BV_MiApp306

MICHIGAN APPEALS REPORTS

CASES DECIDED

IN THE

MICHIGAN

COURT OF APPEALS

FROM

June 26, 2014, through September 23, 2014

CORBIN R. DAVIS

REPORTER OF DECISIONS

VOLUME 306

FIRST EDITION

2015

The paper used in this publication meets the minimum

requirements of American National Standard for Information

Sciences—Permanence of Paper for Printed Library Materials,

ANSI Z39.48-1984.

COURT OF APPEALS

ERM

XPIRES

ANUARY

HIEF

UDGE

WILLIAM B. MURPHY................................................................. 2019

HIEF

UDGE

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

UDGES

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

KATHLEEN JANSEN ................................................................... 2019

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

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

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

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

PETER D. O’CONNELL ............................................................... 2019

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

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

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

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

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

KIRSTEN FRANK KELLY............................................................ 2019

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

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

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

STEPHEN L. BORRELLO............................................................ 2019

DEBORAH A. SERVITTO............................................................. 2019

JANE M. BECKERING ................................................................. 2019

ELIZABETH L. GLEICHER......................................................... 2019

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

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

DOUGLAS B. SHAPIRO ............................................................... 2019

AMY RONAYNE KRAUSE............................................................ 2015

MARK T. BOONSTRA................................................................... 2015

MICHAEL J. RIORDAN ................................................................ 2019

HIEF

LERK

JEROME W. ZIMMER, J

ESEARCH

IRECTOR:

JULIE ISOLA RUECKE

SUPREME COURT

ERM

XPIRES

ANUARY

HIEF

USTICE

ROBERT P. YOUNG, J

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

USTICES

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

STEPHEN J. MARKMAN............................................................ 2021

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

BRIAN K. ZAHRA ........................................................................ 2015

BRIDGET M. M

CORMACK ....................................................... 2021

DAVID F. VIVIANO ...................................................................... 2015

OMMISSIONERS

DANIEL C. BRUBAKER, C

HIEF

OMMISSIONER

SHARI M. OBERG, D

EPUTY

HIEF

OMMISSIONER

TIMOTHY J. RAUBINGER JÜRGEN O. SKOPPEK

LYNN K. RICHARDSON MICHAEL S. WELLMAN

NELSON S. LEAVITT GARY L. ROGERS

DEBRA A. GUTIERREZ-M

GUIRE RICHARD B. LESLIE

ANNE-MARIE HYNOUS VOICE KATHLEEN M. DAWSON

DON W. ATKINS SAMUEL R. SMITH

ANNE E. ALBERS

TATE

OURT

DMINISTRATOR

JOHN A. HOHMAN, J

LERK:

LARRY S. ROYSTER

EPORTER OF

ECISIONS:

CORBIN R. DAVIS

RIER:

DAVID G. PALAZZOLO

TABLE OF CASES REPORTED

AGE

Attala v Orcutt ..................................................... 502

Auto Club Ins Ass’n, Jesperson v ...................... 632

Blackburn, Mayor of Cadillac v .......................... 512

CVS Caremark v State Tax Comm .................... 58

Casey Estate, In re .............................................. 252

Cichewicz v Salesin .............................................. 14

City of Romulus, Rataj v ..................................... 735

Contempt of Dorsey, In re ................................... 571

DBS, IME v .......................................................... 426

Dep’t of Ed, Galien Twp School Dist v .............. 410

Dep’t of Environmental Quality, National

Wildlife Federation v (No. 1) .......................... 336

Dep’t of Environmental Quality, National

Wildlife Federation v (No. 2) .......................... 369

Dep’t of Environmental Quality, Schmude Oil,

Inc v .................................................................. 35

Dep’t of Transportation, Yono v (On Remand) .... 671

Dep’t of Treasury, Gardner v .............................. 546

AGE

Dep’t of Treasury, Maselli v ................................ 546

Dep’t of Treasury, Ngo v ..................................... 546

Dep’t of Treasury, P J Hospitality, Inc v ........... 479

DiMeglio, Peabody v ............................................ 397

Duenaz, People v ................................................. 85

Dunbar, People v .................................................. 562

Ed (Dep’t of), Galien Twp School Dist v ........... 410

Environmental Quality (Dep’t of), National

Wildlife Federation v (No. 1) .......................... 336

Environmental Quality (Dep’t of), National

Wildlife Federation v (No. 2) .......................... 369

Environmental Quality (Dep’t of), Schmude

Oil, Inc v ........................................................... 35

Federal Home Loan Mortgage Ass’n v Kelley

(On Recon) ....................................................... 487

GZ DVD’s Inc, Movie Mania Metro, Inc v ......... 594

Gaines, People v ................................................... 289

Galien Twp School Dist v Dep’t of Ed ............... 410

Gardner v Dep’t of Treasury .............................. 546

Glaubius v Glaubius ............................................ 157

HP Pelzer Automotive Systems, Inc, Klein v .... 67

Hanton v Hantz Financial Services, Inc ............ 654

Hantz Financial Services, Inc, Hanton v ........... 654

Harris, People v ................................................... 116

Henderson, People v ............................................ 1

Hodge v US Security Associates, Inc ................. 139

ii 306 M

ICH

AGE

Howmet Corp, Nichols v (On Remand) ............. 215

Hughes, People v ................................................. 116

IME v DBS ........................................................... 426

In re Casey Estate ............................................... 252

In re Contempt of Dorsey ................................... 571

In re LaFrance Minors ........................................ 713

In re Lampart ....................................................... 226

In re TK ................................................................ 698

Janet Travis, Inc v Preka Holdings, LLC .......... 266

Jesperson v Auto Club Ins Ass’n ....................... 632

Kelley, Federal Home Loan Mortgage Ass’n v

(On Recon) ....................................................... 487

Klein v HP Pelzer Automotive Systems, Inc ..... 67

Kubicki v Sharpe ................................................. 525

LaFrance Minors, In re ....................................... 713

Lampart, In re ...................................................... 226

Little, People v ..................................................... 116

Lofts on the Nine, LLC, Ronnisch

Construction Group, Inc v .............................. 203

Maselli v Dep’t of Treasury ................................ 546

Mayor of Cadillac v Blackburn ........................... 512

Mineau, People v .................................................. 325

Movie Mania Metro, Inc v GZ DVD’s Inc .......... 594

ABLE OF

ASES

EPORTED

iii

AGE

National Wildlife Federation v Dep’t of

Environmental Quality (No. 1) ...................... 336

National Wildlife Federation v Dep’t of

Environmental Quality (No. 2) ...................... 369

Ngo v Dep’t of Treasury ..................................... 546

Nichols v Howmet Corp (On Remand) .............. 215

Okrie v State of Michigan ................................... 445

Orcutt, Attala v .................................................... 502

P J Hospitality, Inc v Dep’t of Treasury ............ 479

Peabody v DiMeglio ............................................. 397

Peaker Services, Inc, Travelers Property

Casualty Co of America v ................................ 178

People v Duenaz .................................................. 85

People v Dunbar .................................................. 562

People v Gaines .................................................... 289

People v Harris .................................................... 116

People v Henderson ............................................. 1

People v Hughes .................................................. 116

People v Little ...................................................... 116

People v Mineau ................................................... 325

People v Stevens .................................................. 620

Preka Holdings, LLC, Janet Travis, Inc v ......... 266

Rataj v City of Romulus ...................................... 735

Romulus (City of), Rataj v .................................. 735

Ronnisch Construction Group, Inc v Lofts on

the Nine, LLC .................................................. 203

iv 306 M

ICH

AGE

Salesin, Cichewicz v ............................................. 14

Schmude Oil, Inc v Dep’t of Environmental

Quality ..............................................................

Sharpe, Kubicki v ................................................ 525

State of Michigan, Okrie v .................................. 445

State Tax Comm, CVS Caremark v ................... 58

Stevens, People v ................................................. 620

TK, In re ............................................................... 698

Transportation (Dep’t of), Yono v (On Remand) . 671

Travelers Property Casualty Co of America v

Peaker Services, Inc ........................................ 178

Treasury (Dep’t of), Gardner v .......................... 546

Treasury (Dep’t of), Maselli v ............................. 546

Treasury (Dep’t of), Ngo v .................................. 546

Treasury (Dep’t of), P J Hospitality, Inc v ........ 479

US Security Associates, Inc, Hodge v ................ 139

Yono v Dep’t of Transportation (On Remand) .. 671

ABLE OF

ASES

EPORTED

OURT OF

PPEALS

ASES

PEOPLE v HENDERSON

Docket No. 311864. Submitted June 4, 2014, at Grand Rapids. Decided

June 26, 2014, at 9:00 a.m. Leave to appeal sought.

Jaquan Henderson was convicted in the Kalamazoo Circuit Court of

second-degree murder, MCL 750.317, assault with intent to com-

mit murder, MCL 750.83, being a felon in possession of a firearm,

MCL 750.224f, and three counts of possession of a firearm during

the commission of a felony, MCL 750.227b. During the trial, the

court, Pamela L. Lightvoet, J., did not give an instruction on

duress in response to the jury’s request for one. Defendant

appealed, including among the arguments raised that the court

had erred by failing to give the instruction.

The Court of Appeals held:

1. Duress is not a defense to homicide. The rationale underly-

ing this common-law rule is that one cannot submit to coercion to

take the life of an innocent third person, but should instead risk or

sacrifice his or her own life. Because duress is not a defense to

homicide, the trial court did not err by declining to instruct the

jury in this regard with respect to defendant’s murder charge.

2. Defendant also argued that the basic principle that duress is

not a defense to homicide does not apply if the defendant did not

actually commit the murder but was instead prosecuted as an

aider and abettor to murder. If directly committing a homicide is

not subject to a duress defense, however, assisting a principal in

the commission of a homicide cannot be subject to a duress defense

either, considering that an aider and abettor to murder is assisting

in taking the life of an innocent third person instead of risking or

sacrificing his or her own life.

3. Defendant further argued that an instruction on duress

should have been given with regard to his conviction of assault

with intent to commit murder. Application of a duress defense

in the context of assault with intent to commit murder would be

entirely incongruous with the principle underlying the

common-law rule. It was only the fortunate fact of one victim’s

survival, not a difference in defendant’s conduct, that rendered

defendant guilty of assault with intent to commit murder rather

than murder with respect to that victim. Given that a defendant

EOPLE V

ENDERSON

may not justify a homicide with a claim of duress, it logically

follows that a defendant cannot similarly justify conduct in-

tended to kill simply because he or she failed in the effort.

4. The elements of assault with intent to commit murder are

(1) an assault (2) with an actual intent to kill (3) that, if

successful, would make the killing murder. The elements of

second-degree murder consist of (1) a death (2) caused by an act

of the defendant (3) with malice and (4) without justification or

excuse. Malice is the intent to kill, the intent to cause great

bodily harm, or the intent to do an act in wanton and willful

disregard of the likelihood that the natural tendency of the

behavior would be to cause death or great bodily harm. Aiding

and abetting describes any type of assistance given to the

perpetrator of a crime by words or deeds that were intended to

encourage, support, or incite the commission of that crime. A

defendant must have had the criminal intent to aid, abet,

procure, or counsel the commission of an offense. A defendant is

criminally liable for the offenses he or she specifically intended

to aid or abet or had knowledge of, as well as the crimes that are

the natural and probable consequences of those offenses. There-

fore, the prosecution must prove beyond a reasonable doubt

that the defendant aided or abetted the commission of an

offense and that the defendant intended to aid the charged

offense, knew that the principal intended to commit the charged

offense, or, alternatively, that the charged offense was a natural

and probable consequence of the commission of the intended

offense.

5. There was sufficient evidence to support defendant’s con-

victions and, in particular, to establish that he possessed the

requisite intent for each offense. Intent may be inferred from

circumstantial evidence. Because it can be difficult to prove a

defendant’s state of mind on issues such as knowledge and intent,

minimal circumstantial evidence will suffice to establish his or her

state of mind. Intent to kill may be inferred from all the facts in

evidence, including the use of a deadly weapon, a motive to kill, or

flight and lying (which may reflect a consciousness of guilt).

Affirmed.

OMICIDE —

IDING AND

BETTING —

SSAULT

ITH

NTENT TO

OMMIT

URDER —

EFENSES —

URESS

Duress is not a defense to homicide; a defendant charged with

assault with intent to commit murder or aiding or abetting

second-degree murder is similarly not entitled to a jury instruction

on duress as a defense.

2 306 M

ICH

1 [June

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Jeffrey S. Getting, Prosecuting Attor-

ney, and Heather S. Bergmann, Assistant Prosecuting

Attorney, for the people.

Mary A. Owens for defendant.

Before: M

URPHY

, C.J., and S

HAPIRO

and R

IORDAN

,JJ.

URPHY

, C.J. Following a jury trial, defendant ap-

peals as of right his convictions for second-degree

murder, MCL 750.317, assault with intent to commit

murder (AWIM), MCL 750.83, being a felon in posses-

sion of a firearm, MCL 750.224f, and three counts of

possession of a firearm during the commission of a

felony (felony-firearm), MCL 750.227b. The trial court

sentenced defendant as a fourth-offense habitual of-

fender, MCL 769.12, to 35 to 80 years’ imprisonment for

the murder and AWIM convictions, to 76 to 360

months’ imprisonment for the felon-in-possession con-

viction, and to 2 years’ imprisonment for each of the

felony-firearm convictions. We affirm.

On appeal, defendant first argues that the trial court

erred by declining to give a duress instruction in

response to a request for such an instruction by the jury.

Rather than instruct on duress, the trial court directed:

“You must follow the instructions given to you. Duress

is not a defense to homicide/murder.” Defense counsel

objected to the trial court’s response to the jury, thereby

preserving this issue for review. See MCR 2.512(C).

“Claims of instructional error are generally reviewed de

novo by this Court, but the trial court’s determination

that a jury instruction is applicable to the facts of the

case is reviewed for an abuse of discretion.” People v

Dobek, 274 Mich App 58, 82; 732 NW2d 546 (2007).

2014] P

EOPLE V

ENDERSON

A defendant has the right to have a properly in-

structed jury consider the evidence against him or her,

and it is the trial court’s role “to clearly present the case

to the jury and to instruct it on the applicable law.” Id.;

see also MCL 768.29. “The instructions must include all

elements of the charged offenses and any material

issues, defenses, and theories if supported by the evi-

dence.” People v McGhee, 268 Mich App 600, 606; 709

NW2d 595 (2005). When examining instructions to

determine if an error has occurred, the instructions

must be considered “as a whole, rather than piece-

meal....”People v Kowalski, 489 Mich 488, 501; 803

NW2d 200 (2011). Even if imperfect, a jury instruction

is not grounds for setting aside a conviction “if the

instruction fairly presented the issues to be tried and

adequately protected the defendant’s rights.” Id.at

501-502.

“Duress is a common-law affirmative defense.”

People v Lemons, 454 Mich 234, 245; 562 NW2d 447

(1997). To be entitled to an instruction on an affirma-

tive defense, such as duress, a defendant asserting the

defense must produce some evidence from which the

jury can conclude that the essential elements of the

defense are present. Id. at 246. Specifically, to merit a

duress instruction, a defendant bears the burden of

producing some evidence from which the jury could

conclude the following:

A) The threatening conduct was sufficient to create in

the mind of a reasonable person the fear of death or serious

bodily harm;

B) The conduct in fact caused such fear of death or

serious bodily harm in the mind of the defendant;

C) The fear or duress was operating upon the mind of

the defendant at the time of the alleged act; and

4 306 M

ICH

1 [June

D) The defendant committed the act to avoid the threat-

ened harm. [Id. at 247.]

A threat of future injury is not sufficient; rather, “the

threatening conduct or act of compulsion must be

‘present, imminent, and impending....’”Id., quoting

People v Merhige, 212 Mich 601, 610; 180 NW 418

(1920). Moreover, the threat “ ‘must have arisen with-

out the negligence or fault of the person who insists

upon it as a defense.’ ” Lemons, 454 Mich at 247

(citation omitted).

Relevant to defendant’s case, it is well established

that duress is not a defense to homicide. People v

Gimotty, 216 Mich App 254, 257; 549 NW2d 39 (1996);

People v Moseler, 202 Mich App 296, 299; 508 NW2d 192

(1993); People v Etheridge, 196 Mich App 43, 56; 492

NW2d 490 (1992); People v Travis, 182 Mich App 389,

392; 451 NW2d 641 (1990). “The rationale underlying

the common law rule is that one cannot submit to

coercion to take the life of a third person, but should

risk or sacrifice his own life instead.” People v Dittis,

157 Mich App 38, 41; 403 NW2d 94 (1987). Because

duress is not a defense to homicide, the trial court did

not err by declining to instruct the jury in this regard

with respect to defendant’s murder charge. Defendant

maintains that the principle that duress is not a defense

to homicide is inapplicable when he did not actually

commit the murder himself but was instead prosecuted

primarily as an aider and abettor to murder. We fail to

see the logic in this argument, and defendant provides

no supporting authority that an aider and abettor to

murder can employ a duress defense even though a

principal is not entitled to do so. If directly committing

a homicide is not subject to a duress defense, assisting a

principal in the commission of a homicide cannot be

subject to a duress defense either, considering that an

2014] P

EOPLE V

ENDERSON

aider and abettor to murder is assisting in taking the

life of an innocent third person instead of risking or

sacrificing his or her own life. See Dittis, 157 Mich App

at 41. The underlying rationale articulated in Dittis is

equally sound and not distinguishable in the context of

aiding and abetting murder. The court in State v Dissi-

cini, 126 NJ Super 565, 570; 316 A2d 12 (NJ App, 1974),

aff’d 66 NJ 411 (1975), in rejecting a similar argument,

observed:

Defendant does not dispute the general rule, but argues

that it is applicable only to a defendant who is the actual

perpetrator of the killing, and that the defense should be

available to one such as he who did not directly kill but only

aided and abetted. Authoritative discussion of the point is

sparse...andthis is undoubtedly so because the argument

has little merit.

The California Supreme Court has stated that “be-

cause duress cannot, as a matter of law, negate the

intent, malice or premeditation elements of a first

degree murder, we further reject defendant’s argument

that duress could negate the requisite intent for one

charged with aiding and abetting a first degree mur-

der.” People v Vieira, 35 Cal 4th 264, 290; 25 Cal Rptr 3d

337; 106 P3d 990 (2005). Even the United States Court

of Appeals for the Ninth Circuit has noted that duress

does not excuse murder and “in many jurisdictions,

duress does not excuse attempted murder or aiding and

abetting murder[.]” Annachamy v Holder, 733 F3d 254,

260n6(CA9,2012). We are unaware of any Michigan

precedent to the contrary in which the issue was

directly confronted.

Defendant also contends on appeal that duress was

available as a defense regarding his AWIM conviction.

Defendant concedes on appeal that the facts did not support an

instruction on duress in regard to the felon-in-possession conviction.

6 306 M

ICH

1 [June

However, defendant has not provided any authority for

the proposition that a duress defense applies to AWIM,

nor are we aware of any such rule. On the contrary,

application of a duress defense in the context of AWIM

would be entirely incongruous with the principle that

“one cannot submit to coercion to take the life of a third

person, but should risk or sacrifice his own life instead.”

Dittis, 157 Mich App at 41. AWIM is, by definition, an

assault with the intent to kill, “which, if successful,

would make the killing murder.” People v Ericksen, 288

Mich App 192, 195-196; 793 NW2d 120 (2010) (quota-

tion marks and citation omitted). In other words, it is

only the fortunate fact of the victim’s survival—not a

difference in the defendant’s conduct—that renders the

defendant guilty of AWIM as opposed to murder. Given

that a defendant may not justify homicide with a claim

of duress, it logically follows that a defendant cannot

justify conduct intended to kill simply because he or she

failed in the effort. Instead, for one faced with the

choice between saving oneself and endeavoring to kill

an innocent third person, the law recognizes that one

“should risk or sacrifice his own life instead.” See Dittis,

157 Mich App at 41; see also State v Mannering, 112

Wash App 268, 276; 48 P3d 367 (2002) (stating that

allowing duress as a defense to attempted murder but

not to murder would be absurd because just as “duress

is not a defense to murder, it is also not a defense to

attempted murder”).

Defendant argues that by failing to instruct the jury

on duress relative to the AWIM charge, the trial court

effectively allowed for an AWIM conviction absent the

need to establish an intent to kill. This argument lacks

merit; the trial court specifically instructed the jury

that the prosecution was required to prove beyond a

reasonable doubt that there was an intent to kill with

respect to the AWIM charge. And the lack of a duress

2014] P

EOPLE V

ENDERSON

instruction in no way alleviated the prosecution’s bur-

den to establish an intent to kill. In sum, duress is not

a defense to AWIM, and, accordingly, the trial court did

not err by failing to instruct on duress.

Defendant next argues on appeal that the trial court

erred by omitting an element of AWIM from the in-

structions, an error that defendant maintains amounts

to structural error. However, by approving the jury

instructions as given, defense counsel waived this argu-

ment. Kowalski, 489 Mich at 503-505. Additionally, the

trial court’s instruction on AWIM was consistent with

CJI2d 17.3, now known as M Crim JI 17.3, except that

the court did not include the following bracketed lan-

guage: “the circumstances did not legally excuse or

reduce the crime.” Defendant contends that the failure

to include this language eliminated the prosecution’s

obligation to prove that, had the assault with intent to

kill been successful, it would have amounted to murder.

