MICHIGAN APPEALS REPORTS
CASES DECIDED
IN THE
MICHIGAN
COURT OF APPEALS
FROM
March 20, 2012, through May 29, 2012
JOHN O. JUROSZEK
REPORTER OF DECISIONS
VOLUME 296
FIRST EDITION
2013
Copyright 2013 by Michigan Supreme Court
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
T
ERM
E
XPIRES
J
ANUARY
1
OF
C
HIEF
J
UDGE
WILLIAM B. MURPHY................................................................. 2013
C
HIEF
J
UDGE
P
RO
T
EM
DAVID H. SAWYER....................................................................... 2017
J
UDGES
MARK J. CAVANAGH ................................................................... 2015
KATHLEEN JANSEN ................................................................... 2013
E. THOMAS FITZGERALD.......................................................... 2015
HENRY WILLIAM SAAD.............................................................. 2015
JOEL P. HOEKSTRA..................................................................... 2017
JANE E. MARKEY......................................................................... 2015
PETER D. O’CONNELL ............................................................... 2013
WILLIAM C. WHITBECK............................................................. 2017
MICHAEL J. TALBOT .................................................................. 2015
KURTIS T. WILDER...................................................................... 2017
PATRICK M. METER.................................................................... 2015
DONALD S. OWENS..................................................................... 2017
KIRSTEN FRANK KELLY............................................................ 2013
CHRISTOPHER M. MURRAY...................................................... 2015
PAT M. DONOFRIO ...................................................................... 2017
KAREN FORT HOOD ................................................................... 2015
STEPHEN L. BORRELLO............................................................ 2013
DEBORAH A. SERVITTO............................................................. 2013
JANE M. BECKERING ................................................................. 2013
ELIZABETH L. GLEICHER......................................................... 2013
CYNTHIA DIANE STEPHENS.................................................... 2017
MICHAEL J. KELLY...................................................................... 2015
DOUGLAS B. SHAPIRO ............................................................... 2013
AMY RONAYNE KRAUSE............................................................ 2013
MARK T. BOONSTRA................................................................... 2013
1
MICHAEL J. RIORDAN ................................................................ 2013
2
C
HIEF
C
LERK
/R
ESEARCH
D
IRECTOR:
LARRY S. ROYSTER
1
From March 20, 2012.
2
From March 21, 2012.
SUPREME COURT
T
ERM
E
XPIRES
J
ANUARY
1
OF
C
HIEF
J
USTICE
ROBERT P. YOUNG, J
R
. .............................................................. 2019
J
USTICES
MICHAEL F. CAVANAGH............................................................ 2015
MARILYN KELLY......................................................................... 2013
STEPHEN J. MARKMAN............................................................ 2013
DIANE M. HATHAWAY............................................................... 2017
MARY BETH KELLY.................................................................... 2019
BRIAN K. ZAHRA ........................................................................ 2013
C
OMMISSIONERS
MICHAEL J. SCHMEDLEN, C
HIEF
C
OMMISSIONER
1
DANIEL C. BRUBAKER, C
HIEF
C
OMMISSIONER
2
SHARI M. OBERG, D
EPUTY
C
HIEF
C
OMMISSIONER
TIMOTHY J. RAUBINGER MICHAEL S. WELLMAN
LYNN K. RICHARDSON GARY L. ROGERS
NELSON S. LEAVITT RICHARD B. LESLIE
DEBRA A. GUTIERREZ-M
c
GUIRE FREDERICK M. BAKER, J
R.
ANNE-MARIE HYNOUS VOICE KATHLEEN M. DAWSON
DON W. ATKINS RUTH E. ZIMMERMAN
JÜRGEN O. SKOPPEK SAMUEL R. SMITH
ANNE E. ALBERS
S
TATE
C
OURT
A
DMINISTRATOR
CHAD C. SCHMUCKER
C
LERK:
CORBIN R. DAVIS
R
EPORTER OF
D
ECISIONS:
JOHN O. JUROSZEK
C
RIER:
DAVID G. PALAZZOLO
1
To May 1, 2012.
2
From May 1, 2012.
TABLE OF CASES REPORTED
(Lines set in small type refer to orders appearing in the Special Orders
section beginning at page 801.)
P
AGE
A
Acosta-Baustista, People v .................................. 404
Ahrens Construction, Inc, Miller-Davis Co v
(On Remand) .................................................... 56
Akowitz, Szyszlo v ............................................... 40
Andrie Inc v Dep’t of Treasury .......................... 355
B
Bradley Estate, In re ........................................... 31
Bragg, People v .................................................... 433
Brantley, People v ................................................ 546
Brantley, People v .................................................................. 801
Buhalis v Trinity Continuing Care Services ..... 685
C
City of Detroit Financial Review Team, Davis v . 568
City of Detroit Financial Review Team,
McNeil v ................................................................. 568
City of Plymouth v Longeway ............................ 1
City of Sterling Heights, Moraccini v ................ 387
Clohset v No Name Corp .................................... 525
Comella, People v ................................................. 643
Corwin v DaimlerChrysler Ins Co ...................... 242
i
P
AGE
D
DaimlerChrysler Ins Co, Corwin v ..................... 242
Davis v City of Detroit Financial Review
Team ................................................................. 568
Dep’t of Treasury, Andrie Inc v .......................... 355
Dep’t of Treasury, Eastbrook Homes, Inc v ...... 336
Dep’t of Treasury, Kelly Properties, Inc v ......... 306
Dep’t of Treasury, Kelly Services, Inc v ............ 306
Dep’t of Treasury, Krueger v .............................. 656
Dep’t of Treasury, Sietsema Farms Feeds,
LLC v ................................................................ 232
Dep’t of Treasury, Uniloy Milacron USA Inc v ... 93
Detroit Edison Co Applications, In re ................ 101
Detroit Financial Review Team (City of),
Davis v .............................................................. 568
Detroit Financial Review Team (City of),
McNeil v ........................................................... 568
Dillon, People v .................................................... 506
Douglas, People v ................................................. 186
Duenas, Rodenhiser v .......................................... 268
E
Eastbrook Homes, Inc v Dep’t of Treasury ....... 336
Eisen, People v ..................................................... 326
Elgin State Bank, Greenville Lafayette, LLC v ... 284
F
Frowner v Smith .................................................. 374
G
Gioglio, People v (On Remand) .......................... 12
Glenn-Powers, People v ....................................... 494
Goree, People v .................................................... 293
ii 296 M
ICH
A
PP
P
AGE
Grange Ins Co of Michigan v Lawrence ............ 319
Greenville Lafayette, LLC v Elgin State Bank .... 284
H
Howard v Kowalski .............................................. 664
Howard v Kowalski ............................................................... 801
I
In re Bradley Estate ............................................ 31
In re Detroit Edison Co Applications ................. 101
In re Waters Drain Drainage Dist ...................... 214
K
Kelly Properties, Inc v Dep’t of Treasury ......... 306
Kelly Services, Inc v Dep’t of Treasury ............. 306
Khanani, People v ................................................ 175
Kloosterman, People v ......................................... 636
Koon, People v ..................................................... 223
Kowalski, Howard v ............................................. 664
Kowalski, Howard v .............................................................. 801
Krueger v Dep’t of Treasury .............................. 656
L
Lawrence, Grange Ins Co of Michigan v ........... 319
Longeway, City of Plymouth v ............................ 1
M
McNeil v Detroit Financial Review Team ......... 568
Miller-Davis Co v Ahrens Construction, Inc
(On Remand) .................................................... 56
Mitchell v Mitchell ............................................... 513
Moraccini v City of Sterling Heights ................. 387
T
ABLE OF
C
ASES
R
EPORTED
iii
P
AGE
N
No Name Corp, Clohset v ................................... 525
P
People v Acosta-Baustista ................................... 404
People v Bragg ..................................................... 433
People v Brantley ................................................. 546
People v Brantley .................................................................. 801
People v Comella .................................................. 643
People v Dillon ..................................................... 506
People v Douglas .................................................. 186
People v Eisen ...................................................... 326
People v Gioglio (On Remand) ........................... 12
People v Glenn-Powers ........................................ 494
People v Goree ..................................................... 293
People v Khanani ................................................. 175
People v Kloosterman .......................................... 636
People v Koon ...................................................... 223
People v Sanders .................................................. 710
People v Smith-Anthony ..................................... 413
People v Waterstone ............................................ 121
Plymouth (City of) v Longeway .......................... 1
R
Rodenhiser v Duenas ........................................... 268
S
Sanders, People v ................................................. 710
Sietsema Farms Feeds, LLC v Dep’t of
Treasury ........................................................... 232
Smith, Frowner v ................................................. 374
Smith-Anthony, People v ..................................... 413
Spohn v Van Dyke Public Schools ...................... 470
iv 296 M
ICH
A
PP
P
AGE
State Farm Mutual Automobile Ins Co, Titan
Ins Co v ............................................................ 75
Sterling Heights (City of), Moraccini v .............. 387
Szyszlo v Akowitz ................................................ 40
T
Titan Ins Co v State Farm Mutual Automobile
Ins Co ................................................................ 75
Treasury (Dep’t of), Andrie Inc v ....................... 355
Treasury (Dep’t of), Eastbrook Homes, Inc v ... 336
Treasury (Dep’t of), Kelly Properties, Inc v ...... 306
Treasury (Dep’t of), Kelly Services, Inc v ......... 306
Treasury (Dep’t of), Krueger v ........................... 656
Treasury (Dep’t of), Sietsema Farms Feeds,
LLC v ................................................................ 232
Treasury (Dep’t of), Uniloy Milacron USA
Inc v ........................................................................ 93
Trinity Continuing Care Services, Buhalis v .... 685
U
Uniloy Milacron USA Inc v Dep’t of Treasury .... 93
V
Van Dyke Public Schools, Spohn v ..................... 470
W
Waters Drain Drainage Dist, In re ..................... 214
Waterstone, People v ........................................... 121
T
ABLE OF
C
ASES
R
EPORTED
v
J
UDGE
M
ARK
T. B
OONSTRA
Judge Mark T. Boonstra
was born May 20, 1957, in
Muskegon, Michigan. After
graduating from Western
Michigan Christian High
School in 1975, he attended
Michigan State University,
where he graduated Phi Beta
Kappa in 1979 with a Bach-
elor of Arts degree in Politi-
cal Science. He then at-
tended the University of Michigan, where he graduated
in 1983 with both a Juris Doctor degree and a Master of
Applied Economics degree.
Judge Boonstra was appointed to the Court of Ap-
peals by Governor Rick Snyder in March 2012, replac-
ing Judge Richard A. Bandstra, and he was subse-
quently elected in November 2012. Before his
appointment, Judge Boonstra was a senior principal in
the law firm of Miller, Canfield, Paddock and Stone,
P.L.C., where he practiced law for nearly 27 years,
including serving as a deputy chair of the firm’s Litiga-
tion Practice group and as co-chair of its Appellate
Practice section. At the time of his appointment, he was
recognized in Best Lawyers in America in the areas of
Antitrust Law; Appellate Practice; Bet-the-Company
Litigation; Commercial Litigation; Litigation – Anti-
trust; Litigation – First Amendment; and Litigation —
Securities. He previously also served as a law clerk to
vii
the Honorable Ralph B. Guy, Jr., of the United States
District Court for the Eastern District of Michigan,
from 1983 to 1985. Judge Boonstra has been active in
the State Bar of Michigan—including serving in the
Representative Assembly (2005-2011) and as chair of
the Antitrust, Franchising, and Trade Regulation Sec-
tion (2000-2001)—as well as the Federal Bar Associa-
tion and the Washtenaw County Bar Association, in-
cluding as a founding member of the Washtenaw
American Inn of Court (2011). He also currently serves
on the Michigan Supreme Court Committee on Model
Civil Jury Instructions and as vice-chair of the Michi-
gan Judges Retirement Board. He also has been an
author of, or contributor to, a number of legal publica-
tions and presentations, including the second (2002)
and third (2007) editions of Introducing Evidence at
Trial, (Institute for Continuing Legal Education); Video
hyperlinks: An effective tool in appellate advocacy, Ap-
pellate Issues (Spring 2012) (Council of Appellate Law-
yers, American Bar Association); and as the moderator
and a faculty member of the Institute for Continuing
Legal Education Webinar, Michigan Jury Reform —
What You Need to Know (August 24, 2011).
Judge Boonstra has also served other community and
civic organizations, including as chair of the Washtenaw
Economic Club (2004-2005), president of the board of
directors of the Christian Montessori School of Ann
Arbor (2005-2010), and a board member of the Ann
Arbor Area Convention and Visitor’s Bureau (2011-
2012). He also served as the chair of the Washtenaw
County Republican Committee (2008-2012), and as a
member of the Washtenaw County Apportionment
Commission (2011), and is a 2002 graduate of Leader-
ship Ann Arbor, a member of Webster United Church of
Christ, and a long-time member of the Federalist Soci-
ety.
viii 296 M
ICH
A
PP
Currently a resident of Dexter, Judge Boonstra and
his wife, Martha Rabaut Boonstra, enjoy their Friesian
horses and their four children, son Adam Boonstra and
daughters Logan Boonstra, Katherine (Timothy) Gut-
wald, and Chea Tyrrell, and grandson Luke Gutwald.
M
ARK
T. B
OONSTRA
ix
J
UDGE
M
ICHAEL
J. R
IORDAN
Governor Rick Snyder ap-
pointed the Honorable
Michael J. Riordan to the
Michigan Court of Appeals
on March 16, 2012 and he
was elected to a six-year
term commencing January 1,
2013. Previously, Judge
Riordan worked as an Assis-
tant United States Attorney
for the Eastern District of
Michigan; as an Assistant General Counsel for the
Northwestern Mutual Financial Network; and as a
Senior Attorney in the Enforcement Division of the
United States Securities and Exchange Commission.
Upon his graduation from law school, Judge Riordan
served a two-year clerkship to the Honorable Robert E.
DeMascio, United States District Judge for the Eastern
District of Michigan. Judge Riordan serves as a profes-
sor of securities regulation and business organizations
at the University of Detroit Mercy School of Law and
was named Adjunct Professor of the Year in 2010. Judge
Riordan has been a member of the State Bar of Michi-
gan’s Board of Commissioners since 2006. He is a
member of the Federalist Society, served as a past-
president of the Michigan Lawyers Chapter and now
serves on its board of advisors. He is the immediate
past-president of the Federal Bar Association of the
Eastern District of Michigan and is a past-president of
xi
the Incorporated Society of Irish-American Lawyers.
He is vice-president of the University of Detroit Mercy
School of Law Alumni Association and is on the board of
the Catholic Lawyers Society. Judge Riordan received
his BA from Michigan State University and his JD, cum
laude, from the University of Detroit School of Law.
xii 296 M
ICH
A
PP
C
OURT OF
A
PPEALS
C
ASES
CITY OF PLYMOUTH v LONGEWAY
Docket No. 300493. Submitted January 10, 2012, at Detroit. Decided
March 20, 2012, at 9:00 a.m. Remanded for resentencing, 493 Mich
864.
Brittney Lynn Longeway was charged in the 35th District Court with
operating a vehicle while intoxicated (OWI) under a city of
Plymouth ordinance corresponding to MCL 257.625(1). A city of
Plymouth police officer had been alerted that some women in a car
had hit a concrete barrier when they entered a parking garage.
While approaching the car, the officer noticed that the backup
lights and brake lights of the car were on, after which the backup
lights turned off. The transmission then appeared to have been put
in park again, but the tires never moved. The car was still running
when the officer spoke with Longeway, who was the driver of the
car. She was arrested and charged with OWI. Longeway moved to
dismiss the OWI charge, arguing that she had not been operating
the vehicle at the time of her arrest. The district court, Michael J.
Gerou, J., denied the motion, but the Wayne Circuit Court, Carole
F. Youngblood, J. reversed and ordered that the charges be dis-
missed. The circuit court reasoned that because the car had not
moved, Longeway had not been operating the vehicle within the
meaning of MCL 257.625(1). The prosecution appealed by leave
granted.
The Court of Appeals held:
Under MCL 257.625(1), a person shall not operate a vehicle
upon a highway or other place open to the general public or
generally accessible to motor vehicles, including an area desig-
nated for the parking of vehicles, if the person is operating while
intoxicated. The word “operate,” which is defined in MCL 257.35a
as being in actual physical control of a vehicle, is clear and
unambiguous. “Control” means “power or authority to guide or
manage,” “actual” means “existing in act, fact, or reality,” and
“physical” means “of or pertaining to that which is material.” The
circuit court erred by dismissing the OWI charge. Applying the
statutory definition of “operate,” Longeway was in actual physical
control of the vehicle when she started the car, applied the brake,
put the car in reverse, and then put the car back into park.
Because this case did not involve a driver who was unconscious or
C
ITY OF
P
LYMOUTH V
L
ONGEWAY
1
sleeping or a vehicle that was inoperable, it was not necessary to
determine whether Longeway also placed the vehicle in a position
posing a significant risk of causing a collision. People v Wood, 450
Mich 399 (1995), and its progeny, which discussed those and
similar situations, did not apply to this case.
Reversed and remanded to the district court.
C
RIMINAL
L
AW —
O
PERATING A
V
EHICLE
W
HILE
I
NTOXICATED —
D
EFINITION OF
O
PERATING
.
A person shall not operate a vehicle upon a highway or other place
open to the general public or generally accessible to motor ve-
hicles, including an area designated for the parking of vehicles, if
the person is operating while intoxicated; “operate” is defined as
being in actual physical control of a vehicle and includes the
situation of a person who starts the vehicle’s engine, applies the
brakes, and shifts the gears from park to reverse and back to park
without actually moving the vehicle (MCL 257.625[1], 257.35a).
Miller & Bartnicki, P.C. (by Cameron A. Miller and
Michael P. Bartnicki), for the city of Plymouth.
Flood, Lanctot, Connor & Stablein, PLLC. (by Janet
A. Napp and Paul Bernier), for Brittney Lynn Longe-
way.
Before: J
ANSEN
,P.J., and W
ILDER
and K. F. K
ELLY
,JJ.
P
ER
C
URIAM
. Defendant was charged with operating a
vehicle while intoxicated (OWI) under an ordinance
corresponding to MCL 257.625(1). She moved to dis-
miss the charge, arguing that she was not “operating”
the vehicle as defined in MCL 257.35a. The district
court denied defendant’s motion, but the circuit court
reversed and ordered that the charges be dismissed.
Relying on People v Wood, 450 Mich 399, 404-405; 538
NW2d 351 (1995), the circuit court found that because
the vehicle had not “moved,” defendant was not “oper-
ating” it. The prosecution appeals by leave granted. We
reverse the circuit court’s decision, remand for rein-
statement of the charge, and hold that defendant oper-
2 296 M
ICH
A
PP
1 [Mar
ated the vehicle within the meaning of MCL 257.625(1)
because she had “actual physical control” of the vehicle
as set forth in MCL 257.35a. A person clearly has actual
physical control of a vehicle when starting the engine,
applying the brakes, shifting the vehicle from park to
reverse, and then shifting back to park.
I. BASIC FACTS AND PROCEDURAL HISTORY
The facts of this case are not in dispute. On March 7,
2010, a doorman at a martini bar known as “336”
alerted Officer Kevin Chumney that he had observed
some females in a Pontiac G6 hit a concrete barrier
when they entered the parking deck earlier that
evening. The doorman advised Chumney that the fe-
males were leaving the bar and that they appeared to be
drunk. Chumney saw the vehicle, which was legally
parked. As he approached, another car backed out and
he waited. While waiting, Chumney noticed that the
backup lights of the Pontiac were on. He believed that
the brake lights were on as well. After the other car
drove away, Chumney hesitated because he did not
want the Pontiac to back into him. The backup lights
turned off, and it appeared that the transmission had
been put into park again. The vehicle “settled a little
bit,” but the tires did not move. Chumney activated his
overhead lights and blocked the car. He approached the
driver’s side and spoke to defendant, who was the
driver. The vehicle was still running. Defendant stated
that they were not leaving because they were looking
for her friend’s jacket.
Defendant was charged with OWI. In the district court,
defendant moved to dismiss the charge and argued, in
part, that she had not “operate[d]” her vehicle as that
term was interpreted in Wood because the vehicle was
stationary and was not in a position where it posed a
2012] C
ITY OF
P
LYMOUTH V
L
ONGEWAY
3
significant risk of causing a collision. The district court
issued an order denying defendant’s motion to dismiss.
The district court cited the definition of “operating” in
MCL 257.35a as “being in actual physical control of a
vehicle regardless of whether or not the person is licensed
under [the Michigan Vehicle Code].” Citing the Wood
decision, the district court reasoned:
In the instant case, the Court believes that Defendant
did operate a vehicle in an area open to the public desig-
nated for parking that could have caused a collision with
another vehicle or person. The police in-car video shows
Defendant’s vehicle running apparently in reverse with the
driver’s foot on the brake then shifted back into park with
the driver’s foot taken off the brake. While the vehicle
wheels did not noticeably move, this Court finds Defendant
was “operating” the motor vehicle.
Defendant appealed in the circuit court. Relying on
Wood, the circuit court reversed, explaining:
The Michigan Supreme Court has defined “operating”
in People v Wood, 450 Mich 399, 404-405: “Once a person
using a motor vehicle as a motor vehicle has put the vehicle
in motion, or in a position posing a significant risk of
causing a collision, such a person continues to operate it
until the vehicle is returned to a position posing no such
risk.”
The district court erred when it found that the defen-
dant was operating the vehicle as Wood defined operating.
It is undisputed that the vehicle was never put in motion by
the defendant. It is also undisputed that the car was legally
and properly parked in a designated parking spot therefore
it was not put in a position posing a significant risk of
causing a collision.
We granted the prosecution’s application for leave to
appeal. People v Longeway, unpublished order of the
Court of Appeals, entered May 16, 2011 (Docket No.
300493).
4 296 M
ICH
A
PP
1 [Mar
II. STANDARD OF REVIEW
This Court reviews de novo questions of statutory
interpretation. People v Yamat, 475 Mich 49, 52; 714
NW2d 335 (2006). In People v Phillips, 469 Mich 390,
395; 666 NW2d 657 (2003), our Supreme Court set forth
the following rules regarding statutory interpretation:
When construing a statute, our primary goal is to
ascertain and give effect to the intent of the Legislature. To
do so, we begin by examining the language of the statute. If
the statute’s language is clear and unambiguous, we as-
sume that the Legislature intended its plain meaning and
the statute is enforced as written. Stated differently, 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. Only where the
statutory language is ambiguous may a court properly go
beyond the words of the statute to ascertain legislative
intent. [Citations and quotation marks omitted.]
III. ANALYSIS
Defendant was charged under MCL 257.625(1),
which states:
A person, whether licensed or not, shall not operate a
vehicle upon a highway or other place open to the general
public or generally accessible to motor vehicles, including an
area designated for the parking of vehicles, within this state if
the person is operating while intoxicated. [Emphasis added.]
MCL 257.35a defines “operate” as follows:
“Operate” or “operating” means being in actual physi-
cal control of a vehicle regardless of whether or not the
person is licensed under this act as an operator or chauf-
feur. [Emphasis added.]
Defendant does not dispute that she started the
vehicle, applied the brakes to her running vehicle,
2012] C
ITY OF
P
LYMOUTH V
L
ONGEWAY
5
shifted the vehicle into reverse, and then shifted the
vehicle back into park. The prosecution argues that
although the vehicle did not move, defendant “oper-
ated” the vehicle by shifting gears from park to reverse
and applying the brakes. This action, the prosecution
claims, posed a danger to other drivers, even if the
vehicle was legally parked. For her part, defendant
argues that she neither placed the vehicle in motion nor
placed the vehicle in a position that posed a significant
risk of causing a collision; rather, she was using the
vehicle for shelter when approached by the police of-
ficer. We do not believe either position is the appropriate
framework to analyze this issue because both defendant
and the prosecution fail to apply the plain language of
the statute. The question is simply whether defendant’s
actions established “actual physical control” of the
vehicle, MCL 257.35a, such that defendant was “oper-
ating” the vehicle in violation of MCL 257.625(1). We
conclude that they did.
Rather than focusing on the unambiguous language
of the relevant statutes, the parties, the district court,
and the circuit court applied principles from Wood,
which analyzed the meaning of “operate” when discuss-
ing the companion cases of People v Pomeroy (On
Rehearing) and People v Fulcher (On Rehearing), 419
Mich 441; 355 NW2d 98 (1984). In Pomeroy/Fulcher,
our Supreme Court considered whether individuals who
were arrested after being discovered unconscious in the
driver’s seats of running, but motionless, vehicles were
operating the vehicles for the purpose of the statute
that prohibited operating a motor vehicle under the
influence of intoxicating liquor (OUIL). The Court cited
the definition of “operator” in MCL 257.36 as “one who
is in ‘actual physical control’ of a motor vehicle.” Id.at
446. The Court explained:
6 296 M
ICH
A
PP
1 [Mar
If the car had been in motion, the person in the driver’s
seat might have been found to be “operating” it even
though he asserted that he was asleep. If the person in the
driver’s seat had been awake, he might have been found to
have been in such physical control of the car as to support
a conclusion that he was operating it even if the car was
motionless.
A sleeping person is seldom operating anything. Cer-
tainly these sleeping persons were not operating their
motionless cars at the time of their arrests. [Id. at 446-
447.]
In Wood, the police discovered the defendant uncon-
scious in his vehicle at a drive-through window of a
restaurant. The engine was running, the vehicle was in
drive, and the defendant’s foot was on the brake. After the
police arrested him, they searched his vehicle and discov-
ered marijuana. Relying on Pomeroy/Fulcher, the trial
court suppressed the evidence because the police did not
see the defendant committing the misdemeanor offense of
OUIL. The Supreme Court summarized the conclusions
that it had drawn in the prior cases as follows:
This Court addressed the definition of “operate” in
Pomeroy and the companion case, Fulcher. We there said
that a conscious person in a stationary vehicle might have
“actual physical control,” and thus operate it. We suggested
that no particular state of mind is required to operate a
motor vehicle. We also said that a person who is sleeping in
a moving vehicle might be found to “operate” it.
But the combination of a stationary vehicle and an
unconscious driver in Pomeroy/Fulcher persuaded the
Court that the defendants there were not operating their
vehicles when found by the police. [Wood, 450 Mich at
403-404.]
After recognizing the difficulty of applying the defini-
tion of “operating” when a driver was unconscious, the
Court stated:
2012] C
ITY OF
P
LYMOUTH V
L
ONGEWAY
7
We conclude that “operating” should be defined in terms
of the danger the OUIL statute seeks to prevent: the
collision of a vehicle being operated by a person under the
influence of an intoxicating liquor with other persons or
property. Once a person using a motor vehicle as a motor
vehicle has put the vehicle in motion, or in a position
posing a significant risk of causing a collision, such a
person continues to operate it until the vehicle is returned
to a position posing no such risk. [Id. at 404-405.]
The Court disagreed with and overruled Pomeroy/Fulcher
to a limited degree, explaining:
The Pomeroy/Fulcher Court stated that “a person sleep-
ing in a motionless car cannot be held to be presently
operating a vehicle while sleeping.” We read that statement
as reflecting an assumption that there was no danger of
collision in such a case. The facts of this case show that this
assumption was an overgeneralization. Pomeroy/Fulcher is
overruled to the extent it holds, for purposes of construing
what conduct is within the meaning of “operate a vehicle,”
that “a person sleeping in a motionless car cannot be held
to be presently operating a vehicle while sleeping.” [Id. at
405.]
Several decisions from this Court have applied Wood
in the context of sleeping/unconscious drivers discov-
ered inside the motor vehicle, see, e.g., People v Stephen,
262 Mich App 213; 685 NW2d 309 (2004); People v
Solmonson, 261 Mich App 657; 683 NW2d 761 (2004);
People v Burton, 252 Mich App 130; 651 NW2d 143
(2002), or an intoxicated driver who was standing
outside of a parked vehicle, People v Lyon, 227 Mich App
599; 577 NW2d 124 (1998). We also very recently
applied Wood to a conscious driver in People v Lechleit-
ner, 291 Mich App 56, 60-61; 804 NW2d 345 (2010), in
which an intoxicated driver drove his truck into the
freeway’s guardrails. The truck came to rest in the
middle of the freeway and was inoperable. The defen-
dant was attempting to push the vehicle to the side of
8 296 M
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the road when another vehicle swerved to avoid it and
crashed into a third vehicle. Id. at 58. The defendant
argued that he could not “operate” the truck because it
was no longer functioning. Id. at 61. This Court ap-
proved jury instructions based on the reasoning in
Wood that “ ‘[o]nce a person using a motor vehicle as a
motor vehicle has put the vehicle in motion, or in a
position posing a significant risk of causing a collision,
such a person continues to operate it until the vehicle is
returned to a position posing no such risk.’ ” Id. at 60,
quoting Wood, 450 Mich at 404-405. We rejected the
defendant’s contention that Wood’s reasoning was out-
moded and that a lay dictionary should have been used to
define “operation” as “to cause to function.” Lechleitner,
291 Mich App at 61.
However, we find that Wood is inapplicable to this
situation involving a conscious (albeit allegedly intoxi-
cated) driver who was sitting inside a stationary vehicle
and engaged in operational activity such as starting the
engine and changing gears. The Wood Court did not
purport to nullify or narrow the clear statutory defini-
tions of “operate” and “operator;”
1
rather, the Wood
Court clarified how the statutory definitions should be
applied in a particular context, i.e., when an individual
is sleeping or unconscious in a vehicle that is not
moving. Neither Wood nor Lechleitner indicated that
the statutory definition of “operate” is inapplicable.
Neither decision addressed whether a person who ap-
plies the brakes and shifts the gears of a running, yet
stationary, vehicle is in “actual physical control” of the
vehicle. In this case, defendant was admittedly con-
scious and alert when she applied the brakes, put the
1
Much like MCL 257.35a, MCL 257.36 provides: “ ‘Operator’ means
every person, other than a chauffeur, who is in actual physical control of
a motor vehicle upon a highway.”
2012] C
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ONGEWAY
9
car in reverse, and then put the car back into park. She
was at all times in actual physical control of the vehicle.
Given a plain reading of MCL 257.35a, we find it
unnecessary to determine whether defendant also
placed the vehicle in a position posing a significant risk
of causing a collision. That inquiry is limited to situa-
tions involving a driver who was unconscious or sleep-
ing or, as in Lechleitner, whose vehicle was inoperable.
We find further support in our Supreme Court’s deci-
sion in Yamat, which was decided 11 years after Wood.In
Yamat, the Court considered the definition of “operate” in
the context of the felonious-driving statute, MCL
257.626c. The defendant was a passenger in a car and
grabbed the steering wheel while fighting with his girl-
friend, who was driving. When the defendant grabbed the
wheel, the car veered off the road and struck a jogger.
Yamat, 475 Mich at 51. The defendant argued that he did
not “operate” the vehicle because he did not have com-
plete control over it. He argued that at most he interfered
with his girlfriend’s control of the vehicle. Our Supreme
Court disagreed, relying on dictionary definitions of par-
ticular words in the statutory definition of “operate” set
forth in MCL 257.35a. The Court observed that “control”
means “power or authority to guide or manage,” that
“actual” means “existing in act, fact, or reality; real,” and
that “physical” means “of or pertaining to that which is
material.” Id. at 53-54&n15(citation and quotation
marks omitted). Although Yamat involved the felonious-
driving statute, rather than the OWI statute, both stat-
utes are part of the Michigan Vehicle Code and both
statutes use the term “operate.” We believe the Yamat
Court’s discussion of the meaning of that term should
apply equally to the OWI statute. Defendant applied the
brakes of her running vehicle, shifted the vehicle into
reverse, and then shifted back into park. Applying the
statutory definition of “operate,” as construed in accor-
10 296 M
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dance with the dictionary definitions set forth in Yamat,
475 Mich at 53-54, the evidence indicates that defendant
was in “actual physical control” of the vehicle. Thus, she
“operated” the vehicle. The fact that it remained station-
ary is immaterial.
Accordingly, we reverse the circuit court’s order and
remand this case to the district court for reinstatement
of the charge.
Reversed and remanded to the district court. We do
not retain jurisdiction.
J
ANSEN
,P.J., and W
ILDER
and K. F. K
ELLY
, JJ., con-
curred.
2012] C
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ONGEWAY
11
PEOPLE v GIOGLIO (ON REMAND)
Docket No. 293629. Submitted October 19, 2011, at Lansing. Decided
March 20, 2012, at 9:05 a.m. Remanded for resentencing, 493 Mich
864.
Jeffrey Paul Gioglio was convicted by a jury in the Kalamazoo Circuit
Court of two counts of second-degree criminal sexual conduct
(CSC-II) and one count of attempted CSC-II. At trial, defense
counsel did not cross-examine the child victim and did not present
any witnesses or evidence. Gioglio moved for a new trial, arguing
that his original defense counsel had provided ineffective assis-
tance. The court, Pamela L. Lightvoet, J., denied the motion, and
Gioglio appealed that decision. The Court of Appeals, M. J. K
ELLY
,
P.J., and B
ORRELLO
, J. (K. F. K
ELLY
, J., dissenting), determined that
defense counsel had failed to subject the prosecutor’s case to
meaningful adversarial testing, presumed accordingly that Gioglio
had suffered prejudice as provided under United States v Cronic,
466 US 648, 658-659, 666 (1984), and reversed and remanded the
case for a new trial. 292 Mich App 173 (2011). The Supreme Court
determined that it was error to presume prejudice under Cronic
and reversed and remanded the case to the Court of Appeals for
consideration of whether defense counsel’s performance was inef-
fective under the test set forth in Strickland v Washington, 466 US
668, 687, 691-692 (1984), in addition to consideration of Gioglio’s
remaining issues on appeal. 490 Mich 868 (2011). The Court of
Appeals remanded the case to the trial court for resolution of
certain key factual disputes in an unpublished order, entered
November 15, 2011 (Docket No. 293629). The trial court resolved
the issues.
On remand, the Court of Appeals held:
1. The United States and Michigan Constitutions, US Const,
Am VI; Const 1963, art 1, § 20, guarantee that every person
charged with a crime is entitled to the effective assistance of a
lawyer in a criminal proceeding, and a violation of that right
occurs under Strickland when counsel’s conduct so undermined
the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result. To
establish a claim of ineffective assistance of counsel, the defen-
dant must show that counsel’s representation fell below an
12 296 M
ICH
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12 [Mar
objective standard of reasonableness under prevailing profes-
sional norms and that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reviewing court must strongly
presume that counsel’s conduct falls within the wide range of
reasonable professional assistance because there are numerous
ways to provide effective assistance in any given case. A trial
counsel’s acts or omissions fall within the range of reasonable
professional conduct if, after affirmatively entertaining the
range of possible reasons for the act or omission, there might
have been a legitimate strategic reason for it. To prevail, the
defendant must demonstrate that there is a reasonable prob-
ability that the outcome would have been different in the
absence of the deficient performance.
2. Gioglio was not denied the effective assistance of counsel
because he failed to establish that any of his counsel’s acts or
omissions fell below an objective standard of reasonableness under
prevailing professional norms. Gioglio failed to establish that
defense counsel had betrayed his confidential communications to
the prosecutor, that defense counsel had, or acted on, a bias against
him, or that defense counsel’s decision to not cross-examine the
complainant fell below an objective standard of reasonableness
under prevailing professional norms. The trial court’s finding that
any statements defense counsel made to the prosecutor related to
Gioglio’s ability to enter a valid plea was given deference because
resolution of the issue involved a matter of credibility. While
Gioglio’s allegations concerning bias were compelling, the trial
court’s finding that defense counsel’s actions demonstrated no
bias toward Gioglio was also entitled to deference as an issue of
credibility. The trial court’s determination that defense counsel’s
decision to not cross-examine the minor complainant was part of a
reasonable trial strategy was not clearly erroneous. Because the
trial court was present throughout the original trial and on
remand, it was in a superior position to judge the evidence and the
demeanor of the lawyers.
3. Under MCL 769.10, a trial court may enhance the maximum
sentence imposed for habitual offenders. A trial court necessarily
abuses its discretion if it applies MCL 769.10 and enhances a
sentence under the mistaken belief that it is required to do so.
However, express approval of a trial court’s actions constitutes a
waiver that extinguishes any error. Although it was not clear on
the record whether the trial court enhanced Gioglio’s sentences at
a resentencing hearing under the mistaken belief that enhance-
2012] P
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IOGLIO
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EMAND
) 13
ment was required, Gioglio waived any error when his defense
counsel indicated that she was in agreement with the new maxi-
mum sentences imposed.
Affirmed.
K. F. K
ELLY
, J., concurred in the result only.
1. C
ONSTITUTIONAL
L
AW —
R
IGHT TO
C
OUNSEL —
I
NEFFECTIVE
A
SSISTANCE OF
C
OUNSEL
.
The United States and Michigan Constitutions guarantee that every
person charged with a crime is entitled to the effective assistance
of a lawyer in a criminal proceeding, and a violation of that right
occurs under the test set forth in Strickland v Washington, 466 US
668, 687, 691-692 (1984), when defense counsel’s conduct so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result; to
establish a claim of ineffective assistance of counsel, the defendant
must show that counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms
and that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different; a reviewing court must strongly presume that
counsel’s conduct falls within the wide range of reasonable profes-
sional assistance because there are numerous ways to provide
effective assistance in any given case; a trial counsel’s acts or
omissions fall within the range of reasonable professional conduct
if, after affirmatively entertaining the range of possible reasons for
the act or omission, there might have been a legitimate strategic
reason for it; to prevail, the defendant must demonstrate that
there is a reasonable probability that the outcome would have been
different in the absence of the deficient performance (US Const,
Am VI; Const 1963, art 1, § 20).
2. S
ENTENCES —
H
ABITUAL
-O
FFENDER
S
ENTENCE
E
NHANCEMENTS —
D
ISCRETION
TO
I
MPOSE
.
Under MCL 769.10, a trial court may enhance the maximum
sentence for habitual offenders, but a trial court necessarily
abuses its discretion if it applies MCL 769.10 and enhances a
sentence under the mistaken belief that it is required to do so.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Jeffrey R. Fink, Prosecuting Attor-
ney, and Cheri L. Bruinsma, Assistant Prosecuting
Attorney, for the people.
14 296 M
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State Appellate Defender (by Desiree M. Ferguson)
for defendant.
ON REMAND
Before: M. J. K
ELLY
,P.J., and K. F. K
ELLY
and B
ORRELLO
,
JJ.
M. J. K
ELLY
,P.J. This is the second time that defendant
Jeffrey Paul Gioglio’s appeal is before this Court. In our
prior opinion, the majority examined in detail the evi-
dence and events surrounding Gioglio’s trial; for the sake
of brevity, we will not restate the facts here. See People v
Gioglio, 292 Mich App 173, 176-192; 807 NW2d 372
(2011). The majority determined that Gioglio’s trial law-
yer, Susan Prentice-Sao, did not subject the prosecution’s
case to meaningful adversarial testing. Id. at 201. After
concluding that Prentice-Sao had failed in this regard, the
majority presumed that Gioglio suffered prejudice as
provided under United States v Cronic, 466 US 648,
658-659, 666; 104 S Ct 2039; 80 L Ed 2d 657 (1984).
Gioglio, 292 Mich App at 202. The dissent disagreed with
the majority’s conclusion that prejudice should be pre-
sumed under Cronic. Instead, the dissent would have
analyzed Gioglio’s claim that Prentice-Sao did not provide
effective assistance of counsel under the test stated in
Strickland v Washington, 466 US 668, 687, 691-692; 104
S Ct 2052; 80 L Ed 2d 674 (1984). Gioglio, 292 Mich App
at 236-237 (K. F. K
ELLY
, J., dissenting). Our Supreme
Court agreed with the dissent and determined that it was
error to presume prejudice under Cronic. See People v
Gioglio, 490 Mich 868 (2011). Accordingly, it remanded
the case back to this Court “for consideration of whether
defense counsel’s performance was ineffective under
Strickland” in addition to consideration of Gioglio’s re-
maining issue on appeal. Id.
2012] P
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IOGLIO
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) 15
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After our Supreme Court remanded the case to this
Court, we determined that before we could properly
analyze Gioglio’s claims under the test stated in Strick-
land, it would be necessary to remand this case back to
the trial court for resolution of certain key factual
disputes. See People v Gioglio, unpublished order of the
Court of Appeals, entered November 15, 2011 (Docket
No. 293629). In an opinion and order entered on Janu-
ary 11, 2012, the trial court resolved those factual
disputes.
We now consider Gioglio’s claim that he did not
receive the effective assistance of counsel that is guar-
anteed to all criminal defendants. For the reasons more
fully explained below, we conclude that Gioglio failed to
establish that any specific act or omission by Prentice-
Sao amounted to the ineffective assistance of counsel.
Accordingly, he is not entitled to a new trial on that
basis. Further, because there were no other errors
warranting relief, we affirm.
I. THE SCOPE OF OUR REVIEW
In our order remanding this matter to the trial court,
we ordered the trial court to make “more definite
findings on the factual questions identified in [the]
order....” Id. We identified the factual issues as
whether Prentice-Sao actually “told the prosecutor that
she believed that her client was guilty,” whether she
“had a bias against [Gioglio] and acted on that bias,”
and whether she “expressed enthusiasm for [Gioglio’s]
lengthy sentence.” Id. We also noted in passing that the
trial court “did not address a series of other actions that
[Prentice-Sao] took or might have failed to take.” Id. We
then cited, by way of example, footnote 7 of the majority
opinion. Id., citing Gioglio, 292 Mich App at 202 n 7.
Although we did not specifically direct the trial court to
16 296 M
ICH
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address the acts and omissions identified in footnote 7,
the prosecution argues in its supplemental brief that it
was “appropriate” for the trial court to choose not to
address those issues. Specifically, the prosecution main-
tains that the issues identified in footnote 7 were not
properly raised in Gioglio’s original motion for a hear-
ing on his claim of ineffective assistance of counsel and,
therefore, the trial court did not have to address them.
For the same reason, the prosecution argues that this
Court should limit its analysis to those claims that
Gioglio properly raised in his original appeal.
This Court is an error-correcting court that has broad
authority to take corrective action with regard to lower
court proceedings. See Burns v Detroit (On Remand), 253
Mich App 608, 615; 660 NW2d 85 (2002); see also Up &
Out of Poverty Now Coalition v Michigan, 210 Mich App
162, 168; 533 NW2d 339 (1995) (“We are also mindful that
this Court functions as a court of review that is principally
charged with the duty of correcting errors.”). We have the
power to “exercise any or all of the powers of amendment
of the trial court or tribunal,” to “permit amendment or
additions to the grounds for appeal,” and to “permit
amendments, corrections, or additions to the transcript or
record.” MCR 7.216(A)(1), (3), and (4). This Court also has
the power to “enter any judgment or order or grant
further or different relief as the case may require,” MCR
7.216(A)(7) (emphasis added), and we may enforce our
orders through our contempt power, see In re Contempt of
Dougherty, 429 Mich 81, 91 n 14; 413 NW2d 392 (1987).
Therefore, this Court has the authority to order the trial
court to make findings and address issues that were not
raised in the original motion for an evidentiary hearing.
In addition, although we will not normally consider
issues that the trial court did not have the opportunity
to address, this Court can—and will—overlook preser-
2012] P
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IOGLIO
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vation requirements if it is in the interests of justice to
do so. See Smith v Foerster-Bolser Constr, Inc, 269 Mich
App 424, 427; 711 NW2d 421 (2006). Indeed, this Court
may even raise and address issues sua sponte. See City
of Dearborn v Bacila, 353 Mich 99, 118, 90 NW2d 863
(1958) (recognizing that there “is no hard and fast rule
that appellate courts, sitting either in law or equity,
cannot and, hence, do not raise and decide important
questions sua sponte”); see also People v Yost, 278 Mich
App 341, 388; 749 NW2d 753 (2008) (addressing an
issue sua sponte because the Court was convinced that
the trial court committed plain error and that it was
likely to repeat the error on remand). Accordingly, the
fact that Gioglio might not have raised a particular
issue before the trial court, while certainly relevant to
this Court’s resolution of a claim of error, does not
necessarily preclude this Court from granting relief. It
is for this Court alone to determine whether and to
what extent an issue was improperly preserved, waived,
or otherwise ineligible for appellate relief on procedural
grounds. And, as we are bound to follow the dictates of
our Supreme Court’s orders, the trial court was bound
to follow the dictates of this Court’s order “in the
utmost good faith.” See Werkhoven v City of Grandville
(On Remand), 65 Mich App 741, 744; 238 NW2d 392
(1975); see also Sokel v Nickoli, 356 Mich 460, 464; 97
NW2d 1 (1959) (“The power of the lower court on
remand is to take such action as law and justice may
require so long as it is not inconsistent with the
judgment of the appellate court.”). Thus, contrary to
the prosecution’s claims, the trial court was not free to
disregard our order on the basis of a belief that an issue
addressed by our order was not properly raised. Never-
theless, as we have already recognized, we did not
specifically order the trial court to address the issues
identified in footnote 7; rather, we cited that footnote in
18 296 M
ICH
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passing and in the general context of the need for a
remand. And we are satisfied that the trial court made
a good-faith effort to comply with our order on remand.
Werkhoven, 65 Mich App at 744.
Moreover, the prosecution’s fear that we might ad-
dress the issues that were identified in footnote 7 is
unfounded. This Court will exercise its ability to ad-
dress unpreserved issues only in the most exceptional
circumstances. Booth Newspapers, Inc v Univ of Mich
Bd of Regents, 444 Mich 211, 234 n 23; 507 NW2d 422
(1993); see also Bacila, 353 Mich at 118 (recognizing
that appellate courts have the power to address unpre-
served issues, but stating that the “power is exercised
sparingly” and with full realization of the restrictions
and limitations inherent in the power’s employment).
In our prior opinions, both the majority and the dissent
recognized that Gioglio had not properly raised those
issues and, accordingly, that those errors could not
serve as a basis for granting relief. See Gioglio, 292
Mich App at 202-203&n7(M.J.K
ELLY
,P.J.); id. at 224
n 3 (K. F. K
ELLY
, J., dissenting). As such, we shall limit
our analysis of Gioglio’s claim of ineffective assistance
to those acts and omissions that he arguably raised in
his original brief on appeal.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARDS OF REVIEW
Whether a defendant’s trial counsel was ineffective is
not a matter of historical fact; rather, both the perfor-
mance and prejudice components of the ineffectiveness
inquiry involve mixed questions of fact and law. Strick-
land, 466 US at 698. This Court reviews de novo, as a
question of constitutional law, the determination that a
particular act or omission fell below an objective stan-
2012] P
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IOGLIO
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dard of reasonableness under prevailing professional
norms and prejudiced the defendant’s trial. People v
Dendel, 481 Mich 114, 124; 748 NW2d 859 (2008)
(noting that appellate courts review the facts underly-
ing a trial court’s decision on a claim of ineffective
assistance of counsel for clear error, but review de novo,
as a question of constitutional law, the trial court’s
determination that the conduct amounted to ineffective
assistance); see also Padilla v Kentucky, 559 US ___;
130 S Ct 1473, 1486; 176 L Ed 2d 284 (2010) (holding
that as a matter of law the failure to correctly advise a
client about the possibility that the client will be
deported if he or she pleads guilty to a particular charge
falls below an objective standard of reasonableness
under prevailing professional norms). When there has
been no hearing on the defendant’s ineffective-
assistance claims,
1
there are no findings to which this
Court must defer; as such, this Court will determine
whether the performance of defendant’s trial counsel
amounted to the ineffective assistance of counsel by
examining the lower court record alone. See People v
Riley (After Remand), 468 Mich 135, 139; 659 NW2d
611 (2003) (stating that when there has been no hear-
ing below, the appellate court’s review is limited to
mistakes that are apparent on the record). However,
when, as here, the trial court has conducted a Ginther
hearing to resolve factual disputes concerning the con-
duct of the lower court proceedings, this Court will
review the trial court’s findings for clear error. MCR
2.613(C); People v LeBlanc, 465 Mich 575, 579; 640
NW2d 246 (2002). The clear-error standard is highly
deferential; an appellate court will only determine that
a trial court’s finding is clearly erroneous when, after a
1
Michigan courts typically refer to hearings on a claim of ineffective
assistance of counsel as Ginther hearings after our Supreme Court’s
decision in People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
20 296 M
ICH
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review of the entire record, it is left with the definite
and firm conviction that the trial court has made a
mistake. People v McSwain, 259 Mich App 654, 682-683;
676 NW2d 236 (2003).
B. THE TEST UNDER STRICKLAND
The United States and Michigan Constitutions both
guarantee that every person charged with a crime will
have a lawyer’s assistance throughout the criminal
proceedings. US Const, Am VI; Const 1963, art 1, § 20.
Indeed, the right to have the assistance of a lawyer is so
fundamental to the integrity of our system that the
state must provide the accused with a lawyer if the
accused cannot afford to hire his or her own lawyer. See
Gideon v Wainwright, 372 US 335, 344; 83 S Ct 792; 9
L Ed 2d 799 (1963). But the mere appointment of a
lawyer to assist the accused is not enough to satisfy the
Sixth Amendment right; the right necessarily includes
the right to have assistance that is within the range of
competence demanded of lawyers in criminal cases.
Cronic, 466 US at 654-655. As such, the Sixth Amend-
ment right to have the assistance of a lawyer in a
criminal proceeding includes the right to have effective
assistance. Strickland, 466 US at 686. And it is a
violation of the right to have the assistance of counsel
when a criminal defendant’s trial lawyer does not
render adequate legal assistance. Id.
In the majority of situations, Michigan courts apply
the test stated under Strickland when evaluating a
defendant’s claim that his or her trial lawyer did not
provide effective assistance. See People v Frazier, 478
Mich 231, 243; 733 NW2d 713 (2007). The Strickland
test recognizes that the “benchmark for judging any
claim of ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning of the
2012] P
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IOGLIO
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adversarial process that the trial cannot be relied on as
having produced a just result.” Strickland, 466 US at
686. To establish a claim of ineffective assistance of
counsel, the defendant must show that “counsel’s rep-
resentation fell below an objective standard of reason-
ableness” under prevailing professional norms and that
there is a “reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.” Id. at 688, 694.
The first prong of this test requires the defendant to
identify those acts or omissions of counsel that the
defendant alleges were not the result of reasonable
professional judgment. Id. at 690. The reviewing court
must then determine whether “in light of all the
circumstances, the identified acts or omissions were
outside the wide range of professionally competent
assistance.” Id. Because there are countless ways to
provide effective assistance in any given case, in review-
ing a claim that counsel was ineffective courts must
“indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.” Id. at 689. Reviewing courts are not only
required to give counsel the benefit of the doubt with
this presumption, they are required to “affirmatively
entertain the range of possible” reasons that counsel
may have had for proceeding as he or she did. Cullen v
Pinholster, 563 US ___; 131 S Ct 1388, 1407; 179 L Ed
2d 557 (2011). That inquiry is objective; although the
reviewing court may not engage in a post hoc rational-
ization of the counsel’s decision-making that contra-
dicts the available evidence, neither may courts insist
that counsel confirm every aspect of the strategic basis
for his or her actions. Harrington v Richter, 562 US ___;
131 S Ct 770, 790; 178 L Ed 2d 624 (2011). Accordingly,
a reviewing court must conclude that the act or omis-
sion of the defendant’s trial counsel fell within the
22 296 M
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range of reasonable professional conduct if, after affir-
matively entertaining the range of possible reasons for
the act or omission under the facts known to the
reviewing court, there might have been a legitimate
strategic reason for the act or omission. Pinholster, 563
US at ___; 131 S Ct at 1407; see, e.g., People v Vaughn,
291 Mich App 183, 197; 804 NW2d 764 (2010) (explain-
ing that there were several valid reasons why the
defendant’s trial counsel might not have objected to the
trial court’s decision to close the courtroom during jury
voir dire and concluding on that basis that the defen-
dant had failed to overcome the presumption that his
trial counsel’s decision was a matter of sound trial
strategy).
The second prong of the test requires the defendant
to show prejudice. Strickland, 466 US at 692. Under
this prong, it is not enough that the defendant showed
that the act or omission “had some conceivable effect on
the outcome of the proceeding.” Id. at 693. Rather, the
defendant must show that “there is a reasonable prob-
ability” that the outcome would have been different in
the absence of the deficient performance. Id. at 694. “A
reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. Further,
this determination must be made in consideration of
the “totality of the evidence” presented to the jury and
keeping in mind that some “errors will have had a
pervasive effect on the inferences to be drawn from the
evidence, altering the entire evidentiary picture, and
some will have had an isolated, trivial effect.” Id. at
695-696.
C. APPLICATION OF STRICKLAND
Having explained the test applicable to claims of
ineffective assistance of counsel, we shall now examine
2012] P
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IOGLIO
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N
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EMAND
) 23
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the instances that Gioglio alleges amounted to ineffec-
tive assistance by Prentice-Sao. Although Gioglio ar-
gued that he did not receive the effective assistance of
counsel under the test stated in Strickland, he did not
separately identify or analyze the acts or omissions that
he alleges to have been deficient. Instead, he merely
cited the conduct that he identified in his analysis of his
claim under Cronic. Therefore, we shall limit our re-
view to those acts and omissions.
1. BETRAYAL OF ATTORNEY-CLIENT PRIVILEGE
Gioglio argued that Prentice-Sao betrayed his
attorney-client communications by telling the prosecu-
tor that he had admitted to committing the charged
conduct. We agree that a trial lawyer’s decision to
betray his or her client’s confidential communications
to the prosecutor would normally fall below an objective
standard of reasonableness under prevailing profes-
sional norms. See MRPC 1.6. However, after this
Court’s remand, the trial court found that Prentice-Sao
did not intentionally disclose any privileged communi-
cations to the prosecutor. Rather, the trial court found
that the conversations did not amount to a betrayal of
confidence, but appeared “to be related to plea negotia-
tions.” Thus, the trial court implicitly accepted
Prentice-Sao’s version of events; namely, that any state-
ments she had made to the prosecutor were proper and
related to Gioglio’s ability to enter a valid plea. Because
resolution of this factual dispute was a matter of
credibility, we will defer to the trial court’s superior
ability to judge such matters. People v Sexton (After
Remand), 461 Mich 746, 752; 609 NW2d 822 (2000);
MCR 2.613(C). Accordingly, given the trial court’s find-
ings, we must conclude that Gioglio has failed to estab-
lish the factual predicate of his claim—that is, he failed
24 296 M
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to establish that Prentice-Sao actually betrayed his
confidential communications to the prosecutor. People v
Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001)
(stating that the defendant bears the burden of estab-
lishing the factual predicate for his claim of ineffective
assistance).
2. BIAS
Gioglio also argued on appeal that Prentice-Sao had a
bias against him and that the bias amounted to an
actual conflict of interest under Mickens v Taylor, 535
US 162, 172-173, 172 n 5; 122 S Ct 1237; 152 L Ed 2d
291 (2002). Specifically, Gioglio stated that the evidence
that Prentice-Sao mimicked his speech impediment,
that she said she could not stand to look at him and that
he made her sick, and that she expressed pleasure after
he received a lengthy sentence demonstrated that
Prentice-Sao had a bias against him and that her bias
adversely affected her performance.
Gioglio presented compelling evidence that Prentice-
Sao might have had a bias against him and acted on
that bias to his detriment. And we agree that when a
trial lawyer adopts the view that his client is guilty and
acts on that belief, the acts taken on the basis of the bias
necessarily fall below an objective standard of reason-
ableness under prevailing professional norms. See
Gioglio, 292 Mich App at 205, citing United States v
Swanson, 943 F2d 1070, 1074 (CA 9, 1991). Neverthe-
less, the trial court did not agree that the evidence
established that Prentice-Sao “had a bias against her
client and acted on that bias.” The court explained that
Prentice-Sao’s “actions during the case and her testi-
mony are not consistent with the allegations that her
actions were affected by any bias.” The trial court
implicitly found Prentice-Sao’s testimony that she “was
2012] P
EOPLE V
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IOGLIO
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EMAND
) 25
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concerned about [Gioglio’s] well-being throughout the
case” to be credible and found that Prentice-Sao
“seemed to be doing what she could to protect
[Gioglio].” Again, because the trial court was in the best
position to evaluate the demeanor and credibility of the
witnesses, we must defer to the trial court’s finding that
Prentice-Sao did not have, or act on, a bias against
Gioglio. Sexton, 461 Mich at 752. Accordingly, Gioglio
has not established this claim of error.
3. FAILURE TO CROSS-EXAMINE
Gioglio also argues that Prentice-Sao’s decision to
not cross-examine the complainant fell below an objec-
tive standard of reasonableness under prevailing pro-
fessional norms. He maintains that Prentice-Sao’s de-
cision was not motivated by trial strategy, but by her
inability to question a child victim of sexual abuse and
her contempt for him.
We can imagine numerous valid reasons why a com-
petent lawyer—when confronted with the facts of this
case—might refrain from cross-examining the com-
plainant as a matter of trial strategy; a reasonably
competent lawyer might want to avoid the appearance
of bullying the witness, might believe that the com-
plainant’s testimony can best be undermined by point-
ing out inconsistencies with other testimony, and might
want to avoid elaboration on damaging points of testi-
mony. See, e.g., People v Mitchell, 454 Mich 145, 163;
560 NW2d 600 (1997) (noting that a trial lawyer’s
handling of witnesses is presumptively a matter of trial
strategy). As such, in the absence of evidence to the
contrary, we would normally presume that Prentice-
Sao’s decision was founded on considerations of reason-
able professional judgment and end the inquiry there.
See Pinholster, 563 US at ___; 131 S Ct at 1407
26 296 M
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(requiring reviewing courts to affirmatively entertain
the range of possible reasons that counsel may have had
for proceeding as he or she did); Strickland, 466 US at
689-690 (providing that reviewing courts must recog-
nize that “counsel is strongly presumed to have ren-
dered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.”). However, Gioglio presented evidence that
tended to show that Prentice-Sao might have refused to
cross-examine the complainant because she simply
could not bring herself to do so or because she believed
that her client was guilty and, for that reason, decided
that it would be inappropriate to put the child through
a cross-examination. If Prentice-Sao refused to cross-
examine the complainant for those reasons, the decision
could not be said to have been objectively reasonable
under prevailing professional norms. See Strickland,
466 US at 688 (stating that a lawyer has a duty of
loyalty to his or her client and must “bring to bear such
skill and knowledge as will render the trial a reliable
adversarial testing process”).
In examining Gioglio’s evidence, the trial court
stated that it was “not convinced that [Prentice-Sao]
refused to cross-examine the victim because she be-
lieved that her client was guilty or because she believed
that the victim did not deserve to be put through a
cross-examination.” The trial court also summarized
Prentice-Sao’s testimony from the hearing and implic-
itly found that Prentice-Sao’s version was credible. It
then found that Prentice-Sao made the decision as part
of a “reasonable trial strategy.” Although we might
disagree with these findings, mere disagreement is not
a sufficient basis for determining that they are clearly
erroneous. See People v Farrow, 461 Mich 202, 208-209;
600 NW2d 634 (1999) (stating that a finding is not
clearly erroneous if there is sufficient support for the
2012] P
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IOGLIO
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EMAND
) 27
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finding in the record and concluding that the Court of
Appeals overstepped its review function by substituting
its judgment regarding the evidence for that of the trial
court). The trial court was present throughout the
original trial and observed the trial lawyers. It also had
the opportunity to observe the lawyers’ demeanor at
the Ginther hearing. It was, therefore, in a superior
position to judge the evidence and we will defer to its
judgment. Id. at 209; MCR 2.613(C). On this record,
Gioglio has failed to establish that Prentice-Sao’s deci-
sion to not cross-examine the complainant fell below an
objective standard of reasonableness under prevailing
professional norms. Strickland, 466 US at 688.
D. CONCLUSION
When Gioglio’s claims of ineffective assistance are
viewed in light of the trial court’s resolution of the
competing factual claims, we must conclude that
Gioglio has not established that any of Prentice-Sao’s
acts or omissions fell below an objective standard of
reasonableness under prevailing professional norms.
Consequently, he has not established that he did not
receive the effective assistance of counsel under the test
stated in Strickland. See id.
III. HABITUAL-OFFENDER ENHANCEMENT
A. STANDARDS OF REVIEW
Finally, as part of his original appeal, Gioglio argued
that the trial court erred when it determined that it had
to sentence him as an habitual offender under MCL
769.10. This Court reviews for an abuse of discretion a
trial court’s decision to apply habitual-offender en-
hancements. People v Mack, 265 Mich App 122, 125; 695
NW2d 342 (2005).
28 296 M
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B. ANALYSIS
The trial court originally sentenced Gioglio using the
maximum sentences without any habitual-offender en-
hancements. The trial court later held a new hearing to
correct the maximum sentences. The trial court indi-
cated that it gave Gioglio “the wrong maximum” and
then resentenced him by increasing the maximum
sentences for each conviction by 1
1
/
2
, as provided under
MCL 769.10.
Under MCL 769.10, a trial court may—but is not
required to—enhance the maximum sentences for ha-
bitual offenders. People v Bonilla-Machado, 489 Mich
412, 429; 803 NW2d 217 (2011). And if a trial court
applies MCL 769.10 to enhance a sentence under the
mistaken belief that it is required to do so, it necessarily
abuses its discretion. Id. at 430. In this case, it is not
entirely clear that the trial court enhanced Gioglio’s
maximum sentences under a mistaken belief that it had
to apply MCL 769.10. In any event, we conclude that
Gioglio waived this claim of error. After the trial court
applied MCL 769.10 to Gioglio’s maximum sentences, it
asked if “everyone was in agreement” with the new
maximums, to which Prentice-Sao replied that she was.
By affirmatively agreeing with the trial court’s decision
to apply MCL 769.10 to enhance Gioglio’s sentences,
Prentice-Sao waived any claim that the trial court erred
by doing so on behalf of her client. People v Carter, 462
Mich 206, 215-216; 612 NW2d 144 (2000) (holding that
express approval of the trial court’s actions constitutes
a waiver that extinguishes any error).
IV. GENERAL CONCLUSION
Gioglio failed to establish that he did not receive the
effective assistance of counsel under the test stated in
2012] P
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IOGLIO
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EMAND
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Strickland. Further, his trial lawyer waived any claim
that the trial court did not properly exercise its discre-
tion when applying MCL 769.10 to enhance his sen-
tences. Therefore, we conclude that there were no
errors warranting appellate relief.
Affirmed.
B
ORRELLO
, J., concurred with M. J. K
ELLY
,P.J.
K. F. K
ELLY
,J.(concurring). I concur in the result
only.
30 296 M
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C
ONCURRING
O
PINION BY
K. F. K
ELLY
,J.
In re BRADLEY ESTATE
Docket No. 299640. Submitted January 5, 2012, at Grand Rapids.
Decided March 22, 2012, at 9:00 a.m. Leave to appeal granted, 493
Mich 866.
Nancy Mick, as personal representative of the estate of Stephen
Bradley, filed a contempt of court action in the Kent County
Probate Court against the Kent County Sheriff’s Department.
Mick had obtained an order from the probate court on August 12,
2003, requiring that her brother, Bradley, be taken into custody for
a psychiatric evaluation. The sheriff’s department failed to execute
the pick-up order, and Bradley fatally shot himself on August 21,
2004. Mick originally filed a wrongful-death action against the
sheriff’s department in the Kent Circuit Court, which the circuit
court summarily dismissed on the basis of governmental immu-
nity, MCL 691.1407. Mick then filed this civil-contempt petition in
the probate court, claiming that the sheriff’s department had
failed to execute the probate court’s order and that she suffered
damages including but not limited to the damages set forth in the
wrongful-death statute, MCL 600.2922. The sheriff’s department
moved for summary disposition, arguing that under MCL
691.1407, it was immune from the damages claim because Mick
was essentially asking for tort damages from which it was im-
mune. The probate court, David M. Murkowski, J., denied the
motion, and the sheriff’s department appealed that decision in the
circuit court, which reversed. The circuit court, James R. Redford,
J., concluded that Mick’s claim for compensatory damages was
barred by the government tort liability act (GTLA), MCL 691.1401
et seq., because the underlying cause of action was based in tort.
The circuit court remanded the case to the probate court for entry
of summary disposition in favor of the sheriff’s department. Mick
appealed by leave granted.
The Court of Appeals held:
Compensatory damages for contempt may be awarded under
MCL 600.1721. The damages that may be awarded for contempt of
court that results in a loss of life may be assessed pursuant to the
wrongful-death statute. Under the GTLA, a governmental agency
is immune from tort liability for all civil wrongs if the governmen-
tal agency is engaged in the exercise or discharge of a governmen-
2012] In re B
RADLEY
E
STATE
31
tal function. However, § 7 of GTLA, MCL 691.1407, does not bar
recovery if a plaintiff successfully pleads and establishes a nontort
cause of action even though the underlying facts could have also
established a tort cause of action. The circuit court erred by
concluding that Mick’s claim was barred by the GTLA on the basis
that the underlying cause of action was premised on the wrongful-
death statute and therefore based in tort. A contempt action can
survive a governmental immunity challenge if the cause of action
is separate and distinct from the wrongful-death action grounded
in tort liability. The nature and type of damages sought are
irrelevant for determining whether the actual claim was barred by
governmental immunity. Accordingly, tort-like damages would be
recoverable in a contempt action if the underlying claim is proved.
Reversed and remanded to the probate court.
C
ONTEMPT —
G
OVERNMENTAL
I
MMUNITY —
R
ECOVERY OF
D
AMAGES —
N
ONTORT
C
AUSES OF
A
CTION
.
Under the government tort liability act, MCL 691.1401, et seq., a
governmental agency is immune from tort liability for all civil
wrongs if the governmental agency is engaged in the exercise or
discharge of a governmental function; however, MCL 691.1407
does not bar recovery if a plaintiff successfully pleads and estab-
lishes a nontort cause of action such as an action for contempt,
even though the underlying facts could have also established a tort
cause of action; the cause of action must be separate and distinct
from the action grounded in tort liability.
Timothy L. Taylor for Nancy Mick.
Varnum LLP (by Peter A. Smit, Timothy E. Eagle,
and Adam J. Brody), for the Kent County Sheriff’s
Department.
Before: H
OEKSTRA
,P.J., and M
ARKEY
and B
ORRELLO
,JJ.
P
ER
C
URIAM
. In this contempt action, petitioner
Nancy Mick, in her capacity as personal representative
of the estate of Stephen Bradley, appeals by leave
granted the circuit court order reversing a probate
court order denying the motion of respondent Kent
County Sheriff’s Department (KCSD) for summary
disposition of Mick’s claim for compensatory damages
32 296 M
ICH
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for the death of her brother, Stephen Bradley. The only
issue on which leave was granted is whether the gov-
ernmental tort liability act (GTLA), MCL 691.1401 et
seq., applies to bar recovery of compensatory contempt
damages sought pursuant to MCL 600.1721. Because
we conclude that the GTLA does not apply, we reverse.
On August 12, 2004, Mick obtained an order from the
probate court requiring that Bradley be taken into
custody for a psychiatric evaluation. KCSD failed to
execute this pick-up order in the days following its
issuance, and on August 21, 2004, Bradley fatally shot
himself. Mick requested that KCSD conduct an internal
investigation into its failure to execute the pick-up
order. That investigation determined that KCSD’s han-
dling of the pick-up order was negligent. Mick filed a
wrongful-death action against KCSD, alleging that its
negligence and breach of duty caused Bradley’s death;
however, that action was summarily dismissed by the
circuit court on the basis of governmental immunity
because Mick could not establish gross negligence or
that KCSD’s negligence was “the” proximate cause of
Bradley’s death.
After her wrongful-death action was dismissed, Mick
filed a petition in the probate court alleging civil con-
tempt. The petition asserted that KCSD failed and
refused to execute the probate court order and as a
result of that failure, Mick “suffered and continues to
suffer damages, including, but not limited to, all of
those damages set forth in the Michigan Wrongful
Death Statute, MCL 600.2922, et seq.” Mick asked the
probate court to enter an order finding KCSD in civil
contempt and award her “damages in an amount the
Court deems appropriate.”
In lieu of filing an answer, KCSD moved for summary
disposition pursuant to MCR 2.116(C)(10). It argued
2012] In re B
RADLEY
E
STATE
33
that under § 7 of the GTLA, MCL 691.1407, it was
immune from any damages claim because Mick was
essentially asking for tort damages, regardless of the
fact that her petition was for civil contempt. Mick
opposed KCSD’s motion and argued that her action was
for compensatory damages for KCSD’s contempt and
that the action was not barred by the GTLA because her
request for damages did not stem from a tort action.
After hearing oral arguments, the probate court denied
KCSD’s motion on the basis of its inherent power to
punish contempt of court when, as here, there was a
violation of a specific court order. The probate court
held that “[t]he claim under the contempt statute is not
based in tort, but it’s based in [sic] violation of a court
order” and concluded that “[g]overnmental immunity
does not insulate a contemnor from the contemnor’s
refusal or negligence to obey a court order.”
1
KCSD appealed the probate court’s ruling in the
circuit court, which concluded that Mick’s claim for
1
In its motion for summary disposition in the probate court, KCSD
also argued that Mick’s petition was procedurally defective because she
did not submit a sworn affidavit as required by MCR 3.606(A) and
because KCSD is not a legal entity that can be sued. KCSD further
argued that Mick had failed to demonstrate a genuine issue of material
fact in regard to willfulness, which was required because Mick had to
demonstrate that KCSD willfully disobeyed a court order, and that Mick
had also failed to demonstrate a genuine issue of material fact in regard
to causation, which was required because MCL 600.1721 requires a
showing that any misconduct caused an actual loss or injury. In its
decision issued on the record, the probate court did not explicitly address
KCSD’s arguments regarding willfulness or causation. However, because
it denied KCSD’s summary disposition motion, it must have implicitly
determined that Mick had demonstrated a genuine issue of material fact.
In its ruling, the probate court discussed only its inherent power to
punish for contempt and its conclusion that the action is not barred by
the GTLA. It briefly mentioned Mick’s failure to file a sworn affidavit and
stated that the defect did not bar the action because it was clear that
KCSD had notice. It did not mention KCSD’s argument that KCSD is not
a legal entity capable of being sued.
34 296 M
ICH
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31 [Mar
compensatory damages for Bradley’s death was barred
by the GTLA. At the hearing on KCSD’s appeal from
the probate court, the circuit court noted that “[t]he
power to punish contempt is an inherent common law
right of Michigan courts of record,” and as such, “con-
tempt is not based in tort.” The circuit court held that
“the GTLA does not prevent courts from punishing, by
either fine or jail time, government actors found to be in
contempt.” Nevertheless, the circuit court concluded
that “the power to award compensatory damages is not
an inherent contempt power of the court. Rather com-
pensatory damages in contempt proceedings are
awarded pursuant to MCL 600.1721.” The circuit court
noted that “the underlying cause of action is based in
tort,” as evidenced by the fact that the case was
originally brought under the wrongful-death statute.
The circuit court concluded, “Because the damages
arise from tortious conduct that is not an exception to
GTLA immunity, the GTLA bars [Mick] from recovery
of compensatory damages from [KCSD] in the present
contempt proceeding.” The circuit court reversed the
probate court’s denial of KCSD’s motion for summary
disposition and remanded with direction that the pro-
bate court enter an order granting KCSD’s motion
pursuant to MCR 2.116(C)(7).
2
Mick appealed the circuit court’s order dismissing
Mick’s claim against KCSD for contempt damages on
the basis that they are barred by the GTLA, and this
2
On appeal to the circuit court, KCSD again argued that the GTLA
barred Mick’s claim for compensatory damages. KCSD also argued that
the Legislature can circumscribe the probate court’s authority to award
compensatory damages for contempt, that Mick cannot demonstrate
willfulness, and that there is no genuine issue of material fact regarding
causation. Because the circuit court concluded that Mick’s claims for
compensatory damages are barred by the GTLA, it did not address the
other issues raised by KCSD.
2012] In re B
RADLEY
E
STATE
35
Court granted leave, limited to the issue raised in the
application. MCR 7.205(D)(4). Accordingly, the only
issue before us is whether the circuit court erred by
deciding that the GTLA immunizes governmental ac-
tors from contempt-based compensatory damages
awarded under MCL 600.1721.
We review de novo a trial court’s decision on a motion
for summary disposition. Hoffman v Boonsiri, 290 Mich
App 34, 39; 801 NW2d 385 (2010). Under MCR
2.116(C)(7), summary disposition is appropriate if a
claim is barred because of immunity granted by law. A
motion pursuant to MCR 2.116(C)(7) may be supported
by affidavits, depositions, admissions, or other docu-
mentary evidence as long as the evidence would be
admissible. Maiden v Rozwood, 461 Mich 109, 119; 597
NW2d 817 (1999). The allegations set forth in the
complaint must be accepted as true unless contradicted
by other evidence. Id. “[T]he 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 pro-
vide a basis for recovery.” Hoffman, 290 Mich App at 39.
Issues of statutory interpretation are also questions
of law that we review de novo. Driver v Naini, 490 Mich
239, 246; 802 NW2d 311 (2011). The goal of statutory
interpretation is to discern the intent of the Legislature
by examining the plain language of the statute. Id. at
246-247. “When the language is clear and unambigu-
ous, we will apply the statute as written and judicial
construction is not permitted.” Id. at 247.
MCL 600.1721 provides:
If the alleged misconduct has caused an actual loss or
injury to any person the court shall order the defendant to
pay such person a sufficient sum to indemnify him, in
addition to the other penalties which are imposed upon the
36 296 M
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defendant. The payment and acceptance of this sum is an
absolute bar to any action by the aggrieved party to recover
damages for the loss or injury.
The GTLA provides in pertinent part that “a govern-
mental agency is immune from tort liability if the
governmental agency is engaged in the exercise or
discharge of a governmental function.” MCL
691.1407(1). In Tate v Grand Rapids, 256 Mich App
656, 660; 671 NW2d 84 (2003), this Court explained
that “[t]he GTLA unambiguously grants immunity
from all tort liability, i.e., all civil wrongs for which legal
responsibility is recognized, regardless of how the legal
responsibility is determined, except as otherwise pro-
vided in the GTLA.”
In this case, KCSD does not dispute that the compen-
satory damages that may be awarded pursuant to MCL
600.1721 for contemptuous conduct that results in a
loss of life could be assessed pursuant to the wrongful-
death statute, MCL 600.2922, as requested by Mick in
her petition filed in the probate court. Rather, KCSD
argues that the wrongful-death damages sought by
Mick in this case pursuant to MCL 600.1721 would
actually be tort liability damages that are barred by the
GTLA. Relying on the language of the governmental
immunity statute and the broad application of the
GTLA set forth in Tate, KCSD argues that regardless of
how Mick’s claim against it is stated, because the facts
giving rise to the damages could also establish a tort
cause of action, the damages are barred by the GTLA.
We disagree.
In Tate, this Court addressed whether the GTLA
applied to bar a claim against a governmental entity
when the claim was based on a statute that imposed
strict liability for dog bites. Tate, 256 Mich App at 657.
After stating that the GTLA applies to “all civil
2012] In re B
RADLEY
E
STATE
37
wrongs,” this Court concluded that strict-liability
claims are within the ambit of tort law, just as are other
tort-related claims such as products liability and pre-
mises liability. Id. at 660-661. Thus, the holding in Tate
was based on the conclusion that the strict-liability
dog-bite claim asserted by the plaintiff was a claim for
tort liability that was barred by the GTLA. The nature
of the damages being sought by the plaintiff played no
role in this Court’s analysis.
Similarly, in Ross v Consumers Power Co (On Rehear-
ing), 420 Mich 567, 647; 363 NW2d 641 (1984), our
Supreme Court addressed whether a contract action
was subject to dismissal pursuant to the GTLA because
the contract claim was joined with a tort claim and tort
damages were sought for both. The Court rejected the
governmental agency’s argument that the plaintiff’s
contract claim should be dismissed even though the
plaintiff had merely restated allegations contained in its
tort claim that was barred by governmental immunity
and requested the same damages. Id. at 647-648. In so
holding, the Court stated:
We recognize that plaintiffs have and will attempt to
avoid § 7 [MCL 691.1407] of the governmental immunity
act by basing their causes of action on theories other than
tort. Trial and appellate courts are routinely faced with the
task of determining whether the essential elements of a
particular cause of action have been properly pleaded and
proved. If a plaintiff successfully pleads and establishes a
non-tort cause of action, § 7 will not bar recovery simply
because the underlying facts could have also established a
tort cause of action. [Id.]
Consistent with the holdings in Tate and Ross,
whether Mick’s contempt claim can survive a govern-
mental immunity challenge is controlled not by the
nature of the damages sought, but by whether Mick’s
38 296 M
ICH
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31 [Mar
contempt action is a cause of action that is separate and
distinct from one that is grounded in tort liability.
In this case, there is no doubt that Mick’s contempt
action is an attempt to avoid application of the GTLA.
Indeed, Mick initially brought a tort action that was
summarily dismissed because it was barred by the
GTLA; however, Mick recast her complaint as one for
contempt. In accord with the Ross Court’s holding that
the GTLA will not bar recovery simply because the
underlying facts could have also established a tort cause
of action, we conclude that tort-like damages are recov-
erable in a contempt action assuming contempt can be
proved. Thus, whether the GTLA implicates the viabil-
ity of Mick’s contempt action rests on whether Mick can
successfully plead and establish a contempt cause of
action. Id. The nature of the damages being requested
has no role in determining whether the action is barred
by the GTLA. Consequently, the circuit court erred
when it dismissed this case merely because the damages
sought were similar to tort damages.
Reversed and remanded to the probate court for
further proceedings consistent with this opinion. We do
not retain jurisdiction. Plaintiff, being the prevailing
party, may tax costs pursuant to MCR 7.219.
H
OEKSTRA
,P.J., and M
ARKEY
and B
ORRELLO
, JJ., con-
curred.
2012] In re B
RADLEY
E
STATE
39
SZYSZLO v AKOWITZ
Docket No. 299570. Submitted December 13, 2011, at Detroit. Decided
March 22, 2012, at 9:05 a.m. Leave to appeal denied, 492 Mich 857.
Joseph Szyszlo filed a medical malpractice action in the Oakland
Circuit Court against Leigh Akowitz, A. Heinrich, Mable Alverson,
Trinity Health-Michigan, doing business as St. Joseph Mercy
Hospital, Trinity-Health Michigan, doing business as St. Joseph
Mercy Hospital Pontiac, Joffer Hussein Hakim, M.D., and Bloom-
field Anesthesia, P.C. Szyszlo filed a bankruptcy petition in the
United States Bankruptcy Court for the Eastern District of
Michigan on July 10, 2006, approximately three months after a
surgery from which the medical malpractice allegations arose. In
September 2006, Szyszlo amended the bankruptcy petition to add
the personal-injury claim arising out of the alleged medical mal-
practice as an asset. Szyszlo listed the current market value of the
claim as $15,000, and then on a separate form claimed maximum
exemption of $18,450 against the claim for personal injury due to
medical malpractice, with the value of the claim listed as un-
known. Neither the trustee nor any creditor filed an objection to
this exemption. On April 15, 2008, the bankruptcy trustee filed a
report of no distribution in which she indicated there was no
property available for distribution from the estate other than the
exemptions claimed under the exemption law. She requested to be
discharged from her duties as trustee. Szyszlo filed the instant
medical malpractice claim on October 3, 2008, but the bankruptcy
case was not closed by the bankruptcy court, and the trustee
discharged, until May 13, 2009. Defendants thereafter filed sepa-
rate motions for summary disposition arguing that Szyszlo lacked
the legal capacity to assert the medical malpractice claim and that
he should be judicially estopped from claiming damages in excess
of $15,000. The circuit court, Edward Sosnick, J., granted defen-
dants’ motion concluding that Szyszlo lacked the legal capacity to
sue on the claim because at the time the complaint was filed the
bankruptcy estate was not closed. The circuit court reasoned that
the bankruptcy estate retained its interest in the potential mal-
practice lawsuit until the estate was closed on May 13, 2009.
Szyszlo appealed and defendants cross-appealed.
The Court of Appeals held:
40 296 M
ICH
A
PP
40 [Mar
1. Under 11 USC 522(d)(11)(D), a debtor may claim an exemp-
tion from inclusion in the bankruptcy estate for a payment on
account of personal bodily injury. Unless a party in interest
objects, the property claimed as exempt on a list is exempt. 11 USC
522(l). A trustee does not have to abandon the property as a
prerequisite to the debtor claiming the exemption. Rather, aban-
donment is the method used by a trustee to relieve the estate of
any property that is burdensome to the estate and that is of
inconsequential value and benefit to the estate. However until and
unless the trustee abandons the estate’s interest in the lawsuit,
any amounts recovered in the lawsuit above the amount of the
statutory exemption would flow to the bankruptcy estate. A debtor
still retains an interest in the lawsuit because the statutory
exemption represents a present, substantial interest and provides
the necessary standing to pursue the action. The circuit court
erred by granting defendants’ motion for summary disposition on
the basis of lack of legal capacity to sue. Szyszlo had standing and
was a proper party to bring this suit because he had an undisputed
exemption for the medical malpractice claim. Szyszlo would also be
entitled to any funds recovered in the medical malpractice suit
that are in excess of the sum of administrative fees, exemptions
and the debt owed by the estate.
2. Judicial estoppel applies when a party successfully and
unequivocally asserts a position in a prior proceeding that is
wholly inconsistent with the position taken in a subsequent
proceeding. The circuit court properly concluded that Szyszlo was
not estopped from bringing this medical malpractice action. The
$15,000 amount he claimed as the market value of his medical
malpractice claim was not inconsistent with the circuit court’s
jurisdictional limit amount of $25,000. The potential claim was
listed as an asset in the bankruptcy filing in 2006 and proceedings
were not begun in this case until nearly two years later. The
market value of potential damages in a suit that had not yet been
filed was discounted by the uncertainties associated with such a
trial. It was appropriate for the market value to be claimed as
$15,000, while the damages sought were in excess of $25,000. The
listed $15,000 market value of the claim was not a statement of
actual damages and was not an “unequivocal” statement of such
damages. Szyszlo was accordingly not judicially estopped from
seeking damages in excess of $25,000 in the medical malpractice
claim.
3. Circuit courts have jurisdiction over cases in which $25,000
or more is in controversy. MCL 600.8301(1). The amount in
controversy is based on the damages claimed. Under the version of
2012] S
ZYSZLO V
A
KOWITZ
41
11 USC 522(11)(D) in effect in 2006, $18,450 was the maximum
statutory exemption permitted in a personal bankruptcy petition.
The circuit court had jurisdiction over Szyszlo’s medical malprac-
tice claim. If he recovered damages, Szyszlo would be entitled to
the $18,450 as his exemption, plus any amount in excess of the
amount necessary to satisfy his debts in the bankruptcy estate.
Contrary to defendants’ argument, the potential for recovering in
excess of the $25,000 jurisdictional amount was sufficient to confer
jurisdiction on the circuit court.
Reversed and remanded.
1. A
CTIONS —
S
TANDING IN
B
ANKRUPTCY
A
CTIONS —
S
TATUTORY
E
XEMPTIONS FROM
I
NCLUSION IN
B
ANKRUPTCY
E
STATE —
P
OTENTIAL
L
AWSUITS —
P
RESENT AND
S
UBSTANTIAL
I
NTEREST
.
Under 11 USC 522(d)(11)(D), a debtor may claim an exemption from
inclusion in a bankruptcy estate for a payment on account of
personal bodily injury; unless a party in interest objects, the
property claimed as exempt on a list is exempt under 11 USC
522(l); a trustee does not have to abandon the property as a
prerequisite to the debtor claiming the exemption; rather, aban-
donment is the method used by a trustee to relieve the estate of
any property that is burdensome to the estate and that is of
inconsequential value and benefit to the estate; however until and
unless the trustee abandons the estate’s interest in the lawsuit,
any amounts recovered in the lawsuit above the amount of the
statutory exemption would flow to the bankruptcy estate; a debtor
still retains an interest in the lawsuit because the statutory
exemption represents a present, substantial interest and provides
the necessary standing to pursue the action.
2. E
STOPPEL —
J
UDICIAL
E
STOPPEL —
I
NCONSISTENT
P
OSITION IN
P
RIOR
P
ROCEED-
ING
.
Judicial estoppel applies when a party successfully and unequivo-
cally asserts a position in a prior proceeding that is wholly
inconsistent with the position taken in a subsequent proceeding.
Frederic M. Rosen, P.C. (by Frederic M. Rosen and
Steffani Chocron), and Bendure & Thomas (by Mark R.
Bendure) for Joseph Szyszlo.
Lipson, Neilson, Cole, Seltzer & Garin, P.C. (by Karen
A. Smyth and Mark E. Phillips), for Leigh Akowitz.
42 296 M
ICH
A
PP
40 [Mar
Tanoury, Nauts, McKinney & Garbarino, P.L.L.C. (by
Linda M. Garbarino and David R. Nauts), for A.
Heinrich, Mable Alverson, and Trinity Health-
Michigan.
Saurbier & Siegan, P.C. (by Marc D. Saurbier), for
Joffer Hussein Hakim, M.D., and Bloomfield Anesthe-
sia, P.C.
Before: S
HAPIRO
,P.J., and W
HITBECK
and M
URRAY
,JJ.
P
ER
C
URIAM
. Plaintiff appeals from the trial court’s
order granting defendants’ motions for summary dispo-
sition and dismissing plaintiff’s medical malpractice
suit. The trial court found that at the time plaintiff filed
suit, the sole party having an interest in the medical
malpractice claim was the trustee of plaintiff’s bank-
ruptcy estate. Given this finding, the trial court held
that plaintiff lacked the legal capacity to sue on the
claim. Plaintiff appeals as of right. Defendants cross-
appeal as of right, asserting that the trial court erred by
rejecting their alternative argument that plaintiff, even
if a proper party in interest, was judicially estopped
from seeking damages in excess of $15,000, an amount
less than the minimum required for circuit court juris-
diction. For the reasons set forth below, we reverse the
trial court’s conclusion that plaintiff was not a proper
party in interest and affirm the trial court’s conclusion
that plaintiff was not judicially estopped from seeking
damages in excess of the circuit court jurisdictional
minimum. Accordingly, we reverse the order of sum-
mary disposition and remand for further proceedings.
I. BACKGROUND
Plaintiff underwent a 10-hour surgery after sustain-
ing multiple orthopedic injuries in a fall on April 11,
2012] S
ZYSZLO V
A
KOWITZ
43
2006. Following the surgery plaintiff was found to be
cortically blind.
1
The hospital discharge summary
reported that “the blindness was not present prior to
the operative intervention and the assumption was
that it was related to positioning and or hypotension
during the procedure.” Plaintiff asserts that the
defendant anesthesiologist and defendant nurse
anesthetists were negligent by failing to properly
position and reposition him during the surgery to
allow for proper blood flow, and by failing to properly
monitor and address his perioperative hypotension.
Plaintiff claims that these failures caused his perio-
perative blindness.
2
On July 10, 2006, about three months after the surgery,
plaintiff filed a bankruptcy petition in the United States
Bankruptcy Court for the Eastern District of Michigan.
On or about September 6, 2006, the petition was amended
to add a potential medical malpractice claim as an asset.
Under the heading “other personal property of any kind
not already listed,” the amended petition listed “claim for
personal injury due to medical malpractice, value un-
known.” (Emphasis added.) The bankruptcy form also
requested the “current market value of the debtor’s
interest in property,” and this was listed as $15,000. On
the portion of the form for the petitioner to list “property
claimed as exempt,” plaintiff listed a claimed exemption of
$18,450
3
against the “claim for personal injury due to
1
Cortical blindness is a loss of vision resulting from damage to the
brain rather than damage to the eye itself. See Stedman’s Medical
Dictionary (26th ed), p 212.
2
The affidavits of meritorious defense assert that defendants fully
complied with the applicable standards of care and that the cause of
plaintiff’s perioperative vision loss cannot be known to within a reason-
able degree of medical certainty.
3
The maximum statutory exemption amount then permitted under 11
USC 522(11)(D).
44 296 M
ICH
A
PP
40 [Mar
medical malpractice, value unknown.” Neither the
trustee nor any creditor filed an objection to this
exemption.
On April 15, 2008, the bankruptcy trustee filed a report
of no distribution in which she stated, “I have made
diligent inquiry into the whereabouts of property belong-
ing to the estate; and...there is no property available
for distribution from the estate over and above the
exemptions claimed by the exempted law.” In the re-
port, the trustee “certif[ied] that the estate...hasbeen
fully administered” and requested that she be dis-
charged from further duties as trustee. She later stated
in an affidavit—apparently prepared as evidence for the
instant case—that before filing the report of no distri-
bution, she had “investigated the potential medical
malpractice action” and had “made the determination
that this claim was not worth pursuing on behalf of the
bankruptcy estate.”
On October 3, 2008, approximately one week before
the expiration of the limitations period for the malprac-
tice claim, plaintiff filed his complaint in circuit court.
Two affidavits of merit were filed with the complaint;
one was signed on September 25, 2008, and the other on
October 1, 2008.
On May 13, 2009, about 13 months after the trustee
had filed her report and the bankruptcy court entered a
final decree stating that the case had been fully admin-
istered, the trustee was discharged, and the case
closed.
4
4
On August 10, 2010, plaintiff’s bankruptcy attorney was suspended
from the practice of law for a period of three years, effective June 25,
2009, for professional misconduct including failure to adequately com-
municate with clients, failure to act with reasonable diligence and
promptness in representing his clients, misappropriating monies and
failing to safeguard client funds, and several other violations of the
Michigan Rules of Professional Conduct.
2012] S
ZYSZLO V
A
KOWITZ
45
In April 2010, defendants each moved for summary
disposition, arguing that plaintiff did not have the legal
capacity to sue on the medical malpractice claim and,
further, that he should be judicially estopped from
claiming damages in excess of $15,000.00. A hearing on
the motion was held on July 14, 2010, and on July 22,
2010, the trial court issued its opinion.
II. STANDARD OF REVIEW
We review de novo a trial court’s summary disposi-
tion ruling. Spiek v Dep’t of Transp, 456 Mich 331, 337;
572 NW2d 201 (1998). The trial court based its ruling
on a lack of capacity to sue, which is governed by MCR
2.116(C)(5). In reviewing such a ruling, “ ‘this Court
must consider the pleadings, depositions, admissions,
affidavits, and other documentary evidence submitted
by the parties.’ ” Aichele v Hodge, 259 Mich App 146,
152; 673 NW2d 452 (2003), quoting Jones v Slick, 242
Mich App 715, 718; 619 NW2d 733 (2000). Questions of
law are reviewed de novo. See Hamed v Wayne Co, 490
Mich 1, 8; 803 NW2d 237 (2011). Judicial estoppel is an
equitable doctrine. Opland v Kiesgan, 234 Mich App
352, 365; 594 NW2d 505 (1999). Findings of fact sup-
porting the trial court’s decision are reviewed for clear
error, and the application of the doctrine is reviewed de
novo. Webb v Smith (After Remand), 204 Mich App 564,
568; 516 NW2d 124 (1994).
III. LEGAL ANALYSIS
A. LEGAL CAPACITY
The trial court held that plaintiff lacked the “legal
capacity to sue on the claim” because at the time the
complaint was filed, the bankruptcy estate had not been
closed. Relying on 11 USC 554, the trial court found
46 296 M
ICH
A
PP
40 [Mar
that the bankruptcy estate retained its interest in the
potential malpractice lawsuit until it was closed pursuant
to the May 13, 2009 bankruptcy court order. Plaintiff
makes three arguments on appeal. First, that because
plaintiff claimed the statutory exemption under 11 USC
522(d)(11)(D) for the first $18,450 recouped from the
lawsuit, and no objection to that exemption was filed, he
retained a legal interest in the malpractice suit whether or
not the estate had abandoned its interest.
5
Second, that
the estate’s interest in the malpractice claim was aban-
doned when the time for objection to the trustee’s report
of no distribution had passed
6
and that the closing of the
bankruptcy case was not a condition precedent to
abandonment. Third, that even if the estate’s interest
had to be abandoned for plaintiff to prosecute the
malpractice suit—and it was not abandoned until May
13, 2009, when the court issued the final decree closing
the case—plaintiff was a real party in interest by the
time defendants filed their summary disposition motion
in 2010 and thus, had lawful authority to “prosecute”
the action as provided by MCR 2.201(B).
We conclude that at the time plaintiff filed suit, he
was a real party in interest.
7
It is uncontested that
plaintiff properly listed the potential lawsuit as an asset
and was entitled to the exemption under 11 USC
522(d)(11)(D), which provides for an exemption for “a
payment...onaccount of personal bodily injury....”A
claim for exemption is made in accordance with 11 USC
522(l), which provides:
5
Although plaintiff raised this argument below, he did not argue it on
appeal until the filing of his reply brief. Defendants were subsequently
given an opportunity, by this Court’s order, to brief the issue, however.
Thus, the issue has been fully briefed by both parties.
6
Fed R Bankruptcy Proc 5009(a).
7
Accordingly, we need not address plaintiff’s remaining arguments
regarding the standing issue.
2012] S
ZYSZLO V
A
KOWITZ
47
The debtor shall file a list of property that the debtor
claims as exempt under subsection (b) of this section. If the
debtor does not file such a list, a dependent of the debtor
may file such a list, or may claim property as exempt from
property of the estate on behalf of the debtor. Unless a
party in interest objects, the property claimed as exempt on
such list is exempt.
Fed R Bankruptcy Proc 4003(b) provides that an objec-
tion must be filed “within 30 days after the meeting of
creditors held under § 341(a) is concluded or within 30
days after any amendment to the list or supplemental
schedules is filed, whichever is later.” Plaintiff claimed
an exemption for his medical malpractice claim for the
maximum allowable under the statute and no objec-
tions to the exemption were filed. The validity of
plaintiff’s claimed exemption in the bankruptcy pro-
ceeding is not disputed here, and the United States
Supreme Court has gone so far as to hold that even
when a bankruptcy petitioner lacks a good faith basis
for a claimed exemption, the failure of the trustee and
creditors to timely object or seek an extension of time in
which to do so still results in the relevant property
being exempt. Taylor v Freeland & Kronz, 503 US 638,
642-645; 112 S Ct 1644; 118 L Ed 2d 280 (1992).
We find the Fourth Circuit’s decision in Wissman v
Pittsburgh Nat’l Bank, 942 F2d 867, 870 (CA 4, 1991),
directly on point. In that case, petitioners, the Wiss-
mans, listed a possible lawsuit against the eventual
defendants as an asset of their bankruptcy estate. They
also timely asserted their exemption for any value in
the potential lawsuit up to the statutory maximum and
no objections to the exemption were filed. Later, during
the pendency of the bankruptcy case, the Wissmans
filed the listed lawsuit. The defendant in that lawsuit
filed a motion to dismiss on the ground that the
petitioners lacked “standing to pursue the action with-
48 296 M
ICH
A
PP
40 [Mar
out the participation of, or the abandonment of the
claim by, the bankruptcy trustee.” The Wissman court
rejected this argument, holding:
“Unless a party in interest objects, the property
claimed...isexempt.” [11 USC 522(l)]. The unequivocal
language of the statute does not require abandonment by
the trustee as a prerequisite to exemption by the debtor.
Abandonment is the method used by the trustee to
relieve the estate of “any property...that is burden-
some to the estate or that is of inconsequential value and
benefit to the estate.” 11 USC § 554. The trustee may
refuse to abandon property that has value to the estate, but
if the debtor is entitled by statute to an exemption in it, he
may claim it without abandonment by the trustee.[Wiss-
man, 942 F2d at 870 (emphasis added).]
The Fourth Circuit concluded that “the district court
erred in holding that abandonment by the trustee was a
prerequisite...to the Wissmans’ standing to pursue
the action.” Id.
The Wissman court also concluded that until and
unless the trustee abandons the estate’s interest in the
lawsuit, any amounts recovered in the lawsuit above
the amount of the statutory exemption would flow to
the bankruptcy estate. Id. at 872; see Schwab v Reilly,
560 US ___; 130 S Ct 2652, 2668; 177 L Ed 2d 234
(2010). However, the court held that this did not elimi-
nate the debtor’s interest in the lawsuit because the
statutory exemption to which the plaintiff was entitled,
“represents a present, substantial interest and provides
the necessary standing for them to pursue the action.”
Wissman, 942 F2d at 872 (emphasis added).
8
8
In the instant case, after plaintiff filed this cause of action the
bankruptcy estate was formally closed and at that point, even by
defendants’ analysis, the estate’s interest in the suit was abandoned.
Thus, unless the trustee takes some action to reopen the estate, plaintiff
will be entitled to the full proceeds from the cause of action.
2012] S
ZYSZLO V
A
KOWITZ
49
This decision was followed in In re Bottcher, 441 BR 1,
4 (Bankr D Mass, 2010), where the bankruptcy court held:
Because the plaintiff has exempted the property and the
first $16,500 of recovery on his claims, he is a real party in
interest and has standing to bring this action. Wissman,
942 F2d at 870. If the plaintiff is successful, the Chapter 7
Trustee will be entitled to receive a portion of any recovery
over and above that amount. Schwab v Reilly, [560] US
___; 130 S Ct 2652, 2669; 177 L Ed 2d 234 (2010).
[Emphasis added.]
In this case, having an undisputed exemption for the
potential lawsuit, plaintiff had standing and was a
proper party to bring this suit.
9
Moreover, the exemp-
tion was not the full amount of plaintiff’s interest in the
lawsuit. Any funds recovered in that suit in excess of
the sum of administrative fees, exemptions and the
approximately $65,000 debt owed by the estate, re-
mained the property of plaintiff. The trial court erred
by granting summary disposition based on the conclu-
sion that plaintiff lacked the capacity to sue.
B. JUDICIAL ESTOPPEL
Defendants cross-appeal, arguing that summary dispo-
sition should have been granted on the basis of the doc-
9
Our recent decision in Young v Independent Bank, 294 Mich App 141;
818 NW2d 406 (2011) (Docket No. 299192) is inapposite, as in that case
the petitioner had failed to claim an exemption for the relevant asset, and
the panel never considered the effect of an undisputed exemption on the
standing of a petitioner-plaintiff. Indeed, in Young, the plaintiff had failed
to list the asset altogether in her bankruptcy pleadings. Since a non-listed
asset cannot be abandoned by the trustee, and the Young plaintiff had no
exemption to rely upon, she did not have standing. Here, while we have
not reached the question whether the trustee abandoned the estate’s
interest in light of the report of no distribution, it is clear that because
plaintiff listed the asset and claimed the exemption without objection, the
question of the instant plaintiff’s standing to proceed turns on facts
wholly absent from Young.
50 296 M
ICH
A
PP
40 [Mar
trine of judicial estoppel. For judicial estoppel to apply,
a party must have successfully and “unequivocally”
asserted a position in a prior proceeding that is “wholly
inconsistent” with the position now taken. Paschke v
Retool Indus, 445 Mich 502, 509-510; 519 NW2d 441
(1994). Plaintiff argues, and the trial court found, that
plaintiff’s statement of the “market value” of his claim
in the bankruptcy schedule was not wholly inconsistent
with the jurisdictional limits amount set forth in the
circuit court action. We agree, and also conclude for the
reasons discussed below, that plaintiff did not, in the
course of his bankruptcy, make an “unequivocal” state-
ment of the damages that could be sought in a lawsuit.
The jurisdictional limits would be the “amount in
controversy.” While “amount in controversy” has not
been expressly defined in Michigan case law, Etefia v
Credit Technologies, Inc, 245 Mich App 466, 475; 628
NW2d 577 (2001), indicates that it is based on the
damages claimed. By contrast, the market value of the
suit is the amount a third party would reasonably pay
for the asset at the time the petition is filed. This
distinction was cogently discussed at length in In re
Polis, 217 F3d 899, 902-903 (CA 7, 2000), where the
Seventh Circuit stated as follows in an opinion by Judge
Posner:
The Code provides that the “value” of property sought
to be exempted “means fair market value” on the date the
petition for bankruptcy was filed, 11 USC § 522(a)(2),
unless the debtor’s estate acquires the property later. On
the date Polis filed her petition in bankruptcy, she had not
yet sued Getaways, but the legal claim on which the suit
was based, having arisen out of a transaction...that had
occurred before the petition was filed, was already “prop-
erty” of the debtor and hence of the debtor’s estate in
bankruptcy....
2012] S
ZYSZLO V
A
KOWITZ
51
Although we may assume...that...[the] claim is not
assignable and so cannot be the subject of a “market”
transaction in the literal sense, that is irrelevant....Legal
claims are assets whether or not they are assignable,
especially when they are claims for money; as a first
approximation, the value of Polis’s claim is the judgment
that she will obtain if she litigates and wins multiplied by
the probability of that (to her) happy outcome. That is
roughly how parties to money cases value them for pur-
poses of determining whether to settle in advance of
trial....
The possibility that the debtor will obtain a windfall as
a consequence of the exemptions recognized by the Bank-
ruptcy Code arises from the fact that the date of valuation
of an asset for purposes of determining whether it can be
exempted is the date on which the petition for bankruptcy
is filed; it is not a later date on which the asset may be
worth a lot more. Often property appreciates in a wholly
unexpected fashion. A lottery ticket that turns out against
all odds to be a winner is merely the clearest example. A
debtor who exempted a painting thought to be worthless in
a market sense, having a purely sentimental value, might
discover the day after his discharge from bankruptcy that it
had suddenly increased in value because other paintings by
the artist had just been bought by the Metropolitan Mu-
seum of Art; the creditors could not reach it, provided that
until then its fair market value had in fact been slight.
Common stock that had traded at $100 a share on the date
the petition for bankruptcy was filed might a month later
be worth $1,000, and again the creditors would be out of
luck if the debtor had exempted her shares by claiming the
personal property exemption for them. And so it is with a
legal claim. It might when it first accrued have seemed so
“far out” that its fair market value would be well within
the limits of the exemption, and yet—such are the uncer-
tainties of litigation—it might turn into a huge winner.
This feature of the Code’s valuation scheme should not
be thought a disreputable loophole. If the assets sought to
be exempted by the debtor were not valued at a date early
in the bankruptcy proceeding, neither the debtor nor the
52 296 M
ICH
A
PP
40 [Mar
creditors would know who had the right to them. So long as
the property did not appreciate beyond the limit of the
exemption, the property would be the debtor’s; if it did
appreciate beyond that point, the appreciation would be-
long to the creditors, who thus might—if they still remem-
bered their contingent claim to the property—reclaim it
many years after the bankruptcy proceeding had ended.
The framers of the Bankruptcy Code could have made
ineligible for exemption property that has an unusual
propensity to fluctuate in value, thus reserving windfall
gains to the creditors; but they did not do so, perhaps
because of the difficulty of defining the category or allocat-
ing its fruits across creditors. An alternative would be to
keep the bankruptcy proceeding open indefinitely; the
objections are self-evident.
The need in valuing an asset in advance to adjust for the
uncertainty that its potential value will be realized is the
key to the mistake made here by the bankruptcy and
district courts. When there is uncertainty about whether
some benefit, here an award of money in a class action suit,
will actually be received, the value of the (uncertain)
benefit is less than the amount of the benefit if it is
received. A claim for $X is not worth $X. A 50 percent
chance of obtaining a $1,000 judgment is not worth $1,000.
[Citations omitted.]
In the instant case, at the time plaintiff amended his
bankruptcy filing to include the claim, no suit had been
filed. Indeed, there is no evidence that at the time the
potential claim was listed any medical malpractice
attorney had agreed to review the potential claim, let
alone file and prosecute the lawsuit. The claim was
listed as an asset in September 2006. It was not until
nearly two years later that a notice of intent was
mailed. At the time the asset was listed, therefore, its
market value was the amount of damages that would be
awarded upon a successful jury trial, discounted by the
likelihood that (a) no attorney would agree to review
the case; (b) after review, the attorney would decline to
2012] S
ZYSZLO V
A
KOWITZ
53
pursue it;
10
(c) once an attorney had agreed to pursue
the case, he or she would not be able to find qualified
experts to support the case with affidavits of merit;
11
(d)
plaintiff would run afoul of any of the various proce-
dural hurdles relevant to medical malpractice cases; (e)
direct evidence of medical negligence, even if it oc-
curred, would not be available given that the events all
took place in the operating room while plaintiff was
unconscious; (f) a jury would reach a no cause of action
verdict; (g) non-economic damages would be capped by
law; (h) reductions for offsets for collateral source
payments would reduce the economic damages; (i) the
doctor would not have sufficient insurance to satisfy a
judgment; (j) the judgment would be overturned on
appeal; and (k) the extent to which the amount ulti-
mately collected would be reduced by costs and attorney
fees. Thus, it was entirely consistent for plaintiff to list
the market value of his claim as $15,000 while claiming
damages in excess of $25,000. The listed market value
was not a statement of actual damages from the alleged
malpractice and so could not be an “unequivocal”
statement of such damages. Defendants have not pre-
sented any evidence to establish that the market value
of plaintiff’s claim was understated in the bankruptcy
proceeding and the trustee, having attested that she
investigated the malpractice claim before issuing her
report of no distribution, concluded that the market
value was accurate. Thus, defendants’ claim of judicial
estoppel fails.
Defendants also argue that the $18,450 exemption is
the limit of what plaintiff could recover at the time the
10
At the hearing below, plaintiff’s counsel asserted that plaintiff’s
potential malpractice case had been turned down by two malpractice
attorneys.
11
The two affidavits of merit filed by plaintiff were not signed by
experts until a few days before the filing of the suit.
54 296 M
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40 [Mar
lawsuit was filed, and that he therefore did not meet the
circuit court jurisdictional requirement of $25,000 or
more in controversy. MCL 600.8301(1). Defendants,
relying on Schwab, 560 US ___; 130 S Ct 2652, reason
that any damages beyond the exemption that plaintiff
might otherwise be entitled to remained the property of
the bankruptcy estate, and therefore the amount in
controversy could not be greater than $18,450. How-
ever, defendants’ reliance on Schwab is misplaced.
Schwab dealt only with the bankruptcy trustee’s ability
to liquidate an asset. It did not involve the ability of a
debtor to bring suit prior to conclusion of his bank-
ruptcy case. Further, as noted above, the bankruptcy
estate would only claim enough of the recovery to
satisfy plaintiff’s debts. That is, there are three layers of
possible recovery. The first layer of up to $18,450 would
go to plaintiff via the exemption. The second layer of a
little less than $65,000 would go to the estate to settle
plaintiff’s debts. A third layer composed of any excess
would then go to plaintiff. Therefore, defendants’ argu-
ment that plaintiff cannot recover more than $18,450 is
incorrect.
Reversed and remanded for proceedings consistent
with this opinion. We do not retain jurisdiction.
S
HAPIRO
,P.J., and W
HITBECK
and M
URRAY
, JJ., con-
curred.
2012] S
ZYSZLO V
A
KOWITZ
55
MILLER-DAVIS COMPANY v AHRENS CONSTRUCTION, INC
(ON REMAND)
Docket No. 284037. Submitted September 1, 2011, at Lansing. Decided
March 22, 2012, at 9:10 a.m. Leave to appeal sought.
Miller-Davis Company, the general contractor and construction
manager for a project that included building a natatorium for a
YMCA recreational complex, brought an action in the Kalamazoo
Circuit Court against roofing subcontractor Ahrens Construction,
Inc., and Merchants Bonding Company, seeking damages on the
basis that Ahrens Construction breached its contract with Miller-
Davis to install a wooden roofing system in accordance with the
terms and requirements of the provided plans and specifications.
Miller-Davis also sought damages for contractual indemnity. Fol-
lowing a bench trial, the court, Gary C. Giguere, Jr., J., concluded
that Ahrens Construction had breached its contract with Miller-
Davis and that the breach caused the natatorium moisture prob-
lem that had occurred. The court found in favor of Miller-Davis on
the breach of contract claim, but entered a judgment of no cause of
action for the contractual indemnity claim. Merchants Bonding
ultimately settled with Miller-Davis. Ahrens Construction ap-
pealed the court’s breach of contract finding, and Miller-Davis
cross-appealed the contractual indemnity determination. The
Court of Appeals, J
ANSEN
,P.J., and H
OEKSTRA
and M
ARKEY
, JJ., held
that MCL 600.5839(1) time-barred Miller-Davis’s claims. 285 Mich
App 289 (2009). The Supreme Court reversed and remanded for
application of the general six-year period of limitations, MCL
600.5807(8), a determination of when Miller-Davis’s claims ac-
crued, and consideration of the remaining issues raised in the
appeal and cross-appeal. 489 Mich 355 (2011).
On remand, the Court of Appeals held:
1. Under MCL 600.5807(8), an action to recover damages for a
breach of contract must be brought within six years after the claim
first accrued. Except in certain circumstances not applicable in
this case, MCL 600.5827 provides that a claim accrues at the time
the wrong on which the claim is based was done, regardless of
when the damage results. A construction contract must be exam-
ined to determine the wrong on which the breach is based, and the
56 296 M
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56 [Mar
cause of action accrues at the time work on the contract is
completed. Miller Davis’s breach of contract claim, which was filed
on May 12, 2005, was barred by the six-year period of limitations
because Ahrens Construction completed its work on the project by
the end of February 1999 and the alleged breach—that Ahrens
Construction had not complied with the terms and requirements
of the plans and specifications—must have occurred by that date.
The breach of contract claim did not accrue on the date the project
was certified as being substantially complete by the owner, the
architect, and Miller-Davis or on the date the certificate of
occupancy was issued.
2. The contract’s charge-back clause granted Miller-Davis au-
thority to require Ahrens Construction to correct any failure to
perform as required under the contract. However, Ahrens Con-
struction’s refusal to perform corrective work on the natatorium
in 2003 was not a breach of the contract’s charge-back clause. The
charge-back clause was intended to ensure timely completion of
the project by permitting Miller-Davis to intervene if Ahrens
Construction had defaulted on its duties. The clause did not give
Miller-Davis the right to demand corrective work after the project
had been substantially completed and Ahrens construction had
been paid for its work. In addition, Ahrens Construction’s refusal
to perform the corrective work did not reset the accrual date of the
breach of contract claim under MCL 600.5807(8) and MCL
600.5827.
3. An indemnity contract is not intended to be used as a sword
and shield in disputes between the contracting parties with respect
to the performance of the contract itself. Indemnification clauses
are meant to apportion liability among the contracting parties for
liability to third parties. The period of limitations on a promise to
indemnify runs from when the indemnitee sustained the loss or
when the promisor failed to perform under the contract. Ahrens
Construction did not breach the contract’s indemnity clause
because no claims or demands were made, brought, or recovered
against Miller-Davis on which to base a claim for indemnification.
Miller-Davis could not use the alleged breach of the indemnifica-
tion clause as an alternative accrual date for its underlying breach
of contract claim regarding Ahrens Construction’s alleged failure
to comply with the terms and requirements of the plans and
specifications.
4. Even if the project owner’s demand that Miller-Davis cor-
rect the natatorium’s moisture problem was a demand within the
meaning of the indemnification clause, it was still necessary to
affirm the trial court’s finding of no cause of action because the
2012] M
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demand arose out of a contract between the owner and Miller-
Davis and there was insufficient evidence to prove that the
moisture problem was caused by Ahrens Construction’s failure to
follow plans and specifications or by faulty workmanship. Al-
though the moisture issue disappeared after Miller-Davis’s correc-
tive action, it could not be inferred that Ahrens Construction’s
work was defective because the corrective work included elements
that were not present in the original plans and specifications.
5. Miller-Davis waived any claim that certain sections of docu-
ments from the American Institute of Architects were pertinent to
its contract claims because it raised this issue for the first time on
remand.
Reversed in part, affirmed in part, and remanded for entry of
judgment in favor of Ahrens Construction.
1. C
ONTRACTS —
C
ONSTRUCTION
C
ONTRACTS —
B
REACH —
S
TATUTES OF
L
IMITA-
TIONS —
A
CCRUAL OF
C
LAIM
.
An action to recover damages for a breach of contract must be
brought within six years after the claim first accrued; except in
certain circumstances, a claim accrues at the time the wrong upon
which the claim is based was done, regardless of when the damage
results; a cause of action for breach of a construction contract
accrues at the time work on the contract is completed (MCL
600.5807[8], 600.5827).
2. I
NDEMNITY —
C
ONTRACTS —
S
TATUTES OF
L
IMITATIONS
.
An indemnity contract is meant to apportion liability among the
contracting parties for liability to third parties; the period of
limitations on a promise to indemnify runs from when the indem-
nitee sustained the loss or when the promisor failed to perform
under the contract.
Howard & Howard Attorneys, P.C. (by Scott Gra-
ham), and Gemrich Law PLC (by Alfred J. Gemrich) for
Miller-Davis Company.
Field & Field, P. C . (by Samuel T. Field), for Ahrens
Construction, Inc.
ON REMAND
Before: J
ANSEN
,P.J., and H
OEKSTRA
and M
ARKEY
,JJ.
58 296 M
ICH
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56 [Mar
P
ER
C
URIAM
. In this case, defendant
1
appealed the
judgment entered for plaintiff after a bench trial on
plaintiff’s breach of contract claims. Plaintiff filed a
cross-appeal of a judgment of no cause of action on its
claim for contractual indemnity. This Court held that
MCL 600.5839(1) time-barred plaintiff’s claims. Miller-
Davis Co v Ahrens Constr, Inc, 285 Mich App 289, 292,
312-313; 777 NW2d 437 (2009). Our Supreme Court
reversed, holding that “MCL 600.5839 is limited to tort
actions.” Miller-Davis Co v Ahrens Const, Inc, 489 Mich
355, 371; 802 NW2d 33 (2011). The Court concluded
that the general six-year period of limitations applicable
to actions for breach of contract, MCL 600.5807(8),
which “runs from the date the ‘claim first accrued,’ ”
applied in this case. Miller-Davis, 489 Mich at 358.
“Because there [was] a question about the date plain-
tiff’s action accrued,” the Court remanded the case to
this Court “to resolve this issue, as well as other issues
not yet considered.” Id. Later, the Court indicated that
on remand this Court should apply MCL 600.5807(8)
and, “if necessary, [consider] the remaining issues
raised in the appeal and cross-appeal.” Id. at 372. We
reverse in part, affirm in part, and remand for entry of
judgment for defendant.
We review de novo as a question of law whether a
claim is barred by a statute of limitations. Scherer v
Hellstrom, 270 Mich App 458, 461; 716 NW2d 307
(2006).
We are to apply MCL 600.5807, which provides:
No person may bring or maintain any action to recover
damages or sums due for breach of contract, or to enforce
the specific performance of any contract unless, after the
1
“Defendant,” as used in this opinion, refers only to Ahrens Construc-
tion, Inc. Merchants Bonding Company, defendant’s surety, settled with
plaintiff and is not a party to this appeal.
2012] M
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claim first accrued to himself or to someone through whom
he claims, he commences the action within the periods of
time prescribed by this section.
***
(8) The period of limitations is 6 years for all other
actions to recover damages or sums due for breach of
contract. [Emphasis added.]
Thus, MCL 600.5807(8) requires that an action to recover
damages for breach of contract must be brought within six
years after the claim first accrued. Miller-Davis, 489 Mich
at 358; Blazer Foods, Inc v Restaurant Properties, Inc,
259 Mich App 241, 245; 673 NW2d 805 (2003).
With respect to accrual of a claim, MCL 600.5827
provides that except for cases covered by MCL 600.5829
to MCL 600.5838, “[a] claim accrues at the time the
wrong upon which the claim is based was done regard-
less of the time when damage results.” Sections 5829 to
5838 cover claims relating to possession of land, a
mutual and open account, warranty, common carriers,
life insurance, installment contracts, alimony, and mal-
practice. None of these provisions applies in this case.
Although plaintiff presents arguments in its supple-
mental brief regarding certain warranty provisions,
plaintiff’s complaint did not include a claim for breach
of warranty. Miller-Davis, 489 Mich at 359; Miller-
Davis, 285 Mich App at 306.
A contract claim accrues when the wrong occurs, i.e.,
when the promise is breached, regardless of when
damage results. MCL 600.5827; Seyburn, Kahn, Ginn,
Bess, Deitch & Serlin, PC v Bakshi, 483 Mich 345, 355;
771 NW2d 411 (2009); Tenneco Inc v Amerisure Mut Ins
Co, 281 Mich App 429, 458; 761 NW2d 846 (2008). The
“wrong” on which the contract claim is based is deter-
mined by examining the parties’ contract. Tenneco, 281
60 296 M
ICH
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56 [Mar
Mich App at 458, citing Scherer 270 Mich App at 463.
Although plaintiff asserts the breach of a so-called
charge-back clause and an indemnification clause, the
underlying basis for its claim is that defendant
breached a contract condition providing that “[a]ll
materials and/or work furnished on this order shall
comply with the terms and requirements of the plans
and specifications - where applicable.”
2
Plaintiff was the general contractor on a construction
project that included building a natatorium for a YMCA
recreational complex, and defendant was a subcontrac-
tor with the responsibility of installing a proprietary
wooden roofing system over which other roofing mate-
rials would be installed by other subcontractors. Miller-
Davis, 285 Mich App at 292-293, 309. The wrong that
plaintiff alleged with respect to defendant’s having
failed to “comply with the terms and requirements of
the plans and specifications” of the contract must have
occurred on or before defendant completed its portion
of the overall construction project. This conclusion is
consistent with this Court’s prior decisions. “A cause of
action for breach of a construction contract accrues at
the time work on the contract is completed.” Employers
Mut Cas Co v Petroleum Equip, Inc, 190 Mich App 57,
63; 475 NW2d 418 (1991), citing Buckey v Small,52
Mich App 454, 455-456; 217 NW2d 422 (1974). In our
prior opinion, we addressed the date when defendant
completed its work on the project. In particular, we
noted that defendant completed its work on the project
by the end of February 1999 and certified to plaintiff
that the work was complete on April 26, 1999, for the
purpose of being paid.
2
Plaintiff does not cite this provision in its complaint, but it is the only
one that corresponds to plaintiff’s theory of the case and the allegation in
its complaint that defendant failed “to install the Roof System correctly
and in compliance with the plans and specifications....”
2012] M
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By the end of February 1999, defendant completed all its
tasks regarding constructing the roof system, including
installing all the wood parts, the vapor barrier, the T’s and
sub-T’s [superstructures], the insulation, all of which were
covered by [oriented strand board] nailed on top of two-by-
four inch “sleepers” running perpendicular over the T’s to
the top ridge of the roof....Defendant certified to plaintiff
that it had completed its work on the roof on April 26, 1999,
and plaintiff paid defendant for this work the next day.
***
. . . [I]t is undisputed, and the trial court so found, that
defendant completed its work on its part of the natatori-
um’s roof by the end of February 1999. Thereafter, the
evidence clearly establishes that another contractor com-
pleted the final phase of the roof’s construction by attach-
ing the roofing felt and the standing seam steel skin.
Plaintiff’s exhibit 9, the minutes of a work-progress meet-
ing on February 18, 1999, indicates that over the prior two
weeks Ahrens completed its roof work at the recreational
building, and that work for the next two weeks contem-
plated subcontractor Architectural Glass & Metals’ com-
pleting the metal roof at the recreation building. [Miller-
Davis, 285 Mich App at 296-297, 309.]
We have not been presented any reason to revisit this
analysis of when defendant completed the work it
contracted with plaintiff to perform. Because defendant
completed its work on the roof by the end of February
1999, the breach that plaintiff alleged—that defendant
had failed to comply with the terms and requirements
of the plans and specifications—must have occurred by
that date. Further, because plaintiff did not file its
complaint until May 12, 2005, more than six years after
February 1999 and more than six years after plaintiff
accepted the work through its payment at the end of
April 1999, the statute of limitations barred those
claims. MCL 600.5807(8); Buckey, 52 Mich App at
455-456.
62 296 M
ICH
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56 [Mar
Plaintiff asserts in its supplemental brief on re-
mand that defendant waived application of the stat-
ute of limitations by not briefing and arguing the
proper statute, MCL 600.5807(8). We find this argu-
ment disingenuous and reject it. At the outset of this
case, defendant set forth several affirmative defenses
to plaintiff’s complaint. The affirmative defense de-
fendant first asserted was the statute of repose. The
second affirmative defense that defendant set forth
was that plaintiff’s claim was barred by the applicable
statute of limitations. Throughout this litigation, in
the trial court and on appeal, plaintiff has argued
that MCL 600.5807(8) is the proper statute to deter-
mine whether its complaint was timely; defendant
has argued that MCL 600.5839(1) was the proper
statute for doing so. Our Supreme Court has now
resolved the issue and remanded the case for this
Court to apply MCL 600.5807(8) to determine
whether plaintiff’s breach of contract claims are
time-barred. We find no reason not to comply with the
remand instructions.
Plaintiff also argues that its claim accrued on June
11, 1999, the date the construction project was certified
as being substantially complete by the YMCA, the
architect, and plaintiff. Alternatively, plaintiff asserts
that the date the certificate of occupancy was issued,
August 2, 1999, is the pertinent accrual date. For the
reasons already discussed, we reject these alternative
accrual dates as applicable to when the purported
breach of contract—the wrong—occurred. We note that
the date of substantial completion, June 11, 1999, fixed
the beginning of the one-year guarantee period that
defendant provided regarding its work. Although the
natatorium moisture problem was apparent almost
immediately after occupancy, plaintiff made no claim
2012] M
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against defendant during the guarantee period.
3
Plaintiff also asserts that defendant breached its
contract in 2003 when defendant refused plaintiff’s
demand for corrective work that required deconstruct-
ing the natatorium’s roof and reconstructing it accord-
ing to a modified design that included application of a
waterproofing element not in the original plans and
specifications. Plaintiff asserts that defendant’s refusal
to perform the corrective work was a breach of the
contract’s so-called charge-back clause. This argument
presents an issue of contract interpretation, which is a
question of law we review de novo. Henderson v State
Farm Fire & Cas Co, 460 Mich 348, 353; 596 NW2d 190
(1999).
The primary goal of interpretation of a contract is to
honor the intent of the parties. Tenneco, 281 Mich App
at 444. “[I]t is a court’s obligation to determine the
intent of the parties by examining the language of the
contract according to its plain and ordinary meaning. If
the contractual language is unambiguous, courts must
interpret and enforce the contract as written, because
an unambiguous contract reflects the parties’ intent as
a matter of law.” In re Egbert R Smith Trust, 480 Mich
19, 24; 745 NW2d 754 (2008). When a contract, though
poorly drafted or clumsily arranged, fairly discloses only
one meaning, it is not ambiguous. Meagher v Wayne
State Univ, 222 Mich App 700, 722; 565 NW2d 401
(1997). Like a statute, a contract must be construed as
a whole, and its terms must be construed in context.
Perry v Sied, 461 Mich 680, 689 n 10; 611 NW2d 516
3
Plaintiff sent letters to defendant dated January 28, 2000, and
February 8, 2000, with notice of the moisture problem. The first letter
noted that while others suspected defendant as a possible cause of the
problem, plaintiff’s vice president of construction management stated in
the letter that plaintiff did “not agree with this assessment.”
64 296 M
ICH
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56 [Mar
(2000). Thus, when reading the terms of a contract
according to their commonly used meaning, courts
must also consider that “under the doctrine of noscitur
a sociis, a word or phrase is given meaning by its
context or setting.” Bloomfield Estates Improvement
Ass’n, Inc v City of Birmingham, 479 Mich 206, 215;
737 NW2d 670 (2007) (citations and quotation marks
omitted).
The charge-back clause of the parties’ eight-page
purchase-order contract provides:
Should you, the Subcontractor, at any time refuse to start
said work promptly, neglect to supply a sufficient number
of properly skilled workmen or sufficient materials of the
property quality, or fail in any respect to prosecute the
work with promptness and diligence, or if you should fail in
performance of any of the agreements herein contained,
MILLER-DAVIS COMPANY without prejudice to any
other available remedy may, after twenty-four (24) hours
written notice to you, provide any such labor or materials
and deduct the cost thereof from any money then due or
thereafter to become due you under this Subcontract; but if
such expense and damage shall exceed such unpaid bal-
ance, you shall pay the difference to MILLER-DAVIS
COMPANY.
We conclude that a fair reading of the charge-back
clause in context does not admit of an interpretation
that plaintiff may at any time it chooses, after plaintiff
has accepted defendant’s contract work and the project
itself has been substantially completed, require defen-
dant to correct work plaintiff believes is nonconform-
ing. Rather, the paragraphs above and below the
charge-back clause on the same page all relate to
management and payment for defendant’s work while
the construction project is ongoing. The three para-
graphs above the clause provide that “[t]ime of comple-
tion is of the essence of this order,” that defendant must
2012] M
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follow the direction of plaintiff’s construction manager,
and that defendant must complete its work in a manner
that does not interfere with or delay the work of other
subcontractors. Below the charge-back clause, a para-
graph requires defendant to comply with applicable
safety laws and regulations. The final paragraph on the
same page provides for payment to defendant, which
“will be made each month equal to 90% of the value of
the work satisfactorily completed....” Moreover, the
internal wording of the charge-back clause makes sense
only if applied to the period when construction is
ongoing, the subcontracted work is not complete, and
money due under the contract remains unpaid. For
these reasons, we conclude that the charge-back clause
was intended only to ensure timely completion of the
project by permitting plaintiff to intervene if defendant
defaulted during the construction phase of the project.
Our reading of the charge-back clause is also consis-
tent with defendant’s having provided a one-year guar-
antee of its work from the date of substantial comple-
tion of the project. In contrast, plaintiff’s reading of the
charge-back clause would render superfluous defen-
dant’s one-year guarantee. Thus, we conclude, on the
basis of reading the charge-back clause as a whole and
its placement in the contract, that the clause does not
give plaintiff the right to demand corrective work after
the project has been substantially completed and defen-
dant has been paid for its work. Consequently, defen-
dant did not breach the charge-back clause in 2003
when it refused plaintiff’s demand that it perform
corrective work on the natatorium roof. Plaintiff could
still have timely brought its breach of contract claim on
the theory of nonconforming work, but its declaration
of defendant’s default in 2003 for failing to perform
corrective work did not reset the accrual date of that
claim under MCL 600.5807(8) and MCL 600.5827.
66 296 M
ICH
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56 [Mar
We further note that our reading of the charge-back
clause is consistent with our prior analysis of that provi-
sion. In discussing whether “acceptance” of defendant’s
work occurred within the meaning of MCL 600.5839(1),
we opined:
Moreover, even if the owner of the improvement must
trigger “acceptance,” plaintiff as the general contractor-
construction manager for the project was the authorized
representative of the owner for purposes of supervising
construction, deeming whether subcontractor work was
acceptable under the subcontract’s “charge-back” provi-
sion, and having the ability to withhold payment for
unacceptable work. Here, the undisputed facts, and as
found by the trial court, establish that defendant “com-
pleted the natatorium roof by February 18, 1999[,]...sub-
mitted its final request for pay on April 26, 1999, and
Miller-Davis paid Ahrens the very next day.” Although
plaintiff asserts it never “accepted” defendant’s work on
the roof, plaintiff’s own actions in accepting defendant’s
certification that the roof work had been completed, and
then paying for that work, speaks louder than its litigation
denials. In sum, we conclude that the facts establish that
by the end of April 1999 plaintiff’s actions constituted
“acceptance of the improvement” defendant made to real
property triggering the running of the six-year limitations
period of MCL 600.5839(1). [Miller Davis Co, 285 Mich App
at 311-312 (alterations in original).]
As discussed already, these dates also fixed the ac-
crual date for plaintiff’s breach of contract claim re-
garding alleged nonconforming work under the appli-
cable statute of limitations, MCL 600.5807(8).
Employers Mut Cas Co, 190 Mich App at 63.
The last contract claim that plaintiff asserted in its
May 12, 2005, complaint is that defendant breached an
indemnity clause by not reimbursing plaintiff for the
costs associated with the 2003 corrective work, lost
business profits, and its attorney fees for this action.
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After a bench trial, the trial court ruled that plaintiff
had no cause of action for contractual indemnity be-
cause “no claims, suits, actions, recoveries, or demands
were ever made, brought or recovered against” plaintiff
within the meaning of the indemnity clause in plain-
tiff’s contract with defendant. This ruling is the subject
of plaintiff’s cross-appeal.
Regarding the statute of limitations on a promise to
indemnify, “the period of limitations runs from ‘when
the indemnitee sustained the loss,’ or ‘when the promi-
sor fails to perform under the contract.’ ” Tenneco, 281
Mich App at 458 (citations omitted). Under plaintiff’s
interpretation of the indemnity clause, the alleged
breach of promise occurred in 2003 when defendant
refused to reimburse plaintiff its costs associated with
the corrective work on the roof of the YMCA’s natato-
rium. This claim was clearly brought within the six-
year period of limitations. MCL 600.5807(8). The issue
remains whether the trial court correctly ruled that the
indemnity clause of the parties’ contract did not apply
on the facts of this case. This is an issue of contract
interpretation we review de novo, as already discussed.
“An indemnity contract is to be construed in the same
fashion as other contracts.” Zahn v Kroger Co, 483 Mich
34, 40; 764 NW2d 207 (2009).
The indemnity clause of the parties’ contract pro-
vides, in pertinent part:
You as a Subcontractor/Supplier agree to...indemnify
Miller-Davis Company...from and against all claims,
damages, losses, demands, liens, payments, suits, actions,
recoveries, judgments and expenses including attorney’s
fees, interest, sanctions, and court costs which are made,
brought, or recovered against Miller-Davis Company,by
reasons of or resulting from, but not limited to, any injury,
damage, loss, or occurrence arising out of or resulting from
the performance or execution of this Purchase Order and
68 296 M
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caused, in whole or in part, by any act, omission, fault,
negligence, or breach of the conditions of this Purchase
Order by [defendant], its agents, employees, and subcon-
tractors regardless of whether or not caused in whole or in
part by any act, omission, fault, breach of contract, or
negligence of Miller-Davis Company. The
Subcontractor/Supplier shall not, however, be obligated to
indemnify Miller-Davis Company for any damage or inju-
ries caused by or resulting from the sole negligence of
Miller-Davis Company.
You as Subcontractor/Supplier agree to defend, hold harm-
less and indemnify Miller-Davis Company, the Owner, the
Architect and other parties for all liabilities, either in tort
or contract, in the same manner and to the same extent
that Miller-Davis Company is required to defend, hold
harmless and indemnify the Owner, Architect or other
parties pursuant to Miller-Davis Company’s Contract with
the Owner, unless the liability arises solely as a result of
the negligence of Miller-Davis Company or its employees
and agents. [Emphasis added.]
Plaintiff argues that the use of the word “all” in the
indemnification clause means the clause is intended to
provide the broadest possible coverage. Further, plain-
tiff argues, the indemnification clause requires that
defendant indemnify plaintiff for “all . . . damages, loss-
es...andexpenses including attorney’s fees” caused by
defendant’s breach of contract, i.e., the failure to com-
ply with the contract’s plans and specifications. Plain-
tiff also asserts that the trial court clearly erred by
finding that plaintiff was not under “demand” when it
performed the corrective work because the indemnifi-
cation clause is not conditioned on the filing of a formal
claim or suit against plaintiff.
We conclude that the trial court correctly ruled that
no one had brought a claim or demand against plaintiff
within the meaning of the indemnification clause. Thus,
because no claims or demands were “made, brought or
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recovered against” plaintiff, defendant did not breach
this provision of the contract. Moreover, plaintiff cannot
use the alleged breach of this provision (and thus
plaintiff’s completion of the corrective work) as an
alternative accrual date for its underlying breach of
contract claim regarding defendant’s alleged failure to
comply with the terms and requirements of the plans
and specifications.
We read the indemnification clause as those clauses
have traditionally been applied: to apportion ultimate
liability among the contracting parties for liability to
third parties. See Baker Contractor, Inc v Chris Nelsen
& Son, Inc, 1 Mich App 450, 454; 136 NW2d 771 (1965).
Indemnification clauses are not intended to be used as
a sword or shield in disputes between the contracting
parties with respect to the performance of the contract
itself. Id. This view of the clause is buttressed by the
second paragraph extending defendant’s duty to indem-
nify to the other contracting parties from “all liabilities,
either in tort or contract tort or contract.”
Additionally, we note that even if the owner’s “de-
mand” that plaintiff correct the natatorium moisture
problem was within the meaning of the indemnification
clause, we would still affirm the trial court on this issue
on alternative grounds. To the extent the owners de-
manded that plaintiff correct the natatorium moisture
problem, the demand arose out of the owner’s contract
with plaintiff, not plaintiff’s subcontract with defen-
dant. “When a trial court reaches the right result for
the wrong reason, the ruling will not be disturbed.”
Burise v City of Pontiac, 282 Mich App 646, 652 n 3; 766
NW2d 311 (2009).
Moreover, plaintiff failed to present sufficient proof
at trial that the moisture problem was caused by
defendant’s failure to follow plans and specifications or
70 296 M
ICH
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56 [Mar
by faulty workmanship. There is no evidence in the
record that supports a conclusion that defendant’s
alleged defective workmanship caused the moisture
problem other than an inference drawn from the fact
that after the corrective work it was no longer present.
The logical force of this inference, however, is totally
lacking because the corrective work contained three
important elements that were not present in the origi-
nal plans: (1) a waterproofing agent was added, (2)
expanding foam insulation sealed any gaps between the
structural support and the Styrofoam block, and (3)
butyl caulk sealant was applied to the top of all T
superstructures.
A party claiming a breach of contract must establish
by a preponderance of the evidence (1) that there was a
contract, (2) that the other party breached the contract
and, (3) that the party asserting breach of contract
suffered damages as a result of the breach. Stevenson v
Brotherhoods Mut Benefit, 312 Mich 81, 90-91; 19
NW2d 494 (1945); Residential Ratepayer Consortium v
Pub Serv Comm, 198 Mich App 144, 149; 497 NW2d 558
(1993) (recognizing that the “preponderance of the
evidence” is the quantum of proof in civil cases); see M
Civ JI 142.01. This standard means the evidence must
persuade the fact-finder that it is more likely than not
that the proposition is true. M Civ JI 8.01. A party may
meet its burden with circumstantial evidence, Karbel v
Comerica Bank, 247 Mich App 90, 97; 635 NW2d 69
(2001), and the fact-finder may weigh both the quality
and the quantity of evidence presented, Kelly v Builders
Square, Inc, 465 Mich 29, 39; 632 NW2d 912 (2001).
The specific weakness in plaintiff’s case is the lack of
evidence to causally link defendant’s alleged noncon-
forming workmanship to the moisture problem, which
is the basis for plaintiff’s claim for damages in the form
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of expenses to correct the cold-weather condensation
problem in the YMCA’s natatorium. “Damages are an
element of a breach of contract action.” New Freedom
Mtg Corp v Globe Mtg Corp, 281 Mich App 63, 69; 761
NW2d 832 (2008). Like other civil actions, the plaintiff
in a breach of contract case must establish a causal link
between the alleged improper conduct of the defendant
and the plaintiff’s damages. See Alan Custom Homes,
Inc v Krol, 256 Mich App 505, 512; 667 NW2d 379
(2003), and Farm Credit Servs of Michigan’s Heartland,
PCA v Weldon, 232 Mich App 662, 679; 591 NW2d 438
(1998). Because of the similarity between this element
of proof in contract cases and the element of causation
necessary in tort cases, it is appropriate to draw on the
latter for guidance regarding the necessary quality of
evidence to satisfy this burden of proof.
This Court in Karbel, 247 Mich App at 98, examined
the “the basic legal distinction between a reasonable
inference and impermissible conjecture” by quoting Skin-
ner v Square D Co, 445 Mich 153, 164-165; 516 NW2d 475
(1994), quoting Kaminski v Grand TrunkWRCo, 347
Mich 417, 422; 79 NW2d 899 (1956):
“ ‘[A] conjecture is simply an explanation consistent with
known facts or conditions, but not deducible from them as a
reasonable inference. There may be 2 or more plausible
explanations as to how an event happened or what produced
it; yet, if the evidence is without selective application to any 1
of them, they remain conjectures only. On the other hand, if
there is evidence which points to any 1 theory of causation,
indicating a logical sequence of cause and effect, then there is
a juridical basis for such a determination, notwithstanding
the existence of other plausible theories with or without
support in the evidence.’ ”
In Skinner, 445 Mich at 164, the Court noted that to
be adequate, “a plaintiff’s circumstantial proof must
facilitate reasonable inferences of causation, not mere
speculation.”
72 296 M
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“ ‘The plaintiff must introduce evidence which affords a
reasonable basis for the conclusion that it is more likely
than not that the conduct of the defendant was a cause in
fact of the result. A mere possibility of such causation is not
enough; and when the matter remains one of pure specu-
lation or conjecture, or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a verdict
for the defendant.’ ” [Id. at 165, quoting Mulholland v DEC
Int’l Corp, 432 Mich 395, 416, n 18; 443 NW2d 340 (1989),
quoting Prosser & Keeton, Torts (5th ed), § 41, p 269
(emphasis added).]
Although these cases considered when a plaintiff had
presented sufficient evidence to allow submission of the
case to a jury, the same principles apply equally to cases
tried before a judge without a jury. See Mich Aero Club
v Shelley, 283 Mich 401, 403-404, 410-411; 278 NW 121
(1938).
The only evidence in the record that supports finding
that defendant’s allegedly defective workmanship
caused the natatorium moisture problem is an infer-
ence drawn from the fact that after the corrective work
the problem was not present. The logical force of this
inference is totally lacking because the corrective work
contained three important elements, as noted already,
that were not present in the original plans and specifi-
cations. Without other evidence, it is equally likely that
the elements added to the reconstructed roof, as op-
posed to correcting the alleged defects, prevented the
condensation problem. As such, it is mere speculation
or conjecture to infer that this evidence established a
causal link between defendant’s workmanship and the
moisture problem. Skinner, 445 Mich at 164-165; Kar-
bel, 247 Mich App at 93. “A judgment may not be based
upon speculation or conjecture.” Shelley, 283 Mich at
412. Consequently, even if the indemnity clause applied
on these facts, the trial court correctly entered a judg-
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ment of no cause of action on plaintiff’s claim for
contractual indemnity. We will affirm the trial court
when it reaches the right result even if it does so for the
wrong reason. Burise, 282 Mich App at 652 n 3.
Finally, plaintiff asserts for the first time in its
supplemental brief on remand that certain sections in
form contract documents of the American Institute of
Architects (AIA), “General Conditions of the Contract
for Construction,” are pertinent to its contract claims
against defendant. Although the documents were ad-
mitted at trial, the record is not clear whether they were
part of the contract between plaintiff and defendant.
Nor does it appear that any argument was presented to
the trial court concerning their application to this case.
Finally, plaintiff’s complaint did not refer to the docu-
ments, nor did it have attached to it the pertinent parts
on which plaintiff now wishes to rely. See MCR
2.113(F). Under these circumstances, plaintiff has
waived any claims regarding the AIA documents.
We reverse in part, affirm in part, and remand for
entry of judgment for defendant. We do not retain
jurisdiction.
J
ANSEN
,P.J., and H
OEKSTRA
and M
ARKEY
, JJ., con-
curred.
74 296 M
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TITAN INSURANCE COMPANY v STATE FARM MUTUAL
AUTOMOBILE INSURANCE COMPANY
Docket No. 301214. Submitted January 10, 2012, at Detroit. Decided
March 27, 2012, at 9:00 a.m. Leave to appeal denied, 493 Mich 858.
Titan Insurance Company brought an action in the Genesee Circuit
Court against State Farm Mutual Automobile Insurance Company,
seeking a declaratory judgment regarding the obligations of the
parties to pay personal protection insurance (PIP) benefits to
Kenneth Curler for injuries he sustained in an accident that
occurred when the motorcycle he was riding collided with an
automobile. Neither Curler nor the operator of the automobile was
covered by a no-fault policy applicable to Curler’s injuries. The
Michigan Assigned Claims Facility selected Titan to administer
the payment of PIP benefits to Curler and Titan paid the benefits.
After discovering that Edward Shreve, Jr., appeared to be the last
titled owner of the motorcycle and that Shreve was insured under
an automobile policy issued by State Farm, Titan filed its com-
plaint, seeking a declaration that Curler was entitled to benefits
under State Farm’s policy issued to Shreve and that State Farm
was required to reimburse Titan for the benefits paid to Curler.
Titan sought summary disposition, attaching to its supporting
brief a copy of a Michigan certificate of title for the motorcycle
showing the signatures of Curler and Shreve and the date of June
18, 2006, the day following the accident. Titan acknowledged that
Shreve had stated in a deposition that on or about June 14, 2006,
he had sold the motorcycle to a person named “Jay” and had signed
and surrendered the title and the motorcycle to Jay at that time.
Titan contended that at the time of the accident Shreve was the
owner or registrant of the motorcycle and, therefore, under MCL
500.3114(5), Curler was entitled to benefits from State Farm,
Shreve’s insurer. State Farm filed a counter-motion for summary
disposition, contending that because Shreve had transferred the
title to Jay before the accident, Shreve was not the owner of the
motorcycle at the time of the accident, citing MCL 257.233(9), and
Shreve’s liability ended when he signed the title and transferred
possession of the motorcycle to Jay. The court, Geoffrey L. Nei-
thercut, J., granted summary disposition in favor of State Farm,
concluding that Shreve had assigned the title to Jay, who then
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assigned it to Curler and, because Shreve signed the certificate of
title and delivered the motorcycle to Jay before the accident
occurred, State Farm had no liability. Titan appealed as of right.
The Court of Appeals, Z
AHRA
,P.J., and O’C
ONNELL
and F
ORT
H
OOD
,
JJ., in an unpublished opinion per curiam, issued January 8, 2009
(Docket No. 282860), reversed the trial court’s order and re-
manded the matter for further proceedings after holding that the
trial court erred by determining that there was no genuine issue of
material fact regarding Shreve’s transfer of the title to Jay before
the accident. The Court of Appeals then denied Titan’s motion for
reconsideration or clarification that alleged that Shreve was the
titled owner at the time of the accident and remained the regis-
trant, so State Farm was responsible for reimbursing the PIP
benefits Titan paid under MCL 500.3114(5). On remand, Titan
moved for summary disposition, contending that while genuine
issues of material fact existed with regard to the ownership of the
motorcycle at the time of the accident, there was no question that
under MCL 257.234 Shreve remained the registrant at the time of
the accident because Shreve had left his unexpired license plate on
the motorcycle when he sold the motorcycle to Jay and, after
buying the motorcycle from Jay, Curler did not attempt to obtain
a new plate until the day after the accident. State Farm argued
that it was entitled to summary disposition because Shreve had
testified that he no longer had an insurable interest in the
motorcycle and Curler had confirmed that the sale and the
transfer of the motorcycle and the title occurred well before the
accident occurred. State Farm also argued that Titan’s claim that
Shreve remained the registrant had been rejected by implication in
the unpublished opinion per curiam of the Court of Appeals. The
trial court granted summary disposition in favor of State Farm on
the basis that MCL 257.233(9) says that the effective date of the
transfer of interest in a vehicle is the date of signature, or the
assignment of the certificate of title. The trial court denied Titan’s
subsequent motion for reconsideration, noting that there was no
genuine issue of material fact that Shreve no longer had an
insurable interest in the motorcycle. Titan appealed as of right.
The Court of Appeals held:
1. The terms “owner” and “registrant” as used in the no-fault
act are not synonymous and represent separate categories of
individuals.
2. An unexpired registration plate affixed to a vehicle serves as
presumptive evidence that the vehicle is validly registered with the
Secretary of State and that it carries the statutorily mandated
no-fault insurance. It logically follows that to destroy that pre-
76 296 M
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sumption, the appropriate course of action after the sale of a
vehicle is for the seller to remove the registration plate and the
certificates of registration and insurance from the vehicle. When a
seller fails to remove an unexpired registration plate from the
vehicle a reasonable inference can be made that the seller volun-
tarily remains the insuring registrant of the vehicle.
3. Although Shreve may have canceled his policy of insurance
on the motorcycle three months before the sale, there is no
evidence that the cancellation was done in anticipation of the sale
of the motorcycle and it appears that the insurance was canceled
merely because Shreve had no intention of using the motorcycle at
that time. Moreover, while Shreve apparently removed the certifi-
cates of registration and insurance from the motorcycle before he
relinquished possession of the motorcycle, the fact remains that
Shreve failed to remove his unexpired license plate from the
motorcycle. A reasonable inference can be made that Shreve
voluntarily remained the insuring registrant. Shreve’s insurer,
State Farm, was therefore obligated to pay PIP benefits in this
case.
Reversed.
1. I
NSURANCE —
N
O
-F
AULT
I
NSURANCE —
W
ORDS AND
P
HRASES —
O
WNER —
R
EGISTRANT
.
The terms “owner” and “registrant” as used in the no-fault insur-
ance act are not synonymous and represent separate categories of
individuals. (MCL 500.3101 et seq.).
2. M
OTOR
V
EHICLES —
R
EGISTRATION
P
LATES —
C
ERTIFICATES OF
R
EGISTRATION
AND
I
NSURANCE —
P
RESUMPTION OF
V
ALID
R
EGISTRATION —
I
NFERENCE OF
V
OLUNTARILY
R
EMAINING
I
NSURING
R
EGISTRANT
.
An unexpired registration plate affixed to a vehicle serves as
presumptive evidence that the vehicle is validly registered with the
Secretary of State and that it carries the statutorily mandated
no-fault insurance; the appropriate course of action to destroy that
presumption after the sale of the vehicle is for the seller to remove
the registration plate and the certificates of registration and
insurance from the vehicle; a reasonable inference can be made
that the seller voluntarily remained the insuring registrant of the
vehicle when the seller failed to remove an unexpired registration
plate from the vehicle.
Law Offices of Ronald M. Sangster, PLLC (by Ronald
M. Sangster, Jr.), for plaintiff.
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Bensinger, Cotant & Menkes, P.C. (by Dale L. Arndt),
for defendant.
Before: J
ANSEN
,P.J., and W
ILDER
and K. F. K
ELLY
,JJ.
P
ER
C
URIAM
. Plaintiff, Titan Insurance Company,
appeals as of right an order granting summary disposi-
tion in favor of defendant, State Farm Mutual Automo-
bile Insurance Company, in this dispute over the prior-
ity of insurers to pay personal protection insurance
(PIP) benefits. We reverse.
I. FACTS AND PROCEDURAL HISTORY
This is the second time this case has been before this
Court. The facts were set forth in Titan Ins Co v State
Farm Mut Auto Ins Co, unpublished opinion per curiam
of the Court of Appeals, issued January 8, 2009 (Docket
No. 282860), pp 1-2 (Titan I):
This case involves a dispute between plaintiff and de-
fendant to determine which insurer has priority for the
payment of no-fault benefits to Kenneth Curler. On June
17, 2006, Curler was injured when the motorcycle he was
riding collided with a vehicle. Neither Curler nor the
operator of the vehicle was covered by a no-fault policy
applicable to Curler’s injuries. The Michigan Assigned
Claims Facility selected plaintiff to administer payment
of...(PIP) benefits to Curler. Plaintiff paid PIP benefits
to Curler.
Plaintiff discovered that Edward Shreve, Jr., seemingly
was the last titled owner of the motorcycle that Curler was
riding when the accident occurred, and that at that time
Shreve was insured under an automobile policy issued by
defendant. Plaintiff filed a complaint for declaratory relief,
seeking a declaration that Curler was entitled to benefits
under defendant’s policy issued to Shreve, and that defen-
dant was required to reimburse plaintiff for the benefits
paid to Curler.
78 296 M
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Plaintiff sought summary disposition pursuant to MCR
2.116(C)(10). Plaintiff attached to its brief in support of its
motion a copy of a State of Michigan Certificate of Title
showing the signatures of Curler and Shreve and the date
of June 18, 2006. Plaintiff acknowledged that in his depo-
sition, Shreve contended that on or about June 14, 2006, he
sold the motorcycle to a person named Jay, last name
unknown, for cash, and signed and surrendered the title
and the motorcycle to Jay at that time. Shreve asserted
that he had no documentation of the sale to Jay. Plaintiff
contended that at the time of the accident Shreve was the
owner or registrant of the motorcycle; therefore, under
MCL 500.3114(5), Curler was entitled to benefits from
defendant, Shreve’s insurer.
Defendant filed a counter-motion for summary disposi-
tion pursuant to MCR 2.116(C)(10) and (I)(2). Defendant
asserted that Shreve’s deposition testimony established
that he had transferred the title to the motorcycle to Jay
prior to Curler’s accident, and that therefore, Shreve could
not be deemed an owner of the motorcycle at the time the
accident occurred. MCL 257.233(9). Defendant contended
that Jay was responsible for obtaining a new certificate of
title, MCL 257.234(1), and that Shreve’s liability ended
when he signed the titled [sic] and transferred possession
of the motorcycle to Jay.
The trial court denied summary disposition for plaintiff
and granted summary disposition in favor of defendant.
The trial court found that Shreve assigned the title to Jay,
who then assigned it to Curler. The trial court concluded
that because Shreve signed the certificate of title and
delivered the motorcycle to Jay before the accident oc-
curred, Shreve’s insurer, defendant, had no liability.
Titan appealed. At issue on appeal was the interpreta-
tion of MCL 500.3114(5), which provides:
A person suffering accidental bodily injury arising from
a motor vehicle accident which shows evidence of the
involvement of a motor vehicle while an operator or pas-
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senger of a motorcycle shall claim personal protection
insurance benefits from insurers in the following order of
priority:
(a) The insurer of the owner or registrant of the motor
vehicle involved in the accident.
(b) The insurer of the operator of the motor vehicle
involved in the accident.
(c) The motor vehicle insurer of the operator of the
motorcycle involved in the accident.
(d) The motor vehicle insurer of the owner or registrant
of the motorcycle involved in the accident. [Emphasis
added.]
Also at issue was MCL 257.233(9), which provided at
the time of the accident:
Upon the delivery of a motor vehicle and the transfer,
sale, or assignment of the title or interest in a motor vehicle
by a person, including a dealer, the effective date of the
transfer of title or interest in the vehicle shall be the date
of execution of either the application for title or the
assignment of the certificate of title. [Emphasis added.]
This Court reversed the trial court’s order and re-
manded for further proceedings after holding that the
trial court erred by determining that there was no
genuine issue of fact regarding Shreve’s transfer of title
to Jay before the accident. Shreve’s deposition testi-
mony was relied on to support this Court’s conclusion:
[T]he certificate of title contains Shreve’s signature,
Curler’s signature, and the date of June 18, 2006, which is
one day after the accident. At a minimum, a question of fact
exists regarding the date on which Shreve transferred the
title to the motorcycle, and to whom. Pursuant to MCL
257.233(9) as it read at the time of the accident, “the
effective date of [the] transfer of title or interest” in the
motorcycle was the date of execution of the assignment of
the title. Evidence exists that that date was June 18, 2006,
the day after the accident occurred. If the title was not
80 296 M
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75 [Mar
transferred until that date, Shreve was the titled owner of
the motorcycle on June 17, 2006. Under those circum-
stances, defendant would be liable for payment of PIP
benefits to Curler. [Titan I, unpub op at 3.]
Titan filed a motion for reconsideration or clarifica-
tion. It argued that Shreve was the titled owner of the
motorcycle at the time of the accident, as shown by the
authenticated certificate of title, which listed the sale
date as June 18, 2006—the day after the accident. Titan
believed that physical possession of the motorcycle was
irrelevant. Additionally, Titan argued that there was no
question that Shreve remained the registrant of the
motorcycle and that State Farm was responsible for
reimbursing PIP benefits under MCL 500.3114(5)(d).
This Court denied Titan’s motion. Titan Ins Co v State
Farm Mut Auto Ins Co, unpublished order of the Court
of Appeals, entered February 26, 2009 (Docket No.
282860).
The matter returned to the trial court and Curler
was deposed on May 6, 2010. On July 27, 2010, Titan
again filed a motion for summary disposition, arguing
that while genuine issues of fact remained with regard
to the ownership of the motorcycle at the time of the
accident, there was no question that Shreve remained
the “registrant” at the time of the accident because he
had left his license plate on the motorcycle when he sold
the motorcycle to Jay. After buying the motorcycle from
Jay, Curler did not attempt to obtain a new plate until
June 18, 2006—the day after the accident. Titan argued
that the registration of Shreve’s plate was never can-
celed and, therefore, Shreve remained the registrant
under MCL 257.234.
State Farm argued that it, not Titan, was entitled to
judgment as a matter of law because not only did Shreve
testify that he no longer had an insurable interest in the
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motorcycle, but Curler confirmed that the sale and
transfer of the motorcycle and the title occurred well
before the accident took place. Additionally, State Farm
argued that Titan’s claim that Shreve remained the
registrant had been rejected by implication in the Court
of Appeal’s decision that reversed the order of the trial
court and remanded the matter for further proceedings.
State Farm argued that its liability for payment of PIP
benefits was terminated upon Shreve’s assignment and
transfer of the title.
A hearing took place on August 30, 2010. After
hearing arguments, the trial court stated:
The Court is intrigued by Clevenger [v Allstate Ins Co,
443 Mich 646; 505 NW2d 553 (1993)]. But the problem in
this case that we have is; well we don’t have all the
evidence. Because we don’t have evidence from Shreve’s
deposition that he left the registration or proof of insur-
ance with the motor vehicle, or the plate; that’s something
that, ah, Clevenger was talking about. So at this point and
time we’re actually speculating about what his interest is.
And frankly I’m buying into State Farm’s argument
that that statue [sic] [MCL] 257.233(9) says the effective
date of the transfer of interest in the motor vehicle is the
date of signature, or the assignment of the certificate of
title. So I vote for State Farm today.
The trial court denied Titan’s subsequent motion for
reconsideration, stating: “To put it succinctly, the Court
of Appeals remanded the case back for the determina-
tion of two factual issues. First, what was the date the
title was transferred? Second, to whom was it trans-
ferred?” The trial court noted that “even if this Court
were to assume that [Shreve] left his plate on the
motorcycle when he sold it to Mr. [Jay] Wilson, that
single act does not rise to the standard provided by
Allstate [Ins Co v State Farm Mut Auto Ins Co, 230 Mich
App 434; 584 NW2d 355 (1998)] and Clevenger. In
82 296 M
ICH
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75 [Mar
Clevenger, in addition to leaving the plate on the
vehicle, the seller also left the registration and the
certificate of insurance in the vehicle.” The trial court
stated that because Shreve had testified that he had
canceled the insurance on the motorcycle in March
2006, it was “highly improbable” that he intended to
maintain an insurable interest. The trial court con-
cluded that there was no genuine issue of material fact
that Shreve no longer had an insurable interest in the
motorcycle.
Titan again appeals as of right.
II. STANDARD OF REVIEW
A trial court’s decision to grant a motion for summary
disposition pursuant to MCR 2.116(C)(10) is reviewed de
novo to ascertain whether the movant is entitled to
judgment as a matter of law. Maiden v Rozwood, 461 Mich
109, 118; 597 NW2d 817 (1999). We review the record in a
light most favorable to the nonmoving party to determine
whether the evidence established the existence of a genu-
ine issue of material fact for trial. Id. We review issues of
law, including questions of statutory construction, de
novo. White v Harrison-White, 280 Mich App 383, 387;
760 NW2d 691 (2008).
This Court’s primary task in construing a statute is to
discern and give effect to the intent of the Legislature.
Shinholster v Annapolis Hosp, 471 Mich 540, 548-549;
685 NW2d 275 (2004). In so doing, the Court must begin
with the language of the statute, ascertaining the intent
that may reasonably be inferred from its language. Lash v
Traverse City, 479 Mich 180, 187; 735 NW2d 628 (2007).
It is axiomatic that the words contained in the statute
provide the most reliable evidence of the Legislature’s
intent. Kinder Morgan Mich, LLC v City of Jackson, 277
Mich App 159, 163; 744 NW2d 184 (2007). The Legisla-
ture is presumed to have intended the meaning it plainly
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expressed and clear statutory language must be enforced
as written. Rowland v Washtenaw Co Rd Comm, 477
Mich 197, 219; 731 NW2d 41 (2007); Fluor Enterprises,
Inc v Dep’t of Treasury, 477 Mich 170, 174; 730 NW2d 722
(2007).
If the statutory language is clear and unambiguous,
judicial construction is neither required nor permitted,
and courts must apply the statute as written. Lash, 479
Mich at 187; Rose Hill Ctr, Inc v Holly Twp, 224 Mich
App 28, 32; 568 NW2d 332 (1997). Only if a statute is
ambiguous is judicial construction permitted. Detroit
City Council v Detroit Mayor, 283 Mich App 442, 449;
770 NW2d 117 (2009).
Apparently plain statutory language can be rendered
ambiguous by its interaction with other statutes. Ross v
Modern Mirror & Glass Co, 268 Mich App 558, 562; 710
NW2d 59 (2005). Statutes that relate to the same
subject or share a common purpose are in pari materia
and must be read together as one law, even if they
contain no reference to one another and were enacted
on different dates. State Treasurer v Schuster, 456 Mich
408, 417; 572 NW2d 628 (1998); McNeil v Charlevoix
Co, 275 Mich App 686, 701; 741 NW2d 27 (2007), aff’d
484 Mich 69 (2009). The object of the in pari materia
rule is to give effect to the legislative purpose as found
in harmonious statutes. Walters v Leech, 279 Mich App
707, 710; 761 NW2d 143 (2008). Statutes relate to the
same subject if they relate to the same person or thing
or the same class of persons or things. Id.
III. SHREVE’S STATUS AS “OWNER OR REGISTRANT”
Titan argues that, in allowing his license plate to
remain on the motorcycle and in failing to cancel his
registration, Shreve remained the motorcycle’s “regis-
trant.” We agree.
84 296 M
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MCL 500.3114(5), a subsection of the motor vehicle
personal and property protection chapter of Michigan’s
Insurance Code, MCL 500.3101 et seq., provides:
A person suffering accidental bodily injury arising from
a motor vehicle accident which shows evidence of the
involvement of a motor vehicle while an operator or pas-
senger of a motorcycle shall claim personal protection
insurance benefits from insurers in the following order of
priority:
(a) The insurer of the owner or registrant of the motor
vehicle involved in the accident.
(b) The insurer of the operator of the motor vehicle
involved in the accident.
(c) The motor vehicle insurer of the operator of the
motorcycle involved in the accident.
(d) The motor vehicle insurer of the owner or registrant
of the motorcycle involved in the accident. [Emphasis
added.]
There is no dispute that, at the time of the accident,
Curler and the driver of the other vehicle involved in
the accident were uninsured. At issue is whether, by
leaving the plates on the motorcycle when he sold it to
“Jay,” Shreve remained the registrant of the motorcycle.
Titan argues that the use of the disjunctive “or” re-
quires a finding that Shreve’s insurer, State Farm, was
liable for the payment of PIP benefits. The Legislature
is presumed to know the rules of grammar. Greater
Bethesda Healing Springs Ministry v Evangel Builders
& Constr Mgrs, LLC, 282 Mich App 410, 414; 766 NW2d
874 (2009). While, generally, “or” is a disjunctive term
indicating a choice between alternatives and “and”
means in addition to, the terms are often misused.
Amerisure Ins Co v Plumb, 282 Mich App 417, 428; 766
NW2d 878 (2009). Nevertheless, the words are not
interchangeable and their literal meanings should be
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followed if they do not render the statute dubious. Id. at
428-429; Root v Ins Co of North America, 214 Mich App
106, 109; 542 NW2d 318 (1995).
