claim of tortious interference with a business

expectancy; corporate agents are not liable for tortious

interference with respect to the corporation’s contracts

and relationships when acting for the benefit of the

corporation and within the scope of their authority; an

agent can be liable, however, if the agent acted not for

the benefit of the corporation or entity involved in the

transaction or prospective transaction, but for his or her

own benefit or pursuant to a personal motive. Cedroni

Associates, Inc v Tomblinson, Harburn Associates, Ar-

chitects & Planners, Inc, 290 Mich App 577.

TORTS BY SUBSIDIARIES—See

ORPORATIONS

TORTURE—See

ENTENCES

TOTAL INCAPACITATION FOR PURPOSES OF

STATE EMPLOYMENT—See

MPLOYMENT

TRACTOR-TRAILERS—See

EHICLE

ODE

TRANSFER OF FACILITIES—See

ROPERTY

TRANSFERS OF PROPERTY—See

AXATION

TREATING PHYSICIANS—See

EALTH

NDEX

-D

IGEST

889

TRIBAL-COURT JURISDICTION—See

NDIANS

TRUTH OF STATEMENT AS DEFENSE—See

IBEL AND

LANDER

TURNS IN ROADWAYS—See

EHICLE

ODE

UNAMBIGUOUS CONTRACTS—See

ONTRACTS

UNARMED ROBBERY—See

ENTENCES

UNAVOIDABLE DANGEROUS CONDITIONS—See

EGLIGENCE

UNCAPPING OF TAXABLE VALUE—See

AXATION

UNINSURED-MOTORIST BENEFITS—See

NSURANCE

UNPRESERVED APPELLATE ISSUES—See

PPEAL

UNREGISTERED MEDICAL-MARIJUANA USERS—See

ONTROLLED

UBSTANCES

1, 2

USE TAX—See

AXATION

USURPATION OF ELECTED OFFICE—See

ARRANTO

VALIDITY OF ORDERS—See

OURTS

VEHICLE CODE

EIGHT

ESTRICTIONS FOR

OMMERCIAL

RUCKS

1. People v Boucha, 290 Mich App 295.

890 290 M

ICH

VETERANS’ DISABILITY BENEFITS—See

RMED

ERVICES

VOLUNTARY MANSLAUGHTER—See

RIMINAL

WAIVERS—See

NDIANS

1, 2

WASTE

ASTEWATER

REATMENT

ERVICES

1. Federal grant money provided for the construction and

expansion of wastewater treatment works imposes certain

requirements on recipients of grant funding; however, the

regulations in effect in 1974 did not require the project to

be operated for the length of its design life (40 CFR

35.935-1[b]). Haring Charter Twp v City of Cadillac, 290

Mich App 728.

WASTEWATER TREATMENT SERVICES—See

ASTE

WEIGHT RESTRICTIONS FOR COMMERCIAL

TRUCKS—See

EHICLE

ODE

WILLS—See

STATES IN

ROPERTY

WORDS AND PHRASES—See

RIMINAL

MPLOYMENT

OVERNMENTAL

MMUNITY

1, 3

NSURANCE

WRITS OF QUO WARRANTO—See

ARRANTO

WRONGFUL ACTS PER SE—See

ORTS

WRONGFUL-DEATH STATUTE—See

EGLIGENCE

8, 9

TATUTES

NDEX

-D

IGEST

891