Defendant ties the failure to instruct on the matter to

the issue of duress, claiming that duress constituted a

legal excuse. However, we have already rejected the

duress argument, and defendant does not set forth any

other mitigating basis that would have necessitated the

instructional language that was not included by the

court in instructing the jury. Accordingly, even assum-

ing an instructional error on the single element, there

was no prejudice and thus no need to reverse given that

“[t]he trial court’s instructions, when viewed as a

whole, adequately protected defendant’s rights.” People

v Carines, 460 Mich 750, 770-771; 597 NW2d 130

(1999).

Lastly, defendant challenges the sufficiency of the

evidence supporting the second-degree murder and

AWIM convictions. Appeals regarding the sufficiency of

the evidence are reviewed de novo. People v Lueth, 253

8 306 M

ICH

1 [June

Mich App 670, 680; 660 NW2d 322 (2002). In reviewing

the sufficiency of the evidence, this Court must view the

evidence in the light most favorable to the prosecution

and determine whether a rational trier of fact could find

that the essential elements of the crime were proved

beyond a reasonable doubt. People v Reese, 491 Mich

127, 139; 815 NW2d 85 (2012). Juries, and not appellate

courts, hear the testimony of witnesses; therefore, we

defer to the credibility assessments made by a jury.

People v Wolfe, 440 Mich 508, 514-515; 489 NW2d 748

(1992). “It is for the trier of fact...todetermine what

inferences may be fairly drawn from the evidence and to

determine the weight to be accorded those inferences.”

People v Hardiman, 466 Mich 417, 428; 646 NW2d 158

(2002). The prosecution need not negate every reason-

able theory of innocence, but need only prove the

elements of the crime in the face of whatever contra-

dictory evidence is provided by the defendant. People v

Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).

Circumstantial evidence and the reasonable inferences

that arise from that evidence can constitute satisfactory

proof of the elements of the crime. Carines, 460 Mich at

757. We resolve all conflicts in the evidence in favor of

the prosecution. People v Kanaan, 278 Mich App 594,

619; 751 NW2d 57 (2008).

Relevant to defendant’s convictions, the elements of

AWIM, once again, are “(1) an assault, (2) with an

actual intent to kill, (3) which, if successful, would make

the killing murder.” Ericksen, 288 Mich App at 195-196

(quotation marks and citation omitted). The elements

of second-degree murder consist of “ ‘(1) a death, (2)

caused by an act of the defendant, (3) with malice, and

(4) without justification or excuse.’ ” Reese, 491 Mich at

143, quoting People v Goecke, 457 Mich 442, 464; 579

NW2d 868 (1998). The term “malice” has been defined

as “the intent to kill, the intent to cause great bodily

2014] P

EOPLE V

ENDERSON

harm, or the intent to do an act in wanton and wilful

disregard of the likelihood that the natural tendency of

such behavior is to cause death or great bodily harm.”

Goecke, 457 Mich at 464.

In defendant’s case, the jury was also instructed on

an aiding-and-abetting theory of criminal liability. See

MCL 767.39. “The phrase ‘aids or abets’ is used to

describe any type of assistance given to the perpetrator

of a crime by words or deeds that are intended to

encourage, support, or incite the commission of that

crime.” People v Moore, 470 Mich 56, 63; 679 NW2d 41

(2004). To show that an individual aided and abetted

the commission of a crime, the prosecution must estab-

lish

“that (1) the crime charged was committed by the defen-

dant or some other person, (2) the defendant performed

acts or gave encouragement that assisted the commission

of the crime, and (3) the defendant intended the commis-

sion of the crime or had knowledge that the principal

intended its commission at the time he gave aid and

encouragement.” [Carines, 460 Mich at 757 (citation omit-

ted).]

With respect to the intent element, our Supreme

Court in People v Robinson, 475 Mich 1, 15; 715 NW2d

44 (2006), elaborated:

We hold that a defendant must possess the criminal

intent to aid, abet, procure, or counsel the commission of

an offense. A defendant is criminally liable for the offenses

the defendant specifically intends to aid or abet, or has

knowledge of, as well as those crimes that are the natural

and probable consequences of the offense he intends to aid

or abet. Therefore, the prosecutor must prove beyond a

reasonable doubt that the defendant aided or abetted the

commission of an offense and that the defendant intended

to aid the charged offense, knew the principal intended to

commit the charged offense, or, alternatively, that the

10 306 M

ICH

1 [June

charged offense was a natural and probable consequence of

the commission of the intended offense.

On appeal, defendant focuses his sufficiency argu-

ments on his state of mind and whether it was shown

that he possessed the requisite intent to commit second-

degree murder and AWIM. Relevant to his arguments,

intent may be inferred from circumstantial evidence.

McGhee, 268 Mich App at 623. Indeed, “because it can

be difficult to prove a defendant’s state of mind on

issues such as knowledge and intent, minimal circum-

stantial evidence will suffice to establish the defen-

dant’s state of mind....” Kanaan, 278 Mich App at

622. Intent to kill may be inferred from all the facts in

evidence, including the use of a deadly weapon. See

Carines, 460 Mich at 759. Minimal circumstantial evi-

dence is sufficient to show an intent to kill, and that

evidence can include a motive to kill, along with flight

and lying, which may reflect a consciousness of guilt.

People v Unger, 278 Mich App 210, 223, 225-227; 749

NW2d 272 (2008).

Viewing the evidence in this case in the light most

favorable to the prosecution, it is plain that there was

sufficient evidence to support defendant’s convictions

and, in particular, to establish that he possessed the

requisite intent for each offense. The evidence showed

that defendant and his accomplices, Steven Anderson

and Robert Wright, believed that one of the victims had

been involved in assaulting and robbing Wright a

month before the present shooting. Defendant had

previously told Wright that he would help him “whoop”

those involved with the assault and, by defendant’s own

admission, he went to the murder scene intending to

fight one of the victims in exchange for money. While

claiming that he only intended a fistfight, defendant

brought a .380 caliber handgun to the scene. He

2014] P

EOPLE V

ENDERSON

brought this gun knowing that Wright wanted to kill

those involved in his assault. Anderson and Wright also

had guns. Further, defendant admitted that he was

present at the shooting and that he, like Wright and

Anderson, fired his gun. Consistent with this admis-

sion, police recovered six .380 caliber shells at the scene,

a shotgun casing, and later, at another location, spent

cartridges for the .44 caliber weapon that had been used

by Wright and disposed of by Anderson. As a result of

the shooting, one victim was fatally shot in the chest.

The other victim suffered gunshot wounds to the leg. As

indicated in Robinson, 475 Mich at 15, a “defendant is

criminally liable for the offenses the defendant specifi-

cally intends to aid or abet, or has knowledge of, as well

as those crimes that are the natural and probable

consequences of the offense he intends to aid or abet.”

The testimony rationally supported a finding that de-

fendant intended to aid or abet a murder, that he had

knowledge that a murder was going to be committed, or

that he intended to aid and abet conduct or an offense

for which the natural and probable consequence was a

homicide.

Furthermore, defendant, like Wright and Anderson,

fled after the shooting. Defendant then proceeded to

disassemble his gun, and he disposed of all three guns in

the Kalamazoo River. He also destroyed the cellular

telephone that he had been using to communicate with

Wright on the day of the shooting. He repeatedly lied to

police about his involvement, notably withholding in-

formation about which gun he had fired until police

deliberately misled him by indicating that the shotgun

blast had killed the victim. Only when misinformed in

this manner did defendant acknowledge that he fired

the .380 caliber weapon, and, when asked why he

withheld this information, he told police that he did not

want to say anything until he knew which gun was

12 306 M

ICH

1 [June

actually the murder weapon. From this evidence, a jury

could reasonably infer that defendant feared that he

might have fired the fatal shot, meaning that, contrary

to defendant’s claims, he did aim at the victims, intend-

ing to kill them. Overall, the evidence was sufficient to

support defendant’s convictions of second-degree mur-

der and AWIM.

In arguing to the contrary on appeal, defendant

maintains that he went to the scene at Wright’s behest

for a fistfight, not a shooting, and that he fired his

weapon harmlessly into the air. These arguments do not

entitle him to relief, however, because the credibility of

these assertions was a question for the jury, and it was

free to reject his testimony in this regard. See Wolfe, 440

Mich at 515. Defendant also again raises the question of

duress, arguing that the jury should have been in-

structed on this defense and that, if properly instructed,

the jury likely would have acquitted him. However, as

discussed earlier, defendant was not entitled to a duress

instruction and, consequently, his arguments in this

regard lack merit. Ultimately, the jury disbelieved de-

fendant’s claims and concluded that the requisite intent

to kill for AWIM and the requisite malice for second-

degree murder had been proved. There was sufficient

evidence to support the jury’s conclusions in this re-

gard, and reversal is unwarranted.

Affirmed.

HAPIRO

and R

IORDAN

, JJ., concurred with M

URPHY

C.J.

2014] P

EOPLE V

ENDERSON

CICHEWICZ v SALESIN

Docket No. 312806. Submitted March 12, 2014, at Detroit. Decided

June 26, 2014, at 9:05 a.m.

Lori Cichewicz brought a medical malpractice action in the Oakland

Circuit Court against Michael S. Salesin, M.D.; Salesin’s professional

corporation; and Walnut Lake OB/GYN, PLLC, asserting a claim of

wrongful conception after she gave birth to a child with Down

syndrome. Before plaintiff became pregnant, Salesin had attempted

to perform two permanent sterilization procedures at her request;

however, he was unable to complete either procedure because her

fallopian tubes were blocked, a fact that he confirmed by performing

a hysterosalpingogram. After considering plaintiff’s history, which

included years of unprotected sexual intercourse that did not result in

pregnancy, Salesin advised her that she no longer needed to use birth

control. Plaintiff alleged that this advice, along with Salesin’s assur-

ance that she could not become pregnant and his failure to provide

her with an alternative method of birth control, constituted gross

negligence. Defendants moved for summary disposition on the

ground that plaintiff’s claims were barred by MCL 600.2971 because

Salesin’s alleged conduct was neither intentional nor grossly negli-

gent. The trial court, Rudy J. Nichols, J., denied the motion, ruling

that the evidence raised a question of fact regarding whether Sales-

in’s conduct was so reckless as to demonstrate a substantial lack of

concern for whether an injury would result. After Walnut Lake

OB/GYN was dismissed by stipulation, the remaining defendants

applied for leave to appeal, which the Court of Appeals denied. The

Supreme Court, in lieu of granting defendants’ motion for leave to

appeal, remanded the case to the Court of Appeals for consideration

as on leave granted.

The Court of Appeals held:

1. The trial court correctly concluded that MCL 600.2971 does

not prohibit a wrongful-conception claim based on gross negligence

for damages related to raising a child to the age of majority. Claims

alleging wrongful conception were allowed at common law, and they

remain actionable after the enactment of MCL 600.2971. Although

MCL 600.2971(3) prohibits a person from bringing a civil action that

seeks damages related to the costs of raising the child for a wrongful-

14 306 M

ICH

14 [June

pregnancy or wrongful-conception claim premised on ordinary negli-

gence, MCL 600.2971(4) provides that these damages may be recov-

ered for an intentional or grossly negligent act or omission.

2. The trial court erred by ruling that plaintiff had established

a genuine issue of material fact regarding whether Salesin’s

conduct was grossly negligent. Applying the standard for gross

negligence articulated in the governmental tort liability act, MCL

691.1401 et seq., even viewing the facts in the light most favorable

to plaintiff and considering all legitimate inferences in her favor,

Salesin’s conduct was not so reckless as to demonstrate a substan-

tial lack of concern for whether plaintiff would become pregnant.

3. Plaintiff was permitted to seek the recovery of traditional

damages for her own injuries through her wrongful-conception

claim based on a common-law theory of negligence, and the trial

court erred by ruling that MCL 600.2971 prohibits wrongful-

conception claims unless the alleged conduct was intentional or

grossly negligent. However, defendants’ motion for summary

disposition was properly denied to the extent it was based on the

argument that plaintiff could not seek the recovery of any damages

for her wrongful-conception claim.

Affirmed in part, reversed in part, and remanded for further

proceedings.

1. A

CTIONS —

EGLIGENCE —

EDICAL

ALPRACTICE —

RONGFUL

ONCEPTION —

AMAGES

A person may bring a civil action alleging wrongful conception based

on gross negligence to recover damages for daily living, medical,

educational, or other expenses necessary to raise a child to the age

of majority (MCL 600.2971(4)).

2. A

CTIONS —

EGLIGENCE —

EDICAL

ALPRACTICE —

RONGFUL

ONCEPTION —

ROSS

EGLIGENCE —

TANDARD

A defendant may be held liable for damages related to the expenses

necessary to raise a child to the age of majority in a wrongful-

conception action based on gross negligence if the act or omission

at issue was so reckless as to demonstrate a substantial lack of

concern for whether the plaintiff would become pregnant as a

result (MCL 600.2971).

3. A

CTIONS —

EGLIGENCE —

EDICAL

ALPRACTICE —

RONGFUL

ONCEPTION —

AMAGES

A plaintiff may seek the recovery of traditional damages for her own

injuries in a wrongful-conception action based on ordinary negli-

gence as long as the applicable evidentiary burdens are satisfied.

2014] C

ICHEWICZ V

ALESIN

Morgan & Meyers, PLC (by Jeffrey T. Meyers), for

plaintiff.

Kitch Drutchas Wagner Valitutti & Sherbrook (by

Beth A. Wittman and William W. Vertes) for defendants.

Before: M. J. K

ELLY

,P.J., and C

AVANAGH

and F

ORT

OOD

,JJ.

URIAM

. This case is before the Court on order of

our Supreme Court for consideration, as on leave

granted, of a trial court order denying defendants’

motion for summary disposition in this wrongful-

conception medical malpractice case.

We affirm in part,

reverse in part, and remand for further proceedings.

On August 8, 2011, plaintiff, Lori Cichewicz, filed a

complaint against defendants Michael S. Salesin, M.D.;

Michael S. Salesin, M.D., P.L.C.; and Walnut Lake

OB/GYN, P.L.L.C., averring that she was advised by

Salesin in September 2007 that her fallopian tubes were

blocked and, therefore, it was no longer necessary for

her to use contraceptives. However, in October 2010,

plaintiff became pregnant and subsequently gave birth

to her daughter, who has Down syndrome.

In Count I of her complaint, plaintiff brought a claim

of “gross negligence/medical malpractice” against

Salesin. Plaintiff alleged that the standard of care

required Salesin “to refrain from informing [her] that it

was impossible her [sic] to become pregnant,” “to

refrain from informing [her] that she no longer re-

quired birth control,” and to “continue to provide [her]

with birth control, given her sincere stated desire not to

become pregnant.” Plaintiff further alleged that Salesin

Cichewicz v Salesin, 494 Mich 873 (2013). This order appears with the

plaintiff’s name misspelled as “Chichewicz.”

16 306 M

ICH

14 [June

“grossly violated the standard of care” by taking con-

trary actions. That is, plaintiff alleged, “Salesin’s neg-

ligent actions and omissions, as outlined above, were so

reckless as to demonstrate a substantial lack of concern,

on the part of Salesin, for whether [plaintiff] would

become pregnant as well as the ramifications of [plain-

tiff’s] becoming pregnant.” Plaintiff claimed that, as a

direct and proximate result of Salesin’s violations of the

standard of care, she stopped using birth control and

became pregnant; consequently, she “was entitled to

damages as are deemed fair and just regarding the

pregnancy and continuing attendant care of her

child....” Specifically, plaintiff sought damages for

physical injury, emotional distress, mental anguish,

medical expenses related to her pregnancy, incidental

expenses resulting from her pregnancy, denial of social

pleasures and enjoyments because of her pregnancy,

emotional distress related to knowing she would deliver

a child with Down syndrome, loss of wages and earning

capacity, as well as medical, daily living, attendant care,

and educational expenses, and all other expenses asso-

ciated with raising her child.

In Count II of her complaint, plaintiff brought a

claim of vicarious liability against Walnut Lake

OB/GYN, alleging that Salesin was its agent or em-

ployee when the purported negligence occurred. In

Count III, plaintiff brought a claim of vicarious liability

against Michael S. Salesin, M.D., P.L.C., alleging that

Salesin was its agent or employee when the purported

negligence occurred.

In June 2012, defendants moved for summary dispo-

sition, arguing that plaintiff could not establish that a

genuine issue of material fact existed with regard to

whether any alleged act or omission of Salesin consti-

tuted gross negligence as required by MCL 600.2971 in

2014] C

ICHEWICZ V

ALESIN

wrongful-conception cases. In particular, defendants

noted that during 14 years of plaintiff’s marriage, she

did not use birth control while having sexual inter-

course two or three times a week without getting

pregnant. However, in 2005, after her divorce, she

began taking birth control pills and remained on the

medication at the time of her annual gynecological

physical in June 2007, when she requested permanent

sterilization. Thereafter, in August 2007, Salesin at-

tempted a sterilization procedure known as an Essure

procedure, which involved the implantation of a device

in each fallopian tube that causes scarring and results

in permanent blockage of the fallopian tubes. However,

Salesin was unable to insert the device into either of

plaintiff’s fallopian tubes. He then attempted a laparo-

scopic tubal ligation, but was unable to perform the

procedure. In September 2007, plaintiff underwent a

hysterosalpingogram to determine whether her fallo-

pian tubes were blocked. When the x-ray dye did not

flow through plaintiff’s fallopian tubes, it was deter-

mined that both of plaintiff’s fallopian tubes were

occluded. Consequently, Salesin advised plaintiff that

birth control was not necessary because her fallopian

tubes were blocked and that the blockage had the same

effect as a tubal ligation. Salesin testified that in his

more than 30 years of practicing, he had never had a

similarly situated patient become pregnant with such

blockages. Defendants argued that reasonable jurors

could not honestly conclude that Salesin’s conduct

constituted gross negligence, i.e., “ ‘conduct so reckless

as to demonstrate a substantial lack of concern for

whether an injury results.’ ” Odom v Wayne Co, 482

Mich 459, 469; 760 NW2d 217 (2008) (citation omitted).

And because “MCL 600.2971 prohibits claims for

wrongful conception, including claims for the cost of

raising the child to the age of majority, regardless of the

18 306 M

ICH

14 [June

child’s health, unless the alleged wrongful conduct was

intentional or grossly negligent,” defendants argued

that they were entitled to summary disposition of

plaintiff’s complaint.

Plaintiff responded to defendants’ motion for sum-

mary disposition, arguing that MCL 600.2971 did not

prohibit her claim for traditional medical malpractice

damages, regardless of whether she could demonstrate

gross negligence. Plaintiff further argued that she had,

in fact, presented sufficient evidence to create a ques-

tion of material fact regarding whether Salesin’s con-

duct amounted to gross negligence.

Defendants replied that there was “no merit to

plaintiff’s argument that the plain language of MCL

600.2971 entitles plaintiff to recover damages for daily

living, medical, educational, or other expenses neces-

sary to raise a child to the age of majority on a wrongful

pregnancy or wrongful conception claim in cases of

intentional or grossly negligent acts or omissions[.]”

Defendants argued that MCL 600.2971 “specifically

prohibits an action for damages in a wrongful concep-

tion case, and provides that the prohibition does not

apply to a civil action for damages for an intentional or

grossly negligent act or omission.” Defendants asserted

that this statute did not abrogate the “traditional

common-law rule that a person may not recover dam-

ages in a wrongful conception action....[T]he common

law would apply to prohibit a wrongful conception

action for damages until the child’s age of majority.”

Further, defendants argued, plaintiff was not entitled to

recover “damages in her own right as a result of her

pregnancy, including her own medical expenses, pain

and suffering, and lost wages” because, “[g]iven that

[MCL 600.2971(3) and (4)] clearly prohibit[] ‘a person’

from bringing a wrongful pregnancy or wrongful con-

2014] C

ICHEWICZ V

ALESIN

ception claim, plaintiff’s claim in this case cannot go

forward.” Defendants also reiterated their argument

that plaintiff had not established a question of fact on

the issue of gross negligence.

Following oral argument, the trial court denied de-

fendants’ motion for summary disposition. After noting

that defendants’ motion was premised on MCR

2.116(C)(10), the trial court stated, “MCL 600.2971

prohibits claims for wrongful conception, including

claims for the cost of raising a child to the age of

majority, regardless of the child’s health unless the

alleged wrongful conduct was intentional or grossly

negligent.” The trial court recounted the underlying

facts, including that Salesin advised plaintiff that, be-

cause her fallopian tubes were blocked, she would not

be able to get pregnant and did not need birth control.

The trial court then held:

Based on this evidence and particularly the testimony of

plaintiff that the chance of the pregnancy was impossible

according to him; and that even if plaintiff wanted another

child...shewould not be able to do so; further, that she

had testified she specifically asked Salesin about going

back to birth control as a precautionary measure; and that

he said there’s no need for birth control as the tubes are

blocked; his own testimony that he had seen tubes come

unblocked once they’re blocked, the Court finds that evi-

dence exists creating a question of fact as to whether or not

the defendant’s act or omission was so reckless as to

demonstrate a substantial lack of concern for whether an

injury would result; and thus, should be decided by a

trier-of-fact.

The trial court then entered an order denying defen-

dants’ motion for summary disposition. On April 10,

2013, the trial court entered a stipulated order for the

dismissal of all claims against defendant Walnut Lake

OB/GYN, P.L.L.C. Defendants then filed an application

20 306 M

ICH

14 [June

for leave to appeal in this Court, which was denied.

Cichewicz v Salesin, unpublished order of the Court of

Appeals, entered May 16, 2013 (Docket No. 312806).

Thereafter, defendants applied for leave to appeal in our

Supreme Court, which, in lieu of granting leave to appeal,

remanded the matter to us for consideration as on leave

granted. Cichewicz v Salesin, 494 Mich 873 (2013).