The Insurance Code defines an “owner” as any of the
following:
(i) 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.
(ii) A person who holds the legal title to a vehicle, other
than a person engaged in the business of leasing motor
vehicles who is the lessor of a motor vehicle pursuant to a
lease providing for the use of the motor vehicle by the
lessee for a period that is greater than 30 days.
(iii) A person who has the immediate right of possession
of a motor vehicle under an installment sale contract.
[MCL 500.3101(2)(h).]
Unfortunately, a “registrant” is not as clearly defined in
the Insurance Code. In fact, it is only referred to in the
negative. MCL 500.3101(2)(i) provides that a “ ‘[r]egis-
trant’ ” does not include a person engaged in the
business of leasing motor vehicles who is the lessor of a
motor vehicle pursuant to a lease providing for the use
of the motor vehicle by the lessee for a period that is
greater than 30 days.”
Citing the Michigan Vehicle Code, MCL 257.1 et seq.,
Titan argues that there are very limited ways in which to
cancel a vehicle’s registration. Registration automatically
expires on the owner’s birthday. MCL 257.226(1). A new
registration is created only upon receipt by the Secretary
of State of an endorsed certificate of title and application
for transfer of registration. MCL 257.237(1). If a transfer
does not occur within 15 days, the vehicle is considered to
be without registration. MCL 257.234(3). If the owner
transfers the title to the vehicle, he or she is required to
remove the registration plates and transfer them, or
86 296 M
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retain them for subsequent transfer, to another vehicle
that the owner owns. MCL 257.233(1). Titan argues that
Shreve continued to be the registrant because he did not
remove the plate, did not transfer the plate to another
vehicle that he owned, and did not transfer the plate to a
family member. Additionally, there was no “deregistra-
tion” because 15 days had not elapsed between the time of
the sale and the accident, nor did registration lapse upon
Shreve’s birthday, which occurred after the accident.
Rather than directly addressing whether Shreve re-
mained the registrant, State Farm argues that Shreve
did not maintain an “insurable interest” in the motor-
cycle, citing MCL 257.233(8) and (9), which, at the time
in question,
1
provided:
(8) The owner shall indorse on the certificate of title as
required by the secretary of state an assignment of the title
with warranty of title in the form printed on the certificate
with a statement of all security interests in the vehicle or in
accessories on the vehicle and deliver or cause the certifi-
cate to be mailed or delivered to the purchaser or trans-
feree at the time of the delivery to the purchaser or
transferee of the vehicle. The certificate shall show the
payment or satisfaction of any security interest as shown
on the original title.
(9) Upon the delivery of a motor vehicle and the trans-
fer, sale, or assignment of the title or interest in a motor
vehicle by a person, including a dealer, the effective date of
the transfer of title or interest in the vehicle shall be the
date of execution of either the application for title or the
assignment of the certificate of title. [Emphasis added.]
State Farm points out that the obligation to obtain a
new certificate of title lies with the purchaser, not the
seller, and that, by canceling the insurance and relin-
1
MCL 257.233 was amended after the accident occurred.
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quishing possession of the motorcycle and title thereto,
Shreve had no remaining interest in the motorcycle
after the sale. However, this argument does not address
Shreve’s status as a registrant.
Both parties cite Clevenger v Allstate Ins Co, 443
Mich 646; 505 NW2d 553 (1993). In Clevenger, Douglas
Preece purchased his aunt’s Pontiac for $100. The aunt,
JoAnn Williams, signed her name to the certificate of
title and gave the vehicle to Preece. Preece testified that
because it was the weekend, Williams agreed that
Preece could drive with her registration plate, registra-
tion, and insurance until Monday when the Secretary of
State office opened. Thus, when Preece left Williams’s
home, the registration plate was attached to the vehicle
and the certificates of registration and insurance were
in the glove compartment. Id. at 648. Preece was
involved in a head-on collision on the way home and the
other driver, Clifford Clevenger, was injured. Clevenger
received first-party personal injury protection benefits
from his own insurer and then sued Williams’s insurer,
Allstate Insurance. Though Williams had canceled in-
surance on the vehicle, she did not do so until four days
after the accident and at that time she was not aware
that an accident had even taken place. Id. at 649. The
trial court found that Allstate had a duty to defend and
indemnify. This Court reversed, finding that a bona fide
sale occurred, that Williams was no longer the owner of
the vehicle, and that she was relieved of any liability. Id.
at 650. Our Supreme Court reversed, rejecting the
argument that because Williams no longer held title she
no longer held an “insurable interest” in the car. The
Court reiterated that the terms “ ‘owner’ and ‘regis-
trant,’ as used in the no-fault act, are not synonymous
and represent separate categories of individuals.” Id. at
658. Our Supreme Court held:
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We read these provisions of the vehicle code and the
no-fault insurance act in pari materia as indicating that an
unexpired registration plate affixed to the vehicle serves as
presumptive evidence that the vehicle is validly registered
with the Secretary of State, and that it carries the statu-
torily mandated no-fault automobile insurance. It logically
follows that to destroy that presumption, the appropriate
course of action after the sale of a vehicle is for the seller to
remove the registration plate and the certificates of regis-
tration and insurance from the automobile. In this case,
Mrs. Williams failed to do so. A reasonable inference can be
made that Williams voluntarily remained the insuring
registrant of the Pontiac, as evidenced by the testimony
and by allowing Preece to take possession and operate the
vehicle on a public highway with her plate attached and
with her certificates of insurance and registration in the
glove compartment. Moreover, Mrs. Williams’ failure to
retain title to the automobile did not excuse her compliance
with any other legislative requirements she may have had
under the no-fault insurance act. As the registrant of a
vehicle she permitted to be operated upon a public highway,
Mrs. Williams was required by the act to provide residual
liability insurance on the vehicle under the threat of
criminal sanctions. In this limited context, Mrs. Williams’
insurable interest was not contingent upon title of owner-
ship to the automobile but, rather, upon personal pecuniary
damage created by the no-fault statute itself. Thus, we
reject Allstate’s argument that Mrs. Williams, as the reg-
istrant of the Pontiac, had no “insurable interest” in the
vehicle because she was no longer the title holder....
In short, because she voluntarily remained the insuring
registrant of the automobile, Mrs. Williams must be taken
to have complied with the compulsory insurance statute
whether she intended to or not. Our conclusion is sup-
ported by the overriding, strong public policy and the
Legislature’s mandate that vehicles not be operated on
Michigan’s highways without personal protection insur-
ance, property protection insurance, and residual liability
insurance. [Id. at 660-662 (citations omitted).]
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The parties also cite Allstate Ins Co v State Farm Mut
Auto Ins Co, 230 Mich App 434; 584 NW2d 355 (1998).
In Allstate, the plaintiffs were husband and wife. The
wife was injured when the car in which she was a
passenger was struck by a Buick LaSabre driven by
Bruce Walsh. Only hours before the accident, Walsh had
purchased the car from Charles Hinton, Jr. Hinton not
only turned over possession of the car to Walsh, but also
provided a receipt of sale and removed his license plate,
registration, and certificate of insurance from the car.
Id. at 435. Walsh had placed his own license plate on the
car, but had failed to obtain insurance. Allstate, the
plaintiffs’ insurer, denied coverage on the theory that
Walsh was covered under Hinton’s insurance through
State Farm. State Farm argued that Hinton was “no
longer the owner or registrant of the vehicle” once he
removed the license plate, registration, and proof of
insurance from the vehicle. Id. at 436. Allstate brought
a declaratory judgment action to determine whether
Allstate or State Farm was liable. The trial court
granted summary disposition in favor of State Farm. Id.
In affirming the trial court’s order, this Court noted
that “a ‘named insured’ must have an insurable inter-
est to support a valid automobile liability insurance
policy.” Id. at 440. Unlike the seller of the vehicle in
Clevenger, Hinton did nothing to intimate that he was
voluntarily remaining the registrant of the car; rather,
Hinton did exactly what the Supreme Court suggested a
seller do; he removed his license plate, registration, and
certificate of insurance from the vehicle before giving
Walsh possession. These actions, in conjunction with the
bona fide sale of the vehicle, destroyed Hinton’s status as
owner and as registrant. Unlike Clevenger, there simply
are no facts from which we could infer that Hinton “vol-
untarily remained the insuring registrant.” Thus, at the
time of the accident, Hinton had no remaining interest in
90 296 M
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the vehicle, he had no insurable interest, and the State
Farm liability policy covering the LeSabre was simply void.
[Id. at 440-441.]
In a footnote, this Court further noted:
Allstate argues that Hinton remained the registrant for
an indefinite period after the sale. According to Allstate, in
order to cast off his status as registrant, Hinton was
required to cancel the registration with the Secretary of
State or wait for the registration to expire. We find no
authority for this proposition. Reading the applicable pro-
visions of the vehicle code together, it is clear that the
owner of a vehicle is responsible for registering it. See MCL
257.222-257.224; MSA 9.1922-9.1924 (instructing that the
registration certificate and registration plate be delivered
to the owner of the vehicle). If the owner transfers the title
to the vehicle, she is required to remove the registration
plates and transfer them, or retain them for transfer to
another vehicle. MCL 257.233(1); MSA 9.1933(1). The code
also makes it clear that the purchaser or transferee is
responsible for obtaining a new certificate of title and
registration certificate for the purchased vehicle. MCL
257.234; MSA 9.1934. However, the purchased vehicle is
exempt from the registration and certificate of title provi-
sions of the vehicle code for three days immediately follow-
ing transfer of the title. MCL 257.216[l]; MSA 9.1916[l].
Implicit in this legislative scheme is the idea that a seller
who complies with the statutory requirements by removing
the registration plate, registration certificate, and certifi-
cate of insurance from the vehicle, is no longer a registrant
of the vehicle. In Clevenger, the Supreme Court simply
recognized that a person who transfers the title to a vehicle
and allows the new owner to drive the vehicle away with
her registration plate, registration certificate, and certifi-
cate of insurance, voluntarily remains the registrant of the
vehicle. [Id. at 441 n 7.]
MCL 257.233(9) states that the “effective” date of
transfer of the title or the interest in the vehicle is the
date of “execution” of either the application for title or
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the assignment of the certificate of title. Curler’s testi-
mony that he obtained title to the motorcycle days
before the accident was in direct contrast with the
documentary evidence, which indicated that the “pur-
chase date” was June 18, 2006, one day after the
accident. The date appears on both the certificate of
title as well as the application for a Michigan vehicle
title. It is unclear whether Shreve actually signed the
certificate of title before the accident or after the
accident. In any event, even if Shreve had signed the
certificate of title without dating it on or about June 14,
2006, Clevenger compels a conclusion that Shreve re-
mained the registrant of the motorcycle at the time of
Curler’s accident. While Shreve may have canceled his
policy of insurance on the motorcycle, there is no
evidence that the cancellation, which took place three
months before the sale, was done in anticipation of the
sale of the motorcycle; rather, it appears that Shreve
canceled the policy merely because he had no intention
to use the motorcycle at that time. Moreover, while
Shreve apparently removed the certificates of registra-
tion and insurance from the motorcycle before he
relinquished possession of the motorcycle, the fact
remains that Shreve failed to remove his unexpired
license plate from the motorcycle and, as such, “[a]
reasonable inference can be made that [Shreve] volun-
tarily remained the insuring registrant....”Clevenger,
443 Mich at 660-661. Shreve’s insurer, State Farm, was
therefore obligated to pay personal protection insur-
ance benefits in this case.
Reversed. As the prevailing party, plaintiff may tax
costs. MCR 7.219.
J
ANSEN
,P.J., and W
ILDER
and K. F. K
ELLY
, JJ., con-
curred.
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UNILOY MILACRON USA INC v DEPARTMENT OF TREASURY
Docket No. 300749. Submitted January 12, 2012, at Lansing. Decided
January 26, 2012. Approved for publication March 29, 2012, at
9:00 a.m.
Uniloy Milacron USA Inc. brought an action in the Court of Claims
against the Department of Treasury, seeking a refund of single
business tax paid under protest for tax years 2003, 2004, and 2005.
Uniloy manufactures molds at its manufacturing plant in MI.
Uniloy Milacron, Inc. (UMI), an affiliate corporation, had a dis-
tributor agreement with Uniloy under which UMI would market
Uniloy’s products as well as purchase the products for resale. UMI
solicited orders from customers for Uniloy’s products and sent the
orders to Uniloy for approval. Upon approval, Uniloy would
package, load, and ship the products directly to customers, the
majority of which were outside Michigan. UMI never obtained
possession of the products, but title in the products did transfer
from Uniloy to UMI at some point. When Uniloy prepared its
Michigan single business tax returns for the specified years it
sourced its sales for purposes of computing its sales-
apportionment factor based on the destination to which its prod-
ucts were shipped or delivered to a customer. The department
conducted an audit and allocated all of Uniloy’s sales to Michigan
for purposes of the sales-apportionment factor. The court, Paula J.
Manderfield, J., concluded that all Uniloy’s sales could not be
apportioned to Michigan and granted summary disposition in
favor of Uniloy. The department appealed.
The Court of Appeals held:
The former Single Business Tax Act (SBTA), MCL 208.1 et seq.,
was a value-added tax that measured the increase in value of goods
and services brought about by whatever a business had done to
them between the time of purchase and time of sale. Under former
MCL 208.45 a formula involving three ratios—the property factor,
the payroll factor, and the sales factor—was used to apportion
taxing authority for goods and services between two taxing states
and calculate the adjusted tax base, which was then used to
calculate the single business tax liability. The Court of Claims
properly determined that all of Uniloy’s sales could not be appor-
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tioned to Michigan for calculation of tax liability under the SBTA.
Under former MCL 208.52(b), Uniloy’s sales could be sourced to
Michigan for purposes of the sales factor calculation only if the
product was delivered or shipped to a customer in Michigan.
Uniloy’s employees never took possession of the products and were
never involved in the packaging, loading, and shipping of the
products. The sale of products to UMI for resale, without evidence
of shipment and delivery to UMI, was not sufficient to apportion
that sale to Michigan for purposes of single business tax liability. If
the Legislature had intended that a sale of tangible personal
property be sourced on the basis of where the sale occurred, it
would have included language in the SBTA to that effect.
Affirmed.
T
AXATION —
S
INGLE
B
USINESS
T
AX —
A
PPORTIONMENT
F
ACTOR —
S
ALES
F
ACTOR
.
Under MCL 208.45 of the former Single Business Tax, a formula
involving three ratios—the property factor, the payroll factor, and
the sales factor—was used to apportion taxing authority for goods
and services between two taxing states and calculate the adjusted
tax base, which was then used to calculate the single business tax
liability; under former MCL 208.52(b) sales of tangible personal
property could be sourced to Michigan for purposes of calculating
the sales factor only if the product had been shipped or delivered
to a customer within Michigan; the sale of property would not be
sourced on the basis of where the sale occurred.
Honigman Miller Schwartz & Cohn LLP (by Patrick
R. Van Tiflin and Daniel L. Stanley) for Uniloy Mila-
cron USA, Inc.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, and Bruce C. Johnson, Assistant
Attorney General, for the Department of Treasury.
Before: B
ECKERING
,P.J., and O
WENS
and S
HAPIRO
,JJ.
P
ER
C
URIAM.
In this case involving the Single Business
Tax Act
1
(SBTA), former MCL 208.1 et seq., defendant,
the Department of Treasury, appeals the Court of
1
The SBTA has been repealed. Tyson Foods, Inc v Dep’t of Treasury,
276 Mich App 678, 679 n 1; 741 NW2d 579 (2007); see 2006 PA 325. To
94 296 M
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Claims’s order granting summary disposition under
MCR 2.116(C)(10) in favor of plaintiff, Uniloy Milacron
USA, Inc. We affirm.
I
Plaintiff manufactures molds used in blow molding
machines. Its manufacturing plant is in Tecumseh, Michi-
gan. Plaintiff entered into a distributor agreement with
an affiliate corporation: Uniloy Milacron, Inc. (UMI).
Under the distributor agreement, plaintiff and UMI
agreed that UMI would market plaintiff’s products as well
as purchase plaintiff’s products for resale. UMI solicited
orders from customers for plaintiff’s products and sent
the orders to plaintiff for approval. Upon approval, plain-
tiff’s personnel would package, load, and ship the products
directly to the customers. The “vast majority” of the
products were shipped to customers outside Michigan.
UMI never obtained possession of the products. Although
both plaintiff and defendant agree that title in the prod-
ucts transferred from plaintiff to UMI at some point
before the customers acquired the products, the distribu-
tor agreement was silent with respect to the transfer of
title.
When it prepared its Michigan single business tax
(SBT) returns for the 2003, 2004, and 2005 tax years,
plaintiff sourced its sales for purposes of computing its
sales factor “based on the destination to which its
products were shipped or delivered to a customer.”
When defendant audited plaintiff for these tax years,
defendant determined that all of plaintiff’s sales were
Michigan sales for purposes of the sales factor used in
calculating the taxes and, thus, assessed plaintiff an
make the text of the opinion easier to read, references to SBTA provisions
are to the version in effect at the time the tax was imposed
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additional $28,558.67 in single business taxes and in-
terest. Plaintiff paid the assessment under protest.
Plaintiff sued defendant in the Court of Claims to
obtain a refund. Plaintiff moved for partial summary
disposition under MCR 2.116(C)(10) (no genuine issue of a
material fact), and defendant responded, requesting that
the court grant summary disposition in defendant’s favor
under MCR 2.116(I)(2) (nonmoving party entitled to judg-
ment). After a hearing, the court granted plaintiff’s mo-
tion for summary disposition, denied defendant’s motion,
and entered judgment for plaintiff in the amount of
$28,558.67, plus statutory interest.
II
The sole issue before this Court is whether the Court
of Claims erred when it determined that all of plaintiff’s
sales could not be apportioned to Michigan as a matter
of law and, thus, granted summary disposition in favor
of plaintiff. We conclude that it did not.
We review de novo a trial court’s determination of a
motion for summary disposition under MCR
2.116(C)(10). Ormsby v Capital Welding, Inc, 471 Mich
45, 52; 684 NW2d 320 (2004). When reviewing a motion
brought under MCR 2.116(C)(10), “we consider the
affidavits, pleadings, depositions, admissions, and other
documentary evidence submitted 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 judgment as a matter of
law.” Id.
Resolution of this appeal also involves the interpreta-
tion of statutory language, which we review de novo. Ford
Motor Co v Dep’t of Treasury, 288 Mich App 491, 494; 794
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NW2d 357 (2010). “The primary goal of judicial interpre-
tation of statutes is to ascertain and give effect to the
Legislature’s intent.” Guardian Photo, Inc v Dep’t of
Treasury, 243 Mich App 270, 276; 621 NW2d 233 (2000).
The specific language of the statute must be examined to
determine the Legislature’s intent because the Legisla-
ture is presumed to have intended the meaning it plainly
expressed. Id. at 276-277. “Where the language poses no
ambiguity, this Court need not look outside the statute,
nor construe the statute, but need only enforce the statute
as written.” Ammex, Inc v Dep’t of Treasury, 273 Mich
App 623, 648; 732 NW2d 116 (2007). “A provision is
ambiguous if it is susceptible to more than a single
meaning or if it irreconcilably conflicts with another
provision.” TMW Enterprises, Inc v Dep’t of Treasury,
285 Mich App 167, 172; 775 NW2d 342 (2009).
III
Michigan’s repealed SBT was a value-added tax that
“measure[d] the increase in value of goods and services
brought about by whatever a business does to them
between the time of purchase and time of sale.” Guardian
Photo, 243 Mich App at 277. Any person engaged in
business activity in Michigan was subject to the SBT
because the SBT was a tax on economic activity, not an
income tax. TMW, 285 Mich App at 173. The SBTA
provided a formula for the apportionment between two
taxing states through a calculation involving three ratios:
the property factor, the payroll factor, and the sales factor.
Fluor Enterprises, Inc v Dep’t of Treasury, 265 Mich App
711, 717; 697 NW2d 539 (2005), rev’d in part on other
grounds 477 Mich 170 (2007); see also MCL 208.45. The
formula was used in a calculation to determine the ad-
justed tax base, which was then used to calculate the SBT
liability. Fluor, 265 Mich App at 717. The dispute in this
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case involves how plaintiff’s sales factor was calculated
using the amount of sales sourced to Michigan.
The sales factor was a fraction with the numerator
being the “the total sales of the taxpayer in this state
during the tax year” and the denominator being “the
total sales of the taxpayer everywhere during the tax
year.” MCL 208.51. MCL 208.52 addressed when a sale
of tangible personal property was sourced to Michigan
and stated in pertinent part:
Sales of tangible personal property are in this state in
any of the following circumstances:
***
(b) For tax years beginning on and after January 1,
1998, the property is shipped or delivered to any purchaser
within this state regardless of the free on board point or
other conditions of the sales.
We conclude that MCL 208.52(b) was not ambiguous;
therefore, we must enforce it as written. See Ammex,
273 Mich App at 648. The SBTA did not define
“shipped” or “delivered.” MCL 208.2 provided that
“terms not defined within the SBTA are to be accorded
‘the same meaning as when used in comparable context
in the laws of the United States relating to federal
income taxes.’ ” Consumers Power Co v Dep’t of Trea-
sury, 235 Mich App 380, 385; 597 NW2d 274 (1999).
However, the Internal Revenue Code lacks standard
definitions for “shipped” and “delivered”; thus, for
further guidance this Court may consult a dictionary
for their definitions. See id.; see also TMW, 285 Mich
App at 172 (explaining that if a statute does not define
a term, this Court may consult a dictionary to afford a
statutory term its plain and ordinary meaning). Ran-
dom House Webster’s College Dictionary (2001) defines
“deliver” as “to carry and turn over...totheintended
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recipient or recipients,” “to give into another’s posses-
sion or keeping,” to “hand over,” and to “surrender.”
The dictionary defines “ship” as “to send or transport
by ship, rail, truck, plane, etc.” or “to send away.” Id.
Accordingly, under MCL 208.52(b), a sale by plaintiff
would have been sourced to Michigan for purposes of the
sales factor only if plaintiff’s product was “carried and
turned over,” “handed over,” “surrendered,” “sent away,”
or “transported” to a customer within Michigan. In this
case, there is no documentary evidence to support defen-
dant’s assertion that the products were shipped or deliv-
ered by plaintiff to UMI. Neither UMI nor its employees
took possession of the products, and they were not in-
volved in the packaging, loading, and shipping of the
products. Rather, the undisputed evidence demonstrates
that plaintiff’s employees loaded the product onto com-
mon carriers for delivery to UMI’s customers.
Defendant insists that the products were necessarily
delivered to UMI, arguing that the products “were
made in Michigan and were shipped from Michigan, and
were never anywhere else before they were shipped to
UMI’s customers, [so] logically, [plaintiff] must have
delivered the [products] to UMI in Michigan, however
that delivery took place.” We reject this argument. Just
because plaintiff sold the products to UMI does not
necessarily mean that plaintiff shipped or delivered the
products to UMI, and defendant has not provided this
Court with any legal authority to support such a con-
clusion. Plaintiff’s sales were not sourced to Michigan
merely because plaintiff sold its products to UMI in
Michigan for resale. See MCL 208.52(b). Had the Leg-
islature intended a sale of tangible personal property to
be sourced on the basis of where the sale occurred, it
would have included language in the SBTA to that
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effect; we will not read words into the plain language of
an unambiguous statute. PIC Maintenance, Inc v Dep’t
of Treasury, 293 Mich App 403, 410-411; 809 NW2d 669
(2011); see also Kurz v Mich Wheel Corp, 236 Mich App
508, 512-513; 601 NW2d 130 (1999).
Defendant also argues that the Court of Claims improp-
erly relied on a draft revenue administrative bulletin
(RAB) issued by defendant that interpreted the current
Michigan Business Tax Act, MCL 208.1101 et seq.We
disagree. An RAB is “issued under MCL 205.3(f), which
allows defendant to issue bulletins that index and explain
current department interpretations of current state tax
laws.” JW Hobbs Corp v Dep’t of Treasury, 268 Mich App
38, 46; 706 NW2d 460 (2005) (quotation marks and
citation omitted). In this case, the Court of Claims did
discuss RAB 2010-XX—and authority from other jurisdic-
tions regarding similar statutory schemes—and reasoned
that the RAB contradicted defendant’s position in the
instant case. While we acknowledge that an RAB is only
an interpretation of a statute and does not have the force
of law, Catalina Mktg Sales Corp v Dep’t of Treasury, 470
Mich 13, 21; 678 NW2d 619 (2004), we note that the Court
of Claims did as well, opining that the RAB was merely
“persuasive.” Moreover, even assuming that the Court of
Claims afforded the RAB undue weight, we do not reverse
because the court’s conclusion in this case was consistent
with the plain language of MCL 208.52(b). See Taylor v
Laban, 241 Mich App 449, 458; 616 NW2d 229 (2000)
(“[W]e will not reverse the court’s order when the right
result was reached for the wrong reason.”).
Affirmed.
B
ECKERING
,P.J., and O
WENS
and S
HAPIRO
, JJ., con-
curred.
100 296 M
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In re APPLICATIONS OF DETROIT EDISON COMPANY
Docket Nos. 296374 and 296379. Submitted October 4, 2011, at Lansing.
Decided April 10, 2012, at 9:00 a.m.
Detroit Edison Company filed applications in the Public Service
Commission (PSC), requesting authority to realign retail electric
rates for Michigan educational institutions to recover the result-
ant revenue shifts to other customer classes and a rate increase
above the established retail electric base rates. In addition, Detroit
Edison requested that the PSC continue the company’s choice
incentive mechanism (CIM), its storm-restoration expense recov-
ery mechanism, and the line-clearance expense recovery mecha-
nism, authorize the implementation of an uncollectible expense
true-up mechanism (UETM), approve a revenue decoupling
mechanism (RDM), and approve its proposal to amend or extend
certain retail electric rate schedules. The Association of Businesses
Advocating Tariff Equity (ABATE) and the Attorney General
intervened. Following an evidentiary hearing, the PSC authorized
Detroit Edison to adopt an RDM, authorized Detroit Edison to
include $39,858,000 in funding for the Low-Income and Energy
Efficiency Fund (LIEEF) as an operation and maintenance ex-
pense, approved four single cost tracking mechanisms, and ap-
proved funding for Detroit Edison to pursue a plan to upgrade its
meters. ABATE and the Attorney General appealed separately.
The Court of Appeals held:
1. An administrative agency’s powers are limited to those
granted by the Legislature by clear and unmistakable language.
Although MCL 460.1089(6) mandates that qualified natural gas
providers may use an RDM to adjust for sales volumes above or
below the projected levels, MCL 460.1097(4) does not mandate or
authorize the use of an RDM by electricity providers. Rather, MCL
460.1097(4) mandates research and reporting on how RDMs would
operate in connection with electricity providers. The PSC did not
have authority to authorize Detroit Edison’s adoption of an RDM.
2. PSC regulated utilities are not required to raise money for
the LIEEF because its enabling legislation was deleted from the
Customer Choice and Electricity Reliability Act, MCL 460.10 et
seq. The PSC does not have authority under the general regulatory
In re D
ETROIT
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PPLICATIONS
101
powers provided in MCL 460.6a(2) to approve a utility’s collecting
money from its ratepayers as an operation and maintenance
expense to fund a program to help ratepayers who have difficulty
paying their energy bills or to administer a program to promote
energy efficiency in general. The PSC erred by approving Detroit
Edison’s petition to collect nearly $40 million in LIEEF funding
from its customers because Detroit Edison lacked statutory au-
thority to collect money for such a purpose.
3. Retroactive ratemaking is prohibited without statutory au-
thorization, but it does not occur if only future rates are affected
with no adjustment to previously set rates. The PSC may use the
accounting convention by which storm-related expenses from one
year are characterized as expenses incurred in subsequent years to
which they were deferred. The PSC had authority to approve
Detroit Edison’s request to extend previously approved trackers
for storm and nonstorm restoration expenses and a line-clearance
expense mechanism, to adopt a UETM, and to continue a CIM.
The PSC correctly approved Detroit Edison’s use of tracking
mechanisms though which future rates are adjusted to take
account of actual past expenses.
4. The PSC may allow recovery of a utility’s costs only when
the utility proves that recovery of the costs is just and reasonable.
The PSC erred by approving a nearly $37 million rate increase to
fund Detroit Edison’s advanced metering infrastructure (AMI)
program, which involved so-called “smart meters” to collect real-
time energy consumption data, because the decision was not
supported by competent, material, and substantial evidence on the
whole record. The AMI program was commercially untested and
highly capital intensive, with a potential for significant economic
risk and substantial impact on rates. Detroit Edison failed to
present evidence regarding a cost-benefit analysis of the program
or its necessity, as well as the availability of other competing
considerations. Even though Detroit Edison characterized the
program as experimental, an abuse-of-discretion standard of re-
view was not appropriate, regardless of the difficulty with estab-
lishing a cost-benefit analysis for a pilot program. Remand was
necessary for the PSC to conduct a full hearing on the program.
5. The Legislature intends specificity in a statute when the
language is specific and silence when it is silent. Under MCL
460.11(1), as amended by 2008 PA 286, the cost of providing
electricity to customers is calculated by an allocation formula of 50
percent weighting of peak demand, 25 percent weighting of
on-peak energy use, and 25 percent weighting of total energy use.
Because the Legislature specified the 50-25-25 weighting formula
102 296 M
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with no indication about how the components should be calcu-
lated, the Legislature intended to prescribe the weighting formula
while leaving the PSC and the utilities to determine which formula
to use to calculate the individual components in the normal course
of business. Thus, the PSC properly allowed Detroit Edison to
calculate the peak demand component by using the MH4CP
method, as opposed to using the 12CP method that was in effect
when MCL 460.11(1) was amended and the weighting formula was
set.
Affirmed in part, reversed in part, and remanded for further
proceedings.
S
HAPIRO
,P.J., concurring in part and dissenting in part, agreed
with the majority that the PSC did not have authority to allow rate
decoupling. The AMI program was experimental, so an abuse-of-
discretion standard of review applied and Judge S
HAPIRO
would
have affirmed the PSC’s decision to approve Detroit Edison’s AMI
program because it was not arbitrary and capricious. Judge
S
HAPIRO
concurred with the majority on all other issues.
1. P
UBLIC
U
TILITIES —
E
LECTRIC
U
TILITIES —
R
ATE
-D
ECOUPLING
M
ECHANISM —
P
UBLIC
S
ERVICE
C
OMMISSION —
A
UTHORITY TO
O
RDER
R
ATE
D
ECOUPLING
.
The Public Service Commission does not have authority to approve
or direct the use of a rate-decoupling mechanism by electric
providers to adjust for sales volumes above or below projected
levels (MCL 460.1097[4]).
2. P
UBLIC
U
TILITIES —
P
UBLIC
S
ERVICE
C
OMMISSION —
L
OW
-I
NCOME AND
E
NERGY
E
FFICIENCY
F
UND —
S
OURCE OF
F
UNDING
.
Utilities regulated by the Public Service Commission (PSC) are not
required to raise money for the Low-Income and Energy Efficiency
Fund because its enabling legislation was deleted from the Cus-
tomer Choice and Electric Reliability Act, MCL 460.10 et seq.;
under its general regulatory powers provided in MCL 460.6a(2),
the PSC does not have authority to approve a utility’s collecting
money as an operation and maintenance expense from its ratepay-
ers to fund a program to help ratepayers who have difficulty
paying their energy bills or to administer a program to promote
energy efficiency in general.
3. P
UBLIC
U
TILITIES —
P
UBLIC
S
ERVICE
C
OMMISSION —
E
XPERIMENTAL
P
ROGRAMS —
S
TANDARD OF
R
EVIEW
.
The Public Service Commission’s approval of a utility’s experimen-
tal program is not reviewed for an abuse of discretion; rather,
recovery of the experimental program’s costs must be just and
reasonable and the commission’s approval must be supported by
2012] In re D
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competent, material, and substantial evidence on the whole
record; competing program considerations, the necessity of the
program, and an analysis of the cost of the program versus the net
benefit to the customer must all be considered.
4. P
UBLIC
U
TILITIES —
P
UBLIC
S
ERVICE
C
OMMISSION —
E
LECTRIC
R
ATES —
C
OST
-A
LLOCATION
F
ORMULA —
C
OMPUTATION OF
C
OMPONENTS.
Under MCL 460.11(1), electricity providers must calculate the cost
of providing service to each customer class through the allocation
of production-related and transmission costs on the basis of a
weighted formula of 50 percent peak demand, 25 percent on-peak
energy use, and 25 percent total energy use; because the Legisla-
ture specified the 50-25-25 weighting formula but was silent about
how the individual components should be calculated, the Public
Service Commission has authority in the normal course of busi-
ness to determine how those components are calculated.
Clarke Hill PLC (by Robert A. W. Strong) for the
Association of Businesses Advocating Tariff Equity.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Steven D. Hughey, Kristin Smith, Spencer
A. Sattler, and Anne M. Uitvlugt, Assistant Attorneys
General, for the Public Service Commission.
Fahey Schultz Burzych Rhodes PLC (by Stephen J.
Rhodes and William K. Fahey), Bruce R. Maters, Jon P.
Christinidis, Richard P. Middleton, and Michael J. Solo,
Jr., for The Detroit Edison Company.
Bill Schuette, Attorney General, S. Peter Manning,
Division Chief, and Donald E. Erickson, Assistant At-
torney General, for the Attorney General.
Before: S
HAPIRO
,P.J., and S
AAD
and B
ECKERING
,JJ.
S
AAD
, J. In these consolidated appeals, appellants, the
Association of Businesses Advocating Tariff Equity
(ABATE) and the Attorney General, appeal the January
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11, 2010, opinion and order of the Public Service
Commission (PSC). For the reasons set forth, we affirm
in part, reverse in part, and remand for further pro-
ceedings consistent with this opinion.
I. FACTS AND PROCEEDINGS
The PSC’s opinion and order contains the following
statement of facts:
On January 5, 2009, The Detroit Edison Company...filed
an application in Case No. U-15751 requesting authority to
realign retail electric rates for Michigan educational institu-
tions in accordance with the requirements of Section 11(4) of
2008 PA 286 (Act 286) [MCL 460.11(4)]. Detroit Edison stated
that realigning rates for educational institutions necessarily
shifts revenues to other customer classes. In its application,
Detroit Edison requested to immediately implement sur-
charges to recover that revenue shift, or in the alternative,
that the Commission authorize surcharges to recover that
revenue shift, or in the alternative, that the Commission
authorize establishment of a regulatory asset to account for
the revenue shift.
1
On January 26, 2009, Detroit Edison filed an application
in Case No. U-15768 requesting a $378 million rate in-
crease above the retail electric base rates established in the
December 23, 2008 and January 13, 2009 orders in Case
No. U-15244 and pursuant to various special contracts
approved by the Commission. Detroit Edison asserted that
its request for rate relief was based on July 2009 through
June 2010 test year data that establishes a need for
additional revenue to cover environmental compliance
costs; the costs associated with the operation and mainte-
nance of the company’s electric distribution system and
generation plants; the costs associated with customer un-
collectible accounts; the costs associated with inflation; the
capital costs associated with the addition of plant; and to
recognize the reduction in territory sales.
In addition, Detroit Edison requested that the Commis-
sion continue the company’s choice incentive mechanism
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(CIM), its storm restoration expense recovery mechanism,
and the line clearance expense recovery mechanism, with
some modifications. Detroit Edison also requested Com-
mission authorization to implement an uncollectible ex-
pense true-up [or tracking] mechanism (UETM), and re-
quested that the Commission approve a revenue
decoupling mechanism (RDM) proposed by the company.
Detroit Edison requested that the Commission approve its
proposal to amend or extend certain retail electric rate
schedules, including its economic development tariff.
***
According to Detroit Edison, under its current rate struc-
ture, full-service commercial and industrial (C&I) customers
pay rates that are in excess of their cost of service while
residential customers pay rates that are less than their cost of
service. Detroit Edison notes that the Commission addressed
this inequity in its December 23, 2008 order in Case No.
U-15244, by ordering an immediate partial realignment of
residential rates and by ordering annual rate realignments
over a period of five years. Detroit Edison states that the rates
proposed in this filing reflect the realignment ordered by the
Commission for 2008.
_____________________________________________________
1
On February 3, 2009, the Commission issued an order
in Case No. U-15751 in which it directed that all issues
related to Detroit Edison’s educational tariff filing should
be addressed in Case No. U-15768.
_____________________________________________________
Ultimately, the PSC issued an opinion and order that
authorized Detroit Edison to adopt an RDM, allowed
Detroit Edison to include $39,858,000 in funding for the
Low-Income and Energy Efficiency Fund (LIEEF) as an
operation and maintenance expense, approved four
single cost tracking mechanisms intended to adjust
future rates to make up for any difference between the
amount for a particular item included in base rates and
the actual cost experienced by the utility, and approved
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funding for Detroit Edison to pursue a plan to upgrade
its meters. ABATE also challenges the PSC’s decision to
change its methodology for calculating the peak-
demand component for purposes of allocating
production-related and transmission costs to customer
classes in accord with a statutory formula.
II. STANDARD OF REVIEW
As this Court explained in In re Application of
Michigan Consol Gas Co to Increase Rates, 293 Mich
App 360, 365; 810 NW2d 123 (2011):
All rates, fares, charges, classifications, joint rates,
regulations, practices, and services prescribed by the PSC
are presumed prima facie to be lawful and reasonable. MCL
462.25; see also Mich Consol Gas Co v Pub Serv Comm, 389
Mich 624, 635–636; 209 NW2d 210 (1973). A party ag-
grieved by an order of the PSC has the burden of showing
by clear and satisfactory evidence that the order is unlaw-
ful or unreasonable. MCL 462.26(8). To establish that a
PSC order is unlawful, the appellant must show that the
PSC failed to follow a statutory requirement or abused its
discretion in the exercise of its judgment. In re MCI
Telecom Complaint, 460 Mich 396, 427; 596 NW2d 164
(1999).
A final order of the PSC must be authorized by law and
supported by competent, material, and substantial evi-
dence on the whole record. Const 1963, art 6, § 28; In re
Consumers Energy Co, 279 Mich App 180, 188; 756 NW2d
253 (2008). A reviewing court gives due deference to the
PSC’s administrative expertise and is not to substitute its
judgment for that of the PSC. Attorney General v Pub Serv
Comm No 2, 237 Mich App 82, 88; 602 NW2d 225 (1999).
Issues of statutory interpretation are reviewed de novo.
In re Complaint of Rovas Against SBC Mich, 482 Mich 90,
102; 754 NW2d 259 (2008). A reviewing court should give
an administrative agency’s interpretation of statutes it is
obliged to execute respectful consideration, but not defer-
ence. Id. at 108.
2012] In re D
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Whether the PSC exceeded the scope of its authority is
a question of law that is reviewed de novo. In re Complaint
of Pelland Against Ameritech Mich, 254 Mich App 675, 682;
658 NW2d 849 (2003).
III. RATE DECOUPLING MECHANISM
We hold that the PSC exceeded its statutorily granted
authority when it authorized Detroit Edison to adopt an
RDM.
For purposes of this appeal, appellants do not dispute
the policy objectives or expected consequences of De-
troit Edison’s adoption of an RDM, nor is it the judicia-
ry’s province to examine them. Rather, appellants cor-
rectly take issue with the PSC’s authority to authorize
the RDM in the first instance. Appellants point to the
obvious differences in statutes addressing the use of
RDMs for gas and electric utilities and reason, correctly
in our view, that those differences mean that the PSC
has authority to direct or approve the use of RDMs only
in connection with gas utilities, not electric.
MCL 460.1089(6) states:
The commission shall authorize a natural gas provider
that spends a minimum of 0.5% of total natural gas retail
sales revenues, including natural gas commodity costs, in a
year on commission-approved energy optimization pro-
grams to implement a symmetrical revenue decoupling
true-up mechanism that adjusts for sales volumes that are
above or below the projected levels that were used to
determine the revenue requirement authorized in the
natural gas provider’s most recent rate case. In determin-
ing the symmetrical revenue decoupling true-up mecha-
nism utilized for each provider, the commission shall give
deference to the proposed mechanism submitted by the
provider. The commission may approve an alternative
mechanism if the commission determines that the alterna-
tive mechanism is reasonable and prudent. The commis-
sion shall authorize the natural gas provider to decouple
108 296 M
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rates regardless of whether the natural gas provider’s
energy optimization programs are administered by the
provider or an independent energy optimization program
administrator....
This provision mandates the use of an RDM in connec-
tion with qualified natural gas providers. In contrast,
MCL 460.1097(4) provides:
Not later than 1 year after the effective date of this act,
the commission shall submit a report on the potential rate
impacts on all classes of customers if the electric providers
whose rates are regulated by the commission decouple
rates. The report shall be submitted to the standing
committees of the senate and house of representatives with
primary responsibility for energy and environmental is-
sues. The commission’s report shall review whether decou-
pling would be cost-effective and would reduce the overall
consumption of fossil fuels in this state.
This latter provision mandates research and reporting
on how RDMs would operate in connection with provid-
ers of electricity, but does not call for or authorize actual
implementation of an RDM by those utilities. At issue,
therefore, is whether the PSC is empowered to approve
or direct the use of an RDM without specific statutory
authorization. We read the statutes to answer this
question in the negative.
As with other administrative agencies, the PSC pos-
sesses only that authority granted to it by the Legisla-
ture. Attorney General v Pub Serv Comm, 231 Mich App
76, 78; 585 NW2d 310 (1998). Authority must be
granted by clear and unmistakable language, and so the
wording in the PSC’s enabling statutes must be read
narrowly and in the context of the entire statutory
scheme. Consumers Power Co v Pub Serv Comm, 460
Mich 148, 155-159; 596 NW2d 126 (1999). As this Court
recently noted in Herrick Dist Library v Library of
Mich, 293 Mich App 571, 582; 810 NW2d 110 (2011),
2012] In re D
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[t]he powers of administrative agencies are...inherently
limited. Their authority must hew to the line drawn by the
Legislature. Our Supreme Court has repeatedly stressed
the importance of this limitation on administrative agen-
cies, stating that “ ‘[t]he power and authority to be exer-
cised by boards or commissions must be conferred by clear
and unmistakable language, since a doubtful power does
not exist.’ ” Mason [Co Civic Research Council v Mason
Co], 343 Mich [313, 326–327; 72 NW2d 292 (1955)] (cita-
tion omitted).
It is our judgment that a plain reading of MCL
460.1097(4) does not empower the PSC to approve or
direct the use of an RDM for electric providers. If the
Michigan Legislature had wanted to do so, it is plain
from the language applicable to gas utilities in MCL
460.1089(6) that it could and would have made its
intention clear. Accordingly, we reverse the PSC’s deci-
sion to authorize Detroit Edison to adopt a rate decou-
pling mechanism because in doing so it exceeded its
powers.
IV. LOW-INCOME AND ENERGY EFFICIENCY FUND
We further hold that the PSC erred when it ordered
that Detroit Edison may include $39,858,000 in funding
for the LIEEF as an operation and maintenance ex-
pense. This Court ruled in Mich Consol Gas Applica-
tion, 293 Mich App at 368, that the Legislature’s
deletion of all references to the LIEEF from the Customer
Choice and Electricity Reliability Act
[
1
]
—whose now-
deleted provisions were recognized as the fund’s enabling
legislation in the first instance—indicates a legislative
intent to withdraw any obligation, or prerogative, on the
part of PSC-regulated utilities to raise money for that fund.
[Citation omitted.]
1
MCL 460.10 et seq.
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This Court further held that the PSC’s general regula-
tory powers under MCL 460.6a(2) do not include the
authority “to approve of a utility’s collecting funds from
its ratepayers in general to fund a program designed to
offer some protection against interruptions in services,
or other such relief, to distressed ratepayers” or to
administer “a program to promote energy efficiency in
general.” Id. at 369.
The PSC cites MCL 460.10s to support its argument
that the LIEEF remains a going concern. MCL 460.10s
provides:
The commission shall monitor the extent to which
federal funds are available for low-income and energy
assistance programs. If there is a reduction in the amount
of the federal funds available to residents in this state, the
commission shall conduct a hearing to determine the
amount of funds available and the need, if any, for supple-
mental funding. Upon completion of the hearing, the
commission shall prepare a report and submit it to the
governor and the legislature.
This section, added to the Customer Choice and Elec-
tricity Reliability Act by 2000 PA 141, establishes the
PSC’s duty to monitor and evaluate federal funding for
LIEEF programs, but neither creates a LIEEF nor even
refers to any such fund in existence.
Further, while appropriations for the LIEEF may
suggest “the Legislature’s intention that the LIEEF
continue to exist,” the deletion of the enabling legisla-
tion indicates an intention to remove any duty or right
of Detroit Edison to raise money for this purpose as an
operation and maintenance expense. Mich Consol Gas
Application, 293 Mich App at 368. As the Attorney
General argues, “[a] court should not interpret an
appropriations act as authorizing an administrative
agency to generate money for a fund.” This is because
2012] In re D
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“ ‘[n]o appropriation shall be a mandate to spend.’ ” Co
Rd Ass’n v Governor, 474 Mich 11, 15; 705 NW2d 680
(2005), quoting Const 1963, art 5, § 20.
Thus, to the extent that the LIEEF may exist, the
deletion of the enabling legislation from MCL 460.10d
left the PSC and PSC-regulated utilities without autho-
rization to include revenue for the LIEEF as a cost to be
borne by ratepayers, the utility users. Accordingly, we
reverse the PSC’s order insofar as it approved nearly
$40 million in LIEEF funding to come from Detroit
Edison’s customers.
2
V. TRACKING MECHANISMS
We hold that the PSC did not exceed its authority by
approving Detroit Edison’s use of tracking mechanisms
through which future rates are adjusted to take account
of actual past expenses.
At issue is the PSC’s approval of Detroit Edison’s
request to extend previously approved trackers for
storm and nonstorm restoration expenses and for a
line-clearance expense mechanism, to adopt a UETM,
and to continue a CIM.
As this Court explained in In re Application of Mich
Consol Gas Co, “[r]etroactive ratemaking in utility cases
is prohibited, absent statutory authorization.” Mich Con-
2
We note that after this Court released its decision in Mich Consol Gas
Application, the Michigan Legislature passed legislation to replace the
LIEEF with the vulnerable household warmth fund, which will assist
low-income customers with their heating bills this winter. MCL 460.9q,
as amended by 2011 PA 274. Again, our observation regarding the
Legislature’s role in making policy with respect to an RDM is equally
applicable to the LIEEF. Michigan’s Legislature is the appropriate
constitutional body to make policy, and it is has now exercised that power
in clear and unmistakable language, which thus provides the adminis-
trative agency, the PSC, the requisite authority to implement the
Legislature’s policy directive.
112 296 M
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sol Gas Application, 293 Mich App at 366, citing Mich
Bell Tel Co v Pub Serv Comm, 315 Mich 533, 547,
554–555; 24 NW2d 200 (1946). As in Mich Consol Gas
Application, 293 Mich App at 366, the Attorney General
“argues that use of the challenged tracking mechanism
runs afoul of that principle.” However, “retroactive rate-
making does not occur if only future rates are affected,
with no adjustment to previously set rates.” Id., citing
Attorney General v Pub Serv Comm, 262 Mich App 649,
655, 658; 686 NW2d 804 (2004).
This Court has approved the PSC’s decision to au-
thorize the use of a CIM, along with a tree-
trimming/forestry tracker. In re Application of Consum-
ers Energy Co for Rate Increase, 291 Mich App 106,
114-115; 804 NW2d 574 (2010). In doing so, this Court
reaffirmed the PSC’s use of “the accounting convention
whereby storm-related expenses dating from one year
[are] characterized as expenses incurred in the subse-
quent years to which they were deferred.” Id. at 114,
citing Attorney General, 262 Mich App at 658. In Mich
Consol Gas Application, 293 Mich App at 366-367, this
Court also approved a utility’s use of a UETM of the
kind at issue here. As noted in that case, this Court has
also approved a UETM in connection with another
utility in 2008,
on the ground that ‘the UETM, designed to defer...the
difference between the initially projected and the actual
uncollectible expenses for a given period to a future year,
does not involve retroactive ratemaking because the de-
ferred expense is deemed an expense of the year to which it
is deferred and, thus, is recovered on a prospective basis.’
[Id., quoting In re Application of Mich Consol Gas Co, 281
Mich App 545, 549; 761 NW2d 482 (2008).]
It is thus well settled that the PSC may authorize the
utilities it regulates to use UETMs, appellants’ re-
2012] In re D
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peated challenges notwithstanding. Accordingly, our
caselaw confirms that the PSC correctly approved De-
troit Edison’s use of tracking mechanisms through
which future rates are adjusted to take account of
actual past expenses.
VI. ADVANCED METERING INFRASTRUCTURE PROGRAM
We agree with appellants that the PSC erred by
approving funding for Detroit Edison’s advanced me-
tering infrastructure (AMI) program. The PSC de-
scribes AMI as “an information-gathering technology
that allows Detroit Edison to collect real-time energy
consumption data from its customers.” As ABATE
explains, “[t]he so-called ‘smart meters’ allow the util-
ity to remotely monitor and shut-off electricity to cus-
tomers that have these meters installed.” According to
ABATE, the intention appears to be to “allow custom-
ers to access real time energy consumption data and
make alterations in their energy consumption patterns
in order to reduce their own costs and to reduce the
demands placed upon the system at time of system
peak.” However, appellants have established that the
PSC’s decision to approve the nearly $37 million rate
increase to fund the program was unreasonable because
it was not supported by “ ‘competent, material, and
substantial evidence on the whole record.’ ” In re Con-
sumers Energy Co Application, 279 Mich App 180, 188;
756 NW2d 253 (2008) (citation omitted); see also MCL
24.306(d).
What the record does reveal is that AMI is a pilot
program that even Robert Ozar, manager of the Energy
Efficiency Section in the Electric Reliability Division of
the PSC, concedes “is as yet commercially untested and
highly capital intensive, resulting in the potential for
significant economic risk and substantial rate impact.”
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At best, the actual evidence presented by Detroit Edison
to support the rate increase was aspirational testimony
describing the AMI program in optimistic but specula-
tive terms. What the record sadly lacks is a discussion of
competing considerations regarding the program or the
necessity of the program and its costs as related to any
net benefit to customers.
3
Though Detroit Edison and
the PSC urge us to adopt an abuse-of-discretion stan-
dard of review because it characterizes AMI as “experi-
mental,” we decline to do so. While we appreciate that a
cost-benefit analysis for a pilot program may be more
difficult to establish with record evidence, this inherent
difficulty does not permit the PSC to authorize millions
of dollars in rate increases without an informed assess-
ment supported by competent, material, and substan-
tial evidence.
3
We take judicial notice that, on January 12, 2012, the PSC issued an
order opening a docket to investigate the use of smart meters by electric
utilities in Michigan. Case No. U-17000. The order states that its purpose
is to address concerns raised by customers and municipalities and to
“increas[e] the Commission’s and the public’s understanding of smart
meters....”Tothat end, the PSC ordered all regulated electric utilities
to provide much the same information we find lacking here, including
(1) The electric utility’s existing plans for the deployment of smart
meters in its service territory; (2) The estimated cost of deploying
smart meters throughout its service territory and any sources of
funding; (3) An estimate of the savings to be achieved by the
deployment of smart meters; (4) An explanation of any other
non-monetary benefits that might be realized from the deploy-
ment of smart meters; (5) Any scientific information known to the
electric utility that bears on the safety of the smart meters to be
deployed by that utility; (6) An explanation of the type of infor-
mation that will be gathered by the electric utility through the use
of smart meters; (7) An explanation of the steps that the electric
utility intends to take to safeguard the privacy of the customer
information so gathered; (8) Whether the electric utility intends to
allow customers to opt out of having a smart meter; and (9) How
the electric utility intends to recover the cost of an opt out program
if one will exist.
2012] In re D
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Moreover, we will not rubber-stamp a decision per-
mitting such a substantial expenditure—a cost to be
borne by the citizens of this state—that is not properly
supported. Were we to do so, we would abdicate our
judicial review obligations. Again, the PSC may allow
recovery of a utility’s costs only when the utility proves
that recovery of the costs is just and reasonable. On the
record before the PSC and, perforce, before us, the
PSC’s decision was erroneous. Accordingly, we remand
this matter for the PSC to conduct a full hearing on the
AMI program, during which it shall consider, among
other relevant matters, evidence related to the benefits,
usefulness, and potential burdens of the AMI, specific
information gleaned from pilot phases of the program
regarding costs, operations, and customer response and
impact, an assessment of similar programs initiated
here or in other states, risks associated with AMI, and
projected effects on rates. In other words, a real record,
with solid evidence, should support whatever decision
the PSC makes on remand.
VII. PEAK DEMAND
We hold that the PSC correctly reconsidered the
question of how to best compute peak demand and
elected to return to the system whereby peaks for all
twelve months are taken into account.
The Customer Choice and Electricity Reliability Act,
as amended by 2008 PA 286, includes the following
provision, effective January 1, 2009:
Except as otherwise provided in this subsection, the
commission shall phase in electric rates equal to the cost of
providing service to each customer class over a period of 5
years from the effective date of the amendatory act that
added this section....Thecost of providing service to each
customer class shall be based on the allocation of
116 296 M
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production-related and transmission costs based on using
the 50-25-25 method of cost allocation. The commission
may modify this method to better ensure rates are equal to
the cost of service if this method does not result in a greater
amount of production-related and transmission costs allo-
cated to primary customers. [MCL 460.11(1).]
The PSC reported that in Detroit Edison’s most
recent general rate case, all parties agreed that “the
allocation formula mandated by the Legislature should
be understood to consist of a 50% weighting of peak
demand, a 25% weighting of on-peak energy use, and a
25% weighting of total energy use.” The PSC further
noted that the statute does not specify the peak-demand
component, and that the statute has the effect of
shifting the weighting of peak demand halfway back to
where it had been before 2005. At issue is the PSC’s
decision to change the method of calculating peak
demand from “MH4CP” to a method used before,
“12CP.”
“MH4CP” stands for “multihour 4 coincident peak”
and is based on peak demands in the four months
typically bringing greatest energy usage, June through
September. The PSC described it as using “a multi-hour
approach, which looks at a seven-hour time period, from
1:00 p.m. to 8:00 p.m., on the peak day of each summer
month.” In contrast, “12CP” stands for “twelve coinci-
dent peaks”. The PSC described this as using “the peak
hour from each month of the year.”
ABATE states that the MH4CP method of calculat-
ing peak demand was in place when the Legislature
prescribed the 50-25-25 formula and that the Legisla-
ture should thus be presumed to have intended that
that component remain the operative one for that
purpose. The PSC argues that the 12CP method had
been used without incident in various earlier years and
2012] In re D
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that the absence of any such specification in MCL
460.11(1) left the peak-demand component to the PSC’s
discretion.
We agree with the PSC. “The court is not at liberty to
read into the statute provisions which the legislature
did not see fit to incorporate, nor may it enlarge the
scope of its provisions by an unwarranted interpreta-
tion of the language used.” Ford Motor Co v Unemploy-
ment Compensation Comm, 316 Mich 468, 473; 25
NW2d 586 (1947). Accordingly, the statute in question
should be read with the understanding that the Legis-
lature intended the specificity where it was specific and
the silence where it was silent. See AFSCME v Detroit,
468 Mich 388, 400; 662 NW2d 695 (2003) (“[W]e may
not read into the statute what is not within the Legis-
lature’s intent as derived from the language of the
statute.”). That the Legislature specified the 50-25-25
weighting formula in connection with what was under-
stood to be, respectively, peak demand, on-peak energy
use, and total energy use while keeping silent about
how any of those components would be determined,
should thus be taken to indicate that the Legislature
intended to prescribe the 50-25-25 formula while leav-
ing the PSC and the utilities it regulates to determine
such components as 12CP or MH4CP in the normal
course of business. Accordingly, the statute’s provision
for modification of “this method” refers to the 50-25-25
formula, and the PSC need not rely on that language to
justify its decision to change from the MH4CP to the
12CP methodology. For these reasons, we affirm the
PSC’s decision to use the 12CP component in this
instance.
Affirmed in part, reversed in part, and remanded for
further proceedings consistent with this opinion. We do
not retain jurisdiction.
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B
ECKERING
, J., concurred with S
AAD
,J.
S
HAPIRO
,P.J. (concurring in part and dissenting in
part). I concur with the majority that the Public Service
Commission’s decision to allow rate decoupling should
be reversed because the issue is plainly controlled by
the Legislature’s recent adoption of MCL 460.1089(6)
and MCL 460.1097(4). These sections set forth the
scope of the commission’s authority specifically with
respect to rate decoupling and clearly limit that author-
ity, regardless of what its scope was before their pas-
sage. Thus, the statutes determine the outcome of this
issue, and the extent of the commission’s general au-
thority as it existed before the adoption of these con-
trolling provisions is not relevant to our decision.
I dissent from the majority’s reversal of the PSC’s
approval of the advanced metering infrastructure pro-
gram. Because this is an experimental program and
because the commission’s action was not arbitrary or
capricious, we are bound to affirm. The majority states
that it “declines to adopt” the arbitrary-and-capricious
standard of review with respect to PSC authorization of
experimental programs. However, that is in fact the
standard. Residential Ratepayer Consortium v Pub Serv
Comm, 239 Mich App 1, 5; 607 NW2d 391 (1999). The
majority does not conclude, and I do not believe we can
conclude, that the PSC’s approval of the pilot program
was arbitrary and capricious in light of the testimony of
Detroit Edison’s manager of systems operations and
that of the manager of the Energy Efficiency Section of
the Electric Reliability Division of the commission. As
noted in Residential Ratepayer, experimental rates
“ ‘by their very nature...must await results on a test
basis’....” Id. (citation omitted). I believe that the
majority is putting the cart before the horse by requir-
2012] In re D
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,P.J.
ing that the commission conduct a full hearing on the
results of the experimental program before the program
has been conducted.
Moreover, it is not disputed that this issue was raised
in an earlier case involving these parties, decided in the
PSC’s favor and not pursued by appellants to a decision
by this Court.
1
While the doctrines of res judicata and
collateral estoppel do not apply “in the pure sense” in
ratemaking cases, “issues fully decided in earlier PSC
proceedings need not be ‘completely relitigated’ in later
proceedings unless the party wishing to do so estab-
lishes by new evidence or a showing of changed circum-
stances that the earlier result is unreasonable.” In re
Application of Consumers Energy Co For Rate Increase,
291 Mich App 106, 122; 804 NW2d 574 (2010), quoting
Pennwalt Corp v Pub Serv Comm, 166 Mich App 1, 9;
420 NW2d 156 (1988). As appellants identify no new
evidence or changed circumstances, I would defer to the
earlier ruling.
I concur with the majority in all other respects.
1
See Public Service Commission Case No. U-15768, January 11, 2010,
opinion and order, p 55, citing Public Service Commission Case No.
U-15244, December 23, 2008, opinion and order, appeal dismissed by
stipulation in In re Application of Detroit Edison Co to Increase Rates,
unpublished order of the Court of Appeals, entered February 22, 2010
(Docket No. 291226).
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PEOPLE v WATERSTONE
Docket Nos. 303268 and 303703. Submitted October 5, 2011, at Detroit.
Decided April 10, 2012, at 9:05 a.m.
The Attorney General charged Mary M. Waterstone and three others
in the 36th District Court with felonies for alleged misconduct
arising out of a criminal prosecution in the Wayne Circuit Court in
which Waterstone (hereafter defendant) sat as a circuit court
judge. The district court, with regard to the counts that related to
defendant exclusively (counts 12, 13, 14, and 15), which alleged
that defendant violated MCL 750.505 when she willfully neglected
her judicial duties by failing to disclose certain ex parte commu-
nications and perjured testimony, bound defendant over to the
Wayne Circuit Court on all four counts. The circuit court, Timothy
M. Kenny, J., granted defendant’s motion to quash counts 12, 13,
and 14 and denied defendant’s motion to quash count 15. The
Attorney General appealed by leave granted the part of the order
quashing counts 12, 13, and 14 (Docket No. 303268) and defendant
appealed by delayed application for leave to appeal granted the
part of the order denying her motion to quash count 15 (Docket
No. 303703). The Court of Appeals consolidated the appeals.
The Court of Appeals held:
MCL 750.505 provides for criminal penalties and punishment
when a person commits an offense that was indictable at the
common law, such as misconduct in office, absent a statutory
provision that expressly punishes the charged offense. MCL
750.478, a misdemeanor statute, is a statute that expressly pro-
vides for the punishment of misconduct in office with respect to
misconduct that entails willful neglect to perform a legal duty
(nonfeasance), which is the type of misconduct set forth in the
particular charges brought against defendant. The elements of the
charged offense are the same elements of a statutory offense, MCL
750.478. Therefore, under the plain and unambiguous language in
MCL 750.505, which was the sole statute relied on by the Attorney
General in regard to counts 12, 13, 14, and 15, MCL 750.505
cannot be invoked as a basis to try and convict defendant.
Defendant was entitled to dismissal of counts 12, 13, 14, and 15
without prejudice. The circuit court’s ruling quashing counts 12,
2012] P
EOPLE V
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121
13, and 14 is affirmed. The circuit court’s ruling allowing count 15
to proceed to trial is reversed. The matter is remanded to the
circuit court for the entry of an order fully dismissing the charges
against defendant without prejudice.
1. At common law, misconduct in office was defined as corrupt
behavior by an officer in the exercise of the duties of his or her
office or while acting under color of his or her office. An officer
could be convicted of misconduct in office (1) for committing any
act that is itself wrongful (malfeasance), (2) for committing a
lawful act in a wrongful manner (misfeasance), or (3) for failing to
perform any act that the duties of the office require of the officer
(nonfeasance).
2. An indictable common-law offense can be charged by the
prosecution pursuant to MCL 750.505 unless punishment for that
offense is otherwise expressly provided for by a statute. It is proper
to dismiss a charge brought under MCL 750.505 if the charge sets
forth all the elements of a statutory offense.
3. The crime of willful neglect of duty under MCL 750.478 is
the same as the crime of misconduct in office under the common
law in relation to a nonfeasance theory of prosecution. Defendant
was charged with acts of nonfeasance, or failure to perform a legal
duty. The Attorney General’s case against defendant, prosecuted
under MCL 750.505, actually sets forth all the elements of MCL
750.478, because defendant was charged with willfully neglecting
her judicial duties.
4. MCL 750.478, which punishes the willful neglect of duty,
necessarily encompasses the element of corrupt behavior. Corrupt
behavior is also an element of misconduct in office committed
through nonfeasance for purposes of MCL 750.505. There is no
corrupt-behavior distinction between the two statutes. With respect
to misconduct in office under a theory of nonfeasance, corrupt
behavior or intent is the equivalent of willful neglect under MCL
750.478.
5. There is no relevant difference between corrupt behavior and
willful neglect in the context of nonfeasance in relationship to a legal
duty or obligation concerning nondiscretionary or ministerial acts.
6. MCL 750.478 addresses ministerial or nondiscretionary acts
because it speaks of performing duties enjoined by law. The
charges against defendant allege a failure to perform judicial
duties that were nondiscretionary.
7. Willful neglect of duty and corrupt nonfeasance are effec-
tively one and the same. If a public officer willfully neglected to
perform a legal duty, the officer engaged in corruption or corrupt
behavior.
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8. The requisite intent for purposes of misconduct in office
under MCL 750.505 is the intent to engage in corruption or
corrupt behavior; a corrupt intent needs to be proven. Corrupt
intent can be shown when there is intentional or purposeful
misbehavior or wrongful conduct pertaining to the requirements
and duties of an office by an officer. The term “willful,” with
respect to MCL 750.478, encompasses a knowledge and purpose to
commit a wrong (a bad purpose) while committing an intentional
act of nonfeasance. Willful neglect of a duty required by law to be
performed by an officer, i.e., deliberate forbearance, necessarily
entails the intent to intentionally, knowingly, and purposely mis-
behave and engage in wrongful conduct. This intent is identical to
the corrupt intent needed to establish misconduct in office under
MCL 750.505. Therefore, there is no pertinent distinction between
MCL 500.478 and MCL 500.505 in regard to the intent element.
9. Within the context of MCL 750.478, “neglect” means a
failure to perform a legal duty, not negligence. A willful failure to
perform does not encompass negligent conduct.
Affirmed in part, reversed in part, and remanded.
T
ALBOT
, J., concurring in part and dissenting in part, stated
that the majority’s decision to remand with regard to counts 12,
13, and 14, which pertain to two ex parte communications and the
failure to inform the underlying defendants of the perjured testi-
mony, is not necessary because the charges cannot be sustained
under either MCL 750.478 or MCL 750.505 unless defendant has
breached or willfully neglected a recognized legal duty. No statu-
tory basis exists to preclude any judge from engaging in ex parte
communication; therefore, defendant’s participation in ex parte
communication cannot comprise the violation of a duty. The Code
of Judicial Conduct sets forth parameters and guidelines for a
judge’s participation in ex parte communication as a standard to
be applied, but the code does not impose a judicial duty. In the
absence of a duty, participation in ex parte communication cannot
comprise a public official’s willful neglect to perform a legal duty.
Because there was no legal duty, defendant’s failure to disclose her
participation cannot constitute a willful violation or constitute
misconduct in office. The ex parte communication engaged in by
defendant falls outside the behavior constrained by MCL 750.478
and MCL 750.505. Because defendant was already aware of the
information contained in the ex parte communications, the under-
lying defendants were not prejudiced as a result of the ex parte
communication. The Attorney General failed to identify any
specific duty on the part of a judge to inform a defendant of
perjured testimony. Absent the existence of a legal duty, any
2012] P
EOPLE V
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ATERSTONE
123
allegation regarding breach of a duty or willful neglect of a duty
cannot be sustained under either statute. Counts 12, 13, and 14
should be dismissed with prejudice. With regard to count 15, which
charged defendant with misconduct in office for willfully neglect-
ing her judicial duties by allowing perjured testimony to be heard
by the jury, this count encompasses a clearly recognized legal duty,
because the commission of perjury in court proceedings is prohib-
ited by MCL 750.422 and the action required of a trial judge when
perjury occurs is provided in MCL 750.426. A criminal conviction
obtained through the knowing use of perjured testimony is viola-
tive of a defendant’s due process rights under the Fourteenth
Amendment. Because MCL 750.478 and MCL 750.505 both rely on
the same duty for trial judges, the distinction between the felony
of misconduct in office, MCL 750.505, and the misdemeanor of
willful neglect of duty, MCL 750.478, rests on the existence of
criminal intent. MCL 750.478 does not require a showing of
criminal intent while MCL 750.505 does. MCL 750.478 does not
constitute a separate codification of the offense of misconduct in
office committed through nonfeasance and, therefore, does not
preclude the instant charge in count 15 of misconduct in office
based on nonfeasance under MCL 750.505. The trial court prop-
erly allowed count 15 to proceed to trial and correctly quashed
counts 12, 13, and 14; however, such dismissal should have been
with prejudice.
1. C
RIMINAL
L
AW —
P
UBLIC
O
FFICERS —
M
ISCONDUCT IN
O
FFICE —
N
ONFEASANCE
.
The statute regarding willful neglect of duty by a public officer
expressly provides for the punishment of misconduct in office with
respect to misconduct that entails willful neglect to perform a legal
duty (nonfeasance) (MCL 750.478).
2. P
UBLIC
O
FFICERS —
M
ISCONDUCT IN
O
FFICE —
C
OMMON
-L
AW
O
FFENSES
.
Misconduct in office was defined under the common law as corrupt
behavior by an officer in the exercise of the duties of his or her
office or while acting under color of his or her office; an officer
could be convicted for committing any act that is itself wrongful
(malfeasance), for committing a lawful act in a wrongful manner
(misfeasance), or for failing to perform any act that the duties of
the office require of the officer (nonfeasance).
3. P
UBLIC
O
FFICERS —
W
ILLFUL
N
EGLECT OF
D
UTY —
M
ISCONDUCT IN
O
FFICE —
N
ONFEASANCE
.
The crime of willful neglect of duty under MCL 750.478 is the same
as the crime of misconduct in office under the common law in
relation to a nonfeasance theory of prosecution.
124 296 M
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4. P
UBLIC
O
FFICERS —
W
ILLFUL
N
EGLECT OF
D
UTY —
M
ISCONDUCT IN
O
FFICE —
C
ORRUPT
B
EHAVIOR —
N
ONFEASANCE
.
MCL 750.478, which punishes a public officer’s willful neglect to
perform a legal duty, necessarily encompasses the element of
corrupt behavior, which is also an element of the common-law
offense of misconduct in office committed through nonfeasance for
purposes of a prosecution under MCL 750.505; there is no corrupt-
behavior distinction between the two statutes.
5. P
UBLIC
O
FFICERS —
C
ORRUPT
B
EHAVIOR —
W
ILLFUL
N
EGLECT —
N
ONFEASANCE —
M
INISTERIAL
A
CTS
.
There is no relevant difference between corrupt behavior and willful
neglect in the context of nonfeasance in relationship to a legal duty
or obligation concerning nondiscretionary or ministerial acts of a
public officer.
6. P
UBLIC
O
FFICERS —
W
ILLFUL
N
EGLECT OF
D
UTY —
C
ORRUPT
N
ONFEASANCE
.
Willful neglect of duty and corrupt nonfeasance are effectively the
same; if a public officer willfully neglects to perform a legal duty
the officer has engaged in corruption or corrupt behavior.
7. P
UBLIC
O
FFICERS —
M
ISCONDUCT IN
O
FFICE —
I
NTENT —
C
ORRUPT
I
NTENT
.
The requisite intent for a charge of misconduct in office under the
common law is the intent to engage in corruption or corrupt
behavior; corrupt intent can be shown when there is intentional or
purposeful misbehavior or wrongful conduct pertaining to the
requirements and duties of a public office by an officer (MCL
750.505).
8. P
UBLIC
O
FFICERS —
W
ILLFUL
N
EGLECT OF
D
UTY —
I
NTENT
.
The term “willful” in the statute regarding willful neglect of duty by
a public officer encompasses a knowledge and purpose to commit a
wrong while committing an intentional act of nonfeasance; a
willful neglect of a duty required by law to be performed by an
officer, i.e., deliberate forbearance, necessarily entails the intent to
intentionally, knowingly, and purposely misbehave and engage in
wrongful conduct; this intent is identical to the corrupt intent
needed to establish misconduct in office under the common law
(MCL 750.478; MCL 750.505).
9. P
UBLIC
O
FFICERS —
W
ILLFUL
N
EGLECT OF
D
UTY —
W
ORDS AND
P
HRASES —
N
EGLECT
.
The term “neglect,” within the context of the statute regarding
willful neglect of duty by a public officer, means a failure to
2012] P
EOPLE V
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ATERSTONE
125
perform a legal duty, not negligence; a willful failure to perform
does not encompass negligent conduct (MCL 750.478).
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Anica Letica, Assistant Attorney General,
for the people.
Gerald K. Evelyn, Juan A. Mateo, and Jay Y. Mandel
for defendant.
Before: M
URPHY
, C.J., and T
ALBOT
and M
URRAY
,JJ.
M
URPHY
, C.J. In these consolidated appeals, the
Michigan Attorney General (AG) charged defendant
with four counts of felony misconduct in office under
MCL 750.505 arising out of a criminal prosecution in
which defendant, sitting as a circuit court judge, is
alleged to have willfully neglected her judicial duties by
failing to disclose certain communications and perjured
testimony. MCL 750.505 provides for criminal penalties
and punishment when a person commits an offense that
was indictable at the common law, such as misconduct
in office, absent a statutory provision that expressly
punishes the charged offense. We find that MCL
750.478, a misdemeanor statute, constitutes a statute
that expressly provides for the punishment of miscon-
duct in office with respect to misconduct that entails
willful neglect to perform a legal duty (nonfeasance),
which is the type of misconduct set forth in the particu-
lar charges brought by the AG against defendant. The
elements of the charged offense are the same elements
of a statutory offense, MCL 750.478. Therefore, under
the plain and unambiguous language in MCL 750.505,
which is the sole statute relied on by the AG in regard
to the four counts at issue, MCL 750.505 cannot be
invoked as a basis to try and convict defendant. Defen-
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dant is entitled to dismissal of the charges without
prejudice. Accordingly, we affirm the circuit court’s
ruling quashing counts 12, 13, and 14 of the complaint,
albeit for different reasons; however, we reverse the
court’s ruling allowing count 15 to proceed to trial.
1
I. FACTUAL AND PROCEDURAL HISTORY
The underlying criminal case presided over by defen-
dant concerned drug charges brought by the Wayne
County Prosecutor’s Office against Alexander Aceval
and Ricardo Pena. The facts in that prosecution with
respect to Aceval’s alleged criminal activities, along
with the facts regarding our defendant’s behavior on
the bench, were set forth as follows in People v Aceval,
282 Mich App 379, 382-385; 764 NW2d 285 (2009):
This matter arises out of an illegal drug transaction. On
March 11, 2005, police officers Robert McArthur, Scott
Rechtzigel, and others, acting on information obtained
from Chad William Povish, a confidential informant (CI),
were on surveillance at J Dubs bar in Riverview, Michigan.
Povish previously told police officers that [Aceval] had
offered him $5,000 to transport narcotics from Detroit to
Chicago. That day, the officers observed [Aceval], Povish,
and Bryan Hill enter the bar. [Aceval] arrived in his own
vehicle, while Povish and Hill arrived in another. Eventu-
ally the three individuals left the bar and loaded two black
duffel bags into the trunk of Povish’s car. Povish and Hill
then drove away, while [Aceval] drove away in his own
vehicle. Subsequently, the officers stopped both vehicles
and found packages of cocaine in the duffel bags located in
the trunk of Povish’s car. [Aceval] was subsequently ar-
rested and charged with possession with intent to deliver
1,000 or more grams of cocaine, MCL 333.7401(2)(a)(i), and
conspiracy to commit that offense, MCL 750.157a.
1
Counts 12 through 15 were the only counts that pertained to
defendant.
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Before trial, [Aceval] moved for the production of the
identity of the CI. During an evidentiary hearing on June
17, 2005, [Aceval] requested that the trial court, Judge
Mary Waterstone, conduct an in camera interview of
McArthur, the officer in charge of the investigation. The
judge agreed, and in the conference it was revealed that
McArthur and Rechtzigel knew that Povish was the CI.
Further, the officer told the trial court that Povish was paid
$100 for his services, plus “he was going to get ten percent,
whatever we got.” The conference was sealed and the trial
court denied [Aceval’s] motion.
Subsequently, [Aceval] filed a motion to suppress cer-
tain evidence. During a hearing on September 6, 2005,
Rechtzigel lied when he testified, in response to defense
counsel’s questioning, that he had never had any contact
with Povish before March 11, 2005. The prosecutor did not
object. On September 8, 2005, in another sealed in camera
conference between the judge and the prosecutor, the
prosecutor admitted that she knew that Rechtzigel had
knowingly committed perjury but stated that she “let the
perjury happen” because “I thought an objection would
telegraph who the CI is.” In response, the judge stated that
she thought “it was appropriate for [the witness] to do
that.” Further, the court added, “I think the CI is in grave
danger.... I’m very concerned about his identity being
found out.”
The matter went to trial on September 12, 2005. At
trial, the prosecutor and the judge continued their efforts
to protect the CI’s identity. Povish testified that he had
never met Rechtzigel or McArthur before they stopped his
vehicle on the day that he received the duffel bags and that
neither had offered him a deal of any kind. He further
testified that he did not know what was in the duffel bags
and that, until trial, he believed that he could be charged
with a crime for his role in the incident. The prosecutor
made no objection to this testimony. The prosecutor and
the judge again indicated, in another sealed ex parte bench
conference on September 19, 2005, that they knew Povish
had perjured himself in order to conceal his identity. At the
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close of the trial, the jury was unable to reach a verdict and,
thus, the trial court declared a mistrial.
On December 7, 2005, attorney Warren E. Harris filed
an appearance to represent [Aceval] in his retrial, again in
Judge Waterstone’s court. On March 6, 2006, attorney
David L. Moffitt petitioned for leave to file a limited
appearance solely for purposes of filing certain motions by
[Aceval], which the trial court granted on March 17, 2006.
Subsequently, at a hearing on March 28, 2006, [Aceval]
indicated that he had become aware that the CI was Povish
and argued that the case should be dismissed because of
the trial court’s and the prosecutor’s complicit misconduct
in permitting perjured testimony. [Aceval] also requested
that both the prosecuting attorney and Judge Waterstone
disqualify themselves from the case. Judge Waterstone
disqualified herself on the record. The following day, Judge
Vera Massey-Jones, the successor judge, entered an order
unsealing the three in camera interviews.
***
[Aceval’s] retrial began on June 1, 2006, with Harris
acting as counsel. Before trial, [Aceval] allegedly contacted
a prosecution witness and directed him to provide false
testimony in support of the defense. After the prosecution
discovered this information, it informed the trial court and
defense counsel. Subsequently, the witness testified that
[Aceval] had asked him to lie and he purged [sic] his
testimony. Thereafter, [Aceval] pleaded guilty to the charge
of possession with intent to distribute more than 1,000
grams of cocaine.
This Court affirmed Aceval’s plea-based conviction. Id.
at 392-393.
2
Subsequently, after a series of issues and problems
2
Aceval was tried jointly, before separate juries, with codefendant
Pena. Pena’s involvement in the narcotics transactions is unclear from
the record and the discussion in Aceval; however, he eventually pleaded
guilty of conspiracy to deliver more than 1,000 grams of a controlled
substance.
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were resolved related to the proper prosecuting entity
for purposes of the case at bar, see People v Waterstone,
287 Mich App 368; 789 NW2d 669 (2010), rev’d and
remanded to 36th District Court 486 Mich 942 (2010),
the AG pursued charges against defendant. The AG had
also brought charges against the prosecutor and the two
police officers involved in the concealment and perjury
alluded to in Aceval. The charges brought against
defendant were contained in counts 12 through 15 of
the AG’s complaint, which provided:
COUNT 12 DEFENDANT(S) (04): COMMON
LAW OFFENSES
did commit Misconduct in Office, an indictable offense at
common law, by willfully neglecting her judicial duties by
permitting or considering an improper ex parte communica-
tion on September 8, 2005 and concealing that communica-
tion from the defendants in the case of People of the State of
Michigan v. Alexander Aceval and/or People of the State of
Michigan v. Ricardo Pena; contrary to MCL 750.505....
COUNT 13 DEFENDANT(S) (04): COMMON
LAW OFFENSES
did commit Misconduct in Office, an indictable offense at
common law, by willfully neglecting her judicial duties by
permitting or considering an improper ex parte communi-
cation on September 19, 2005 and concealing that commu-
nication from the defendants in the case of People of the
State of Michigan v. Alexander Aceval and/or People of the
State of Michigan v. Ricardo Pena; contrary to MCL
750.505....
COUNT 14 DEFENDANT(S) (04): COMMON
LAW OFFENSES
did commit Misconduct in Office, an indictable offense at
common law, by willfully neglecting her judicial duties by
concealing perjured testimony from the defendants in the
case of People of the State of Michigan v. Alexander Aceval
and/or People of the State of Michigan v. Ricardo Pena by
her rulings and orders; contrary to MCL 750.505....
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COUNT 15 DEFENDANT(S) (04): COMMON
LAW OFFENSES
did commit Misconduct in Office, an indictable offense at
common law, by willfully neglecting her judicial duties by
allowing perjured testimony [to] be heard by the jury in the
case of People of the State of Michigan v. Alexander Aceval
and/or People of the State of Michigan v. Ricardo Pena;
contrary to MCL 750.505....
The district court bound defendant over on all four
counts of misconduct in office, but the circuit court
quashed counts 12 through 14, while allowing the AG to
go to trial solely on count 15. In Docket No. 303268, the
AG appeals by leave granted the circuit court’s order
quashing the first three counts. In Docket No. 303703,
defendant appeals by delayed application for leave to
appeal granted the circuit court’s order permitting the
AG to pursue the final count. It is unnecessary for us to
review the reasoning behind the rulings of the district
and the circuit court, given that we are resolving these
consolidated appeals on an issue raised sua sponte by us
at oral argument, which was not addressed nor argued
below. We ordered the parties to submit supplemental
briefs to address, in part, whether MCL 750.478 pre-
cludes the AG’s prosecution of defendant under MCL
750.505. Briefs were submitted, and we now proceed to
rule.
II. ANALYSIS
A. STANDARDS OF REVIEW
“This Court reviews for an abuse of discretion both a
district court’s decision to bind a defendant over for
trial and a trial court’s decision on a motion to quash an
information.” People v Fletcher, 260 Mich App 531,
551-552; 679 NW2d 127 (2004). A trial court abuses its
discretion when its decision falls outside the range of
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reasonable and principled outcomes. People v Yost, 278
Mich App 341, 353; 749 NW2d 753 (2008). A trial court
necessarily abuses its discretion when it makes an error
of law. People v Giovannini, 271 Mich App 409, 417; 722
NW2d 237 (2006). This Court reviews de novo questions
of statutory construction. People v Flick, 487 Mich 1,
8-9; 790 NW2d 295 (2010).
B. PRINCIPLES OF STATUTORY INTERPRETATION
In Flick, the Michigan Supreme Court recited the
well-established principles that govern our interpreta-
tion of a statute:
The overriding goal of statutory interpretation is to
ascertain and give effect to the Legislature’s intent. The
touchstone of legislative intent is the statute’s language.
The words of a statute provide the most reliable indicator
of the Legislature’s intent and should be interpreted on the
basis of their ordinary meaning and the overall context in
which they are used. An undefined statutory word or
phrase must be accorded its plain and ordinary meaning,
unless the undefined word or phrase is a “term of art” with
a unique legal meaning. [Id. at 10-11 (citations and some
quotation marks omitted).]
With respect to statutory interpretation of provisions
contained within the Penal Code, MCL 750.2 provides:
The rule that a penal statute is to be strictly construed
shall not apply to this act or any of the provisions thereof.
All provisions of this act shall be construed according to the
fair import of their terms, to promote justice and to effect
the objects of the law.
C. DISCUSSION
Counts 12 through 15 have one important feature in
common; they all charge defendant with “willfully
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neglecting her judicial duties.” The AG brought the
charges pursuant to MCL 750.505, which provides:
Any person who shall commit any indictable offense at
the common law, for the punishment of which no provision
is expressly made by any statute of this state, shall be
guilty of a felony, punishable by imprisonment in the state
prison not more than 5 years or by a fine of not more than
$10,000.00, or both in the discretion of the court.
“The offense of misconduct in office was an indict-
able offense at common law.” People v Coutu (On
Remand), 235 Mich App 695, 705; 599 NW2d 556
(1999). In People v Perkins, 468 Mich 448, 456; 662
NW2d 727 (2003), our Supreme Court observed:
At common law, misconduct in office was defined as
“corrupt behavior by an officer in the exercise of the duties
of his office or while acting under color of his office.” People
v Coutu, 459 Mich 348, 354; 589 NW2d 458 (1999)...,
quoting Perkins & Boyce, Criminal Law (3d ed), p 543. An
officer could be convicted of misconduct in office (1) for
committing any act which is itself wrongful, malfeasance,
(2) for committing a lawful act in a wrongful manner,
misfeasance, or (3) for failing to perform any act that the
duties of the office require of the officer, nonfeasance.
Perkins, p 540.
The AG has been adamant throughout the proceed-
ings that all four charges are predicated on nonfeasance
and nonfeasance alone, and the counts themselves are
drafted in terms of willful neglect of duty.
3
One of the
3
At first glance, counts 12 and 13 appear to concern acts of misfeasance
or malfeasance, where they address ex parte communications permitted
or considered by defendant, but the language regarding these communi-
cations is directly tied to the concealment of the communications, given
that defendant failed to share the communicated information–nonfea-
sance–with Aceval and Pena. It is the concealment aspect of defendant’s
actions that drives counts 12 and 13. Had defendant engaged in the ex
parte communications and then informed Aceval and Pena about the
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questions posed in this appeal, and the only one that
need be addressed given our view on the issue, is
whether MCL 750.478 precludes a prosecution by the
AG against defendant under MCL 750.505. An indict-
able common-law offense can be charged by the pros-
ecution pursuant to MCL 750.505 unless punishment
for that offense is otherwise expressly provided for by
statute. It is proper to dismiss a charge brought under
MCL 750.505 if the charge “ ‘sets forth all the elements
of [a] statutory offense’....” People v Thomas, 438
Mich 448, 453; 475 NW2d 288 (1991) (citation omitted).
In Thomas, the defendant was charged, in part, with
the common-law felony of obstruction of justice under
MCL 750.505 for having prepared a false police incident
report. The Court addressed the argument whether the
offense should have been dismissed in light of MCL
752.11, which makes it a misdemeanor for a public
official to willfully and knowingly fail to uphold or
enforce the law with the result that a person’s legal
rights are denied. Thomas, 438 Mich at 453. The Court
found that MCL 752.11 concerned omissions of duty,
i.e., nonfeasance, and failed to include affirmative acts
and commissions, i.e., misfeasance or malfeasance;
therefore, because the conduct at issue, falsifying a
police report, was an act of commission, it exceeded the
strictures of MCL 752.11. Thomas, 438 Mich at 454-
455. Accordingly, the prosecutor was not prohibited
from charging the defendant with common-law obstruc-
tion of justice under MCL 750.505. Id. at 455.
4
communications, there would have been no basis for a criminal prosecu-
tion. Thus, the overall nature of counts 12 and 13 relates to nonfeasance,
which is exactly what the AG claims.
4
We also note the language in Coutu, 235 Mich App at 705, wherein the
Court stated that the prosecution properly charged the defendants under
MCL 750.505 for misconduct in office, “assuming of course that the
conduct charged...wasnotmore properly charged pursuant to another
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MCL 750.478, the statute at issue here, addresses the
willful neglect of duty by a public officer and provides as
follows:
When any duty is or shall be enjoined by law upon any
public officer, or upon any person holding any public trust
or employment, every willful neglect to perform such duty,
where no special provision shall have been made for the
punishment of such delinquency, constitutes a misde-
meanor punishable by imprisonment for not more than 1
year or a fine of not more than $1,000.00. [Emphasis
added.]
In People v Bommarito, 33 Mich App 385; 190 NW2d
359 (1971), the defendant, a former county undersheriff,
was charged with four counts of violating MCL 750.478
relative to various failures to enforce the law—
nonfeasance. This Court held that “[f]ailure to enforce
the law or prevent a violation of which he is cognizant
constitutes a breach of this duty,” and “[s]uch a breach
of duty is a wilful neglect of duty in violation of [MCL
750.478].” Id. at 388-389. In People v Medlyn, 215 Mich
App 338; 544 NW2d 759 (1996), this Court also ad-
dressed a prosecution under MCL 750.478, wherein the
defendant, a deputy sheriff, was convicted of willful
neglect of duty for his failure to report a physical and
sexual assault against a prisoner in the county jail after
the prisoner had informed the defendant of the assault;
the prisoner had been repeatedly beaten and raped on a
daily basis after informing the defendant before the
prisoner was transferred to a new ward. The focus of
statute....”InPeople v Davis, 408 Mich 255, 275; 290 NW2d 366 (1980)
(opinion by C
OLEMAN
, C.J.), the Court observed, “[S]ince the Legislature
has expressly made a provision for the punishment of an officer who
receives a promise or any valuable thing as consideration for delaying an
arrest [MCL 750.123], this conduct is not punishable under MCL
750.505...because it is not an offense ‘for the punishment of which no
provision is expressly made by any statute of this state’.”
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the appeal regarded the meaning of “willful” neglect,
which we shall address in detail hereinafter, with this
Court initially noting that there was no dispute that the
defendant “had a duty to report any allegations made
by inmates to him....”Id. at 341. The Court affirmed
the defendant’s conviction under MCL 750.478. Id. at
346.
Bommarito and Medlyn make it abundantly clear,
and it is readily evident from the plain and unambigu-
ous language of the statute, that MCL 750.478 is a
statutory provision that makes it a violation of law for
a public officer to willfully neglect to perform a legal
duty; it squarely concerns omissions of duty. Stated
otherwise, MCL 750.478 criminally punishes a public
officer for “failing to perform any act that the duties of
the office require of the officer, nonfeasance.” Perkins,
468 Mich at 456. It thus appears that the crime of
willful neglect of duty under MCL 750.478 is the same
as the crime of misconduct in office under the common
law in relationship to a nonfeasance theory of prosecu-
tion. Unlike the situation in Thomas, 438 Mich 448,
where the defendant was charged with committing acts
of misfeasance or malfeasance and a statute concerning
nonfeasance was examined, defendant here was
charged with acts of nonfeasance, or failure to perform
a legal duty, and MCL 750.478 encompasses the failure
to perform a legal duty, nonfeasance. The AG’s case
against defendant, prosecuted under MCL 750.505,
actually sets forth all the elements of MCL 750.478
because the AG charged defendant with “willfully ne-
glecting her judicial duties.”
We next address the elements of corrupt behavior or
intent and willful neglect in relationship to MCL
750.505 and MCL 750.478. We find that the misde-
meanor statute, MCL 750.478, which punishes the
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willful neglect of duty, necessarily encompasses the
element of corrupt behavior and that corrupt behavior
is also an element of misconduct in office committed
through nonfeasance for purposes of MCL 750.505.
There is no corrupt-behavior distinction between the
two statutes. Even were we to assume that corrupt
behavior is an element relative to MCL 750.505 and not
MCL 750.478, the misdemeanor statute would control
because of the manner in which the AG framed the
counts and pursued the prosecution, which was focused
simply on willful neglect of judicial duties. In other
words, the charges, as presented, fall directly within the
parameters of MCL 750.478. More importantly, how-
ever, we find that, with respect to misconduct in office
under a theory of nonfeasance, corrupt behavior or
intent is the equivalent of willful neglect under MCL
750.478.
In discussing misconduct in office as prosecuted
under MCL 750.505, this Court in People v Milton, 257
Mich App 467, 472; 668 NW2d 387 (2003), noted that
the “defendant’s misconduct was intentional, i.e., re-
sulted from a corrupt intent....”InCoutu, 235 Mich
App at 706, after indicating that the word “corruption”
means a “ ‘sense of depravity, perversion or taint,’ ” and
following a dictionary exploration of each of those
terms, this Court concluded, pursuant to the defini-
tions, that “a corrupt intent can be shown where there
is intentional or purposeful misbehavior or wrongful
conduct pertaining to the requirements and duties of
office by an officer.”
5
The Court noted that it is deemed
“corrupt” for a public officer to purposely commit a
violation of any duties associated with the officer’s job
5
Misconduct in office “does not encompass erroneous acts done by
officers in good faith or honest mistakes committed by an officer in the
discharge of his duties.” Id.
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or office. Id. at 706-707; see also People v Hardrick, 258
Mich App 238, 247; 671 NW2d 548 (2003). The
Hardrick panel found that the “defendant acted with a
corrupt purpose when he made deliberate and knowing
use of [an] advance copy of [a] test to assist him in
taking the sergeant’s examination and thereby improp-
erly obtain[ed] a promotion.” Id.
The cases in the preceding paragraph equated cor-
rupt behavior with intentional, purposeful, deliberate,
and knowing wrongful behavior.
In Medlyn, 215 Mich App at 345, this Court con-
strued MCL 750.478, and more particularly the words
“willful neglect,” finding that “[t]he trial court properly
instructed the jury that a ‘bad purpose’ was essential
for criminal liability and that the ‘bad purpose’ element
could be met upon a mere showing that defendant failed
to do what he was obligated to do.” When utilized in a
criminal context, the term “willfully” has been vari-
ously defined in the caselaw as meaning and embodying
evil intent, guilty knowledge, or a bad purpose, and it
indicates a purpose and knowledge to do wrong. People
v Greene, 255 Mich App 426, 442; 661 NW2d 616 (2003);
People v Lockett (On Rehearing), 253 Mich App 651,
654; 659 NW2d 681 (2002); Medlyn, 215 Mich App at
344-345; People v Culp, 108 Mich App 452, 456; 310
NW2d 421 (1981); People v Lerma, 66 Mich App 566,
570; 239 NW2d 424 (1976). Of course, “willful” also
describes conduct that is intentional, purposeful, volun-
tary, deliberate, and knowing. Jennings v Southwood,
446 Mich 125, 140; 521 NW2d 230 (1994).
On consideration of the authorities cited above, we
see no relevant difference between corrupt behavior
and willful neglect in the context of nonfeasance in
relationship to a legal duty or obligation concerning
nondiscretionary or ministerial acts. We find further
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support for this proposition in the following passages
from Perkins & Boyce, Criminal Law (3d ed), p 541-542,
546-547, which is a treatise that was cited in Perkins,
468 Mich at 456, and Coutu, 235 Mich App at 705-706:
[T]here should be no conviction of [misconduct in offi-
ce]...iftheabsence of any element of corruption has been
clearly established, unless the prosecution is under a
statute substantially different from the common law in this
respect....
***
It is possible, of course, for legislation to go beyond the
common law and to include within the area of punishability
certain acts which were not previously criminal. If the
statute provides that an intentional violation of its provi-
sions constitutes guilt, no more is required, but this is not
truly an enlargement of the offense because it is corrupt for
an officer purposely to violate the duties of his office....
***
. . . Any intentional and deliberate refusal by an officer
to do what is unconditionally required of him by the
obligations of his office is corrupt as the word is used in this
connection because he is not permitted to set up his own
judgment in opposition to the positive requirement of the
law. Since this is corrupt misbehavior by an officer in the
exercise of the duties of his office there is no reason to
require more for conviction. On the other hand, when the
officer has discretion in regard to a certain matter, his
intentional and deliberate refusal to act indicates no more,
on its face, than that this represents his judgment as to
what will best serve the public interest. Even in such a case
the officer will be guilty of misconduct in office if his
forbearance results from corruption rather than from the
exercise of official discretion, but it will always be neces-
sary to show something more than the intentional and
deliberate forbearance to do a discretionary act.
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MCL 750.478 addresses ministerial or nondiscretion-
ary acts, because it speaks of performing duties “en-
joined by law.” And the charges brought against defen-
dant alleged a failure to perform judicial duties that
were nondiscretionary. It is not the AG’s position that
defendant had discretion in deciding whether to conceal
or disclose information. Indeed, the AG states in his
supplemental brief that “[f]or non-discretionary acts, as
here, the refusal to perform a required duty is corrup-
tion per se....”
In Perkins, 468 Mich at 456, quoting People v Coutu,
459 Mich 348, 354; 589 NW2d 458 (1999), the Court
first indicated that misconduct in office, in general,
encompassed “ ‘corrupt behavior,’ ” but it then pro-
ceeded to make the following statement, which has been
the bane of the parties’ analysis:
[C]ommitting nonfeasance or acts of malfeasance or
misfeasance are not enough to constitute misconduct in
office. In the case of malfeasance and misfeasance, the
offender also must act with a corrupt intent, i.e., with a
“sense of depravity, perversion or taint.” In the case of
nonfeasance, an offender must willfully neglect to perform
the duties of his office. Perkins [& Boyce], p 547. [Id.
(citations omitted).]
In our view, reading the Supreme Court’s words in
context, the Court was not intending to indicate that
corrupt behavior played no role in regard to nonfea-
sance, especially given its initial proclamation that
misconduct in office “was defined as ‘corrupt behav-
ior by an officer’.” Perkins, 468 Mich at 456, quoting
Coutu, 459 Mich at 354. Rather, the Court was
implicitly equating willful neglect with corrupt be-
havior. This becomes crystal clear when one looks at
the discussion in Perkins & Boyce, p 547, which was
the specific citation given by the Supreme Court in
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support of its statement that nonfeasance entails a
willful neglect to perform the duties of office. Perkins,
468 Mich at 456. On pages 547-548 of Perkins &
Boyce, the authors state:
Confusion at this point has led to the occasional sugges-
tion that the mental element required for the crime of
misconduct in office is “wilfulness” if the act is one of
omission and “corruption” if it is an act of commission
[misfeasance or malfeasance]. “Wilfulness,” as so used, is
intended to mean deliberate forbearance, and to repeat a
previous suggestion: what should be said is that the wilful
refusal of an officer to perform a ministerial act required by
law constitutes corruption. [Emphasis added.]
This proposition is entirely consistent with our dis-
cussion of the Michigan authorities set forth earlier, and
it results in an interpretation of Perkins, 468 Mich 448,
that is consistent with the mass of cases that include a
corruption element with respect to all aspects of mis-
conduct in office, including misconduct by nonfeasance.
There is no need to engage in a dicta analysis. Willful
neglect of duty and corrupt nonfeasance are effectively
one and the same for our purposes. If a public officer
willfully neglects to perform a legal duty, he or she
engaged in corruption or corrupt behavior.
The dissent argues that the felony statute relative to
misconduct in office includes the element of criminal
intent, while the misdemeanor statute does not require
the prosecution to establish criminal intent. The requi-
site “intent” for purposes of misconduct in office under
MCL 750.505 is the intent to engage in corruption or
corrupt behavior; a corrupt intent needs to be proven.
Perkins, 468 Mich at 456; Hardrick, 258 Mich App at
244, 246-247; Milton, 257 Mich App at 471-472; People
v Carlin (On Remand), 239 Mich App 49, 64; 607 NW2d
733 (1999); Coutu, 235 Mich App at 706 (misconduct in
office requires “a showing of corrupt intent”). As indi-
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cated earlier, corrupt intent “can be shown where there
is intentional or purposeful misbehavior or wrongful
conduct pertaining to the requirements and duties of
office by an officer.” Id. “ ‘It is corrupt for an officer
purposely to violate the duties of his office.’ ” Id. at
706-707 (citation omitted). And, with respect to the
misdemeanor statute, MCL 750.478, the term “willful”
encompasses a knowledge and purpose to commit a
wrong (“bad purpose”), Lockett, 253 Mich App at 654-
655; Medlyn, 215 Mich App at 344-345, while commit-
ting an intentional act of nonfeasance. Willful neglect of
a duty required by law to be performed by an officer, i.e.,
deliberate forbearance, necessarily entails the intent to
intentionally, knowingly, and purposely misbehave and
engage in wrongful conduct. This intent is identical to
the corrupt intent needed to establish misconduct in
office under MCL 750.505; therefore, there is no perti-
nent distinction between the statutes in regard to the
“intent” element.
The dissent complains that our analysis results in an
unjustifiable felony-misdemeanor distinction between
malfeasance and nonfeasance for behavior that may be
equally egregious. First, such an argument bears on a
matter of policy with respect to punishment and is thus
within the exclusive domain of the Legislature. Second,
our Supreme Court in Thomas, 438 Mich 448, was more
than prepared to make a similar distinction had the
alleged conduct actually constituted nonfeasance as
governed by the relevant misdemeanor statute.
The AG posits that the validity of a charge brought
under MCL 750.505 for misconduct in office predicated
on nonfeasance is well established by all the cases and
to rule otherwise would conflict with precedent. The
gaping hole in this argument is that none of the cases
confronted the issue regarding the interplay between
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MCL 750.478 and MCL 750.505; the matter has never
been addressed in the caselaw.
6
The AG also argues that mere negligence is suffi-
cient to prove willful neglect under MCL 750.478,
thereby distinguishing that misdemeanor nonfea-
sance offense from a felony nonfeasance offense un-
der MCL 750.505, which requires greater culpability
by insisting on proof of corrupt behavior or an
intentional failure to perform. The clear language of
MCL 750.478 precludes any interpretation suggest-
ing that negligence would suffice. As read in context
in MCL 750.478, “neglect” means a failure to perform
a legal duty, not negligence. A willful failure to
perform does not encompass negligent conduct. One
cannot negligently, willfully fail to perform.
6
We note that while MCL 750.478 governs as between it and MCL
750.505 under the charges presented here, there may be an argument
that MCL 752.11, which was addressed in Thomas, 438 Mich 448,
controls over MCL 750.478. As indicated above, MCL 750.478 addresses
willful neglect in the performance of a duty, “where no special provision
shall have been made for the punishment of such delinquency....”
Clearly, MCL 750.505 is not a “special provision,” but rather a broad
common-law catchall provision. MCL 752.11, however, provides:
Any public official, appointed or elected, who is responsible for
enforcing or upholding any law of this state and who wilfully and
knowingly fails to uphold or enforce the law with the result that
any person’s legal rights are denied is guilty of a misdemeanor.
There is no need to reach the issue whether any potential misde-
meanor prosecution, in whole or in part based on the framing of the
charges, would need to be pursued under MCL 752.11 instead of MCL
750.478. Furthermore, assuming that MCL 752.11 is the controlling
statute, the same analysis and reasoning that support our finding that
MCL 750.478 governs over MCL 750.505 might perhaps support a
finding that MCL 752.11 controls over MCL 750.505. See Thomas, 438
Mich 448. Not having surveyed the entire Penal Code in all its
vastness, it is conceivable that the AG’s charges fit within a yet more
narrowly tailored statute. That said, the bottom line is that the
instant prosecution, as currently charged, cannot be maintained
under MCL 750.505.
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Finally, and as somewhat alluded to in footnote 6 of
this opinion, we find it extremely important to empha-
size that while we conclude that the AG’s case against
defendant cannot be maintained under MCL 750.505 as
currently charged, we are not substantively ruling that
there are no legal problems or potential obstacles to the
AG pursuing misdemeanor charges under MCL
750.478, should the AG decide to renew charges against
defendant. For example, whether the ex parte commu-
nications can be the basis for a criminal conviction
under MCL 750.478 is not expressly before us, because
charges under that statute have not been brought.
Similarly, whether a violation of the Code of Judicial
Conduct can form the basis for criminal charges is not
presently before the Court. But see Clayton v Willis, 489
So 2d 813, 815 (Fla App, 1986); People v La Carrubba,
46 NY2d 658, 663-664; 416 NYS2d 203; 389 NE2d 799
(1979).
III. CONCLUSION
We hold that MCL 750.478 constitutes a statute that
expressly provides for the punishment of misconduct in
office with respect to misconduct that entails willful
neglect to perform a legal duty (nonfeasance), which is
the type of misconduct set forth in the particular
charges brought by the AG against defendant. The
elements of the charged offense are the elements of a
statutory offense, MCL 750.478. Therefore, under the
plain and unambiguous language in MCL 750.505,
which is the statute relied on by the AG in regard to the
four counts at issue, MCL 750.505 cannot be invoked as
a basis to try and convict defendant. Defendant is
entitled to dismissal of the charges without prejudice.
Accordingly, we affirm the circuit court’s ruling quash-
ing counts 12, 13, and 14 of the complaint, albeit for
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different reasons; however, we reverse the court’s rul-
ing allowing count 15 to proceed to trial.
Affirmed in part, reversed in part, and remanded for
entry of an order fully dismissing the charges against
defendant without prejudice. We do not retain jurisdic-
tion.
M
URRAY
, J., concurred with M
URPHY
, C.J.
T
ALBOT
,J.(concurring in part and dissenting in
part). I write separately because I believe it unnecessary
to remand certain issues to the trial court because of the
absence of a legal duty to support the charges and my
concern for the potential impact of the issues involved
in this appeal on the integrity of the judiciary.
I. FACTUAL HISTORY/BACKGROUND
While it is unnecessary to repeat the entire history
surrounding these consolidated appeals, it is worth-
while to emphasize that it is undisputed that the two
police officers, Robert McArthur and Scott Rechtzigel,
and the confidential informant (CI), Chad Povish, com-
mitted perjury during both a pretrial proceeding and at
trial. It is also undisputed that defendant was aware of
the perjury and engaged in two ex parte hearings with
the assistant prosecuting attorney, Karen Plants.
As noted, the Michigan Attorney General (AG)
brought four charges of misconduct in office, comprised
of the following:
COUNT 12 DEFENDANT(S) (04): COMMON
LAW OFFENSES
did commit Misconduct in Office, an indictable offense at
common law, by willfully neglecting her judicial duties by
permitting or considering an improper ex parte communi-
cation on September 8, 2005 and concealing that commu-
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nication from the defendants in the case of People of the
State of Michigan v. Alexander Aceval and/or People of the
State of Michigan v. Ricardo Pena; contrary to MCL
750.505. [750.505-C]
FELONY: 5 Years and/or $10,000.00
COUNT 13 DEFENDANT(S) (04): COMMON
LAW OFFENSES
did commit Misconduct in Office, an indictable offense at
common law, by willfully neglecting her judicial duties by
permitting or considering an improper ex parte communi-
cation on September 19, 2005 and concealing that commu-
nication from the defendants in the case of People of the
State of Michigan v. Alexander Aceval and/or People of the
State of Michigan v. Ricardo Pena; contrary to MCL
750.505. [750.505-C]
FELONY: 5 Years and/or $10,000.00
COUNT 14 DEFENDANT(S) (04): COMMON
LAW OFFENSES
did commit Misconduct in Office, an indictable offense at
common law, by willfully neglecting her judicial duties by
concealing perjured testimony from the defendants in the
case of People of the State of Michigan v. Alexander Aceval
and/or People of the State of Michigan v. Ricardo Pena by her
rulings and orders; contrary to MCL 750.505. [750.505-C]
FELONY: 5 Years and/or $10,000.00
COUNT 15 DEFENDANT(S) (04): COMMON
LAW OFFENSES
did commit Misconduct in Office, an indictable offense at
common law, by willfully neglecting her judicial duties by
allowing perjured testimony [to] be heard by the jury in the
case of People of the State of Michigan v. Alexander Aceval
and/or People of the State of Michigan v. Ricardo Pena;
contrary to MCL 750.505. [750.505-C]
FELONY: 5 Years and/or $10,000.00
Specifically, the charges arose from the events described
as follows:
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Counsel for Aceval requested that defendant conduct
an in camera interview with McArthur to verify the
existence of a confidential informant. On June 17, 2005,
defendant conducted the interview in which McArthur
and Rechtzigel named Povish as the confidential infor-
mant and disclosed the details of the deal provided by the
police to Povish for his involvement. As a result of this
interview, defendant determined that it was not necessary
to reveal Povish’s identity as the confidential informant
because of concerns regarding his safety. During a Sep-
tember 6, 2005, hearing on Aceval’s motion to suppress
evidence, Rechtzigel committed perjury by denying any
previous contact with Povish. The prosecutor, Plants, did
not object to the testimony despite being aware that it was
false.
Plants requested an ex parte meeting with defendant
on September 8, 2005; that meeting comprises the basis
for count 12. Plants requested the meeting because of
indications by Aceval’s counsel that he was seeking, de-
spite defendant’s earlier ruling, to procure cellular tele-
phone records of Povish and another witness in order to
ascertain the identity of the confidential informant. Alleg-
edly, Plants initiated the meeting to request that defen-
dant sign an ex parte order that would preclude Aceval’s
counsel from obtaining the records. During this meeting,
Plants also confirmed that Rechtzigel committed perjury
when he did not truthfully respond to questions that
would have revealed his meeting with Povish at an earlier
date and Povish’s status as the confidential informant.
Defendant agreed that there existed a significant risk to
the safety of Povish if his identity as the confidential
informant was revealed.
1
A sealed transcript of the
1
The transcript of this meeting is approximately 3
1
/2 pages in length.
With regard to the acknowledgement of perjury by Rechtzigel, Plants
said:
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meeting was prepared at defendant’s behest.
On September 12, 2005, Povish lied while under oath
at trial in response to questions that would reveal his
status as the confidential informant. Again, Plants
failed to object to the testimony. On September 19,
2005, while the trial was in progress, the second ex
parte communication occurred between Plants and de-
fendant, comprising count 13. During this meeting,
Plants confirmed that additional incidents of perjury
had occurred during the trial by Povish and McArthur,
purportedly to protect the identity of the confidential
informant.
2
Ultimately, the jury was charged and Pena
was convicted, but Aceval was granted a mistrial be-
We were doing an evidentiary hearing on Tuesday concerning
Mr. Pena and, with Mr. [James] Feinberg’s [Aceval’s attorney]
prompting, Mr. [Steven] Scharg [Pena’s attorney] asked the wit-
ness, Sergeant Rechtzigel, whether he had met Chad Povish, Brian
Hill or the defendant prior to March 11th, 2005. Sergeant Rechtzi-
gel said no. This clearly contradicts earlier testimony he gave
about the CI which he had met. He knowingly committed perjury
to protect the identification of the CI. To answer yes would have
indicated that he had met them in a confidential informant
capacity. I did not object at that point because I thought an
objection would telegraph who the CI is. I let the perjury happen.
He committed perjury knowingly, all in efforts to comply with the
Court’s order to keep the CI confidential.
2
The transcript of this meeting is slightly over one page in length.
Plants indicated:
With regard to Chad Povish’s testimony, he was asked whether
he had been offered any sort of deals or immunity. He said no. He
obviously was offered a deal because he’s the confidential infor-
mant....Histestimony was ‘no’ but he did that to conceal his
identity. He indicated that he had never seen Mac [McArthur]
before that day. Obviously that was to conceal his identity and
there was something else. Oh, he doesn’t remember what was said
to him by Mac. When he was interviewed at the police department
there was [sic] discussions about what a good job he had done and
so that was not exactly the truth. But again it was done with the
intent to conceal his identity. When Officer McArthur testified, he
testified that he had no information where the cocaine was going.
He was in constant communication with the confidential infor-
mant and so
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cause of the inability of his jury to reach a decision.
Defendant’s concealment of the perjured testimony
from Aceval and Pena and permitting such testimony to
be heard by the jury serve as the underlying factual
basis for count 14 and count 15, respectively.
II. PROCEDURAL HISTORY
I believe it both relevant and useful to review the
trial court’s decision and reasoning to place into per-
spective the events that have transpired and the issues
raised before this Court.
While the district court bound defendant over on all
four counts of misconduct in office, the circuit court
quashed counts 12, 13, and 14. Pertaining to these
charges, the circuit court ruled, in relevant part:
In this particular case labeling this particular action and
conduct by Judge Waterstone as neglect is a label and is a
conclusion drawn, but it is a label and a conclusion drawn
by the Attorney General’s office.
But in this Court’s view this was not neglect of any kind.
This was a wilful, intentional, deliberate attempt that quite
frankly this Court finds was an ex-parte communication
that was not illegal.
A review of the evidence in this particular case indicates
that on September 8th and September 19th that ex-parte
communications were made with the Court because there
was an immediate concern, identifiable concern regarding
whether or not a witness on behalf of the prosecution was
going to be identified and killed.
To me the notion of the expectation that the Court
would invite the defense to participate in that conversation
I think is not correct, and I do think that as has been
he knew what directions they were going in. Clearly he testified
that way to keep the identity secret.
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identified here, this is not negligence. This was an inten-
tional, deliberate conduct on the part of Judge Waterstone.
I don’t think that there is any other interpretation that
can be placed on it. She made a separate record so that her
action, her decisions could in fact be reviewed by a later
court, and it was done for the specific protection of the life
of an informant.
Now to me this is very much analogous to a circum-
stance where if in fact the police or the investigator or the
prosecutor had identifiable, tangible information that dur-
ing the course of the trial that the defense was attempting
to bribe a juror or threatening a juror, one would not expect
that that would be an identification made to the Court with
the other side knowing about that.
I find that the same is applicable with regard to Count
14, that the conduct of Judge Waterstone was not out of a
neglect of her duty, but an intentional conduct which, if
anything, would put it into the category of misfeasance
rather than any type of nonfeasance.
Misfeasance, as it would apply to Counts 12, 13 and 14
requires a corrupt purpose. There is no evidence to indicate
there is any corrupt purpose.
So with regards to Counts 12, 13 and 14, the Motion to
Quash is granted with regard to those three counts.
The circuit court allowed the prosecution to proceed
against defendant only on count 15, stating, in signifi-
cant part:
With regards to Count 15, Judge Waterstone is charged
with committing misconduct in office by neglecting her
judicial duties by allowing perjured testimony to be heard
by the jury and not correcting that perjury that came
before that jury.
Now one of the issues that has been of some real concern
for this Court is to determine exactly how the alleged
misconduct is to be categorized.
Now the Attorney General has categorized it as in all
four counts as neglecting judicial duties.
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That labeling does not necessarily make it so, but there
is an allegation, and it is the prosecutor’s theory that in
Count 15 as with regards to the other counts against Judge
Waterstone that it was nonfeasance on the part of the trial
judge in the Aceval and Pena case.
The prosecutor cites dicta in the [People v] Perkins [468
Mich 448; 662 NW2d 727 (2003)] case as to what consti-
tutes nonfeasance and what the elements are.
But the Court in its research has found interestingly
enough that with any number of cases where one reads
what is a definition or the distinction between misfeasance
and nonfeasance, you can get a different definition, differ-
ent verbiage used for that particular concept.
The Court did find additionally helpful the case of [Gray
v Clerk of Common Pleas Court, 366 Mich 588; 115 NW2d
411 (1962)].
***
And the Supreme Court in the [Gray] case harkens back
to a case of [In re Cartwright, 363 Mich 143; 108 NW2d 865
(1961)], where misfeasance is defined, which it’s stated,
[“]as a cause for removal from office, is a default in not
doing a lawful thing in a proper manner, or omitting to do
it as it should be done.” [See Gray, 366 Mich at 593.]
The Court in [Gray] went on to define nonfeasance, and
I quote: “nonfeasance is a substantial failure to perform a
duty, or, in other words the neglect or refusal, without
sufficient excuse, to do that which it was the officer’s legal
duty to do. Failure to perform the duties of a public office is
in and of itself not only nonfeasance but also malfea-
sance.[”] [See Gray, 366 Mich at 594.]
Now in this particular case the prosecution has alleged,
and the Preliminary Examination established, that there
was perjured testimony that was presented during the jury
trial, and the trial court did not correct that particular
perjury. Did in fact allow that to go forward.
It went forward, and one of the defendants, Mr. Pena,
was in fact convicted.
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Now this Court finds that that does in fact constitute
what would be considered the failure to perform the duties
of a public office; that being performing the responsibility
of the Court.
This Court does in fact find that with regards to Count
15 that there was no abuse of discretion for the Examining
Magistrate to conclude that there was a failure to perform
those duties and that it was in effect not error.
Both the AG and defendant appeal the circuit court’s
decision.
III. STANDARDS OF REVIEW
“The purpose of a preliminary examination is to
determine whether there is probable cause to believe
that a crime was committed and whether there is
probable cause to believe that the defendant committed
it.”
3
The prosecution need not establish guilt beyond a
reasonable doubt, but must present “evidence sufficient
to make a person of ordinary caution and prudence []
conscientiously entertain a reasonable belief of the
defendant’s guilt.”
4
“Circumstantial evidence and rea-
sonable inferences arising from the evidence are suffi-
cient to support the bindover of the defendant if such
evidence establishes probable cause.”
5
If probable cause
exists to believe that a felony was committed and that
the defendant committed it, the district court must bind
the defendant over for trial.
6
“This Court reviews for an abuse of discretion both a
district court’s decision to bind a defendant over for
trial and a trial court’s decision on a motion to quash an
3
People v Perkins, 468 Mich 448, 452; 662 NW2d 727 (2003).
4
People v Hill, 269 Mich App 505, 514; 715 NW2d 301 (2006).
5
People v Greene, 255 Mich App 426, 444; 661 NW2d 616 (2003)
(citation and quotation marks omitted).
6
MCL 766.13; MCR 6.110(E); Hill, 269 Mich App at 514.
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information.”
7
An abuse of discretion occurs when the
outcome falls outside “the range of reasonable and
principled outcomes.”
8
This Court reviews de novo a
trial court’s interpretation of the law related to its
decision on a motion to quash the information.
9
IV. ANALYSIS
On appeal, the AG and defendant take issue with
various aspects of the trial court’s rulings and its
decision to quash three of the four counts of misconduct
in office and in permitting the fourth count to proceed
to trial. In essence, the appeals by the AG and defen-
dant distill down to challenges regarding what behavior
is encompassed by misconduct in office and the use of
the felony statute
10
in charging that offense.
This Court further complicated the appeal when, at
oral argument, we requested the parties to address
additional points not raised in their appellate pleadings.
We posed three questions to counsel for supplemental
briefing:
(1) What distinguishes acts of willful neglect of duty
under MCL 750.478 from acts of nonfeasance comprising
misconduct in office under MCL 750.505?
(2) Does MCL 750.478 codify misconduct in office pre-
mised on nonfeasance and preclude the bringing of charges
for misconduct in office based on nonfeasance under MCL
750.505? If charges are wrongfully brought pursuant to
MCL 750.505, what is the proper remedy?
(3) Can acts comprising willful neglect of duty encom-
pass erroneous acts performed in good faith?
7
People v Fletcher, 260 Mich App 531, 551-552; 679 NW2d 127 (2004).
8
People v Yost, 278 Mich App 341, 353; 749 NW2d 753 (2008).
9
People v Miller, 288 Mich App 207, 209; 795 NW2d 156 (2010).
10
MCL 750.505.
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Specifically, we sought to determine whether the pros-
ecution properly charged defendant under the felony
statute governing misconduct in office even though the
wording of the various counts was identical to the
language in the referenced misdemeanor statute.
The felony statute provides:
Any person who shall commit any indictable offense at
the common law, for the punishment of which no provision
is expressly made by any statute of this state, shall be
guilty of a felony, punishable by imprisonment in the state
prison not more than 5 years or by a fine of not more than
$10,000.00, or both in the discretion of the court.
[11]
It is undisputed that “misconduct in office was an
indictable offense at common law”
12
and, thus, is in-
cluded within the statute.
13
Misconduct in office is
defined under common law as “ ‘corrupt behavior by an
officer in the exercise of the duties of his office or while
acting under color of his office.’ ”
14
“An officer could be
convicted of misconduct in office (1) for committing any
act which is itself wrongful, malfeasance, (2) for com-
mitting a lawful act in a wrongful manner, misfeasance,
or (3) for failing to perform any act that the duties of
the office require of the officer, nonfeasance.”
15
In comparison, the misdemeanor statute states:
When any duty is or shall be enjoined by law upon any
public officer, or upon any person holding any public trust
or employment, every willful neglect to perform such duty,
where no special provision shall have been made for the
11
MCL 750.505.
12
People v Coutu (On Remand), 235 Mich App 695, 705; 599 NW2d 556
(1999).
13
MCL 750.505.
14
Coutu, 235 Mich App at 705, quoting Perkins & Boyce, Criminal Law
(3d ed), p 543.
15
Perkins, 468 Mich at 456.
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punishment of such delinquency, constitutes a misde-
meanor punishable by imprisonment for not more than 1
year or a fine of not more than $1,000.00.
[
16
]
Our Supreme Court has indicated that “when a ‘charge
sets forth all the elements of the statutory offense,’ a
conviction under MCL 750.505...cannot be sus-
tained.”
17
The statutory provision
18
“does not preclude
prosecution for the common-law offense whenever the
conduct at issue is covered by another statute; it pre-
cludes use of the common-law offense when that offense
has been codified by the legislature.”
19
Specifically,
when evaluating whether an offense is chargeable un-
der the misconduct in office statute or precluded by
another criminal statute, this Court has stated that
“the misconduct in office charge is the ‘indictable
offense at the common law, for the punishment of which
no provision is expressly made by any statute of this
state.’ There is no statute that expressly provides pun-
ishment for misconduct in office ....”
20
The majority has concluded that the misdemeanor
statute
21
“constitutes a statute that expressly provides
for the punishment of misconduct in office with respect
to misconduct that entails willful neglect to perform a
legal duty (nonfeasance)” as charged by the prosecu-
tion. As a result, the majority dismisses without preju-
dice all the counts against defendant because the felony
16
MCL 750.478.
17
People v Thomas, 438 Mich 448, 453; 475 NW2d 288 (1991), quoting
People v Davis, 408 Mich 255, 274; 290 NW2d 366 (1980).
18
MCL 750.505.
19
Gillespie, Michigan Criminal Law & Procedure (2d ed), Practice
Deskbook (2011 ed), § 5:672, citing People v Milton, 257 Mich App 467;
668 NW2d 387 (2003).
20
Milton, 257 Mich App at 472, quoting MCL 750.505 (emphasis
added).
21
MCL 750.478.
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charges premised on misconduct in office are precluded
by the existence and applicability of the misdemeanor
statute.
The dismissal of all the charges without prejudice
prolongs this matter without definitive resolution, a
result I believe to be in error and unnecessary. The
majority’s decision to remand with regard to counts 12,
13, and 14 pertaining to the two ex parte communica-
tions and the failure to inform Aceval and Pena of the
perjured testimony is not necessary, because it is irrel-
evant whether these charges are pursued under the
felony statute or the misdemeanor statute. Rather, the
threshold issue, which is properly before this Court, is
whether a legal duty exists that defendant violated. In
other words, charges cannot be sustained under either
the felony statute or the misdemeanor statute unless
defendant has breached or willfully neglected a recog-
nized legal duty.
For purposes of clarity and simplification, I find it
most productive to review and analyze the counts
individually.
COUNT 12
In count 12, the AG charged defendant with “mis-
conduct in office” premised on defendant “willfully
neglecting her judicial duties by permitting or consid-
ering an improper ex parte communication on Septem-
ber 8, 2005 and concealing that communication from
the defendants....”Theexparte communication ref-
erenced for this count occurred during pretrial proceed-
ings.
In my opinion, the charges associated with this count
were properly quashed because no statutory basis exists
to preclude defendant—or any judge—from engaging in
an ex parte communication. Consequently, defendant’s
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participation in an ex parte communication cannot
comprise the violation of a duty.
In asserting defendant’s participation in ex parte
communications comprised a violation of duty, the AG
relies on and cites provisions within the Code of Judicial
Conduct. The Code of Judicial Conduct provides, in
relevant part:
The judicial duties of a judge take precedence over all
other activities. Judicial duties include all the duties of
office prescribed by law. In the performance of these duties,
the following standards apply:
***
A judge shall not initiate, permit, or consider ex parte
communications, or consider other communications made
to the judge outside the presence of the parties concerning
a pending or impending proceeding, except as follows:
(a) A judge may allow ex parte communications for
scheduling, administrative purposes, or emergencies that
do not deal with substantive matters or issues on the
merits, provided:
(i) the judge reasonably believes that no party or counsel
for a party will gain a procedural or tactical advantage as a
result of the ex parte communication, and
(ii) the judge makes provision promptly to notify all
other parties and counsel for parties of the substance of the
ex parte communication and allows an opportunity to
respond.
(b) A judge may obtain the advice of a disinterested
expert on the law applicable to a proceeding before the
judge if the judge gives notice to the parties of the person
consulted and the substance of the advice, and affords the
parties reasonable opportunity to respond.
(c) A judge may consult with court personnel whose
function is to aid the judge in carrying out the judge’s
adjudicative responsibilities or with other judges.
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(d) A judge may, with the consent of the parties, confer
separately with the parties and their lawyers in an effort to
mediate or settle matters pending before the judge.
(e) A judge may initiate or consider any ex parte
communications when expressly authorized by law to do
so.
[
22
]
As indicated by the Code of Judicial Conduct, engaging
in an ex parte communication is not specifically prohib-
ited. In fact, “an ex parte conference to discuss threats
against a witness is proper” but requires a court to
“insure that the conference is carefully conducted so
that no rights of the defendant are threatened.”
23
In a
similar case in which a prosecutor initiated ex parte
communications with a trial court because of concerns
regarding the safety of a witness, it was held:
The...court did not abuse its discretion in making the
initial decisions to allow the ex parte proceedings. In each
instance, the court was presented with a plausible argu-
ment by the government that providing [the defendant]
with the information requested would endanger its wit-
nesses and deter them from testifying.... The court
clearly benefited from having this information, but provid-
ing it simultaneously to [the defendant] would have risked
revealing the identities of the witnesses that the govern-
ment sought to protect. As previously noted, courts have
recognized circumstances such as these as justifying an ex
parte proceeding....
[
24
]
Under the circumstances of this case, I do not construe
defendant’s “initial decision[] to allow the ex parte
proceedings” to constitute an abuse of discretion. Fur-
ther, a judge’s decision to participate in the ex parte
communication is not subject to criminalization under
22
Code of Judicial Conduct, Canon 3(A)(4).
23
United States v Adams, 785 F2d 917, 920 (CA 11, 1986).
24
United States v Napue, 834 F2d 1311, 1320-1321 (CA 7, 1987).
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either statutory provision, even if error is deemed to
have occurred in the subsequent handling of the infor-
mation generated from the meeting.
The Code of Judicial Conduct sets forth parameters
and guidelines for a judge’s participation in an ex parte
communication as a “standard” to be applied, but does
not impose a judicial duty. In other words, the code
distinguishes between the elements comprising a duty
and the standard applied in evaluating the performance
of a duty. Pursuant to the language of the code, involve-
ment in an ex parte proceeding does not fall within the
definition of misconduct in office, which is “corrupt
behavior by an officer in the exercise of the duties of his
office or while acting under color of his office.”
25
There-
fore, in the absence of a duty, participation in an ex
parte proceeding cannot comprise a public officer’s
“willful neglect to perform [any] duty” as contemplated
by the misdemeanor statute.
26
The participation of a judge in an ex parte commu-
nication is not within the “duties of his office” and
cannot, by definition, constitute a “willful neglect to
perform” a legal duty. Rather, the strictures pertaining
to participation in an ex parte communication are
merely guidelines for performance. Any error or failure
by defendant (or any judge) to follow the specified
standards does not rise to the level necessary to com-
prise a violation of either the felony statute or the
misdemeanor statute. Violation of these standards is,
25
Coutu, 235 Mich App at 705 (emphasis added, citation and quotation
marks omitted).
26
MCL 750.478. As an aside, I would suggest that, when viewed in the
context of the language of the misdemeanor statute, defendant’s partici-
pation in an ex parte proceeding cannot, by definition, be construed as
comprising nonfeasance. Participation requires overt action and not a
failure to act or the willful neglect of a specific duty, which the trial court
recognized to be more properly characterized as misfeasance.
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rather, within the purview of the Judicial Tenure Com-
mission (JTC). Specifically, “[t]he Commission’s au-
thority is limited to investigating alleged judicial mis-
conduct and, if warranted, recommending the
imposition of discipline by the Michigan Supreme
Court. Judicial misconduct usually involves conduct in
conflict with the standards set forth in the Code of
Judicial Conduct.”
27
Defendant’s participation in an ex
parte communication was not violative of a duty of her
office. Hence, because there was no legal duty, the
failure to disclose her participation cannot constitute a
willful violation or be construed as comprising miscon-
duct in office.
Specific to count 12 is the fact that the ex parte
communication occurred during pretrial proceedings
with defendant serving as the fact-finder. Defendant
had already made a determination that revealing the
identity of the confidential informant was unnecessary.
Any information gleaned by defendant from this ex
parte proceeding was merely a confirmation of what
defendant already knew regarding the identity of the CI
and his relationship and/or interactions with the police.
The information provided by Plants did not provide
defendant with any new extrinsic information or affect
her previous ruling regarding the CI’s identity. Because
defendant was already aware of the information ob-
tained from the prosecutor during this first ex parte
communication, Aceval and Pena could demonstrate no
prejudice from this communication. Thus, this ex parte
communication falls outside the behavior constrained
by either statutory provision.
By charging defendant for participating in this ex
parte communication, the AG seeks to criminalize what
is essentially a discretionary act that is not specifically
27
<http://jtc.courts.mi.gov> (emphasis added).
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prohibited by statute or the Code of Judicial Conduct.
Further, the possible precedent established by charging
defendant for participation in an ex parte proceeding
raises serious concerns for all sitting judges. Of particu-
lar concern is the potential for the arbitrary and sub-
jective determination by a prosecutor of which ex parte
communications comprise indictable offenses. The pos-
sibility of the absurd results that could occur is effec-
tively demonstrated in this case wherein defendant is
charged with a criminal offense for participating in an
ex parte communication that conveyed no new or reve-
latory information. The majority, by remanding these
issues to the trial court, has engaged in an implicit
validation of such a procedure and effectively avoided
addressing the more pertinent and underlying question
whether a duty even exists.
As it pertains to count 12, I would rule that the
charge against defendant, under either the felony stat-
ute or the misdemeanor statute, for engaging in an ex
parte proceeding and the failure to disclose that pro-
ceeding to Aceval and Pena, was properly quashed on
the basis that defendant’s participation in the meeting
did not violate a judicial duty.
COUNT 13
Similar to count 12, count 13 involves a charge of
misconduct in office for defendant’s participation in an
ex parte communication with the prosecutor on Sep-
tember 19, 2005, during the course of trial. Specifically,
the AG charged defendant with “willfully neglecting
her judicial duties by permitting or considering an
improper ex parte communication...and concealing
that communication from the defendants....”While
distinguishable from count 12 as having occurred dur-
ing the course of trial rather than pretrial proceedings,
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the legal analysis of the sustainability of the charge is
not at variance with that I have outlined for count 12.
Defendant’s participation in the ex parte communi-
cation did not constitute the violation of a legal “duty.”
Ex parte communications are not subject to blanket
exclusion by the Code of Judicial Conduct and are
permissible under certain circumstances and pursuant
to specific standards. Whether defendant violated those
standards by participating in the ex parte communica-
tion is a matter more properly within the purview of the
JTC rather than subject to enforcement through crimi-
nal statutes. Therefore, for the same reasons discussed
in conjunction with count 12, I would find that the trial
court properly quashed count 13.
COUNT 14
In count 14, the AG charged defendant with miscon-
duct in office “by willfully neglecting her judicial duties
by concealing perjured testimony from the defen-
dants....” The AG is specifically referring to the
failure of defendant to inform counsel for Aceval and
Pena that perjured testimony occurred during the
course of trial. The AG asserts that this failure to
inform the defendants constituted misconduct in office
through nonfeasance. The AG has not, however, identi-
fied any specific duty on the part of a judge to inform a
defendant of perjured testimony, which is a necessary
prerequisite to sustaining this count under either the
felony or the misdemeanor statute. Again, if the AG
cannot demonstrate the existence of a duty, any allega-
tion regarding breach or willful neglect cannot be
sustained.
Michigan statutory law sets forth the procedure for
judges to follow where perjury has occurred, and pro-
vides:
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Whenever it shall appear to any court of record that
any witness or party who has been legally sworn and
examined or has made an affidavit in any proceeding in
a court of justice, has testified in such a manner as to
induce a reasonable presumption that he has been guilty
of perjury therein, the court may immediately commit
such witness or party, by an order or process for that
purpose, or may take a recognizance with sureties, for
his appearing to answer to an indictment for perjury;
and thereupon the witness to establish such perjury may,
if present, be bound over to the proper court, and notice
of the proceedings shall forthwith be given to the pros-
ecuting attorney.
[
28
]
Although the statute indicates that the court may
immediately indict a suspected perjurer, the statute
does not expressly mandate that the court must inform
a defendant of the perjury. Ironically, particularly given
the circumstances existing in this matter, the judge is to
inform the prosecution of the perjury. Having cited only
general precepts pertaining to defendant’s obligations
in accordance with the Code of Judicial Conduct,
29
the
AG has failed to sufficiently demonstrate the willful
neglect of an official duty by defendant or to meet the
requirements necessary to sustain a charge of miscon-
duct in office.
In summary, because I would find that there was no
cognizable legal duty breached or violated by defendant
as required under either statute for these three counts,
I would dismiss these counts with prejudice because it
constitutes an unnecessary exercise and waste of judi-
cial resources to remand to the trial court for further
proceedings on counts 12, 13, and 14.
28
MCL 750.426.
29
Canon 2(A) requires judges to avoid “all impropriety and appearance
of impropriety.” Canon 2(B) mandates judges to “respect and observe the
law.”
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COUNT 15
Because this final charge concerns a trial judge
knowingly allowing perjured testimony to be considered
by a jury, it is the most troubling count on a variety of
levels. In count 15, the AG charged defendant with
misconduct in office for “willfully neglecting her judi-
cial duties by allowing perjured testimony [to] be heard
bythejury....”Unlike the previous three counts, this
charge encompasses a clearly recognized legal duty,
because the commission of perjury in court proceedings
has long been prohibited.
30
A specific statutory provi-
sion addresses the action required of a judge when
perjury occurs.
31
In addition, it has long been acknowl-
edged that a criminal conviction obtained through the
knowing use of perjured testimony is violative of a
defendant’s due process rights under the Fourteenth
Amendment.
32
In this Court, defendant argued that the trial court
erred by failing to quash count 15 because the felony
statutory provision
33
underlying the charge has never
been used to indict a judge acting in his or her official
capacity.
34
Defendant did not raise the language of the
misdemeanor statute. At oral argument, this Court
sought clarification from the parties, in seeking to
30
MCL 750.422.
31
MCL 750.426.
32
Napue v Illinois, 360 US 264, 269; 79 S Ct 1173;3LEd2d1217
(1959).
33
MCL 750.505.
34
Defendant further contended that she should be immune from
prosecution for misconduct in office and that her good intention of
protecting the CI is dispositive regarding whether the misconduct in
office charge can be sustained. Defendant also asserted that the AG’s
initiation of charges violates the separation of powers because the JTC is
responsible for handling all instances pertaining to judicial misconduct.
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determine whether the AG properly charged defendant
under the felony
35
statute rather than the misdemeanor
statute.
36
As noted previously, the felony statute used to charge
defendant provides:
Any person who shall commit any indictable offense at
the common law, for the punishment of which no provision
is expressly made by any statute of this state, shall be
guilty of a felony, punishable by imprisonment in the state
prison not more than 5 years or by a fine of not more than
$10,000.00, or both in the discretion of the court.
[
37
]
Therefore, the felony statute requires that the offense
be indictable at common law and that another statute
does not punish that behavior.
Misconduct in office comprised a recognized indict-
able offense at common law and is defined as “ ‘corrupt
behavior by an officer in the exercise of the duties of his
office or while acting under color of his office.’ ”
38
An
officer can be convicted of misconduct through acts of
misfeasance, malfeasance, or nonfeasance.
39
In turn,
discussing corrupt behavior in the context of miscon-
duct in office, this Court has stated:
“Corruption” in this context means a “sense of deprav-
ity, perversion or taint.” [Perkins & Boyce] at 542. “De-
pravity” is defined as “the state of being depraved” and
“depraved” is defined as “morally corrupt or perverted.”
Random House Webster’s College Dictionary (1997). “Per-
version” is “the act of perverting,” and the term “per-
verted” includes in its definition “misguided; distorted;
35
MCL 750.505.
36
MCL 750.478.
37
MCL 750.505.
38
Coutu, 235 Mich App at 705, quoting Perkins & Boyce, Criminal Law
(3d ed), p 543.
39
Perkins, 468 Mich at 456.
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misinterpreted” and “turned from what is considered right
or true.” Id. The definition of “taint” includes “a trace of
something bad or offensive.” Id. Pursuant to the defini-
tions, a corrupt intent can be shown where there is
intentional or purposeful misbehavior or wrongful conduct
pertaining to the requirements and duties of office by an
officer. See also Perkins & Boyce, supra at 542 (“It is
corrupt for an officer purposely to violate the duties of his
office.”).
[
40
]
In contrast, the statutory language comprising the
misdemeanor statute states:
When any duty is or shall be enjoined by law upon any
public officer, or upon any person holding any public trust
or employment, every willful neglect to perform such duty,
where no special provision shall have been made for the
punishment of such delinquency, constitutes a misde-
meanor punishable by imprisonment for not more than 1
year or a fine of not more than $1,000.00.
[
41
]
The majority has concluded that the misdemeanor
statute encompasses the charged behavior and ends its
analysis there. As discussed further hereinafter, the two
statutes have distinct elements regarding criminal in-
tent. Thus, the misdemeanor statute does not already
punish the charged behavior and the felony charge
under MCL 750.505 is not precluded. Whether the AG
would elect to continue that charge in light of the
following analysis remains questionable.
Discerning the elements distinct to each statutory
provision is especially important because the AG
charged defendant with “willfully neglecting her judi-
cial duties” and adamantly characterized defendant’s
actions solely as constituting nonfeasance. It must be
assumed as an underlying premise that all trial judges,
40
Coutu, 235 Mich App at 706-707.
41
MCL 750.478.
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including defendant, are entrusted with the duty to
conduct a fair trial and preclude a conviction or judg-
ment that they know involves perjured testimony. This
is based, at least in part, on the statutory duty imposed
on trial judges to instruct a jury in accordance with the
following:
It shall be the duty of the judge to control all proceed-
ings during the trial, and to limit the introduction of
evidence and the argument of counsel to relevant and
material matters, with a view to the expeditious and
effective ascertainment of the truth regarding the matters
involved. The court shall instruct the jury as to the law
applicable to the case and in his charge make such com-
ment on the evidence, the testimony and character of any
witnesses, as in his opinion the interest of justice may
require.
[
42
]
Because both statutes rely on the same duty for trial
judges, the distinction between the felony of misconduct
in office and the misdemeanor of willful neglect of duty
rests on the existence of criminal intent. Discerning this
distinction is complicated by the historic confusion of
terms, the imprecise use of language, and the miscon-
struing of terms as being interchangeable. As illus-
trated, “corrupt behavior” has been equated with crimi-
nal intent; however, it is a separate concept both by
definition and in statutory application.
The misdemeanor statute requires “willful neglect,”
but fails to define the term. When a term is not defined
within a statute, we assign to the term its plain and
ordinary meaning within the context it is used.
43
To
ascertain the meaning of a term we may consult dictio-
nary definitions.
44
The term “willful neglect” is defined
42
MCL 768.29.
43
MCL 8.3a.
44
People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
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as the “[i]ntentional or reckless failure to carry out a
legal duty....”
45
Similarly, this Court has defined the
word “willful” as comprising actions that are “ ‘volun-
tarily, consciously, and intentionally’ under-
taken....”
46
When actions are undertaken “ ‘voluntar-
ily, consciously, and intentionally,’ ” they “may be
sufficient to constitute ‘wilfulness,’ even though the
actions may have been taken from a ‘pure’ or ‘good
faith’ motive.”
47
In other words, any element of “bad
purpose” attributable to willful neglect “could be met
upon a mere showing that defendant failed to do what
he was obligated to do.”
48
In contrast, the felony statute encompasses “miscon-
duct in office,” which has historically been defined as
“ ‘corrupt behavior by an officer in the exercise of the
duties of his office or while acting under color of his
office.’ ”
49
“An officer could be convicted of misconduct
in office (1) for committing any act which is itself
wrongful, malfeasance, (2) for committing a lawful act
in a wrongful manner, misfeasance, or (3) for failing to
perform any act that the duties of the office require of
the officer, nonfeasance.”
50
Malfeasance, misfeasance,
and nonfeasance are merely the different means or
mechanisms to effectuate the corrupt behavior.
Further, misconduct in office “does not encompass
erroneous acts done by officers in good faith or honest
mistakes committed by an officer in the discharge of his
45
Black’s Law Dictionary (9th ed), p 1133.
46
People v Medlyn, 215 Mich App 338, 342; 544 NW2d 759 (1996),
quoting People v Harrell, 54 Mich App 554, 561; 221 NW2d 411 (1974).
47
Id.
48
Medlyn, 215 Mich App at 345.
49
Coutu, 235 Mich App at 705, quoting Perkins & Boyce, Criminal Law
(3d ed), p 543.
50
Perkins, 468 Mich at 456.
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duties.”
51
This is diametrically opposed to the definition
of actions that are undertaken “willfully,” as such
actions “may have been taken from a ‘pure’ or ‘good
faith’ motive.”
52
Other criminal statutes, that define the
term “wilful,” highlight this distinction:
“Wilful”, for the purpose of criminal prosecutions,
means the intent to do an act knowingly and purposely by
an individual who, having a free will and choice, either
intentionally disregards a requirement of this act [the
Michigan Occupational Safety and Health Act, MCL
408.1001 et seq.], or a rule or standard promulgated pur-
suant to this act, or is knowingly and purposely indifferent
to a requirement of this act, or a rule or standard promul-
gated pursuant to this act. An omission or failure to act is
wilful if it is done knowingly and purposely. Wilful does not
require a showing of moral turpitude, evil purpose, or
criminal intent provided the individual is shown to have
acted or to have failed to act knowingly and purposely.
[
53
]
In the context of misconduct in office, “nonfeasance”
is not simply an omission or a failure to act, but rather
is defined as an affirmative act encompassing “willful
neglect” or “deliberate forbearance.”
54
Although the
conduct sought to be constrained by either statute
encompasses the willful neglect of duty, the felony
offense of misconduct in office contains an additional
element or requirement. Although willful neglect can
serve to establish corrupt behavior, the common-law
offense of misconduct in office has, historically, also
necessitated the demonstration of criminal intent. Spe-
cifically, this Court has indicated, “ ‘misconduct in
office is corrupt misbehavior by an officer in the exer-
51
Coutu, 235 Mich App at 706.
52
Medlyn, 215 Mich App at 342.
53
MCL 408.1006(8). See, also, People v Lanzo Constr Co, 272 Mich App
470, 475; 726 NW2d 746 (2006).
54
Perkins & Boyce, Criminal Law (3d ed), pp 547-548.
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cise of the duties of his office or while acting under color
of his office, and criminal intent is an essential element
of the crime.’ ”
55
In contrast, this Court has opined, in
analyzing the misdemeanor statute,
56
that the term
“willfully” “requires something less than specific in-
tent, but requires a knowing exercise of choice.”
57
I
glean from the above that the felony statute requires
criminal intent, while the misdemeanor statute does
not.
Historical developments of the common law further
support the existence of such a distinction. As discussed
by the United States Supreme Court:
The contention that an injury can amount to a crime
only when inflicted by intention is no provincial or tran-
sient notion. It is as universal and persistent in mature
systems of law as belief in freedom of the human will and
a consequent ability and duty of the normal individual to
choose between good and evil. A relation between some
mental element and punishment for a harmful act is almost
as instinctive as the child’s familiar exculpatory “But I
didn’t mean to,” and has afforded the rational basis for a
tardy and unfinished substitution of deterrence and refor-
mation in place of retaliation and vengeance as the moti-
vation for public prosecution. Unqualified acceptance of
this doctrine by English common law in the Eighteenth
Century was indicated by Blackstone’s sweeping statement
that to constitute any crime there must first be a “vicious
will.” Common-law commentators of the Nineteenth Cen-
tury early pronounced the same principle....
Crime, as a compound concept, generally constituted only
from concurrence of an evil-meaning mind with an evil-doing
hand, was congenial to an intense individualism and took
55
Coutu, 235 Mich App at 706, quoting 67 CJS, Officers, § 256, pp
789-790 (emphasis added).
56
MCL 750.478.
57
People v Lockett (On Rehearing), 253 Mich App 651, 655; 659 NW2d
681 (2002).
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deep and early root in American soil. As the states codified the
common law of crimes, even if their enactments were silent
on the subject, their courts assumed that the omission did not
signify disapproval of the principle but merely recognized
that intent was so inherent in the idea of the offense that it
required no statutory affirmation. Courts, with little hesita-
tion or division, found an implication of the requirement as to
offenses that were taken over from the common law. The
unanimity with which they have adhered to the central
thought that wrongdoing must be conscious to be criminal is
emphasized by the variety, disparity and confusion of their
definitions of the requisite but elusive mental element. How-
ever, courts of various jurisdictions, and for the purposes of
different offenses, have devised working formulae, if not
scientific ones, for the instruction of juries around such terms
as “felonious intent,” “criminal intent,” “malice afore-
thought,” “guilty knowledge,” “fraudulent intent,” “wilful-
ness,” “scienter,” to denote guilty knowledge, or “mens rea,”
to signify an evil purpose or mental culpability. By use or
combination of these various tokens, they have sought to
protect those who were not blameworthy in mind from
conviction of infamous common-law crimes.
[
58
]
The requirement of criminal intent, as the distinguish-
ing feature between the felony statute and the misde-
meanor statute, is logical based on the definition of
misconduct in office. To interpret these statutes other-
wise would inexplicably reduce the penalty for miscon-
duct in office solely on the basis of the commission of
the offense through nonfeasance rather than malfea-
sance or misfeasance. This would then lead to absurd
and inconsistent rulings for behavior deemed equally
egregious.
Such a distinction is consistent with the legal concept
and definition of “criminal intent” as “[a]n intent to
commit an actus reus without any justification, excuse,
58
Morissette v United States, 342 US 246, 250-252; 72 S Ct 240; 96 L Ed
288 (1952).
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or other defense.”
59
In using the term “criminal intent,”
it has been suggested that “other term[s] such as mens
rea or guilty mind should be employed for more general
purposes, and ‘criminal intent’ be restricted to those
situations in which there is (1) an intent to do the actus
reus, and (2) no circumstance of exculpation.”
60
This is
distinguished from the concept of “general intent,”
which is defined as “[t]he intent to perform an act even
though the actor does not desire the consequences that
result.”
61
This coincides with the differentiations recog-
nized in Michigan, that “the distinction between spe-
cific intent and general intent crimes is that the former
involve a particular criminal intent beyond the act
done, while the latter involve merely the intent to do
the physical act.”
62
In accordance with prior decisions
by this Court:
“A much more workable definition would center upon
the several mental states set forth in the various proposed
criminal codes. Analyzed in this fashion, specific intent
crimes would be limited only to those crimes which are
required to be committed either ‘purposefully’ or ‘know-
ingly,’ while general intent crimes would encompass those
crimes which can be committed either ‘recklessly’ or ‘neg-
ligently.’ Thus, in order to commit a specific intent crime,
an offender would have to subjectively desire or know that
the prohibited result will occur, whereas in a general intent
crime, the prohibited result need only be reasonably ex-
pected to follow from the offender’s voluntary act, irrespec-
tive of any subjective desire to have accomplished such
result.”
[
63
]
59
Black’s Law Dictionary (9th ed), p 881.
60
Id., quoting Perkins & Boyce, Criminal Law (3d ed), pp 832-834.
61
Black’s Law Dictionary (9th ed), p 882.
62
People v Beaudin, 417 Mich 570, 573-574; 339 NW2d 461 (1983).
63
People v Gould, 225 Mich App 79, 85; 570 NW2d 140 (1997), quoting
People v Lerma, 66 Mich App 566, 569-570; 239 NW2d 424 (1976).
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Hence, the ability of the prosecutor to prove intent in
electing to charge defendant under either the felony
statute or the misdemeanor statute becomes relevant,
which was conceded by the AG during oral argument in
this Court.
The AG must submit proofs on defendant’s intent,
but not necessarily on her motive. As previously dis-
cussed by our Supreme Court:
Although sometimes confused, motive and intent are
not synonymous terms. A motive is an inducement for
doing some act; it gives birth to a purpose. The resolve to
commit an act constitutes the intent. The motive inducing
the resolve, while illuminative of the intent, is necessarily
merged therein and is not an essential element in proving
commission of crime. The essential element of intent is not
at all dependent upon motive. If the intent appears the
motive inducing the design may be shown but if not shown
the design remains and, as the intent governs, the induce-
ment creating the intent is not essential. A motive is a
relevant but not an essential fact in proof of murder. It is
true it exists whether disclosed or not. If disclosed it may
aid the prosecution, but if not disclosed, or only faintly
discernible, its absence or hidden character does not abort
the charge if the intent is established. The evidence of
motive was meager but what there was of it went to the
jury, and properly so, on the question of intent.
[
64
]
Defendant’s intent comprises an element of the crime of
misconduct in office, which presents an issue for reso-
lution by the trier of fact.
65
To prove misconduct in
office, the AG must demonstrate, as threshold require-
ments, the existence of corrupt behavior and an intent
to procure the result obtained, in this instance the
convictions of Aceval and Pena. Therefore, if the AG
elects to proceed with the charge of misconduct in
64
People v Kuhn, 232 Mich 310, 312; 205 NW 188 (1925).
65
People v Whittaker, 187 Mich App 122, 128; 466 NW2d 364 (1991).
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office, evidence of defendant’s intent comprises a rel-
evant matter to be submitted to the jury for determi-
nation to establish the threshold necessary to sustain
the charge. This is entirely consistent with prior rulings
of this Court that determined, “ ‘misconduct in office is
corrupt misbehavior by an officer in the exercise of the
duties of his office...andcriminal intent is an essen-
tial element of the crime.’ ”
66
I find that the misdemeanor statute and the felony
statute comprise separate and distinct codifications.
The willful neglect of duty encompassed by the misde-
meanor statute does not include the additional element
of criminal intent or specific intent that must be dem-
onstrated to sustain a charge of misconduct in office
committed through nonfeasance. In other words, the
misdemeanor statute does not constitute a separate
codification of the offense of misconduct in office com-
mitted through nonfeasance and, therefore, does not
preclude the instant charge in count 15 of misconduct
in office based on nonfeasance.
67
I would, therefore, find that the trial court properly
allowed count 15 to proceed and correctly quashed
counts 12, 13, and 14.
66
Coutu, 235 Mich App at 706, quoting 67 CJS, Officers, § 256, pp
789-790.
67
Milton, 257 Mich App at 472.
174 296 M
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O
PINION BY
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ALBOT
,J.
PEOPLE v KHANANI
Docket No. 301138. Submitted January 5, 2012, at Detroit. Decided
March 1, 2012. Approved for publication April 10, 2012, at 9:10
a.m.
Imran Khanani pleaded guilty in the Wayne Circuit Court in two
separate cases of identity theft, MCL 445.65, stealing or retaining
a financial transaction device without consent, MCL 750.157n(1),
breaking and entering a vehicle causing damage, MCL
750.356a(3), larceny from a motor vehicle, MCL 750.356a(1), and
stealing or retaining a financial transaction device without con-
sent, MCL 750.157n(1). Following the plea hearing for those
charges, the court, Cynthia Gray Hathaway, J., informed Khanani
that she intended to sentence him under the Holmes Youthful
Trainee Act (HYTA), MCL 762.11 et seq. Khanani thereafter
pleaded guilty, in a third case, of first-degree home invasion, MCL
750.110a(2), for a crime he committed while on bond before
sentencing on the earlier plea-based convictions. At the subse-
quent sentencing hearing for all the plea-based convictions, the
trial court assigned Khanani to youthful-trainee status under
HYTA and sentenced him on each offense to one year in jail
without early release and three years’ probation. The prosecution
appealed by delayed leave granted.
The Court of Appeals held:
1. Under HYTA, defendants charged with committing certain
crimes while between the ages of 17 and 21 may be excused from
having a criminal record. Assignment to youthful-trainee status
does not constitute a conviction of a crime unless the court revokes
the defendant’s status. HYTA is evidence of a legislative intent
that persons in that age group not be stigmatized with criminal
records for immature acts made without reflection. A trial court
has wide discretion in placing a youthful offender under HYTA,
but when making the decision should consider the seriousness of
the offense, the defendant’s age, and whether the defendant was
on bond for another offense when the crime was committed.
2. Khanani was 19 years old when he invaded the home of a
friend’s family 3 weeks after his plea-based convictions for less
serious crimes for which he was offered possible youthful-trainee
2012] P
EOPLE V
K
HANANI
175
status and 17 days after a lengthy discussion with the probation
agent about the significance of the youthful-trainee program for
his future. In addition, the trial court noted that it was frightened
by Khanani, that time would determine whether he was a serious
predator as described by the prosecutor, and that it would grant
him youthful-trainee status as an acknowledgement of his family’s
efforts in raising him. The trial court abused its discretion by
assigning Khanani to youthful-trainee status on all charges in
light of the relevant circumstances, including his age, the serious-
ness of the home-invasion offense, and the fact that defendant was
on bond when he committed that offense, all of which revealed
that his five earlier felonies were not simply uncharacteristic acts
of immaturity.
3. Because the trial court abused its discretion by assigning
Khanani to youthful-trainee status, it was unnecessary to address
whether the sentencing guidelines apply to conditions imposed by
a court under MCL 762.13 of HYTA.
Reversed and remanded for resentencing.
S
TEPHENS
, J., dissenting, agreed with the majority’s summary of
the applicable law, but would have remanded the cases to the trial
court for further articulation of the reasons for assigning Khanani
to youthful-trainee status. It was unclear what factors ultimately
motivated the court’s decision to sentence Khanani under HYTA.
S
ENTENCES —
H
OLMES
Y
OUTHFUL
T
RAINEE
A
CT —
A
SSIGNMENT —
A
BUSE OF
D
ISCRETION
.
Under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et
seq., defendants charged with committing certain crimes while
between the ages of 17 and 21 may be assigned to youthful-trainee
status, which does not constitute a conviction of a crime unless the
court revokes the defendant’s status; HYTA is evidence of a
legislative intent that persons in that age group not be stigmatized
with criminal records for immature acts made without reflection;
a trial court has wide discretion in placing a youthful offender
under HYTA, but when making its decision should consider the
defendant’s age, the seriousness of the offense, and whether the
defendant was on bond for another offense when the crime was
committed.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Kym L. Worthy, Prosecuting Attor-
ney, Timothy A. Baughman, Chief of Research, Train-
176 296 M
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175 [Apr
ing, and Appeals, and Marilyn A. Eisenbraun, Assistant
Prosecuting Attorney, for the people.
Michael J. McCarthy, P.C. (by Michael J. McCarthy),
for defendant.
Before: D
ONOFRIO
,P.J., and S
TEPHENS
and R
ONAYNE
K
RAUSE
,JJ.
R
ONAYNE
K
RAUSE
, J. The prosecution appeals by de-
layed leave granted
1
the sentences imposed following
defendant’s guilty pleas in three cases. First, in LC No.
09-030086-FJ, defendant pleaded guilty of identity
theft, MCL 445.65, and stealing or retaining a financial
transaction device without consent, MCL 750.157n(1).
Second, in LC No. 10-001149-FH, defendant pleaded
guilty of breaking and entering a vehicle causing dam-
age, MCL 750.356a(3), larceny from a motor vehicle,
MCL 750.356a(1), and stealing or retaining a financial
transaction device without consent, MCL 750.157n(1).
Third, in LC No. 10-003752-FH, defendant pleaded
guilty of first-degree home invasion, MCL 750.110a(2).
For each offense the trial court sentenced defendant to
one year in jail without early release and three years’
probation under the Holmes Youthful Trainee Act
(HYTA), MCL 762.11 et seq. In all three cases, we
reverse and remand for resentencing. Further, defen-
dant shall have an opportunity to withdraw his guilty
pleas on any conditional pleas predicated on HYTA
status being granted.
The prosecution argues that the trial court abused its
discretion by granting youthful-trainee status to defen-
dant. We agree. “This Court reviews for an abuse of
1
People v Khanani, unpublished order of the Court of Appeals, entered
February 11, 2011 (Docket No. 301138).
2012] P
EOPLE V
K
HANANI
177
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discretion a trial court’s decision concerning a defen-
dant’s assignment under the [HYTA].” People v Giovan-
nini, 271 Mich App 409, 411; 722 NW2d 237 (2006). “An
abuse of discretion occurs when the court chooses an
outcome that falls outside the range of reasonable and
principled outcomes.” People v Unger, 278 Mich App
210, 217; 749 NW2d 272 (2008).
“The [HYTA] offers a mechanism by which youths
charged with committing certain crimes between their
seventeenth and twenty-first birthdays may be excused
from having a criminal record.” People v Bobek, 217
Mich App 524, 528-529; 553 NW2d 18 (1996). The
HYTA provides in relevant part:
Except as provided in subsections (2) and (3),
[
2
]
if an
individual pleads guilty to a criminal offense, committed on
or after the individual’s seventeenth birthday but before
his or her twenty-first birthday, the court of record having
jurisdiction of the criminal offense may, without entering a
judgment of conviction and with the consent of that indi-
vidual, consider and assign that individual to the status of
youthful trainee. [MCL 762.11(1).]
“An assignment to youthful trainee status does not
constitute a conviction of a crime unless the court
revokes the defendant’s status as a youthful trainee.”
People v Dipiazza, 286 Mich App 137, 141; 778 NW2d
264 (2009). The HYTA “evidences a legislative desire
that persons in this age group not be stigmatized with
criminal records for unreflective and immature acts.”
People v Perkins, 107 Mich App 440, 444; 309 NW2d 634
(1981). A defendant is “not ineligible for sentencing
under the [HYTA] solely because he was convicted of
two criminal offenses.” Giovannini, 271 Mich App at
410.
2
These subsections, MCL 762.11(2) and (3), do not apply in this case.
178 296 M
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“A trial court has wide discretion in placing a youth-
ful offender under the [HYTA], subject to review by the
appellate courts.” Giovannini, 271 Mich App at 416. In
exercising its discretion, a trial court should consider
the seriousness of the offense as a factor on an equal
footing with the defendant’s age. People v Fitchett,96
Mich App 251, 253; 292 NW2d 191 (1980). In Fitchett,
the defendant was 17 years old, “near to the lower age
limit within which the act applies.” Id. Nonetheless,
this Court determined that there was no abuse of
discretion in the denial of youthful-trainee status in
light of the nature and severity of the charged offenses,
i.e., “breaking and entering an occupied dwelling with
the intent to commit larceny, punishable by a maximum
of 15 years incarceration, and arson of a dwelling house,
which carries a 20-year maximum sentence....”Id.at
254; see also People v Teske, 147 Mich App 105, 106-109;
383 NW2d 139 (1985) (concluding that there was no
abuse of discretion in the denial of youthful-trainee
status to a 17-year-old defendant who committed armed
robbery given the seriousness of the offense).
In this case, the trial court’s decision to grant
youthful-trainee status fell outside the range of reason-
able and principled outcomes in light of the relevant
circumstances, including defendant’s age, the serious-
ness of the home-invasion offense and the timing of its
commission a mere three weeks after being placed on
bond pending sentencing for the earlier offenses and
even being instructed at that time by the trial court and
his probation officer of the benefits of HYTA treatment
and that he could be referred for HYTA consideration.
Specifically, at the plea hearing in the first two cases,
the trial court expressed its intent to refer defendant,
who turned 19 years old the day after the hearing, for
HYTA consideration. Three weeks later, while on bond
awaiting sentencing, defendant invaded Veena Jindal’s
2012] P
EOPLE V
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HANANI
179
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home. Defendant later acknowledged that Jindal’s son
had befriended him, providing him with a ride to school
every day and helping him with his homework. The
Jindals twice had defendant to their home for dinner.
Apparently using his knowledge of the Jindal home,
defendant and an accomplice entered the home without
permission in the middle of the night with the intent to
commit larceny, terrifying Jindal’s 20-year-old daugh-
ter, who hid in a closet for 15 minutes as defendant and
his accomplice ransacked the home. Months later, the
Jindal family continued to experience fear living in
their home.
The defense contends that defendant was a fol-
lower rather than a leader. However, it was defendant
who knew the Jindal family and who had been a guest
in their home, and it was thus defendant who was
able to exploit his knowledge of that home to invade
it. It therefore appears unlikely that the Jindals
would have been targeted but for defendant’s rela-
tionship with the family. Further, defendant commit-
ted the home invasion while on bond, a mere 21 days
after he was offered possible youthful-trainee status
for less serious crimes and a mere 17 days after a
lengthy discussion with the probation officer regard-
ing the significance of the youthful-trainee program
for his future. These facts establish far more than an
uncharacteristic lack of maturity or reflection by a
young offender. Rather, they show a calculated effort
by defendant both to exploit a family that had be-
friended him and to escalate his criminal activity in
defiance of the potential lenient treatment offered to
him for his other crimes. Defendant’s commission of
the more serious home-invasion offense while on
bond also reveals that his five earlier felonies were
not simply uncharacteristic acts of immaturity. In
180 296 M
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175 [Apr
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these circumstances, a reasonable and principled
basis on which to grant youthful-trainee status did
not exist.