On appeal, defendants argue that the trial court

erred by ruling that MCL 600.2971 creates a cause of

action for wrongful conception caused by gross negli-

gence and permits recovery of the costs of raising a child

to the age of majority.

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

a motion for summary disposition. Maiden v Rozwood,

461 Mich 109, 118; 597 NW2d 817 (1999). We also

review de novo as a question of law issues of statutory

interpretation. Whitman v City of Burton, 493 Mich

303, 311; 831 NW2d 223 (2013).

MCL 600.2971 addresses three types of claims:

wrongful-life claims, wrongful-birth claims, and wrongful-

conception (also known as wrongful-pregnancy) claims. It

provides:

(1) A person shall not bring a civil action on a wrongful

birth claim that, but for an act or omission of the defen-

dant, a child or children would not or should not have been

born.

(2) A person shall not bring a civil action for damages on

a wrongful life claim that, but for the negligent act or

omission of the defendant, the person bringing the action

would not or should not have been born.

(3) A person shall not bring a civil action for damages for

daily living, medical, educational, or other expenses neces-

sary to raise a child to the age of majority, on a wrongful

pregnancy or wrongful conception claim that, but for an act

or omission of the defendant, the child would not or should

not have been conceived.

2014] C

ICHEWICZ V

ALESIN

(4) The prohibition stated in subsection (1), (2), or (3)

applies regardless of whether the child is born healthy or

with a birth defect or other adverse medical condition. The

prohibition stated in subsection (1), (2), or (3) does not

apply to a civil action for damages for an intentional or

grossly negligent act or omission, including, but not limited

to, an act or omission that violates the Michigan penal

code, 1931 PA 328, MCL 750.1 to 750.568.

A wrongful-birth claim is brought by the parents of a

child with a birth defect and generally alleges that the

defendant’s failure to inform them of the risk of the

birth defect deprived them of the opportunity to avoid

or terminate the pregnancy. Taylor v Kurapati, 236

Mich App 315, 322-323; 600 NW2d 670 (1999); Rouse v

Wesley, 196 Mich App 624, 626-627; 494 NW2d 7 (1992).

The Taylor Court abolished claims for wrongful birth.

Taylor, 236 Mich App at 355-356. However, before the

Taylor decision, a wrongful-birth cause of action was

actionable. See Proffitt v Bartolo, 162 Mich App 35, 41,

46; 412 NW2d 232 (1987), citing Eisbrenner v Stanley,

106 Mich App 357; 308 NW2d 209 (1981).

A wrongful-life claim is brought by or on behalf of a

child with a birth defect and alleges that, but for the

defendant’s negligence, the child would not have been

born. Taylor, 236 Mich App at 336; Rouse, 196 Mich

App at 627. At the time of this Court’s decisions in

Taylor and Rouse, a cause of action for wrongful life did

not exist in Michigan. Taylor, 236 Mich App at 340-341;

Rouse, 196 Mich App at 627; Proffitt, 162 Mich App at

58.

This case, however, is more analogous to a wrongful-

conception medical malpractice case. Wrongful-

conception claims generally contend that

the defendant’s negligent conduct failed to prevent the

birth of a child in the following situations: (1) where a

physician negligently performs a vasectomy or tubal liga-

22 306 M

ICH

14 [June

tion or when a physician, pharmacist, or other health

professional provides any other type of ineffective contra-

ception, the parents conceive, and the birth of a healthy,

but unplanned, baby results; (2) where a physician negli-

gently fails to diagnose a pregnancy, thereby denying the

mother the choice of termination of the pregnancy at a

timely stage, and the birth of a healthy, but unwanted, baby

results; and (3) where a physician negligently attempts to

terminate the pregnancy and the birth of a healthy, but

unwanted, baby results. [Taylor, 236 Mich App at 325-326

(citations omitted).]

This case differs from the typical wrongful-conception

case, however, in that plaintiff alleges that Salesin’s

grossly negligent advice regarding her ability to con-

ceive, and failure to prescribe birth control pills, led to

an unplanned, unwanted pregnancy. This case also

differs in that plaintiff gave birth to a daughter with

Down syndrome.

Unlike wrongful-birth and wrongful-life claims,

wrongful-conception claims have consistently been per-

mitted in Michigan; however, the types of damages

recoverable in wrongful-conception cases have been

disputed. See, e.g., Rouse, 196 Mich App at 627; Rinard

v Biczak, 177 Mich App 287, 290, 296; 441 NW2d 441

(1989); Bushman v Burns Clinic Med Ctr (After Re-

mand), 83 Mich App 453, 461; 268 NW2d 683 (1978).

For example, in Troppi v Scarf, 31 Mich App 240; 187

NW2d 511 (1971), a wrongful-pregnancy case, this

Court held that the plaintiff could recover for the pain

and anxiety of pregnancy and childbirth, lost wages,

medical and hospital expenses, and the economic costs

of rearing the child. Id. at 260-261. In Rinard, this

Court agreed that the plaintiff could recover for the

costs of pregnancy and childbirth, as well as “related

damages for pain and suffering, medical complications

caused by the pregnancy, mental distress, lost wages,

2014] C

ICHEWICZ V

ALESIN

and loss of consortium,” but concluded that recovery for

the economic costs of raising a normal, healthy child

was not permitted. Rinard, 177 Mich App at 294. In

Rouse, this Court also held that a plaintiff in a

wrongful-pregnancy action “may not recover the cus-

tomary cost of raising and educating the child.” Rouse,

196 Mich App at 632. Further, the Taylor Court, which

abolished wrongful-birth claims, acknowledged that

wrongful-conception claims were viable causes of action

in Michigan and refused to consider whether such

claims “remain tenable.” Taylor, 236 Mich App at 336

n 35.

After the Taylor decision was issued in 1999, our

Legislature passed 2000 PA 423, which became MCL

600.2971. Subsections (1) and (2) are consistent with

the prevailing common law; civil actions for wrongful

birth and wrongful life are generally not actionable in

this state. See MCL 600.2971(1) and (2); Taylor, 236

Mich App at 341, 355. Subsection (3) is also consistent

with the prevailing common law; civil actions for

wrongful conception are actionable, but damages for

the cost of raising the child to the age of majority are

generally not recoverable. See MCL 600.2971(3); Rouse,

196 Mich App at 631-632. However, with the addition of

subsection (4), the Legislature created exceptions to

each prohibition set forth in the three previous subsec-

tions of MCL 600.2971. At issue here is the application

of subsection (4) to subsection (3).

The rules of statutory interpretation are well estab-

lished. “[O]ur purpose is to discern and give effect to

the Legislature’s intent.” Echelon Homes, LLC v Carter

Lumber Co, 472 Mich 192, 196; 694 NW2d 544 (2005).

We examine the plain language of the statute, assign

words their plain and ordinary meaning, and, if the

language is unambiguous, no further construction is

24 306 M

ICH

14 [June

required or permitted; the statute must be enforced as

written. Id. Further, we presume that the Legislature

has knowledge of the common law when it acts. Dawe v

Dr Reuven Bar-Levav & Assoc, PC, 485 Mich 20, 28; 780

NW2d 272 (2010). The common law remains in effect

until modified, and abrogation is not lightly presumed.

Id. Therefore, the Legislature “ ‘should speak in no

uncertain terms’ ” when it chooses to modify the

common law. Id., quoting Hoerstman Gen Contracting,

Inc v Hahn, 474 Mich 66, 74; 711 NW2d 340 (2006).

Because statutes must be read as a whole and in

context, Mich Props, LLC v Meridian Twp, 491 Mich

518, 528; 817 NW2d 548 (2012), we again consider

subsections (1), (2), and (3) of MCL 600.2971, which

provide:

(1) A person shall not bring a civil action on a wrongful

birth claim that, but for an act or omission of the defen-

dant, a child or children would not or should not have been

born.

(2) A person shall not bring a civil action for damages on

a wrongful life claim that, but for the negligent act or

omission of the defendant, the person bringing the action

would not or should not have been born.

(3) A person shall not bring a civil action for damages for

daily living, medical, educational, or other expenses neces-

sary to raise a child to the age of majority, on a wrongful

pregnancy or wrongful conception claim that, but for an act

or omission of the defendant, the child would not or should

not have been conceived.

Contrary to subsections (1) and (2)—which prohibit

civil actions premised on wrongful-birth and wrongful-

life claims—subsection (3) does not prohibit civil ac-

tions premised on wrongful-pregnancy or wrongful-

conception claims. Rather, subsection (3) prohibits a

wrongful-pregnancy or wrongful-conception claim “for

damages for daily living, medical, educational, or other

2014] C

ICHEWICZ V

ALESIN

expenses necessary to raise a child to the age of major-

ity.” But subsection (4) provides for an exception that is

applicable to each prohibition stated in subsection (1),

(2), and (3). It provides, in relevant part:

The prohibition stated in subsection (1), (2), or (3) does not

apply to a civil action for damages for an intentional or

grossly negligent act or omission, including, but not limited

to, an act or omission that violates the Michigan penal

code, 1931 PA 328, MCL 750.1 to 750.568.

The prohibition set forth in each subsection is de-

noted by the words “shall not.” See 1031 Lapeer LLC v

Rice, 290 Mich App 225, 231; 810 NW2d 293 (2010)

(holding that “the term ‘shall not’ may be reasonably

construed as a prohibition”). Thus, applying subsection

(4) to subsection (1), a person may bring a civil action

on a wrongful-birth claim that, but for an intentional or

grossly negligent act or omission of the defendant, a

child or children would not or should not have been

born. Applying subsection (4) to subsection (2), a person

may bring a civil action for damages on a wrongful-life

claim that, but for an intentional or grossly negligent

act or omission of the defendant, the person bringing

the action would not or should not have been born.

Applying subsection (4) to subsection (3), a person may

bring a civil action for damages for daily living, medical,

educational, or other expenses necessary to raise a child

to the age of majority, on a wrongful-pregnancy or

wrongful-conception claim that, but for an intentional

or grossly negligent act or omission of the defendant,

the child would not or should not have been conceived.

Contrary to defendants’ argument, MCL 600.2971

did not “create” a cause of action for wrongful concep-

tion. As discussed earlier, claims for wrongful concep-

tion have long been actionable in this state, although

plaintiffs could not recover as damages “the customary

26 306 M

ICH

14 [June

cost of raising and educating the child.” Rouse, 196

Mich App 631-632; see also Taylor, 236 Mich App at

335. MCL 600.2971(4) did not abrogate the common law

related to the recovery of these types of damages in

wrongful-conception claims premised on negligence.

That is, a plaintiff asserting a wrongful-conception

claim premised on a negligent act or omission of a

defendant still cannot recover damages “for daily living,

medical, educational, or other expenses necessary to

raise a child to the age of majority[.]” MCL 600.2971(3).

But, under MCL 600.2971(4), a plaintiff is permitted to

recover such damages for a wrongful-conception claim

premised on an intentional or grossly negligent act.

Thus, the types of damages recoverable in a wrongful-

conception claim depend on whether the defendant’s

act or omission was merely negligent, or whether it was

intentional or grossly negligent.

“Common-law rules apply to medical malpractice

actions unless specifically abrogated by statute.”

O’Neal v St John Hosp & Med Ctr, 487 Mich 485, 503

n 16; 791 NW2d 853 (2010). The Legislature has the

authority to abrogate the common law and, if a statu-

tory provision and the common law conflict, the statu-

tory provision supersedes the common law. Pulver v

Dundee Cement Co, 445 Mich 68, 75 n 8; 515 NW2d 728

(1994). We conclude that, through MCL 600.2971, the

Legislature has spoken in no uncertain terms, and

those terms state that wrongful-birth and wrongful-life

claims are actionable in Michigan “for damages for an

intentional or grossly negligent act or omission.” MCL

600.2971(4). Further, wrongful-conception claims re-

main actionable in Michigan, and damages related to

the costs of raising the child to the age of majority may

be recovered on a showing of an intentional or grossly

negligent act or omission. Accordingly, the trial court

did not err when it held that MCL 600.2971 does not

2014] C

ICHEWICZ V

ALESIN

prohibit a wrongful-conception claim seeking damages

for daily living, medical, educational, and other ex-

penses necessary to raise a child to the age of majority

on the basis that, but for the grossly negligent act or

omission of the defendant, the child would not or should

not have been conceived.

Next, defendants argue that even if plaintiff can

bring an action for wrongful conception caused by gross

negligence, she failed to establish a genuine issue of

material fact that Salesin’s conduct was grossly negli-

gent. We agree.

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

a motion for summary disposition. Maiden, 461 Mich at

118. The trial court considered defendants’ motion for

summary disposition as brought under MCR

2.116(C)(10). Such a motion tests the factual sufficiency

of the complaint. Joseph v Auto Club Ins Ass’n, 491

Mich 200, 206; 815 NW2d 412 (2012). This Court

“review[s] a motion brought under MCR 2.116(C)(10)

by considering the pleadings, admissions, and other

evidence submitted by the parties in the light most

favorable to the nonmoving party.” Latham v Barton

Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008).

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.; see also MCR 2.116(C)(10). “There is a genu-

ine issue of material fact when reasonable minds could

differ on an issue after viewing the record in the light

most favorable to the nonmoving party.” Allison v AEW

Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8

(2008).

MCL 600.2971 does not define the term “grossly

negligent,” and there are no published cases defining

the term in the context of MCL 600.2971. However, in

28 306 M

ICH

14 [June

contexts where civil liability would only exist if a

defendant’s conduct was grossly negligent, Michigan

courts have generally applied the standard articulated

in the governmental tort liability act (GTLA), MCL

691.1401 et seq., which defines gross negligence as

“conduct so reckless as to demonstrate a substantial

lack of concern for whether an injury results.” MCL

691.1407(8)(a); see also Jennings v Southwood, 446

Mich 125, 136; 521 NW2d 230 (1994) (GTLA definition

of gross negligence applies where Legislature intended

to immunize emergency personnel from ordinary neg-

ligence, but not from gross negligence); Xu v Gay, 257

Mich App 263, 268-269; 668 NW2d 166 (2003) (GTLA

definition of gross negligence applies in context of a

contractual waiver of liability). Further, the GTLA

definition of gross negligence has been incorporated

into Michigan’s model jury instruction defining gross

negligence. M Civ JI 14.10.

We conclude that the definition of “gross negligence”

set forth in the GTLA is the most appropriate standard

to be applied in the context of MCL 600.2971. Similar to

the GTLA, MCL 600.2971 provides immunity to poten-

tial defendants for ordinary negligence with regard to

wrongful-birth and wrongful-life claims in subsections

(1) and (2). MCL 600.2971 also prohibits the recovery of

certain damages from a defendant in a wrongful-

conception claim premised on ordinary negligence,

§ 2971(3), while permitting the recovery of those dam-

ages in a claim premised on gross negligence, § 2971(4).

Therefore, while a plaintiff asserting a wrongful-

conception medical malpractice claim may recover dam-

ages traditionally permitted if ordinary negligence is

proved, to recover damages “for daily living, medical,

educational, or other expenses necessary to raise a child

to the age of majority,” the plaintiff must prove “an

2014] C

ICHEWICZ V

ALESIN

intentional or grossly negligent act or omission.” MCL

600.2971(3) and (4).

In this case, even considering that plaintiff is entitled

to have the facts viewed in the light most favorable to

her and to have all legitimate inferences considered in

her favor, we conclude that plaintiff failed to establish a

material question of fact regarding whether Salesin’s

conduct was grossly negligent. See Jackson v Saginaw

Co, 458 Mich 141, 146; 580 NW2d 870 (1998). Under the

circumstances of this case, informing plaintiff that she

could not become pregnant and that she no longer

required birth control, as well as failing to prescribe

birth control pills, was not conduct so reckless as to

demonstrate a substantial lack of concern for whether

plaintiff would become pregnant.

Plaintiff’s medical records indicated that during 14

years of her marriage she did not use any birth control

methods and did not get pregnant, despite having an

active sex life. Salesin testified that he attempted a

sterilization procedure, through which devices would be

implanted into each fallopian tube that would prevent

pregnancy as effectively as a tubal ligation, but it could

not be completed because both of plaintiff’s fallopian

tubes were occluded. Salesin also testified that he

confirmed that plaintiff’s fallopian tubes were occluded

during a hysterosalpingogram procedure that was later

performed. Salesin testified that, considering plaintiff’s

age and her history of infertility despite an active sex

life, in conjunction with the results of both the failed

sterilization procedure and the hysterosalpingogram,

he advised plaintiff that no additional forms of steril-

ization or contraception were recommended. Although

Salesin admitted in his deposition that he had seen

blocked fallopian tubes become unblocked, he noted

that there is also a failure rate with both tubal ligation

30 306 M

ICH

14 [June

and birth control pills, but additional forms of birth

control are not recommended in those instances even

considering the failure rate. Moreover, in this case,

because of plaintiff’s history of infertility, as well as his

visualization of plaintiff’s occluded fallopian tubes both

during the attempted sterilization procedure and dur-

ing the hysterosalpingogram, he would not expect plain-

tiff’s fallopian tubes to subsequently become unblocked

and he had never seen such an occurrence in a similarly

situated patient. That is, he had never seen a patient’s

fallopian tubes open up enough for the patient to get

pregnant after he had “looked at the tubes, found them

to be blocked, [and] had an x-ray test confirming that

they were blocked, never.” In fact, Salesin testified, the

probability of pregnancy in the population of women

who are 41 years old, without any known fertility

issues, is less than one percent. Further, he stated that

because the risks associated with birth control pills,

although slight, were probably greater than the risk of

plaintiff getting pregnant, they would not have been

indicated even if she had requested them. Although

plaintiff testified that Salesin told her it was impossible

for her to get pregnant, Salesin denied that he would

ever use the term “impossible” because “in medicine

nothing is 100 percent.” In any case, Salesin admitted

that he was convinced “that it would be unnecessary to

use any other form of birth control because [he] had lots

of evidence to show...that she wasn’t going to be able

to get pregnant.”

On the basis of the evidence presented to the trial

court, we hold that no reasonable juror could conclude

that Salesin’s conduct was so reckless that it demon-

strated a substantial lack of concern for whether plain-

tiff would get pregnant as a consequence of his advice

regarding the need for contraception and his failure to

2014] C

ICHEWICZ V

ALESIN

prescribe birth control pills. See Maiden, 461 Mich at

128; Vermilya v Dunham, 195 Mich App 79, 83; 489

NW2d 496 (1992). As explained by this Court in Tarlea

v Crabtree, 263 Mich App 80; 687 NW2d 333 (2004), the

type of conduct that a defendant must engage in to be

held liable for gross negligence involves

almost a willful disregard of precautions or measures to

attend to safety and a singular disregard for substantial

risks. It is as though, if an objective observer watched the

actor, he could conclude, reasonably, that the actor simply

did not care about the safety or welfare of those in his

charge. [Id. at 90.]

In this case, Salesin’s advice to plaintiff regarding the

necessity of contraception was based on his more than

30 years of experience and grounded on several objec-

tive and persuasive factors that informed his medical

judgment and subsequent actions, including plaintiff’s

age, her multiple-year history of infertility despite an

active sex life with two different partners, Salesin’s

inability to place devices into either of plaintiff’s fallo-

pian tubes because of occlusion, and his visualization of

the fallopian tube occlusions during the hysterosalpin-

gogram. Accordingly, we reverse the trial court’s order

denying defendants’ motion for summary disposition

with regard to plaintiff’s claim that, because of Salesin’s

gross negligence, she was permitted to seek recovery

“for damages for daily living, medical, educational, or

other expenses necessary to raise a child to the age of

majority” on this wrongful-conception medical malprac-

tice claim.

Next, defendants argue that plaintiff was not permit-

ted to seek the recovery of even traditional damages on

her wrongful-conception medical malpractice claim be-

cause neither MCL 600.2971 nor the common law

allows for the recovery of such damages. We disagree.

32 306 M

ICH

14 [June

In Michigan, as a general rule, plaintiffs are entitled

to recover civil damages for medical malpractice, as long

as they satisfy their evidentiary burdens. See MCL

600.2912a. Defendants have provided no authority

holding that, in a wrongful-conception medical mal-

practice action, a plaintiff may not recover damages

generally permitted in medical malpractice actions. And

prior decisions of this Court have consistently held that

a plaintiff in a wrongful-conception action is entitled to

recover traditional damages, as discussed earlier.

Rinard, 177 Mich App at 294; Troppi, 31 Mich App at

252-255; see also Bushman, 83 Mich App at 461.

Further, consistent with the common law, the lan-

guage of MCL 600.2971 implies that such damages are

compensable in a wrongful-conception action. “[A]l-

though only an aid to interpretation, we note that the

maxim expressio unius est exclusio alterius (the expres-

sion of one thing suggests the exclusion of all others)

means that the express mention of one thing in a

statutory provision implies the exclusion of similar

things.” People v Carruthers, 301 Mich App 590, 604;

837 NW2d 16 (2013). While MCL 600.2971(3) expressly

limits a plaintiff’s right to recover the expenses related

to raising a child to the age of majority in a wrongful-

conception medical malpractice action premised on neg-

ligence, listing these expenses in detail, the statute

includes no language limiting a plaintiff’s ability to

recover traditional medical malpractice damages. Had

our Legislature intended to restrict recovery for any

and all damages in a wrongful-conception action, the

Legislature could have done so, as it did in wrongful-life

and wrongful-birth actions. See MCL 600.2971(1) and

(2). The Legislature’s language demonstrates an inten-

tion to limit recovery in a wrongful-conception action

premised on negligence only to the extent that a plain-

tiff seeks damages related to the cost of raising the child

2014] C

ICHEWICZ V

ALESIN

to the age of majority. See MCL 600.2971(3). Defen-

dants’ argument on appeal, if adopted, would prohibit a

cause of action for wrongful conception premised on

negligence, contrary to the plain language of MCL

600.2971(3). Accordingly, the trial court improperly

held that MCL 600.2971 prohibits claims for wrongful

conception unless the alleged conduct was intentional

or grossly negligent. However, defendants’ motion for

summary disposition was properly denied to the extent

it was based on the argument that plaintiff could not

seek the recovery of any damages on her wrongful-

conception medical malpractice claim. Thus, we affirm

the trial court’s decision in this regard, albeit on differ-

ent grounds. See Mulholland v DEC Int’l Corp, 432

Mich 395, 411 n 10; 443 NW2d 340 (1989).

Affirmed in part, reversed in part, and remanded for

further proceedings. We do not retain jurisdiction.

M. J. K

ELLY

,P.J., and C

AVANAGH

and F

ORT

OOD

,JJ.,

concurred.

34 306 M

ICH

SCHMUDE OIL, INC v DEPARTMENT OF ENVIRONMENTAL

QUALITY

Docket No. 313475. Submitted June 11, 2014, at Lansing. Decided July 1,

2014, at 9:00 a.m.

Schmude Oil, Inc, Wellmaster Exploration and Production Co, LLC,

and Dennis Schmude sought review in the Ingham Circuit Court of

a decision by the Department of Environmental Quality (DEQ),

which had denied 9 of petitioners’ 11 applications for permits to

drill and operate wells, including a brine-disposal well, within the

Pigeon River Country State Forest (PRCSF). In the 1970s, the

Michigan Department of Natural Resources developed a formal

plan to manage the hydrocarbon resources in the PRCSF. The plan

was incorporated into a consent order between the state and the

oil companies that held the bulk of the mineral rights in the area.

Continuing litigation, however, led to negotiations between envi-

ronmental groups, oil companies, and the state, which resulted in

the Amended Stipulation and Consent Order (ASCO), which

governs oil and gas development in the PRCSF. Petitioners’

proposed well sites were located on the Song of the Morning

Ranch, a privately owned 806-acre parcel located within the

PRCSF. The court, William E. Collette, J., affirmed the decision of

the DEQ, denying petitioners’ permit applications. Petitioners

appealed by leave granted.

The Court of Appeals held:

1. Part 619 of the Natural Resources and Environmental

Protection Act (NREPA), MCL 324.61901 et seq., clearly and

unambiguously adopts and incorporates the provisions of the

ASCO. The ASCO designates a certain portion of the PRCSF as a

nondevelopment region. The nondevelopment region includes all

lands within the PRCSF designated as geographic Units II, III, and

IV on a map in Appendix A of the ASCO. Because the ASCO uses

the term “all,” in defining the PRCSF land in the nondevelopment

region, the nondevelopment region includes both public and pri-

vate lands. Eight of petitioners’ permit applications concerned

property within the nondevelopment region. Therefore, the DEQ

was required to deny those eight permit applications even though

they concerned private land. Contrary to petitioners’ assertions,

CHMUDE

IL V

DEQ 35

even if other parts of NREPA are read in pari materia with Part

619, there is no express policy in NREPA favoring drilling. A

reading of NREPA as a whole demonstrates that oil and gas

production is favored only when it is environmentally prudent and

does not have a negative effect on other valuable natural re-

sources.

2. The ASCO states that all land within Unit I of the PRCSF is

a limited development region. Under the ASCO, no well sites may

be placed within

/4 mile of surface water in the limited develop-

ment region. In this case, the DEQ denied one of petitioners’

permit applications because the application sought a permit to

drill within

/4 mile of water in the limited development region.

The plain language of the ASCO, which was adopted by and

incorporated into Part 619 of NREPA, required the DEQ to deny

the permit application.

3. The federal and state Constitutions proscribe the taking of

private property for public use without just compensation. For a

categorical taking to exist, there must be a denial of all economically

beneficial or productive use of the land. When governmental action

diminishes, but does not completely deprive the land of all value, the

landowner cannot establish a categorical taking. Petitioners could not

establish a categorical taking because the denial of their applications

for permits did not completely deny petitioners of all economically

beneficial or productive use of their oil and gas leases because

petitioners could still operate wells in the limited development region

and they could use horizontal drilling at other well locations.

Regulatory-taking claims that do not rise to the level of a categorical

taking are governed by the standard set out in Penn Central Transp

Co v New York City, 438 US 104 (1978), which focuses on (1) the

character of the government’s action, (2) the economic effect of the

regulation on the property, and (3) the extent by which the regulation

has interfered with distinct, investment-backed expectations. In this

case, the prohibition on drilling in the nondevelopment area did not

single out petitioners to bear the burden for the public good. Instead

it was a comprehensive scheme that applied to all landowners within

the nondevelopment region. Further, although the outright prohibi-

tion of drilling or the required use of horizontal drilling would have a

negative effect on petitioners’ oil and gas leases, petitioners were not

without some value in the leases. And petitioners had notice of the

regulations at the time that they acquired their interests in the

property. Given these facts, petitioners also failed to establish a

regulatory taking.

4. The constitutional guarantee of equal protection ensures

that people similarly situated will be treated alike, but it does not

36 306 M

ICH

35 [July

guarantee that people in different circumstances will be treated

the same. To be considered similarly situated, the challenger and

his comparators must be prima facie identical in all relevant

respects or directly comparable in all material respects. In this

case, petitioners took umbrage with the fact that the ASCO divides

the PRCSF into different development regions, but failed to argue

that landowners in the nondevelopment regions were similarly

situated to landowners in other regions of the PRCSF where

drilling is permitted. But, even if the land in the nondevelopment

region were similarly situated to the land in the limited develop-

ment region, the classification meets the rational-basis test be-

cause it can be assumed that the different development regions

faced different environmental concerns.

Affirmed.

NVIRONMENT —

INES AND

INERALS —

IL AND

EVELOPMENT —

IGEON

IVER

OUNTRY

TATE

OREST

Part 619 of the Natural Resources and Environmental Protection Act,

MCL 324.61901 et seq., clearly and unambiguously adopts and

incorporates the provisions of the Amended Stipulation and Consent

Order (ASCO) that governs oil and gas development in the Pigeon

River Country State Forest; the nondevelopment region, as defined

by the ASCO, includes all land—both public and private—within the

PRCSF designated as geographic Units II, III, and IV in the ASCO;

the limited development region, as defined by the ASCO, includes all

land—both public and private—within the PRCSF designated as

geographic Unit I in the ASCO.

Mika Meyers Beckett & Jones PLC (by John M.

DeVries and Nikole L. Canute) for petitioners.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Matthew Schneider, Chief Legal

Counsel, and Daniel P. Bock, Assistant Attorney Gen-

eral, for respondent.

Before: B

ORRELLO

,P.J., and S

ERVITTO

and B

ECKERING

JJ.

URIAM

. On April 27, 2012, respondent, the

Department of Environmental Quality (DEQ), denied

applications for permits submitted by petitioners,

2014] S

CHMUDE

IL V

DEQ 37

Schmude Oil, Inc., Wellmaster Exploration & Produc-

tion Co., LLC, and Dennis Schmude to drill Antrim

Shale

wells. Petitioners appealed respondent’s denial

of the permits in the Ingham Circuit Court, which

affirmed respondent’s decision. Petitioners now appeal

the circuit court’s decision by leave granted. We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

In December 2006, petitioners filed ten applications

with respondent for permits to drill and operate Antrim

Shale wells. On April 9, 2010, petitioners filed an

additional application for a permit to drill a brine-

disposal well. All 11 proposed well sites were located on

the Song of the Morning Ranch (SOMR) property, an

806-acre parcel privately owned by Golden Lotus, Inc.

The SOMR is located within the Pigeon River Country

State Forest (PRCSF).

Oil and gas drilling in the PRCSF has previously

been the subject of litigation in Michigan courts. This

Court’s opinion in Hobson Petroleum Corp v Dep’t of

Quality Control, unpublished opinion per curiam of the

Court of Appeals, issued December 21, 2001 (Docket

No. 222992), p 2, provides the following concise history

of the PRCSF:

Pigeon River was dedicated on December 7, 1973, and

the Natural Resources Commission adopted “A Concept of

Management for the Pigeon River Country.” The primary

purpose for the dedication was to create a unified manage-

ment plan to address the potential for disruption wrought

by oil and gas development. After the dedication, the then

Michigan Department of Natural Resources [DNR], (now

Department of Environmental Quality), developed a for-

mal plan to manage the hydrocarbon resources in the

The Antrim Shale is a sedimentary rock formation. It is a major

source of natural gas production.

38 306 M

ICH

35 [July

Pigeon River area in addition to creating a comprehensive

environmental impact statement....

In 1976, [this plan was] incorporated into a consent

order and unit agreement with the major oil companies

which held the bulk of mineral rights leases within Pigeon

River. One year after the consent agreement, litigation

arose over drilling exploratory wells within Pigeon River,

which culminated in the Michigan Supreme Court issuing

a permanent injunction prohibiting drilling of the wells in

that area. See West Michigan Environmental Action Coun-

cil v Natural Resources Comm, 405 Mich 741, 760; 275

NW2d 538 (1979).

In 1980, negotiations between environmental groups, oil

companies, and the State, resulted in a second consent

order [the Amended Stipulation and Consent Order (the

ASCO)]. The second consent order was similar to the 1976

order....

Additionally, during this time, the Legislature passed an

act incorporating the plan outlined by the consent orders

which delineated the framework for all hydrocarbon devel-

opment within the Pigeon River area. The act incorporated

the provisions of the 1980 consent order which included a

“nondevelopment region” where no drilling could occur.

The ASCO also created a “limited development re-

gion” where drilling could occur, subject to certain

limitations. These regions were determined geographi-

cally as discrete units on a map of the PRCSF in

appendices to the ASCO, with Unit I signifying the

limited development region and Units II, III, and IV

signifying the nondevelopment regions. The boundary

between Units I and II bisects the SOMR property; 180

acres are in Unit I and 640 acres are in Unit II. In this

case, eight of petitioners’ proposed well sites were

within Unit II, while the other three were in Unit I.

The DEQ Office of Geological Survey (OGS) re-

sponded to petitioners’ permit applications and con-

cluded that whether it would be unlawful for respon-

2014] S

CHMUDE

IL V

DEQ 39

dent to issue some or all of the SOMR well permit

applications depended on whether the Pigeon River

Country State Forest hydrocarbon development act of

1980 (PRHDA), also referred to as Part 619 of the

Natural Resources and Environmental Protection Act

(NREPA),

applies to privately owned land within the

boundaries of the PRCSF. The OGS concluded that the

Part 619 applies to private lands, but suggested that

horizontal wells could be a viable alternative to tradi-

tional vertical wells and would potentially be in compli-

ance with the PRHDA. On July 10, 2007, respondent

required petitioners to produce evidence of feasible and

prudent alternatives, which petitioners did, under pro-

test. Petitioners presented evidence that horizontal

drilling would be high risk and economically unsound.

In a letter dated January 4, 2011, Harold R. Fitch,

the assistant supervisor of wells for OGS, denied 9 of

petitioners’ 11 permit applications. Fitch stated that

eight of the proposed wells were within the nondevel-

opment region and that the permits for those wells had

to be denied. The three other wells were within the

limited development region. Fitch denied the permit

application for one of the wells in the limited develop-

ment region because it was within

mile of the Pigeon

River, and, therefore, “[did] not comply with Part 619.”

Fitch approved the permit applications for one Antrim

Shale well and one brine-disposal well in the limited

development region. Fitch also concluded that drilling

horizontal wells from surface locations would comply

with Part 619.

Petitioners appealed this decision to the director of

the DEQ, Dan Wyant. Wyant concluded that Part 619

applied to both public and private lands within the

PRCSF, and denied the appeal. Petitioners appealed

MCL 324.61901 et seq.

40 306 M

ICH

35 [July

that decision in the Ingham Circuit Court, which sub-

sequently affirmed Wyant’s decision. The case is now

before us on leave granted.

II. WHETHER THE ASCO APPLIES TO PRIVATE LAND

This case requires us to review the circuit court’s

review of an agency decision. “[W]hen reviewing a lower

court’s review of agency action this Court must deter-

mine whether the lower court applied correct legal

principles and whether it misapprehended or grossly

misapplied the substantial evidence test to the agency’s

factual findings.” Boyd v Civil Serv Comm, 220 Mich

App 226, 234; 559 NW2d 342 (1996). The facts are not

in dispute, and the only question is whether respondent

violated the law in denying petitioners’ well permit

applications. Determining whether respondent’s deci-

sion was authorized by law requires statutory interpre-

tation. This Court reviews de novo issues of statutory

interpretation. Burleson v Dep’t of Environmental

Quality, 292 Mich App 544, 548; 808 NW2d 792 (2011).

We first consider whether Part 619 adopted and

incorporated the provisions of the ASCO, and conclude

that it did. We begin by analyzing the sections of Part

619. MCL 324.61901 states:

(1) The legislature finds that it is in the public interest

to encourage and promote safe, effective, efficient, and

environmentally prudent extraction of hydrocarbon re-

sources in the Pigeon river country state forest; and that

economic benefits to the state will result from the explora-

tion for the production of energy resources due to the

taxation of production of hydrocarbon deposits and the

payment of royalties to the state from production of

hydrocarbon deposits, which royalties among other things

enable the state to acquire and develop property for the

enjoyment of the outdoor recreationists of the state.

2014] S

CHMUDE

IL V

DEQ 41

(2) The legislature further finds that wise use of our

natural resources essential for future energy needs re-

quires that energy resource development must occur in

harmony with environmental standards; and that the

development of new industry and the expansion of existing

industry to obtain the optimum safe production of the

state’s energy resources is an important concern to the

economic stability of this state.

MCL 324.61902 provides:

The Pigeon river country state forest as dedicated by the

commission on December 7, 1973, is a valuable public

resource. It is in the public interest to produce oil and gas

as quickly as possible to minimize the duration of activities

associated with hydrocarbon development in the Pigeon

river country state forest. To expedite the development of

oil and gas resources on certain lands presently under lease

but undeveloped as of March 31, 1981 and for which the

amended stipulation and consent order has been adopted

and approved by the commission on November 24, 1980,

and in consideration of the protracted nature of the con-

troversy, the legislature finds that this amended stipulation

and consent order constitutes an appropriate hydrocarbon

development plan for the purposes and within the intent

expressed in section 61901. [Emphasis added.]

MCL 324.61903, like § 61902, mentions the ASCO, and

provides:

The hydrocarbon activities within the Pigeon river

country state forest authorized by the plan referred to in

section 61902 can be carried out without violation of law

under terms of the amended stipulation and consent order

referred to in section 61902. [Emphasis added.]

Further, MCL 324.61904 states:

In light of the legislative findings in section 61901, the

declaration of public interest in section 61902, and the

determination that hydrocarbons can be developed in con-

cert with law in section 61903, the department shall imple-

42 306 M

ICH

35 [July

ment the approved hydrocarbon development plan for the

Pigeon river country state forest not later than January 1,

1981. [Emphasis added.]

The ASCO, which is referred to in §§ 61902 through

61904, designates certain lands in the PRCSF as the

“nondevelopment region” when it states, in relevant

part:

The parties to this Amended Stipulation declare that an

area within the Pigeon River Country State Forest, which

is described as follows:

all the lands within the boundaries of the Pigeon

River Country State Forest designated on the map in

Appendix A as: Unit IV; Unit II; and, Unit III, except

sections and portions of sections 19, 20, 21, 22 and 23

in T33N, R1E.

(hereinafter referred to as the “nondevelopment” re-

gion) will not be subject to oil and gas development.

“The primary goal of statutory construction is to give

effect to the Legislature’s intent.” McCormick v Car-

rier, 487 Mich 180, 191; 795 NW2d 517 (2010). If the

language of the statute is clear and unambiguous, “it is

presumed that the Legislature intended the meaning

expressed in the statute.” Id. “Judicial construction of

an unambiguous statute is neither required nor permit-

ted.” Id. at 191-192. “When reviewing a statute, all

non-technical words and phrases shall be construed and

understood according to the common and approved

usage of the language, and, if a term is not defined in

the statute, a court may consult a dictionary to aid it in

this goal.” Id. at 192. (citations and quotation marks

omitted).

MCL 324.61902 explicitly states that the “amended

stipulation and consent order constitutes an appropri-

ate hydrocarbon development plan[.]” This language

2014] S

CHMUDE

IL V

DEQ 43

clearly and unambiguously indicates the Legislature’s

intent was to adopt the plan. And, when viewed in

context with the other sections of Part 619, there can be

no doubt of the Legislature’s intent. Words and phrases

in statutes must be read in context. Bush v Shabahang,

484 Mich 156, 167; 772 NW2d 272 (2009). Section 61903

refers to both the hydrocarbon development plan and

the ASCO itself when it states that the hydrocarbon

activities in the PRCSF “authorized by the plan re-

ferred to in section 61902 can be carried out without

violation of law[.]” Further, § 61904 states that “the

department [DEQ] shall implement the approved hy-

drocarbon development plan” for the PRCSF. Though

the language of § 61902 is clear and unambiguous in its

own right, when read in the context of the surrounding

sections, there can be no doubt that the Legislature

adopted the ASCO.

Having concluded that Part 619 expressly adopted

the ASCO, we now turn to the language contained in

the ASCO and determine whether the plain language of

the ASCO required respondent to deny petitioners’

permit applications. See Jager v Rostagno Trucking Co,

272 Mich App 419, 423; 728 NW2d 467 (2006) (explain-

ing that when a statute adopts or incorporates by

reference a rule or regulation, the adopted or incorpo-

rated provision becomes a part of the statute).

A. DENIAL OF THE PERMITS IN THE “NONDEVELOPMENT REGION”

The ASCO refers to a “nondevelopment region” that

includes all lands within the boundary of the PRCSF

designated as geographic Units II, III, and IV on a map

in Appendix A. The word “all” is defined, in part, by

Random House Webster’s College Dictionary (2001) as

follows: “1. the whole or full amount of....4. any; any

whatever....10. everything....12. the entire area,

44 306 M

ICH

35 [July

place, environment, or the like[.]” By using the term

“all,” the ASCO clearly refers to the whole and full

amount of lands, any lands, and the entire area of the

lands within Units II, III, and IV designated on the map

in Appendix A; the term is all-inclusive and indicates

that everything within the boundaries of those units is

within the nondevelopment region.

Therefore, the

ASCO contains no differentiation between public and

private lands, given that both types of lands fall under

the plain meaning of “all.”

In this case, it is undisputed that the SOMR is within

the boundaries of the PRCSF as designated in the map

in Appendix A to the ASCO, and that eight of the

permits at issue were within the nondevelopment re-

gion. The ASCO makes no distinction between public

and private lands. This leads to the conclusion that the

pertinent section of the SOMR is in the nondevelop-

ment region, even though it sits on private land. As

previously noted, the ASCO states that the nondevel-

opment region “will not be subject to oil and gas

development.” Therefore, respondent was required to

deny the eight applications for permits within the

nondevelopment region.

Petitioners disagree that the restrictions contained

in the ASCO apply to private lands, and argue that

§ 61902 is a definition section, which defines the land to

which the nondevelopment region refers as strictly the

land dedicated by the commission on December 7, 1973.

This argument ignores the plain language of the statute

that adopts the ASCO, and the express language of the

ASCO. The sentence to which petitioners refer reads:

“The Pigeon river country state forest as dedicated by

the commission on December 7, 1973, is a valuable

Only those sections and portions of sections specifically identified as

being excepted from the general rule would be excluded.

2014] S

CHMUDE

IL V

DEQ 45

public resource.” MCL 324.61902. This sentence is not

a part of a larger definition section, nor does it define

the PRCSF. Rather, it simply states that the PRCSF is a

“valuable public resource.” Nothing within § 61902

appears to define the scope of the PRCSF; instead, as

previously noted, the scope of the PRCSF is found

within the plain language of the ASCO itself.

In addition, petitioners argue that the repeated use

of the phrase “Pigeon River Country State Forest” in

Part 619 and in the ASCO serves to limit the application

of the restrictions pertaining to the nondevelopment

region to state-owned lands, because, petitioners con-

tend, only state-owned lands can constitute the PRCSF.

We reject petitioners’ argument because it ignores the

plain language of the ASCO—namely, that the restric-

tions pertaining to the nondevelopment region apply to

all lands within the boundaries of the PRCSF desig-

nated as Units II, III, and IV on the map in Appendix A

of the ASCO, which is titled “Pigeon River Country

State Forest.”

It is undisputed that the SOMR is

located within the boundaries of the map in Appendix A

to the ASCO, and that the pertinent permits petitioners

sought are within the nondevelopment region. Thus,

the plain language of the ASCO compels the conclusion

that respondent was required to deny petitioners’ per-

mit applications in the nondevelopment region, regard-

less of whether Part 619 and the ASCO use the phrase

“Pigeon River Country State Forest” elsewhere. In

order to adopt petitioners’ argument, this Court would

need to ignore the plain and unambiguous language of

the ASCO, which it cannot do.

Next, petitioners assert that other sections of

NREPA, specifically Parts 17 and 615, are in pari

materia with Part 619. Therefore, petitioners argue, the

Capitalization altered.