In addition, the trial court’s own statements at
sentencing reflected that defendant was not an appro-
priate candidate for youthful-trainee status. The court
stated that it was “frighten[ed]” by defendant’s actions.
After the prosecutor described defendant as “a very
serious predator,” the trial court noted that the pros-
ecutor’s description of defendant was “not totally inac-
curate” and that the prosecutor had
hit the nail on the head. It’s scary because there’s some-
thing going on inside of you that not only has allowed you
to do these things here, but maybe if you get another
chance, and you will get another chance. I don’t know if it’ll
be today, I don’t know if it’ll be a year from now, two or
three years from now, you may do something even worse
because you’ve got that kind of a profile.
The trial court further told defendant that “you
frighten me. Quite frankly, you frighten me. I’m going
to give you somewhat of a break.” After stating that it
would grant HYTA status for three cases for the first
time in any sentencing the court had conducted, the
court told defendant that “we’ll see if [the prosecutor]
has accurately described you today, which I think she
has. But we’ll see for sure, okay?” Finally, after defen-
dant thanked the court for its sentence, the court
stated: “Well, I did it for your family. . . . I think that
they deserve some acknowledgement of the effort that
they’ve put into trying to raise you to be a productive
and constructive citizen. So, I did it for them. Now you
take it from here, okay.”
Given the trial court’s description of defendant as
“frighten[ing]” and its apparent agreement with the
prosecutor’s description of defendant as a serious
2012] P
EOPLE V
K
HANANI
181
O
PINION OF THE
C
OURT
predator, it was not reasonable to grant youthful-
trainee status and then state that “we’ll see” if the
prosecutor’s description was correct. Such a decision
reflects a failure to appropriately take into account the
nature and severity of the crimes and the importance of
public safety. Further, the trial court’s statement that
defendant’s parents deserved acknowledgement for
their efforts to raise defendant to be a productive
citizen was not a principled basis on which to grant
youthful-trainee status. The court’s decision must be
based on an evaluation of the relevant circumstances,
including the defendant’s age and the seriousness of the
offense. Youthful-trainee status should not be used as a
mere vehicle to communicate the court’s acknowledge-
ment of the parents’ efforts.
3
Finally, the prosecution recognizes that the sentenc-
ing guidelines have not been held to apply to conditions
imposed under the HYTA, but contends that the guide-
lines articulate legislatively determined categories of
appropriate sentencing considerations.
4
The prosecu-
tion contends that the trial court’s scoring of the
guidelines in the absence of sentencing under the HYTA
would have placed defendant at prior record variable
3
As our dissenting colleague points out, various parts of the trial
court’s “freewheeling colloquy” with defendant might be construed as
implying additional conclusions about defendant and his sentence that
could possibly support the “extraordinary sentence” imposed. We are,
however, simply not comfortable basing our decision on what the trial
court might have implied in light of its explicit and definitive statements
on the record.
4
The prosecution notes that in People v Johnson, 488 Mich 860; 788
NW2d 10 (2010), the Michigan Supreme Court remanded the case to this
Court for consideration as on leave to appeal granted “whether the
sentencing guidelines apply to conditions imposed by a court under MCL
762.13 of the Holmes Youthful Trainee Act.” However, as the prosecution
observes, this Court later dismissed the appeal in Johnson on the
stipulation of the parties. People v Johnson, unpublished order of the
Court of Appeals, entered February 4, 2011 (Docket No. 294396).
182 296 M
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level C and offense variable level II, with a recom-
mended minimum sentence range of 30 months to 50
months for the first-degree home-invasion convictions.
5
Further, the prosecution opines that no substantial and
compelling reasons existed to depart downward from
the guidelines range and that the trial court did not
state that any such reason existed before it chose to
sentence under the HYTA. However, as the prosecution
acknowledges, the sentencing guidelines have not been
held to apply to the decision whether to grant youthful-
trainee status. Absent such authority, the trial court’s
decision should not be reviewed as a decision to depart
from the guidelines. In any event, we need not address
the sentencing guidelines given our conclusion that the
trial court abused its discretion by granting youthful-
trainee status in light of the relevant circumstances
discussed.
Reversed and remanded for resentencing in all three
cases, at which time defendant shall have an opportu-
nity to withdraw any conditional guilty pleas predicated
on HYTA status being granted. We do not retain juris-
diction.
D
ONOFRIO
,P.J., concurred with R
ONAYNE
K
RAUSE
,J.
S
TEPHENS
,J.(dissenting). I write to respectfully dis-
sent from the conclusion of the majority that the trial
court abused its discretion by affording the defendant
status under the Holmes Youthful Trainee Act (HYTA),
MCL 762.11 et seq., through a sentence that requires
incarceration, participation in treatment programs, em-
ployment, and a return to school. While I agree that the
majority has correctly articulated the law applicable to
this circumstance, I do not share its view that the trial
5
See MCL 777.63.
2012] P
EOPLE V
K
HANANI
183
D
ISSENTING
O
PINION BY
S
TEPHENS
,J.
court has sufficiently articulated the reasons for the
sentence imposed and, therefore, would remand for
further articulation of that reasoning.
HYTA is one of the possible sentencing options
afforded to trial courts. Like every other sentencing
option, there are four purposes of a HYTA sentence:
protection of society, punishment of the offender, deter-
rence from further criminality by the offender or oth-
ers, and rehabilitation. See People v Sabin (On Second
Remand), 242 Mich App 656, 661-662; 620 NW2d 19
(2000). As with all sentences in Michigan, the sentence
must be particularized to the individual and the offense.
The majority correctly notes that if the trial court’s
basis for the sentence was to protect and preserve
defendant’s family, that reason is not within the range
of principled outcomes, in part because it is a sentence
that is not rooted in factors peculiar to the defendant
himself. After all, every offender has some form of
family. However, after a careful reading of a fairly
lengthy sentencing transcript, I am not left with a firm
conviction that protection or preservation of defen-
dant’s family was either the sole or the primary purpose
of the HYTA sentence.
In a freewheeling colloquy with defendant, the trial
court discussed defendant’s immaturity and his intense
desire to fit into some group as a result of his feelings of
academic inferiority. It appears that, from that dia-
logue, the court implicitly found defendant to be more
of follower than a leader. The court seemed to perceive
that, in part because of his family support, immaturity,
insecurity, and developing self-examination, he was
susceptible to rehabilitation. The court ordered his
participation in jail programming, albeit without nomi-
nating specific programs, as an aid to the rehabilitative
process. In fact, the court required that this defendant
184 296 M
ICH
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ISSENTING
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PINION BY
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TEPHENS
,J.
be exempt from jail crowding release without the trial
court’s permission. That caveat would allow the trial
court to review not only whether defendant participated
in jail programming, but also whether he benefited
from the programming, much in the same manner as a
court would monitor compliance with a parent-agency
agreement. A failure to benefit or participate might well
be a basis to revoke HYTA status. The court empha-
sized that failure to meet his HYTA requirements could
result in a sentence that would dwarf the presumptive
sentence under the sentencing guidelines that he would
face had he not been granted HYTA status. This warn-
ing addresses the deterrence aspect of sentencing. The
incarceration would have addressed the goals of pun-
ishment of the offender and protection of society.
While I do not believe that the trial court based its
extraordinary sentence on the desire to preserve and
protect defendant’s family, it is unclear which factors
ultimately did motivate the court’s decision to exercise
its discretion in this manner. I believe a remand for a
full articulation of the basis of the trial court’s decision
is required, and I would remand the case to accomplish
that objective.
2012] P
EOPLE V
K
HANANI
185
D
ISSENTING
O
PINION BY
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TEPHENS
,J.
PEOPLE v DOUGLAS
Docket No. 301546. Submitted January 5, 2012, at Detroit. Decided April
12. 2012, at 9:00 a.m.
Jeffery Alan Douglas was convicted of first-degree criminal sexual
conduct (victim under the age of 13) and second-degree criminal
sexual conduct (victim under the age of 13) following a jury trial in
the Lenawee Circuit Court, Margaret M. S. Noe, J. The charges
arose from statements by his daughter, KD, that defendant had
made her touch his penis on one occasion and had her perform
fellatio on a separate occasion. Defendant appealed, challenging
the admission of certain testimony and claiming the ineffective
assistance of counsel.
The Court of Appeals held:
1. Under MRE 803A, the tender-years hearsay exception, a
statement describing an incident that included a sexual act per-
formed with or on the declarant by the defendant or an accomplice
is admissible to the extent that it corroborates testimony given by
the declarant during the same proceeding, if (1) the declarant was
under the age of 10 when the statement was made, (2) the
statement is shown to have been spontaneous and without indica-
tion of being manufactured, (3) either the declarant made the
statement immediately after the incident or any delay is excusable
as having been caused by fear or other equally effective circum-
stance, and (4) the statement is introduced through the testimony
of someone other than the declarant. If the declarant made more
than one corroborative statement about the alleged incident, only
the first is admissible under MRE 803A. Questioning by an adult
is not incompatible with a ruling that a child’s hearsay statement
was spontaneous under MRE 803A. For a child’s report of sexual
abuse to have been spontaneous, the child must have broached the
subject of sexual abuse and any questions from adults must have
been nonleading or open-ended.
2. Defense counsel failed to object to the admission of KD’s
hearsay statement to Jennifer Wheeler during a forensic interview
at Care House. The statement—that defendant made her “suck his
peepee”—should not have been admitted under MRE 803A(2),
because it was not spontaneous. Wheeler prompted KD during the
186 296 M
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interview, KD had already talked with her therapist about the
alleged sexual abuse, and KD’s mother had told her during the
drive to Care House that KD was going to be interviewed. KD’s
statement to Wheeler was also not admissible under MRE 803A(3)
because there was no indication that the almost one-year delay in
making the statement had been caused by fear or another equally
effective circumstance. KD’s young age, without more supporting
testimony, was not an equally effective circumstance that would
explain the lack of disclosure for such a long time. The statement
was also inadmissible under MRE 803A because KD’s first cor-
roborative statement was to her mother, not to Wheeler during the
interview at Care House.
3. While KD’s statement to Wheeler that she and her stepsis-
ter had touched defendant’s penis on another occasion was the
first corroborative statement regarding that incident, it was inad-
missible under MRE 803A because it was not spontaneous and
there was no indication that the almost one-year delay in making
the statement had been caused by fear or another equally effective
circumstance.
4. The trial court erred by admitting over defense objection the
videotape of KD’s Care House interview because KD’s statements
to Wheeler were inadmissible under MRE 803A. The testimony of
KD’s mother regarding KD’s statement to her about the alleged
incident of fellatio with defendant, admitted without objection,
was also inadmissible under MRE 803A.
5. It is improper for a witness to comment or provide an
opinion on the credibility of another witness because credibility
matters are to be determined by the jury. Without objection from
defense counsel, Michigan State Police Detective Sergeant Gary
Muir testified about a recorded conversation that KD’s mother had
with defendant at Muir’s request. Muir improperly vouched for
KD’s credibility when he testified about the mother’s conversation
with defendant regarding the sexual abuse allegations and about
the mother’s comment to defendant that KD does not lie. The
unchallenged testimony of a Child Protective Services worker that
she would not have filed the petition against defendant in a child
protective proceeding if she had not believed and substantiated
KD’s allegations and that there was no indication that KD was
being untruthful was similarly inadmissible because she directly
commented on KD’s credibility and bolstered the allegations
against defendant.
6. To establish a claim of ineffective assistance of counsel, a
defendant must demonstrate that counsel’s representation fell
below an objective standard of reasonableness and that there
2012] P
EOPLE V
D
OUGLAS
187
exists a reasonable probability that, absent counsel’s errors, the
result of the proceeding would have been different. The cumula-
tive effect of several errors can constitute sufficient prejudice to
warrant reversal when any one of the errors alone would not merit
reversal. A new trial is warranted if the combination of errors
denied the defendant a fair trial. The cumulative effect of the
errors must undermine the confidence in the reliability of the
verdict before a new trial is granted. There is a strong presumption
that counsel’s performance constituted sound trial strategy, and a
particular trial strategy does not constitute ineffective assistance
merely because it does not work.
7. Defendant was denied the effective assistance of counsel be-
cause of his counsel’s failure to object to the hearsay testimony of
multiple witnesses, the improper admission of KD’s Care House
interview, and the testimony that improperly bolstered KD’s credibil-
ity fell below an objective standard of reasonableness. Defense
counsel’s failure to object to the testimony did not support his trial
strategy—convincing the jury that KD was not believable—because
the witnesses’ testimony was consistent and did not demonstrate
that KD gave different versions of events. Further, defense counsel
failed to impeach KD with her preliminary examination testimony,
which contradicted some of her trial testimony and would have
supported defense counsel’s trial strategy. The cumulative effect of
the errors undermined confidence in the reliability of the verdict.
8. A defendant’s Sixth Amendment right to counsel extends to
the plea-bargaining process. A claim of ineffective assistance of
counsel may be based on counsel’s failure to properly inform the
defendant of the consequences of accepting or rejecting a plea offer.
The defendant must show that there was a reasonable probability
that the plea offer would have been presented to the court, that the
court would have accepted its terms, and that the conviction,
sentence, or both would have been less severe than under the
judgment and sentence in fact imposed. Counsel’s assistance must
be sufficient to enable the defendant to make an informed and
voluntary choice between trial and a guilty plea. When charged
with a crime having a mandatory minimum sentence, a defendant
must receive information regarding the mandatory minimum
sentence to make an informed decision whether to accept the
prosecution’s plea offer. Defendant was offered the option of
pleading guilty to fourth-degree criminal sexual conduct on the
morning of trial. Defendant’s counsel advised him that he would
receive at most 10 months in jail with the requirement that he
register as a sex offender and erroneously informed defendant that
he could receive up to a 20-year sentence if convicted of first-
188 296 M
ICH
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186 [Apr
degree criminal sexual conduct, but would most likely receive a
minimum sentence between 5 and 8 years. Defense counsel’s
failure to inform defendant that he would receive a 25-year
mandatory minimum sentence if convicted of first-degree criminal
sexual conduct fell below an objective standard of reasonableness
and resulted in the ineffective assistance of counsel. Defendant
maintained that he would have accepted the plea offer had he
known about the mandatory minimum sentence and established
prejudice through the more severe sentences imposed.
9. Because defendant was denied the effective assistance of
counsel at both the plea bargain and trial stages his convictions
and sentences had to be vacated and the case remanded for the
prosecution to reinstate the plea offer made immediately before
trial. If defendant refused to accept the plea, he would be eligible
for a new trial.
Convictions and sentences vacated; case remanded.
R
ONAYNE
K
RAUSE
, J. concurring, agreed with the majority in all
respects, with the exception that she would have held that KD’s
statement to her mother was admissible under MRE 803A(3). Fear
or some analogue thereof is not the only basis for excusing a delay
under MRE 803A(3). Rather, by also excusing delay for an “other
equally effective circumstance,” the rule requires any circum-
stance that would be similar in its effect on a victim as fear in
inducing a delay in reporting, not a circumstance that is necessar-
ily similar in nature to fear. Nor does the rule require that the
defendant have created the equally effective circumstance. Given
her age, KD might not have understood the concept of time or
understood why the abuse was something she should have re-
ported.
1. E
VIDENCE —
H
EARSAY —
T
ENDER
-Y
EARS
E
XCEPTION
.
The tender-years hearsay exception provides that a statement
describing an incident that included a sexual act performed with or
on the declarant by the defendant or an accomplice is admissible to
the extent that it corroborates testimony given by the declarant
during the same proceeding if (1) the declarant was under the age
of 10 when the statement was made, (2) the statement is shown to
have been spontaneous and without indication of being manufac-
tured, (3) either the declarant made the statement immediately
after the incident or any delay is excusable as having been caused
by fear or other equally effective circumstance, and (4) the
statement is introduced through the testimony of someone other
than the declarant; if the declarant made more than one corrobo-
rative statement about the alleged incident, only the first is
2012] P
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189
admissible; questioning by an adult is not incompatible with a
ruling that a child’s hearsay statement was spontaneous; for a
child’s report of sexual abuse to have been spontaneous, the child
must have broached the subject of sexual abuse and any questions
from adults must have been nonleading or open-ended; a child’s
young age, without more supporting testimony, does not constitute
an equally effective circumstance that would explain the lack of
disclosure for a lengthy period and excuse the delay (MRE 803A).
2. C
RIMINAL
L
AW —
E
FFECTIVE
A
SSISTANCE OF
C
OUNSEL —
C
UMULATIVE
E
RROR
.
The cumulative effect of errors can constitute sufficient prejudice to
warrant reversal on the ground of ineffective assistance of counsel
when any one of the errors alone would not merit reversal; a new
trial is warranted if the combination of errors denied the defen-
dant a fair trial; the cumulative effect of the errors must under-
mine the confidence in the reliability of the verdict before a new
trial will be granted.
3. C
RIMINAL
L
AW —
E
FFECTIVE
A
SSISTANCE OF
C
OUNSEL —
P
LEA
-B
ARGAINING
P
ROCESS —
M
ANDATORY
S
ENTENCES
.
A defendant’s Sixth Amendment right to counsel extends to the
plea-bargaining process; an ineffective-assistance-of-counsel claim
may be based on counsel’s failure to properly inform the defendant
of the consequences of accepting or rejecting a plea offer; the
defendant must show that there is a reasonable probability that
the plea offer would have been presented to the court, that the
court would have accepted its terms, and that the conviction,
sentence, or both would have been less severe than under the
judgment and sentence in fact imposed; counsel’s assistance must
be sufficient to enable the defendant to make an informed and
voluntary choice between trial and a guilty plea; a defendant must
receive information regarding a mandatory minimum sentence to
make an informed decision whether to accept the prosecution’s
plea offer.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, and Jonathan L. Poer, Prosecuting
Attorney, for the people.
Joan Ellerbusch Morgan for defendant.
Before: D
ONOFRIO
,P.J., and S
TEPHENS
and R
ONAYNE
K
RAUSE
,JJ.
190 296 M
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P
ER
C
URIAM
. Defendant appeals as of right his jury
trial convictions of first-degree criminal sexual conduct
(CSC), MCL 750.520b(1)(a) (victim under 13 years of
age), and second-degree CSC, MCL 750.520c(1)(a) (vic-
tim under 13). Because defendant was denied the effec-
tive assistance of counsel during both the pretrial and
trial proceedings and the cumulative effect of the trial
errors denied him a fair trial, we vacate his convictions
and sentences and remand to the trial court for rein-
statement of the prosecution’s plea offer. If defendant
refuses to accept the offer, he is entitled to a new trial.
I. TRIAL ERRORS
Defendant argues that the trial court erroneously
admitted the testimony of several witnesses as well as a
videotape of the child complainant’s Care House inter-
view. Some of defendant’s claims of error are preserved
for our review and some are not. “To preserve an
evidentiary issue for review, a party opposing the ad-
mission of evidence must object at trial and specify the
same ground for objection that it asserts on appeal.”
People v Aldrich, 246 Mich App 101, 113; 631 NW2d 67
(2001). We review for an abuse of discretion a preserved
challenge to the admission of evidence. People v Orr,
275 Mich App 587, 588; 739 NW2d 385 (2007). “A trial
court abuses its discretion when it chooses an outcome
that is outside the range of reasonable and principled
outcomes.” Id. at 588-589. This Court reviews for plain
error unpreserved challenges regarding the admission
of evidence that affected the defendant’s substantial
rights. People v Carines, 460 Mich 750, 763-764; 597
NW2d 130 (1999). When considering an unpreserved
error, a reviewing court will reverse “only when the
defendant is actually innocent or the error seriously
2012] P
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affected the fairness, integrity, or public reputation of
judicial proceedings.” Id. at 774.
Defendant contends that the trial court erred by
admitting, under MRE 803A, Jennifer Wheeler’s testi-
mony regarding the statements that the child, KD,
made to Wheeler during an interview at Care House.
MRE 803A, the “tender years” hearsay exception,
states in relevant part:
A statement describing an incident that included a
sexual act performed with or on the declarant by the
defendant or an accomplice is admissible to the extent that
it corroborates testimony given by the declarant during the
same proceeding, provided:
(1) the declarant was under the age of ten when the
statement was made;
(2) the statement is shown to have been spontaneous
and without indication of manufacture;
(3) either the declarant made the statement immedi-
ately after the incident or any delay is excusable as having
been caused by fear or other equally effective circumstance;
and
(4) the statement is introduced through the testimony of
someone other than the declarant.
If the declarant made more than one corroborative state-
ment about the incident, only the first is admissible under
this rule.
Defendant contends that Wheeler’s testimony was inad-
missible under MRE 803A because (1) the statements
were elicited during a forensic interview and were there-
fore not spontaneous, (2) the statements were made more
than one year after the alleged incidents and there is no
indication that fear or another equally effective circum-
stance caused the delay, and (3) the statements should not
have been “broken up” into two segments regarding each
of the alleged acts. Because defendant did not challenge
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the admissibility of the statements on this basis below,
that argument is not preserved for our review. Having
reviewed the record, we conclude that Wheeler’s testi-
mony regarding KD’s statements was not properly admis-
sible under MRE 803A.
Whether KD’s statements to Wheeler were “sponta-
neous” within the meaning of MRE 803A is a close
question. In People v Gursky, 486 Mich 596, 614; 786
NW2d 579 (2010), our Supreme Court held that ques-
tioning by an adult “is not incompatible with a ruling
that the child produced a spontaneous statement.” The
Court explained, however, that “for such statements to
be admissible, the child must broach the subject of
sexual abuse, and any questioning or prompts from
adults must be nonleading or open-ended in order for
the statement to be considered the creation of the
child.” Id. KD broached the subject of sexual abuse after
Wheeler told KD that children tell her things that have
happened to them, including secrets and things that
people tell the children not to say. Wheeler and KD
engaged in the following discussion:
Ms. Wheeler: Well, you know what, [KD], I’m gonna tell
you a little bit about me and this place here, okay? All right.
My name’s Jennifer just in case you forgot that. This place
here is called Care House, and we call it Care House not
because anyone lives here—
[KD]: Um-hum.
Ms. Wheeler: —just because everyone who works here
really cares about kids. You know what my job is here at
Care House?
[KD]: M-mm.
Ms. Wheeler: It’s to listen and talk with kids. That’s
what I do every single day all day long. I talk to little kids.
I talk to older kids like you. Sometimes even teenagers.
[KD]: Teenagers?
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Ms. Wheeler: Yeah, teenagers. And when I talk to kids,
they tell me everything. They tell me about their friends
and their families. They tell me about their moms and their
dads. They tell me about things that happen to them.
Things that they saw. Things that they heard. They tell me
about worries and problems. They tell me about secrets.
They even tell me about things that people tell them not to
tell, and that’s okay because as long as you talk to me today,
you get to tell me anything and everything that you want.
Okay?
[KD]: Know what, my daddy makes me suck his peepee.
Considering Wheeler’s prompting, the fact that KD had
already talked to her therapist about the alleged sexual
abuse, and the fact that KD’s mother had told her
during the 45- to 60-minute drive that she was going to
be interviewed, KD’s statements to Wheeler were argu-
ably not spontaneous.
More certain for purposes of MRE 803A is that KD’s
statements to Wheeler were not made immediately
after the incidents and there is no indication that the
delay was caused by fear or another “equally effective
circumstance.” In fact, KD did not make the statements
until approximately one year after the alleged incidents.
KD’s mother testified that KD had told her about the
sexual abuse “out-of-the-blue” while they were in the
car. KD’s Care House interview occurred soon thereaf-
ter. The prosecution suggests that the delay was excus-
able because of KD’s “extreme youth,” but nothing in
the record indicates that KD’s age was a reason for the
delay. We note that KD was approximately 3
1
/
2
years old
at the time of the alleged incidents and did not disclose
the abuse for approximately one year. KD’s youth,
without more, is not an equally effective circumstance
that sufficiently explains why she did not disclose the
abuse for such a long time. Without any explanation
regarding the cause of the delay, let alone an indication
194 296 M
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that fear or a similar circumstance was the reason for
the delay, KD’s statements to Wheeler were inadmis-
sible under MRE 803A(3). A trial court abuses its
discretion when it admits evidence that is legally inad-
missible as a matter of law. Gursky, 486 Mich at 606.
KD’s statement to Wheeler regarding sucking defen-
dant’s “peepee” was also inadmissible under MRE 803A
because it was not KD’s first corroborative statement
about that incident. KD made the first corroborative
statement about that incident to her mother rather
than Wheeler. Thus, Wheeler’s testimony that KD told
her that defendant made her suck his “peepee” was
inadmissible under MRE 803A.
Wheeler also testified that KD told her that she and
her stepsister had touched defendant’s penis on one
occasion. This incident was separate from the incident
during which the alleged oral sex occurred. While KD’s
statements regarding the touching incident were the
first corroborative statements regarding that incident,
Wheeler’s testimony regarding the statements was nev-
ertheless inadmissible because not all the requisites of
MRE 803A were satisfied, as discussed earlier. Thus,
KD’s statements to Wheeler regarding both incidents
were inadmissible under MRE 803A.
Defendant next argues that the trial court erred by
admitting the videotape of KD’s Care House interview.
Over defense counsel’s objection that the videotape was
inadmissible under MRE 803A, the video was played
before the jury. Because KD’s statements to Wheeler,
depicted in the video, were inadmissible under MRE 803A,
the admission of the videotape was also erroneous.
1
1
We reject the prosecution’s argument that KD’s statements to Wheeler
and the videotape were admissible under MRE 803(24), the “catchall
exception” to the hearsay rule. To be admissible under that rule, a statement
must have “circumstantial guarantees of trustworthiness equivalent to
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Defendant next contends that KD’s credibility was
improperly bolstered when the trial court admitted the
hearsay testimony of KD’s mother, JB, who testified that
while riding in the car one day, KD spontaneously said, “I
sucked my daddy’s peepee until the milk came out, and
my daddy said, oh, yeah, that’s how you do it.” Defense
counsel did not object to the testimony, which constituted
inadmissible hearsay. Although the prosecution argues
that the testimony was admissible under MRE 803A, the
statement was not made immediately after the incident
and there is no indication that fear or another equally
effective circumstance caused the delay. Thus, the testi-
mony was inadmissible under MRE 803A.
2
Defendant next argues that the trial court erred by
admitting the hearsay testimony of Michigan State
Police Detective Sergeant Gary Muir, which improperly
vouched for KD’s credibility. “It is generally improper
those of the categorical hearsay exceptions.” People v Katt, 468 Mich 272,
290; 662 NW2d 12 (2003). This requirement was not met in this case
because the allegations arose approximately one year after the alleged
incidents and immediately after defendant and his fiancée were married and
discovered that they were expecting a baby. Defendant’s wife testified that
KD’s mother was jealous and often telephoned defendant. Unlike the
interview in Katt, the interview in this case occurred because of the sexual
abuse allegations, and KD was aware that she was going to be interviewed.
See id. at 275-276. Further, during the interview, KD told Wheeler that she
had to talk to her mother “for a minute” because she had to tell her mother
what Wheeler had told her. Thus, the statements that KD made to Wheeler
did not have circumstantial guarantees of trustworthiness equivalent to
those of other hearsay exceptions, and the circumstances of this case are
distinguishable from those in Katt.
2
As previously recognized, the record fails to indicate any reason for
KD’s yearlong delay in disclosing the alleged abuse. Thus, on this record,
KD’s statement to JB was inadmissible under MRE 803A. We note,
however, that if this case is retried and the prosecution is able to establish
that fear or another equally effective circumstance caused the delay, KD’s
statement to JB may be properly admissible under MRE 803A. We
emphasize that our determination regarding this issue is based on the
record before us.
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for a witness to comment or provide an opinion on the
credibility of another witness, because credibility mat-
ters are to be determined by the jury.” People v Dobek,
274 Mich App 58, 71; 732 NW2d 546 (2007).
At trial, Muir testified about a recorded telephone
conversation that JB had with defendant at Muir’s
request. When asked about the context of the conver-
sation, Muir testified:
A. She [JB] was asking—she was telling him basically
what [KD] had talked about, and based on that informa-
tion, he was talking to her back about it, too.
Q. Okay, well, let’s cut right to it. Did she tell or do you
recall did she tell the defendant the allegations that [KD]
had made?
A. Yes, she did.
Q. Okay, what specifically do you recall her telling the
defendant?
A. That [KD] had said that she had sucked on her dad’s
peepee and stuff came out basically.
Q. Okay, and you recall her actually telling the defen-
dant that on the telephone.
A. Yes.
Q. All right, and what was his response if you can recall?
A. He didn’t know, y’know, why she was saying that
basically.
Q. Okay. Did she make any other inquiries of the
defendant on the telephone?
A. Yeah. Without reviewing the tape, I recall there was
other conversation, and she was just basically trying to get
to the bottom of, y’know, I know my daughter don’t lie; why
is she making these allegations then; was there anything
that happened that, y’know, she might have seen or ob-
served that would cause her to say this happened?
***
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Q. Was there ever any discussion about an incident that
may have occurred where it was acknowledged that [KD]
touched the defendant?
A. There were actually—actually two incidents. One was
touching, and one was when he was actually—another
time, and I don’t know what the time sequence was. There
was one where he had made a comment about [KD]
touching him and he’s find—waking up or something to
that effect, and he said that he told her [JB] about that, and
she [JB] didn’t recall that.
Muir’s testimony, which was admitted without any
objection by defense counsel, constituted inadmissible
hearsay and tended to bolster KD’s credibility. As such,
it was not properly admissible.
Defendant also argues that the testimony of Child
Protective Services worker Diana Fallone was inadmis-
sible because it improperly vouched for KD’s credibility.
Again, defense counsel did not object to the testimony.
Fallone testified that she filed a petition in a child
protective proceeding based on KD’s allegations. She
further testified as follows:
Q. If you thought the child was lying, and I don’t mean
this particular case, but any case—
A. Right.
Q. —you thought the child was lying, would you still
seek a petition?
A. No.
***
Q. In this case before us now regarding [KD]—
A. Um-hum.
Q. Is that a yes?
A. Yes.
Q. Okay.
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A. Sorry.
Q. Did—did you—was this investigation that you’ve
described to us, was it completed?
A. Yes.
Q. Okay, and you’re indicating that you sought the
court’s assistance, you filed a petition in a child protection
proceeding in Oakland County, correct?
A. Correct.
Q. All right. Does that—can that lead us to the conclu-
sion that you found that the allegations had been substan-
tiated?
A. Yes.
In addition, Fallone testified that “there was no indica-
tion that she [KD] was coached or being untruthful[.]”
Fallone’s testimony directly commented on KD’s cred-
ibility and bolstered the allegations against defendant.
Accordingly, the testimony was not properly admis-
sible.
3
Dobek, 274 Mich App at 71.
Defendant next argues that he was denied the effec-
tive assistance of counsel because defense counsel failed
to object to the erroneous admission of the testimony
previously discussed. He also contends that his counsel
rendered ineffective assistance by failing to impeach
KD with her preliminary examination testimony.
“Whether a person has been denied effective assistance
of counsel is a mixed question of fact and constitutional
law.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d
246 (2002). This Court reviews for clear error a trial
3
We note that it was permissible for Fallone to testify in the abstract
regarding characteristics consistent or inconsistent with coached allega-
tions. Her testimony that she conducted an investigation before seeking
a petition was likewise permissible. The error occurred when Fallone was
permitted to render an opinion specifically regarding KD’s credibility.
That testimony improperly vouched for KD’s credibility and was inad-
missible. Dobek, 274 Mich App at 71.
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court’s findings of fact and de novo its conclusions of
law. Id. To establish a claim of ineffective assistance of
counsel, a defendant must demonstrate that counsel’s
representation fell below an objective standard of rea-
sonableness and that there exists a reasonable probabil-
ity that, absent counsel’s errors, the result of the
proceeding would have been different. People v Swain,
288 Mich App 609, 643; 794 NW2d 92 (2010). A defen-
dant must overcome the strong presumption that coun-
sel’s performance constituted sound trial strategy.
People v Toma, 462 Mich 281, 302; 613 NW2d 694
(2000).
Defense counsel testified at a Ginther
4
hearing that
his trial strategy was to convince the jury that KD was
not believable, that JB had coached KD to make the
allegations because JB disliked defendant, and that KD
had told different versions of the story to different
people. Defense counsel claimed that his failure to
object to the testimony of witnesses other than Wheeler
supported his trial strategy because their testimony
showed that KD had told different stories to different
people. We recognize that a particular trial strategy
does not constitute ineffective assistance of counsel
merely because it does not work. People v Matuszak, 263
Mich App 42, 61; 687 NW2d 342 (2004). We conclude,
however, that counsel’s failure to object to the hearsay
testimony and the testimony that improperly bolstered
KD’s credibility fell below an objective standard of
reasonableness because the witness testimony was, on
the whole, consistent and did not demonstrate that KD
had given different versions of events. Further, defense
counsel’s failure to object to the testimony that bol-
stered KD’s credibility did not support his trial strategy
of convincing the jury that KD was not believable.
4
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
200 296 M
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The first witness to testify at trial was KD herself,
who testified that she “sucked [her] daddy’s peepee.”
She claimed that she touched defendant’s penis with
her hands on one occasion and with her mouth on
another occasion. She further testified that “milk”
came out of defendant’s “peepee,” which tasted “like
peepee and regular milk.” KD denied telling JB that the
“milk” tasted like cherry. Thereafter, JB testified with-
out objection that KD had told her that she “sucked
[her] daddy’s peepee until the milk came out, and [her]
daddy said, oh, yeah, that’s how you do it.” This
testimony was hearsay, as previously discussed, and was
consistent with and bolstered KD’s testimony. Upon
questioning by defense counsel, JB testified that KD
had never told her that the “milk” tasted like cherry,
but she recalled KD testifying to that effect “at the
preliminary thing.” Defense counsel did not impeach
KD with her preliminary examination testimony that
the “milk” tasted like cherry.
Defense counsel also permitted Muir to testify with-
out objection that JB had telephoned defendant and
asked him about KD’s allegation that “she had sucked
on her dad’s peepee and stuff came out[.]” As previously
discussed, Muir repeated JB and defendant’s conversa-
tion, including JB’s inquiry of defendant regarding why
KD was making the allegation because KD does not lie.
Muir also testified that defendant admitted that he
awoke on one occasion to discover KD touching his
penis. Defendant told JB that he had previously told her
about that incident, but JB did not recall defendant
mentioning it. As discussed, this testimony constituted
hearsay and improperly bolstered KD’s credibility.
In addition, defense counsel allowed Fallone to testify
without objection that she found KD’s allegations cred-
ible and that there was no indication that KD had been
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coached. Also, as previously discussed, this testimony
was improper, and counsel’s failure to object was not
consistent with his trial strategy of discrediting KD. At
the Ginther hearing, counsel testified, “[I]f somebody
was saying it’s my opinion that she’s being truthful, I
believe I would have objected to that.” To the contrary,
counsel failed to object to Fallone’s testimony that
bolstered KD’s testimony.
Further, defense counsel failed to impeach KD with
her preliminary examination testimony, during which
she made several statements that supported counsel’s
trial strategy. In particular, KD testified that her mouth
never touched defendant’s penis, that her mother
“wanted [her] to tell you people [she] sucked it” and
that “milk” came out, and that her mother wanted her
to “tell a lie that [she] didn’t know anything about[.]”
Although KD also made inconsistent statements at the
preliminary examination that tended to support her
allegations, there was no logical reason for counsel not
to impeach KD’s trial testimony with her preliminary
examination testimony because it supported counsel’s
theory that KD was not credible and that JB had
coached her to make the allegations. Such impeachment
would have supported counsel’s strategy, discussed at
the Ginther hearing, to convince the jury that “the
young lady was testifying as to what she thought
happened, but...she really had no idea what had
happened.”
After reviewing the record, we conclude that coun-
sel’s ineffective assistance, in addition to the erroneous
admission of the Care House interview and Wheeler’s
testimony regarding KD’s statements, denied defen-
dant a fair trial. “The cumulative effect of several errors
can constitute sufficient prejudice to warrant reversal
even when any one of the errors alone would not merit
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reversal....”Dobek, 274 Mich App at 106. A new trial
is warranted if the combination of errors denied the
defendant a fair trial. Id. “[T]he cumulative effect of the
errors must undermine the confidence in the reliability
of the verdict before a new trial is granted.” Id.
Defense counsel’s failure to object to the hearsay
testimony that repeated and bolstered KD’s testimony
in combination with Wheeler’s erroneously admitted
testimony and the improper admission of KD’s Care
House interview undermined the reliability of the ver-
dict. Perhaps the most damning evidence was the video
of KD’s Care House interview, which depicted then
four-year-old KD saying, “[M]y daddy makes me suck
his peepee,” “I just sucked it because I know how to
suck peepee,” and “milk” came out. The video further
depicted Wheeler and KD’s discussion as follows:
Q. And what did—what did it taste like?
A. Taste like peepee.
Q. Tastes like peepee. And where did the white stuff like
milk go? Where did it go?
A. Like this. Like this. It goed like all the way up. And
I—I like drinked it, and I said, pew, that’s yuk.
Q. You said you drank it, and you said, pew, that’s yuk?
A. [Nods head]
Q. Okay, and then where did it go?
A. Hm?
Q. Did it go—where did it go? Where did all the white
stuff like milk go?
A. In my mouth.
Q. In your mouth, okay. And—and where did it go once
it went in your mouth?
A. It—[points to her throat]
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The cumulative effect of the errors denied defendant a
fair trial and undermined confidence in the reliability of
the verdict. Id.
The prosecution argues that a new trial is not war-
ranted because when Officer Larry Rothman con-
fronted defendant with the allegations, defendant
merely responded that he “did not remember” engaging
in oral intercourse with KD. On this point, however,
Rothman’s testimony was equivocal. Rothman testified
that when he first asked defendant about the allega-
tions, defendant responded, “[N]o, it didn’t happen.”
Thereafter, Rothman questioned defendant further.
With respect to the additional questioning, Rothman
testified that defendant’s statement that he did not
remember was made in response to Rothman’s direct
question about whether defendant remembered an in-
cident in which he ejaculated into KD’s mouth. Defense
counsel clarified Rothman’s testimony as follows:
Q. Well, the point I’m getting to, detective, is I don’t
want anybody to be under any misunderstanding that you
looked at [defendant] and said, did you sexually assault
your daughter, and him saying I can’t remember doing
that. The issue is you asked him do you remember and then
him saying I don’t remember.
A. Right, that’s correct.
On redirect, Rothman testified that defendant’s re-
sponse that he did not remember was in response to
both direct questioning about whether the incident
occurred and questioning regarding whether defendant
remembered the conduct occurring. In light of the
extensive errors that permeated defendant’s trial,
Rothman’s testimony is not sufficient to surmount our
conclusion that defendant was denied a fair trial and
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that the errors undermined the reliability of the verdict.
We therefore vacate defendant’s convictions and sen-
tences.
II. PRETRIAL ERRORS
Defendant also argues that he was denied the effec-
tive assistance of counsel at the pretrial stage of the
proceeding because counsel failed to inform him that he
would be subject to a 25-year mandatory minimum
sentence if he was convicted of first-degree CSC and
because counsel erroneously advised him that he would
not be able to live with his children if he was required to
register as a sex offender pursuant to the Sex Offenders
Registration Act (SORA), MCL 28.721 et seq. Again, we
conclude that counsel’s performance was constitution-
ally deficient. We further conclude that counsel’s defi-
cient representation prejudiced defendant.
A defendant’s Sixth Amendment right to counsel
extends to the plea-bargaining process. Lafler v Cooper,
566 US ___, ___; 132 S Ct 1376, 1384; 182 L Ed 2d 398
(2012). A claim of ineffective assistance of counsel may
be based on counsel’s failure to properly inform the
defendant of the consequences of accepting or rejecting
a plea offer. Hill v Lockhart, 474 US 52, 57-58; 106 S Ct
366; 88 L Ed 2d 203 (1985). As for ineffective-
assistance-of-counsel claims generally, if a defendant’s
claim is based on counsel’s failure to properly advise the
defendant with respect to a plea offer, the defendant
must show that his or her attorney’s performance “ ‘fell
below an objective standard of reasonableness’ ” and
that “ ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the pro-
ceeding would have been different.’ ” Padilla v Ken-
tucky, 559 US ___; 130 S Ct 1473, 1481-1482; 176 L Ed
2d 284 (2010), quoting Strickland v Washington, 466
2012] P
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OUGLAS
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US 668, 688, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
“In the context of pleas a defendant must show the
outcome of the plea process would have been different
with competent advice.” Lafler, 566 US at ___; 132 S Ct
at 1384. Counsel’s assistance must be sufficient to
enable the defendant “to make an informed and volun-
tary choice between trial and a guilty plea.” People v
Corteway, 212 Mich App 442, 446; 538 NW2d 60 (1995).
Defense counsel’s failure to inform defendant in this
case that he would receive a 25-year mandatory mini-
mum sentence if convicted of first-degree CSC fell
below an objective standard of reasonableness. Padilla,
559 US at ___; 130 S Ct at 1482. MCL 750.520b(2)(b)
clearly provides for a mandatory 25-year minimum
sentence for a first-degree CSC violation that is “com-
mitted by an individual 17 years of age or older against
an individual less than 13 years of age....” Thus,
counsel’s advice to defendant that he could face up to a
20-year sentence, but would most likely be sentenced to
a minimum term between 5 and 8 years in accordance
with the sentencing guidelines, was erroneous. More-
over, the information regarding the mandatory mini-
mum sentence was essential to enable defendant to
make an informed decision about whether to accept the
prosecution’s plea offer or proceed to trial. Corteway,
212 Mich App at 446.
In Lafler, the Court articulated the standard that a
defendant must establish in order to demonstrate
prejudice in cases in which counsel’s ineffective advice
led the defendant to reject a plea offer and proceed to
trial. The Court stated:
In these circumstances a defendant must show that but
for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented
206 296 M
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to the court (i.e., that the defendant would have accepted
the plea and the prosecution would not have withdrawn it
in light of intervening circumstances), that the court would
have accepted its terms, and that the conviction or sen-
tence, or both, under the offer’s terms would have been less
severe than under the judgment and sentence that in fact
were imposed.
[
5
]
Defense counsel’s erroneous advice here prejudiced
defendant. On the morning of trial, the prosecution
offered defendant the option of pleading guilty of
fourth-degree CSC. Defense counsel advised defendant
that if he accepted the offer, the worst sentence that he
could receive was 10 months in jail with the require-
ment that he register as a sex offender. Counsel testified
at the Ginther hearing that if he had known that
first-degree CSC carried a mandatory 25-year minimum
sentence, he “would have absolutely pressed [defen-
dant] and insisted that he take the deal.” Moreover,
defendant testified that, had his attorney advised him of
the 25-year mandatory minimum sentence, he would
have taken the plea offer because “[a] 25-year minimum
is a lot different than the possibility of not going to
prison.” Defendant maintained that he would have
accepted the plea offer even if doing so meant that he
would have been permitted very little or no contact with
his children. According to defendant, counsel errone-
ously advised him that he would not be permitted to
reside with his children for as long as he was required to
register as a sex offender. Defendant testified that he
5
Lafler, 566 US at ___; 132 S Ct at 1385. Similarly, the Court stated:
If a plea bargain has been offered, a defendant has the right to
effective assistance of counsel in considering whether to accept it.
If that right is denied, prejudice can be shown if loss of the plea
opportunity led to a trial resulting in a conviction on more serious
charges or the imposition of a more severe sentence. [Id. at ___;
132 S Ct at 1387.]
2012] P
EOPLE V
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OUGLAS
207
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did not learn until after trial that SORA would not have
prohibited him from residing with his children and that
counsel’s misinformation regarding SORA contributed
to his decision to reject the plea offer.
6
Although the
trial court determined that no error had occurred
because defendant was aware of the possibility that he
could be sentenced to a 20-year term, there is a signifi-
cant difference between the possibility of a 20-year term
with the likelihood of serving a much shorter sentence
and the certainty of serving a 25-year minimum term.
Defendant has thus shown that the offer was valid, that
he would have accepted the offer, and that his convic-
tions and sentences would have been much less severe
than those that were imposed after trial. Therefore,
defendant has established that counsel’s failure to
inform him of the actual consequences of accepting or
rejecting the plea offer prejudiced him. Lafler, 566 US
at ___; 132 S Ct at 1384.
Having concluded that defendant satisfied both prongs
of the Strickland test, we must now determine the appro-
priate remedy. In doing so, we note that the circumstances
of this case are very similar to those in Lafler, in which
the respondent had rejected two plea offers on the basis of
defense counsel’s erroneous advice and was convicted
following trial. Id. at___; 132 S Ct at 1383. The parties
agreed that counsel’s performance was constitutionally
deficient and that the respondent had established the
requisite prejudice. Id. at ___; 132 S Ct at 1384, 1386,
6
In People v Fonville, 291 Mich App 363, 394-395; 804 NW2d 878
(2011), this Court held that defense counsel’s representation was consti-
tutionally defective because counsel had failed to advise the defendant
that pleading guilty would require him to register as a sex offender
pursuant to SORA. Although defense counsel advised defendant in this
case that he would be required to register as a sex offender, counsel
erroneously informed defendant that his registration would preclude him
from living with his children for the duration of his registry, or 20 years.
208 296 M
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1391. The Court noted that “Sixth Amendment remedies
should be ‘tailored to the injury suffered from the consti-
tutional violation’ ” and “must ‘neutralize the taint’ of a
constitutional violation....”Id. at ___; 132 S Ct at 1388,
quoting United States v Morrison, 449 US 361, 364-365;
101 S Ct 665; 66 L Ed 2d 564 (1981). The Court concluded:
The correct remedy in these circumstances...istoorder
the State to reoffer the plea agreement. Presuming respon-
dent accepts the offer, the state trial court can then exercise
its discretion in determining whether to vacate the convic-
tions and resentence respondent pursuant to the plea agree-
ment, to vacate only some of the convictions and resentence
respondent accordingly, or to leave the convictions and sen-
tence from trial undisturbed. See Mich. Ct. Rule 6.302(C)(3)
(2011) (“If there is a plea agreement and its terms provide for
the defendant’s plea to be made in exchange for a specific
sentence disposition or a prosecutorial sentence recommen-
dation, the court may...reject the agreement”). Today’s
decision leaves open to the trial court how best to exercise
that discretion in all the circumstances of the case. [Lafler,
566 US at ___; 132 S Ct at 1391.]
The instant case differs from Lafler in one material
respect. In this case, defendant was denied the effective
assistance of counsel at both the plea bargain and trial
stages of the proceeding.
7
Accordingly, taking this cir-
cumstance into consideration, we vacate defendant’s
convictions and sentences and remand to the trial court
for the prosecution to reinstate its plea offer made
immediately before trial. If defendant refuses to accept
the plea offer, he is entitled to a new trial.
8
7
The respondent in Lafler was convicted following a fair trial, free of
constitutional error. See Lafler, 566 US at ___; 132 S Ct 1385-1388.
8
We note that it does not appear from the record that the prosecution
offered defendant a plea agreement, as was the case in Lafler. See Lafler,
566 US at ___; 32 S Ct at 1383, 1387, 1391.
2012] P
EOPLE V
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OUGLAS
209
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Defendant’s convictions and sentences are hereby
vacated, and this case is remanded to the trial court for
further proceedings consistent with this opinion. We do
not retain jurisdiction.
D
ONOFRIO
,P.J., and S
TEPHENS
, J., concurred.
R
ONAYNE
K
RAUSE
,J.(concurring). I agree and concur
with the majority in all respects other than the major-
ity’s conclusion that KD’s statement to her mother was
not admissible pursuant to MRE 803A. Under the
circumstances of this case, I would not reverse the
admission of KD’s report of the abuse to her mother
under MRE 803A(3). Because, for the other reasons
discussed by the majority, this matter must be re-
manded for a new trial irrespective of the admissibility
of that statement, I concur in the result. However, I
write separately to address the concerns I have regard-
ing what constitutes an excusable delay in reporting
under MRE 803A(3).
The so-called “tender-years exception” to the hearsay
evidence rule originated in People v Gage, 62 Mich 271;
28 NW 835 (1886). At that time, the exception specifi-
cally discussed delays in making a complaint being
excusable only if caused by “silence [as] the direct
consequence of fears of chastisement induced by threats
of the perpetrator of the wrong.” Id. at 274. The
alternative of excusing delay caused by “other equally
effective circumstance” was appended to that rule by
our Supreme Court in People v Baker, 251 Mich 322,
326; 232 NW 381 (1930). Importantly, the Court in that
case discussed a delay after the defendant, who was the
father of the victim, simply told the victim not to tell
anyone else. The Court held that the delay was excus-
able because
210 296 M
ICH
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186 [Apr
C
ONCURRING
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PINION BY
R
ONAYNE
K
RAUSE
,J.
[a] child would ordinarily have no sense of outrage at such
acts by her own father, and complaining of them would not
occur to her. Her telling of the affair would more naturally
arise as the relation of an unusual occurrence and might be
delayed until something arose to suggest it. [Id.]
The Court opined that a mere admonition by the
victim’s father to not tell anyone what happened was
“as effective to promote delay as threats by a stranger
would have been.” Id.
I understand MRE 803A to be nothing but a codifi-
cation of the old common-law tender-years rule, which
our Supreme Court held in 1982 did not survive the
adoption of the then new Rules of Evidence. People v
Kreiner, 415 Mich 372, 377-378; 329 NW2d 716 (1982).
Although I cannot find any cases directly under MRE
803A that are helpful in explaining what an “other
equally effective circumstance” might be, I think that
Baker is not only relevant, but binding. Therefore, fear
or some analogue thereof is not the only basis for
excusing a delay under MRE 803A(3). Rather, MRE
803A(3) requires any circumstance that would be simi-
lar in its effect on a victim as fear in inducing a delay in
reporting, not a circumstance that is necessarily similar
in nature to fear. Indeed, the plain language of the rule
explains that it must be an “equally effective circum-
stance,” not necessarily a similar one. Nothing in the
rule even requires that any “other equally effective
circumstance” must have been affirmatively created by
the defendant.
The abuse in question occurred in mid-May to June
2008. At that time, KD was living with defendant,
apparently because of some kind of involvement by
Child Protective Services. KD did not return to living
with her mother until the next January, approximately
eight months later. KD was, moreover, approximately
2012] P
EOPLE V
D
OUGLAS
211
C
ONCURRING
O
PINION BY
R
ONAYNE
K
RAUSE
,J.
3
1
/
2
years old at the time of the abuse. KD’s mother and
the Care House interviewer both explained that four-
year-olds do not understand “concepts of time.” Given
that KD was living with defendant until January 2009,
she may not have had a realistic opportunity to report
the abuse for most of the year it took her to do so. The
delay in disclosure would not likely have been subjec-
tively apparent to her, and, as Baker suggests, KD
would not necessarily have even understood at her age
why the abuse was something she should report to
anyone. Even if she had appreciated the nature of the
acts, it is common and basic knowledge of how human
beings operate that shame and confusion are powerful
motivators of silence.
This is not to say that I do not find the record
disappointing. It certainly would have been better had
some kind of explicit record been made directly explain-
ing why KD’s disclosure did not occur until approxi-
mately a year after the abuse took place. Had defendant
objected to the admission of this testimony at trial, a
record like this one might not be sufficient to permit the
admission of KD’s disclosure to her mother to stand.
However, had defendant objected, the prosecution
would have had an opportunity to make that record. I
do not decide that question, though. As the matter is
before us, our review of this unpreserved evidentiary
challenge is for plain error affecting defendant’s sub-
stantial rights. People v Carines, 460 Mich 750, 763-764;
597 NW2d 130 (1999). Consequently, reversal is not
warranted merely because an error occurred, but “only
when the defendant is actually innocent or the error
seriously affected the fairness, integrity, or public repu-
tation of judicial proceedings.” Id. at 774.
Under the totality of the circumstances of this case, I
would conclude that plain error affecting defendant’s
212 296 M
ICH
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186 [Apr
C
ONCURRING
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ONAYNE
K
RAUSE
,J.
substantial rights did not occur and, consequently, I
would not reverse the admission of KD’s disclosure of
the abuse to her mother. However, because this matter
must be remanded for a new trial in any event, I concur
with the majority.
2012] P
EOPLE V
D
OUGLAS
213
C
ONCURRING
O
PINION BY
R
ONAYNE
K
RAUSE
,J.
In re WATERS DRAIN DRAINAGE DISTRICT
Docket No. 298873. Submitted November 9, 2011, at Grand Rapids.
Decided April 17, 2012, at 9:00 a.m. Leave to appeal denied, 493
Mich 871.
The Kent County Drain Commissioner apportioned the cost of
improvements to the Waters Drain to property owners located in
the Waters Drain Special Assessment District. Arath IV, Inc., and
Bomarko, Inc., owners of land within the special assessment
district, appealed the apportionment in the Kent County Probate
Court. The court, David M. Murkowski, J., appointed a three-
member board of review that subsequently rejected Arath and
Bomarko’s challenge and upheld the commissioner’s apportion-
ment. The court then ordered Arath and Bomarko to pay the
commissioner’s attorney fees and to compensate each board of
review member $500, plus travel expenses. Arath and Bomarko
appealed in the Kent Circuit Court, challenging the probate
court’s assessment of attorney fees and the amount of compensa-
tion awarded to the members of the board of review. The circuit
court, Mark A. Trusock, J., affirmed the order of the probate court.
The Court of Appeals granted Arath and Bomarko leave to appeal.
The Court of Appeals held:
1. MCL 280.158 provides that when the apportionment of the
commissioner is sustained by a board of review, the appellant shall
pay “the whole costs and expenses” of the appeal. The Drain Code,
MCL 280.1 et seq., does not define the term “whole,” but a
dictionary defines it as comprising the full quantity or amount and
entire or total. The Legislature, by using the expansive term
“whole,” intended that a landowner appealing an apportionment
must pay the entire or total amount of costs and expenses of the
appeal if that apportionment is sustained. The legal expenses of
the commissioner in defending the appeal constituted a portion of
the entire or total costs or expenses of the appeal. The phrase
“whole costs and expenses” in MCL 280.158 thus encompasses
attorney fees.
2. Compensation for board of review members is included in the
broad “whole costs and expenses” language of MCL 280.158. The
214 296 M
ICH
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214 [Apr
probate court did not abuse its discretion under the circumstances of
this case by compensating the board of review members in the
amount of $500 each.
Affirmed.
D
RAINS —
A
PPORTIONMENTS —
A
PPEALS —
C
OSTS —
E
XPENSES —
A
TTORNEY
F
EES —
B
OARD OF
R
EVIEW
M
EMBERS
’C
OMPENSATION
.
When the apportionment of the costs of improvements by a drain
commissioner under the Drain Code is sustained by a board of
review, the landowner appealing the apportionment must pay the
entire or total amount of the costs and expenses of the appeal,
including the commissioner’s attorney fees and compensation for
the members of the board of review (MCL 280.158).
Rhoades McKee PC (by Gregory G. Timmer and
Patrick R. Drueke) for Arath IV, Inc., and Bomarko, Inc.
The Hubbard Law Firm, PC (by Michael G. Wood-
worth and Michelle M. Brya), for the Kent County
Drain Commissioner.
Before: W
ILDER
,P.J., and H
OEKSTRA
and B
ORRELLO
,JJ.
P
ER
C
URIAM
. Plaintiffs, Arath IV, Inc., and Bomarko,
Inc., appeal by leave granted
1
a circuit court order
affirming a probate court order awarding defendant,
the Kent County Drain Commissioner, attorney fees
under MCL 280.158 and compensating board of review
members. For the reasons set forth in this opinion, we
affirm.
I. FACTS AND PROCEDURAL HISTORY
Defendant undertook to make improvements to the
Waters Drain and apportioned the cost of such improve-
ments to property owners located in the Waters Drain
Special Assessment District in accordance with the
1
In re Waters Drain Drainage Dist, unpublished order of the Court of
Appeals, entered February 28, 2011 (Docket No. 298873).
2012] In re W
ATERS
D
RAIN
215
Drain Code, MCL 280.1 et seq. Plaintiffs owned land
within the special assessment district. As permitted by
MCL 280.155, plaintiffs appealed the apportionment in
the Kent County Probate Court. The probate court
appointed a three-member board of review. The board of
review rejected plaintiffs’ challenge and upheld defen-
dant’s apportionment. Thereafter, the probate court
ordered plaintiffs to pay $6,659.97 for defendant’s at-
torney fees and to compensate each board member in
the amount of $500, plus travel expenses, for a total of
$1,552.82. Plaintiffs appealed in the circuit court, which
affirmed the probate court’s award of attorney fees and
compensation for the board members. Plaintiffs appeal
by leave granted.
II. ANALYSIS
A. ATTORNEY FEES
Plaintiffs argue that the probate court erred by
awarding defendant attorney fees under MCL 280.158.
“A trial court’s grant of attorney fees is reviewed for
an abuse of discretion.” McIntosh v McIntosh, 282 Mich
App 471, 483; 768 NW2d 325 (2009). The abuse of
discretion standard recognizes “ ‘that there will be
circumstances in which...there will be more than one
reasonable and principled outcome.’ ” Maldonado v
Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809
(2006), quoting People v Babcock, 469 Mich 247, 269;
666 NW2d 231 (2003). Under this standard, an abuse of
discretion occurs when the decision results in an out-
come falling outside the range of principled outcomes.
Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842
(2006).
This case requires us to construe MCL 280.158.
“Issues of statutory interpretation are questions of law
216 296 M
ICH
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that are reviewed de novo.” Klooster v City of Char-
levoix, 488 Mich 289, 295; 795 NW2d 578 (2011). “When
interpreting statutory language, courts must ascertain
the legislative intent that may reasonably be inferred
from the words in a statute.” Allen v Bloomfield Hills
Sch Dist, 281 Mich App 49, 52-53; 760 NW2d 811
(2008). Unless defined in the statute, each word should
be given its plain and ordinary meaning. Brackett v
Focus Hope, Inc, 482 Mich 269, 276; 753 NW2d 207
(2008). In the absence of a statutory definition of a
term, a court may consult a lay dictionary to determine
the meaning of a common word that lacks a unique legal
meaning. Id. This Court should presume that each
statutory word or phrase has meaning, thus avoiding
rendering any part of a statute nugatory. Allen, 281
Mich App at 53.
A court may award costs and attorney fees only when
specifically authorized by statute, court rule, or a recog-
nized exception. MCL 600.2405(6); Phinney v Perlmutter,
222 Mich App 513, 560; 564 NW2d 532 (1997). MCL
280.158 provides:
In case the apportionment of the commissioner shall be
sustained by such board of review the appellant shall pay
the whole costs and expenses of such appeal. Such costs and
expenses shall be ascertained and determined by the judge
of probate, and if not paid the appellant shall be liable on
his bond for the full amount of such costs in an action at
law, to be brought by the commissioner on the bond before
any court having competent jurisdiction.
Plaintiffs argue that the “whole costs and expenses”
language of MCL 280.158 does not encompass attorney
fees. While the statute does not explicitly refer to
attorney fees, it does provide that an “appellant shall
pay the whole costs and expenses of such appeal.” MCL
280.158 (emphasis added). The term “whole” is a com-
2012] In re W
ATERS
D
RAIN
217
mon word that is not defined in the Drain Code.
Therefore, it is appropriate to consult a dictionary for a
definition of the term. Brackett, 482 Mich at 276.
Random House Webster’s College Dictionary (2d ed,
1997) defines the word “whole” as “comprising the full
quantity or amount; entire or total[.]” Thus, use of the
expansive term “whole” in MCL 280.158 evinces the
Legislature’s intent that a landowner appealing an
apportionment must pay the entire or total amount of
costs and expenses of the appeal in the event that the
apportionment is sustained. Clearly, defendant would
incur legal expenses in defending such an appeal, and
these legal expenses would constitute a portion of the
entire or total costs or expenses of an appeal. In light of
the Legislature’s use of the broad term “whole” to
modify the phrase “costs and expenses,” we conclude
that the phrase “whole costs and expenses” of MCL
280.158 encompasses attorney fees.
In support of their argument, plaintiffs cite In re
Forfeiture of $10,780, 181 Mich App 761; 450 NW2d 93
(1989). In that case, this Court construed a provision of
the controlled substances act, MCL 333.7101 et seq.,
that stated, in relevant part: “ ‘[If] the property is
ordered forfeited by the court the obligor shall pay all
costs and expenses of the forfeiture proceedings.’ ” Id.
at 766, quoting MCL 333.7523(1)(c). This Court held
that the statute did not allow the prosecutor to recover
attorney fees and explained: “[T]he relevant provision,
while providing for costs, does not specifically provide
for attorney fees. Michigan adheres to the rule that
attorney fees are not recoverable as an element of costs
unless they are specifically authorized by statute, court
rule or a recognized exception.” Id.
We reject plaintiffs’ reliance on In re Forfeiture of
$10,780 for two reasons. First, it did not involve the
218 296 M
ICH
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214 [Apr
same statute as the present case and the language is not
the same. This case concerns a provision of the Drain
Code that contains broad language giving the probate
court discretion to determine the “whole costs and
expenses” of the appellate proceeding. In contrast, In re
Forfeiture of $10,780 involved a provision of the con-
trolled substances act that did not explicitly refer to the
relevant court’s discretion to decipher the costs and
expenses of the forfeiture proceedings. Hence, that case
does not govern our interpretation of MCL 280.158.
Furthermore, In re Forfeiture of $10,780 is of minimal
persuasive value considering that this Court and our
Supreme Court have previously held that an award of
attorney fees was proper even though such fees were
not explicitly referred to in the specific court rule or
constitutional provision. See, e.g., Macomb Co Taxpay-
ers Ass’n v L’Anse Creuse Pub Sch, 455 Mich 1, 2 & n 2,
7-10; 564 NW2d 457 (1997) (holding that attorney fees
were appropriate as costs under the Headlee Amend-
ment, Const 1963, art 9, § 32, given that the amend-
ment provided that the taxpayer “shall receive...his
costs incurred” following a successful enforcement ac-
tion); Sirrey v Danou, 212 Mich App 159, 160-
161&n1;537NW2d 231 (1995) (holding that attorney
fees were properly awarded under MCR 2.504(D) given
that the rule provided the court discretion to order the
payment of “such costs of the action...as it deems
proper”); McKelvie v Mt Clemens, 193 Mich App 81, 84;
483 NW2d 442 (1992) (holding that attorney fees were
proper under MCR 2.504(A)(2) given that the rule
provided the court discretion to dismiss an action “on
terms and conditions the court deems proper”).
Second, pursuant to MCR 7.215(J)(1), In re Forfei-
ture of $10,780 is not binding precedent on this Court
because it was issued before November 1, 1990. See
2012] In re W
ATERS
D
RAIN
219
Nalbandian v Progressive Mich Ins Co, 267 Mich App 7,
11 n 3; 703 NW2d 474 (2005).
B. COMPENSATION OF BOARD OF REVIEW MEMBERS
Plaintiffs next argue that the probate court erred by
compensating each board of review member in the
amount of $500 using an hourly rate of $125. According
to plaintiffs, the probate court should have compen-
sated the board members at the standard and custom-
ary rate of $50 a day.
Under MCL 280.158, the probate court has the
authority and discretion to ascertain and determine the
costs and expenses of an appeal (“Such costs and
expenses shall be ascertained and determined by the
judge of probate....”). Resolution of this issue involves
determining whether the probate court made an error
of law in compensating the board of review members in
the amount of $500 each under MCL 280.158. A court
by definition abuses its discretion when it makes an
error of law. People v Giovannini, 271 Mich App 409,
417; 722 NW2d 237 (2006).
Defendant submitted a bill of costs to the court that
included compensation of $50 a day for each board of
review member, plus mileage. However, a member of
the board of review subsequently wrote a letter advising
the probate court that the board members had con-
ferred and determined that the appropriate hourly rate
for their services was $125. Because each board member
spent a total of four hours preparing for and conducting
the board of review meeting, the member requested
that each board member be compensated in the amount
of $500.
In making its determination regarding the amount of
compensation for the board members, the probate court
held a hearing and heard the arguments of counsel as
220 296 M
ICH
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214 [Apr
well as a statement from that board member wherein he
explained to the court how the board members had
arrived at their decision that they should each be
compensated in the amount of $500. At the conclusion
of the hearing, the probate court stated:
So in regards to board members, I find that the $50 I’m
not going to assess. That’s a—that’s a rate that would
apply perhaps when the commissioner didn’t prevail. But
there are actual fees determined in the plan developed by
the board of review with the four hours discussed. So for
each board member I’m going to assess payment to them in
the amount of $500.
Compensation for board of review members is in-
cluded in the broad language “whole costs and ex-
penses” in MCL 280.158. It is one of the costs and
expenses of plaintiffs’ appeal, and, as already observed,
the probate court had the discretion to ascertain and
determine those costs and expenses. The board mem-
bers consisted of a practicing attorney, a certified public
accountant (CPA), and a realtor. The hourly rate of
$125 was much less than the practicing attorney’s
claimed hourly rate of $440 for legal work, but higher
than the CPA’s hourly rate of $85. The realtor was
compensated on a commission basis, so there was no
way to determine his hourly compensation rate. The
attorney board member explained that the members
established the $125 hourly rate because it was between
his $440 hourly rate and the CPA’s $85 hourly rate.
Plaintiffs do not dispute that the board members spent
about four hours preparing for and hearing the case,
and they do not argue that the $125 hourly rate was
unreasonable. Under the circumstances, we conclude
that the probate court did not abuse its discretion by
compensating the board members in the amount of
$500 each. Moreover, the probate court’s offhand re-
mark that the $50 compensation rate would perhaps
2012] In re W
ATERS
D
RAIN
221
apply if defendant did not prevail does not render the
probate court’s compensation award an abuse of discre-
tion.
In sum, for the reasons we have articulated, the
circuit court properly affirmed both the probate court’s
award of attorney fees under MCL 280.158 and the
probate court’s compensation of the board of review
members.
Affirmed. A public question being involved, no costs
are awarded. Bay City v Bay Co Treasurer, 292 Mich
App 156, 172; 807 NW2d 892 (2011).
W
ILDER
,P.J., and H
OEKSTRA
and B
ORRELLO
, JJ., con-
curred.
222 296 M
ICH
A
PP
214 [Apr
PEOPLE v KOON
Docket No. 301443. Submitted February 8, 2012, at Grand Rapids.
Decided April 17, 2012, at 9:05 a.m. Reversed, 493 Mich ___.
Rodney Lee Koon was charged in the 86th District Court with
operating a motor vehicle with any amount of a schedule 1
controlled substance in his body in violation of MCL 257.625(8).
When defendant was stopped for speeding, he informed the police
officer that he had a medical marijuana registry card and admitted
that he had smoked marijuana five to six hours earlier. A blood test
showed that defendant had active tetrahydrocannabinol in his
bloodstream when operating the vehicle. The court, Thomas J.
Phillips, J., concluded that defendant’s registration under the
Michigan Medical Marihuana Act (MMMA), MCL 333.26421 et
seq., protected him from prosecution under MCL 257.625(8) unless
the prosecution was able to prove that defendant was actually
impaired by the presence of marijuana in his body. The Grand
Traverse Circuit Court, Philip E. Rodgers, Jr., J., affirmed the
ruling, concluding that the MMMA superseded the zero-tolerance
provision of MCL 257.625(8). The prosecution appealed by leave
granted.
The Court of Appeals held:
An initiative law such as the MMMA is analyzed to ascertain
and effectuate the intent of the people. It is presumed that the
people meant what the statute plainly expresses, and all words are
given their ordinary and customary meaning. Even though a
registered qualifying patient may possess and use marijuana to
treat or alleviate a debilitating medical condition or its symptoms,
MCL 333.26424(a) and (e), marijuana is still classified as a
schedule 1 controlled substance under MCL 333.7212(1)(c). The
circuit court erred by concluding that defendant’s registration
under the MMMA protected him from being charged with a
violation of MCL 257.625(8). The MMMA expressly prohibits a
registered individual from operating a motor vehicle while under
the influence of marijuana, MCL 333.26427(b)(4). The MMMA
does not grant a registered medical-marijuana user the right to
internally possess marijuana under any circumstances, that is,
have the substance in his or her body. Rather, it provides a
2012] P
EOPLE V
K
OON
223
procedure under which ill individuals are able to use marijuana for
its palliative effect without fear of arrest and prosecution for that
use. The MMMA does not define the term “under the influence of
marijuana,” but MCL 257.625(8) provides that under the Michi-
gan Vehicle Code, a person is under the influence of marijuana if
he or she has any amount of marijuana in his or her body. There
was no clear legislative intent in the MMMA to repeal MCL
257.625(8) by implication as applied to marijuana. The definition
does not conflict with the MMMA because the MMMA expressly
prohibits the operation of a vehicle while under the influence of
marijuana, as well as other circumstances under which medical
use of marijuana is not permitted. Thus, the MMMA does not
provide a protection from prosecution for violating MCL
257.625(8).
Reversed and remanded.
C
ONTROLLED
S
UBSTANCES —
M
ARIJUANA —
M
EDICAL
M
ARIJUANA —
O
PERATING A
V
EHICLE WITH
A
NY
A
MOUNT OF A
C
ONTROLLED
S
UBSTANCE IN THE
D
RIVER
’
S
B
ODY
.
The Michigan Medical Marihuana Act (MMMA), MCL 333.26421, et
seq., which permits the medical use of marijuana by certain
persons registered under the act, does not provide protection to
registered uses from prosecution for a violation of MCL
257.625(8), the provision of the Michigan Vehicle Code that
prohibits a person from operating a vehicle with any amount of a
schedule 1 controlled substance, such as marijuana, in his or her
body.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Alan Schneider, Prosecuting Attor-
ney, and Jennifer Tang-Anderson, Assistant Prosecut-
ing Attorney, for the people.
James Hunt for defendant.
Amici Curiae:
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Joel McGormley and Linus Banghart-
Linn, Assistant Attorneys General, for the Attorney
General.
224 296 M
ICH
A
PP
223 [Apr
Larry J. Burdick and William J. Vailliencourt, Jr., for
the Prosecuting Attorneys Association of Michigan.
Before: S
AWYER
,P.J., and O’C
ONNELL
and R
ONAYNE
K
RAUSE
,JJ.
S
AWYER
,P.J. This case presents the question whether
the “zero tolerance” provision of MCL 257.625(8),
which prohibits operating a motor vehicle with any
amount of a schedule 1 controlled substance in the
driver’s body, still applies if the driver used marijuana
under the Michigan Medical Marihuana Act (MMMA).
1
We conclude that it does.
Defendant was pulled over for speeding 83 miles an
hour in a 55-mile-an-hour zone. The arresting officer
smelled intoxicants, and defendant admitted having
consumed one beer sometime within the last couple of
hours. Defendant consented to a pat-down of his per-
son, voluntarily removed a pipe, and explained that he
had a medical marijuana registry card and had last
smoked marijuana five to six hours earlier. A blood test
showed that defendant had active tetrahydrocannab-
inol in his system. Defendant was charged with operat-
ing a motor vehicle with a schedule 1 controlled sub-
stance in his body
2
under the “zero tolerance” law. The
district court concluded that the MMMA protected
defendant from prosecution under MCL 257.625(8),
unless the prosecution could prove that defendant was
actually impaired by the presence of marijuana in his
body. The circuit court affirmed and concluded that the
MMMA supersedes the zero-tolerance law. The prosecu-
tion now appeals by leave granted.
1
MCL 333.26421 et seq. Although the statute refers to “marihuana,”
this Court uses the more common spelling “marijuana” in its opinions
except in quotations.
2
MCL 257.625(8).
2012] P
EOPLE V
K
OON
225
This question can be resolved by looking to the
pertinent statutory provisions and considering the basic
rules of statutory construction. Like the interpretation
of other statutes, our duty when analyzing an initiative
law is to ascertain and effectuate the intent of the
people. We presume that the people meant what the
statute plainly expresses and give all words their ordi-
nary and customary meaning as the voters would have
understood them.
3
MCL 257.625(8) provides:
A person, whether licensed or not, shall not operate a
vehicle upon a highway or other place open to the general
public or generally accessible to motor vehicles, including
an area designated for the parking of vehicles, within this
state if the person has in his or her body any amount of a
controlled substance listed in schedule 1 under section
7212 of the public health code, 1978 PA 368, MCL
333.7212, or a rule promulgated under that section, or of a
controlled substance described in section 7214(a)(iv)ofthe
public health code, 1978 PA 368, MCL 333.7214.
Under MCL 333.7212(1)(c), marijuana remains a sched-
ule 1 controlled substance despite the passage of the
MMMA.
Turning to the MMMA, MCL 333.26424(a) states in
relevant part:
A qualifying patient who has been issued and possesses
a registry identification card shall not be subject to arrest,
prosecution, or penalty in any manner, or denied any right
or privilege, including but not limited to civil penalty or
disciplinary action by a business or occupational or profes-
sional licensing board or bureau, for the medical use of
marihuana in accordance with this act, provided that the
qualifying patient possesses an amount of marihuana that
does not exceed 2.5 ounces of usable marihuana....
3
People v Redden, 290 Mich App 65, 76; 799 NW2d 184 (2010).
226 296 M
ICH
A
PP
223 [Apr
MCL 333.26423(e) defines “medical use” of marijuana as
the acquisition, possession, cultivation, manufacture, use,
internal possession, delivery, transfer, or transportation of
marihuana or paraphernalia relating to the administration
of marihuana to treat or alleviate a registered qualifying
patient’s debilitating medical condition or symptoms asso-
ciated with the debilitating medical condition.
The MMMA also recognizes a number of circumstances
under which the medical use of marijuana is not per-
mitted. One of those exceptions specifically states that
the protections will not apply to operating a motor
vehicle while under the influence of marijuana.
4
Thus,
while the MMMA permits the medical use of marijuana,
it recognizes that marijuana use is inconsistent with
engaging in some activities at the same time as the use
of the marijuana. This is certainly not an irrational
provision. For example, it is not uncommon for a
medication, whether prescription or over-the-counter,
to be accompanied by a warning not to drive while using
the medication. The problem that develops in this case
is that, while MCL 333.26423 defines a number of terms
used in the MMMA, it does not define the phrase
“under the influence of marijuana.”
What we are left with is the MMMA, which affords a
certain degree of immunity from prosecution for pos-
session or use of marijuana for a medical purpose, and
the Michigan Vehicle Code, which prohibits operating a
motor vehicle while there is any amount of marijuana in
the driver’s system. These two provisions are not in
conflict. The MMMA or the Legislature could have
rescheduled marijuana to one of the other schedules,
but they did not. Therefore, marijuana remains a sched-
ule 1 controlled substance. Furthermore, while the
4
MCL 333.26427(b)(4).
2012] P
EOPLE V
K
OON
227
MMMA does not provide a definition of “under the
influence of marijuana,” MCL 257.625(8) essentially
does, establishing that any amount of a schedule 1
controlled substance, including marijuana, sufficiently
influences a person’s driving ability to the extent that
the person should not be permitted to drive.
In order to conclude that the MMMA authorizes the
operation of a motor vehicle with some marijuana in the
driver’s system, we would have to supply a definition of
“under the influence of marihuana” in MCL
333.26427(b)(4) that conflicts with the provisions of
MCL 257.625(8). To do so, we would have to conclude
that the MMMA repealed MCL 257.625(8) by implica-
tion as applied to marijuana. But it is well established
that repeal by implication is disfavored.
5
To do so, there
must be a clear legislative intent to repeal, and there
must not be another reasonable construction.
6
In this case, there is a reasonable construction. The
Legislature has determined that it is illegal to operate a
motor vehicle with any amount of marijuana in the
driver’s system. MCL 257.625(8). This does not conflict
with the MMMA because not only does the MMMA not
extend its protections of the medical use of marijuana to
operating a motor vehicle while under the influence of
marijuana, it also recognizes other circumstances in
which the medical use of marijuana is not permitted by
the MMMA. For example, medical use of marijuana is
not permitted on a school bus,
7
and the MMMA does not
permit smoking marijuana, even for medical use, on
public transportation.
8
5
Wayne Co Prosecutor v Dep’t of Corrections, 451 Mich 569, 576; 548
NW2d 900 (1996).
6
Id.
7
MCL 333.26427(b)(2)(A).
8
MCL 333.26427(b)(3)(A).
228 296 M
ICH
A
PP
223 [Apr
Indeed, this points out one of the flaws in the
argument that defendant has the right to “internally
possess” marijuana while driving. While the MMMA
does include the term “internal possession” within its
definition of “medical use,”
9
that does not equate with a
right to internally possess marijuana under any circum-
stances. As noted, the MMMA specifically does not
permit any medical use of marijuana on a school bus,
which presumably includes even internal possession.
Similarly, under other circumstances, some, but not all,
types of medical use of marijuana are permitted, for
example, on public transportation, where one can pre-
sumably internally possess it, but not smoke it.
Furthermore, 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 indi-
viduals are still violating the law by using marijuana,
the MMMA sets forth particular circumstances under
which they will not be arrested or otherwise prosecuted
for their lawbreaking.
10
In other words, the act grants
immunity from arrest and prosecution, rather than the
granting of a right. Thus, contrary to defendant’s claim,
he does not have a blanket right to internally possess
medical marijuana.
11
9
MCL 333.26424(e).
10
See People v King, 291 Mich App 503, 507-509; 804 NW2d 911 (2011),
lv gtd 489 Mich 957; see also Casias v Wal-Mart Stores, Inc, 764 F Supp
2d 914, 922 (WD Mich, 2011).
11
Defendant contends that the MMMA grants him the “right” to
“internally possess” marijuana and, therefore, as long as he does not
break any other laws, he can go about his day-to-day activities, including
operating a motor vehicle. Defendant further argues that as long as the
marijuana does not affect his ability to operate a motor vehicle, he is
immune from prosecution. Like most individuals, defendant miscon-
2012] P
EOPLE V
K
OON
229
The point is that the MMMA does not permit all
types of medical use of marijuana under all circum-
stances. Rather, there are circumstances under which
some uses are permitted and others under which no use
is permitted. If the drafters of the MMMA had wanted
to include immunity for the operation of a motor vehicle
in MCL 333.26424, the act would have explicitly
granted immunity either in MCL 333.26424(a) or in
MCL 333.26423(e). It does not. Indeed, MCL
333.26427(b)(4) explicitly prohibits the operation of a
motor vehicle while under the influence of marijuana.
And in the Michigan Vehicle Code, MCL 257.625(8), the
Legislature has provided a definition of what consti-
tutes being under the influence of marijuana: the pres-
ence of any amount of marijuana in the person’s body,
that is to say, while “internally possessing” it.
The MMMA does not provide a protection from
prosecution for violating MCL 257.625(8). Driving is a
particularly dangerous activity; schedule 1 substances
are considered particularly inimical to a driver’s ability
to remain in maximally safe control of the vehicles, and
the danger of failing to do so affects not only the driver,
but anyone else in the vicinity.
For these reasons, defendant was properly charged
with a violation of MCL 257.625(8), and CJI2d 15.3a
strues the MMMA. The MMMA does not codify a right to use marijuana,
nor does it grant any citizen the “right” to use or possess marijuana.
While this may seem strange to anyone who has encountered the act, it
is the process set up by what many have referred to as an inartfully
drafted act. What the MMMA did is set up a process by which certain
individuals cannot be arrested or prosecuted for their lawbreaking. These
protections, or immunities from lawbreaking, are very limited in scope.
In essence, defendant is asking this Court to extend these protections to
other activities, such as operating a motor vehicle, a boat, or an airplane.
We respectfully decline; it is the Legislature’s job to expand the law, not
the Court’s responsibility.
230 296 M
ICH
A
PP
223 [Apr
(operating a vehicle with any amount of a schedule 1 or
2 controlled substance in driver’s body) may be given at
any trial in this case.
Reversed and remanded for further proceedings con-
sistent with this opinion. We do not retain jurisdiction.
O’C
ONNELL
and R
ONAYNE
K
RAUSE
, JJ., concurred with
S
AWYER
,P.J.
2012] P
EOPLE V
K
OON
231
SIETSEMA FARMS FEEDS, LLC v DEPARTMENT OF TREASURY
Docket No. 302033. Submitted February 14, 2012, at Lansing. Decided
February 28, 2012. Approved for publication April 17, 2012, at 9:10
a.m.
Sietsema Farms Feeds, L.L.C., which operates a feed mill in which
corn and other grains are dried, ground, and mixed with additives
to produce animal feed that is sold to farms, petitioned in the Tax
Tribunal with regard to an assessment by the Department of
Treasury of use tax and interest following the department’s
rejection of petitioner’s claim that certain equipment purchased by
petitioner for use at its feed mill was exempt from the use tax
under the agricultural-production exemption of the Use Tax Act,
MCL 205.94(1)(f). The disputed equipment was used only at the
feed mill and only to make feed to sell to other entities. The
equipment was not used at the feed mill to feed livestock or poultry
and petitioner did not go to farmers’ properties and use the
disputed equipment to feed their livestock or poultry. The Tax
Tribunal agreed with respondent that petitioner did not use and
consume the property in the “breeding, raising, or caring for
livestock, poultry, or horticultural products” as required by the
plain language of the agricultural-production exemption, but
merely sold its feed to other entities that actually engaged in the
qualifying activity. The Tax Tribunal ruled that petitioner’s selling
of feed to entities that were engaged in the qualifying activities did
not vicariously extend the exemption to petitioner. After the Tax
Tribunal sua sponte raised the issue whether petitioner was
entitled to the industrial-processing exemption of the Use Tax Act,
MCL 205.94o, and considered additional information submitted by
the parties, the Tax Tribunal granted summary disposition in
favor of respondent, concluding that petitioner was not entitled to
either exemption. The Tax Tribunal then denied petitioner’s
motion for reconsideration. Petitioner appealed.
The Court of Appeals held:
1. The relevant language of MCL 205.94(1)(f) provides that
petitioner must be a business enterprise and must be using and
consuming the disputed property to feed livestock and poultry. The
disputed property was used only at the feed mill and only to make
232 296 M
ICH
A
PP
232 [Apr
feed to sell to other entities. Petitioner did not use the disputed
property to feed livestock and poultry. The Tax Tribunal properly
held that petitioner was not entitled to the agricultural-production
exemption.
2. Petitioner failed to offer on appeal any persuasive argument
that the Tax Tribunal’s decision denying an industrial-processing
exemption under MCL 205.94o constituted an error of law or was
unsupported by competent, material, and substantial evidence on
the whole record. The Tax Tribunal’s decision that petitioner was
not entitled to the industrial-processing exemption is affirmed.
Affirmed.
T
AXATION —
U
SE
T
AX —
A
GRICULTURAL
-P
RODUCTION
E
XEMPTION
.
Property sold to a person engaged in a business enterprise that then
uses and consumes the property in the breeding, raising, or caring
for livestock, poultry, or horticultural products is entitled to the
agricultural-production exemption from use tax provided in the
Use Tax Act; a person must be both engaged in a business
enterprise and use and consume the property in the breeding,
raising, or caring for livestock, poultry, or horticultural products to
be entitled to the exemption (MCL 205.94[1][f]).
The Novis Law Firm, PLLC (by James H. Novis), for
petitioner.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Michael R. Bell, Assistant Attorney Gen-
eral, for respondent.
Before: H
OEKSTRA
,P.J., and C
AVANAGH
and B
ORRELLO
,
JJ.
P
ER
C
URIAM
. Petitioner, Sietsema Farms Feeds,
L.L.C., appeals as of right the Michigan Tax Tribunal’s
order granting summary disposition in favor of respon-
dent, Michigan Department of Treasury, rejecting peti-
tioner’s claim that certain purchased property was
exempt from the use tax and affirming respondent’s
assessment. We affirm.
2012] S
IETSEMA
F
ARMS V
T
REASURY
D
EP
’
T
233
Petitioner operates a feed mill in which corn and
other grains are dried, ground, and mixed with addi-
tives to produce animal feed that is sold to hog and
turkey farms owned in part or in whole by the Sietsema
family and entities affiliated with petitioner. Following
a use tax audit, respondent determined that certain
equipment purchased by petitioner for use at the feed
mill was not exempt under the agricultural-production
exemption. The equipment included truck scales,
storage/processing tanks, storage tank inventory-
monitoring equipment, a liquid-storage tank, and a
personnel elevator.
After petitioner was issued a notice of intent to assess,
petitioner sought an informal conference, following which
an assessment of $19,965.11, plus interest, was upheld.
Petitioner then appealed the final assessment in the
Michigan Tax Tribunal. After the submission of a joint
stipulation of facts, cross-motions for summary disposi-
tion pursuant to MCR 2.116(C)(10) were filed. Petitioner
argued that it was entitled to the agricultural-production
exemption provided in the Michigan Use Tax Act, MCL
205.94(1)(f), because the two requirements of the statute
were met: (1) it was a business enterprise and (2) the
property was used or consumed in agricultural production
because it processed feed for hogs and turkeys. Respon-
dent argued, however, that petitioner did not use the
equipment in an agricultural-production activity. That is,
petitioner did not use and consume the property in the
“breeding, raising, or caring for livestock, poultry, or
horticultural products,” as required by the plain language
of the agricultural-production exemption. Petitioner
merely sold its feed to other entities actually engaged in
the qualifying activity.
The Tax Tribunal agreed with respondent, holding
that, although petitioner was engaged in a business enter-
234 296 M
ICH
A
PP
232 [Apr
prise, petitioner was not “using and consuming the prop-
erty...in the breeding, raising, or caring for livestock,
poultry, or horticultural products....”MCL205.94(1)(f).
Petitioner’s selling of feed to entities that were engaged in
the qualifying activities did not “vicariously” extend the
exemption to petitioner. Simply stated, petitioner did not
use the disputed property to feed animals. The Tax
Tribunal noted that, according to petitioner’s argument,
manufacturers of pharmaceuticals for farm animals or
providers of veterinary services would also be entitled to
the agricultural-production exemption simply because
they engage in activities that support agriculture. At oral
argument on the cross-motions, although not argued by
petitioner, the Tax Tribunal raised the issue whether
petitioner was entitled to the industrial-processing ex-
emption, MCL 205.94o, and requested further informa-
tion. After review of the additional information submitted
by the parties, the Tax Tribunal held that petitioner failed
to establish entitlement to the industrial-processing ex-
emption. Accordingly, the Tax Tribunal concluded that
petitioner was not entitled to either the agricultural-
production or industrial-processing exemptions; thus, the
assessment was affirmed and respondent’s motion for
summary disposition was granted. After petitioner’s mo-
tion for reconsideration was denied, this appeal followed.
Petitioner first argues that the Tax Tribunal errone-
ously concluded that it did not qualify for the
agricultural-production exemption, MCL 205.94(1)(f),
because both statutory criteria were met—it was en-
gaged in a business enterprise and the contested prop-
erty was used and consumed in raising or caring for
(feeding) livestock or poultry. We disagree.
The Tax Tribunal’s determination of a motion for
summary disposition is reviewed de novo. Paris Mead-
ows, LLC v City of Kentwood, 287 Mich App 136, 141;
2012] S
IETSEMA
F
ARMS V
T
REASURY
D
EP
’
T
235
783 NW2d 133 (2010). “In the absence of fraud, review
of a decision by the Tax Tribunal is limited to deter-
mining whether the tribunal erred in applying the law
or adopted a wrong principle; its factual findings are
conclusive if supported by competent, material, and
substantial evidence on the whole record.” Klooster v
City of Charlevoix, 488 Mich 289, 295; 795 NW2d 578
(2011) (quotation marks and citation omitted).
Generally, the Michigan Use Tax Act, MCL 205.91 et
seq., imposes a tax “for the privilege of using, storing, or
consuming tangible personal property....” MCL
205.93(1). However, the act sets forth exemptions to the
use tax. In general, tax exemptions are strictly con-
strued in favor of the taxing authority. Canterbury
Health Care, Inc v Dep’t of Treasury, 220 Mich App 23,
31; 558 NW2d 444 (1996). But ambiguities are to be
resolved in favor of the taxpayer. Czars, Inc v Dep’t of
Treasury, 233 Mich App 632, 637; 593 NW2d 209
(1999).
At issue here is the agricultural-production exemp-
tion, MCL 205.94(1)(f), which exempts from use tax
“[p]roperty sold to a person engaged in a business
enterprise and using and consuming the property in the
tilling, planting, caring for, or harvesting of the things
of the soil or in the breeding, raising, or caring for
livestock, poultry, or horticultural products....”MCL
205.94(1)(f).
The primary goal of statutory interpretation is to
determine the intent of the Legislature as discerned
from the statutory language and give effect to that
intent. Columbia Assoc, LP v Dep’t of Treasury, 250
Mich App 656, 665-666; 649 NW2d 760 (2002). Where a
statute is clear and unambiguous, judicial construction
is neither appropriate nor permitted, and the statutory
language must be read according to its ordinary mean-
236 296 M
ICH
A
PP
232 [Apr
ing. Id. at 666. Nothing may be read into a clear statute
“that is not within the manifest intent of the Legisla-
ture as derived from the words of the statute itself.”
Paris Meadows, 287 Mich App at 141 (quotation marks
and citation omitted). And, in construing a statute, the
court should presume that every word has some mean-
ing, avoiding a construction that would render any part
of a statute surplusage or nugatory. Klapp v United Ins
Group Agency, Inc, 468 Mich 459, 468; 663 NW2d 447
(2003).
Here, the parties stipulated that petitioner was en-
gaged in a business enterprise. However, as denoted by
the conjunctive term “and” between the two statutory
conditions, petitioner must also have been “using and
consuming the property...inthebreeding, raising, or
caring for livestock, poultry, or horticultural prod-
ucts....” Petitioner argues that this second require-
ment was met because the property was “used to
produce livestock and poultry feed, a necessary part of
raising the swine and turkeys that eat the feed.” But
petitioner’s interpretation fails to account for impor-
tant statutory terms; in particular, that petitioner be
engaged in a business enterprise “and using and con-
suming the property...in the breeding, raising, or
caring for” livestock and poultry. (Emphasis supplied).
So, here, petitioner must be using and consuming the
disputed property to feed livestock and poultry.
Petitioner supports its claim by citing the case of
William Mueller & Sons, Inc v Dep’t of Treasury, 189
Mich App 570; 473 NW2d 783 (1991). In that case, the
petitioner was assessed a use tax on fertilizer equip-
ment that it claimed was involved in agricultural pro-
duction. Id. at 571. This Court noted that, in the
petitioner’s business, it purchased and used fertilizer-
application equipment “for a contractual service to
2012] S
IETSEMA
F
ARMS V
T
REASURY
D
EP
’
T
237
farmers for the application of fertilizer....” Id.At
issue in that case was the provision of MCL 205.94(1)(f)
that provides that the exemption is applicable to
“[p]roperty sold to a person engaged in a business
enterprise and using and consuming the property in the
tilling, planting, caring for, or harvesting of the things
of the soil....” Id. at 572. This Court held that the
petitioner qualified for the exemption because it was
undisputed that the “petitioner is a business enterprise
and that the fertilizing equipment is used in the tilling,
planting, caring for, or harvesting of things of the soil.”
Id. at 573. The petitioner used the disputed property to
apply fertilizer to farmland. This Court rejected the
respondent’s argument that the taxpayer had to be “in
the business of producing agricultural products in order
for [MCL 205.94(1)(f)] to apply,” and concluded that the
exemption “does not require that the taxpayer be
engaged in the actual production of horticultural or
agricultural products.” Id. at 573-574.
The facts in our case, however, are distinguishable
from those in Mueller. Here, the disputed equipment
was used only at the feed mill and only to make feed to
sell to other entities. Petitioner did not use the disputed
property to feed livestock and poultry. And petitioner
was not going to farmers’ properties and using the
property to feed their livestock and poultry. Petitioner
was engaged in a business enterprise, but petitioner
was not “using and consuming the property...inthe
breeding, raising, or caring for livestock, poultry, or
horticultural products....”MCL205.94(1)(f) (empha-
sis supplied). In Mueller, the petitioner was using the
disputed equipment to provide fertilizing services to
farmers. That is, the petitioner was engaged in a
business enterprise and the petitioner was “using and
consuming the property in the tilling, planting, caring
for, or harvesting of the things of the soil,” although it
238 296 M
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was not the petitioner’s soil and the resulting products
were not the petitioner’s products. Thus, here, the
holding in Mueller would apply to support petitioner’s
exemption claim only if petitioner was using and con-
suming the property to actually feed livestock and
poultry—even if not petitioner’s animals—which peti-
tioner did not do.
Petitioner also supports its argument by citing the
case of Mich Milk Producers Ass’n v Dep’t of Treasury,
242 Mich App 486; 618 NW2d 917 (2000). In that case,
the petitioner marketed milk for dairy farmers and was
assessed a use tax for machinery, equipment, and sup-
plies it used to test raw milk. Id. at 487-488. It was
undisputed that “milk production” was within the
scope of the agricultural-production exemption. Id.at
493. The issue, however, was whether the testing equip-
ment was used by petitioner for producing the milk
(and thus eligible for the exemption) or for marketing
the milk (and thus not eligible for the exemption). Id.at
494. This Court noted that the law required that milk
be tested before it could be sold commercially and that
the petitioner’s testing “establishes the identity and
confirms the safety of the raw milk produced on the
farm.” Id. Thus, this Court concluded, the petitioner’s
use of its equipment to test milk before it could be
marketed was part of the process of producing milk and
that equipment was exempt from the use tax. Id. at 495.
The respondent’s argument that the petitioner had to
be an agricultural producer, i.e., a milk producer, was
rejected. Id. The petitioner was using the disputed
property to produce milk, even though it was not the
petitioner’s milk.
The facts in our case, however, are also distinguish-
able from those of Mich Milk Producers. Here, petition-
er’s equipment was used by petitioner to make feed to
2012] S
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sell to other entities. There is no contention that feed
production is equated with “agricultural production,”
but that fact is not dispositive because this Court has
held that a business entity need not actually be an
agricultural producer. Petitioner contends that “the
mixing of grain to be fed to farm animals [is] a direct
part (necessary component) of the raising, or caring for
livestock, poultry, or horticultural products.” But peti-
tioner was not using the disputed property to actually
feed the animals. That is, petitioner was not “using and
consuming the property...inthebreeding, raising, or
caring for livestock, poultry, or horticultural prod-
ucts....”MCL205.94(1)(f) (emphasis supplied). The
petitioner in Mich Milk Producers was “using and
consuming” the property to test milk during the pro-
duction process, although in the provision of services to
another entity. Thus, the holding in Mich Milk Produc-
ers would apply to support petitioner’s exemption claim
only if petitioner was using and consuming the equip-
ment to actually feed livestock and poultry—even if not
petitioner’s animals—which petitioner did not do.
Accordingly, we conclude that the Tax Tribunal prop-
erly interpreted the plain language of MCL 205.94(1)(f)
and held that petitioner was not entitled to the
agricultural-production exemption. Petitioner was not
using and consuming the truck scales,
storage/processing tanks, storage tank inventory-
monitoring equipment, liquid-storage tank, and person-
nel elevator to feed livestock and poultry. Thus, the Tax
Tribunal’s decision to grant respondent’s motion for
summary disposition in this regard is affirmed.
Next, petitioner appears to argue that the Tax Tribunal
erroneously concluded that it did not qualify for the
industrial-processing exemption, MCL 205.94o. However,
in its brief on appeal petitioner provides very little detail
240 296 M
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or argument with regard to this issue, only briefly claim-
ing that the issue was not properly adjudicated because
petitioner was not given an effective opportunity to ad-
dress it. Then petitioner continues its argument related to
the agricultural-production exemption.
But petitioner only averred in its petition that the
disputed property was exempt under the agricultural-
processing exemption and did not assert an alternative
claim that the property was also exempt under the
industrial-processing exemption. Petitioner’s motion
for summary disposition also did not address the issue
whether its property was exempt under the industrial-
processing exemption. The Tax Tribunal initiated the
discussion at the motion hearing regarding whether
some of the property may qualify for the industrial-
processing exemption and requested additional infor-
mation in that regard, which petitioner provided.
Thereafter, the Tax Tribunal determined that the dis-
puted property did not qualify for the industrial-
processing exemption. And petitioner did not challenge
that decision in its motion for reconsideration. Accord-
ingly, petitioner had the opportunity to address and
argue this issue that was raised sua sponte by the Tax
Tribunal. And on appeal petitioner has failed to offer
any persuasive argument that the Tax Tribunal’s deci-
sion denying an industrial-processing exemption consti-
tuted an error of law or was unsupported by competent,
material, and substantial evidence on the whole record.
Thus, we also affirm the Tax Tribunal’s decision that
petitioner was not entitled to the industrial-processing
exemption with regard to the disputed property.
Affirmed.
H
OEKSTRA
,P.J., and C
AVANAGH
and B
ORRELLO
,JJ.,
concurred.
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CORWIN v DAIMLERCHRYSLER INSURANCE COMPANY
Docket No. 301931. Submitted March 16, 2012, at Detroit. Decided April
17, 2012, at 9:15 a.m.
John M. and Vera-Anne V. Corwin were injured in an automobile
accident that occurred when the Jeep Compass they were in, which
John leased from Chrysler LLC and insured through Daimler-
Chrysler Insurance Company (Chrysler Insurance), was hit by a
vehicle driven by Leslie Ann Jackson, an uninsured motorist. At
the time of the accident, the Corwins also owned a Jeep Liberty
that was insured by Auto Club Insurance Association under a
no-fault policy that named John and Vera-Anne as named in-
sureds. The Corwins also owned a motor home that was insured by
Foremost Insurance Company under a no-fault policy that named
John as the named insured. The insurance policy for the Jeep
Compass named Chrysler LLC and its United States subsidiaries,
rather than the Corwins, as the named insureds and it stated that
Chrysler Insurance was not responsible for personal injury pro-
tection (PIP) benefits if the Corwins are entitled to PIP benefits as
the named insured in another policy. After the accident, Auto Club
provided PIP benefits to the Corwins. The Corwins and Auto Club
brought an action in the Oakland Circuit Court against Chrysler
Insurance, Chrysler LLC, Foremost, and Jackson, seeking a de-
claratory judgment regarding the insurers’ obligations to pay PIP
benefits, Auto Club’s right to reimbursement, and the Corwins’
right to uninsured-motorist coverage under the three insurance
policies. The Corwins and Auto Club also pleaded a single count of
negligence against Jackson. Chrysler Insurance and Chrysler LLC
filed a counterclaim against the Corwins and Auto Club and moved
for summary disposition, arguing that Auto Club and Foremost
had coequal priority to pay the Corwins’ PIP benefits because
John was a named insured on both the Auto Club and the
Foremost policies, but not on the Chrysler Insurance Policy.
Chrysler Insurance also argued that the Corwins could not recover
uninsured-motorist benefits from it because its policy did not
provide such coverage. Auto Club and Foremost also moved for
summary disposition, arguing that all three insurers shared liabil-
ity for the Corwins’ PIP benefits because the Corwins were the
named insureds on the Auto Club and Foremost policies and the
242 296 M
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Chrysler Insurance policy should be reformed by the court to name
the Corwins as the named insureds because it improperly shifted
Chrysler Insurance’s statutory responsibility for the Corwins’ PIP
benefits to Auto Club and Foremost. The court, Martha D. Ander-
son, J., granted Chrysler Insurance’s motion and denied the
motion by Auto Club and Foremost in an opinion and order. The
court held that Auto Club and Foremost were coequals in the
highest order of priority to pay the Corwins’ PIP benefits and that
the Chrysler Insurance policy did not provide uninsured-motorist
coverage for the Corwins. The court granted in part Auto Club’s
motion for reconsideration in order to amend its prior opinion and
order to reflect that Auto Club’s motion for summary disposition
was granted in part to the extent that Auto Club and Foremost
were coequals in the highest order of priority. Before a final order
of judgment was entered, Auto Club and Foremost reached a
settlement, agreeing that they were in the same order of priority
and that Foremost would pay Auto Club $313,655.73 in settlement
of the past and present PIP benefits that Auto Club had paid the
Corwins. The court then entered an order of judgment, a partial
consent judgment, in favor of Auto Club and against Foremost for
$313,655.73 and dismissed with prejudice the Corwins’ claims for
uninsured-motorist benefits. The judgment noted that the Cor-
wins, Auto Club, and Foremost preserved their continued objec-
tions to the summary disposition rulings and their right to appeal
the issue regarding Chrysler Insurance’s liability for PIP benefits.
Auto Club appealed and Foremost cross-appealed.
The Court of Appeals held:
1. The Chrysler Insurance policy is invalid under the no-fault
act and requires reformation because Chrysler LLC and its United
States subsidiaries, the named insureds in the policy, do not have
an insurable interest and the policy contravenes the legislative
intent of the no-fault act by shifting primary liability for no-fault
coverage. The policy must be reformed so that there is an insur-
able interest belonging to a named insured compatible with public
policy.
2. The owner or registrant of a motor vehicle must provide
residual liability insurance under the no-fault act. Under the
no-fault act, John Corwin is the owner of the Jeep Compass
because he leased it for more than 30 days, MCL 500.3101(2)(h)(i).
John purchased no-fault insurance for the Jeep Compass through
Chrysler Insurance and, thus, Chrysler Insurance provided no-
fault insurance to the Corwin household and was the Corwins’
personal insurer. Chrysler Insurance may not avoid the legislative
intent that an injured person’s personal insurer stand primarily
2012] C
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liable for PIP benefits. The Chrysler Insurance policy must be
reformed so that Chrysler Insurance is primarily liable (along with
Auto Club and Foremost) for PIP benefits in accordance with MCL
500.3114(1).
3. The Chrysler defendants stated that at the time of the
collision the Corwins had a policy of insurance issued by Chrysler
Insurance. The Chrysler Insurance policy must be reformed to
include both John and Vera-Anne as named insureds who fall
within the policy’s definition of “you.”
4. The liability of the three insurers for the Corwins’ PIP
benefits is governed by MCL 500.3114(1), which provides, in part,
that a personal protection insurance policy 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. The statute
further provides that when personal protection insurance benefits
are payable to or for the benefit of an injured person under his or
her own policy and would also be payable under the policy of his or
her spouse, relative, or relative’s spouse, the injured person’s
insurer shall pay all the benefits and is not entitled to recoupment
from the other insurer. Auto Club, Foremost, and Chrysler Insur-
ance are of equal priority for John’s PIP benefits because John is
a named insured on their policies. Because Vera-Anne is a named
insured on only the Auto Club and Chrysler Insurance policies,
Auto Club and Chrysler Insurance are primarily liable for her PIP
benefits. PIP benefits are payable to Vera-Anne under her own
Auto Club and Chrysler Insurance policies, and, although benefits
would also be payable to her under her spouse’s policy with
Foremost, her insurers, Auto Club and Chrysler Insurance must
pay all her PIP benefits pursuant to MCL 500.3114(1). The matter
is remanded to the trial court to determine the amount of each
insurer’s liability and to order the appropriate reimbursement
pursuant to MCL 500.3115(2).
Reversed and remanded.
1. I
NSURANCE —
N
O
-F
AULT —
W
ORDS AND
P
HRASES —
O
WNER
.
The owner or registrant of a motor vehicle required to be registered
in Michigan must maintain security for the payment of benefits
under personal protection insurance, property protection insur-
ance, and residual liability insurance; an “owner” includes 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 (MCL
500.3101[1] and [2][h]).
244 296 M
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242 [Apr
2. I
NSURANCE —
N
O
-F
AULT —
P
ERSONAL
P
ROTECTION
I
NSURANCE
.
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; “the person named in the policy” is synonymous
with the term “the named insured”; when personal protection
insurance benefits are payable to or for the benefit of an injured
person under his or her own policy and would also be payable
under the policy of his or her spouse, relative, or relative’s spouse,
the injured person’s insurer must pay all of the benefits and is not
entitled to recoupment from the other insurer (MCL 500.3114[1]).
3. I
NSURANCE —
N
O
-F
AULT —
P
ERSONAL
I
NJURY
P
ROTECTION
B
ENEFITS
.
Personal injury protection coverage protects the person, not the
motor vehicle; a person who sustains accidental bodily injury while
an occupant of a motor vehicle must first look to no-fault insur-
ance policies within the person’s household for no-fault personal
injury protection benefits; a no-fault insurance carrier can be
responsible for personal injury protection benefits even if the
motor vehicle it insures was not the actual motor vehicle involved
in the accident (MCL 500.3101[1]; MCL 500.3114[1]).
4. I
NSURANCE —
N
O
-F
AULT —
P
ERSONAL
I
NJURY
P
ROTECTION
B
ENEFITS —
I
NSUR-
ERS IN
S
AME
O
RDER OF
P
RIORITY
.
When two or more insurers are in the same order of priority to
provide personal injury protection benefits an insurer paying
benefits due is entitled to partial recoupment from the other
insurers in the same order of priority (MCL 500.3115[2]).
5. I
NSURANCE —
N
O
-F
AULT —
R
EFORMATION OF
P
OLICIES
.
Reformation of an insurance policy is an equitable remedy; when
reasonably possible, courts are obligated to construe insurance
contracts that conflict with the no-fault act, and therefore violate
public policy, in a manner that renders them compatible with
public policy as reflected in the act.
6. I
NSURANCE —
N
O
-F
AULT —
I
NSURABLE
I
NTERESTS
.
An insured must have an insurable interest to support the existence
of a valid motor vehicle liability insurance policy; the insurable
interest must be that of a named insured; the insurable interest
need not be in the nature of ownership and an individual can have
an insurable interest without having title to the vehicle; an
insurable interest can be any kind of benefit from the thing so
2012] C
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insured or any kind of loss that would be suffered by its damage or
destruction; a person has an insurable interest in his or her own
health and well-being and such interest entitles an insured person
to personal protection benefits under the no-fault act regardless of
whether a covered vehicle is involved.
7. I
NSURANCE —
N
O
-F
AULT —
P
UBLIC
P
OLICY —
M
OTOR
V
EHICLES —
I
NSURABLE
I
NTERESTS
.
Michigan’s public policy forbids the issuance of an insurance policy
where the insured lacks an insurable interest; owners and regis-
trants have an insurable interest in their motor vehicles because
the no-fault act requires them to carry no-fault insurance and
makes it a misdemeanor to fail to do so; the insurable interest of
owners and registrants is, therefore, contingent upon personal
pecuniary damage created by the no-fault act (MCL 500.3102[2]).
8. I
NSURANCE —
N
O
-F
AULT —
L
ESSEES —
I
NSURABLE
I
NTERESTS —
W
ORDS AND
P
HRASES —
O
WNER —
R
EGISTRANT
.
A person engaged in the business of leasing motor vehicles who is the
lessor of a motor vehicle pursuant to a lease providing for the use
of the motor vehicle by the lessee for a period that is greater than
30 days is neither the owner nor registrant of the vehicle and does
not have an insurable interest in the vehicle contingent upon
personal pecuniary damage created by the no-fault act (MCL
500.3101[2][h][ii] and [i]).
Hom, Killeen, Siefer, Arene & Hoehn (by Elaine I.
Harding) and John A. Lydick for Auto Club Insurance
Association.
Law Offices of Thomas R. Bieglecki P.C. (by Thomas
R. Bieglecki) for DaimlerChrysler Insurance Company.
Cory & Associates (by Patrick W. Bennett) for Fore-
most Insurance Company.
Before: B
ORRELLO
,P.J., and B
ECKERING
and G
LEICHER
,
JJ.
P
ER
C
URIAM
. This appeal involves a priority dispute
among three automobile insurance companies. In 2007,
plaintiffs John and Vera-Anne Corwin sustained severe
246 296 M
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injuries in a car accident while driving a 2007 Jeep
Compass that John leased from defendant Chrysler
LLC
1
and insured through defendant DaimlerChrysler
Insurance Company
2
(Chrysler Insurance). The Cor-
wins also owned two other motor vehicles: one insured
by plaintiff Auto Club Insurance Association (Auto
Club) and the other by defendant Foremost Insurance
Company (Foremost). Auto Club and Foremost have
paid the Corwins’ personal injury protection (PIP)
benefits at the time of this appeal. Chrysler Insurance
insists that it does not share this responsibility because
Chrysler LLC and its United States subsidiaries, rather
than the Corwins, are the named insureds in the
insurance policy for the Jeep Compass, and the policy
states that Chrysler Insurance is not responsible for
PIP benefits if the Corwins are entitled to PIP benefits
as the named insureds in another policy. The trial court
agreed and granted summary disposition in Chrysler
Insurance’s favor.
Michigan law requires that the named insured in an
automobile insurance policy have an insurable interest.
Moreover, a motor-vehicle insurer cannot avoid or shift
its statutory primary responsibility for PIP benefits. We
conclude that Chrysler LLC and its United States
subsidiaries do not have an insurable interest as re-
quired by Michigan law and that the Chrysler Insur-
ance policy contravenes the no-fault act by enabling
Chrysler Insurance to avoid and shift its statutory
responsibility for its share of the Corwins’ PIP benefits.
Thus, we reform the Chrysler Insurance policy to
comply with Michigan law by including both John and
1
Chrysler LLC was known as DaimlerChrysler Corporation at the
time.
2
DaimlerChrysler Insurance Company recently changed its name to
CorePoint Insurance Company.
2012] C
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Vera-Anne as “named insureds” falling within the poli-
cy’s definition of “you.” We reverse and remand.
I. FACTS AND PROCEDURAL HISTORY
John and Vera-Anne Corwin are husband and wife
and live together in Oakland County. John is a retiree of
Chrysler LLC. As a retiree, John qualified for a Chrysler
vehicle lease program. Through the program, John
leased a 2007 Jeep Compass from Chrysler LLC begin-
ning in June 2007. The term of the lease was for two
years. Chrysler Insurance insured the Jeep Compass
under a fronted insurance policy.
3
Chrysler LLC never
gave John an option of purchasing insurance with
another automobile insurer. When John received the
Jeep Compass, he received a certificate of insurance;
however, John was not the named insured on the
certificate. John never received a copy of the insurance
policy or a title for the vehicle. However, John did
receive a “lease vehicle terms and conditions manual.”
John had a monthly lease fee of about $300 that was
deducted from his pension check. The terms and condi-
tions manual provided that the monthly fee “covered all
expenses related to the [Jeep Compass] including insur-
ance” that was “required by the state.” John was never
informed what portion of his monthly payment was for
the insurance.
The Chrysler Insurance policy declarations page and
endorsements IL-A and IL-B provide that Daimler-
3
Fronting is “[t]he use of an insurer to issue paper—that is, an
insurance policy—on behalf of a self-insured organization...without the
intention of bearing any of the risk. The risk of loss is transferred back
to the self-insured...with an indemnity or reinsurance agreement.”
Int’l Risk Mgt Institute, Inc, Glossary of Insurance & Risk Manage-
ment Terms <http://www.irmi.com/online/insurance-glossary/terms/f/
fronting.aspx> (accessed March 19, 2012).
248 296 M
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242 [Apr
Chrysler Corporation and its United States subsidiaries
are the “named insured” for the Jeep Compass. The
policy defines “you” as “the Named Insured shown in
the Declarations” and “us” as “the Company providing
this Insurance.” The Chrysler Insurance policy states
the following with respect to coverage: “We will pay
personal injury protection [PIP] benefits to or for an
‘insured’ who sustains ‘bodily injury’ caused by an
‘accident’ and resulting from the ownership, mainte-
nance or use of an ‘auto’ as an ‘auto’.” The policy
defines an “insured” as follows:
B. Who Is An Insured
1. You or any “family member”.
2. Anyone else who sustains “bodily injury”:
a. While “occupying” a covered “auto”, or
b. As the result of an “accident” involving any other
“auto” operated by you or a “family member” if that “auto”
is a covered “auto” under the policy’s Liability Coverage, or
c. While not “occupying” any “auto” as a result of an
“accident” involving a covered “auto”.
The policy contains the following exclusion:
C. Exclusions
We will not pay personal injury protection benefits for
“bodily injury”:
***
6. To anyone entitled to Michigan no-fault benefits as a
Named Insured under another policy. This exclusion does
not apply to you or anyone “occupying” a motorcycle.
On August 5, 2007, John was driving the Jeep
Compass. Vera-Anne and the Corwins’ daughter, Gail,
were seated in passenger seats. As John drove through
an intersection on a green light, a vehicle driven by
defendant Leslie Ann Jackson drove through on a red
2012] C
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light and struck the Jeep Compass “almost completely
in the driver’s door.” Jackson was an uninsured motor-
ist at the time of the accident. Both John and Vera-Anne
sustained severe injuries.
At the time of the accident, the Corwins owned a Jeep
Liberty that was insured with Auto Club under a
Michigan no-fault insurance policy. John and Vera-
Anne were the “named insureds” under the policy. The
Corwins also owned a motor home. The motor home
was insured by Foremost. John was the “named in-
sured” under the policy. After the accident, Auto Club
provided the Corwins “hundreds of thousands of dol-
lars” in PIP benefits. But, neither Foremost nor
Chrysler Insurance paid the Corwins PIP benefits be-
fore this action was initiated.
The Corwins and Auto Club sued Chrysler Insur-
ance, Chrysler LLC, Foremost, and Jackson. The Cor-
wins and Auto Club requested a declaratory judgment
regarding the parties’ obligations to pay PIP benefits,
Auto Club’s right to reimbursement from defendants,
and the Corwins’ right to uninsured-motorist coverage
under their three insurance policies. The Corwins and
Auto Club also pleaded a single count of negligence
against Jackson. Chrysler Insurance and Chrysler LLC
filed a counterclaim against the Corwins and Auto Club
and moved for summary disposition under MCR
2.116(C)(10). It argued that Auto Club and Foremost
had coequal priority to pay the Corwins’ PIP benefits
because John was a named insured on both the Auto
Club and Foremost policies but not the Chrysler Insur-
ance policy. Chrysler Insurance also argued that the
Corwins could not recover uninsured-motorist benefits
from Chrysler Insurance because the Chrysler Insur-
ance policy did not provide uninsured-motorist cover-
age at the time of the accident. Auto Club and Foremost
250 296 M
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242 [Apr
moved for partial summary disposition under MCR
2.116(C)(10). They argued that Chrysler Insurance,
Auto Club, and Foremost shared the liability for the
Corwins’ PIP benefits because (1) the Corwins were the
named insureds on the Auto Club and Foremost policies
and (2) the Chrysler Insurance policy should be re-
formed by the court to name the Corwins as the named
insureds because the policy improperly shifted Chrysler
Insurance’s statutory responsibility for the Corwins’
PIP benefits to Foremost and Auto Club.
Without hearing oral argument on the parties’ mo-
tions for summary disposition, the trial court issued an
opinion and order on July 1, 2010. The trial court
granted Chrysler Insurance’s motion for summary dis-
position and denied Auto Club’s and Foremost’s motion
for summary disposition. The court opined as follows, in
pertinent part:
ACIA [Auto Club Insurance Corporation] and Foremost
find themselves in a legal quandary in that the fundamen-
tal reality is that DCIC [sic] is the “named insured” on its
own policy. This Court believes the law does not permit the
interpretation of the No-Fault Act proposed by ACIA and
Foremost. The DCIC policy is a “fronting policy” which
ACIA and Foremost ask this Court to declare illegal....
This Court is asked to “close the loophole” created by the
DCIC policy; this is something that this Court cannot do.
Absent a directive from a higher authority, this Court
cannot find the DCIC policy is illegal or should be inter-
preted a different way. This Court cannot engage in legis-
lative functions as the proper role of the judiciary is to
interpret and not write the law. State Farm [Fire] and Cas
Co v. Old Republic Ins. Co, 466 Mich 142, 146; 644 NW2d
715 (2002).
As discussed supra, the Corwins were not the “named
insured” on [the] DCIC policy, but they were the “named
insured” on the ACIA and Foremost policies. MCL
500.3114 specifically refers to the person named in the
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policy. It has been held that “the person named in the
policy” as used in the No Fault Act, is synonymous with the
term “named insured.” Cvengros v. Farm Bureau Ins, 216
Mich App 261, 264; 548 NW2d 698 (1996). Based on the
principles of statutory interpretation discussed supra, this
Court finds that ACIA and Foremost are co-equals in the
highest order of priority.
...Asitrelates to the Uninsured/Underinsured Motor-
ist Benefits claims relative to the Corwins, this Court finds
there is no genuine issue of fact that the DCIC policy
provided no such coverage under the policy for Michigan
vehicles at the time of the accident.
Auto Club moved for reconsideration. The court
granted the motion in part “to correct a clerical error,”
i.e., to amend its July 1, 2010, opinion and order to
reflect that Auto Club’s motion for summary disposi-
tion was granted in part to the extent that Auto Club
and Foremost were coequals in the highest order of
priority.
The trial court entered an order of judgment (a
partial consent judgment, because, by that time, Auto
Club and Foremost had reached a settlement that they
were in the same order of priority for purposes of the
Corwins’ PIP benefits and Foremost had paid Auto
Club $313,655.73 in settlement of the past and present
PIP benefits Auto Club had paid the Corwins) on
December 16, 2010, in favor of Auto Club against
Foremost for $313,655.73. It dismissed with prejudice
the Corwins’ claims for uninsured-motorist benefits.
And, it noted that the Corwins, Auto Club, and Fore-
most preserved “their continued objection” to the
court’s summary-disposition rulings and their right to
appeal the issue of Chrysler Insurance’s liability for PIP
benefits.
4
4
In a footnote, the court stated that “[a]ny claim by Plaintiffs against
Defendant Chrysler LLC has been resolved by Bankruptcy Court pro-
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II. ANALYSIS
Auto Club and Foremost argue that the trial court
erroneously granted summary disposition in favor of
Chrysler Insurance. They contend that the Chrysler
Insurance policy violates public policy and, thus, should
be reformed. We agree.
A. STANDARD OF REVIEW
We review a trial court’s summary-disposition ruling
de novo. Maiden v Rozwood, 461 Mich 109, 118; 597
NW2d 817 (1999). When reviewing a motion brought
under MCR 2.116(C)(10), this Court considers the
pleadings, affidavits, depositions, admissions, and any
other documentary evidence submitted by the parties in
a light most favorable to the nonmoving party. The
Cadle Co v City of Kentwood, 285 Mich App 240, 247;
776 NW2d 145 (2009). A motion for summary disposi-
tion under MCR 2.116(C)(10) may be granted when
there is no genuine issue regarding any material fact
and the moving party is entitled to judgment as a
matter of law. Campbell v Dep’t of Human Servs, 286
Mich App 230, 235; 780 NW2d 586 (2009).
Issues of statutory construction are questions of law,
which we review de novo. Megee v Carmine, 290 Mich
App 551, 559; 802 NW2d 669 (2010). “The interpreta-
tion and construction of insurance contracts are also
questions of law, which this Court reviews de novo.”
Citizens Ins Co v Secura Ins, 279 Mich App 69, 72; 755
NW2d 563 (2008). Finally, we review “de novo a trial
court’s decision whether to grant equitable relief.”
Walker v Farmers Ins Exch, 226 Mich App 75, 79; 572
NW2d 17 (1997).
ceedings, and there is no claim by Plaintiffs against Defendant Leslie Ann
Jackson because [Jackson] was never served with Plaintiffs’ Complaint.”
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B. CHRYSLER INSURANCE’S PRIORITY WHEN CHRYSLER LLC AND
ITS UNITED STATES SUBSIDIARIES ARE THE NAMED INSUREDS
“The Michigan no-fault act, MCL 500.3101 et seq.,
requires Michigan drivers to maintain automobile in-
surance.” American Home Assurance Co v Mich Cata-
strophic Claims Ass’n, 288 Mich App 706, 717; 795
NW2d 172 (2010). MCL 500.3101(1) provides that 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 insur-
ance, property protection insurance, and residual liabil-
ity insurance.”
Under the no-fault act, an “owner” means any of the
following:
(i) 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.
(ii) A person who holds the legal title to a vehicle, other
than a person engaged in the business of leasing motor
vehicles who is the lessor of a motor vehicle pursuant to a
lease providing for the use of the motor vehicle by the
lessee for a period that is greater than 30 days.
(iii) A person who has the immediate right of possession
of a motor vehicle under an installment sale contract.
[MCL 500.3101(2)(h).]
“An insurer who elects to provide automobile insur-
ance is liable to pay no-fault benefits subject to the
provisions of the [no-fault] act.” Dobbelaere v Auto-
Owners Ins Co, 275 Mich App 527, 530; 740 NW2d 503
(2007), citing MCL 500.3105(1).
When determining the priority of insurers liable for
no-fault PIP benefits, courts must examine MCL
500.3114. See Besic v Citizens Ins Co of the Midwest,
290 Mich App 19, 30; 800 NW2d 93 (2010). MCL
500.3114(1) provides that “a personal protection insur-
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ance 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.” The phrase “the person
named in the policy” is synonymous with the term “the
named insured.” Cvengros v Farm Bureau Ins, 216
Mich App 261, 264; 548 NW2d 698 (1996) (quotation
marks and citation omitted). Moreover, MCL
500.3114(1) states the following:
When personal protection insurance benefits...are
payable to or for the benefit of an injured person under his
or her own policy and would also be payable under the
policy of his or her spouse, relative, or relative’s spouse, the
injured person’s insurer shall pay all of the benefits and is
not entitled to recoupment from the other insurer.
“These provisions have been interpreted as providing
that no-fault insurance policies for the injured person’s
household are first in order of priority of responsibility
for payment of no-fault benefits....”Dobbelaere, 275
Mich App at 530. Therefore, “a person who sustains
accidental bodily injury while the occupant of a motor
vehicle must first look to no-fault insurance policies
within his or her household for no-fault PIP benefits.”
Id. A no-fault insurance carrier can be responsible for
PIP benefits even if the motor vehicle it insures was not
the actual motor vehicle involved in the accident. See
Detroit Auto Inter-Ins Exch v Home Ins Co, 428 Mich 43,
48-49; 405 NW2d 85 (1987). “PIP coverage protects the
person, not the motor vehicle.” Amerisure Ins Co v
Auto-Owners Ins Co, 262 Mich App 10, 17; 684 NW2d
391 (2004) (quotation marks and citation omitted).
When two or more insurers are in the same order of
priority to provide PIP benefits, “an insurer paying
benefits due is entitled to partial recoupment from the
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other insurers in the same order of priority, together
with a reasonable amount of partial recoupment of the
expense of processing the claim, in order to accomplish
equitable distribution of the loss among such insurers.”
MCL 500.3115(2).
In this case, the parties correctly agree that, absent
reformation of the Chrysler Insurance policy, Chrysler
Insurance is not primarily liable for the Corwins’ PIP
benefits under MCL 500.3114(1). This is because both
John and Vera-Anne are a named insured on a no-fault
policy in their household, John on the Auto Club and
Foremost policies and Vera-Anne on the Auto Club
policy, and neither John nor Vera-Anne is a named
insured on the Chrysler Insurance policy. Moreover, an
exclusion in the Chrysler Insurance policy provides that
Chrysler Insurance does not have to pay the Corwins’
PIP benefits when the Corwins are “entitled to Michi-
gan no-fault benefits as a Named Insured under an-
other policy.”
The critical issues in this case are whether the
Chrysler Insurance policy complies with the no-fault act
and, if not, whether the policy must be reformed.
C. VALIDITY OF THE CHRYSLER INSURANCE POLICY UNDER
THE NO-FAULT ACT AND GROUNDS FOR REFORMATION
It is a “bedrock principle of American contract law
that parties are free to contract as they see fit, and the
courts are to enforce the agreement as written ab-
sent...acontract in violation of law or public policy.”
Rory v Continental Ins Co, 473 Mich 457, 469; 703
NW2d 23 (2005) (quotation marks and citation omit-
ted). “Reformation of an insurance policy is an equi-
table remedy.” Titan Ins Co v Hyten, 291 Mich App 445,
451; 805 NW2d 503 (2011), lv gtd 490 Mich 868 (2011)
(quotation marks and citation omitted). “[A] policy in
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full effect may be reformed.” Id. “[C]ontracting parties
are assumed to want their contract to be valid and
enforceable.” Cruz v State Farm Mut Auto Ins Co, 466
Mich 588, 599; 648 NW2d 591 (2002). Thus, when
reasonably possible, this Court is obligated to construe
insurance contracts that conflict with the no-fault act
and, thus, violate public policy, in a manner that ren-
ders them “compatible with the existing public policy as
reflected in the no-fault act.” Id.; see also State Farm
Mut Auto Ins Co v Enterprise Leasing Co, 452 Mich 25,
40-41; 549 NW2d 345 (1996) (reforming an invalid
no-fault policy to comply with the no-fault act when the
policy improperly shifted statutory responsibility for
providing no-fault coverage); Citizens Ins Co of America
v Federated Mut Ins Co, 448 Mich 225, 238; 531 NW2d
138 (1995) (reforming an invalid no-fault policy to
provide coverage required by the no-fault act).
We conclude that the Chrysler Insurance policy is
invalid under the no-fault act and requires reformation
for two reasons: (1) Chrysler LLC and its United States
subsidiaries, the named insureds in the policy, do not
have an insurable interest and (2) the policy contra-
venes the legislative intent of the no-fault act.
1. INSURABLE INTEREST
“ ‘[U]nder Michigan law, an insured must have an
“insurable interest” to support the existence of a valid
automobile liability insurance policy.’ ” Morrison v Se-
cura Ins, 286 Mich App 569, 572; 781 NW2d 151 (2009),
quoting Allstate Ins Co v State Farm Mut Auto Ins Co,
230 Mich App 434, 439; 584 NW2d 355 (1998). And,
“the insurable interest must be that of a ‘named in-
sured.’ ” Id., quoting Allstate, 230 Mich App at 440.
“[A]n ‘insurable interest’ need not be in the nature of
ownership, but rather can be any kind of benefit from
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the thing so insured or any kind of loss that would be
suffered by its damage or destruction.” Id. at 572-573.
An individual can have an insurable interest in a motor
vehicle without having title to the vehicle. See Clev-
enger v Allstate Ins Co, 443 Mich 646, 661-662; 505
NW2d 553 (1993). For example, “[a] person obviously
has an insurable interest in his own health and well-
being. This is the insurable interest which entitles
persons to personal protection benefits regardless of
whether a covered vehicle is involved.” Roberts v Titan
Ins Co (On Reconsideration), 282 Mich App 339, 362;
764 NW2d 304 (2009) (quotation marks and citation
omitted). “[T]he ‘insurable interest’ requirement arises
out of long-standing public policy.” Morrison, 286 Mich
App at 572, citing Allstate, 230 Mich App at 438.
“[P]ublic policy forbids the issuance of an insurance
policy where the insured lacks an insurable interest.”
Id. at 573 (emphasis in original). A policy is void when
there is not an insurable interest. Id. at 572; see also
Allstate, 230 Mich App at 441.
Here, neither Chrysler LLC nor its United States
subsidiaries have an insurable interest to support the
existence of the Chrysler Insurance policy for personal
protection, property protection, and residual liability
insurance. Owners and registrants have an insurable
interest in their motor vehicles because the no-fault act
requires owners and registrants to carry no-fault insur-
ance and MCL 500.3102(2) makes it a misdemeanor to
fail to do so. See Clevenger, 443 Mich at 651, 661. The
insurable interest of owners and registrants is, there-
fore, contingent upon “personal pecuniary damage cre-
ated by the no-fault statute itself.” Id. at 661. As
Chrysler Insurance conceded during oral argument,
Chrysler LLC and its United States subsidiaries are not
owners or registrants of the Jeep Compass leased to the
Corwins. MCL 500.3101(2)(h)(ii) and (i) expressly ex-
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clude “a person engaged in the business of leasing
motor vehicles who is the lessor of a motor vehicle
pursuant to a lease providing for the use of the motor
vehicle by the lessee for a period that is greater than 30
days” from being either an owner or registrant. Thus,
Chrysler LLC cannot be an owner or registrant of the
Jeep Compass. Moreover, there is no evidence in the
record indicating that a United States subsidiary of
Chrysler LLC was an owner or registrant of the Jeep
Compass. Therefore, Chrysler LLC and its United
States subsidiaries do not have an insurable interest
contingent upon “personal pecuniary damage created
by the no-fault statute itself.” See Clevenger, 443 Mich
at 661.
Furthermore, Chrysler LLC and its United States
subsidiaries lack any insurable interest flowing from
protection of a person’s “health and well-being” be-
cause they cannot suffer accidental bodily injury. See
MCL 500.3114(1); Roberts, 282 Mich App at 362.
Chrysler LLC and its United States subsidiaries also do
not have an insurable interest entitling them to re-
sidual liability or property protection insurance. Re-
sidual liability insurance affords coverage for noneco-
nomic loss caused by the “ownership, maintenance, or
use of a motor vehicle....” MCL 500.3135; see also
Citizens, 448 Mich at 228-229. The owner or registrant
of a motor vehicle has the primary duty to provide
residual liability insurance. Citizens, 448 Mich at 235.
“Under property protection insurance an insurer is
liable to pay benefits for accidental damage to tangible
property arising out of the ownership, operation, main-
tenance, or use of a motor vehicle as a motor ve-
hicle....”MCL500.3121(1). A person claims property
protection insurance benefits in the following order of
priority: (1) insurers of owners or registrants of vehicles
involved in the accident and (2) insurers of operators of
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vehicles involved in the accident. MCL 500.3125. As
previously discussed, Chrysler LLC and its United
States subsidiaries are not owners or registrants of the
Jeep Compass. Furthermore, they do not maintain,
operate, or use the Jeep Compass to give rise to liability
for residual liability or property protection insurance
benefits. Chrysler LLC and its United States subsidiar-
ies do not derive “any kind of benefit from [a] thing so
insured” nor do they suffer “any kind of loss that would
be suffered by its damage or destruction.” See Morri-
son, 286 Mich App at 573.
Because Chrysler LLC and its United States subsid-
iaries do not have an insurable interest as the named
insured in the Chrysler Insurance policy, the policy
violates public policy. See id. at 572-573. Indeed, the
entire policy is void—leaving John, the owner of the
Jeep Compass, in violation of his statutory duty to
maintain security for the payment of insurance ben-
efits. See id. at 572; MCL 500.3101(1), (2)(h). The
Chrysler Insurance policy must be reformed to be
compatible with public policy so that there is an insur-
able interest belonging to the named insured. See
Morrison, 286 Mich App at 572 (insurable interest must
belong to the named insured); Cruz, 466 Mich at 599
(parties are assumed to want their contract to be valid);
see also Enterprise Leasing, 452 Mich at 40-41 (reform-
ing a no-fault policy to comply with the no-fault act
when the policy improperly shifted statutory responsi-
bility for providing no-fault coverage).
2. LEGISLATIVE INTENT
“Insurance policies are...subject to statutory regu-
lation, and mandatory statutory provisions must be
read into them.” Auto-Owners Ins Co v Martin, 284
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Mich App 427, 434; 773 NW2d 29 (2009). “Insurance
policy provisions that conflict with statutes are in-
valid....”Id.
In Enterprise Leasing, the Michigan Supreme Court
held that a provision in a car rental agreement that
shifted the primary responsibility of the vehicle owner
to provide no-fault coverage was void. Enterprise Leas-
ing, 452 Mich at 27. The three cases in Enterprise
Leasing involved three rental agreements; each agree-
ment provided that the renter and not the owner of the
rented motor vehicle would provide all automobile
insurance. Id. at 28-30. Each of the three renters was
involved in a motor-vehicle accident while driving the
rented motor vehicle; the accidents resulted in lawsuits
for residual liability benefits. Id. The Court concluded
that the provisions in the three rental agreements that
shifted the responsibility for providing primary residual
liability coverage from the owner to both the driver and
the driver’s insurer were void. Id. at 27. The Court
explained that “it is the ‘owner or registrant of a motor
vehicle’ who must provide residual liability insurance
under the [no-fault] act.” Id. at 31-32, quoting Citizens,
448 Mich at 228, quoting MCL 500.3101(1) (emphasis in
Citizens). Our Supreme Court stated that it “would not
allow the rental car companies to avoid the Legisla-
ture’s intent that a vehicle owner be primarily respon-
sible for providing coverage.” Id. at 36. Thus, the Court
held that “the car rental companies and their insurers
[were] required to provide primary residual liability
coverage for the permissive use of the rental cars, up to
their policy limits or the minimum required by statute.”
Id.
The Michigan Supreme Court has explained that, in
enacting MCL 500.3114 and MCL 500.3115,
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the Legislature, in its broader purpose, intended to provide
benefits whenever, as a general proposition, an insured is
injured in a motor vehicle accident, whether or not a
registered or covered motor vehicle is involved; and in its
narrower purpose intended that an injured person’s per-
sonal insurer stand primarily liable for such benefits
whether or not its policy covers the motor vehicle involved
and even if the involved vehicle is covered by a policy issued
by another no-fault insurer. [Lee v Detroit Auto Inter-Ins
Exch, 412 Mich 505, 515; 315 NW2d 413 (1982) (emphasis
added).]
See also Underhill v Safeco Ins Co, 407 Mich 175, 191;
284 NW2d 463 (1979) (“It is our understanding of the
legislative purpose that it was intended that injured
persons who are insured or whose family member is
insured for no-fault benefits would have primary resort
to their own insurer.”). “The ‘injured person’s personal
insurer’ is, of course, the insurance company providing
no-fault insurance in his household which was pur-
chased by an ‘owner or registrant of a motor vehicle.’ ”
Farmers Ins Exch v AAA of Mich, 256 Mich App 691,
697; 671 NW2d 89 (2003) (some quotation marks and
citations omitted).
As in Enterprise Leasing, the Chrysler Insurance
policy in this case violates the intent of the no-fault act
by shifting primary liability for no-fault coverage. More
specifically, the policy contravenes the legislative intent
of MCL 500.3114 and MCL 500.3115 of the no-fault act
because the policy enables Chrysler Insurance to avoid
primary liability for PIP benefits that are payable to
injured people that Chrysler Insurance personally in-
sures, i.e., the Corwins. See Lee, 412 Mich at 515. Under
the no-fault act, John is the “owner” of the Jeep
Compass leased from Chrysler LLC because John leased
the Jeep Compass for more than 30 days. See MCL
500.3101(2)(h)(i). Moreover, John purchased no-fault
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insurance for the Jeep Compass through Chrysler In-
surance because the insurance premium was deducted
from his monthly pension checks. Thus, Chrysler Insur-
ance provided no-fault insurance to the Corwin house-
hold and was the Corwins’ “personal insurer.” See
Farmers Ins Exch, 256 Mich App at 697. Nevertheless,
under the terms of its insurance policy, Chrysler Insur-
ance avoids primary liability under MCL 500.3114. As
previously discussed, Chrysler LLC and its United
States subsidiaries are the named insureds under the
Chrysler Insurance policy. Thus, Chrysler Insurance
avoids primary liability for PIP benefits under MCL
500.3114 whenever the Corwins are a named insured in
another no-fault policy in their household. Essentially,
the Chrysler Insurance policy’s designation of Chrysler
LLC and its United States subsidiaries as the named
insureds is a coordination-of-benefits clause in disguise.
The Chrysler Insurance policy relegates motor-vehicle
owners to contingent beneficiaries as permissive users
on their own insurance policies.
We will not allow Chrysler Insurance to avoid the
Legislature’s intent that an injured person’s personal
insurer stand primarily liable for PIP benefits. See Lee,
412 Mich at 515; Enterprise Leasing, 452 Mich at 36.
The Chrysler Insurance policy must be reformed to be
“compatible with the existing public policy as reflected
in the no-fault act.” See Cruz, 466 Mich at 599; see also
Enterprise Leasing, 452 Mich at 40-41 (reforming a car
rental agreement to comply with the no-fault act when
the agreement improperly shifted statutory responsibil-
ity for providing no-fault coverage). Consistent with the
intent of the Legislature, we must reform the policy so
that Chrysler Insurance is primarily liable (along with
Auto Club and Foremost) for PIP benefits in accordance
with MCL 500.3114(1).
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D. REFORMATION OF THE NAMED INSURED AND THE
PRIORITY IMPLICATIONS UNDER MCL
500.3114(1)
We conclude that the Chrysler Insurance policy must
be reformed to include both John and Vera-Anne as
“named insureds” who fall within the policy’s definition
of “you.” In this case, John qualified for the lease
program as a Chrysler LLC retiree, and the insurance
premiums for the Jeep Compass were deducted from his
pension. Moreover, the Chrysler defendants pleaded the
following in their answer in response to the allegation
in Auto Club and the Corwins’ complaint that the
Corwins had an insurance policy with Chrysler Insur-
ance for the Jeep Compass at the time of the accident:
“These Defendants plead No Contest that at the time of
the collision, the Corwins had a policy of insurance
issued by DCIC.” (Emphasis added.)
The liability of Auto Club, Foremost, and Chrysler
Insurance for John’s and Vera-Anne’s PIP benefits is
governed by MCL 500.3114(1). As previously discussed,
MCL 500.3114(1) states the following:
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. A personal
injury insurance policy described in [MCL 500.3103(2)]
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
motorcycle accident. When personal protection insurance
benefits or personal injury benefits described in [MCL
500.3103(2)] are payable to or for the benefit of an injured
person under his or her own policy and would also be
payable under the policy of his or her spouse, relative, or
relative’s spouse, the injured person’s insurer shall pay all
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of the benefits and is not entitled to recoupment from the
other insurer. [MCL 500.3114(1) (emphasis added).]
In Detroit Auto, the Michigan Supreme Court dis-
cussed the proper application of MCL 500.3114(1). See
Detroit Auto, 428 Mich at 47-48. In that case, Vernon
Piche died in a motor-vehicle accident while driving his
wife Patricia’s 1977 Mercury Cougar. Id. at 44. Vernon
and Patricia lived together at the time of the accident.
Id. Vernon and Patricia had six motor vehicles in their
household (several of which were driven by their chil-
dren). Id. All the vehicles were insured by either Detroit
Automobile Inter-Insurance Exchange (DAIIE) or
Home Insurance Company (Home Insurance). See id. at
44 n 3. The owners, insurers, named insureds, and
principal drivers for each vehicle were as follows:
Other
Named Named Principal
Vehicle Insurer Owner Insured Insured Driver
1977 Mercury DAIIE Patricia Patricia
Vernon
[5]
Patricia
Cougar
1969 Chevrolet Home Vernon Vernon Vernon
stake truck
1971 Ford pickup DAIIE Patricia Patricia Vernon
[6]
Vernon
truck
1973 Ford DAIIE Patricia Patricia Paul
Mustang
1973 Pontiac DAIIE Patricia Peter Patricia Peter
Catalina
1975 Plymouth DAIIE Vernon Steven Vernon Steven
Fury
5
Although Vernon was not listed as a named insured for the Mercury
Cougar, the DAIIE insurance policy for the Mercury Cougar included the
named insured’s spouse within the definition of “named insured.” Detroit
Auto, 428 Mich at 48 n 12. Thus, Vernon was a named insured for the
Mercury Cougar.
6
In Detroit Auto, DAIIE conceded that a person listed as a “principal
driver” in its policies was a “named insured.” Detroit Auto, 428 Mich at
45 n 4. Thus, although not listed as a named insured, Vernon was a
named insured on the DAIIE policy for the Ford pickup truck. Id.
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In analyzing whether DAIIE, Home Insurance, or both
were responsible for paying Vernon’s PIP benefits, the
Court recognized that MCL 500.3114(1)
7
applied. De-
troit Auto, 428 Mich at 47. The Court concluded that
both DAIIE and Home Insurance were of equal priority
for Vernon’s PIP benefits, opining as follows, in perti-
nent part:
The first sentence of [MCL 500.3114(1)] provides that
Vernon Piche was covered by the insurance policy that
DAIIE issued to his wife, Patricia Piche, as owner of the
1977 Mercury Cougar. Thus he could collect under either
policy. The second sentence of [MCL 500.3114(1)] then
gives the answer to the present dispute: Since benefits
would be payable by either the insurer(s) of the injured
person (Vernon Piche), or the insurer of the injured per-
son’s spouse (Patricia Piche), the benefits are to be paid by
the insurer(s) of Vernon Piche.
Since DAIIE and Home Insurance each had issued a
policy that named Vernon Piche as an insured operator,
these two insurers are of equal priority. [Id. at 47-48.]
Under Detroit Auto, Auto Club, Foremost, and
Chrysler Insurance are of equal priority for John’s PIP
benefits because John is a named insured on their
policies. However, because Vera-Anne is a named in-
sured on only the Auto Club and Chrysler Insurance
7
In Detroit Auto, MCL 500.3114(1) did not include the present lan-
guage regarding MCL 500.3103(2). Rather, MCL 500.3114(1) read as
follows:
Except as provided in subsections (2) and (3), a personal
protection insurance policy applies to accidental bodily injury to
the person named in the policy, his spouse, and a relative of
either domiciled in the same household. When personal protec-
tion insurance benefits are payable to or for the benefit of an
injured person under his own policy and would also be payable
under the policy of his spouse, relative, or relative’s spouse, the
injured person’s insurer shall pay all of the benefits and shall
not be entitled to recoupment from the other insurer. [Detroit
Auto, 428 Mich at 47.]
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policies, Auto Club and Chrysler Insurance are prima-
rily liable for Vera-Anne’s PIP benefits, but Foremost is
not. PIP benefits are payable to Vera-Anne under her
own Auto Club and Chrysler Insurance policies, and,
although they would also be payable to Vera-Anne
under her spouse’s policy with Foremost, Vera-Anne’s
insurers (Auto Club and Chrysler Insurance) must pay
all her PIP benefits pursuant to MCL 500.3114(1). See
Detroit Auto at 47-48; MCL 500.3114(1).
Accordingly, upon reformation, Auto Club, Foremost,
and Chrysler Insurance are equally liable for John’s
PIP benefits. Auto Club and Chrysler Insurance are
equally liable for Vera-Anne’s PIP benefits. We remand
to the trial court to determine the amount of each
insurer’s liability and to order the appropriate reim-
bursement under MCL 500.3115(2).
Reversed and remanded. We do not retain jurisdic-
tion.
B
ORRELLO
,P.J., and B
ECKERING
and G
LEICHER
,JJ.,
concurred.
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RODENHISER v DUENAS
Docket No. 303192. Submitted April 12, 2012, at Grand Rapids. Decided
April 17, 2012, at 9:20 a.m. Leave to appeal denied, 493 Mich 856.
Connie G. Rodenhiser and Jeannie Rodenhiser, personal represen-
tatives of their sister Ellen S. Mullin’s estate, filed an action in
the Kalamazoo Circuit Court, seeking to annul Mullin’s mar-
riage to Rene Marco Duenas on the basis of fraud and Mullin’s
having been legally incompetent to marry. Mullin had been
diagnosed with cancer in 2008 and was hospitalized because of
her condition by October 2009. She and Duenas were married at
the hospital the night of October 29, 2009, without the knowl-
edge of Mullin’s family. Connie Rodenhiser arranged for Mullin
to execute a durable power of attorney on October 30, 2009,
appointing their mother as Mullin’s patient advocate. Mullin’s
family learned of Mullin and Duenas’s marriage after her death
on November 8, 2009. The court, Curtis J. Bell, J., granted
Duenas’s motion to dismiss under MCR 2.504(B)(2), concluding
that plaintiffs had failed to prove that Mullin was legally
incompetent to enter into a marriage. Plaintiffs appealed by
leave granted.
The Court of Appeals held:
1. There is a strong presumption regarding the validity of a
ceremonial marriage that can only be overcome with clear and
positive proof that the marriage was not valid. In general, under
MCL 552.3, only the parties to a marriage can commence an
annulment action. However, under MCL 552.35, a party’s next
friend may bring an annulment action on the grounds that a party
to the marriage was not capable in law of contracting because of
mental incompetence. A party is legally competent to contract if he
or she possesses sufficient mind to understand in a reasonable
manner the nature and effect of the act in which he or she was
engaged. A contract may be avoided only if the person was of
unsound mind or insane when it was made and the unsoundness
or insanity was of such a character that the person had no
reasonable perception of the nature or terms of the contract.
2. The circuit court did not clearly err by granting Duenas’s
motion to dismiss. Plaintiffs failed to present clear and definite
268 296 M
ICH
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PP
268 [Apr
proof that Mullin was of unsound mind to the extent that she
had no reasonable perception of the nature and effect of the
marriage agreement she entered into with Duenas. Mullin and
Duenas had been involved in a longstanding relationship at the
time of their marriage and were living together at the time she
entered the hospital in 2009. Mullin’s medical records and her
doctor’s testimony established that during the relevant period
Mullin was alert at times, able to comprehend her surround-
ings, was easily roused from sleep, and communicated appropri-
ately with nurses. Connie Rodenhiser, who did not question
Mullin’s competence until after she learned of the marriage,
had arranged for Mullin to execute a durable power of attorney
the morning after the marriage ceremony, and the attorney who
drafted the document attested that Mullin was of sound mind
and not under any duress when she signed the document.
Expert testimony that Mullin was prescribed drugs that had a
high probability of creating mental changes that interfered with
her thought process did not constitute clear and positive proof
that she was of unsound mind.
3. An action to annul a marriage on the basis of fraud can only
be brought by the defrauded spouse while both parties to the
marriage are living, and the marriage cannot be annulled by the
heirs of the spouse or other third parties, such as next friend.
Plaintiffs’ complaint was properly dismissed because plaintiffs
were third parties and lacked legal standing to challenge Mullin’s
marriage to Duenas on the grounds of fraud.
Affirmed.
1. C
ONTRACTS —
M
ARRIAGE
C
ONTRACTS —
A
NNULMENT —
I
NCOMPETENCE OF
P
ARTY
TO
M
ARRIAGE
.
There is a strong presumption regarding the validity of a ceremonial
marriage that can only be overcome with clear and positive proof
that the marriage was not valid; in general, only the parties to a
marriage can commence an annulment action; however, a party’s
next friend may bring an annulment action on the grounds that a
party to the marriage was not capable in law of contracting
because of mental incompetence; a party is legally competent to
contract if he or she possesses sufficient mind to understand in a
reasonable manner the nature and effect of the act in which he or
she was engaged; a contract may be avoided only if the person was
of unsound mind or insane when it was made and the unsoundness
or insanity was of such a character that the person had no
reasonable perception of the nature or terms of the contract (MCL
552.3; MCL 552.35).
2012] R
ODENHISER V
D
UENAS
269
2. C
ONTRACTS —
M
ARRIAGE
C
ONTRACTS —
A
NNULMENT —
F
RAUD
.
A marriage is void if consent was obtained by fraud; an action to
annul a marriage on the basis of fraud can only be brought by the
defrauded spouse while both parties to the marriage are living, and
the marriage cannot be annulled by the heirs of the spouse or other
third parties, such as next friends (MCL 552.2; MCL 552.3).
Strain, Murphy & Vander Wal, PC, (by Stephen L.
Elkins), for Connie G. and Jeannie Rodenhiser.
Miller Johnson (by W. Jack Keiser and Richard E.
Hillary, II) for Rene Duenas.
Before: B
ECKERING
,P.J., and O
WENS
and R
ONAYNE
K
RAUSE
,JJ.
P
ER
C
URIAM
. In this action for annulment, plaintiffs
Connie G. Rodenhiser and Jeannie Rodenhiser, per-
sonal representatives of the estate of Ellen S. Mullin,
appeal by leave granted an order entered by the
Kalamazoo Circuit Court granting defendant Rene
Marco Duenas’ motion to dismiss plaintiffs’ complaint.
We affirm.
I. FACTS
In April 2008, Ellen Mullin, age 50 at the time, was
diagnosed with cancer of the tongue. She had part of
her tongue removed that year; however, the cancer
spread to her lymph nodes, and in April 2009 she
underwent chemotherapy. Mullin’s health deteriorated
and she was admitted to Bronson Hospital on October
24, 2009, with stage-4 cancer. Plaintiffs are Mullin’s
sisters, Connie and Jeannie, who were appointed as
personal representatives following Mullin’s death.
On October 28, 2009, Connie, Mullin, and their
mother met with a physician to discuss a possible
transfer to hospice care. Connie spent that night and
270 296 M
ICH
A
PP
268 [Apr
much of October 29 at the hospital with Mullin. It was
her observation that Mullin was “in and out of it a lot”
and that she was “pretty sedated” and “having halluci-
nations.” Connie finally left the hospital at about 9:00
p.m. Shortly thereafter, defendant came to spend the
night; Connie did not know that defendant had planned
a wedding for that night. At approximately 10:30 p.m.,
defendant and Mullin were married in a ceremony
performed by Reverend Jeanne R. Kucks and witnessed
by the nurse on duty that evening, Rebecca Bussey,
R.N., and a man named Timothy N. Dickmon.
On October 30, 2009, Connie arranged to have an
attorney appear at the hospital so that Mullin could
execute a durable power of attorney appointing her
mother as her patient advocate. The attorney, Paul
Vlachos, signed a witness statement in which he at-
tested that “the person who signed appears to be of
sound mind and under no duress, fraud, or undue
influence....” Unfortunately, Mullin’s overall condi-
tion never improved; she was transferred to hospice
care, where she died on November 8, 2009. Following
her death, Mullin’s family learned of the marriage.
On November 20, 2009, plaintiffs filed a complaint
for annulment. Plaintiffs presented their proofs at a
two-day bench trial. At the close of their proofs, defen-
dant made a motion to dismiss plaintiffs’ action, which
the trial court granted. The court found that plaintiffs
had not carried their burden of proving that Mullin was
legally incompetent to enter into a marriage contract at
the time of the marriage ceremony.
II. STANDARD OF REVIEW
An action to annul a marriage is equitable in nature.
MCL 552.12. This Court reviews de novo matters of
equity. Schmude Oil Co v Omar Operating Co, 184 Mich
2012] R
ODENHISER V
D
UENAS
271
App 574, 582; 458 NW2d 659 (1990). This Court reviews
for clear error a trial court’s decision on a motion for
dismissal under MCR 2.504. Warren v June’s Mobile
Home Village & Sales, Inc, 66 Mich App 386, 389; 239
NW2d 380 (1976). “A finding is clearly erroneous where,
although there is evidence to support the finding, the
reviewing court...is left with the definite and firm
conviction that a mistake has been made.” Ambs v
Kalamazoo Co Rd Comm, 255 Mich App 637, 652; 662
NW2d 424 (2003).
III. COMPETENCE
Plaintiffs assert that the trial court clearly erred by
granting defendant’s motion to dismiss. They argue
that the evidence submitted was sufficient to overcome
the presumption of the validity of Mullin’s marriage
and that they presented sufficient evidence to prove
that Mullin lacked the legal capacity to contract at law.
We disagree.
In Michigan, there is a strong presumption regarding
the validity of a ceremonial marriage. In re Adams
Estate, 362 Mich 624, 627; 107 NW2d 764 (1961).
Indeed, this presumption is one of the “strongest
known to the law.” Id. The presumption can only be
overcome with “clear and positive proof” that the
marriage was not valid. Quinn v Quinn, 4 Mich App
536, 538; 145 NW2d 252 (1966).
MCL 552.1 provides in relevant part:
If solemnized within this state, a marriage that is
prohibited by law because of consanguinity or affinity
between the parties, because either party had a wife or
husband living at the time of solemnization, or because
either party was not capable in law of contracting at the
time of solemnization is absolutely void. [Emphasis added.]
272 296 M
ICH
A
PP
268 [Apr
Generally, only the parties to a marriage can commence
an action for annulment. MCL 552.3 provides:
When a marriage is supposed to be void, or the validity
thereof is doubted, for any of the causes mentioned in the
2 preceding sections; either party, excepting in the cases
where a contrary provision is hereinafter made, may file a
petition or bill in the circuit court of the county, where the
parties or 1 of them, reside, or in the court of chancery for
annulling the same and such petition or bill shall be filed
and proceedings shall be had thereon as in the case of a
petition or bill filed in said court for a divorce; and upon
due proof of the nullity of the marriage, it shall be declared
void by a decree or sentence of nullity.
However, a party’s next friend may bring an action to
annul a marriage on grounds that “a party to the
marriage was not capable in law of contracting....”
MCL 552.35. A person is incapable in law of contracting
when that person is mentally incompetent. In re Erick-
son Estate, 202 Mich App 329, 332; 508 NW2d 181
(1993). As noted by this Court in Erickson Estate,
[t]he test of mental capacity to contract is whether the
person in question possesses sufficient mind to understand
in a reasonable manner the nature and effect of the act in
which the person is engaged. To avoid a contract it must
appear not only that the person was of unsound mind or
insane when it was made, but that the unsoundness or
insanity was of such a character that the person had no
reasonable perception of the nature or terms of the contract.
[Id. (emphasis added).]
We conclude that plaintiffs failed to show by “clear
and definite proof” that Mullin was of unsound mind to
the extent that she had no reasonable perception of the
nature and effect of the marriage agreement she con-
summated with defendant. Id.; Quinn, 4 Mich App at
538.
2012] R
ODENHISER V
D
UENAS
273
First, this was not a situation in which Mullin met
and married a man when she was gravely ill. Rather,
Mullin knew defendant, had a longstanding romantic
relationship with him, and cohabited with him before
her terminal illness. Connie testified that Mullin met
defendant in 1996 and that the two started dating in
2000. Defendant moved in with Mullin in 2001, then
left and moved to Arizona following alleged infidelity.
Mullin stayed in contact with defendant and later
moved to Arizona to live with him in 2003. She stayed
there for one school year before returning to Michigan.
In 2007, defendant returned to Michigan, and he and
Mullin purchased a house and lived together. At the
time she was admitted to the hospital in 2009, Mullin
was living with defendant.
Second, although evidence showed that Mullin was in
poor health and suffered from confusion, fatigue, and
multiple other ailments, according to Dr. Radhakrishna
Vemuri, Mullin’s treating oncologist, there were times
when she was alert and able to comprehend her sur-
roundings. Specifically, Vemuri testified that patients
will drift in and out of alertness. He testified that
Mullin was not “very sick” every time he saw her once
her calcium levels improved. Specifically, one day before
the marriage, Mullin was able to converse with Vemuri
about a potential transfer to University of Michigan
Hospital. In addition, Vemuri testified that he wrote the
letter suggesting that Mullin needed decision-making
assistance at Connie’s request and that at the time he
did not think that Mullin was totally incapacitated;
instead, Vemuri testified that he thought that Mullin
only needed “some support” in making decisions. He
did not alert the appropriate hospital committee that
Mullin was incompetent and did not testify that Mullin
was incapable of deciding to be married on October 29.
274 296 M
ICH
A
PP
268 [Apr
Third, the medical records supported a finding that
Mullin had been alert enough during the relevant time
to comprehend her surroundings. The nursing notes for
October 29 at 9:00 a.m. indicated that Mullin was
“oriented to” “person, place, time” and that her affect,
appearance, and behavior were “appropriate to the
situation.” At 8:30 p.m. that evening, the nurse on duty
indicated that Mullin was awake and easily aroused
from sleep, and the nurse made an entry for Mullin’s
“psychosocial assessment.” The nurse indicated that
Mullin’s affect, appearance, and behavior were “appro-
priate to the situation,” that Mullin “interacts” and
“makes decisions,” and that her mood was appropriate
to the situation and further noted “real interp of event”
and “understands proc[edure].” The nurse noted that
Mullin was “alert, oriented x 3, approp vrbl resp, awake,
denies numbness, denies tingling, denies vision ch, no
agitation, no facial droop, no seizures....”Later that
evening, at 10:10 p.m., the nurse noted that Mullin was
“awake in bed.”
The following morning, October 30 at 9:00 a.m., the
nurse on call made similar entries in the record. She
indicated that Mullin’s affect, appearance, and behavior
were “appropriate to the situation.” A physician’s as-
sistant also saw Mullin that morning and indicated that
Mullin was “alert, oriented x 3, approp vrbl resp, awake,
coordination nrm,” but noted that Mullin’s speech was
“garbled.” At 8:00 p.m. that evening, a nurse noted that
Mullin was “alert, oriented x 3, approp vrbl resp, no
agitation, no seizures....”Shealso noted that Mullin’s
“affect, appearance, behavior” were “appropriate to the
situation” and that Mullin “interacts with env” and
“makes decisions” and also noted “mood approp [to] sit,
real intrp event, understands proc.” The nurse noted
that Mullin’s family was “complaining, controlling,
demanding, hovering, uncooperative.” Two hours later,
2012] R
ODENHISER V
D
UENAS
275
Mullin awakened “easily,” and the nurse shampooed
Mullin’s hair and massaged her head. Mullin indicated,
“That feels so good.” The nurse noted: “Pt appears
tired, family is demanding of pt for responses, answers.
Encouraged family to allow pt to sleep. Will continue to
monitor.” The nurse also noted: “Pt requests lopressor,
colace, senokot that she refused earlier after pressure
from family members. Pt states that she wants the
medication now when asked for confirmation.” Later, at
about midnight, the nurse noted that Mullin was easily
aroused from sleep.
In sum, the relevant medical records show that at
times Mullin was alert and able to comprehend her
surroundings. Nurses indicated that Mullin was easily
aroused from sleep, and Mullin communicated with
nurses and made requests. The nursing staff questioned
Mullin at times and accepted Mullin’s request for
medication over objections from her family.
Fourth, evidence that Connie had a lawyer come to
the hospital to execute a durable power of attorney
further supports a finding that Mullin was of sound
mind and able to comprehend her surroundings at
times while she was in the hospital. Specifically, Connie
arranged for an attorney to appear on October 30. The
attorney executed the durable power of attorney and
attested that Mullin was of “sound mind” and not
under any duress when she signed the document.
Neither Connie nor any other member of Mullin’s
family questioned her capacity to execute the durable
power of attorney at that time, and the issue of compe-
tency was only raised after the family learned of the
marriage.
Fifth, the testimony of plaintiffs’ numerous medical
witnesses did not establish by clear and positive proof
276 296 M
ICH
A
PP
268 [Apr
that Mullin had no reasonable perception of the nature
and effect of the marriage agreement.
Plaintiffs’ expert witness, Dr. Wayne Grant, a clinical
pharmacist, stated in his opinion letter that fentanyl
could cause drowsiness, fatigue, confusion, impaired
cognition, asthenia, dizziness, headache, nervousness,
sleep disturbances, dysphoria, euphoria, lightheaded-
ness, alterations of mood, tremor, abnormal gait and/or
coordination (ataxia), amnesia, abnormal dreams, agi-
tation, paresthesias, paranoia, and anxiety, and halluci-
nations. He also indicated that promethazine and hy-
drocodone can cause many of these same reactions. He
concluded as follows: “It is of [sic] my clinical impres-
sion with a reasonable degree of medical certainty that
Ms. Mullin’s multiple drug therapies in conjunction
with her multiple disease states did compromise her
ability to discuss and execute complex decisions, such as
entering into a the [sic] decision of marriage.” However,
at his deposition, Grant testified that “I’m not stating
she had all these things occur.” He indicated that
confusion and sedation issues do arise in a majority of
patients who receive the drugs Mullin was prescribed,
but he stated that sometimes the patients can have
periods of alertness.
Grant’s testimony established that Mullin was pre-
scribed drugs that had a high probability of creating
“mental changes” that interfered with her thought
process. This testimony did not amount to “clear and
positive proof” that Mullin was of unsound mind to the
extent that she had no reasonable perception of the
nature and effect of the marriage. Erickson Estate, 202
Mich App at 332. The medications certainly could have
had a negative effect on Mullin’s mental capacity, but
there was no proof that Mullin’s capacity was so dimin-
2012] R
ODENHISER V
D
UENAS
277
ished that she lost all reasonable perception of the
nature and effect of the marriage.
In sum, plaintiffs failed to show that Mullin was
incompetent to contract at law given that Mullin knew
defendant and had a longstanding relationship with
him; Vemuri’s testimony showed that there were times
when Mullin was alert and able to comprehend her
surroundings during her stay at Bronson; medical
records supported that there were times when Mullin
was alert and able to comprehend her surroundings;
one day after the marriage, Connie arranged to have
Mullin execute a durable power of attorney in which the
attorney attested that Mullin was of sound mind; the
testimony of plaintiffs’ numerous medical witnesses did
not establish that Mullin lacked all reasonable percep-
tion of the nature and effect of the marriage agreement
on October 29, 2009; and Connie’s credibility was
undermined because she arranged for Mullin to execute
a durable power of attorney the day after her marriage
to defendant, and did not question Mullin’s competency
until after she learned of the marriage.
IV. STANDING TO ASSERT FRAUD
Plaintiffs argue that they have standing to contest
the validity of Mullin’s marriage on the grounds of
fraud or duress. We disagree.
Michigan law provides a few narrow grounds on
which a marriage may be declared void. MCL 552.1
provides that a marriage is void for the following
reasons:
If solemnized within this state, a marriage that is
prohibited by law because of consanguinity or affinity
between the parties, because either party had a wife or
husband living at the time of solemnization, or because
278 296 M
ICH
A
PP
268 [Apr
either party was not capable in law of contracting at the
time of solemnization is absolutely void. The issue of such
a marriage are legitimate.
MCL 552.2 provides that a marriage is void under
several other circumstances, including fraud:
In case of a marriage solemnized when either of the
parties was under the age of legal consent, if they shall
separate during such non-age, and not cohabit together
afterwards, or in case the consent of 1 of the parties was
obtained by force or fraud, and there shall have been no
subsequent voluntary cohabitation of the parties, the mar-
riage shall be deemed void, without any decree of divorce or
other legal process. [Emphasis added.]
MCL 552.3 provides a procedure for the parties to the
marriage to annul a marriage that is allegedly void on
any of the grounds set forth in MCL 552.1 or MCL
552.2:
When a marriage is supposed to be void, or the validity
thereof is doubted, for any of the causes mentioned in the
2 preceding sections; either party, excepting in the cases
where a contrary provision is hereinafter made, may file a
petition or bill in the circuit court of the county, where the
parties or 1 of them, reside, or in the court of chancery for
annulling the same and such petition or bill shall be filed
and proceedings shall be had thereon as in the case of a
petition or bill filed in said court for a divorce; and upon
due proof of the nullity of the marriage, it shall be declared
void by a decree or sentence of nullity.
The only provision allowing a third party to file a
petition or bill to annul a marriage is contained in MCL
552.35, which provides:
If, at the time of a marriage, a party to the marriage was
not capable in law of contracting, an individual admitted by
the court as the party’s next friend may bring an action to
annul the marriage. [Emphasis added.]
2012] R
ODENHISER V
D
UENAS
279
“The right to annul a voidable marriage is a personal
right and the action for annulment of such a marriage
can be maintained only by a party to the marriage
contract. Some statutes expressly require that a suit to
annul a voidable marriage be brought and prosecuted
by the party laboring under the disability claimed to
render the marriage voidable. Therefore, a third person
cannot, as a general rule, maintain an action to annul a
marriage which is merely voidable.” 4 Am Jur 2d,
Annulment of Marriage, § 59, pp 584-585 (2007), citing
In re Davis Estate, 55 Or App 982; 640 P 2d 692 (1982),
Dibble v Meyer, 203 Or 541; 278 P2d 901 (1955), and
Tabak v Garay, 237 AD2d 510; 655 NYS2d 92 (1997).
Further, “[a]n action to annul a marriage on the ground
of fraud can only be brought by the defrauded spouse
while both parties to the marriage are living. It cannot
be annulled at the suit of the heirs of the spouse
imposed upon or other third persons.” Id., § 60, p 585
(2007), citing Gibbons v Blair, 376 NW2d 22 (ND,
1985); Norris v Harrison, 91 Us App DC 103; 198 F2d
953 (1952); In re Succession of Ricks, 893 So 2d 98 (La
App, 2004).
We conclude that it is proper to apply to this case the
general proposition that an action to annul a marriage
on the ground of fraud can only be brought by the
defrauded spouse while both parties to the marriage are
living and the marriage cannot be annulled by the heirs
of the spouse or other third persons, such as next
friends. We make this conclusion based on our interpre-
tation of the statutes cited earlier.
In construing a statute, this Court’s primary goal is
to give effect to the intent of the Legislature. McCor-
mick v Carrier, 487 Mich 180, 191; 795 NW2d 517
(2010). In doing so,
280 296 M
ICH
A
PP
268 [Apr
[t]his Court begins by reviewing the language of the
statute, and, if the language is clear and unambiguous, it is
presumed that the Legislature intended the meaning ex-
pressed in the statute. Judicial construction of an unam-
biguous statute is neither required nor permitted. When
reviewing a statute, all non-technical words and phrases
shall be construed and understood according to the com-
mon 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. [Id. at 191-192 (quotation
marks and citations omitted).]
In this case, the applicable statutes clearly and un-
ambiguously provide that third parties do not have
standing to bring suit to annul a marriage on the
ground that it was procured by fraud. Specifically, MCL
552.3 states that, unless otherwise provided, “either
party” may petition to annul a marriage on grounds
that it is void due to the reasons set forth in the two
preceding statutory sections (one of which includes
fraud). The phrase “either party” clearly refers to
parties to the allegedly void marriage.
First, the Legislature used the phrase “either party”
as opposed to “a party.” The word “either “means “one
or the other of two.” Random House Webster’s College
Dictionary (2001). The only two people who can be
involved in a marriage are the man and woman who
agreed to it. See Const 1963, art 1, § 25. Given the
context of the statute at issue, the plain language used
can be interpreted in no other way except as providing
that suits for annulment on the ground that the mar-
riage was procured by fraud can only be commenced by
“either party” to the marriage at issue. See McCormick,
487 Mich at 191-192 (recognizing that a court should
consider the plain meaning of the words used).
2012] R
ODENHISER V
D
UENAS
281
Second, other sections of the statutes that apply to
divorce and annulment, MCL 552.1, et seq., refer to
“parties” as “parties to the marriage.” For example,
MCL 552.1 refers to “a marriage that is prohibited by
law because of consanguinity or affinity between the
parties ....” (Emphasis added.) MCL 552.2 similarly
refers to parties as “parties to the marriage” through
use of the language “[i]n case of a marriage solemnized
when either of the parties ....” (Emphasis added.)
Finally, MCL 552.36 provides:
A party to a marriage who, at the time of the marriage,
was not capable in law of contracting and who later
becomes capable in law of contracting may bring an action
to annul the marriage. The court shall not, however, annul
the marriage if the court finds that the parties cohabited as
husband and wife after the party became capable in law of
contracting. [Emphasis added.]
See Robinson v City of Lansing, 486 Mich 1, 17; 782
NW2d 171 (2010) (“[u]nless the Legislature indicates
otherwise, when it repeatedly uses the same phrase in a
statute, that phrase should be given the same meaning
throughout the statute.”).
Third, the Legislature provided that a third-party next
friend can bring suit to annul a marriage in only one
circumstance—when a party to the marriage is incapable
of contracting at law. MCL 552.35. The Legislature’s
inclusion of only one ground on which a third party can
bring suit to annul a marriage necessarily indicates that it
did not intend that third parties could bring suit to annul
a marriage on any and all of the grounds enumerated in
the statute. See Hoerstman Gen Contracting, Inc v Hahn,
474 Mich 66, 74-75; 711 NW2d 340 (2006) (explaining the
legal maxim of statutory construction “expressio unius est
exclusio alterius”—“[t]he expression of one thing is the
exclusion of another”).
282 296 M
ICH
A
PP
268 [Apr
In sum, under MCL 552.35, a party’s next friend can
bring an action to annul a marriage on the ground that
the party lacked legal capacity to contract. However,
pursuant to MCL 552.3, a complaint for annulment
based on fraud can only be brought by one of the parties
to the marriage. Therefore, plaintiffs, as third parties,
lacked legal standing to challenge Mullin’s marriage to
defendant on the ground of fraud and this aspect of
their complaint was properly dismissed on that basis.
Affirmed.
B
ECKERING
,P.J., and O
WENS
and R
ONAYNE
K
RAUSE
JJ.,
concurred.
2012] R
ODENHISER V
D
UENAS
283
GREENVILLE LAFAYETTE, LLC v ELGIN STATE BANK
Docket No. 308450. Submitted April 10, 2012, at Lansing. Decided April
17, 2012, at 9:25 a.m.
Greenville Lafayette, LLC, obtained a loan from Elgin State Bank
and, to secure the loan, entered into a separate mortgage over
certain of its property in Montcalm County. The loan was also
secured by two separate commercial guaranties by Avi Banker and
Ahron Shulman. The loan matured and there was an outstanding
balance and attempts to renegotiate and extend the mortgage were
unsuccessful. The bank brought an action to collect on the two
commercial guaranties. The next month, while the action regard-
ing the guaranties was still pending, the bank sent Greenville a
notice of mortgage foreclosure sale that informed Greenville of the
bank’s intent to foreclose by advertisement on Greenville’s real
property. Greenville filed a complaint in the Montcalm Circuit
Court, seeking an injunction against the foreclosure sale and a
declaratory judgment stating that the bank was not entitled to
proceed with the foreclosure sale pursuant to MCL 600.3204(1)(b).
The bank moved for summary disposition, arguing that Michigan
law permits foreclosure by advertisement while an action is
pending against a guarantor. The court, Suzanne Hoseth Kreeger,
J., agreed with the bank, granted the bank’s motion for summary
disposition, and dismissed the action. Greenville appealed.
The Court of Appeals held:
Under Michigan law, a creditor generally may simultaneously
proceed against a guarantor and foreclose on mortgaged property
because the guarantee is an obligation separate from the mortgage
note. In this case, however, the mortgage contract specifically
includes the guaranties in the indebtedness secured by the mort-
gage. The guaranties are not obligations that are separate from the
mortgage note. The action that was instituted against the guar-
antors constituted an action to recover the debt secured by the
mortgage. The bank’s foreclosure by advertisement was invalid
pursuant to the one-action rule provided in MCL 600.3204(1)(b),
which provides that a foreclosure by advertisement is permitted
only if an action or proceeding has not been instituted, at law, to
284 296 M
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recover the debt secured by the mortgage or any part of the
mortgage. The trial court erred by granting summary disposition
in favor of the bank.
Reversed.
M
ORTGAGES —
G
UARANTORS —
F
ORECLOSURES BY
A
DVERTISEMENT —
O
NE
-A
CTION
R
ULE
.
A creditor generally may simultaneously proceed against a guaran-
tor and foreclose on mortgaged property because a guarantee is
generally an obligation separate from the mortgage note; where
the guaranties are specifically included in the mortgage debt by
the terms of the mortgage agreement, the guaranties are not
obligations that are separate from the mortgage note and an action
that is instituted against the guarantors constitutes an action to
recover the debt secured by the mortgage for purposes of the
one-action rule that provides that a foreclosure by advertisement
is permitted only if an action or proceeding has not been insti-
tuted, at law, to recover the debt secured by the mortgage or any
part of the mortgage (MCL 600.3204[1][b]).
Miller Johnson (by Robert W. O’Brien and Joseph J.
Gavin) for plaintiff.
McShane & Bowie, P.L.C. (by Andrew C. Shier), for
defendant.
Before: H
OEKSTRA
,P.J., and S
AWYER
and S
AAD
,JJ.
P
ER
C
URIAM
. Plaintiff appeals as of right the trial
court’s order dismissing its complaint, which sought an
injunction against defendant’s foreclosure by advertise-
ment. Because we conclude that the plain language of
MCL 600.3204 bars defendant’s foreclosure action, we
reverse.
This case arises out of defendant-mortgagee’s fore-
closure by advertisement of plaintiff-mortgagor’s real
property in Montcalm County. In early June 2007,
plaintiff and defendant entered into a “Business Loan
Agreement” for approximately $1.8 million. The same
day, the parties entered into a separate mortgage agree-
2012] G
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ment to secure defendant’s loan to plaintiff. In the
mortgage agreement, plaintiff mortgaged to defendant
real property it owned in Montcalm County. The $1.8
million loan was also secured by two separate commer-
cial guaranties, each in the amount of $300,000, ex-
ecuted by Avi Banker and Ahron Shulman.
The loan matured on June 6, 2011, with plaintiff
owing defendant an outstanding balance of approxi-
mately $1.7 million. Attempts to renegotiate and extend
the mortgage were unsuccessful, and defendant sued to
collect on the two commercial guaranties in August
2011. The next month, while the action regarding the
guaranties was still pending, defendant sent plaintiff its
“Notice of Mortgage Foreclosure Sale,” which informed
plaintiff of defendant’s intent to foreclose by advertise-
ment on plaintiff’s real property.
On October 20, 2011, plaintiff filed its complaint.
Plaintiff sought an injunction against defendant’s pend-
ing foreclosure sale and a declaratory judgment stating
that defendant was not entitled to proceed with the
foreclosure sale according to MCL 600.3204(1)(b). De-
fendant answered the complaint, and subsequently filed
a motion for summary disposition pursuant to MCR
2.116(C)(8), arguing that Michigan law permits foreclo-
sure by advertisement while an action is pending
against a guarantor. After hearing oral arguments, the
trial court granted defendant’s motion for summary
disposition and held as a matter of law that defendant
was entitled to foreclose by advertisement notwith-
standing the existing legal action against the guaran-
tors. Plaintiff now appeals the trial court’s order.
We review de novo a decision on a motion for sum-
mary disposition. Ligon v Detroit, 276 Mich App 120,
124; 739 NW2d 900 (2007). A motion for summary
disposition brought pursuant to MCR 2.116(C)(8) tests
286 296 M
ICH
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the legal sufficiency of the complaint. Maiden v
Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999). “All
well-pleaded factual allegations are accepted as true
and construed in a light most favorable to the nonmo-
vant.” Id. Summary disposition is only appropriate
when “the claims are so clearly unenforceable as a
matter of law that no factual development could possi-
bly justify recovery.” Wade v Dep’t of Corrections, 439
Mich 158, 163; 483 NW2d 26 (1992). We also review
questions of statutory and contract interpretation de
novo. Adair v Mich, 486 Mich 468, 477; 785 NW2d 119
(2010); Archambo v Lawyers Title Ins Corp, 466 Mich
402, 408; 646 NW2d 170 (2002).
The statute at issue in this case, MCL 600.3204(1),
provides:
Subject to subsection (4), a party may foreclose a mortgage
by advertisement if all of the following circumstances exist:
(a) A default in a condition of the mortgage has oc-
curred, by which the power to sell became operative.
(b) An action or proceeding has not been instituted, at law,
to recover the debt secured by the mortgage or any part of the
mortgage; or, if an action or proceeding has been instituted,
the action or proceeding has been discontinued; or an execu-
tion on a judgment rendered in an action or proceeding has
been returned unsatisfied, in whole or in part.
(c) The mortgage containing the power of sale has been
properly recorded.
(d) The party foreclosing the mortgage is either the
owner of the indebtedness or of an interest in the indebt-
edness secured by the mortgage or the servicing agent of
the mortgage.
“The primary goal of statutory interpretation is to
give effect to the Legislature’s intent, focusing first on
the statute’s plain language.” Klooster v City of Char-
levoix, 488 Mich 289, 296; 795 NW2d 578 (2011). The
2012] G
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language is read according to its “ordinary and gener-
ally accepted meaning.” Oakland Co Bd of Co Rd
Comm’rs v Mich Prop & Cas Guaranty Ass’n, 456 Mich
590, 599; 575 NW2d 751 (1998). “Where the language of
a statute is clear, [this Court] will enforce the statute as
written because the Legislature must have intended the
meaning it plainly expressed.” Id.
The parties agree that §§ 3204(1)(a), (c), and (d) are
satisfied. Accordingly, the outcome of this case turns on
the interpretation of § 3204(1)(b); whether “[a]n action
or proceeding has not been instituted, at law, to recover
the debt secured by the mortgage or any part of the
mortgage....”Inthetrial court, the parties relied on
United States v Leslie, 421 F2d 763, 766 (CA 6, 1970),
1
to support their arguments regarding the proper inter-
pretation of the statute. Plaintiff argued that Leslie is
distinguishable from the instant case, whereas defen-
dant argued that this case is factually similar to Leslie.
The trial court adopted the reasoning of defendant and
granted summary disposition in its favor.
Under Michigan law, a creditor generally may simul-
taneously proceed against a guarantor and foreclose on
a mortgaged property because the guaranty is an obli-
gation separate from the mortgage note. Id. See also
Mazur v Young, 507 F3d 1013, 1019 (CA 6, 2007)
(deciding issue under Michigan law, stating “[t]hat a
guaranty agreement is an independent, collateral agree-
ment is what allows a seller to proceed against a
guarantor without having first exhausted the foreclo-
sure remedy against the buyer.”).
2
In Church & Church,
1
The statute at issue in Leslie was a previous version of MCL 600.3204
that was substantially the same in all material respects.
2
Decisions of the federal courts of appeals are persuasive, but not
binding. Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325
(2004).
288 296 M
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284 [Apr
Inc v A-1 Carpentry, 281 Mich App 330, 341; 766 NW2d
30 (2008), vacated in part and aff’d in part on other
grounds 483 Mich 885 (2009), this Court relied on the
decision in Leslie in interpreting MCL 600.3204, stat-
ing:
[T]he intention of the Legislature with respect to the
foreclosure statutes was to force an election of remedies by
a mortgagee concerning a single debt: i.e., the same mort-
gagee cannot simultaneously maintain a lawsuit for judi-
cial foreclosure and a foreclosure by advertisement, be-
cause it would allow for double recovery on the same debt.
The facts of Leslie are similar to this case in that
Leslie involved a mortgage foreclosure and a personal
guaranty. In Leslie, the United States government
commenced an action against the defendants-
guarantors of a promissory note after the mortgagor
corporation defaulted on its payments under the note.
Id. at 764. After the government sought to enforce the
guaranty contracts, the government filed a separate
action for foreclosure by advertisement. Id. at 764-765.
At trial, the guarantors argued that the applicable
Michigan statute prohibited simultaneous actions for
both foreclosure and enforcement of the guaranty con-
tracts. Id. at 765.
The Leslie court held that the government was
permitted to maintain both actions. Id. at 766. The
court explained that the statute was intended to pre-
vent the mortgagor from losing the mortgaged property
and being held personally liable for the debt. Id. Leslie
further explained that the statute was intended to
protect the mortgagor, not the guarantors of a note. Id.
The court concluded:
In the case before us, the debtor-mortgagor is [the
corporation], not the defendants individually. No action
was maintained against [the corporation] on the debt. The
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action in the District Court was brought against the
defendants in their capacity as guarantors. The guaranty is
an obligation separate from the mortgage note. It is simply
not the “debt” to which the statute refers. [Id. at 766.]
On appeal, plaintiff argues that this case is distin-
guishable from Leslie and its progeny because the
mortgage specifically defines the “indebtedness” as
including the guaranties. Accordingly, plaintiff argues,
the mortgage itself includes the guaranties in the
mortgage debt, distinguishing this case from Leslie
because the mortgage and the guaranties are not sepa-
rate. Further, plaintiff maintains, because the mortgage
specifically defines its indebtedness to include the guar-
anties, the action against the guarantors constituted an
action “to recover the debt secured by the mortgage”
pursuant to § 3204(1)(b), thereby rendering the foreclo-
sure by advertisement invalid.
3
The mortgage in this case provides that it is “given to
secure” payment of the “indebtedness.” The mortgage
further defines “indebtedness” to mean “all principal,
interest, and other amounts, costs and expenses pay-
able under the Note or Related Documents....”“Re-
lated Documents” is defined to mean “all promissory
notes, credit agreements, loan agreements, environ-
mental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and
3
Defendant argues on appeal that this specific argument is not
preserved; however, we note that while plaintiff did not present the
identical argument in the trial court, the central issue there was the same
as the central issue here: whether the guaranties are part of the “debt
secured by the mortgage.” Nevertheless, even if plaintiff’s argument
were unpreserved, we would address the argument because it involves a
question of law for which the record before us contains all the facts
necessary for resolution. Farmers Ins Exch v Farm Bureau Gen Ins Co of
Mich, 272 Mich App 106, 118; 724 NW2d 485 (2006).
290 296 M
ICH
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284 [Apr
documents, whether now or hereafter existing, ex-
ecuted in connection with the Indebtedness” (emphasis
added).
The goal of contract interpretation is to read the
document as a whole and apply the plain language used
in order to honor the intent of the parties. Dobbelaere v
Auto-Owners Ins Co, 275 Mich App 527, 529; 740 NW2d
503 (2007). We must enforce the clear and unambiguous
language of a contract as it is written. Frankenmuth
Mut Ins Co v Masters, 460 Mich 105, 111; 595 NW2d
832 (1999).
We agree with plaintiff that the plain language of the
mortgage contract specifically includes guaranties in
the indebtedness secured by the mortgage. This fact
distinguishes the instant case from the case in Leslie
because in holding that simultaneous actions to collect
from the guarantors and to foreclose on the mortgage
did not violate the precursor to MCL 600.3204, the
court in Leslie specifically noted that “[t]he action in
the District Court was brought against the defendants
in their capacity as guarantors. The guaranty is an
obligation separate from the mortgage note.” Leslie,
421 F2d at 766. In this case the guaranties are included
in the mortgage debt by the terms of the mortgage
agreement, and accordingly are not obligations that are
separate from the mortgage note. The parties do not
cite any case that considered MCL 600.3204 under
circumstances where the guaranties were incorporated
into the mortgage debt, and we could find no such case.
The statute does not define “the debt secured by the
mortgage,” and logically, “the debt secured by the
mortgage” must be defined by the mortgage itself.
On the basis of the plain language of the mortgage
and the plain language of the statute, we conclude that
the trial court erred by granting summary disposition
2012] G
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to defendant. In this case, the action that was instituted
against the guarantors constituted an action to recover
the debt secured by the mortgage because the mortgage
specifically included the guaranties as part of the debt
secured by the mortgage.
4
Consequently, defendant’s
foreclosure by advertisement was invalid pursuant to
the one-action rule, which provides that a foreclosure
by advertisement is permitted only if “[a]n action or
proceeding has not been instituted, at law, to recover
the debt secured by the mortgage or any part of the
mortgage....”MCL600.3204(1)(b).
Reversed.
H
OEKSTRA
,P.J., and S
AWYER
and S
AAD
, JJ., concurred.
4
We note that the mortgage uses the term “indebtedness,” while the
statute uses the term “debt” in § 3204(1)(b). We find that this slight
distinction in the terms used does not change the analysis in this case
because the terms are used to refer to the same thing. This Court should
interpret the words in a contract according to their ordinary meaning,
and a dictionary may be used to determine the ordinary meaning of a
word or a phrase. Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich
App 513, 515-516; 773 NW2d 758 (2009). “Indebtedness” is defined to
mean the state of being “obligated to repay money” and as “something
owed;” and “debt” is defined to mean “something that is owed or that one
is bound to pay to or perform for another; a liability or obligation to pay
or render something.” Random House Webster’s College Dictionary
(1992). It is plain that the terms are synonymous as used in the mortgage
and the statute. This point is further supported by the fact that the
statute, in § 3204(1)(d), states that “[t]he party foreclosing the mortgage
is either the owner of the indebtedness or of an interest in the indebt-
edness secured by the mortgage or the servicing agent of the mortgage.”
The statute clearly uses the term’s usage of the term “indebtedness”
synonymously with “debt.”
292 296 M
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PEOPLE v GOREE
Docket No. 302046. Submitted April 10, 2012, at Detroit. Decided April
19, 2012, at 9:00 a.m.
Nathaniel Goree was charged in the Wayne Circuit Court with
assault with intent to commit murder, assault with intent to do
great bodily harm less than murder, and possession of a firearm
during the commission of a felony. A jury acquitted him with
regard to the assault charges, but convicted him of the felony-
firearm charge. Defendant appealed, alleging that the court,
Thomas E. Jackson, J., erred by instructing the jury that a
felony-firearm offense cannot be justified by self-defense.
The Court of Appeals held:
The trial court erred by instructing the jury that self-defense is
not applicable to a felony-firearm charge. Defendant presented
evidence from which the jury apparently found that defendant
acted in self-defense. Defendant introduced evidence from which
the jury could conclude that defendant’s alleged criminal posses-
sion of a firearm was justified because he honestly and reasonably
believed that his life was in imminent danger and that it was
necessary for him to exercise force to protect himself. The trial
court’s erroneous jury instruction was prejudicial. Defendant is
entitled to a new trial on the felony-firearm charge. His conviction
is vacated and the matter is remanded for further proceedings.
Vacated and remanded.
C
RIMINAL
L
AW —
S
ELF
-D
EFENSE —
F
ELONY
-F
IREARM
.
The defense of self-defense is available to a defendant charged with
possession of a firearm during the commission of a felony (MCL
750.227b; MCL 780.972).
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Kym L. Worthy, Prosecuting Attor-
ney, Timothy A. Baughman, Chief of Research, Train-
ing, and Appeals, and Julie A. Powell, Assistant Pros-
ecuting Attorney, for the people.
2012] P
EOPLE V
G
OREE
293
Nathaniel Goree in propria persona.
Before: B
ORRELLO
,P.J., and J
ANSEN
and G
LEICHER
,JJ.
P
ER
C
URIAM
. A jury convicted defendant, Nathaniel
Goree, of possession of a firearm during the commission
of a felony (felony-firearm) in violation of MCL
750.227b, but acquitted him of any underlying assault
charge. The jury reached its verdict after the trial court
erroneously reinstructed it that a felony-firearm of-
fense cannot be justified by self-defense. A defendant’s
commission of a violent crime may be excused when the
defendant acts to protect himself or others, as may a
firearm-possession charge. We therefore vacate defen-
dant’s felony-firearm conviction and sentence, and re-
mand for a new trial before a properly instructed jury.
I. BACKGROUND
Defendant and his wife, Edna Goree, live next door to
the Buckner family on Elmdale Street in the city of
Detroit. In 2009, the families began to feud over the
placement of a privacy fence. Then, on March 16, 2010,
13-year-old Breanna Buckner and defendant’s grand-
children had a disagreement. Edna and her 34-year-old
daughter each allegedly slapped Breanna on the face.
The police were summoned and the prosecutor filed
assault and battery charges against Edna and her
daughter.
1
After the March 2010 incident, the animosity be-
tween the families escalated. At approximately 7:00
p.m. on August 1, 2010, the Buckner family returned
home after a day out together. Donald Buckner testified
1
According to the record, the Gorees’ assault and battery trial was
scheduled for November 16, 2010. There is no record indication regarding
the outcome of that trial.
294 296 M
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that Edna was standing inside her front door, talking on
her cell phone and peeking over at them. Donald and his
three teenage children got out of the family vehicle.
Donald’s wife then drove the vehicle past the fence gate
and parked it. According to Donald, defendant and
Edna came outside and walked to the side of their porch
closest to the Buckner home. Donald testified that
defendant acted like he was in a trance and repeatedly
stated, “Big head bitch, I’m going to kick your ass, I’m
tired of this shit.” Donald walked down his driveway to
a vantage point where he could better see defendant.
Donald told defendant, “you nothing but a pussy, you
always listening to your wife starting stuff.” Donald
warned defendant not to come on his property. Donald
testified that Edna prodded defendant to shoot him. At
that point, defendant reached into his pants, withdrew
a handgun, and fired a shot toward Donald’s chest. The
bullet punctured Donald’s arm and hit his rib cage.
Donald claimed that defendant and Edna then de-
scended their porch and walked up the Buckners’
driveway, and that defendant fired a second shot.
Donald and his family escaped into the house and called
911. Donald’s wife and three children corroborated the
basic elements of his testimony.
Defendant and Edna, on the other hand, claimed that
Donald Buckner called Edna “a big head bitch.” They
testified that Edna tried to leave the house to go to the
store, but was stopped when Donald invaded their front
porch. Defendant claimed that Donald “looked all
wild....Eyes all bulged out his [sic] head, like, he had
white all around his lips.” Defendant verbally con-
fronted Donald and Donald jumped off the porch. Ac-
cording to defendant and Edna, Donald reached behind
his back and threatened, “I have something for you.”
Defendant was afraid that Donald had a gun. Defendant
has a permit to carry a concealed weapon and was
2012] P
EOPLE V
G
OREE
295
wearing a handgun on his left side. He drew and fired
once at Donald. Edna heard Donald yell, “he shot me,
he shot me.” Defendant and Edna went into the house
and called 911.
The responding officers found a single spent shell
casing in the flower bed in front of defendant’s porch.
They found a blood trail on the Buckners’ driveway
starting about five feet from the gate. The officers
found no blood on defendant’s property. The officers
discovered a neighbor who witnessed part of the inci-
dent. He testified that he heard a single gunshot and
looked out to see defendant standing on his own prop-
erty, but near the Buckners’ driveway, and heard defen-
dant yell, “I shot him, I shot him, he was on my porch.”
The prosecution charged defendant with assault with
intent to commit murder, MCL 750.83, and an alterna-
tive lesser charge of assault with intent to do great
bodily harm less than murder, MCL 750.84. Defendant
pleaded self-defense and the jury acquitted him of both
assault charges. However, the jury convicted defendant
of the charged offense of felony-firearm in violation of
MCL 750.227b. The court then sentenced defendant to
two years’ imprisonment.
II. JURY INSTRUCTIONS
Defendant argues that the trial court erroneously
instructed the jury that it could not consider self-
defense when making its determination on the felony-
firearm charge. At the close of defendant’s trial, the
court instructed the jury as follows with regard to
defendant’s claim of self-defense:
In this case the Defendant claims that he acted in lawful
self-defense of himself or his wife. A person has the right to
use force or even take a life to defend himself or another
under certain circumstances. If a person acts in lawful
296 296 M
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self-defense, his actions are justified and he is not guilty of
the crime. You should consider all the evidence and use the
following rules to decide whether the Defendant acted in
lawful self-defense. Remember to judge the Defendant’s
conduct according to how the circumstances appeared to
him at the time he acted.
First, at the time he acted the Defendant must have
honestly and reasonably believed that he was in danger or
another person was being [sic] in danger of being killed or
seriously injured. If his belief was honest and reasonable,
he could act immediately to defend himself even if it turned
out later that he was wrong about how much danger he was
in.
In deciding if the Defendant’s belief was honest and
reasonable, you should consider all the circumstances as
they appeared to the Defendant at the time.
Second, a person may not kill or seriously injure another
person to protect himself or another person against what
seems like a threat of only minor injury. The Defendant
must have been afraid of death or serious physical injury or
death or physical injury of another person.
When you decide if the Defendant was afraid of one or
more of these, you should consider all the circumstances.
The condition of the people involved, including their rela-
tive strength, whether the other person was armed with a
dangerous weapon or had some other means of injuring the
Defendant, and the nature of the other person’s attack or
threat.
Third, at the time he acted, the Defendant must have
honestly and reasonably believed that what he did was
immediately necessary. Under the law, a person may only
use as much force as he thinks is necessary at the time to
protect himself or another person.
A person can use deadly force in self-defense only where
it is necessary to do so. If the Defendant could have safely
retreated but did not do so, you may consider that fact in
deciding whether the Defendant honestly and reasonably
believed he needed to use deadly force and self-defense.
2012] P
EOPLE V
G
OREE
297
However, a person is never required to retreat an attack
in his or her own home, nor if the person reasonably
believed that an attacker is about to use a deadly weapon,
nor if the person is subject to a sudden fierce and violent
attack.
Further, a person is not required to retreat if the person
has not or is not engaging in the commission of a crime at
the time the deadly force is used; and had a legal right to be
where the person is at that time; and has an honest and
reasonable belief that the use of deadly force is necessary to
prevent imminent death or great bodily harm of the person
or another person.
The Defendant does not have to prove that he acted in
self-defense. Instead, the prosecutor must prove beyond a
reasonable doubt that the Defendant did not act in self-
defense.
You may consider whether the Defendant had a reason
to commit the crimes charged but a reason by itself is not
enough to find a person guilty of a crime. The prosecutor
does not have to prove that the Defendant had a reason to
commit the crimes charged. He only has to show that the
Defendant actually committed the crime and that he meant
to do so.
The court then proceeded to instruct the jury on the
elements of the alternative charged assault offenses. In
relation to the felony-firearm charge, the court in-
structed:
Now, there is a second count here of possession of a
firearm in the commission of a felony.
By the way, the fact of the Defendant having a CCW
permit does not preclude a conviction on this charge in and
of itself, but you have to prove the elements of the charge
here.
The Defendant is also charged with the separate crime
of possessing a firearm at the time he committed or
attempted to commit the crime of assault with intent to
murder or assault with intent to do great bodily harm. To
298 296 M
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293 [Apr
prove this charge, the prosecutor must prove the following
elements beyond a reasonable doubt:
First, that the Defendant committed or attempted to
commit the crime of assault with intent to murder, or
assault with intent to do great bodily harm, as I have
defined those for you. It is not necessary, however, that the
Defendant be convicted of that crime, one of those crimes.
Second, at the time the Defendant committed or at-
tempted to commit either of those crimes, he knowingly
carried or possessed a firearm.
During deliberations, the jury submitted a note to
the court stating, “one, please explain the charged
Count Two felony firearm, and, two, does self-defense
apply to the felony firearm charge?” The court informed
the attorneys that it intended to reread the standard
jury instruction and include some information from the
“use note and commentary.” Of relevance to this appeal,
the court stated its intention to “inform them that they
have to decide on the underlying offense, but it doesn’t
have to be a conviction on that, and that when they
apply self-defense, they look at it as in terms of the
underlying offense in the application. Something to that
affect.” The court then reinstructed the jury, in relevant
part, as follows:
The Defendant is also charged with the separate crime
of possessing a firearm at the time he committed or
attempted to commit the crime of assault with intent to
murder or assault with intent to do great bodily harm. To
prove this charge, that is involving the felony firearm, the
prosecution must prove each of the following elements
beyond a reasonable doubt:
First, that the Defendant committed or attempted to
commit the crime of assault with intent to murder or
assault with intent to do great bodily harm, as I have
defined those for you.
2012] P
EOPLE V
G
OREE
299
It is not necessary, however, that the Defendant be
convicted of that crime or one of those crimes.
Second, at the time the Defendant committed or at-
tempted to commit the crime of assault with intent to
murder or assault with intent to do great bodily harm, he
knowingly carried or possessed a firearm.
The felony firearm statute prohibits the actual and
constructive possession of a firearm at the time that a
defendant commits the underlying offense.
Now, so, there is kind of, like, almost your analysis,
somewhat of a two-step process here. As a general rule the
felony firearm statute is tied to the underlying offense,
here the assault charges. And you have to decide if the
Defendant committed or attempted to commit that crime.
But you can convict the Defendant—in other words, you
are not precluded from convicting the Defendant if you find
the Defendant not guilty on the other one or if you find him
guilty, it can go either way. Because it says that you
are—the way the statute is written, it is not necessary that
the Defendant be convicted of that crime.
So, in terms of your question, the self-defense might not
necessarily apply directly to the firearm, but it is all part of
the entire process here, how you look at the case.
So, in other words, one is not charged with felony
firearm by itself, so, therefore, there could not be a self-
defense to felony firearm because that could never be a
charge standing alone of felony firearm. So, it is kind of like
they are all kind of tied in together.
But, again, you, as the instruction says here, the pros-
ecutor must prove the following elements beyond a reason-
able doubt:
First, that Defendant committed or attempted to the
[sic] commit the crime of assault with intent to murder or
assault with intent to do great bodily harm, as those are
defined.
However, the law says that it is not necessary, however,
that the Defendant be convicted of that crime of assault
with intent to murder or assault with intent to do great
300 296 M
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bodily harm. But at the same time, as part of your analysis
in terms of self-defense, I guess in a manner of speaking, is
not applied directly to the felony firearm charge, kind of
wrapped in with the other charges also.
***
So, your question was, does self-defense apply to a felony
firearm charge? When you look at how you apply the felony
firearm, you also have to sort of connect it in with the other
one’s there making that determination, but you are not
precluded from finding the Defendant guilty or not guilty
on the felony firearm charge simply and only on what you
do with the other charges. [Emphasis added.]
After the court excused the jurors to continue delib-
erations, defense counsel indicated that he did not
“disagree with what you said, but I was requesting that
perhaps the jury needed to be reinstructed on self-
defense because there [sic] question said does self-
defense apply. So, that’s what I was asking for.” The
court responded, “I thought that I said in so many
words that self-defense would not apply if there was
simply a felony firearm charge. Wrap them in together.”
(Emphasis added.)
We review claims of instructional error de novo.
People v Kowalski, 489 Mich 488, 501; 803 NW2d 200
(2011). “We consider the jury instructions as a whole to
determine whether the court omitted an element of the
offense, misinformed the jury on the law, or otherwise
presented erroneous instructions.” People v Hartu-
niewicz, 294 Mich App 237, 242; 816 NW2d 442 (2011).
“[T]he trial court is required to instruct the jury
concerning the law applicable to the case and fully and
fairly present the case to the jury in an understandable
manner.” People v Mills, 450 Mich 61, 80; 537 NW2d
909 (1995), mod 450 Mich 1212 (1995). Yet, not all
instructional errors warrant relief. We must affirm a
2012] P
EOPLE V
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OREE
301
defendant’s conviction if the instructions “fairly pre-
sented the issues to be tried and adequately protected
the defendant’s rights.” Kowalski, 489 Mich at 502.
The trial court erred by instructing the jury that
self-defense is not applicable to a felony-firearm charge.
Felony-firearm is proscribed by MCL 750.227b(1): “A
person who carries or has in his or her possession a
firearm when he or she commits or attempts to commit
a felony...isguilty of a felony....”
The felony-firearm statute applies whenever a person
carries or has a firearm in his possession when committing
or attempting to commit a felony. The evident purpose of
the statute is to enhance the penalty for the carrying or
possession of firearms during the commission of a felony
and thus to deter the use of guns. [People v Moore, 470 Mich
56, 62; 679 NW2d 41 (2004).]
As noted by this Court, “[i]t is possession, not use, of a
firearm during the commission of a felony that satisfies
the requirements of the statute.” People v Beard, 171
Mich App 538, 546; 431 NW2d 232 (1988). And as
described in Wayne Co Prosecutor v Recorder’s Court
Judge, 406 Mich 374, 391; 280 NW2d 793 (1979):
The Legislature has clearly expressed its judgment that
carrying a firearm during any felony which may, but need
not necessarily, involve the carrying of a firearm, entails a
distinct social harm inimical to the public health, safety
and welfare which deserves separate treatment. In order to
deter the use of guns, the Legislature has chosen to create
a separate crime.
At its core, felony-firearm is a possessory offense.
Our Supreme Court has found self-defense applicable to
another possessory offense—being a felon in possession
of a firearm in violation of MCL 750.224f. In People v
Dupree, 486 Mich 693, 696; 788 NW2d 399 (2010), the
defendant was a convicted felon who was barred by
302 296 M
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statute from possessing a weapon. The defendant
wrested a weapon away from an armed assailant during
a confrontation at a family party. The defendant then
used the weapon to shoot the assailant three times. Id.
at 698-699. The defendant challenged the assault
charges raised against him, asserting that he acted in
self-defense. Id. at 699. The trial court instructed the
jury that the defendant could claim self-defense to the
felon-in-possession charge, but told the jury that the
defense could apply only if the defendant “ ‘did not keep
the gun in his possession any longer than necessary to
defend himself,’ ” or if the defendant intended “ ‘to
deliver the gun to the police at the earliest possible
time.’ ” Id. at 699-700 (emphasis omitted). Similar to
the current case, the jury acquitted Dupree of the
assault charges but convicted him of being a felon in
possession of a firearm. Id. at 700.
The Supreme Court determined that the common-
law affirmative defense of self-defense was applicable to
a felon-in-possession charge without the trial court’s
gloss requiring a defendant to discard the weapon as
soon as possible. Id. at 705-706, 711-712. Relying on
foreign jurisprudence, the Court noted that felon-in-
possession statutes are “ ‘not intended to affect [a
defendant’s] right to use a firearm in self-defense’ ” but
were merely intended “ ‘to prohibit members of the
affected classes from arming themselves with firearms
or having such weapons in their custody or control in
circumstances other than those in which the right to
use deadly force in self-defense exists or reasonably
appears to exists [sic].’ ” Id. at 706, quoting Harmon v
State, 849 NE2d 726, 734 (Ind App, 2006).
Because the incident underlying Dupree occurred
before the 2006 enactment of the self-defense act (SDA),
MCL 780.971 et seq., the Court applied the common-law
2012] P
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303
defense. We see no justification to preclude a self-
defense instruction merely because the current defen-
dant’s defense theory falls under the statute. Pursuant
to MCL 780.972, a criminal defendant may raise self-
defense as follows:
(1) An individual who has not or is not engaged in the
commission of a crime at the time he or she uses deadly
force may use deadly force against another individual
anywhere he or she has the legal right to be with no duty to
retreat if either of the following applies:
(a) The individual honestly and reasonably believes that
the use of deadly force is necessary to prevent the immi-
nent death of or imminent great bodily harm to himself or
herself or to another individual.
(b) The individual honestly and reasonably believes that
the use of deadly force is necessary to prevent the immi-
nent sexual assault of himself or herself or of another
individual.
(2) An individual who has not or is not engaged in the
commission of a crime at the time he or she uses force other
than deadly force may use force other than deadly force
against another individual anywhere he or she has the legal
right to be with no duty to retreat if he or she honestly and
reasonably believes that the use of that force is necessary to
defend himself or herself or another individual from the
imminent unlawful use of force by another individual.
Here, the trial court properly instructed the jury on
the elements of the felony-firearm charge. The court
also properly instructed the jury that it need not convict
a defendant of an underlying assault charge in order to
convict the defendant of the felony-firearm offense.
People v Lewis, 415 Mich 443, 455; 330 NW2d 16 (1982).
The court even correctly described the applicable law of
self-defense to the jury. The trial court erred, however,
by instructing the jury that “one is not charged with
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felony firearm by itself, so, therefore, there could not be
a self-defense to felony firearm....”
Just as in Dupree, 486 Mich at 708 (quotation marks
and citation omitted), our defendant “presented evi-
dence from which a jury could find—and apparently did
find—that he acted in self-defense” when he drew his
weapon and fired at Donald Buckner. This is shown by
the jury’s acquittal on the alternate assault charges.
Also similar to Dupree, id., our defendant “introduced
evidence from which a jury could conclude that defen-
dant’s criminal possession of the firearm was justified
because defendant honestly and reasonably believed
that his life was in imminent danger and that it was
necessary for him to exercise force to protect himself.”
The trial court’s erroneous instruction that defendant’s
act of felony-firearm could not be justified by self-
defense was prejudicial. “We presume that the jury
followed the trial court’s instructions.” Id. at 711. As
such, we must presume that the jury followed the
court’s erroneous instruction not to excuse defendant’s
felony-firearm offense. Defendant was “entitled to have
a properly instructed jury consider the evidence against
him,” and is therefore entitled to a new trial on the
felony-firearm charge. Id. at 712 (quotation marks and
citation omitted).
Vacated and remanded to the trial court for further
proceedings consistent with this opinion. We do not
retain jurisdiction.
B
ORRELLO
,P.J., and J
ANSEN
and G
LEICHER
, JJ., con-
curred.
2012] P
EOPLE V
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OREE
305
KELLY SERVICES, INC v DEPARTMENT OF TREASURY
KELLY PROPERTIES, INC v DEPARTMENT OF TREASURY
Docket Nos. 303736 and 303737. Submitted April 3, 2012, at Lansing.
Decided April 19, 2012, at 9:05 a.m.
Kelly Services, Inc. and Kelly Properties, Inc., filed separate petitions
in the Tax Tribunal, challenging the Department of Treasury’s
determination that petitioners owed single business taxes for tax
years 1997 through 2000 because of their failure to include royalty
income derived from the licensing of their trademarks, trade
names, and know-how in their sales-factor and gross-receipts
calculations. Petitioners developed the trademarks, trade names,
and know-how to create a common corporate identity and common
business procedures and received the royalty income from licens-
ing agreements between Kelly Properties, Inc., and Kelly Services,
Inc., and from licensing agreements between Kelly Services, Inc.,
and foreign affiliated companies. The hearing referee disagreed
with the department’s position and recommended that the depart-
ment’s intents to assess be cancelled. The department rejected the
recommendation and affirmed the assessments. Petitioners ap-
pealed that decision in the tribunal, which consolidated the cases.
Petitioners moved for summary disposition pursuant to MCR
2.116(C)(10), which the Tax Tribunal granted, concluding that
royalty income did not qualify as sales or lease or rent receipts and
was properly excluded from petitioners’ sales-factor and gross-
receipts calculations. The department appealed.
The Court of Appeals held:
1. For purposes of the Single Business Tax Act (SBTA), former
MCL 208.1 et seq., the term “sales factor” was defined in former
MCL 208.51 as a fraction, the numerator of which was the total
sales of the taxpayer in Michigan during the tax year and the
denominator of which was the total sales of the taxpayer every-
where during the tax year. Under former MCL 208.7(1), as
amended by 1982 PA 376, for the relevant tax years, “sales” was
defined as the gross receipts arising (1) from a transaction or
transactions in which gross receipts constituted consideration for
the transfer of title to or possession of property that was (a) stock
in trade, (b) other property of a kind that would properly be
306 296 M
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included in the inventory of the taxpayer, or (c) property held by
the taxpayer primarily for sale to customers in the ordinary course
of its trade or business; (2) from the performance of services that
constituted business activities other than those included in (1); or
(3) from any combination of (1) or (2).
2. Royalties do not constitute sales receipts for purposes of
former MCL 208.7(1) because they do not arise from a transaction
in which the royalty income was consideration for the transfer of
possession of property. A royalty is compensation paid to the owner
of certain types of property, such as intangible property or natural
resources, for the use of that property. Royalty income derives
from the transfer of the right to use property, not from the transfer
of possession of property. Petitioners’ royalty income from licens-
ing trademarks and trade names did not constitute sales receipts
for purposes of former MCL 208.7(1) because no transfer of title
occurred and the licenses were not granted in consideration for the
transfer of possession of the enumerated properties, which re-
mained with petitioners who still owned the intangible property.
3. Because the royalty income clearly derived from the licens-
ing of trademarks and trade names, not from the performance of
services, it did not constitute gross receipts under that prong of
sales analysis of former MCL 208.7(1).
4. During the relevant tax years, the term gross receipts was
defined in former MCL 208.7(3) as the sum of sales and rental or
lease receipts. Under the SBTA, income generated from royalties
and rents were mutually exclusive categories given their differing
natures and treatment. Thus, the royalty income did not consti-
tute a rental or lease receipt. Because the royalty income also did
not constitute sales under the SBTA, the Tax Tribunal properly
excluded the royalty income from petitioners’ gross-receipts and
sales-factor calculations.
Affirmed.
1. T
AXATION —
S
INGLE
B
USINESS
T
AX —
R
OYALTIES
.
Royalties do not constitute sales receipts for purposes of the defini-
tion of “sales” in MCL 208.7(1) of the former Single Business Tax
Act because they do not arise from a transaction in which the
royalty income was consideration for the transfer of possession of
property; a royalty is compensation paid to the owner of certain
types of property, such as intangible property or natural resources,
for the use of that property; royalty income derives from the
transfer of the right to use property, not from the transfer of
possession of property.
2012] K
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2. T
AXATION —
S
INGLE
B
USINESS
T
AX —
R
OYALTIES —
R
ENTAL OR
L
EASE
R
ECEIPTS
.
Income generated from royalties and rents were mutually exclusive
categories for purpose of the former Single Business Tax Act
(SBTA) given their differing natures and treatments; royalty
income does not constitute rental or lease receipts for purposes of
the definitions of “sales” and “gross receipts” in former MCL
208.7(1) and (3) of the SBTA.
Honigman Miller Schwartz & Cohn LLP (by June
Summers Haas and Brian T. Quinn), for Kelly Services,
Inc., and Kelly Properties, Inc.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Kevin T. Smith, Assistant Attorney Gen-
eral, for the Department of Treasury.
Before: F
ORT
H
OOD
, P.J., and C
AVANAGH
and K. F.
K
ELLY
,JJ.
P
ER
C
URIAM
. Respondent, the Department of Trea-
sury, appeals as of right an order of the Tax Tribunal
that granted summary disposition in favor of petition-
ers, Kelly Services, Inc., and Kelly Properties, Inc., and
denied respondent summary disposition. We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Petitioners are an affiliated group of companies.
Kelly Services is a Delaware corporation in the business
of providing temporary staffing services. Kelly Proper-
ties is a Michigan corporation managing the assets used
in the business operations of Kelly Services and affili-
ated companies. Petitioners have developed trade-
marks, trade names, and the know-how to create a
common corporate identity and common business pro-
cedures. These are shared by licensure between Kelly
Properties and Kelly Services and by licensure between
308 296 M
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Kelly Services and foreign affiliated companies. Peti-
tioners receive royalty income from the licensing of
these trademarks, trade names, and know-how.
For the tax years 1997 through 2000, petitioners
were subject to the Single Business Tax Act (SBTA),
former MCL 208.1 et seq.
1
To calculate their tax liability
under the SBTA, petitioners were required to calculate
their “sales factor” and “gross receipts.” “Sales factor”
was defined, in relevant part, as “a fraction, the nu-
merator of which is the total sales of the taxpayer in
this state during the tax year, and the denominator of
which is the total sales of the taxpayer everywhere
during the tax year.” MCL 208.51.
2
MCL 208.7(1),
3
as
amended by 1982 PA 376, defined “sales” as follows:
“Sale” or “sales” means the gross receipts arising from
a transaction or transactions in which gross receipts con-
stitute consideration: (a) for the transfer of title to, or
possession of, property that is stock in trade or other
property of a kind which would properly be included in the
inventory of the taxpayer if on hand at the close of the tax
period or property held by the taxpayer primarily for sale to
customers in the ordinary course of its trade or business, or
(b) for the performance of services, which constitute busi-
ness activities other than those included in (a), or from any
combination of (a) or (b).
MCL 208.7(3), defined “gross receipts,” in relevant
part, as the “sum of sales” and “rental or lease re-
ceipts.” For the tax years at issue, petitioners excluded
1
Repealed by 2006 PA 325, effective for tax years beginning after
December 31, 2007. Throughout this opinion, we will refer to the
provisions of the SBTA in effect at the relevant times by MCL number
without designating them as former provisions.
2
MCL 208.51 was amended by 1999 PA 115, and the quoted language
became MCL 208.51(1).
3
All references to MCL 208.7 are to that provision as amended by 1982
PA 376.
2012] K
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the royalty income generated from the licensing of
trademarks, trade names, and know-how from their
total sales and gross-receipts calculations.
Respondent audited petitioners and issued Kelly Ser-
vices a bill of taxes due in the amount of $290,675, plus
interest in the amount of $68,681.05, alleging that the
royalty income should have been included in their
sales-factor and gross-receipts calculations. Respondent
also issued Kelly Properties a bill of taxes due in the
amount of $49,727, plus interest in the amount of
$21,966.80, alleging that the royalty income should also
have been included in their calculation of gross receipts.
After the conclusion of the informal conference in
respondent’s hearings division, the hearing referee con-
cluded that respondent’s position with regard to peti-
tioners’ royalty income was incorrect and that the
intents to assess issued by respondent should be can-
celled. Respondent rejected the hearing referee’s recom-
mendation and affirmed the original assessments. Peti-
tioners appealed in the Tax Tribunal, and their actions
were consolidated.
In the Tax Tribunal, petitioners moved for summary
disposition pursuant to MCR 2.116(C)(10) (no genuine
issue of material fact), and respondent filed a motion
pursuant to MCR 2.116(I)(2) (judgment for opposing
party). The Tax Tribunal granted summary disposition
to petitioners, concluding that royalty income does not
qualify as sales or lease or rent receipts and therefore
should not be included in the calculation of a taxpayer’s
sales factor or gross receipts.
Respondent moved for reconsideration, citing a con-
flicting tribunal opinion decided after posthearing
briefs had been filed in the instant case. The Tax
Tribunal denied the motion, and respondent now ap-
peals as of right.
310 296 M
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II. STANDARD OF REVIEW
Absent an allegation of fraud, this Court reviews a
Tax Tribunal decision for misapplication of the law or
adoption of a wrong legal principle. Briggs Tax Serv,
LLC v Detroit Pub Sch, 485 Mich 69, 75; 780 NW2d 753
(2010). “But when statutory interpretation is involved,
this Court reviews the Tax Tribunal’s decision de
novo.” Id. While agency interpretations of statutes are
entitled to respectful consideration and should not be
overruled without cogent reasons, they are not binding
on this Court and cannot conflict with the Legislature’s
intent as expressed in the language of the statute. In re
Complaint of Rovas Against SBC Mich, 482 Mich 90,
103, 108-109; 754 NW2d 259 (2008). The overriding
goal of statutory interpretation is the determination of
legislative intent and the implementation of that intent
once discerned. AFSCME Council 25 v State Employees’
Retirement Sys, 294 Mich App 1, 8; 818 NW2d 337
(2011). When tax statutes are construed, any ambigu-
ities are resolved in favor of the taxpayer. Int’l Business
Machines v Dep’t of Treasury, 220 Mich App 83; 86; 558
NW2d 456 (1996).
III. ANALYSIS
Respondent argues that the Tax Tribunal erred as a
matter of law when it concluded that royalty income
from the licensing of trademarks and trade names were
not included in sales and gross receipts under the SBTA
before 2001. We disagree.
In PM One Ltd v Dep’t of Treasury, 240 Mich App
255, 261-262; 611 NW2d 318 (2000), this Court held
that the proper way to analyze what constitutes a “sale”
is as follows:
(1) “gross receipts”
2012] K
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(2) arising from a “transaction” in which gross receipts
constitute “consideration” for one of the following de-
scribed in (a), (b), or (c):
(a) transfer of title to, or possession of, property that is
(i) stock in trade; or
(ii) other property of a kind that would be properly
included in the inventory of the taxpayer; or
(iii) property held by the taxpayer primarily for sale to
customers in the ordinary course of its trade or business;
(b) “performance” of “services,” that constitute “busi-
ness activities” other than those listed in (a);
(c) any combination of (a) or (b).
In this case, it is undisputed that the royalty income
in question derived from the licensing of trademarks
and trade names and not the performance of services.
As such, (2)(b) and (c) in the PM One analysis are
irrelevant. After the exclusion of those factors, resolu-
tion of the instant case requires this Court to resolve
three questions. First, whether the royalty income in
question constituted gross receipts; second, whether
the royalty income arose from the transfer of title or
possession; and third, whether the trademarks and
trade names in this case constituted applicable forms of
property under the SBTA. These three questions will be
analyzed in turn.
A. GROSS RECEIPTS
As previously discussed, under MCL 208.7(3), gross
receipts were calculated by adding together sales and
rental or lease receipts. Because what constitutes gross
receipts relies on the meaning of sales, and the defini-
tion of “sales” relies on the definition of “gross re-
ceipts,” this Court has noted that the definitions are
“somewhat circular” and that resolution of the sales
312 296 M
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prong of gross receipts requires analyzing the remain-
ing elements of a sale under the SBTA. See PM One, 240
Mich App at 261-262. As such, the sales portion of this
gross-receipts analysis will be undertaken later in this
opinion.
The second prong of the gross-receipts calculation is
rental or lease receipts. In the past, this Court has
distinguished between royalties and rent for SBTA
purposes and indicated that the two categories were
mutually exclusive given their differing natures and
treatment under the SBTA. Columbia Assoc, LP v Dep’t
of Treasury, 250 Mich App 656, 675-677; 649 NW2d 760
(2002); Field Enterprises v Dep’t of Treasury, 184 Mich
App 151, 157-159; 457 NW2d 113 (1990). Therefore,
because the royalty income derived from licensing
agreements did not constitute rental or lease receipts,
whether or not royalty income constituted gross re-
ceipts under the SBTA depends on the conclusion of the
sales analysis below.
B. TRANSFER OF TITLE OR POSSESSION
In order to be properly classified as sales receipts
under the SBTA during the years at issue, royalty
income must have arisen from a transaction in which
the royalty income was consideration for the transfer of
title to, or possession of, property. MCL 208.7(1)(a) and
(b). Therefore, if no transfer of title or possession was
involved in the transaction giving rise to the royalty
income, then no further analysis is needed and the
royalty income cannot be classified as sales receipts.
There is no dispute that no transfer of title occurred in
this case, so the only question here is whether or not the
royalties arose from the transfer of possession of prop-
erty.
2012] K
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313
While the term “royalties” was not defined under the
SBTA, it was defined by our Supreme Court in Mobil
Oil Corp v Dep’t of Treasury, 422 Mich 473, 475; 373
NW2d 730 (1985), a case involving “the taxation of oil
and gas royalties under Michigan’s Single Business Tax
Act....”TheMobil Oil Court looked to the definition
of “royalty” in both The Random House College Dictio-
nary (rev ed) and Black’s Law Dictionary (5th ed) and
determined that “the common understanding of royal-
ties” is that they are compensation paid to the owner of
certain types of property, such as intangible property or
natural resources, for the use of that property. Id.at
484-485. Under this common definition, then, royalty
income derives from the transfer of the right to use
property, not from the transfer of possession of property.
Moreover, petitioners’ ownership of the intangible prop-
erty in this case was not transferred to the licensee, but
remained with the licensor. As such, royalty income
does not appear to have arisen out of a qualifying
transaction.
Respondent, however, challenges this understanding
of royalty transactions, citing SBC Teleholdings, Inc v
Dep’t of Treasury, 17 MTTR 645 (Docket No 320440,
March 17, 2010), a conflicting Tax Tribunal case de-
cided after posthearing briefs had been filed in the
instant case. In SBC Teleholdings, the tribunal con-
cluded that “acquisition and use of the name and marks
constitutes ‘possession’ of the intangibles....”Id.at
4. As a result, the retention of title by a licensor of
intangible property does not preclude the licensor from
transferring possession of the intangible property to
another. Id.at5.
This interpretation, however, is at odds with the
common understanding of possession. When a term is
undefined, a court may establish its meaning through a
314 296 M
ICH
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306 [Apr
dictionary definition. Citizens Ins Co v Pro–Seal Serv
Group, Inc, 477 Mich 75, 84; 730 NW2d 682 (2007).
Black’s Law Dictionary (9th ed) defines “possession” as
“[t]he fact of having or holding property in one’s
power;...[t]he right under which one may exercise con-
trol over something to the exclusion of all others;...[or]
[s]omething that a person owns or control[s].” While the
licensees in the instant case have the right to use the
intangible property licensed to them, they do not own or
control that intangible property; ownership and control
remain with petitioners. See Detroit Lions, Inc v Dep’t of
Treasury, 157 Mich App 207, 214-219; 403 NW2d 812
(1986). Given the fact that royalty payments are made for
the use of a right, the fact that the licensor retains
ownership and control of the intangible property that is
generating the royalty payments, and this Court’s instruc-
tion that transfers of possession involve the transfer of
absolute ownership, it is clear that royalty income does
not arise from a transaction involving the transfer of
possession of property. As such, it was rightly excluded
from calculation of the sales factor and the gross receipts
for the tax years at issue.
C. APPLICABLE FORMS OF PROPERTY
However, even if this Court deems that royalty in-
come arises from the transfer of possession of property,
the requirements for a sale are still not met unless the
property is of a type identified under the SBTA. The
first of these types of applicable property is “stock in
trade,” a term that was undefined in the SBTA. MCL
208.7(1)(a). Black’s Law Dictionary (9th ed) defines
“stock in trade” as follows:
1. The inventory carried by a retail business for sale in
the ordinary course of business. 2. The tools and equipment
2012] K
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owned and used by a person engaged in a trade. 3. The
equipment and other items needed to run a business.
The property in question in this case, trademarks and
trade names, cannot be considered inventory, tools, or
equipment.
The second form of applicable property is “property
of a kind which would properly be included in the
inventory of the taxpayer....” MCL 208.7(1)(a). In
this case, petitioners presented evidence in the form of
an affidavit stating that the intangible property at issue
was not included in petitioners’ inventory, and respon-
dent did not submit evidence challenging this account-
ing decision.
The third and final form of applicable property is
“property held by the taxpayer primarily for sale to
customers in the ordinary course of its trade or busi-
ness....” MCL 208.7(1)(a). In this case, it is undis-
puted that the intangible property at issue was licensed
only to affiliated parties, not “customers” or other
unaffiliated third parties. Moreover, the intangible
property at issue in this case was developed, held, and
licensed for the purposes of establishing a common
corporate identity and common business procedures
amongst affiliated entities.
Therefore, because the royalty income in this case did
not arise from the transfer of possession of an enumer-
ated type of property, it did not constitute sales receipts
under the SBTA for the tax years at issue. Further,
because royalty income does not constitute sales or
rental or lease receipts, it also does not constitute gross
receipts under the SBTA for the tax years at issue. As
such, the Tax Tribunal did not err by concluding that
royalty income should not be included in petitioners’
sales-factor and gross-receipts calculations for the tax
years at issue.
316 296 M
ICH
A
PP
306 [Apr
Respondent also argues that because the SBTA defi-
nition of “sales” was amended to exclude royalties in
the tax years beginning after December 31, 2000,
4
and
because that amendment took effect prospectively, the
Legislature did not intend royalties to be excluded
before the enactment of that amendment. Respondent
recognizes that statutory amendments can be “in-
tended to clarify the meaning of a provision rather than
change it,” but argues that “[i]t would be illogical for
the Legislature to adopt language intended to clarify
the previous language and make the clarification pro-
spective only.” This argument is without merit. There is
nothing inherently inconsistent between clarifying a
statute’s meaning and making an amendment prospec-
tive. Indeed, when no appellate court has rendered a
decision contrary to the amended language, this would
seem to be an obvious legislative procedure.
Moreover, the legislative bill analysis clearly indi-
cates the clarifying nature of the amendment of the
definition of sales in the SBTA. Although our Supreme
Court has eschewed reliance on bill analyses to deter-
mine legislative intent, Frank W Lynch & Co v Flex
Technologies, Inc, 463 Mich 578, 587; 624 NW2d 180
(2001), legislative bill analyses do have probative value
in certain, limited circumstances, Kinder Morgan Mich,
LLC v City of Jackson, 277 Mich App 159, 170; 744
NW2d 184 (2007). Here, we find some persuasive value
in considering the following in connection with 2000 PA
477:
[R]epresentatives of the treasury department and the
business sector have been working for several months to
provide a clearer, less circular definition of the term “gross
receipts” in the SBT act and to alter the act to make it
conform to a recent Michigan Court of Appeals decision,
4
See MCL 208.7(1)(b), as amended by 2000 PA 477.
2012] K
ELLY
S
ERVICES V
T
REASURY
D
EP
’
T
317
PM One, Limited v Department of Treasury. [House Legis-
lative Analysis, SB 1300, November 29, 2000, p 1.]
In light of our analysis in PM One and the language of
the statute, we reject respondent’s contention that the
amendment only took effect prospectively.
Affirmed.
F
ORT
H
OOD
,P.J., and C
AVANAGH
and K. F. K
ELLY
,JJ.,
concurred.
318 296 M
ICH
A
PP
306 [Apr
GRANGE INSURANCE COMPANY OF MICHIGAN v LAWRENCE
Docket No. 303031. Submitted April 13, 2012, at Grand Rapids. Decided
April 24, 2012, at 9:00 a.m. Leave to appeal granted, 493 Mich 851.
Grange Insurance Company of Michigan brought an action in the
Muskegon Circuit Court seeking a declaratory judgment regard-
ing, in part, its duty under a no-fault insurance policy issued to
Edward Lawrence to reimburse Farm Bureau General Insurance
Company of Michigan for first-party personal protection insurance
benefits it paid following the death of Josalyn Lawrence, a minor,
as a result of an automobile accident. The accident occurred while
Josalyn’s mother, Laura Rosinski, was driving a vehicle insured by
Farm Bureau. Edward Lawrence, Josalyn’s father, and Rosinski
were divorced at the time of the accident and shared joint legal
custody of the child, although Rosinski had primary physical
custody. Grange Insurance had denied Farm Bureau’s request for
reimbursement on the basis of the definition of “family member”
in its policy, which provided that if “a court has adjudicated that
one parent is the custodial parent, that adjudication shall be
conclusive with respect to the minor child’s principal residence.”
Grange Insurance thus claimed that Josalyn was not “domiciled in
the same household” as Edward Lawrence. The court, Timothy G.
Hicks, J., determined that the evidence showed that the child
resided with both parents and granted summary disposition in
favor of Farm Bureau, ordering Grange Insurance to reimburse
Farm Bureau 50 percent of the amount of the benefits it had paid.
Grange Insurance appealed.
The Court of Appeals held:
1. The terms “domicile” and “residence” are legally synony-
mous for purposes of the no-fault act.
2. The phrase “domiciled in the same household” in MCL
500.3114(1) does not have a fixed meaning and its meaning varies
with the circumstances.
3. The undisputed circumstances of this case established that
Josalyn was domiciled in the homes of each of her parents. The
issue of domicile was properly determined as a question of law by
the trial court because the undisputed evidence showed that
2012] G
RANGE
I
NS
C
OV
L
AWRENCE
319
Josalyn resided with both her parents. The trial court did not err
by granting summary disposition in favor of Farm Bureau.
4. Because the disputed provision in Grange Insurance’s policy
would limit its obligation where the no-fault act does not, the
provision is invalid.
Affirmed.
1. I
NSURANCE —
N
O
-F
AULT —
W
ORDS AND
P
HRASES —
D
OMICILE —
R
ESIDENCE
.
The terms “domicile” and “residence” are legally synonymous for
purposes of the no-fault insurance act (MCL 500.3101 et seq.).
2. I
NSURANCE —
N
O
-F
AULT —
W
ORDS AND
P
HRASES —
D
OMICILED IN THE
S
AME
H
OUSEHOLD
.
Factors to consider in determining if a person is “domiciled in the
same household” as the named insured include (1) the subjective
or declared intent of the person of remaining, either permanently
or for an indefinite time, in the place the person contends is the
person’s domicile or household, (2) the formality of the relation-
ship between the person and the members of the household, (3)
whether the place where the person lives is in the same house, the
same curtilage, or upon the same premises as the insured, and (4)
whether the person has another place of lodging; additional factors
for determining if a minor child is domiciled with the child’s
parents include whether the child continues to use the parent’s
home as the child’s mailing address, maintains some possessions
there, uses the parent’s address on the child’s driver’s license or
other documents, and whether a room is maintained for the child
at the parents’ home and the child is dependent upon the parents
for support (MCL 500.3114[1]).
3. I
NSURANCE —
N
O
-F
AULT —
W
ORDS AND
P
HRASES —
D
OMICILED IN THE
S
AME
H
OUSEHOLD
.
The phrase “domiciled in the same household” in MCL 500.3114(1) of
the no-fault insurance act does not have a fixed meaning; its meaning
may vary with the circumstances; the phrase does not limit the minor
child of divorced parents to one domicile and does not define a
“domicile” as a “principal residence” (MCL 500.3114[1]).
Bremer & Nelson LLP (by Ann M. Byrne) for Grange
Insurance Company of Michigan.
Bleakley, Cypher, Parent, Warren & Quinn, P.C. (by
Michael D. Ward), for Farm Bureau General Insurance
Company of Michigan.
320 296 M
ICH
A
PP
319 [Apr
Before: B
ECKERING
,P.J., and O
WENS
and R
ONAYNE
K
RAUSE
,JJ.
P
ER
C
URIAM
. In this case, involving personal protec-
tion insurance benefits under the Michigan no-fault act,
MCL 500.3101 et seq., plaintiff, Grange Insurance Com-
pany of Michigan, appeals as of right the order regard-
ing motions for summary disposition. We affirm.
On September 24, 2009, Laura Rosinski was driving
with her minor child, Josalyn Lawrence, in a vehicle
insured by Farm Bureau General Insurance Company
of Michigan. They were in a motor vehicle accident that
resulted in the death of Josalyn. At the time of the
accident, Josalyn’s parents, Edward Lawrence and Ros-
inski, were divorced. Pursuant to the judgment of
divorce, the parents shared joint legal custody but
Rosinski had primary physical custody. Although Josa-
lyn slept at Rosinski’s home during the week, Edward
saw Josalyn almost every day. Josalyn had a room and
personal belongings at Edward’s home, although her
pets were at Rosinski’s home. Josalyn usually stayed
with Edward every other weekend, but Edward and
Rosinski were flexible with their parenting agreement.
There was no intention of changing this parenting-time
arrangement. Edward also took Josalyn on vacations in
the summer. The small amount of mail Josalyn received
went to Rosinski’s home. Rosinski’s address was usu-
ally listed as Josalyn’s home address.
At the time of the accident, Edward was a named
insured on an automobile policy, which included per-
sonal protection insurance, with plaintiff. Rosinski was
the named insured on an automobile policy, which
included personal protection insurance, with defendant
Farm Bureau. Farm Bureau paid first-party benefits on
behalf of Josalyn and claimed plaintiff was equal in
2012] G
RANGE
I
NS
C
OV
L
AWRENCE
321
priority and should pay a portion of the benefits.
Plaintiff denied Farm Bureau’s request for reimburse-
ment. Plaintiff’s policy included a provision within the
definition of “[f]amily member,” stating that “[i]f a
court has adjudicated that one parent is the custodial
parent, that adjudication shall be conclusive with re-
spect to the minor child’s principal residence.”
The instant lawsuit was initiated when plaintiff filed
a complaint for declaratory relief, seeking an adjudica-
tion of whether Josalyn was an “insured” under its
policy for purposes of the Michigan no-fault act, MCL
500.3101 et seq.
The trial court granted summary disposition in favor
of Farm Bureau and determined that plaintiff was liable
for 50 percent of the first-party benefits paid by Farm
Bureau. On appeal, plaintiff argues that the trial court
erred because no Michigan law recognizes dual domi-
ciles for a minor child of divorced parents for purposes
of the no-fault act and the trial court incorrectly applied
the facts to the law. We disagree.
A trial court’s decision to grant or deny a motion for
summary disposition is reviewed de novo. Latham v
Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868
(2008) (citation omitted). Summary disposition pursu-
ant to MCR 2.116(C)(10) 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. Questions of statutory interpretation are ques-
tions of law that are reviewed de novo. O’Neal v St John
Hosp & Med Ctr, 487 Mich 485, 493; 791 NW2d 853
(2010) (citation omitted). “[W]here contract language is
neither ambiguous, nor contrary to the no-fault statute,
the will of the parties, as reflected in their agreement, is
to be carried out, and thus the contract is enforced as
written.” Cruz v State Farm Mut Auto Ins Co, 466 Mich
322 296 M
ICH
A
PP
319 [Apr
588, 594; 648 NW2d 591 (2002) (citations omitted). The
no-fault act is remedial and should be construed in
favor of those it is intended to benefit. Turner v Auto
Club Ins Ass’n, 448 Mich 22, 28; 528 NW2d 681 (1995)
(citation omitted).
MCL 500.3114(1) provides that a personal protection
insurance policy applies to the named insured, the
insured’s spouse, “and a relative of either domiciled in
the same household....” The Michigan Supreme
Court has considered the phrase “domiciled in the same
household” and determined that for purposes of the
no-fault act, the terms “domicile” and “residence” are
“legally synonymous.” Workman v Detroit Auto Inter-
Ins Exch, 404 Mich 477, 495; 274 NW2d 373 (1979). To
determine if someone is “domiciled in the same house-
hold” as an insured, the Workman decision articulated
four factors to be considered:
(1) the subjective or declared intent of the person of
remaining, either permanently or for an indefinite or
unlimited length of time, in the place he contends is his
“domicile” or household”; (2) the formality or informality
of the relationship between the person and the members of
the household; (3) whether the place where the person lives
is in the same house, within the same curtilage or upon the
same premises; (4) the existence of another place of lodging
by the person alleging “residence” or domicile” in the
household. [Id. at 496-497 (citations omitted).]
Additional factors helpful when determining if a minor
child is domiciled with the child’s parents were articu-
lated in Dairyland Ins Co v Auto-Owners Ins Co, 123
Mich App 675, 682; 333 NW2d 322 (1983):
Other relevant indicia of domicile include such factors
as whether the claimant continues to use his parents’ home
as his mailing address, whether he maintains some posses-
sions with his parents, whether he uses his parents’
address on his driver’s license or other documents, whether
2012] G
RANGE
I
NS
C
OV
L
AWRENCE
323
a room is maintained for the claimant at the parents’ home,
and whether the claimant is dependent upon the parents
for support.
There is nothing in MCL 500.3114(1) or Workman or
Dairyland that limits a minor child of divorced parents
to one domicile or defines domicile as a “principal
residence.” The Workman decision recognized that “do-
miciled in the same household,” does not have a fixed
meaning and may vary with the circumstances. Work-
man, 404 Mich at 495. The undisputed circumstances in
the instant case establish that Josalyn was domiciled,
meaning had a residence, in the homes of each of her
parents. With regard to the Workman factors: (1) there
was no evidence of an intention to change the parenting
arrangement; (2) the same formal relationship existed
between Josalyn and her two parents; (3) at both
homes, Josalyn lived in the house; and (4) as to both
homes, Josalyn had another place at which she stayed.
With regard to the Dairyland factors: (1) what little
mail Josalyn received came to Rosinski’s home, (2)
Josalyn had possessions at both homes, (3) Josalyn
primarily used Rosinski’s address, (4) Josalyn had a
room at both homes, and (5) Josalyn was dependent on
both parents for support.
The undisputed evidence clearly shows that Josalyn
resided with both parents and, as such, the issue of
domicile was properly determined as a question of law
by the trial court. Fowler v Auto Club Ins Ass’n, 254
Mich App 362, 364; 656 NW2d 856 (2002). Although the
judgment of divorce awarded Rosinski primary physical
custody, that order does not change the fact that the
evidence showed that Josalyn actually resided with
both her parents, which is the relevant inquiry under
the no-fault act. There remained no issue of material
fact and the trial court did not err when it granted
324 296 M
ICH
A
PP
319 [Apr
summary disposition in favor of Farm Bureau on the
issue of reimbursement. Latham, 480 Mich at 111.
Additionally, plaintiff argues that its policy provision,
stating that a court’s adjudication of custody is conclu-
sive of a child’s principal residence, should control.
However, MCL 500.3114(1) does not impose a require-
ment that coverage extends only to a relative whose
“principal residence” is with the insured. “To the de-
gree that the contract is in conflict with the statute [the
no-fault act], it is contrary to public policy and, there-
fore, invalid.” Cruz, 466 Mich at 601. In this case,
because plaintiff’s policy would limit plaintiff’s obliga-
tion where the no-fault act does not, that provision is
invalid.
Affirmed.
B
ECKERING
,P.J., and O
WENS
and R
ONAYNE
K
RAUSE
,JJ.,
concurred.
2012] G
RANGE
I
NS
C
OV
L
AWRENCE
325
PEOPLE v EISEN
Docket No. 304577. Submitted April 12, 2012, at Grand Rapids. Decided
April 24, 2012, at 9:05 a.m. Leave to appeal denied, 493 Mich 918.
Jeffrey C. Eisen was convicted following a jury trial in the Ottawa
Circuit Court, Jon H. Hulsing, J., of three counts of first-degree
criminal sexual conduct and one count of third-degree criminal
sexual conduct. He was acquitted with regard to a fourth count of
first-degree criminal sexual conduct. Defendant appealed.
The Court of Appeals held:
1. Defendant failed to overcome the presumption that his trial
counsel provided effective assistance when, following his counsel’s
stipulation that the seminal fluid found in the victim’s home,
which the victim and her mother shared with defendant and his
daughter, contained defendant’s DNA, defendant’s counsel did not
object to the lack of statistical testimony regarding the likelihood
that someone from the general population would also match the
DNA profile.
2. The trial court erred by failing to tell the jury during its oral
jury instructions with regard to three of the counts of first-degree
criminal sexual conduct that an element of the crime required a
finding that the victim had been younger than 13 years old at the
time of the charged conduct. Defendant’s trial counsel should have
objected to the instructions and his counsel’s performance fell
below an objective standard of reasonableness. However, the
verdict form did reflect the requirement that the victim must have
been younger than 13 at the time. A verdict form is treated as part
of the package of jury instructions. The prejudicial effect of the
error was significantly reduced by the presence of the proper
elements on the verdict form. The Court of Appeals will not
reverse when, as here, the jury instructions fairly presented the
issues to be tried and sufficiently protected defendant’s rights.
3. There was sufficient evidence to support defendant’s con-
victions.
4. Defendant’s conviction of third-degree criminal sexual con-
duct, MCL 750.520d(1)(b), required a finding that defendant
engaged in sexual penetration with the victim and that force or
326 296 M
ICH
A
PP
326 [Apr
coercion was used to accomplish the penetration. Force or coercion
exists whenever a defendant’s conduct induces a victim to reason-
ably believe that the victim has no practical choice to resist such
penetration. A history of using force to commit sexual abuse of the
victim by the defendant while the victim was a child, as in this
case, or some other similarly valid reason supported by the
evidence, may be sufficient for a rational trier of fact to find that
the defendant forced or compelled the victim to participate in
sexual intercourse with the defendant.
Affirmed.
1. T
RIAL —
J
URY
I
NSTRUCTIONS —
V
ERDICT
F
ORMS
.
The verdict form is treated as a part of the jury instructions.
2. A
PPEAL AND
E
RROR —
J
URY
I
NSTRUCTIONS
.
The Court of Appeals reviews jury instructions in their entirety to
determine whether the trial court committed error requiring
reversal; reversal is not required where the instructions fairly
presented the issues to be tried and sufficiently protected the
defendant’s rights.
3. C
RIMINAL
L
AW —
T
HIRD
-D
EGREE
C
RIMINAL
S
EXUAL
C
ONDUCT —
F
ORCE OR
C
OERCION
.
The determination whether a defendant charged with third-degree
criminal sexual conduct used force or coercion to accomplish
sexual penetration is to be made in light of all the circumstances;
the evidentiary facts must not be considered in isolation, but must
be considered in conjunction with one another in a light most
favorable to the prosecution; force or coercion exists whenever a
defendant’s conduct induced a victim to reasonably believe that
the victim had no practical choice but to participate in sexual
intercourse with the defendant (MCL 750.520d[1][b]).
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Ronald J. Frantz, Prosecuting Attor-
ney, and Gregory J. Babbitt, Assistant Prosecuting At-
torney, for the people.
Frank Stanley for defendant.
Before: B
ECKERING
,P.J., and O
WENS
and R
ONAYNE
K
RAUSE
,JJ.
2012] P
EOPLE V
E
ISEN
327
R
ONAYNE
K
RAUSE
, J. Defendant appeals as of right his
convictions on three counts of first-degree criminal sexual
conduct, MCL 750.520b(1), and one count of third-degree
criminal sexual conduct, MCL 750.520d(1)(b). Defendant
was acquitted of a fourth count of first-degree criminal
sexual conduct. Defendant was sentenced to 210 to 540
months’ imprisonment for each conviction of first-degree
criminal sexual conduct and 120 to 180 months’ impris-
onment for the conviction of third-degree criminal sexual
conduct. We affirm.
This case stems from defendant’s repeatedly sexually
assaulting the victim over a period of years. The victim
was born on November 10, 1993. She has some form of
learning disability: she testified that she has a “hard
time comprehending things” and needed to take special
classes in school. In 2005, when the victim was 11 years
old and sometime before she started the sixth grade, the
victim and her mother moved into the trailer park in
which defendant and his daughter were already living.
Sometime shortly after the victim moved there, she met
defendant’s daughter and the two became friends. The
victim met defendant through his daughter. The vic-
tim’s mother and defendant eventually entered into a
dating relationship, and all four people moved into the
same trailer together.
Defendant first argues that when the prosecution’s
DNA expert testified that seminal fluid found in various
areas of the victim’s home matched defendant, the
expert should have provided statistical testimony ex-
plaining the likelihood that someone from the general
population would also match the DNA profile. However,
defendant’s trial counsel stipulated that the seminal
fluid found at the scene contained defendant’s DNA. A
stipulation constitutes a waiver of any alleged error, so
328 296 M
ICH
A
PP
326 [Apr
there is no error for us to review. See People v Carter,
462 Mich 206, 215; 612 NW2d 144 (2000). Therefore, we
decline to do so. Similarly, defendant’s contention that
his trial counsel should have objected to the lack of a
statistical assessment of the DNA match is without
merit. “Effective assistance of counsel is presumed, and
the defendant bears a heavy burden of proving other-
wise.” People v Solmonson, 261 Mich App 657, 663; 683
NW2d 761 (2004). Defendant does not explain to us
why, in light of counsel’s stipulation regarding the
match itself, counsel would have had any sound basis
for objecting to the lack of any statistics concerning that
match. Nor does defendant explain why stipulating
with regard to the match was an unsound strategic
decision, irrespective of its efficacy.
1
“Counsel is not
required to raise meritless or futile objections....”
People v Moorer, 262 Mich App 64, 76; 683 NW2d 736
(2004). Defendant has failed to overcome the presump-
tion that his counsel was effective.
Defendant next argues that he was denied due pro-
cess when an element of three of the first-degree
criminal sexual conduct charges was omitted in the
final jury instructions. Defendant also claims that his
trial counsel was ineffective by failing to object to the
defective instructions. Defendant waived the jury in-
struction issue itself because trial counsel expressly
approved the jury instructions and stated that he had
“no objection.” See People v Kowalski, 489 Mich 488,
503-504; 803 NW2d 200 (2011). However, we review
1
By the time the victim found someone she trusted sufficiently and to
whom she felt safe disclosing defendant’s abuse, defendant and her
mother were not only living together, they were engaged. Defense counsel
focused on the assertion that defendant’s semen was found throughout
the residence because defendant and the victim’s mother had sexual
relations “all over the place” in the trailer. We do not believe this to have
been an unsound strategy.
2012] P
EOPLE V
E
ISEN
329
this alleged error because it is necessary to resolve
defendant’s claim of ineffective assistance of counsel.
We note that this instructional issue would also apply to
the charge for which defendant was acquitted.
We first conclude that the jury instructions were
indeed plainly erroneous. The relevant charges of first-
degree criminal sexual conduct required that: (1) pen-
etration occurred with another person, and (2) the
other person was “under 13 years of age.” MCL
750.520b(1)(a). The trial court failed to tell the jury
orally that it needed to find that the victim had been
younger than 13 years old at the time of the charged
conduct. “[A] jury instruction that improperly omits an
element of a crime amounts to a constitutional error.”
Kowalski, 489 Mich at 503. We agree that defendant’s
trial counsel should have objected to the jury instruc-
tions and that this conduct fell below an objective
standard of reasonableness. See People v Frazier, 478
Mich 231, 243; 733 NW2d 713 (2007).
However, the verdict form did reflect the require-
ment that the victim must have been younger than 13
at the time. The verdict form is treated as, essentially,
part of the package of jury instructions. See People v
Wade, 283 Mich App 462, 464-468; 771 NW2d 447
(2009). Challenges to jury instructions are considered
“in their entirety to determine whether the trial court
committed error requiring reversal.” People v Canales,
243 Mich App 571, 574; 624 NW2d 439 (2000). While
the trial court committed error, the prejudicial effect of
that error was significantly reduced by the presence of
the proper elements on the verdict form. We will not
reverse where the jury “instructions fairly presented
the issues to be tried and sufficiently protected the
defendant’s rights.” People v Gonzalez, 256 Mich App
212, 225; 663 NW2d 499 (2003). We note that, with
330 296 M
ICH
A
PP
326 [Apr
respect to the charges of which defendant was con-
victed, the evidence was overwhelming that the victim
was younger than 13 at the time, and this element is
not challenged; with respect to the charge of which
defendant was acquitted, the victim’s testimony was
equivocal and uncertain regarding whether she was
younger than 13 at the time. It appears to us that the
jury’s instructions, while imperfect, did in the end
sufficiently protect defendant’s rights. We decline to
reverse on the basis of this error. See Kowalski, 489
Mich at 506.
Defendant next argues that there was insufficient evi-
dence to support his convictions. We review “de novo a
claim of insufficient evidence....” People v Lueth, 253
Mich App 670, 680; 660 NW2d 322 (2002). In reviewing
the sufficiency of the evidence, we “consider whether
there was sufficient evidence to justify a rational trier of
fact in finding that all the elements of the crime were
proved beyond a reasonable doubt.” People v Phelps, 288
Mich App 123, 131-132; 791 NW2d 732 (2010). We review
the evidence “in a light most favorable to the prosecu-
tion....”People v Aldrich, 246 Mich App 101, 124; 631
NW2d 67 (2001). We “will not interfere with the trier of
fact’s role of determining the weight of the evidence or the
credibility of witnesses.” People v Kanaan, 278 Mich App
594, 619; 751 NW2d 57 (2008).
The gravamen of defendant’s argument is that this
Court should reweigh the credibility of witnesses. We
decline to do so, because it is the role of the jury, not this
Court, to determine “the weight of the evidence or the
credibility of witnesses.” Id. We also decline to consider
the sufficiency of the evidence supporting defendant’s
first-degree criminal sexual conduct conviction for anal
penetration of the victim, because defendant has pro-
vided no specific argument pertaining to that issue,
2012] P
EOPLE V
E
ISEN
331
thereby abandoning it. With regard to defendant’s
first-degree criminal sexual conduct conviction for an
incident on the counter of the bathroom at defendant’s
residence, defendant only challenges minor details per-
taining to the victim’s description of her whereabouts
before the events actually at issue, which might possibly
have had some arguable bearing on her credibility to
the jury but are totally inconsequential to appellate
review. We deem this argument equally meritless.
Defendant’s challenge to his final first-degree crimi-
nal sexual conduct conviction is premised on the vic-
tim’s initial uncertainty during her trial testimony
regarding how old she was at the time of the charged
acts. However, upon further questioning, she recol-
lected that she was either in seventh or eighth grade
when the charged acts occurred. Following the clarifi-
cation of how old she was during these years, the victim
confirmed that she was 13 or 14 when the incident
occurred.
2
Given that the victim testified that she was
either 13 or 14 when the oral penetration occurred,
“there was sufficient evidence to justify a rational trier
of fact in finding” this element of the crime was “proved
beyond a reasonable doubt.” Phelps, 288 Mich App at
131-132.
Defendant’s final conviction was for third-degree
criminal sexual conduct, which “requires a showing
that the defendant engaged in sexual penetration with
another under certain aggravating circumstances, in-
cluding sexual penetration accomplished by force or
coercion.” People v Crippen, 242 Mich App 278, 282; 617
2
This particular charge of first-degree criminal sexual conduct re-
quired, among other elements, that the victim be “at least 13 but less
than 16 years of age....”MCL750.520b(1)(b)(i). Other than his general
credibility challenge, defendant does not dispute the other elements of
this charge.
332 296 M
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326 [Apr
NW2d 760 (2000). The required elements are: (1) de-
fendant engaged in sexual penetration with the victim,
and (2) “[f]orce or coercion is used to accomplish the
sexual penetration.” MCL 750.520d(1)(b). Again, other
than general credibility challenges, defendant does not
contest the evidence that a penetration occurred.
Rather, defendant argues that there was no evidence of
force or coercion. We disagree.
“The existence of force or coercion is to be deter-
mined in light of all the circumstances, and includes,
but is not limited to, acts of physical force or violence,
threats of force, threats of retaliation, inappropriate
medical treatment, or concealment or surprise to over-
come the victim.” Crippen, 242 Mich App at 282-283
(emphasis omitted). MCL 750.520d(1)(b) indicates that
“[f]orce or coercion includes but is not limited to any of
the circumstances listed in” MCL 750.520b(1)(f)(i)to
(v). These circumstances are:
(i) When the actor overcomes the victim through the
actual application of physical force or physical violence.
(ii) When the actor coerces the victim to submit by
threatening to use force or violence on the victim, and the
victim believes that the actor has the present ability to
execute these threats.
(iii) When the actor coerces the victim to submit by
threatening to retaliate in the future against the victim, or
any other person, and the victim believes that the actor has
the ability to execute this threat. As used in this subdivi-
sion, “to retaliate” includes threats of physical punish-
ment, kidnapping, or extortion.
(iv) When the actor engages in the medical treatment or
examination of the victim in a manner or for purposes that
are medically recognized as unethical or unacceptable.
(v) When the actor, through concealment or by the
element of surprise, is able to overcome the victim. [MCL
750.520b(1)(f)(i)to(v).]
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The incident involving the charge of third-degree crimi-
nal sexual conduct was predicated upon sexual conduct
that occurred the same day the victim revealed the
abuse. The victim asked defendant for a diet root beer
and defendant required the victim to perform oral sex
on him and allow him to anally penetrate her before she
could have the root beer. While the victim did not
specifically testify that she was explicitly threatened,
she testified that she believed the sexual conduct would
“happen whether I [the victim] wanted it or not.” This
belief must be considered in the context of what was, by
that time, a long history of defendant’s sexually abusing
the victim and making her comply with his sexual
demands. We “must consider the evidentiary facts not
in isolation, but in conjunction with one another, in a
light most favorable to the prosecution.” People v
Nowack, 462 Mich 392, 404; 614 NW2d 78 (2000).
With respect to earlier incidents, the victim had
indicated that she had been “scared.” During one
incident the victim described, defendant asked the
victim to get into a bathtub with him. The victim said
she only agreed to do so because she was “scared” and
she “knew something was going to happen whether I
was in there or not.” Additionally, defendant’s past
conduct with the victim included instances of forcible
sexual conduct. Given a history of using force, and
viewing the evidence in a light most favorable to the
prosecution, the jury could reasonably conclude that
the victim’s statement that the sexual conduct would
“happen whether” she “wanted it or not” meant that
the victim felt that she was forced to comply. See People
v Kline, 197 Mich App 165, 167; 494 NW2d 756 (1992).
The statute unambiguously provides that the enumer-
ated circumstances are not exhaustive, and indeed, it
twice states that “[f]orce or coercion includes, but is not
limited to” the enumerated circumstances. MCL
334 296 M
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750.520d(1)(b), MCL 750.520b(1)(f) (emphasis added).
Therefore, we conclude that “force or coercion” exists
whenever a defendant’s conduct induces a victim to
reasonably believe that the victim has no practical
choice because of a history of child sexual abuse or for
some other similarly valid reason. The evidence was
sufficient here for a rational finder of fact to find that
defendant forced or coerced the victim to participate in
sexual intercourse with him.
Finally, defendant argues that the cumulative effect
of the alleged errors warrants reversal, even if the
individual errors do not. “[T]he cumulative effect of
several errors can constitute sufficient prejudice to
warrant reversal where the prejudice of any one error
would not.” People v LeBlanc, 465 Mich 575, 591; 640
NW2d 246 (2002). Because we have found only one
error, the omission of one element from the oral jury
instructions regarding three of the first-degree criminal
sexual conduct charges, there is no error to accumulate
in support of a cumulative-error argument. See id. at
591 n 12.
Affirmed.
B
ECKERING
,P.J., and O
WENS
, J., concurred with
R
ONAYNE
K
RAUSE
,J.
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EOPLE V
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EASTBROOK HOMES, INC v DEPARTMENT OF TREASURY
Docket No. 299612. Submitted November 9, 2011, at Lansing. Decided
April 24, 2012, at 9:10 a.m. Leave to appeal denied, 493 Mich 882.
The Department of Treasury assessed Eastbrook Homes, Inc., for
taxes, penalties, and interest due under the State Real Estate
Transfer Tax Act (SRETTA), MCL 207.523 (1)(b), with regard to
certain quitclaim deeds on which Eastbrook was the grantor. As
part of its business of constructing houses and condominium units
for people who had bought a lot or unit from a developer,
Eastbrook would enter into a contract with the buyers for con-
structing the home or condominium unit and, as security for the
contract price of the construction, require the buyers to quitclaim
their real property to Eastbrook. Once the construction was
complete and Eastbrook was paid the contract price, Eastbrook
would quitclaim the property back to the buyers. Eastbrook had
not paid taxes imposed under the SRETTA that were due when the
quitclaim deeds to the buyers were recorded under the belief that
the quitclaim deeds were exempt from the tax under MCL
207.526(d) as written instruments given to discharge a security
interest. Eastbrook contested the assessments for the tax periods
of 2003 through 2006 and requested an informal conference. After
the conference, a hearing referee recommended that the assess-
ments be upheld. The Department of Treasury thereafter issued a
final decision and order affirming the assessments. Eastbrook
appealed in the Tax Tribunal, which granted Eastbrook equitable
relief by construing each buyer’s quitclaim deed to Eastbrook as
only an equitable mortgage and each of the quitclaim deeds from
Eastbrook back to the buyers as only a discharge of a security
interest exempt from the SRETTA tax under MCL 207.526(d). The
Department of Treasury appealed the judgment and order cancel-
ling the assessments.
The Court of Appeals held:
1. The Tax Tribunal committed an error of law and relied on
the wrong legal principles when it granted Eastbrook equitable
relief. The quitclaim deeds given to Eastbrook transferred to
Eastbrook all the title and property interests attendant to owner-
ship of the real property that were held by the buyers. The
336 296 M
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336 [Apr
quitclaim deeds given to the buyers by Eastbrook transferred back
to the buyers all the title and property interests that they had
previously held. Because the deeds conveyed “any interest in
property, for consideration” they were subject to the SRETTA tax
imposed by MCL 207.523(1)(b). The deeds given by Eastbrook did
more than release its security, they transferred all title and
interests in the property back to the buyers and were not exempt
under MCL 207.526(d) as a written instrument given to discharge
a security interest.
2. Tax exemption statutes are to be strictly construed in favor
of the taxing unit. Equity may not be invoked to avoid the dictates
of a statute in the absence of fraud, accident, or mistake. East-
brook’s intent to structure the quitclaim transactions as tax-
exempt transactions and its belief regarding the import of the
transactions are insufficient grounds to grant it equitable relief to
reform the deeds so that they fall within the purview of the
exemption provided in MCL 207.526(d). There was no fraud,
accident, or mistake that prevented the parties from crafting
instruments that solely created or discharged a security interest so
as to come within the exception provided in MCL 207.526(d).
Eastbrook fully intended that the buyers quitclaim all their title
and interests to it before it would begin construction and fully
intended that all title and interests be transferred back to the
buyers following completion of construction and receipt of the
contract price. The quitclaim deeds contained no exceptions or
reservations.
Reversed.
1. T
AXATION —
E
XEMPTIONS FROM
T
AXATION —
S
TATUTES —
C
ONSTRUCTION OF
S
TATUTES
.
Tax exemption statutes are to be strictly construed in favor of the
taxing unit; an exemption cannot be made out by inference or
implication but must be found to have been intended by the
Legislature beyond a reasonable doubt.
2. E
QUITY —
S
TATUTES
.
Equity may not be invoked to avoid the dictates of a statute in the
absence of fraud, accident, or mistake.
3. D
EEDS —
Q
UITCLAIM
D
EEDS
.
A quitclaim deed conveys to the grantee the grantor’s complete
interest or claim in certain real property unless some interest is
expressly excepted or reserved.
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McClelland & Anderson, L.L.P. (by Gregory L. Mc-
Clelland and Melissa A. Hagen), for Eastbrook Homes,
Inc.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, and Michael R. Bell, Assistant Attor-
ney General, for the Department of Treasury.
Before: T
ALBOT
,P.J., and F
ITZGERALD
and M
ARKEY
,JJ.
P
ER
C
URIAM
. Respondent, the Michigan Department
of Treasury (Treasury), appeals by right the July 27,
2010, final judgment of the Michigan Tax Tribunal
cancelling Treasury’s assessments against Eastbrook
Homes, Inc. (petitioner), for taxes, penalties, and inter-
est due under the State Real Estate Transfer Tax Act
(SRETTA), MCL 207.521 et seq., in the amount of
$1,039,854.87 for the tax periods of 2003 through 2006.
Petitioner argued in the Tax Tribunal that the real
estate transfers at issue were exempt from transfer tax
under MCL 207.526(d). After a one-day hearing, briefs,
and arguments of the parties, the tribunal issued its
final opinion and judgment that MCL 207.526(d) ex-
empted the transfers from taxation and cancelled Trea-
sury’s assessments. Because we conclude that the Tax
Tribunal erred as a matter of law, we reverse.
I. FACTS AND PROCEEDINGS
Petitioner is a residential building company that
constructs and sells new homes. Petitioner builds both
speculative and custom-built homes. In the case of a
speculative home, petitioner buys a lot or unit from a
developer and then builds a house on it with no specific
buyer in mind. After the speculative home is complete,
petitioner puts the home up for sale on the market.
When petitioner sells a speculative home and conveys
338 296 M
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the property by deed to the buyer, it pays a transfer tax
on the value of the land and the value of the home as
required under SRETTA, MCL 207.523.
A custom-built home is a home built for a specific,
i.e., predetermined, buyer. In the case of a custom-built
home, the buyer purchases the unit or lot from a
developer and then hires petitioner to construct a
house. In the transactions at dispute in this case, each
buyer purchased a lot from developer Eastbrook Devel-
opment Company, Inc. (EDC). EDC would then convey
the property to the buyer by warranty deed, and EDC
would pay the transfer tax on the value of the undevel-
oped property at that the time of the conveyance. At the
same time the buyer purchased the unit or lot from
EDC, the buyer would also contract with petitioner to
construct a house or condominium unit. The purchase
agreement between the buyer and EDC includes only
the value of the real property without the value of the
later construction. Similarly, the contract between the
buyer and petitioner includes only the cost of construc-
tion, not the value of the underlying real property.
As security for the contract price between petitioner
and the buyer, petitioner would require the buyer to
quitclaim the property to petitioner. Once construction
was complete and petitioner was paid the contract
price, petitioner would quitclaim the property back to
the buyer. Because the quitclaim deeds were made for
the purposes of creating a security interest in the
property or discharging a security interest, petitioner
contends that the quitclaim deeds were exempt from
transfer tax under SRETTA pursuant to MCL
207.526(d). Treasury contends that petitioner acted in a
coordinated manner with EDC to sell improved prop-
erty to its buyers without paying the transfer tax on the
improved value of the property. In Treasury’s view, the
2012] E
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warranty deeds between EDC and the buyers were
unnecessary and were simply being used as a tax-
avoidance device. Consequently, Treasury asserts that
the quitclaim deeds from petitioner to the buyers are
subject to the transfer tax under SRETTA.
Treasury audited petitioner for the years 2003-2006
and, as a result of the audit, assessed petitioner tax
deficiencies with interest and penalties totaling
$1,039,854.87. Petitioner contested the assessments
and requested an informal conference, which was held
on May 7, 2008. The hearing referee recommended that
the assessments be upheld. Treasury issued a final
decision and order of determination affirming the as-
sessments on February 3, 2009. Petitioner appealed the
decision in the Tax Tribunal on March 2, 2009, arguing
that the quitclaim deeds at issue are exempt from
SRETTA because they were made for the purpose of
discharging a security interest in the property.
After discovery, a hearing was conducted on April 15,
2000, before a Tax Tribunal hearing officer. At the
hearing, the parties stipulated with regard to the ad-
mission of four exhibits, which were “typical or proto-
type documents for all the transactions subject to the
various assessments.” After the exhibits were admitted,
Michael McGraw, Chief Executive Officer of petitioner,
testified regarding the transactions. McGraw was the
only witness. On the basis of the hearing, the Tax
Tribunal made the following findings of fact:
1. Petitioner (i.e., the Building Company) is in the
business of residential construction.
2. The Development Company (i.e., Eastbrook Develop-
ment Company, Inc.) is in the business of taking raw
unimproved land and developing it into divisible parcels of
property.
340 296 M
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336 [Apr
3. The Building Company and the Development Com-
pany are separate and distinct entities.
4. Mr. McGraw, as an individual owner, has interests in
both entities and a legitimate business purpose, other than
avoiding transfer tax, to maintain the Building Company
and Development Company as separate entities including
but not limited to the provisions set forth in the Condo-
minium Act, MCL 559.101 et seq., and Land Division Act,
MCL 560.101, et seq., and tort liability.
5. Pursuant to Paragraph 21 of the Building Contract,
Petitioner and the Buyers expressly intended to use the
Buyer’s quit claim deed for a specified parcel of property, as
security for payment of improvements made.
6. During the course of construction, Petitioner has a
legitimate business interest to maintain physical posses-
sion of the property including but not limited to the lack of
a certificate of occupancy (see Paragraph 13 and 14 of the
Building Contract), tort liability, and expeditious comple-
tion of the project.
7. The parties acted consistent with their intentions set
forth in the transaction documents and Building Contract;
Petitioner did not act as though he possessed fee simple
title in the property and the Buyers still retained an
interest in the property by paying the property taxes, and
making additional decisions with regard to change orders
and addendums made during the course of construction.
8. As expressed in the Building Contract, upon comple-
tion of the home Petitioner “would release its security and
quit claim title back to the Buyer.”
9. The Buyers’ quit claim deeds and Petitioner’s quit
claim deeds both indicate on their face the parties’ inten-
tion to use the deed as a security; the deeds corroborated
the parties intentions set forth in the transaction docu-
ments contained in Petitioner’s exhibits.
10. The Buyers’ quit claim deeds are found to be an
effective method of making certain that the Builder is paid
in full upon completion of construction of a home, and
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provides a strong form of security. [Final Opinion and
Judgment (MTT Docket No. 359471, July 27, 2010), pp
14-15.]
The Tax Tribunal invoked the doctrine of equitable
mortgages to grant petitioner relief, writing with re-
spect to its conclusions of law as follows:
The quit claim deeds from Petitioner to its respective
customers are clearly deeds or instruments of conveyance
of property or any interest in property, which are subject to
the tax imposed under the SRETTA, but for the fact that the
quit claim deeds were given as security or an assignment or
discharge [of] the security interest and thus exempt under
§ 6 of the SRETTA[.]
It is apparent from clear unambiguous language used
within the documents in Petitioner’s Exhibits that the
parties intended the conveyance of property interests, by
way of quit claim deeds from the Buyers to Petitioner and
from Petitioner to the Buyers, were to be treated as
creating a security interest in the properties. More specifi-
cally, Petitioner and the Buyers expressly intended in their
respective Building Contracts that the Buyers’ quit claim
deeds be given to Petitioner as “security during construc-
tion.” Furthermore, Buyers’ quit claim deeds expressly
corroborate the parties’ intentions by stating “This trans-
fer is made for security purposes” on the face of the deed,
and by specifically identifying the property used to secure
the debt. Therefore, the Tribunal finds that the Buyers’
quit claim deeds to Petitioner created a security interest
(i.e., an equitable mortgage) on the Buyers’ respective
parcel of property.
***
The statute is clear and unambiguous that written
instruments that transfer property given as security and
the assignment or discharge of the security interest are
exempt from SRETT[A]. MCL [207.526(d)]. The statute
does not require the security interest be created by way of
mortgage in order to be exempt. If the Legislature would
342 296 M
ICH
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wish to limit the exemption contained in § 6 of the
SRETTA to mortgages it is free to do so.
Notwithstanding the above, Petitioner’s relationship
with the Buyers, as their builder and financier, further
supports the conclusion that Buyers’ quit claim deeds
served as an equitable mortgage. Accordingly, Petitioner’s
quit claim deeds back to the Buyers are a release of said
security. Therefore, Petitioner’s quit claim deeds to the
Buyers are exempt from State transfer tax pursuant to
MCL 207.526(d). [Final Opinion and Judgment (MTT
Docket No. 359471, July 27, 2010), pp 15-17.]
On the basis of the foregoing findings of fact and
conclusions of law, the Tax Tribunal issued its judgment
cancelling Treasury’s assessments. Treasury appeals by
right.
II. STANDARD OF REVIEW
“Absent an allegation of fraud, this Court’s review of
a tax tribunal decision is limited to determining
whether the tribunal committed an error of law or
applied the wrong legal principles.” AERC of Mich, LLC
v Grand Rapids, 266 Mich App 717, 722; 702 NW2d 692
(2005); Const 1963, art 6, § 28. The Tax Tribunal’s
findings of facts are final if they are supported by
competent and substantial evidence. Mt Pleasant v
State Tax Comm, 477 Mich 50, 53; 729 NW2d 833
(2007). But the interpretation of a statute is a question
of law we review de novo. Id.; AERC of Mich, 266 Mich
App at 722.
III. PERTINENT STATUTORY PROVISIONS
Treasury argues that petitioner’s quitclaim deeds
back to buyers after completing construction of a home
or condominium unit, and the buyers payment for the
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added value pursuant to the building contract, is tax-
able under § 3 of SRETTA, which provides, in part:
(1) There is imposed, in addition to all other taxes, a tax
upon the following written instruments executed within
this state when the instrument is recorded:
(a) Contracts for the sale or exchange of property or any
interest in the property or any combination of sales or
exchanges or any assignment or transfer of property or any
interest in the property.
(b) Deeds or instruments of conveyance of property or
any interest in property, for consideration.
***
(2) The person who is the seller or grantor of the
property is liable for the tax imposed under this act. [MCL
207.523.]
Petitioner contends that the quitclaim deeds of peti-
tioner to the buyers are exempt from taxation under § 6
of SRETTA, which provides, in pertinent part:
The following written instruments and transfers of
property are exempt from the tax imposed by this act:
***
(d) A written instrument given as security or an assign-
ment or discharge of the security interest. [MCL 207.526.]
IV. ANALYSIS
We conclude that the Tax Tribunal committed an
error of law and relied on the wrong legal principles by
granting petitioner the equitable relief of construing
each buyer’s quitclaim deed as only an equitable mort-
gage and also each of petitioner’s quitclaim deeds as
only a discharge of a security interest. Although peti-
tioner and its buyers intended to create and discharge
344 296 M
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336 [Apr
“strong security,” their quitclaim deeds and written
contracts establish that they also intended to and did
transfer back and forth all property interests attendant
to title or ownership of real property. Because petition-
er’s quitclaim deeds conveyed “any interest in property,
for consideration,” MCL 207.523(1)(b), and because the
Tax Tribunal erred as a matter of law by construing the
buyers’ quitclaim deeds as only equitable mortgages
and petitioner’s quitclaim deeds as only their discharge,
the Tax Tribunal erred as a matter of law by cancelling
Treasury’s tax assessment pursuant to MCL
207.526(d).
At the outset, we note that Treasury’s primary
argument is less than compelling. Treasury argues that
petitioner and EDC acted together as a single unit to
sell improved property to buyers, specifically structur-
ing the transactions in a manner to avoid paying the
transfer tax on the improved value of the land. Trea-
sury argues that other and better methods existed for
petitioner to secure its interests and that the transac-
tions at issue were structured as a tax-avoidance device.
Because the quitclaim deeds were used as a tax-
avoidance device, Treasury asserts, they are not exempt
under MCL 207.526(d). Treasury argues that Michigan
courts look to the substance of the transaction when the
transaction is structured in a tax-dependant manner
and is thus a tax-avoidance device. See Charles E
Austin, Inc v Secretary of State, 321 Mich 426, 434-435;
32 NW2d 694 (1948), and Mourad Bros, Inc v Dep’t of
Treasury, 171 Mich App 792, 797; 431 NW2d 98 (1988).
Treasury’s argument is unpersuasive. “The legal
right of a taxpayer to decrease the amount of what
otherwise would be his taxes, or altogether avoid them,
by means which the law permits, cannot be doubted.”
Gregory v Helvering, 293 US 465, 469; 55 S Ct 266; 79
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L Ed 596 (1935); see also Stone v Stone, 319 Mich 194,
199; 29 NW2d 271 (1947) (“A taxpayer has the legal
right to attempt, by lawful means, to minimize
taxes....”). Further, this Court has held that when a
multiple-party transaction has economic substance,
which is required or encouraged by business or regula-
tory considerations, and not solely for tax avoidance,
the government should honor the parties’ allocation of
rights and duties. Mourad Bros, 171 Mich App at 797,
citing Stratton-Cheeseman Mgt Co v Dep’t of Treasury,
159 Mich App 719, 725; 407 NW2d 398 (1987), and
Connors & Mack Hamburgers, Inc v Dep’t of Treasury,
129 Mich App 627, 629-630; 341 NW2d 846 (1983).
Here, the Tax Tribunal determined that petitioner and
EDC were separate and distinct entities and that deter-
mination is supported by competent and substantial
evidence. Other than arguing that better methods ex-
isted to accomplish the intended purpose of the trans-
actions, Treasury offers no basis to dispute the tribu-
nal’s finding of fact that there exists “legitimate
business purpose[s], other than avoiding transfer tax,
to maintain [petitioner] and [EDC] as separate entities
including but not limited to the provisions set forth in
the Condominium Act, MCL 559.101 et seq., and Land
Division Act, MCL 560.101, et seq., and tort liability.”
Because the transactions at issue have economic sub-
stance beyond solely tax avoidance, they should be
given full effect.
But Treasury also cites a general legal principle
regarding the construction of tax exemptions that is
very pertinent to the resolution of this case. Specifically,
because an “ ‘[e]xemption from taxation effects the
unequal removal of the burden generally placed on all
landowners to share in the support of local government
[and] [s]ince exemption is the antithesis of tax equality,
exemption statutes are to be strictly construed in favor
346 296 M
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of the taxing unit’.” Ladies Literary Club v Grand
Rapids, 409 Mich 748, 753; 298 NW2d 422 (1980)
(citations omitted). As more fully explained by Justice
C
OOLEY
:
“An intention on the part of the [L]egislature to grant
an exemption from the taxing power of the state will never
be implied from language which will admit of any other
reasonable construction. Such an intention must be ex-
pressed in clear and unmistakable terms, or must appear
by necessary implication from the language used, for it is a
well-settled principle that, when a special privilege or
exemption is claimed under a statute, charter or act of
incorporation, it is to be construed strictly against the
property owner and in favor of the public. This principle
applies with peculiar force to a claim of exemption from
taxation. Exemptions are never presumed, the burden is on
a claimant to establish clearly his right to exemption, and
an alleged grant of exemption will be strictly construed and
cannot be made out by inference or implication but must be
beyond reasonable doubt.” [Id. at 754, quoting 2 Cooley,
Taxation (4th ed), § 672, pp 1403-1404.]
Another legal principle of particular importance to
the resolution of this case relates to the Tax Tribunal’s
using equity to grant petitioner relief from the plain
terms of MCL 207.523(1)(b). Equity may not be
invoked—in the absence of fraud, accident, or
mistake—to avoid the dictates of a statute. Stokes v
Millen Roofing Co, 466 Mich 660, 671-672; 649 NW2d
371 (2002); Freeman v Wozniak, 241 Mich App 633,
637-638; 617 NW2d 46 (2000). Consequently, petition-
er’s intent to structure the quitclaim transactions at
issue as tax exempt and its belief regarding the legal
import of the transactions are insufficient grounds to
grant petitioner equitable relief to reform the quitclaim
deeds at issue so that they fall within the purview of
MCL 207.526(d). See Burkhardt v Bailey, 260 Mich App
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636, 659; 680 NW2d 453 (2004); Sentry Ins v Claimsco
Int’l, Inc, 239 Mich App 443, 447; 608 NW2d 519 (2000).
When they are recorded, MCL 207.523(1)(b) imposes
a tax on “[d]eeds or instruments of conveyance of
property or any interest in property, for consideration.”
By these plain terms, a deed or other instrument by
which any interest in property is conveyed for consid-
eration is subject to the tax when the deed or instru-
ment of conveyance is recorded. The phrase “any inter-
est” is best analyzed using the familiar analogy that
real property consists of various rights with each right
represented as a stick. A person having all possible
rights incident to ownership of a parcel of property has
the entire bundle of sticks or a fee simple title to the
property. Adams v Cleveland-Cliffs Iron Co, 237 Mich
App 51, 57 & n 6; 602 NW2d 215 (1999). Important
rights flowing from property ownership include the
right to exclusive possession, the right to personal use
and enjoyment, the right to manage its use by others,
and the right to income derived from the property. Id.at
57-58 & n 7. Indeed, “title,” is defined in Black’s Law
Dictionary (9th ed), as “[t]he union of all elements (as
ownership, possession, and custody) constituting the
legal right to control and dispose of property....”
Each of the real estate transactions at issue was
preceded by EDC’s conveying a warranty deed of an
unimproved lot or condominium unit to the buyer who
contracted with petitioner for the construction of a
home or residential condominium unit. A warranty
deed conveys the entire bundle of rights to the property
from the grantor to the grantee in fee simple; it also
includes the grantor’s covenant that the grantor has
good, marketable title and guarantees to the grantee
the right of quiet possession. Allen v Hazen, 26 Mich
142, 146 (1872); MCL 565.151; 13 Michigan Law &
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Practice (2d ed), Deeds, § 3, p 246. The day after
receiving EDC’s warranty deed, each buyer, by quit-
claim deed, conveyed all his or her rights to the par-
ticular lot or condominium unit to petitioner. “A quit-
claim deed is, by definition, ‘[a] deed that conveys a
grantor’s complete interest or claim in certain real
property but that neither warrants nor professes that
the title is valid.’ ” Dep’t of Natural Resources v
Carmody-Lahti Real Estate, Inc, 472 Mich 359, 378-379;
699 NW2d 272 (2005), quoting Black’s Law Dictionary
(7th ed). See also MCL 565.3 (“A deed of quit claim and
release, of the form in common use, shall be sufficient to
pass all the estate which the grantor could lawfully
convey by a deed of bargain and sale.”), and Roddy v
Roddy, 342 Mich 66, 69; 68 NW2d 762 (1955) (“It is
settled law in this State that a quitclaim deed transfers
any interest the grantor may have in the lands, what-
ever its nature.”).
Although each buyer’s quitclaim deed to petitioner
contains a statement that “[t]his transfer is made for
security purposes” and that “[t]his transfer is exempt
from transfer tax pursuant to MCLA 207.505(d)
[1]
and
207.526(d),” there is no language in the quitclaim deed
reserving to the buyer-grantor any of the property
rights conveyed by EDC’s warranty deed the preceding
day. “A quitclaim deed is generally construed as convey-
ing all the grantor’s interest in the described property
unless some interest is expressly excepted or reserved.”
Thomas v Steuernol, 185 Mich App 148, 154-155; 460
NW2d 577 (1990). Additionally, the contract between
the buyers and petitioner and their actions during the
building phase confirm that the buyers’ quitclaim deeds
conveyed to petitioner the important property interests
1
MCL 207.505(d) provides an exemption with language nearly identi-
cal to MCL 207.526(d) applicable to the tax imposed under the county
real estate transfer tax act, MCL 207.501 et seq.
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of possession and control of the pertinent lot or condo-
minium unit. Consequently, while all the buyers’ quit-
claim deeds to petitioner provided strong security to
petitioner regarding its construction contract, they also
transferred all of the buyers’ property rights in the lot
or condominium unit, received through the prior war-
ranty deed, to petitioner.
2
Pursuant to the construction contract between the
buyer and petitioner, after petitioner completed con-
structing the buyer’s home or condominium unit and
the buyer paid the contract price, petitioner would
surrender possession of the home or condominium unit
to the buyer. A closing would also occur where peti-
tioner would “release its security and quit claim title
back to the Buyer....” (Emphasis added.) Although
petitioner’s quitclaim deeds state that they are exempt
from the county transfer tax, MCL 207.505(d), and the
state transfer tax, MCL 207.526(d), they do not limit
the conveyance to only a “discharge of [a] security
interest.” Id. The operative words of transfer in the
deeds are “quit claim,” which, as noted already, transfer
all of the grantor’s rights in the property to the grantee.
Roddy, 342 Mich at 69; Thomas, 185 Mich App at
154-155. Thus, petitioner’s quitclaim deeds back to the
buyer do more than “release its security”—they also
transfer “title” back to the buyer. Here, “title” would
include all property interests in the property, such as
possession and the legal right to control and dispose of
property that the buyer had previously quitclaimed to
petitioner. Because petitioner’s quitclaim deeds trans-
ferred “any interest in property”—all the property
2
The quitclaim deeds clearly provide strong security because in the
event of a buyer’s default, petitioner would not need to foreclose a
mortgage or a construction lien since the buyer would already have
transferred all of his or her property rights in the lot or condominium
unit to petitioner.
350 296 M
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rights the buyers had previously transferred to
petitioner—“for consideration”—the contract price for
the improvements made while in petitioner’s possession
and control, petitioner’s quitclaim deeds are plainly
taxable under MCL 207.523(1)(b), unless specifically
exempted by MCL 207.526(d).
MCL 207.526(d), as a tax-exemption statute, must be
strictly construed for the reasons discussed by Justice
C
OOLEY
in his treatise and quoted in Ladies Literary
Club, 409 Mich at 754. MCL 207.526(d), pertinent to
petitioner’s quitclaim deeds, only exempts a “discharge
of [a] security interest” previously given. The exemp-
tion can apply in this instance only if the pertinent
portion of MCL 207.526(d) is interpreted to read: a
“discharge of [a] security interest” previously given as
part of a deed or instrument also conveying any other
interest in the property. But such an expansion of the
exemption beyond its express wording is not permitted.
Ladies Literary Club, 409 Mich at 753-754. Conse-
quently, the Tax Tribunal correctly applied MCL
207.526(d) to exempt petitioner’s quitclaim deeds from
taxation under MCL 207.523(1)(b) only if it properly
invoked equity to reform the buyers’ quitclaim deeds to
convey only an equitable mortgage and also correctly
reformed petitioner’s quitclaim deeds to only discharge
an equitable mortgage. See Fletcher v Morlock, 251
Mich 96, 98-99; 231 NW 59 (1930) (where a deed is
construed to be an equitable mortgage, a grantee’s
reconveyance to the grantor is construed to be a dis-
charge of the equitable mortgage).
Michigan has long recognized equitable mortgages.
In Abbott v Godfroy’s Heirs, 1 Mich 178, 181 (1849), the
Court held that an equitable mortgage arose from the
parties’ intent to create by a written agreement a lien
on real estate for the payment of a debt, but the written
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agreement was legally defective. Thus, courts may
reform a defective instrument to reflect the parties’
intent. As stated in 1 Cameron, Michigan Real Property
Law (3d ed), Mortgages, § 18.5, pp 681-682:
A court of equity may impose and foreclose an equitable
mortgage on a parcel of real property when no valid
mortgage exists but some sort of lien is required by the
facts and circumstances of the parties’ relationship. Gen-
erally an equitable mortgage will be imposed if it is shown
that there was an intention to place a lien on the real estate
or a promise that the real estate would be used as security
but for some reason the intended purpose was not accom-
plished.... For example, a defective mortgage may have
been executed.
Additionally, an equitable mortgage may arise in
other circumstances, for example, where a deed pur-
ports to convey a fee simple estate, but the parties
intended only a mortgage. Id., § 18.6, pp 683-684; see
also Burkhardt, 260 Mich App at 659 (“An equitable
mortgage places the substance of the parties’ intent
over form.”), and Townsend v Chase Manhattan Mtg
Corp, 254 Mich App 133, 138; 657 NW2d 741 (2002). As
its name implies, equitable principles are the heart of
the doctrine: “The whole doctrine of equitable mort-
gages is founded upon the ancient, cardinal maxim of
equity which regards that as done which was agreed to
bedone....”Schram v Burt, 111 F2d 557, 562 (CA 6,
1940). Even without a written contract, “ ‘from the
relations of the parties, equity will declare a lien out of
considerations of right and justice, based upon those
maxims which lie at the foundation of equity jurispru-
dence.’ ” Senters v Ottawa Savings Bank, FSB, 443
Mich 45, 53; 503 NW2d 639 (1993), quoting Kelly v
Kelly, 54 Mich 30, 47; 19 NW 580 (1884).
Further, “[e]quity will create a lien only in those
cases where the party entitled thereto has been pre-
352 296 M
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vented by fraud, accident, or mistake from securing
that to which he was equitably entitled.” Cheff v Haan,
269 Mich 593, 598; 257 NW 894 (1934). Thus, merely
advancing money to improve real property with an
understanding a lien would be given will not create an
equitable lien. Id. Moreover, “[a] party that has an
adequate remedy at law is not entitled to an equitable
lien.” Ypsilanti Charter Twp v Kircher, 281 Mich App
251, 284; 761 NW2d 761 (2008).
In the present case, there is no basis in equity to
reform the parties’ quitclaim deeds. There was no
fraud, accident, or mistake that prevented the parties to
the real estate transactions at issue from crafting
instruments that solely created or discharged a security
interest so as to come within the exemption of MCL
207.526(d). As noted already, petitioner’s mistaken be-
lief that the quitclaim deeds were not taxable provided
no basis to invoke equitable relief. Burkhardt, 260 Mich
App at 659; Sentry Ins, 239 Mich App at 447. Nor is
invoking the intent of petitioner (and its buyers) a
sufficient basis to equitably reform the quitclaim deeds
at issue. Petitioner fully intended and required by
contract that buyers quitclaim title, including the rights
of possession and control of the pertinent lot or condo-
minium unit, to petitioner before it began constructing
a home or condominium unit on the lot. Further,
petitioner fully intended by its quitclaim deeds at issue
to transfer title, including the rights of possession and
control, back to the buyer upon the buyer’s payment of
the consideration after construction of either the resi-
dence or condominium. Consequently, there is no basis
in equity for the Tax Tribunal to reform the buyers’
quitclaim deeds to equitable mortgages or to conclude
that petitioner’s quitclaim deeds were issued solely as
“discharge[s] of the security interest.” MCL 207.526(d).
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This is so even if the buyers’ quitclaim deeds could be
considered “written instrument[s] given as secu-
rity....”Id.
In conclusion, whether petitioner and EDC are sepa-
rate entities, whether the parties intended to create
security interests, whether there are legitimate busi-
ness reasons to structure the transactions the way they
were, and whether petitioner believed the transactions
were tax exempt, we conclude that petitioner’s quit-
claim deeds were still taxable because they conveyed
“any interest” in property for consideration, MCL
207.523(1)(b), beyond just a “discharge of [a] security
interest.” MCL 207.526(d). Thus, the value added to the
lot or condominium unit by petitioner’s construction of
a home on a lot or a condo within the unit is taxable.
MCL 207.523(1)(b); MCL 207.532. The Tax Tribunal
erred as a matter of law by granting petitioner equitable
relief and cancelling Treasury’s assessments.
We reverse.
T
ALBOT
,P.J., and F
ITZGERALD
and M
ARKEY
, JJ., con-
curred.
354 296 M
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ANDRIE INC v DEPARTMENT OF TREASURY
Docket No. 301615. Submitted February 8, 2012, at Lansing. Decided
April 26, 2012, 9:00 a.m. Leave to appeal granted, 493 Mich 900.
Andrie Inc. filed an action in the Court of Claims, seeking a refund
of use taxes paid under protest for the years 1999 through 2006.
During that time, Andrie shipped asphalt on three barges to
various customers in the Great Lakes area. A specific tug boat was
in dedicated service to a particular barge for all shipments because
the barges were unable to move in the water without assistance.
Each tug boat had a registered tonnage of less than 500 tons, and
each barge had a registered tonnage of over 500 tons. The
Department of Treasury determined that the tug boats did not
qualify for the fuel and supplies exemption, MCL 205.94(1)(j), of
the Use Tax Act, MCL 205.91 et seq. and assessed Andrie $613,183
for unpaid-tax liability. The court, Paula J. M. Manderfield, J.,
concluded that Andrie’s tugs were entitled to the use-tax exemp-
tion because they were each part of a tug-barge unit that consti-
tuted a single vessel for purposes of MCL 205.94(1)(j), The court
also determined that the barges alone had registered tonnages
exceeding 500 tons, the tug-barge units were engaged in interstate
commerce for a percentage of the time and that Andrie was
entitled to a use-tax exemption for fuel and supplies used by both
the tug boats and barges. The court noted that the department was
entitled to impose a use tax on the fuel and supplies used in foreign
commerce while the tug-barge units were on Michigan water.
Finally the court concluded that Andrie was entitled to the
presumption that the sales tax was paid on the disputed transac-
tions. The department appealed.
The Court of Appeals held:
1. The Use Tax Act, MCL 205.91 et seq., imposes a tax on the
purchaser for the privilege of using, storing or consuming tangible
personal property in this state. Under MCL 205.94(1)(j) a purchase
is exempt from the use tax (1) if a vessel was designed for
commercial use of registered tonnage of 500 tons or more, if
produced upon special order of the purchaser, and (2) if the
purchase was for bunker and galley fuel, provisions, supplies,
maintenance, and repairs for the exclusive use of a vessel of 500
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tons or more and is also engaged in interstate commerce. The trial
court erred as a matter of law when it determined that Andrie’s
tug-barge combinations constituted single vessels qualifying for
the exemption under the Use Tax Act. The plain language of MCL
205.94(1)(j) exempts the supplies of a single watercraft that is 500
or more tons and does not apply to a multiple vessels acting as a
single vessel. The tugs and barges were separate vessels that were
registered individually with their own names and tonnage. More-
over, expert testimony established that pilot licensing require-
ments did not treat tugs and barges as individual vessels. Because
the tugs had a tonnage of less than 500 tons, the exemption in
MCL 205.94(1)(j) did not apply. The court would not read addi-
tional language into this exemption to make it apply to multiple
vessels acting as a single unit. A barge and tug in dedicated service
did not qualify as a single vessel under MCL 205.94(1)(j).
2. The property or services under MCL 205.94(1) are exempt
from the use tax only to the extent that the property or services are
used for the exempt purpose stated in that section. The exemption
is limited to the percentage of exempt use to total use determined
by a reasonable formula or method approved by the department.
In accordance with over a century of judicial decisions, all parts of
goods that travel in commerce between states, including those
portions that only travel intrastate, constitute interstate com-
merce and the Legislature is presumed to have been aware of this
specific meaning when enacting the Use Tax Act. A vessel or
vehicle is used in interstate commerce if it carries goods moving in
a continuous stream from an origin in one state to a destination in
another. Thus, interstate commerce is broadly defined and may
include a shipment transported entirely within a single state. The
trial court did not clearly err by concluding that Andrie’s voyages
between Michigan ports constituted interstate commerce with
respect to MCL 205.94(1)(j) because the asphalt carried by the
tug-barge units was regularly shipped to assorted road and paving
companies throughout the Great Lakes region.
3. The Use Tax Act imposes a tax for the privilege of using,
storing, or consuming tangible personal property in this state.
MCL 205.93(1). The trial court clearly erred by concluding that the
assessment of the use tax was limited to personal property used in
Michigan because under the plain language of MCL 205.93(1),
tangible personal property that is merely stored in Michigan is also
subject to the use tax.
4. The General Sales Tax Act, MCL 205.51 et seq., imposes a
tax on retail sales of tangible personal property within the state of
Michigan. The sales tax is imposed on the retailer for the privilege
356 296 M
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of engaging in the business of making retail sales. The use tax
exempts from taxation property on which a sales tax is paid; if a
transaction is subject to sales tax it is necessarily not subject to the
use tax. The items Andrie purchased from Michigan retailers were
not subject to the use tax. The retailers had the ultimate respon-
sibility to pay any sales tax on those transactions and the depart-
ment may not place a duty on Andrie, as the purchaser, to show
that the sales tax was paid to the state. The court properly
determined that the department erred by assessing Andrie for use
tax on purchases made from Michigan retailers when Andrie was
unable to prove that any sales tax was paid on those purchases.
Affirmed in part, reversed in part, and remanded for further
proceedings.
1. T
AXATION —
U
SE
T
AX
—E
XEMPTIONS
.
The Use Tax Act, MCL 205.91 et seq., imposes a tax on the purchaser
for the privilege of using, storing or consuming tangible personal
property in this state; under MCL 205.94(1)(j) a purchase is
exempt from the use tax (1) if a vessel was designed for commercial
use of registered tonnage of 500 tons or more, if produced upon
special order of the purchaser, and (2) if the purchase was for
bunker and galley fuel, provisions, supplies, maintenance, and
repairs for the exclusive use of a vessel of 500 tons or more and is
also engaged in interstate commerce; MCL 205.94(1)(j) does not
apply to a multiple vessels acting as a single vessel; a barge and tug
in dedicated service did not qualify as a single vessel under MCL
205.94(1)(j).
2. T
AXATION —
U
SE
T
AX
—E
XEMPTIONS —
I
NTERSTATE
C
OMMERCE
R
EQUIREMENT
.
Property or services under MCL 205.94(1) are exempt from the use
tax only to the extent that they are used for the exempt purpose
stated in that section; all parts of goods that travel in commerce
between states, including those portions that only travel intrast-
ate, constitute interstate commerce; a vessel or vehicle is used in
interstate commerce if it carries goods moving in a continuous
stream from an origin in one state to a destination in another.
3. T
AXATION —
G
ENERAL
S
ALES
T
AX
—R
ETAILERS —
D
UTY TO
P
AY
S
ALES
T
AX
.
The General Sales Tax Act, MCL 205.51 et seq., imposes a tax on
retail sales of tangible personal property within the state of
Michigan and is imposed on the retailer for the privilege of
engaging in the business of making retail sales; because retailers
have the ultimate responsibility to pay any sales tax on those
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transactions, the Department of Treasury may not place a duty on
a purchaser to show that the sales tax was paid to the state.
Honigman Miller Schwartz & Cohn LLP (by June
Summers Haas and Brian T. Quinn), for Andrie Inc.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Jessica A. McGivney and Bradley K.
Morton, Assistant Attorneys General, for the Depart-
ment of Treasury.
Before: F
ITZGERALD
,P.J., and W
ILDER
and M
URRAY
,JJ.
W
ILDER
, J. Defendant appeals as of right an order
granting plaintiff a partial refund on use taxes paid
under protest. On appeal, defendant contends that it
properly assessed use taxes on plaintiff for the years
1999 through 2006. We affirm in part, reverse in part,
and remand.
I. BASIC FACTS
A. TUG-BARGE UNITS
Plaintiff is a marine transportation and marine con-
struction business headquartered in Muskegon, Michi-
gan. The marine-transportation activities, which form
the basis for the instant litigation, involve shipping
asphalt to various customers in the Great Lakes area.
Typically, plaintiff loaded asphalt from an oil refinery
and shipped it to various ports in Indiana, Wisconsin,
Michigan, Illinois, Ohio, New York, and Ontario.
The years at issue in this tax-dispute case are 1999
through 2006. During this time, plaintiff used three
barges to transport the asphalt. Because the barges
were unmanned and incapable of independent move-
358 296 M
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ment, they could only move with outside assistance. In
providing that assistance, plaintiff assigned a particular
tug boat (tug) to each of its barges. Barge A-410 was
paired with the Tug Rebecca Lynn, Barge A-390 was
paired with the Tug Barbara Andrie, and Barge A-397
was paired with the Tug Karen Andrie. It is undisputed
that each tug has a registered tonnage of less than 500
tons, and each barge has a registered tonnage of over
500 tons. Captain Richard DiNapoli, an expert in the
field of maritime construction, operations, and con-
tracts, testified that the tugs in question are simply
“detachable mode[s] of power sources” for the barges.
To prepare for this case, DiNapoli reviewed the deck
logs for the tugs and barges in dispute between 1999
and 2006. After reviewing these deck logs, DiNapoli
concluded that he had no doubt that each tug-barge pair
operated in “dedicated service.”
1
In other words, each
particular tug was “married” to a particular barge,
forming a singular “unit.” He explained that dedicated
tug-barge units are common for longer shipments be-
tween different harbors. He stated that the term “dedi-
cated service” is a term of art in the industry but
acknowledged it may not be included in a specific Coast
Guard regulation. Non-dedicated tugs, DiNapoli ex-
plained, are often “harbor tugs” because they generally
move multiple barges within a single harbor. DiNapoli
further explained that while Coast Guard regulations
require separate deck logs for harbor tugs and nondedi-
1
DiNapoli clarified that even though the tugs and barges were in
dedicated service to each other, they were not an “integrated tug-barge”
unit or “ITB” as defined by Coast Guard regulations because the units
lacked a “special bow connection.” Instead, DiNapoli testified that all of
the units used conventional connections of wire tow lines. He also
admitted that one of the tugs was retrofitted with this special bow
connection system to qualify as an ITB, but it happened after the time
period at issue.
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cated barges, only one deck log is required for dedicated,
“single marine transportation units,” such as plaintiff’s
tug-barge units.
DiNapoli’s review of the deck logs indicated that the
tugs had participated in “extraneous activities,” but
they never violated the “dedicated service profile.” For
example, a tug may have worked independently from its
barge to refuel or break ice in the harbor’s entrance
channel while the barge unloaded its contents. Further,
according to DiNapoli, the Karen Andrie had partici-
pated in an annual tugboat race. We also note that at
least at one time during the period in question, one of
the tugs worked with a barge to which it was not
assigned.
2
DiNapoli opined that these types of activities
did not invalidate the “dedicated service profile” be-
cause each barge essentially depended on its tug “for
everything,” and the tugs’ activities never caused a
delay in the barges’ movements.
B. TAX DISPUTE
Defendant audited plaintiff for the period between
1999 and the middle of 2006. Defendant determined
that plaintiff owed a total of $613,183 for unpaid
use-tax liability. This assessment was based on the
auditor determining that plaintiff’s tugs did not qualify
for the fuel and supplies exemption specified in MCL
205.94(1)(j)
3
.
2
Specifically, in 2004 the Rebecca Lynn had towed Barge A-390, when
normally the Barbara Andrie would tow Barge A-390. Horton v Andrie,
Inc, 408 F Supp 2d 477, 479 (WD Mich, 2005).
3
MCL 205.94(1)(j) states that the following is exempt from use tax: “A
vessel designed for commercial use of registered tonnage of 500 tons or
more, if produced upon special order of the purchaser, and bunker and
galley fuel, provisions, supplies, maintenance, and repairs for the exclu-
sive use of a vessel of 500 tons or more engaged in interstate commerce.”
360 296 M
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But because the barges were vessels over 500 tons,
defendant determined that they did qualify for the fuel
and supplies exemption. Defendant concluded that 93
percent of plaintiff’s voyage miles were interstate com-
merce. Defendant calculated this apportionment by
dividing the number of miles traveled between a Michi-
gan port and a port of another state by the total number
of miles traveled. The remaining seven percent con-
sisted of either (1) voyages between two Michigan ports
(intrastate commerce) or (2) voyages between a Michi-
gan port and a Canadian port (foreign commerce).
Defendant determined that fuel and supplies used by
the barges for the interstate commerce voyage miles
were exempt under MCL 205.94(1)(j), whereas the
remaining seven percent were subject to tax. Again,
defendant concluded that none of the fuel and supplies
used by the tugs was tax exempt because the tugs had a
registered tonnage of less than 500 tons.
Defendant also concluded that plaintiff failed to pay
use tax on certain transactions in the state of Michigan
where it could provide no supporting documentation to
show that sales tax had already been paid.
C. COURT OF CLAIMS PROCEEDING
Plaintiff paid the tax assessment under protest and
then filed this case with the Court of Claims to obtain a
refund. Plaintiff’s challenge to the tax assessment raised
four distinct issues: (1) whether defendant improperly
found that fuel and supplies purchased for the tugs were
not entitled to the fuel and supplies exemption; (2)
whether defendant’s apportionment of the voyage miles
was contrary to law; (3) whether defendant improperly
attempted to assess use tax on purchases that had been
subject to sales tax; and (4) whether the use-tax exemp-
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tion apportionment violated the Duty of Tonnage Clause
of the United States Constitution.
4
On November 22, 2010, the trial court issued its
opinion and order explaining that plaintiff’s tugs would
be entitled to the use-tax exemption under MCL
205.94(1)(j) if (1) they constituted “vessels,” (2) the
vessels had a registered tonnage of 500 tons or more, (3)
the fuel, provisions, supplies, and repairs were used
exclusively by these vessels, and (4) these vessels were
engaged in interstate commerce.
The trial court held that each of plaintiff’s tugs
qualified for the exemption because they were part of a
tug-barge unit that constituted “a vessel” under MCL
205.94(1)(j). The trial court also noted that (1) the
barges alone had registered tonnages exceeding 500
tons, (2) the tug-barge units were engaged in interstate
commerce at least some of the time, and (3) the parties
did not dispute that the fuel and supplies at issue were
used exclusively by the tug-barge units. Thus, the court
concluded that plaintiff was entitled to a use-tax exemp-
tion under MCL 205.94(1)(j) for fuel and supplies used
by the tugs and the barges, not only the barges.
The trial court then concluded that plaintiff was
entitled to the exemption only for the supplies used in
interstate commerce. But the court also determined
that defendant’s classification of “intrastate” com-
merce was actually “interstate” commerce. Thus, be-
cause plaintiff was entitled to a use-tax exemption for
its so-called “intrastate commerce” activities as well,
plaintiff was entitled to a use-tax exemption for every-
thing except its foreign commerce.
The trial court further explained that defendant was
not entitled to assess use tax on all fuel and supplies
4
US Const, art I, § 10, cl 3.
362 296 M
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used in foreign commerce. Rather, defendant was only
entitled to assess use tax on the fuel and supplies used
in foreign commerce while the tug-barge units were on
Michigan waters.
The trial court also concluded that plaintiff was
entitled to the presumption that the sales tax was paid
on the disputed transactions. Because defendant did not
rebut that presumption, plaintiff could not be assessed
the use tax on the disputed transactions.
The trial court declined to address plaintiff’s fourth
issue regarding the Tonnage Clause since it was not
necessary for the resolution of the case.
II. ANALYSIS
A. USE TAX
Defendant argues that the trial court erred when it
determined that each of plaintiff’s tug-barge combina-
tions were a single “vessel,” as opposed to separate
ones, for purposes of Michigan’s use tax. We agree.
Resolution of this issue involves the interpretation of
the relevant exemption, which we review de novo.
Herman v Berrien Co, 481 Mich 352, 358; 750 NW2d
570 (2008). An “application of the facts to the law” is
also subject to de novo review. Van Buren Charter Twp
v Garter Belt, Inc, 258 Mich App 594, 598; 673 NW2d
111 (2003). And we review a trial court’s findings of fact
at a bench trial for clear error. Chelsea Investment
Group LLC v City of Chelsea, 288 Mich App 239, 250;
792 NW2d 781 (2010). A finding is clearly erroneous if
we are left with a definite and firm conviction that a
mistake was made. Id. at 251.
The Use Tax Act, MCL 205.91 et seq., imposes a “tax
for the privilege of using, storing, or consuming tan-
gible personal property in this state....” MCL
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205.93(1). The legal obligation of the use tax is imposed
on the consumer or the purchaser. Combustion Engi-
neering, Inc v Dep’t of Treasury, 216 Mich App 465, 468;
549 NW2d 364 (1996). But MCL 205.94 provides for
exemptions to the use tax. Relevant for the present
case, MCL 205.94(1)(j) provides two types of exemp-
tions: (1) “[a] vessel designed for commercial use of
registered tonnage of 500 tons or more, if produced
upon special order of the purchaser,” and (2) “bunker
and galley fuel, provisions, supplies, maintenance, and
repairs for the exclusive use of a vessel of 500 tons or
more engaged in interstate commerce.” Because this
case involves the taxing of the tug boats’ fuel and
supplies, only this latter aspect of the exemption is
relevant for the issues on appeal.
Defendant argues that plaintiff’s tugs are not “ves-
sels” with registered tonnage over 500 tons. Therefore,
it asserts that fuel and supplies used for the tugs are not
entitled to the use tax exemption provided in MCL
205.94(1)(j). This issue turns on whether a tug and
barge physically connected and in dedicated service to
each other is a single vessel or two distinct vessels for
purposes of the Use Tax Act.
To interpret a statute, this Court first gives “effect to
the intent of the Legislature.” Oakland Co Bd of Co Rd
Comm’rs v Mich Prop & Cas Guaranty Ass’n, 456 Mich
590, 599; 575 NW2d 751 (1998). When the language of
a statute is plain and unambiguous, the legislative
intent is indicated by the ordinary and generally ac-
cepted meaning of that language. Id. In other words,
“[w]here the language of a statute is clear, [this Court]
will enforce the statute as written because the Legisla-
ture must have intended the meaning it plainly ex-
pressed.” Id. Finally, “[tax] exemption statutes are
interpreted according to ordinary rules of statutory
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construction.” Cowen v Dep’t of Treasury, 204 Mich App
428, 431; 516 NW2d 511 (1994).
As a general rule, “tax laws are construed against the
government.” DeKoning v Dep’t of Treasury, 211 Mich
App 359, 361; 536 NW2d 231 (1995). “However, tax
exemption statutes are to be strictly construed in favor
of the taxing unit.” Id. at 361-362. The taxpayer there-
fore has the burden of showing entitlement to an
exemption. Elias Bros Restaurants, Inc v Treasury
Dep’t, 452 Mich 144,150; 549 NW2d 837 (1996).
We note that no Michigan published cases have
addressed this issue. Plaintiff contends that by attach-
ing its tugs to its 500-plus-ton barges, the resulting
coupling creates a single “vessel” under the Use Tax
Act. The exemption at issue in MCL 205.94(j)(1) applies
to supplies used by “a vessel of 500 tons or more.” The
plain reading of the provision reveals that the Legisla-
ture intended the exclusion to apply to a single vessel
that is 500 or more tons. This is evident from the use of
the indefinite article “a”, which is “[u]sed before nouns
and noun phrases that denote a single but unspecified
person or thing.” The American Heritage Dictionary of
the English Language (1996). The term “vessel,” in
turn, is defined by Random House Webster’s College
Dictionary (1997) as “a craft for traveling on wa-
ter....”Therefore, the plain language of the statute
allows for the exemption to apply to supplies of a single
watercraft that is 500 or more tons. Nothing in the
statute allows for multiple vessels acting as a single
vessel to qualify for the exemption. Instead, only actual,
single vessels are covered by the exemption. It is undis-
puted that the tugs and barges are, in actuality, sepa-
rate vessels. They are all registered individually with
their own names and their own tonnage, with each tug
having a tonnage of less than 500 tons. Therefore, as a
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matter of law, the supplies for the tugs cannot qualify
for the exemption under MCL 205.94(j)(1). To read the
provision as allowing multiple vessels acting as a single
unit to qualify as “a vessel” requires reading additional
language into MCL 205.94(1)(j), thereby violating a
fundamental canon of statutory interpretation. In re
Marin, 198 Mich App 560, 564; 499 NW2d 400 (1993). If
the Legislature intended the exemption to apply to
multiple vessels working in unison, it easily could have
stated as such.
Furthermore, the testimony of plaintiff’s own expert
illustrates how two vessels counting as a single unit is a
fiction. The expert testified that the requirements behind
a captain’s piloting license are dependent upon the piloted
vessel’s size. He explained that, as in aviation where a 747
pilot has much more strenuous licensing requirements
than someone who flies a smaller aircraft, the same
applies to watercraft. In other words, the larger the vessel,
the more certification requirements one needs to captain
such a ship. But the expert explained that the captains of
plaintiff’s tugs only had to be qualified for the tonnage of
the tugs themselves—not the combined tonnage of the
tug-barge “units.” Likewise, the tug-barge units only had
to be staffed according to the tonnage of the smaller tugs,
not the tonnage of the combined units. While these facts
are not dispositive, it shows that our treatment of the
issue is consistent with how the licensing requirements
treat the tugs and barges as individual vessels also.
Plaintiff further claims that the fact that his tugs are
in dedicated service to particular barges is sufficient for
each tug-barge coupling to be considered a single vessel.
We disagree. If plaintiff was correct, we would not only
have to read “vessel” as including multiple vessels
working in tandem, but we also would have to read into
366 296 M
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the statute that the exemption would only apply if the
vessels were in dedicated service to each other. This is
taking the plain language of the statute and stretching
it too far. We decline to read more into the statute than
what it states. Id.
Furthermore, assuming that a tug and barge working
in tandem did qualify as a single vessel, the fact that
they may be working in “dedicated service” should be
irrelevant. For example, assume Tug A is in dedicated
service to Barge 1 and that they logged 50,000 miles
together over the course of the year. On the other end of
the harbor, you have Harbor Tug B that worked with
numerous different barges over the course of the year,
also traveling 50,000 miles. According to plaintiff, Tug
A should qualify for the exemption, while Harbor Tug B
should not. This outcome lacks any underlying ratio-
nale. Both Tug A and Harbor Tug B always were
attached to or working with a 500-plus ton barge. The
fact that Tug A was “monogamous” does not change the
fact that Harbor Tug B never operated independently
and was always attached to a barge. Thus, there is no
basis for suggesting that Tug A was working as a
500-plus ton vessel for the entire year, but Harbor Tug
B was not. In short, we hold that coupling a barge and
a tug together, even if in dedicated service, does not
transform them into a singular vessel for purposes of
the use-tax exemption of MCL 205.94(1)(j).
Plaintiff also argues that we should affirm on the
basis that the trial court’s finding should be given great
deference as any other factual finding by a trial court.
While a trial court’s factual findings are reviewed for
clear error, Chelsea Investment Group, 288 Mich App at
250, a trial court’s application of its facts to the law is
reviewed de novo, Van Buren Twp, 258 Mich App at 598.
Because we determined that a vessel is a single unit,
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and not multiple units merely operating as a single unit,
the trial court erred as a matter of law when it con-
cluded that tugs attached to barges can constitute a
single vessel under the use-tax exemption of MCL
205.94(1)(j). Physically connecting tugs to barges does
not destroy the individual character of each vessel
because each vessel still maintains its own name, reg-
istration, and tonnage.
B. APPORTIONMENT
1. INTERSTATE VS. INTRASTATE COMMERCE
Because we have determined that plaintiff’s tugs
were not eligible for the exemption, we now turn to the
apportionment of the barges’ exemption. Again, the Use
Tax Act provides an exemption for “bunker and galley
fuel, provisions, supplies, maintenance, and repairs for
the exclusive use of a vessel of 500 tons or more engaged
in interstate commerce.” MCL 205.94(1)(j) (emphasis
added). This exemption is limited by MCL 205.94(2),
which provides as follows:
The property or services under subsection (1) are ex-
empt 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.
The trial court determined that the barges’ intrastate
trips qualified as interstate commerce because “under the
broad definition of interstate commerce that the U.S.
Supreme Court has adopted, [The Daniel Ball,77US(10
Wall) 557; 19 L Ed 999 (1871)] when goods are traveling in
commerce between states, all parts of that transport, even
those portions traveled only intrastate,...constitute in-
terstate commerce.” We agree with this conclusion.
368 296 M
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Because this Court presumes that the Legislature is
fully aware of judicial decisions, the term “interstate
commerce” as used in the Use Tax Act has the “peculiar
and appropriate meaning in the law that those words
have acquired in over a century of judicial decisions
applying the Commerce Clause of the United States
Constitution.” Alvan Motor Freight, Inc v Dep’t of
Treasury, 281 Mich App 35, 41; 761 NW2d 269 (2008)
(quotation marks omitted).
With respect to interstate commerce, this Court
explained that “[c]ourts have consistently found that
even if a vessel or vehicle never leaves a state, it is ‘used
in interstate commerce’ if it carries goods moving in a
continuous stream from an origin in one state to a
destination in another.” Id. at 42. Interstate commerce
is therefore broadly defined and may include a ship-
ment transported entirely within a single state. See,
e.g., The Daniel Ball, 77 US (10 Wall) at 564-566 (noting
that a ship moving from one Michigan port to another
Michigan port is engaged in interstate commerce be-
cause it carried goods destined for other states).
Therefore, the trial court finding that plaintiff’s
voyages between Michigan ports constituted interstate
commerce under MCL 205.94(1)(j) was not clearly er-
roneous. The testimony at the bench trial had indicated
that plaintiff’s asphalt was regularly shipped to various
road paving and construction companies throughout
the Great Lakes region. Accordingly, under the ratio-
nale of The Daniel Ball and numerous other United
States Supreme Court decisions, plaintiff’s shipments
between Michigan ports constituted “interstate com-
merce.” See Alvan Motor Fright, 281 Mich App at 41-42.
Defendant’s reliance on this Court’s decision in
Bob-Lo Co v Dep’t of Treasury, 112 Mich App 231; 315
NW2d 902 (1982) is misplaced. In Bob-Lo, this Court
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held that the plaintiff’s steamers, which transported
passengers from Detroit to Wyandotte and then to
Bob-Lo Island in Ontario, Canada, were not entitled to
the use-tax exemption for the fuel and supplies
5
used in
interstate commerce. Id. at 233, 244-245. The Court
noted that both the United States Supreme Court and
the Michigan Supreme Court previously determined
that plaintiff’s activity was foreign commerce. Id. at
244. Thus, the activity could not qualify under the
interstate commerce exemption. As the Alvan Motor
Freight Court summarized, “[T]he Bob-Lo decision is
inapposite because the Court could not and did not alter
United States Supreme Court precedent... and was
decided on the basis that the activity in Bob-Lo was
foreign commerce, not interstate commerce.” Alvan
Motor Freight, 281 Mich App at 47.
2. FOREIGN-COMMERCE APPORTIONMENT
There is no dispute that vessels participating in
foreign commerce cannot take advantage of the inter-
state commerce exemption discussed above. Defendant,
however, argues that the trial court erred when it
imposed the use tax on plaintiff’s fuel and supplies that
were only used in Michigan, while engaging in foreign
commerce. We agree.
The Use Tax Act imposes a “tax for the privilege of
using, storing, or consuming tangible personal property
in this state.” MCL 205.93(1) (emphasis added). Accord-
ing to the plain language of the statute, if any tangible
personal property is merely stored in Michigan, it is
subject to the use tax. See Guardian Indus Corp v Dep’t
5
The use-tax exemption at issue in Bob-Lo was MCL 205.94(k). The
language of the exemption in Bob-Lo was identical to the exemption at
issue in this case; a 2001 amendment changed the subsection from (k) to
(j). 2001 PA 39.
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of Treasury, 243 Mich App 244, 256; 621 NW2d 450
(2000). Therefore, the trial court erred when it stated
that the assessment of use tax was limited to “personal
property used in Michigan.” The trial court further
explained that
[d]uring trips between Michigan and Canada, clearly
only some of the fuel and supplies used would be used in
Michigan waters, while some would be used in Canadian
waters. Accordingly, by finding all fuel and supplies used on
voyages between Michigan and Canada to be taxable,
Defendant improperly calculated the apportionment.
Therefore, with respect to plaintiff’s foreign com-
merce, the trial court on remand is to apportion the use
tax for plaintiff’s use, consumption, and storage of
tangible personal property in the state. We note that it
may be that the entirety of the fuel and supplies used
for foreign commerce may be subject to the use tax
because all of that tangible personal property, at one
point, may have been stored in Michigan.
C. SALES TAX VS. USE TAX
Defendant next argues that the trial court erred
when it failed to impose use tax on certain personal
property that was purchased in Michigan. We disagree.
Here, plaintiff purchased certain items from Michi-
gan retailers. After plaintiff failed to prove that any
sales tax was paid on the purchases, defendant assessed
use tax on those items. The trial court determined that
since they were sold within the state, the transaction
was only subject to sales tax.
The General Sales Tax Act, MCL 205.51 et seq.,
imposes a tax on retail sales of “tangible personal
property” within the state of Michigan. World Book, Inc
v Dep’t of Treasury, 459 Mich 403, 407-408; 590 NW2d
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293 (1999). The sales tax is imposed on the retailer for
“the privilege of engaging in the business of making
retail sales.” Combustion Engineering, 216 Mich App at
467. The retailer is not obligated to include the sales tax
in the property’s selling price, although the retailer has
this option. Id. Thus, while the sales tax is “ordinarily
passed on to the purchaser at retail, the retailer is
obligated to pay the tax due and bears the direct legal
incidence of the General Sales Tax Act.” Id. Addition-
ally, “the use tax exempts from taxation property on
which a sales tax is paid.” Id. at 468.
Our Supreme Court and this Court have held on
multiple occasions that the mere fact that a transaction
is subject to sales tax necessarily means that the trans-
action is not subject to use tax. See, e.g., Elias Bros, 452
Mich at 146 n 1 (“The Use Tax Act, as amended, is an
‘excise’ or ‘privilege’ tax that covers transactions not
subject to the general sales tax.”), and Fisher & Co, Inc
v Dep’t of Treasury, 282 Mich App 207, 209; 769 NW2d
740 (2009) (“The Use Tax Act is complementary to the
Michigan General Sales Tax Act...andisdesigned to
cover those transactions not subject to the sales tax.”).
In the present case, there is no dispute that the
transactions in question involved Michigan retailers
and transfers of title within the state of Michigan.
Because the retailer has the ultimate responsibility to
pay any sales tax, it is erroneous to place a duty on a
purchaser to show that the sales tax was indeed paid to
the state. Combustion Engineering, 216 Mich App at
469. Thus, the transactions are not subject to use tax,
and the trial court properly held in favor of plaintiff on
this issue.
Affirmed in part, reversed in part, and remanded for
further proceedings consistent with this opinion. We do
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not retain jurisdiction. No costs are taxable pursuant to
MCR 7.219, a public question having been involved.
F
ITZGERALD
,P.J., and M
URRAY
, J., concurred with
W
ILDER
,J.
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FROWNER v SMITH
Docket No. 305704. Submitted March 15, 2012, at Detroit. Decided April
26, 2012, at 9:05 a.m.
Davion Frowner was born to Diane Frowner and Lamonte A. Smith
in 1999. Davion’s parents never married, but in 2000, Smith
acknowledged paternity and began paying child support. Diane
died in 2007 and Davion, who had resided with his mother since
his birth, went to live with Diane’s parents, Herbert and Deborah
Frowner. Herbert and Deborah petitioned the Wayne Circuit Court
to be appointed guardians. Smith responded with a motion for
custody. The parties eventually signed a consent order for custody,
parenting time, and child support in August 2008 that provided
that Smith and the Frowners would jointly share Davion’s legal
custody and Davion’s primary residence would remain with the
Frowners until further order of the court. Smith moved for a
change of custody in 2011. A hearing referee recommended that
the motion be denied because Smith had not stated a change of
circumstances to warrant reviewing the issue of custody. The
court, Kathleen M. McCarthy, J., denied the motion, refusing to
evaluate whether the child’s best interests would be served by
awarding custody to Smith, on the basis that Smith failed to
demonstrate proper cause or a change in circumstances to warrant
a custody hearing to determine the child’s best interests. Smith
appealed.
The Court of Appeals held:
The circuit court clearly erred by imposing on Smith the
threshold burden of proving that proper cause or changed circum-
stances justified a custody hearing. A natural parent possesses a
fundamental interest in the companionship, custody, care, and
management of his or her child protected by the due process
provisions of US Const, Am XIV and Const 1963, art 1, § 17. The
parental presumption in MCL 722.25(1) codifies the fundamental
tenet that, in a custody disagreement between a fit parent and a
third party, the fit parent has the advantage. When there is a
conflict between the presumption in MCL 722.25(1) that, in a
custody dispute between a parent and a third person, the court
shall presume that the best interests of the child are served by
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awarding custody to the parent, unless the contrary is established
by clear and convincing evidence, and the presumption in MCL
722.27(1)(c) that provides for modification of a custody arrange-
ment only upon a showing of proper cause or change of circum-
stances, the parental presumption of MCL 722.25(1) controls. The
trial court erred by applying MCL 722.27(1)(c) in this case. The
trial court’s order is reversed and the case is remanded to the trial
court for a best-interests hearing at which, in order for the
Frowners to be granted continuing custody, the Frowners have the
burden of establishing by clear and convincing evidence that it is
not in Davion’s best interest for Smith to have custody of Davion.
Reversed and remanded.
P
ARENT AND
C
HILD —
C
HILD
C
USTODY —
C
ONFLICT OF
L
AWS
.
When there is a conflict between the parental presumption in MCL
722.25(1), which provides that in a custody dispute between a
parent and a third person the court shall presume that the best
interests of the child are served by awarding custody to the parent,
unless the contrary is established by clear and convincing evi-
dence, and the presumption in MCL 722.27(1)(c), which provides
for the modification of a child custody arrangement only when
there is a showing of proper cause or changed circumstances, the
parental presumption of MCL 722.25(1) controls.
Sandra M. Larson for Herbert and Deborah Frowner.
Lamonte A. Smith in propria persona.
Before: B
ORRELLO
,P.J., and B
ECKERING
and G
LEICHER
,
JJ.
G
LEICHER
, J. This is a child-custody dispute between a
noncustodial father and the child’s maternal grandpar-
ents, the boy’s third-party custodians. The circuit court
refused to evaluate whether the child’s best interests
would be served by awarding custody to Lamonte
Smith, the boy’s father, based on its determination that
Smith failed to demonstrate proper cause or change of
circumstances. Contrary to the circuit court’s ruling,
the constitutionally based presumption in favor of a
natural parent supplies the threshold showing required
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375
for an evidentiary hearing. Because the circuit court’s
decision cannot be reconciled with Smith’s fundamental
constitutional right to the custody of his son, we reverse
and remand for further proceedings.
I. BACKGROUND
Davion Frowner was born to Diane Frowner and Lam-
onte A. Smith in 1999. Smith and Frowner never married,
and from the time of his birth, Davion resided with his
mother. In 2000, Smith acknowledged paternity and be-
gan paying child support. When Diane Frowner died in
2007, intervening plaintiffs, Herbert and Deborah
Frowner, Davion’s maternal grandparents, took the boy
into their home. The Frowners then petitioned the court
to be appointed as Davion’s guardians. Smith responded
by filing a motion for custody. Gaps in the record prevent
us from determining why both parties’ motions were
dismissed by the circuit court.
1
We know only that on
August 13, 2008, the parties signed a consent order for
custody, parenting time, and child support. The order
provided that Smith and the Frowners would jointly
share Davion’s legal custody, and that the child’s “pri-
mary residence” would remain with the Frowners “un-
til further order of the Court.” The order set forth a
parenting-time schedule and confirmed that Smith
would continue to pay child support.
In September 2009, Smith moved to change custody.
The motion is nowhere to be found in the circuit court
record. Apparently the court denied Smith’s motion;
that order, too, is missing.
1
The 2008 motions are not contained in the record, nor is the order
appointing a guardian ad litem for the child or the guardian ad litem’s
report. The record does include an order and a transcript from an entirely
unrelated case. The poor condition of the circuit court record has
unnecessarily complicated this Court’s review.
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Smith’s third attempt at changing his son’s custody
resulted in the denial giving rise to this appeal. After
Smith again moved for custody, a circuit court referee
found unpersuasive his claim that Davion preferred to
live with Smith and was doing poorly in school. The
referee recommended that Smith’s motion be denied
because he had “not stated a change of circumstances to
warrant reviewing the issue of custody.”
Smith filed objections and supplemental objections to
the referee’s recommendation and requested a de novo
hearing. When the hearing commenced, the Frowners’
counsel, Sandra Larson, characterized Smith’s argu-
ment as follows:
In his objections, [defendant] indicates that, he argues
that [as] far as the burden of proving a change of circum-
stances is not warranted in this case [sic] because the
matter involves a third party.
And in addition, he cites the best interest of the child
control [sic] and the best interests of the child are better
served by residing with the parent rather than a third party.
The trial court then addressed Smith, who represented
himself at the hearing:
The Court: Okay. And I note that you filed a motion to
change custody. And you have, in fact, stated the law wrong
in the state of Michigan.
Once a custody order is established, it cannot be modi-
fied, I don’t care who the litigants are, absent a proper
cause or a change in circumstances that materially affect
the welfare of the minor child. That is the burden that you
have. Okay?