46 306 M

ICH

35 [July

Court must read Parts 17 and 615 together with Part

619 when interpreting Part 619. “ ‘[T]he interpretive

aid of the doctrine of in pari materia can only be utilized

in a situation where the section of the statute under

examination is itself ambiguous.’ ” In re Indiana Mich

Power Co, 297 Mich App 332, 344; 824 NW2d 246

(2012), quoting Tyler v Livonia Pub Schs, 459 Mich 382,

392; 590 NW2d 560 (1999). In this case, the language of

Part 619 is clear and unambiguous; therefore, we need

not resort to the rule concerning statutes that are in

pari materia. Additionally, even were we to read the

statutes in pari materia, they do not, as petitioners

argue, express a policy favoring drilling. MCL

324.61502 declares, in pertinent part:

It has long been the declared policy of this state to foster

conservation of natural resources so that our citizens may

continue to enjoy the fruits and profits of those resources.

Failure to adopt such a policy in the pioneer days of the

state permitted the unwarranted slaughter and removal of

magnificent timber abounding in the state, which resulted

in an immeasurable loss and waste.

MCL 324.61901(1) provides:

[I]t is in the public interest to encourage and promote

safe, effective, efficient, and environmentally prudent

extraction of hydrocarbon resources in the Pigeon river

country state forest; and that economic benefits to the

state will result from the exploration for the production

of energy resources due to the taxation of production of

hydrocarbon deposits and the payment of royalties to the

state from production of hydrocarbon deposits, which

royalties among other things enable the state to acquire

and develop property for the enjoyment of the outdoor

recreationists of the state.

As the circuit court stated, “A reading of the NREPA

and its provisions as a whole demonstrates that oil and

gas production is favored only where it is environmen-

2014] S

CHMUDE

IL V

DEQ 47

tally prudent and does not have a negative effect on

other valuable natural resources.” The language in

NREPA that deals with oil and gas production seeks a

balance between Michigan’s interest in protecting the

environment and its interest in harvesting valuable

hydrocarbon resources. Neither § 61502 nor § 61901

expresses, as petitioners argue, a clear public policy

favoring drilling.

Concerning Part 17, there is no language whatsoever

that supports a public policy favoring drilling. MCL

324.1701 creates a cause of action for NREPA viola-

tions. The “pollution, impairment, or destruction” lan-

guage in § 1701(1) to which petitioners refer does not

relate in any way to the approval or prohibition of per-

mits; it only relates to the requirements to bring an

action. Further, MCL 324.1705(2) simply states that “al-

leged pollution, impairment, or destruction of the air,

water, or other natural resources, or the public trust in

these resources” shall be determined in administrative,

licensing, or other proceedings, and in the judicial review

of such proceedings, as it was in this case. Nowhere in

§ 1705, nor anywhere else in Part 17, does it state that

absent a finding of pollution, impairment, or destruction,

an action such as a permit application must or shall be

authorized. Nor does MCL 324.1705 state that even if

there is a finding of pollution, impairment, or destruction

that a permit application must be approved if there is no

feasible and prudent alternative as petitioners suggest.

B. DENIAL OF THE PERMIT IN THE LIMITED

DEVELOPMENT REGION

The plain language in the ASCO defining the limited

development region also applies to respondent’s denial of

a permit located within the limited development region.

The ASCO states that Unit I is a limited development

region:

48 306 M

ICH

35 [July

The parties to this Amended Stipulation declare that an

area within the Pigeon River Country State Forest, which

is described as follows:

all the lands within the boundaries of the Pigeon

River Country State Forest designated on the map in

Appendix A as Unit I

(hereinafter referred to as “the limited develop-

ment region”)

is subject to oil and gas development pursuant to the

limitations of this Amended Stipulation.

Concerning limitations on drilling in the limited devel-

opment region, the ASCO states that

no well sites... will be placed within

mile of surface

water in the limited development region as identified in

Appendix C. The Director, however, may allow encroach-

ment in this

mile zone only upon a determination that

environmental impacts can be significantly reduced in

other areas by allowing the encroachment, and upon a

determination that there will be no pollution of the surface

waters.

[

]

[Emphasis added.]

In the case at bar, the DEQ denied one of petitioners’

permit applications because the permit sought permis-

sion to drill within

mile of water in the limited

development region. The plain language of the ASCO

directed that the restrictions imposed in the limited

development region apply to all lands within the

Although the ASCO provides that no well sites may be placed within

/4 mile of surface water in the limited development region, it states that

the director of the DNR (now DEQ) may allow encroachment within the

/4 mile zone upon a determination that environmental impacts can be

significantly reduced in other areas, and upon a determination that the

surface water will not be polluted. We note that the issue of whether the

Director of the DEQ could review for encroachment was not raised by

petitioner before the circuit court or this Court. Accordingly, we do not

consider the issue. Mayberry v Gen Orthopedics, PC, 474 Mich 1,4n3;

704 NW2d 69 (2005) (noting that Michigan’s appellate courts do not

generally address unbriefed issues).

2014] S

CHMUDE

IL V

DEQ 49

boundaries of the PRCSF that constitute the limited

development region. Using the same logic previously set

forth in this opinion, the plain language of the ASCO

required the DEQ to deny petitioners’ permit applica-

tion for a well located within

mile of a body of water

in the limited development region.

III. CONSTITUTIONAL CLAIMS

Next, petitioners contend that the denial of their

applications for drilling permits constituted a regula-

tory taking,

an issue we review de novo. See Leelanau

Co Sheriff v Kiessel, 297 Mich App 285, 292; 824 NW2d

576 (2012). Petitioners allege a categorical taking as

well as a taking under the balancing test set forth in

Penn Central Transp Co v New York City, 438 US 104;

98 S Ct 2646; 57 L Ed 2d 631 (1978).

“The federal and state constitutions both proscribe

the taking of private property for public use without

just compensation.” Ypsilanti Charter Twp v Kircher,

281 Mich App 251, 272; 761 NW2d 761 (2008). “The

constitutional requirement that the state provide just

compensation for the taking of one’s property is de-

signed to bar Government from forcing some people

alone to bear public burdens which, in all fairness and

Although the constitutional claims were not addressed below, we will

consider them. See Consumers Power Co v Ass’n of Businesses Advocat-

ing Tariff Equity, 205 Mich App 571, 575; 518 NW2d 514 (1994).

In addition, petitioners allege a taking because “the denial of [peti-

tioners’] applications for drilling permits... fails to substantially ad-

vance a legitimate government interest....”While our caselaw formerly

recognized the “advance[s] a legitimate state interest” test as an addi-

tional test for determining whether a taking occurred, K & K Constr, Inc

v Dep’t of Natural Resources, 456 Mich 570, 585; 575 NW2d 531 (1998) (K

& K Constr I), the United States Supreme Court has since repudiated

that test, Lingle v Chevron USA, Inc, 544-545 US 528, 540-545; 125 S Ct

2074; 161 L Ed 2d 876 (2005).

50 306 M

ICH

35 [July

justice, should be borne by the public as a whole.” K

& K Constr, Inc v Dep’t of Environmental Quality, 267

Mich App 523, 551-552; 705 NW2d 365 (2005) (cita-

tions and quotation marks omitted) (K & K Constr II).

A. CATEGORICAL TAKING

We first address petitioners’ claim that the denial of

their applications for drilling permits was a categorical

taking. “For a categorical taking to exist, there must be

a denial of all economically beneficial or productive use

of land.” K & K Constr, Inc v Dep’t of Natural Re-

sources, 456 Mich 570, 586; 575 NW2d 531 (1998)

(citation and quotation marks omitted; emphasis

added) (K & K Constr I). When the government action

in question diminishes the value of the land, but does

not completely deprive the land of all value, the land-

owner cannot establish a categorical taking. Id. at 587 n

13. In this case, petitioners cannot establish a categori-

cal taking because the denial of their applications for

permits did not completely deny petitioners of all

economically beneficial or productive use of their oil

and gas leases. Indeed, petitioners could still operate

wells in the limited development region and they could

utilize horizontal drilling at the other well locations.

In reaching this conclusion, we reject petitioners’

claim that the instant case is comparable to this Court’s

decision in Miller Bros v Dep’t of Natural Resources,

203 Mich App 674; 513 NW2d 217 (1994). In Miller

Bros, the plaintiffs had one, and only one, interest and

viable economic use in the land—the extraction of oil

and gas. Id. at 679-680. The denial of permits denied the

plaintiffs this only viable economic use; therefore, by

exercise of regulatory power, the government so re-

stricted the use of the plaintiffs’ property that they

were deprived of all economically viable use of the land.

2014] S

CHMUDE

IL V

DEQ 51

Id. at 680. By contrast, petitioners can still operate

wells in the limited development region. They can also

utilize horizontal drilling. Although horizontal drilling

will increase petitioners’ costs, “[t]he Taking Clause

does not guarantee property owners an economic profit

from the use of their land.” Paragon Props Co v Novi,

452 Mich 568, 579 n 13; 550 NW2d 772 (1996). When

the land still has some economic value, even if a fraction

of the economic value that could have been realized,

there is no categorical taking. K & K Constr I, 456 Mich

at 587 n 13.

B. TAKING UNDER THE PENN CENTRAL BALANCING FACTORS

“Regulatory taking claims that do not rise to the level

of a categorical taking are governed by the standard set

out in Penn Central Transp Co v New York City, 438 US

104; 98 S Ct 2646; 57 L Ed 2d 631 (1978).” Chelsea

Investment Group LLC v Chelsea, 288 Mich App 239,

261; 792 NW2d 781 (2010).

The balancing test announced in [Penn Central] requires a

reviewing court to engage in an ad hoc factual inquiry,

focusing on “(1) the character of the government’s action,

(2) the economic effect of the regulation on the property,

and (3) the extent by which the regulation has interfered

with distinct, investment-backed expectations.” [Id., quot-

ing K & K Constr I, 456 Mich at 577.]

Stated another way, if the regulation at issue:

(1) is comprehensive and universal so that the private

property owner is relatively equally benefited and bur-

dened by the challenged regulation as other similarly

situated property owners, and (2) if the owner purchased

with knowledge of the regulatory scheme so that it is fair to

conclude that the cost to the owner factored in the effect of

the regulations on the return on investment, and (3) if,

despite the regulation, the owner can make valuable use of

52 306 M

ICH

35 [July

his or her land, then compensation is not required under

Penn Central. [K & K Constr II, 267 Mich App at 529.]

Regarding the first factor, we consider whether the

government’s action “singles [a] plaintiff[] out to bear

the burden for the public good and whether the regu-

lation being challenged is a comprehensive, broadly

based regulatory scheme that burdens and benefits all

citizens relatively equally.” Chelsea Investment Group

LLC, 288 Mich App at 262 (citation and quotation

marks omitted; alterations in original). In this case, the

prohibition on drilling in the nondevelopment area did

not single out petitioners to bear the burden for the

public good. Rather, the prohibition was a comprehen-

sive scheme that applied to all landowners within the

nondevelopment region. See K & K Constr II, 267 Mich

App at 559-560, 562-563. This factor does not weigh in

petitioners’ favor.

Concerning the second factor, the economic effect of

the regulation on the property, we do not find that this

factor weighs in petitioners’ favor. Although the out-

right prohibition of drilling or the utilization of hori-

zontal drilling will have a negative effect on petitioners’

oil and gas leases, petitioners are not without some

value in the leases. That this value was less than

petitioners had originally hoped does not mean that the

regulation amounts to a taking. Chelsea Investment

Group LLC, 288 Mich App at 262-263. Indeed, on the

evidence presented by petitioners, we do not find the

reduction in economic value to be enough to weigh this

factor in petitioners’ favor. See K & K Constr II, 267

Mich App at 553-554.

Regarding the third factor, we must “examine the

extent to which the regulation has interfered with the

property owner’s reasonable investment-backed expec-

tations.” Id. at 555 (citation and quotations marks

2014] S

CHMUDE

IL V

DEQ 53

omitted). “A key factor is notice of the applicable

regulatory regime....” Id. Notice of the regulatory

regime at the time the claimant acquires the property

helps to determine the reasonableness of the claimant’s

investment-backed expectations. Id. at 556. Petitioners

had notice of the regulations at the time they acquired

their interests in the property because they acquired

their interests in the oil and gas leases in 2006, well

after the enactment of Part 619. Although petitioners

sought a different interpretation of Part 619, they at

least should have been aware of the plain language of

the ASCO and its prohibitions against drilling. At the

very least, the fact that the plain language of the statute

was contrary to petitioners’ position should have tem-

pered petitioners’ reasonable expectations when acquir-

ing the oil and gas leases. Therefore, we find that the

drilling prohibition in Part 619 has not interfered with

petitioners’ reasonable investment-backed expecta-

tions. See id. at 558.

Accordingly, we conclude that petitioners have failed

to establish a regulatory taking under the Penn Central

balancing test.

C. EQUAL PROTECTION

Lastly, petitioners allege that the regulations set

forth in Part 619, through its adoption of the ASCO,

amount to an equal protection violation because those

regulations draw classifications between different

groups of private landowners in the PRCSF by arbi-

trarily classifying certain lands as belonging to the

nondevelopment region.

The United States Constitution provides that “[n]o State

shall... deny to any person within its jurisdiction the

equal protection of the laws.” US Const, Am XIV, § 1.

Likewise, the Michigan Constitution provides that “[n]o

54 306 M

ICH

35 [July

person shall be denied the equal protection of the

laws....” Const 1963, art 1, § 2. [Grimes v Van Hook-

Williams, 302 Mich App 521, 532; 839 NW2d 237 (2013).]

“The constitutional guarantee of equal protection en-

sures that people similarly situated will be treated

alike, but it does not guarantee that people in different

circumstances will be treated the same.” Brinkley v

Brinkley, 277 Mich App 23, 35; 742 NW2d 629 (2007).

“[E]qual protection does not require the same treat-

ment be given those that are not similarly situated.”

Champion v Secretary of State, 281 Mich App 307, 325;

761 NW2d 747 (2008) (citation and quotation marks

omitted; alteration in original). “To be considered simi-

larly situated, the challenger and his comparators must

be prima facie identical in all relevant respects or

directly comparable...inallmaterial respects.” Lima

Twp v Bateson, 302 Mich App 483, 503; 838 NW2d 898

(2013) (citations and quotation marks omitted).

Petitioners take umbrage with the fact that the

ASCO divides the PRCSF into different development

regions. Petitioners make no effort to argue that land-

owners in the nondevelopment regions are similarly

situated to landowners in other regions of the PRCSF

where drilling is permitted. Indeed, they make no effort

to argue that the characteristics of the land in each

region are identical, or that the environmental con-

cerns, if any, that are present in the different regions

are identical. Because they make no effort to argue that

they were similarly situated, we find that this issue is

abandoned and could decline to review the claim. See

Ypsilanti Charter Twp, 281 Mich App at 287.

However, even assuming petitioners could establish

that landowners in the nondevelopment region are

similarly situated to landowners in the limited develop-

ment region, petitioners’ claim would lack merit. Peti-

2014] S

CHMUDE

IL V

DEQ 55

tioners acknowledge that the instant case does not

involve a suspect classification, and that the rational

basis test is the appropriate test to use for their equal

protection claim. “Under the rational basis test, the

statute will be upheld as long as the classification

scheme is rationally related to a legitimate governmen-

tal purpose.” Brinkley, 277 Mich App at 35. Under

rational basis review, we presume that the challenged

statute is constitutional, and the party challenging the

statute has a heavy burden in rebutting that presump-

tion. Crego v Coleman, 463 Mich 248, 260; 615 NW2d

218 (2000). “A classification reviewed on this basis

passes constitutional muster if the legislative judgment

is supported by any set of facts, either known or which

could reasonably be assumed, even if such facts may be

debatable.” Id. at 259-260.

Part 619 declares that the Legislature “finds that it is

in the public interest to encourage and promote safe,

effective, efficient, and environmentally prudent ex-

traction of hydrocarbon resources in the Pigeon river

country state forest....”MCL324.61901(1). Part 619

further provides that “wise use of our natural resources

essential for future energy needs requires that energy

resource development must occur in harmony with

environmental standards....”MCL324.61901(2). The

ASCO, which was expressly adopted by Part 619, de-

clares that “[t]he protection of the public health, safety

and welfare and the preservation of the natural re-

sources of the State of Michigan are paramount social

concerns.” It further declares that the plan set forth in

the ASCO, which includes the creation of a nondevel-

opment region, was established “[i]n light of the afore-

mentioned interests....”Assuming, for the purpose of

argument, that the land in the nondevelopment region

on which petitioners’ oil and gas leases is located is

similarly situated to land in the limited development

56 306 M

ICH

35 [July

region, we find that the classification meets the rational

basis test. Given that the Legislature adopted a plan in

the ASCO that created different types of development

regions with the intended goal of protecting and pre-

serving resources while at the same time promoting the

wise use of natural resources, we can assume that the

different development regions faced different environ-

mental concerns. See Crego, 463 Mich at 259-260 (stat-

ing that a classification passes constitutional muster

under rational basis review if it “is supported by any set

of facts, either known or which could reasonably be

assumed, even if such facts may be debatable”) (empha-

sis added). Consequently, we find that the classification

scheme, if any, created by Part 619 and the ASCO was

rationally related to a legitimate governmental interest.

Because we conclude that Part 619 is controlling and

that petitioners’ constitutional claims lack merit, we

need not address the remainder of petitioners’ argu-

ments.

Affirmed.

ORRELLO

,P.J., and S

ERVITTO

and B

ECKERING

,JJ.,

concurred.

2014] S

CHMUDE

IL V

DEQ 57

CVS CAREMARK v STATE TAX COMMISSION

Docket No. 312119. Submitted June 11, 2014, at Detroit. Decided July 1,

2014, at 9:05 a.m. Leave to appeal sought.

The March Board of Review of the city of Novi classified certain

property of CVS Caremark as commercial property for the 2011

tax year. CVS filed an appeal of the classification in the State Tax

Commission (STC), contending the property should be classified as

industrial property. The STC denied the request to reclassify the

property and affirmed the commercial classification. CVS appealed

in the Oakland Circuit Court. The circuit court, Daniel P. O’Brien,

J., reversed the decision of the STC and entered an order reclas-

sifying the property as industrial property. The STC filed a delayed

application for leave to appeal, alleging that the circuit court

employed the wrong standard of review. The Court of Appeals

granted the application for leave to appeal.

The Court of Appeals held:

1. The circuit court employed an appropriate standard of review.

The circuit court did not improperly expand the record and its ruling

properly took into account only the facts that the STC had found.

2. The review of property classification disputes according to

MCL 211.34c(6) does not require a hearing. The plain statutory

language contemplates that the STC must arbitrate a property

classification dispute only on the basis of written submissions.

Judicial review of the STC’s classification determinations is lim-

ited to whether the determinations are authorized by law.

3. The circuit court erroneously interpreted MCL

211.34c(2)(d)(ii) to be applicable in this matter because the rel-

evant language does not apply to property unless the property is

used for utility-related functions. CVS failed in its burden to

demonstrate that the property should be classified as industrial

pursuant to MCL 211.34c(2)(d)(i)or(ii) because it did not submit

evidence establishing how it used the property during the 2011 tax

year. The STC properly denied the reclassification. The STC’s

denial was authorized by law. The circuit court incorrectly applied

MCL 211.34c(2)(d)(ii) when it reversed the STC’s classification

ruling.

Reversed.

58 306 M

ICH

58 [July

1. C

ONSTITUTIONAL

AW —

DMINISTRATIVE

AW —

UDICIAL

EVIEW —

EARINGS

Judicial review of the evidentiary support for a determination of an

administrative agency is not proper when the administrative

agency was not required to conduct a hearing when making the

determination; judicial review in such cases is not review de novo

and is limited in its scope to a determination whether the action of

the agency was authorized by law (Const 1963, art 6, § 28).

2. C

ONSTITUTIONAL

AW —

DMINISTRATIVE

AW —

AXATION —

ROPERTY

LASSIFICATION

ISPUTES

The procedure stated in MCL 211.34c(6) for the review of property

classification disputes does not provide for or require a “hearing”

in the constitutional sense; the procedure contemplates that the

State Tax Commission must arbitrate a dispute only on the basis

of written submissions; judicial review of the commission’s classi-

fication determinations is limited to whether the determinations

are authorized by law (Const 1963, art 6, § 28).

Honigman Miller Schwartz and Cohn LLP (by

Michael B. Shapiro and Jason Conti) for CVS Care-

mark.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Matthew Schneider, Chief Legal

Counsel, and Matthew B. Hodges, Assistant Attorney

General, for the State Tax Commission.

Before: O’C

ONNELL

,P.J., and F

ITZGERALD

and M

ARKEY

JJ.

URIAM

. We granted the delayed application for

leave to appeal by respondent State Tax Commission

(STC) regarding a circuit court order reversing a deci-

sion of the STC that denied petitioner’s request to

reclassify its real and personal property from commer-

cial to industrial for the 2011 tax year. We reverse.

The STC challenges the standard of review the

circuit court employed. The STC maintains that be-

cause this appeal did not arise from a contested case,

2014] CVS

TATE

OMM

judicial review was limited to ascertaining whether the

law authorized the STC’s decision. According to the

STC, the circuit court erred to the extent that it took

into account facts beyond the administrative record in

this case. The STC argues that the court should have

struck petitioner’s appellate brief, which referred to

facts not part of the administrative record.

We must begin our review of the circuit court’s

review of an agency decision by determining whether

the circuit court applied correct legal principles. Monroe

v State Employees’ Retirement Sys, 293 Mich App 594,

607-608; 809 NW2d 453 (2011), quoting Boyd v Civil

Serv Comm, 220 Mich App 226, 234-235; 559 NW2d 342

(1996). The first paragraph of Const 1963, art 6, § 28,

delineates the scope of judicial review of agency deci-

sions. It provides, in relevant part:

All final decisions, findings, rulings and orders of any

administrative officer or agency existing under the consti-

tution or by law, which are judicial or quasi-judicial and

affect private rights or licenses, shall be subject to direct

review by the courts as provided by law. This review shall

include, as a minimum, the determination whether such

final decisions, findings, rulings and orders are authorized

by law; and, in cases in which a hearing is required,

whether the same are supported by competent, material

and substantial evidence on the whole record.