Mr. Smith: Okay.
The Court: It does not matter that these parties are not
the biological parents because you entered into this con-
sent order in 2008, I believe.
Ms. Larson: Correct.
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The Court: Okay. So, what you have cited in your motion
is that there’s a significant change in circumstances because
now the minor child has spent a significant amount of time
with you, including overnights, and your relationship has
improved. Correct? That’s what you cited as a change.
And that your son is continuing to have difficulty in
school, as he had before, that he’s failed the fourth grade
and is currently failing the fifth grade while living with the
maternal grandparents.
Then you went into the best interest factors. But that’s
not the issue for the Court. The issue is what is the change
in circumstance? You have cited two issues. Your first issue
is your son has bonded with you now. Prior to the entry of
that judgment, you had not exercised any significant
parenting time with your son. Now, you have.
And that he was having issues in school, which you had
indicated was an issue for the Court at this time that this
matter was originally before the Court. And now, you’re
indicating that that concern has continued. Correct?
Mr. Smith: Yes.
Smith observed that the Frowners had failed to file a
response to his motion to change custody. The Frown-
ers’ counsel indicated that no response had been filed
“to save costs for my client[s]....” Onbehalf of the
Frowners, the attorney requested attorney fees.
Smith argued that the child’s school reports demon-
strated that the child was not doing well, and provided
the court with “progress reports and his grades from
January to June of this year, 2011.” The court enter-
tained a brief discussion between the parties concerning
the child’s education. Smith then asserted that as
“third parties,” the Frowners lacked standing. The
circuit court interposed:
The Court: . . . Sir, that’s in a regional [sic] custody
dispute. It’s not, has no bearing on the situation now. The
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child is already in an established custodial environment
with the Frowners and you have parenting time, pursuant
to the last Court order.
Mr. Smith: Well --
The Court: . . . That’s the law in Michigan. And you
should consult with a lawyer if you think it’s anything
different than that. Trust me, I’m well versed in it.
Mr. Smith: I believe you, your Honor. And I respect that.
The Court: If I find that there’s a proper cause or a
change in circumstance to entertain a change in the
established custodial environment, I would agree that that
then becomes the burden of proof. It’s not the burden now.
It’s your burden, by clear and convincing evidence, to
show me there’s a proper cause or change in circumstance.
Okay? Do you have anything else to add, sir?
Smith explained that he and the child had formed a
bond, and that the boy had also bonded with Smith’s
older son. Smith pointed out that the child had his own
room in Smith’s West Bloomfield home and that the
West Bloomfield school system “is rated very high.” He
continued:
I have a job. I’m educated. I’m a manager at a major
corporation. I’m married to my wife, Leslie. We’re very
strong in the community. We’re positive. And I really
believe that if the Court grants me sole legal and physical
custody, I’m going to be a great father for my son[.]
The circuit court then announced its decision:
The Court: Okay. Thank you. As indicated, the basis of
Mr. Smith’s motion was that there is a change in circum-
stance and that he has now developed a strong relationship
with his son and that the child is failing in school.
The Court was aware of Mr., [sic] of the minor child’s
issues in school. That was an issue in the original custody
disposition. And despite that, the parties entered into an
2012] F
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agreement on August 13th of 2008, for joint legal custody
and primary residence with the maternal grandparents.
Sir, pursuant to [Vodvarka v Grasmeyer, 259 Mich App
499; 675 NW2d 847 (2003)], you must demonstrate some-
thing other than normal life changes, both good or bad,
occurring in the child’s life for there to be a proper cause or
a change in circumstance.
It would obviously have been assumed that the more
time you spent with your son, you were going to have a
better and closer bonding relationship with him pursuant
to the order of August 13th of 2008. That, in and of itself,
would not cause a proper cause or a change in circumstance
to even consider the issue of custody at this time.
And the issue of his school grades, which would be
significant to this Court, I frankly have conflicting testi-
mony. I have grades through January of ’11 indicating he’s
an all A student, except for a difficulty in math, which is a
dramatic improvement over what his grades used to be.
You, obviously, have presented me some information
from January to June that he went from an all A situation
to some C’s and D’s in his subjects, which are concerning.
However, the Frowners have responded by indicating that
they continue your son in educational pursuits and have
had him consistently in additional educational classes since
June of 2008 and you yourself have not been participating
in the cost or help with that.
For those reasons, sir, I am denying your motion. I am
not finding a proper cause or a change in circumstance at
this time.
II. ANALYSIS
We employ three different standards when reviewing
a trial court’s decision in a child-custody dispute. We
review the trial court’s findings of fact to determine if
they are against the great weight of the evidence, we
review discretionary decisions for an abuse of discre-
tion, and we review questions of law for clear error.
380 296 M
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Fletcher v Fletcher, 447 Mich 871, 876-877; 526 NW2d
889 (1994). A clear legal error occurs when the trial
court “incorrectly chooses, interprets, or applies the
law....”Id. at 881.
The circuit court clearly erred by imposing on Smith
the threshold burden of proving that proper cause or
changed circumstances justified a custody hearing. A
natural parent possesses a fundamental interest in the
companionship, custody, care, and management of his or
her child, an element of liberty protected by the due
process provisions in the Fourteenth Amendment of the
United States Constitution and article 1, § 17, of the
Michigan Constitution. In re Rood, 483 Mich 73, 91-92;
763 NW2d 587 (2009) (opinion by C
ORRIGAN
, J.). The
United States Supreme Court strongly reaffirmed the
constitutional rights of parents in Troxel v Granville, 530
US 57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000),
invalidating a Washington statute permitting a court to
order grandparent visitation despite parental opposition.
The Supreme Court explained that the Washington stat-
ute “directly contravened the traditional presumption
that a fit parent will act in the best interest of his or her
child.” Id. at 69. The preeminence of a parent’s precious
right to raise his or her child is so firmly rooted in our
jurisprudence that it needs no further explication.
In enacting the Child Custody Act, MCL 722.21 et
seq., our Legislature recognized that a parent’s right to
custody rests on a constitutional foundation. The pa-
rental presumption in MCL 722.25(1) codifies the fun-
damental tenet that, in a custody disagreement be-
tween a fit parent and a third party, the fit parent has
the advantage:
If a child custody dispute is between the parents,
between agencies, or between third persons, the best
interests of the child control. If the child custody dispute is
2012] F
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381
between the parent or parents and an agency or a third
person, the court shall presume that the best interests of
the child are served by awarding custody to the parent or
parents, unless the contrary is established by clear and
convincing evidence.
In this case we confront the apparent conflict between
the parental presumption of MCL 722.25(1) and MCL
722.27(1)(c), which provides for modification of a cus-
todial arrangement only upon a showing of proper
cause or change of circumstances.
2
This Court first acknowledged the tension between
MCL 722.25(1) and MCL 722.27(1)(c) in Heltzel v Heltzel,
248 Mich App 1, 26-27; 638 NW2d 123 (2001). In that case,
a mother sought to regain custody of her child whom she
had previously placed in her parents’ care. In Heltzel,as
here, the biological parent had stipulated for the entry of
an order in favor of the grandparents’ custody. Id. at 4-5.
2
MCL 722.27 provides, in relevant part:
(1) If a child custody dispute has been submitted to the circuit
court as an original action under this act or has arisen incidentally
from another action in the circuit court or an order or judgment of
the circuit court, for the best interests of the child the court may
do 1 or more of the following:
***
(c) Modify or amend its previous judgments or orders for proper
cause shown or because of change of circumstances until the child
reaches 18 years of age and, subject to [MCL 552.605b] until the
child reaches 19 years and 6 months of age. The court shall not
modify or amend its previous judgments or orders or issue a new
order so as to change the established custodial environment of a
child unless there is presented clear and convincing evidence that
it is in the best interest of the child. The custodial environment of
a child is established if over an appreciable time the child naturally
looks to the custodian in that environment for guidance, discipline,
the necessities of life, and parental comfort. The age of the child,
the physical environment, and the inclination of the custodian and
the child as to permanency of the relationship shall also be
considered.
382 296 M
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Unlike in this case, the circuit court in Heltzel afforded
the parent an evidentiary hearing concerning the child’s
best interests. Id. at 7. In reviewing the evidence produced
at the hearing, the circuit court placed on the mother the
burden of proving that a change of custody would serve
the child’s best interests. Id. at 13.
This Court reversed, holding that when a “fit natural
mother” seeks a change of custody “from an established
custodial environment with third persons,” the applica-
tion of a presumption in favor of the custodial environ-
ment with the third persons constitutes clear legal
error. Id. at 23. The Heltzel Court specifically addressed
the situation presented here:
We do not believe, however, that the Legislature in-
tended that in every custody dispute between a noncusto-
dial natural parent and a third-person custodian, the
third-person custodian could eliminate the fundamental
constitutional presumption favoring custody with the
natural parent, and thus arrive on equal footing with the
parent with respect to their claim of custody to the parent’s
child, merely by showing that the child had an established
custodial environment in the third person’s custody. This
interpretation...fails to take into proper account the
parents’ fundamental due process liberty interest in chil-
drearing. [Id. at 26-27.]
In Hunter v Hunter, 484 Mich 247, 263; 771 NW2d
694 (2009), the Supreme Court reaffirmed Heltzel’s
central holding: “In Heltzel, our Court of Appeals rec-
ognized Troxel’s mandate: In order to protect a fit
natural parent’s fundamental constitutional rights, the
parental presumption in MCL 722.25(1) must control
over the presumption in favor of an established custo-
dial environment in MCL 722.27(1)(c).” Further, in
Hunter, 484 Mich at 260, quoting Heltzel, 248 Mich App
at 27, the Supreme Court adopted the manner in which
Heltzel resolved the “interplay” of the two presump-
tions:
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“[C]ustody of a child should be awarded to a third-party
custodian instead of the child’s natural parent only when
the third person proves that all relevant factors, including
the existence of an established custodial environment and
all legislatively mandated best interest concerns within
[MCL 722.23], taken together clearly and convincingly
demonstrate that the child’s best interests require place-
ment with the third person.”
“Only when such a clear and convincing showing is made
should a trial court infringe the parent’s fundamental
constitutional rights by awarding custody of the parent’s
child to a third person.” Heltzel, 248 Mich App at 27-28.
The purpose of the proper-cause or change-of-
circumstances requirement is “to ‘erect a barrier
against removal of a child from an established custodial
environment and to minimize unwarranted and disrup-
tive changes of custody orders.’ ” Vodvarka v Grasm-
eyer, 259 Mich App 499, 509; 675 NW2d 847 (2003),
quoting Heid v AAASulewski (After Remand), 209 Mich
App 587, 593-594; 532 NW2d 205 (1995). But Heltzel
and Hunter instruct that a court may not interpose a
presumption in favor of a child’s established custodial
environment as an obstacle to parental custody. Rather,
due regard for Smith’s parental rights requires that the
circuit court presume him to be the proper caretaker of
his child. Enforcing this presumption requires that any
opposing presumption, shielding the child from a cus-
todial change absent a showing of proper cause or
changed circumstances, must yield. Thus, the circuit
court clearly erred by applying MCL 722.27(1)(c) in this
case.
3
3
Accordingly, the circuit court misplaced its reliance on Vodvarka.
Conditioning an evidentiary hearing on a natural parent’s ability to
prove proper cause or changed circumstances effectively closes the
courthouse doors whenever a child thrives in the care of a third party.
Taken to its logical conclusion, as long as the status quo is generally
384 296 M
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374 [Apr
Nor does our jurisprudence countenance the notion
that Smith relinquished his fundamental liberty inter-
est in raising his child by stipulating to the order
granting custody to the Frowners. This Court has
emphatically stated that a parent who voluntarily and
temporarily relinquishes custody to foster his or her
child’s best interests should not suffer a penalty for this
election. Speers v Speers, 108 Mich App 543, 547; 310
NW2d 455 (1981). Indeed, “[w]e encourage such a
practice....”Theroux v Doerr, 137 Mich App 147, 150;
357 NW2d 327 (1984). Smith is no less fit to parent
because he elected to permit the Frowners to have
“primary custody” of the child for a time, during which
Smith enjoyed an opportunity to gradually bond with
his son. We decline to penalize Smith for stipulating to
Davion’s custody with the Frowners shortly after the
child’s mother died.
“We recognize the long-established rule that the best
interest of the child is of paramount importance[.]”
Liebert v Derse, 309 Mich 495, 500; 15 NW2d 720
(1944). Nevertheless, as the Supreme Court empha-
sized in Liebert, “we have never interpreted such rule so
as to deprive a parent of the custody of his or her child,
unless it was shown that the parent was an unsuitable
person to have such custody.” Id. Heltzel and Hunter
instruct that the presumption in favor of Smith’s care
and custody of his son protects his right to seek the
child’s custody despite Davion’s established custodial
environment with the Frowners. Smith bears no evi-
dentiary burden prerequisite to opening the courtroom
doors. As stated by our Supreme Court in Hunter,
“when these presumptions conflict, the presumption in
MCL 722.27(1)(c) must yield to the presumption in
maintained in the Frowners’ home, the circuit court’s ruling precludes
Smith from ever obtaining custody of his son.
2012] F
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385
MCL 722.25(1).” Hunter, 484 Mich at 264. Because
Smith’s ability to pursue custody of his child is essential
to his constitutional right to parent, the circuit court
erred by conditioning Smith’s right to enter the pursuit
on his establishment of proper cause or a change in
circumstances.
Accordingly, we remand to the circuit court for a
best-interests hearing to be commenced within 28 days
of the issuance of this opinion. The circuit court may
award Davion’s continuing custody to the Frowners
only if it determines that the Frowners have established
by clear and convincing evidence that it is not in
Davion’s best interests under the factors specified in
MCL 722.23 for Smith to have custody. To make this
showing, the Frowners must prove that “ ‘all relevant
factors, including the existence of an established custo-
dial environment and all legislatively mandated best
interest concerns within [MCL 722.23], taken together
clearly and convincingly demonstrate that the child’s
best interests require’ ” Davion’s placement with them
rather than Smith. Hunter, 484 Mich at 279 (emphasis
added; citation omitted).
Reversed and remanded for proceedings consistent
with this opinion. We vacate the order awarding attor-
ney fees to the Frowners, and decline to assess costs
against either party. We do not retain jurisdiction.
B
ORRELLO
,P.J., and B
ECKERING
, J., concurred with
G
LEICHER
,J.
386 296 M
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MORACCINI v CITY OF STERLING HEIGHTS
Docket No. 301678. Submitted March 7, 2012, at Detroit. Decided May 1,
2012, at 9:00 a.m. Leave to appeal denied, 492 Mich 870.
Antonio Moraccini filed an action in the Macomb Circuit Court,
alleging that the city of Sterling Heights had negligently main-
tained a curb cutout within its jurisdiction. Moraccini had been
injured when the wheels on his three-wheeled motor scooter
struck concrete defects and irregularities in the curb cutout
adjacent to a county road. The alleged defects were located at the
base of the area where the contractor had chipped or cut out the
raised portion of the existing curb to bring the road flush with the
sidewalk as required by MCL 125.1361 (sidewalk construction
requirements related to persons with disabilities). Sterling
Heights moved for summary disposition, arguing that Macomb
County was responsible because the fall was the result of a defect
in the curb and gutter portion of Macomb County’s roadway and
that Sterling Heights was thus entitled to governmental immu-
nity. The court, John C. Foster, J., denied the motion. Sterling
Heights appealed.
The Court of Appeals held:
1. A governmental agency can be held liable under the govern-
mental tort liability act, MCL 691.1401 et seq., if an action falls
into one of the enumerated exceptions to governmental immunity,
including the highway exception. Read together, MCL 691.1402(1),
as amended by 1999 PA 205, and MCL 691.1402a, as amended by
1999 PA 205, effectively granted municipalities jurisdiction over
sidewalks adjacent to a county highway for purposes of repair,
maintenance, and any associated liability and mandated that they
maintain them in reasonable repair. The highway exception to
governmental immunity applies if (1) the municipality knew, or in
the exercise of reasonable diligence should have known, of the
existence of the defect in a sidewalk, trailway, crosswalk, or other
installation outside the improved portion of the highway designed
for vehicular travel and (2) the defect was the proximate cause of
the injury, death, or damage.
2. The circuit court correctly determined that Moracinni could
assert the highway exception to governmental immunity, MCL
M
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691.1402, and properly denied Sterling Heights summary disposi-
tion. The cutout abutted the county highway and qualified as a
sidewalk under the general statutory definition of “highway” in
MCL 691.1401(e) and as an installation for purposes of MCL
691.1402a(1). The curb cutout was not an improved portion of the
highway designed for vehicular travel, it constituted a path for
pedestrians that was designed to facilitate pedestrian use by
persons with physical disabilities, and it qualified as part or an
extension of a sidewalk because it was designed to make pedes-
trian travel easier for all individuals.
Affirmed.
G
OVERNMENTAL
I
MMUNITY —
H
IGHWAY
E
XCEPTION —
S
IDEWALKS —
C
URB
C
UT-
OUTS
.
Municipalities effectively have jurisdiction over sidewalks adjacent
to a county highway for purposes of repair, maintenance and
associated liability and must maintain them in reasonable repair;
the highway exception to governmental immunity applies if (1) the
municipality knew, or in the exercise of reasonable diligence
should have known, of the existence of the defect in a sidewalk,
trailway, crosswalk, or other installation outside the improved
portion of the highway designed for vehicular travel and (2) the
defect was the proximate cause of an injury, death, or damage; a
curb cutout adjacent to a county highway qualifies as a sidewalk
under the general statutory definition of “highway” and as an
installation for purposes of the highway exception (MCL
691.1401[e]; 691.1402[1], as amended by 1999 PA 205;
691.1402a[1], as amended by 1999 PA 205).
Ishbia & Gagleard, P.C. (by Michael A. Gagleard and
Michelle S. Toma), for Antonio Moraccini.
O’Reilly Rancilio P.C. (by Lauren DuVal Donofrio)
for the city of Sterling Heights.
Before: M
URPHY
, C.J., and H
OEKSTRA
and M
URRAY
,JJ.
M
URPHY
, C.J. Defendant, the city of Sterling Heights,
appeals as of right an order denying its motion for sum-
mary disposition in this tort liability action concerning an
injury sustained by Antonio Moraccini that was allegedly
caused by defects in a city sidewalk. The city asserted
388 296 M
ICH
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387 [May
governmental immunity as an affirmative defense and
argued that the alleged defects pertained to a highway
curb, not a sidewalk, which therefore fell within the
jurisdiction of the county and not the city for purposes of
the highway exception to governmental immunity, MCL
691.1402. We affirm, holding as a matter of law that,
under MCL 691.1402a(1),
1
the site of the alleged defects
constituted a portion of a county highway, i.e., part of an
abutting sidewalk or other installation, existing outside
the improved portion of the county highway designed
for vehicular travel. Accordingly, the city is potentially
liable under MCL 691.1402a, and the summary dispo-
sition motion was properly denied.
Plaintiff, Antonio Moraccini, alleged that he was
operating his three-wheeled motorized scooter when
the wheels of the scooter struck concrete defects and
irregularities, catapulting him from the scooter to the
ground and causing severe injuries. Moraccini described
the concrete where the scooter’s wheels became
jammed as being uneven, damaged, and unstable, with
deep cracks and crevices. Moraccini had been traveling
down a sidewalk on the scooter and was about to cross
a road, which indisputably fell within the jurisdiction of
the county, when the accident occurred. The sidewalk
was constructed by the city in 1977, and the contractor
who built the sidewalk chipped or cut out the raised
portion of the existing curb to bring the road flush with
the sidewalk as required by MCL 125.1361.
2
The alleged
defects were located at the base of the area comprising
the curb cutout.
1
MCL 691.1402a was amended by 2012 PA 50, effective March 13,
2012. The amended version of the statute, which limits its application
solely to “a sidewalk...installed adjacent to a municipal, county, or state
highway,” is not applicable here, considering the effective date of the
amendment and the earlier date of the incident.
2
MCL 125.1361 provides in relevant part:
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Moraccini filed suit, alleging negligence and assert-
ing that the city had failed to keep the sidewalk in
reasonable repair so as to make it reasonably safe and
convenient for public travel. The city answered, alleg-
ing, in part, that it was shielded by governmental
immunity. The city subsequently filed a motion for
summary disposition pursuant to MCR 2.116(C)(7)
(claim barred by immunity) and (10) (no genuine issue
of material fact). The city conceded that it had jurisdic-
tion over the sidewalk and was required to keep the
sidewalk in reasonable repair. The city contended, how-
ever, that discovery had shown that Moraccini “fell as a
result of an alleged defective condition in the curb and
gutter portion of Macomb County’s roadway....”The
city argued that the county had jurisdiction over the
road and the area of the curb cutout and that the
sidewalk did not include the curb cutout. Therefore,
according to the city, the defective-highway exception to
governmental immunity, MCL 691.1402, did not apply.
Moraccini countered that the curb cutout was part of
the sidewalk, thereby making it the city’s responsibility
under MCL 691.1402. The trial court agreed with
Moraccini and denied the city’s motion for summary
disposition, ruling that it was “persuaded that the area
in question served as an extension of the sidewalk,
particularly since there [was] no evidence that it was
used for vehicular traffic.”
A sidewalk constructed or reconstructed after April 12, 1973 on
public or private property for public use within this state, whether
constructed by a public agency or a person, firm, corporation,
nonprofit corporation, or organization, shall be constructed in a
manner that will facilitate use by persons with physical disabili-
ties. At points of intersection between pedestrian and motorized
lines of travel, and at other points when necessary to avoid abrupt
changes in grade, a sidewalk shall slope gradually to street level so
as to provide an uninterrupted line of travel.
390 296 M
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This Court reviews 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). The
applicability of governmental immunity and the statu-
tory exceptions to immunity are also reviewed de novo
on appeal. Snead v John Carlo, Inc, 294 Mich App 343,
354; 813 NW2d 294 (2011). MCR 2.116(C)(7) provides
for summary disposition when a claim is “barred be-
cause of...immunity granted by law....”Themoving
party may submit affidavits, depositions, admissions, or
other documentary evidence in support of the motion if
substantively admissible. Odom v Wayne Co, 482 Mich
459, 466; 760 NW2d 217 (2008). The contents of the
complaint must be accepted as true unless contradicted
by the documentary evidence. Id. We must consider the
documentary evidence in a light most favorable to the
nonmoving party for purposes of MCR 2.116(C)(7).
RDM Holdings, Ltd v Continental Plastics Co, 281 Mich
App 678, 687; 762 NW2d 529 (2008). “If there is no
factual dispute, whether a plaintiff’s claim is barred
under a principle set forth in MCR 2.116(C)(7) is a
question of law for the court to decide.” Id. But when a
relevant factual dispute does exist, summary disposi-
tion is not appropriate. Id.
Except as otherwise provided, the governmental tort
liability act (GTLA), MCL 691.1401 et seq., broadly
shields and grants to governmental agencies immunity
from tort liability when an agency is engaged in the
exercise or discharge of a governmental function. MCL
691.1407(1); Duffy v Dep’t of Natural Resources, 490
Mich 198, 204; 805 NW2d 399 (2011); Grimes v Dep’t of
Transp, 475 Mich 72, 76-77; 715 NW2d 275 (2006).
“The existence and scope of governmental immunity
was solely a creation of the courts until the Legislature
enacted the GTLA in 1964, which codified several
exceptions to governmental immunity that permit a
2012] M
ORACCINI V
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plaintiff to pursue a claim against a governmental
agency.” Duffy, 490 Mich at 204. A governmental
agency can be held liable under the GTLA only if a case
falls into one of the enumerated statutory exceptions.
Grimes, 475 Mich at 77; Stanton v Battle Creek, 466
Mich 611, 614-615; 647 NW2d 508 (2002). An activity
that is expressly or impliedly authorized or mandated
by constitution, statute, local charter, ordinance, or
other law constitutes a governmental function. Maskery
v Univ of Mich Bd of Regents, 468 Mich 609, 613-614;
664 NW2d 165 (2003). This Court gives the term
“governmental function” a broad interpretation, but
the statutory exceptions must be narrowly construed.
Id. at 614. “A plaintiff filing suit against a governmental
agency must initially plead his claims in avoidance of
governmental immunity.” Odom, 482 Mich at 478-479.
At the relevant time, the highway exception to gov-
ernmental immunity provided in pertinent part:
Except as otherwise provided in [MCL 691.1402a], each
governmental agency having jurisdiction over a highway
shall maintain the highway in reasonable repair so that it
is reasonably safe and convenient for public travel. A
person who sustains bodily injury or damage to his or her
property by reason of failure of a governmental agency to
keep a highway under its jurisdiction in reasonable repair
and in a condition reasonably safe and fit for travel may
recover the damages suffered by him or her from the
governmental agency. The liability, procedure, and remedy
as to county roads under the jurisdiction of a county road
commission shall be as provided in section 21 of chapter IV
of 1909 PA 283, MCL 224.21. The duty of the state and the
county road commissions to repair and maintain highways,
and the liability for that duty, extends only to the improved
portion of the highway designed for vehicular travel and
does not include sidewalks, trailways, crosswalks, or any
other installation outside of the improved portion of the
392 296 M
ICH
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387 [May
highway designed for vehicular travel. [MCL 691.1402, as
amended by 1999 PA 205 (emphasis added).]
[
3
]
At the time of the incident, “highway” was statuto-
rily defined as “a public highway, road, or street that is
open for public travel and includes bridges, sidewalks,
trailways, crosswalks, and culverts on the highway [and
it]...does not include alleys, trees, and utility poles.”
MCL 691.1401(e), as amended by 2001 PA 131 (empha-
sis added).
4
MCL 691.1402(1) imposed a general duty on
municipalities to keep sidewalks under their jurisdic-
tion in reasonable repair. Jones v Enertel, Inc, 467 Mich
266, 268; 650 NW2d 334 (2002). “[W]hile MCL
691.1402(1) exempts state and county road commis-
sions from liability for injuries resulting from defective
sidewalks, municipalities are not exempt; municipali-
ties do have a duty to maintain sidewalks in reasonable
repair.” Robinson v City of Lansing, 486 Mich 1, 7; 782
NW2d 171 (2010). “[W]hen MCL 691.1402(1) and MCL
691.1401(e) [definition of highway] are read together, it
is clear that all governmental agencies except the state
and county road commissions have a duty to maintain
sidewalks in reasonable repair.” Id. at 8.
As indicated in the prefatory language of MCL
691.1402(1), the statute applied except as otherwise
provided in MCL 691.1402a. In relevant part, MCL
691.1402a(1) previously provided:
Except as otherwise provided by this section, a munici-
pal corporation has no duty to repair or maintain, and is
3
Unless otherwise indicated, all references to MCL 691.1402 are to the
statute as amended by 1999 PA 205, the version in effect at the time of
the incident.
4
The amendments of this provision by 2012 PA 50 are only stylistic in
nature. Unless otherwise indicated, all references to MCL 691.1401 are to
the statute as amended by 2001 PA 131, the version in effect at the time
of the incident.
2012] M
ORACCINI V
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not liable for injuries arising from, a portion of a county
highway outside of the improved portion of the highway
designed for vehicular travel, including a sidewalk, trail-
way, crosswalk, or other installation. This subsection does
not prevent or limit a municipal corporation’s liability if
both of the following are true:
(a) At least 30 days before the occurrence of the relevant
injury, death, or damage, the municipal corporation knew
or, in the exercise of reasonable diligence, should have
known of the existence of a defect in a sidewalk, trailway,
crosswalk, or other installation outside of the improved
portion of the highway designed for vehicular travel.
(b) The defect described in subdivision (a) is a proximate
cause of the injury, death, or damage.
[
5
]
We hold that MCL 691.1402a, in conjunction with
MCL 691.1402(1), governs the proper analysis of this
case. The location where the accident took place was
subject to the general authority and control of Macomb
County, which is the reason that the county had to
grant a permit to the city to allow installation of the
sidewalk.
6
However, MCL 691.1402a(1) made it abun-
5
MCL 691.1402a(1), as added by 1999 PA 205. Subsection (2) of the
statute contained the two-inch rule. MCL 691.1402a(2); see generally
Robinson, 486 Mich at 10, 13 (noting that a municipality is not liable for
damages arising from a depression in a sidewalk that does not exceed 2
inches in depth). Subsection (3) of the statute contained a liability
limitation pertaining to off-road recreational vehicles (ORVs). MCL
691.1402a(3); Robinson, 486 Mich at 11 n 9 (recognizing that municipali-
ties are not liable for injuries resulting from the use of off-road vehicles
absent gross negligence). Unless otherwise indicated, all references to
MCL 691.1402a are to the statute as added by 1999 PA 205, the version
in effect at the time of the incident.
6
There was documentary evidence indicating that in 1974, the Ma-
comb County Road Commission granted the city a “permit to contract,
operate, use and/or maintain within the right-of-way.” The permit
allowed the city to install sidewalks. Under the permit, the city was
required to operate and maintain the sidewalks it installed. As stated
earlier, in 1977 the city hired a contractor who installed the sidewalk and
created the curb cutout.
394 296 M
ICH
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387 [May
dantly clear that a municipal corporation
7
can nonethe-
less be held liable, upon satisfaction of the knowledge
and proximate cause provisions, for a failure to repair
or maintain that “portion of a county highway outside
of the improved portion of the highway designed for
vehicular travel, including a sidewalk...or other in-
stallation.” (Emphasis added.) Thus, there was a gen-
eral duty of municipal corporations to repair and main-
tain the areas subject to the enumerated conditions,
effectively giving municipal corporations jurisdiction
for purposes of repair, maintenance, and any associated
liability.
8
MCL 691.1402a and its relationship to MCL
691.1402(1) were examined in Robinson, 486 Mich at
11-13, 22, wherein the Court stated:
Although the very first sentence of MCL 691.1402a(1)
begins by stating that a municipality is not liable for
injuries arising from a portion of a county highway outside
the improved portion of the highway designed for vehicular
travel, including a sidewalk, trailway, crosswalk, or other
installation, this sentence is prefaced by the language
“[e]xcept as otherwise provided by this section,” and the
very next sentence of this subsection states that a munici-
pality is liable for such injuries under certain circum-
7
A “municipal corporation” was defined as “a city, village, or township
or a combination of 2 or more of these when acting jointly.” MCL
691.1401(a). Accordingly, the city is a municipal corporation for purposes
of MCL 691.1402a(1).
8
On the issue of jurisdiction in relationship to governmental immunity,
this Court in Carr v City of Lansing, 259 Mich App 376, 381; 674 NW2d
168 (2003), observed:
A governmental agency must have jurisdiction over a highway
for it to be liable under the highway exception for breaching its
duty to maintain a highway “in reasonable repair so that it is
reasonably safe and convenient for public travel.” An agency has
jurisdiction when it has control over the highway....[O]nly one
agency may have jurisdiction for purposes of liability under the
highway exception....[Citations omitted.]
2012] M
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stances. That is, a municipality is liable for injuries arising
from a defective sidewalk adjacent to a county highway if
(a) the municipality knew or should have known at least 30
days before the occurrence of the injury of the existence of
the defect in the sidewalk and (b) that defect was a
proximate cause of the injury. MCL 691.1402a(1). In addi-
tion, MCL 691.1402a(2) provides that a discontinuity de-
fect of less than 2 inches creates a rebuttable inference that
the municipality maintained the sidewalk in reasonable
repair, as is required by MCL 691.1402(1); this is the
statutory two-inch rule.
As discussed earlier, MCL 691.1402(1) imposes liability
on municipalities for injuries resulting from defective side-
walks, i.e., sidewalks that the municipality has failed to
maintain in reasonable repair. However, MCL 691.1402a
limits this liability by providing that municipalities are
only liable for injuries resulting from defective sidewalks
adjacent to county highways under the specified circum-
stances....[W]hen MCL 691.1402(1) and MCL 691.1402a
are read together, it is clear that municipalities are gener-
ally liable for injuries resulting from defective sidewalks.
***
. . . MCL 691.1402a does not apply to sidewalks adjacent
to highways other than county highways, such as sidewalks
adjacent to state highways. [Citations omitted.]
In this case, the area in dispute is adjacent to and
abuts a county highway, and while Robinson concerned
a sidewalk, MCL 691.1402a(1) also spoke of “other
installation[s]” outside the improved portion of the
highway designed for vehicular travel.
MCL 691.1402a, which was added by 1999 PA 205,
and took effect December 21, 1999, was enacted to limit
municipal liability relative to injuries occurring caused
by defective sidewalks, trailways, crosswalks, and other
installations located within portions of a county high-
way, because the county’s liability was limited under
396 296 M
ICH
A
PP
387 [May
MCL 691.1402(1) to improved portions designed for
vehicular traffic and caselaw had developed that im-
posed broad liability on municipalities for such defects
in the remaining portions of the county highway. In
Listanski v Canton Twp, 452 Mich 678, 681; 551 NW2d
98 (1996), a case predating MCL 691.1402a, our Su-
preme Court addressed the issue “whether townships
can be held liable under MCL 691.1402...forinjuries
occurring on public sidewalks abutting county roads
within the townships’ boundaries.” The Court held
“that townships have jurisdiction over public sidewalks
located along county roads within the township suffi-
cient to support a cause of action against the township
under the highway exception for failure to maintain
them in reasonable repair.” Id. at 682.
9
The Listanski
Court reasoned and concluded:
After analyzing the Michigan Constitution, statutes,
and common law on this issue, we believe that the Legis-
lature intended municipalities to retain reasonable control
over sidewalks within their boundaries, as long as the
control pertains to local concerns and does not interfere
with the state or counties’ control over their highways....
[O]ur conclusion is consistent with public policy and the
overall legislative scheme. It treats townships the same as
cities, and ensures that those persons injured on township
sidewalks abutting a county road are not within the only
class of persons without a remedy against a governmental
agency. Because we believe the Legislature intended town-
ships to be subject to liability for injuries occurring as a
result of a failure to maintain sidewalks within their
9
We also note Mason v Wayne Co Bd of Comm’rs, 447 Mich 130, 136 n 6;
523 NW2d 791 (1994), in which the Court stated that the purpose behind
the language in MCL 691.1402(1), which limited the state and counties’
liability to defects in the improved portion of a highway designed for
vehicular travel, “is to allocate responsibility for sidewalks and cross-
walks to local governments, including townships, cities, and villages.”
2012] M
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boundaries, we would remand these cases to their respec-
tive circuit courts for trial. [Id. at 690-691 (emphasis
added).]
[
10
]
Subsequently, the Legislature enacted MCL
691.1402a, and we note for historical background pur-
poses the following commentary in House Legislative
Analysis, HB 4010, January 4, 2000, with respect to the
proposed act:
The statute [MCL 691.1402] does not directly address
the liability of local governments for sidewalks, etc.
alongside...county roads, but the courts have rendered
decisions on the matter.... [I]n a recent decision,
Listanski v Canton Township (1996), the Michigan Su-
preme Court said townships are liable for injuries occur-
ring on sidewalks abutting county roads within their
boundaries. This decision overturned a court of appeals
decision saying townships were not liable because they lack
sufficient jurisdiction. (Townships must seek approval
from the county in order to construct, repair, or maintain
sidewalks along county roads.) The state supreme court
said its decision, “treats townships the same as cities, and
ensures that those persons injured on township sidewalks
abutting a county road are not within the only class of
persons without a remedy against a government agency.”
Legislation has been introduced to address the liability of
municipalities for “installations” alongside county roads.
***
The bill would provide protection to townships, cities, and
villages against “slip and fall” and similar lawsuits on
sidewalks, bikepaths, trailways, and similar installations
10
The Listanski Court also observed, “Additionally, there is no reason
in logic or policy for the Legislature to have...retained city responsibil-
ity to repair and maintain sidewalks along city roads, but eliminated city
and township responsibility for repair and maintenance of sidewalks
along state or county roads.” Listanski, 452 Mich at 687 n 10 (citation
omitted).
398 296 M
ICH
A
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387 [May
along the side of county highways. It limits liability to
instances in which [knowledge, causation, and two-inch
rule provisions are set forth][.]
With respect to MCL 691.1402a(1), the question that
must be answered in the case at bar is whether the
concrete base of the area comprising the so-called curb
cutout (hereafter simply referred to as the “curb cut-
out”) constituted a portion of the county highway
falling outside the improved portion of the highway
designed for vehicular travel, which includes sidewalks
or other installations. We initially conclude that the
curb cutout was not an improved portion of the highway
designed for vehicular travel. Clearly, the curb cutout
was designed to make pedestrian travel easier for all
individuals, not for ease in vehicular travel. We shall,
however, review a couple of cases addressing curbs in
general.
In Meek v Dep’t of Transp, 240 Mich App 105, 113;
610 NW2d 250 (2000), a highway-design-defect case,
this Court held that a “barrier curb must be considered
part of the improved portion of the highway designed
for vehicular travel and comes within the highway
exception to governmental immunity.” The Meek panel,
in support of its holding, relied on Gregg v State Hwy
Dep’t, 435 Mich 307, 314-315; 458 NW2d 619 (1990), in
which our Supreme Court ruled that a highway shoul-
der is part of the improved portion of the highway
designed for vehicular travel. Meek, 240 Mich App at
114. However, in Grimes, 475 Mich at 84, the Michigan
Supreme Court “overrule[d] Gregg and its progeny to
the extent that they can be read to suggest that a
shoulder is ‘designed for vehicular travel.’ ”
11
(Empha-
11
We note that Meek was also effectively overruled by Hanson v
Mecosta Co Rd Comm’rs, 465 Mich 492, 502; 638 NW2d 396 (2002),
which held that the highway exception to governmental immunity “does
2012] M
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sis added.) The Grimes Court held that “only the travel
lanes of a highway are subject to the duty of repair and
maintenance specified in MCL 691.1402(1).” Id. at 91.
The curb cutout here was not part of the highway’s
travel lanes. Accordingly, Meek cannot serve as a basis
to reject our conclusion that the curb cutout does not
constitute an improved portion of the highway designed
for vehicular travel.
In Sharp v Benton Harbor, 292 Mich App 351; 806
NW2d 760 (2011), the plaintiff stepped onto a curb that
abutted a city street and the curb allegedly crumbled,
causing the plaintiff to fall to the ground.
12
The plaintiff
sued the defendant, the city of Benton Harbor, which
acknowledged jurisdiction over the curb. In a motion for
summary disposition, Benton Harbor argued that the
curb did not come within the definition of “highway.”
Id. at 352. This Court held that a curb falls under the
statutory definition of “highway” and “that govern-
mental immunity does not bar a claim against a mu-
nicipality arising from a defective curb.” Id. at 357. The
Court concluded “that the curb framing [the] [s]treet
constitutes an integral part of the road, and that
Benton Harbor bore responsibility for maintain-
ing...[the] curb in reasonable repair.” Id. at 358. We
note that Sharp dealt with a curb that “was neither at
the corner nor within a crosswalk” and that “[a] grass
verge separated the curb from the sidewalk.” Id. at 352.
We additionally note that the abutting road in Sharp
was not a county roadway, but a city street. Sharp did
not address MCL 691.1402a, as an abutting county road
not include a duty to design, or to correct defects arising from the original
design or construction of highways.”
12
A “curb” is defined in the dictionary as “ ‘a rim, [especially] of joined
stones or concrete, along a street or roadway, forming an edge for a
sidewalk.’ ” Sharp, 292 Mich App at 356, quoting The Random House
Dictionary of the English Language, Second Edition Unabridged.
400 296 M
ICH
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387 [May
was not at issue, nor did the panel, as expressly indi-
cated, have to concern itself with whether the curb was
part of the improved portion of the highway designed
for vehicular travel, given that the defendant was not a
county or the state. Id. at 353. Sharp does lend support
for the proposition that a curb cutout falls within the
general definition of “highway.”
Having concluded that the curb cutout did not con-
stitute an improved portion of the county highway
designed for vehicular travel, the final question to be
answered is whether the curb cutout otherwise quali-
fied as a portion of the county highway under MCL
691.1402a(1), i.e., whether it constituted an abutting
“sidewalk, trailway, crosswalk, or other installation.”
The curb cutout abutted the county highway, and we
believe that it falls within the definition of “highway”
pursuant to Sharp and that it also constituted an
“installation” for purposes of MCL 691.1402a(1). An
“installation” is defined as “something installed, as
machinery or apparatus placed in position or connected
for use.” Random House Webster’s College Dictionary
(2001). While we have a fairly unique set of circum-
stances in which the original curb was simply cut into,
as opposed to the common situation in which a curb and
sidewalk are designed, poured, and constructed to flow
together in order to accommodate pedestrian traffic,
there remains a concrete base, or remnants thereof,
that fits within the broad definition of an “installation”
and that is comparable in kind, character, and nature to
a sidewalk, crosswalk, or trailway. See Neal v Wilkes,
470 Mich 661, 669; 685 NW2d 648 (2004) (“Under the
statutory construction doctrine known as ejusdem gen-
eris, where a general term follows a series of specific
terms, the general term is interpreted ‘to include only
things of the same kind, class, character, or nature as
those specifically enumerated.’ ”) (citation omitted).
2012] M
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401
Just like a sidewalk, crosswalk, and trailway, a curb
cutout is an area, and part of a pathway or walkway,
that is traversed by pedestrians, and to the extent that
a full curb might be considered an obstacle to the flow
of pedestrian traffic, the curb itself does not exist for
purposes of a curb cutout. The goal in removing or not
constructing sections of curb in areas where sidewalks
abut roadways is to create obstacle-free, level walkways
for pedestrians. Curb cutouts are specifically designed
for pedestrian traffic and, contrary to the city’s argu-
ment, they are not comparable to highway shoulders,
which are neither designed nor intended for pedestrian
travel, despite occasional use by pedestrians, often in
emergency situations.
13
Moreover, we also find that the
curb cutout qualified as a “sidewalk” for purposes of the
general definition of “highway” and in relationship to
the term’s use in MCL 691.1402a(1).
“[A] sidewalk is a path for pedestrians along the side
of a road.” Hatch v Grand Haven Twp, 461 Mich 457,
464; 606 NW2d 633 (2000).
14
We conclude that the curb
13
The city argues that a “short curb” still exists in the curb cutout
areas at issue, noting lines of demarcation that are generally present in
the concrete. Even were we to use the terminology “short curb,” it would
not change our analysis, given that the area, regardless of its moniker, is
designed and used for pedestrian traffic. As such, a “short curb”
constitutes an “installation” for purposes of the former version of MCL
691.1402a, as it is similar to a sidewalk, crosswalk, and trailway.
14
The Court cited with approval definitions of “sidewalk” set forth by this
Court in Stabley v Huron-Clinton Metro Park Auth, 228 Mich App 363, 367;
579 NW2d 374 (1998), which included “a path for pedestrians, usually
paved, along the side of a street,” a “walk or raised path for pedestrians,”
and “part of a public street or highway designed for the use of pedestrians.”
Hatch, 461 Mich at 462 (citations and quotation marks omitted). We note
that with the enactment of 2012 PA 50, the Legislature specifically added a
definition of “sidewalk,” which provides that “sidewalk” means “a paved
public sidewalk intended for pedestrian use situated outside of and adjacent
to the improved portion of a highway designed for vehicular travel.” MCL
691.1401(f), as amended by 2012 PA 50.
402 296 M
ICH
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387 [May
cutout where the alleged defects existed was part or an
extension of the sidewalk, given that it constituted a
path for pedestrians and was designed and intended to
be used by pedestrians. The whole purpose behind curb
cutouts is to facilitate pedestrian use “by persons with
physical disabilities.” MCL 125.1361. As indicated ear-
lier, MCL 125.1361 provides that “[a]t points of inter-
section between pedestrian and motorized lines of
travel,...a sidewalk shall slope gradually to street
level so as to provide an uninterrupted line of travel.”
Absent a curb as mandated by MCL 125.1361, a side-
walk would naturally extend to the motorized line of
travel, encompassing the area where the curb was
formerly located or where it typically would be located.
A curb cutout is conducive, and is intended to be
conducive, to pedestrian travel, and it qualifies as part
or an extension of the sidewalk.
Whether constituting a sidewalk or an installation,
or a combination thereof, the curb cutout was indeed a
portion of the county highway not designed for vehicu-
lar travel, thereby falling within the parameters of MCL
691.1402a(1).
With respect to whether the city knew or should have
known about the alleged defects 30 days before the
occurrence, whether the alleged defects were the proxi-
mate cause of plaintiff’s injuries, and whether the
statutory two-inch rule has any application, MCL
691.1402a(1) and (2), these are all matters outside the
scope of this appeal and may be raised by the city in the
trial court.
Affirmed. Having prevailed in full, plaintiff is
awarded taxable costs pursuant to MCR 7.219.
H
OEKSTRA
and M
URRAY
, JJ., concurred with M
URPHY
,
C.J.
2012] M
ORACCINI V
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403
PEOPLE v ACOSTA-BAUSTISTA
Docket No. 303015. Submitted April 10, 2012, at Lansing. Decided May 1,
2012, at 9:05 a.m.
Valeriano Acosta-Baustista was charged in the 55th District Court
with a violation of MCL 257.904(4), which makes it a felony for a
person to cause the death of another person while operating a
motor vehicle in violation of MCL 257.904(1). MCL 257.904(1)
provides that the following may not operate a vehicle upon the
public highways or other places open to the general public or
generally accessible to motor vehicles: (1) a person whose opera-
tor’s license has been suspended or revoked, (2) a person whose
application for a license has been denied, or (3) a person who has
never applied for a license. Defendant, an illegal alien, was
operating a truck with an expired Mexican-issued license when he
struck another vehicle, resulting in that driver’s death. There was
no allegation that defendant was negligent. The court, Donald L.
Allen, Jr., J., determined that there was probable cause to believe
that defendant was guilty of violating MCL 257.904(4) and bound
defendant over to the Ingham Circuit Court. The circuit court,
William E. Collette, J., reversed the district court’s order, quashed
the bindover, and ordered that the charge be dismissed. The
prosecution appealed.
The Court of Appeals held:
1. MCL 257.904(1) and (4) do not apply to or penalize a person
driving a motor vehicle with a valid, but recently expired license
that was never suspended or revoked. The limiting language in
MCL 257.904(4) exempts from its penalties a person whose motor
vehicle operator’s or chauffer’s license was suspended because
that person failed to answer a citation or comply with an order or
judgment and makes clear that the statute is to be applied to
persons whose licenses were suspended because of unsafe or illegal
driving, not those whose licenses were suspended for administra-
tive reasons unrelated to their driving records.
2. Pursuant to articles VI and VII of the Convention on the
Regulation of Inter-American Automotive Traffic 1943, the United
States and Mexico have reciprocity with each other so that a
person licensed in one country is allowed to operate a motor
404 296 M
ICH
A
PP
404 [May
vehicle in the other country while using that foreign license. A
person’s immigration status does not affect the driving privileges
afforded by the convention or the manner in which MCL
257.904(4) is applied. MCL 257.904(4) applies equally regardless of
whether the motor vehicle operator is driving pursuant to a license
from Michigan, a foreign country that is a signatory to the
convention, or one of the other 49 states. To hold otherwise would
necessitate making an improper policy decision. The circuit court
properly quashed the bindover and ordered the charge dismissed
because the evidence did not demonstrate probable cause that
defendant violated MCL 257.904(4)
Affirmed.
1. C
RIMINAL
L
AW —
M
OTOR
V
EHICLES —
E
XPIRED
L
ICENSE —
O
PERATION OF
M
OTOR
V
EHICLES WITH
S
USPENDED OR
R
EVOKED
D
RIVER
’
S
L
ICENSE
.
Under MCL 257.904(1) and (4), a person whose motor vehicle
operator’s license has been suspended or revoked, a person whose
application for a license has been denied, or a person who has
never applied for a license is guilty of a felony if he or she operates
a motor vehicle on the public highways or other places open to the
general public or generally accessible to motor vehicles and by that
operation causes the death of another person; MCL 257.904(1) and
(4) do not apply to or penalize a person driving a motor vehicle
with an expired license.
2. C
RIMINAL
L
AW —
M
OTOR
V
EHICLES —
E
XPIRED
L
ICENSE —
F
OREIGN
L
ICENSE
.
Pursuant to articles VI and VII of the Convention on the Regulation
of Inter-American Automotive Traffic 1943, the United States and
Mexico have reciprocity with each other so that a person licensed
in one country is allowed to operate a motor vehicle in the other
country while using that foreign license; a person’s immigration
status does not affect the driving privileges afforded by the
convention or the application of MCL 257.904(1) and (4), which
prohibit operating a motor vehicle with a suspended or revoked
license or without having applied for a license and by that
operation causing another’s death.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Stuart J. Dunnings, III, Prosecuting
Attorney, and Joseph B. Finnerty, Appellate Division
Chief, for the people.
Jonathon Toby White, PLC (by Stephanie R. Farman),
for defendant.
2012] P
EOPLE V
A
COSTA
-B
AUSTISTA
405
Before: H
OEKSTRA
,P.J., and S
AWYER
and S
AAD
,JJ.
P
ER
C
URIAM
. The prosecution appeals as of right the
circuit court order granting defendant’s motion to
quash his bindover after the district court found that
there was probable cause to believe that defendant was
guilty of operating a vehicle in violation of MCL
257.904(4). The circuit court held that there was no
probable cause and ordered that the charge be dis-
missed. Because we conclude that the plain language of
MCL 257.904(4) does not include persons driving with
an expired license, we affirm.
This case arises from a fatal automobile accident. On
September 3, 2009, the driver’s side door of Adam
Nevells’s automobile was struck by a pickup truck
driven by defendant as Nevells pulled out of the Oke-
mos High School parking lot onto Jolly Road. Nevells
died as a result of the injuries he received in the crash;
he was the only occupant of the vehicle. It was later
determined by police that defendant had the right of
way and that defendant’s effort to stop before striking
Nevells’s vehicle left a 30-foot skid mark on the road
leading to the crash site. No negligence on defendant’s
part was alleged. It was also not disputed that defen-
dant possessed an operator’s license originating in
Mexico that had expired on May 27, 2009.
Defendant was charged with violating MCL
257.904(4), which makes it a felony offense for a person
who has never applied for a license or a person with a
suspended or revoked license to operate a motor vehicle
and by that operation cause the death of another
person. A preliminary examination was held on Decem-
ber 2, 2010. On the basis of the evidence establishing
the facts discussed earlier, the district court concluded
that there was probable cause to bind defendant over
for a felony trial.
406 296 M
ICH
A
PP
404 [May
In the circuit court, defense counsel moved to quash
the bindover on the ground that defendant did not
violate MCL 257.904 because there was no evidence
that he had been driving on a suspended or revoked
license or that he had failed to apply for a license or
been denied one. Defense counsel stressed that Mexico
and the United States have an agreement whereby each
country honors a license issued by the other. The
reciprocity between Mexico and the United States in
this regard is not disputed by the parties on appeal. The
relevant reciprocity agreement is set forth in articles VI
and VII of the Convention on the Regulation of Inter-
American Automotive Traffic 1943.
Defense counsel alternatively argued in the circuit
court that there was insufficient evidence to show
proximate causation. In response, the prosecutor ar-
gued that defendant was in violation of MCL 257.904
because he had no valid license and additionally urged
the circuit court to interpret MCL 257.904 as imposing
strict liability on the causation element. The circuit
court agreed with defendant on both grounds and
ordered that the charge against him be dismissed. This
appeal ensued.
On appeal, regarding defendant’s license status, the
prosecution argues that the circuit court erred by
dismissing the charge because the evidence was suffi-
cient to establish probable cause that defendant was in
violation of MCL 257.904(4).
The issues raised in this case require that we interpret
MCL 257.904. We review de novo issues of statutory
interpretation. People v Hrlic, 277 Mich App 260, 262; 744
NW2d 221 (2007). “The purpose of statutory interpreta-
tion is to give effect to the intent of the Legislature.”
People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997).
If a statute is clear, it must be enforced as written. Id.
2012] P
EOPLE V
A
COSTA
-B
AUSTISTA
407
When interpreting a statute, we do not speculate
about the probable intent of the Legislature beyond the
words expressed in the statute. In re Schnell, 214 Mich
App 304, 310; 543 NW2d 11 (1995). “Nothing will be
read into a clear and unambiguous statute that is not
within the manifest intent of the Legislature as derived
from the language of the statute itself.” People v Miller,
288 Mich App 207, 210; 795 NW2d 156 (2010). Accord-
ingly, the statutory language itself is the best indicator
of the statute’s scope. Id.
Defendant was charged with a violation of MCL
257.904(4), which provides in pertinent part: “A person
who operates a motor vehicle in violation of subsection
(1) and who, by operation of that motor vehicle, causes
the death of another person is guilty of a felony....”
MCL 257.904(1) provides:
A person whose operator’s or chauffeur’s license or
registration certificate has been suspended or revoked and
who has been notified as provided in [MCL 257.212] of that
suspension or revocation, whose application for [a] license
has been denied, or who has never applied for a license,
shall not operate a motor vehicle upon a highway or other
place open to the general public or generally accessible to
motor vehicles, including an area designated for the park-
ing of motor vehicles, within this state.
We observe that MCL 257.904(1) is carefully worded to
identify precisely what licensing deficiencies are punish-
able. The plain language of the statute applies to persons
who never apply for a license or who obtain one but
subsequently have the license suspended or revoked be-
cause of improper driving. In the first instance, the person
has never been adjudged fit to drive. In the second
instance, the person has specifically been adjudged unfit
to drive. In contrast, a person with a valid license who has
simply let it lapse is a person adjudged fit to drive who has
merely failed to keep up the related paperwork.
408 296 M
ICH
A
PP
404 [May
MCL 257.904(1) and (4) apply to and penalize a
person whose operator’s license “has been suspended or
revoked,” a person “whose application for [a] license
has been denied,” or a person “who has never applied
for a license.” Defendant’s status as a person driving on
a valid but recently expired license is not included in the
plain statutory language. The fact that defendant’s
license was never suspended or revoked was not con-
tested; further, it was not contested that defendant
never applied for a Michigan driver’s license and was
never denied a driver’s license for which he did apply.
Rather, defendant had applied for and was granted a
Mexican driver’s license.
The language in MCL 257.904(4) is instructive be-
cause it exempts from its penalties “a person whose
operator’s or chauffeur’s license was suspended because
that person failed to answer a citation or comply with
an order or judgment....” This language limits the
application of the statute to persons driving on licenses
that were suspended because of unsafe or illegal driv-
ing, not merely those suffering suspension for adminis-
trative reasons unrelated to their driving records. For
these reasons, we conclude that MCL 257.904(1) does
not include licensed drivers whose licenses have merely
expired, and accordingly, we conclude that the penalties
of MCL 257.904(4) do not apply to persons driving with
expired licenses.
The prosecution does not directly disagree with this
interpretation of MCL 257.904(4). Instead the prosecu-
tion focuses its argument on an interpretation predi-
cated on defendant’s status as an illegal alien. Specifi-
cally, the prosecution argues that defendant is in
violation of the statute because he never applied for a
Michigan driver’s license and, as an illegal alien, defen-
dant would not be entitled to a Michigan driver’s license
2012] P
EOPLE V
A
COSTA
-B
AUSTISTA
409
if he were to apply for one. Accordingly, the prosecution
argues, defendant is a person “who never applied for a
license” in violation of MCL 257.904(1) and is conse-
quently subject to MCL 257.904(4).
Defendant responds by asserting that the prosecu-
tion’s argument fails because pursuant to the Conven-
tion on the Regulation of Inter-American Automotive
Traffic 1943, defendant was not required to apply for a
Michigan driver’s license because his Mexican license is
recognized in Michigan. The prosecution asserts that
the convention does not excuse defendant from his
failure to apply for a Michigan license because he was in
the United States illegally and, consequently, should
not be extended the privilege of driving set forth in the
convention. According to the prosecution, because de-
fendant cannot rely on the convention for lawful driving
privileges in Michigan, he was required to obtain a
Michigan driver’s license and his failure to apply for one
subjects him to prosecution pursuant to MCL
257.904(1) as a person who has “never applied.”
We are not persuaded by the prosecution’s attempt to
draw a distinction on the basis of an individual’s
immigration status in regard to the privileges extended
by the Convention on the Regulation of Inter-American
Automotive Traffic 1943 and the application of MCL
257.904. First, we observe that the prosecution cites no
authority to support its position that defendant’s immi-
gration status affects whether he may be prosecuted
under MCL 257.904. Moreover, the prosecution admits
that the convention is silent with respect to immigra-
tion status. Similarly, MCL 257.904 does not make any
reference to, let alone a distinction, regarding driving
privileges based on immigration status. There simply is
no statutory language or case authority to support the
410 296 M
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prosecution’s contention that defendant’s immigration
status is a relevant consideration regarding the appli-
cation of MCL 257.904.
Under these circumstances, the prosecution is urging
us to impose a policy decision regarding the application
of MCL 257.904 to illegal aliens. Because there is no
basis either in law or in the language of the statute to
hold that immigration status is relevant to the applica-
tion of MCL 257.904, accepting the prosecution’s argu-
ment would constitute our making a policy decision,
which is a function reserved to the Legislature. People v
McIntire, 461 Mich 147, 152; 599 NW2d 102 (1999)
(“ ‘Because our judicial role precludes imposing differ-
ent policy choices than those selected by the Legisla-
ture, our obligation is, by examining the statutory
language, to discern the legislative intent that may
reasonably be inferred from the words expressed in the
statute.’ ”) (citations omitted).
Therefore, we conclude that the plain language of the
statute and the convention support a finding that the
reasoning underlying MCL 257.904(1) and (4) is not
affected by the motor vehicle operator’s immigration
status and will remain the same regardless of whether
the motor vehicle operator is driving pursuant to a
license from Michigan, a foreign country that is a
signatory to the convention, or one of the other 49
states.
The evidence presented at the preliminary hearing
established that defendant was driving on a Mexican-
issued license as permitted by the convention, and the
fact that defendant’s license was expired at the time of
the accident does not make MCL 257.904 applicable.
Consequently, the circuit court did not err when it
granted defendant’s motion to quash the bindover
2012] P
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because this evidence does not demonstrate probable
cause to believe that defendant is guilty of violating
MCL 257.904(4).
1
Affirmed.
H
OEKSTRA
,P.J., and S
AWYER
and S
AAD
, JJ., concurred.
1
In light of our resolution of this issue, we need not reach the question
of causation.
412 296 M
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PEOPLE v SMITH-ANTHONY
Docket No. 300480. Submitted December 13, 2011, at Detroit. Decided
May 3, 2012, at 9:00 a.m. Leave to appeal granted, 493 Mich 879.
Chandra Valencia Smith-Anthony was convicted by a jury in the
Oakland Circuit Court of larceny from the person, MCL 750.357,
and was sentenced to a term of 4 to 20 years in prison by the court,
Michael D. Warren, Jr., J. While monitoring closed-circuit televi-
sion for Macy’s in the Northland Mall, the store’s loss-prevention
detective observed defendant acting suspiciously while shopping
and proceeded to follow defendant while keeping her within visual
range. The loss-prevention detective saw defendant select a per-
fume box set from a display and slip it into one of her bags. The
detective overheard defendant decline help from sales associates
and verified that she had not paid for the fragrance. Defendant
appealed.
The Court of Appeals held:
To establish larceny from a person, the prosecution must prove
beyond a reasonable doubt (1) the taking of someone else’s
property without consent, (2) movement of the property, (3) the
intent to steal or permanently deprive the owner of the property,
and (4) that the property was taken from the person or the
person’s immediate area of control or immediate presence. The
crime of theft from the person is an aggravated offense because it
is a crime against both a person and a person’s property rights.
Punishment for a conviction of larceny from the person is en-
hanced over that for a simple larceny because violating a person’s
privacy or personal space could result in a violent confrontation.
The prosecution failed to present sufficient evidence to support
defendant’s conviction of larceny from the person. There was no
evidence that the loss-prevention detective ever possessed the
perfume box or that it was in the detective’s immediate presence
or control when defendant pushed the box into her bag or at any
other point during the larceny. Larceny from the person is not
accomplished if the victim and the perpetrator are merely in sight
or hearing range of each other.
Reversed.
W
HITBECK
, J., dissenting, stated that viewing the testimony in a
2012] P
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413
light most favorable to the prosecution, there was sufficient
evidence to support defendant’s conviction because defendant was
in the loss-prevention detective’s immediate area of control or
immediate presence when defendant took the box and stuffed it
into her bag. The loss-prevention detective, as the employee
responsible for protecting the store’s property, had a right to
possess the property that was superior to defendant’s unless she
paid for it. The prosecution did not have to prove that the
victim—the detective—owned the property, only that the detec-
tive’s right was superior to defendant’s. The loss-prevention
detective’s testimony established that the detective was close
enough to see defendant commit the larceny and hear defendant
speak to other employees, and thus that defendant was as a matter
of law within the detective’s immediate area of control or imme-
diate presence.
C
RIMINAL
L
AW —
L
ARCENY
F
ROM THE
P
ERSON —
E
LEMENTS —
P
ROXIMITY TO
V
ICTIM
.
Larceny from the person requires the prosecution to prove (1) the
taking of someone else’s property without consent, (2) movement
of the property, (3) the intent to steal or permanently deprive the
owner of the property, and (4) that the property was taken from
the person or from the person’s immediate area of control or
immediate presence; larceny from the person is not accomplished
if the victim and the perpetrator are merely in sight or hearing
range of each other (MCL 750.357).
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Jessica R. Cooper, Prosecuting Attor-
ney, Thomas R. Grden, Appellate Division Chief, and
Matthew A. Fillmore, Assistant Prosecuting Attorney,
for the people.
Law Office of John D. Roach, Jr., PLC (by John D.
Roach, Jr.), for defendant.
Before: S
HAPIRO
,P.J., and W
HITBECK
and G
LEICHER
,J.
G
LEICHER
, J. Defendant, Chandra Valencia Smith-
Anthony, placed a $58 box of fragrance in a shopping
bag and left the Macy’s department store in Northland
Mall without paying for it. After completing her larceny
414 296 M
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and leaving the store, defendant engaged in a scuffle
with a store security officer. A jury acquitted defendant
of unarmed robbery but convicted her of larceny from
the person in violation of MCL 750.357. Because the
statute punishes “stealing from the person of another”
and defendant’s conduct does not fall within that defi-
nition, we reverse.
I. FACTUAL BACKGROUND
While monitoring a closed-circuit television in Macy’s
loss-prevention office, Khai Krumbhaar, a loss-
prevention detective, observed defendant “darting her
eyes around and holding her handbags very, very
closely.” Krumbhaar believed that defendant looked
suspicious, and paid close attention to the television
monitors as defendant traversed the aisles. In the
women’s fragrance department, Krumbhaar saw defen-
dant select “a large gold White Diamonds box,” priced
at $58, from a display. Krumbhaar walked from her
office vantage point to an area within “visual range” of
defendant and “kept watching her” while pretending to
be just another shopper. Under Krumbhaar’s surveil-
lance, defendant carried the White Diamonds box to the
women’s shoe department, sat down, and tried on some
shoes. Defendant then rose from her seat and while
making her way to the optical department, pushed the
box into her shopping bag. After stopping to verify that
defendant had not paid for the fragrance, Krumbhaar
followed in pursuit. As defendant browsed near the
fashion jewelry area, Krumbhaar “stayed back giving
her some space.” Krumbhaar then caught sight of
defendant “walking very quickly” out of the store.
Krumbhaar confronted defendant approximately 30 or
35 feet into the mall surrounding the store, and the two
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scuffled. Krumbhaar claimed that during the struggle,
defendant bit and scratched Krumbhaar’s arm.
The prosecution charged defendant with unarmed
robbery, MCL 750.530, second-degree retail fraud, sec-
ond or subsequent offense, MCL 750.356d(4), and pos-
session of marijuana, MCL 333.7403(2)(d). On the day
of trial, the prosecution dismissed the marijuana and
retail-fraud charges.
1
The jury acquitted defendant of
unarmed robbery, but convicted her of the lesser offense
of larceny from the person, MCL 750.357. The court
subsequently sentenced defendant to 4 to 20 years’
imprisonment.
II. ANALYSIS
Defendant argues that the prosecution presented no
evidence that she stole any item from the person of
another and therefore failed to sufficiently support the
convicted offense. When reviewing a defendant’s chal-
lenge to the sufficiency of the evidence, we review “the
evidence in a light most favorable to the prosecutor to
determine whether any trier of fact could find the
essential elements of the crime were proven beyond a
reasonable doubt.” People v Robinson, 475 Mich 1, 5;
715 NW2d 44 (2006). We review de novo underlying
issues of statutory interpretation. People v Tennyson,
487 Mich 730, 735; 790 NW2d 354 (2010). We must
apply the plain, unambiguous language of a statute as
written and may only engage interpretative tools when
the statutory language is equally susceptible to more
than one meaning. People v Valentin, 457 Mich 1, 5-6;
577 NW2d 73 (1998).
1
The prosecution likely dismissed the second-degree retail-fraud
charge because the statute proscribes the theft of items priced between
$200 and $1,000. See MCL 750.356d(1)(b).
416 296 M
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The statute at issue in this case could not be simpler.
It provides: “Any person who shall commit the offense
of larceny by stealing from the person of another shall be
guilty of a felony, punishable by imprisonment in the
state prison not more than 10 years.” MCL 750.357
(emphasis added). To establish a larceny-from-the-
person charge beyond a reasonable doubt, the prosecu-
tion must prove “(1) the taking of someone else’s
property without consent, (2) movement of the prop-
erty, (3) with the intent to steal or permanently deprive
the owner of the property, and (4) the property was
taken from the person or from the person’s immediate
area of control or immediate presence.” People v Perkins,
262 Mich App 267, 271-272; 686 NW2d 237 (2004), aff’d
473 Mich 626 (2005) (emphasis added).
In People v Adams, 128 Mich App 25, 31-32; 339
NW2d 687 (1983), this Court explained that separate
and distinct policies animate the statutes punishing
simple larceny and larceny from the person:
[T]he Legislature decided that larceny from a person
presents a social problem separate and apart from simple
larceny. This separate social problem must be the invasion
of the person or immediate presence of the victim, because
that is what distinguishes larceny from a person and simple
larceny. Because the Legislature clearly intended the stat-
ute defining the crime of larceny from a person to protect
the person or immediate presence of the victim from inva-
sion, the Legislature clearly intended to permit a separate
conviction for each victim whose person or immediate
presence is invaded. [Emphasis added; citation omitted.]
In United States v Payne, 163 F3d 371, 375 (CA 6,
1998), the United States Court of Appeals for the Sixth
Circuit construed larceny from the person in violation
of MCL 750.357 as “a crime that creates a substantial
risk of physical harm to another.” The Sixth Circuit
reasoned:
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Michigan law interprets “from the person” narrowly to
require that the property be taken from the possession of
the victim or be taken from within the immediate presence
or area of control of the victim. This is clearly the type of
situation that could result in violence. Any person falling
victim to a crime involving such an invasion of personal
space would likely resist or defend in a manner that could
lead to immediate violence. [Id.]
Thus, theft from the person constitutes an aggravated
offense because of its hybrid nature as a crime against
both a person and a person’s property rights.
The larceny-from-the-person statute punishes pick-
pockets, purse- and wallet-snatchers, and others who
invade the person or “immediate presence” of the
victim to accomplish a theft. See People v Gould, 384
Mich 71, 80; 179 NW2d 617 (1970); Perkins, 262 Mich
App at 272. Indirect contact with the victim may also
constitute larceny from the person. For example, a thief
who snatches a suitcase that the victim has momen-
tarily set down while hailing a cab commits larceny
from the person, as does a customer who snatches a
diamond ring from a tray presented by a jeweler for
inspection. In both instances, the theft instills fear or
places a resistant victim in danger. The statute en-
hances punishment in these situations precisely be-
cause violating a person’s privacy or personal space
results in a risk of violent confrontation. Perkins, 262
Mich App at 272.
The prosecution presented no evidence that defen-
dant committed larceny from Krumbhaar’s person
when she stole the fragrance box from Macy’s. No
testimony supported that Krumbhaar ever possessed
the fragrance box or that the merchandise was in
Krumbhaar’s area of immediate presence or control at
any point during the larceny. When defendant first
removed the White Diamonds box from the display,
418 296 M
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Krumbhaar sat in an office around the corner from the
women’s fragrance department, watching the event on
closed-circuit television. As defendant made her way
through Macy’s with the box in hand, Krumbhaar
remained “in visual range.” But Krumbhaar never
testified that she was even within an arm’s length of
defendant or that defendant knew Krumbhaar was
nearby. Nor does the record substantiate that Krumb-
haar was within defendant’s “immediate presence”
when defendant pushed the perfume box into her
brown grocery bag, completing the act of larceny. See
People v Randolph, 466 Mich 532, 549; 648 NW2d 164
(2002) (“[W]hen defendant placed the merchandise
under his clothing, he committed a taking without
force, and his conduct constituted a completed lar-
ceny.”).
2
Although Krumbhaar could see defendant
commit the larceny, the prosecution failed to establish
that defendant was ever close enough to Krumbhaar to
invade Krumbhaar’s personal space.
3
2
Krumbhaar testified that she “was able to stay fairly close” to
defendant in the fragrance department. In our view, that testimony does
not describe being within defendant’s “immediate presence.” Defendant
completed her larceny in the shoe department. Krumbhaar’s location at
that point is not mentioned in the record. No testimony supports that
before defendant left the store, Krumbhaar was ever close enough to
defendant to have touched her or to have snatched the box from
defendant’s hands.
3
We note that the plain and unambiguous statutory language punishes
larceny committed “from the person.” Other courts construing identical
statutory language have rejected the “immediate presence” gloss added
in Gould. See Terral v State, 84 Nev 412, 414; 442 P2d 465 (1968) (“The
crime is not committed if the property is taken from the immediate
presence, or constructive control or possession of the owner. Other crimes
may be committed in those circumstances, but not the crime of larceny
from the person. The statutory words ‘from the person’ mean precisely
that.”) (citations omitted); State v Crowe, 174 Conn 129, 134; 384 A2d
340 (1977) (“In our view, larceny from the person requires an actual
trespass to the person of the victim.”).
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We respectfully disagree with the dissent’s proposi-
tion that larceny from the person may be accomplished
if the victim and the perpetrator are merely in sight or
hearing range of each other. Post at 428-429. Proof of
“stealing from the person of another” requires more
than vague proximity between victim and perpetrator.
See People v Gadson, 348 Mich 307, 308-310; 83 NW2d
227 (1957) (overturning a larceny-from-the-person con-
viction when the prosecution failed to establish beyond
a reasonable doubt that the defendant took the money
from the victim’s person rather than simply “surrepti-
tious[ly] taking” the money after it fell from the vic-
tim’s pocket). As interpreted by our Supreme Court in
Gould, the statute protects property on a victim’s
person or within a victim’s “immediate” custody and
control, and the prosecution must present proof beyond
a reasonable doubt of that proximity element. Gould,
384 Mich at 80.
Further, we find no support in any jurisdiction’s
caselaw for the dissent’s broad definition of “immediate
presence.” To the extent that the dissent relies on
Gould, we believe that reliance is misplaced. The defen-
dant and the codefendants in Gould entered a restau-
rant, announced a holdup, and forced a waitress and a
customer to lie on the floor of another room. Gould, 384
Mich at 73-74. The robbers took $77 from a cash
register and a cigar box and $7 from the customer’s
wallet. Id. at 74. A jury convicted the defendant of
larceny from the person. Id. at 73. This Court had
reversed the defendant’s conviction because “ ‘the
criminal information on which defendant was tried
alleges only the taking of the money from the cash
register and cigar box in the presence of the waitress.’ ”
Id. at 74-75, quoting People v Gould, 15 Mich App 83,
86-87; 166 NW2d 530 (1968). A majority of this Court
determined that because the information omitted ref-
420 296 M
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erence to the theft from the customer’s wallet, “ ‘lar-
ceny from the person was not an included offense.’ ”
Gould, 384 Mich at 75, quoting Gould, 15 Mich App at
92. No objection to the information had been raised in
the trial court. Gould, 384 Mich at 76.
The Supreme Court reversed, citing four different
reasons. First, the Supreme Court determined that the
information adequately alleged the theft from the cus-
tomer’s wallet. Id. at 76-77. Second, the Court held that
the defendant qualified as an “accessory” to the theft
from the wallet. Id. at 78. Third, the Court noted that
MCL 767.76 provides that a conviction may not be
reversed “on account of any defect in form or substance
of the indictment” unless an objection was made “prior
to the commencement of the trial or at such time
thereafter as the court shall in its discretion permit.”
Id. Finally, the Supreme Court held “that the taking of
property in the possession and immediate presence of
the waitress and customer in this case was sufficient to
sustain a verdict against defendant Gould of larceny
from the person.” Id. at 80. In contrast with Gould,no
testimony in this case supports a finding that Krumb-
haar ever got close enough to the White Diamonds box
to immediately possess it or that defendant stole the
item while invading Krumbhaar’s person or encroach-
ing on her “immediate presence.”
4
We do not imply that defendant’s conduct of resisting
detention or stealing the store’s merchandise was law-
ful; defendant’s conduct simply did not implicate the
larceny-from-the-person statute. The prosecution could
4
We further find the dissent’s reliance on People v Beebe, 70 Mich App
154; 245 NW2d 547 (1976), misplaced. In Beebe, this Court construed the
armed robbery statute, which at the time applied to armed thefts from a
victim’s person “or in his presence.” Unlike the statutory prohibition of
larceny from the person, the armed robbery statute protects an area
outside the victim’s personal space.
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have easily established that defendant committed third-
degree retail fraud. See MCL 750.356d(4)(b) (proscrib-
ing the theft of merchandise priced less than $200).
Defendant’s violent actions during her attempted es-
cape also potentially fell within the ambit of the
transactional-unarmed-robbery statute. That statute
specifically proscribes the use of “force or violence
against any person who is present” or assaulting or
putting a victim in fear while “in flight or attempted
flight after the commission of the larceny, or in an
attempt to retain possession of the property.” MCL
750.530. However, the jury acquitted defendant of un-
armed robbery, and we may not second-guess its judg-
ment. See United States v Scott, 437 US 82, 91; 98 S Ct
2187; 57 L Ed 2d 65 (1978) (noting that reconsideration
of a jury’s judgment of acquittal violates a criminal
defendant’s constitutional protection against double
jeopardy). We must take the charges as we find them,
and defendant’s actions did not support a charge, let
alone a conviction, under the plain language of the
larceny-from-the-person statute.
Reversed.
S
HAPIRO
,P.J., concurred with G
LEICHER
,J.
W
HITBECK
,J.(dissenting). The majority here decides
that defendant, Chandra Valencia Smith-Anthony, did
not commit larceny from the person of another
1
because
her conduct did not fall within the definition of that
crime. I disagree, and I respectfully dissent.
This is a case with only one witness, a Macy’s loss-
prevention detective named Khai Krumbhaar. Krumb-
haar’s uncontradicted testimony established that Smith-
Anthony selected a box of White Diamonds perfume from
1
MCL 750.357.
422 296 M
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a display in the women’s fragrance department at Macy’s,
then walked through other areas of the store, ultimately
pushed the White Diamonds box into a bag, and left the
store without paying for the perfume.
As the majority sets out, the statute provides, “Any
person who shall commit the offense of larceny by
stealing from the person of another shall be guilty of a
felony, punishable by imprisonment in the state prison
not more than 10 years.”
2
Larceny from the person is a
lesser included offense of robbery,
3
and it is “the lack of
force or violence [that] distinguishes larceny from a
person from the offense of robbery.”
4
The operative
phrase in the statute is “from the person of another,”
and the courts have interpreted this phrase as meaning
that the property that is the subject of the larceny must
be “taken from the person or from the person’s imme-
diate area of control or immediate presence.”
5
The person in question here is Krumbhaar, as caselaw
holds that a defendant may be found guilty of robbery, or
the lesser included offense of larceny from the person, if
the defendant takes property owned by a business (such
as Macy’s) in the immediate presence of an employee
(such as Krumbhaar) who oversees or protects the prop-
erty.
6
As a loss-prevention detective, Krumbhaar clearly
oversees and protects Macy’s property.
2
Id. (emphasis added).
3
People v Beach, 429 Mich 450, 484; 418 NW2d 861 (1988).
4
People v Perkins, 262 Mich App 267, 272; 686 NW2d 237 (2004), aff’d
473 Mich 626 (2005).
5
Id. at 271-272 (stating that the elements of larceny from the person
are “(1) the taking of someone else’s property without consent, (2)
movement of the property, (3) with the intent to steal or permanently
deprive the owner of the property, and (4) the property was taken from
the person or from the person’s immediate area of control or immediate
presence”).
6
People v Gould, 384 Mich 71, 80; 179 NW2d 617 (1970); See People v
Rodgers, 248 Mich App 702, 712-713; 645 NW2d 294 (2001) (noting that
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But there is no assertion, and no evidence, that
Smith-Anthony took the White Diamonds box from
Krumbhaar’s actual person. The only question, then, is
whether there was sufficient evidence for a jury to
conclude that when Smith-Anthony took the White
Diamonds box and stuffed it into her bag, she was in
Krumbhaar’s “immediate area of control or immediate
presence.” (I agree with the majority’s view that Smith-
Anthony completed the act of larceny when she placed
the White Diamonds perfume in her shopping bag.)
Viewing Krumbhaar’s testimony, as we must, in a light
most favorable to the prosecution,
7
I believe there was
sufficient evidence to support the guilty verdict that the
jury returned on the charge of larceny from the person,
a guilty verdict for which the trial court sentenced
Smith-Anthony as a third-offense habitual offender
8
to
4 to 20 years in prison. I would affirm the jury’s verdict
and the trial court’s sentence.
I. FACTS
I accept the majority’s statement of facts with one
major exception, which relates to Krumbhaar’s testi-
mony about what happened after she observed Smith-
Anthony’s “nervous” behavior on the monitor in the
loss-prevention office. At the risk of being tedious, I set
out Krumbhaar’s testimony verbatim:
Q. Okay, and so based on her behaviors what, if any-
thing, did you do?
for purposes of an armed robbery analysis, the court must consider
whether an employee had a greater right to the property than the
defendant).
7
People v Tombs, 472 Mich 446, 459; 697 NW2d 494 (2005); People v
Ericksen, 288 Mich App 192, 196; 793 NW2d 120 (2010).
8
MCL 769.11.
424 296 M
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A. Based on her behaviors I turned the monitor to follow
her as she watched—walked through the men’s depart-
ment and approached the men’s fragrance counter.
Q. Okay, and then what did you see?
A. At the men’s fragrance counter I observed her appar-
ently in conversation with one of the associates.
Q. Okay.
A. She placed her bag on the counter, stood there with
the associate for several minutes and then took her bag and
walked from the men’s fragrance department into the
women’s fragrance department.
Q. Okay. Now, are you still in the office where the closed
circuit television is at this point?
A. At this point I was.
Q. And at that time in the morning were there any other
loss prevention officers on duty at that time?
A. There were not. The next detectives didn’t come in
until 11:00.
Q. Okay. So what happened next after you saw this
person or this female go into the female or the women’s
fragrance section?
A. I noticed the lady walk from the men’s fragrance
department around into the women’s fragrance depart-
ment. In that department she walked around the outside of
the area and then walked to a White Diamonds fragrance
display and she selected a large gold White Diamonds box.
Q. Okay, White Diamonds is a cologne—
A. It’s a—
Q. —or perfume?
A. It’s a fragrance.
Q. Okay, and you said that she selected a large gold gift
box?
A. Yes, Ma’am.
Q. Okay, so it wasn’t just a single box containing one
bottle, it was a larger box?
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A. It was a larger box that has one fragrance bottle and
then three various creams that are all scented with White
Diamonds.
Q. Okay. What, if anything, did you do at that point?
A. At that point, based on her behavior and based on the
fact that I was the only detective on at the time, I went to
the floor to gain floor observation. My office is right around
the corner from where the women’s fragrance department
is.
It took me fifteen, twenty seconds to get in visual range
of her again and she still had the box in her hand.
Q. Okay. Now, now at this point the box is visible and in
her hand?
A. Yes.
Q. Okay. When you say that you went to floor to gain
sight of her—
A. Yes.
Q. —what did you do once you made it to the floor?
A. Because we’re plain clothes detectives I pretended
to—that I was shopping in the area and kept visual—I kept
watching her.
Q. Is that part of your role as a loss prevention officer?
This is something that you do—
A. Yes.
Q. —routinely?
A. We wear plain clothes.
Q. I’m sorry, what?
A. We wear plaint [sic] clothes, we just wear normal
clothes like we’re shopping.
Q. Okay.
A. So I was able to stay fairly close to her in the fragrance
department without attract—without her noticing me.
Q. And what, if anything, did you observe?
426 296 M
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,J.
A. I observed—I observed two different associates ap-
proach her and offer assistance and she both times said that
she did not need assistance. She walked from the women’s
fragrance department into the women’s shoes department
and sat down. There, I saw one of the sales people approach
her and she asked for a pair of shoes—
Q. Okay.
A. —and she tried on some shoes in the women’s shoes
department. At that point she had her tote bag and the
plastic shopping bag and the White Diamonds gift box next
to her on a chair.
Q. Okay, and what, if anything, did you notice at that
point?
A. At that point she still was—she still looked very, very
nervous. She was moving a little bit jerkily and she was still
kind of pulling the gift box close to her and she was kind of
edging it towards her bags.
Q. What happened next?
A. She got up from her chair in the shoe department and
she picked up all of her bags and the gift box and she was
holding the gift box down near the opening of the brown
shopping bag.
Q. Okay.
A. And she walked—she rose, she got up from her chair
and she walked through women’s shoes into the—
(undecipherable)—op—optical and at that point she
pushed the bag down—or the box down into her shopping
bag.
Q. Okay. Now when you’re talking about the shopping
bag are you referring to the tote bag that you described or
are you referring to the brown transparent—is that the
word you used, transparent?
A. Yes.
Q. The brown grocery bag?
A. The grocery bag.
2012] P
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,J.
Q. The brown grocery bag, okay. And what happened
next?
A. At that point it was in the grocery bag but the box
was larger than the bag so I could still see about half the box
sticking out. At that point she walked around the corner
from optical into fashion jewelry and I—I followed her
through women’s shoes and I stopped to check that she had
not purchased the shoe—or the box there. I had not observed
her passing money or credit cards.
Q. Okay.
A. So I knew that she hadn’t paid for the box.
Q. Okay. And then what happened?
A. I followed her around fashion jewelry and she stopped
and stood there for a minute, so I stayed back giving her
some space. There were several open registers nearby so I
wanted to see if she was going to pay for it, but she did not,
she went out walking very quickly, she walked out our
fashion jewelry door and out—
Q. Okay, now when you—
A. —into the mall.
Q. I’m sorry?
A. She walked out into the mall.
[
9
]
There are several things that stand out from this
testimony. First, Krumbhaar personally, and not
through the monitor in Macy’s loss-prevention office,
saw Smith-Anthony in the women’s fragrance depart-
ment with the White Diamonds box in her hand. In
other words, Smith-Anthony was within Krumbhaar’s
line of sight.
Second, Krumbhaar got “fairly close” to Smith-
Anthony while she was in the women’s fragrance de-
partment. In fact, Krumbhaar was close enough to hear
9
Emphasis added.
428 296 M
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two different salespersons approach Smith-Anthony
and offer assistance and to hear Smith-Anthony decline
assistance both times.
Third, Krumbhaar followed Smith-Anthony as she
walked into the women’s shoe department and re-
mained close enough to Smith-Anthony that she could
hear Smith-Anthony when she asked for a pair of shoes.
Fourth, Krumbhaar saw Smith-Anthony place the
White Diamonds box into a bag she was carrying, the
point at which the majority concludes that Smith-
Anthony completed her act of larceny. In fact, Krumbhaar
was close enough to Smith-Anthony to observe that about
half of the White Diamonds box was sticking out of the
bag.
Fifth, Krumbhaar continued to follow Smith-
Anthony through the store and out into the mall, and
remained close enough that she was able to observe that
Smith-Anthony did not pass money or credit cards to
pay for the perfume she carried in her bag.
These facts are undisputed. Indeed, I note that defense
counsel devoted no time in cross-examination to the
question of Krumbhaar’s physical location at the time
Smith-Anthony placed the White Diamonds box in her
bag. With these facts in mind, the issue remains the same:
Was there sufficient evidence for a jury to conclude beyond
a reasonable doubt that Smith-Anthony was within
Krumbhaar’s “immediate area of control or immediate
presence” when Smith-Anthony completed the larceny at
Macy’s by placing the White Diamonds box in her bag?
II. SUFFICIENCY OF THE EVIDENCE
A. STANDARD OF REVIEW
As I noted, when reviewing the sufficiency of the
evidence, this Court reviews the evidence de novo in the
2012] P
EOPLE V
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429
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,J.
light most favorable to the prosecution.
10
This Court
determines whether a rational trier of fact could find
that the essential elements of the crime were proved
beyond a reasonable doubt.
11
B. LEGAL STANDARDS
Again, as I noted, to establish that “the property was
taken from the person or from the person’s immediate
area of control or immediate presence,”
12
the prosecu-
tion does not have to show that the victim owned the
property taken.
13
Rather, the prosecution need only
present sufficient evidence to show that the victim’s
right to possess the property was superior to the defen-
dant’s right to possess it.
14
A defendant may be found
guilty of robbery, or the lesser included offense of
larceny from the person, if the defendant takes property
owned by a business in the immediate presence of an
employee who oversees or protects the property.
15
Thus,
the jury here could find Smith-Anthony guilty of lar-
ceny from the person if it could reasonably find that she
took the White Diamonds box, owned by Macy’s, in the
immediate presence of an employee, Krumbhaar, who
oversaw and protected that property.
C. ANALYSIS
1. CLEARING THE UNDERBRUSH
There is undisputed evidence that at the time of the
crime in question, Macy’s owned the perfume gift set
10
Tombs, 472 Mich at 459; Ericksen, 288 Mich App at 196.
11
Ericksen, 288 Mich App at 196.
12
Perkins, 262 Mich App at 272.
13
Rodgers, 248 Mich App at 711.
14
Id.
15
Gould, 384 Mich at 80; Rodgers, 248 Mich App at 712-713.
430 296 M
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,J.
and that Krumbhaar was a Macy’s loss-prevention
detective. As a Macy’s loss-prevention detective, Krum-
bhaar was an employee responsible for protecting Ma-
cy’s property.
16
Therefore, Krumbhaar’s right to possess
the property was superior to Smith-Anthony’s right to
possess the property before paying for it.
17
The majority blurs the basic issue by asserting that no
testimony “supported that Krumbhaar ever possessed the
fragrance box....” But the prosecution never asserted
that Krumbhaar physically possessed the White Dia-
monds box. Caselaw makes it absolutely clear, it is Krum-
bhaar’s right to possess the property—as an employee
responsible for protecting Macy’s property—that is the
basic underpinning of the case. And it is also absolutely
clear that Krumbhaar’s right to possess the White Dia-
monds box was superior to that of Smith-Anthony.
2. IMMEDIATE AREA OF CONTROL OR IMMEDIATE PRESENCE
The majority asserts that “[a]lthough Krumbhaar
could see defendant commit the larceny, the prosecutor
failed to establish that defendant ever came close enough
to Krumbhaar to invade Krumbhaar’s personal space.”
Without speculating about the meaning of the words
“personal space” in this context, I find nothing in Krum-
bhaar’s testimony that supports this assertion. I note that
in performing our review function, this Court is not to
make decisions regarding a witness’s credibility. The jury
found Krumbhaar to be credible regarding what occurred
within the Macy’s store, and we are not to invade the
province of that jury.
18
Further, we are not to determine,
when reviewing a criminal conviction on sufficiency of the
16
See Gould, 384 Mich at 80; Rodgers, 248 Mich App at 712-713.
17
See Rodgers, 248 Mich App at 712.
18
People v Petrosky, 286 Mich 397, 400; 282 NW 191 (1938).
2012] P
EOPLE V
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,J.
evidence grounds, whether we would have reached the
same result as the jury had we been sitting as jurors.
19
Rather, our review is limited to the question of whether
there was sufficient evidence from which a rational trier of
fact could find that the essential elements of the crime
were proved beyond a reasonable doubt.
20
Krumbhaar’s testimony established that she was
“fairly close” to Smith-Anthony. In fact, she was close
enough not only to see Smith-Anthony but also to hear
her twice decline assistance from salespersons in the
women’s fragrance department and to hear Smith-
Anthony when she asked for a pair of shoes in the
women’s shoe department. Viewing this testimony in a
light most favorable to the prosecution, I conclude that
there was sufficient evidence from which a jury could
find that the prosecution had proved beyond a reason-
able doubt that Smith-Anthony was in Krumbhaar’s
“immediate area of control or immediate presence”.
In my view, when a loss-prevention detective, whose
job it is to protect his or her employer’s property, is close
enough to a defendant to see that defendant commit the
crime of larceny from the person and to actually hear
that defendant speak to other employees in the store,
the defendant is as a matter of law within the loss-
prevention detective’s immediate area of control or
immediate presence.
21
Thus, given that both of these
criteria are satisfied here, there was sufficient evidence
to support the jury’s verdict.
I would affirm.
19
See People v Lemmon, 456 Mich 625, 637; 576 NW2d 129 (1998)
(noting that a judge does not sit as a thirteenth juror regarding witness
credibility).
20
Ericksen, 288 Mich App at 196.
21
See People v Beebe, 70 Mich App 154, 159; 245 NW2d 547 (1976).
432 296 M
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,J.
PEOPLE v BRAGG
Docket No. 305140. Submitted February 9, 2012, at Detroit. Decided May 8,
2012, at 9:00 a.m.
Samuel D. Bragg was charged in the 34th District Court with
first-degree criminal sexual conduct. At the preliminary examina-
tion, evidence was presented that in 2007 he had sexually as-
saulted his then nine-year-old cousin. The court, Brian A. Oakley,
J., bound defendant over to the Wayne Circuit Court on the
charged offense, in part because of the testimony of John Va-
prezsan, defendant’s pastor who had testified that defendant,
while still a minor, confessed the crime during a meeting with
Vaprezsan, defendant, and defendant’s mother. The circuit court,
Cynthia Gray Hathaway, J., affirmed the bindover decision on the
basis of the victim’s testimony, but determined that the district
court had abused its discretion by admitting the pastor’s testi-
mony in violation of the cleric-congregant privilege. The circuit
court ruled that the privilege applied to exclude Vaprezsan’s
testimony, and the prosecution appealed.
The Court of Appeals held:
1. Under MCL 600.2156, a minister of the gospel, priest of any
denomination, or an accredited Christian Science practitioner may
not disclose confessions made to the minister, priest, or practitio-
ner in his or her professional character, in the course of discipline
enjoined by the rules or practice of the denominations. The
evidentiary privilege of MCL 767.5a(2) provides that any commu-
nications between members of the clergy and members of their
respective churches are privileged and confidential when those
communications were necessary to enable members of the clergy
to serve as such member of the clergy.
2. Both MCL 600.2156 and MCL 767.5a(2) address a witness’s
duty to testify upon a court’s summons and those situations in
which that testimony is excused or not allowed. The Legislature’s
use of the broad term “disclose” indicates that MCL 600.2156
precludes a cleric from revealing certain covered statements to
anyone, not just before a court of law. MCL 767.5a(2) is more
specific, however, and uses specific legal terms to declare that any
covered communications are privileged and confidential. Reading
2012] P
EOPLE V
B
RAGG
433
the statutes together, MCL 600.2156 applies only to confessions,
broadly precludes a cleric from disclosing confessions in many
situations, not just the courtroom, and is not an evidentiary
privilege. The more specific MCL 767.5a(2), however, creates an
evidentiary privilege that precludes the incriminatory use of any
communication made by a congregant to his or her cleric when
that communication was necessary to enable the cleric to serve as
such.
3. A communication is privileged under MCL 767.5a(2) when it
was necessary to enable the cleric to serve as a member of the
clergy. When the communication to the cleric was made in the
cleric’s professional character or was made in the course of
discipline enjoined by the rules or practice of the denomination, it
was likely necessary to enable the cleric to serve as a cleric.
4. A communication is necessary to enable a cleric to serve as
a cleric if it serves a religious function such as providing guidance,
counseling, forgiveness, or discipline. A communication is made to
a cleric in the cleric’s professional character when it is directed to
a clergyman in his or her capacity as a spiritual leader within the
religious denomination, and the communication may not arise
from the congregant speaking to the cleric in his or her role as a
relative, friend, or employer. Guidance by a clerical witness about
whether a communication would be considered confidential under
the discipline or practices of a specific religion must be accepted
because a court’s consideration of a particular religion’s stance on
confidential communications and the role or duty of its clerics
would offend First Amendment principles.
5. Defendant’s statements to Vaprezsan were privileged and
confidential communications under MCL 767.5a(2). The commu-
nication served a religious function because it enabled the pastor
to provide guidance, counseling, forgiveness, and discipline to
defendant. When Vaprezsan spoke with defendant in a nonsecular
manner and prayed with him during the communication, he acted
in his professional character as a pastor. Defendant’s communica-
tion with Vaprezsan was made in the course of discipline enjoined
by the Baptist Church, the denomination for which he was a
pastor. Because defendant’s communication with Vaprezsan was
privileged and confidential, the circuit court properly precluded
any further use of the evidence.
6. The evidentiary privilege of MCL 767.5a(2) applies regard-
less of whether the communication is initiated by the cleric or the
congregant. The cleric-congregant privilege belongs to the peni-
tent, and only he or she may waive the privilege, by, for example,
giving evidence of what took place at the confessional or by sharing
434 296 M
ICH
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433 [May
the content of the otherwise privileged communication with a
third party. Defendant timely asserted the cleric-congregant privi-
lege in the district court and did nothing to expressly or implicitly
waive the privilege. The presence of defendant’s mother during
defendant’s meeting with Vaprezsan did not constitute a waiver of
the cleric-congregant privilege because defendant was a minor at
that time.
Affirmed.
1. E
VIDENCE —
P
RIVILEGES —
C
LERIC
-C
ONGREGANT
P
RIVILEGE —
A
DMISSION OF
C
OMMUNICATIONS
.
Under MCL 600.2156, a minister of the gospel, a priest of any
denomination, or an accredited Christian Science practitioner may
not disclose confessions made to the minister, priest, or any
practitioner in his or her professional character, in the course of
discipline enjoined by the rules or practice of the denomination;
the evidentiary privilege of MCL 767.5a(2) provides that any
communications between members of the clergy and members of
their respective churches are privileged and confidential when
those communications were necessary to enable members of the
clergy to serve as a member of the clergy; MCL 600.2156 applies
only to confessions, broadly precludes a cleric from disclosing
confessions in many situations, not just the courtroom, and is not
an evidentiary privilege; MCL 767.5a(2), however, is more specific
and creates an evidentiary privilege that precludes the incrimina-
tory use of any communication made by a congregant to his or her
cleric when that communication was necessary to enable the cleric
to serve as a cleric.
2. E
VIDENCE —
P
RIVILEGES —
C
LERIC
-C
ONGREGANT
P
RIVILEGE —
C
OMMUNICATIONS
C
OVERED
.
A communication is privileged under MCL 767.5a(2) when it was
necessary to enable the cleric to serve as a member of the clergy;
if the communication to a cleric was made in his professional
character or made in the course of discipline enjoined by the rules
or practice of the denomination, it was likely necessary to enable
the cleric to serve as a cleric; a communication would be necessary
to enable the cleric to serve as a cleric when it serves a religious
function such as providing guidance, counseling, forgiveness, or
discipline; a communication is made to a cleric in the cleric’s
professional character when it is directed to a clergyman in his or
her capacity as a spiritual leader within the religious denomina-
tion; the communication may not arise from the congregant
speaking to the cleric in his or her role as a relative, friend, or
employer; guidance by a clerical witness about whether a commu-
2012] P
EOPLE V
B
RAGG
435
nication would be considered confidential under the discipline or
practices of a specific religion must be accepted because consider-
ation by a court of a particular religion’s stance on confidential
communications and the role or duty of its clerics would offend
First Amendment principles.
3. E
VIDENCE —
P
RIVILEGES —
C
LERIC
-C
ONGREGANT
P
RIVILEGE —
W
AIVER
.
The evidentiary privilege of MCL 767.5a(2) applies regardless of
whether the communication is initiated by the cleric or the
congregant; the privilege belongs to the penitent, and only he or
she may waive the privilege, by, for example, giving evidence of
what took place at the confessional or by sharing the content of the
otherwise privileged communication with a third party; the pres-
ence of a minor defendant’s parent during the communication
does not waive the privilege.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Kym L. Worthy, Prosecuting Attor-
ney, Timothy A. Baughman, Chief of Research, Train-
ing, and Appeals, and Toni Odette, Assistant Prosecut-
ing Attorney, for the people.
Law Offices of Raymond A. Cassar, PLC (by Ray-
mond A. Cassar), for defendant.
Before: G
LEICHER
,P.J., and M
ETER
and D
ONOFRIO
,JJ.
G
LEICHER
,P.J. Defendant, Samuel Dale Bragg, was
bound over for trial on a first-degree criminal sexual
conduct charge, based in part on the testimony of
Pastor John Vaprezsan, who shared with the district
court defendant’s admission to having sexually as-
saulted defendant’s then nine-year-old cousin. The cir-
cuit court quashed defendant’s statement to the pastor
under the cleric-congregant privilege,
1
leading to the
prosecution’s interlocutory application for leave to ap-
peal. Because defendant’s communication to Vaprezsan
1
This privilege is known by many names, including the “priest-
penitent privilege” or the “cleric-communicant privilege.”
436 296 M
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was privileged and confidential under MCL 767.5a(2),
we affirm the circuit court’s exclusion of that evidence
from defendant’s trial.
2
It is important to note at the outset the limited
nature of the issue before us for review. We are not faced
with a pastor who learned of ongoing or future criminal
activity and struggled over whether to report it to the
authorities. We are not asked to consider whether a
cleric may speak to the police concerning information
conveyed with an expectation of privacy. Today, we
consider only whether a cleric may reveal in court a
congregant’s statements made in confidence.
I. FACTUAL AND PROCEDURAL HISTORY
In the summer of 2007, the then nine-year-old victim
spent a three-day weekend at the home of her aunt, K.,
3
who lived there with her two children, then 15-year-old
defendant and 10-year-old H. According to the victim,
K. required her to spend the first night of her visit in
the same bed as defendant. The victim awoke in the
middle of the night when defendant pulled down her
pants and underwear. He then penetrated her rectum
with his penis. When the victim tried to yell, defendant
allegedly pushed her face into a pillow and threatened
to kill her if she told anyone. The second night of her
visit, K. allowed the victim to share a bed with H. The
victim alleged that defendant came into the room in the
middle of the night while H. was sleeping. Defendant
allegedly put his hand inside the victim’s pants and
fondled her buttocks and vaginal area. The victim told
defendant to stop and moved closer to H., who did not
2
Defendant does not challenge the sufficiency of the remaining evi-
dence, and trial may proceed absent the pastor’s testimony.
3
In an attempt to protect the identity of the minor victim, we will refer
to certain witnesses by initial only.
2012] P
EOPLE V
B
RAGG
437
awaken. In the morning, the victim informed K. that
defendant had come into H.’s room. She asked if she
could sleep in K.’s room that night. K. agreed and
confronted defendant, who denied having gone into H.’s
room the night before. The victim testified that defen-
dant later reminded her of his earlier threat.
The victim told no one of these events until 2009,
when she was 11 years old. After hearing a church
sermon on purity, the victim revealed the 2007 assaults
to her mother. The victim’s mother shared the informa-
tion with her husband, and the family reported the
events to the Belleville Police Department. The victim’s
family then approached Vaprezsan, the pastor of the
Baptist church they attended, for counseling and ad-
vice.
Defendant and his mother, K., were parishioners at
the same church. Vaprezsan had known defendant since
he was five years old, and K. was employed as the
church secretary. After hearing the victim’s story, Va-
prezsan telephoned K. and asked her to bring defendant
to the church as soon as possible for a meeting. K. and
defendant arrived at the church at 11 p.m., after
defendant’s work shift ended. Vaprezsan met with de-
fendant and K. in his office, where he allegedly elicited
defendant’s confession. Vaprezsan shared the content of
defendant’s statements with the victim’s family, who
then provided the statements to the police. A Belleville
police detective later contacted Vaprezsan, who fur-
nished a written statement detailing his conversation
with defendant.
The prosecution ultimately charged defendant with
first-degree criminal sexual conduct in violation of MCL
750.520b. At a preliminary examination conducted be-
fore 34th District Court Judge Brian A. Oakley, the
prosecution sought to introduce the pastor’s testimony
438 296 M
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regarding his conversation with defendant. Defendant
objected, raising the statutory cleric-congregant privi-
lege. Defendant contended that Vaprezsan heard defen-
dant’s statements while acting in his role as a pastor. He
argued that K.’s presence did not vitiate the evidentiary
privilege because defendant was a minor. The prosecu-
tor responded that defendant’s age at the time of the
communication lacked relevance and the presence of a
third party rendered the privilege inapplicable.
The district court adjourned the examination and
requested that the parties supplement their arguments.
When the hearing continued two weeks later, defendant
reiterated his argument that K.’s presence in Va-
prezsan’s office did not eliminate the privilege. Defen-
dant noted that Vaprezsan had summoned both K. and
defendant to his office, leaving defendant no opportu-
nity to challenge her participation. Defendant further
noted that K.’s attendance was essential because he was
a minor at the time of the meeting. Defendant cited
Bassil v Ford Motor Co, 278 Mich 173, 178; 270 NW 258
(1936), overruled in part on other grounds by Serafin v
Serafin, 401 Mich 629, 634 n 2; 258 NW2d 461 (1977),
for the proposition that “the presence of one sustaining
an intimate family relation” during an otherwise confi-
dential meeting does not waive the evidentiary privi-
lege. Defendant also raised a public policy argument
premised on the danger of court invasion into religious
relationships.
The prosecutor responded by referring to MCL
600.2156, which prohibits ministers from disclosing
confessions. Although the prosecutor conceded that
Vaprezsan was a religious minister to whom the privi-
lege would apply under the correct circumstances, she
contended that defendant’s statements were not “con-
fessions” protected by the statute because they were
2012] P
EOPLE V
B
RAGG
439
made in front of a third party. The prosecutor argued
that by allowing K. to attend the meeting, defendant
essentially waived the privilege, negating that defen-
dant’s statements to Vaprezsan had been made in the
course of discipline enjoined by the church as contem-
plated by MCL 600.2156. The prosecutor insisted that
Vaprezsan had summoned defendant; defendant did not
“seek out [Vaprezsan] to unburden his soul, to seek
penance.”
The district court admitted the evidence, stating:
I don’t think who...initiates the conversation is the
end all and be all. But, I think it’s an indication that this
was not a communication between the defendant and his
pastor, uh, where there was any discipline involved, which
is required under [MCL] 600.2156. Or, that it was the type
of communication that is necessary for the pastor to be a
pastor, which is the definition of [MCL] 757.5a(2) [sic]. Um,
the pastor’s statement is; that after repeated questioning,
the defendant quote, end quote, broke down. That doesn’t
sound like the defendant was there for, uh, any kind of
forgiveness, any kind of, uh, religious counseling, or any-
thing else.
Um, quite simply, I don’t think this case meets the
definition of a confession in the...generally accepted
religious, uh, definition of the word. And, as such, I’m
going to allow the pastor...totestify today.
The pastor then took the stand and testified that he
called defendant and K. into his office without fore-
warning them of the topic for discussion. Vaprezsan
admitted that defendant and K. likely believed that
they were being summoned for counseling on some
issue. In response to defense counsel’s inquiry, the
pastor explained that he requested K.’s presence during
the meeting even though it was not required because
defendant was a minor and it was “the right thing to
do.”
440 296 M
ICH
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Once inside his office, Vaprezsan shared the infor-
mation he had learned from the victim “to find
out...from [defendant]...ifthis did occur” and, if
so, “to deal with...theaftermath.” During the con-
versation, Vaprezsan was “upset” and “very control-
ling” because he “was angry at the sin and what sin
causes.” Vaprezsan denied “screaming” at defendant,
claiming that he approached the situation as “a
loving broken hearted pastor.” The first step “to
get[ting] some help” was to uncover the truth. Va-
prezsan testified that defendant initially denied the
allegations. Vaprezsan “reasoned with” defendant,
asking him why his cousin would fabricate such a
story. Defendant allegedly broke down, began to weep
and admitted the accuracy of the details provided by
the victim. Vaprezsan consoled defendant “with [his]
spirit, with [his] attitude, with [his] love for [defen-
dant].” During this interview, K. remained in the
room, “[q]uiet and weeping.” When the interview was
over, Vaprezsan prayed with defendant and K., and
“asked God to--tohelp us through this and help
[defendant].”
Defense counsel questioned the pastor about the
Baptist Church’s position on “keeping confidences.”
Vaprezsan, who had been a pastor for 38 years,
replied that he was taught that “[t]here’s no need in
others knowing personal matters, that are discussed
with me.” Vaprezsan stated that confidentiality is a
key to promoting communications between clergy
and congregants and that he had preached his duty of
confidentiality from the pulpit. The prosecutor in-
quired, “[U]nder the Baptist doctrine, under your
church rules, would this communication that you had
with him, and the nature how the communication
came about, would that be...considered a confiden-
tial communication?” Vaprezsan responded, “I’m
2012] P
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sure it would.” He immediately qualified his statement,
indicating that disclosing the “confidential” communi-
cation with the victim’s family and the police was not a
violation of Baptist doctrine and was “the right thing to
do.” Vaprezsan indicated that part of dealing with the
“aftermath” was to notify the victim’s family of defen-
dant’s admission so that they could pursue legal re-
course. The prosecutor also asked Vaprezsan if he had
shared “what had happened...in this meeting with
anyone else.” The pastor replied: “No. I didn’t, uh--no.
That’s - - that’s a private matter that I did not share,
that I can recall, with anyone else. I don’t even share
things like that with my wife.”
At the close of the pastor’s testimony, defense counsel
renewed the motion to exclude the evidence, arguing:
He’s clearly testified to you that he was in the role of the
pastor. And, his role was to counsel [defendant], and
counsel [K.], in the role acting as pastor. Not acting as he
would put it, in the role of a police officer. He was there
acting in the role of pastor; I wanted to console him, I
wanted to find out what had happened. At the church, a
meeting with a member of his congregation, that he’s
known since he was five, and his mother.
Your Honor, this falls squarely within...[the] priest-
penitent privilege.
The district court denied defendant’s renewed mo-
tion. K. then took the stand and rebutted the pastor’s
version of events. She claimed that Vaprezsan called her
and defendant into his office, where he accused defen-
dant of touching the victim inappropriately. K. asserted
that Vaprezsan stood close to defendant, yelling in his
face and claiming to know his guilt. K. stressed that
defendant never confessed to any crime.
The district court bound defendant over to the circuit
court for trial. When arguing in favor of the bindover,
442 296 M
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the prosecution relied on the victim’s testimony
“coupled with the...other evidence that” had been
placed before the court, “particularly [the testimony] of
the pastor:”
A man of God, um, to suggest that he’s lied to the
police, lied to this Court while under oath, when he has
absolutely nothing to gain by becoming involved in this.
Um, in fact he said that he loves the defendant and
forgives him, um, is just absolutely unfounded at this
point. Um, clearly the mother’s testimony is what it is.
But, I would submit that she clearly hasa--amotive to,
um, assist her son and a mo - - motive to lie. And clearly,
both of them can’t be correct.
The pastor and the mom, one of them is completely lying
about what happened during that, um, conversation. Um,
but for those reasons, I believe there’s sufficient evidence
to bind over....
At a pretrial conference, Wayne Circuit Court Judge
Cynthia Gray Hathaway approved the bindover, con-
cluding that the victim’s testimony was sufficient to
support the elements of the charged offense. However,
the circuit court determined that the district court had
abused its discretion by admitting the pastor’s testi-
mony in violation of the cleric-congregant privilege. The
circuit court ruled that the privilege applied to exclude
Vaprezsan’s testimony regarding defendant’s alleged
statements to him as follows:
I’m going to move on to the clergy-penitent privilege.
And I’m not going to waste any time with it. I do believe
that there was an abuse of discretion in that regard.
And I think it occurred because the Magistrate failed to
take an offer of proof before making his findings, and
giving his decision that there was no privilege.
When you read the Preliminary Examination testimony
of the Pastor, in my mind, when you think about the
purpose and goal of the First Amendment Separation of
2012] P
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Church and State, I think that there was a clear privilege
there, with the communication that was given to the
Pastor.
It doesn’t make sense to me that the things that you
both talked about, about the age of the defendant, the fact
that his mother was present, or the fact that anybody else
was present, the fact that the defendant did not go to the
Pastor on his own initiative, none of those things I think
are relevant.
What’s relevant is that the Pastor, I’m sure, called in - -
in fact he testified that he wanted to counsel and discuss
this sin. And that’s all very religious in nature.
That he also wanted to help both sides, both families.
And that the whole purpose of having all of them there was
to have a religious session.
So, I think that a ruling that there was a violation of the
clergy-penitent privilege is more consistent with the sepa-
ration of Church and State goal than there was not.
Rather than proceeding to trial without the pastor’s
testimony, the court stayed the proceedings to allow the
prosecution to seek this appeal. We subsequently
granted the prosecution’s delayed application for leave
to appeal in this Court. People v Bragg, unpublished
order of the Court of Appeals, entered September 8,
2011 (Docket No. 305140).
We reemphasize the narrowness of the question
before us. We are not faced with a pastor who battled a
dilemma about whether to report child sexual abuse;
the victim’s family had already contacted the authori-
ties to accuse defendant of the assault. Moreover, the
crime had occurred in the past, so we are not asked to
consider whether a pastor may breach a confidence to
prevent a future crime. We are not asked to determine
whether the pastor was permitted to reveal defendant’s
statements to the police; indeed, that bell cannot be
unrung. Rather, we consider only whether the pastor
444 296 M
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may give testimony against his congregant, either vol-
untarily or by court order, disclosing statements made
in confidence.
II. STANDARD OF REVIEW
We generally review a trial court’s evidentiary rul-
ings for an abuse of discretion. People v Layher, 464
Mich 756, 761; 631 NW2d 281 (2001). A trial court
abuses its discretion when its ruling falls outside the
range of principled outcomes. People v Feezel, 486 Mich
184, 192; 783 NW2d 67 (2010). The underlying question
regarding the statutory privilege is a mixed question of
fact and law. Centennial Healthcare Mgt Corp v Dep’t of
Consumer & Indus Servs, 254 Mich App 275, 284; 657
NW2d 746 (2002). Specifically, we must review de novo
the relevant statutes in an attempt to discern the
Legislature’s intent from the text’s plain and unam-
biguous language. People v Williams, 294 Mich App 461,
474; 811 NW2d 88 (2011).
When interpreting and applying a statutory privi-
lege, we must remember that “[t]estimonial exclusion-
ary...privileges contravene the fundamental principle
that ‘the public...has a right to every man’s evi-
dence’ ” and therefore “must be strictly construed.”
Trammel v United States, 445 US 40, 50; 100 S Ct 906;
63 L Ed 2d 186 (1980), quoting United States v Bryan,
339 US 323, 331; 70 S Ct 724; 94 L Ed 884 (1950); see
also People v Warren, 462 Mich 415, 427; 615 NW2d 691
(2000) (“Privileges are narrowly defined and their ex-
ceptions broadly construed.”). As noted by our Supreme
Court in People v Stanaway, 446 Mich 643, 658; 521
NW2d 557 (1994):
Unlike other evidentiary rules that exclude evidence
because it is potentially unreliable, privilege statutes shield
potentially reliable evidence in an attempt to foster rela-
2012] P
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tionships.... While the assurance of confidentiality may
encourage relationships of trust, privileges inhibit rather
than facilitate the search for truth....Privileges therefore
are not easily found or endorsed by the courts. “The
existence and scope of a statutory privilege ultimately
turns on the language and meaning of the statute itself.”
Howe v Detroit Free Press, 440 Mich 203, 211; 487 NW2d
374 (1992). Even so, the goal of statutory construction is to
ascertain and facilitate the intent of the Legislature.
As our Supreme Court similarly held in Warren, 462
Mich at 428, quoting 1 McCormick, Evidence (5th ed),
§ 72, pp 298-299:
“The overwhelming majority of all rules of evidence
have as their ultimate justification some tendency to pro-
mote the objectives set forward by the conventional wit-
ness’ oath, the presentation of ‘the truth, the whole truth,
and nothing but the truth.’... By contrast the rules of
privilege...arenotdesigned or intended to facilitate the
fact-finding process or to safeguard its integrity. Their
effect instead is clearly inhibitive; rather than facilitating
the illumination of truth, they shut out the light.”
III. HISTORY OF THE CLERIC-CONGREGANT PRIVILEGE
Although sometimes classified as a common-law
principle, the cleric-congregant privilege was not actu-
ally recognized in the common law of Anglican England
or colonial America. Cox v Miller, 296 F3d 89, 102 (CA
2, 2002); In re Grand Jury Investigation, 918 F2d 374,
381 n 10 (CA 3, 1990); 8 Wigmore, Evidence (McNaugh-
ton rev), § 2394, p 870. The privilege arose from the
papal law of the Roman Catholic Church, under which
the “seal of the Confessional” was sacrosanct and any
priest’s violation of confidence was cause for excommu-
nication. Mitchell, Must clergy tell? Child abuse report-
ing requirements versus the clergy privilege and free
exercise of religion, 71 Minn L R 723, 735-736 (1987).
446 296 M
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After the Protestant Reformation, however, the use of
religious privileges in courts of law fell out of favor.
Wigmore, § 2394, pp 869-870; Mitchell, pp 736-737.
The first American court to recognize a clergyman’s
privilege was the New York Court of General Sessions,
which decided the case of People v Phillips in 1813.
4
In
Phillips, a New York state court attempted to make a
Catholic priest a witness based on information gleaned
from the confessional. The priest responded that had he
learned the information in his capacity “as a private
individual,” he would readily testify before the court.
Sampson, The Catholic Question in America (1813), p 8.
As he had learned the requested information during the
sacrament of confession, the priest refused to reveal the
source or the content lest he “become a traitor to [his]
church” and “render [him]self guilty of eternal damna-
tion.” Id. at 9. The court acknowledged the “dreadful
predicament” and “horrible dilemma” the subpoena
had thrust upon the priest:
If he tells the truth he violates his ecclesiastical oath—If
he prevaricates he violates his judicial oath—Whether he
lies, or whether he testiffies (sic) the truth he is wicked,
and it is impossible for him to act without acting against
the laws of rectitude and the light of conscience. [Id. at
103.]
The court’s answer was “to declare that [the priest]
shall not testify or act at all.” Id.
The Phillips court rested its decision on the First
Amendment of the United States Constitution: “ ‘Con-
gress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof.’ ” Id.
at 111. The court proceeded to describe the sacramental
4
People v Phillips was an unpublished case but was reported in full by
the priest’s attorney in his book: Sampson, The Catholic Question in
America (1813), pp 1-122.
2012] P
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differences between Catholicism and Protestantism to
explain why specifically a Catholic priest should not be
forced to testify regarding the content of a confession:
It is essential to the free exercise of a religion, that its
ordinances should be administered—that its ceremonies as
well as its essentials should be protected. The sacraments
of a religion are its most important elements. We have but
two in the Protestant Church—Baptism and the Lord’s
Supper—and they are considered the seals of the covenant
of grace. Suppose that a decision of this court, or a law of
the state should prevent the administration of one or both
of these sacraments, would not the constitution be violated,
and the freedom of religion be infringed? Every man who
hears me will answer in the affirmative. Will not the same
result follow, if we deprive the Roman catholic of one of his
ordinances? Secrecy is of the essence of penance. The
sinner will not confess, nor will the priest receive his
confession, if the veil of secrecy is removed: To decide that
the minister shall promulgate what he receives in confes-
sion, is to declare that there shall be no penance; and this
important branch of the Roman catholic religion would be
thus annihilated. [Id.]
Today we perceive a twofold danger in the Phillips
court’s rationale. First, as noted by the Phillips pros-
ecution, the distinction between religions seems to
serve as a “preference,” allowing only Catholic peni-
tents the armor of privilege. See id. at 48. Second, by
focusing so deeply on the nature of the religious rite, the
court, an arm of the government, immersed itself in a
doctrinal debate of the most sensitive nature. In the
nearly 200 years since Phillips was decided, all 50 states
have enacted statutes or evidentiary rules, and the
federal government has accepted as a part of its com-
mon law, regulations that resolve the first danger—
everywhere in this nation, any penitent speaking to any
clergyman of any denomination enjoys an evidentiary
privilege precluding the use in court of his or her
448 296 M
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“confession,” or sometimes more broadly the penitent’s
“communication.”
5
By adopting rules of privilege, the
states and federal government have rendered unneces-
sary further inquiry into religious doctrine.
In 1846, a mere nine years after Michigan was
admitted to statehood, our Legislature enacted the
5
Under the Federal Rules of Evidence, the privilege of a witness is
governed by the common law unless the United States Constitution, a
federal statute, or a United States Supreme Court rule provides
otherwise. FRE 501. Several United States circuit courts of appeals
have expressly addressed the issue of cleric-congregant communica-
tions and found a common-law privilege. See Varner v Stovall, 500 F3d
491, 495-496 (CA 6, 2007); Cox, 296 F3d at 102-105; Mockaitis v
Harcleroad, 104 F3d 1522, 1531-1533 (CA 9, 1997); Grand Jury
Investigation, 918 F2d at 378-385; United States v Dube, 820 F2d 886,
889-890 (CA 7, 1987).
Our sister states have all enacted statutes or court rules governing the
cleric-congregant privilege: (Alabama) Ala R Evid Rule 505; (Alaska) Alas
R Evid 506; (Arizona) Ariz Rev Stat Ann 13-4062; (Arkansas) Ark R Evid
505; (California) Cal Evid Code 917, 1033, 1034; (Colorado) Colo Rev Stat
13-90-107; (Connecticut) Conn Gen Stat Ann 52-146b (2012); (Delaware)
Del R Evid 505; (Florida) Fla Stat 90.505; (Georgia) Ga Code Ann
24-9-22; (Hawaii) Hawaii R Evid 506; (Idaho) Idaho Code Ann 9-203;
Idaho R Evid 505; (Illinois) 735 Ill Comp Stat 5/8-803; (Indiana) Ind Code
34-46-3-1; (Iowa) Iowa Code 62.10(1); (Kansas) Kan Stat Ann 60-429;
(Kentucky) Ky R Evid 505; (Louisiana) La Code Evid Ann art 511;
(Maine) Me R Evid 505; (Maryland) Md Code Ann, Cts & Jud Proc 9-111;
(Massachusetts) Mass Gen Laws ch 233, § 20A; (Minnesota) Minn Stat
595.02; (Mississippi) Miss R Evid 505; (Missouri) Mo Rev Stat 491.060;
(Montana) Mont Code 26-1-804; (Nebraska) Neb Rev Stat 27-506;
(Nevada) Nev Rev Stat 49.255; (New Hampshire) NH R Evid 505; (New
Jersey) NJ Stat Ann 2A:84A-23; (New Mexico) NM R Evid 11-506; (New
York) NY CPLR 4505; (North Carolina) NC Gen Stat 8-53.2; (North
Dakota) ND R Evid 505; (Ohio) Ohio Rev Code Ann 2317.02; (Oklahoma)
Okla St tit 12, § 2505; (Oregon) Or Rev Stat 40.260; (Pennsylvania) 42 Pa
Cons Stat 5943; (Rhode Island) RI Gen Laws 9-17-23; (South Carolina)
SC Code Ann 19-11-90; (South Dakota) SD Codified Laws 19-13-16 and
19-13-17; (Tennessee) Tenn Code Ann 24-1-206; (Texas) Tex R Evid 505;
(Utah) Utah Code Ann 78B-1-137, Utah R Evid 503; (Vermont) Vt Ct R
Ann 505; (Virginia) Va Code Ann 8.01-400; (Washington) Wash Rev Code
5.60.060; (West Virginia) W Va Code 48-1-301; (Wisconsin) Wis Stat
905.06; (Wyoming) Wy Stat Ann 1-12-101.
2012] P
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precursor of the modern MCL 600.2156.
6
That statute
now provides:
No minister of the gospel, or priest of any denomination
whatsoever, or duly accredited Christian Science practitio-
ner, shall be allowed to disclose any confessions made to
him in his professional character, in the course of discipline
enjoined by the rules or practice of such denomination.
[
7
]
More than 100 years later, in 1949, the Michigan
Legislature enacted the evidentiary privilege of MCL
767.5a(2), which now provides:
Any communications between attorneys and their cli-
ents, between members of the clergy and the members of
their respective churches, and between physicians and their
patients are hereby declared to be privileged and confiden-
tial when those communications were necessary to enable
the attorneys, members of the clergy, or physicians to serve
as such attorney, member of the clergy, or physician. [MCL
767.5a(2), as amended by 1986 PA 293 (emphasis added).]
IV. WHEN THE PRIVILEGE APPLIES UNDER MICHIGAN LAW
Both the prosecution and the defense focus their
arguments on the elements of MCL 600.2156, which
governs a cleric’s disclosure of confessions. We find such
a limited view inappropriate. MCL 767.5a is a more
recent enactment and more specifically governs the
evidentiary use of a “privileged and confidential” com-
munication.
We begin by outlining the rules of statutory interpre-
tation relevant to our analysis. MCL 600.2156 and MCL
767.5a(2) relate to a similar subject matter and share a
6
1846 RS, ch 102, § 85.
7
MCL 600.2156, as amended by 1962 PA 187. The Legislature’s only
alteration since enacting the 1846 statute was to include “duly accredited
Christian Science practitioner[s]” within the statutory ambit.
450 296 M
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similar goal—to protect the secrecy of statements made
by a congregant to his or her cleric. “[S]tatutes that
relate to the same subject or that share a common
purpose are in para materia [sic] and must be read
together as one.” People v Buehler, 477 Mich 18, 26; 727
NW2d 127 (2007) (quotation marks and citation omit-
ted). If the two statutes appear to conflict, however, a
newer statute prevails over the older. This is because
“ ‘the Legislature is presumed to be aware of, and thus
to have considered the effect on, all existing statutes
when enacting new laws.’ ” Feezel, 486 Mich at 211
(citation omitted). We remain mindful that seemingly
similar statutes may govern under very different cir-
cumstances. In Grimes v Dep’t of Transp, 475 Mich 72,
85; 715 NW2d 275 (2006), for example, our Supreme
Court cautioned against importing definitions from the
Michigan Vehicle Code, MCL 257.1 et seq., into the
highway exception to governmental immunity, MCL
691.1402, as the two statutes serve very different pur-
poses. Specifically, the Supreme Court warned that
“reliance on an unrelated statute to construe another is
a perilous endeavor to be avoided by our courts.”
Grimes, 475 Mich at 85. Further, when two statutes
appear to control a particular situation, the more recent
and more specific statute applies. Buehler, 477 Mich at
26.
The statutes at issue fall within two separate codes
within our compiled laws. MCL 600.2156, the successor
of this state’s original 1846 statute, is found among the
evidence provisions of chapter 21 of the Revised Judi-
cature Act, MCL 600.2101 et seq. It is flanked by
statutes excusing a witness from giving an answer that
may incriminate him criminally, MCL 600.2154, and
describing the circumstances under which a patient
waives a doctor-patient privilege, MCL 600.2157. MCL
767.5a, on the other hand, is part of chapter VII of the
2012] P
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Code of Criminal Procedure, MCL 767.1 et seq. The
chapter heading indicates that it contains statutes
governing “grand juries, indictments, informations and
proceedings before trial.” MCL 767.5a is flanked by
statutes governing the contempt of witnesses who fail
to appear or refuse to answer questions, MCL 767.5,
and permitting witnesses to avoid self-incrimination
absent a grant of immunity, MCL 767.6. MCL 600.2156,
MCL 767.5a, and their neighboring statutes all deal
with a single, general concept—a witness’s duty to
testify upon summons from the court and the situations
under which a witness may not, cannot, or is excused
from testifying as otherwise directed. These are not
wholly unrelated statutes as described in Grimes, 475
Mich at 85, and therefore must be read in harmony.
Manning v East Tawas, 234 Mich App 244, 249; 593
NW2d 649 (1999), citing Jennings v Southwood, 446
Mich 125, 136-137; 521 NW2d 230 (1994).
Pursuant to MCL 600.2156, a cleric is not permitted
to “disclose” certain statements made to him or her. To
“disclose” means to “bring into view by uncovering; to
expose; to make known....” Black’s Law Dictionary
(6th ed), p 464; see also Webster’s New World Dictionary
of the American Language (2d college ed), p 401. The
Legislature’s use of the broad term “disclose” precludes
a cleric from revealing the covered statements to any-
one, not simply before a court of law.
MCL 767.5a(2), on the other hand, uses more specific
legal terms by “declar[ing]” any covered communica-
tion “to be privileged and confidential.” In legal par-
lance, “privileged communications” are “[t]hose state-
ments made by certain persons within a protected
relationship such as...priest-penitent...which the
law protects from forced disclosure on the witness
stand....”Black’s (6th ed), p 1198; see also Webster’s,
452 296 M
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p 1131 (stating that a “privileged communication” is a
statement “that one cannot legally be compelled to
divulge, as that to a lawyer from his client”). “Confi-
dential communication[s]” include “[p]rivileged com-
munications such as those between...confessor-
penitent” but also include “statement[s] made under
circumstances showing that [the] speaker intended
[the] statement only for [the] ears of [the] person
addressed....”Black’s (6th ed), p 298; see also Web-
ster’s, p 297 (stating that “confidential” means “told in
confidence; imparted in secret”).
Read together and harmonized, the more specific
MCL 767.5a(2) creates an evidentiary privilege, pre-
cluding the incriminatory use of “any communication”
made by a congregant to his or her cleric when that
communication was “necessary to enable the” cleric “to
serve as such” cleric. That statute governs the specific
use of a defendant’s statements against him or her in
court. MCL 600.2156 more broadly precludes a cleric
from disclosing certain covered communications in
other situations, not limited to the courtroom. It does
not qualify as an evidentiary privilege.
The evidentiary privilege enacted by the Legislature
is broader than MCL 600.2156 in one important sense.
MCL 600.2156 only precludes the disclosure of “confes-
sions,” while the evidentiary privilege of MCL 767.5a(2)
addresses the use of “any communication.”
8
Accord-
8
We note that this Court improperly omitted a discussion of MCL
767.5a in Wirtanen v Prudential Life Ins Co of America, 27 Mich App 260;
183 NW2d 456 (1970), and therefore reached an incomplete conclusion
regarding the admissibility of a Lutheran minister’s testimony. The
Wirtanen plaintiffs brought suit to collect under their deceased son’s life
insurance policy. Id. at 262. The deceased had died several days after
suffering a self-inflicted gunshot wound. The plaintiffs claimed accidental
death, which was covered by the policy, but the insurance company
claimed suicide, which was not. Id. at 262-264. In support of its suicide
2012] P
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ingly, contrary to the arguments of the prosecution and
the defense, it is irrelevant whether defendant’s state-
ments to Vaprezsan fall within the definition of a
confession. The provisions of MCL 600.2156 are useful,
however, in determining when a communication is
necessary to enable a cleric to serve as a cleric. For
instance, a communication is likely necessary to allow a
cleric to serve as a cleric if the statement is made to the
cleric in his or her professional capacity or is made “in
the course of discipline enjoined by the rules or practice
of” the cleric’s denomination.
V. WHEN A COMMUNICATION IS PRIVILEGED UNDER MCL 767.5a(2)
A. NECESSARY TO ENABLE THE CLERIC TO SERVE AS A CLERIC
For the evidentiary privilege of MCL 767.5a(2) to
apply, the communication must have been “necessary to
enable” Vaprezsan “to serve as such...member of the
clergy.” This phrase has never been defined by this
Court or the Michigan Supreme Court. We find guid-
ance in the attempts of our sister states and the federal
courts to define the parameters of their own statutes
claim, the insurance company presented the testimony of a minister who
had visited the deceased in the hospital. The trial court permitted the
insurer to ask the minister whether the deceased had told him what had
happened, and the minister responded in the affirmative. The court did
not permit the insurer to elicit the contents of that conversation. Id. at
264-265. This Court held that the question improperly left the jury to
speculate. Id. at 269. In relation to MCL 600.2156, this Court held: “The
minister was a competent witness. The statute does not bar testimony by
a clergyman with knowledge of relevant and admissible facts as such. It
does bar any confessions made to him in his professional character.” Id.
Had this Court properly considered MCL 767.5a as well, it could have
noted that any communication, not just a confession, would be barred
from the trial as long as the communication was necessary to allow the
minister to serve as a minister. As Wirtanen was decided before Novem-
ber 1, 1990, we are not limited by its incomplete analysis. MCR
7.215(J)(1).
454 296 M
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and common-law rules. From those cases, we glean that
a communication is necessary to enable a cleric to serve
as a cleric if the communication serves a religious
function such as providing guidance, counseling, for-
giveness, or discipline.
In Cox, 296 F3d at 106, the United States Court of
Appeals for the Second Circuit directed that “a communi-
cation must be made in confidence and for the purpose of
obtaining spiritual guidance” in order to be privileged.
(Quotation marks and citation omitted.) Put another way,
a conversation is not privileged if made “with wholly
secular purposes solely because one of the parties to the
conversation happens to be a religious minister.” Id.
(quotation marks and citation omitted). In Cox, the defen-
dant told seven members of his Alcoholics Anonymous
(AA) group that he had broken into a house six years
earlier and murdered the residents. Id. at 91. The defen-
dant alleged that he made these “confessions” as part of
the fourth and fifth steps of the AA program: “to under-
take ‘a searching and fearless moral inventory’ and to
‘admit[] to God, to [himself], and to another human being
the exact nature of [his] wrongs.’ ” Id. The Cox panel
assumed that AA qualified as a religion, id. at 107, but
rejected the defendant’s claim that his statements were
made to fellow members to seek spiritual guidance.
Rather, the defendant’s statements to his fellow AA mem-
bers were made for secular purposes, such as an “emo-
tional outpouring to a lover,” pursuing advice on the
procedural method of “handl[ing] the fourth step” of the
program, and seeking “practical and legal, not spiritual,
advice.” Id. at 110.
The Utah Supreme Court in Scott v Hammock, 870
P2d 947, 956 (Utah, 1994), similarly held that the term
“confession” as used in that state’s statute included
communications “made in confidence and for the pur-
2012] P
EOPLE V
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pose of seeking or receiving religious guidance, admon-
ishment, or advice....”Thecourt acknowledged that a
cleric, serving in the role of a cleric, must engage in
many communications that would not necessarily be
deemed a “confession” but should nevertheless fall
within the privilege.
[A] constricted interpretation of the privilege does not take
into account the essential role that clergy in most churches
perform in providing confidential counsel and advice to their
communicants in helping them to abandon wrongful or
harmful conduct, adopt higher standards of conduct, and
reconcile themselves with others and God. Indeed, even when
confession is part of an essential sacrament, as in the Catholic
Church, clergy must still give confidential guidance concern-
ing the moral faults of their parishioners pursuant to their
responsibility to give spiritual and religious advice, counsel,
and admonishment. In counseling parishioners in religious
and moral matters, clergy frequently must deal with in-
tensely private concerns, and parishioners may be encour-
aged, and even feel compelled, to discuss their moral
faults.... “Because most churches do not set aside formal
occasions for special private encounters labeled ‘confession,’
less formal consultation must be privileged if the privilege is
not in effect to be limited to Roman Catholics.” [Id. at 952
(citations omitted).]
In Scott, the Utah Supreme Court held that the defen-
dant’s statements to his Church of Jesus Christ of
Latter-Day Saints (LDS) bishop made during conversa-
tions tied to the church’s “repentance process” “con-
cerned an issue pertaining to [the defendant’s] moral
conduct” and were made to the bishop “acting in his
role as a cleric.” Id. at 956.
B. COMMUNICATION TO A CLERIC IN HIS OR HER
“PROFESSIONAL CHARACTER”
As noted, the elements of MCL 600.2156 are also
useful in determining whether a communication is
456 296 M
ICH
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necessary to enable a cleric to serve as a cleric. Particu-
larly, if a congregant imparts a communication to a
cleric in the cleric’s “professional character,” that com-
munication is likely “necessary to enable” the cleric to
serve as a cleric. “The ‘professional character’ element
requires the communication to be directed to a clergy-
man in his or her capacity as a spiritual leader within
his or her religious denomination.” State v Archibeque,
223 Ariz 231, 235; 221 P3d 1045 (Ariz App, 2009). In
Archibeque, the defendant admitted to his LDS bishop
that he had sexually assaulted his stepdaughter. Id. at
233-234. The Arizona Court of Appeals held that the
statement was made to the bishop in his professional
character because the defendant spoke with the bishop
as part of the church’s repentance process. Id. at 235.
In In re Roman Catholic Archbishop of Portland, 335
BR 815, 829 (D Or, 2005), a bankruptcy judge found the
phrase “professional character” to be ambiguous. Not-
ing that the purpose of the privilege was to “allow[] and
encourage[] individuals to fulfill their religious, emo-
tional or other needs,” the judge determined that the
privilege should only protect communications to a cleric
acting as “a spiritual advisor.” Id. at 829-830. In reach-
ing this determination, the judge cited several examples
of communications that had been deemed outside a
cleric’s professional capacity. Id. at 830, citing Masquat
v Maguire, 1981 OK 137; 638 P2d 1105, 1106 (1981)
(concluding that the plaintiff hospital employee com-
municated with a Catholic nun in her capacity as
hospital administrator, not in her religious role, so the
communication was not within the privilege), Bonds v
State, 310 Ark 541, 544-546; 837 SW2d 881 (1992)
(determining that the defendant’s communication with
a minister who was also the defendant’s employer at an
air conditioning business was made to the minister in
his capacity as an employer, not as a spiritual advisor),
2012] P
EOPLE V
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and State v Cary, 331 NJ Super 236, 246-247; 751 A2d
620 (2000) (noting that the defendant had no reason-
able expectation of privacy when his conversation with
the church deacon occurred after the defendant was
ready to surrender and the deacon had introduced
himself as a state trooper, advised the defendant of his
right to remain silent, and conducted a pat-down
search). See also State v Martin, 137 Wash 2d 774, 785
n 65; 975 P2d 1020 (1999), citing People v McNeal, 175
Ill 2d 335, 358-359; 677 NE2d 841 (1997) (noting that
although the defendant’s brother was a minister, the
communication was not made to the brother in his
ministerial capacity, as evidenced by the brother grab-
bing the defendant, eliciting an admission, and
promptly ending the conversation), and State v Barber,
317 NC 502; 346 SE2d 441 (1986) (concluding that the
defendant’s confession was made to a friend and co-
worker and not in connection with the friend’s role as a
former minister).
In Vickers v Stoneman, 73 Mich 419, 423-424; 41 NW
495 (1889) (C
AMPBELL
, J., concurring), a minority of our
Supreme Court more generally noted that “[o]ne O. S.
Paddock, a minister, who visited defendant in that
capacity, related conversations directly connected with
defendant’s religious experiences.” The concurring jus-
tices opined that this evidence was privileged because it
had been imparted to the minister in his professional
character and should not have been admitted to prove
publication of slander.
Our canvass of relevant caselaw can be reduced to one
essential and basic maxim: For a communication to be
made to a cleric in his or her professional capacity, the
congregant must speak to the cleric as part of the cleric’s
“job” as a cleric. The congregant cannot speak to the cleric
458 296 M
ICH
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433 [May
in his or her role as a relative, friend, or employer and
receive the benefit of the evidentiary privilege.
C. COMMUNICATION MADE IN THE COURSE OF DISCIPLINE
ENJOINED BY THE RULES OR PRACTICE OF THE DENOMINATION
A communication made as part of the discipline
enjoined by the cleric’s denomination would also likely
be “necessary to enable” a cleric to serve as a cleric.
9
This element poses the danger, however, of improperly
invoking the court’s consideration and determination of
a religion’s parameters. In civil matters, the United
States Supreme Court has repeatedly instructed that
our secular judiciary must avoid resolving controversies
about a religion’s or church’s internal governance or
operating procedures. See Hosanna-Tabor Evangelical
Lutheran Church & Sch v Equal Employment Opportu-
nity Comm, 565 US ___; 132 S Ct 694; 181 L Ed 2d 650
(2012); Serbian Eastern Orthodox Diocese for the
United States of America & Canada v Milivojevich, 426
US 696; 96 S Ct 2372; 49 L Ed 2d 151 (1976). Our
consideration of a particular religion’s stance on confi-
dential communications and the role or duty of its
clerics would similarly offend First Amendment prin-
ciples. Accordingly, when considering whether a com-
munication would be considered confidential under the
discipline or practices of a specific religion, we are
bound to accept the guidance provided by the clerical
witness without embarking on a fact-finding mission.
To the extent that we may consider whether a
communication was made in the course of discipline
enjoined by the rules or practice of a particular denomi-
9
In People v Pratt, 133 Mich 125, 133; 94 NW 752 (1903), our Supreme
Court noted in dicta that a “confession[] of crime made...toapriest, not
in accordance with the discipline of his church, would be competent”
evidence.
2012] P
EOPLE V
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459
nation, we find instructive In re Contempt of Swenson,
183 Minn 602, 604-605; 237 NW 589 (1931), which held:
The word “discipline” has various meanings. It may
relate to education. It involves training and culture. It may
mean training in moral rectitude, and it was probably in
part so used here. It may refer to rules and duties. The
word has no technical, legal meaning and in its common
and most general sense signifies instruction, comprehend-
ing the communication of knowledge and training, to
observe and act in accordance with certain rules or prac-
tice, and may include correction. The “discipline enjoined”
includes the “practice” of all clergymen to be trained so as
to advance such “discipline,” to be alert and efficient in
submission to duty, to concern themselves in the moral
training of others, to be as willing to give spiritual aid,
advice or comfort as others are to receive it, and to be
keenly concerned in reformatory methods of correction
leading towards spiritual confidence. So it is in the course
of “discipline enjoined” by the “practice” of their respective
churches that the clergyman is to show the transgressor
the error of his way; to teach him the right way; to point
the way to faith, hope, and consolation; perchance, to lead
him to seek atonement.
The statute has a direct reference to the church’s
“discipline” of and for the clergyman and as to his duties as
enjoined by its rules or practice. It is a matter of common
knowledge, and we take judicial notice of the fact, that such
“discipline” is traditionally enjoined upon all clergymen by
the practice of their respective churches. Under such
“discipline” enjoined by such practice all faithful clergy-
men render such help to the spiritually sick and cheerfully
offer consolation to suppliants who come in response to the
call of conscience. The courts also take judicial notice of the
numerous sects and the general doctrine maintained by
each.
It is important that the communication be made in such
spirit and within the course of “discipline”; and it is
sufficient, whether such “discipline” enjoins the clergyman
to receive the communication or whether it enjoins the
460 296 M
ICH
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other party, if a member of the church, to deliver the
communication. Such practice makes the communication
privileged, when accompanied by the essential characteris-
tics, though made by a person not a member of the
particular church or of any church. [Citations omitted.]
Interpreting a similarly worded statute, the Wash-
ington Supreme Court approved the Washington Court
of Appeals’ determination that “it is the ‘clergy member
receiving the confidential communication [who must]
be enjoined by the practices or rules of the clergy
member’s religion to receive the confidential communi-
cation and to provide spiritual counsel’....” Martin,
137 Wash 2d at 784 (citation omitted) (alteration in
original). In describing the general scope of the course
of discipline, the Utah Supreme Court hesitated to
define the phrase too strictly lest it inadvertently show
preference to one religion over another and thereby
violate the Establishment Clause:
[A] constricted interpretation of the privilege does not
take into account the essential role that clergy in most
churches perform in providing confidential counsel and
advice to their communicants in helping them to abandon
wrongful or harmful conduct, adopt higher standards of
conduct, and reconcile themselves with others and God.
Indeed, even when confession is part of an essential sacra-
ment, as in the Catholic Church, clergy must still give
confidential guidance concerning the moral faults of their
parishioners pursuant to their responsibility to give spiri-
tual and religious advice, counsel, and admonishment. In
counseling parishioners in religious and moral matters,
clergy frequently must deal with intensely private con-
cerns, and parishioners may be encouraged, and even feel
compelled, to discuss their moral faults. As one commen-
tator has stated, “Because most churches do not set aside
formal occasions for special private encounters labeled
‘confession,’ less formal consultation must be privileged if
the privilege is not in effect to be limited to Roman
Catholics.” [Scott, 870 P2d at 952 (citations omitted).]
2012] P
EOPLE V
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461
Even in a “counseling” session with a cleric, the con-
gregant might make many “confidential” disclosures
amounting to the confession of sin or other privileged
communications. The informality of the meeting should
not define the scope of the privilege. Id. at 953.
D. DEFENDANT’S STATEMENTS TO VAPREZSAN WERE
PRIVILEGED AND CONFIDENTIAL
Defendant’s statements to Vaprezsan fall within the
statutory scope of privileged and confidential commu-
nications under MCL 767.5a(2). The communication
was necessary to enable Vaprezsan to serve as a pastor
because defendant communicated with Vaprezsan in his
professional character in the course of discipline en-
joined by the Baptist Church.
The communication between defendant and Va-
prezsan served a religious function—it enabled Va-
prezsan to provide guidance, counseling, forgiveness,
and discipline to defendant. Vaprezsan testified that he
wanted “to get [defendant] some help,” and the first
step necessitated that defendant admit his actions.
Vaprezsan averred that he “consoled” defendant and
counseled him as “a loving broken hearted minister.”
Vaprezsan also spoke with defendant in his “profes-
sional character” as a pastor. Vaprezsan explicitly
stated that he “interrogate[d]” defendant “[i]n [his]
role as a pastor.” Once Vaprezsan convinced defendant
to speak about the sexual assault, the pastor prayed
with defendant. This was not a secular conversation. If
Vaprezsan had not been a pastor, the communication
would not have occurred. Because of Vaprezsan’s au-
thority as the church pastor, he was able to summon
defendant and his mother to the church office and
expect their attendance. Inside the pastor’s office, the
trio did not discuss secular topics such as K.’s employ-
462 296 M
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ment at the church. They spoke only of the victim’s
accusation that defendant had committed a sin and a
criminal act against her.
The communication was also made in the course of
discipline enjoined by the Baptist Church. Vaprezsan
learned during his religious training that confidential
communication is essential to create trust between
congregants and their minister. The Baptist Church
taught Vaprezsan that “[t]here’s no need in others
knowing personal matters, that are discussed with”
their pastor. Vaprezsan testified that under Baptist
doctrine, his communication with defendant would be
considered confidential, and yet Vaprezsan claimed that
his sharing defendant’s communication with the police
and the victim’s family did not violate that confidence.
Vaprezsan denied that praying with his congregants
was part of his “duties as a pastor” of the Baptist
Church, instead characterizing his act of praying with
defendant as being “part of what’s right” and “very
biblical.” Vaprezsan also testified that providing coun-
seling and guidance services are a part of his role as a
Baptist minister.
The record clearly establishes that defendant’s com-
munication to Vaprezsan falls within MCL 767.5a(2)’s
scope. The communication was therefore privileged and
confidential. Vaprezsan was not permitted to divulge
the content of the communication at the preliminary
examination, and the circuit court correctly precluded
any further use of that evidence.
E. EFFECT OF PASTOR’S INITIATION OF CONVERSATION
Despite the obvious nature of defendant’s communi-
cation, the prosecution maintains that it does not
amount to a privileged “confession” because the cleric
initiated the conversation, not the congregant. How-
2012] P
EOPLE V
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463
ever, as already noted, MCL 767.5a(2) extends its privi-
lege to covered “communications,” not just confessions.
The term “communication” in no way suggests that the
congregant must initiate the conversation in order for
the privilege to apply.
We find instructive cases from two sister states. In
State v Johnson, 497 NYS2d 539: 115 AD2d 973 (1985),
the defendant admitted to fellow members of his Mus-
lim mosque that he had killed his wife. “Although
confidential communications between a Muslim
brother acting as a spiritual advisor may, in some cases,
be privileged,” the court held that the defendant did not
communicate for “the purpose of seeking religious
counsel, advice, solace, absolution or ministration.” Id.
at 539-540.
Defendant did not initiate the conversations but, rather,
they were initiated by members of the mosque who testi-
fied that they were motivated by fear that defendant might
be dangerous, and their desire to get him out of the
mosque. Defendant was interrogated by members of the
mosque, and he denied involvement in his wife’s death.
Following further questioning, defendant admitted that he
killed his wife. [Id. at 540.]
In Johnson, the communication was not exempted from
the privilege because the defendant’s Muslim brothers
initiated the conversation. Rather, the communication
was exempted because it was made for a secular pur-
pose. The Muslim brothers elicited the defendant’s
communication because they feared for their own safety
and the safety of other community members.
In State v Diercks, 88 Ill App 3d 1073, 1074; 411
NE2d 97 (1980), the defendant burglarized a Baptist
church. The church’s pastor visited the jail on three
occasions to speak with the defendant. During one visit,
the defendant admitted his guilt. The prosecution ar-
464 296 M
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gued that the privilege was inapplicable because the
defendant did not initiate the conversation. Id. at 1077.
The court ultimately found the privilege inapplicable on
other grounds. However, the court concluded that the
identity of the initiator did not govern whether the
privilege applied. Id.
We agree with the New York and Illinois courts that
it is irrelevant to the statutory-privilege analysis that
Vaprezsan initiated the conversation. Regardless of the
initiator’s identity, the communication was necessary to
enable Vaprezsan to serve as a pastor and the MCL
767.5a(2) privilege applies.
VI. DEFENDANT DID NOT WAIVE THE
CLERIC-CONGREGANT PRIVILEGE
The prosecution contends that any privilege attached
to defendant and Vaprezsan’s communication must be
deemed waived by K.’s presence. It is well settled that
privileges belong to the holder alone and may be waived
only by the holder. See Dorris v Detroit Osteopathic
Hosp Corp, 460 Mich 26, 34; 594 NW2d 455 (1999), and
People v Williams, 39 Mich App 91, 92-93; 197 NW2d
336 (1972) (doctor-patient privilege); Paschke v Retool
Indus, 445 Mich 502, 518 n 15; 519 NW2d 441 (1994);
and People v Nash, 418 Mich 196, 219; 341 NW2d 439
(1983) (attorney-client privilege). The same is true of
the cleric-congregant privilege: “The privilege of the
confessional is the privilege of the penitent....”People
v Lipsczinska, 212 Mich 484, 493; 180 NW 617 (1920).
In criminal matters, “[w]aiver is the intentional
relinquishment or abandonment of a known right or
privilege.” People v Williams, 475 Mich 245, 260; 716
NW2d 208 (2006). Yet a privilege may be deemed waived
if the defendant fails to assert it. People v Watkins, 468
Mich 233, 235; 661 NW2d 553 (2003) (regarding a
2012] P
EOPLE V
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465
defendant’s privilege against forced self-incrimination).
And with any privilege, the holder may waive it
“through conduct that would make it unfair for the
holder to insist on the privilege thereafter.” Howe, 440
Mich at 214; see also People v Toma, 462 Mich 281,
319-320; 613 NW2d 694 (2000) (noting that a criminal
defendant who raises an insanity defense cannot fairly
raise the psychologist-patient privilege and that a de-
fendant who has placed his or her mental health at
issue in this manner must be deemed to have waived
the privilege).
A defendant may expressly or impliedly waive both the
attorney-client and doctor-patient privileges. A criminal
defendant waives the attorney-client privilege by claiming
ineffective assistance of counsel. People v Houston, 448
Mich 312, 332; 532 NW2d 508 (1995), quoting 8 Wigmore,
Evidence (McNaughton rev), § 2327, pp 636-638. A civil
litigant may waive the privilege by bringing a claim that
directly places the privileged information at issue. Howe,
440 Mich at 218-223. A client also waives the privilege by
referring to an otherwise privileged conversation on the
record Guilty Plea Cases, 395 Mich 96, 127; 235 NW2d
132 (1975), or disclosing the conversation to third parties,
Oakland Co Prosecutor v Dep’t of Corrections, 222 Mich
App 654, 658; 564 NW2d 922 (1997). Pursuant to MCL
600.2157, a patient waives the doctor-patient privilege by
seeking recovery for personal injury or malpractice and
producing the physician as a witness.
Similarly, a congregant may waive the cleric-
congregant privilege by “giving evidence of what took
place at the confessional,” Lipsczinska, 212 Mich at 493,
or sharing the content of the otherwise privileged
communication with a third party, see id. at 494 (noting
that the defendant told an undercover detective posing
466 296 M
ICH
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433 [May
as a fellow inmate that she had confessed the details of
her crime to a Catholic priest). See also Dube, 820 F2d
at 890 (concluding that the defendant could claim no
privilege over his discussions with a fellow minister
regarding his religious-based attempts to avoid income
tax responsibility because the defendant had had the
same discussions with his secular employer, the Inter-
nal Revenue Service, and two congressmen).
Defendant did nothing to expressly waive the cleric-
congregant privilege in this case, nor did he take any
action from which the court could deem the privilege
waived. Defendant timely asserted the privilege in the
district court. He did not place the content of his
communication with Vaprezsan at issue before the
court, nor did he introduce it into the record. And
defendant never shared the content of his communica-
tion with anyone else. It is irrelevant that defendant’s
mother told a relative and friend about the communi-
cations and that Vaprezsan told the victim’s family and
the police. The privilege was personal to defendant, and
neither K.’s nor Vaprezsan’s actions implicate a waiver
by defendant.
The prosecution contends that K.’s presence during
Vaprezsan’s conversation with defendant destroyed any
claim to confidentiality or privilege, essentially serving
as a waiver of the privilege. Other jurisdictions have
held that for the cleric-congregant privilege to apply, the
communication must have been made in private. The
presence of a third party negates the privilege unless
that person is essential for the communication to occur.
Grand Jury Investigation, 918 F2d at 376, 386; Martin,
137 Wash 2d at 787; Scott, 870 P2d at 955.
However, the presence of a close relation does not
necessarily vitiate the cleric-congregant privilege. In
Archibeque, 223 Ariz at 233, the defendant’s wife was
2012] P
EOPLE V
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467
present when he confessed his acts of child sexual abuse
to his LDS bishop. The court held that the
presence of a third person will usually defeat the privilege
on the ground that confidentiality could not be intended
with respect to communications that the speaker know-
ingly allowed to be overheard by others foreign to the
confidential relationship. However, this rule does not apply
when the presence of a third party does not indicate a lack
of intent to keep the communication confidential....[T]he
relevant inquiry [is] whether the communicant reasonably
understood the communication to be confidential notwith-
standing the presence of third parties. [Id. at 236 (quota-
tion marks and citations omitted).]
The Arizona Court of Appeals concluded that the com-
munication was confidential despite the presence of the
defendant’s wife. The pair met with the bishop in the
seclusion of the bishop’s office. The bishop described his
role as assisting the repentance process and providing
spiritual guidance for the family as a whole, as well as
spiritual counseling for the marriage. The court deter-
mined that the communication was confidential based
on “the nature of the meeting and the relationships
between the parties....”Id.
Michigan courts have similarly rejected blanket poli-
cies under which the presence of a third party automati-
cally waives a privilege. In Bassil, 278 Mich at 178, the
Court refused to deem the doctor-patient privilege
waived by the presence of the patient’s wife, holding
that “[t]he presence of one sustaining an intimate
family relation with the patient when consulting a
physician should not and does not waive the privilege.”
In relation to the attorney-client privilege, this Court
has upheld the confidential nature of a communication
when the minor client’s agents (her parents) were
present during all meetings. Grubbs v K mart Corp, 161
Mich App 584, 589; 411 NW2d 477 (1987).
468 296 M
ICH
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K.’s presence did not destroy the confidentiality of
the conversation between defendant and Vaprezsan.
Defendant was a minor when Vaprezsan summoned
him and K. to the church office. If the claimed privilege
had related to the doctor-patient or attorney-client
relationship, the presence of a minor patient or client’s
parent would have certainly been deemed necessary
and would not have vitiated the privilege. So too with
the cleric-congregant privilege. As defendant’s parent,
K. could sustain defendant during this difficult conver-
sation. Moreover, there is no record indication that
defendant, or even Vaprezsan, believed that K.’s pres-
ence destroyed the confidentiality of their communica-
tion. K., defendant, and Vaprezsan met in a closed-door
meeting late at night. Those conditions support an
understanding of confidentiality.
As the evidentiary privilege of MCL 767.5a(2) applies
under the circumstances and defendant did not waive
that privilege, the circuit court properly precluded the
use of Vaprezsan’s testimony at defendant’s upcoming
trial.
Affirmed.
M
ETER
and D
ONOFRIO
, JJ., concurred with G
LEICHER
,
P.J.
2012] P
EOPLE V
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RAGG
469
SPOHN v VAN DYKE PUBLIC SCHOOLS
Docket No. 301196. Submitted March 13, 2012, at Detroit. Decided May 8,
2012, at 9:05 a.m.
Cindy Spohn brought an action in the Macomb Circuit Court against
the Van Dyke Public Schools, Edie T. Burks, Mark Skrzynski, Donald
Colpaert, and Kathleen Spaulding, alleging that she was subjected to
sexual harrassment in violation of Michigan’s Civil Rights Act, MCL
37.201 et seq. Burks, Skrzynski, Spaulding, and the school district
moved for summary disposition, asserting that Spohn was judicially
estopped from pursuing her sexual harassment claim because she
had failed to identify the claim as an asset in a Chapter 13 bankruptcy
proceeding that she had previously filed, 11 USC 1301 et seq. Colpaert
subsequently concurred with and joined the motion for summary
disposition. The alleged incidents of sexual harassment occurred
from September 2008 through the beginning of December 2008.
Spohn and her husband filed the joint petition for Chapter 13
bankruptcy on November 27, 2008, in the United States Bankruptcy
Court for the Eastern District of Michigan. They filed their proposed
bankruptcy plan on December 9, 2008. The plan did not refer to
Spohn’s potential claim for sexual harassment. January 6, 2009, was
Spohn’s final day of work with the school district. On that same day,
Spohn’s husband contacted an attorney to discuss whether Spohn
had a claim against the school district. The bankruptcy court subse-
quently confirmed Spohn’s Chapter 13 plan. In May 2009, Spohn’s
attorney with regard to her sexual harassment claim sent a letter to
the school district proposing a settlement of the claim. On August 26,
2009, because of the failure of Spohn and her husband to make
payments in accordance with their Chapter 13 plan, the Chapter 13
Standing Trustee for the United States Bankruptcy Court for the
Eastern District of Michigan, Tammy L. Terry, moved to dismiss the
plan. Spohn and her husband initially filed a response to the trustee’s
motion, but withdrew it on September 28, 2009, the same day that
Spohn filed her sexual harassment complaint in the circuit court. The
bankruptcy court formally dismissed Spohn and her husband’s
Chapter 13 petition on March 11, 2010. The circuit court, Donald G.
Miller, J., granted summary disposition in favor of defendants,
concluding that Spohn was judicially estopped from bringing her
sexual harassment claim because she had not disclosed it during the
470 296 M
ICH
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bankruptcy proceeding. The circuit court also denied Spohn’s motion
for reconsideration. Spohn appealed.
The Court of Appeals held:
1. Judicial estoppel is an equitable doctrine that generally
prevents a party from prevailing in one phase of a case on an
argument and then relying on a contradictory argument to prevail
in another phase. Under the prior-success model of judicial estop-
pel, a party who has successfully and unequivocally asserted a
position in a prior proceeding is estopped from asserting an
inconsistent position in a subsequent proceeding; there must be
some indication that the court in the earlier proceeding accepted
that party’s position as true, and the claims must be wholly
inconsistent.
2. To support a finding of judicial estoppel in the context of
bankruptcy proceedings, the reviewing court must find that (1) the
plaintiff assumed a position that was contrary to the one asserted
under oath in the bankruptcy proceedings, (2) the bankruptcy
court adopted the contrary position either as a preliminary matter
or as part of a final disposition, and (3) the plaintiff’s omission did
not result from mistake or inadvertence. In determining whether
the plaintiff’s conduct resulted from mistake or inadvertence, the
reviewing court considers whether (1) the plaintiff lacked knowl-
edge of the factual basis of the undisclosed claims, (2) the plaintiff
had a motive for concealment, and (3) the evidence indicates an
absence of bad faith. In determining whether there was an absence
of bad faith, the reviewing court will look, in particular, at the
plaintiff’s attempts to advise the bankruptcy court of the omitted
claim. By failing to disclose her sexual harassment claim, Spohn
assumed a position that was contrary to the one that she asserted
under oath in the bankruptcy proceeding. The bankruptcy court
adopted the contrary position by confirming Spohn’s Chapter 13
plan, which did not refer to her potential sexual harassment
lawsuit. Spohn’s omission did not result from mistake or inadvert-
ence given that Spohn had knowledge of the factual basis of the
undisclosed sexual harassment claim, yet she never attempted to
advise the bankruptcy court of the existence of that claim, which
indicated both concealment and bad faith. Moreover, Spohn re-
ceived an unfair advantage over her creditors in the bankruptcy
action by not disclosing the possible sexual harassment lawsuit.
Affirmed.
E
STOPPEL —
J
UDICIAL
E
STOPPEL —
B
ANKRUPTCY
P
ROCEEDINGS
.
To support a finding of judicial estoppel in the context of bankruptcy
proceedings, the reviewing court must find that (1) the plaintiff
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assumed a position that was contrary to the one asserted under
oath in the bankruptcy proceedings, (2) the bankruptcy court
adopted the contrary position either as a preliminary matter or as
part of a final disposition, and (3) the plaintiff’s omission did not
result from mistake or inadvertence; in determining whether the
plaintiff’s conduct resulted from mistake or inadvertence, the
reviewing court considers whether (1) the plaintiff lacked knowl-
edge of the factual basis of the undisclosed claims, (2) the plaintiff
had a motive for concealment, and (3) the evidence indicates an
absence of bad faith; in determining whether there was an absence
of bad faith, the reviewing court will look, in particular, at the
plaintiff’s attempts to advise the bankruptcy court of the omitted
claim.
Ihrie O’Brien (by Harold A. Perakis) for Cindy
Spohn.
Lusk & Albertson, PLC (by Kevin T. Sutton and
Robert T. Schindler), for the Van Dyke Public Schools,
Edie T. Burks, Mark Skrzynski, and Kathleen Spauld-
ing.
Cardelli, Lanfear & Buikema, P.C. (by Lisa C. Walin-
ske and Matthew Scarfone), for Donald Colpaert.
Before: W
HITBECK
,P.J., and J
ANSEN
and K. F. K
ELLY
,
JJ.
P
ER
C
URIAM
. Plaintiff, Cindy Spohn, appeals as of
right the trial court’s grant of summary disposition
based on judicial estoppel in favor of defendants, Van
Dyke Public Schools (VDPS), Edie T. Burks, Mark
Skrzynski, Donald Colpaert, and Kathleen Spaulding,
on Spohn’s claim of workplace sexual harassment. We
affirm.
I. FACTS
At the time of the events leading to her workplace
sexual harassment claim, Spohn was employed as a
472 296 M
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secretary with the Van Dyke Public Schools (VDPS).
During the relevant time period, Edie T. Burks was the
personnel director for VDPS, Kathleen Spaulding was
the superintendent for VDPS, and Mark Skrzynski
served as Spohn’s direct supervisor at the Thompson
Community Center. Donald Colpaert was a teacher at
VDPS and is the individual that Spohn accused of
engaging in various communications resulting in her
sexual harassment claim.
For purposes of this appeal, the facts pertaining to
Spohn’s underlying claim of sexual harassment are not
relevant and will not be addressed because the grant of
summary disposition was premised, and is challenged,
on the basis of the trial court’s determination regarding
the applicability of judicial estoppel and Spohn’s earlier
participation in a Chapter 13 bankruptcy proceeding.
Although the parties dispute the significance of various
events that occurred during Spohn’s underlying lawsuit
for sexual harassment and her Chapter 13 bankruptcy
proceedings, as well as the trial court’s reliance on those
events in granting summary disposition, there is no
disagreement regarding the actual timeline of the
events that transpired.
The alleged incidents of harassment that comprise
Spohn’s complaint occurred from September 2008
through the beginning of December 2008. Spohn and
her husband filed their joint petition for Chapter 13
bankruptcy on November 27, 2008. This was Spohn’s
fourth petition with the bankruptcy court. Spohn and
her husband filed their proposed Chapter 13 bank-
ruptcy plan on December 9, 2008. But the proposed plan
did not refer to or mention Spohn’s potential lawsuit for
sexual harassment or hostile-environment sexual ha-
rassment against VDPS and the other defendants in
this case.
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Spohn’s final day of work with VDPS was on January
6, 2009. On that same day, Spohn’s husband contacted
an attorney to discuss whether Spohn had a potential
lawsuit against VDPS.
As part of the Chapter 13 bankruptcy proceedings,
Spohn and her husband attended a meeting of creditors
on January 14, 2009. While Spohn’s husband testified
that he had been laid off from work, neither Spohn nor
her husband indicated that they were contemplating or
pursuing civil litigation pertaining to Spohn’s employ-
ment with VDPS. Although on January 23, 2009, the
Chapter 13 Standing Trustee, Tammy Terry, filed ob-
jections to Spohn’s bankruptcy plan and sought restric-
tions premised on the number of Spohn’s prior bank-
ruptcy filings, the bankruptcy court ultimately
confirmed Spohn’s Chapter 13 plan on February 25,
2009. In May 2009, Spohn’s attorney wrote a letter to
VDPS proposing a settlement of the sexual harassment
claim.
Because of Spohn’s failure to make payments in
accordance with the Chapter 13 plan, the trustee moved
to dismiss Spohn’s Chapter 13 plan on August 26, 2009.
On September 15, 2009, Spohn filed a response to the
trustee’s motion to dismiss. On September 28, 2009,
Spohn initiated the underlying litigation in the Macomb
Circuit Court by filing her complaint alleging violation
of Michigan’s Civil Rights Act (CRA).
1
On that same
day, Spohn voluntarily withdrew her response to the
trustee’s motion to dismiss. The bankruptcy court
formally dismissed Spohn’s Chapter 13 petition on
March 11, 2010. Spohn has acknowledged, under oath,
that neither she nor her husband ever disclosed her
potential cause of action for sexual harassment while
the bankruptcy proceedings were pending.
1
MCL 37.2101 et seq.
474 296 M
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On August 16, 2010, defendants Van Dyke Public
Schools, Burks, Skrzynski, and Spaulding moved for
summary disposition of Spohn’s CRA suit pursuant to
MCR 2.116(C)(10). Although Colpaert was not initially
included as a party to this motion, he did separately file
a responsive brief concurring and seeking to join with
the other defendants in pursuing summary disposition.
Defendants’ only assertion was that Spohn was judi-
cially estopped from pursuing her sexual harassment
claim because of her failure to include this potential
lawsuit as an asset in the Chapter 13 bankruptcy
proceeding. Specifically, defendants argued that
Spohn’s failure to list her civil lawsuit as an asset
established that she asserted a contrary position in the
circuit court from that assumed in the bankruptcy court
in violation of her duty as a bankruptcy debtor to
disclose all potential causes of action. According to
defendants, such an inconsistency in her pleadings was
sufficient to support judicial estoppel. In addition, de-
fendants argued, because the bankruptcy court
“adopted the contrary position either as a preliminary
matter or as part of a final disposition,” as demon-
strated by that court’s confirmation of Spohn’s Chapter
13 plan, the criteria for judicial estoppel had been met,
necessitating dismissal of Spohn’s sexual harassment
claim.
Spohn contested the propriety of dismissal based on
judicial estoppel, asserting that on the date of filing her
Chapter 13 plan, she had no reason to believe a viable
sexual harassment claim existed. In addition, Spohn
argued, based on her inability to pay in conformance
with the bankruptcy plan as of April 27, 2009, that it
was assumed that her petition would be dismissed,
obviating any need for amendment or disclosure. Spohn
contended that the bankruptcy trustee’s motion for
dismissal was granted on October 1, 2009, and that any
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delay in the final issuance of an order of dismissal was
irrelevant. Finally, Spohn asserted that her failure to
disclose the sexual harassment lawsuit in the bank-
ruptcy proceedings did not result in an unfair advan-
tage or any substantial detriment to defendants. Spohn
averred that she had no reason or motive to conceal the
sexual harassment lawsuit from the bankruptcy court
given that it would not have resulted in any financial
benefit because her debts were not being discharged in
bankruptcy, rather she was on a schedule to pay 100
percent of her outstanding debts, the vast majority of
which were secured.
During the hearing on defendants’ motion for sum-
mary disposition, in response to argument by Spohn’s
counsel that the failure to disclose the potential lawsuit
to the bankruptcy court constituted “mistake or inad-
vertence” based on the absence of a “motive for con-
cealment,” the trial court stated:
She knew the ins and outs of bankruptcy. This was her
fourth bankruptcy.
***
So she certainly should know, or you would think
anybody with normal knowledge would know that if it’s a
potential asset down the road it’s got to be disclosed.
***
Arguably, you are talking about no motive, maybe it
would be nice to have the wild card sitting under the
blotter somewhere so when all this calms down, okay, now
you go ahead with the lawsuit. Would that be a possibility?
During further discourse with the trial court, Spohn’s
counsel acknowledged that Spohn did not disclose the
potential lawsuit to her bankruptcy attorney and did
476 296 M
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not amend her bankruptcy petition. Her counsel ar-
gued, however, that given Spohn’s anticipation that the
bankruptcy petition would be dismissed because of her
failure to make payments in accordance with the stipu-
lated plan, there was no reason for Spohn to either
disclose the potential lawsuit or amend the petition.
In granting summary disposition to defendants, the
trial court stated, in relevant part:
Yeah, she doesn’t have to know all the facts, or even the
legal basis, to list it on her assets. And she knew about it
way back in 2008, 2007 when the actual alleged acts
actually occurred in 2007, 2008. So she knew that she
possibly had a cause of action at that time.
***
You know, you talk about she’s got an obligation to
disclose all those assets and potential assets to the bank-
ruptcy court.
***
And it’s certainly contrary to her position here when she
didn’t disclose such. So I believe that judicial estoppel does
apply here, and I’m going to grant the motion.
Spohn moved for reconsideration and to permit an
evidentiary hearing in accordance with MCR
2.119(F)(3). Citing as error necessitating the trial
court’s reconsideration of its ruling, Spohn asserted
that the trial court had erred by making a determina-
tion of fact that Spohn had benefited from her nondis-
closure of the sexual harassment lawsuit to the bank-
ruptcy court, which constituted mere “speculation.”
Spohn further contended that the trial court had erred
by concluding that she would have benefited from that
nondisclosure when the relevant bankruptcy laws that
applied to her case did not involve a discharge of debts.
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Spohn took issue with the trial court’s implication that
her previous participation in earlier bankruptcy pro-
ceedings made her knowledgeable regarding any duty to
disclose the potential lawsuit in the bankruptcy court.
Finally, Spohn alleged that the trial court erred by
finding as a matter of fact that she was aware of her
potential sexual harassment cause of action at the time
she filed her bankruptcy petition in November 2008.
Spohn requested that the trial court conduct an eviden-
tiary hearing “with a bankruptcy expert” in order to
assist the trial court “in making a decision that com-
ports with Michigan law as well as bankruptcy law.”
In denying Spohn’s motion for reconsideration, the
trial court indicated that it was “satisfied that the order
is proper in all respects” and that Spohn was “attempt-
ing to revisit issues that have already been resolved.”
The trial court separately entered an order denying
Spohn’s motion for an evidentiary hearing. Spohn now
appeals.
II. SUMMARY DISPOSITION
A. STANDARD OF REVIEW
Although defendants moved for summary disposition
pursuant to MCR 2.116(C)(10), Spohn asserts that the
trial court’s grant of summary disposition based on
judicial estoppel was more properly premised on MCR
2.116(C)(7). This Court has recently discussed the stan-
dard of review for MCR 2.116(C)(7) and how it is
distinguished from MCR 2.116(C)(10):
Although courts should start with the pleadings when
reviewing a motion brought under MCR 2.116(C)(7), courts
must also consider any affidavits, depositions, admissions,
or other documentary evidence that the parties submit to
determine whether there is a genuine issue of material fact.
“[T]he trial court [is] obligated to evaluate the specific
478 296 M
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conduct alleged to determine whether a valid exception ex-
ists.” If no facts are in dispute, and if reasonable minds could
not differ regarding the legal effect of the facts, the question
whether the claim is barred is an issue of law for the court.
But if a question of fact exists so that factual development
could provide a basis for recovery, caselaw states that dis-
missal without further factual development is inappropriate.
And it is under this latter circumstance—where there are
questions of fact necessary to resolve the ultimate issue...—
that we believe the (C)(7) procedure diverges from the (C)(10)
procedure.
[
2
]
We need not determine whether the motion was
brought under the correct subrule, because the Court
will not reverse a trial court’s order if it attained the
correct result, albeit for the wrong reason.
3
This Court reviews de novo a trial court’s decision on
a motion for summary disposition.
4
When reviewing
equitable actions, this Court reviews the trial court’s
decision de novo.
5
B. JUDICIAL ESTOPPEL
Judicial estoppel is an equitable doctrine,
6
which
“generally prevents a party from prevailing in one
phase of a case on an argument and then relying on a
contradictory argument to prevail in another phase.”
7
This doctrine is “utilized in order to preserve ‘the integrity
2
Dextrom v Wexford Co, 287 Mich App 406, 431; 789 NW2d 211 (2010)
(citations omitted).
3
Taylor v Laban, 241 Mich App 449, 458; 616 NW2d 229 (2000).
4
Allison v AEW Capital Mgt, LLP, 481 Mich 419, 424; 751 NW2d 8
(2008).
5
Webb v Smith (After Remand), 204 Mich App 564, 568; 516 NW2d 124
(1994).
6
Opland v Kiesgan, 234 Mich App 352, 365; 594 NW2d 505 (1999).
7
White v Wyndham Vacation Ownership, Inc, 617 F3d 472, 476 (CA 6,
2010) (citation and quotation marks omitted).
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of the courts by preventing a party from abusing the judicial
process through cynical gamesmanship.’ ” Browning v. Levy,
283 F.3d 761, 775 (6th Cir. 2002); see also Eubanks[ vCBSK
Fin Group, Inc, 385 F3d 894, 897 (CA 6, 2004)] (“Judicial
estoppel, however, should be applied with caution to ‘avoid
impinging on the truth-seeking function of the court, because
the doctrine precludes a contradictory position without exam-
ining the truth of either statement.’ ”).
[
8
]
Under the “prior success model” of judicial estoppel,
“a party who has successfully and unequivocally as-
serted a position in a prior proceeding is estopped from
asserting an inconsistent position in a subsequent pro-
ceeding.”
9
In accordance with this model of judicial
estoppel, “the mere assertion of inconsistent positions
is not sufficient to invoke estoppel; rather, there must
be some indication that the court in the earlier proceed-
ing accepted that party’s position as true. Further, in
order for the doctrine of judicial estoppel to apply, the
claims must be wholly inconsistent.”
10
The prior success
model, however, “does not mean that the party against
whom the judicial estoppel doctrine is to be invoked
must have prevailed on the merits.”
11
More specifically, in the context of bankruptcy pro-
ceedings, the federal courts
12
have indicated that
to support a finding of judicial estoppel, [a reviewing court]
must find that: (1) [the plaintiff] assumed a position that
was contrary to the one that she asserted under oath in the
8
Id.
9
Paschke v Retool Indus, 445 Mich 502, 509; 519 NW2d 441 (1994)
(citations and quotation marks omitted).
10
Id. at 510.
11
Reynolds v Internal Revenue Comm’r, 861 F2d 469, 473 (CA 6, 1988).
12
“Although the decisions of lower federal courts are not binding
precedents, federal decisions...areoften persuasive.” Adams v Adams
(On Reconsideration), 276 Mich App 704, 715-716; 742 NW2d 399 (2007)
(citation omitted).
480 296 M
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bankruptcy proceedings; (2) the bankruptcy court adopted
the contrary position either as a preliminary matter or as
part of a final disposition; and (3) [the plaintiff’s] omission
did not result from mistake or inadvertence. In determin-
ing whether [the plaintiff’s] conduct resulted from mistake
or inadvertence, [the reviewing] court considers whether:
(1) [the plaintiff] lacked knowledge of the factual basis of
the undisclosed claims; (2) [the plaintiff] had a motive for
concealment; and (3) the evidence indicates an absence of
bad faith. In determining whether there was an absence of
bad faith, [the reviewing court] will look, in particular, at
[the plaintiff’s] “attempts” to advise the bankruptcy court
of [the plaintiff’s] omitted claim.
[
13
]
1. ASSUMPTION OF CONTRARY POSITION
As stated, to establish the first requirement for the
imposition of judicial estoppel, it must be shown that the
plaintiff “assumed a position that was contrary to the one
that she asserted under oath in the bankruptcy proceed-
ings[.]”
14
In this case, it is undisputed that Spohn did
not include her potential sexual harassment lawsuit on
her bankruptcy petition and did not amend that peti-
tion to list the possible cause of action while the
bankruptcy remained pending. This failure to disclose
the potential lawsuit was contrary to the bankruptcy
code,
15
which requires a debtor to file a schedule of
assets and liabilities, a schedule of current income and
current expenditures, and a statement of the debtor’s
financial affairs.
16
It is routinely recognized that a
potential cause of action constitutes an asset that must
be included under 11 USC 521(a)(1)(B)(i).
17
In delineat-
ing this obligation, the federal courts have stated:
13
White, 617 F3d at 478.
14
Id.
15
11 USC 101 et seq.
16
11 USC 521(a)(1)(B).
17
See Eubanks, 385 F3d at 897.
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The debtor need not know all the facts or even the legal
basis for the cause of action; rather, if the debtor has
enough information... prior to confirmation to suggest
that it may have a possible cause of action, then that is a
known cause of action such that it must be disclosed. Any
claim with potential must be disclosed, even if it is contin-
gent, dependent, or conditional.
[
18
]
Further, “ ‘[t]he duty of disclosure in a bankruptcy
proceeding is a continuing one, and a debtor is required
to disclose all potential causes of action’.”
19
The disclo-
sure obligations of debtors are considered to be essen-
tial to the bankruptcy process:
The rationale for...decisions [invoking judicial estop-
pel to prevent a party who failed to disclose a claim in
bankruptcy proceedings from asserting that claim after
emerging from bankruptcy] is that the integrity of the
bankruptcy system depends on full and honest disclosure by
debtors of all of their assets. The courts will not permit a
debtor to obtain relief from the bankruptcy court by
representing that no claims exist and then subsequently to
assert those claims for his own benefit in a separate
proceeding. The interests of both the creditors, who plan
their actions in the bankruptcy proceeding on the basis of
information supplied in the disclosure statements, and the
bankruptcy court, which must decide whether to approve the
plan of reorganization on the same basis, are impaired
when the disclosure provided by the debtor is incomplete.
[
20
]
Because there is no dispute that Spohn failed to
include the sexual harassment claim on her bankruptcy
petition, or to amend that petition, the first require-
ment for the application of judicial estoppel was dem-
18
In re Coastal Plains, Inc, 179 F3d 197, 208 (CA 5, 1999) (citations
and quotation marks omitted).
19
Id., quoting Youngblood Group v Lufkin Fed S&L Ass’n, 932 F Supp
859, 867 (ED Tex, 1996).
20
Coastal Plains, 179 F3d at 208, quoting Rosenshein v Kleban, 918 F
Supp 98, 104 (SD NY, 1996) (alteration in original).
482 296 M
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onstrated because Spohn assumed a position in the
bankruptcy proceeding that was contrary to her posi-
tion in the circuit court.
2. BANKRUPTCY COURT’S ADOPTION OF THE CONTRARY POSITION
To establish the second requirement for the imposi-
tion of judicial estoppel, it must be shown that “the
bankruptcy court adopted the contrary position either
as a preliminary matter or as part of a final disposi-
tion[.]”
21
To establish “adoption,” it must only be shown
that the bankruptcy court confirmed Spohn’s plan,
which did not refer to Spohn’s potential sexual harass-
ment lawsuit.
22
Because it is undisputed that the bank-
ruptcy court confirmed Spohn’s Chapter 13 plan, the
second requirement of “adoption” for judicial estoppel
was established.
3. MISTAKE OR INADVERTENCE
To establish the third requirement for the imposition of
judicial estoppel, it must be shown that the plaintiff’s
“omission did not result from mistake or inadvertence.”
23
And to determine if a plaintiff’s omission constituted
“mistake or inadvertence,” courts consider whether “(1)
she lacked knowledge of the factual basis of the undis-
closed claims; (2) she had a motive for concealment; and
(3) the evidence indicates an absence of bad faith.”
24
a. LACK OF KNOWLEDGE
As stated, when considering if a plaintiff’s omission
constituted mistake or inadvertence, courts first con-
21
White, 617 F3d at 478.
22
See id. at 479.
23
Id. at 478.
24
Id.
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sider whether the plaintiff “lacked knowledge of the
factual basis of the undisclosed claims[.]”
25
But here,
Spohn cannot legitimately dispute that she was aware
and had knowledge of the factual basis of the undis-
closed claim.
Spohn’s own allegations and admissions in the
circuit court reveal that the events comprising the
substance of her sexual harassment claim primarily
occurred from September 2008 through early Decem-
ber 2008. Spohn’s Chapter 13 bankruptcy petition
was filed on November 28, 2008, with the actual
Chapter 13 plan submitted on December 9, 2008.
Spohn’s final day of work with VDPS was on January
6, 2009. On this same date, Spohn and her husband
discussed her potential sexual harassment lawsuit
with an attorney. A “debtor need not know all the
facts or even the legal basis for the cause of action;
rather, if the debtor has enough information...prior
to confirmation to suggest that it may have a possible
cause of action, then that is a ‘known’ cause of action
such that it must be disclosed.”
26
Spohn relinquished
her employment with VDPS and spoke with an attorney
regarding her sexual harassment claim at least one
week before participating in a creditors meeting in the
bankruptcy court and before the trustee filed objections
to the plan. Spohn’s awareness of her potential claim
occurred more than one month before her Chapter 13
plan was ultimately confirmed by the bankruptcy court
on February 25, 2009. Given the continuing nature of
her disclosure obligation, Spohn cannot successfully
contend that she was unaware of her potential claim.
25
Id.
26
Coastal Plains, 179 F3d at 208 (citation and quotation marks
omitted).
484 296 M
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b. CONCEALMENT
When considering if a plaintiff’s omission constituted
mistake or inadvertence, courts next consider whether
the plaintiff “had a motive for concealment[.]”
27
And in
accordance with caselaw, a presumption regarding a
motive to conceal exists because “[i]t is always in a
Chapter 13 petitioner’s interest to minimize income
and assets” in order to secure payment directly rather
than to the debtor’s estate.
28
A debtor loses all rights to
his or her property upon filing for bankruptcy.
29
As a
result, “the right to pursue causes of action formerly
belonging to the debtor...vests in the trustee for the
benefit of the estate. The debtor has no standing to
pursue such causes of action.”
30
Spohn’s failure to
initially disclose her possible lawsuit or to later amend
her bankruptcy petition, despite opportunity, suggests a
motive for concealment.
Nevertheless, Spohn argues that she lacked a motive to
conceal because she was not seeking a discharge in the
bankruptcy court as her plan provided for 100 percent
payment to her creditors. In support, Spohn submits an
affidavit from her bankruptcy attorney. While the affidavit
confirms Spohn’s assertion that she was involved in a
payment plan that would require 100 percent payment of
all debts and not a discharge, it does not address the
failure to disclose the potential lawsuit. There is no
evidence to suggest that Spohn disclosed the existence of
the potential lawsuit to her bankruptcy attorney, which
further serves to suggest Spohn had a motive to conceal.
Spohn’s assertion that her plan would not have differed
27
White, 617 F3d at 478.
28
Id. at 479 (citation and quotation marks omitted).
29
See 11 USC 541(a).
30
Bauer v Commerce Union Bank, 859 F2d 438, 441 (CA 6, 1988)
(citation and quotation marks omitted).
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regardless whether she disclosed her potential lawsuit is
unavailing and evidences a misconception or misunder-
standing of the applicable law. When viewed within the
context of a motive to conceal, the issue is not whether the
plan would ultimately have been any different but, rather,
whether there is sufficient evidence to demonstrate that
Spohn was trying to retain assets that rightfully belonged
to the estate and that should have been within the control
of the trustee.
In addition, Spohn alleges that because of her inability
to maintain the scheduled payment plan, she presumed
that her bankruptcy petition would be dismissed and,
thus, any need for amendment of the petition was effec-
tively rendered moot. We again find this argument un-
availing. Although the bankruptcy petition was dismissed
because of a failure to comply with the payment schedule,
it cannot be determined whether the existence of the
possible civil lawsuit would have altered the bankruptcy
court’s decision in this regard. Had the lawsuit been
disclosed, the trustee could have elected to pursue the
claim, on Spohn’s behalf, with any recovery available to
the estate for payment of creditors. The existence of the
possible lawsuit might have resulted in an amendment of
the Chapter 13 plan rather than its complete dismissal.
Moreover, Spohn’s contention that her failure to disclose
the asset was simply her belief that anticipated dismissal
of the petition rendered the necessity for disclosure moot,
is more properly considered within the context of whether
“the evidence indicates an absence of bad faith,”
31
rather
than motive for concealment.
c. BAD FAITH
When considering whether “the evidence indicates
an absence of bad faith,” courts will look, in particular,
31
White, 617 F3d at 478.
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at the plaintiff’s “attempts” to advise the bankruptcy
court of the omitted claim.
32
More specifically, courts
primarily examine a plaintiff’s efforts to correct the
bankruptcy schedules and to make the bankruptcy
court aware of any initially undisclosed claims.
33
“Since
the bankruptcy system depends on accurate and timely
disclosures, the extent of these efforts, together with
their effectiveness, is important.”
34
In this case, there is
no dispute that Spohn did not inform the bankruptcy
court of the potential sexual harassment lawsuit or
make any attempts to amend her bankruptcy petition.
This supports that Spohn was acting in bad faith.
And Spohn’s contention that her filing of the sexual
harassment lawsuit before formal dismissal of the
bankruptcy petition evidences her lack of bad faith is
unavailing. On August 26, 2009, the bankruptcy trustee
filed its motion to dismiss Spohn’s Chapter 13 plan.
Spohn then filed this litigation on September 28, 2009.
On that same day, Spohn voluntarily withdrew her
response to the bankruptcy trustee’s motion to dismiss.
Although Spohn’s bankruptcy petition was not formally
dismissed until March 11, 2010, her failure to disclose
the sexual harassment lawsuit after the trustee had
submitted a motion to dismiss further suggests Spohn’s
bad faith.
Similarly, Spohn’s assertion that her failure to dis-
close the potential lawsuit was merely mistake or inad-
vertence because she was unaware of her duty to
disclose cannot be supported. “[I]f [courts] were to
equate lack of legal training regarding a statutory duty
to disclose or absence of affirmative efforts to conceal
the claim with excusable mistake or inadvertence, it
32
Id.
33
Id. at 480.
34
Id.
2012] S
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V
AN
D
YKE
P
UB
S
CH
487
would undermine the familiar maxim that, even for pro
se litigants, ignorance of the law is no excuse.”
35
In
addition:
The Debtor signed her bankruptcy petition under pen-
alty of perjury. By doing so, she certified that she had no
claims against the Defendants. It was the Debtor’s respon-
sibility to verify the accuracy of the information contained
in her schedules and statement of financial affairs and she
“had the duty to carefully consider all of the questions
posed and to see that they [were] completely and correctly
answered.”
[
36
]
Thus, alleged lack of knowledge of the duty to disclose is
not a defense to failing to fulfill that duty.
4. UNFAIR DISADVANTAGE OR DETRIMENT
Spohn contends there is an additional factor to be
considered in the application of judicial estoppel. Citing
New Hampshire v Maine,
37
Spohn points to the consid-
eration in that case of a factor involving the existence of
an “unfair advantage” or “unfair detriment.” The
Court in New Hampshire delineated the factors for
application of judicial estoppel as follows:
First, a party’s later position must be clearly inconsis-
tent with its earlier position. Second, courts regularly
inquire whether the party has succeeded in persuading a
court to accept that party’s earlier position, so that judicial
acceptance of an inconsistent position in a later proceeding
would create the perception that either the first or the
35
Riddle v Chase Home Fin, unpublished opinion of the United States
District Court for the Eastern District of Michigan, issued September 2,
2012 (Docket No. 09-11182), 2010 WL 3504020 at *6.
36
In re Johnson, 345 BR 816, 825 (WD Mich, 2006) (citation omitted)
(alteration in original).
37
New Hampshire v Maine, 532 US 742; 121 S Ct 1808; 149 L Ed 2d
968 (2001).
488 296 M
ICH
A
PP
470 [May
second court was misled.... A third consideration is
whether the party seeking to assert an inconsistent position
would derive an unfair advantage or impose an unfair
detriment on the opposing party if not estopped.
In enumerating these factors, we do not establish inflex-
ible prerequisites or an exhaustive formula for determining
the applicability of judicial estoppel. Additional consider-
ations may inform the doctrine’s application in specific
factual contexts.
[
38
]
But this additional factor is not determinative here.
The purpose of the doctrine of judicial estoppel, espe-
cially in the context of bankruptcy proceedings, is to
protect the judicial process, not the parties.
39
The doctrine of judicial estoppel is driven by the impor-
tant motive of promoting truthfulness and fair dealing in
court proceedings. Judicial estoppel differs from such other
forms of estoppel as promissory estoppel and equitable
estoppel in that judicial estoppel focuses on the relation-
ship between the litigant and the judicial system as a
whole, rather than solely on the relationship between the
parties. Of utmost importance in determining whether to
apply the doctrine of judicial estoppel is whether the party
seeking to assert an inconsistent position would derive an
unfair advantage***ifnotestopped.
[
40
]
Again, as stated, the disclosure obligations of debtors
are considered to be essential to the bankruptcy process
because the
rationale for...decisions [invoking judicial estoppel to
prevent a party who failed to disclose a claim in bankruptcy
proceedings from asserting that claim after emerging from
bankruptcy] is that the integrity of the bankruptcy system
38
Id. at 750-751 (emphasis added) (citations and quotation marks
omitted).
39
Id. at 749-750.
40
Gaumond v Trinity Repertory Co, 909 A2d 512, 519 (RI, 2006), citing
New Hampshire, 532 US at 751 (citations and quotation marks omitted).
2012] S
POHN V
V
AN
D
YKE
P
UB
S
CH
489
depends on full and honest disclosure by debtors of all of
their assets. The courts will not permit a debtor to obtain
relief from the bankruptcy court by representing that no
claims exist and then subsequently to assert those claims
for his own benefit in a separate proceeding. The interests
of both the creditors, who plan their actions in the bank-
ruptcy proceeding on the basis of information supplied in
the disclosure statements, and the bankruptcy court, which
must decide whether to approve the plan of reorganization
on the same basis, are impaired when the disclosure pro-
vided by the debtor is incomplete.
[
41
]
Spohn received an unfair advantage over her credi-
tors in the bankruptcy action by not disclosing the
possible sexual harassment lawsuit.
5. CONCLUSION
In sum, we conclude that (1) by failing to disclose her
sexual harassment claim, Spohn assumed a position that
was contrary to the one that she had asserted under oath
in the bankruptcy proceedings; (2) the bankruptcy court
adopted the contrary position by confirming Spohn’s
Chapter 13 plan, which did not refer to her potential
sexual harassment lawsuit; and (3) Spohn’s omission did
not result from mistake or inadvertence. On this latter
point, Spohn had knowledge of the factual basis of the
undisclosed sexual harassment claim, yet she never at-
tempted to advise the bankruptcy court of the existence of
that claim, which indicates both concealment and bad
faith. Moreover, Spohn received an unfair advantage over
her creditors in the bankruptcy action by not disclosing
the possible sexual harassment lawsuit. Accordingly, we
hold that the trial court did not err by concluding that
judicial estoppel barred Spohn’s claim.
41
Coastal Plains, 179 F3d at 208 (citation and quotation marks
omitted).
490 296 M
ICH
A
PP
470 [May
C. ALLEGEDLY IMPROPER FACT-FINDING
Spohn contends that the trial court engaged in im-
proper fact-finding when it implied that Spohn had a
motive to conceal her sexual harassment claims from
the bankruptcy court and that the court’s finding in
that regard was speculative. Spohn further argues that
the trial court ignored affidavits submitted contesting
the grant of summary disposition, despite the failure of
defendants to submit any evidence or documentation
contradicting the content of the affidavits.
Spohn is correct in her assertion that a trial court is
precluded from making findings of fact or resolving
issues of credibility when deciding a summary disposi-
tion motion.
42
Spohn refers to the trial court’s com-
ments indicating that she had a motive to conceal her
lawsuit from the bankruptcy court and implying her
bad faith. Specifically, the colloquy in the trial court on
the motion for summary disposition included the fol-
lowing comments in response to Spohn’s counsel’s
argument that Spohn had no motive to conceal:
The Court: She knew the ins and outs of bankruptcy.
This was her fourth bankruptcy.
[Plaintiff’s Counsel]: Yes, it was.
The Court: So she certainly should know, or you would
think anybody with normal knowledge would know that if
it’s a potential asset down the road it’s got to be disclosed.
[Plaintiff’s Counsel]: Well, I don’t, there is no evidence
that she knew she had a potential asset.
When she, when she came to the conclusion the only
time that she [sic], this court could look to that she
conceivably came to a conclusion that she had the requisite
facts to draw that conclusion, was when her attorney wrote
a letter in May of 2009.
42
Jackhill Oil Co v Powell Prod, Inc, 210 Mich App 114, 117; 532 NW2d
866 (1995).
2012] S
POHN V
V
AN
D
YKE
P
UB
S
CH
491
But in May of 2009 the Chapter 13 in her mind was
already on its way to being dismissed.
Plus the Browning case indicates that there has to be
some showing of a benefit to her or a detriment to the
plaintiff [sic] in this matter.
The Court: Potential benefit.
[Plaintiff’s Counsel]: What potential benefit is there to
her in this case[?]
The Court: Well, she has, let’s say she has a wild card
sitting under the blotter here. Maybe when all this goes,
you know—
I’m just speculating now.
[Plaintiff’s Counsel]: I understand.
The Court: —sort of a—
Arguably, you are talking about no motive, maybe it
would be nice to have the wild card sitting under the
blotter somewhere so when all this calms down, okay, now
you go ahead with the lawsuit. Would that be a possibility?
[Plaintiff’s Counsel]: I suppose if she had [sic], was a
person who was lying in wait, but that is not what
happened in this case. There was no lying in wait.
She didn’t create—
She didn’t send a letter out, her attorney didn’t send out
a letter in May 2009 after everything was resolved. I
supposed [sic], to your point, had she waited until every-
thing was resolved and then done that, conceivably, but she
didn’t. In fact, the fact that she didn’t—
The Court: She didn’t disclose it to her attorney.
In this case, the trial court’s statements and inquiries
merely consisted of a means to question and challenge
Spohn’s counsel’s argument based, in part, on the facts
before the trial court regarding Spohn’s familiarity with
bankruptcy proceedings and her duty or obligation to
disclose the lawsuit as a possible asset. And even in the
one instance that the trial court suggests that Spohn could
492 296 M
ICH
A
PP
470 [May
have received a “potential benefit” from the failure to
disclose, the trial court acknowledged it was engaged in
speculation and not fact-finding.
Further, in granting summary disposition, the trial
court explained its ruling, stating:
Yeah, she doesn’t have to know all the facts, or even the
legal basis, to list it on her assets. And she knew about it
way back in 2008, 2007 when the actual alleged acts
actually occurred in 2007, 2008. So she knew that she
possibly had a cause of action at that time.
***
You know, you talk about she’s got an obligation to
disclose all those assets and potential assets to the bank-
ruptcy court.
***
And it’s certainly contrary to her position here when she
didn’t disclose such. So I believe that judicial estoppel does
apply here, and I’m going to grant the motion.
The trial court’s ruling was not premised on its
speculation or finding of fact regarding Spohn’s motive
to conceal or bad faith. Rather, when viewed in context,
the trial court’s ruling was a legal determination that
Spohn’s failure to disclose her potential claims in the
bankruptcy court was consistent with the applicability
of judicial estoppel. Therefore, the trial court did not
violate the bar against fact-finding and credibility de-
terminations by a trial court when ruling on summary
disposition.
We affirm.
W
HITBECK
,P.J., and J
ANSEN
and K. F. K
ELLY
,JJ.,
concurred.
2012] S
POHN V
V
AN
D
YKE
P
UB
S
CH
493
PEOPLE v GLENN-POWERS
Docket No. 301914. Submitted January 10, 2012, at Lansing. Decided
May 8, 2012, at 9:10 a.m.
While Lawrence Z. Glenn-Powers was on probation, his probation
officer requested an arrest warrant for probation violations re-
garding his failure to notify the probation officer of a change of
address, his commission of a crime (an assault), and his failure to
comply with the requirement of probation that he participate in an
adult education or general equivalency diploma program. The
motion and affidavit section of the form entitled “Motion, Affida-
vit, and Bench Warrant” was signed by the probation officer, but
was not subscribed and sworn under oath. The bench warrant
portion was signed by a circuit court judge. When defendant next
reported to the probation officer, the probation officer summoned
a deputy sheriff to place defendant under arrest. The deputy
sheriff placed defendant under arrest on the basis of the warrant
and conducted a search of defendant that yielded 35 packets of
heroin. Defendant was charged in the Washtenaw Circuit Court
with possession of heroin. Defendant moved to suppress the
evidence on the basis that the arrest warrant was defective
because the affidavit supporting it was not made under oath or
affirmation as required by the Fourth Amendment. The court,
Melinda Morris, J., agreed with defendant, granted his motion, and
dismissed the case without prejudice. The prosecution appealed.
The Court of Appeals held:
The trial court erred by granting defendant’s motion to sup-
press the evidence.
1. MCL 764.15(1)(g) authorizes the arrest of a probationer
without a warrant when the arresting officer has reasonable cause
to believe that the probationer has committed a probation viola-
tion. There was probable cause to believe that defendant had
committed a probation violation.
2. Because the probation officer had probable cause to believe
that defendant had committed a probation violation, the warrant
was not the only basis for his arrest and it is irrelevant that the
arresting officer had a subjective belief that the warrant was
494 296 M
ICH
A
PP
494 [May
necessary. The objective truth is that the arresting officer had a
legitimate basis to arrest defendant without a warrant. The arrest
was valid.
3. Because defendant was alleged to have violated his proba-
tion by committing an assault, a misdemeanor punishable by up to
93 days’ imprisonment, MCL 764.15(1)(d) provides that he could
be arrested without a warrant.
4. The requirement of the Fourth Amendment that an arrest
warrant be supported by an oath or affirmation does not apply to
a warrant for the arrest of a probationer.
5. Even if MCR 6.445(A) creates a requirement that probation-
violation proceedings must be commenced by either a summons or
an arrest warrant and that the warrant must be sworn to, any
violation of that requirement did not amount to a Fourth Amend-
ment violation that rendered the arrest, and the subsequent
search, constitutionally infirm.
Reversed and remanded.
1. A
RREST —
P
ROBATION —
A
RREST OF
P
ROBATIONER
W
ITHOUT
W
ARRANT
.
A probationer may be arrested without a warrant when a peace
officer has reasonable cause to believe that the probationer has
violated a condition of probation (MCL 764.15[1][g]).
2. A
RREST —
A
RRESTING
O
FFICER
’
S
S
TATE OF
M
IND —
P
ROBABLE
C
AUSE
.
An arresting officer’s state of mind, except for the facts that he or
she knows, is irrelevant to the existence of probable cause; the
officer’s subjective reason for making the arrest need not be the
criminal offense as to which the known facts provide probable
cause; the fact that the officer does not have the state of mind that
is hypothecated by the reasons that provide the legal justification
for the officer’s action does not invalidate the action as long as the
circumstances, viewed objectively, justify the action; the Fourth
Amendment creates an objective standard to determine whether
an arrest was lawful, without regard to the arresting officer’s
subjective belief.
3. S
ENTENCES —
P
ROBATION —
S
EARCHES AND
S
EIZURES OF
P
ROBATIONERS
.
Probation is a matter of legislative grace; a probationer has no
vested right in the continuation of probation and the probation
order remains revocable and amendable at all times; a sentence of
supervised release involves the surrender of certain constitutional
rights; a probationer has a diminished expectation of privacy and
may be subjected to searches that might be unreasonable if
conducted on members of the general public; the Fourth Amend-
2012] P
EOPLE V
G
LENN
-P
OWERS
495
ment does not require a warrant to search a probationer’s home or
to arrest the probationer, therefore, the Fourth Amendment’s oath
and affirmation requirement generally applicable to warrants does
not apply to a warrant for the arrest of a probationer.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Brian L. Mackie, Prosecuting Attor-
ney, and David A. King, Senior Assistant Prosecuting
Attorney, for the people.
Lloyd E. Powell, Washtenaw County Public Defender,
and Stephen M. Adams, Assistant Washtenaw County
Public Defender, for defendant.
Before: S
AWYER
,P.J., and W
HITBECK
and M. J. K
ELLY
,
JJ.
S
AWYER
,P.J. This case presents the question whether
a probationer was lawfully arrested pursuant to a
probation-violation warrant when the probation-
violation warrant was not sworn under oath. We con-
clude that, because a warrant is not required under the
Fourth Amendment to make an arrest for a probation
violation, it is irrelevant whether the warrant was
properly issued in determining whether there was a
Fourth Amendment violation. Accordingly, we reverse
and remand.
Defendant was on probation in an unrelated case in
the Washtenaw Circuit Court. His probation officer,
Thomas Mihalic, requested an arrest warrant for pro-
bation violations. Mihalic utilized a standard State
Court Administrator’s Office (SCAO) form entitled
“Motion, Affidavit, and Bench Warrant.” That form
alleged three reasons to arrest defendant and revoke his
probation: failure to notify the probation officer of a
change of address, commission of a crime (assault), and
failure to comply with the requirement that he partici-
496 296 M
ICH
A
PP
494 [May
pate in an adult education or general equivalency
diploma (GED) program. The motion and affidavit
section was signed by Mihalic, but it was not subscribed
and sworn under oath. The bench warrant portion was
signed by the circuit judge in this case.
A few days later, defendant reported to Mihalic at the
Washtenaw County Courthouse. Washtenaw County
Deputy Sheriff David Anderson was summoned to place
defendant under arrest. Deputy Anderson testified that
the arrest was based on the warrant that had been
presented to him by Mihalic. A search subsequent to the
arrest conducted by Deputy Anderson yielded 35 pack-
ets of heroin. Defendant was charged with possession of
heroin.
1
Defendant moved to suppress the evidence on the
basis that the search followed an unlawful arrest. The
trial court thereafter granted defendant’s motion on
the basis that the arrest warrant was defective because
it was not supported by an affidavit made under oath or
affirmation as required by the Fourth Amendment of
the United States Constitution. The trial court also
rejected the argument that the good-faith exception
applied. The trial court dismissed the case without
prejudice. The prosecution now appeals, and we re-
verse.
There are, in fact, a number of reasons why the
arrest and subsequent search in this case was, in fact,
lawful. For the reasons discussed below, we conclude
that the trial court erred by granting defendant’s mo-
tion to suppress.
We begin by noting that the trial court did not
conclude, nor does defendant argue, that there is any
defect in the search aside from the arrest issue. That
1
MCL 333.7403(2)(a)(v).
2012] P
EOPLE V
G
LENN
-P
OWERS
497
is, the only claim that the search was improper is
based on the argument that the arrest itself was
improper because of the fact that the warrant was not
supported by an oath or affirmation. If we determine
that the arrest was proper, then it will automatically
follow that the search was proper. Similarly, there
was no determination by the trial court, nor does
defendant argue, that there was, in fact, a lack of
probable cause to support the issuance of an arrest
warrant. Rather, the trial court’s holding was based
on a conclusion that the requirement of the Fourth
Amendment that “no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation”
was not complied with regarding the oath or affirma-
tion and, therefore, the arrest warrant was defective
and the arrest under the warrant was unlawful. Indeed,
the trial court even noted in its opinion on the motion to
suppress that in the separate probation-revocation pro-
ceedings, defendant had pleaded responsible to the
probation violations. Accordingly, we will proceed with
our analysis under the assumption that there was, in
fact, probable cause to believe that defendant commit-
ted the alleged probation violations listed in the war-
rant.
The first reason why this was a valid arrest is that an
arrest warrant was not, in fact, required in this case.
MCL 764.15(1)(g) authorizes an arrest without a war-
rant whenever a “peace officer has reasonable cause to
believe the person...hasviolated 1 or more conditions
of a...probation order imposed by a court of this
state....”Asnoted above, there is no argument in this
case that there was, in fact, probable cause to believe
that defendant had committed a probation violation or
that the arresting officer had probable cause to so
believe.
498 296 M
ICH
A
PP
494 [May
Although defendant acknowledges in his brief that
probation-violation proceedings can be commenced
without the issuance of an arrest warrant, he attempts
to argue that that is irrelevant because a warrant was
nevertheless obtained and was invalid. Defendant sup-
ports this argument with the observation that the
arresting officer stated that the warrant was the only
basis for the arrest. But, as discussed already, the
warrant was not the only basis for the arrest. And the
fact that the arresting officer may have erroneously
believed that it was is irrelevant.
In Devenpeck v Alford,
2
the United States Supreme
Court addressed the issue whether an arresting officer
must correctly identify the basis for an arrest in order
for the arrest to be valid. In Devenpeck, the officer
arrested the plaintiff for a violation of the Washington
Privacy Act.
3
The charge was subsequently dismissed,
and the plaintiff filed suit, arguing that he had been
arrested without probable cause.
4
The United States
Court of Appeals for the Ninth Circuit had ruled that
the probable cause for the arrest must be related to the
charge that the officer arrested the person for, or for a
closely related offense.
5
The Supreme Court disagreed,
concluding that what matters is whether objectively
there exists probable cause to believe that a crime has
occurred, not whether the officer subjectively identified
the correct crime:
Our cases make clear that an arresting officer’s state of
mind (except for the facts that he knows) is irrelevant to
the existence of probable cause. See Whren v. United States,
517 U.S. 806, 812-813, 135 L. Ed. 2d 89, 116 S. Ct. 1769
2
Devenpeck v Alford, 543 US 146; 125 S Ct 588; 160 L Ed 2d 537 (2004).
3
Wash Rev Code 9.73.030.
4
Devenpeck, 543 US at 151.
5
Id. at 152.
2012] P
EOPLE V
G
LENN
-P
OWERS
499
(1996) (reviewing cases); Arkansas v. Sullivan, 532 U.S.
769, 149 L. Ed. 2d 994, 121 S. Ct. 1876 (2001) (per curiam).
That is to say, his subjective reason for making the arrest
need not be the criminal offense as to which the known
facts provide probable cause. As we have repeatedly ex-
plained, “ ‘the fact that the officer does not have the state
of mind which is hypothecated by the reasons which
provide the legal justification for the officer’s action does
not invalidate the action taken as long as the circum-
stances, viewed objectively, justify that action.’ ” Whren,
supra, at 813, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (quoting
Scott v. United States, 436 U.S. 128, 138, 56 L. Ed. 2d 168,
98 S. Ct. 1717 (1978)). “[T]he Fourth Amendment’s con-
cern with ‘reasonableness’ allows certain actions to be
taken in certain circumstances, whatever the subjective
intent.” Whren, supra, at 814, 135 L. Ed. 2d 89, 116 S. Ct.
1769. “[E]venhanded law enforcement is best achieved by
the application of objective standards of conduct, rather
than standards that depend upon the subjective state of
mind of the officer.” Horton v. California, 496 U.S. 128, 138,
110 L. Ed. 2d 112, 110 S. Ct. 2301 (1990).
[
6
]
While Devenpeck involved the question whether the
arresting officer correctly identified the crime for which
to book the suspect, and this case involves whether the
arresting officer correctly identified the legal basis for
the arrest, we do not believe that that supplies a
meaningful difference. The Supreme Court clearly es-
tablished that the Fourth Amendment creates an objec-
tive standard to determine whether an arrest was
lawful, without regard to the arresting officer’s subjec-
tive belief. And the objective truth in this case is that
the arresting officer had a legitimate basis to arrest
defendant without a warrant. Therefore, the arrest was
valid without regard to the officer’s subjective belief
that he needed a warrant. In sum, the officer’s errone-
ous belief that a warrant was necessary, as well as any
6
Id. at 153.
500 296 M
ICH
A
PP
494 [May
erroneous belief that the warrant was valid, is immate-
rial to the question whether the arrest was valid under
the Fourth Amendment.
The next reason that this arrest was valid is similar
to the first. One of the reasons for the probation
violation was that defendant had committed an assault.
An ordinary assault and battery
7
is a misdemeanor
punishable by up to 93 days’ imprisonment. And, as
such, it too justifies an arrest without a warrant.
8
Finally, the prosecution also argues that the principle
discussed in Triplett v Deputy Warden, Jackson Prison,
9
that the probable cause and oath or affirmation require-
ments of the Fourth Amendment do not apply to
parole-revocation warrants, should also apply to
probation-violation warrants. Defendant counters that
Triplett is inapplicable here because, unlike a proba-
tioner, a parolee is considered to still be in custody, not
just in prison.
10
While the status of a probationer and a
parolee are arguably different, that does not mean that
the probationer necessarily enjoys the same Fourth
Amendment protections as a member of the general
public unencumbered by an order of probation.
In Triplett,
11
this Court addressed a prisoner’s habeas
corpus challenge. The prisoner argued, in relevant part,
that his incarceration was unconstitutional because the
warrant for his arrest for a parole violation was “not
supported by a showing of probable cause or by oath or
affirmation.”
12
This Court, agreeing with federal au-
7
MCL 750.81.
8
MCL 764.15(1)(d).
9
Triplett v Deputy Warden, Jackson Prison, 142 Mich App 774,
781-783; 371 NW2d 862 (1985).
10
See id. at 781.
11
Id.
12
Id.
2012] P
EOPLE V
G
LENN
-P
OWERS
501
thorities, determined that the oath or affirmation re-
quirements of the United States Constitution and the
Michigan Constitution did not apply to a warrant for
the arrest of a parolee for a parole violation.
13
We find
this analysis persuasive.
Probation is a matter of legislative grace. People v
Johnson.
14
Because it is a matter of grace, a defendant
has no vested right in its continuance and the probation
order remains at all times revocable and amendable.
15
Similarly, a sentence of supervised release necessarily
involves the surrender of certain constitutional rights.
See People v Harper.
16
In addition, a probationer has a
diminished expectation of privacy and, accordingly, may
be subjected to searches that might be unreasonable if
conducted on members of the general public. See United
States v Knights.
17
In Knights, the Supreme Court of
the United States explained that—at least with regard
to searches—the “balance of governmental and private”
interests warranted “a lesser than probable-cause stan-
dard” of protection under the Fourth Amendment;
specifically, the Court held that a probationer has
“significantly diminished privacy interests” so that an
officer need only have a “reasonable suspicion” that the
13
Id. at 781-782 (agreeing that a revocation of parole does not
constitute a seizure that invokes the oath or affirmation requirement and
concluding on that basis that the prisoner’s “reincarcerat[ion] pursuant
to a parole-violation warrant that was not supported by oath or affirma-
tion” was not illegal).
14
People v Johnson, 210 Mich App 630, 634; 534 NW2d 255 (1995).
15
Id.
16
People v Harper, 479 Mich 599, 627; 739 NW2d 523 (2007) (noting
that a probationer does not have the right to a jury trial at a revocation
hearing and does not have the right to have the violation proved beyond
a reasonable doubt).
17
United States v Knights, 534 US 112; 122 S Ct 587; 151 L Ed 2d 497
(2001).
502 296 M
ICH
A
PP
494 [May
probationer is engaged in criminal activity before the
officer could lawfully search the probationer.
18
Moreover, the United States Supreme Court ob-
served in Griffin v Wisconsin
19
that “[t]o a greater or
lesser degree, it is always true of probationers (as we
have said it to be true of parolees) that they do not enjoy
‘the absolute liberty to which every citizen is entitled,
but only . . . conditional liberty properly dependent on
observance of special [probation] restrictions.’ Morris-
sey v. Brewer, 408 U.S. 471, 480 [92 S Ct 2593; 33 L Ed
2d 484] (1972).” In Griffin, the Court upheld a search of
a probationer’s home without a warrant under the
state’s probation regulations, as being reasonable un-
der the Fourth Amendment.
20
In so concluding, the
Court rejected the need for a warrant, concluding that,
in the context of probation supervision, a “warrant
requirement would interfere to an appreciable degree
with the probation system....”
21
If the Fourth Amendment does not require a warrant
to search a probationer’s home, then it is not unreason-
able to conclude that it does not require a warrant to
arrest a probationer. Therefore, given a probationer’s
reduced privacy interests, we agree with the prosecu-
tion that the principle discussed in Triplett can be
extended from parolees to probationers. As such, the
oath or affirmation requirement generally applicable to
warrants does not apply to a warrant for the arrest of a
probationer.
Finally, even if we were to agree with defendant’s
argument that under MCR 6.445(A) a probation viola-
18
Id. at 121.
19
Griffin v Wisconsin, 483 US 868, 874; 107 S Ct 3164; 97 L Ed 2d 709
(1987).
20
Id. at 880.
21
Id. at 876.
2012] P
EOPLE V
G
LENN
-P
OWERS
503
tion proceeding must be commenced with either a
summons or an arrest warrant and, if it is commenced
with an arrest warrant, the warrant must be made
under oath or affirmation, that does not support the
conclusion that the arrest violated the Fourth Amend-
ment. In Virginia v Moore,
22
the Supreme Court consid-
ered a case where the defendant was arrested for a
misdemeanor under circumstances in which a state
statute required the issuance of a summons rather than
a custodial arrest. A subsequent search of the defendant
yielded cocaine.
23
The Court concluded that, while
states are free to impose additional restrictions on the
arrest powers of the police, such restrictions do not
alter the protections of the Fourth Amendment.
24
That
is, a violation of the additional state restriction does not
violate the Fourth Amendment and, therefore, does not
render invalid the search subsequent to the arrest.
25
Therefore, even if we were to agree with defendant that
the court rule creates a requirement that probation-
violation proceedings must be commenced by either a
summons or an arrest warrant, and that the warrant
must be sworn to, a violation of such a requirement still
would not amount to a Fourth Amendment violation
that would render the arrest, and the subsequent
search, constitutionally infirm.
For the above reasons, we conclude that it does not
matter whether the arrest warrant in this case was
unsworn because it was unnecessary for there to be a
sworn arrest warrant. Defendant’s arrest was lawful
under the Fourth Amendment and, therefore, so was
the subsequent search.
22
Virginia v Moore, 553 US 164, 167; 128 S Ct 1598; 170 L Ed 2d 559
(2008).
23
Id.
24
Id. at 176.
25
Id. at 176-177.
504 296 M
ICH
A
PP
494 [May
In light of this conclusion, it is unnecessary to
consider the prosecution’s second argument, whether
the exclusionary rule should be applied in this situation
assuming that the arrest was, in fact, unlawful.
For the above reasons, we conclude that the trial
court erred by granting defendant’s motion to suppress
the evidence.
Reversed and remanded for further proceedings con-
sistent with this opinion. We do not retain jurisdiction.
W
HITBECK
and M. J. K
ELLY
, JJ., concurred with S
AWYER
,
P.J.
2012] P
EOPLE V
G
LENN
-P
OWERS
505
PEOPLE v DILLON
Docket No. 303083. Submitted April 3, 2012, at Detroit. Decided May 15,
2012, at 9:00 a.m.
The 47th District Court, Marla E. Parker, J., bound Brendon M.
Dillon over to the Oakland Circuit Court on a charge of possessing
less than 25 grams of heroin, MCL 333.7403(2)(a)(v), on the basis
of evidence discovered during a traffic stop initiated when a police
officer saw an air freshener hanging from defendant’s rearview
mirror in a manner that appeared to be obstructing defendant’s
view in violation of MCL 257.709(1)(c). Defendant moved to
dismiss the charge on the ground that the traffic stop was
unconstitutional. The circuit court, Daniel P. O’Brien, J., granted
the motion, ruling that MCL 257.709(1)(c) was void for vagueness.
The prosecution appealed.
The Court of Appeals held:
1. The officer had reasonable suspicion to stop defendant’s
vehicle because the officer could see that the air freshener hanging
from defendant’s rearview mirror had the potential to obstruct
defendant’s view in violation of MCL 257.709(1)(c). Furthermore,
after stopping defendant, the officer saw an object being thrown
from the front passenger window, then found a syringe in the
vicinity of the thrown object. The ongoing legality of a detention
after the initial stop must be reasonable and depends on the
evolving circumstances with which the officer is faced, and this
observation justified the continuation of the detention.
2. A party asserting a facial challenge to the constitutionality
of a statute must demonstrate that no circumstances exist under
which the statute would be valid. A penal statute is unconstitu-
tionally vague when not challenged on First Amendment grounds
if, considered in light of the facts at issue, it fails to provide fair
notice of the conduct proscribed or is so indefinite that it confers
unlimited and unstructured discretion on the trier of fact to
determine whether an offense has occurred. Fair or proper notice
exists if the statute gives a person of ordinary intelligence a
reasonable opportunity to know what is prohibited. The statute
cannot use terms that require a person of ordinary intelligence to
speculate about their meaning and differ about their application.
506 296 M
ICH
A
PP
506 [May
For a statute to be sufficiently definite, its meaning must be fairly
ascertainable by reference to judicial interpretations, the common
law, dictionaries, treatises, or the commonly accepted meanings of
words.
3. The version of MCL 257.709 that defendant was charged
with violating, as amended by 2000 PA 127, was not facially void
for vagueness or unconstitutional as applied to defendant. The
statutory prohibition of dangling or suspended objects that ob-
struct the driver’s vision used commonly understood, definite
terms that placed ordinary citizens on notice of the prohibited
conduct. The circuit court erred by concluding that the statute was
void for vagueness because it could have been violated by wind-
shield glare or rearview mirrors, which are not dangling or
suspended objects.
Reversed.
C
ONSTITUTIONAL
L
AW —
S
TATUTES —
V
AGUENESS —
D
RIVING WITH
O
BJECTS
O
BSTRUCTING
V
ISION
.
MCL 257.709, as amended by 2000 PA 127, which prohibited a
person from driving a motor vehicle with a dangling ornament or
other suspended object that obstructed the vision of the driver of
the vehicle except as authorized by law, was not unconstitutionally
vague.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Jessica R. Cooper, Prosecuting Attor-
ney, and Thomas R. Grden, Chief, Appellate Division,
for the people.
Linda M. Goetz for defendant.
Before: M
ARKEY
,P.J., and M
URRAY
and S
HAPIRO
,JJ.
P
ER
C
URIAM
. The district court bound defendant over
to the circuit court on a charge of possession of less than
25 grams of heroin, MCL 333.7403(2)(a)(v), on the basis
of evidence seized during a traffic stop conducted for a
violation of MCL 257.709. The circuit court suppressed
the evidence from the search, held MCL 257.709 void
for vagueness, and dismissed the charges against defen-
dant. The prosecution appeals by right. We reverse.
2012] P
EOPLE V
D
ILLON
507
First, the prosecution argues that police officer Jer-
emy Beisel had reasonable suspicion to stop defendant
because the air freshener hanging below the rearview
mirror was potentially obstructing defendant’s view, a
violation of MCL 257.709(1)(c). We agree.
This Court will not reverse a trial court’s findings
regarding a motion to suppress evidence as illegally
seized unless they are clearly erroneous. People v
Waclawski, 286 Mich App 634, 693; 780 NW2d 321
(2009). A finding is clearly erroneous if it leaves this
Court with a definite and firm conviction that the trial
court made a mistake. Id. We review de novo as a
question of law whether a search was supported by the
constitutional standard of reasonable suspicion. People
v Bloxson, 205 Mich App 236, 245; 517 NW2d 563
(1994); see also United States v Arvizu, 534 US 266, 275;
122 S Ct 744; 151 L Ed 2d 740 (2002).
The right against unreasonable searches and sei-
zures is guaranteed by both the United States and
Michigan Constitutions. US Const, Am IV; Const 1963,
art 1, § 11; People v Kazmierczak, 461 Mich 411, 417;
605 NW2d 667 (2000). Generally, if evidence is uncon-
stitutionally seized, it must be excluded from trial.
People v Goldston, 470 Mich 523, 528; 682 NW2d 479
(2004); Terry v Ohio, 392 US 1, 12-13; 88 S Ct 1868; 20
L Ed 2d 889 (1968). But a police officer may stop and
detain a motor vehicle on the basis of an articulable and
reasonable suspicion that the vehicle or one of its
occupants is violating the law, including a law regulat-
ing equipment. People v Matthew Williams, 236 Mich
App 610, 612; 601 NW2d 138 (1999). This Court’s
determination of whether there was reasonable suspi-
cion to justify a stop must be made on a case-by-case
basis, evaluated under the totality of the circumstances,
and based on common sense. People v Jenkins, 472 Mich
508 296 M
ICH
A
PP
506 [May
26, 32; 691 NW2d 759 (2005). The subjective intent of
the police officer is irrelevant to the validity of the stop.
People v John Williams, 472 Mich 308, 314 n 7; 696
NW2d 636 (2005).
A court is required to suppress evidence otherwise
lawfully seized during a traffic stop only if the officer
did not have reasonable suspicion to justify the stop.
See People v Davis, 250 Mich App 357, 363-364; 649
NW2d 94 (2002); Williams, 236 Mich App at 612. The
statute that provided the basis for the traffic stop at
issue, MCL 257.709(1), provided at the time:
A person shall not drive a motor vehicle with any of the
following:
***
(c) A dangling ornament or other suspended object that
obstructs the vision of the driver of the vehicle, except as
authorized by law.
[1]
The facts and circumstances at issue provided Beisel
the requisite articulable and reasonable suspicion to
justify the stop. First, Beisel was able to see the air
freshener from his patrol car while he was driving
behind defendant. Second, the air freshener was hang-
1
The Legislature amended MCL 257.709 in 2010 PA 258, effective
December 14, 2010, to provide in relevant part:
(1) A person shall not operate a motor vehicle with any of the
following:
***
(c) An object that obstructs the vision of the driver of the
vehicle, except as authorized by law. [Emphasis added.]
Although applying the amended version of the statute would not change
our conclusion, we refer in this opinion to the statute in effect at the time
of the traffic stop.
2012] P
EOPLE V
D
ILLON
509
ing, at least two or three inches below the rearview
mirror. Third, Beisel testified that from his perspective,
the air freshener obstructed defendant’s view. We con-
clude that the facts and circumstances known to Beisel
provided reasonable suspicion that a traffic violation
was occurring, which justified the traffic stop. Davis,
250 Mich App at 363; Williams, 236 Mich App at 612,
615.
Furthermore, after stopping defendant, Beisel ob-
served an object being thrown out the front passenger
window. Beisel saw a syringe in the vicinity of the
thrown object. The ongoing legality of the detention
after the initial stop must be reasonable and depends on
“the evolving circumstances with which the officer is
faced.” Williams, 472 Mich at 315. In this case, the
extension—or arguably the continuation—of the deten-
tion was justified on the basis of Beisel’s observing the
suspected drug paraphernalia.
Second, the prosecution argues that the version of
MCL 257.709 that defendant was charged with violat-
ing was not facially void for vagueness or unconstitu-
tional as applied. We agree.
This Court reviews de novo a void-for-vagueness
challenge not involving First Amendment freedoms
“ ‘in light of the facts of the case at hand.’ ” People v
Nichols, 262 Mich App 408, 409-410; 686 NW2d 502
(2004) (citation omitted).
Statutes are presumed to be constitutional, and the
party challenging the statute has the burden of showing
the contrary. People v Sands, 261 Mich App 158, 160;
680 NW2d 500 (2004). When a party asserts a facial
challenge to the constitutionality of a statute, the party
must demonstrate that no circumstances exist under
which the statute would be valid. Id. at 160-161.
510 296 M
ICH
A
PP
506 [May
In People v Hrlic, 277 Mich App 260; 744 NW2d 221
(2007), this Court reviewed a constitutional vagueness
challenge to MCL 257.648, which requires a driver to
signal when “turning from a direct line.” The Court,
citing Sands, 261 Mich App at 161, and People v Hill,
269 Mich App 505, 524; 715 NW2d 301 (2006), stated
the pertinent test to determine whether a penal statute
is unconstitutionally vague when not challenged on
First Amendment grounds: “A statute may be unconsti-
tutionally vague...[if] it fails to provide fair notice of
the conduct proscribed, or...itissoindefinite that it
confers unlimited and unstructured discretion on the
trier of fact to determine whether an offense has
occurred.” Hrlic, 277 Mich App at 263. Fair or proper
notice exists if the statute gives a person of ordinary
intelligence a reasonable opportunity to know what is
prohibited. Id. A court considers a vagueness challenge
in light of the facts at issue. Sands, 261 Mich App at
161. The statute cannot use terms that require a person
of ordinary intelligence to speculate about their mean-
ing and differ about their application. Id. “For a statute
to be sufficiently definite, its meaning must be fairly
ascertainable by reference to judicial interpretations,
the common law, dictionaries, treatises, or the com-
monly accepted meanings of words.” Id.
The applicable version of the challenged statute,
MCL 257.709, was not facially void for vagueness or
unconstitutional as applied to defendant. The statute
used commonly understood, definite terms that placed
ordinary citizens on notice of the prohibited conduct
and provided police officers sufficient guidance to apply
the statute in a nonarbitrary and nondiscriminatory
way. As used in the statute, “dangling ornament” and
“suspended object” are commonly understood phrases.
“Dangle” is defined as “to hang loosely, esp[ecially] with
a swaying motion.” Random House Webster’s College
2012] P
EOPLE V
D
ILLON
511
Dictionary (1997). “Suspend” is defined as “to hang by
attachment to something above, esp[ecially] so as to
allow free movement.” Id. “Obstruct” is also a com-
monly understood term, meaning “to block or close up
with an obstacle[.]” Id. These terms are definite and
clear enough to permit a citizen of ordinary intelligence
a reasonable opportunity to know what the Legislature
intended to prohibit and also not so indefinite that
unlimited discretion is conferred on police officers to
determine whether an offense has occurred. Hrlic, 277
Mich App at 263.
The circuit court adopted the reasoning of defense
counsel that a windshield glare or a rearview mirror
could have violated the statute and, therefore, the
statute was void for vagueness. Although there is a
legitimate argument that a rearview mirror or wind-
shield glare could obstruct a driver’s view, the statute
prohibited dangling or suspended objects that obstruct
a driver’s view. Windshield glare is not a dangling or
suspended object. A rearview mirror is not commonly
understood as a dangling or suspended object. The
reference to an object that is dangling or suspended
implies that the object is hanging or is allowed to move
freely. Therefore, the statute was not void for vague-
ness.
We reverse and remand for further proceedings con-
sistent with this opinion. We do not retain jurisdiction.
M
ARKEY
,P.J., and M
URRAY
and S
HAPIRO
, JJ., con-
curred.
512 296 M
ICH
A
PP
506 [May
MITCHELL v MITCHELL
Docket No. 306559. Submitted March 6, 2012, at Grand Rapids. Decided
March 13, 2012. Approved for publication May 15, 2012, at 9:05 a.m.
Leave to appeal denied, 491 Mich 940.
John E. Mitchell obtained a divorce from Kate A. Mitchell on March
30, 2009, in the Newaygo Circuit Court, Family Division. The
court, Graydon W. Dimkoff, J., initially granted the parties joint
legal and physical custody of their two minor children, but six
months later modified the parenting-time order to allow defendant
to move with the children to Texas. In 2010, defendant moved to be
released from a provision in the divorce judgment restricting
overnight guests of the opposite sex in the children’s presence.
During the hearing, plaintiff accused defendant of allowing her
boyfriend, Todd Smith, to spend the night while the children were
present. The court ordered defendant to provide Smith’s informa-
tion to the Newaygo County Friend of the Court by a certain date
so that a background check could be conducted. When defendant
had not done so by the deadline, the court entered an order on
February 15, 2011, requiring her to temporarily transfer custody
of the children to plaintiff. Defendant appealed. Before the Court
of Appeals issued its opinion, plaintiff moved to modify the custody
arrangement to give him physical custody during the school year
and defendant physical custody during the summers. After a
two-day evidentiary hearing, the trial court orally granted the
motion on August 26, 2011. On September 15, 2011, in an
unpublished opinion per curiam (Docket No. 303257), the Court of
Appeals vacated the February 15, 2011, order and remanded for
further proceedings consistent with the Child Custody Act, MCL
722.21 et seq. After a hearing on October 3, 2011, the trial court
determined that the two-day hearing it had held in August fully
complied with the Court of Appeals’ remand order. Consequently,
the trial court entered an order changing physical custody of the
children exclusively to plaintiff and suspending defendant’s
parenting time. Defendant appealed.
The Court of Appeals held:
1. The trial court did not err by failing to hold a separate
hearing to establish proper cause or a change of circumstances
2012] M
ITCHELL V
M
ITCHELL
513
before the hearing to modify custody. While the first step toward
modifying a custody award is to show proper cause or a change of
circumstances, this determination does not necessarily require an
evidentiary hearing. To establish proper cause, the moving party
must establish by a preponderance of the evidence an appropriate
ground that would justify the trial court’s taking action. Appro-
priate grounds should include at least one of the 12 statutory
best-interest factors and must concern matters that have or could
have a significant effect on the child’s life. Only after a moving
party has established proper cause or a change of circumstances
may the trial court reevaluate the statutory best-interest factors.
In this case, the trial court expressly stated its reasons for finding
that the proper-cause standard had been satisfied before proceed-
ing with its custody-modification analysis, and it was not required
to have conducted a separate hearing before revisiting its custody
decision. The Court of Appeals’ previous decision did not limit the
trial court’s consideration of any facts or circumstances; rather, it
stated that the trial court had erred by not following the procedure
outlined in MCL 722.27(1) and by improperly using custody as a
means to punish defendant for refusing to obey the court’s orders.
The trial court’s determination that proper cause or a change of
circumstances existed to justify considering whether modification
of its prior order would be in the children’s best interests was not
against the great weight of the evidence.
2. The trial court did not commit clear legal error on a major
issue or abuse its discretion in modifying the custody order. In
considering a motion to modify a custody order, if the trial court
determines that an established custodial environment exists, the
moving party has the burden of proving by clear and convincing
evidence that the proposed modification is in the best interests of
the children. To determine whether the moving party has satisfied
this burden, the trial court must consider all the best-interest
factors set forth in MCL 722.23. Because an established custodial
relationship existed with both parents in this case, plaintiff had
the burden of proving by clear and convincing evidence that
modification of the existing custody order was in the best interests
of the children. The trial court detailed on the record the evidence
it considered for each of the best-interest factors and which parent
the trial court found to be better suited in regard to each factor.
The court also interviewed the children and determined that the
youngest child was not old enough to express a preference regard-
ing custody and that defendant and Smith’s attempted bribery,
encouragement, and possible threats undermined the children’s
credibility in this regard. These findings were not against the great
weight of the evidence.
514 296 M
ICH
A
PP
513 [May
3. The trial court did not abuse its discretion by limiting
defendant’s parenting time because of concerns about her behav-
ior and because of her failure to provide Smith’s personal infor-
mation for a background check. Although the Court of Appeals
determined that the trial court had failed to follow the proper
steps before modifying the custody arrangement, it specifically did
not decide the legality of the trial court’s underlying order for
Smith to provide his identifying information to the Friend of the
Court. The trial court expressed concern that defendant was bitter,
vengeful, and vindictive; that she would continue making un-
founded accusations against plaintiff; that she was bribing and
threatening the children; and that Smith appeared to be a part of
this behavior. The court’s determination that it was in the best
interests of the children for Smith not to have contact with the
children until a background check was completed was based on
detailed and explicit findings.
4. Defendant’s argument that the trial judge should be dis-
qualified from hearing further matters on this case because he
showed indignation toward defendant and the Court of Appeals
previous rulings was undeveloped and unsupported by the record.
Affirmed.
P
ARENT AND
C
HILD —
C
HILD
C
USTODY —
M
ODIFICATION OF
C
HILD
-C
USTODY
O
RDERS —
P
ROPER
C
AUSE OR
C
HANGE OF
C
IRCUMSTANCES —
E
VIDENTIARY
H
EARINGS
.
The first step toward modifying a custody award is to show proper
cause or a change of circumstances; to establish proper cause, the
moving party must establish by a preponderance of the evidence
an appropriate ground that would justify the trial court’s taking
action; appropriate grounds should include at least one of the 12
best-interest factors set forth in MCL 722.23 and must concern
matters that have or could have a significant effect on the child’s
life; only after a moving party has established proper cause or a
change of circumstances may the trial court reevaluate the statu-
tory best-interest factors; the determination that proper cause or
a change of circumstances exists does not necessarily require an
evidentiary hearing (MCL 722.27[1][c]).
Greer & Dykman, P.C. (by John M. Greer and Melissa
K. Dykman), for John E. Mitchell.
Kate A. Mitchell in propria persona.
Before: M
ETER
,P.J., and F
ITZGERALD
and M
ARKEY
,JJ.
2012] M
ITCHELL V
M
ITCHELL
515
P
ER
C
URIAM
. Defendant appeals by right the trial
court’s October 3, 2011, order granting a modification
of the parties’ divorce judgment with respect to child
custody. We affirm.
The parties were married in 1991, had one child in
2003 and one in 2006, and were divorced on March 30,
2009. The parties were awarded joint physical and legal
custody of the children. Six months after the divorce
judgment, defendant moved to Texas with the children.
Defendant began dating Todd Smith while in Texas,
and plaintiff requested that Smith submit to a back-
ground check because plaintiff was concerned for the
safety of his children. The trial court ordered defendant
to provide information to plaintiff, but defendant and
Smith refused.
At a hearing on December 29, 2010, the trial court
ordered defendant to provide Smith’s information to
the Friend of the Court, reasoning that a background
check was necessary to ensure the children’s safety.
Defendant and Smith continued to resist. Later, on
February 15, 2011, the trial court entered an order
temporarily transferring physical custody to plaintiff.
Defendant appealed, and this Court vacated the trial
court’s order and remanded the matter for continued
proceedings consistent with the Child Custody Act.
Mitchell v Mitchell, unpublished opinion per curiam of
the Court of Appeals, issued September 15, 2011
(Docket No. 303257) (Mitchell I).
Before this Court released its opinion in Mitchell I,
plaintiff moved to modify the custody arrangement so
that he would have physical custody during the school
year and defendant would have physical custody during
the summers. The trial court issued an oral opinion
after a two-day evidentiary hearing.
516 296 M
ICH
A
PP
513 [May
By the time this Court issued Mitchell I, the trial
court had already held the two-day evidentiary hearing
on plaintiff’s motion for modification of custody. At a
hearing on defendant’s objections to the entry of a
proposed order, the trial court determined that its
two-day evidentiary hearing fully complied with this
Court’s remand order in Mitchell I. Consequently, the
trial court entered its order to modify custody, which
defendant now appeals.
Defendant first argues that the trial court did not
establish proper cause or a change of circumstances in a
separate proceeding before the hearing to modify cus-
tody. We disagree.
All custody orders must be affirmed on appeal unless
the trial court committed a palpable abuse of discretion,
made findings against the great weight of the evidence,
or made a clear legal error. MCL 722.28; Pierron v
Pierron, 486 Mich 81, 85; 782 NW2d 480 (2010). The
first step toward modifying a custody award is to show
proper cause or a change of circumstances. MCL
722.27(1)(c); Parent v Parent, 282 Mich App 152, 154;
762 NW2d 553 (2009). But the determination of
whether proper cause or a change of circumstances
exists does not necessarily require an evidentiary hear-
ing. Corporan v Henton, 282 Mich App 599, 605; 766
NW2d 903 (2009).
To establish proper cause, the moving party must
establish by a preponderance of the evidence an appro-
priate ground that would justify the trial court’s taking
action. Vodvarka v Grasmeyer, 259 Mich App 499,
511-512; 675 NW2d 847 (2003). Appropriate grounds
should include at least one of the 12 statutory best-
interest factors and must concern matters that have or
could have a significant effect on the child’s life. Id.
Only after a moving party has established proper cause
2012] M
ITCHELL V
M
ITCHELL
517
or a change of circumstances may the trial court re-
evaluate the statutory best-interest factors. Id.
In this case, the trial court expressly stated on the
record its reasons for finding that the proper cause
standard had been satisfied. Defendant argues that this
determination should have been made before the hear-
ing to modify custody and relies on this Court’s opinion
in Mitchell I. Defendant mischaracterizes this Court’s
opinion, which provides: “Before modifying or amend-
ing an existing custody order, however, the circuit court
must determine whether there has been a change in
circumstances or if proper cause exists to revisit the
custody decision.” Mitchell I, unpub op at 2. This Court
did not hold that a separate hearing had to be conducted
before a custody decision may be revisited, nor is one
necessarily required. Vodvarka, 259 Mich App at 512.
The trial court is merely required to preliminarily
determine whether proper cause or a change of circum-
stances exists before reviewing the statutory best-
interest factors with an eye to possibly modifying a
prior custody order. Id.; MCL 722.27(1)(c).
In this case, the trial court clearly stated on the
record its determination that proper cause had been
established before proceeding with its custody analysis
of the statutory best-interest factors. Specifically, the
trial court found defendant at fault for failing to facili-
tate plaintiff’s communication with the children by
Skype, as the court had previously ordered. The trial
court also found that defendant had failed to pay her
court-ordered share of parenting-time travel expenses
and failed to sign a release for the children’s school
records, again as required by previous court order. The
trial court found that defendant and Smith had contin-
ued to refuse to disclose information on Smith for a
background check. Finally, the trial court found that
518 296 M
ICH
A
PP
513 [May
allegations of plaintiff touching his daughter inappro-
priately were unfounded and that it was likely defen-
dant had fabricated the allegations. And the trial
court’s determination of proper cause was related to the
statutory best-interest factors and constituted facts
that have or could have a significant effect on the
children’s lives. Vodvarka, 259 Mich App at 512.
Defendant also argues that the trial court’s bases for
determining proper cause were the exact factors this
Court in Mitchell I said could not be considered. Again,
defendant mischaracterizes this Court’s opinion. In
Mitchell I this Court said that the trial court had erred
by not following the procedure outlined in MCL
722.27(1), i.e., by not considering the statutory best-
interest factors of MCL 722.23 and by improperly using
custody as a means to punish defendant for refusing to
obey the court’s orders. Mitchell I, unpub op at 3. This
Court remanded to the trial court to conduct proceed-
ings consistent with the Child Custody Act. Id. This
Court did not state that the trial court could not
consider certain facts or circumstances in proper pro-
ceedings. The trial court’s determination that proper
cause or a change of circumstances existed to justify
considering whether modification of its prior order
would be in the children’s best interests was not against
the great weight of the evidence. Pierron, 486 Mich at
85.
Next, defendant argues that the trial court erred by
modifying custody because the trial court’s decision was
against the great weight of the evidence. We disagree.
This Court reviews the trial court’s findings of fact
under the great weight of the evidence standard. MCL
722.28. Under this standard the trial court’s determi-
nation will be affirmed unless the evidence clearly
preponderates in the other direction. Pierron, 486 Mich
2012] M
ITCHELL V
M
ITCHELL
519
at 85. Before modifying a custody award the trial court
must determine whether there is proper cause or a
change in circumstances justifying a modification in the
child’s best interests. Vodvarka, 259 Mich App at 511-
512.
Once the trial court determines there is proper cause
or a change of circumstances to permit the matter to be
revisited, the trial court still may not modify custody
from an established custodial environment unless there
is clear and convincing evidence that a modification is
in the best interest of the child. MCL 722.27(1)(c).
Thus, if the trial court determines that an established
custodial environment exists, the moving party has the
burden of proving by clear and convincing evidence that
the proposed modification is in the best interests of the
children. Parent, 282 Mich App at 154. In determining
whether the moving party has satisfied this burden, the
trial court must consider all the statutory best-interest
factors set out in MCL 722.23. Pierron, 486 Mich at
92-93; Rittershaus v Rittershaus, 273 Mich App 462,
475; 730 NW2d 262 (2007). In this case, the trial court
determined that an established custodial relationship
existed with both parents. So, plaintiff had the burden
of proving by clear and convincing evidence that modi-
fication of the existing custody order was in the best
interests of the children. Powery v Wells, 278 Mich App
526, 529; 752 NW2d 47 (2008).
The trial court specified on the record the evidence it
considered for each of the statutory best-interest fac-
tors and which parent the trial court found to be better
suited in regard to each factor. The trial court also
interviewed the children to determine their preference;
however, the trial court indicated that the youngest
child was not old enough to express a preference. The
trial court further stated that it was not going to
520 296 M
ICH
A
PP
513 [May
consider the children’s purported desire to live in Texas
because the court found that defendant and Smith’s
attempted bribery, encouragement, and possible threats
undermined the children’s credibility.
Defendant on appeal sets out many specific instances
of what she does for the children and argues that she is
the better parent. But defendant fails to acknowledge
any of the testimony from plaintiff and makes asser-
tions not supported by evidence in the record. The trial
court considered everything defendant does for the
children and commended her on her efforts; however,
the trial court determined that, overall, a modification
in custody was in the best interests of the children.
After thoroughly reviewing the evidence presented and
the trial court’s findings, we conclude that the court’s
findings of fact were not against the great weight of the
evidence. We also conclude that the court did not
commit clear legal error on a major issue or abuse its
discretion. MCL 722.28; Pierron, 486 Mich at 85.
Defendant also argues that the trial court erred in
limiting her parenting time because she had not pro-
vided Smith’s personal information. Defendant argues
that because obtaining Smith’s personal information is
not relevant to the best interests of the children, the
conditions placed on defendant’s visitation with the
children should be struck. We disagree.
Because this issue was not raised before the trial
court, it is unpreserved. Walters v Nadell, 481 Mich 377,
387; 751 NW2d 431 (2008). Nonetheless, this Court can
overlook the preservation issue when “failure to con-
sider the 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 pre-
sented.” Smith v Foerster-Bolser Const, Inc, 269 Mich
2012] M
ITCHELL V
M
ITCHELL
521
App 424, 427; 711 NW2d 421 (2006). In this case,
because the issue deals with child custody and parent-
ing time for defendant, failure to consider it could result
in manifest injustice, so this Court will overlook the
issue of preservation.
This Court reviews discretionary rulings, including a
trial court’s custody and parenting-time decisions, for
an abuse of discretion. Berger v Berger, 277 Mich App
700, 705; 747 NW2d 336 (2008). An abuse of discretion
with regard to a custody issue occurs “when the trial
court’s decision is so palpably and grossly violative of
fact and logic that it evidences a perversity of will, a
defiance of judgment, or the exercise of passion or bias.”
Id.
The trial court determined that modifying the cus-
tody award was in the best interests of the children and
awarded plaintiff physical custody during the school
year. The trial court also determined that defendant’s
parenting time in Texas would be suspended until
Smith disclosed his information for a background
check. The trial court also expressed concern that
defendant was “bitter, and vengeful, and vindictive”
and that defendant would continue to make up un-
founded allegations about plaintiff.
Defendant argues that the trial court’s decision to
place conditions on her parenting time because of
Smith’s refusal to submit to a background check was
inappropriate. Defendant argues that this Court in
Mitchell I held that defendant’s failure to provide
Smith’s background information could not be consid-
ered. Defendant again mischaracterizes this Court’s
opinion. Although this Court determined that the trial
court had failed to follow the proper steps before
modifying the custody arrangement, it specifically did
not make any decision regarding the legality of the
522 296 M
ICH
A
PP
513 [May
court’s underlying order for Smith to provide his iden-
tifying information to the Friend of the Court. Mitchell
I, unpub op at 3. The trial court found reasons for
concern in how defendant was acting and her accusa-
tions against plaintiff. In addition, the trial court was
concerned that defendant was bribing and threatening
the children. The trial court was also concerned that
Smith appeared to be a factor in the behavior defendant
was engaging in and determined that in the best inter-
ests of the children, Smith would not have contact with
the children until a background check was completed.
The trial court was very detailed and explicit in its
findings regarding the children and their best interests.
Our review of the record persuades us that the trial
court did not abuse its discretion by placing limitations
on defendant’s parenting time on the basis of defen-
dant’s behavior and Smith’s refusal to submit to a
background check.
Lastly, defendant argues that the trial judge should
be disqualified from hearing further matters on this
case because he showed indignation toward defendant
and this Court’s rulings. We disagree.
This Court reviews a trial court’s factual findings on
a motion to disqualify for an abuse of discretion and
reviews de novo the trial court’s application of the facts
to the law. Olson v Olson, 256 Mich App 619, 638; 671
NW2d 64 (2003). The trial court abuses its discretion
when the trial court’s decision falls outside the range of
reasonable outcomes. In re MKK, 286 Mich App 546,
564; 781 NW2d 132 (2009). Due process requires that
an unbiased and impartial decision-maker hear and
decide a case. Olson, 256 Mich App at 642. A trial judge
is presumed unbiased, and the party asserting other-
wise has the heavy burden of overcoming the presump-
tion. In re MKK, 286 Mich App at 566.
2012] M
ITCHELL V
M
ITCHELL
523
Defendant argues that the trial judge should be
disqualified because of his alleged indignation. Defen-
dant does not develop her argument and does not cite
where in the record the trial judge’s indignation ap-
pears. Indeed, we do not know to what she refers, but
she insists that the trial court has refused to follow this
Court’s ruling in Mitchell I. Defendant continues to
mischaracterize this Court’s opinion. In Mitchell I, this
Court remanded the case for proceedings consistent
with the Child Custody Act. Mitchell I, unpub op at 3.
Contrary to defendant’s argument, the trial court com-
plied with this Court’s opinion. The trial court held a
two-day evidentiary hearing and, on the basis of that
evidence, made necessary findings justifying its order to
modify the prior custody order.
Defendant has not indicated any other basis to find
that the trial judge is biased or otherwise partial. A
party cannot simply assert an error or announce a
position and then leave it to this Court to “discover and
rationalize the basis for his claims, or unravel and
elaborate for him his arguments, and then search for
authority either to sustain or reject his position.” Mit-
cham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959).
Defendant has failed to carry her burden of demonstrat-
ing that the trial judge should be disqualified here.
We affirm.
M
ETER
,P.J., and F
ITZGERALD
and M
ARKEY
, JJ., con-
curred.
524 296 M
ICH
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513 [May
CLOHSET v NO NAME CORPORATION
Docket No. 301681. Submitted May 4, 2012, at Detroit. Decided May 15,
2012, at 9:10 a.m. Leave to appeal sought.
Clarence and Virginia Clohset and No Name Corporation entered into
a lease agreement for commercial premises in 1991. Geraldine and
Walter Goodman obligated themselves as guarantors for No Name.
No Name failed to make lease payments, and the Clohsets filed a
demand for possession on No Name in the 48th District Court on
October 6, 1998. On October 21, 1998, the Clohsets filed in the
district court a complaint against No Name for nonpayment of rent,
seeking possession of the premises and costs, but not seeking money
damages, which the complaint acknowledged would exceed the dis-
trict court’s general statutory jurisdictional limit of $25,000. The
complaint noted that money damages would be sought in a separate
action in the circuit court. On November 11, 1998, the Clohsets
entered into a settlement agreement with No Name and the Good-
mans, stating, in part, that No Name owed the Clohsets more than
$384,000, plus interest. The settlement agreement required the
parties to execute consent judgments for entry, potentially, in the
district court and/or the circuit court. The consent judgments were to
be held by the Clohsets and one or both were to be filed in the event
that No Name or the Goodmans defaulted on the settlement agree-
ment. Upon their filing, the consent judgments would add the
Goodmans as named defendants and obligate the defendants as set
forth therein. The Clohsets filed the district court consent judgment
and an affidavit from their attorney stating that defendants had
defaulted and owed the Clohsets more than $222,000, plus additional
amounts, including costs and attorney fees as outlined in the settle-
ment agreement. The district court, Edward Avadenka, J., entered
the stipulated consent judgment on October 1, 1999. On March 24,
2009, after the Clohsets and Walter Goodman had died, Phillip M.
Clohset, as personal representative of the estates of Clarence and
Virginia Clohset, sent Geraldine Goodman a demand letter for more
than $222,000. Defendants No Name, Geraldine Goodman, and the
estate of Walter Goodman, deceased, stipulated the renewal of the
consent judgment, and the district court, Marc Barron, J., entered the
stipulated renewal on September 15, 2009. On October 14, 2009,
defendants moved to vacate the October 1, 1999, consent judgment,
2012] C
LOHSET V
N
O
N
AME
C
ORP
525
alleging that the district court had lacked subject-matter jurisdiction
to enter it. Plaintiff responded with a motion to transfer the matter
to the Oakland Circuit Court. The district court, Marc Barron, J.,
denied defendant’s motion to vacate the judgment and granted
plaintiff’s motion to transfer pursuant to MCR 2.227(A)(1), which
authorizes a transfer when the transferring court determines that it
lacks jurisdiction of the subject matter of the action. Plaintiff then
moved for entry of the consent judgment, previously entered in the
district court, in the circuit court. The circuit court, Mark A.
Goldsmith, J., denied plaintiff’s motion and granted defendants’
countermotion to dismiss without prejudice, holding that the judg-
ment was void for lack of subject-matter jurisdiction in the district
court. After filing an amended complaint in the circuit court, assert-
ing breach of the parties’ various agreements and related equitable
claims, plaintiff moved for summary disposition on his breach claims.
Defendants countered with a motion for summary disposition regard-
ing all the claims. The circuit court, Phyllis C. McMillen, J., denied
plaintiff’s motion, granted defendants’ motion, and dismissed the
matter without prejudice. Plaintiff appealed.
The Court of Appeals held:
1. Michigan district courts have exclusive jurisdiction, under
MCL 600.8301(1), over civil matters where the amount in contro-
versy does not exceed $25,000 and, pursuant to MCL 600.8302(1)
and (3), equitable jurisdiction and authority concurrent with that
of the circuit court with respect to equitable claims arising under
chapter 57 of the Revised Judicature Act (RJA), MCL 600.5701 et
seq., which concerns summary proceedings to recover possession of
premises. Because the grant of jurisdictional authority in MCL
600.8302(1) and (3) is a more specific grant than the general grant
of jurisdictional power found in MCL 600.8301(1), when, as in this
case, a district court’s actions flow from its power arising under
chapter 57 of the RJA, its actions are within the scope of MCL
600.8302(1) and (3), and MCL 600.8301(1) is inapplicable. The
district court had jurisdiction over this case and erred by trans-
ferring it to the circuit court. Having properly acquired jurisdic-
tion, the district court was obliged to render a final decision on the
merits. The district court’s specific jurisdiction over this case
extended to the entry of the stipulated consent judgment, even
though the consent judgment included an agreed-upon monetary
component that, if it had been premised on the district court’s
general jurisdiction, would have exceeded the otherwise applicable
statutory jurisdictional limit.
2. Defendants were not entitled to attack collaterally during
the 2009 proceedings the consent judgment entered by the district
526 296 M
ICH
A
PP
525 [May
court on October 1, 1999. Their only option was to challenge the
judgment on direct appeal or by a proper motion to alter or amend
the judgment. Defendants took no action to challenge the judg-
ment within a reasonable time, as allowed by MCR 2.612(C)(2).
Plaintiff was entitled to enforce the judgment against defendants.
The fact that the Clohsets’ complaint did not seek money damages,
and the fact that the stipulated money damages exceeded the
general jurisdictional amount otherwise applicable in the district
court, did not preclude enforcement of the consent judgment.
3. Even if the consent judgment was premised on an error in
the exercise of the district court’s jurisdiction, the error was of the
parties’ own making. Defendants cannot complain about an error
created when they stipulated the entry of the consent judgment.
4. Because the district court had jurisdiction and improperly
transferred the case to the circuit court, the circuit court had no
jurisdiction to rule on plaintiff’s motion to enter the consent
judgment, on defendants’ motion to dismiss, or on the parties’
cross-motions for summary disposition, and should have trans-
ferred the case back to the district court. The judgment of the
circuit court was vacated and the case remanded to the district
court for the reinstatement and enforcement of the consent
judgment entered on October 1, 1999.
Vacated and remanded.
1. C
OURTS —
D
ISTRICT
C
OURTS —
E
QUITABLE
P
OWERS —
J
URISDICTION
.
District courts in Michigan have exclusive jurisdiction, under MCL
600.8301(1), over civil matters where the amount in controversy
does not exceed $25,000 and equitable jurisdiction and authority,
under MCL 600.8302(1) and (3), concurrent with that of the circuit
court with respect to claims arising under chapter 57 of the
Revised Judicature Act, MCL 600.5701 et seq., which concerns
summary proceedings to recover possession of premises; the grant
of power in MCL 600.8302(1) and (3) is a more specific grant of
jurisdictional authority than the general grant of jurisdictional
authority in MCL 600.8301(1) and takes precedence over the
general grant of jurisdictional authority; when a district court’s
actions flow from its power arising under chapter 57 of the RJA, its
actions are within the scope of MCL 600.8302(1) and (3), and
MCL 600.8301(1) is inapplicable.
2. C
OURTS —
S
UBJECT
-M
ATTER
J
URISDICTION
.
Subject-matter jurisdiction is established by the pleadings and exists
when the proceeding is of a class the court is authorized to
adjudicate and the claim stated in the complaint is not clearly
frivolous.
2012] C
LOHSET V
N
O
N
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C
ORP
527
3. C
OURTS —
J
URISDICTION —
A
UTHORITY —
J
UDGMENTS
.
Once a court of competent jurisdiction has become possessed of a
case, its authority continues subject only to the appellate author-
ity, until the matter is finally and completely disposed of, and no
court of coordinate authority may interfere with its action; a
matter is finally and completely resolved when a judgment is
entered; a “judgment” is the final consideration and determina-
tion of a court of competent jurisdiction on the matters submitted
to the court.
4. C
OURTS —
S
UBJECT
-M
ATTER
J
URISDICTION —
J
UDGMENTS —
A
PPEAL —
C
OLLAT-
ERAL
A
TTACKS
.
Once a court’s jurisdiction has attached, mere errors or irregulari-
ties in the proceedings, however grave, will not render the court’s
judgment void, although they may render the judgment erroneous
and subject to be set aside in a proper proceeding for that purpose;
until the judgment is set aside, it is valid and binding for all
purposes and cannot be collaterally attacked; lack of subject-
matter jurisdiction may be collaterally attacked, whereas the
exercise of subject-matter jurisdiction can be challenged only on
direct appeal.
5. J
UDGMENTS —
C
ONSENT
J
UDGMENTS
.
When a party approves an order or consents to a judgment by
stipulation, the resultant judgment or order is binding on the
parties and the court; absent fraud, mistake, or unconscionable
advantage, a consent judgment cannot be set aside or modified
without the consent of the parties, nor is it subject to appeal.
Butzel Long (by Robert H. Schwartz, Michael J.
Lavoie, David J. DeVine, Joseph E. Richotte, and Mary
M. Mullin) for plaintiff.
Dykema Gossett PLLC (by Jill M. Wheaton and Kerry
K. Cahill) for defendants.
Before: K. F. K
ELLY
, P.J., and W
ILDER
and B
OONSTRA
,
JJ.
B
OONSTRA
, J. Plaintiff, Phillip M. Clohset, appeals as
of right a circuit court order denying his motion for
summary disposition and granting summary disposi-
528 296 M
ICH
A
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525 [May
tion in favor of defendants, No Name Corporation (No
Name), Geraldine K. Goodman, and the estate of Walter
A. Goodman, deceased, entered on November 30, 2010.
We vacate the judgment of the circuit court and remand
to the district court for reinstatement and enforcement
of the stipulated consent judgment entered on October
1, 1999.
The facts of this case are not in dispute. But the case
presents an unusual procedural history that requires us
to consider issues of (a) subject-matter jurisdiction and
(b) the validity, or degree of validity, of a stipulated
consent judgment entered by the district court in an
amount in excess of its jurisdictional limit.
Under the unusual circumstances outlined herein,
we conclude that the district court had subject-matter
jurisdiction over this case and that its entry of a
stipulated consent judgment was proper, without regard
to the jurisdictional amount-in-controversy limit that
applies under the district court’s general jurisdictional
authority. Moreover, having neither appealed nor prop-
erly moved to alter or amend the stipulated consent
judgment, defendants could not collaterally attack it,
under the circumstances presented, 10 years later. Our
conclusion derives in part from the well-established
maxim that a party may not properly create error in a
lower court and then claim on appeal that the error
requires reversal. See, e.g., Dresselhouse v Chrysler
Corp, 177 Mich App 470, 477; 442 NW2d 705 (1989) (“A
party is not allowed to assign as error on appeal
something which his or her own counsel deemed proper
[in the trial court] since to do so would permit the party
to harbor error as an appellate parachute.”).
We find that the district court erred by transferring
this case to the circuit court. Further, given the juris-
diction of the district court, we find that the circuit
2012] C
LOHSET V
N
O
N
AME
C
ORP
529
court erred by ruling on the merits of the case, by
dismissing plaintiff’s claims, and by granting summary
disposition to defendants on plaintiff’s claims.
I. FACTUAL AND PROCEDURAL HISTORY
This action was originally brought by Clarence and
Virginia Clohset (the Clohsets). The Clohsets have since
passed away and plaintiff, Phillip Clohset, has taken
over as personal representative of their estates. The
Clohsets and defendant No Name entered into a lease
agreement for commercial premises in 1991, to which
defendants Geraldine Goodman and Walter Goodman
obligated themselves as guarantors for No Name. De-
fendant No Name subsequently failed to make its lease
payments. The Clohsets filed a demand for possession
on No Name in the district court on October 6, 1998,
demanding possession of the premises. On October 21,
1998, they filed a complaint against No Name for
nonpayment of rent, seeking possession of the premises
and costs, but not seeking money damages, which the
complaint acknowledged would exceed the district
court’s general statutory jurisdictional limit of $25,000.
MCL 600.8301(1). The complaint noted that money
damages would be sought in a separate action in the
circuit court.
On November 11, 1998, the Clohsets entered into a
settlement agreement with No Name, Geraldine Good-
man, and Walter Goodman, stating, in part, that No
Name owed the Clohsets $384,822.95, plus 9.5 percent
interest. The settlement agreement further required
the parties to execute “pocket” consent judgments for
entry, potentially, in the district court and/or the circuit
court. The consent judgments were to be held by the
Clohsets, and one or both were to be filed in the event
that No Name or the Goodmans defaulted on the
530 296 M
ICH
A
PP
525 [May
settlement agreement. Upon their filing, the consent
judgments would add Geraldine Goodman and Walter
Goodman as named defendants, and would obligate all
defendants as set forth therein. Subsequently, the
Clohsets filed the district court consent judgment, along
with an affidavit from their attorney at the time,
stating that defendants had defaulted and owed the
Clohsets a net amount of $222,102.09, plus additional
amounts, including costs and attorney fees, as outlined
in the settlement agreement. The district court entered
the stipulated consent judgment on October 1, 1999.
1
Over nine years passed, during which time plaintiffs
Clarence and Virginia Clohset and defendant Walter
Goodman passed away, and then on March 24, 2009,
plaintiff sent defendant Geraldine Goodman a demand
letter for $222,102.09. Defendants stipulated with regard
to a renewal of the consent judgment and the district
court entered the stipulated renewal of the consent judg-
ment on September 15, 2009. On October 14, 2009, defen-
dants moved to vacate the original, October 1, 1999,
consent judgment on the ground that the district court
had lacked subject-matter jurisdiction to enter it. Plaintiff
responded by moving to transfer the proceedings to the
circuit court. The district court denied defendants’ motion
to vacate the judgment, granted plaintiff’s motion to
transfer (while striking proposed language that would
have found a lack of subject-matter jurisdiction), and
transferred the case to the circuit court pursuant to MCR
2.227(A)(1) (which authorizes a transfer only when the
transferring court “determines that it lacks jurisdiction of
the subject matter of the action”).
1
On October 12, 1999, and February 23, 2000, the parties entered into
an Amendment and a Second Amendment of the settlement agreement,
respectively, and thereby reaffirmed their assent to the terms of the
settlement agreement, including, but not limited to, the entry of the
consent judgments.
2012] C
LOHSET V
N
O
N
AME
C
ORP
531
Plaintiff then moved for entry of the consent judg-
ment (previously entered in the district court) in the
circuit court. The circuit court denied that motion,
holding that the judgment was void for lack of subject-
matter jurisdiction in the district court, dismissed the
case without prejudice, and permitted plaintiff to file an
amended complaint. After filing an amended complaint
asserting breach of the parties’ various agreements and
related equitable claims, plaintiff moved for summary
disposition on his breach claims only, and defendants
countered with a motion for summary disposition on all
of plaintiff’s claims, both contract-based and equitable.
The circuit court granted summary disposition in favor
of defendants and dismissed plaintiff’s claims.
Plaintiff claims on appeal that the circuit court erred
by denying his motion to enter the consent judgment in
the circuit court, by dismissing his initial claims, and by
later denying summary disposition to plaintiff and
granting summary disposition to defendants.
II. STANDARD OF REVIEW
This Court reviews a trial court’s decision whether to
enter a consent judgment for an abuse of discretion. Cf.
Vestevich v West Bloomfield Twp, 245 Mich App 759,
763; 630 NW2d 646 (2001) (“This Court reviews for
abuse of discretion a trial court’s decision on a motion
to set aside a consent judgment.”). “An abuse of discre-
tion occurs when the trial court chooses an outcome
falling outside the range of principled outcomes.” Edry
v Adelman, 486 Mich 634, 639; 786 NW2d 567 (2010),
citing People v Babcock, 469 Mich 247, 269; 666 NW2d
231 (2003), clarification den 469 Mich 1224 (2003). A
motion under MCR 2.116(C)(8) tests the legal suffi-
ciency of a claim by the pleadings alone. Maiden v
Rozwood, 461 Mich 109, 119; 597 NW2d 817 (1999).
532 296 M
ICH
A
PP
525 [May
The motion should be granted only when the plaintiff’s
claims are “ ‘so clearly unenforceable as a matter of law
that no factual development could possibly justify re-
covery.’ ” Id. (citation omitted). Likewise, a motion
made under MCR 2.116(C)(9) tests the legal sufficiency
of a defense. BC Tile & Marble Co, Inc v Multi Bldg Co,
Inc, 288 Mich App 576, 582; 794 NW2d 76 (2010). The
motion should be granted only when “ ‘ “the defen-
dant’s pleadings are so clearly untenable that as a
matter of law no factual development could possibly
deny the plaintiff’s right to recovery.” ’ ” Price v High
Pointe Oil Co, Inc, 294 Mich App 42, 50; 817 NW2d 583
(2011), lv gtd 491 Mich 870 (2012), quoting USA Cash
#1, Inc v Saginaw, 285 Mich App 262, 265-266; 776
NW2d 346 (2009), quoting Slater v Ann Arbor Pub Sch
Bd of Ed, 250 Mich App 419, 425-426; 648 NW2d 205
(2002). We review de novo a trial court’s grant of
summary disposition on the basis of legally insufficient
pleadings. Maiden, 461 Mich at 118. A motion for
summary disposition under MCR 2.116(C)(10) tests the
factual sufficiency of the complaint. Liparoto Constr, Inc
v Gen Shale Brick, Inc, 284 Mich App 25, 29; 772 NW2d
801 (2009). When deciding a motion for summary
disposition under this subrule, a court must consider
the pleadings, affidavits, depositions, admissions, and
other documentary evidence submitted in the light
most favorable to the nonmoving party. Corley v Detroit
Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). We
review de novo a trial court’s decision on a motion
under this subrule. Latham v Barton Malow Co, 480
Mich 105, 111; 746 NW2d 868 (2008). The underlying
question of whether a court had subject-matter juris-
diction is a question of law that this Court reviews de
novo. Elba Twp v Gratiot Co Drain Comm’r, 294 Mich
App 310, 320; 812 NW2d 771 (2011).
2012] C
LOHSET V
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O
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C
ORP
533
III. ANALYSIS
Although plaintiff does not argue that the district
court had subject-matter jurisdiction to enter the con-
sent judgment, and does not challenge defendants’ right
to have collaterally attacked the judgment 10 years
later or the circuit court’s holding that the judgment
was void ab initio, a discussion of these issues is
necessary before proceeding with the parties’ argu-
ments on appeal. This Court generally does not address
issues not raised by the parties on appeal. See Mayberry
v Gen Orthopedics, PC, 474 Mich 1, 4 n 3; 704 NW2d 69
(2005). However, “[a]ll courts ‘must upon challenge, or
even sua sponte, confirm that subject-matter jurisdic-
tion exists....’”Bezeau v Palace Sports & Entertain-
ment, Inc, 487 Mich 455, 479 n 2; 795 NW2d 797 (2010)
(Y
OUNG
, J., dissenting), quoting Reed v Yackell, 473
Mich 520, 540; 703 NW2d 1 (2005) (opinion by T
AYLOR
,
C.J.). Further, this Court is empowered to “enter any
judgment or order or grant further or different relief as
the case may require....”MCR7.216(A)(7).
A. THE DISTRICT COURT HAD SUBJECT-MATTER JURISDICTION AND
ERRED BY TRANSFERRING THE CASE TO THE CIRCUIT COURT
District courts in Michigan have exclusive jurisdic-
tion over civil matters where the amount in controversy
does not exceed $25,000. MCL 600.8301(1). In addition,
district courts have “equitable jurisdiction and author-
ity concurrent with that of the circuit court” with
respect to equitable claims arising under chapter 57 of
the Revised Judicature Act (RJA), MCL 600.5701 et seq.
MCL 600.8302(1) and (3).
This Court previously has held that MCL 600.8302(1)
and (3) provide a “more specific” grant of jurisdictional
authority than the “general grant of jurisdictional
power” found in MCL 600.8301(1). Bruwer v Oaks (On
534 296 M
ICH
A
PP
525 [May
Remand), 218 Mich App 392, 396; 554 NW2d 345
(1996), citing Driver v Hanley, 207 Mich App 13, 17-18;
523 NW2d 815 (1994). “Because § 8302(3) is specific, it
takes precedence over § 8301(1).” Bruwer, 218 Mich
App at 396, citing Driver, 207 Mich App at 17-18. Where
a “district court’s action flowed from its power arising
under Chapter 57 of the RJA, its actions are within the
scope of § 8302(3), and § 8301(1) is inapplicable.” Bru-
wer, 218 Mich App at 396.
The Court in Bruwer faced an apparent “conflict be-
tween the two jurisdictional statutes regarding whether
district courts have the jurisdiction to issue a judgment in
excess of [the then-existing statutory limit of] $10,000
when the case arises under Chapter 57 of the RJA.” Id.
Resolving that apparent conflict in favor of the district
court’s exercise of jurisdiction under the circumstances
presented, this Court held in Bruwer that a district court
“had jurisdiction to issue” a $50,000 judgment on an
appeal bond, in an action for “land contract forfeiture
under the summary proceedings provisions of Chapter 57
of the [RJA].” Id. at 394, 396.
While it is true that a judgment entered by a court
that lacks subject-matter jurisdiction is void, Altman v
Nelson, 197 Mich App 467, 472-473; 495 NW2d 826
(1992), subject-matter jurisdiction is established by the
pleadings and exists “when the proceeding is of a class
the court is authorized to adjudicate and the claim
stated in the complaint is not clearly frivolous.” In re
Hatcher, 443 Mich 426, 444; 505 NW2d 834 (1993); see
also Grubb Creek Action Comm v Shiawassee Co Drain
Comm’r, 218 Mich App 665, 668; 554 NW2d 612 (1996),
citing Luscombe v Shedd’s Food Prod Corp, 212 Mich
App 537, 541; 539 NW2d 210 (1995) (“A court’s subject-
matter jurisdiction is determined only by reference to
the allegations listed in the complaint.”).
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535
Because subject-matter jurisdiction is determined by
reference to the pleadings, and because the complaint
filed by the Clohsets in the district court invoked the
district court’s specific jurisdiction under MCL
600.8302(1) and (3) and chapter 57 of the RJA, that
specific jurisdictional grant takes precedence over the
more general jurisdictional grant found in MCL
600.8301(1), which is inapplicable here. See, Bruwer,
218 Mich App at 396. The district court accordingly had
jurisdiction over this case.
Having properly acquired jurisdiction, the district
court was obliged to render a final decision on the
merits. “ ‘[W]hen a court of competent jurisdiction has
become possessed of a case, its authority continues,
subject only to the appellate authority, until the matter
is finally and completely disposed of; and no court of
co-ordinate authority is at liberty to interfere with its
action.’ ” Schafer v Knuth, 309 Mich 133, 137; 14 NW2d
809 (1944), quoting Maclean v Wayne Circuit Judge,52
Mich 257, 259; 18 NW 396 (1884). A matter is finally
and completely resolved when a judgment is entered. “A
judgment is defined as the final consideration and
determination of a court of competent jurisdiction on
the matters submitted to it.” 6A Michigan Pleading &
Practice (2d ed, 2003), § 42:1, p 235. In other words,
once a court acquires jurisdiction, unless the matter is
properly removed or dismissed, that court is charged
with the duty to render a final decision on the merits of
the case, resolving the dispute, with the entry of an
enforceable judgment.
Consistent with Bruwer, and with its authority and
obligation to render a judgment on a matter properly
before it, the district court’s specific jurisdiction over
this case extended to the entry of a stipulated consent
judgment presented by the parties, even though that
536 296 M
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525 [May
consent judgment included an agreed-upon monetary
component that, if it had been premised on the district
court’s general jurisdiction, would have exceeded the
otherwise applicable statutory jurisdictional limit.
2
The
district court thus erred by granting plaintiff’s motion
to transfer the case to the circuit court.
3
B. DEFENDANTS CANNOT COLLATERALLY ATTACK
THE AGREED-UPON CONSENT JUDGMENT
When defendants defaulted on the settlement agree-
ment, the Clohsets entered a consent judgment in the
district court, in part for the $222,109.09 net amount
then owed by defendants. This amount clearly exceeded
the district court’s general jurisdictional limit, if it
applied here (which we find it did not
4
).
Even assuming arguendo that this monetary compo-
nent of the stipulated consent judgment exceeded the
district court’s authority, defendants still could not
properly collaterally attack the entry of that judgment.
As the Michigan Supreme Court explained in Bowie v
Arder, 441 Mich 23, 49; 490 NW2d 568 (1992), quoting
Jackson City Bank & Trust Co v Fredrick, 271 Mich
538, 545; 260 NW 908 (1935) (citation omitted):
2
The fact that the Clohsets’ district court complaint sought only
equitable relief did not preclude the inclusion of monetary relief in the
consent judgment. As MCR 2.601(A) provides, “every final judgment may
grant the relief to which the party in whose favor it is rendered is
entitled, even if the party has not demanded that relief in his or her
pleadings.”
3
We also are unaware of any published authority in Michigan that
would sanction the “post-verdict” transfer of a case to the circuit court
merely for entry of a judgment, much less (as here) for further proceed-
ings 10 years after the entry of a judgment, and the unpublished
authority, to the extent applicable, is disfavorable of such a transfer.
4
As noted already in this opinion, the district court’s general jurisdic-
tional limit is “inapplicable” where, as here, the district court proceeds
pursuant to its specific jurisdictional grant under chapter 57 of the RJA.
2012] C
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“ ‘ “Want of jurisdiction must be distinguished from
error in the exercise of jurisdiction. Where jurisdiction has
once attached, mere errors or irregularities in the proceed-
ings, however grave, although they may render the judg-
ment erroneous and subject to be set aside in a proper
proceeding for that purpose, will not render the judgment
void, and until set aside it is valid and binding for all
purposes and cannot be collaterally attacked.” ’ ”
In other words, “lack of subject matter jurisdiction can
be collaterally attacked[, whereas] the exercise of that
jurisdiction can be challenged only on direct appeal.” In
re Hatcher, 443 Mich at 439. See also MCR 7.101(A)(2)
(“An order or judgment of a trial court reviewable in the
circuit court may be reviewed only by an appeal.”).
Here, for the reasons noted, there was no “want of
jurisdiction.” Rather, and because the district court had
jurisdiction, it could at most be argued that the court
erred in the “exercise of jurisdiction.” Accordingly, as
articulated in Bowie and Jackson, defendants were not
entitled to attack this judgment collaterally during the
2009 proceedings; their only option, if any, was to
challenge the error on direct appeal
5
or by a proper
motion to alter or amend the judgment. Defendants
took no such actions within the time allowed.
6
As a
result, the original consent judgment, which was filed in
5
We recognize that an appeal as of right may not have been available
to the parties with regard to the consent judgment, since they did not
reserve the right of appeal in the consent judgment itself. Travelers Ins v
U-Haul of Mich, Inc, 235 Mich App 273, 278 n 4; 597 NW2d 235 (1999),
citing Vanderveen’s Importing Co v Keramische Industrie M deWit, 199
Mich App 359; 500 NW 2d 779 (1993). This merely highlights the fact
that defendants failed to preserve any right of appeal by which to
properly challenge the entry of the consent judgment.
6
Although defendants ultimately moved to vacate the October 1, 1999,
consent judgment, they did not do so until October 14, 2009, over 10
years later. MCR 2.612(C)(2) provides that a motion to set aside a
judgment as “void” must be made within a reasonable time. See also
Laffin v Laffin, 280 Mich App 513, 521 n 1; 760 NW2d 738 (2008)
538 296 M
ICH
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the district court on October 1, 1999, was valid, al-
though arguably then voidable (not void) by proper and
timely appeal or motion, and neither having occurred,
the stipulated renewal of the consent judgment, filed in
the district court in 2009, preserved the continued
validity of the consent judgment. Plaintiff is therefore
entitled to enforce the judgment against defendants.
This conclusion is not negated by the fact that the
consent judgment provided stipulated relief that was
different in kind from that initially requested in the
district court complaint, nor by the fact that the mon-
etary amount of the stipulated damages exceeded the
general jurisdictional limit of the district court. For the
reasons noted, the district court had specific subject-
matter jurisdiction under chapter 57 of the RJA, and
the general jurisdictional limit thus was “inapplicable.”
See, e.g., Bruwer, 218 Mich App at 396.
Moreover, “[a] consent judgment is different in na-
ture from a judgment rendered on the merits because it
is primarily the act of the parties rather than the
considered judgment of the court. No pleadings are
required to support an agreed or negotiated judgment.
Consequently, a judgment by consent is distinct from a
judgment rendered by the court after trial.”46AmJur
2d, Judgments, § 184, p 528 (2006) (emphasis added).
Consent decrees differ from typical judgments because
the “voluntary nature of a consent decree is its most
fundamental characteristic.” Local No 93, Int’l Ass’n of
Firefighters, AFL-CIO, CLC v City of Cleveland, 478 US
501, 522; 106 S Ct 3063; 92 L Ed 2d 405 (1986) (the
agreement of the parties “serves as the source of the
court’s authority to enter any judgment at all”). See
also Goldberg v Trustees of Elmwood Cemetery, 281
(applying the rule to a consent judgment). Defendants’ 10-year delay was
not reasonable under the circumstances of this case.
2012] C
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ORP
539
Mich 647, 649; 275 NW 663 (1937) (“A judgment by
consent cannot ordinarily be set aside or vacated by the
court without consent of the parties thereto for the
reason it is not the judgment of the court but the
judgment of the parties.”);
7
Walker v Walker, 155 Mich
App 405, 406; 399 NW2d 541 (1986) (“When a party
approves an order or consents to a judgment by stipu-
lation, the resultant judgment or order is binding upon
the parties and the court. Absent fraud, mistake or
unconscionable advantage, a consent judgment cannot
be set aside or modified without the consent of the
parties, nor is it subject to appeal.”) (citations omitted).
Accordingly, the fact that the Clohsets’ complaint did
not seek money damages, and the fact that the stipu-
lated money damages (as set forth in the consent
judgment) exceeded the general jurisdictional amount
otherwise applicable in the district court, does not
preclude enforcement of the consent judgment.
C. HAVING CREATED THE ALLEGED ERROR IN THE ENTRY OF THE
CONSENT JUDGMENT, DEFENDANTS MAY NOT HARBOR THAT
ALLEGED ERROR AS AN APPELLATE PARACHUTE
As noted at the outset of this opinion, it seems
fundamental that a party may not properly create error
in a lower court, and then claim on appeal that the error
requires reversal. See, e.g., Dresselhouse, 177 Mich App
at 477 (“A party is not allowed to assign as error on
appeal something which his or her own counsel deemed
proper [in the trial court] since to do so would permit
the party to harbor error as an appellate parachute.”).
7
The Supreme Court in Goldberg noted that “a consent decree, in
order to be valid, must come within the jurisdiction of the court and
cannot confer jurisdiction where the law confers none.” Id. Here,
however, the parties’ consent judgment did not “confer jurisdiction where
the law confers none.” Rather, as noted, the district court possessed
specific subject-matter jurisdiction pursuant to chapter 57 of the RJA.
540 296 M
ICH
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525 [May
Here, defendants stipulated to the entry of the con-
sent judgment. The district court relied on that stipu-
lation in entering the consent judgment on October 1,
1999. Even assuming arguendo that the consent judg-
ment was premised on an error in the exercise of the
district court’s jurisdiction, that error was of the par-
ties’ own creation. Having created that error by stipu-
lating to the entry of the consent judgment, defendants
cannot now be heard to complain about that alleged
error. To sanction such an argument would be to permit
defendants to harbor their own error as an “appellate
parachute,” which we decline to do.
D. PLAINTIFF MAY ENFORCE THE CONSENT JUDGMENT
ACCORDING TO ITS TERMS
We are cognizant of the fact that, generally speak-
ing, a district court cannot enter a judgment that
exceeds its jurisdictional limit. See, e.g., Zimmer v
Schindehette, 272 Mich 407, 409; 262 NW 379 (1935)
(a judgment rendered by a justice of the peace held
void where it was in an amount in excess of the
justice’s jurisdiction); Krawczyk v DAIIE, 117 Mich
App 155, 163; 323 NW2d 633 (1982), rev’d in part on
other grounds 418 Mich 231 (1983) (a judgment
awarded in the district court exceeding the then-
existing jurisdictional limit of $10,000 not invalid,
provided that amounts in excess of the jurisdictional
limit can be attributed to costs, attorney fees, and
interest, or that the case represents an exception,
specified by statute, that would permit the court to
render a judgment over the jurisdictional amount).
However, we find that general rule to be inapplicable
to the circumstances presented here. In the cited cases,
the plaintiffs’ claims fell within the general jurisdiction
of the court, and the judgments in those cases were thus
2012] C
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constrained by the amount-in-controversy limitations
of the courts’ general jurisdiction. By contrast, the
Clohsets’ claims fell within the district court’s specific
jurisdiction under chapter 57 of the RJA, and those
general jurisdictional limits were thus “inapplicable.”
See, e.g., Bruwer, 218 Mich App at 396.
Even assuming arguendo that the general jurisdic-
tional limit applied, it might at most be argued that the
monetary amount of the consent judgment in excess of
the $25,000 general jurisdictional limit (plus interest,
costs, and attorney fees) was not recoverable, not that
the entirety of the judgment was void. This was the
result, for example, in Brooks v Mammo, 254 Mich App
486, 496; 657 NW2d 793 (2002), where this Court
limited the plaintiff’s recovery to the district court’s
$25,000 general jurisdictional limit.
But the circumstances in Brooks were in any event
unusual and largely inapplicable here. In Brooks, the
plaintiff had brought suit in the circuit court for an
amount in excess of the then applicable $10,000
district court general jurisdictional limit. Following a
mediation evaluation of $3,500, the circuit court
transferred the case to the district court, which held
a jury trial that resulted in a jury verdict in the
plaintiff’s favor in the amount of $50,000. As of the
trial date, former MCL 600.641 (which is not at issue
here, but which had permitted the removal of circuit
court actions to the district court even where the
amount in controversy otherwise would preclude it,
and which further made lawful subsequent jury ver-
dicts in excess of the otherwise applicable jurisdic-
tional limit) had been repealed. Before the judgment
was entered on the jury verdict in the district court,
the jurisdictional limit of the district court also had
been increased to $25,000. This Court thus was
542 296 M
ICH
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525 [May
compelled “to determine the combined effect that the
repeal of MCL 600.641 and the subsequent amend-
ment of MCL 600.8301 have on the verdict returned
by the jury in this case.” Brooks, 254 Mich App at 493.
This Court held that, under the circumstances pre-
sented, the plaintiff was entitled to a damages judg-
ment, but neither in the amount of the jury verdict
nor the amount of the district court’s jurisdictional
limit at the time of trial. Rather, the plaintiff was
entitled to damages in the amount of the newly
increased $25,000 jurisdictional limit.
Even if Brooks were applicable here, it would not void
the consent judgment. Rather, it would only limit the
recoverability of the judgment to the amount of the
district court’s general jurisdictional limit of $25,000
(plus interest, costs, and attorney fees).
8
As noted,
however, we find that in light of the district court’s
8
Even if the enforceability of the district court consent judgment
were so limited (which we expressly do not find), the settlement
agreement does not on its face appear to set any time limit for the
entry of either version of the consent judgment. Therefore, even under
defendants’ reading of the settlement agreement (i.e., that the waiver
of defenses found in section VI of the settlement agreement related
not to a later filing of a suit for breach of the settlement agreement,
but rather to the entry of judgment), it appears (absent enforcement of
the consent judgment in the district court) that defendants have
waived any defenses to the entry of the circuit court consent judgment,
should plaintiff proceed to file it. This is because the settlement
agreement states that the waiver of defenses relates to the “entry of
either or both” forms of the consent judgment, i.e., the version
prepared for entry in the district court and the version prepared for
entry in the circuit court. While only the former has to date been filed,
the settlement agreement provides that, in the event of a default: (a)
plaintiff may file the district court version of the consent judgment
“and/or” the circuit court version; (b) defendants are obliged to
“consent to all steps necessary to effectuate the entry of either or
both” such versions; and (c) defendants’ waiver of defenses relates to
the entry of “either or both” versions of the consent judgment.
2012] C
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specific jurisdiction in this case, the general jurisdic-
tional limit was inapplicable.
E. THE CIRCUIT COURT ERRED BY RULING ON THE MERITS
Because the district court had jurisdiction over this
case and improperly transferred the case to the circuit
court, the circuit court was completely without jurisdic-
tion to rule on plaintiff’s motion to enter the consent
judgment, on defendants’ motion to dismiss or, later, on
the parties cross-motions for summary disposition. Ac-
cordingly, the circuit court erred by ruling on those
motions, and should instead have transferred the case
back to the district court pursuant to MCR 2.227.
Having reached the above conclusions, we need not
address plaintiff’s remaining arguments on appeal.
9
9
The Court notes that, while not necessary to its decision in this
case, it is unpersuaded in any event that plaintiff lacked proper
alternative claims for breach of the settlement agreement, breach of
the consent judgment, or otherwise, or that those claims would be
barred by the applicable statute(s) of limitations, or otherwise.
Therefore, absent enforcement of the consent judgment, plaintiff may
still have a valid cause of action, in an appropriate court, for those
alternative claims.
In that regard, this Court is compelled to note that it is particularly
troubled that, in contesting plaintiff’s argument that they waived the
statute of limitations defense, and while accusing plaintiff of a
“blatant mischaracterization” of the settlement agreement, defen-
dants have used an ellipsis to categorically alter the meaning of the
waiver provision of the settlement agreement. Rather than preserving
“substantive defenses,” as defendants suggest, the actual language of
the settlement agreement confirms that such defenses are waived.
This Court makes no judgment at this juncture regarding whether
defendants made this representation intentionally or merely in error.
The Court additionally notes that the statute of limitations is not, as
defendants suggest, a “substantive” defense, but rather is a “proce-
dural one,” so that it would have been waived even under defendants’
errant reasoning. Staff v Johnson, 242 Mich App 521, 531; 619 NW2d
57 (2000).
544 296 M
ICH
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IV. CONCLUSION
We vacate the judgment of the circuit court and
remand to the district court for reinstatement and
enforcement of the consent judgment. We do not retain
jurisdiction.
K. F. K
ELLY
,P.J., and W
ILDER
, J., concurred with
B
OONSTRA
,J.
2012] C
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545
PEOPLE v BRANTLEY
Docket No. 298488. Submitted March 14, 2012, at Detroit. Decided May 17,
2012, at 9:00 a.m. Amended, 296 Mich App 801. Leave to appeal
denied, 493 Mich 877.
Hawk H. Brantley was convicted by a jury in the Oakland Circuit
Court of first-degree criminal sexual conduct (CSC-I), MCL
750.520b(1)(e), and larceny from the person, MCL 750.357, for
raping a former girlfriend at knifepoint and taking her personal
property. The court, Shalina D. Kumar, J., sentenced defendant to
serve concurrent prison terms of 4 to 10 years for the larceny
conviction and 12 to 40 years for the CSC-I conviction, as well as
lifetime electronic monitoring pursuant to MCL 750.520n follow-
ing his release. Defendant appealed.
The Court of Appeals held:
1. The prosecution presented sufficient evidence to prove de-
fendant’s guilt beyond a reasonable doubt. With respect to the
CSC-I charge, defendant was convicted of engaging in sexual
penetration with another person while armed with a weapon or
any article used or fashioned in a manner to lead the victim to
reasonably believe it to be a weapon. Sexual penetration includes
any intrusion, however slight, of any part of a person’s body or of
any object into the genital or anal openings of another person’s
body. The complainant’s testimony can, by itself, be sufficient to
support a conviction of CSC-I. In this case, the victim testified that
defendant put his forearm on her throat with enough pressure
that she could not breathe, produced a black folding knife and put
the edge of it on her throat, pulled her pants down around her
knees, and flipped her onto her stomach and inserted his penis into
her vagina from behind. The victim had a scratch on her neck that
was consistent with her allegation that defendant held a knife to
her neck. In addition, the victim identified defendant as her
attacker, defendant could not be excluded as a possible source of
the semen that was collected, and defendant was arrested with a
black folding knife in his possession. Taken as a whole, this
evidence was sufficient to allow a rational trier of fact to conclude
beyond a reasonable doubt that defendant engaged in sexual
penetration with the victim while he was armed with a weapon.
Defendant was also convicted of larceny from the person, which
546 296 M
ICH
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546 [May
requires the prosecution to prove that the defendant took someone
else’s property without consent, moved the property, intended to
steal or permanently deprive the owner of the property, and took
the property from the person or from the person’s immediate area
of control or immediate presence. The victim testified that defen-
dant took her cell phone, money, and purse without her permission
while she and defendant were together in his car. Furthermore,
the victim’s cousin testified that defendant had the victim’s cell
phone after the assault, told the victim’s cousin not to call the
phone again, and then used the phone to call the victim’s cousin
back. Finally, the evidence indicated that the victim was missing
her cell phone after the assault. This evidence was sufficient to
allow the jury to conclude beyond a reasonable doubt that defen-
dant committed all the essential elements of larceny from the
person.
2. The jury’s verdicts were not against the great weight of the
evidence. A new trial based on a challenge to the weight of the
evidence should be granted only when the evidence preponderates
heavily against the verdict and a serious miscarriage of justice
would otherwise result. In general, conflicting testimony or ques-
tions concerning the credibility of the witnesses are not sufficient
grounds for a new trial. The evidence presented at trial did not
preponderate heavily against the jury’s CSC-I verdict. In addition
to her identification of defendant, the evidence of the scratch, and
the testimony concerning the source of the semen, the victim
relayed consistent versions of the assault to her sister, the emer-
gency room doctor, and the forensic nurse who examined her.
Although there was no acute injury to the victim’s vagina, the
forensic nurse testified that this was not unusual for a victim of
sexual assault. The aspects of the victim’s testimony that defen-
dant argued cast doubt on her credibility did not make her story so
unreliable that a reasonable jury could not have believed it. The
evidence presented at trial concerning the victim’s property also
did not preponderate heavily against the jury’s verdict regarding
larceny from a person.
3. The trial court erroneously assessed 10 points for offense
variable (OV) 10 (exploitation of victim) when imposing the
sentence for the CSC-I conviction. Under MCL 777.40 a trial
court may assess 10 points for OV 10 if the offender exploited a
victim’s physical disability, mental disability, youth or agedness,
or a domestic relationship, or if the offender abused his or her
authority status. In the context of OV 10, a domestic relation-
ship is a familial or cohabitating relationship, not merely a past
dating relationship. In this case, the trial court incorrectly
2012] P
EOPLE V
B
RANTLEY
547
found that defendant and the victim were involved in a domestic
relationship because they had stopped dating at least two
months before the assault, they were dating other people, they
did not continue to have sex, and they did not live together.
Because the trial court imposed a minimum sentence that was
based on an erroneous interpretation of OV 10 and fell outside
the appropriate minimum sentence range under the sentencing
guidelines, defendant’s CSC-I sentence had to be vacated and
the case remanded for resentencing.
4. The trial court did not err by ordering defendant to submit
to lifetime electronic monitoring following his release from prison
despite the fact that the victim was 21 years old when defendant
sexually assaulted her. MCL 750.520b(2)(d) provides that in addi-
tion to any other penalty imposed, the court must sentence a
defendant convicted of CSC-I to lifetime electronic monitoring
under MCL 750.520n, which in turn provides that a “person
convicted under [MCL 750.520b] or [MCL 750.520c] for criminal
sexual conduct committed by an individual 17 years old or older
against an individual less than 13 years of age” must be sentenced
to lifetime electronic monitoring. Applying the last-antecedent
rule indicated that the Legislature intended the modifying phrase
“for criminal sexual conduct committed by an individual 17 years
old or older against an individual less than 13 years of age” to
apply to convictions of second-degree criminal sexual conduct
(CSC-II) under MCL 750.520c only, and not to convictions of CSC-I
under MCL 750.520b. Further, because MCL 750.520b(2)(d), MCL
750.520c(2)(b), and MCL 750.520n(1) address the same subject
and share a common purpose, they are in pari materia and must be
read together as a unified whole. While MCL 750.520b(2)(d) is
silent regarding age, MCL 750.520c(2)(b) states with respect to
individuals convicted of CSC-II that the court must sentence the
defendant to lifetime electronic monitoring if the violation in-
volved sexual contact committed by an individual 17 years of age
or older against an individual less than 13 years of age. Accord-
ingly, MCL 750.520n(1) requires a trial court to impose lifetime
electronic monitoring when any defendant is convicted of CSC-I
under MCL 750.520b and when a defendant who is 17 years old or
older is convicted of CSC-II under MCL 750.520c against a victim
who is less than 13 years old.
Convictions affirmed; sentence for CSC-I vacated and case
remanded for correction of the sentencing information report and
resentencing.
K. F. K
ELLY
, J., concurring in part and dissenting in part, agreed
with the majority except with respect to its affirmation of the
548 296 M
ICH
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546 [May
imposition of lifetime electronic monitoring. She would have
vacated that portion of the judgment of sentence and held that the
plain language of MCL 750.520b(2)(d) and MCL 750.520n requires
the imposition of lifetime electronic monitoring only when the
victim is less than 13 years old and the defendant is 17 years old or
older, even if the defendant was convicted of CSC-I.
1. C
RIMINAL
L
AW —
C
RIMINAL
S
EXUAL
C
ONDUCT —
S
ENTENCES —
L
IFETIME
E
LECTRONIC
M
ONITORING
.
MCL 750.520n(1) requires a trial court to impose lifetime electronic
monitoring when a defendant is convicted of first-degree criminal
sexual conduct under MCL 750.520b and when a defendant who
was 17 years old or older is convicted of second-degree criminal
sexual conduct under MCL 750.520c if the victim was less than 13
years old.
2. C
RIMINAL
L
AW —
S
ENTENCES —
O
FFENSE
V
ARIABLE
10
—
E
XPLOITATION OF A
D
OMESTIC
R
ELATIONSHIP
.
A trial court may assess 10 points for offense variable 10 (exploita-
tion of victim) if the offender exploited a victim’s physical disabil-
ity, mental disability, youth or agedness, or a domestic relation-
ship, or if the offender abused his or her authority status; in the
context of offense variable 10, a domestic relationship is a familial
or cohabitating relationship, not merely a past dating relationship
(MCL 777.40[1][b]).
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Jessica R. Cooper, Prosecuting Attor-
ney, Thomas R. Grden, Chief, Appellate Division, and
Rae Ann Ruddy, Assistant Prosecuting Attorney, for
the people.
State Appellate Defender (by Marla R. McCowan) for
defendant.
Before: W
HITBECK
,P.J., and J
ANSEN
and K. F. K
ELLY
,
JJ.
J
ANSEN
, J. Defendant appeals by right his jury-trial
convictions of first-degree criminal sexual conduct
2012] P
EOPLE V
B
RANTLEY
549
O
PINION OF THE
C
OURT
(CSC-I), MCL 750.520b(1)(e) (armed with a weapon),
and larceny from the person, MCL 750.357. He was
sentenced to serve concurrent prison terms of 12 to 40
years for the CSC-I conviction and 4 to 10 years for the
larceny-from-the-person conviction. He was also or-
dered to submit to lifetime electronic monitoring fol-
lowing his release from prison. We affirm defendant’s
convictions, but vacate his sentences in part and re-
mand for resentencing consistent with this opinion.
I
Defendant first argues that the prosecution failed to
present sufficient evidence to prove beyond a reason-
able doubt that he committed the crimes. We disagree.
Claims of insufficient evidence in a criminal case are
reviewed de novo, with the evidence viewed in a light
most favorable to the prosecution. People v Ericksen,
288 Mich App 192, 195-196; 793 NW2d 120 (2010). We
must determine whether a rational trier of fact could
have found that all the essential elements of the of-
fenses were proved beyond a reasonable doubt. People v
Railer, 288 Mich App 213, 217; 792 NW2d 776 (2010).
Circumstantial evidence and reasonable inferences aris-
ing therefrom may be used to prove the elements of a
crime. People v Bennett, 290 Mich App 465, 472; 802
NW2d 627 (2010). “[T]his Court must not interfere
with the jury’s role as the sole judge of the facts.” People
v Meshell, 265 Mich App 616, 619; 696 NW2d 754
(2005). It is the role of the jury to “ ‘determine ques-
tions of fact and assess the credibility of witnesses.’ ”
People v Cameron, 291 Mich App 599, 616; 806 NW2d
371 (2011), quoting People v Lemmon, 456 Mich 625,
637; 576 NW2d 129 (1998).
Defendant was convicted under MCL 750.520b(1)(e),
which provides that “[a] person is guilty of criminal
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sexual conduct in the first degree if he or she engages in
sexual penetration with another person” and “is armed
with a weapon or any article used or fashioned in a
manner to lead the victim to reasonably believe it to be
a weapon.” “Sexual penetration” is defined, in relevant
part, as “any...intrusion, however slight, of any part
of a person’s body or of any object into the genital or
anal openings of another person’s body....” MCL
750.520a(r); see also People v Szalma, 487 Mich 708,
712 n 5; 790 NW2d 662 (2010). “[T]he complainant’s
testimony can, by itself, be sufficient to support a
conviction” of criminal sexual conduct. Id. at 724; see
also MCL 750.520h.
Defendant was also convicted under MCL 750.357,
which provides in pertinent part that “[a]ny person who
shall commit the offense of larceny by stealing from the
person of another shall be guilty of a felony....”As
this Court observed in People v Perkins, 262 Mich App
267, 271-272; 686 NW2d 237 (2004), to prove the
elements of larceny from a person, the prosecution
must show that the defendant (1) took someone else’s
property without consent, (2) moved the property, (3)
intended to steal or permanently deprive the owner of
the property, and (4) took the property from the person
or from the person’s immediate area of control or
immediate presence.
We first conclude that the prosecution presented
sufficient evidence to prove beyond a reasonable doubt
that defendant committed CSC-I under MCL
750.520b(1)(e). The victim testified that defendant put
his forearm on her throat with enough pressure that
she could not breathe, that defendant produced a black
folding knife and put the edge of the knife on her throat,
that defendant pulled her pants down around her
knees, and that defendant flipped her over onto her
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stomach and inserted his penis into her vagina from
behind. The victim had a scratch on her neck that was
consistent with her allegation that defendant held a
knife to her neck. In addition, the victim identified
defendant as her attacker, and defendant could not be
excluded as a possible source of the semen that was
collected. Lastly, defendant was arrested with a black
folding knife in his possession. Taken as a whole, this
evidence was sufficient to allow a rational trier of fact to
conclude beyond a reasonable doubt that defendant
engaged in sexual penetration with the victim while he
was armed with a weapon. See MCL 750.520b(1)(e).
We also conclude that the prosecution presented
sufficient evidence to prove beyond a reasonable doubt
that defendant committed the offense of larceny from
the person. The victim testified that defendant took her
cell phone, money, and purse without her permission
while they were in his car. Furthermore, the victim’s
cousin testified that defendant had the victim’s cell
phone after the assault, that defendant told the victim’s
cousin not to call the cell phone again, and that defen-
dant then used the cell phone to call the victim’s cousin
back. Finally, the evidence indicated that the victim was
missing her cell phone after the assault. This evidence
was sufficient to enable a rational trier of fact to
conclude beyond a reasonable doubt that defendant had
committed all the essential elements of the offense of
larceny from the person. See Perkins, 262 Mich App at
271-272.
II
Defendant also argues that the jury’s verdicts were
against the great weight of the evidence. Again, we
disagree.
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We review unpreserved claims that the verdict was
against the great weight of the evidence for plain error
affecting the defendant’s substantial rights. People v
Musser, 259 Mich App 215, 218; 673 NW2d 800 (2003).
“ ‘[A] new trial based upon the weight of the evidence
should be granted only where the evidence preponder-
ates heavily against the verdict and a serious miscar-
riage of justice would otherwise result.’ ” Lemmon, 456
Mich at 642 (citation omitted). In general, conflicting
testimony or questions concerning the credibility of the
witnesses are not sufficient grounds for granting a new
trial. Id. at 643.
The evidence presented at trial did not preponderate
heavily against the jury’s CSC-I verdict. The victim testi-
fied regarding the sexual assault. She relayed consistent
versions of the assault to her sister, the emergency room
doctor, and the forensic nurse who examined her. The
victim also identified defendant as her attacker. She had a
scratch on her neck that was consistent with her allega-
tion that defendant held a knife to her neck. When she
spoke to her sister and the forensic nurse, she was shaken
and upset. Although there was no acute injury to the
victim’s vagina, the forensic nurse testified that this was
not unusual for a victim of sexual assault. Moreover,
defendant could not be excluded as a possible source of the
semen. Defendant was arrested with a black folding knife
that matched the weapon used during the assault. Fur-
thermore, the facts that the victim could not judge how far
defendant had parked his car from a school security guard
and that the victim may have lied about a previous
consensual encounter did not make her story so unreliable
that a reasonable jury could not have believed it.
Similarly, the evidence presented at trial did not pre-
ponderate heavily against the jury’s larceny-from-the-
person verdict. The victim testified that defendant took
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her cell phone, money, and purse. This testimony was
supported by evidence that the victim had to use a school
security guard’s cell phone to call her sister. Moreover, the
victim’s cousin testified that defendant had the victim’s
cell phone after the assault. The jury’s verdicts were not
against the great weight of the evidence.
III
Defendant next argues that the trial court errone-
ously assessed 10 points for offense variable (OV) 10,
MCL 777.40, when sentencing him for the CSC-I con-
viction. We agree and remand for resentencing with
respect to the CSC-I conviction.
We review a trial court’s scoring decisions under the
sentencing guidelines to determine whether the court
properly exercised its discretion and whether the record
adequately supports a particular score. People v Steele,
283 Mich App 472, 490; 769 NW2d 256 (2009). “An
appellate court must affirm minimum sentences that
are within the recommended guidelines range, except
when there is an error in scoring the sentencing guide-
lines or inaccurate information was relied on in deter-
mining the sentence.” Id.; see also MCL 769.34(10).
Pursuant to MCL 777.40(1)(b), a trial court may
assess 10 points for OV 10 if “[t]he offender exploited a
victim’s physical disability, mental disability, youth or
agedness, or a domestic relationship, or the offender
abused his or her authority status[.]” In the context of
OV 10, this Court has recently defined a “domestic
relationship” as “a familial or cohabitating relation-
ship....”People v Jamison, 292 Mich App 440, 447;
807 NW2d 427 (2011). This Court specifically rejected
the proposition that a past dating relationship would
fall within the definition of a “domestic relationship”
under MCL 777.40(1)(b). Id. at 447-448.
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Given this Court’s decision in Jamison, we conclude
that the trial court erroneously assessed 10 points for OV
10. Defendant and the victim had stopped dating at least
two months prior to the assault. Although they remained
friends, both were dating other people, they did not
continue to have sex, and they did not live together.
Indeed, the victim and defendant had limited contact.
Although defendant took the victim to school and they
occasionally talked on the phone, this did not constitute a
domestic relationship for the purpose of scoring OV 10.
The trial court incorrectly found that defendant and the
victim were involved in a domestic relationship.
If the trial court had properly assessed zero points
rather than 10 points for OV 10, defendant’s total
offense variable score would have been 35 points in-
stead of 45 points. This would have placed defendant in
cell D-II, rather than cell D-III, on the sentencing grid
for class A felony offenses. MCL 777.62. The recom-
mended minimum sentence range for offenders falling
in cell D-II on the class A felony grid is 81 to 135 months
in prison. Id. However, the trial court imposed a mini-
mum sentence of 144 months in prison in this case. This
minimum sentence fell outside defendant’s correct
guidelines range of 81 to 135 months. Because defen-
dant’s minimum sentence was based on an erroneous
interpretation of OV 10 and fell outside the appropriate
guidelines range, we vacate the sentence imposed for
defendant’s CSC-I conviction and remand for resen-
tencing. People v Francisco, 474 Mich 82, 91-92; 711
NW2d 44 (2006).
IV
Defendant also argues that the trial court erred by
ordering him to submit to lifetime electronic monitor-
ing following his release from prison. We disagree.
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“Whether defendant is subject to the statutory re-
quirement of lifetime electronic monitoring involves
statutory construction, which is reviewed de novo.”
People v Kern, 288 Mich App 513, 516; 794 NW2d 362
(2010).
With respect to an individual convicted of CSC-I,
MCL 750.520b(2)(d) provides in pertinent part that
“[i]n addition to any other penalty imposed..., the
court shall sentence the defendant to lifetime electronic
monitoring under section 520n.” In turn, MCL
750.520n(1) provides that “[a] person convicted under
section 520b or 520c for criminal sexual conduct com-
mitted by an individual 17 years old or older against an
individual less than 13 years of age shall be sentenced to
lifetime electronic monitoring....”
Defendant contends that, pursuant to MCL
750.520b(2)(d) and MCL 750.520n(1), a trial court must
order a defendant who is convicted of CSC-I to submit
to lifetime electronic monitoring only if the defendant
was 17 years old or older and the victim was less than 13
years old. Because the victim in this case was 21 years
old when defendant sexually assaulted her, defendant
asserts that he should not have been subjected to
lifetime electronic monitoring. Defendant’s argument is
compelling. Indeed, as the dissent points out, several
panels of this Court have agreed with that interpreta-
tion and held that lifetime electronic monitoring is
required for a CSC-I conviction only if the defendant
was 17 years old or older and the victim was less than 13
years old. See People v Floyd, unpublished opinion per
curiam of the Court of Appeals, issued September 20,
2011 (Docket No. 297393); People v Quintana, unpub-
lished opinion per curiam of the Court of Appeals,
issued May 19, 2011 (Docket No. 295324); People v
Hampton, unpublished opinion per curiam of the Court
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of Appeals, issued December 20, 2011 (Docket No.
297224); People v Bowman, unpublished opinion per
curiam of the Court of Appeals, issued November 9,
2010 (Docket No. 292415). However, those decisions are
unpublished and nonbinding, and although we are fully
cognizant of the rule of interpretation requiring adher-
ence to the plain language of a statute, we refuse to look
at the language in a vacuum and ignore other clearly
relevant statutory rules of construction.
Taken alone, the language of MCL 750.520n(1) does
seem to indicate that a trial court must order a defen-
dant who is convicted of CSC-I to submit to lifetime
electronic monitoring only if the defendant was 17 years
old or older and the victim was less than 13 years old.
However, having examined this provision in context and
compared it to MCL 750.520c, we conclude that the
Legislature intended the modifying phrase “for crimi-
nal sexual conduct committed by an individual 17 years
old or older against an individual less than 13 years of
age” to apply to convictions of second-degree criminal
sexual conduct (CSC-II) under MCL 750.520c only, and
not to convictions of CSC-I under MCL 750.520b. Under
the “last antecedent” rule, a modifying or restrictive
word or clause contained in a statute is confined solely
to the immediately preceding clause or last antecedent
unless something in the statute requires a different
interpretation. Duffy v Dep’t of Natural Resources, 490
Mich 198, 220-221; 805 NW2d 399 (2011); see also
People v Henderson, 282 Mich App 307, 328; 765 NW2d
619 (2009). Within the text of MCL 750.520n(1), the last
antecedent preceding the modifying phrase “for crimi-
nal sexual conduct committed by an individual 17 years
old or older against an individual less than 13 years of
age” is “[§] 520c,” indicating that the Legislature in-
tended the phrase to modify “[§] 520c” only.
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This reading of MCL 750.520n(1) is further sup-
ported by the language of MCL 750.520b(2)(d) and MCL
750.520c(2)(b). Because MCL 750.520b(2)(d), MCL
750.520c(2)(b), and MCL 750.520n(1) address the same
subject and share a common purpose, they are in pari
materia and must be read together as a unified whole.
Kern, 288 Mich App at 517. As explained previously,
MCL 750.520b(2)(d) states, with respect to individuals
convicted of CSC-I, that “[i]n addition to any other
penalty imposed...thecourt shall sentence the defen-
dant to lifetime electronic monitoring under section
520n.” MCL 750.520b(2)(d) is notably silent regarding
the age of the defendant or the age of the victim. In
contrast, MCL 750.520c(2)(b) states, with respect to
individuals convicted of CSC-II, that “[i]n addition to
the penalty specified in [MCL 750.520c(2)(a)], the court
shall sentence the defendant to lifetime electronic
monitoring under section 520n if the violation involved
sexual contact committed by an individual 17 years of
age or older against an individual less than 13 years of
age.” (Emphasis added.) Thus, while the CSC-II statute
specifically limits the requirement of lifetime electronic
monitoring to defendants who are 17 years old or older
and whose victims are younger than 13 years old, the
CSC-I statute contains no such age-based limitation. If
the Legislature had intended the age-based limitation
to apply to CSC-I convictions, it would have so provided,
given that, as MCL 750.520c(2)(b) demonstrates, it
clearly was aware of how to draft the statute in a way
that would have effectuated that intent. And the omis-
sion in one part of a statute of a provision that is
included in another part should be construed as inten-
tional. People v Monaco, 474 Mich 48, 58; 710 NW2d 46
(2006). Accordingly, we read MCL 750.520n(1) as re-
quiring the trial court to impose lifetime electronic
monitoring in either of two different circumstances: (1)
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when any defendant is convicted of CSC-I under MCL
750.520b, and (2) when a defendant who is 17 years old
or older is convicted of CSC-II under MCL 750.520c
against a victim who is less than 13 years old. In other
words, we hold that any defendant convicted of CSC-I
under MCL 750.520b, regardless of the age of the
defendant or the age of the victim, must be ordered to
submit to lifetime electronic monitoring. MCL
750.520b(2)(d); MCL 750.520n(1). In sum, the trial
court did not err by imposing the requirement of
lifetime electronic monitoring on the basis of defen-
dant’s CSC-I conviction.
1
V
We affirm defendant’s convictions. We also affirm the
trial court’s imposition of lifetime electronic monitoring
on the basis of defendant’s CSC-I conviction.
We vacate defendant’s sentence of 12 to 40 years in
prison and remand for resentencing with respect to
defendant’s CSC-I conviction. The trial court shall
modify the sentencing information report to indicate
defendant’s correct minimum sentence range under the
guidelines and shall enter an amended judgment of
sentence after resentencing.
Affirmed in part, vacated in part, and remanded for
resentencing consistent with this opinion. We do not
retain jurisdiction.
W
HITBECK
,P.J., concurred with J
ANSEN
,J.
1
In light of our conclusion in this regard, we reject defendant’s
argument that his attorney rendered ineffective assistance of counsel by
failing to object to the trial court’s imposition of lifetime electronic
monitoring. It is well settled that counsel is not ineffective for failing to
advocate a meritless position or make a futile objection. People v Goodin,
257 Mich App 425, 433; 668 NW2d 392 (2003); People v Snider, 239 Mich
App 393, 425; 608 NW2d 502 (2000).
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K. F. K
ELLY
,J.(concurring in part and dissenting in
part). I agree with the majority that defendant’s convic-
tions for first-degree criminal sexual conduct (CSC-I),
MCL 750.520b(1)(e) (armed with a weapon), and larceny
from the person, MCL 750.357, must be affirmed. I also
agree with the majority that the case must be remanded
for resentencing because the sentencing court erred by
assessing 10 points for offense variable (OV) 10, MCL
777.40, when there was no evidence that defendant and
the victim were involved in a domestic relationship. How-
ever, I write separately to dissent from that portion of the
majority’s opinion affirming the sentencing court’s impo-
sition of lifetime electronic monitoring. Because the plain
language of MCL 750.520n(1) clearly applies only when
the victim is less than 13 years of age and the defendant is
17 years old or older, I would vacate the imposition of
lifetime electronic monitoring.
I. STANDARD OF REVIEW
“Whether defendant is subject to the statutory re-
quirement of lifetime electronic monitoring involves
statutory construction, which is reviewed de novo.”
People v Kern, 288 Mich App 513, 516; 794 NW2d 362
(2010).
The primary goal of statutory construction is to give
effect to the Legislature’s intent. The statute’s words are
the most reliable indicator of the Legislature’s intent and
should be interpreted based on their ordinary meaning and
the context within which they are used in the statute. An
unambiguous statute is enforced as written. It is only when
statutory language is ambiguous that a court may look
outside the statute to ascertain legislative intent. A statu-
tory provision is ambiguous if it irreconcilably conflicts
with another provision or is equally susceptible to more
than one meaning. [Id. at 516-517 (quotation marks, brack-
ets, and citations omitted).]
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,J.
II. ANALYSIS
Defendant argues that the plain language of MCL
750.520n does not require lifetime electronic monitor-
ing when the sexual assault victim is an adult. I agree.
When MCL 750.520b(2)(d) is read with MCL 750.520n,
the clear result is that lifetime electronic monitoring is
only required when the victim is less than 13 years old
and the defendant is 17 years of age or older.
MCL 750.520b(2) provides:
Criminal sexual conduct in the first degree is a felony
punishable as follows:
(a) Except as provided in subdivisions (b) and (c), by
imprisonment for life or for any term of years.
(b) For a violation that is committed by an individual 17
years of age or older against an individual less than 13
years of age by imprisonment for life or any term of years,
but not less than 25 years.
(c) For a violation that is committed by an individual 17
years of age or older against an individual less than 13 years
of age, by imprisonment for life without the possibility of
parole if the person was previously convicted of a violation of
this section or [MCL 750.520c, MCL 750.520d, MCL
750.520e, or MCL 750.520g] committed against an individual
less than 13 years of age or a violation of law of the United
States, another state or political subdivision substantially
corresponding to a violation of this section or [MCL 750.520c,
MCL 750.520d, MCL 750.520e, or MCL 750.520g] committed
against an individual less than 13 years of age.
(d) In addition to any other penalty imposed under subdi-
vision (a) or (b), the court shall sentence the defendant to
lifetime electronic monitoring under [MCL 750.520n].
MCL 750.520n(1) provides:
A person convicted under [MCL 750.520b or MCL
750.520c] for criminal sexual conduct committed by an
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individual 17 years old or older against an individual less
than 13 years of age shall be sentenced to lifetime elec-
tronic monitoring....
The majority concludes that MCL 750.520n(1)
requir[es] the trial court to impose lifetime electronic
monitoring in either of two different circumstances: (1)
when any defendant is convicted of CSC-I under MCL
750.520b, and (2) when a defendant who is 17 years old or
older is convicted of [second-degree criminal sexual con-
duct (CSC-II)] under MCL 750.520c against a victim who is
less than 13 years old.
The majority comes to this conclusion by comparing the
language of MCL 750.520b and MCL 750.520c (CSC-II).
MCL 750.520c(2) provides:
Criminal sexual conduct in the second degree is a felony
punishable as follows:
(a) By imprisonment for not more than 15 years.
(b) In addition to the penalty specified in subdivision (a),
the court shall sentence the defendant to lifetime electronic
monitoring under [MCL 750.520n] if the violation involved
sexual contact committed by an individual 17 years of age
or older against an individual less than 13 years of age.
The majority holds that “while the CSC-II statute
specifically limits the requirement of lifetime electronic
monitoring to defendants who are 17 years old or older
and whose victims are younger than 13 years old, the
CSC-I statute contains no such age-based limitation.”
On this basis, the majority concludes that “any defen-
dant convicted of CSC-I under MCL 750.520b, regard-
less of the age of the defendant or the age of the victim,
must be ordered to submit to lifetime electronic moni-
toring.”
In reaching its conclusion, I believe that the majority
rewrites the legislation to say something that it does
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.
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ELLY
,J.
not. The majority would reform the statute to say what
the majority believes it ought to say rather than what
the Legislature has clearly and unequivocally stated.
That is beyond our province as an appellate court.
In Kern, this Court was asked to determine whether
lifetime electronic monitoring for defendants convicted
of CSC-II applied only to persons who had been released
on parole or from prison. Kern, 288 Mich App at
514-515. Kern does not answer the question whether
MCL 750.520n(1) only requires lifetime electronic
monitoring for CSC-I when the victim is less than 13
years old, but Kern does buttress my belief that the
majority has overstepped its bounds in looking beyond
the clear language of the statute. The result in Kern
depended on the interplay between the Michigan Penal
Code, MCL 750.1 et seq., and the Corrections Code,
MCL 791.201 et seq. Kern, 288 Mich App at 517-518. We
concluded that lifetime electronic monitoring “applies
only to persons who have been released on parole or
from prison, or both, and, therefore, does not apply to
defendant, who was sentenced to five years’ probation,
with 365 days to be served in jail.” Id. at 519. Reading
the two codes in pari materia, we noted:
MCL 750.520n(1) of the Michigan Penal Code directs
that defendants shall be sentenced to lifetime electronic
monitoring as provided under MCL 791.285 of the Correc-
tions Code. Because the latter statute only provides for the
implementation of a lifetime electronic monitoring pro-
gram for those defendants who are released on parole or
from prison, or both, defendants given probation or sent to
jail are not subject to such monitoring. [Id. at 522-523.]
We acknowledged that
the Legislature used the terms “parole” and “prison” and
did not use the terms “probation” or “jail.” A court may not
engraft on a statutory provision a term that the Legislature
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might have added to a statute but did not. The Legisla-
ture’s distinction between “parole” and “probation,” and
“prison” and “jail,” must be respected. [Id. at 522 (citation
omitted).]
This deference to the Legislature must prevail:
The prosecution persuasively argues that persons con-
victed of [CSC-II] for conduct committed by an individual
17 years of age or older against an individual less than 13
years old and sentenced to probation or jail time present a
similar, if not the same, risk to the public as those sen-
tenced to time in prison and, therefore, should be subject to
lifetime electronic monitoring. But “arguments that a
statute is unwise or results in bad policy should be ad-
dressed to the Legislature.” People v Kirby, 440 Mich 485,
493-494; 487 NW2d 404 (1992). Whether the Legislature’s
actions are due to concerns about taxing county resources,
a strategic decision that crimes resulting in sentences to
jail or probation do not merit the time and expense
involved with lifetime electronic monitoring in addition to
maintaining the defendant’s listing on the Michigan public
sex offender registry, or a mere drafting oversight is not for
us to decide. While the Legislature may deem it necessary
to make changes to the statutory scheme to provide for the
monitoring of persons sentenced to probation or jail time,
such changes are not within the province of the judicial
branch. Because this is a particularly important matter of
public interest, we urge the Legislature to review whether
it was indeed the intent of that body to exclude from
lifetime electronic monitoring individuals convicted of
[CSC-II] who are sentenced to probation or jail time. [Id. at
524-525.]
Again, while Kern may not directly answer the question
before us, it certainly guides our statutory interpreta-
tion and reminds us that we must defer to the clear
unequivocal language used by the Legislature.
While I recognize that unpublished opinions are not
precedentially binding under the rules of stare decisis,
MCR 7.215(C)(1), there have been several recent un-
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ELLY
,J.
published cases concerning lifetime electronic monitor-
ing sentences in which the victim was over the age of 13,
and I find their analysis persuasive. In People v Quin-
tana, unpublished opinion per curiam of the Court of
Appeals, issued May 19, 2011 (Docket No. 295324), p 7,
this Court vacated the defendant’s lifetime electronic
monitoring sentencing condition because the victim
was older than 13:
We conclude that although the legislature may have
intended to subject all individuals convicted [of CSC-I] to
lifetime electronic monitoring, the legislature’s intent is
irrelevant to our determination because the statutory
language is unambiguous. MCL 750.520b(2)(d) explicitly
references MCL 750.520n, which only applies where the
victim is younger than 13. For this Court to accept the
prosecution’s interpretation of MCL 750.520b(2)(d), it
would essentially be required to ignore that provision’s
reference to MCL 750.520n. Stated differently, if the legis-
lature desired to subject all individuals convicted of [CSC-I]
to lifetime electronic monitoring, the controlling statute
would not have included the language that we emphasize
below:
“In addition to any other penalty imposed under subdi-
vision (a) or (b), the court shall sentence the defendant to
lifetime electronic monitoring under section 520n.”
Under the rules of statutory interpretation, we cannot
simply disregard the specific language utilized by the
legislature. As a result, the portion of the Judgment of
Sentence requiring lifetime electronic monitoring is va-
cated.
In People v Bowman, unpublished opinion per curiam
of the Court of Appeals, issued November 9, 2010
(Docket No. 292415), the defendant was convicted of
two counts of first-degree criminal sexual conduct. We
found no support for the sentencing court’s imposition
of lifetime electronic monitoring when the victim was
over the age of 13:
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.
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ELLY
,J.
Here, it is undisputed that the complainant was 14 years
old at the time of defendant’s offenses. The prosecution
concedes that the trial court erred in imposing the lifetime
tether requirement.
[
1
]
Accordingly, we remand to the trial
court for it to engage in the ministerial task of removing
the lifetime tether provision from defendant’s judgment of
sentence. [Id., unpub op at 6.]
In People v Hampton, unpublished opinion per curiam
of the Court of Appeals, issued December 20, 2011 (Docket
No. 297224), the defendant was convicted of six counts of
first-degree criminal sexual conduct. We vacated the life-
time electronic monitoring from the defendant’s sentence
because the victim was over the age of 13:
The criminal sexual conduct statute instructs that “the
court shall sentence the defendant to lifetime electronic
monitoring under section 520n.” MCL 750.520b(2)(d). Pur-
suant to MCL 750.520n(1), a “person convicted under
section 520b or 520c for criminal sexual conduct committed
by an individual 17 years old or older against an individual
less than 13 years of age shall be sentenced to lifetime
electronic monitoring.” The goal of statutory construction
is to give effect to the Legislature’s intent. The Legislature
is presumed to have intended the meaning it plainly
expressed and clear statutory language must be enforced as
written.
Accordingly, the plain language of the statute as written
requires the conclusion that defendant is entitled to have
the lifetime electronic monitoring portion of his sentence
vacated because the victim in this case was 14 and 15 years
old at the time of the offenses. The prosecution’s argument
that the Legislature intended to provide mandatory life-
time electronic monitoring for all persons convicted of
[CSC-I] is not supported by the plain language of the
statute. [Id., unpub op at 10 (citations omitted).]
1
I note that the Oakland County Prosecutor’s Office has now taken
two different positions on this issue. Whereas in Bowman the prosecution
conceded error in imposing lifetime tethering, it now argues to the
contrary on this appeal.
566 296 M
ICH
A
PP
546 [May
O
PINION BY
K. F
.
K
ELLY
,J.
In People v Floyd, unpublished opinion per curiam of
the Court of Appeals, issued September 20, 2011
(Docket No. 297393), the defendant was convicted of
four counts of first-degree criminal sexual conduct. We
vacated the lifetime electronic monitoring from the
defendant’s sentence because the victim was over the
age of 13:
Although the prosecution argues that the Legislature
intended to provide mandatory lifetime electronic monitor-
ing for all persons convicted of [CSC-I] with MCL
750.520b(2)(d), that interpretation is not supported by a
plain reading of the statute. Specifically, MCL 750.520b
directs the trial court to MCL 750.520n to determine if
lifetime electronic monitoring is mandatory. Under MCL
750.520n, lifetime electronic monitoring is only mandatory
when the defendant is 17 years of age or older and the
victim is younger than 13 years old. See People v Kern, 288
Mich App 513, 519; 794 NW2d 362 (2010) (“Standing alone,
the terms of MCL 750.520c and MCL 750.520n indicate
that all defendants convicted of second-degree CSC for
conduct committed by an individual 17 years of age or older
against an individual less than 13 years old are subject to
lifetime electronic monitoring, without exception.”). The
victim here was older than 13 at the time of the assaults,
therefore, MCL 750.520n does not apply. Accordingly, we
vacate the trial court’s judgment to the extent that it
ordered defendant to be subject to lifetime electronic
monitoring. [Id., unpub op at 6.]
A plain reading of MCL 750.520b(2)(d) and MCL
750.520n(1) provides that, even in the case of CSC-I,
lifetime electronic monitoring is only required when the
victim is less than 13 years old and the defendant is 17
years old or older.
I would vacate that portion of defendant’s sentence
mandating lifetime electronic monitoring.
2012] P
EOPLE V
B
RANTLEY
567
O
PINION BY
K. F
.
K
ELLY
,J.
DAVIS v CITY OF DETROIT FINANCIAL REVIEW TEAM
McNEIL v CITY OF DETROIT FINANCIAL REVIEW TEAM
Docket Nos. 309218, 309250, and 309482. Submitted May 3, 2012, at
Lansing. Decided May 21, 2012, at 9:00 a.m.