In Midland Cogeneration Venture Ltd Partnership v

Naftaly, 489 Mich 83, 91-93; 803 NW2d 674 (2011), our

Supreme Court held that an STC classification decision

is reviewable under this constitutional provision be-

cause it embodies a final, quasi-judicial decision that

affects private rights. Because no other review is “pro-

vided by law,” a property owner may appeal a classifi-

cation decision by the STC to the circuit court. Id.at

97-98, citing MCL 600.631.

60 306 M

ICH

58 [July

Although petitioner has an avenue by which to

obtain direct review of the STC’s classification of prop-

erty, the parties dispute the applicable scope of this

review. This Court has explained that the proper scope

of review depends on whether the STC held a hearing:

Whether “a hearing is required” is determined by reference

to the statute governing the particular agency. Where no

hearing is required, it is not proper for the circuit court or

this Court to review the evidentiary support of an admin-

istrative agency’s determination. In such cases, [j]udicial

review is not de novo and is limited in scope to a determi-

nation whether the action of the agency was authorized by

law. [Northwestern Nat’l Cas Co v Comm’r of Ins, 231 Mich

App 483, 488; 586 NW2d 563 (1998) (some quotation marks

omitted; citations omitted).]

We conclude that the review procedure in MCL

211.34c(6) does not qualify as a hearing in the consti-

tutional sense. The goal of the judiciary when constru-

ing Michigan’s Constitution is to identify the original

meaning that its ratifiers attributed to the words used

in a constitutional provision. People v Nutt, 469 Mich

565, 573; 677 NW2d 1 (2004). In performing this task,

we employ the rule of common understanding. In re

Burnett Estate, 300 Mich App 489, 497; 834 NW2d 93

(2013). Under the rule of common understanding, we

must apply the meaning that, at the time of ratification,

was the most obvious common understanding of the

provision, the one that reasonable minds and the great

mass of the people themselves would give it. Adair v

Michigan, 486 Mich 468, 477; 785 NW2d 119 (2010),

quoting Traverse City Sch Dist v Attorney General, 384

Mich 390, 405; 185 NW2d 9 (1971). “Words should be

given their common and most obvious meaning, and

consideration of dictionary definitions used at the time

of passage for undefined terms can be appropriate.” In

re Burnett Estate, 300 Mich App at 497-498. According

2014] CVS

TATE

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to Webster’s Third New International Dictionary (1965),

the applicable definitions of “hearing” include: “a trial

in equity practice”; “a listening to arguments or proofs

and arguments in interlocutory proceedings”; “a trial

before an administrative tribunal”; and “a session (as of

a congressional committee) in which witnesses are

heard and testimony is taken.” These definitions con-

template an opportunity to present before a tribunal

evidence and argument.

The review of property classification disputes af-

forded in MCL 211.34c(6) does not require a hearing. In

pertinent part, MCL 211.34c(6) provides:

An owner of any assessable property who disputes the

classification of that parcel shall notify the assessor and

may protest the assigned classification to the March board

of review. An owner or assessor may appeal the decision of

the March board of review by filing a petition with the state

tax commission not later than June 30 in that tax year. The

state tax commission shall arbitrate the petition based on

the written petition and the written recommendations of the

assessor and the state tax commission staff. [Emphasis

added.]

The plain statutory language contemplates that the

STC must arbitrate a property classification dispute

only on the basis of written submissions. Consequently,

judicial review of the STC’s classification determina-

tions is limited to whether they “are authorized by law.”

Const 1963, art 6, § 28.

[I]n plain English, authorized by law means allowed,

permitted, or empowered by law. Black’s Law Dictionary

(5th ed). Therefore, it seems clear that an agency’s

decision that is in violation of statute [or constitution],

in excess of the statutory authority or jurisdiction of the

agency, made upon unlawful procedures resulting in

material prejudice, or is arbitrary and capricious, is a

62 306 M

ICH

58 [July

decision that is not authorized by law. [Northwestern

Nat’l Cas Co, 231 Mich App at 488 (quotation marks and

citation omitted).]

We conclude that the circuit court employed an

appropriate standard of review. Although the circuit

court entertained some hypothetical arguments con-

cerning whether the scope of petitioner’s activities

might qualify as either commercial or industrial

under MCL 211.34c, the court did not make any

findings on the basis of the hypothetical arguments.

The court’s ruling properly took into account only the

STC’s determinations that no manufacturing or pro-

cessing took place on petitioner’s property, but that

some warehousing did. Because the circuit court’s

ultimate ruling took into account only the facts that

the STC found concerning the absence of manufac-

turing or processing and the presence of a warehouse

on petitioner’s property, the court did not improperly

expand the record.

Petitioner suggests that if a more restrictive proceeding exists

under which taxpayers may challenge STC classification decisions in

MCL 211.34c(6), the existence of a broader avenue for Department of

Treasury appeals of classification decisions in MCL 211.34c(7) violates

petitioner’s right to due process and equal protection. Subsection (7)

envisions that “[t]he department of treasury may appeal the classifi-

cation of any assessable property to the residential and small claims

division of the Michigan tax tribunal....”However, the Legislature

might reasonably have wanted to provide the state a more expansive

review procedure to enhance the state’s ability to ensure that all

Michigan property is classified properly for taxation purposes and to

protect the income that the state derives from its tax base. Crego v

Coleman, 463 Mich 248, 259-260; 615 NW2d 218 (2000) (“Under

rational-basis review [of equal protection claims], courts will uphold

legislation as long as that legislation is rationally related to a

legitimate government purpose. To prevail under this highly deferen-

tial standard of review, a challenger must show that the legislation is

arbitrary and wholly unrelated in a rational way to the objective of the

statute. A classification reviewed on this basis passes constitutional

muster if the legislative judgment is supported by any set of facts,

2014] CVS

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The STC also asserts that the circuit court miscon-

strued MCL 211.34c(2)(d)(ii) when it concluded that

petitioner’s property qualifies as industrial property.

This Court reviews de novo issues of statutory interpre-

tation underlying an administrative body’s ruling. Wex-

ford Med Group v City of Cadillac, 474 Mich 192, 202;

713 NW2d 734 (2006).

When faced with questions of statutory interpretation,

our obligation is to discern and give effect to the Legisla-

ture’s intent as expressed in the words of the statute. We

give the words of a statute their plain and ordinary

meaning, looking outside the statute to ascertain the

Legislature’s intent only if the statutory language is am-

biguous. Where the language is unambiguous, we presume

that the Legislature intended the meaning clearly

expressed—no further judicial construction is required or

permitted, and the statute must be enforced as written.

Similarly, courts may not speculate about an unstated

purpose where the unambiguous text plainly reflects the

intent of the Legislature. [Pohutski v City of Allen Park,

465 Mich 675, 683; 641 NW2d 219 (2002) (quotation marks

and citations omitted).]

MCL 211.34c(1) requires local assessors to annually

“classify every item of assessable property according to

the definitions contained in this section.” The pertinent

definitions appear in MCL 211.34c(2), which provides,

in relevant part:

(b) Commercial real property includes the following:

(i) Platted or unplatted parcels used for commercial

purposes, whether wholesale, retail, or service, with or

without buildings.

(ii) Parcels used by fraternal societies.

(iii) Parcels used as golf courses, boat clubs, ski areas, or

apartment buildings with more than 4 units.

either known or which could reasonably be assumed, even if such facts

may be debatable.”) (quotation marks and citations omitted).

64 306 M

ICH

58 [July

(iv) For taxes levied after December 31, 2002, buildings

on leased land used for commercial purposes.

***

(d) Industrial real property includes the following:

(i) Platted or unplatted parcels used for manufacturing

and processing purposes, with or without buildings.

(ii) Parcels used for utilities sites for generating plants,

pumping stations, switches, substations, compressing sta-

tions, warehouses, rights-of-way, flowage land, and storage

areas.

(iii) Parcels used for removal or processing of gravel,

stone, or mineral ores.

(iv) For taxes levied after December 31, 2002, buildings

on leased land used for industrial purposes.

(v) For taxes levied after December 31, 2002, buildings

on leased land for utility purposes.

The circuit court concluded that because petitioner’s

property contained a warehouse, it qualified as indus-

trial real property under MCL 211.34c(2)(d)(ii). The

court accepted petitioner’s argument that it had to

construe the term “warehouses” in subsection (2)(d)(ii)

in petitioner’s favor in accordance with the proposition

that ambiguities in tax statutes should be construed in

the taxpayer’s favor. We find nothing ambiguous in the

language of subsection (2)(d)(ii). By its plain terms, the

subsection defines as “Industrial real property” parcels

utilized for a variety of utility-site-related purposes,

including warehousing. We conclude that the circuit

court incorrectly interpreted the language in subsection

(2)(d)(ii), which does not apply unless petitioner’s prop-

erty is used for utility-related functions.

Although MCL 211.34c(6) does not expressly say so,

petitioner had the burden to prove that the assessor

improperly classified its property as commercial. See

2014] CVS

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Baker v Costello, 300 Mich 686, 689; 2 NW2d 881 (1942)

(applying the general rule that the burden of proof lies

with the proponent of an allegation). Because petitioner

did not submit with its reclassification petitions docu-

mentary evidence establishing in what manner it used

the property during the 2011 tax year, petitioner failed

in its burden to demonstrate that the property should

be classified as industrial pursuant to MCL

211.34c(2)(d)(i)or(ii). And because petitioner did not

substantiate the manner in which it used the property

during the 2011 tax year, the STC properly denied the

reclassification petition. For purposes of petitioner’s

appeal in the circuit court, we find that the STC’s denial

of the petition was authorized by law; therefore, the

circuit court incorrectly applied MCL 211.34c(2)(d)(ii)

when it reversed the STC’s classification ruling.

We reverse.

O’C

ONNELL

,P.J., and F

ITZGERALD

and M

ARKEY

,JJ.,

concurred.

66 306 M

ICH

58 [July

KLEIN v HP PELZER AUTOMOTIVE SYSTEMS, INC

Docket No. 310670. Submitted February 11, 2014, at Detroit. Decided

July 8, 2014, at 9:00 a.m. Leave to appeal sought.

Douglas J. Klein and Amy Neufeld Klein brought an action in the

Oakland Circuit Court against HP Pelzer Automotive Systems,

Inc., alleging breach of an express contract, breach of an implied

contract, and promissory estoppel. During a restructuring of HP

Pelzer in 2009 that resulted in layoffs of some of its employees, the

company’s chief executive officer (CEO) had sent letters to various

key employees, including plaintiffs, that stated that if their em-

ployment with HP Pelzer was “terminated or ended in any manner

in the future,” they would be entitled to minimum severance pay

equal to a full year’s worth of compensation. Plaintiffs continued

to work. Subsequently, in letters to plaintiffs in 2011, the compa-

ny’s president indicated that the terms of the November 2009

letters were rescinded, effective immediately. Plaintiffs’ attorney

sent a letter rejecting that rescission, and plaintiffs subsequently

resigned from HP Pelzer, following which they brought this suit.

Plaintiffs moved for summary disposition. The court, Rudy J.

Nichols, J., concluded that the 2009 letters were clear and unam-

biguous offers to pay severance but also determined that summary

disposition was premature and permitted additional discovery on

the question of the CEO’s actual authority to bind HP Pelzer to

the alleged severance-pay contracts. After discovery was com-

pleted, both parties moved for summary disposition. The court

held that a unilateral contract existed, concluding that the fact

that plaintiffs had continued to work after the CEO’s offer of

severance payments to them constituted acceptance of his offers

and that HP Pelzer was therefore precluded from subsequently

revoking those offers. The court awarded plaintiffs damages and

dismissed the breach-of-implied contract and promissory estoppel

counts as moot. HP Pelzer appealed.

The Court of Appeals held:

1. The trial court erred by concluding that HP Pelzer breached an

express contract to make severance payments to plaintiffs. A unilat-

eral contract is one in which the promisor does not receive a promise

in return as consideration. A typical employment contract can be

2014] K

LEIN V

HP P

ELZER

UTO

described as a unilateral contract in which the employer promises to

pay an employee wages in return for the employee’s work. In essence,

the employer’s promise constitutes the terms of the employment

agreement and the employee’s action or forbearance in reliance on

the employer’s promise constitutes sufficient consideration to make

the promise legally binding. In those circumstances, there is no

contractual requirement that the promisee do more than perform the

act on which the promise is predicated in order to legally obligate the

promisor. The 2009 letters did not create unilateral severance-pay

contracts, however, because the letters did not require plaintiffs’

action or forbearance in reliance on the company’s promise. Although

its CEO indicated that the purpose of the letters was to express the

company’s commitment to plaintiffs’ continued employment, plain-

tiffs need not have continued their employment to collect the sever-

ance payments. The phrase “ended in any manner in the future”

rendered the CEO’s promise a gratuity rather than a unilateral offer

of a contract. Plaintiffs were not required to work at all after

receiving the letters and could have resigned immediately and col-

lected the severance pay offered. Without sufficient consideration, the

CEO’s promise in the letters was not legally binding. Instead, the

letters created a policy that could be modified or revoked. Absent a

vested right to severance payments, HP Pelzer could revoke the

policy as it did in the 2011 letters. Therefore, by the time plaintiffs

resigned, the severance-pay policy had already been revoked and

plaintiffs were not entitled to severance payments.

2. Although not reached by the trial court after the court found

an express contract, plaintiffs’ claim of breach of an implied

contract could not have survived summary disposition. Plaintiffs’

breach-of-implied-contract claim derived from the discharge-for-

cause doctrine in Toussaint v Blue Cross & Blue Shield of Mich,

408 Mich 579 (1980), which held that a provision of an employ-

ment contract providing that an employee would not be discharged

except for cause is legally enforceable, even if the contract is

indefinite or not for a definite term. The provision could become

part of the contract (1) by express oral or written agreement or (2)

as a result of an employee’s legitimate expectations grounded in an

employer’s policy statements. The Supreme Court subsequently

held, however, that a written discharge-for-cause personnel policy

(an implied contract) could be unilaterally modified by an em-

ployer without explicit reservation of that right at the outset. The

legitimate-expectations test has not been extended to severance-

pay policies. While plaintiffs claimed that they rejected the 2011

letters revoking the severance-pay policy, no agreement for

severance existed and HP Pelzer unilaterally made changes to

the policy to best adapt it to changing business conditions. If

68 306 M

ICH

67 [July

plaintiffs were displeased by the change in policy, they were free to

resign, but they were not entitled to severance payments upon

their resignation by virtue of an implied contract.

3. Again, while not reached by the trial court, plaintiffs’

promissory estoppel claim could also not have survived summary

disposition. The elements of promissory estoppel are (1) a promise,

(2) that the promisor should reasonably have expected to induce

action of a definite and substantial character on the part of the

promisee, and (3) that in fact produced reliance or forbearance of

that nature in circumstances requiring that the promise be en-

forced to avoid injustice. The 2009 letters articulated a severance-

pay policy that could be changed at will, not a promise.

Grant of summary disposition reversed, damages award va-

cated, and case remanded for entry of summary disposition on all

counts in HP Pelzer’s favor.

Michael J. Hamblin for plaintiffs.

Vercruysse Murray & Calzone (by Robert M. Ver-

cruysse and Gary S. Fealk) for defendant.

Before: O’C

ONNELL

,P.J., and W

ILDER

and M

ETER

,JJ.

ILDER

, J. Defendant, HP Pelzer Automotive Systems,

Inc., appeals as of right an order granting summary

disposition to plaintiffs, Douglas J. Klein and Amy Neu-

feld Klein.

On appeal, defendant argues that the trial

court erred by finding that defendant breached a con-

tract to make severance payments to plaintiffs upon

their resignation and therefore erred by granting sum-

mary disposition to plaintiffs. We reverse and remand

for the trial court to enter an order in favor of defen-

dant.

In 2009, during the “economic downturn,” defendant

undertook a radical restructuring of its business. The

Plaintiffs are married to each other.

2014] K

LEIN V

HP P

ELZER

UTO

restructuring resulted in layoffs of some of defendant’s

employees, and it was a stressful time for defendant’s

staff. However, defendant’s chief executive officer and

president, Dean Youngblood, wanted to retain some

“key individuals,” including plaintiffs, during the re-

structuring. Consistently with this desire, Youngblood

sent a letter dated November 2, 2009, to plaintiffs,

stating in relevant part:

Amy Klein

Amy, the purpose of this letter is to document to you the

commitment of HP Pelzer Automotive Systems, Inc. for

your continued employment with the company.

In the next few weeks / months we will begin to

restructure the company. This restructuring will result in

the elimination of certain positions within the company.

This letter acknowledges that you and your position will

not be involved in the restructuring activities.

This letter further acknowledges, if your employment

with HP Pelzer Automotive Systems Inc is terminated or

ended in any manner in the future you will be entitled to a

minimum severance pay equal to 1 (one) full year compen-

sation.

The full year compensation will be based on the previous

12 months salary, bonus, etc from the previous 12 months.

Thank you for your continued support.

Youngblood sent a virtually identical letter to Douglas

Klein the same day. Plaintiffs continued to work for

defendant during the restructuring. Subsequently, in a

letter dated June 7, 2011, defendant’s then president

and chief operations officer, John Pendleton, stated the

following to Amy Klein, in relevant part:

Dear Amy,

I am writing in connection with a letter you received

from Dean Youngblood, dated November 2, 2009.

70 306 M

ICH

67 [July

As you know, in that letter, Mr. Youngblood addressed

the fact that in the “next few weeks and months, HP Pelzer

Automotive Systems would be restructuring the company

and that certain positions would be eliminated”. Although

Mr. Youngblood informed you that you and your position

would not be involved in the restructuring, he stated that

if your employment was in fact terminated or otherwise

ended, you would be granted a severance equal to one year

of compensation.

As you know, the restructuring referenced in Mr. Young-

blood’s November 2, 2009 letter has now occurred and the

economic difficulties that prompted the restructuring have

eased.

Accordingly, please be advised that Mr. Youngblood’s

letter of November 2, 2009 and the severance terms out-

lined therein are hereby rescinded effective immediately.

Again, Douglas Klein received a virtually identical

letter. At the conclusion of the letters to plaintiffs,

Pendleton reminded them that defendant is an at-will

employer.

On June 8, 2011, plaintiffs’ counsel sent a hand-

delivered letter to Pendleton and the corporate human

resources manager at defendant, which provided in

relevant part:

...HPPelzer agreed in writing that if either Mr. or Mrs.

Klein’s “employment with HP Pelzer Automotive Systems,

Inc. is terminated or ended in any manner in the future you

will be entitled to a minimum severance pay equal to 1

(one) full year compensation.” The agreements for both Mr.

and Mrs. Klein further state that “[t]he full year compen-

sation will be based on the previous 12 months salary,

bonus, etc. from the previous 12 months.” Copies of the

signed letter agreements for both Mr. and Mrs. Klein are

enclosed for your ready reference.

Mr. and Mrs. Klein have forwarded Mr. Pendleton’s

June 7, 2011 letter purporting to rescind the referenced

2014] K

LEIN V

HP P

ELZER

UTO

letter agreements. Be advised that such a purported rescis-

sion is not legally binding and is hereby categorically

rejected.

The June 8, 2011 letter also provided, “Mr. and Mrs.

Klein are seriously considering retirement from HP

Pelzer and would like a computation from the company

of the amount of the severance payment they can each

expect to receive based on the referenced letter agree-

ments.” On July 19, 2011, plaintiffs sent separate

letters of resignation to Pendleton and the corporate

human resources manager resigning from defendant

and stating that their resignations were effective on

August 2, 2011.

Plaintiffs filed a three-count complaint against de-

fendant, alleging breach of express contract, breach of

implied contract, and promissory estoppel. Plaintiffs’

complaint alleged that, under Youngblood’s 2009 let-

ters, they were entitled to severance payments from

defendant based on the “year” of earnings before their

resignations.

Before the close of discovery, plaintiffs filed a motion

for summary disposition pursuant to MCR

2.116(C)(10), alleging that there was no genuine issue

of material fact, except for damages, with respect to

Count I (breach of express contract). Plaintiffs argued

that the 2009 letters were unilateral offers by defen-

dant of severance payments, which they accepted by

continuing to work after the offers were made. Citing

Cain v Allen Electric & Equip Co, 346 Mich 568; 78

NW2d 296 (1956), plaintiffs argued that the alleged

offers could not be revoked once they were accepted.

Defendant opposed the motion for summary disposi-

tion, arguing inter alia that (1) because it did not

terminate or end plaintiffs’ employment, plaintiffs were

not entitled to severance payments, (2) the 2009 letters

72 306 M

ICH

67 [July

articulated a severance-pay policy that could be revoked

or amended by defendant at any time and that the

policy was revoked by the June 7, 2011 letters, and (3)

Youngblood lacked actual authority to bind defendant

to the alleged promises for severance payments, but

further discovery was required regarding this factual

question.

The trial court concluded that the 2009 letters were

clear and unambiguous offers to make severance pay-

ments. However, the trial court also determined that

summary disposition was premature and permitted

additional discovery on the question of Youngblood’s

actual authority to bind defendant to the alleged

severance-pay contracts.