Robert Davis and Edward McNeil brought separate actions in the
Ingham Circuit Court against the City of Detroit Financial Review
Team, the Governor, and the State Treasurer, asserting that
defendants had violated the Open Meetings Act (OMA), MCL
15.261 et seq. Davis sought a declaratory judgment, which the
court, William E. Collette, J., granted, holding that the Detroit
Financial Review Team, which was created under the Local
Government and School District Fiscal Accountability Act, MCL
141.1501 et seq., commonly known as the emergency financial
manager act (EFMA), was a public body subject to the provisions
of the OMA and that it had violated the OMA in several ways. The
trial court also granted Davis’s motion for a permanent injunction
barring defendants from violating the OMA. Defendants appealed
(Docket No. 309218). After the trial court granted his motion for a
permanent injunction, Davis filed an ex parte motion for civil
contempt and order to show cause why defendants should not be
held in contempt for allegedly establishing a subcommittee that
would violate the trial court’s earlier order. Davis distributed
subpoenas to each of the team members, requiring them to appear
at the show-cause hearing. Defendants moved to quash the sub-
poenas. Following the hearing on defendants’ motion, the court
ordered defendants’ counsel to produce five members of the
Detroit Financial Review Team at the show-cause hearing and
ordered the Detroit Financial Review Team and the State Trea-
surer not to execute or sign a consent agreement or its equivalent
with the city of Detroit, the Detroit City Council, or the Mayor of
Detroit until further order of the court. Defendants filed an
emergency application for leave to appeal (Docket No. 309250). By
order, the Court of Appeals reversed that portion of the trial
court’s order that had precluded defendants from executing a
consent agreement, stayed the remainder of the trial court’s order,
held the application for leave to appeal in abeyance, retained
jurisdiction, and gave its order immediate effect. The Court of
568 296 M
ICH
A
PP
568 [May
Appeals subsequently granted defendants’ application for leave to
appeal, consolidated the appeals in Docket Nos. 309218 and
309250, set an expedited briefing schedule, retained jurisdiction,
and again gave its order immediate effect. McNeil subsequently
filed his complaint and moved for preliminary injunctive relief,
alleging that the State Treasurer had been negotiating a consent
agreement with the city of Detroit in violation of the OMA and
that the Detroit Financial Review Team’s report on the city of
Detroit’s finances was based on meetings that were held in
violation of the OMA. The trial court issued a temporary restrain-
ing order and order to show cause, concluding that McNeil was
likely to succeed on the merits of his claim that defendants had
violated the OMA, and ordered a show-cause hearing concerning
why the court should not grant a preliminary injunction enjoining
defendants from taking any action regarding the city of Detroit in
violation of the OMA. Defendants filed an emergency application
for leave to appeal and application for stay (Docket No. 309482).
The Court of Appeals granted the application for leave to appeal,
granted the stay, consolidated the appeal with the appeals in
Docket Nos. 309218 and 309250, set an expedited briefing sched-
ule, retained jurisdiction, and again gave its order immediate
effect.
The Court of Appeals held:
1. The OMA generally requires that the decisions and delib-
erations of a public body be open to the public. The OMA defines
a “public body” as any state or local legislative or governing body,
including a board, commission, committee, subcommittee, author-
ity, or council, that is empowered by state constitution, statute,
charter, ordinance, resolution, or rule to exercise governmental or
proprietary authority or perform a governmental or proprietary
function. An individual executive acting in his or her executive
capacity is not a public body for purposes of the OMA. The
statutory terms used illustratively to define “public body” do not
encompass individuals, and it would be beyond awkward to apply
the OMA to an individual. Thus, the State Treasurer, when acting
in his or her executive capacity with authority either generally
derived from the Constitution or specifically derived from statute,
is not a public body subject to the OMA.
2. To be a public body under the OMA, the entity at issue must
be a state or local legislative or governing body that is empowered
by state constitution, statute, charter, ordinance, resolution, or
rule to exercise governmental or proprietary authority or perform
a governmental or proprietary function. That a body exercises
governmental authority is not itself dispositive of whether it is a
public body; the body must also be a legislative or governmental
2012] D
AVIS V
D
ETROIT
F
INANCIAL
R
EVIEW
T
EAM
569
body. Under the EFMA, under certain conditions, the State
Treasurer, as the state financial authority of a municipal govern-
ment, may conduct a preliminary review of a municipality’s
financial problems. If the State Treasurer makes a finding of
probable financial stress, the Governor must appoint a financial
review team for that municipal government. The Detroit Financial
Review Team was a state body given that the EFMA authorized its
creation and the Governor appointed the members of the team
pursuant to the EFMA. However, the Detroit Financial Review
Team was not empowered to make or enact law, to bring some-
thing into or out of existence by making law, or to attempt to bring
about or control by legislation. And while the EFMA gives the
state financial authority rulemaking authority, it does not give
rulemaking authority to financial review teams. Accordingly, the
Detroit Financial Review Team was not a legislative body. In
determining whether a financial review team is a governing body
under the OMA, a court must consider the authority or function
which the EFMA empowers a financial review team to exercise or
perform. Under the EFMA, a financial review team is empowered
to examine the books and records of the local government, use
services of other state agencies and employees, negotiate and sign
a consent agreement with the chief administrative officer of the
local government if approved by resolution of the governing body
of the local government and approved and executed by the State
Treasurer acting as the state financial authority for a municipal
government, meet with the local government and receive, discuss,
and consider information provided by the local government con-
cerning the financial condition of the local government, and report
its findings to the Governor, with a copy to the state financial
authority; the report must include the existence, or an indication
of the likely occurrence, of criteria relating to the financial
condition of a local government, and the report must include one
of four conclusions concerning the financial conditions of the local
government. A financial review team may also appoint an indi-
vidual or firm to carry out the review and submit a report to the
review team for approval with the approval of the state financial
authority, issue subpoenas and administer oaths to certain enu-
merated individuals and entities under certain circumstances, and
file an action in a circuit court to compel testimony and the
furnishing of records and documents under certain circumstances.
To be a governing body under the OMA, an entity must be
self-governing or independent, in that it makes or administers
public policy for a political unit or exercises independent authority,
and it must have the power to make decisions, which the OMA
defines as a determination, action, vote, or disposition upon a
570 296 M
ICH
A
PP
568 [May
motion, proposal, recommendation, resolution, order, ordinance,
bill or measure by which a public body effectuates or formulates
public policy. The authority and functions of a financial review
team under the EFMA do not empower it to independently govern
through decision-making that effectuates or formulates public
policy. While a financial review team may make recommendations,
it does not act upon those recommendations. Accordingly, a
financial review team is not a legislative or governing body and,
therefore, is not a public body under the OMA.
3. A public body may not delegate its authority to subunits of
individual members in order to evade the OMA. However, given
that the Detroit Financial Review Team was not itself a public
body, the State Treasurer, even if he acted as a one-man committee
of that financial review team, was not a public body exercising
governmental authority and, thus, was not subject to the stric-
tures of the OMA.
4. Declaratory relief normally will suffice to induce the legis-
lative and executive branches to conform their actions to consti-
tutional requirements or confine them within constitutional lim-
its. Only when declaratory relief has failed should the courts even
begin to consider additional forms of relief, such as injunctive
relief. An injunction represents an extraordinary and drastic use of
judicial power that should be employed sparingly. In determining
whether to issue an injunction, a court should consider: (1) the
likelihood that the party seeking the injunction will prevail on the
merits, (2) the danger that the party seeking the injunction will
suffer irreparable harm if the injunction is not issued, (3) the risk
that the party seeking the injunction would be harmed more by the
absence of an injunction than the opposing party would be by the
granting of the relief, and (4) the harm to the public interest if the
injunction is issued. Because there was no likelihood that plaintiffs
would prevail on the merits, no showing of irreparable harm, and
no showing that declaratory relief had failed, the trial court
improperly granted injunctive relief in these cases.
5. A party to litigation must obey an order entered by a court
with proper jurisdiction even if the order is clearly incorrect.
Accordingly, the Detroit Financial Review Team was required to
obey the trial court’s orders requiring it to adhere to the OMA as
long as those orders remained in effect and had not been stayed or
reversed on appeal. Thus, remand for further proceedings regard-
ing possible civil contempt by defendants was required.
Trial court rulings issuing injunctive relief reversed; both cases
remanded to the trial court for entry of judgment in defendants’
favor on the merits of the OMA claims brought by Davis and
2012] D
AVIS V
D
ETROIT
F
INANCIAL
R
EVIEW
T
EAM
571
McNeil; Davis also remanded for an evidentiary hearing on Davis’s
allegations that various state officials and members of the Detroit
Financial Review Team were in contempt of court.
O’C
ONNELL
, J., concurring in part and dissenting in part,
concurred with the majority that the Detroit Financial Review
Team was not subject to the OMA and that the Governor and State
Treasurer, being individual executive branch officeholders, were
not subject to the strictures of the OMA in these cases, but wrote
separately to emphasize that an injunction against a coequal
branch of government should be an extremely rare remedy, avail-
able only after a party has definitively established that a declara-
tory judgment has been ineffective, and that our governmental
system turns on a respectful balance of power among the three
branches of government. These tenets precluded remand, and
Judge O’C
ONNELL
accordingly would have reversed all of the trial
court’s rulings in their entirety.
1. S
TATUTES —
O
PEN
M
EETINGS
A
CT —
P
UBLIC
B
ODIES —
I
NDIVIDUAL
E
XECUTIVES —
S
TATE
T
REASURER
.
The Open Meetings Act (OMA) defines a “public body” as any state
or local legislative or governing body, including a board, commis-
sion, committee, subcommittee, authority, or council, that is
empowered by state constitution, statute, charter, ordinance,
resolution, or rule to exercise governmental or proprietary author-
ity or perform a governmental or proprietary function; an indi-
vidual executive acting in his or her executive capacity is not a
public body for purposes of the OMA; thus, the State Treasurer,
when acting in his or her executive capacity with authority either
generally derived from the Constitution or specifically derived
from statute, is not a public body under the OMA (MCL 15.262[a]).
2. S
TATUTES —
O
PEN
M
EETINGS
A
CT —
P
UBLIC
B
ODIES —
F
INANCIAL
R
EVIEW
T
EAMS
.
To be a public body under the Open Meetings Act (OMA), the entity
at issue must be a state or local legislative or governing body that
is empowered by state constitution, statute, charter, ordinance,
resolution, or rule to exercise governmental or proprietary author-
ity or perform a governmental or proprietary function; that an
entity exercises governmental authority is not itself dispositive of
whether it is a public body; the entity must also be a legislative or
governing body; a financial review team appointed under the Local
Government and School District Fiscal Accountability Act is not a
legislative or governing body and, therefore, is not a public body
under the OMA (MCL 15.261 et seq., MCL 141.1501 et seq.).
572 296 M
ICH
A
PP
568 [May
3. D
ECLARATORY
J
UDGMENTS —
L
EGISLATIVE AND
E
XECUTIVE
B
RANCHES OF
G
OV-
ERNMENT —
I
NJUNCTIVE
R
ELIEF
.
Declaratory relief normally will suffice to induce the legislative and
executive branches to conform their actions to constitutional
requirements or confine them within constitutional limits; only
when declaratory relief has failed should the courts even begin to
consider additional forms of relief, such as injunctive relief.
4. I
NJUNCTIONS —
S
TANDARD
.
An injunction represents an extraordinary and drastic use of judicial
power that should be employed sparingly; in determining whether
to issue an injunction, a court should consider: (1) the likelihood
that the party seeking the injunction will prevail on the merits, (2)
the danger that the party seeking the injunction will suffer
irreparable harm if the injunction is not issued, (3) the risk that
the party seeking the injunction would be harmed more by the
absence of an injunction than the opposing party would be by the
granting of the relief, and (4) the harm to the public interest if the
injunction is issued.
Andrew A. Paterson and Carl J. Marlinga for Robert
Davis.
Miller Cohen, P.L.C. (by Richard G. Mack, Jr., Robert
D. Fetter, and Keith D. Flynn), for Edward McNeil.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, B. Eric Restuccia, Deputy Solicitor
General, Richard A. Bandstra, Chief Legal Counsel,
and Michelle M. Brya, Assistant Attorney General, for
the City of Detroit Financial Review Team, the Gover-
nor, and the State Treasurer.
Before: W
HITBECK
,P.J., and O’C
ONNELL
and M. J.
K
ELLY
,JJ.
W
HITBECK
,P.J. These consolidated appeals involve the
relationship between the Open Meetings Act
1
and the
Local Government and School District Fiscal Account-
1
MCL 15.261 et seq.
2012] D
AVIS V
D
ETROIT
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INANCIAL
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EVIEW
T
EAM
573
O
PINION OF THE
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OURT
ability Act,
2
commonly known as the emergency finan-
cial manager act. The central issue in these cases is
whether a financial review team that the Governor
appoints under § 12(3) of the emergency financial man-
ager act
3
is a “public body,” as § 2(a) of the Open
Meetings Act
4
defines that term. We conclude that a
financial review team—and therefore the Detroit Fi-
nancial Review Team—is not a public body, because it is
not a “governing body” as the Open Meetings Act uses
that term. And we therefore also conclude that the
State Treasurer, whether acting in his executive capac-
ity or as a “one man committee” of the Detroit Finan-
cial Review Team, is not a “public body.”
We further conclude that the trial court abused its
discretion by granting injunctive relief through its
various rulings and orders in the proceedings below, in
two major ways. First, the trial court failed to apply
controlling legal principles in determining that the
Detroit Financial Review Team was a public body.
Second, the trial court erred by finding that there would
be per se irreparable harm to the people if it did not
grant injunctive relief.
Thus, in Davis v Detroit Financial Review Team
(Docket No. 309218), we reverse the trial court’s orders
granting declaratory and injunctive relief to Davis and
remand the case to the trial court for entry of judgment
in favor of defendants regarding the merits of the case.
Similarly, in McNeil v Detroit Financial Review Team
(Docket No. 309482), we reverse the trial court’s order
granting a show-cause hearing concerning McNeil’s
claim under the Open Meetings Act and remand for
entry of judgment in favor of defendants. However, in
2
MCL 141.1501 et seq.
3
MCL 141.1512(3).
4
MCL 15.262(a).
574 296 M
ICH
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568 [May
O
PINION OF THE
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OURT
Davis v Detroit Financial Review Team (Docket No.
309250), we remand the case for further proceedings
regarding Davis’s motion for civil contempt.
I. BASIC FACTS
A. THE EMERGENCY FINANCIAL MANAGER ACT
The emergency financial manager act became effec-
tive March 16, 2011.
5
The emergency financial manager
act provides that, when certain conditions are met, the
State Treasurer, as the “state financial authority” of a
municipal government, may conduct a preliminary re-
view of a municipality’s financial problems.
6
If the State Treasurer makes a finding of “probable
financial stress,” the Governor must appoint a review
team for that municipal government.
7
The review team
for a municipal government must include the State
Treasurer or his or her designee; the Director of the
Department of Technology, Management, and Budget
or his or her designee; a nominee of the Senate Majority
Leader; and a nominee of the Speaker of the House of
Representatives.
8
But the Governor may also appoint
other state officials or “other persons with relevant
professional experience to serve on a review team to
undertake a municipal financial management review.”
9
Under the emergency financial manager act, the
review team has the power to examine the books and
records of the local government, utilize the services of
other state agencies and employees, and negotiate and
5
MCL 141.1501 et seq. This act is also sometimes referred to as “Act 4”
because of its public act number, that is, 2011 PA 4.
6
MCL 141.1505(k)(i); MCL 141.1512(1).
7
MCL 141.1512(3).
8
Id.
9
Id.
2012] D
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575
O
PINION OF THE
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OURT
sign a consent agreement with the chief administrative
officer of the local government.
10
However, for such a
consent agreement with a municipal government to go
into effect, it must be approved by resolution of the
governing body of the local government and be ap-
proved and executed by the State Treasurer.
11
Importantly, the review team must meet with the
local government as part of its review.
12
At this meeting
or meetings, the review team is to receive, discuss, and
consider information provided by the local government
concerning the financial condition of the local govern-
ment.
13
The review team must report its findings to the
Governor within 60 days following its appointment,
although the Governor may grant one 30-day extension
to this limit.
14
Within 10 days after receipt of the report
of the review team, the Governor must make a deter-
mination whether a financial emergency exists and how
to proceed.
15
A financial emergency can be resolved
either through a consent agreement or the appointment
of an emergency manager.
16
B. OPEN MEETINGS ACT
The Open Meetings Act
17
generally requires “deci-
sions” or “deliberations” of a “public body” to be open
to the public.
18
The Open Meetings Act allows individu-
10
MCL 141.1513(1).
11
MCL 141.1513(1)(c).
12
MCL 141.1513(2).
13
Id.
14
MCL 141.1513(3).
15
MCL 141.1515.
16
Id.
17
MCL 15.261 et seq.
18
MCL 15.262; MCL 15.263.
576 296 M
ICH
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568 [May
O
PINION OF THE
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OURT
als to bring civil actions for injunctive relief to either
compel compliance or enjoin further noncompliance.
19
The Open Meetings Act defines the term “public
body” for its purposes to include
any state or local legislative or governing body, including a
board, commission, committee, subcommittee, authority,
or council, that is empowered by state constitution, statute,
charter, ordinance, resolution, or rule to exercise govern-
mental or proprietary authority or perform a governmental
or proprietary function....
[
20
]
The Open Meetings Act defines a “meeting,” in part,
as “the convening of a public body at which a quorum is
present for the purpose of deliberating toward or ren-
dering a decision on a public policy....”
21
And the
Open Meetings Act defines a “decision” as a “determi-
nation, action, vote, or disposition upon a motion,
proposal, recommendation, resolution, order, ordi-
nance, bill, or measure on which a vote by members of
a public body is required and by which a public body
effectuates or formulates public policy.”
22
C. DOCKET NO. 309218
On December 21, 2011, State Treasurer Andy Dillon
provided Governor Rick Snyder with a preliminary
review, concluding that probable financial stress existed
in the city of Detroit. On December 27, 2011, the
Governor appointed the Detroit Financial Review
Team. The Governor subsequently granted the finan-
cial review team a 30-day extension.
19
MCL 15.271.
20
MCL 15.262(a).
21
MCL 15.262(b).
22
MCL 15.262(d).
2012] D
AVIS V
D
ETROIT
F
INANCIAL
R
EVIEW
T
EAM
577
O
PINION OF THE
C
OURT
On February 1, 2012, Robert Davis filed a complaint
in the Ingham Circuit Court, seeking a declaratory
judgment and injunctive relief based on his assertions
that defendants—the Detroit Financial Review Team,
the Governor, and the State Treasurer—had violated
multiple provisions of the Open Meetings Act. Davis
later filed an emergency motion for declaratory judg-
ment and injunctive relief, and defendants moved for
summary disposition. The trial court heard arguments
on February 6 and February 15, 2012, and made rulings
from the bench that it incorporated into two orders, one
that it issued on February 6, 2012, and the other that it
issued on February 29, 2012.
In the February 29, 2012 order, the trial court
granted Davis’s motion for declaratory judgment, de-
nied defendants’ motion for summary disposition, and
granted Davis’s motion for a permanent injunction
barring defendants from violating any and all provi-
sions of the Open Meetings Act. The trial court also held
that the Detroit Financial Review Team was a public
body subject to the provisions of the Open Meetings Act
and that the Detroit Financial Review Team had vio-
lated the act by (1) failing to hold its January 10, 2012,
meeting in public, (2) failing to keep minutes of the
January 10, 2012, meeting and failing to provide Davis
with a copy of the minutes, (3) failing to post notice of
the January 10, 2012, meeting, and (4) meeting in
closed session for impermissible purposes on Janu-
ary 10, 2012.
The trial court further held that the Detroit Finan-
cial Review Team violated the Open Meetings Act by
holding a private meeting with the Detroit Mayor and
other city officials and by meeting in closed session on
January 17, 2012. The trial court awarded costs and
attorney fees to Davis. The trial court dismissed the
578 296 M
ICH
A
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568 [May
O
PINION OF THE
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OURT
matter with prejudice and retained jurisdiction only for
the purpose of enforcement. The trial court denied
defendants’ motion for a stay of proceedings and closed
the case.
On March 21, 2012, defendants filed a claim of appeal
from the trial court’s February 29, 2012, order. Defen-
dants have subsequently stated that, although they
dispute the correctness of the trial court’s decision, they
have conducted subsequent meetings of the Detroit
Financial Review Team in conformance with the Open
Meetings Act.
D. DOCKET NO. 309250
On March 1, 2012, Davis filed in the trial court an ex
parte motion for civil contempt and order to show cause
why defendants should not be held in contempt for
establishing a subcommittee that would violate the trial
court’s February 29, 2012, order. The trial court issued
a show-cause order on March 1, 2012, requiring all 10
members of the Detroit Financial Review Team to
appear for a show-cause hearing on March 12, 2012.
Defendants moved for reconsideration of that order.
They asserted that the subcommittee had yet to meet
and that advisory committee meetings do not violate
the Open Meetings Act. In two orders issued March 8,
2012, the trial court adjourned the show-cause hearing
and denied defendants’ motion for reconsideration.
On March 9, 2012, Davis noticed a show-cause hear-
ing in the trial court, supported by affidavits from him
and his counsel, indicating that there were additional
questions that defendants had not answered. On
March 13, 2012, the trial court scheduled the show-
cause hearing for March 22, 2012. Defendants assert
that the trial court directed Davis’s counsel to provide
defendants’ counsel with a list of witnesses that he
2012] D
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O
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OURT
wished to present at the March 22, 2012, hearing.
However, at a March 13, 2012, public meeting of the
Detroit Financial Review Team, Davis’s counsel distrib-
uted subpoenas to each of the team members, requiring
them to appear at the show-cause hearing.
Defendants filed an emergency motion in the trial
court to quash the subpoenas and to hold Davis’s
counsel in contempt for failing to follow the trial court’s
direction concerning witnesses. The trial court held a
hearing on the motion on March 20, 2012. At the
hearing, Davis represented that defendants continued
to violate the Open Meetings Act when the State
Treasurer allegedly met individually with Detroit City
Council members and the Mayor’s staff, allegedly ex-
changed drafts of documents, and allegedly negotiated
for the Detroit Financial Review Team. Davis asserted
that the State Treasurer acted as a member of the
Detroit Financial Review Team and that he was in
contempt of court.
The trial court indicated that, at a prior hearing, it
had informed the parties that the appointment of a
subcommittee to do the job of the Detroit Financial
Review Team would be a violation of the Open Meetings
Act. The trial court further stated that it would not
allow the Detroit Financial Review Team to approve
any agreement until the trial court was satisfied that
there was proper adherence to the Open Meetings Act.
After the hearing, the trial court issued its March 20,
2012, order. In that order, the trial court adjourned the
show-cause hearing to March 29, 2012, and ordered
defendants’ counsel to produce five members of the
Detroit Financial Review Team (including the State
Treasurer) to provide testimony at the show-cause
hearing. The trial court further ordered the Detroit
Financial Review Team and the State Treasurer not to
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execute or sign a consent agreement or its equivalent
with the city of Detroit, Detroit City Council, or the
Mayor of Detroit until further order of the trial court.
The March 20, 2012, order also required the parties to
provide each other with any additional witnesses they
intended to call and for the State Treasurer to produce
all documents requested in Davis’s subpoena, unless
previously supplied. On March 22, 2012, the trial court
denied defendants’ emergency motion for stay. On the
same day, defendants filed their emergency application
for leave to appeal with this Court.
On March 22, 2012, this Court issued its order grant-
ing defendants’ motion for immediate consideration,
holding the application for leave and the motion for stay
in abeyance, and requiring Davis to file responsive
pleadings. After Davis filed his responsive pleadings, on
March 23, 2012, this Court issued its order, reversing
that part of the trial court’s order of March 20, 2012,
that precluded defendants from executing a consent
agreement. This Court held that § 10 of the Open
Meetings Act
23
did not authorize the trial court to bar
further actions by the defendants in the absence of a
finding of continued violations of the act. This Court
also stayed all other aspects of the trial court’s
March 20, 2012, order, held defendants’ application for
leave in abeyance, retained jurisdiction, and gave the
order immediate effect.
On March 27, 2012, this Court issued its order grant-
ing defendants’ application for leave to appeal, consoli-
dating Docket No. 309250 with Docket No. 309218,
setting an expedited briefing schedule, continuing to
retain jurisdiction, and giving the order immediate
effect.
23
MCL 15.270.
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E. DOCKET NO. 309482
On March 29, 2012, Edward McNeil filed a complaint
and motion for preliminary injunctive relief against the
same defendants as in the Davis litigation (Docket Nos.
309250 and 309218) previously described. The com-
plaint alleged that the Detroit Financial Review Team,
specifically the State Treasurer, had been negotiating a
consent agreement in violation of the Open Meetings
Act and that the Detroit Financial Review Team’s
report was based on meetings that were held in viola-
tion of the Open Meetings Act. McNeil sought a tempo-
rary restraining order prohibiting defendants from tak-
ing any further actions under the emergency financial
manager act and from acting on the Detroit Financial
Review Team’s March 26, 2012, report.
On March 30, 2012, the trial court, without hearing
from defendants, issued a temporary restraining order
and order to show cause, which found, among other
things, that McNeil was likely to succeed on the merits
of the claims that defendants had violated the Open
Meetings Act. Somewhat confusingly, the trial court
also ordered that McNeil’s motion for a temporary
restraining order and order to show case be “held in
abeyance” because McNeil was entitled to a hearing on
that motion. The trial court ordered that a show-cause
hearing take place on April 9, 2012, regarding why the
trial court should not grant the preliminary injunction
enjoining defendants from taking any action regarding
the city of Detroit in violation of the Open Meetings Act.
As of April 4, 2012, four Detroit Financial Review Team
members were served with subpoenas to appear and
produce documents at the April 9, 2012, show-cause
hearing.
On April 4, 2012, defendants filed an emergency
application for leave to appeal and application for stay
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with this Court. After McNeil filed his responsive plead-
ings, on April 5, 2012, this Court issued its order granting
the application for leave to appeal. This Court also granted
the stay, consolidated this appeal with the appeals in the
Davis litigation, set an expedited briefing schedule, re-
tained jurisdiction, and gave the order immediate effect.
After receiving and reviewing briefs from all the
parties in these consolidated appeals, this Court heard
oral argument on May 4, 2012.
II. THE OPEN MEETINGS ACT AND FINANCIAL REVIEW TEAMS
A. OVERVIEW
The main thrust of the arguments of Davis and
McNeil in these consolidated appeals is that the State
Treasurer and the Detroit Financial Review Team,
acting under the authority of the emergency financial
manager act, violated the Open Meetings Act. At the
core of this argument is the assertion that the State
Treasurer and the Detroit Financial Review Team are
“public bodies” subject to the Open Meetings Act.
24
Although complex, this is a narrow question. We there-
fore do not address the question whether the emergency
financial manager act is sound public policy, either in
the short term or in the long term. Such public policy
matters are for the Legislature, and not this Court, to
decide.
25
We also do not address the question whether
the consent agreement/financial stability agreement
that was ultimately entered into was a good idea or a
24
MCL 15.262(a).
25
Tyler v Livonia Pub Schs, 459 Mich 382, 393 n 10; 590 NW2d 560
(1999) (“Our role as members of the judiciary is not to determine whether
there is a ‘more proper way,’ that is, to engage in judicial legislation, but is
rather to determine the way that was in fact chosen by the Legislature. It is
the Legislature, not we, who are the people’s representatives and authorized
to decide public policy matters such as this.”).
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bad idea. And, in particular, we do not address the
assertion that a financial review team acting under the
authority of the emergency financial manager act
should be subject to the Open Meetings Act and there-
fore should hold its meetings in public. We only address
the question whether the Open Meetings Act requires
that such a financial review team hold its meetings in
public. In short, we deal not with what should be, but
with what is.
As we outline later in this opinion, we conclude that
the meetings of a financial review team—and therefore
the Detroit Financial Review Team—are not covered by
the Open Meetings Act. We hold that such a financial
review team is not a “governing body” and, therefore,
not a “public body” as the Open Meetings Act uses these
terms. We reach that decision because we conclude,
after examining the authority and functions of a finan-
cial review team and analyzing them within the frame-
work of the Open Meetings Act, that the emergency
financial manager act does not empower a financial
review team (1) as a “governing body” (2) to exercise
independent governmental or proprietary authority or
(3) to perform an independent governmental or propri-
etary function, (4) either one of which results in inde-
pendent decision-making that effectuates or formulates
public policy. We also hold that the State Treasurer,
whether acting in his executive capacity or as a “one
man committee” of the Detroit Financial Review Team,
is not a “public body.”
B. STANDARD OF REVIEW
This Court reviews de novo issues of statutory con-
struction.
26
“The Legislature is presumed to have in-
26
Driver v Naini, 490 Mich 239, 246; 802 NW2d 311 (2011).
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tended the meaning it has plainly expressed,”
27
and
clear statutory language must be enforced as writ-
ten.
28
However, when a statute is ambiguous, “this
Court’s goal is to effectuate the Legislature’s intent
through a reasonable construction, considering the
purpose of the statute and the object sought to be
accomplished.”
29
C. THE STATE TREASURER AS A “PUBLIC BODY”
1. PRELIMINARY MATTERS
Davis and McNeil sued the State Treasurer in his
official capacity as the duly appointed Treasurer for the
State of Michigan and in his official capacity as a
member of the Detroit Financial Review Team. Davis
and McNeil have also asserted that the State Treasurer
acted as a “one man committee” in this matter. We will
consider each allegation in turn.
It is appropriate to note that Davis and McNeil also
sued the Governor in somewhat the same fashion. But on
appeal, Davis and McNeil have made no further argument
regarding the Governor’s role in this case. A party may
not leave it to this Court to discover and rationalize the
basis for his or her claims,
30
nor may a party give issues
cursory treatment with little or no citation of supporting
authority.
31
And a party’s failure to properly address the
merits of an assertion constitutes abandonment of the
27
Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 219; 731 NW2d
41 (2007) (quotation marks and citation omitted).
28
Fluor Enterprises, Inc v Dep’t of Treasury, 477 Mich 170, 174; 730
NW2d 72 (2007).
29
Tull v WTF, Inc, 268 Mich App 24, 31; 706 NW2d 439 (2005).
30
Wilson v Taylor, 457 Mich 232, 243; 577 NW2d 100 (1998).
31
In re Application of Indiana Mich Power Co, 275 Mich App 369, 376;
738 NW2d 289 (2007).
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issue.
32
We therefore hold that Davis and McNeil have
abandoned any claims against the Governor.
2. THE STATE TREASURER ACTING IN HIS EXECUTIVE CAPACITY
Turning first to whether an individual acting in an
executive capacity can constitute a “public body” as the
Open Meetings Act defines that term, the leading case
on this subject is Herald Co v Bay City.
33
That case
involved the issue whether a city manager—a single
individual—constituted a “public body” in connection
with a city charter provision that provided for the city
commission to appoint a new fire chief on the recom-
mendation of the city manager.
34
The Michigan Su-
preme Court observed that, as used in the Open Meet-
ings Act, the term “public body” connotes a collective
entity and that
[t]he statutory terms used illustratively to define “public
body”—“legislative body” and “governing body”—do not
encompass individuals. A single individual is not commonly
understood to be akin to a “board,” “commission,” “com-
mittee,” “subcommittee,” “authority,” or “council”—the
bodies specifically listed in the act by the Legislature.
[
35
]
The Supreme Court went on to note that other
statutes, specifically the Freedom of Information Act,
36
define public bodies in such a way as to encompass
individuals.
37
The clear inference is that the Legislature
32
Yee v Shiawassee Co Bd of Comm’rs, 251 Mich App 379, 406; 651
NW2d 756 (2002).
33
Herald Co v Bay City, 463 Mich 111; 614 NW2d 873 (2000), modified
on other grounds in Mich Federation of Teachers & Sch Related Person-
nel, AFT, AFL-CIO v Univ of Mich, 481 Mich 657 (2008).
34
Id. at 115.
35
Id. at 129-130.
36
MCL 15.231 et seq.
37
Herald Co, 463 Mich at 130, citing MCL 15.232(d).
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deliberately chose not to use a definition encompassing
individuals when it enacted the Open Meetings Act.
Further, the Court observed that it would be “awkward,
to say the least,” to apply the Open Meetings Act to an
individual and concluded by stating:
Perhaps the strongest common-sense basis for conclud-
ing that an individual was not contemplated by the Legis-
lature as a “public body” is to consider how odd a concept
it would be to require an individual to “deliberate” in an
open meeting. Thus, we conclude that an individual execu-
tive acting in his executive capacity is not a public body for
the purposes of the [Open Meetings Act].
[
38
]
It is plain that this analysis applies directly to the
State Treasurer as an individual executive acting alone
in his executive capacity. It would be beyond “awkward”
to envision that the State Treasurer, while acting, for
example, in his executive capacity as the “state finan-
cial authority” of a local government and conducting a
preliminary review to determine the existence of a local
governmental financial problem,
39
was at that moment
subject to the Open Meetings Act as a “public body”
40
when conducting a “meeting” in which he, and he
alone, was “deliberating toward or rendering” a “deci-
sion” on a “public policy” matter
41
that “effectuates or
formulates public policy” on which “a vote by members
of a public body is required....”
42
Such a tortured, and tortuous, process is clearly
outside the framework of the Open Meetings Act. As the
Supreme Court stated in Herald Co, “an individual
executive acting in his executive capacity is not a public
38
Herald Co, 463 Mich at 130-131 (citations omitted).
39
MCL 141.1512(1).
40
MCL 15.262(a).
41
MCL 15.262(b).
42
MCL 15.262(d).
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body for the purposes of the [Open Meetings Act].”
43
We
therefore hold that the State Treasurer when acting in
his executive capacity with authority either generally
derived from the Constitution or specifically derived
from statute is not a public body subject to the Open
Meetings Act.
3. THE STATE TREASURER ACTING AS A “ONE MAN COMMITTEE”
OF THE DETROIT FINANCIAL REVIEW TEAM
Davis and McNeil also assert that the State Trea-
surer met with various Detroit officials and other city
leaders, and negotiated part or all of the consent
agreement/financial stability agreement that the De-
troit Financial Review Team ultimately signed in this
matter. The emergency financial manager act clearly
authorizes a financial review team to “[n]egotiate and
sign a consent agreement with the chief administrative
officer of the local government.”
44
If State Treasurer
Dillon was in fact a “one man committee” negotiating
with Detroit officials on behalf of the Detroit Financial
Review Team, this may call into play the Supreme
Court’s decision in Booth Newspapers, Inc v University
of Michigan Board of Regents.
45
In Booth Newspapers, the University of Michigan
Board of Regents attempted to evade the requirements
43
Herald Co, 463 Mich App at 131. See also A&E Parking v Detroit
Metro Wayne Co Airport Auth, 271 Mich App 641, 651; 723 NW2d 223
(2006) (stating that the chief executive officer of an airport authority was
not a public body under the Open Meetings Act); Craig v Detroit Pub Sch
Chief Executive Officer, 265 Mich App 572, 579-580; 697 NW2d 529
(2005) (stating that the chief executive officer of the Detroit Public
Schools was not a public body because he was an individual acting in his
official capacity).
44
MCL 141.1513(1)(c).
45
Booth Newspapers, Inc v Univ of Mich Bd of Regents, 444 Mich 211;
507 NW2d 422 (1993).
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of the Open Meetings Act. Among other things, it
entrusted one regent with the authority to make the
“first cut” in the candidate list for the position of
president of the university.
46
As the majority in Booth
Newspapers elaborated:
The Presidential Selection Committee [consisting of the
eight-member Board of Regents] entrusted Regent [Paul
W.] Brown with sole authority to make the first cut, and he
did so after numerous telephone calls and meetings with
the advisory committees and informal subquorum groups
of regents. The acknowledged purpose of the telephone
calls and subquorum meetings was to achieve the same
intercommunication that could have been achieved in a full
board meeting. During this process, the board avoided
quorum meetings because it would have been required to
conduct a public meeting under the [Open Meetings
Act].
[47]
The board of regents argued that Regent Brown’s
actions did not constitute that of a subcommittee.
Therefore, the board asserted, his actions fell outside
the reach of the Open Meetings Act.
48
The majority in
Booth Newspapers did not find this argument persua-
sive and was concerned that it carried with it the
potential for undermining the Open Meetings Act.
49
The majority stated:
Essentially, the board argues form over substance. The
Legislature did not grant any exception to specific types or
forms of committees. Therefore, delegating the task of
choosing a public university president to a one-man com-
mittee, such as Regent Brown, would warrant the finding
that this one-man task force was in fact a public body. As
the Goode Court observed, “[w]e do not find the question of
46
Id. at 216.
47
Id.
48
Id. at 225-226.
49
Id. at 226.
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whether a multi-member panel or a single person presides
to be dispositive. Such a distinction carries with it the
potential for undermining the Open Meetings Act....”
[
50
]
The majority went on to hold that the “selection of a
public university president constitutes the exercise of
government authority, regardless of whether such au-
thority was exercised by Regent Brown, the nominating
committee, the full board, or even subcommittees.”
51
Accordingly, the majority held that this “individual,”
referring to Regent Brown, or these entities must be
deemed to be public bodies within the scope of the Open
Meetings Act.
52
But, importantly, in Herald Co the Supreme Court
later explained that the individual member of the public
body in Booth Newspapers—Regent Brown—was distin-
guishable from an individual executive. The majority in
Herald Co explained that, in Booth Newspapers, there
was a public body in the first instance—the board of
regents—that impermissibly attempted to delegate its
authority to subunits of individual members in an attempt
to evade the Open Meetings Act.
53
Thus, the question of
whether the State Treasurer acted as a “one man
committee” of the Detroit Financial Review Team when
he allegedly met with various Detroit officials and
leaders and negotiated part or all of the consent
agreement/financial stability agreement, turns on
whether the Detroit Financial Review Team itself is a
public body under the Open Meetings Act. If the Detroit
Financial Review Team is not itself a public body, then the
State Treasurer, as a “one man committee” of that finan-
cial review team, could not himself be a public body under
50
Id., quoting Goode v Dep’t of Social Servs, 143 Mich App 756, 759;
373 NW2d 210 (1985) (alteration in original).
51
Booth Newspapers, 444 Mich at 226.
52
Id.
53
Herald Co, 463 Mich at 135 n 18.
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the Open Meetings Act. We thus turn to the question of
whether the Detroit Financial Review Team is a public
body within the meaning of the Open Meetings Act.
54
D. A FINANCIAL REVIEW TEAM AS A “PUBLIC BODY”
1. THE STATUTORY REQUIREMENTS ACCORDING TO HERALD CO
As outlined in Herald Co, the definition of a “public
body” in the Open Meetings Act contains two require-
ments.
55
“First, the entity at issue must be a ‘state or local
legislative or governing body, including a board, commis-
sion, committee, subcommittee, authority, or council.’ ”
56
Second, the entity must be “empowered by state consti-
tution, statute, charter, ordinance, resolution, or rule to
exercise governmental or propriety authority or perform a
governmental or proprietary function[.]”
57
2. THE DETROIT FINANCIAL REVIEW TEAM AS A LEGISLATIVE BODY
It is clear that the Detroit Financial Review Team is
a state body. The emergency financial manager act
authorized the creation of financial review teams and
the Governor appointed the members of the Detroit
Financial Review Team pursuant to that act.
58
But it is
equally clear that a financial review team is not a
legislative body.
54
For the sake of clarity, we note that in its final order granting
declaratory and injunctive relief to Davis, the trial court only held the
Detroit Financial Review Team to constitute a public body under the
Open Meetings Act. However, McNeil asserted in his complaint that all
defendants are public bodies under the Open Meetings Act. Thus, the
question of whether the State Treasurer is a public body under the Open
Meetings Act is within the scope of issues in controversy in McNeil’s case.
55
Id. at 129.
56
Id., quoting MCL 15.262(a).
57
MCL 15.262(a); see also Herald Co, 463 Mich at 129.
58
See MCL 141.1512(3).
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The Open Meetings Act does not define the term
“legislative body.” But when a statute does not define
words contained within it, we must construe and un-
derstand them according to the common and approved
usage of the language.
59
And to determine the common,
ordinary meaning, courts may consult dictionary defi-
nitions.
60
Further, “[t]his Court must avoid a construc-
tion that would render any part of a statute surplusage
or nugatory,” and “ ‘[w]e must consider both the plain
meaning of the critical words or phrases as well as their
placement and purpose in the statutory scheme.’ ”
61
Near the time of the enactment of the Open Meetings
Act, the American Heritage Dictionary of the English
Language, New College Edition defined the word “leg-
islative” as “[h]aving the power to create laws; designed
to legislate.”
62
In turn, that dictionary defined “legis-
late” as “[t]o pass a law or laws” or “[t]o create or bring
about by legislation; enact into law.”
63
Similarly, the
Random House Webster’s College Dictionary defines
“legislative” as “1. having the function of making laws:
a legislative body. 2. of or pertaining to the enactment
of laws: legislative proceedings. 3. pertaining to a legis-
lature: a legislative recess.”
64
The same dictionary de-
fines “legislate” as “to make or enact laws.”
65
And A
Dictionary of Modern Legal Usage defines “legislate” as
59
MCL 8.3a.
60
People v Peals, 476 Mich 636, 641; 720 NW2d 196 (2006); Title Office,
Inc v Van Buren Co Treasurer, 469 Mich 516, 522; 676 NW2d 207 (2004).
61
People v Redden, 290 Mich App 65, 76-77; 799 NW2d 184 (2010)
(dealing with initiated laws) (citation omitted; alteration in original).
62
American Heritage Dictionary of the English Language, New College
Edition (1978) (emphasis added).
63
Id.
64
Random House Webster’s College Dictionary (1997).
65
Id.
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“to make laws;...tobring (something) into or out of
existence by making laws; to (attempt to) bring about or
control by legislation.”
66
The emergency financial manager act does not give a
financial review team the power to make or enact law, to
bring something into or out of existence by making law,
or to attempt to bring about or control by legislation.
Therefore, a financial review team cannot legislate and
it has no legislative functions. And while the emergency
financial manager act gives the state financial authority
(that is, in the case of a municipal government, the
State Treasurer) rulemaking authority,
67
it gives no
such authority to a financial review team. Accordingly,
we conclude that the Detroit Financial Review Team is
not a legislative body.
3. THE DETROIT FINANCIAL REVIEW TEAM AS A GOVERNING BODY
The question whether the Detroit Financial Review
Team is a “governing body” is more complex. Again, the
Open Meetings Act does not define the term “governing
body,” but, as defendants point out, The American Heri-
tage Dictionary of the English Language, New College
Edition, defines “govern” as “[t]o make and administer
public policy” for a political unit and to “exercise sover-
eign authority in.”
68
Similarly, the first Random House
Webster’s College Dictionary definition for “govern” is “to
rule by right of authority, as a sovereign does: to govern a
nation.”
69
A Dictionary of Modern American Usage
66
Garner, A Dictionary of Modern Legal Usage (2d ed) (New York:
Oxford University Press, 1995).
67
MCL 141.1529.
68
American Heritage Dictionary of the English Language, New College
Edition (1978).
69
Random House Webster’s College Dictionary (1997).
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equates “governing” with regulating and controlling.
70
Further, the Legislature has elsewhere defined “governing
body” to mean a body that has some specific authority
over a political subdivision: a board of commissioners for a
county, a city or village council, a township board, a body
with legislative powers, or any body that has general
governing or policymaking authority over a political sub-
division.
71
It is also instructive to examine the entire context of
the Open Meetings Act to determine the Legislature’s
intent when it used the term “governing body.”
72
Within
the definition of “public body” is the added provision
that the state or local legislative or governing body
must be empowered by state constitution, statute, char-
ter, ordinance, resolution, or rule to “exercise govern-
mental or proprietary authority or perform a govern-
mental or proprietary function[.]”
73
As a consequence,
in the case of the provisions of the emergency financial
manager act, we must look to the “authority” or “func-
tion” that the act empowers a financial review team to
exercise or perform. And, as Davis points out, the focus
of our inquiry is the “authority delegated to [the finan-
cial review team], not the authority it exercised.”
74
70
Garner, A Dictionary of Modern American Usage (New York: Oxford
University Press, 1998).
71
See, for example, MCL 45.582(d); MCL 120.102(c) and (d); MCL
123.731(k); MCL 124.112(b); MCL 124.301(f); MCL 124.531(a); MCL
125.651(d); and MCL 125.1603(c). See Louis A Demute, Inc v Employment
Security Comm, 339 Mich 713, 721-722; 64 NW2d 545 (1954) (indicating
that, although not determinative, the terms of one statute may be taken as
a factor in determining the interpretation of another statute).
72
Macomb Co Prosecutor v Murphy, 464 Mich 149, 159; 627 NW2d 247
(2001) (“We construe an act as a whole to harmonize its provisions and
carry out the purpose of the Legislature.”).
73
MCL 15.262(a).
74
Schmiedicke v Clare Sch Bd, 228 Mich App 259, 264; 577 NW2d 706
(1998).
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Section 12(3)
75
of the emergency financial manager
act sets out the process by which the Governor may
appoint a financial review team, but it is § 13 of that act
that generally delineates a financial review team’s
authority and functions.
76
Indeed, MCL 141.1513 states
unequivocally that
[t]he review team shall have the full power in its review to
perform all of the following functions:
(a) Examine the books and records of the local govern-
ment.
(b) Utilize the services of other state agencies and
employees.
(c) Negotiate and sign a consent agreement with the
chief administrative officer of the local government....In
order for the consent agreement to go into effect, it shall be
approved, by resolution, by the governing body of the local
government and shall be approved and executed by the
state financial authority....
(2) The review team shall meet with the local govern-
ment as part of its review. At this meeting, the review team
shall receive, discuss, and consider information provided by
the local government concerning the financial condition of
the local government.
(3) The review team shall report its findings to the
governor, with a copy to the state financial authority....
The report given to the Governor must include “the
existence, or an indication of the likely occurrence of,” a
number of criteria relating to the financial condition of
a local government.
77
In its report, a review team must
include one of four conclusions concerning the financial
condition of the local government.
78
The second per-
75
MCL 141.1512(3).
76
MCL 141.1513.
77
MCL 141.1513(3).
78
MCL 141.1513(4).
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missible conclusion is that the local government is “in a
condition of severe financial stress...,butaconsent
agreement containing a plan to resolve the problem has
been adopted....”
79
In addition, a financial review team is empowered,
with the approval of the State Treasurer as the state
financial authority, to “appoint an individual or firm to
carry out the review and submit a report to the review
team for approval.”
80
And, as Davis and McNeil point
out, a financial review team has the power, under
certain circumstances, to issue subpoenas and adminis-
ter oaths to certain enumerated individuals and enti-
ties.
81
Further, a financial review team, under certain
circumstances, may file an action in a circuit court to
compel testimony and the furnishing of records and
documents.
82
In arguing that a financial review team is not a
governing body, defendants place considerable empha-
sis on The American Heritage Dictionary’s use of the
words “sovereign authority.” The Attorney General
couples these words with the definition in The Ameri-
can Heritage Dictionary of the English Language, New
College Edition of the word “sovereign” as meaning
“[h]aving supreme rank or power” or “[s]elf-governing;
independent[.]”
83
Accordingly, defendants assert that a
governing body “is a body that makes or administers
public policy for a political unit or exercises supreme or
independent authority.”
79
MCL 141.1513(4)(b).
80
MCL 141.1513(5).
81
MCL 141.1526(1).
82
Id.
83
The American Heritage Dictionary of the English Language, New
College Edition (1978).
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To the extent that defendants describe a public
body’s authority as “supreme,” we find that definition
to be overstated and therefore, paradoxically, too nar-
row. In our view, the question is not whether a financial
review team exercises “supreme” sovereign authority in
the manner of the early English kings or the Russian
czars. In Michigan’s constitutional democracy with, at
the state level, three coequal branches of government
exercising checks and balances on one another, together
with various local governmental entities exercising
various responsibilities, it is the rare individual or
entity indeed that exercises “supreme” and unchecked
authority. Defendants’ definition would winnow the
number of public bodies in this state down to a precious
few. And we do not believe that the Legislature intended
such a constricted definition.
However, we do accept defendants’ definition to the
extent that a governing body should be one that is
“[s]elf-governing; independent”;
84
that is, a body that
makes or administers public policy for a political unit or
exercises independent authority. And concomitant with
that independent authority is the power of that govern-
ing body to make decisions, which the Open Meetings
Act defines as a “determination, action, vote, or dispo-
sition upon a motion, proposal, recommendation, reso-
lution, order, ordinance, bill or measure...bywhich a
public body effectuates or formulates public policy.”
85
Davis and McNeil, on the other hand, appear to argue
that we should consider any state or local body empow-
ered by law to exercise governmental or proprietary
authority or perform a governmental or proprietary
function to be a public body under the Open Meetings
84
The American Heritage Dictionary of the English Language, New
College Edition (1978).
85
MCL 15.262(d) (emphasis added).
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Act. Indeed, Davis asserts that in Booth Newspapers the
Supreme Court “clarified” that a public body does not
have to be a legislative or governing body.
But Booth Newspapers actually says no such thing.
Rather, Booth Newspapers stated that “a key determi-
nation of the [Open Meetings Act’s] applicability is
whether the body in question exercises governmental or
proprietary authority.”
86
The Supreme Court obviously
did not read the words “legislative or governing body”
out of the Open Meetings Act when it decided Booth
Newspapers. To do so now would be to render the
statutory language nugatory.
87
As previously set forth,
§ 2(a) of the Open Meetings Act defines a public body in
relevant part to be “any state or local legislative or
governing body,” including certain enumerated ex-
amples, that is empowered by various sources of law “to
exercise governmental or proprietary authority or per-
form a governmental or proprietary function[.]”
88
Treating any state or local body that is empowered by
law to exercise governmental or proprietary authority or
perform a governmental or proprietary function as a
public body under the Open Meetings Act would improp-
erly render nugatory the Legislature’s use of the adjective
“governing” to limit the types of bodies that are public
bodies subject to the Open Meetings Act. By identifying
whether the body in question exercises governmental or
proprietary authority as a key determination under the
Open Meetings Act, the Supreme Court did not say, nor
can it reasonably be inferred, that this was the only
86
Booth Newspapers, 444 Mich at 225 (emphasis added), citing Goode,
143 Mich App at 759 (“The dispositive question is whether the perfor-
mance of necessary governmental functions is open to the public.”).
87
Apsey v Mem Hosp, 477 Mich 120, 131; 730 NW2d 695 (2007) (“[A]
reviewing court should not interpret a statute in such a manner as to
render it nugatory.”).
88
MCL 15.262(a).
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determination to be made under the act. As defendants
point out, the fact that a body exercises governmental
authority is not itself dispositive. The body must also be a
legislative or governing body.
89
This Court’s opinion in Crowley v Governor
90
makes
it clear that not all governmental bodies empowered to
exercise a governmental function are public bodies
within the meaning of the Open Meetings Act. Crowley
involved the question whether the Legislative Leader-
ship Committee, which consisted of four leading mem-
bers of the Legislature, was a public body under the
Open Meetings Act and thus had violated the act by
convening a special session of the Legislature without
complying with the act.
91
This Court agreed with the
defendants in Crowley that the Legislative Leadership
Committee was not a public body because it did not
“legislate” or “govern,” emphasizing that the authority
of the committee “amount[ed] to the sole administra-
tive task of reconvening the Legislature in the case of
an emergency.”
92
Because the Legislative Leadership
Committee was plainly a committee that exercised a
governmental function in reconvening the Legislature,
it is inherent in the holding in Crowley that not every
governmental committee charged with exercising a gov-
ernmental function is a public body under the Open
Meetings Act.
93
89
Herald Co, 463 Mich App at 132, n 15 (stating that establishing the
second requirement—governmental authority—does not establish the
first requirement—that the entity is a legislative or governing body).
90
Crowley v Governor, 167 Mich App 539; 423 NW2d 258 (1988).
91
Id. at 541-542.
92
Id. at 545-546.
93
See also Herald Co, 463 Mich at 136 n 19 (concluding that a purely
advisory body that did not derive its power from state constitution,
statute, charter, ordinance, resolution, or rule was not subject to the
Open Meetings Act).
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In our view, the question is whether, looking at the
four corners of the emergency financial manager act,
that act empowers a financial review team (1) as a
“governing body” (2) to exercise an independent gov-
ernmental or proprietary authority or (3) to perform an
independent governmental or proprietary function,
(4) either one of which results in independent decision-
making by which a financial review team effectuates or
formulates public policy.
We note that, pointing to the definition of “decision,”
plaintiffs argue that the financial review team was
involved in decision-making by making recommenda-
tions. In other words, plaintiffs contend that the act of
making a recommendation alone constitutes a decision
within the meaning of the Open Meetings Act’s defini-
tion.
94
However, we find it significant that the definition
does not merely refer to a recommendation alone.
Rather, it refers to a “determination, action, vote, or
disposition upon a motion, proposal, recommendation,
resolution, order, ordinance, bill or measure”—the op-
erative word here being “upon.”
We observe that rarely do recommendations coming
from a public body originate from the entire public body
itself. As an example, when the State Administrative
Board meets to approve contracts, the recommendation
for approval comes from a committee of the board, not
the board itself. Similarly, when a local city council
meets to consider a budget, the recommendation for
approval of the budget usually comes from the mayor,
not the city council itself. In those circumstances, the
public body acts “upon” a recommendation made to it
by another entity, group, or person. The public body
does not usually initiate or make a recommendation to
itself.
94
MCL 15.262(d).
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With this distinction in mind, we turn to the “author-
ity” or “function” that the emergency financial man-
ager act empowers a financial review team to exercise or
perform. Consequently, we must consider § 13
95
of the
emergency financial manager act, within the analytical
context of the Open Meetings Act, particularly its
definitional sections.
96
a. EXAMINING THE BOOKS AND RECORDS
A financial review team’s first function under § 13 is
to examine the books and records of the local govern-
ment.
97
This function is purely investigative in nature.
And investigations do not, when standing alone, involve
independent decision-making that effectuates or formu-
lates public policy. These investigations may ultimately
lead to recommendations, advice, and perhaps decisions
by other entities, groups, or persons. But in no sense are
such investigations “governing” by making decisions
that effectuate or formulate public policy. Inherently,
they do not involve determinations, actions, votes, or
dispositions. While they may be governmental or pro-
prietary in nature, their result is purely advisory.
98
As defendants point out, perhaps the closest ana-
logue to a financial review team under the emergency
financial manager act is the Auditor General. The
Auditor General and his or her staff has the authority
95
MCL 141.1513.
96
MCL 15.262.
97
MCL 141.1513(1)(a).
98
See Herald Co, 463 Mich at 136 n 19 (stating that a city manager’s
committee’s duties—to aid in establishing hiring criteria, soliciting and
screening applicants, interviewing applicants, and to advise on the
selection of the most qualified candidate—were “purely advisory in
nature”); House Speaker v Governor, 443 Mich 560, 594 n 40; 506 NW2d
190 (1993) (stating that the Open Meetings Act does not apply to advisory
boards created by executive order to advise governmental departments).
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to examine “the books, accounts, documents, records,
performance activities, and financial affairs of each
branch, department, office, board, commission, agency,
authority, and institution of this state.”
99
In doing so,
individuals are required to cooperate with the audit and
answer truthfully all questions related to the audit.
100
And the Auditor General and his or her appointees have
the power to issues subpoenas, compel the attendance
and testimony of witnesses, and administer oaths.
101
However, we have found no case in Michigan in which
the Auditor General and his or her audit team has been
held to be a public body.
b. UTILIZING THE SERVICES OF OTHER STATE AGENCIES
AND EMPLOYEES
A financial review team is also empowered under § 13
to utilize the services of other state agencies and
employees.
102
While this language rather clearly estab-
lishes that a financial review team is a state agency, this
function is otherwise administrative in nature and
therefore uninformative. Again, while such utilization
may be governmental or proprietary in nature, it does
not involve “governing” by the financial review team
through independent determinations, actions, votes, or
dispositions that effectuate or formulate public policy.
c. NEGOTIATING AND SIGNING A CONSENT AGREEMENT
It is a financial review team’s third function under
§ 13—the power to negotiate and sign a consent agree-
ment with the chief administrative officer of the local
99
MCL 13.101(2).
100
MCL 13.101(3).
101
MCL 13.101(4).
102
MCL 141.1513(1)(b).
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government
103
—that is the fulcrum of this case. These
actions might appear to be an act of “governing” by
both formulating—through negotiations with the local
government—and effectuating—through signing the
consent agreement—public policy. However, language
in the remainder of that subdivision invalidates such a
conclusion. That language states that “[i]n order for the
consent agreement to go into effect, it shall be approved,
by resolution, by the governing body of the local gov-
ernment and shall be approved and executed by the
state financial authority,”
104
here, the State Treasurer.
As a result, when we consider the entirety of this
critical subdivision of the emergency financial manger
act, we conclude that a consent agreement that a
financial review team negotiates and signs is but the
first step in the process of effectuating or formulating
public policy. A financial review team is not acting
“upon” a “motion, proposal, recommendation, resolu-
tion, order, ordinance, bill or measure” that has come
before it.
105
Rather, it is making a recommendation
“upon” which the governing body of the local govern-
ment and the State Treasurer, acting as the state
financial authority can, within the exercise of their full
discretion, act.
Such a consent agreement is, until the governing
body of the local government approves it and the State
Treasurer approves and executes it, only a recommen-
dation. And, in our view, a recommendation for action
by another entity, group, or individual, by its very
nature, cannot constitute “governing” either through
the effectuating or the formulating of public policy by
the entity that is itself making the recommendation.
103
MCL 141.1513(1)(c).
104
Id. (emphasis added).
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That is, even by negotiating and signing the consent
agreement, the financial review team is not, and cannot
be, by statute, exercising independent authority to
effectuate the recommendation contained in the con-
sent agreement.
Therefore, under the process established by the
emergency financial manager act, a financial review
team can only, together with the chief administrative
officer of a local government, provide a recommended
consent agreement to the governing body of the local
government and the State Treasurer. The financial
review team itself has no capacity to act upon this
recommendation and has no power to implement it. The
effectuating and formulating of public policy can only
occur by and through the actions of the governing body
of the local government and the State Treasurer. They,
and only they, can act upon the recommended consent
agreement after the financial review team forwards
that recommended consent agreement for approval.
This differs critically from the acts of individual or
subquorum groups of regents in Booth Newspapers. In
that case, the individual regents or subquorum groups
were not merely making recommendations. Rather,
they were effectively exercising the authority of the
University of Michigan Board of Regents to narrow the
field of candidates and ultimately choose the person to
be the university president. In contrast, a financial
review team cannot exercise authority to adopt a con-
sent agreement but can merely participate in preparing
a recommended consent agreement. And, in our view,
the preparation of a recommended consent agreement
cannot constitute “governing” either through the effec-
tuating or the formulating of public policy.
106
106
See Herald Co, 463 Mich at 136 n 19; Booth Newspapers, 444 Mich
at240n8(B
OYLE
, J., concurring in part and dissenting in part).
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Until approved by the governing body of the local
government (presumably in accordance with the Open
Meetings Act), a financial review team’s recommended
consent agreement does not and cannot “govern” the
actions of such a local government. And, even then,
until approved and executed by the State Treasurer, it
does not and cannot “govern” the actions of state
government. Stated another way, until properly acted
“upon”—not by the financial review team, but by the
governing body of the local government and by the
State Treasurer—a consent agreement that a financial
review team negotiates and signs is not a contract and
has no legal effect.
107
And, as defendants point out, the functions that the
emergency financial manager act empowers a financial
review team to undertake do not include public policy-
making with respect to a local governmental unit. While
a financial review team performs its functions, local
officials still govern the local governmental unit. The
emergency financial manager act does not suspend or
alter the authority of these officials until the Governor
puts the local governmental unit into receivership and
appoints an emergency financial manager.
108
At that
point, an emergency financial manager, not the finan-
cial review team, assumes the powers of the local
governmental unit. Thus, a financial review team has
no authority under the emergency financial manager
act to “govern” any local governmental unit by effectu-
ating or formulating public policy.
We conclude therefore that the process by which a
financial review team negotiates and signs a consent
agreement is not “governing” through independent
107
See Minock v Shortridge, 21 Mich 304, 315 (1870) (stating that an
executory contract “has no binding force until it is confirmed”).
108
MCL 141.1519(2).
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decision-making that effectuates or formulates public
policy. The financial review team’s actions in negotiat-
ing and signing a consent agreement are not a “deci-
sion” within the meaning of the Open Meetings Act
because the financial review team is not acting upon a
recommendation. Rather, it is making a recommenda-
tion.
We further recognize that the rather intricate work-
ings of the emergency financial manager act create a
situation whereby a financial review team’s decision not
to negotiate and sign a consent agreement might be
considered a “determination, action, vote, or disposi-
tion,”
109
albeit a negative one. Following a financial
review team’s decision not to negotiate and sign a
consent agreement, the local governing body and the
State Treasurer would not thereafter be able to approve
and execute a consent agreement.
Rather clearly, however, the Legislature anticipated
such a circumstance. Under § 15(1)
110
of the emergency
financial manager act, the Governor, after receiving the
required report from the financial review team under
§ 13(3),
111
would be required to determine either that
“[t]he local government is not in a condition of severe
financial stress”
112
or that “[a] local government finan-
cial emergency exists...andnosatisfactory plan exists
to resolve the emergency.”
113
Therefore, a financial review team’s decision not to
negotiate and sign a consent agreement would elimi-
nate one option—the approval and execution of a con-
sent agreement—but that decision would leave at least
109
See MCL 15.262(d).
110
MCL 141.1515(1).
111
MCL 141.1513(3).
112
MCL 141.1515(1)(a).
113
MCL 141.1515(1)(c).
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two options open for the Governor. Thus, that decision
still effectively functions as a recommendation “upon”
which the Governor can act by selecting one of the
remaining alternatives. In effectively recommending,
but not itself acting “upon” the selection of one of these
remaining alternatives, a financial review team is not
itself “governing” as it is neither effectuating nor
formulating public policy.
More broadly, a refusal to negotiate and sign a
consent agreement is not an affirmative act of “govern-
ing.” Rather, it is a refusal to govern, a negative act.
Logically speaking, therefore, a financial review team
could not be a “governing body” if it, in fact, refused to
govern.
d. MEETING WITH THE LOCAL GOVERNMENT
A financial review team’s fourth function under § 13
is to meet with the local government and receive,
discuss, and consider information provided by the local
government concerning the financial condition of the
local government.
114
Again, this function is investigative
in nature and is not “governing” through independent
decision-making that effectuates or formulates public
policy.
e. REPORTING ITS FINDINGS TO THE GOVERNOR
A financial review team’s fifth function under § 13 is
to report its findings to the Governor, with a copy to the
State Treasurer acting as the state financial author-
ity.
115
The report, even if it contains recommendations
in addition to “findings,” is purely advisory in nature
114
MCL 141.1513(2).
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and cannot constitute “governing” through indepen-
dent decision-making that effectuates or formulates
public policy.
Again, the financial review team is not acting on
these advisory recommendations as it has no power to
do so. Rather, the financial review team is making
recommendations on which others may, at their discre-
tion, act. And a financial review team has no discretion
in the matter. Section 13(3) of the emergency financial
manager act states that a financial review team “shall
report its findings to the governor” and that the find-
ings “shall include the existence, or an indication of the
likely occurrence,” of any of a delineated set of financial
conditions.
116
f. CONCLUSION
We therefore conclude that the authority and func-
tions of a financial review team under § 13 of the
emergency financial manager act
117
do not empower a
financial review team to independently govern through
decision-making that effectuates or formulates public
policy. A financial review team cannot act on its recom-
mendations; it can only make such recommendations.
As a consequence, we conclude that the Detroit Finan-
cial Review Team is not a “governing body” and,
therefore, not a “public body” within the meaning of
the Open Meetings Act.
118
The fact that a financial review team can hire outside
experts,
119
has the power, under certain circumstances,
to issue subpoenas and administer oaths to certain
116
MCL 141.1513(3) (emphasis added).
117
MCL 141.1513.
118
MCL 15.262(a).
119
MCL 141.1513(5).
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enumerated individuals and entities,
120
and can, under
certain circumstances, file an action in a circuit court to
compel testimony and the furnishing of records and
documents
121
does not change our conclusion. These
functions are ancillary to the financial review team’s
investigative function. Again, such functions are not
“governing” because they do not involve independent
decision-making that effectuates or formulates public
policy.
In light of our conclusion that a financial review team
is not itself a public body, we conclude that the Supreme
Court’s holding in Booth Newspapers is inapplicable
here. That is, since the Detroit Financial Review Team
is not itself a public body, then the State Treasurer
could not himself, even if acting as a “one man commit-
tee,” be a public body exercising governmental author-
ity.
4. DELEGATION BY A PUBLIC BODY
Additionally, we note that the fact that the Governor—
who is clearly not a public body—appoints the financial
review team, takes this case out of the realm of cases
like Morrison v East Lansing,
122
in which this Court
held that an advisory committee appointed by the city
council was a public body subject to the Open Meet-
ings Act. The East Lansing City Council had created
the Hannah Building Committee by resolution to
serve as “an advisory committee to assist in the
selection of architects, designers, and professional
service organizations and to advise the council on pro-
grammatic needs and other issues to be decided in the
120
MCL 141.1526(1).
121
Id.
122
Morrison v East Lansing, 255 Mich App 505, 520; 660 NW2d 395
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planning process” for a community-center project.
123
This Court considered the question whether the Han-
nah Building Committee was a public body under the
Open Meetings Act to be a “close call.”
124
But, ultimately this Court in Morrison concluded
that the Hannah Building Committee was a public body
under the Open Meetings Act, emphasizing that, unlike
the advisory committee to the city manager in Herald
Co, the Hannah Building Committee was created by the
East Lansing City Council—a public body under the
Open Meetings Act as a local legislative body—and that
the city council “effectively authorized the [Hannah
Building Committee] to perform a governmental func-
tion.”
125
This Court considered the situation in Morri-
son to be more akin to the holding in Booth Newspapers
that various bodies created by the University of Michi-
gan Board of Regents to which the board of regents
delegated authority constituted public bodies, as com-
pared to the holding in Herald Co that an advisory
committee to a city manager did not constitute a public
body.
126
We recognize that, under Morrison, an advisory com-
mittee to a public body that is created by that public
body may itself constitute a derivative public body. But
the question of a financial review team under the
emergency financial manager act differs markedly from
the committee at issue in Morrison. Unlike the Hannah
Building Committee, a financial review team is not
created by a public body to serve in an advisory role to
a public body. Rather, as discussed previously, the emer-
gency financial manager act provides a method for the
123
Id. at 507-508.
124
Id. at 520.
125
Id.
126
Id. at 518-520.
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Governor—who, again, is clearly not a public body—to
appoint a financial review team.
127
We conclude that the
holding in Morrison, which is rooted in the Supreme
Court’s earlier holding in Booth Newspapers, is inappli-
cable to a financial review team. The Governor’s ap-
pointment pursuant to statute creates a financial re-
view team. Such a financial review team is thus not
created by a public body to serve it in an adjunct
advisory role.
III. INJUNCTIVE RELIEF
A. OVERVIEW
We have explained our conclusion that a financial
review team under the emergency financial manager
act is not a “governing body” as the Open Meetings Act
defines that term and, consequently, is not a “public
body” subject to that act. The trial court in these
consolidated appeals issued various forms of injunctive
relief primarily based upon its contrary conclusion that
the Detroit Financial Review Team is a “public body.”
In examining the analysis in which the trial court
engaged to reach that contrary conclusion, we find that
analysis to have been, at best, superficial.
The trial court appeared to be concerned mainly with
its own view that, in the general scheme of things, the
Open Meetings Act ought to cover the Detroit Financial
Review Team, not whether a close reading of the text of
the Open Meetings Act actually warranted a conclusion
that it does cover the Detroit Financial Review Team. In
short, the trial court concentrated on what the law should
be, not what the law is. More specifically, while the trial
court did appear to recognize, at least superficially, the
traditional standards for injunctive relief, it essentially
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leapfrogged to the conclusion that the Detroit Financial
Review Team was a public body and therefore that there
was a substantial likelihood that Davis and McNeil would
prevail on the merits of their claims. In our analysis, we
have reached the exact opposite conclusion. In our view,
such public policy matters are for the Legislature, and not
this Court, to decide.
128
The trial court further found that there would be
irreparable harm to the public if it did not issue
injunctive relief, apparently without considering
whether the declarative relief contained in its various
rulings and orders was sufficient under the circum-
stances then prevailing and under applicable precedent
of this Court and the Supreme Court. We therefore
conclude that the trial court’s issuance of injunctive
relief was contrary to controlling principles of law and
an abuse of discretion.
B. STANDARD OF REVIEW
The grant or denial of a preliminary injunction is
within the sound discretion of the trial court, and this
Court will not reverse that decision absent an abuse of
that discretion.
129
An abuse of discretion exists when
the decision is outside the range of principled out-
comes.
130
The exercise of this discretion may not be
arbitrary, but rather must be in accordance with the
fixed principles of equity jurisdiction and the evidence
in the case.
131
An abuse of discretion may arise from the
128
Tyler, 459 Mich at 393 n 10.
129
Mich Coalition of State Employee Unions v Civil Serv Comm, 465
Mich 212, 217; 634 NW2d 692 (2001).
130
Detroit Fire Fighters Ass’n, IAFF Local 344 v Detroit, 482 Mich 18,
28; 753 NW2d 579 (2008).
131
Jeffrey v Clinton Twp, 195 Mich App 260, 263; 489 NW2d 211
(1992).
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court’s misunderstanding of controlling legal prin-
ciples.
132
A question of statutory interpretation is a
question of law that we review de novo.
133
We review the
facts on which the court relies in exercising its discre-
tion for clear error.
134
C. LEGAL STANDARDS
As this Court has recognized, “[a]n injunction repre-
sents an extraordinary and drastic use of judicial power
that should be employed sparingly and only with full
conviction of its urgent necessity.”
135
This Court has
identified four factors to consider in determining
whether to grant a preliminary injunction:
(1) the likelihood that the party seeking the injunction
will prevail on the merits, (2) the danger that the party
seeking the injunction will suffer irreparable harm if the
injunction is not issued, (3) the risk that the party seeking
the injunction would be harmed more by the absence of an
injunction than the opposing party would be by the grant-
ing of the relief, and (4) the harm to the public interest if
the injunction is issued.
[
136
]
Stated another way, injunctive relief “ ‘ “is an extraor-
132
East Lansing v Dep’t of State Police, 269 Mich App 333, 335; 712
NW2d 519 (2005).
133
Costa v Community Emergency Med Servs, Inc, 475 Mich 403, 408;
716 NW2d 236 (2006).
134
Int’l Union, United Auto, Aerospace & Agricultural Implement
Workers of America, UAW v Michigan, 231 Mich App 549, 551; 587 NW2d
821 (1998).
135
Senior Accountants, Analysts & Appraisers’ Ass’n v Detroit, 218
Mich App 263, 269; 553 NW2d 679 (1996).
136
Alliance for the Mentally Ill of Mich v Dep’t of Community Health,
231 Mich App 647, 660-661; 588 NW2d 133 (1998); see also Mich State
Employees Ass’n v Dep’t of Mental Health, 421 Mich 152, 157-158; 365
NW2d 93 (1984), and Pontiac Fire Fighters Union Local 376 v City of
Pontiac, 482 Mich 1, 10-11; 753 NW2d 595 (2008) (discussing the
irreparable harm portion of the analysis).
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dinary remedy that issues only when justice requires,
there is no adequate remedy at law, and there exists a
real and imminent danger of irreparable injury.” ’ ”
137
Further, with respect to irreparable harm, we
note that the Supreme Court has recently recognized that
declaratory relief normally will suffice to induce the legis-
lative and executive branches, the principal members of
which have taken oaths of fealty to the constitution iden-
tical to that taken by the judiciary, Const 1963, art 11, § 1,
to conform their actions to constitutional requirements or
confine them within constitutional limits. Only when de-
claratory relief has failed should the courts even begin to
consider additional forms of relief in these situations.
[
138
]
D. LIKELIHOOD OF SUCCESS ON THE MERITS
1. DOCKET NO.
309218
As previously noted, on February 1, 2012, Davis filed
his action in the Ingham Circuit Court seeking both
declaratory and injunctive relief based upon his assertions
that the Detroit Financial Review Team, the Governor,
and the State Treasurer had violated multiple provisions
of the Open Meetings Act. On February 6, 2012, the trial
court issued its order in this case granting a preliminary
injunction and denying defendants’ motion for stay. The
trial court granted the preliminary injunction against the
Detroit Financial Review Team “for the reasons stated
from the bench and incorporated herein” and denied
defendants’ motion for stay on the same basis. The trial
court made no mention of the standards for injunctive
relief in this order.
137
Pontiac Fire Fighters Union, 482 Mich at 8, quoting Kernen v
Homestead Dev Co, 232 Mich App 503, 509; 591 NW2d 369 (1998),
quoting Jeffrey, 195 Mich App at 263-264.
138
Straus v Governor, 459 Mich 526, 532; 592 NW2d 53 (1999)
(quotation marks and citations omitted).
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And on February 29, 2012, the trial court granted
Davis’s motion for a declaratory judgment, denied de-
fendants’ motion for summary disposition, and granted
Davis’s motion for a permanent injunction “for the
reasons stated from the bench on February 6 and 15,
2012 and incorporated herein.” Once again, the trial
court made no mention of the standards for injunctive
relief in this order.
We observe that the trial court’s orders depend on
the rationale that the trial court advanced in its rulings
from the bench on February 6 and February 15, 2012.
While the February 15 ruling made no reference to the
likelihood that Davis would prevail on the merits—a
critical element in determining whether to issue an
injunction—the trial court did shed some light on the
reasoning behind its determination that the Detroit
Financial Review Team was subject to the Open Meet-
ings Act. In particular, the trial court mentioned that a
financial review team had the “power to enter into a
contract,” as well as the power to subpoena witnesses
and the power to go to court to compel the production of
documents.
In its ruling from the bench on February 6, the trial
court articulated much the same rationale. After gen-
erally commenting on cases that the trial court had
presided over involving advisory committees, the trial
court stated that, “[v]ery importantly, [financial review
teams] can negotiate and sign . . . a consent agreement
with the chief administrative office of the local govern-
ment.” The trial court also mentioned that a financial
review team has the right to examine books and
records, the right to use other state agencies, the power
to issue subpoenas, and the power to apply to courts to
require persons to furnish answers to questions under
oath. The trial court concluded, “This certainly goes far
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beyond what an advisory committee, in my opinion
based upon what I’ve seen, would do.”
It is therefore clear that the trial court did in these
two rulings from the bench give some indication that it
had examined the functions of a financial review team
under the emergency financial manager act. However,
the trial court, in its various rulings and orders, never
mentioned the requirements of the Open Meetings Act
and the cases interpreting it.
Accordingly, the trial court gave no indication—other
than to say that its enumeration of a financial review
team’s functions went “far beyond” those of an advisory
committee—whether it considered a financial review
team to be either a “legislative body” or a “governing
body” as the Open Meetings Act uses those terms.
139
Nor did the trial court state that a financial review team
was empowered to exercise governmental or propri-
etary authority or to perform a governmental or propri-
ety function.
140
And the trial court entirely failed to
consider whether a financial review team could engage
in decision-making that effectuates or formulates public
policy.
141
Thus, the trial court’s analysis was contrary to
controlling legal principles.
This lack of an Open Meetings Act analytical frame-
work is best illustrated by the trial court’s handling of
a review team’s power to negotiate and sign a consent
agreement.
142
As we have already outlined, this power is
at the very center of this case, and we agree with the
trial court that it is therefore important. The trial court
necessarily had to conclude, although it did not articu-
139
See MCL 15.262(a).
140
Id.
141
Id.
142
MCL 141.1513(1)(c).
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late this conclusion, that this power involves the au-
thority to make a “decision” under the Open Meetings
Act.
But a financial review team does not have such
authority. As we have said, a consent agreement that a
financial review team negotiates and signs is but the
first step in the process of effectuating or formulating
public policy. It is, until the governing body of the local
government approves it and the State Treasurer ap-
proves and executes it, only a recommendation. And
making a recommendation does not constitute “govern-
ing” either through the effectuating or the formulating
of public policy. As we have outlined, a review team is
not acting upon a recommendation when it negotiates
and signs a consent agreement. Rather, it is making
such a recommendation to the local governing body and
to the State Treasurer.
In this respect, as well as with respect to the other
powers of a financial review team that the trial court
enumerated—all of which, in our view, are in further-
ance of a financial review team’s investigative function
and do not constitute governing—the trial court’s con-
clusion that Davis would prevail on the merits was
contrary to controlling legal principles. Consequently,
there was no likelihood, much less a substantial likeli-
hood, that Davis would prevail on the merits. We
conclude that to the extent that the trial court issued
declaratory and injunctive relief in Docket No. 309218,
that relief was unwarranted and inappropriate.
2. DOCKET NO. 309250
As described earlier in this opinion, the trial court
held a hearing on defendant’s motions at issue in
Docket No. 309250 on March 20, 2012. At the hearing,
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the trial court commented on Davis’s representations
that defendants continued to violate the Open Meetings
Act, stating:
And that was, of course, what I viewed to be a very
potential and serious effort to undermine my ruling by
appointing a subcommittee of members of this board to do
the exact job that the board was supposed to do and then
report back to the board, which if anyone had followed the
Supreme Court rulings on these points it would have been
clear that that would be, if true, a violation of the act.
So now I understand, and maybe I’m all wrong, but
what I’ve picked up from the papers is that now has been
discarded and they are not doing any subcommittee, and
Mr. Dillon himself, who is the chair of this committee, is
going around creating his own plan or having someone
under his control create his own plan, submit that to the
City of Detroit, submit it to various people without any-
body knowing what is going on.
And then Dave Bing—I read the paper. I get the Detroit
News. I get the Detroit News/Free Press combo, and I get
all these editorials on both sides of things. But the reality
is, is that none of us have been told anything. I issued an
order that they have to meet properly under the Open
Meetings Act. And I am very concerned and uncomfortable
with the concept of creating your own plan and submitting
it to someone for their approval without having an open
meeting and a fair, frank discussion under the Open
Meetings Act policy of these things.
The trial court went on to comment:
I am happy to have anybody appeal. But my orders are
in place until the court of appeals overturns them. And if
anybody says that the Open Meetings Act doesn’t apply
here it certainly won’t be the court of appeals.
The trial court concluded by stating:
All I said was, all I said was is there can be no agreement
executed with the City of Detroit under this plan until such
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time as I see that the act has been complied with in an open
and fair and frank manner. And that may well happen in
minutes and they’ll explain it to us and we’ll all go home
happy. I’ll sign an order to that effect....
After the hearing, the trial court issued its March 20,
2012, order. In that order, the trial court adjourned the
show-cause hearing to March 29, 2012, and ordered
defendants’ counsel to produce five members of the
Detroit Financial Review Team to provide testimony at
the show-cause hearing. The trial court further ordered
the Detroit Financial Review Team and the State Trea-
surer not to execute or sign a consent agreement or its
equivalent with the City of Detroit, the Detroit City
Council, or the Mayor of Detroit until further order of
the trial court.
We presume, from the context of this case, that the
trial court relied on its previous finding that Davis was
likely to prevail on the merits as one of the underlying
reasons for issuing its March 20, 2012, order, although
that is not clear from the record. While the trial court
did, for the first time, make some brief references to the
provisions of the Open Meetings Act, its ruling from the
bench and its subsequent order simply contain no
analysis of the functions of a financial review team
through the lens of the requirements of that act.
Accordingly, we conclude that the trial court’s analy-
sis was contrary to controlling legal principles. And,
thus, there was no basis for the trial court to conclude
that Davis was likely to prevail on the merits.
3. DOCKET NO. 309482
After McNeil filed his complaint on March 29, 2012,
the trial court, without hearing from defendants, on
March 30, 2012, issued a temporary restraining order
and order to show cause that, among other things,
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found that McNeil was likely to succeed on the merits of
his claims because the defendants “have issued at least
one decision, on March 26, 2012, which was done based
upon deliberations and/or decisions which took place in
private.” The trial court further found that McNeil was
likely to succeed on the merits of his claim that defen-
dants had violated the Open Meetings Act “by engaging
in discussions and deliberations concerning the nego-
tiations or execution of a consent agreement and/or
similar document (i.e., financial stability agreement), as
such discussions and deliberations were not in public.”
In that order, the trial court was making distinctly
factual findings. Presumably, these findings were based
on McNeil’s complaint because there was no other
record before the trial court at the time of its order.
Indeed, the trial court apparently issued its order
without hearing from defendants, which is of itself
distressing given the accessibility of defendants’ attor-
neys in the Lansing area. We decline to review these
factual findings because they are irrelevant in light of
our conclusion that the State Treasurer and the Detroit
Financial Review Team are not public bodies under the
Open Meetings Act. Therefore, the trial court’s finding
that McNeil was likely to succeed on the merits is
contrary to controlling legal principles.
E. IRREPARABLE HARM
The trial court twice referred to the irreparable-
harm standard in its various rulings and orders in these
consolidated appeals. The first reference was contained
in its ruling concerning the preliminary injunction on
February 6, 2012, when it stated:
But I do think that when you have a statute that
requires open meetings and where the agency on its own
authority is refusing to comply or that board is not com-
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plying with the requirements under that statute, that that
is, per se, irreparable harm to the people of this state who
have a right, who have a right to know what their boards
and commissions who have this kind of power are actually
doing.
[143]
The second reference was in the trial court’s order of
March 30, 2012, concerning McNeil’s request for a tem-
porary restraining order, in which the trial court stated:
It is further ordered that [McNeil] may be entitled to
[the injunctive relief described in the preceding paragraph
of the order] in order to prevent irreparable harm, because
[McNeil] will suffer more harm without an injunction than
the Defendants will with an injunction, and the public
interest weighs in favor of the issuance of the injunc-
tion.
[144]
Thus, the trial court was aware of the requirement
for a showing of irreparable harm before the issuance of
injunctive relief. Further, the idea that there is per se
irreparable harm to the public when a violation of the
Open Meetings Act occurs has some support in case-
law.
145
But caselaw also recognizes that when the record
fails to indicate that a public body has acted in bad
faith, there is no real and imminent danger of irrepa-
rable injury requiring issuance of an injunction.
146
In this case, in its February 15, 2012, ruling from the
bench concerning Davis’s motion for a declaratory
143
Emphasis added.
144
Emphasis added.
145
See, for example, The Detroit News, Inc v Detroit, 185 Mich App 296,
301; 460 NW2d 312 (1990) (“We believe it is implicit in the purpose of
‘sunshine laws’ such as the [Open Meetings Act] that there is real and
imminent danger of irreparable injury when governmental bodies act in
secret.”).
146
See Esperance v Chesterfield Twp, 89 Mich App 456, 464-465; 280
NW2d 559 (1979), citing Wexford Co Prosecutor v Pranger, 83 Mich App
197, 205; 268 NW2d 344 (1978).
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judgment, the trial court clearly found that there was
no bad faith on the part of defendants. The trial court
stated, “There is no question in my mind that none of
these people had any bad motives. No one had any
ulterior motives. They simply were following what they
believe the statute gave them the powers to do.” And in
its February 6, 2012, ruling from the bench in the same
case, the trial court stated, “I don’t think there is any
allegation that our Governor or Mr. Dillon did anything
wrong other than meet under this statute that they
were required to by the legislature.” With such findings
concerning the lack of bad faith in the record, there was
no basis for the trial court’s conclusion that there was
per se irreparable harm to the people.
Our conclusion here is further supported by Nicholas
v Meridian Charter Township Board,
147
in which the
Court noted that, “[m]erely because a violation of the
[Open Meetings Act] has occurred does not automati-
cally mean that an injunction must issue restraining
the public body from using the violative procedure in
the future.” And, as previously noted, this Court in
Straus stated that declaratory relief should be consid-
ered first and will suffice in most cases involving the
legislative and executive branches.
148
Thus, we conclude that the trial court’s issuance of
injunctive relief in Davis’s case on the basis of a finding
of irreparable harm was an abuse of discretion. The
trial court explicitly found that there was no bad faith
on the part of defendants. And there had been no
147
Nichols v Meridian Charter Twp Bd, 239 Mich App 525, 533-534;
609 NW2d 574 (2000). See also MCL 15.270(2) (“A decision made by a
public body may be invalidated if the public body has not complied with
the [Open Meetings Act] requirements...inmaking the decision...and
the court finds that the noncompliance or failure has impaired the rights
of the public under [the Open Meetings Act].”) (emphasis added).
148
Straus, 459 Mich at 532.
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showing that declaratory relief had failed. Rather, the
trial court’s February 29, 2012, order contained declara-
tory relief that obviated any need for injunctive relief at
that time.
We are, of course, cognizant of the fact that, after the
trial court made its decisions on the merits of Davis’s
Open Meetings Act claim, Davis sought civil contempt
relief against the State Treasurer and the Detroit
Financial Review Team. However, Davis’s allegation of
contemptuous conduct was made after the trial court
had issued its injunctive orders on February 6 and
February 29, 2012. Rather obviously, events occurring
subsequent to the grant of injunctive relief cannot
retroactively justify the grant of such relief. But equally
obviously, parties to litigation must follow rulings and
orders of a trial court acting within its jurisdiction
unless and until those rulings and orders are stayed or
reversed. It is well established that a person may not
disregard a court order simply on the basis of a subjec-
tive view that the order is wrong or will be declared
invalid on appeal.
149
We therefore turn to the question of
possible contempt of court in Docket No. 309250.
IV. CONTEMPT OF COURT
We review for an abuse of discretion a trial court’s
issuance of a contempt order, but we review for clear
error its underlying factual findings, and we review de
novo questions of law.
150
As Davis points out, a trial
court has the inherent and statutory authority to en-
force its orders.
151
Further, “[a] party must obey an
order entered by a court with proper jurisdiction, even
149
Porter v Porter, 285 Mich App 450, 465; 776 NW2d 377 (2009).
150
Id. at 454-455.
151
See MCL 600.611; MCL 600.1715.
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if the order is clearly incorrect, or the party must face
the risk of being held in contempt and possibly being
ordered to comply with the order at a later date.”
152
And
the validity of an order is determined by the courts, not
the parties.
153
In his motion for civil contempt, Davis alleged that
the Detroit Financial Review Team, including the State
Treasurer, voted by resolution at a public meeting to
create a five-member subcommittee and to delegate to
that subcommittee authority to consider the risks and
benefits of appointment of an emergency manager or
institution of a consent agreement as well as to utilize
staff of the Department of Treasury, conduct inter-
views, and hire professional consultants if necessary
and that this subcommittee convened in private, with
Davis being denied entry to the subcommittee meeting.
Davis supported these allegations with affidavits from
himself and another person.
We have determined that the Detroit Financial Re-
view Team was not a public body and that the trial
court abused its discretion by issuing injunctive relief.
Therefore, we have determined that various rulings and
orders of the trial court in these consolidated appeals
were incorrect. But, of course, that is immaterial to the
fact that defendants were obligated to obey those orders
while they were in effect. And we cannot conclude that
the trial court abused its discretion by scheduling a
show-cause hearing based upon Davis’s motion for civil
contempt.
152
Kirby v Mich High Sch Athletic Ass’n, 459 Mich 23, 40; 585 NW2d
290 (1998), citing In re Hague, 412 Mich 532, 544-545; 315 NW2d 524
(1982).
153
State Bar of Mich v Cramer, 399 Mich 116, 125-126; 249 NW2d 1
(1976), overruled on other grounds by Dressel v Ameribank, 468 Mich
557, 562 (2003).
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Before an order to show cause why a party should not
be held in contempt may issue, “there must be ‘a
sufficient foundation of competent evidence, and legiti-
mate inferences therefrom.’ ”
154
But a finding of willful
disobedience of a court order is not necessary for a
finding of civil contempt.
155
According to Davis’s affida-
vits in support of the motion for civil contempt, the
Detroit Financial Review Team allegedly voted to del-
egate substantial portions of its duties to a five-member
subcommittee that allegedly met in private despite the
trial court’s holding that the Detroit Financial Review
Team is a public body subject to the Open Meetings Act.
It is well established in Michigan caselaw, particu-
larly by the Supreme Court’s opinion in Booth Newspa-
pers and this Court’s opinion in Morrison, that a public
body cannot evade its duty to comply with the Open
Meetings Act by delegating its powers to a subcommit-
tee.
156
Thus, we conclude that Davis’s allegations about
the Detroit Financial Review Team forming a subcom-
mittee to which it delegated substantial portions of its
duties and which met in private, provided a sufficient
foundation for the trial court to order a show-cause
hearing on Davis’s motion for civil contempt.
We emphasize that our holding that a review team is
not actually a public body subject to the Open Meetings
Act is immaterial to this conclusion. Again, a party may
not disregard a court order on the basis of a subjective
view that the order is wrong or will be declared invalid
154
In re Contempt of Steingold (In re Smith), 244 Mich App 153, 158;
624 NW2d 504 (2000), quoting In re Contempt of Calcutt, 184 Mich App
749, 757; 458 NW2d 919 (1990).
155
In re Contempt of United Stationers Supply Co, 239 Mich App 496,
501; 608 NW2d 105 (2000).
156
See Booth Newspapers, 444 Mich at 225-226; Morrison, 255 Mich
App at 519-520.
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on appeal.
157
Rather, “ ‘[a] party must obey an order
entered by a court with proper jurisdiction, even if the
order is clearly incorrect....’”
158
Thus, despite our
conclusion that a review team is not subject to the Open
Meetings Act, the Detroit Financial Review Team was
required to obey the trial court’s orders requiring it to
adhere to the Open Meetings Act as long as those orders
remained in effect and had not been stayed or reversed
on appeal.
Accordingly, we remand Davis v Detroit Financial
Review Team (Docket No. 309250) to the trial court for
further appropriate proceedings regarding Davis’s mo-
tion for civil contempt. We note that, generally, coercion
to force compliance with a court order and compensa-
tory relief for a complainant are both appropriate
potential sanctions for civil contempt.
159
But in light of
our holding that the Open Meetings Act does not apply
to a review team, it is no longer appropriate for the trial
court to seek to compel the Detroit Financial Review
Team to comply with the Open Meetings Act, and such
an action by the trial court is not within the scope of our
remand.
Nevertheless, Davis could potentially be entitled to a
civil contempt sanction in the form of a compensatory
award of attorney fees, other costs, or both that he
incurred on the basis of any proven civil contempt by
the Detroit Financial Review Team, the State Trea-
surer, or both. For example, Davis may be entitled to an
award for attorney fees incurred in bringing his motion
for civil contempt relief in the event that he proves such
civil contempt.
157
Porter, 285 Mich App at 465.
158
In re Contempt of Dudzinski, 257 Mich App 96, 110; 667 NW2d 68
(2003), quoting Kirby, 459 Mich at 40.
159
Contempt of United Stationers, 239 Mich App at 499.
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V. CONCLUSION
We hold that a financial review team, and therefore
the Detroit Financial Review Team, is not a “governing
body” and therefore is not a “public body” under the
Open Meetings Act and is not statutorily required to
comply with the Open Meetings Act. We also conclude
that the State Treasurer, whether acting in his execu-
tive capacity or as a “one man committee” of the Detroit
Financial Review Team, is not a “public body.”
We further conclude that the trial court’s various
rulings and orders in these consolidated appeals on
their face constituted injunctive relief, and we hold that
the trial court abused its discretion when it issued such
injunctive relief. We therefore reverse and vacate these
rulings and orders in their entirety. Accordingly, with
regard to Docket Nos. 309218 and 309482, we remand
to the trial court for entry of judgment in favor of
defendants on the merits of the Open Meetings Act
claims brought by Davis and McNeil, respectively. How-
ever, in Docket No. 309250, we remand for an eviden-
tiary hearing on Davis’s allegations that various state
officials and members of the Detroit Financial Review
Team were in contempt of court.
No costs, a public question being involved. Pursuant
to MCR 7.215(F)(2), this opinion shall be given imme-
diate effect. We do not retain jurisdiction.
M. J. K
ELLY
, J., concurred with W
HITBECK
,P.J.
O’C
ONNELL
,J.(concurring in part and dissenting in
part). I concur with the majority opinion that the City of
Detroit Financial Review Team is not subject to the
Open Meetings Act (OMA), MCL 15.261 et seq. I also
concur that the Governor and the State Treasurer,
being individual executive branch officeholders, are not
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subject to the strictures of the OMA in these cases.
1
I
part ways with the majority opinion in its discussion of
injunctive and declaratory relief. I write separately to
emphasize that an injunction against a coequal branch
of government should be an extremely rare remedy,
available only after a party has definitively established
that a declaratory judgment has been ineffective.
I also write separately to remind all public servants
that our governmental system turns on a respectful
balance of power among the three branches of govern-
ment. As Thomas Jefferson aptly explained, “the con-
stitution, in keeping three departments distinct and
independent, restrains the authority of the judges to
judiciary organs, as it does the executive and legislative
to executive and legislative organs.” Ford, ed, Letter
from Thomas Jefferson to William Charles Jarvis (Sep-
tember 28, 1820), in The Writings of Thomas Jefferson,
(New York: G. P. Putnam’s Sons, The Knickerbocker
Press, 1899), vol X, p 161. The judicial branch’s respon-
sibility is to interpret the law impartially, free from the
political process reserved for the other two branches of
government. In my view, these tenets preclude any
remand in this case. I would reverse all of the trial
court’s rulings.
2
1
In my opinion, neither the Governor nor the State Treasurer acting in
the scope of official duties is subject to the OMA, even if acting as a
one-person subcommittee of a public body that is subject to the OMA.
2
These cases involve the relationship between the OMA and the Local
Government and School District Fiscal Accountability Act, MCL
141.1501 et seq., commonly known as the emergency financial manager
act. The central issue presented to us in these cases is whether a review
team that the Governor appoints under § 12(3) of the emergency finan-
cial manager act, MCL 141.1512(3), is a “public body,” as defined in § 2(a)
of the OMA, MCL 15.262(a). The entire panel agrees that a review
team—and therefore the Detroit Financial Review Team—is not a public
body under the OMA. Because the trial court erred by concluding that a
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I. SEPARATION OF POWERS AND THE TRIAL COURT’S INTRUSION
INTO THE POLITICAL PROCESS
All judges, including me, are at risk of overstepping
boundaries during an intense, frenetic legal battle, and,
for that reason, all judges must rely on the federal and
state constitutions, each other, and the appellate system
to recognize and respect boundaries.
3
On issues of first
impression, such as the OMA issue at the core of the
present dispute, it is not unusual to be reversed by a
higher court. Trial courts must make rapid-fire deci-
sions, while the appellate courts can take weeks, even
months, to research and deliberate. All judges will do
well to keep in mind Thomas Jefferson’s insightful
observations: “One single object...will entitle you to
the endless gratitude of society; that of restraining
judges from usurping legislation.” Lipscomb & Bergh,
eds, Letter from Thomas Jefferson to Edward Living-
ston (March 25, 1825), in The Writings of Thomas
Jefferson (Washington, D.C.: The Thomas Jefferson
Memorial Association, Library ed, 1904), vol XVI, p 113.
And similarly, “[judges] have at times overstepped their
limit by undertaking to command executive officers in
the discharge of their executive duties....”Ford, ed,
Letter from Jefferson to Jarvis, in The Writings of
Thomas Jefferson, p 161.
At the heart of the cases now before the Court is the
political question doctrine.
4
The doctrine requires
review team is a public body, I believe we are compelled to reverse and
vacate the various rulings and orders the trial court entered in these
cases.
3
In this regard, we as judges are susceptible to what is commonly
known as “judicial robe disease.” We reduce our susceptibility by adher-
ing to the constitutional separation-of-powers principles.
4
For an extensive discussion of the concept of separation of powers and
the political question doctrine, see Bendix Safety Restraints Group, Allied
Signal, Inc v City of Troy, 215 Mich App 289, 294-300; 544 NW2d 481
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judges to avoid entering into the political process and to
put aside personal policy preferences when interpreting
statutes. As the United States Supreme Court has
stated, the Framers of the Constitution recognized the
“sharp necessity to separate the legislative from the
judicial power....”Plaut v Spendthrift Farm, Inc, 514
US 211, 221; 115 S Ct 1447; 131 L Ed 2d 328 (1995).
Judges cannot avoid their responsibility to decide cases
merely because the cases present issues having political
implications. See Zivotofsky ex rel Zivotofsky v Clinton,
566 US ___, ___; 132 S Ct 1421, 1427-1428; 182 L Ed 2d
423 (2012). Nevertheless, under the political question
doctrine, courts do not have authority to decide matters
that the constitutional text demonstrably commits to a
coordinate political department, or matters that lack
judicially discoverable and manageable standards for
resolution. Id. at ___; 132 S Ct at 1427.
With these considerations in mind, the critical legal
question for the trial court to consider was whether the
Detroit Financial Review Team is a “public body”
within the meaning of the OMA—not whether a review
team should (in the trial court’s opinion) be subject to
the OMA or whether it is desirable (again, in the trial
court’s opinion) for some or all of the meetings of the
Detroit Financial Review Team to be open to the public.
Unfortunately, the trial court missed this critical ques-
tion. Rather, as reflected in the trial court’s emphasis at
the February 15, 2012, hearing in this matter on its
belief that “[t]he first caveat of this society is that we
have an open government,” it appears that the trial
(1996) (O’C
ONNELL
, J., concurring). Or, simply consider John Adams’s
pithy summary: “[T]he judicial power ought to be distinct from both the
legislative and executive, and independent upon both, that so it may be a
check upon both....”Kurland & Lerner, eds, John Adams, Thoughts on
Government (April 1776), in The Founders’ Constitution (Chicago: The
University of Chicago Press, 2000), vol I, p 109.
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court’s personal views clouded its resolution of the legal
issues. No matter how laudable, a judge’s personal
views have no place in jurisprudence: “courts are not
free to manipulate interpretations of statutes to accom-
modate their own views of the overall purpose of
legislation.” Twichel v MIC Gen Ins Corp, 469 Mich
524, 531; 676 NW2d 616 (2004).
5
Thus, the trial court’s
focus in these cases should have been on the narrow
legal question whether a review team is a public body
under the OMA. Indeed, as the majority makes clear, it
is inherent in the OMA’s definition of a public body that
some governmental bodies are not “public bodies” and,
thus, are not subject to the open meeting requirements
of the OMA. Concerns about whether the review team’s
meetings should be public or private are properly ad-
dressed to the Legislature, not the judiciary. See Detroit
City Council v Mayor of Detroit, 283 Mich App 442, 461;
770 NW2d 117 (2009) (“Despite the stated policy aims
of the statute, we cannot rule on policy grounds in
contravention of the plain language of the statute. To
the extent that the issues presented relate to public
policy matters, the making of social policy generally is
for the Legislature, not the courts.”).
Further, a trial court’s most comfortable function is
to review historical facts, apply the law to those facts,
and to reach a conclusion as to the lawfulness of the
actions of the parties. In the present cases, the trial
court preempted the parties’ political actions by first
assuming that the OMA applied to the Detroit Financial
Review Team and then by issuing injunctions to stop
the political process, particularly with regard to the
Detroit Financial Review Team being able to negotiate
a consent agreement with the city of Detroit. As set
5
Of course, such “manipulation” could occur subconsciously rather
than intentionally.
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forth in the majority opinion, the trial court failed to
apply the law concerning issuance of injunctions and
failed to analyze the OMA in any systematic manner. It
is worth repeating that courts interpret the law based
on existing facts. In this matter, the trial court over-
stepped its bounds by asserting power over the political
process before the process was complete.
Indeed, as referred to by the majority, in Straus v
Governor, 459 Mich 526, 530; 592 NW2d 53 (1999), the
Michigan Supreme Court adopted as its own this
Court’s opinion in that case. Straus includes the follow-
ing discussion of the propriety of injunctive relief
against the Governor or other executive branch actors:
It is clear that separation of powers principles, Const
1963, art 3, § 2, preclude mandatory injunctive relief, man-
damus, against the Governor. People ex rel Sutherland v
Governor, 29 Mich 320; 18 Am Rep 89 (1874). Whether
similar reasoning also puts prohibitory injunctive relief
beyond the competence of the judiciary appears to be an
open question that need not be resolved in this case. We do
note that the Supreme Court has recently recognized that
declaratory relief normally will suffice to induce the legis-
lative and executive branches, the principal members of
which have taken oaths of fealty to the constitution iden-
tical to that taken by the judiciary, Const 1963, art 11, § 1,
to conform their actions to constitutional requirements or
confine them within constitutional limits. Durant v Michi-
gan, 456 Mich 175, 205; 566 NW2d 272 (1997). Only when
declaratory relief has failed should the courts even begin to
consider additional forms of relief in these situations. Id.at
206. [Straus, 459 Mich at 532 (quotation marks and
citation omitted).]
Thus, even if the trial court had been correct in its
determination that a financial review team constitutes
a public body subject to the OMA, it abused its discre-
tion by granting permanent injunctive relief against the
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Detroit Financial Review Team.
6
The trial court simply
granted that injunctive relief without any reasonable
basis for concluding that it was necessary. Rather, in
accordance with judicial restraint and deference to the
coordinate executive branch of government as discussed
in Straus, the trial court should have limited its consid-
eration of any possible relief to declaratory relief. This
is especially so, given that the applicability of the OMA
to a financial review team under the very recently
enacted emergency financial manager act is a matter of
first impression and, as reflected in our holding, the
Detroit Financial Review Team clearly had serious
grounds for a good faith (and correct) belief that it was
not required to comply with the OMA. The decision of
the trial court to grant injunctive relief in this matter
was completely unwarranted.
Accordingly, in future circumstances involving ques-
tions of the legality of conduct by state government
officials or entities within the executive or legislative
branches, a trial court should issue a declaratory judg-
ment regarding those questions and presume that the
other branches will follow the court’s decision. This
measured approach avoids a court immersing itself in
the political process reserved for the political branches
of government and thereby reduces the risk of stigma-
tizing the judiciary as being merely another political
actor.
Moreover, even apart from the special consideration
due to state level executive and legislative branch
actors, injunctive relief is an extraordinary remedy that
issues only when justice requires, there is no adequate
remedy at law, and there exists a real and imminent
6
A trial court’s grant of injunctive relief is reviewed for an abuse of
discretion. Pontiac Fire Fighters Union Local 376 v City of Pontiac, 482
Mich 1, 8; 753 NW2d 595 (2008).
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danger of irreparable injury. Pontiac Fire Fighters
Union Local 376 v City of Pontiac, 482 Mich 1, 8; 753
NW2d 595 (2008). This Court has specifically applied
that standard in the context of the OMA and, accord-
ingly, noted that “[m]erely because a violation of the
OMA has occurred does not automatically mean that an
injunction must issue restraining the public body from
using the violative procedure in the future.” Nicholas v
Meridian Charter Twp Bd, 239 Mich App 525, 533; 609
NW2d 574 (2000). This underscores that the grant of
injunctive relief by the trial court in this case was
inappropriate.
The trial court’s interference in the activities of the
Detroit Financial Review Team, even going so far as to
enter an injunctive order to preclude that review team
from entering into a consent agreement with the city of
Detroit, markedly disrupted the political process, par-
ticularly with sensitive matters involving financial re-
forms of city government that by their very nature are
beyond judicial competence and lack judicially discov-
erable and manageable standards for resolution. See
Zivotofsky, 566 US at ___; 132 S Ct at 1427.
7
7
There was a more egregious lack of respect for the proper separation
of powers by the trial court that presided over Muma v Flint Financial
Review Team, unpublished opinion per curiam of the Court of Appeals,
issued May 21, 2012 (Docket No. 309260), with regard to which this panel
is releasing a separate opinion. In Muma, the plaintiff sought a declara-
tory judgment concerning the applicability of the OMA to the City of
Flint Financial Review Team and an injunction to prevent further alleged
violations of the OMA. Rather than issuing a simple declaratory judg-
ment and then allowing the state actors to take further appropriate
actions, the trial court in Muma used its power to intrude into spheres of
government reserved for the political branches. With a figurative swipe of
the pen, the trial court permanently enjoined the defendants in that case
(the City of Flint Emergency Financial Manager, the Governor, the State
Treasurer, and the City of Flint Financial Review Team) “from taking
any action reserved to the mayor and city council to govern and
administer Flint under its charter and ordinances.” Id. at 3. Thus, rather
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II. CONCLUSION
Courts should not allow themselves to be used as
vehicles to interfere with the political process. Except in
highly unusual circumstances, it is sufficient for a trial
court to issue a declaratory judgment regarding an
allegedly improper action by an executive or legislative
branch actor. While the trial court’s actions were pre-
sumably done with no political agenda and with a view
to the best interests of the parties (and the city of
Detroit), the results were inappropriate injunctions
issued against another branch of government, when a
simple declaratory judgment would have sufficed.
I would reverse all of the trial court’s rulings in their
entirety.
than simply deciding if the City of Flint Financial Review Team had
violated the OMA and providing narrow appropriate relief for any
perceived violation, the trial court in Muma took upon itself to resolve
the political future of the city of Flint, a power reserved exclusively to the
other branches of government. Trial courts should rule on issues of law
and not involve themselves in political questions reserved for the political
branches—especially when the trial court’s hearing in Muma took less
than an hour to undo what took the other branches of government over
six months to put in place. Courts are not in the business of resolving
political questions. In Muma and the present case, a simple declaratory
judgment regarding the (supposed) applicability of the OMA would have
alerted the state actors to the trial court’s determinations with regard to
whether the OMA applied. The courts should not be administering a city
government or legislating from the bench. The political question doctrine
requires courts to refrain from such inappropriate engagement in the
political process.
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PEOPLE v KLOOSTERMAN
Docket No. 303443. Submitted April 13, 2012, at Grand Rapids. Decided
May 22, 2012, at 9:00 a.m. Leave to appeal denied, 493 Mich 877.
A jury in the Kent Circuit Court, Paul J. Sullivan, J., convicted Eric
A. Kloosterman of conducting a criminal enterprise (racketeering)
in violation of MCL 750.159i(1) for fraudulently returning mer-
chandise to a store. Defendant appealed.
The Court of Appeals held:
1. MCL 750.159i(1) prohibits a person employed by or associ-
ated with an enterprise from knowingly conducting or participat-
ing in the affairs of the enterprise directly or indirectly through a
pattern of racketeering activity. Although the statutory definitions
of “person” and “enterprise” include an individual, these words
must be considered in the context of the provision as a whole.
Because of the way in which MCL 750.159i(1) is structured, a
defendant acting alone cannot be both the person and the enter-
prise. To associate, a person must necessarily align or partner with
another person or entity, and to be employed requires that a
person have been engaged or hired by some other entity. Conse-
quently, the statute’s requirement that the person be employed by
or associated with an enterprise, as well as the reference to sole
proprietorships in the definition of “enterprise,” necessarily re-
quires at least two distinct entities to have been involved. The
enterprise must be either a separate and distinct individual or any
other legally distinct entity falling within the definition of “enter-
prise.” Because the prosecution presented no evidence in this case
to show that defendant associated with or was employed by any
other physical or legal person or entity, there was insufficient
evidence to support his conviction.
2. Although defendant conceded that there was sufficient
evidence to convict him of first-degree retail fraud, MCL 750.356c,
it cannot be unequivocally stated that the jury’s verdict included a
specific finding of every element necessary to support a conviction
of this cognate offense. As long as double jeopardy is not implicated
in the process, however, there is nothing to preclude the prosecutor
from charging defendant with a cognate offense.
Conviction and sentence vacated.
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C
RIMINAL
L
AW —
R
ACKETEERING —
I
NVOLVEMENT OF
T
WO
D
ISTINCT
E
NTITIES
.
MCL 750.159i(1) prohibits a person employed by or associated with
an enterprise from knowingly conducting or participating in the
affairs of the enterprise directly or indirectly through a pattern of
racketeering activity; to establish a violation of this provision, the
prosecution must show that the defendant was employed by or
associated with a separate and distinct individual or any other
legally distinct entity falling within the definition of “enterprise”
in MCL 750.159f(a); a defendant acting alone cannot be both the
person and the enterprise.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, William A. Forsyth, Prosecuting At-
torney, and Timothy K. McMorrow, Chief Appellate
Attorney, for the people.
Daniel J. Rust for defendant.
Before: B
ECKERING
,P.J., and O
WENS
and R
ONAYNE
K
RAUSE
,JJ.
R
ONAYNE
K
RAUSE
, J. Defendant, Eric A. Kloosterman,
appeals as of right his conviction by jury trial for conduct-
ing a criminal enterprise (racketeering), MCL 750.159i(1).
We vacate defendant’s conviction and sentence.
Defendant’s conviction arose from a series of fraudu-
lent returns at a Home Depot store. Dustin Vander-
meer, an asset-protection specialist, was alerted to a
suspected fraudulent return and subsequently began an
investigation. Vandermeer’s investigation involved sus-
picious returns connected to three separate pieces of
identification,
1
and upon viewing surveillance videos
corresponding to those returns, Vandermeer discovered
that the same individual appeared to be responsible for
all of them.
1
To process a return without a receipt, Home Depot requires that the
customer present a Michigan driver’s license or a Michigan identification
card.
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On April 7, 2010, Sheila Allen, a returns cashier,
alerted Vandermeer to yet another potentially fraudu-
lent return. One week later, Vandermeer called the
police, provided them with receipts from the suspected
fraudulent transactions, and provided defendant’s
name as a possible suspect. Police found eight items for
sale on craigslist associated with defendant’s telephone
number and instructions to interested buyers to call
“Eric,” who identified himself as a construction worker.
Additionally, a number of the products for sale were
Ryobi products, a brand sold exclusively at Home De-
pot, and many of them were described as new.
The police subsequently responded to the craigslist
advertisement, set up a meeting, and arrested defen-
dant upon his arrival at the arranged meeting place. A
police search of defendant and his vehicle revealed the
pieces of identification used for the fraudulent returns
and a number of new and used Ryobi products.
At trial, both Vandermeer and Allen testified that
defendant was the individual they saw on April 7, 2010,
and Vandermeer identified defendant as the suspect he
had seen in the surveillance videos. Copies of the
receipts were also admitted into evidence, some of
which were signed with defendant’s name.
Defendant claims there was insufficient evidence to
sustain his racketeering conviction under MCL
750.159i(1) because he was neither employed by nor
associated with a criminal enterprise. Specifically, de-
fendant asserts that the prosecution failed to present
sufficient evidence of defendant’s involvement in a
criminal enterprise separate and distinct from himself.
The prosecution argues, however, that the language of
MCL 750.159i(1) does not make this distinction. In-
stead, because the definition of “enterprise” includes
638 296 M
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“individual[s],” MCL 750.159f(a), defendant’s pattern
of activity supports his racketeering conviction.
Claims of insufficient evidence are reviewed de novo.
People v Hawkins, 245 Mich App 439, 457; 628 NW2d
105 (2001). A court reviewing the sufficiency of the
evidence must view the evidence in the light most
favorable to the prosecution and determine whether the
evidence was sufficient to allow any rational trier of fact
to find guilt beyond a reasonable doubt. People v
Hunter, 466 Mich 1, 6; 643 NW2d 218 (2002).
Questions of statutory interpretation are also reviewed
de novo. People v Osantowski, 481 Mich 103, 107; 748
NW2d 799 (2008). When interpreting a statute, this
Court’s primary purpose is to give effect to the intent of
the Legislature. People v Morey, 461 Mich 325, 329-330;
603 NW2d 250 (1999). If the statutory language is unam-
biguous, the Legislature is presumed to have intended the
meaning expressed and further judicial construction is
impermissible. Id. at 330. Words in a statute are given
their plain and ordinary meaning, id., and in addition to
considering the plain meaning of words, courts must
consider the placement and purpose of those words in the
context of the statutory scheme, People v Gillis, 474 Mich
105, 114; 712 NW2d 419 (2006).
However, if the statutory language is ambiguous,
judicial construction is appropriate. People v Feezel, 486
Mich 184, 205; 783 NW2d 67 (2010). A statutory provi-
sion is ambiguous if it irreconcilably conflicts with
another provision or is equally susceptible of more than
one meaning. People v Gardner, 482 Mich 41, 50 n 12;
753 NW2d 78 (2008). “A statute that is unambiguous on
its face may be rendered ambiguous by its interaction
with, and its relation to, other statutes.” People v
McLaughlin, 258 Mich App 635, 673; 672 NW2d 860
(2003). In construing a statute, “[t]he court should
presume that every word has some meaning and should
2012] P
EOPLE V
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639
avoid any construction that would render a statute, or
any part of it, surplusage or nugatory.” People v Nick-
erson, 227 Mich App 434, 439; 575 NW2d 804 (1998).
Defendant was convicted under MCL 750.159i(1),
which reads:
A person employed by, or associated with, an enterprise
shall not knowingly conduct or participate in the affairs of
the enterprise directly or indirectly through a pattern of
racketeering activity.
The definition of “person” includes “individual[s].”
MCL 750.159f(d). The definition of “enterprise” also
includes “individual[s].” MCL 750.159f(a). But we must
consider these words in the context of the provision as
a whole. Gillis, 474 Mich at 114. To do this, we must
define “associate” and “employ,” and because the stat-
ute under which defendant was convicted does not
define these terms, this Court may consult dictionary
definitions to determine their plain meanings. People v
Peals, 476 Mich 636, 641; 720 NW2d 196 (2006). The
word “associate” means “to align or commit (oneself) as
a companion, partner, or colleague,” Random House
Webster’s College Dictionary (1997), def 2, and the word
“employ” means “to engage the services of (a person or
persons); hire,” id., def 1.
There is no dispute that, as an individual, defendant
could meet the definitions of both a “person” and an
“enterprise.” But these definitions may not be applied
in a vacuum. Because of the way in which MCL
750.159i(1) is structured, a defendant, acting alone,
cannot be both the person and the enterprise. To
associate, a person must necessarily align or partner
with another person or entity. Indeed, the meaning of
the word is not ordinarily interpreted as meaning that
a person associates with himself or herself, and it would
stretch the meaning of the word beyond reason to
640 296 M
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conclude that the Legislature intended such an unusual
usage. Similarly, to be employed requires that a person
have been engaged or hired by some other entity; people
do not generally find themselves in a situation calling
for hiring themselves or engaging their own services.
Consequently, we conclude that the Legislature’s
inclusion of the requirement that the person be em-
ployed by or associated with an enterprise necessarily
requires at least two distinct entities to have been
involved to support a conviction under MCL
750.159i(1). The prosecution asserts that defendant
could have been self-employed, but that assertion ig-
nores the inclusion of both “individual” and “sole
proprietorship” in the definition of “enterprise” in MCL
750.159f(a). We decline to twist the interpretation of
the statute to render the inclusion of “sole proprietor-
ship” surplusage.
2
We conclude that, applying the plain and ordinary
meaning of the words in MCL 750.159i(1), the statute
requires the prosecution to show that the enterprise was
either a separate and distinct individual or any other
legally distinct entity falling within the definition of
2
We recognize that there are two prior unpublished opinions from this
Court that addressed this issue. Unpublished opinions are not binding
authority, but they may be persuasive. MCR 7.215(C)(1); People v Green,
260 Mich App 710, 720 n 5; 680 NW2d 477 (2004). These opinions—
People v Polk, unpublished opinion per curiam of the Court of Appeals,
issued March 2, 2010 (Docket No. 286772), and People v Boles, unpub-
lished opinion per curiam of the Court of Appeals, issued June 28, 2011
(Docket No. 296684)—arrived at conclusions seemingly contrary to each
other. In Polk, a panel of this Court declined to adopt the defendant’s
argument that racketeering required the involvement of at least two
individuals, chiefly because the defendant had offered no caselaw to
support it. In contrast, in Boles, a later panel of this Court had an
opportunity to conduct a thorough analysis, and it subsequently held that
the employment or association requirements in the statute required at
least two entities, whether physically or legally distinct. We find the
analysis in Boles persuasive and agree with its conclusion.
2012] P
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641
“enterprise.”
3
Because no evidence was presented in this
case to show that defendant associated with or was
employed by any other physical or legal person or entity,
there was insufficient evidence to support his conviction
for conducting a criminal enterprise under MCL
750.159i.
4
Defendant’s conviction and sentence are vacated.
Despite defendant’s concession that there is sufficient
evidence to convict him of first-degree retail fraud, MCL
750.356c, we cannot state unequivocally that the jury’s
verdict included a specific finding of every element
necessary to support a conviction of this cognate of-
fense. See People v Bearss, 463 Mich 623, 632-633; 625
NW2d 10 (2001). As long as double jeopardy is not
implicated in the process, see Const 1963, art 1, § 15;
People v Smith, 478 Mich 292, 298-304; 733 NW2d 351
(2007), there is nothing to preclude the prosecutor from
charging defendant with a cognate offense.
B
ECKERING
,P.J., and O
WENS
, J., concurred with
R
ONAYNE
K
RAUSE
,J.
3
“ ‘Enterprise’ includes an individual, sole proprietorship, partner-
ship, corporation, limited liability company, trust, union, association,
governmental unit, or other legal entity or a group of persons associated
in fact although not a legal entity.” MCL 750.159f(a).
4
The federal Racketeer Influenced and Corrupt Organizations Act
(RICO), 18 USC 1961 et seq., bears some similarity to the statute at bar. The
phrase “any person employed by or associated with any enterprise” in 18
USC 1962(c), in which the definitions of “person” and “enterprise” both
include “individual[s],” 18 USC 1961(3) and (4), has been held by the United
States Supreme Court to plainly require “two distinct entities” because “[i]n
ordinary English one speaks of employing, being employed by, or associating
with others, not oneself.” Cedric Kushner Promotions, Ltd v King, 533 US
158, 161; 121 S Ct 2087; 150 L Ed 2d 198 (2001). We agree with that
reasoning with regard to the plain meaning of that particular usage of the
English language, although we do not rely on it in light of our Supreme
Court’s disapproval of construing Michigan’s racketeering statute on the
basis of federal authorities’ analyses of RICO. People v Guerra, 469 Mich 966
(2003); People v Gonzalez, 469 Mich 967 (2003).
642 296 M
ICH
A
PP
636 [May
PEOPLE v COMELLA
Docket No. 301458. Submitted February 7, 2012, at Grand Rapids.
Decided May 24, 2012, at 9:00 a.m. Leave to appeal denied, 493
Mich 905.
A jury in the Kent Circuit Court, Dennis B. Leiber, J., convicted
Agostino Comella, Jr., of first-degree felony murder, MCL
750.316(1)(b), for causing the fatal head injury of his wife, a
vulnerable adult, in violation of MCL 750.145n, which prohibits
vulnerable-adult abuse. Defendant appealed, arguing that the
prosecution was required to prove that he committed both first-
and second-degree vulnerable-adult abuse as predicate felonies to
establish felony murder.
The Court of Appeals held:
1. The requirements for convicting a defendant of felony
murder may be satisfied by proving the commission of either
first-degree vulnerable-adult abuse or second-degree vulnerable-
adult abuse. MCL 750.316(1)(b) defines felony murder as murder
committed in the perpetration of, or attempt to perpetrate, arson;
first-, second-, or third-degree criminal sexual conduct; first-
degree child abuse; a major controlled substance offense; robbery;
carjacking; breaking and entering of a dwelling; first- or second-
degree home invasion; larceny of any kind; extortion; kidnapping;
first- and second-degree vulnerable-adult abuse; torture; or aggra-
vated stalking. Although the Legislature used the conjunction
“and” rather than “or” when it amended the felony-murder
statute to include both degrees of vulnerable-adult abuse, there
was no obvious reason why the Legislature would require a
defendant to commit both first- and second-degree vulnerable-
adult abuse to be guilty of felony murder, and it would be the only
circumstance under which a defendant would have to commit two
predicate felonies to be guilty of felony murder. Further, reading
the statute as requiring both first- and second-degree vulnerable-
adult abuse would render that portion of the statute meaningless
because it is impossible to commit both crimes in the same act.
Under MCL 750.145n(1), first-degree vulnerable-adult abuse oc-
curs when the caregiver intentionally causes serious physical harm
or serious mental harm to a vulnerable adult, while under MCL
750.145n(2), second-degree vulnerable-adult abuse occurs when
2012] P
EOPLE V
C
OMELLA
643
the reckless act or reckless failure to act of the caregiver or other
person with authority over the vulnerable adult causes the vulner-
able adult serious physical harm or serious mental harm. To
require the prosecution to prove both would be to require proof of
an oxymoron, because one cannot act with both intent and
recklessness. It is more likely that the Legislature inadvertently
used the conjunctive word “and” while overlooking the fact that
the other offenses listed in the statute were joined by the disjunc-
tive word “or” than it is that the Legislature amended the statute
to add a requirement that would be impossible to meet. Interpret-
ing the statute using the latter conclusion would render MCL
750.316(1)(b) dubious and the addition of vulnerable-adult abuse
to the list of underlying offenses surplusage and nugatory. Defen-
dant’s arguments involving the failure to prove first-degree
vulnerable-adult abuse, including his argument concerning inef-
fective assistance of counsel for failure to request an instruction,
are without merit because first-degree vulnerable-adult abuse was
not, and need not have been, part of the prosecutor’s theory of the
case.
2. There was sufficient evidence to establish the element of
malice. In a felony-murder case, malice is established by showing
an intent to kill, an intent to cause great bodily harm, or that the
defendant created a very high risk of death or great bodily harm
knowing that death or great bodily harm was the probable result.
Testimony indicated that defendant was aware that the victim was
in a weakened physical condition because of her various medical
problems, and defendant admitted that he had hit and pushed the
victim on multiple occasions. In light of the victim’s medical
condition, a reasonable trier of fact could have concluded that
defendant knew that slamming the victim into a wall with suffi-
cient force to cause her to fall to the floor and hit her head was
likely to cause death or great bodily harm.
3. Defendant did not establish that his counsel was ineffective
for failing to move to suppress statements made during a custodial
interview before defendant had been read his rights under
Miranda v Arizona, 384 US 436 (1966). To establish ineffective
assistance of counsel on this ground, defendant must show that he
would have prevailed on the issue. Because there were arguments
both in favor of and against finding that the interview took place
in a custodial environment, it was unclear whether defendant
would have prevailed on the issue and his ineffective-assistance
claim therefore failed. Further, counsel was not ineffective for
failing to object to the prosecutor’s comments that the victim
had been beaten and that defendant was controlling be-
644 296 M
ICH
A
PP
643 [May
cause those statements were supported by the evidence or reason-
able inferences drawn from it and counsel was not required to
make a meritless objection.
Affirmed.
C
RIMINAL
L
AW —
F
ELONY
M
URDER —
V
ULNERABLE
-A
DULT
A
BUSE
.
The first-degree murder statute defines felony murder as including
murder committed in the perpetration of first- and second-degree
vulnerable-adult abuse; the prosecution need not prove that a
defendant committed both first-degree vulnerable-adult abuse and
second-degree vulnerable-adult abuse to support a conviction of
felony murder on this basis (MCL 750.145n, 750.316[1][b]).
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, William A. Forsyth, Prosecuting At-
torney, Timothy K. McMorrow, Chief Appellate Attor-
ney, and Kimberly M. Manns, Assistant Prosecuting
Attorney, for the people.
State Appellate Defender (by Jacqueline J. McCann
and Kathy Hoffman Murphy) for defendant.
Before: S
AWYER
,P.J., and O’C
ONNELL
and R
ONAYNE
K
RAUSE
,JJ.
S
AWYER
,P.J. The central issue in this case is whether,
under the felony-murder statute,
1
when the predicate
felony is abuse of a vulnerable adult, the prosecution
must prove that a defendant committed both first- and
second-degree vulnerable-adult abuse.
2
We hold that
the prosecution must only show either offense, not
both.
Defendant’s wife, Ella, died on October 11, 2009. On
a number of occasions before her death she needed
medical attention for a variety of injuries. On July 31,
she was admitted to the Metropolitan Hospital inten-
1
MCL 750.316(1)(b).
2
MCL 750.145n.
2012] P
EOPLE V
C
OMELLA
645
sive care unit for a fractured hip, hemorrhagic shock,
and acute renal failure. Defendant gave conflicting
accounts of the cause of the victim’s injuries. Their
daughter, Mary, had observed bruises on the victim and
alerted the hospital staff, indicating her concern that
defendant may have abused the victim.
Thereafter, in September, Mary visited her parents
and observed bruises on the victim. When she asked
defendant about them, he became angry and assaulted
her. Both Mary and their other daughter contacted
Adult Protective Services (APS). A few days later,
during a follow-up medical visit with Dr. Chandini
Valeeswarah, Valeeswarah observed multiple bruises on
the victim’s body. Defendant explained that the victim
had fallen recently. Valeeswarah did not believe that the
injuries were consistent with defendant’s account and
directed his staff to contact APS. A referral to APS also
was made by the rehabilitation center that treated the
victim after her physical therapist observed suspicious
bruises.
While the APS investigation was pending, paramed-
ics were summoned to the Comellas’ home on October 9
because the victim was injured and unconscious. The
victim was taken to the hospital, where she was admit-
ted for a subdural hematoma. The victim died on
October 11. Following an autopsy, the medical examiner
determined that the cause of death was blunt-force
impact to the head and that the manner of death was
homicide. Defendant was thereafter convicted of first-
degree felony murder and sentenced to the mandatory
term of life in prison without the possibility of parole.
He now appeals, and we affirm.
On appeal, defendant raises a number of arguments
to support his claims that there was insufficient evi-
dence to support his conviction and that he received
646 296 M
ICH
A
PP
643 [May
ineffective assistance of counsel. We turn first to an
argument that is present in both issues, namely,
whether the prosecutor was obligated to prove both
first- and second-degree vulnerable-adult abuse to es-
tablish the underlying felony for the felony-murder
charge. The prosecutor had proceeded on the theory
that the predicate felony was second-degree vulnerable-
adult abuse. Defendant argues on appeal that the
felony-murder statute requires proof that defendant
committed both first- and second-degree vulnerable-
adult abuse and, because the prosecutor did not prove
that defendant committed first-degree vulnerable-adult
abuse, there was insufficient evidence to support the
felony-murder conviction. Similarly, defendant argues
that trial counsel was ineffective for failing to object to
the jury instructions that did not include an instruction
that the prosecutor had to prove first-degree
vulnerable-adult abuse. We disagree.
MCL 750.316(1)(b) defines first-degree felony mur-
der as
[m]urder committed in the perpetration of, or attempt to
perpetrate, arson, criminal sexual conduct in the first,
second, or third degree, child abuse in the first degree, a
major controlled substance offense, robbery, carjacking,
breaking and entering of a dwelling, home invasion in the
first or second degree, larceny of any kind, extortion,
kidnapping, vulnerable adult abuse in the first and second
degree under [MCL 750.145n], torture under [MCL
750.85], or aggravated stalking under [MCL 750.411i].
The basis for defendant’s argument lies in the fact that,
with the exception of the reference to vulnerable-adult
abuse, the statute uses the disjunctive word “or.” This is
true both in regard to the list of crimes as a whole and the
references to the other two crimes with multiple degrees
that satisfy the felony-murder rule (i.e., criminal sexual
conduct and home invasion). Yet when the Legislature
2012] P
EOPLE V
C
OMELLA
647
amended the statute to add first- and second-degree
vulnerable-adult abuse, it chose to use the conjunctive
word “and.” Thus, defendant argues, the Legislature
intended to require proof of both first- and second-degree
vulnerable-adult abuse in order to support a conviction of
felony murder on this ground.
Questions of statutory interpretation are reviewed de
novo.
3
Guiding our review are the following principles:
Our overriding goal for interpreting a statute is to
determine and give effect to the Legislature’s intent. The
most reliable indicator of the Legislature’s intent is the
words in the statute. We interpret those words in light of
their ordinary meaning and their context within the stat-
ute and read them harmoniously to give effect to the
statute as a whole. Moreover, “every word should be given
meaning, and we should avoid a construction that would
render any part of the statute surplusage or nugatory.” If
the statutory language is unambiguous, no further judicial
construction is required or permitted because we presume
the Legislature intended the meaning that it plainly ex-
pressed. [People v Peltola, 489 Mich 174, 181; 803 NW2d
140 (2011), quoting AFSCME v Detroit, 468 Mich 388,
399-400; 662 NW2d 695 (2003).]
In the context of this statute, we do not believe that the
Legislature intended the literal meaning of the word
“and” in the reference to vulnerable-adult abuse in the
first and second degrees.
As this Court explained in People v Humphreys,
4
the
inaccurate use of “and” and “or” has infected statutes,
creating ambiguities that require judicial construction:
The primary goal of statutory interpretation is to ascer-
tain and give effect to the legislative intent. Root v Ins Co
3
People v Peltola, 489 Mich 174, 178; 803 NW2d 140 (2011).
4
People v Humphreys, 221 Mich App 443, 451-452; 561 NW2d 868
(1997).
648 296 M
ICH
A
PP
643 [May
of North America, 214 Mich App 106, 109; 542 NW2d 318
(1995). In this case, the use of the disjunctive “or” gives
rise to an ambiguity in the statute because it can be read as
meaning either “and” or “or.” Accordingly, we must con-
strue the word to give effect to the Legislature’s intent. Id.
The Court in Root, [214 Mich App] at 109, discussed the
often double meaning of the word “or”:
“The popular use of ‘or’ and ‘and’ is so loose and so
frequently inaccurate that it has infected statutory enact-
ments. While they are not treated as interchangeable, and
should be followed when their accurate reading does not
render the sense dubious, their strict meaning is more
readily departed from than that of other words, and one
read in place of the other in deference to the meaning of the
context.”
Similarly, in People v Gatski,
5
this Court observed that
the literal meanings of “and” and “or” “should be
followed if they do not render the statute dubious, but
one will be read in place of the other if necessary to put
the meaning in proper context.”
Reading the word “and” literally in the vulnerable-
adult-abuse portion of the felony-murder statute would
render it dubious. First, there is no obvious reason why
the Legislature would require a defendant to commit
both first- and second-degree vulnerable-adult abuse in
order to be guilty of felony murder. It would be the only
circumstance under which a defendant would have to
commit two predicate felonies in order to be guilty of
felony murder. Second, and more importantly, to read
the statute as requiring both first- and second-degree
vulnerable-adult abuse would render that portion of the
statute meaningless because it is impossible to commit
both in the same act.
First-degree vulnerable-adult abuse occurs when
“the caregiver intentionally causes serious physical
5
People v Gatski, 260 Mich App 360, 365-366; 677 NW2d 357 (2004).
2012] P
EOPLE V
C
OMELLA
649
harm or serious mental harm to a vulnerable adult.”
6
By contrast, second-degree vulnerable-adult abuse
occurs when “the reckless act or reckless failure to
act of the caregiver or other person with authority
over the vulnerable adult causes serious physical
harm or serious mental harm to a vulnerable adult.”
7
To require the prosecution to prove both would be to
require proof of an oxymoron. One cannot act with both
intent and recklessness. “Reckless” means “utterly
unconcerned about consequences.”
8
Thus, to prove
first-degree vulnerable-adult abuse, the prosecution
would have to show that a defendant intentionally
caused serious physical harm. But this proof would
contradict the requirement of second-degree
vulnerable-adult abuse, which would require that a
defendant be “utterly unconcerned about the conse-
quences” of the attack. A defendant cannot be utterly
unconcerned about whether or not the attack will result
in serious harm while at the same time intending to
cause serious harm.
It must also be remembered that vulnerable-adult
abuse is a recent addition to the felony-murder statute,
having been added by 2004 PA 58. It would seem more
plausible that when the Legislature added these two
offenses to the list of underlying felonies, it did so with
the intent to add both first- and second-degree viola-
tions to the list, not to add a single requirement of an
offense that violated both provisions of the vulnerable-
adult-abuse statute, which represents an impossibility.
That is, it is more likely that the Legislature in drafting
the amendatory act inadvertently made use of the
conjunctive word “and” while overlooking the fact that
6
MCL 750.145n(1).
7
MCL 750.145n(2).
8
Random House Webster’s College Dictionary (2000).
650 296 M
ICH
A
PP
643 [May
all the offenses listed in the statute were joined by the
disjunctive word “or” than it is that the Legislature
took the trouble to amend the statute to add a require-
ment that would be impossible to meet. To interpret the
statute using the latter conclusion would render the
statute dubious and the addition of vulnerable-adult
abuse to the list of underlying offenses merely surplus-
age and nugatory.
For these reasons, we conclude that the requirements
for felony murder are satisfied by committing either
first-degree vulnerable-adult abuse or second-degree
vulnerable-adult abuse. Accordingly, we conclude that
defendant’s arguments that there was insufficient evi-
dence to prove first-degree vulnerable-adult abuse and
that he was deprived of effective assistance of counsel
by his counsel’s failing to request an instruction that
the prosecutor had to prove first-degree vulnerable-
adult abuse is without merit because first-degree
vulnerable-adult abuse was not, and need not have
been, part of the prosecutor’s theory of the case.
Defendant also argues that there was insufficient
evidence on the element of malice. We disagree. We
review a sufficiency issue by considering the evidence in
the light most favorable to the prosecution and deter-
mining whether a rational trier of fact could find each
element of the offense proved beyond a reasonable
doubt.
9
In the case at bar, defendant challenges whether
there was sufficient evidence of the mens rea require-
ment of malice. In a felony-murder case, malice is
established by showing an intent to kill, an intent to
cause great bodily harm, or that the defendant created
a very high risk of death or great bodily harm with
knowledge that death or great bodily harm was the
9
People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999).
2012] P
EOPLE V
C
OMELLA
651
probable result.
10
In this case, the prosecutor argued the
third form of malice.
There was testimony that the victim was in a weak-
ened physical condition because of her various medical
problems and that defendant was aware of her condi-
tion. Furthermore, defendant admitted when inter-
viewed by detectives that he had hit and pushed the
victim on multiple occasions. He further admitted that
on one occasion he might have hit her head on the
kitchen countertop. On another occasion, according to
defendant, he “could of kinda slam [sic] her into the
wall.” The wall was a bathroom tile wall and “she kinda
like bounced off,” falling to the floor and hitting her
head on the floor. The medical examiner testified that
the cause of death was blunt cranial cerebral trauma.
In light of the victim’s medical condition, a reason-
able trier of fact could conclude that defendant knew
that slamming the victim into a tile wall with sufficient
force to cause her to fall to the floor and hit her head
was likely to cause death or great bodily harm. We are
satisfied that there was sufficient evidence of malice to
support defendant’s conviction.
Defendant also raises additional claims of ineffective
assistance of counsel. Specifically, he argues that coun-
sel was ineffective for failing to move to suppress
statements made during a custodial interview before
defendant had been read his Miranda
11
rights and for
failing to object to the prosecutor’s improper closing
argument.
In order to establish ineffective assistance of counsel
for failure to move to suppress a custodial statement
made before the Miranda warnings were given, the
10
Id. at 758.
11
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
652 296 M
ICH
A
PP
643 [May
defendant must show that he or she would have pre-
vailed on the issue.
12
In People v Mayes (After Remand),
there was evidence that would have supported both a
conclusion that the defendant reasonably believed that
he was not free to leave and a conclusion that he was
not under arrest.
13
In favor of finding a custodial
environment was the fact that the defendant, a high
school senior, had been summoned to the principal’s
office, where he was met by a police officer, frisked, and
then interrogated. Although he was free to leave, that
fact was never communicated to him.
14
In favor of
finding that there was no custodial environment were
the facts that he was never told that he was under
arrest, he was allowed to leave after being questioned,
and the questioning occurred in the principal’s office
rather than in a police car or police station.
15
This Court
ultimately concluded that while it could reasonably
have been argued that the defendant was under arrest
but had not yet been read the Miranda warnings when
he made the statement, it was not clear whether the
defendant would have prevailed and, therefore, the
Court was not convinced that the defendant had re-
ceived ineffective assistance of counsel.
16
Similarly, in the case at bar, there are arguments
both in favor of finding a custodial environment and
against it. In favor of finding a custodial environment,
defendant argues that multiple officers were involved in
the interview, that defendant stayed in the conference
room where the interviews took place between the first
12
People v Mayes (After Remand), 202 Mich App 181, 191; 508 NW2d
161 (1993).
13
Id. at 190-191.
14
Id. at 190.
15
Id. at 190-191.
16
Id. at 191.
2012] P
EOPLE V
C
OMELLA
653
and second interviews (and had been told to do so), and
that he had been searched for a weapon. The prosecu-
tion responds by observing that defendant was asked if
he was willing to answer questions, was taken to a
private room near his wife’s hospital room for the
interview, was not physically restrained, was never told
that he was not free to leave, and was left alone between
the interviews. The prosecution also observes that
defendant’s remaining in the conference room between
interviews could be explained by the fact that he may
have wished to avoid another confrontation with his
daughter, knowing that another confrontation would
result in hospital security’s removing them from the
hospital.
With these points in mind, we must reach the same
conclusion that our colleagues did in Mayes, namely,
that “we are not convinced that defense counsel was
ineffective for failing to argue that defendant’s confes-
sion should have been suppressed, because it is unclear
whether defendant would have prevailed on the is-
sue.”
17
Finally, defendant argues that counsel was ineffec-
tive for failing to object to improper comments by the
prosecutor during closing argument. Specifically, defen-
dant argues that various comments by the prosecutor
that the victim had been beaten were not supported by
the record, nor were numerous comments that defen-
dant claims disparagingly described him as “a detail
man” and as “controlling.”
With respect to the comments regarding the victim’s
having been beaten, a prosecutor is entitled to argue the
evidence and reasonable inferences from the evidence.
18
17
Id.
18
People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008).
654 296 M
ICH
A
PP
643 [May
In this case, while defendant is correct that there was
no testimony from anyone who actually observed the
victim being beaten, the conclusion that she had been
was certainly a reasonable inference from the record.
There was significant evidence regarding the various
bruises and other physical injuries suffered by the
victim, there was defendant’s own admission regarding
his physical assaults on the victim, and there was the
testimony that a neighbor heard a commotion in the
Comellas’ home and a female voice crying out in pain.
Similarly, there was a variety of testimony during the
trial that would support a description of defendant as a
controlling individual. For example, he wanted to keep
the victim at home after her earlier discharge from the
hospital despite medical advice that she go to a long-
term-care facility, he did not want others in the home to
care for the victim, and he would “nitpick” the victim
and become angry when household tasks were not
performed to his satisfaction. Even portions of defen-
dant’s own testimony could fairly be described as at-
tempting to control the prosecutor’s line of questioning.
In short, there was an adequate basis for the pros-
ecutor to make these arguments. Because there was no
prosecutorial misconduct, there was no basis for de-
fense counsel to object. And it is not ineffective assis-
tance of counsel to fail to make a meritless objection.
19
Affirmed.
O’C
ONNELL
and R
ONAYNE
K
RAUSE
, JJ., concurred with
S
AWYER
,P.J.
19
People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
2012] P
EOPLE V
C
OMELLA
655
KRUEGER v DEPARTMENT OF TREASURY
Docket No. 302246. Submitted January 10, 2012, at Lansing. Decided
May 29, 2012, at 9:00 a.m. Leave to appeal denied, 493 Mich 917.
Robert A. and Phyllis G. Krueger sought tax refunds from the
Department of Treasury in 2003 for the years 1994 through 1997
after having amended their federal tax returns in 2001 pursuant to
Gitlitz v Internal Revenue Comm’r, 531 US 206 (2001), which
entitled them to claim an additional loss from their corporation’s
discharge of indebtedness. The department initially denied peti-
tioners’ claim for refunds on the ground that the claims had been
filed outside the four-year limitations period set forth in MCL
205.27a(2). After an informal hearing, a hearing referee recom-
mended that petitioners’ claims be denied, and the department
accepted the recommendation, ruling that petitioners’ federal
claim had not tolled the limitations period and that petitioners had
failed to file their amended state returns within 120 days of being
granted a federal refund pursuant to MCL 206.325(2). On appeal,
the Tax Tribunal granted petitioners’ motion for summary dispo-
sition, and the department appealed.
The Court of Appeals held:
1. MCL 205.27a(2) prohibits a taxpayer from claiming a refund
of any amount paid to the department more than four years after
the date set for filing the original return. However, MCL
205.27a(3)(a) suspends the running of this four-year limitations
period while a final determination of tax is pending and for one
year after that. MCL 205.27a(2) and MCL 205.27a(3) are not
alternative provisions; they apply consecutively if a taxpayer
pursues a final determination of tax liability. Under this analysis,
petitioners had until December 6, 2003, to file their amended state
returns with respect to the 1997 tax year, which made their filing
on February 4, 2003, timely. With respect to the earlier tax years,
the 1997 losses could be carried back to tax years 1994, 1995, and
1996 under the carry-back provisions of MCL 206.30(1) because
the limitations period was open for 1997.
2. Petitioners’ claim was not barred by MCL 206.325(2), which
requires a taxpayer to file an amended return with the department
showing any final alteration in or modification of the taxpayer’s
656 296 M
ICH
A
PP
656 [May
federal income tax return that affects the taxpayer’s taxable
income under part 1 of the Income Tax Act, MCL 206.1 through
MCL 206.532, within 120 days of the alteration or modification.
Interpreting MCL 206.325(2) as a filing requirement (with poten-
tial penalties for late filing) rather than a separate and supersed-
ing statute of limitations renders it harmonious with MCL
205.27a(2), which provides no limitation except the four-year
limitations period.
Affirmed.
1. T
AXATION —
C
LAIMS FOR
T
AX
R
EFUNDS —
S
TATUTES OF
L
IMITATIONS —
F
INAL
D
ETERMINATIONS OF
T
AX
.
MCL 205.27a(2) prohibits a taxpayer from claiming a refund of any
amount paid to the Department of Treasury more than four years
after the date set for filing the original return; MCL 205.27a(3)(a)
suspends the running of this four-year limitations period while a
final determination of tax is pending and for one year after that;
MCL 205.27a(2) and MCL 205.27a(3) apply consecutively if a
taxpayer pursues a final determination of tax liability.
2. T
AXATION —
A
MENDMENTS OF
T
AX
R
ETURNS —
A
LTERATIONS OR
M
ODIFICATIONS
OF
F
EDERAL
T
AX
R
ETURNS —
120-
DAY
F
ILING
R
EQUIREMENT
.
MCL 206.325(2) requires a taxpayer to file an amended return with
the Department of Treasury showing any final alteration in or
modification of the taxpayer’s federal income tax return that
affects the taxpayer’s taxable income under part 1 of the Income
Tax Act, MCL 206.1 through MCL 206.532, within 120 days of the
alteration or modification; the 120-day filing requirement is not a
separate statute of limitations that supersedes the four-year
limitations period set forth in MCL 205.27a(2).
Couzens, Lansky, Fealk, Ellis, Roeder & Lazar, P.C.
(by Eric J. Gould and David A. Lawrence), for petition-
ers.
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Richard A. Bandstra, Chief Legal
Counsel, and Heidi L. Johnson-Mehney, Assistant At-
torney General, for respondent.
Before: S
AWYER
,P.J., and W
HITBECK
and M. J. K
ELLY
,
JJ.
2012] K
RUEGER V
D
EP
’
TOF
T
REASURY
657
P
ER
C
URIAM
. Respondent appeals a decision of the Tax
Tribunal in favor of petitioners regarding their claim
for a tax refund. We affirm.
This dispute arises out of the United States Supreme
Court’s decision in Gitlitz v Internal Revenue Comm’r,
531 US 206; 121 S Ct 701; 148 L Ed 2d 613 (2001).
Pursuant to the holding in Gitlitz, petitioners were
entitled to claim an additional loss from the discharge of
indebtedness by their S corporation. On August 14,
2001, petitioners filed federal claims for a refund, and
on November 5, 2001, the Internal Revenue Service
notified petitioners that the claims had been accepted,
that their accounts for tax years 1994 through 1997
were changed, and that petitioners were entitled to a
federal refund.
On February 3, 2003, petitioners filed amended state
returns for tax years 1994 through 1997. On January
23, 2006, respondent issued notices denying petitioners
refunds on the grounds that the amended claims had
been filed outside the applicable period of limitations.
Petitioners requested and were granted an informal
conference with respondent, which was held on August
22, 2007. Following the conference, respondent’s hear-
ing referee recommended that petitioners’ claims be
denied, concluding that the period of limitations had
been suspended by the federal claims but that the
suspension period ended one year after November 5,
2001, and that petitioners’ amended state claims were
therefore untimely. On January 25, 2008, respondent
accepted the referee’s recommendation on other
grounds, ruling that petitioners’ federal claim did not
toll the applicable period of limitations and that peti-
tioners had failed to file their amended state returns
within 120 days of being granted a federal refund as
mandated by law.
658 296 M
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Petitioners appealed in the Tax Tribunal. The tribunal
ruled that petitioners’ federal claim suspended the period
of limitations while a final determination of petitioners’
tax liability was pending and for a period of one year
thereafter. Accordingly, petitioners’ state claims were not
untimely. The tribunal also concluded that the 120-day
rule cited in respondent’s decision and order of determi-
nation was merely a filing requirement, not a statute of
limitations, and therefore did not override petitioners’
right to a timely filed claim for a refund.
Turning first to whether petitioners’ claim for a
refund was timely filed under MCL 205.27a(2), this
Court has previously addressed that issue in Fegert v
Dep’t of Treasury, unpublished opinion per curiam of
the Court of Appeals, issued December 19, 2006 (Docket
No. 270236). Fegert involved a nearly identical situation
arising out of the Gitlitz decision and the filing of
amended federal and state tax returns, with only minor
differences in the relevant dates. We are persuaded by
the analysis in the Fegert decision and adopt it as our
own. Fegert, unpub op at 2-3, opined as follows:
Petitioners argue that the [Tax Tribunal] misinter-
preted the tolling provisions in MCL 205.27a. Resolution of
this issue requires application of the undisputed facts to
the relevant provisions of MCL 205.27a. Consequently, our
review is de novo. Cruz v State Farm Mut Ins Co., 466 Mich
588, 594; 648 NW2d 591 (2002). In addition, we review de
novo the grant or a denial of a motion for summary
disposition. Spiek v Dept of Transp, 456 Mich 331, 337; 572
NW2d 201 (1998).
MCL 205.27a(2) provides in relevant part:
“The taxpayer shall not claim a refund of any amount paid
to the department after the expiration of 4 years after the
date set for the filing of the original return.”
However, this four year limitations period may be “sus-
pended” or tolled. MCL 205.27a(3)(a) provides:
2012] K
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“(3) The running of the statute of limitations is sus-
pended for the following:
“(a) The period pending a final determination of tax,
including audit, conference, hearing, and litigation of li-
ability for federal income tax or a tax administered by the
department and for 1 year after that period.”
Petitioners contend that the [Tax Tribunal], in deter-
mining the time periods for timely filing petitioners’ claim
for a refund, improperly interpreted these two provisions.
We agree. The primary goal of statutory construction is to
ascertain and give effect to the intent of the Legislature.
Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich
511, 515; 573 NW2d 611 (1998). “Each word of a statute is
presumed to be used for a purpose, and, as far as possible,
effect must be given to every clause and sentence.” Robin-
son v Detroit, 462 Mich 439, 459; 613 NW2d 307 (2000). If
the statutory language is clear and unambiguous, the court
must apply the statute as written, and judicial construction
is neither necessary nor permitted. Sun Valley Foods Co v
Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). Although
in general, a court will defer to the interpretation of
statutes by the [Tax Tribunal] that the [tribunal] is del-
egated to administer, Wexford Medical Group v City of
Cadillac, 474 Mich 192, 221; 713 NW2d 734 (2006), when
the language is clear, there is no need for interpretation
and the statute must be applied as written.
[
1
]
Petitioners filed their tax return on October 15, 1998.
Accordingly, MCL 205.27a(2) permitted them to file a claim
for a tax refund until October 15, 2002. However, MCL
205.27a(3)(a) provides that this four-year limitation period
1
We note that after the Fegert decision, the Michigan Supreme Court
clarified that the standard is not to give deference to the agency’s
interpretation of a statute, but to give it “ ‘respectful consideration’ ” and
that there should be “ ‘cogent reasons’ ” for overruling an agency’s
interpretation. In re Complaint of Rovas Against SBC Mich, 482 Mich 90,
103; 754 NW2d 259 (2008), quoting Boyer-Campbell Co v Fry, 271 Mich
282, 296; 260 NW 165 (1935). But this difference did not affect the Fegert
decision because it did not follow the Tax Tribunal’s interpretation.
660 296 M
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is suspended “pending a final determination of tax” and
“for one year after that period.”
During the four-year limitation period, from October 15,
1998, to October 15, 2002, petitioners filed a claim for a
refund of their federal taxes on August 12, 2001. On the
date of filing, 1,031 days of the 1,461 days of the four-year
limitation period had run. The IRS granted the refund 57
days later on October 8, 2001. The four year limitations
period was suspended during those 57 days, as well as “for
1 year after that period,” until October 8, 2002. MCL
205.27a(3)(a). The limitation period then ran for the 430-
day balance of the 1,461-day limitation period, ending on
December 12, 2003. Thus, pursuant to the plain language
of the statute, petitioners’ claim for a state refund was
timely filed on March 20, 2003.
[The Tax Tribunal’s] interpretation in its summary
disposition order violates the plain language of the statute.
In essence, the [Tax Tribunal] inserts an “or” between
subsections (2) and (3) [of MCL 205.27a]. However, subsec-
tion[s] (2) and (3) are not alternative provisions; they are
consecutive provisions if a taxpayer pursues a final deter-
mination of tax liability. Further, the [Tax Tribunal] in-
serts the phrase “whichever is later” to determine which
provision to apply. As written, subsection (3) simply sus-
pends the four-year limitation period pending a final de-
termination of tax liability and for an additional year
thereafter.
Under the Fegert analysis, petitioners in this case had
until December 6, 2003, to file their amended state
returns with respect to the 1997 tax year. The filing on
February 3, 2003, was within this time frame and,
therefore, timely. With respect to the earlier tax years,
the tribunal concluded that, in light of the carry-back
provisions of MCL 206.30(1), the losses in 1997 could be
carried back to tax years 1994, 1995, and 1996, provided
that the limitations period is open for 1997, which it is.
Respondent does not challenge this aspect of the tribu-
nal’s ruling.
2012] K
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Respondent does, however, raise an issue not ad-
dressed in Fegert. Respondent argues that petitioners’
claim is barred by MCL 206.325(2), which currently
2
reads as follows:
A taxpayer shall file an amended return with the
department showing any final alteration in, or modification
of, the taxpayer’s federal income tax return that affects the
taxpayer’s taxable income under this part and of any
similarly related recomputation of tax or determination of
deficiency under the internal revenue code. If an increase
in taxable income results from a federal audit that in-
creases the taxpayer’s federal income tax by less than
$500.00, the requirement under this subsection to file an
amended return does not apply but the department may
assess an increase in tax resulting from the audit. The
amended return shall be filed within 120 days after the
final alteration, modification, recomputation, or determina-
tion of deficiency. If the [Department of Treasury] finds
upon all the facts that an additional tax under this part is
owing, the taxpayer shall immediately pay the additional
tax. If the department finds that the taxpayer has overpaid
the tax imposed by this act, a credit or refund of the
overpayment shall immediately be made as provided in
section 30 of 1941 PA 122, MCL 205.30. [Emphasis added.]
Under respondent’s interpretation of this provision,
failure to file an amended return within 120 days
results in the loss of a right of claim, whether or not the
applicable limitations period remains open. This inter-
pretation is at clear odds with MCL 205.27a(2), which
provides no limitation except the four-year limitations
period in cases of this sort. As the Tax Tribunal con-
cluded, a more harmonious interpretation of MCL
206.325(2) is to view it as a mere filing requirement and
not as a separate and superseding statute of limitations
as respondent asserts. When MCL 206.325(2) is read
2
The changes made to this provision by 2011 PA 38, which took effect
on January 1, 2012, do not affect our analysis.
662 296 M
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this way, petitioners may be subject to a penalty for
failure to file their amended return in a timely fashion,
but petitioners’ claim itself is not barred as untimely.
Affirmed. Petitioners may tax costs.
S
AWYER
,P.J., and W
HITBECK
and M. J. K
ELLY
,JJ.,
concurred.
2012] K
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HOWARD v KOWALSKI
Docket No. 297066. Submitted October 5, 2011, at Grand Rapids.
Decided May 29, 2012, at 9:05 a.m. Amended, 296 Mich App 801.
Leave to appeal sought.
Joedeanna Howard filed an action in the Wexford Circuit Court
against Robert F. Kowalski, M.D., Trinity Health-Michigan, doing
business as Mercy Hospital, and others, claiming that her dece-
dent, Barbara Johnson, passed away because of Kowalski’s negli-
gent medical treatment in the emergency room. Johnson had been
bitten in the face by one of her mares while assisting in the birth
of a foal. Kowalski assessed and treated Johnson in the emergency
room and requested the assistance of an anesthesiologist and an
ear, nose, and throat (ENT) specialist to help manage her airway.
Johnson was initially relatively stable, then experienced problems
breathing after Kowalski had been called away for another emer-
gency. The anesthesiologist, Dr. Charles Urse, and the ENT
performed a cricothyroidotomy to ventilate her lungs directly, but
Johnson suffered a cardiac arrest, resulting in permanent brain
damage and her ultimate death. Plaintiff’s theory of the case was
that Urse was not present and assistance was not summoned until
after Johnson’s condition deteriorated suddenly and that Kowalski
had negligently failed to intubate Johnson before being called
away and leaving Johnson unattended. The court, William M.
Fagerman, J., denied plaintiff’s request to admit an affidavit of a
nonparty doctor-witness (Urse) for impeachment purposes, con-
cluding that it was hearsay, and excluded presuit correspondence,
including e-mails, concerning the affidavit between plaintiff’s
attorney and a representative of Urse’s insurer, but allowed
plaintiff’s counsel to refer to the affidavit during his opening
statement and cross-examine Urse regarding its content, and
argue during closing that it showed the defense’s case was fabri-
cated. Following the trial, the jury returned a verdict of no cause of
action and plaintiff appealed.
The Court of Appeals held:
1. Under MRE 613(b), a prior inconsistent statement of a
witness is admissible to impeach the credibility of the witness. The
rule excluding hearsay, MRE 802, does not apply to the admission
of a prior inconsistent statement because it is not offered as
664 296 M
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substantive evidence to prove the truth of the matter asserted,
MRE 801(c), but is only offered to test the credibility of the
witness’s testimony in court.
2. The party seeking to impeach a witness with a prior incon-
sistent statement must lay a foundation by establishing that the
witness made the prior statement and that the prior statement
was inconsistent with the witness’s in-court testimony. A state-
ment is inconsistent if there is any material variance between the
testimony and the previous statement, that is, if a jury could
reasonably find that a witness who believed the truth of the facts
testified to would be unlikely to make the prior statement.
Evidence is not collateral, and is thus admissible for impeachment
purposes, if the fact on which the prior self-contradiction was
predicated could have been shown in evidence for any purpose
independently of the self-contradiction. The circuit court correctly
allowed the jury to decide the issue of whether the affidavit was
inconsistent with Urse’s testimony but erred by refusing to admit
the document itself into evidence. The affidavit was not collateral
and should have been admitted because it detailed Urse’s activities
leading up to Johnson’s deterioration independently of its ten-
dency to impeach him.
3. Logical relevance is the foundation for admissibility. Under
MRE 401, evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence. MRE 402 provides that all relevant evidence is
admissible except as otherwise provided. When the relevancy of
evidence depends on the fulfillment of a condition of fact, the
evidence must be admitted upon or subject to the introduction of
evidence sufficient to support a finding of the fulfillment of the
condition. Under MRE 104(b), a court must examine all the
evidence in the case and decide whether the jury could reasonably
find the conditional fact by a preponderance of the evidence. The
credibility of a witness is almost always relevant because the jury
is entitled to all evidence that might bear on the accuracy and
truth of a witness’s testimony. The circuit court erred by excluding
the e-mails between plaintiff’s counsel and Urse’s insurance
claims representative. The evidence was relevant because it could
be read as explaining the affidavit’s contents and why it was
inconsistent with Urse’s trial testimony. The evidence was suffi-
cient to allow a reasonable jury to find the conditional fact and
conclude that Urse’s testimony differed markedly from his affida-
vit. The error was not harmless because the improperly excluded
2012] H
OWARD V
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OWALSKI
665
evidence might have affected the jury’s determination regarding
the credibility of Urse, who was a critical witness.
Reversed and remanded for further proceedings.
1. E
VIDENCE —
I
MPEACHMENT —
P
RIOR
I
NCONSISTENT
S
TATEMENTS
.
Under MRE 613(b), a prior inconsistent statement of a witness is
admissible to impeach the credibility of the witness; the rule
excluding hearsay, MRE 802, does not apply to the admission of a
prior inconsistent statement because it is not offered as substan-
tive evidence to prove the truth of the matter asserted, MRE
801(c), but is only offered to test the credibility of the witness’s
testimony in court; the party seeking to impeach a witness with a
prior inconsistent statement must lay a foundation under MRE
613(b) by establishing that the witness made the prior statement
and that the prior statement was inconsistent with the witness’s
in-court testimony; a statement is inconsistent if there is any
material variance between the testimony and the previous state-
ment, that is, if a jury could reasonably find that a witness who
believed the truth of the facts testified to would have been unlikely
to make the prior statement; evidence is not collateral, and is thus
admissible for impeachment purposes, if the fact on which the
prior self-contradiction was predicated could have been shown in
evidence for any purpose independently of the self-contradiction.
2. E
VIDENCE —
R
ELEVANCE —
C
ONDITION OF
F
ACT
.
Evidence is relevant if it has any tendency to make the existence of
any fact that is of consequence to the determination of the action
more or less probable than it would be without the evidence; all
relevant evidence is admissible unless otherwise provided, but
when the relevancy of evidence depends on the fulfillment of a
condition of fact, the evidence must be admitted upon or subject to
the introduction of evidence sufficient to support a finding of the
fulfillment of the condition; a court must examine all the evidence
in the case and decide whether the jury could reasonably find the
conditional fact by a preponderance of the evidence (MRE 104[b],
401, 402).
Allan Falk, P.C. (by Allan Falk), and Weiner &
Associates, P.C. (by Cyril V. Weiner), for Joedeanna
Howard.
Plunkett Cooney (by Robert G. Kamenec) for Robert F.
Kowalski, M.D.
666 296 M
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Before: M
ARKEY
,P.J., and S
ERVITTO
and R
ONAYNE
K
RAUSE
,JJ.
P
ER
C
URIAM
. Plaintiff appeals by right a judgment of
no cause of action in this medical malpractice case,
asserting that certain evidentiary rulings resulted in
the denial of a fair trial. Specifically, plaintiff contends
that the trial court abused its discretion by not admit-
ting as an exhibit for impeachment purposes an affida-
vit of a nonparty doctor-witness and by excluding
presuit correspondence concerning the affidavit be-
tween plaintiff’s attorney and a representative of the
witness’s insurer. We conclude the trial court abused its
discretion and that the error was not harmless. We
reverse and remand.