After discovery was completed, both parties filed

motions for summary disposition. In their second mo-

tion for summary disposition, plaintiffs argued that

defendant had failed to produce any evidence that

Youngblood lacked actual authority to bind defendant

to the alleged severance-pay contracts. Defendant re-

sponded that Youngblood lacked actual authority to

make an irrevocable promise to provide severance pay-

ments because he was obligated to follow defendant’s

policies, including the policy that compensation, ben-

efits, and policies could be modified or revoked at any

time.

In defendant’s motion for summary disposition, de-

fendant argued that the trial court had decided the first

motion for summary disposition prematurely because

plaintiffs’ depositions were not part of the record at

that time. Defendant cited plaintiffs’ admissions in

their depositions that Youngblood never promised they

would receive severance payments if they resigned.

Defendant further argued that the plain language of the

2009 letters did not allow for severance upon resigna-

2014] K

LEIN V

HP P

ELZER

UTO

tion and that it is clear that the 2009 letters were

designed to encourage plaintiffs not to resign—not to

encourage them to resign and collect severance pay.

Defendant further argued that any benefits were only

intended to be paid during the restructuring period and

continued employment was a condition of the agree-

ment, if any agreement existed, and that plaintiffs knew

that their compensation and benefits could be revoked

or changed at any time because the 2009 letters did not

require performance. Defendant also contended that if

plaintiffs could accept the severance provision in the

2009 letters by continuing to work, they also accepted

the June 7, 2011 letters (rescinding the severance

provision) by continuing to work. Finally, defendant

again argued that Youngblood lacked actual authority

to make an irrevocable promise on behalf of defendant

to provide severance payments and that, with respect to

their claim of promissory estoppel, plaintiffs did not

forbear from resigning.

The trial court found that defendant had offered no

evidence to refute plaintiffs’ assertion that Youngblood

had actual authority to bind defendant to pay the

severance at issue, and once again concluded that

Youngblood’s 2009 letters to plaintiffs were promises to

pay severance, which entitled plaintiffs to severance

payments upon their resignations from defendant. Cit-

ing Cain, the trial court held that the fact that each

plaintiff continued to work after Youngblood’s offer of

severance payments to them constituted acceptance of

his offers and that defendant was therefore precluded

from subsequently revoking the severance offers. In its

May 30, 2012 order, the trial court awarded Amy

$106,744.90 and Douglas $91,222.02. The trial court

also dismissed Counts II (breach of implied contract)

and III (promissory estoppel) as moot.

74 306 M

ICH

67 [July

On appeal, defendant argues that the trial court

erred by concluding that a unilateral severance-pay

contract existed. We agree.

The existence and interpretation of a contract are

questions of law, which this Court reviews de novo.

Kloian v Domino’s Pizza, LLC, 273 Mich App 449, 452;

733 NW2d 766 (2006). This Court also reviews de novo

the trial court’s grant of summary disposition. Spiek v

Dep’t of Transp, 456 Mich 331, 337; 572 NW2d 201

(1998).

Plaintiffs moved for summary disposition pursuant

to MCR 2.116(C)(10), which tests the factual sufficiency

of the complaint. Urbain v Beierling, 301 Mich App 114,

122; 835 NW2d 455 (2013). In evaluating a motion for

summary disposition brought under Subrule (C)(10), a

reviewing court considers affidavits, pleadings, deposi-

tions, admissions, and other evidence submitted by the

parties in the light most favorable to the party opposing

the motion. MCR 2.116(G)(5); Tienda v Integon Nat’l

Ins Co, 300 Mich App 605, 611-612; 834 NW2d 908

(2013). Summary disposition is properly granted if the

proffered evidence fails to establish a genuine issue

regarding any material fact and the moving party is

entitled to judgment as a matter of law. Tienda, 300

Mich App at 611; MCR 2.116(C)(10).

“ ‘A contract must be interpreted according to its

plain and ordinary meaning.’ ” Wells Fargo Bank, NA v

2014] K

LEIN V

HP P

ELZER

UTO

Cherryland Mall Ltd Partnership (On Remand), 300

Mich App 361, 386; 835 NW2d 593 (2013), quoting

Holmes v Holmes, 281 Mich App 575, 593; 760 NW2d

300 (2008).

“Under ordinary contract principles, if contractual lan-

guage is clear, construction of the contract is a question of

law for the court. If the contract is subject to two reason-

able interpretations, factual development is necessary to

determine the intent of the parties and summary disposi-

tion is therefore inappropriate. If the contract, although

inartfully worded or clumsily arranged, fairly admits of but

one interpretation, it is not ambiguous. The language of a

contract should be given its ordinary and plain meaning.”

[Wells Fargo, 300 Mich App at 386, quoting Holmes, 281

Mich App at 594.]

Again, the trial court concluded, and plaintiffs main-

tain on appeal, that a unilateral severance-pay contract

existed.

“A unilateral contract is one in which the promisor does

not receive a promise in return as consideration. 1 Restate-

ment Contracts, §§ 12, 52, pp 10-12, 58-59. In simplest

terms, a typical employment contract can be described as a

unilateral contract in which the employer promises to pay

an employee wages in return for the employee’s work. In

essence, the employer’s promise constitutes the terms of

the employment agreement; the employee’s action or for-

bearance in reliance upon the employer’s promise consti-

tutes sufficient consideration to make the promise legally

binding. In such circumstances, there is no contractual

requirement that the promisee do more than perform the

act upon which the promise is predicated in order to legally

obligate the promisor.” [Sniecinski v Blue Cross & Blue

Shield of Mich, 469 Mich 124, 138 n 9; 666 NW2d 186

(2003), quoting In re Certified Question, 432 Mich 438, 446;

443 NW2d 112 (1989).]

Both parties and the trial court relied heavily on Cain,

346 Mich 568. In Cain, the employer issued a personnel

76 306 M

ICH

67 [July

policy, which among other provisions included a termi-

nation policy that provided that “an ‘executive’ having

5 to 10 years employment should be entitled to 2

months termination pay.” Id. at 571. The personnel

policy also included the following caveat: “ ‘Of course

such policies cannot be complete and are subject to

change or amendments either through necessity cre-

ated by laws or for other reasons that may come to our

attention.’ ” Id. at 570. The employee plaintiff subse-

quently resigned, effective December 15, 1954. Id.at

571. On October 14, 1954, before the effective date of

the employee’s resignation, the employer fired the

employee, effective immediately. Id. Then, the employ-

er’s board of directors passed a motion to deny termi-

nation pay to the employee. Id. at 572.

Our Supreme Court held that the termination policy

was an offer of a contract, which the employee accepted by

continuing employment beyond the five-year term re-

quired by the policy. Id. at 579-580. Because the employee

accepted the offer, the company was called upon to per-

form, preventing the company from changing the policy as

the board of directors tried to do with its motion to deny

termination pay to the employee. Id. at 580.

In Gaydos v White Motor Corp, 54 Mich App 143, 146;

220 NW2d 697 (1974), employees were promised sever-

ance pay (in lieu of two weeks’ termination notice) if they

had more than six months of service with the employer.

This Court concluded that, by the employees’ continuing

to work after the promulgation of the policy, “consider-

ation was supplied for a unilateral contract, upon which

the employees had the right to rely.” Id. at 148.

The facts of this case are distinguishable from Cain

and Gaydos. The 2009 letters at issue here did not

create unilateral severance-pay contracts because the

letters did not require plaintiffs’ action or forbearance

2014] K

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in reliance on the employer’s promise. Sniecinski, 469

Mich at 138 n 9. In Cain, the employee was required to

work between 5 and 10 years to earn 2 years of

termination pay. In Gaydos, the employees were re-

quired to work 6 months to earn severance pay. In this

case, although Youngblood wrote that the purpose of

the 2009 letters was to express defendant’s commit-

ment to plaintiffs’ continued employment with defen-

dant, plaintiffs need not have continued their employ-

ment to collect the severance payments. Again, the

letters provided:

This letter further acknowledges, if your employment

with HP Pelzer Automotive Systems Inc is terminated or

ended in any manner in the future you will be entitled to a

minimum severance pay equal to 1 (one) full year compen-

sation. [Emphasis added.]

The phrase “ended in any manner in the future”

renders Youngblood’s “promise” a gratuity and not a

unilateral offer of a contract. As defendant correctly

argues, plaintiffs were not required to work at all after

receiving the letters. Rather, the plain language of the

letters enabled plaintiffs to resign immediately and

collect the severance pay offered.

The letters required

no action or forbearance. Without sufficient consider-

ation, defendant’s promise in the letters was not legally

binding. Id.

The facts of this case are similar to the facts in Kolka v

Atlas Chem Indus, 13 Mich App 580; 164 NW2d 755

(1968). In Kolka, the plaintiff had been on disability leave

for approximately one year when the employer instituted

We reject defendant’s alternative argument that the 2009 letters

would not allow an employee to resign and collect. Defendant claims that

some action by it, such as termination, was required. The plain language

of the 2009 letters is clear. The phrase “ended in any manner” includes

resignation. No provision in the 2009 letters requires action by defendant

to end the employment.

78 306 M

ICH

67 [July

a separation-pay policy. Id. at 581. Although the plaintiff

was on inactive payroll, he was in “no position to comply

with or give consideration for an offer of” separation pay.

Id. Absent sufficient consideration, this Court held that

the plaintiff was not entitled to separation pay and that

the trial court had properly granted summary disposition

for the defendant employer. Id. The plaintiff on disability

leave in Kolka could not provide consideration for the

employer’s promise, and plaintiffs here were not required

to provide consideration.

In the instant case, defendant’s severance-pay policy

required no consideration (performance or forbearance)

by plaintiffs. Because no consideration was required to

accept the severance pay offered in the 2009 letters, no

unilateral contract was formed. Instead, the 2009 letters

created a policy that could be modified or revoked. As in

Kolka, there was no event here, such as continued em-

ployment for a certain number of years, see Cain, 346

Mich at 571, that could result in the vesting of the right of

severance payments. Absent a vested right to severance

payments, defendant could revoke the policy as it did by

letter on June 7, 2011.

Therefore, by the time plaintiffs

resigned in July 2011, because the severance-pay policy

had already been revoked by defendant, contrary to the

trial court’s conclusion, plaintiffs were not entitled to

severance payments.

We reject defendant’s argument that the 2009 letters limited the

severance-pay policy to the restructuring period. The plain language of the

letters provided for severance if plaintiffs’ employment “ended in any

manner in the future.” The phrase “in the future” is not limited to the

restructuring period. Therefore, even though the 2009 letters were sent to

retain key individuals during the restructuring and the restructuring was

over, the policy arguably continued until Pendleton sent the June 7, 2011

letters, which ended the policy.

Because of our conclusion that defendant could revoke the severance-

pay policy at any time, we need not address defendant’s argument that

Youngblood lacked the actual authority to bind defendant to irrevocable

severance-pay contracts.

2014] K

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The trial court found that an express contract existed

and did not reach plaintiffs’ claims in Count II (breach

of implied contract) or Count III (promissory estoppel).

This Court generally does not review an issue unde-

cided by the trial court unless it is a question of law and

all the facts needed for resolution are present. Can-

delariavBCGenContractors, Inc, 236 Mich App 67,

83; 600 NW2d 348 (1999). Because the interpretation of

the 2009 letters is a question of law, this Court may

review those claims also.

Plaintiffs’ breach-of-implied-contract claim is de-

rived from the discharge-for-cause doctrine enunciated

by Toussaint v Blue Cross & Blue Shield of Mich, 408

Mich 579; 292 NW2d 880 (1980). In Toussaint, the

Michigan Supreme Court held that a provision of an

employment contract providing that an employee shall

not be discharged except for cause is legally enforceable,

even if the contract is indefinite or not for a definite

term. The provision could become part of the contract

either (1) by express agreement, oral or written, which

required negotiation, or (2) as a result of an employee’s

legitimate expectations grounded in an employer’s

policy statements. The Supreme Court in Toussaint

held that both plaintiffs had presented sufficient evi-

dence of an express agreement. For example, one plain-

tiff was told that if he was “doing the job,” he would not

be discharged. The Supreme Court further held that a

jury could find that one of the two plaintiffs also had

legitimate expectations (or an implied contract)

grounded in his employer’s written policy statements,

set forth in the manual of personnel policies. Id. at

597-599.

80 306 M

ICH

67 [July

In Certified Question, 432 Mich at 441, the Supreme

Court next answered in the affirmative that a written

discharge-for-cause personnel policy (an implied con-

tract) could be unilaterally modified by an employer

without explicit reservation of that right at the outset.

The Supreme Court noted:

[W]ritten personnel policies are not enforceable because

they have been “offered and accepted” as a unilateral

contract; rather, their enforceability arises from the benefit

the employer derives by establishing such policies.

***

Under the Toussaint analysis, an employer who chooses

to establish desirable personnel policies, such as a

discharge-for-cause employment policy, is not seeking to

induce each individual employee to show up for work day

after day, but rather is seeking to promote an environment

conducive to collective productivity. [Id. at 453-454.]

The Supreme Court concluded that a policy should be a

“flexible framework for operational guidance” rather

than “a perpetually binding contractual obligation,”

which would allow businesses to be “adaptable and

responsive to change,” id. at 456, and as such, an

employer may unilaterally make changes in a written

discharge-for-cause policy, but “reasonable notice of the

change must be uniformly given to affected employees,”

id. at 456-457. The Court noted that discharge-for-

cause is not a right that can accrue or vest and sug-

gested that employers may not so easily change policies

that do accrue or vest. Id. at 457.

Our Supreme Court has since declined to extend

Toussaint’s legitimate-expectations test to a compensa-

tion plan: “Were we to extend the legitimate-

expectations claim to every area governed by company

policy, then each time a policy change took place con-

2014] K

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tract rights would be called into question.” Dumas v

Auto Club Ins Ass’n, 437 Mich 521, 531; 473 NW2d 652

(1991) (opinion by R

ILEY

, J.).

Again, the trial court did not reach the question

whether an implied contract existed. Michigan courts

have not extended the legitimate-expectations test to

severance-pay policies, and we decline to do so here.

Employers should enjoy flexibility in modifying their

policies. See Certified Question, 432 Mich at 456. But

even if we were to conclude that plaintiffs had legiti-

mate expectations of severance payments, defendant

properly revoked the severance-pay policy with the

June 7, 2011 letters. Pendleton explained that the

economic downturn and restructuring that spurred the

2009 letters had ended, so the severance-pay policy was

no longer necessary. There has been no allegation by

plaintiffs that defendant failed to provide reasonable

notice of the June 7, 2011 change. Id. at 457. In fact,

when plaintiffs were originally hired by defendant, they

signed personnel forms that provided that changes to

employment, compensation, and benefits could be

modified or eliminated at any time upon simple written

notice, which they received from Pendleton.

Plaintiffs claim that they rejected the June 7, 2011

letters revoking the severance-pay policy. But no agree-

ment for severance pay existed, and as the Supreme

Court in Certified Question, 432 Mich at 456, explained,

employers may unilaterally make changes to employ-

ment policies so they can best adapt to changing busi-

ness conditions. If plaintiffs were displeased by the

change in policy, they were free to resign, but they were

A generalized personnel policy could not ordinarily defeat a definitive

offer and acceptance for severance, but here, where no contract existed

and the policy could be amended at any time, plaintiffs’ awareness of

such flexibility at the time of hire is notable.

82 306 M

ICH

67 [July

not entitled to severance payments upon their resigna-

tion by virtue of an implied contract. Plaintiffs’ claim in

Count II (breach of implied contract) could not have

survived summary disposition.

Just as plaintiffs had no legitimate expectations that

the severance-pay policy would not be revoked, plain-

tiffs had no claim in promissory estoppel. The elements

of promissory estoppel are

(1) a promise, (2) that the promisor should reasonably have

expected to induce action of a definite and substantial

character on the part of the promisee, and (3) that in fact

produced reliance or forbearance of that nature in circum-

stances such that the promise must be enforced if injustice

is to be avoided. [Novak v Nationwide Mut Ins Co, 235 Mich

App 675, 686-687; 599 NW2d 546 (1999).]

First, the 2009 letters articulated not a promise, but a

severance-pay policy that could be changed at will.

Moreover, even if defendant had made a promise by the

2009 letters, before revoking the severance-pay policy,

defendant could not have reasonably expected that its

revocation of the “promise” by the June 7, 2011 letters

would induce plaintiffs to resign within a month and

thereafter attempt to collect the severance pay referred

to in the “promise.” Therefore, plaintiffs’ promissory

estoppel claim could not have survived summary dispo-

sition.

III

In summary, no unilateral contract for severance pay

existed, and defendant properly revoked the severance-

pay policy on June 7, 2011. Thus, when plaintiffs

subsequently resigned, they were not entitled to sever-

ance payments. The trial court erred by finding that

2014] K

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defendant breached an express contract to make sever-

ance payments to plaintiffs and granting summary

disposition in favor of plaintiffs for that breach of

contract. In light of the June 7, 2011 letters revoking

the policy, plaintiffs’ claims in Counts II (breach of

implied contract) and III (promissory estoppel) also

could not have survived summary disposition.

We reverse the trial court’s grant of summary dispo-

sition to plaintiffs on Count I (breach of express con-

tract), denial of defendant’s motion for summary dispo-

sition, and dismissal of plaintiffs’ remaining claims as

moot. We vacate the trial court’s award of damages to

plaintiffs and remand to the trial court for entry of an

order granting summary disposition in favor of defen-

dant on all counts. We do not retain jurisdiction.

Defendant, as the prevailing party on appeal, may tax

costs pursuant to MCR 7.219.

O’C

ONNELL

,P.J., and M

ETER

, J., concurred with

ILDER

,J.

84 306 M

ICH

67 [July

PEOPLE v DUENAZ

Docket No. 311441. Submitted May 13, 2014, at Detroit. Decided July 10,

2014, at 9:00 a.m. Leave to appeal sought.

A jury in the St. Clair Circuit Court, James P. Adair, J., convicted Robin

S. Duenaz of three counts of first-degree criminal sexual conduct

(CSC-I) (victim under 13 years of age), MCL 750.520b(1)(a), and one

count of second-degree criminal sexual conduct (CSC-II) (victim

under 13 years of age), MCL 750.520c(1)(a). The court sentenced

defendant as a fourth-offense habitual offender, MCL 769.12, to 50 to

75 years in prison. Defendant appealed.

The Court of Appeals held:

1. Under MCL 750.520j, evidence of all sexual activity by the

complainant not incident to the alleged rape is barred, with two

narrow exceptions. In this case, defendant sought to admit evi-

dence that the victim’s then stepfather had sexually assaulted her

approximately one year before the charged offenses occurred. The

evidence of the prior sexual assault did not fit within either of the

narrow exceptions set forth in MCL 750.520j, and admission of the

evidence was not necessary to preserve defendant’s constitutional

right of confrontation. The trial court did not abuse its discretion

by excluding the evidence.

2. Under MRE 803(4), hearsay statements are not excluded by

the general rule barring the admission of hearsay when the

statements were made for the purpose of medical treatment or

diagnosis in connection with treatment and describing medical

history, or past or present symptoms, pain, or sensations, or the

inception or general character of the cause or external source

thereof insofar as reasonably necessary to such diagnosis or

treatment. In cases of suspected child abuse, statements the child

makes may be admitted under this exception when the totality of

the circumstances surrounding the statements indicates that they

are trustworthy. In this case, the court admitted statements the

victim made to Dr. Harry Frederick that implicated defendant.

The victim here was mature enough to relate the details to the

doctor and others, the physician did not use leading questions to

elicit the statements, the victim phrased her statements in child-

2014] P

EOPLE V

UENAZ

like terms, the examination was performed while the victim was

still suffering emotional pain and distress from the incident, and

the victim’s identification of the defendant was reasonably neces-

sary to the victim’s diagnosis and treatment given that defendant

was a family friend. In light of these facts, the court did not abuse

its discretion by admitting the statements the victim made to

Frederick.

3. Under MCL 768.27a, in a criminal case in which the

defendant is accused of committing a listed offense against a

minor, evidence that the defendant committed another listed

offense against a minor is admissible and may be considered for its

bearing on any matter to which it is relevant. But although

admissible under MCL 768.27a, evidence may be excluded under

MRE 403 if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading

the jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence. When applying

MCL 768.27a and the balancing test of MRE 403, the propensity

inference of the evidence must be weighed in favor of the probative

value of the evidence. In this case, the court did not abuse its

discretion by admitting evidence of defendant’s 2009 Arizona

conviction for attempted molestation of a child and testimony by

defendant’s former stepdaughter that he sexually assaulted her.

The trial court correctly found that defendant’s assault on his then

stepdaughter was similar to the acts alleged in this case: both

involved similar acts in the same location, with similar threats to

the victims, and less than six months elapsed between the two

crimes. This evidence was relevant and probative. Further, the

acts alleged in this case were of the same general character as

those supporting defendant’s Arizona conviction because both

involved sex crimes against children. While the Arizona conviction

was prejudicial, it was not unfairly prejudicial.

4. Under MCL 767.40a, if requested by the defense, the pros-

ecution or law enforcement must provide reasonable assistance to

locate and serve process on witnesses. MCL 767.93(1) allows the

court to issue a certificate to obtain the presence of an out-of-state

material witness. In this case, defendant moved to compel the

testimony of Dr. Duane Penshorn, who had examined the victim

shortly after the allegations against defendant came to light.

Defendant proposed to have Penshorn testify by telephone, but the

court ruled that MCR 6.006 would not permit telephonic testi-

mony because the court did not have two-way interactive video

technology. In light of the court’s ruling, the parties stipulated the

admission of Penshorn’s report. Assuming that the prosecution

86 306 M

ICH

85 [July

was not duly diligent in producing Penshorn and that the court

abused its discretion by not permitting Penshorn to testify by

telephone, defendant failed to establish prejudice. Defendant made

no argument regarding how questioning Penshorn in court or over

the phone would have provided any more information to the jury

than was already provided in his report. Error in the admission or

exclusion of evidence does not warrant reversal if, in light of the

other properly admitted evidence, it does not affirmatively appear

more probable than not that a different outcome would have

resulted without the error.