I. FACTUAL BACKGROUND
Plaintiff’s decedent, Barbara Johnson, a horse owner,
was severely bitten in the face by one of her mares while
assisting in the birth of a foal. Although the bite resulted
in deep gashes below her right eye and along her jaw that
caused heavy bleeding, Mrs. Johnson managed to call for
an ambulance and also called her daughter. The decedent
was transported to the emergency room (ER) of the
defendant hospital, arriving at about 2:38 p.m., according
to the emergency medical services report. Defendant,
Robert F. Kowalski, M.D., the physician on duty in the ER
at the time, assessed Mrs. Johnson at about 2:45 p.m.,
finding that she was alert and oriented. There was bleed-
ing into her mouth, but her airway was open and being
maintained by the suctioning of blood as needed.
Dr. Kowalski testified that between 2:50 and 2:52
p.m., he requested the assistance of an ENT
1
and
1
A doctor specializing in the treatment of the ear, nose, and throat is
an ENT or otolaryngologist.
2012] H
OWARD V
K
OWALSKI
667
ananesthesiologist “STAT” to help manage Mrs.
Johnson’s airway and that a medical helicopter be
summoned to transport her to a larger hospital with
better trauma treatment capability. Dr. Charles Urse,
an anesthesiologist, responded, and shortly thereafter
Dr. Lisa Jacobson, an ENT specialist, also responded to
the “STAT” call for assistance. Both Drs. Kowalski and
Urse testified in their pretrial depositions and at trial
that Mrs. Johnson had been relatively stable when they
were at her bedside discussing the best medical proce-
dure to maintain the patency of her airway. About 3:00
p.m., Dr. Kowalski was called away to another emer-
gency room patient who had gone into cardiac arrest.
Thereafter, at about 3:05 p.m., Mrs. Johnson began
having more serious difficulty breathing, crying out
that she could not breathe. Dr. Urse administered
medications and attempted to orally intubate Mrs.
Johnson, but the amount of blood in her mouth and
throat made it impossible. Dr. Urse, with Dr. Jacobson’s
assistance, performed a cricothyroidotomy to ventilate
the patient’s lungs by inserting breathing tubes directly
through her throat. The procedure was only partially
successful, and Mrs. Johnson suffered a cardiac arrest.
She was resuscitated and placed on life support, but she
had sustained permanent brain damage. Five days later,
she was removed from life support and died.
Plaintiff’s theory of the case was that when Dr.
Kowalski left Mrs. Johnson to attend the other patient,
Dr. Urse was not present and assistance was not sum-
moned until after Mrs. Johnson’s condition suddenly
deteriorated. Plaintiff contended that Dr. Kowalski was
negligent by failing to immediately intubate Mrs.
Johnson before being called away to the other patient
and leaving Mrs. Johnson unattended. According to
plaintiff’s theory, Dr. Urse had not arrived until after
the patient’s fatal deterioration began at about 3:05
668 296 M
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664 [May
p.m. Dr. Urse then took steps to intubate Mrs. Johnson,
but blood in her mouth and throat prevented him from
completing the procedure. Dr. Urse then performed a
cricothyroidotomy with Dr. Jacobson’s assistance. This
too was not completely successful because Mrs. Johnson
went into cardiac arrest and suffered loss of oxygen to
the brain. Plaintiff’s counsel formed this theory of the
case during the presuit notice-of-intent period, MCL
600.2912b, apparently on the basis of his review of the
medical records.
Plaintiff’s counsel named Dr. Urse as a potential
defendant in plaintiff’s notice of intent, MCL
600.2912b, but did not name him in the complaint. On
July 26, 2007, counsel wrote to Nancy A. Croze, a claims
representative for Dr. Urse’s liability insurer, American
Physicians Assurance Corporation, advising her that on
the basis of his understanding of the facts, Dr. Kowalski
bore sole responsibility for the medical accident. After
setting forth his understanding of the facts of the case,
plaintiff’s counsel indicated that he was planning to file
a lawsuit only against Dr. Kowalski, assuming that his
information was accurate. Counsel stated in his letter
that he needed “some kind of verification perhaps in the
form of an affidavit by Dr. Urse” that would confirm his
understanding of the facts and that counsel “could draft
such an affidavit.”
Following the July 26, 2007, letter and other commu-
nications with plaintiff’s counsel, which included
e-mails, Croze wrote to counsel on August 15, 2007,
enclosing Dr. Urse’s August 9, 2007, affidavit. Croze
stated in her letter: “I am confident that this document
will meet your needs as you assess your intentions for
pursuit of the case.”
In pertinent part, two paragraphs of the affidavit
stated:
2012] H
OWARD V
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OWALSKI
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4. I was contacted, by beeper or through the [operating
room] front desk staff (I can’t recall completely which one)
in regards to a STAT ER page on patient Barbara Johnson
on the afternoon of April 4, 2005. Then I immediately
proceeded to the [post anesthesia care unit] to obtain the
anesthesia department airway box, and then immediately
proceeded to the Emergency Room, arriving within ap-
proximately two to three minutes after I was notified.
5. That my findings and treatment are summarized in my
hand-written progress note contained in the medical
record.
At trial and in his deposition 18 months earlier, Dr.
Urse testified contrary to plaintiff’s theory of the case
that he was, in fact, at Mrs. Johnson’s bedside discuss-
ing treatment options with Dr. Kowalski while the
patient was stable and before Dr. Kowalski was called
away. Dr. Urse further testified that his one-page
progress note did not include the events preceding the
patient’s acute deterioration and that he signed his
affidavit believing that the information desired was the
time frame it took for him to arrive at the ER after
receiving the stat page. He testified that he never saw
the correspondence between plaintiff’s counsel and
Croze.
Two weeks before trial, the trial court heard and
granted defendants’ motion for a protective order re-
garding plaintiff’s effort to subpoena Croze and her file.
During the hearing, the court suggested, without decid-
ing, that the Urse affidavit could arguably be used at
trial as a prior inconsistent statement to impeach Dr.
Urse’s testimony.
On the first day of trial, after a jury had been selected
and sworn, plaintiff’s counsel sought a ruling from the
court on the admissibility and use of Dr. Urse’s affidavit
and the correspondence between plaintiff’s counsel and
Croze. Counsel argued that plaintiff’s “whole case
670 296 M
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rest[ed] upon the medical records which contradict the
testimony” of Drs. Urse and Kowalski that they were
both present with Mrs. Johnson before the onset of fatal
respiratory distress. Plaintiff’s counsel agreed that use
of the affidavit would be limited to impeaching the
anticipated trial testimony of Dr. Urse and that the
letters were intended only to provide context for the
affidavit. With respect to the letters, the court ruled
that it would not permit reference to them in opening
statements but would not preclude their use at trial “if
a proper foundation is laid” that Dr. Urse “in fact
reviewed those letters and was in some way endorsing
the facts that are contained therein at the time he
executed the affidavit.” Regarding the affidavit, the
court ruled that it was hearsay and could not be used
until Dr. Urse testified in a contrary manner. Nonethe-
less, defense counsel did not object to plaintiff’s coun-
sel’s request to refer to the affidavit in his opening
statement, without showing it, by saying “that [Dr.
Urse] signed something which I believe is contrary to
his testimony.” In his opening statement, plaintiff’s
counsel stated:
Now let’s look at Dr. Urse who I believe you will see
changed his position regarding what happened just like Dr.
Kowalski did. Dr. Urse signed an affidavit when this
lawsuit—before this lawsuit was filed and didn’t say any-
thing about being on the scene with Dr. Kowalski. We
wanted to know, we have read the records, we want to know
before the lawsuit; you weren’t there, were you, Dr. Urse?
He made no mention of having been there in his affidavit.
***
Again, Dr. Kowalski will testify contrary to the evidence
in the chart that Dr. Urse, and Dr. Urse will change his
testimony. When I say change, I mean he gave an affidavit
before the case started, not mentioning this meeting [be-
2012] H
OWARD V
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OWALSKI
671
tween Dr. Urse and Dr. Kowalski] that supposedly occurred
between 2:45 and 3:00. Dr. Urse will change his testi-
mony....Andsuch testimony of Kowalski and Urse must
be false or the record and Nurse Joel and everything we
know about this case is wrong. There is no in be-
tween....Dr.Urse will say he was in the room, and he was
in the room with Dr. Kowalski until Dr. Kowalski was called
out.
The affidavit signed by Dr. Urse indicates nothing about
him being in the room with Dr. Kowalski. Nothing. And we
specifically inquired that question, that’s what we wanted
to know, who was in the room between 2:45 and 3:00. And
we felt with that affidavit, that he had verified he was not
initially in the room, but he testified in deposition contrary
to that.
Dr. Urse testified at trial as discussed already. When
asked, Dr. Urse recalled having signed his affidavit and
he brought a copy to the trial. When plaintiff’s counsel
sought to display the affidavit to the jury, defense
counsel objected that it was hearsay. Plaintiff argued
that it was a prior inconsistent statement. The trial
court suggested that counsel needed to lay a better
foundation. When plaintiff’s counsel asked Dr. Urse if
his one-page progress note reflected the treatment he
provided, Urse answered, “Yeah, it’s a summary of
events that occurred starting when she started to have
respiratory distress” and “a summary of what had
occurred that I thought was important.” Dr. Urse
identified a copy of the affidavit, identified his signa-
ture, and agreed that the affidavit was a notarized
statement given under oath. Dr. Urse was asked to and
read aloud ¶ 4 of the affidavit. At this point, the trial
court suggested that the affidavit be marked, and it was
marked as Exhibit 17. In an effort to establish the
affidavit as a prior inconsistent statement, plaintiff’s
counsel asked Dr. Urse about ¶ 5 of the affidavit and
about the content of his progress note. Counsel moved
672 296 M
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664 [May
for the admission of Exhibit 17, but the trial court ruled
that it had not heard any testimony from Dr. Urse that
was inconsistent with his affidavit.
On further cross-examination, Dr. Urse acknowledged
that his progress note did not state all that he had done or
all that occurred and that he had not thought it important
to indicate that he had conferred with Dr. Kowalski
regarding treatment options. He also admitted that he
reviewed plaintiff’s notice of intent and that he talked to a
“legal representative” before signing the affidavit. But Dr.
Urse denied ever seeing the correspondence at issue and
explained that “I thought that when I filled out the
affidavit, that you were asking me about when I got
contacted and how long it took me to get down to the ER,
that was my understanding, and that’s what I wrote.”
Plaintiff’s counsel noted that he did not ask that the
affidavit be prepared, to which Dr. Urse replied, “[T]hat’s
what my legal representative said and I read it and I said
that is what happened and I signed it.”
The trial court ruled as follows regarding Exhibit 17:
All right. To move this matter along, I’m going to rule
that proposed 17 will not be received. I’m not precluding
you from asking questions to the witness. I think you have
done so, [plaintiff’s counsel]. I do believe, however, that Dr.
Urse read the portion that you referred him to somewhat
meekly and it was difficult for me to hear and a couple of
jurors were trying to get my attention while he was doing
so. So for that reason, I will allow you to ask that question
again. But that’s going to be the Court’s ruling as to the
admissibility of 17.
After the trial court’s ruling, plaintiff’s counsel was
allowed to require Dr. Urse to again read into the record
¶ 5 of his affidavit, which states: “That my findings and
treatment are summarized in my hand-written
progress note contained in the medical record.”
2012] H
OWARD V
K
OWALSKI
673
Near the close of the proofs, plaintiff’s counsel again
sought to admit as rebuttal exhibits Dr. Urse’s affidavit,
counsel’s July 26, 2007, letter, and Croze’s August 15,
2007, letter. The trial court reasoned that there was no
evidence that Dr. Urse knew of the letters or that he
was responding in the affidavit to what plaintiff’s
counsel thought the facts were at the time he wrote his
letter. The trial court also noted that the content of the
affidavit was not contrary to Dr. Urse’s testimony,
either at trial or in his deposition. Therefore, the trial
court ruled:
The Court will stick with its prior ruling as it relates to
Proposed Exhibit 17. The statement has been used for the
extent that it was able to for purposes of impeachment.
MRE 613 permits that and I permitted you to do that.
***
The plaintiffs have had an adequate opportunity to
cross examine Dr. Urse, to lead him as it was put, because
he was adverse to them, and the Court was lenient with
that, as well as [defense counsel] did not object frequently
as it relates to that. That was all part of the plaintiff’s case
in chief, and I’m not going to permit that testimony to be
offered, and I will deny the request.
When queried by plaintiff’s counsel regarding refer-
ring to the affidavit in his closing argument, the trial
court advised:
It’s part of the record. You can argue it. You can argue
that he provided an affidavit, that his findings and treat-
ment are summarized in the handwritten progress notes
contained in medical records. He told you, members of the
jury, that he signed an affidavit to that effect, and you can
argue that those medical records are the true story and
that what he said from the stand is not the true story, and
that will be for the fact finder to agree or disagree with you.
674 296 M
ICH
A
PP
664 [May
Following the trial court’s advice, and as he did in his
opening statement, plaintiff’s counsel argued that the
defense in this case was fabricated, that Dr. Urse’s
affidavit indicated that there was no meeting between
Dr. Urse and Dr. Kowalski, and that Dr. Urse did not
come to Mrs. Johnson’s room between 2:53 and 3:00
p.m. as the two doctors testified.
The trial court instructed the jury regarding a prior
inconsistent statement of a witness according to M Civ
JI 3.15 as follows:
If you decide that a witness said something earlier that
is not consistent with what the witness said at trial, you
may consider the earlier statement in deciding whether to
believe the witness, but you may not consider it as proof of
the facts in this case; however, there are exceptions. You
may consider an earlier statement as proof of facts in this
case if the statement was made by plaintiff, defendant, or
an agent or employee of either party; the statement was
given under oath subject to the penalty of perjury in a
deposition; or the witness testified during the trial that the
earlier statement was true.
As noted already, the jury returned a verdict of no
cause of action. Plaintiff now appeals by right.
II. STANDARD OF REVIEW
A trial court’s decision regarding the admission or
exclusion of evidence will not be disturbed on appeal
absent an abuse of discretion. Craig v Oakwood Hosp,
471 Mich 67, 76; 684 NW2d 296 (2004). But questions of
law underlying a trial court’s evidentiary decision, such
as the construction of a constitutional provision, rule of
evidence, court rule, or statute, are reviewed de novo.
Barnett v Hidalgo, 478 Mich 151, 159; 732 NW2d 472
(2007); Waknin v Chamberlain, 467 Mich 329, 332; 653
NW2d 176 (2002). Even if a trial court’s decision
2012] H
OWARD V
K
OWALSKI
675
regarding the admission or exclusion of evidence is an
abuse of discretion because it is outside the range of
principled outcomes, reversal is not warranted unless a
substantial right of a party is affected, MRE 103(a), or
it affirmatively appears that failure to grant relief is
inconsistent with substantial justice, MCR 2.613(A).
Lewis v LeGrow, 258 Mich App 175, 200; 670 NW2d 675
(2003).
III. ANALYSIS
Plaintiff argues that the trial court abused its discre-
tion by not admitting Dr. Urse’s affidavit in evidence as
Exhibit 17. Plaintiff further argues that the trial court
abused its discretion by failing to admit the letters
exchanged between plaintiff’s counsel and the insur-
ance claims representative, Croze. Plaintiff contends
that when read together, the contents of the documents
diverge from the testimony of the witness and therefore
constitute prior inconsistent statements. Because they
are inconsistent, plaintiff argues, the trial court should
have admitted them for impeachment purposes.
2
We
agree.
A. THE TRIAL COURT ERRED BY EXCLUDING THE AFFIDAVIT
The trial court’s ruling on the affidavit was ambigu-
ous at best. MRE 613(b) provides:
Extrinsic evidence of a prior inconsistent statement by a
witness is not admissible unless the witness is afforded an
2
We note that MRE 411 plays no role in this decision. MRE 411 does
not preclude evidence of liability insurance if introduced for relevant
reasons other than proving that a person acted negligently or otherwise
wrongfully. Dr. Urse is not a party to this action. The communications
between plaintiff’s counsel and the claims representative for Dr. Urse’s
insurer are admissible because they bear on Dr. Urse’s credibility as a
witness, not on his conduct on the day in question.
676 296 M
ICH
A
PP
664 [May
opportunity to explain or deny the same and the opposite
party is afforded an opportunity to interrogate the witness
thereon, or the interests of justice otherwise require. This
provision does not apply to admissions of a party-opponent
as defined in Rule 801(d)(2).
MRE 613(b) recognizes that a prior inconsistent
statement of a witness is admissible to impeach the
credibility of the witness. Merrow v Bofferding, 458
Mich 617, 631; 581 NW2d 696 (1998); Gilchrist v
Gilchrist, 333 Mich 275, 280; 52 NW2d 531 (1952). If
admitted, a prior inconsistent statement of a witness is
not regarded as coming within the rule excluding hear-
say, MRE 802, because it is not offered as substantive
evidence to prove the truth of the matter asserted, MRE
801(c), but is only offered to test the credibility of the
witness’s testimony in court. Merrow, 458 Mich at 631;
People v Steele, 283 Mich App 472, 487; 769 NW2d 256
(2009). But a party seeking to impeach a witness with a
prior inconsistent statement must satisfy the founda-
tional criteria provided in MRE 613(b). Barnett, 478
Mich at 165; People v Jenkins, 450 Mich 249, 256; 537
NW2d 828 (1995). One criterion for admissibility of a
prior inconsistent statement, not disputed here, is that
the witness actually made the prior statement. Merrow,
458 Mich at 631-632. Another criterion for admissibility
of a prior inconsistent statement under MRE 613 is that
the prior out-of-court statement of the witness was in
fact inconsistent with the witness’s testimony in court.
Barnett, 478 Mich at 165; Gilchrist, 333 Mich at 280.
The Michigan Rules of Evidence do not expressly
prescribe a test for inconsistency. McCormick, Evidence
(6th ed) § 34, pp 151-152 sets forth the prevailing view:
Under the more widely accepted view, any material
variance between the testimony and the previous state-
ment suffices. The pretrial statement need “only bend in a
different direction” than the trial testimony. For instance,
2012] H
OWARD V
K
OWALSKI
677
if the prior statement omits a material fact presently
testified to, which it would have been natural to mention in
the prior statement, the statement is sufficiently inconsis-
tent. The test ought to be: Could the jury reasonably find
that a witness who believed the truth of the facts testified
to would be unlikely to make a prior statement of this
tenor? [Citations omitted.]
In this case, the trial court twice—once when plain-
tiff moved to admit the affidavit during her case-in-
chief and once when counsel proffered the affidavit as
rebuttal evidence—stated its belief that Dr. Urse’s
affidavit was not inconsistent with his trial testimony. If
that were so, the affidavit would be irrelevant to the
witness’s credibility and inadmissible hearsay for any
other purpose. Consequently, if indeed there were no
inconsistency between the affidavit and Dr. Urse’s
testimony, neither the affidavit nor its contents should
have been admitted.
Nonetheless, the trial court obviously determined
that even if the court did not, a reasonable jury might
indeed perceive an inconsistency. The trial court al-
lowed plaintiff’s counsel the opportunity to cross-
examine the witness on the affidavit. The trial court
actually allowed the witness to read the affidavit to the
jury, which, of course, is the same as admitting it. People
v Rodgers, 388 Mich 513, 519; 201 NW2d 621 (1972). In
reaching the decision to admit the contents of the
affidavit by means of its being read, but not the docu-
ment itself, the trial court stated on the record its belief
that MRE 613 applied: “The [affidavit] has been used
for the extent it was able to for purposes of impeach-
ment. MRE 613 permits that and I permitted you to do
that.” Thereafter, the trial court allowed plaintiff’s
counsel to discuss the contents of the “inadmissible”
affidavit during closing argument. Finally, the trial
678 296 M
ICH
A
PP
664 [May
court actually instructed the jury regarding prior incon-
sistent statements. M Civ JI 3.15.
The only conclusion to be drawn is that the trial
court determined that although the court was not
convinced, a jury could reasonably find that the affida-
vit was in fact inconsistent with the witness’ testimony,
and the court left it for the jury to decide. In this sense,
the court’s decision was correct. But unless the affidavit
were to be deemed collateral, the court clearly erred by
refusing to admit the document itself.
The contents of the affidavit were clearly not about a
collateral issue. As the trial court itself acknowledged,
plaintiff’s entire theory of the case was premised on the
fact that the affidavit and medical records told the “true
story” and that Dr. Urse “changed his position regard-
ing what happened.”
In Osberry v Watters, 7 Mich App 258, 262; 151 NW2d
372 (1967), the Court adopted Professor Wigmore’s test
to determine what extrinsic evidence is admissible for
impeachment purposes:
The test to determine whether contradictory evidence
may be introduced is stated by Wigmore:
“Could the fact, as to which the prior self-contradiction
is predicated, have been shown in evidence for any purpose
independently of the self-contradiction?” 3 Wigmore, Evi-
dence (3d ed), § 1020, p 692, citing People v. DeFrance, 104
Mich 563 [62 NW 709 (1895)].
The facts contained in the affidavit that set forth Dr.
Urse’s activities leading up to Mrs. Johnson’s rapid
deterioration, independently of their tendency to im-
peach the witness, are relevant to the case. Not only
“could” they “have been shown in evidence,” they were
shown in evidence by both parties to the suit. The
affidavit was not collateral and therefore should have
been admitted.
2012] H
OWARD V
K
OWALSKI
679
Of course, if our ruling ended here, the failure to
admit the actual document would be harmless inas-
much as the trial court allowed the contents of the
affidavit into evidence, allowed plaintiff’s counsel to
discuss its contents during closing argument, and in-
structed the jury to consider whether the affidavit
contradicted Dr. Urse’s testimony. The more difficult
question involves the e-mail between plaintiff’s counsel
and the claims representative, Croze.
B. THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE
OF THE E-MAIL
With respect to the e-mail, the question presented is
a simple one of logical relevance. Logical relevance is
the foundation for admissibility. People v VanderVliet,
444 Mich 52, 60-61; 508 NW2d 114 (1993). Logical
relevance is defined by MRE 401 and MRE 402.
As defined by MRE 401, “relevant evidence” is evi-
dence that has “any tendency to make the existence of
any fact that is of consequence to the determination of
the action more probable or less probable than it would
be without the evidence.” MRE 402 provides: “All
relevant evidence is admissible, except as otherwise
provided by the Constitution of the United States, the
Constitution of the State of Michigan, these rules, or
other rules adopted by the Supreme Court. Evidence
which is not relevant is not admissible.”
Plaintiff sought to impeach the credibility of Dr. Urse
not only by introducing Dr. Urse’s own prior and
arguably inconsistent statement (the affidavit), but also
by introducing communications between plaintiff’s
counsel and Croze for Dr. Urse’s insurer. Plaintiff
contends that the credibility of Dr. Urse’s testimony can
only be properly judged by viewing it in context. In
effect, plaintiff argues, the e-mail explains the affida-
680 296 M
ICH
A
PP
664 [May
vit’s contents and why they are inconsistent with Dr.
Urse’s trial testimony. If Dr. Urse was aware of the
substance of the e-mail exchanged between Croze and
plaintiff’s counsel, the jury might have concluded that
the phrasing of the affidavit was a deliberate attempt to
obfuscate the central issue of the case. Similarly, even if
Dr. Urse was unaware of the e-mail exchange, if the
affidavit was nonetheless prepared by his insurer and
he signed it at his insurer’s direction, his testimony,
while honest, might nonetheless lack credibility be-
cause the witness himself was misled and therefore the
accuracy of both his affidavit and his trial testimony are
suspect.
In a trial, the credibility of a witness is almost always
relevant. People v Layher, 464 Mich 756, 761-764; 631
NW2d 281 (2001), citing with approval United States v
Abel, 469 US 45; 105 S Ct 465; 83 L Ed 2d 450 (1984).
The jury, as the finder of fact and judge of credibility,
“has historically been entitled to assess all evidence
which might bear on the accuracy and truth of a
witness’ testimony.” Abel, 469 US at 52. Moreover,
inasmuch as the questions posed to Dr. Urse arose
during cross-examination, “[t]here is ‘a general canon
that on cross-examination the range of evidence that
may be elicited for any purpose of discrediting is to be
very liberal.’ ” Wilson v Stilwill, 411 Mich 587, 599; 309
NW2d 898 (1981), quoting 3A Wigmore, Evidence
(Chadbourn rev), § 944, p 778.
Thus any evidence that Dr. Urse knew the contents
of the e-mail, or was himself misled by his insurer, is
clearly relevant and admissible to impeach his trial
testimony. On this score, we have here a classic case of
“[w]hen the relevancy of evidence depends upon the
fulfillment of a condition of fact....”MRE104(b). In
such a case, “the court shall admit [the evidence] upon,
2012] H
OWARD V
K
OWALSKI
681
or subject to, the introduction of evidence sufficient to
support a finding of the fulfillment of the condition.” Id.
The e-mail exchanged between Croze and plaintiff’s
counsel are relevant for the reasons set forth earlier,
but only if Dr. Urse was aware of the e-mail, or if not,
was kept in the dark by his insurer.
It appears from the record that the trial court found
“no evidence” that Dr. Urse knew of the e-mail. But the
court apparently erred by deciding the question under
subpart (a) of MRE 104, and not according to subpart
(b). The standard for screening evidence under subpart
(b) is quite low.
MRE 104(b) is identical to its federal counterpart. In
VanderVliet, 444 Mich at 68, our Supreme Court, in
deciding the applicable standard for MRE 104(b), spe-
cifically adopted the United States Supreme Court’s
holding in Huddleston v United States, 485 US 681; 108
S Ct 1496; 99 L Ed 2d 771 (1988). In Huddleston, the
government had charged the defendant with receiving
stolen property and attempted to introduce evidence,
pursuant to FRE 404(b), that the defendant had in the
past received stolen television sets. The defendant de-
nied ever having dealt with stolen television sets. Quot-
ing Huddleston, our Supreme Court held:
“[Q]uestions of relevance conditioned on a fact are dealt
with under Federal Rule of Evidence 104(b)....Indeter-
mining whether the Government has introduced sufficient
evidence to meet Rule 104(b), the trial court neither weighs
credibility nor makes a finding that the Government has
proved the conditional fact by a preponderance of the
evidence. The court simply examines all the evidence in the
case and decides whether the jury could reasonably find the
conditional fact—here, that the televisions were stolen—by
a preponderance of the evidence.
***
682 296 M
ICH
A
PP
664 [May
“We emphasize that in assessing the sufficiency of the
evidence under Rule 104(b), the trial court must consider
all evidence presented to the jury. ‘[I]ndividual pieces of
evidence, insufficient in themselves to prove a point, may
in cumulation prove it. The sum of an evidentiary presen-
tation may well be greater than its constituent parts.’
Bourjaily v United States, 483 US 171, 179-180 [107 S Ct
2775; 97 L Ed 2d 144] (1987).” [VanderVliet, 444 Mich at
69 n 20, quoting Huddleston, 485 US at 688-691.]
As stated, as long as some rational jury could resolve
the issue in favor of admissibility, the court must let the
jury weigh the disputed facts. Specifically, the court
must allow the jurors to assess the credibility of the
evidence presented by the parties.
The sum of the evidentiary presentation in this case
could lead a rational jury to find that Dr. Urse, either
wittingly or unwittingly, participated in an effort to
“sandbag” the plaintiff. It is impossible to ignore the
timing and the substance of the e-mail between plain-
tiff’s counsel and Croze.
As noted, plaintiff’s counsel named Dr. Urse as a
potential defendant in plaintiff’s notice of intent, MCL
600.2912b. But on July 26, 2007, counsel wrote Croze
and indicated that on the basis of his reading of the
medical records, Dr. Kowalski bore sole responsibility
for the medical accident because Dr. Kowalski failed to
summon Dr. Urse in a timely fashion. After setting
forth his understanding of the facts of the case, an
understanding he gleaned from the medical records,
plaintiff’s counsel indicated that he was planning to file
a lawsuit only against Dr. Kowalski, assuming that his
information was accurate. Counsel stated in his letter
that he needed “some kind of verification perhaps in the
form of an affidavit by Dr. Urse” that would confirm his
understanding of the facts and that counsel “could draft
such an affidavit.” (Emphasis added.)
2012] H
OWARD V
K
OWALSKI
683
Dr. Urse testified that he was shown the plaintiff’s
notice of intent, together with the proposed affidavit by
a “legal representative.” He then signed the affidavit.
On August 15, 2007, Croze sent the affidavit to
plaintiff’s counsel with the disarming note stating, “I
am confident that this document will meet your needs as
you assess your intentions for pursuit of the case.”
(Emphasis added.)
When viewed together, the sum of this evidence is
sufficient to allow a reasonable jury to conclude that Dr.
Urse’s trial testimony differed markedly from his affi-
davit.
C. THE TRIAL COURT’S ERRORS WERE NOT HARMLESS
Because the improperly excluded evidence may have
affected the jury’s determination regarding the credibil-
ity of Dr. Urse, a critical witness, the error cannot be
considered harmless. See Powell v St John Hosp, 241
Mich App 64, 72-75; 614 NW2d 666 (2000).
We reverse and remand for further proceedings con-
sistent with this opinion. We do not retain jurisdiction.
Plaintiff may tax costs under MCR 7.219 as the prevail-
ing party.
M
ARKEY
,P.J., and S
ERVITTO
and R
ONAYNE
K
RAUSE
,JJ.,
concurred.
684 296 M
ICH
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664 [May
BUHALIS v TRINITY CONTINUING CARE SERVICES
Docket Nos. 296535 and 300163. Submitted November 9, 2011, at
Detroit. Decided May 29, 2012, at 9:10 a.m. Leave to appeal denied,
493 Mich 901.
Mary Buhalis brought an ordinary negligence and premises liability
tort action in the Macomb Circuit Court against Trinity Continu-
ing Care Services for injuries suffered when she slipped and fell on
ice after parking her tricycle in the patio area of a nursing home
owned by Trinity that was adjacent to its main covered walkway
and entrance. The court, Peter J. Maceroni, J., denied Trinity’s
second motion for summary disposition on Buhalis’s first amended
complaint in which she sought to hold Trinity liable for ordinary
negligence. Trinity sought leave to appeal the circuit court order
denying its second motion for summary disposition, which the
Court of Appeals granted in an unpublished order, entered June 4,
2010 (Docket No. 296535). In the same docket number, Buhalis
cross-appealed the circuit court order dismissing her premises
liability complaint on the basis that the danger was open and
obvious. Trinity also sought leave to appeal the circuit court order
that denied its third motion for summary disposition on the basis
that there was an issue of fact regarding Buhalis’s alleged violation
of MCL 125.471. The Court of Appeals granted leave to appeal in
an unpublished order, entered May 18, 2011 (Docket No. 300163).
The Court of Appeals consolidated the appeals.
The Court of Appeals held:
1. The gravamen of an action is determined by reading the
complaint as a whole and looking beyond the mere procedural
labels to determine the exact nature of the claim. Accordingly,
courts are not bound by the labels that parties attach to their
claims. Michigan caselaw distinguishes between claims arising
from ordinary negligence and claims premised on a condition of
the land. For claims premised on a condition of the land, liability
arises solely from the defendant’s duty as an owner, possessor, or
occupier of the land. The action sounds in premises liability rather
than ordinary negligence if the plaintiff’s injury arose from an
allegedly dangerous condition on the land, even when the plaintiff
alleges that the premises possessor created the condition giving
rise to the plaintiff’s injury. The circuit court erred by denying
2012] B
UHALIS V
T
RINITY
C
ONTINUING
C
ARE
685
Trinity’s motion for summary disposition of Buhalis’s ordinary
negligence claim because the action actually asserts a common-law
premises liability claim; Buhalis’s assertion that an employee
caused the dangerous condition on the patio did not transform the
claim into one for ordinary negligence.
2. The following elements of negligence must be proven in a
premises liability action: (1) the defendant owed the plaintiff a
duty, (2) the defendant breached the duty, (3) the breach was the
proximate cause of the plaintiff’s injury, and (4) the plaintiff
suffered damages. A possessor of land is not an absolute insurer of
an invitee’s safety. An owner of land generally owes a duty to an
invitee to exercise reasonable care to protect the invitee from an
unreasonable risk of harm caused by a dangerous condition on the
land. In the absence of special aspects, this duty does not extend to
open and obvious dangers. Only those special aspects that give rise
to a uniquely high likelihood of harm or severity of harm if the risk
is not avoided will remove that condition from the open-and-
obvious-danger doctrine. The open-and-obvious-danger doctrine is
not an exception to this general duty but is an integral part of the
definition of that duty.
3. When dangers are known to the invitee or are so obvious
that the invitee might reasonably be expected to discover them, an
invitor owes no duty to protect or warn the invitee unless the
invitor should anticipate the harm despite knowledge of it on
behalf of the invitee. The hazard presented by snow and ice is
generally open and obvious and the landowner has no duty to warn
of or remove the hazard. If a condition creates a risk of harm only
because the invitee does not discover the condition or realize its
danger, then the open-and-obvious-danger doctrine will cut off
liability if the invitee should have discovered the condition and
realized its danger. Recovery is not allowed if the condition is so
common that the possibility of its presence is anticipated by
prudent persons. The circuit court properly dismissed Buhalis’s
premises liability claim. Buhalis failed to establish a genuine issue
of material fact with regard to whether the ice was open and
obvious because she knew of the danger of ice on the patio and the
presence of other indicia of a potentially icy condition would have
alerted an average user of ordinary intelligence to discover the
danger on casual inspection. Because Trinity provided a clear
means of ingress and egress and Buhalis strayed off this path onto
the patio that was obviously not reserved for that purpose, Trinity
did not breach its duty of reasonable care. Reasonable minds could
not disagree that Trinity exercised reasonable care because the
686 296 M
ICH
A
PP
685 [May
main walkways and sidewalks were clear and it was not unreason-
able to not clear the ice or snow from the patios.
4. Trinity cannot be liable under MCL 600.5839 for an alleged
defect in the design or construction of the roof of the building and
the awning because it was unrebutted that Trinity neither de-
signed nor constructed them.
5. Under Mich Admin Code, R 325.21304(2), nursing homes
are required to maintain the premises in a safe and sanitary
condition and in a manner consistent with the public health and
welfare. Buhalis abandoned her claim under Rule 325.21304(2)
because she failed to provide legal authority for her position that
this regulation provides a private cause of action.
6. Under MCL 125.471 of the Housing Law of Michigan, MCL
125.401 et seq., an owner has an obligation to maintain the roof of
a dwelling and to appropriately drain the rain water. The circuit
court erred by failing to dismiss Buhalis’s claim premised on a
violation of MCL 125.471. Assuming, without deciding, that MCL
125.471 applies to Trinity’s facility and to a guest of an occupant,
the statute does not provide an independent cause of action.
Although the statute imposes an obligation to maintain a dwell-
ing’s roof and to drain rain water, the duty is imposed to avoid
dampness in the walls as well as insanitary conditions. The statute
does not impose a duty to remove snow and ice on the grounds
outside the dwelling.
7. The circuit did not err by dismissing Buhalis’s claim pre-
mised on MCL 554.139(1), which requires a landlord to ensure
that the premises and all common areas are fit for their intended
use. The duty imposed by MCL 554.139(1) does not extend to the
social guests of tenants.
Affirmed in part, reversed in part, and remanded for entry of
summary disposition in favor of Trinity on all issues in both
dockets.
M. J. K
ELLY
,P.J., concurring in part in the result only and
dissenting in part, agreed that the circuit court erred by denying
Trinity’s motion to dismiss Buhalis’s ordinary negligence claim
and that the circuit court properly dismissed Buhalis’s statutory
and regulatory claims. Judge K
ELLY
would have reversed the
circuit court order granting Trinity summary disposition on Bu-
halis’s premises liability claim because there was a question of fact
regarding whether Trinity had a duty to warn or protect her from
the hazards of snow and ice on the patio. Judge K
ELLY
would have
found that the ice was not open and obvious and there was a
2012] B
UHALIS V
T
RINITY
C
ONTINUING
C
ARE
687
question of fact regarding whether Buhalis was an invitee or
trespasser at the time she slipped and fell on the patio.
1. N
EGLIGENCE —
P
REMISES
L
IABILITY —
D
ANGEROUS
C
ONDITION OF THE
L
AND
.
Michigan caselaw distinguishes between claims arising from ordi-
nary negligence and claims premised on a condition of the land; for
claims premised on a condition of the land, liability arises solely
from the defendant’s duty as an owner, possessor, or occupier of
the land; an action sounds in premises liability rather than
ordinary negligence if the plaintiff’s injury arose from an allegedly
dangerous condition on the land, even when the plaintiff alleges
that the premises possessor created the condition giving rise to the
plaintiff’s injury.
2. N
EGLIGENCE —
P
REMISES
L
IABILITY —
O
PEN-AND
-O
BVIOUS
-D
ANGER
D
OCTRINE —
S
PECIAL
A
SPECTS
.
A possessor of land is not an absolute insurer of an invitee’s safety;
an owner of land generally owes a duty to an invitee to exercise
reasonable care to protect the invitee from an unreasonable risk of
harm caused by a dangerous condition on the land; in the absence
of special aspects, this duty does not extend to open and obvious
dangers; only those special aspects that give rise to a uniquely high
likelihood of harm or severity of harm if the risk is not avoided will
remove that condition from the open-and-obvious-danger doctrine.
3. N
EGLIGENCE —
P
REMISES
L
IABILITY —
O
PEN-AND
-O
BVIOUS
-D
ANGER
D
OCTRINE —
S
NOW AND
I
CE —
C
LEAR
M
EANS OF
I
NGRESS AND
E
GRESS
.
When dangers are known to the invitee or are so obvious that the
invitee might reasonably be expected to discover them, an invitor
owes no duty to protect or warn the invitee unless he should
anticipate the harm despite knowledge of it on behalf of the
invitee; the hazards presented by snow and ice are generally open
and obvious and the landowner has no duty to warn of or remove
the hazard; if a condition creates a risk of harm only because the
invitee does not discover the condition or realize its danger, then
the open-and-obvious-danger doctrine will cut off liability if the
invitee should have discovered the condition and realized its
danger; recovery is not allowed if the condition is so common that
the possibility of its presence is anticipated by prudent persons; a
landowner’s duty of reasonable care is not breached when a
premises possessor provides a clear means of ingress and egress
and the invitee strays off the normal pathway onto an area that is
obviously not reserved for that purpose.
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Cooper Law Firm, PLLC (by John J. Cooper), for
Mary Buhalis.
Kitch Drutchas Wagner Valitutti & Sherbrook (by
Susan Healy Zitterman and John P. Hessberg) for
Trinity Continuing Care Services.
Before: M. J. K
ELLY
,P.J., and S
AAD
and O’C
ONNELL
,JJ.
S
AAD
,J.
I. NATURE OF THE CASE
Under Michigan law, a premises possessor generally
owes no duty to an invitee to warn of or protect from
open and obvious dangers, such as ice and snow, absent
special aspects. We hold that, for the reasons set forth
below, the icy condition that plaintiff encountered was
open and obvious. We also hold that, as a matter of law,
if a premises possessor provides a clear means of ingress
and egress and an invitee strays off the normal pathway
onto an area that is obviously not reserved for that
purpose, the landowner has not breached its duty of
“reasonable care.” When a pathway for normal access is
made available to an invitee and the dangers of straying
off the clear path are, as here, open and obvious, the
premise possessor owes no duty to warn or protect such
an invitee.
II. FACTS
In January 2008, plaintiff, Mary Buhalis, slipped
and fell on ice on a patio near the front entrance of a
building owned by defendant, Trinity Continuing
Care Services. On the morning of the incident, Ms.
Buhalis rode a large, three-wheeled tricycle to the
nursing home to donate a bag of clothes. She parked her
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trike on the uncleared and unsalted patio adjacent to
the main entrance walkway, which was free of ice and
snow and covered by a large awning. After she dis-
mounted her trike, Ms. Buhalis retrieved the bag of
clothes from the basket on the trike and set it on the
ground. She then picked up the bag and, as she started
to walk toward the building, she slipped and fell. Ms.
Buhalis offered conflicting testimony about the precise
location of her fall, but receptionist Marlene Calcaterra
testified that she saw Ms. Buhalis attempting to get up
from the ground right outside her window, which is
directly in front of the patio. At oral argument on
appeal, plaintiff’s counsel agreed that Ms. Buhalis fell
on the patio and not on the cleared walkway leading to
the building.
Joshua Shock, the maintenance technician for the
nursing home, testified that part of his job is to
remove snow and place salt on the walkways and
entrance areas of the building. Mr. Shock testified
that the sidewalks and main entrance walkway were
clear of ice and snow when Ms. Buhalis fell. He
further testified that he never salted or removed ice
from the patios and that generally they were not
maintained during the winter months. According to
Mr. Shock, the large awning over the main walkway
“performed as designed, in directing rain and melting
snow and ice away from the covered walkway and
entrance to the building, and onto the uncovered
cement patio areas adjacent to each side of the
awning.” Mr. Shock recalled that on the day Ms.
Buhalis fell, there was visible ice on the patio in the
area where plaintiff slipped. According to Ms. Buha-
lis, she was aware that ice and snow could accumulate
on the patio, that the awning caused water to fall
onto the patio where it could freeze and thaw, and
that Trinity had posted a sign that cautioned, “SIDE-
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WALKS, PARKING LOTS AND COMMON AREAS
MAY BE WET, SNOWCOVERED [sic] AND SLIP-
PERY,” but Ms. Buhalis maintained that she did not
see any ice on the patio before she slipped. However,
Ms. Buhalis recalled that after she fell she saw that
she had slipped on a patch of ice.
Ms. Buhalis sued Trinity, alleging various claims of
liability. In Docket No. 296535, Trinity appeals by leave
granted
1
the trial court’s order that denied its second
motion for summary disposition. Ms. Buhalis also filed a
cross-appeal in Docket No. 296535. In Docket No. 300163,
Trinity appeals by leave granted
2
the trial court’s order
that denied its third motion for summary disposition.
The Court of Appeals consolidated the appeals. For the
reasons set forth below, we affirm in part, reverse in
part, and remand for entry of summary disposition for
Trinity in Docket Nos. 296535 and 300163.
III. ORDINARY NEGLIGENCE
We agree with Trinity that the trial court erred when
it denied its motion for summary disposition on Ms.
Buhalis’s first amended complaint, in which she as-
serted that Trinity should be held liable for ordinary
negligence. This Court reviews de novo a trial court’s
ruling on a motion for summary disposition. Ligon v
Detroit, 276 Mich App 120, 124; 739 NW2d 900 (2007).
Courts are not bound by the labels that parties attach
to their claims. Manning v Amerman, 229 Mich App 608,
613; 582 NW2d 539 (1998). Indeed, “[i]t is well settled
that the gravamen of an action is determined by reading
the complaint as a whole, and by looking beyond mere
1
Buhalis v Trinity Continuing Care Servs, unpublished order of the
Court of Appeals, entered June 4, 2010 (Docket No. 296535).
2
Buhalis v Trinity Continuing Care Servs, unpublished order of the
Court of Appeals, entered May 18, 2011 (Docket No. 300163).
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procedural labels to determine the exact nature of the
claim.” Adams v Adams (On Reconsideration), 276 Mich
App 704, 710-711; 742 NW2d 399 (2007). Michigan law
distinguishes between claims arising from ordinary negli-
gence and claims premised on a condition of the land. See
James v Alberts, 464 Mich 12, 18-19; 626 NW2d 158
(2001). In the latter case, liability arises solely from the
defendant’s duty as an owner, possessor, or occupier of
land. Laier v Kitchen, 266 Mich App 482, 493; 702 NW2d
199 (2005). If the plaintiff’s injury arose from an allegedly
dangerous condition on the land, the action sounds in
premises liability rather than ordinary negligence; this is
true even when the plaintiff alleges that the premises
possessor created the condition giving rise to the plain-
tiff’s injury. James, 464 Mich at 18-19.
Here, Ms. Buhalis alleged that she was injured when
she slipped on ice and fell; that is, she alleged that she
was injured when she encountered a dangerous condi-
tion on Trinity’s premises. Though she asserted that
Trinity’s employees caused the dangerous condition at
issue, this allegation does not transform the claim into
one for ordinary negligence. Id. Rather, she clearly
pleaded a claim founded on premises liability. There-
fore, Ms. Buhalis’s negligence claim is a common-law
premises liability claim and, to the extent that she
purported to allege an ordinary negligence claim in
addition to her premises liability claim, the trial court
should have dismissed that claim.
IV. OPEN AND OBVIOUS DANGER AND DUTY OF REASONABLE CARE
On cross-appeal in Docket No. 296535, Ms. Buhalis
argues that the trial court erred by granting Trinity’s
first motion for summary disposition regarding plain-
tiff’s premises liability claim because Ms. Buhalis con-
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tends the ice on which she fell was not open and
obvious.
3
“In a premises liability action, a plaintiff must prove
the elements of negligence: (1) the defendant owed the
plaintiff a duty, (2) the defendant breached that duty,
(3) the breach was the proximate cause of the plaintiff’s
injury, and (4) the plaintiff suffered damages.” Benton v
Dart Props Inc, 270 Mich App 437, 440; 715 NW2d 335
(2006). “[T]he existence of a legal duty is a question of
law for the court to decide.” Anderson v Wiegand, 223
Mich App 549, 554; 567 NW2d 452 (1997). A “possessor
of land is not an absolute insurer of the safety of an
invitee.” Id. Generally, an owner of land “owes a duty to
an invitee to exercise reasonable care to protect the
invitee from an unreasonable risk of harm caused by a
dangerous condition on the land.” Lugo v Ameritech
Corp, Inc, 464 Mich 512, 516; 629 NW2d 384 (2001).
Absent special aspects, this duty does not extend to
open and obvious dangers. Id. at 516-517. Moreover,
“the open and obvious doctrine should not be viewed as
some type of ‘exception’ to the duty generally owed
invitees, but rather as an integral part of the definition
of that duty.” Id. at 516.
“[W]here the dangers are known to the invitee or are
so obvious that the invitee might reasonably be ex-
pected to discover them, an invitor owes no duty to
protect or warn the invitee unless he should anticipate
the harm despite knowledge of it on behalf of the
invitee.” Riddle v McLouth Steel Prods Corp, 440 Mich
85, 96; 485 NW2d 676 (1992). Indeed, there is an
overriding public policy that people should “take rea-
sonable care for their own safety” and this precludes
3
The trial court subsequently set aside its order granting defendant’s
first motion for summary disposition, but on different grounds. The trial
court did not alter its decision regarding this issue.
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the imposition of a duty on a landowner to take extraor-
dinary measures to warn or keep people safe unless the
risk is unreasonable. Bertrand v Alan Ford, Inc, 449
Mich 606, 616-617; 537 NW2d 185 (1995).
“Generally, the hazard presented by snow and ice is
open and obvious, and the landowner has no duty to
warn of or remove the hazard.” Royce v Chatwell Club
Apartments, 276 Mich App 389, 392; 740 NW2d 547
(2007). Here, Ms. Buhalis contends that the ice was not
open and obvious because it was clear and she did not
see it before she fell. However, if a “condition creates a
risk of harm only because the invitee does not discover
the condition or realize its danger, then the open and
obvious doctrine will cut off liability if the invitee
should have discovered the condition and realized its
danger.” Bertrand, 449 Mich at 611. A plaintiff may not
recover if the condition is “ ‘so common that the possi-
bility of [its] presence is anticipated by prudent per-
sons.’ ” Id. at 615 (citation omitted).
In Slaughter v Blarney Castle Oil Co, 281 Mich App
474, 479; 760 NW2d 287 (2008), this Court explained:
“When applying the open and obvious danger doctrine
to conditions involving the natural accumulation of ice
and snow, our courts have progressively imputed knowl-
edge regarding the existence of a condition as should
reasonably be gleaned from all of the senses as well as
one’s common knowledge of weather hazards that occur
in Michigan during the winter months.” Thus, the
question is whether the ice was visible on casual inspec-
tion or whether there were other indicia of a potentially
hazardous condition that would impute knowledge on
the part of Ms. Buhalis. Id. at 483.
Here, Ms. Buhalis failed to establish a genuine issue of
material fact with regard to whether the ice was open and
obvious because, even if the ice could be fairly character-
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ized as clear, Ms. Buhalis knew of the danger of ice on the
patio and other indicia of a potentially icy condition would
have alerted an average user of ordinary intelligence to
discover the danger on casual inspection.
Evidence showed that it rained and snowed the day
before plaintiff’s fall. Though temperatures rose during
the night before the incident, Ms. Buhalis admitted that
after she fell she could see the patch of ice on which she
slipped, and Mr. Shock testified that when he went to
move Ms. Buhalis’s trike after her fall the ice on the
patio was evident. Further, at the time of her fall, Ms.
Buhalis had lived through 85 Michigan winters. She
testified that she knew that even when sidewalks are
clear, there is danger of “black ice” on the ground. Ms.
Buhalis also testified that she knew that water fell from
the awning onto the patio and that ice may develop
from a freeze-thaw cycle. She further stated that she
had chosen to park her trike away from the awning
because she knew there could be ice present from water
runoff. Ms. Buhalis was also specifically aware of the
caution sign warning that the common areas could be
wet, snow-covered, and slippery, but she knowingly
chose not to heed the warning and, thus, voluntarily
exposed herself to the hazard. Again, while a premises
possessor owes a duty to invitees to exercise reasonable
care to protect the invitees from an unreasonable risk of
harm, invitees have a concurrent and important duty to
“take reasonable care for their own safety.” Bertrand,
449 Mich at 616-617. For these reasons, the danger of
ice was actually known to Ms. Buhalis and a reasonably
prudent person in Ms. Buhalis’s position would have
foreseen the danger of slipping on ice. Riddle, 440 Mich
at 96.
4
4
Moreover, no special aspects existed that would have differentiated
the icy condition from a typical open and obvious risk. “[O]nly those
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We further observe that there is no question of fact
with regard to whether Trinity exercised reasonable
care to protect invitees from the dangers of ice and
snow. The degree of care required of a premises pos-
sessor is to “take reasonable measures within a reason-
able period of time after the accumulation of snow and
ice to diminish the hazard of injury to [the plaintiff, but]
only if there is some special aspect that makes such
accumulation unreasonably dangerous.” Mann v Shus-
teric Enterprises, Inc, 470 Mich 320, 332; 683 NW2d 573
(2004) (quotation marks omitted). See also Benton, 270
Mich App at 443n2(“Mann established that there is no
general duty of inviters to take reasonable measures to
remove snow and ice for the benefit of invitees unless
the accumulation meets the [Mann] majority’s high
standard of creating an unreasonable risk of danger.”).
special aspects that give rise to a uniquely high likelihood of harm or
severity of harm if the risk is not avoided will serve to remove that
condition from the open and obvious danger doctrine.” Lugo, 464 Mich at
519. Thus, for example, an unguarded 30-foot-deep pit in a parking lot
would present such a substantial risk of death or severe injury that it
would be unreasonably dangerous to maintain the condition despite its
obvious nature. Id. at 518. Also, an effectively unavoidable condition,
such as the presence of standing water on the floor of the only exit in a
commercial building, would present a special aspect to differentiate such
a hazard from a typical open and obvious risk. Id. However, “[n]either a
common condition nor an avoidable condition is uniquely dangerous.”
Kenny v Kaatz Funeral Home, Inc, 264 Mich App 99, 117; 689 NW2d 737
(2004) (G
RIFFIN
, J., dissenting), rev’d 472 Mich 929 (2005).
Here, the patio was clearly avoidable because Ms. Buhalis was not
required to use it and, again, the main walkway to the front entrance was
clear. Evidence also showed that a side entrance was available for visitors
to use. Moreover, the presence of ice on the patio did not present such a
substantial risk of death or severe injury that it was unreasonably
dangerous to maintain the condition. Corey v Davenport College of
Business (On Remand), 251 Mich App 1, 7; 649 NW2d 392 (2002); Joyce
v Rubin, 249 Mich App 231, 243; 642 NW2d 360 (2002). Accordingly,
plaintiff has failed to establish that any special aspect existed that
rendered the icy condition effectively unavoidable or unreasonably dan-
gerous.
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In other words, it is not Trinity’s duty to guarantee that
ice will never form on its premises, but it does have a
duty to ensure that invitees are not unnecessarily
exposed to an unreasonable danger.
Reasonable minds could not disagree that Trinity
exercised “reasonable care.” Trinity provided a size-
able, fully cleared walkway to its main entrance, cov-
ered by a large awning to protect the walkway from the
elements. Mr. Shock also testified that all sidewalks
surrounding the building were clear and free of ice and
snow. It was not unreasonable for Trinity not to clear
ice or snow from its seasonal patios. Again, during the
winter, a premises possessor cannot be expected to
remove snow and ice from every portion of its premises,
including areas adjacent to a cleared walkway, and
Michigan caselaw makes it clear that such extraordi-
nary measures are not required. Mann, 470 Mich at
332; Benton, 270 Mich App at 443 n 2. Further, Trinity
posted a caution sign warning that the area may be
slippery. Trinity had no duty to clear every surface on
which Ms. Buhalis, individually, may have chosen to
park her trike, whenever she might visit, in whatever
type of weather. And, there is no evidence that the
patios were used by invitees throughout the winter.
That Ms. Buhalis chose to stray from the safe means of
ingress to and egress from the building does not impose
liability on Trinity, when Trinity clearly complied with
its duty of care to invitees.
V. DESIGN AND CONSTRUCTION
Trinity argues that Ms. Buhalis’s claims that it
defectively designed and constructed the roof of the
building and the awning—even if those claims are
distinct from the premises liability claim—are barred
under MCL 600.5839. That statute protects “any con-
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tractor making the improvement.” MCL 600.5839(1).
Because there is no evidence that Trinity designed or
constructed the roof or the awning, that statute does
not apply. For the same reason, Ms. Buhalis’s design
and construction claims fail. Trinity presented unrebut-
ted evidence that it did not design or construct the
improvements on the premises. In the absence of evi-
dence that Trinity designed or constructed the improve-
ments, Trinity cannot be liable for a defect in their
design or construction. See MCR 2.116(C)(10).
VI. REGULATORY AND STATUTORY CLAIMS
We also reject Ms. Buhalis’s claim that she has a
cause of action under Mich Admin Code, R
325.21304(2), which requires nursing homes to main-
tain the premises in “a safe and sanitary condition and
in a manner consistent with the public health and
welfare.” Ms. Buhalis presents no argument or author-
ity that this regulation provides a private cause of
action. See Lash v Traverse City, 479 Mich 180, 192-
193; 735 NW2d 628 (2007) (setting forth the test for
determining when a private right of action for damages
can be inferred from a statute). And this Court will not
search for authority to support or reject her position.
See Flint City Council v Michigan, 253 Mich App 378,
393 n 2; 655 NW2d 604 (2002). Therefore, we hold that
Ms. Buhalis failed to establish that she had a viable
claim under that regulation.
Further, were we to assume (without deciding) that
MCL 125.471 applies to Trinity’s facility and to a
guest of an occupant, see MCL 125.401 (applying the
housing law to certain classes of municipalities) and
MCL 125.536 (stating that an occupant has a cause of
action under the housing law), we hold that MCL
125.471 does not provide an independent cause of
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action under the facts of this case. Although the
statute imposes an obligation to maintain the roof of
a dwelling and to drain rain water, it specifically
provides that the duty is imposed to “avoid dampness
in the walls and ceilings and insanitary conditions.”
Id. That is, it plainly does not impose a duty to
remove snow and ice on the grounds outside the
dwelling. And Ms. Buhalis did not otherwise allege
that her injuries resulted from a failure to maintain
the dwelling in good repair. See Morningstar v Strich,
326 Mich 541, 545; 40 NW2d 719 (1950) (holding
landlord liable for injuries to tenant’s child when
injured by radiator that landlord had prior knowledge
was defective). Accordingly, under these facts, the
trial court should have dismissed Ms. Buhalis’s claim
to the extent that it relied on MCL 125.471.
There is also no merit to Ms. Buhalis’s argument that
the trial court erred when it dismissed her claim pre-
mised on the duty imposed on landlords under MCL
554.139(1). Our Supreme Court has held that MCL
554.139(1) does not apply to social guests of a tenant.
See Mullen v Zerfas, 480 Mich 989, 990; 742 NW2d 114
(2007). Accordingly, MCL 554.139(1) does not apply.
VII. CONCLUSION
For the above reasons, the trial court should have
granted summary disposition to Trinity on all of Ms.
Buhalis’s claims. In light of our resolution of these
issues, we need not address the parties’ remaining
arguments.
Affirmed in part, reversed in part, and remanded for
entry of summary disposition for defendant in Docket
Nos. 296535 and 300163. We do not retain jurisdiction.
O’C
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, J., concurred with S
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,J.
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M. J. K
ELLY
,P.J. (dissenting). Although I do not join
its analysis, I concur with the majority’s conclusions
with regard to plaintiff Mary Buhalis’s ordinary negli-
gence claim as well as her statutory and regulatory
claims. I must dissent, however, from the majority’s
decision to disregard settled premises liability law gov-
erning the duties owed by a premises possessor to his or
her invitees. In a departure from Michigan’s common
law, the majority holds that—as a matter of law—a
premises possessor owes no duty to diminish the hazard
of ice and snow from its property beyond clearing a
single path to and from its main entrance. For the first
time in Michigan’s jurisprudence, a premises possessor
will have no duty to protect an invitee from a particular
class of hazards; hazards that the premises possessor
knows about, but that the invitee might not know or
have reason to know about—that is, for the first time an
invitee will be relegated to the legal status of a tres-
passer while in an area of a defendant’s premises where
he or she has not trespassed and where he or she is still,
for all other purposes, an invitee. To this novel propo-
sition, I cannot subscribe.
I conclude that Buhalis presented evidence that
established a question of fact as to whether defendant,
Trinity Continuing Care Services, impliedly invited her
to use the patio to park her tricycle. Accordingly, she
established a question of fact as to whether Trinity had
a duty to clear the patio for her, as its invitee, and
breached that duty. She also presented evidence from
which a reasonable jury could have concluded that the
ice at issue was not open and obvious. Because a jury
had to resolve these factual questions, the trial court
erred when it dismissed Buhalis’s premises liability
claim. I would reverse and remand for a trial on the
merits.
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I. STANDARD OF REVIEW
This Court reviews de novo a trial court’s decision to
dismiss a claim under MCR 2.116(C)(10). Barnard Mfg
Co, Inc v Gates Performance Engineering, Inc, 285 Mich
App 362, 369; 775 NW2d 618 (2009).
II. PREMISES LIABILITY
A. THE DUTY TO PROTECT INVITEES USING THE PATIO
On appeal, Trinity argues that it owed no duty to
keep ice and snow from the patio because the patio was
closed for the winter. The duty that a premises pos-
sessor owes to persons visiting his or her property is
inextricably intertwined with the visitor’s legal status
while visiting the premises. Stitt v Holland Abundant
Life Fellowship, 462 Mich 591, 596; 614 NW2d 88
(2000). A premises possessor owes the highest duty to
those persons that visit his or her property as invitees:
A possessor of land is subject to liability for physical
harm caused to his invitees by a condition on the land if the
owner: (a) knows of, or by the exercise of reasonable care
would discover, the condition and should realize that the
condition involves an unreasonable risk of harm to such
invitees; (b) should expect that invitees will not discover or
realize the danger, or will fail to protect themselves against
it; and (c) fails to exercise reasonable care to protect
invitees against the danger. [Id. at 597, citing Quinlivan v
Great Atlantic & Pacific Tea Co, Inc, 395 Mich 244, 258;
235 NW2d 732 (1975), citing 2 Restatement Torts, 2d,
§ 343, pp 215-216.]
Typically, whether a premises possessor had a duty
cognizable at law is a question of law to be decided by
the courts. See Riddle v McLouth Steel Prod Corp, 440
Mich 85, 95; 485 NW2d 676 (1992) (noting that the trial
court must decide the threshold issue of duty of care in
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a negligence action). However, “if there is evidence from
which invitee status might be inferred, it is a question
for the jury.” Stitt, 462 Mich at 595; see also Bertrand v
Alan Ford, Inc, 449 Mich 606, 617; 537 NW2d 185
(1995).
In this case, Buhalis, who was 86, testified that she
liked to visit friends at Sanctuary at the Abbey, a
nursing home owned and operated by Trinity. She said
that she rode her three-wheeled cycle to the Abbey on
the day at issue to deliver a bag of clothing for patients
or friends. Therefore, there was evidence from which a
reasonable jury could conclude that Buhalis was an
invitee to those parts of the premises that visitors
typically use. See Stanley v Town Square Coop, 203
Mich App 143, 147-148; 512 NW2d 51 (1993) (holding
that a tenant’s guests are invitees of the landlord
because the landlord derives a pecuniary benefit from
the consideration paid by the tenants in exchange for
the right to invite guests); see also 2 Restatement
Torts, 2d, § 332, comment g, p 180 (noting that those
who “go to a hotel to pay social calls upon the guests or
to a railway station to meet passengers or bid them
farewell, are business visitors, since it is part of the
business of the hotelkeeper and railway to afford the
guest and passengers such conveniences”). But, as our
Supreme Court has recognized, a visitor can lose his or
her invitee status if he or she moves from an area open
to invitees into an area that is not open to invitees. See,
e.g., MuthvWPLahey’s, Inc, 338 Mich 513, 517-518; 61
NW2d 619 (1953) (holding that, although the plaintiff
proceeded to go into the store’s backroom to look for
shoes, it was undisputed that the store’s clerk had
instructed her to do so and, as such, the plaintiff was
still an invitee, not a mere licensee). Thus, if the patio
was closed for the winter, Buhalis might not have been
an invitee when she used the patio. Nevertheless, as our
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Supreme Court explained approximately 80 years ago in
Nezworski v Mazanec, 301 Mich 43; 2 NW2d 912 (1942),
a visitor’s status is a matter for the jury if there is
evidence from which it could find that the visitor
reasonably understood that he or she had the right to
use the area at issue.
In Nezworski, the plaintiff had gone to the defen-
dant’s restaurant for a Christmas party. Id. at 51. The
restaurant had two rooms, a larger room in the front
and a smaller room in the rear. Id. at 48-49. There was
a door in the rear room that led out to a narrow cement
platform, which had been enclosed. On the east end of
the platform there was another door that led out to an
alley and on the west end there was a flight of stairs
that led to the basement. Id. The plaintiff was using the
rear room when she decided to get some fresh air and
left through the rear door leading to the cement plat-
form. As she stepped through the door she lost her
balance and fell down the stairs. Id. at 51-52.
On appeal, the defendant argued that it owed the
plaintiff no duty to warn or protect her because when
the plaintiff went “through the doorway in the rear
room and upon the cement platform leading to the
alley,” she became a trespasser. Id. at 58. In analyzing
the issue, our Supreme Court explained that a premises
possessor’s duty can arise from an implied invitation to
use the area at issue:
“An implied invitation is one which is held to be ex-
tended by reason of the owner or occupant doing something
or permitting something to be done which fairly indicates
to the person entering that his entry and use of the
property is consistent with the intentions and purposes of
the owner or occupant, and leads him to believe that the
use is in accordance with the design for which the place is
adapted and allowed to be used in mutuality of interest.”
[Id. at 59, quoting 45 CJ, Negligence, § 220, pp 809-810.]
2012] B
UHALIS V
T
RINITY
C
ONTINUING
C
ARE
703
D
ISSENTING
O
PINION BY
M. J. K
ELLY
,P.J.
The Court noted that there was evidence that “other
members of the party were using the rear room” and
that the “door leading from such room onto the plat-
form and to the alley was not locked and was open at
least a part of the time during the evening.” Nezworski,
301 Mich at 59. There was also evidence that, despite
the defendant’s denials, he must have been aware that
his guests were using the doorway and platform as an
exit to the alley. Id. The Court explained that the
“circumstances were such that [the] plaintiff could
reasonably presume that she had the same right as
others to use the door, platform, and alley.” Id. Accord-
ingly, there was “testimony from which the jury could
reasonably find that [the] plaintiff, when using the
doorway and platform leading to the alley, was an
invitee, and not a trespasser.” Id. at 60. Because the
plaintiff was an invitee when she entered onto the
platform, the defendant had the requisite duty to warn
or otherwise protect her from the hidden danger posed
by the platform’s condition. Id. at 60-61.
In this case, Buhalis testified that she had ridden her
tricycle to the Abbey before and parked it on the patio
near the entrance. There was also evidence that the
Abbey’s employees had seen her do so in the past.
Indeed, she parked her tricycle in front of the Abbey’s
office window. There was also no evidence that the patio
was actually or constructively closed for the winter;
there was no sign or barrier to suggest that the patio
was closed and there was no evidence that anyone from
the Abbey had told her that she could not use the patio.
In addition, when asked whether he salted the patio
area, the Abbey’s maintenance man, Joshua Shock,
answered: “No, we never did that, unless—if we have
extra time or we weren’t really busy that day, then
maybe, but never.” This evidence permits an inference
that Buhalis had used the patio with the knowledge and
704 296 M
ICH
A
PP
685 [May
D
ISSENTING
O
PINION BY
M. J. K
ELLY
,P.J.
implied consent of the Abbey’s staff. Shock’s testimony
further established that the Abbey’s maintenance staff
would, if they had time, clear the patio—presumably for
use by the Abbey’s residents and visitors. Accordingly,
there was evidence from which a jury could find that
Buhalis’s use of the patio area—even during winter—
was “consistent with the intentions and purposes of the
owner or occupant,” so that Buhalis reasonably be-
lieved that her “use [was] in accordance with the design
for which the place is adapted and allowed to be used in
mutuality of interest.” Id. at 59 (quotation marks and
citation omitted). For that reason, there was a question
of fact as to whether Trinity had a duty to warn or
protect Buhalis from the hazards posed by snow and ice
on the patio. Stitt, 462 Mich at 595; Bertrand, 449 Mich
at 617.
The majority concludes that Trinity had no duty to
clear the patio of snow and ice because the patio was
closed for the winter. That is, it essentially finds that
Buhalis was a trespasser to the extent that she strayed
from the path that Trinity cleared to its main entrance.
To make this finding, the majority must have rejected
the evidence that would permit a jury to find that
Buhalis reasonably believed that she had the right to
use the patio to park her tricycle and did so with
Trinity’s implied consent. But this Court—like the trial
court below—is not permitted to weigh the evidence or
assess credibility on a motion for summary disposition.
Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d
475 (1994). Rather, it must review all the evidence in
the light most favorable to the nonmoving party. Id.
And, given the evidence actually presented by the
parties, there is a question of fact as to whether Buhalis
was an invitee at the time and place of her fall. If she
was an invitee, then Trinity had a duty to warn or
protect her from the hazards that were on the patio.
2012] B
UHALIS V
T
RINITY
C
ONTINUING
C
ARE
705
D
ISSENTING
O
PINION BY
M. J. K
ELLY
,P.J.
In addition to improperly weighing the evidence, the
majority also uses the facts of this case to fundamentally
alter the duty that premises possessors owe to warn or
protect their invitees from snow and ice. Under the
majority’s new rule, a rule previously unknown to Michi-
gan law, a premises possessor no longer has any duty to
clear snow and ice except to provide a path to the “main
entrance.” Apparently, a premises possessor’s invitees
now “assume the risk” for harms from the hazards posed
by snow and ice on the paths leading to every entrance
other than the main entrance and for any other outdoor
area that the premises possessor has invited the general
public to use during the winter but chooses not to clear of
snow and ice. Moreover, I cannot agree with the majority’s
apparent conclusion that Trinity necessarily satisfied its
duty by posting a sign warning that the main path might
be slippery. It is well settled that, although the existence of
a duty will often be a question of law, it is for the jury to
decide “whether [the defendant’s] conduct in the particu-
lar case is below the general standard of care” unless
reasonable minds could not differ. Moning v Alfono, 400
Mich 425, 438; 254 NW2d 759 (1977). Here, a reasonable
jury could conclude that, given the danger posed by black
ice and the likelihood that its invitees would not discover
the ice, Trinity should have taken additional steps to
abate the hazard beyond posting a sign.
I also cannot agree with the majority’s conclusion
that ice is an open and obvious danger as a matter of
law because there was evidence that an average person
of ordinary intelligence would not notice the ice on
casual inspection.
B. OPEN AND OBVIOUS DANGERS
Even though there is a question of fact as to
whether Trinity owed a duty to Buhalis as an invitee
706 296 M
ICH
A
PP
685 [May
D
ISSENTING
O
PINION BY
M. J. K
ELLY
,P.J.
on the patio, Trinity would not owe Buhalis any duty
if the ice at issue was an open and obvious danger. See
Lugo v Ameritech Corp, Inc, 464 Mich 512, 516-519;
629 NW2d 384 (2001). The open and obvious danger
doctrine is not an exception to the duty owed by a
possessor of land, but a part of its definition. Id. at
516. A premises possessor need not protect an en-
trant onto the land from an obvious danger, because
an obvious danger is no danger to a reasonably
careful person. Slaughter v Blarney Castle Oil Co, 281
Mich App 474, 478; 760 NW2d 287 (2008). Whether a
hazard was open and obvious is determined by an
objective standard. Novotney v Burger King Corp (On
Remand), 198 Mich App 470, 475; 499 NW2d 379
(1993). A dangerous condition is open and obvious
when the hazard is one that an average person of
ordinary intelligence would have discovered upon
casual inspection. Joyce v Rubin, 249 Mich App 231,
238; 642 NW2d 360 (2002).
Buhalis testified at her deposition that, before she
fell, she “look[ed] to see if there was any ice,” but
“didn’t see any.” It was only after she fell that she saw
the ice that caused her fall. Further, although Buhalis
acknowledged that she saw the ice after her fall and
could have seen the ice had she looked down at it, taken
in context, it is evident that the ice was only visible
through close inspection near the ground—not through
casual inspection while walking. Further, there was no
evidence that there were other conditions that, when
considered in context, would have placed a reasonable
person on notice that there was ice at that specific
location. See Slaughter, 281 Mich App at 482-484.
Given this evidence, I also conclude that the trial court
erred to the extent that it determined that the ice was
an open and obvious danger as a matter of law. Whether
2012] B
UHALIS V
T
RINITY
C
ONTINUING
C
ARE
707
D
ISSENTING
O
PINION BY
M. J. K
ELLY
,P.J.
the ice constituted an open and obvious hazard is a
question for a jury, not the court.
In concluding that the ice involved in this case was an
open and obvious danger, the majority—in part—
perpetuates the fallacy that a person’s general knowl-
edge about the potential for snow and ice is the same as
having specific knowledge about the existence of a
particular patch of snow and ice.
1
But the open and
obvious danger doctrine is premised on the concept that
a reasonably prudent person in the invitee’s circum-
stances would have actual knowledge of a specific
hazard—not that a reasonably prudent person would
understand the mere possibility that a hazard might, in
theory, exist somewhere. Courts rightly assume that a
person will easily avoid a hazard that he or she can
readily observe. Slaughter, 281 Mich App at 478. But it
is fundamentally wrong to require invitees to avoid
hazards that an average person of ordinary intelligence
would not notice on casual inspection just because such
a person generally understands that such hazards exist.
By validating this fallacy, courts essentially abrogate a
premises possessor’s duty to clear snow and ice, because
all snow and ice—whatever the surrounding circum-
stances and without regard to whether it is, in fact,
obvious—is an open and obvious danger as a matter of
law. But, whatever the merits of that position as a
matter of public policy, it remains the law in this state
1
This fallacy, of course, can be misapplied to eliminate the duty to warn
or remediate every hazard known to man: people know that manhole
covers sometimes collapse under the weight of a pedestrian, so the hazard
posed by collapsing manhole covers is open and obvious, even when there
is no visible evidence that a manhole cover is in danger of collapsing;
similarly, everyone knows that elevators sometimes crash to the earth, so
the hazard posed by a falling elevator is open and obvious to every
elevator passenger, even in the absence of visible evidence that the
elevator is in disrepair.
708 296 M
ICH
A
PP
685 [May
D
ISSENTING
O
PINION BY
M. J. K
ELLY
,P.J.
that premises possessors must take reasonable steps to
safeguard their invitees from the hazards posed by
accumulated snow and ice. See Quinlivan, 395 Mich at
257-261.
2
I would reverse the trial court’s decision to dismiss
Buhalis’s premises liability claim and remand for a trial
on the merits.
2
Although it might sometimes appear to the contrary, our Supreme
Court has never overruled Quinlivan. Instead, our Supreme Court has
clarified that the duty stated in Quinlivan “must be understood in light
of this Court’s subsequent decisions in Bertrand [449 Mich 606] and Lugo
[464 Mich 512].” Mann v Shusteric Enterprises, Inc, 470 Mich 320, 333 n
13; 683 NW2d 573 (2004). Thus, premises possessors—at least in
theory—continue to have a duty to take reasonable measures to diminish
the hazards of snow and ice from those portions of the premises
possessor’s land to which they have expressly or impliedly invited their
guests.
2012] B
UHALIS V
T
RINITY
C
ONTINUING
C
ARE
709
D
ISSENTING
O
PINION BY
M. J. K
ELLY
,P.J.
PEOPLE v SANDERS
Docket No. 303051. Submitted May 1, 2012, at Grand Rapids. Decided
May 29, 2012, at 9:15 a.m.
Robert S. Sanders pleaded guilty in the Berrien Circuit Court,
Angela M. Pasula, J., of delivery of less than 50 grams of heroin,
second offense. He was sentenced to 23 months to 40 years in
prison, a $100 fine, $1,000 in court costs, a $60 victim’s rights fee,
and $68 in state costs. He appealed the imposition, pursuant to
MCL 769.1k(1)(b)(ii), of $1,000 in court costs, contending that the
court was required to calculate the actual court costs of each case
rather than utilize a general cost figure in felony cases.
The Court of Appeals held:
The court costs imposed under MCL 769.1k(1)(b)(ii) need not
be calculated for each individual case, however, there must be a
reasonable relationship between the costs imposed and the actual
costs incurred by the trial court. A reasonable relationship is not
the same as an exact relationship. The court may consider its
overhead costs in determining the costs figure. The trial court’s
decision to impose court costs is affirmed. However, because the
trial court did not adequately explain the basis for its use of the
$1,000 figure, the case is remanded to the trial court for it to
conduct a hearing to establish the factual basis for its use of the
$1,000 figure as the reasonable costs figure for felony cases in the
Berrien Circuit Court or to alter that figure as the established
factual basis may necessitate. Defendant must be afforded the
opportunity to challenge that determination.
Affirmed in part and remanded.
C
OSTS —
C
OURT
C
OSTS —
C
ALCULATION OF
C
OURT
C
OSTS —
F
ELONY
C
ASES
.
Court costs imposed under MCL 769.1k(1)(b)(ii) need not be calcu-
lated separately in each individual case but there must be a
reasonable relationship between the costs imposed and the actual
costs incurred by a trial court; a trial court may consider its
overhead costs in determining the court costs; a court may
establish a reasonable costs figure applicable to all felony cases in
the court but must provide an adequate basis to support that
figure.
710 296 M
ICH
A
PP
710 [May
Bill Schuette, Attorney General, John J. Bursch,
Solicitor General, Arthur J. Cotter, Prosecuting Attor-
ney, and Elizabeth A. Wild, Assistant Prosecuting At-
torney, for the people.
John W. Ujlaky for defendant.
Before: W
HITBECK
,P.J., and S
AWYER
and H
OEKSTRA
,JJ.
S
AWYER
, J. We are presented in this case with the
question whether a trial court must engage in an exact
calculation of the amount of court costs incurred before
imposing those costs under the provisions of MCL
769.1k(1)(b)(ii). We hold that no such precise calcula-
tion is required and that a trial court may impose a
reasonable amount of costs under the statute without
needing to show the exact amount of costs incurred in a
particular case.
Defendant pleaded guilty of delivery of less than 50
grams of heroin, second offense.
1
He was sentenced to
23 months to 40 years in prison, a $100 fine, $1,000 in
court costs, a $60 victim’s rights fee, and $68 in state
costs.
Defendant’s sole issue on appeal is a challenge to the
imposition of $1,000 in court costs. While defendant
concedes that the trial court had the statutory author-
ity to impose such costs, he argues that the trial court
abused its discretion by doing so because there was no
factual basis for the amount of costs ordered. We affirm
in part and remand in part.
Defendant challenged the amount of costs imposed in
a motion to correct his sentence. The trial court denied
the motion, concluding that “MCL 769.1k places no
restrictions on the Court at sentencing for the imposi-
1
MCL 333.7401(2)(a)(iv) and MCL 333.7413(2).
2012] P
EOPLE V
S
ANDERS
711
tion of costs.” The trial court also stated that the
“statute does not require the Court to delineate or
otherwise show a factual basis for the costs imposed.”
Nonetheless, the trial court further stated that defen-
dant’s “costs of $1,000 were reasonable and not an
abuse of the Court’s discretion given the number of
felony cases that the Court adjudicates on a yearly
basis, the Court’s limited budget, and the standard
costs of processing and adjudicating a case.” In other
words, the trial court essentially found that $1,000 in
costs was a reasonable amount to impose in a felony
case, though it may not be directly related to this
particular case.
The trial court is correct that MCL 769.1k(1)(b)(ii)
authorizes the imposition of costs without any explicit
limitation:
(b) The court may impose any or all of the following:
***
(ii) Any cost in addition to the minimum state cost set
forth in subdivision (a).
Where statutory language is clear, it is to be enforced as
written.
2
And the term “[a]ny cost” is clear.
Defendant does not challenge the trial court’s au-
thority to impose costs under this provision, but argues
that the trial court had to provide a more precise basis
for the costs imposed. That is, the trial court appears to
have established a general costs figure that it utilizes in
felony cases, while defendant takes the position that the
trial court must calculate a more precise figure for each
individual case. We disagree with defendant’s argument
that the costs must be calculated for each individual
2
People v Lloyd, 284 Mich App 703,707; 774 NW2d 347 (2009).
712 296 M
ICH
A
PP
710 [May
case, though we do agree that the trial court must
provide a more concrete basis for the general costs
figure utilized.
Defendant primarily relies on two cases, People v
Wein
3
and People v Dilworth
4
. Defendant’s reliance on
both cases is misplaced. Wein provides little guidance in
the case at bar. First, it was decided almost 40 years
before the enactment of the statute at issue in the case
at bar. Second, it provides a limited discussion of the
costs issue, merely stating that the trial court’s “impo-
sition of payment of costs sets forth no basis for its
computation nor does the record disclose an adequate
basis therefor.”
5
This hardly establishes that the trial
court in the case at bar was obligated to give a more
detailed explanation of the costs imposed under a
statute adopted almost four decades later.
6
Dilworth is only slightly more on point. Dilworth,
however, considered a number of statutes related to the
ordering of the payment of the costs of a prosecution.
7
It
did not consider the specific statutory provision at issue
here. Defendant places particular emphasis on the
following passage from Dilworth:
8
When authorized, the costs of prosecution imposed
“must bear some reasonable relation to the expenses
actually incurred in the prosecution.” People v Wallace, 245
Mich 310, 314; 222 NW 698 (1929). Furthermore, those
costs may not include “expenditures in connection with the
maintenance and functioning of governmental agencies
3
People v Wein, 382 Mich 588; 171 NW2d 439 (1969).
4
People v Dilworth, 291 Mich App 399; 804 NW2d 788 (2011).
5
Wein, 382 Mich at 592.
6
See Lloyd, 284 Mich App at 709 n 2.
7
Dilworth, 291 Mich App at 400-401.
8
Id. at 401.
2012] P
EOPLE V
S
ANDERS
713
that must be borne by the public irrespective of specific
violations of the law.” People v Teasdale, 335 Mich 1, 6; 55
NW2d 149 (1952).
But this passage illustrates the distinction between
Dilworth and the case at bar. Dilworth considered
imposing the costs of the prosecution and not court
costs under the statutory provision at issue here. And
the cases relied on by Dilworth not only did not consider
the statutory provision at issue here, but predate that
statute by decades.
Because the statute at issue here involves the impo-
sition of costs, we agree with Dilworth and the earlier
cases that there must be a reasonable relationship
between the costs imposed and the actual costs incurred
by the trial court. But a reasonable relationship is not
the same as an exact relationship. Nor does the statute
preclude the consideration of the court’s “overhead
costs” in determining the costs figure. That is, the
prohibition in Teasdale against costs that include “ex-
penditures in connection with the maintenance and
functioning of governmental agencies that must be
borne by the public”
9
is inapplicable to the imposition of
court costs under the statute involved in the case at bar.
Furthermore, we would note that the Legislature
itself takes a “flat fee” approach to costs. The “state
costs” required under MCL 769.1j(1)(a) if the defendant
is convicted of a felony is a minimum of $68, without
regard to a finding that those actual costs were incurred
in a particular case. Furthermore, while the provision
in MCL 769.1k(1)(b)(ii) authorizing the imposition of
“[a]ny cost” is broadly worded, other provisions are
more specific, such as MCL 769.1k(1)(b)(iii), which
authorizes the court to impose the “expenses of provid-
9
Teasdale, 335 Mich at 6.
714 296 M
ICH
A
PP
710 [May
ing legal assistance to the defendant.” In other words,
had the Legislature wanted to require a precise deter-
mination of costs, it could have certainly required it in
the statute. The Legislature seems to have endorsed a
“reasonable flat fee” approach that does not require
precision. We also note that, although the amount of the
costs ordered was not the focus of the decision in Lloyd,
the trial court in Lloyd had ordered $600 in costs. Thus,
it would seem that other trial courts may have adopted
a “flat fee” approach to costs as well.
For these reasons, we conclude that a trial court may
impose a generally reasonable amount of court costs
under MCL 769.1k(1)(b)(ii) without the necessity of
separately calculating the costs involved in the particu-
lar case, and we affirm the trial court’s decision to do so
in this case. But we are not persuaded that the trial
court adequately explained the basis for its use of the
$1,000 figure. While the assessment of $1,000 in court
costs is not obviously unreasonable, as a $1 million
assessment would be, neither is it inherently reasonable
on its face without further justification. In other words,
a remand in this case is necessary in order to facilitate
meaningful appellate review of the reasonableness of
the costs assessed defendant.
Accordingly, while we conclude that the costs im-
posed in this case were authorized by statute, we
remand this matter to the trial court to conduct a
hearing to establish the factual basis for the use of the
$1,000 figure, or to alter that figure as the established
factual basis may necessitate. While defendant is to be
afforded the opportunity to challenge the reasonable-
ness of the costs figure, we reiterate that the costs
figure does not need to be particularized in each indi-
vidual case, and it is not the purpose of this hearing on
remand to do so in this case. Rather, the purpose of this
2012] P
EOPLE V
S
ANDERS
715
hearing is to factually establish the reasonable costs
figure for felony cases in the Berrien Circuit Court,
while affording defendant the opportunity to challenge
that determination.
Affirmed in part and remanded in part for further
proceedings consistent with this opinion. We retain
jurisdiction.
W
HITBECK
,P.J., and H
OEKSTRA
, J., concurred with
S
AWYER
,J.
716 296 M
ICH
A
PP
710
S
PECIAL
O
RDERS
SPECIAL ORDERS
In this section are orders of the Court of general
interest to the bench and bar of the state.
Order Entered June 18, 2012:
P
EOPLE
vB
RANTLEY
, Docket No. 298488. Reported at 296 Mich App 546.
The Court orders that the concurring and dissenting opinion in this case,
which was issued for publication on May 17, 2012, be amended to correct
a clerical error.
The first and second sentence of the first full paragraph (on page 3)*
shall read: “In reaching its conclusion, I believe the majority re-writes the
legislation to say something it does not. The majority would reform the
statute to say what the majority believes it ought to say rather than what
the legislature has clearly and unequivocally stated.” In all other re-
spects, the May 17, 2012, concurring and dissenting opinion remains
unchanged.
Order Entered June 21, 2012:
H
OWARD V
K
OWALSKI
, Docket No. 297066. Reported at 296 Mich App 664.
The Court orders that the May 29, 2012, published opinion per curiam in
this case is amended in two respects.
First, the opening sentence of the first paragraph on page 6** is
amended to read:
Following the trial court’s advice, and as he did in his opening
statement, plaintiff’s counsel argued that the defense in this case was
fabricated, that the Dr. Urse’s affidavit indicated that there was no
meeting between Dr. Urse and Dr. Kowalski, and that Dr. Urse did not
come to Mrs. Johnson’s room between 2:53 and 3:00 p.m. as the two
doctors testified.”
Second, footnote 2 is added to the fourth sentence of the final
paragraph on page 6** so that the sentence and footnote shall read:
Because they are inconsistent, plaintiff argues, the trial court should
have admitted them for impeachment purposes.
2
__________________________________________________________________
2
We note that MRE 411 plays no role in this decision. MRE 411 does not
preclude evidence of liability insurance if introduced for relevant reasons
other than proving that a person acted negligently or otherwise wrongfully.
Dr. Urse is not a party to this action. The communications between
plaintiff’s counsel and the claims representative for Dr. Urse’s insurer are
admissible because they bear on Dr. Urse’s credibility as a witness, not on his
conduct on the day in question.
__________________________________________________________________
In all other respects, the May 29, 2012, opinion remains unchanged.
* Reference to slip opinion. See 296 Mich App 546, 562-563—R
EPORTER
.
** References to slip opinion. See 296 Mich App 664, 675-676—R
EPORTER
.
S
PECIAL
O
RDERS
801
INDEX-DIGEST
INDEX–DIGEST
ABUSE OF DISCRETION IN ASSIGNMENT TO
YOUTHFUL-TRAINEE STATUS—See
S
ENTENCES
2
ACCRUAL OF CLAIMS—See
C
ONTRACTS
1
ACTIONS
S
TANDING IN
B
ANKRUPTCY
A
CTIONS
1. Under 11 USC 522(d)(11)(D), a debtor may claim an
exemption from inclusion in a bankruptcy estate for a
payment on account of personal bodily injury; unless a
party in interest objects, the property claimed as exempt
on a list is exempt under 11 USC 522(l); a trustee does
not have to abandon the property as a prerequisite to
the debtor claiming the exemption; rather, abandon-
ment is the method used by a trustee to relieve the
estate of any property that is burdensome to the estate
and that is of inconsequential value and benefit to the
estate; however until and unless the trustee abandons
the estate’s interest in the lawsuit, any amounts recov-
ered in the lawsuit above the amount of the statutory
exemption would flow to the bankruptcy estate; a debtor
still retains an interest in the lawsuit because the
statutory exemption represents a present, substantial
interest and provides the necessary standing to pursue
the action. Szyszlo v Akowitz, 296 Mich App 40.
ADJUSTED TAX BASE UNDER SINGLE BUSINESS
TAX—See
T
AXATION
5
851
ADMISSION OF PRIVILEGED
COMMUNICATIONS—See
E
VIDENCE
3
AGRICULTURAL-PRODUCTION EXEMPTION—See
T
AXATION
8
ALTERATIONS OF FEDERAL INCOME TAX
RETURNS—See
T
AXATION
3
AMENDMENTS OF INCOME TAX RETURNS—See
T
AXATION
3
ANNULMENT OF MARRIAGES—See
C
ONTRACTS
2, 3
APPEAL AND ERROR
See, also,
C
OURTS
4
D
RAINS
1
J
URY
I
NSTRUCTIONS
1. The Court of Appeals reviews jury instructions in their
entirety to determine whether the trial court committed
error requiring reversal; reversal is not required where
the instructions fairly presented the issues to be tried
and sufficiently protected the defendant’s rights. People
v Eisen, 296 Mich App 326.
APPORTIONMENT FACTOR FOR SALES IN
MICHIGAN AND OUT OF STATE—See
T
AXATION
5
APPORTIONMENTS OF DRAIN COSTS—See
D
RAINS
1
ARREST
P
ROBATION
1. A probationer may be arrested without a warrant when
a peace officer has reasonable cause to believe that the
probationer has violated a condition of probation (MCL
764.15[1][g]). People v Glenn-Powers, 296 Mich App 494.
852 296 M
ICH
A
PP
S
TATE OF
M
IND OF
A
RRESTING
O
FFICER
2. An arresting officer’s state of mind, except for the facts
that he or she knows, is irrelevant to the existence of
probable cause; the officer’s subjective reason for mak-
ing the arrest need not be the criminal offense as to
which the known facts provide probable cause; the fact
that the officer does not have the state of mind that is
hypothecated by the reasons that provide the legal
justification for the officer’s action does not invalidate
the action as long as the circumstances, viewed objec-
tively, justify the action; the Fourth Amendment creates
an objective standard to determine whether an arrest
was lawful, without regard to the arresting officer’s
subjective belief. People v Glenn-Powers, 296 Mich App
494.
ASSIGNMENT TO YOUTHFUL-TRAINEE
STATUS—See
S
ENTENCES
2
ATTORNEY FEES OF DRAIN COMMISSIONER—See
D
RAINS
1
AUTHORITY OF A COURT WITH JURISDICTION—See
C
OURTS
3
AUTHORITY TO ORDER RATE DECOUPLING—See
P
UBLIC
U
TILITIES
1
AUTOMOBILES—See
C
ONSTITUTIONAL
L
AW
2
C
ONTROLLED
S
UBSTANCES
1
C
RIMINAL
L
AW
7, 8, 9
I
NSURANCE
1, 2, 3, 4, 8, 9
M
OTOR
V
EHICLES
1
BANKRUPTCY—See
A
CTIONS
1
E
STOPPEL
2
BARGES—See
T
AXATION
9
I
NDEX
-D
IGEST
853
BEST-INTEREST FACTORS—See
P
ARENT AND
C
HILD
2
BEST INTERESTS OF CHILD—See
P
ARENT AND
C
HILD
1
BOARD OF REVIEW MEMBERS’
COMPENSATION—See
D
RAINS
1
BREACH OF CONSTRUCTION CONTRACTS—See
C
ONTRACTS
1
CALCULATION OF COURT COSTS—See
C
OSTS
1
CERTIFICATES OF REGISTRATION AND
INSURANCE—See
M
OTOR
V
EHICLES
1
CHANGE OF CIRCUMSTANCES JUSTIFYING
MODIFICATION OF CHILD CUSTODY ORDERS—See
P
ARENT AND
C
HILD
2
CHILD CUSTODY—See
P
ARENT AND
C
HILD
1, 2
CHILDREN—See
I
NSURANCE
11, 12
CIVIL CONTEMPT—See
C
ONTEMPT
1
CLAIMS FOR TAX REFUNDS—See
T
AXATION
1
CLEARED INGRESS AND EGRESS PATHWAYS—See
N
EGLIGENCE
3
CLERIC-CONGREGANT PRIVILEGE—See
E
VIDENCE
3, 4, 5
COLLATERAL ATTACKS—See
C
OURTS
4
854 296 M
ICH
A
PP
COLLATERAL EVIDENCE—See
E
VIDENCE
2
COMMON-LAW OFFENSES—See
P
UBLIC
O
FFICERS
2, 3, 4, 5
COMMUNICATIONS COVERED BY
CLERIC-CONGREGANT PRIVILEGE—See
E
VIDENCE
4
COMPUTATION OF COMPONENTS OF ELECTRIC
RATE COST ALLOCATION—See
P
UBLIC
U
TILITIES
4
CONDITION OF FACT RELATED TO
RELEVANCE—See
E
VIDENCE
6
CONFLICT OF LAWS—See
P
ARENT AND
C
HILD
1
CONSENT JUDGMENT APPEALS—See
J
UDGMENTS
1
CONSTITUTIONAL LAW
See, also,
A
RREST
1, 2
S
EARCHES AND
S
EIZURES
1
S
ENTENCES
3
R
IGHT TO
C
OUNSEL
1. The United States and Michigan Constitutions guaran-
tee that every person charged with a crime is entitled to
the effective assistance of a lawyer in a criminal pro-
ceeding, and a violation of that right occurs under the
test set forth in Strickland v Washington, 466 US 668,
687, 691-692 (1984), when defense counsel’s conduct so
undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having
produced a just result; to establish a claim of ineffective
assistance of counsel, the defendant must show that
counsel’s representation fell below an objective stan-
dard of reasonableness under prevailing professional
norms and that there is a reasonable probability that,
I
NDEX
-D
IGEST
855
but for counsel’s unprofessional errors, the result of the
proceeding would have been different; a reviewing court
must strongly presume that counsel’s conduct falls
within the wide range of reasonable professional assis-
tance because there are numerous ways to provide
effective assistance in any given case; a trial counsel’s
acts or omissions fall within the range of reasonable
professional conduct if, after affirmatively entertaining
the range of possible reasons for the act or omission,
there might have been a legitimate strategic reason for
it; to prevail, the defendant must demonstrate that
there is a reasonable probability that the outcome would
have been different in the absence of the deficient
performance (US Const, Am VI; Const 1963, art 1, § 20).
People v Gioglio (On Remand), 296 Mich App 12.
S
TATUTES
2. MCL 257.709, as amended by 2000 PA 127, which
prohibited a person from driving a motor vehicle with a
dangling ornament or other suspended object that ob-
structed the vision of the driver of the vehicle except as
authorized by law, was not unconstitutionally vague.
People v Dillon, 296 Mich App 506.
CONSTRUCTION CONTRACTS—See
C
ONTRACTS
1
CONSTRUCTION OF STATUTES—See
T
AXATION
2
CONTEMPT
G
OVERNMENTAL
I
MMUNITY
1. Under the government tort liability act, MCL 691.1401,
et seq., a governmental agency is immune from tort
liability for all civil wrongs if the governmental agency is
engaged in the exercise or discharge of a governmental
function; however, MCL 691.1407 does not bar recovery
if a plaintiff successfully pleads and establishes a non-
tort cause of action such as an action for contempt, even
though the underlying facts could have also established
a tort cause of action; the cause of action must be
separate and distinct from the action grounded in tort
liability. In re Bradley Estate, 296 Mich App 31.
856 296 M
ICH
A
PP
CONTRACTS
See, also,
I
NDEMNITY
1
I
NSURANCE
6
C
ONSTRUCTION
C
ONTRACTS
1. An action to recover damages for a breach of contract
must be brought within six years after the claim first
accrued; except in certain circumstances, a claim ac-
crues at the time the wrong upon which the claim is
based was done, regardless of when the damage results;
a cause of action for breach of a construction contract
accrues at the time work on the contract is completed
(MCL 600.5807[8], 600.5827). Miller-Davis Co v Ahrens
Construction, Inc (On Remand), 296 Mich App 56.
M
ARRIAGE
C
ONTRACTS
2. There is a strong presumption regarding the validity of
a ceremonial marriage that can only be overcome with
clear and positive proof that the marriage was not valid;
in general, only the parties to a marriage can commence
an annulment action; however, a party’s next friend may
bring an annulment action on the grounds that a party
to the marriage was not capable in law of contracting
because of mental incompetence; a party is legally
competent to contract if he or she possesses sufficient
mind to understand in a reasonable manner the nature
and effect of the act in which he or she was engaged; a
contract may be avoided only if the person was of
unsound mind or insane when it was made and the
unsoundness or insanity was of such a character that
the person had no reasonable perception of the nature
or terms of the contract (MCL 552.3; MCL 552.35).
Rodenhiser v Duenas, 296 Mich App 268.
3. A marriage is void if consent was obtained by fraud; an
action to annul a marriage on the basis of fraud can only
be brought by the defrauded spouse while both parties
to the marriage are living, and the marriage cannot be
annulled by the heirs of the spouse or other third
parties, such as next friends (MCL 552.2; MCL 552.3).
Rodenhiser v Duenas, 296 Mich App 268.
CONTROLLED SUBSTANCES
M
ARIJUANA
1. The Michigan Medical Marihuana Act (MMMA), MCL
333.26421, et seq., which permits the medical use of
I
NDEX
-D
IGEST
857
marijuana by certain persons registered under the act,
does not provide protection to registered uses from
prosecution for a violation of MCL 257.625(8), the
provision of the Michigan Vehicle Code that prohibits a
person from operating a vehicle with any amount of a
schedule 1 controlled substance, such as marijuana, in
his or her body. People v Koon, 296 Mich App 223.
CORRUPT BEHAVIOR—See
P
UBLIC
O
FFICERS
1, 5
CORRUPT INTENT—See
P
UBLIC
O
FFICERS
3
CORRUPT NONFEASANCE—See
P
UBLIC
O
FFICERS
6
COST-ALLOCATION FORMULA FOR ELECTRIC
RATES—See
P
UBLIC
U
TILITIES
4
COSTS
C
OURT
C
OSTS
1. Court costs imposed under MCL 769.1k(1)(b)(ii) need
not be calculated separately in each individual case but
there must be a reasonable relationship between the
costs imposed and the actual costs incurred by a trial
court; a trial court may consider its overhead costs in
determining the court costs; a court may establish a
reasonable costs figure applicable to all felony cases in
the court but must provide an adequate basis to support
that figure. People v Sanders, 296 Mich App 710.
COSTS OF DRAIN APPORTIONMENT—See
D
RAINS
1
COURT COSTS—See
C
OSTS
1
COURTS
J
URISDICTION
1. District courts in Michigan have exclusive jurisdiction,
under MCL 600.8301(1), over civil matters where the
amount in controversy does not exceed $25,000 and equi-
858 296 M
ICH
A
PP
table jurisdiction and authority, under MCL 600.8302(1)
and (3), concurrent with that of the circuit court with
respect to claims arising under chapter 57 of the Revised
Judicature Act, MCL 600.5701 et seq., which concerns
summary proceedings to recover possession of premises;
the grant of power in MCL 600.8302(1) and (3) is a more
specific grant of jurisdictional authority than the general
grant of jurisdictional authority in MCL 600.8301(1) and
takes precedence over the general grant of jurisdictional
authority; when a district court’s actions flow from its
power arising under chapter 57 of the RJA, its actions are
within the scope of MCL 600.8302(1) and (3), and
MCL 600.8301(1) is inapplicable. Clohset v No Name
Corp, 296 Mich App 525.
2. Subject-matter jurisdiction is established by the plead-
ings and exists when the proceeding is of a class the
court is authorized to adjudicate and the claim stated in
the complaint is not clearly frivolous. Clohset v No
Name Corp, 296 Mich App 525.
3. Once a court of competent jurisdiction has become
possessed of a case, its authority continues subject only
to the appellate authority, until the matter is finally and
completely disposed of, and no court of coordinate
authority may interfere with its action; a matter is
finally and completely resolved when a judgment is
entered; a “judgment” is the final consideration and
determination of a court of competent jurisdiction on
the matters submitted to the court. Clohset v No Name
Corp, 296 Mich App 525.
4. Once a court’s jurisdiction has attached, mere errors or
irregularities in the proceedings, however grave, will not
render the court’s judgment void, although they may
render the judgment erroneous and subject to be set
aside in a proper proceeding for that purpose; until the
judgment is set aside, it is valid and binding for all
purposes and cannot be collaterally attacked; lack of
subject-matter jurisdiction may be collaterally attacked,
whereas the exercise of subject-matter jurisdiction can
be challenged only on direct appeal. Clohset v No Name
Corp, 296 Mich App 525.
CREDITORS—See
M
ORTGAGES
1
I
NDEX
-D
IGEST
859
CRIMINAL DEFENSES—See
C
RIMINAL
L
AW
12
CRIMINAL LAW
See, also,
C
OSTS
1
P
UBLIC
O
FFICERS
2, 3, 4, 5, 7
C
RIMINAL
S
EXUAL
C
ONDUCT
1. MCL 750.520n(1) requires a trial court to impose life-
time electronic monitoring when a defendant is con-
victed of first-degree criminal sexual conduct under
MCL 750.520b and when a defendant who was 17 years
old or older is convicted of second-degree criminal sexual
conduct under MCL 750.520c if the victim was less than
13 years old. People v Brantley, 296 Mich App 546.
E
FFECTIVE
A
SSISTANCE OF
C
OUNSEL
2. The cumulative effect of errors can constitute sufficient
prejudice to warrant reversal on the ground of ineffec-
tive assistance of counsel when any one of the errors
alone would not merit reversal; a new trial is warranted
if the combination of errors denied the defendant a fair
trial; the cumulative effect of the errors must under-
mine the confidence in the reliability of the verdict
before a new trial will be granted. People v Douglas, 296
Mich App 186.
3. A defendant’s Sixth Amendment right to counsel ex-
tends to the plea-bargaining process; an ineffective-
assistance-of-counsel claim may be based on counsel’s
failure to properly inform the defendant of the conse-
quences of accepting or rejecting a plea offer; the defen-
dant must show that there is a reasonable probability
that the plea offer would have been presented to the
court, that the court would have accepted its terms, and
that the conviction, sentence, or both would have been
less severe than under the judgment and sentence in
fact imposed; counsel’s assistance must be sufficient to
enable the defendant to make an informed and volun-
tary choice between trial and a guilty plea; a defendant
must receive information regarding a mandatory mini-
mum sentence to make an informed decision whether to
accept the prosecution’s plea offer. People v Douglas, 296
Mich App 186.
F
ELONY
M
URDER
4. The first-degree murder statute defines felony murder
860 296 M
ICH
A
PP
as including murder committed in the perpetration of
first- and second-degree vulnerable-adult abuse; the
prosecution need not prove that a defendant committed
both first-degree vulnerable-adult abuse and second-
degree vulnerable-adult abuse to support a conviction of
felony murder on this basis (MCL 750.145n,
750.316[1][b]). People v Comella, 296 Mich App 643.
L
ARCENY
F
ROM THE
P
ERSON
5. Larceny from the person requires the prosecution to
prove (1) the taking of someone else’s property without
consent, (2) movement of the property, (3) the intent to
steal or permanently deprive the owner of the property,
and (4) that the property was taken from the person or
from the person’s immediate area of control or immedi-
ate presence; larceny from the person is not accom-
plished if the victim and the perpetrator are merely in
sight or hearing range of each other (MCL 750.357).
People v Smith-Anthony, 296 Mich App 413.
6. People v Brantley, 296 Mich App 546.
M
OTOR
V
EHICLES
7. Under MCL 257.904(1) and (4), a person whose motor
vehicle operator’s license has been suspended or re-
voked, a person whose application for a license has been
denied, or a person who has never applied for a license is
guilty of a felony if he or she operates a motor vehicle on
the public highways or other places open to the general
public or generally accessible to motor vehicles and by
that operation causes the death of another person; MCL
257.904(1) and (4) do not apply to or penalize a person
driving a motor vehicle with an expired license. People v
Acosta-Baustista, 296 Mich App 404.
8. Pursuant to articles VI and VII of the Convention on the
Regulation of Inter-American Automotive Traffic 1943,
the United States and Mexico have reciprocity with each
other so that a person licensed in one country is allowed
to operate a motor vehicle in the other country while
using that foreign license; a person’s immigration status
does not affect the driving privileges afforded by the
convention or the application of MCL 257.904(1) and
(4), which prohibit operating a motor vehicle with a
suspended or revoked license or without having applied
for a license and by that operation causing another’s
death. People v Acosta-Baustista, 296 Mich App 404.
I
NDEX
-D
IGEST
861
O
PERATING A
M
OTOR
V
EHICLE
W
HILE
I
NTOXICATED
9. A person shall not operate a vehicle upon a highway or
other place open to the general public or generally
accessible to motor vehicles, including an area desig-
nated for the parking of vehicles, if the person is
operating while intoxicated; “operate” is defined as
being in actual physical control of a vehicle and includes
the situation of a person who starts the vehicle’s engine,
applies the brakes, and shifts the gears from park to
reverse and back to park without actually moving the
vehicle (MCL 257.625[1], 257.35a). City of Plymouth v
Longeway, 296 Mich App 1.
P
UBLIC
O
FFICERS
10. The statute regarding willful neglect of duty by a public
officer expressly provides for the punishment of miscon-
duct in office with respect to misconduct that entails
willful neglect to perform a legal duty (nonfeasance)
(MCL 750.478). People v Waterstone, 296 Mich App 121.
R
ACKETEERING
11. MCL 750.159i(1) prohibits a person employed by or
associated with an enterprise from knowingly conduct-
ing or participating in the affairs of the enterprise
directly or indirectly through a pattern of racketeering
activity; to establish a violation of this provision, the
prosecution must show that the defendant was em-
ployed by or associated with a separate and distinct
individual or any other legally distinct entity falling
within the definition of “enterprise” in MCL
750.159f(a); a defendant acting alone cannot be both
the person and the enterprise. People v Kloosterman,
296 Mich App 636.
S
ELF
-D
EFENSE
12. The defense of self-defense is available to a defendant
charged with possession of a firearm during the com-
mission of a felony (MCL 750.227b; MCL 780.972).
People v Goree, 296 Mich App 293.
S
ENTENCES
13. A trial court may assess 10 points for offense variable
10 (exploitation of victim) if the offender exploited a
victim’s physical disability, mental disability, youth or
agedness, or a domestic relationship or if the offender
abused his or her authority status; in the context of
offense variable 10, a domestic relationship is a familial
862 296 M
ICH
A
PP
or cohabitating relationship, not merely a past dating
relationship (MCL 777.40[1][b]). People v Brantley, 296
Mich App 546.
T
HIRD
-D
EGREE
C
RIMINAL
S
EXUAL
C
ONDUCT
14. The determination whether a defendant charged with
third-degree criminal sexual conduct used force or
coercion to accomplish sexual penetration is to be made
in light of all the circumstances; the evidentiary facts
must not be considered in isolation, but must be
considered in conjunction with one another in a light
most favorable to the prosecution; force or coercion
exists whenever a defendant’s conduct induced a vic-
tim to reasonably believe that the victim had no
practical choice but to participate in sexual intercourse
with the defendant (MCL 750.520d[1][b]). People v
Eisen, 296 Mich App 326.
CRIMINAL SEXUAL CONDUCT—See
C
RIMINAL
L
AW
1, 14
CUMULATIVE ERRORS OF COUNSEL AS
INEFFECTIVE ASSISTANCE—See
C
RIMINAL
L
AW
2
CURB CUTOUTS—See
G
OVERNMENTAL
I
MMUNITY
1
CUSTODY DISPUTES—See
P
ARENT AND
C
HILD
1
CUSTOMER CHOICE AND ELECTRIC RELIABILITY
ACT—See
P
UBLIC
U
TILITIES
2
DAMAGES IN CONTEMPT PROCEEDINGS—See
C
ONTEMPT
1
DANGEROUS CONDITION OF THE LAND—See
N
EGLIGENCE
1
DECLARATORY JUDGMENTS
L
EGISLATIVE
B
RANCH OF
G
OVERNMENT
1. Declaratory relief normally will suffice to induce the leg-
I
NDEX
-D
IGEST
863
islative and executive branches to conform their actions to
constitutional requirements or confine them within con-
stitutional limits; only when declaratory relief has failed
should the courts even begin to consider additional forms
of relief, such as injunctive relief. Davis v City of Detroit
Financial Review Team, 296 Mich App 568.
DEEDS
Q
UITCLAIM
D
EEDS
1. A quitclaim deed conveys to the grantee the grantor’s
complete interest or claim in certain real property
unless some interest is expressly excepted or reserved.
Eastbrook Homes, Inc v Dep’t of Treasury, 296 Mich App
336.
DEFENSES—See
C
RIMINAL
L
AW
12
DEFINITION OF OPERATING—See
C
RIMINAL
L
AW
9
DISCRETION TO IMPOSE HABITUAL-OFFENDER
ENHANCEMENT—See
S
ENTENCES
1
DISTRICT COURTS—See
C
OURTS
1
DOMESTIC RELATIONSHIPS—See
C
RIMINAL
L
AW
13
DOMICILE DEFINED—See
I
NSURANCE
10, 12
DOMICILE OF MINOR CHILD—See
I
NSURANCE
11, 12
DOMICILED IN THE SAME HOUSEHOLD—See
I
NSURANCE
11, 12
DRAINS
A
PPORTIONMENTS OF
D
RAIN
C
OSTS
1. When the apportionment of the costs of improvements
864 296 M
ICH
A
PP
by a drain commissioner under the Drain Code is
sustained by a board of review, the landowner appealing
the apportionment must pay the entire or total amount
of the costs and expenses of the appeal, including the
commissioner’s attorney fees and compensation for the
members of the board of review (MCL 280.158). In re
Waters Drain Drainage Dist, 296 Mich App 214.
DRIVER’S LICENSES—See
C
RIMINAL
L
AW
7, 8
DRIVING WITH OBJECTS OBSTRUCTING
VISION—See
C
ONSTITUTIONAL
L
AW
2
DRUNK DRIVING—See
C
ONTROLLED
S
UBSTANCES
1
C
RIMINAL
L
AW
9
DUTY TO PAY SALES TAX—See
T
AXATION
4
EFFECTIVE ASSISTANCE OF COUNSEL—See
C
ONSTITUTIONAL
L
AW
1
C
RIMINAL
L
AW
2, 3
ELECTRIC RATES—See
P
UBLIC
U
TILITIES
4
ELECTRIC UTILITIES—See
P
UBLIC
U
TILITIES
1, 2
ELECTRONIC MONITORING—See
C
RIMINAL
L
AW
1
ELEMENTS OF LARCENY FROM THE PERSON—See
C
RIMINAL
L
AW
5, 6
ELEMENTS OF RACKETEERING—See
C
RIMINAL
L
AW
11
EMERGENCY FINANCIAL MANAGER ACT—See
S
TATUTES
2
I
NDEX
-D
IGEST
865
ENTERPRISE DEFINED—See
C
RIMINAL
L
AW
11
EQUITABLE POWERS OF DISTRICT COURTS—See
C
OURTS
1
EQUITABLE REMEDIES—See
I
NSURANCE
6
EQUITY
S
TATUTES
1. Equity may not be invoked to avoid the dictates of a
statute in the absence of fraud, accident, or mistake.
Eastbrook Homes, Inc v Dep’t of Treasury, 296 Mich App
336.
ESTOPPEL
J
UDICIAL
E
STOPPEL
1. Judicial estoppel applies when a party successfully and
unequivocally asserts a position in a prior proceeding that
is wholly inconsistent with the position taken in a subse-
quent proceeding. Szyszlo v Akowitz, 296 Mich App 40.
2. To support a finding of judicial estoppel in the context of
bankruptcy proceedings, the reviewing court must find
that (1) the plaintiff assumed a position that was contrary
to the one asserted under oath in the bankruptcy proceed-
ings, (2) the bankruptcy court adopted the contrary posi-
tion either as a preliminary matter or as part of a final
disposition, and (3) the plaintiff’s omission did not result
from mistake or inadvertence; in determining whether the
plaintiff’s conduct resulted from mistake or inadvertence,
the reviewing court considers whether (1) the plaintiff
lacked knowledge of the factual basis of the undisclosed
claims, (2) the plaintiff had a motive for concealment, and
(3) the evidence indicates an absence of bad faith; in
determining whether there was an absence of bad faith,
the reviewing court will look, in particular, at the plain-
tiff’s attempts to advise the bankruptcy court of the
omitted claim. Spohn v Van Dyke Public Schools, 296
Mich App 470.
EVIDENCE
See, also,
S
EARCHES AND
S
EIZURES
1
866 296 M
ICH
A
PP
H
EARSAY
1. The tender-years hearsay exception provides that a
statement describing an incident that included a sexual
act performed with or on the declarant by the defendant
or an accomplice is admissible to the extent that it
corroborates testimony given by the declarant during
the same proceeding if (1) the declarant was under the
age of 10 when the statement was made, (2) the state-
ment is shown to have been spontaneous and without
indication of being manufactured, (3) either the
declarant made the statement immediately after the
incident or any delay is excusable as having been caused
by fear or other equally effective circumstance, and (4)
the statement is introduced through the testimony of
someone other than the declarant; if the declarant made
more than one corroborative statement about the al-
leged incident, only the first is admissible; questioning
by an adult is not incompatible with a ruling that a
child’s hearsay statement was spontaneous; for a child’s
report of sexual abuse to have been spontaneous, the
child must have broached the subject of sexual abuse
and any questions from adults must have been nonlead-
ing or open-ended; a child’s young age, without more
supporting testimony, does not constitute an equally
effective circumstance that would explain the lack of
disclosure for a lengthy period and excuse the delay
(MRE 803A). People v Douglas, 296 Mich App 186.
I
MPEACHMENT
2. Under MRE 613(b), a prior inconsistent statement of a
witness is admissible to impeach the credibility of the
witness; the rule excluding hearsay, MRE 802, does not
apply to the admission of a prior inconsistent statement
because it is not offered as substantive evidence to prove
the truth of the matter asserted, MRE 801(c), but is only
offered to test the credibility of the witness’s testimony
in court; the party seeking to impeach a witness with a
prior inconsistent statement must lay a foundation
under MRE 613(b) by establishing that the witness
made the prior statement and that the prior statement
was inconsistent with the witness’s in-court testimony;
a statement is inconsistent if there is any material
variance between the testimony and the previous state-
ment, that is, if a jury could reasonably find that a
witness who believed the truth of the facts testified to
I
NDEX
-D
IGEST
867
would have been unlikely to make the prior statement;
evidence is not collateral, and is thus admissible for
impeachment purposes, if the fact on which the prior
self-contradiction was predicated could have been
shown in evidence for any purpose independently of the
self-contradiction. Howard v Kowalski, 296 Mich App
664.
P
RIVILEGES
3. Under MCL 600.2156, a minister of the gospel, a priest of
any denomination, or an accredited Christian Science
practitioner may not disclose confessions made to the
minister, priest, or any practitioner in his or her profes-
sional character, in the course of discipline enjoined by the
rules or practice of the denomination; the evidentiary
privilege of MCL 767.5a(2) provides that any communica-
tions between members of the clergy and members of their
respective churches are privileged and confidential when
those communications were necessary to enable members
of the clergy to serve as a member of the clergy; MCL
600.2156 applies only to confessions, broadly precludes a
cleric from disclosing confessions in many situations, not
just the courtroom, and is not an evidentiary privilege;
MCL 767.5a(2), however, is more specific and creates an
evidentiary privilege that precludes the incriminatory use
of any communication made by a congregant to his or her
cleric when that communication was necessary to enable
the cleric to serve as a cleric. People v Bragg, 296 Mich App
433.
4. A communication is privileged under MCL 767.5a(2) when
it was necessary to enable the cleric to serve as a member
of the clergy; if the communication to a cleric was made in
his professional character or made in the course of disci-
pline enjoined by the rules or practice of the denomination,
it was likely necessary to enable the cleric to serve as a
cleric; a communication would be necessary to enable the
cleric to serve as a cleric when it serves a religious function
such as providing guidance, counseling, forgiveness, or
discipline; a communication is made to a cleric in the
cleric’s professional character when it is directed to a
clergyman in his or her capacity as a spiritual leader
within the religious denomination; the communication
may not arise from the congregant speaking to the cleric in
his or her role as a relative, friend, or employer; guidance
by a clerical witness about whether a communication
868 296 M
ICH
A
PP
would be considered confidential under the discipline or
practices of a specific religion must be accepted because
consideration by a court of a particular religion’s stance on
confidential communications and the role or duty of its
clerics would offend First Amendment principles. People v
Bragg, 296 Mich App 433.
5. The evidentiary privilege of MCL 767.5a(2) applies
regardless of whether the communication is initiated by
the cleric or the congregant; the privilege belongs to the
penitent, and only he or she may waive the privilege, by,
for example, giving evidence of what took place at the
confessional or by sharing the content of the otherwise
privileged communication with a third party; the pres-
ence of a minor defendant’s parent during the commu-
nication does not waive the privilege. People v Bragg,
296 Mich App 433.
R
ELEVANCE
6. Evidence is relevant if it has any tendency to make the
existence of any fact that is of consequence to the
determination of the action more or less probable than it
would be without the evidence; all relevant evidence is
admissible unless otherwise provided, but when the
relevancy of evidence depends on the fulfillment of a
condition of fact, the evidence must be admitted upon or
subject to the introduction of evidence sufficient to
support a finding of the fulfillment of the condition; a
court must examine all the evidence in the case and
decide whether the jury could reasonably find the con-
ditional fact by a preponderance of the evidence (MRE
104[b], 401, 402). Howard v Kowalski, 296 Mich App
664.
EVIDENCE OF FORCE OR COERCION—See
C
RIMINAL
L
AW
14
EVIDENTIARY HEARINGS IN CHILD CUSTODY—See
P
ARENT AND
C
HILD
2
EXECUTIVE BRANCH OF GOVERNMENT—See
D
ECLARATORY
J
UDGMENTS
1
EXEMPTIONS—See
T
AXATION
2, 8, 9, 10
I
NDEX
-D
IGEST
869
EXEMPTIONS FROM INCLUSION IN BANKRUPTCY
ESTATE—See
A
CTIONS
1
EXPENSES OF DRAIN APPORTIONMENT—See
D
RAINS
1
EXPERIMENTAL PROGRAMS—See
P
UBLIC
U
TILITIES
3
EXPIRED DRIVER’S LICENSES—See
C
RIMINAL
L
AW
7, 8
EXPLOITATION OF A DOMESTIC
RELATIONSHIP—See
C
RIMINAL
L
AW
13
FACTORS FOR DETERMINING DOMICILE—See
I
NSURANCE
11
FELONY CASES—See
C
OSTS
1
FELONY-FIREARM—See
C
RIMINAL
L
AW
12
FELONY MURDER—See
C
RIMINAL
L
AW
4
FINAL DETERMINATIONS OF TAX—See
T
AXATION
1
FINANCIAL REVIEW TEAMS—See
S
TATUTES
2
FIREARMS—See
C
RIMINAL
L
AW
12
FIRST-DEGREE CRIMINAL SEXUAL CONDUCT—See
C
RIMINAL
L
AW
1
FIRST-DEGREE MURDER—See
C
RIMINAL
L
AW
4
870 296 M
ICH
A
PP
FORCE OR COERCION—See
C
RIMINAL
L
AW
14
FORECLOSURES BY ADVERTISEMENT—See
M
ORTGAGES
1
FOREIGN DRIVER’S LICENSES—See
C
RIMINAL
L
AW
8
FOURTH AMENDMENT—See
A
RREST
1, 2
S
EARCHES AND
S
EIZURES
1
S
ENTENCES
3
FRAUD IN OBTAINING CONSENT TO
MARRIAGE—See
C
ONTRACTS
3
GENERAL SALES TAX ACT—See
T
AXATION
10
GOVERNMENTAL IMMUNITY
See, also,
C
ONTEMPT
1
H
IGHWAY
E
XCEPTION
1. Municipalities effectively have jurisdiction over side-
walks adjacent to a county highway for purposes of
repair, maintenance and associated liability and must
maintain them in reasonable repair; the highway excep-
tion to governmental immunity applies if (1) the mu-
nicipality knew, or in the exercise of reasonable diligence
should have known, of the existence of the defect in a
sidewalk, trailway, crosswalk, or other installation out-
side the improved portion of the highway designed for
vehicular travel and (2) the defect was the proximate
cause of an injury, death, or damage; a curb cutout
adjacent to a county highway qualifies as a sidewalk
under the general statutory definition of “highway” and
as an installation for purposes of the highway exception
(MCL 691.1401[e]; 691.1402[1], as amended by 1999 PA
205; 691.1402a[1], as amended by 1999 PA 205). Morac-
cini v City of Sterling Heights, 296 Mich App 387.
GRANTOR’S INTEREST—See
D
EEDS
1
I
NDEX
-D
IGEST
871
GROSS RECEIPTS—See
T
AXATION
7
GUARANTORS—See
M
ORTGAGES
1
HABITUAL OFFENDERS—See
S
ENTENCES
1
HEARSAY—See
E
VIDENCE
1, 2
HIGHWAY EXCEPTION—See
G
OVERNMENTAL
I
MMUNITY
1
HOLMES YOUTHFUL TRAINEE ACT—See
S
ENTENCES
2
HOMICIDE—See
C
RIMINAL
L
AW
4
ICE—See
N
EGLIGENCE
3
IMPEACHMENT—See
E
VIDENCE
2
INCOME TAX—See
T
AXATION
1, 3
INCOMPETENCE OF PARTY TO MARRIAGE—See
C
ONTRACTS
2
INCONSISTENT POSITION IN PRIOR
PROCEEDINGS—See
E
STOPPEL
1
INDEMNITY
C
ONTRACTS
1. An indemnity contract is meant to apportion liability
among the contracting parties for liability to third
parties; the period of limitations on a promise to indem-
nify runs from when the indemnitee sustained the loss
872 296 M
ICH
A
PP
or when the promisor failed to perform under the
contract. Miller-Davis Co v Ahrens Construction, Inc
(On Remand), 296 Mich App 56.
INDIVIDUAL EXECUTIVES AS PUBLIC BODIES—See
S
TATUTES
1
INEFFECTIVE ASSISTANCE OF COUNSEL—See
C
ONSTITUTIONAL
L
AW
1
C
RIMINAL
L
AW
2, 3
INFERENCE OF VOLUNTARILY REMAINING
INSURING REGISTRANT AFTER SALE OF
AUTOMOBILE—See
M
OTOR
V
EHICLES
1
INJUNCTIONS
See, also,
D
ECLARATORY
J
UDGMENTS
1
S
TANDARD FOR
E
NTERING
1. An injunction represents an extraordinary and drastic
use of judicial power that should be employed sparingly;
in determining whether to issue an injunction, a court
should consider: (1) the likelihood that the party seeking
the injunction will prevail on the merits, (2) the danger
that the party seeking the injunction will suffer irrepa-
rable harm if the injunction is not issued, (3) the risk
that the party seeking the injunction would be harmed
more by the absence of an injunction than the opposing
party would be by the granting of the relief, and (4) the
harm to the public interest if the injunction is issued.
Davis v City of Detroit Financial Review Team, 296 Mich
App 568.
INSURABLE INTERESTS—See
I
NSURANCE
7, 8, 9
INSURANCE
N
O
-F
AULT
1. The terms “owner” and “registrant” as used in the
no-fault insurance act are not synonymous and repre-
sent separate categories of individuals. (MCL 500.3101
et seq.). Titan Insurance Co v State Farm Mutual Auto-
mobile Insurance Co, 296 Mich App 75.
I
NDEX
-D
IGEST
873
2. The owner or registrant of a motor vehicle required to
be registered in Michigan must maintain security for
the payment of benefits under personal protection in-
surance, property protection insurance, and residual
liability insurance; an “owner” includes a person rent-
ing a motor vehicle or having the use thereof, under a
lease or otherwise, for a period that is greater than 30
days (MCL 500.3101[1] and [2][h]). Corwin v Daimler-
Chrysler Ins Co, 296 Mich App 242.
3. 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; “the
person named in the policy” is synonymous with the
term “the named insured”; when personal protection
insurance benefits are payable to or for the benefit of an
injured person under his or her own policy and would
also be payable under the policy of his or her spouse,
relative, or relative’s spouse, the injured person’s in-
surer must pay all of the benefits and is not entitled to
recoupment from the other insurer (MCL 500.3114[1]).
Corwin v DaimlerChrysler Ins Co, 296 Mich App 242.
4. Personal injury protection coverage protects the person,
not the motor vehicle; a person who sustains accidental
bodily injury while an occupant of a motor vehicle must
first look to no-fault insurance policies within the per-
son’s household for no-fault personal injury protection
benefits; a no-fault insurance carrier can be responsible
for personal injury protection benefits even if the motor
vehicle it insures was not the actual motor vehicle
involved in the accident (MCL 500.3101[1]; MCL
500.3114[1]). Corwin v DaimlerChrysler Ins Co, 296
Mich App 242.
5. When two or more insurers are in the same order of
priority to provide personal injury protection benefits an
insurer paying benefits due is entitled to partial recoup-
ment from the other insurers in the same order of
priority (MCL 500.3115[2]). Corwin v DaimlerChrysler
Ins Co, 296 Mich App 242.
6. Reformation of an insurance policy is an equitable
remedy; when reasonably possible, courts are obligated
to construe insurance contracts that conflict with the
no-fault act, and therefore violate public policy, in a
874 296 M
ICH
A
PP
manner that renders them compatible with public policy
as reflected in the act. Corwin v DaimlerChrysler Ins Co,
296 Mich App 242.
7. An insured must have an insurable interest to support
the existence of a valid motor vehicle liability insurance
policy; the insurable interest must be that of a named
insured; the insurable interest need not be in the nature
of ownership and an individual can have an insurable
interest without having title to the vehicle; an insurable
interest can be any kind of benefit from the thing so
insured or any kind of loss that would be suffered by its
damage or destruction; a person has an insurable inter-
est in his or her own health and well-being and such
interest entitles an insured person to personal protec-
tion benefits under the no-fault act regardless of
whether a covered vehicle is involved. Corwin v Daim-
lerChrysler Ins Co, 296 Mich App 242.
8. Michigan’s public policy forbids the issuance of an
insurance policy where the insured lacks an insurable
interest; owners and registrants have an insurable in-
terest in their motor vehicles because the no-fault act
requires them to carry no-fault insurance and makes it
a misdemeanor to fail to do so; the insurable interest of
owners and registrants is, therefore, contingent upon
personal pecuniary damage created by the no-fault act
(MCL 500.3102[2]). Corwin v DaimlerChrysler Ins Co,
296 Mich App 242.
9. A person engaged in the business of leasing motor
vehicles who is the lessor of a motor vehicle pursuant to
a lease providing for the use of the motor vehicle by the
lessee for a period that is greater than 30 days is neither
the owner nor registrant of the vehicle and does not
have an insurable interest in the vehicle contingent
upon personal pecuniary damage created by the no-fault
act (MCL 500.3101[2][h][ii] and [i]). Corwin v Daimler-
Chrysler Ins Co, 296 Mich App 242.
10. The terms “domicile” and “residence” are legally syn-
onymous for purposes of the no-fault insurance act
(MCL 500.3101 et seq.). Grange Ins Co of Michigan v
Lawrence, 296 Mich App 319.
11. Factors to consider in determining if a person is
“domiciled in the same household” as the named
insured include (1) the subjective or declared intent of
the person of remaining, either permanently or for an
I
NDEX
-D
IGEST
875
indefinite time, in the place the person contends is the
person’s domicile or household, (2) the formality of the
relationship between the person and the members of
the household, (3) whether the place where the person
lives is in the same house, the same curtilage, or upon
the same premises as the insured, and (4) whether the
person has another place of lodging; additional factors
for determining if a minor child is domiciled with the
child’s parents include whether the child continues to
use the parent’s home as the child’s mailing address,
maintains some possessions there, uses the parent’s
address on the child’s driver’s license or other docu-
ments, and whether a room is maintained for the child
at the parents’ home and the child is dependent upon
the parents for support (MCL 500.3114[1]). Grange Ins
Co of Michigan v Lawrence, 296 Mich App 319.
12. The phrase “domiciled in the same household” in MCL
500.3114(1) of the no-fault insurance act does not have
a fixed meaning; its meaning may vary with the
circumstances; the phrase does not limit the minor
child of divorced parents to one domicile and does not
define a “domicile” as a “principal residence” (MCL
500.3114[1]). Grange Ins Co of Michigan v Lawrence,
296 Mich App 319.
INSURERS IN SAME ORDER OF PRIORITY—See
I
NSURANCE
5
INTENT ELEMENT OF MISCONDUCT IN
OFFICE—See
P
UBLIC
O
FFICERS
3
INTENT ELEMENT OF WILLFUL NEGLECT
OF DUTY—See
P
UBLIC
O
FFICERS
7
INTERSTATE COMMERCE—See
T
AXATION
10
INTRASTATE TRAVEL—See
T
AXATION
10
INVITEES—See
N
EGLIGENCE
2, 3
876 296 M
ICH
A
PP
INVOLVEMENT OF TWO DISTINCT ENTITIES IN
RACKETEERING—See
C
RIMINAL
L
AW
11
JUDGMENTS
See, also,
C
OURTS
3, 4
D
ECLARATORY
J
UDGMENTS
1
C
ONSENT
J
UDGMENT
A
PPEALS
1. When a party approves an order or consents to a
judgment by stipulation, the resultant judgment or
order is binding on the parties and the court; absent
fraud, mistake, or unconscionable advantage, a consent
judgment cannot be set aside or modified without the
consent of the parties, nor is it subject to appeal. Clohset
v No Name Corp, 296 Mich App 525.
JUDICIAL ESTOPPEL—See
E
STOPPEL
1, 2
JURISDICTION—See
C
OURTS
1, 2, 3, 4
JURY INSTRUCTIONS—See
A
PPEAL AND
E
RROR
1
T
RIAL
1
LARCENY FROM THE PERSON—See
C
RIMINAL
L
AW
5, 6
LAW ENFORCEMENT—See
A
RREST
1, 2
S
ENTENCES
3
LEASE RECEIPTS—See
T
AXATION
7
LEASED VEHICLES—See
I
NSURANCE
2, 9
LEGISLATIVE BRANCH OF GOVERNMENT—See
D
ECLARATORY
J
UDGMENTS
1
I
NDEX
-D
IGEST
877
LICENSE PLATES—See
M
OTOR
V
EHICLES
1
LIFETIME ELECTRONIC MONITORING—See
C
RIMINAL
L
AW
1
LIMITATION OF ACTIONS—See
C
ONTRACTS
1
I
NDEMNITY
1
T
AXATION
1
LOCAL GOVERNMENT AND SCHOOL DISTRICT
FISCAL ACCOUNTABILITY ACT—See
S
TATUTES
2
LOW-INCOME AND ENERGY EFFICIENCY
FUND—See
P
UBLIC
U
TILITIES
2
MALFEASANCE—See
P
UBLIC
O
FFICERS
2
MANDATORY SENTENCES—See
C
RIMINAL
L
AW
3
MARIJUANA—See
C
ONTROLLED
S
UBSTANCES
1
MARRIAGE CONTRACTS—See
C
ONTRACTS
2, 3
MEDICAL MARIJUANA—See
C
ONTROLLED
S
UBSTANCES
1
MICHIGAN MEDICAL MARIHUANA ACT—See
C
ONTROLLED
S
UBSTANCES
1
MICHIGAN VEHICLE CODE—See
C
ONSTITUTIONAL
L
AW
2
C
RIMINAL
L
AW
9
MINISTERIAL ACTS—See
P
UBLIC
O
FFICERS
1
878 296 M
ICH
A
PP
MINORS—See
I
NSURANCE
11, 12
P
ARENT AND
C
HILD
1, 2
MISCONDUCT IN OFFICE—See
C
RIMINAL
L
AW
10
P
UBLIC
O
FFICERS
2, 3, 4, 5
MISFEASANCE—See
P
UBLIC
O
FFICERS
2
MODIFICATION OF CHILD CUSTODY ORDERS—See
P
ARENT AND
C
HILD
2
MODIFICATIONS OF FEDERAL INCOME TAX
RETURNS—See
T
AXATION
3
MORTGAGES
G
UARANTORS
1. A creditor generally may simultaneously proceed
against a guarantor and foreclose on mortgaged prop-
erty because a guarantee is generally an obligation
separate from the mortgage note; where the guaranties
are specifically included in the mortgage debt by the
terms of the mortgage agreement, the guaranties are
not obligations that are separate from the mortgage
note and an action that is instituted against the guar-
antors constitutes an action to recover the debt secured
by the mortgage for purposes of the one-action rule that
provides that a foreclosure by advertisement is permit-
ted only if an action or proceeding has not been insti-
tuted, at law, to recover the debt secured by the mort-
gage or any part of the mortgage (MCL 600.3204[1][b]).
Greenville Lafayette, LLC v Elgin State Bank, 296 Mich
App 284.
MOTOR VEHICLE STOPS—See
S
EARCHES AND
S
EIZURES
1
I
NDEX
-D
IGEST
879
MOTOR VEHICLES
See, also,
C
ONSTITUTIONAL
L
AW
2
C
ONTROLLED
S
UBSTANCES
1
C
RIMINAL
L
AW
7, 8, 9
I
NSURANCE
1, 2, 3, 4, 8, 9
R
EGISTRATION
P
LATES
1. An unexpired registration plate affixed to a vehicle
serves as presumptive evidence that the vehicle is val-
idly registered with the Secretary of State and that it
carries the statutorily mandated no-fault insurance; the
appropriate course of action to destroy that presump-
tion after the sale of the vehicle is for the seller to
remove the registration plate and the certificates of
registration and insurance from the vehicle; a reason-
able inference can be made that the seller voluntarily
remained the insuring registrant of the vehicle when the
seller failed to remove an unexpired registration plate
from the vehicle. Titan Insurance Co v State Farm
Mutual Automobile Insurance Co, 296 Mich App 75.
MUNICIPAL CORPORATIONS—See
G
OVERNMENTAL
I
MMUNITY
1
MURDER—See
C
RIMINAL
L
AW
4
NAMED INSUREDS—See
I
NSURANCE
7
NEGLECT DEFINED—See
P
UBLIC
O
FFICERS
8
NEGLIGENCE
P
REMISES
L
IABILITY
1. Michigan caselaw distinguishes between claims arising
from ordinary negligence and claims premised on a
condition of the land; for claims premised on a condition
of the land, liability arises solely from the defendant’s
duty as an owner, possessor, or occupier of the land; an
action sounds in premises liability rather than ordinary
negligence if the plaintiff’s injury arose from an alleg-
edly dangerous condition on the land, even when the
880 296 M
ICH
A
PP
plaintiff alleges that the premises possessor created the
condition giving rise to the plaintiff’s injury. Buhalis v
Trinity Continuing Care Services, 296 Mich App 685.
2. A possessor of land is not an absolute insurer of an
invitee’s safety; an owner of land generally owes a duty
to an invitee to exercise reasonable care to protect the
invitee from an unreasonable risk of harm caused by a
dangerous condition on the land; in the absence of
special aspects, this duty does not extend to open and
obvious dangers; only those special aspects that give rise
to a uniquely high likelihood of harm or severity of harm
if the risk is not avoided will remove that condition from
the open-and-obvious-danger doctrine. Buhalis v Trin-
ity Continuing Care Services, 296 Mich App 685.
3. When dangers are known to the invitee or are so obvious
that the invitee might reasonably be expected to dis-
cover them, an invitor owes no duty to protect or warn
the invitee unless he should anticipate the harm despite
knowledge of it on behalf of the invitee; the hazards
presented by snow and ice are generally open and
obvious and the landowner has no duty to warn of or
remove the hazard; if a condition creates a risk of harm
only because the invitee does not discover the condition
or realize its danger, then the open-and-obvious-danger
doctrine will cut off liability if the invitee should have
discovered the condition and realized its danger; recov-
ery is not allowed if the condition is so common that the
possibility of its presence is anticipated by prudent
persons; a landowner’s duty of reasonable care is not
breached when a premises possessor provides a clear
means of ingress and egress and the invitee strays off
the normal pathway onto an area that is obviously not
reserved for that purpose. Buhalis v Trinity Continuing
Care Services, 296 Mich App 685.
NEXT FRIENDS—See
C
ONTRACTS
2, 3
NO-FAULT—See
I
NSURANCE
1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12
NONFEASANCE BY PUBLIC OFFICERS—See
C
RIMINAL
L
AW
10
P
UBLIC
O
FFICERS
1, 2, 3, 4, 5, 6, 7
I
NDEX
-D
IGEST
881
NONTORT CAUSES OF ACTION—See
C
ONTEMPT
1
OFFENSE VARIABLE 10—See
C
RIMINAL
L
AW
13
ONE-ACTION RULE—See
M
ORTGAGES
1
120-DAY FILING REQUIREMENT FOR AMENDED
INCOME TAX RETURNS—See
T
AXATION
3
OPEN MEETINGS ACT—See
S
TATUTES
1, 2
OPEN-AND-OBVIOUS-DANGER DOCTRINE—See
N
EGLIGENCE
2, 3
OPERATING A MOTOR VEHICLE WHILE
INTOXICATED—See
C
RIMINAL
L
AW
9
OPERATING A MOTOR VEHICLE WITH A
SUSPENDED OR REVOKED DRIVER’S
LICENSE—See
C
RIMINAL
L
AW
7
OPERATING A VEHICLE DEFINED—See
C
RIMINAL
L
AW
9
OPERATING A VEHICLE WITH ANY AMOUNT OF A
CONTROLLED SUBSTANCE IN THE DRIVER’S
BODY—See
C
ONTROLLED
S
UBSTANCES
1
OVERHEAD AS COMPONENT OF COURT COSTS—See
C
OSTS
1
OWNER DEFINED—See
I
NSURANCE
1, 2
882 296 M
ICH
A
PP
OWNERS OF VEHICLES—See
I
NSURANCE
8, 9
PARENT AND CHILD—See
See, also,
I
NSURANCE
11, 12
C
HILD
C
USTODY
1. When there is a conflict between the parental presumption
in MCL 722.25(1), which provides that in a custody dispute
between a parent and a third person the court shall
presume that the best interests of the child are served by
awarding custody to the parent, unless the contrary is
established by clear and convincing evidence, and the
presumption in MCL 722.27(1)(c), which provides for the
modification of a child custody arrangement only when
there is a showing of proper cause or changed circum-
stances, the parental presumption of MCL 722.25(1) con-
trols. Frowner v Smith, 296 Mich App 374.
2. The first step toward modifying a custody award is to
show proper cause or a change of circumstances; to
establish proper cause, the moving party must establish
by a preponderance of the evidence an appropriate
ground that would justify the trial court’s taking action;
appropriate grounds should include at least one of the
12 best-interest factors set forth in MCL 722.23 and
must concern matters that have or could have a signifi-
cant effect on the child’s life; only after a moving party
has established proper cause or a change of circum-
stances may the trial court reevaluate the statutory
best-interest factors; the determination that proper
cause or a change of circumstances exists does not
necessarily require an evidentiary hearing (MCL
722.27[1][c]). Mitchell v Mitchell, 296 Mich App 513.
PARTIAL RECOUPMENT OF BENEFITS—See
I
NSURANCE
5
PEACE OFFICERS—See
A
RREST
1, 2
S
ENTENCES
3
PERIODS OF LIMITATIONS—See
C
ONTRACTS
1
I
NDEMNITY
1
I
NDEX
-D
IGEST
883
PERSONAL INJURY PROTECTION BENEFITS—See
I
NSURANCE
4, 5
PERSONAL PROPERTY—See
T
AXATION
9
PERSONAL PROTECTION INSURANCE
BENEFITS—See
I
NSURANCE
2, 3, 7
PHYSICAL CONTROL OF VEHICLE—See
C
RIMINAL
L
AW
9
PLEA-BARGAINING ADVICE AS INEFFECTIVE
ASSISTANCE OF COUNSEL—See
C
RIMINAL
L
AW
3
POSSESSION OF FIREARMS BY FELONS—See
C
RIMINAL
L
AW
12
POTENTIAL LAWSUITS AS PROPERTY IN
BANKRUPTCY ESTATE—See
A
CTIONS
1
PREMISES LIABILITY—See
N
EGLIGENCE
1, 2, 3
PRESENT AND SUBSTANTIAL INTEREST IN
LAWSUITS—See
A
CTIONS
1
PRESUMPTION FAVORING CUSTODY BY
PARENT—See
P
ARENT AND
C
HILD
1
PRESUMPTION OF MARRIAGE’S VALIDITY—See
C
ONTRACTS
2
PRESUMPTION OF VALID REGISTRATION—See
M
OTOR
V
EHICLES
1
884 296 M
ICH
A
PP
PRIEST-PENITENT PRIVILEGE—See
E
VIDENCE
3, 4, 5
PRIOR INCONSISTENT STATEMENTS—See
E
VIDENCE
2
PRIORITY OF INSURERS—See
I
NSURANCE
4, 5
PRIVILEGES—See
E
VIDENCE
3, 4, 5
PROBABLE CAUSE TO ARREST—See
A
RREST
2
PROBATION—See
A
RREST
1
S
ENTENCES
3
PROPER CAUSE TO MODIFY CHILD CUSTODY
ORDERS—See
P
ARENT AND
C
HILD
2
PROPERTY—See
D
EEDS
1
T
AXATION
9
PROXIMITY TO LARCENY VICTIM—See
C
RIMINAL
L
AW
5
PUBLIC BODIES—See
S
TATUTES
1, 2
PUBLIC OFFICERS
See, also,
C
RIMINAL
L
AW
10
C
ORRUPT
B
EHAVIOR
1. There is no relevant difference between corrupt behav-
ior and willful neglect in the context of nonfeasance in
relationship to a legal duty or obligation concerning
nondiscretionary or ministerial acts of a public officer.
People v Waterstone, 296 Mich App 121.
I
NDEX
-D
IGEST
885
M
ISCONDUCT IN
O
FFICE
2. Misconduct in office was defined under the common law
as corrupt behavior by an officer in the exercise of the
duties of his or her office or while acting under color of
his or her office; an officer could be convicted for
committing any act that is itself wrongful (malfeasance),
for committing a lawful act in a wrongful manner
(misfeasance), or for failing to perform any act that the
duties of the office require of the officer (nonfeasance).
People v Waterstone, 296 Mich App 121.
3. The requisite intent for a charge of misconduct in office
under the common law is the intent to engage in
corruption or corrupt behavior; corrupt intent can be
shown when there is intentional or purposeful misbe-
havior or wrongful conduct pertaining to the require-
ments and duties of a public office by an officer (MCL
750.505). People v Waterstone, 296 Mich App 121.
W
ILLFUL
N
EGLECT OF
D
UTY
4. The crime of willful neglect of duty under MCL 750.478
is the same as the crime of misconduct in office under
the common law in relation to a nonfeasance theory of
prosecution. People v Waterstone, 296 Mich App 121.
5. MCL 750.478, which punishes a public officer’s willful
neglect to perform a legal duty, necessarily encompasses
the element of corrupt behavior, which is also an ele-
ment of the common-law offense of misconduct in office
committed through nonfeasance for purposes of a pros-
ecution under MCL 750.505; there is no corrupt-
behavior distinction between the two statutes. People v
Waterstone, 296 Mich App 121.
6. Willful neglect of duty and corrupt nonfeasance are
effectively the same; if a public officer willfully neglects
to perform a legal duty the officer has engaged in
corruption or corrupt behavior. People v Waterstone, 296
Mich App 121.
7. The term “willful” in the statute regarding willful neglect
of duty by a public officer encompasses a knowledgeand
purpose to commit a wrong while committing an inten-
tional act of nonfeasance; a willful neglect of a duty
required by law to be performed by an officer, i.e., deliber-
ate forbearance, necessarily entails the intent to intention-
ally, knowingly, and purposely misbehave and engage in
wrongful conduct; this intent is identical to the corrupt
886 296 M
ICH
A
PP
intent needed to establish misconduct in office under the
common law (MCL 750.478; MCL 750.505). People v
Waterstone, 296 Mich App 121.
8. The term “neglect,” within the context of the statute
regarding willful neglect of duty by a public officer,
means a failure to perform a legal duty, not negligence;
a willful failure to perform does not encompass negli-
gent conduct (MCL 750.478). People v Waterstone, 296
Mich App 121.
PUBLIC POLICY—See
I
NSURANCE
8
PUBLIC SERVICE COMMISSION—See
P
UBLIC
U
TILITIES
1, 2, 3, 4
PUBLIC UTILITIES
E
LECTRIC
U
TILITIES
1. The Public Service Commission does not have authority
to approve or direct the use of a rate-decoupling mecha-
nism by electric providers to adjust for sales volumes
above or below projected levels (MCL 460.1097[4]). In re
Applications of Detroit Edison Co, 296 Mich App 101.
P
UBLIC
S
ERVICE
C
OMMISSION
2. Utilities regulated by the Public Service Commission
(PSC) are not required to raise money for the Low-
Income and Energy Efficiency Fund because its en-
abling legislation was deleted from the Customer Choice
and Electric Reliability Act, MCL 460.10 et seq.; under
its general regulatory powers provided in MCL
460.6a(2), the PSC does not have authority to approve a
utility’s collecting money as an operation and mainte-
nance expense from its ratepayers to fund a program to
help ratepayers who have difficulty paying their energy
bills or to administer a program to promote energy
efficiency in general. In re Applications of Detroit Edison
Co, 296 Mich App 101.
3. The Public Service Commission’s approval of a utility’s
experimental program is not reviewed for an abuse of
discretion; rather, recovery of the experimental pro-
gram’s costs must be just and reasonable and the
commission’s approval must be supported by compe-
tent, material, and substantial evidence on the whole
record; competing program considerations, the neces-
I
NDEX
-D
IGEST
887
sity of the program, and an analysis of the cost of the
program versus the net benefit to the customer must all
be considered. In re Applications of Detroit Edison Co,
296 Mich App 101.
4. Under MCL 460.11(1), electricity providers must calcu-
late the cost of providing service to each customer class
through the allocation of production-related and trans-
mission costs on the basis of a weighted formula of 50
percent peak demand, 25 percent on-peak energy use,
and 25 percent total energy use; because the Legislature
specified the 50-25-25 weighting formula but was silent
about how the individual components should be calcu-
lated, the Public Service Commission has authority in
the normal course of business to determine how those
components are calculated. In re Applications of Detroit
Edison Co, 296 Mich App 101.
PURCHASERS—See
T
AXATION
10
QUITCLAIM DEEDS—See
D
EEDS
1
RACKETEERING—See
C
RIMINAL
L
AW
11
RAPE—See
C
RIMINAL
L
AW
1, 14
RATE-DECOUPLING MECHANISMS—See
P
UBLIC
U
TILITIES
1
RATEMAKING—See
P
UBLIC
U
TILITIES
1, 4
REAL PROPERTY—See
D
EEDS
1
REASONABLE REPAIR OF SIDEWALKS—See
G
OVERNMENTAL
I
MMUNITY
1
REASONABLE SUSPICION TO JUSTIFY TRAFFIC
STOPS—See
S
EARCHES AND
S
EIZURES
1
888 296 M
ICH
A
PP
RECIPROCITY FOR FOREIGN DRIVER’S
LICENSES—See
C
RIMINAL
L
AW
8
RECOVERY OF DAMAGES IN CONTEMPT
PROCEEDINGS—See
C
ONTEMPT
1
REFORMATION OF POLICIES—See
I
NSURANCE
6
REFUNDS—See
T
AXATION
1
REGISTRANT DEFINED—See
I
NSURANCE
1
REGISTRANTS OF VEHICLES—See
I
NSURANCE
8, 9
REGISTRATION PLATES—See
M
OTOR
V
EHICLES
1
REGISTRATION OF MOTOR VEHICLES—See
I
NSURANCE
2
RELEVANCE—See
E
VIDENCE
6
REMEDIES—See
I
NSURANCE
6
RENTAL OR LEASE RECEIPTS—See
T
AXATION
7
RESIDENCE DEFINED—See
I
NSURANCE
10
RETAILERS—See
T
AXATION
4
REVOKED DRIVER’S LICENSES—See
C
RIMINAL
L
AW
7
I
NDEX
-D
IGEST
889
RIGHT TO COUNSEL—See
C
ONSTITUTIONAL
L
AW
1
C
RIMINAL
L
AW
2, 3
ROYALTIES—See
T
AXATION
6, 7
SALES—See
T
AXATION
6, 7
SALES FACTOR FOR SINGLE BUSINESS TAX—See
T
AXATION
5
SALES TAX—See
T
AXATION
4
SCHEDULE 1 CONTROLLED SUBSTANCES—See
C
ONTROLLED
S
UBSTANCES
1
SEARCHES AND SEIZURES
E
VIDENCE
1. People v Dillon, 296 Mich App 506.
SEARCHES OF PROBATIONERS—See
S
ENTENCES
3
SECOND-DEGREE CRIMINAL SEXUAL
CONDUCT—See
C
RIMINAL
L
AW
1
SELF-DEFENSE—See
C
RIMINAL
L
AW
12
SENTENCES
See, also,
C
RIMINAL
L
AW
1, 3, 13
H
ABITUAL
O
FFENDERS
1. Under MCL 769.10, a trial court may enhance the
maximum sentence for habitual offenders, but a trial
court necessarily abuses its discretion if it applies MCL
769.10 and enhances a sentence under the mistaken
belief that it is required to do so. People v Gioglio (On
Remand), 296 Mich App 12.
890 296 M
ICH
A
PP
H
OLMES
Y
OUTHFUL
T
RAINEE
A
CT
2. Under the Holmes Youthful Trainee Act (HYTA), MCL
762.11 et seq., defendants charged with committing
certain crimes while between the ages of 17 and 21 may
be assigned to youthful-trainee status, which does not
constitute a conviction of a crime unless the court
revokes the defendant’s status; HYTA is evidence of a
legislative intent that persons in that age group not be
stigmatized with criminal records for immature acts
made without reflection; a trial court has wide discre-
tion in placing a youthful offender under HYTA, but
when making its decision should consider the defen-
dant’s age, the seriousness of the offense, and whether
the defendant was on bond for another offense when the
crime was committed. People v Khanani, 296 Mich App
175.
P
ROBATION
3. Probation is a matter of legislative grace; a probationer
has no vested right in the continuation of probation and
the probation order remains revocable and amendable
at all times; a sentence of supervised release involves the
surrender of certain constitutional rights; a probationer
has a diminished expectation of privacy and may be
subjected to searches that might be unreasonable if
conducted on members of the general public; the Fourth
Amendment does not require a warrant to search a
probationer’s home or to arrest the probationer, there-
fore, the Fourth Amendment’s oath and affirmation
requirement generally applicable to warrants does not
apply to a warrant for the arrest of a probationer. People
v Glenn-Powers, 296 Mich App 494.
SENTENCING GUIDELINES—See
C
RIMINAL
L
AW
13
SIDEWALKS—See
G
OVERNMENTAL
I
MMUNITY
1
SINGLE BUSINESS TAX—See
T
AXATION
5, 6, 7
SIXTH AMENDMENT—See
C
ONSTITUTIONAL
L
AW
1
C
RIMINAL
L
AW
2, 3
I
NDEX
-D
IGEST
891
SNOW AND ICE—See
N
EGLIGENCE
3
SOURCE OF FUNDING FOR LOW-INCOME
ASSISTANCE PROGRAMS—See
P
UBLIC
U
TILITIES
2
SPECIAL ASPECTS OF DANGEROUS
CONDITIONS—See
N
EGLIGENCE
2
STANDARD FOR ENTERING—See
I
NJUNCTIONS
1
STANDARD OF REVIEW OF PUBLIC SERVICE
COMMISSION’S APPROVAL OF EXPERIMENTAL
PROGRAMS—See
P
UBLIC
U
TILITIES
3
STANDING IN BANKRUPTCY ACTIONS—See
A
CTIONS
1
STATE OF MIND OF ARRESTING OFFICER—See
A
RREST
2
STATE TREASURER AS PUBLIC BODY—See
S
TATUTES
1
STATUTES
See, also,
C
ONSTITUTIONAL
L
AW
2
E
QUITY
1
T
AXATION
2
O
PEN
M
EETINGS
A
CT
1. The Open Meetings Act (OMA) defines a “public body”
as any state or local legislative or governing body,
including a board, commission, committee, subcommit-
tee, authority, or council, that is empowered by state
constitution, statute, charter, ordinance, resolution, or
rule to exercise governmental or proprietary authority
or perform a governmental or proprietary function; an
individual executive acting in his or her executive ca-
pacity is not a public body for purposes of the OMA;
892 296 M
ICH
A
PP
thus, the State Treasurer, when acting in his or her
executive capacity with authority either generally de-
rived from the Constitution or specifically derived from
statute, is not a public body under the OMA (MCL
15.262[a]). Davis v City of Detroit Financial Review
Team, 296 Mich App 568.
2. To be a public body under the Open Meetings Act
(OMA), the entity at issue must be a state or local
legislative or governing body that is empowered by state
constitution, statute, charter, ordinance, resolution, or
rule to exercise governmental or proprietary authority
or perform a governmental or proprietary function; that
an entity exercises governmental authority is not itself
dispositive of whether it is a public body; the entity must
also be a legislative or governing body; a financial review
team appointed under the Local Government and
School District Fiscal Accountability Act is not a legis-
lative or governing body and, therefore, is not a public
body under the OMA (MCL 15.261 et seq., MCL
141.1501 et seq.). Davis v City of Detroit Financial
Review Team, 296 Mich App 568.
STATUTES OF LIMITATIONS—See
C
ONTRACTS
1
I
NDEMNITY
1
T
AXATION
1
STRICKLAND TEST FOR INEFFECTIVE ASSISTANCE
OF COUNSEL—See
C
ONSTITUTIONAL
L
AW
1
SUBJECT-MATTER JURISDICTION—See
C
OURTS
2, 4
SUSPENDED DRIVER’S LICENSES—See
C
RIMINAL
L
AW
7
TAXATION
C
LAIMS FOR
T
AX
R
EFUNDS
1. MCL 205.27a(2) prohibits a taxpayer from claiming a
refund of any amount paid to the Department of Trea-
sury more than four years after the date set for filing the
original return; MCL 205.27a(3)(a) suspends the run-
I
NDEX
-D
IGEST
893
ning of this four-year limitations period while a final
determination of tax is pending and for one year after
that; MCL 205.27a(2) and MCL 205.27a(3) apply con-
secutively if a taxpayer pursues a final determination of
tax liability. Krueger v Dep’t of Treasury, 296 Mich App
656.
E
XEMPTIONS
2. Tax exemption statutes are to be strictly construed in
favor of the taxing unit; an exemption cannot be made
out by inference or implication but must be found to
have been intended by the Legislature beyond a reason-
able doubt. Eastbrook Homes, Inc v Dep’t of Treasury,
296 Mich App 336.
I
NCOME
T
AX
3. MCL 206.325(2) requires a taxpayer to file an amended
return with the Department of Treasury showing any
final alteration in or modification of the taxpayer’s
federal income tax return that affects the taxpayer’s
taxable income under part 1 of the Income Tax Act,
MCL 206.1 through MCL 206.532, within 120 days of
the alteration or modification; the 120-day filing re-
quirement is not a separate statute of limitations that
supersedes the four-year limitations period set forth in
MCL 205.27a(2). Krueger v Dep’t of Treasury, 296 Mich
App 656.
S
ALES
T
AX
4. The General Sales Tax Act, MCL 205.51 et seq., imposes
a tax on retail sales of tangible personal property within
the state of Michigan and is imposed on the retailer for
the privilege of engaging in the business of making retail
sales; because retailers have the ultimate responsibility
to pay any sales tax on those transactions, the Depart-
ment of Treasury may not place a duty on a purchaser to
show that the sales tax was paid to the state. Andrie Inc
v Dep’t of Treasury, 296 Mich App 355.
S
INGLE
B
USINESS
T
AX
5. Under MCL 208.45 of the former Single Business Tax, a
formula involving three ratios—the property factor, the
payroll factor, and the sales factor—was used to appor-
tion taxing authority for goods and services between two
taxing states and calculate the adjusted tax base, which
was then used to calculate the single business tax
liability; under former MCL 208.52(b) sales of tangible
894 296 M
ICH
A
PP
personal property could be sourced to Michigan for
purposes of calculating the sales factor only if the
product had been shipped or delivered to a customer
within Michigan; the sale of property would not be
sourced on the basis of where the sale occurred. Uniloy
Milacron USA Inc v Dep’t of Treasury, 296 Mich App 93.
6. Royalties do not constitute sales receipts for purposes of
the definition of “sales” in MCL 208.7(1) of the former
Single Business Tax Act because they do not arise from
a transaction in which the royalty income was consid-
eration for the transfer of possession of property; a
royalty is compensation paid to the owner of certain
types of property, such as intangible property or natural
resources, for the use of that property; royalty income
derives from the transfer of the right to use property,
not from the transfer of possession of property. Kelly
Services, Inc v Dep’t of Treasury, 296 Mich App 306.
7. Income generated from royalties and rents were mutu-
ally exclusive categories for purpose of the former Single
Business Tax Act (SBTA) given their differing natures
and treatments; royalty income does not constitute
rental or lease receipts for purposes of the definitions of
“sales” and “gross receipts” in former MCL 208.7(1) and
(3) of the SBTA. Kelly Services, Inc v Dep’t of Treasury,
296 Mich App 306.
U
SE
T
AX
8. Property sold to a person engaged in a business enter-
prise that then uses and consumes the property in the
breeding, raising, or caring for livestock, poultry, or
horticultural products is entitled to the agricultural-
production exemption from use tax provided in the Use
Tax Act; a person must be both engaged in a business
enterprise and use and consume the property in the
breeding, raising, or caring for livestock, poultry, or
horticultural products to be entitled to the exemption
(MCL 205.94[1][f]). Sietsema Farms Feeds, LLC v Dep’t
of Treasury, 296 Mich App 232.
9. The Use Tax Act, MCL 205.91 et seq., imposes a tax on
the purchaser for the privilege of using, storing or
consuming tangible personal property in this state;
under MCL 205.94(1)(j) a purchase is exempt from the
use tax (1) if a vessel was designed for commercial use of
registered tonnage of 500 tons or more, if produced upon
special order of the purchaser, and (2) if the purchase
I
NDEX
-D
IGEST
895
was for bunker and galley fuel, provisions, supplies,
maintenance, and repairs for the exclusive use of a
vessel of 500 tons or more and is also engaged in
interstate commerce; MCL 205.94(1)(j) does not apply to
a multiple vessels acting as a single vessel; a barge and
tug in dedicated service did not qualify as a single vessel
under MCL 205.94(1)(j). Andrie Inc v Dep’t of Treasury,
296 Mich App 355.
10. Property or services under MCL 205.94(1) are exempt
from the use tax only to the extent that they are used
for the exempt purpose stated in that section; all parts
of goods that travel in commerce between states,
including those portions that only travel intrastate,
constitute interstate commerce; a vessel or vehicle is
used in interstate commerce if it carries goods moving
in a continuous stream from an origin in one state to a
destination in another. Andrie Inc v Dep’t of Treasury,
296 Mich App 355.
TENDER-YEARS EXCEPTION—See
E
VIDENCE
1
TERRY STOPS—See
S
EARCHES AND
S
EIZURES
1
TETHERS—See
C
RIMINAL
L
AW
1
THIRD-DEGREE CRIMINAL SEXUAL CONDUCT—See
C
RIMINAL
L
AW
14
TRAFFIC STOPS—See
S
EARCHES AND
S
EIZURES
1
TRIAL
J
URY
I
NSTRUCTIONS
1. The verdict form is treated as a part of the jury
instructions. People v Eisen, 296 Mich App 326.
TUGS—See
T
AXATION
9
USE TAX—See
T
AXATION
8, 9, 10
896 296 M
ICH
A
PP
VAGUENESS—See
C
ONSTITUTIONAL
L
AW
2
VALIDITY OF MARRIAGES—See
C
ONTRACTS
2
VEHICLE CODE—See
C
ONSTITUTIONAL
L
AW
2
C
RIMINAL
L
AW
9
VERDICT FORMS—See
T
RIAL
1
VESSELS—See
T
AXATION
9, 10
VICTIMS—See
C
RIMINAL
L
AW
13
VULNERABLE-ADULT ABUSE—See
C
RIMINAL
L
AW
4
WAIVER OF CLERIC-CONGREGANT PRIVILEGE—See
E
VIDENCE
5
WARRANTLESS SEARCH OR ARREST OF
PROBATIONERS—See
A
RREST
1
S
ENTENCES
3
WILLFUL NEGLECT OF DUTY—See
C
RIMINAL
L
AW
10
P
UBLIC
O
FFICERS
1, 4, 5, 6, 7, 8
WITNESSES—See
E
VIDENCE
2
WORDS AND PHRASES—See
C
RIMINAL
L
AW
9
I
NSURANCE
1, 2, 9, 10, 11, 12
P
UBLIC
O
FFICERS
3, 8
I
NDEX
-D
IGEST
897
WRONGFUL-DEATH DAMAGES IN CONTEMPT
PROCEEDINGS—See
C
ONTEMPT
1
YOUTHFUL TRAINEES—See
S
ENTENCES
2
898 296 M
ICH
A
PP