5. The Double Jeopardy Clause, US Const, Am V, protects

against multiple prosecutions for the same offense after acquittal

or conviction and against multiple punishments for the same

conviction. When the Legislature has clearly expressed the intent

for multiple punishments, the prohibition against double jeopardy

is not violated by the imposition of multiple punishments. When

that intent is not clearly expressed, the “same elements” test of

Blockburger v United States, 284 US 299, 304 (1932), must be

applied. The Blockburger test looks at the statutory elements of

the offenses and asks whether each offense requires proof of a fact

that the other does not. The elements of CSC-I in this case were (1)

the defendant engaged in sexual penetration, (2) with a person

under 13 years of age. Under MCL 750.520a(r), “sexual penetra-

tion” means sexual intercourse, cunnilingus, fellatio, anal inter-

course, or any other intrusion, however slight of any part of a

person’s body or any object into the genital or anal openings of

another person’s body. The elements of CSC-II were (1) the

defendant engaged in sexual contact, (2) with a person under 13

years of age. The statutory definition, under MCL 750.520a(q), of

“sexual contact,” includes the intentional touching of the victim’s

or actor’s intimate parts or the intentional touching of the clothing

covering the immediate area of the victim’s or actor’s intimate

parts, if that touching can reasonably be construed as being for the

purpose of sexual arousal or gratification, or done for a sexual

purpose. Given the Legislature’s definitions of “sexual penetra-

tion” and “sexual contact,” CSC-I and CSC-II each require proof of

a fact that the other does not. Sexual penetration is an element of

CSC-I but not CSC-II. CSC-II requires that sexual contact be done

for a sexual purpose, an element not included in CSC-I. Under

Blockburger, conviction and punishment for both CSC-I and

CSC-II does not violate double jeopardy.

6. Under the Interstate Agreement on Detainers (IAD), MCL

780.601, an inmate incarcerated in one state may be transported to

another state for trial on charges in the receiving state. Under

2014] P

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Article III(a) of the IAD, whenever a person has entered upon a

term of imprisonment in a penal or correctional institution of a

party state, and whenever during the continuance of the term of

imprisonment there is pending in any other party state any

untried indictment, information or complaint on the basis of which

a detainer has been lodged against the prisoner, the prisoner shall

be brought to trial within 180 days after he or she shall have

caused to be delivered to the prosecuting officer and the appropri-

ate court of the prosecuting officers’ jurisdiction written notice of

the place of his or her imprisonment and his or her request for a

final disposition to be made of the indictment, information or

complaint: Provided that for good cause shown in open court, the

prisoner or the prisoner’s counsel being present, the court having

jurisdiction of the matter may grant any necessary or reasonable

continuance. The request of the prisoner shall be accompanied by

a certificate of the appropriate official having custody of the

prisoner, stating the term of commitment under which the pris-

oner is being held, the time already served, the time remaining to

be served on the sentence, the amount of good time earned, the

time of parole eligibility of the prisoner, and any decisions of the

state parole agency relating to the prisoner. In this case, defen-

dant’s demand for disposition, accompanied by the required cer-

tificate, was not delivered to the prosecution until December 28,

2011, and defendant was properly brought to trial within 180 days

after that date.

7. Offense Variable (OV) 11, MCL 777.41, concerns criminal

sexual penetration. Defendant was assessed 50 points for OV 11,

but the prosecution agreed that defendant should have been

assessed only 25 points because there was only one additional

penetration beyond the sentencing offenses. Correction of the

error reduced the recommended minimum-sentence range. Ac-

cordingly, defendant was entitled to resentencing because a defen-

dant is entitled to be sentenced on the basis of accurate informa-

tion.

Defendant’s convictions affirmed; case remanded for correction

of the sentencing information report and resentencing.

ONSTITUTIONAL

AW —

OUBLE

EOPARDY —

ULTIPLE

UNISHMENTS —

RIMI-

NAL

EXUAL

ONDUCT

The crimes of first-degree criminal sexual conduct for sexual pen-

etration with a person under 13 years of age and second-degree

criminal sexual conduct for sexual contact with a person under 13

years of age each contain an element that the other does not; the

crimes are separate offenses for which a defendant may be

88 306 M

ICH

85 [July

properly convicted and punished without violating the Double

Jeopardy Clause protection against multiple punishments (US

Const, Am V; Const 1963, art 1, § 15; MCL 750.520b(1)(a); MCL

750.520c(1)(a)).

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Michael D. Wendling, Prosecuting

Attorney, and Hilary B. Georgia, Assistant Prosecuting

Attorney, for the people.

State Appellate Defender (by Michael L. Mittlestat

and Malaika Ramsey-Heath) for defendant.

Before: M

ARKEY

,P.J., and S

AWYER

and W

ILDER

,JJ.

URIAM

. Defendant appeals by right his convic-

tions by a jury of three counts of first-degree criminal

sexual conduct (CSC-I), MCL 750.520b(1)(a), and one

count of second-degree criminal sexual conduct (CSC-

II), MCL 750.520c(1)(a). The trial court sentenced de-

fendant as a fourth-offense habitual offender, MCL

769.12, to 50 to 75 years in prison. We affirm defen-

dant’s convictions but remand for correction of the

sentencing information report and resentencing.

I. EVIDENCE OF PRIOR ASSAULT

Defendant first argues that the trial court abused its

discretion by ruling inadmissible evidence regarding a

sexual assault that the victim’s then stepfather perpe-

trated on her about one year before the instant offenses.

The stepfather had pleaded guilty to reduced charges of

two counts of third-degree criminal sexual conduct

(CSC-III), MCL 750.520d, and one count of CSC-II, and

was sentenced to 10-15 years in prison. The trial court

reviewed the police reports in the instant case and those

from the earlier case and ruled that under the rape-

2014] P

EOPLE V

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shield statute, MCL 750.520j, the defense could not

inquire into the prior case involving the victim.

Defendant argues that the evidence was admissible

under exceptions to the rape-shield statute for sources

of disease and to show an alternate source of the

victim’s age-inappropriate sexual knowledge. He also

contends that the probative value of this evidence

outweighed any prejudicial effect. Further, defendant

asserts the trial court’s ruling denied him his constitu-

tional the right to present a defense and confront his

accusers. We disagree.

A. STANDARD OF REVIEW

This Court reviews de novo both constitutional

claims and preliminary questions of law regarding

admissibility of evidence. People v Gursky, 486 Mich

596, 606; 786 NW2d 579 (2010); People v Pipes, 475

Mich 267, 274; 715 NW2d 290 (2006). We review the

trial court’s ultimate decision regarding admissibility of

evidence for an abuse of discretion. People v Burns, 494

Mich 104, 110; 832 NW2d 738 (2013). An abuse of

discretion occurs when trial court’s decision is outside

the range of principled outcomes. People v Benton, 294

Mich App 191, 195; 817 NW2d 599 (2011).

B. ANALYSIS

We conclude the proposed evidence was not relevant,

MRE 401; therefore, it was not admissible, MRE 402.

Moreover, the trial court did not abuse its discretion by

excluding the evidence because any marginally proba-

tive value of the evidence was substantially outweighed

by the danger of unfair prejudice or confusion of the

issues. MRE 403; People v Ackerman, 257 Mich App 434,

442; 669 NW2d 818 (2003). Finally, defendant’s consti-

90 306 M

ICH

85 [July

tutional rights to present a defense and confront the

witnesses against him were not violated. People v

Arenda, 416 Mich 1, 8; 330 NW2d 814 (1982) (stating

that the right to confront and cross-examine witnesses

does not include a right to cross-examine regarding

irrelevant issues).

The rape-shield statute, MCL 750.520j, provides:

(1) Evidence of specific instances of the victim’s sexual

conduct, opinion evidence of the victim’s sexual conduct,

and reputation evidence of the victim’s sexual conduct

shall not be admitted under sections 520b to 520g unless

and only to the extent that the judge finds that the

following proposed evidence is material to a fact at issue in

the case and that its inflammatory or prejudicial nature

does not outweigh its probative value:

(a) Evidence of the victim’s past sexual conduct with the

actor.

(b) Evidence of specific instances of sexual activity

showing the source or origin of semen, pregnancy, or

disease.

Similarly, MRE 404(a)(3) provides an exception to

the general rule excluding character evidence for, in a

case involving criminal sexual conduct (CSC), “evidence

of the alleged victim’s past sexual conduct with the

defendant and evidence of specific instances of sexual

activity showing the source or origin of semen, preg-

nancy, or disease....”

The rape-shield statute “ ‘bars, with two narrow

exceptions, evidence of all sexual activity by the com-

plainant not incident to the alleged rape.’ ” People v

Adair, 452 Mich 473, 478; 550 NW2d 505 (1996),

quoting People v Stull, 127 Mich App 14, 17; 338 NW2d

403 (1983). Because the statute excludes evidence that

in most cases would be only minimally relevant, the

statute’s prohibitions do not deny or significantly di-

2014] P

EOPLE V

UENAZ

minish a defendant’s right of confrontation. Arenda,

416 Mich at 11. Moreover, evidence of a complainant’s

sexual history also “is usually irrelevant as impeach-

ment evidence because it has no bearing on character

for truthfulness.” Adair, 452 Mich at 481, citing MRE

608. This is especially so in this case, given that the

evidence was not intended to show “bias, motive, or a

pattern of false accusations....”Id. at 481 n 5. Under

the statutory language, if one of the exceptions in the

statute applies, the trial court must determine whether

the inflammatory or prejudicial nature of the evidence

“outweigh[s]” its probative value. MCL 750.520j.

The evidence defendant sought to admit concerning

the victim’s prior sexual experience did not fit within

either of the narrow exceptions provided by the rape-

shield statute. MCL 750.520j(1). The statute was en-

acted to prohibit inquiry into a victim’s prior sexual

encounters, which were historically used by defendants

charged with CSC involving an adult in an effort to

prove the defense of consent. The statute reflects a

legislative policy determination that sexual conduct or

reputation regarding sexual conduct as evidence of

character and for impeachment, while perhaps logically

relevant, is not legally relevant. People v Hackett, 421

Mich 338, 346; 365 NW2d 120 (1984). Although consent

is not a relevant defense to a CSC charge involving an

underage minor, Michigan courts have applied the rape-

shield statute in cases involving child victims. See

Arenda, 416 Mich at 6, 13; Benton, 294 Mich App at

197-199; People v Morse, 231 Mich App 424, 430; 586

NW2d 555 (1998); People v Garvie, 148 Mich App 444,

448-449; 384 NW2d 796 (1986).

This is in contrast to MRE 403, which provides that relevant evidence

may be excluded if its probative value is “substantially outweighed” by

prejudicial considerations. Adair, 452 Mich at 481.

92 306 M

ICH

85 [July

Although the proffered evidence does not fit within

one of the rape-shield exceptions, in limited situations

evidence the statute excludes may nevertheless be rel-

evant and admissible to preserve a defendant’s consti-

tutional right of confrontation. Hackett, 421 Mich at

348–349; Benton, 294 Mich App at 197. Our Supreme

Court has directed that trial courts inform the exercise

of their discretion in regard to such a constitutional

claim by conducting an in camera hearing. Hacket, 421

Mich at 349. In this case, defendant asserts that evi-

dence of the prior assault was relevant and admissible

as an alternative explanation for the victim’s inappro-

priate sexual knowledge. The trial court reviewed police

reports of the earlier offenses and heard arguments of

counsel at a bench conference and on the record. As the

prosecution notes, the only similarity between the two

cases was that both involved anal and vaginal penetra-

tion. The two cases were certainly not “significantly

similar.” See Morse, 231 Mich App at 437. In addition,

defendant’s theory of relevance was just that. The

victim was 12 years old when she testified in this case

about what occurred when she was almost 8 years old.

It is pure speculation to suggest (1) that the victim’s

knowledge of sexual matters was inappropriate and (2)

that the victim’s knowledge of sexual matters derived

from an experience in her life a year before the instant

offenses. So, the evidence is not at all probative of the

victim’s credibility. Its admission would have only cre-

ated “a real danger of misleading the jury” and “an

obvious invasion of the victim’s privacy.” Arenda, 416

Mich at 12. In sum, the record indicates that the trial

court balanced the rights of the victim and defendant,

as required by Morse, 231 Mich App at 433, and its

ruling excluding the evidence was well within the range

of principled outcomes, Benton, 294 Mich App at 195.

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II. HEARSAY

Defendant next argues that the trial court abused its

discretion by admitting statements the victim made to

Dr. Harry Frederick, a board-certified emergency phy-

sician and medical director of the Saginaw Child Advo-

cacy Center. Frederick was qualified as an expert in

emergency medicine and child sexual examinations.

The instant offenses were alleged to have occurred

between December 25, 2007, and January 1, 2008.

Frederick examined the then eight-year-old victim on

January 22, 2008. The victim made statements impli-

cating defendant in the offenses while Frederick ques-

tioned her regarding her history. Defendant contends

the statements were not necessary to medical diagnosis

or treatment, and that the statements were not trust-

worthy. The prosecution disputes defendant’s claims,

and argues that if error occurred, it was harmless. We

conclude that the trial court did not abuse its discretion

by admitting the hearsay evidence.

A. STANDARD OF REVIEW

We review the trial court’s decision to admit evidence

for an abuse of discretion. Burns, 494 Mich at 110. But

we review de novo preliminary questions of law regard-

ing whether a statute or evidentiary rule applies. People

v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). The

trial court’s decision is an abuse of discretion when the

result is outside the range of principled outcomes.

Benton, 294 Mich App at 195.

B. ANALYSIS

MRE 803(4) provides an exception to the general rule

excluding hearsay for statements made for purposes of

medical treatment or medical diagnosis in connection

94 306 M

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85 [July

with treatment: “Statements made for purposes of

medical treatment or medical diagnosis in connection

with treatment and describing medical history, or past

or present symptoms, pain, or sensations, or the incep-

tion or general character of the cause or external source

thereof insofar as reasonably necessary to such diagno-

sis or treatment” are not excluded by the hearsay rule.

All exceptions to the hearsay rule are justified be-

cause of the belief that the statements are made under

circumstances in which they are both necessary and

inherently trustworthy. People v Meeboer (After Re-

mand), 439 Mich 310, 322; 484 NW2d 621 (1992). The

“rationale for MRE 803(4) is the existence of (1) the

self-interested motivation to speak the truth to treating

physicians in order to receive proper medical care, and

(2) the reasonable necessity of the statement to the

diagnosis and treatment of the patient.” Id. In cases of

suspected child abuse, statements the child makes may

be admitted under this exception when the totality of

circumstances surrounding the statements supports

that they are trustworthy. Id. at 323-324. Factors that

may be part of a trustworthiness analysis include:

(1) the age and maturity of the declarant, (2) the manner in

which the statements are elicited (leading questions may

undermine the trustworthiness of a statement), (3) the

manner in which the statements are phrased (childlike

terminology may be evidence of genuineness), (4) use of

terminology unexpected of a child of similar age, (5) who

initiated the examination (prosecutorial initiation may

indicate that the examination was not intended for pur-

poses of medical diagnosis and treatment), (6) the timing of

the examination in relation to the assault (the child is still

suffering pain and distress), (7) the timing of the examina-

tion in relation to the trial (involving the purpose of the

examination), (8) the type of examination (statements

made in the course of treatment for psychological disorders

may not be as reliable), (9) the relation of the declarant to

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the person identified (evidence that the child did not

mistake the identity), and (10) the existence of or lack of

motive to fabricate. [Id. at 324-325 (citations omitted).]

Applying the Meeboer factors to the present case

supports admission of the victim’s statements under

MRE 803(4). Unlike the Meeboer companion case of

People v Craft, in which the victim was four, the victim

in this case was nearly eight when the abuse occurred

and eight when Frederick examined her. She was ma-

ture enough to relate the details to the doctor and

others. Frederick did not use leading questions to elicit

the statements. The victim also phrased her statements

in childlike terms such as, “Scott put his pee-pee in her,

um, butt and in her private part, and that...ithurt.”

Although the prosecution initiated the examination and

it may have been at least in part to investigate an

alleged sexual assault, this factor is not dispositive. See

Meeboer, 439 Mich at 333-334. Furthermore, Freder-

ick’s examination of the victim was done when the child

was still suffering from emotional pain and distress

from the incident. The examination was medical, not

psychological. Nothing indicates that the victim mis-

took defendant’s identity or had a motive to fabricate.

As discussed in Meeboer, 439 Mich at 329-330, state-

ments of identification in child sexual abuse cases serve

several important purposes. The doctor can assess and

treat any pregnancy or sexually transmitted disease,

make referrals for other treatment, including counsel-

ing, and structure the examination to the “exact type of

trauma the child recently experienced.” Id. at 329. The

doctor can also assess whether the child will be return-

ing to an abusive home. In this case, the attacker’s

identity was important because he was a family friend

who managed to take the child with him more than

once. Generally, identification of the assailant “can be

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85 [July

as important to the health of the child as treatment of

the physical injuries that are apparent to the physi-

cian.” Id. at 328. In this case, the “identification of the

assailant was reasonably necessary to the victim’s

medical diagnosis and treatment.” Id. at 334. Indeed,

the victim’s identification of defendant was an insepa-

rable part of the examination when she volunteered it

as her first statement to Frederick.

Finally, even if admission of the identification testi-

mony were error, it does not require reversal. Freder-

ick’s testimony regarding the victim’s out-of-court

statement was cumulative of her in-court identification

of defendant. “[T]he admission of a hearsay statement

that is cumulative to in-court testimony by the

declarant can be harmless error, particularly when

corroborated by other evidence.” Gursky, 486 Mich at

620. In this case, the possibility of prejudice is dimin-

ished because the hearsay was cumulative and because

the victim-declarant was subject to cross-examination

at trial. Id. at 621-623. Further, identity was not at

issue in this case; defendant was the only person to take

the victim and her cousin to his apartment to make

cookies, and he was well known to the family. For all

these reasons, even if Frederick’s testimony regarding

the victim’s statements were admitted in error, reversal

is not warrant. See Lukity, 460 Mich at 495-496 (stating

that evidentiary error does not warrant reversal if,

when assessed in the light of the other properly admit-

ted evidence, it does not affirmatively appear more

probable than not that a different outcome would have

resulted without the error).

III. OTHER ACTS EVIDENCE

Defendant argues that he was denied due process and a

fair trial when the trial court abused its discretion by

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admitting evidence of defendant’s 2009 Arizona convic-

tion for attempted molestation of a child and testimony by

defendant’s former stepdaughter that he sexually as-

saulted her in July 2007 when she was 13 years old.

Defendant contends that the evidence was not relevant or

similar enough to show a common scheme, plan, or

system, and that any minimal probative value was out-

weighed by its prejudicial effect. The prosecution disputes

these arguments and contends that the trial court prop-

erly admitted the evidence under MCL 768.27a, which

permits evidence of other offenses against minors. We

conclude that the trial court did not abuse its discretion

and that defendant was not denied a fair trial.

A. STANDARD OF REVIEW

We review the trial court’s decision to admit evidence

for an abuse of discretion. Burns, 494 Mich at 110. But

we review de novo preliminary questions of law regard-

ing whether a statute or evidentiary rule applies, or as

defendant claims, constitutional protections require

exclusion of evidence. Benton, 294 Mich App at 195. The

trial court’s decision is an abuse of discretion when the

result is outside the range of principled outcomes. Id.

B. ANALYSIS

MCL 768.27a(1) provides in pertinent part:

Notwithstanding section 27,

[

]

in a criminal case in

which the defendant is accused of committing a listed

offense against a minor, evidence that the defendant com-

mitted another listed offense against a minor is admissible

and may be considered for its bearing on any matter to

which it is relevant.

Section 27, MCL 768.27, provides for the admission of other acts

evidence using language similar to that of MRE 404(b)(1).

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85 [July

Our Supreme Court held in People v Watkins, 491 Mich

450, 455, 472; 818 NW2d 296 (2012), that MCL 768.27a

and MRE 404(b)

irreconcilably conflict, but that the

Legislature intended the statute, a valid enactment of

substantive law, to supersede the court rule. Watkins,

491 Mich at 455, 471-475. Evidence relevant because it

shows propensity is admissible under MCL 768.27a

whereas evidence relevant only because it show propen-

sity is excluded by MRE 404(b). Watkins, 491 Mich at

470-472. But the Watkins Court held that evidence

otherwise admissible under MCL 768.27a still remains

subject to the requirements of MRE 403. Watkins, 491

Mich at 481. MRE 403 states that although it is rel-

evant, “evidence may be excluded if its probative value

is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time,

or needless presentation of cumulative evidence.”

The Watkins Court provided guidance to trial courts

in applying MCL 768.27a and the balancing test of MRE

403. First, the propensity inference of the evidence

must be weighed in favor of the evidence’s probative

value. Watkins, 491 Mich at 486-487. Second, the Court

provided an illustrative, nonexhaustive list of factors

that may lead a trial court to exclude evidence under

MRE 403:

(1) the dissimilarity between the other acts and the

charged crime, (2) the temporal proximity of the other acts

MRE 404(b)(1) provides: “Evidence of other crimes, wrongs, or acts is

not admissible to prove the character of a person in order to show action

in conformity therewith. It may, however, be admissible for other

purposes, such as proof of motive, opportunity, intent, preparation,

scheme, plan, or system in doing an act, knowledge, identity, or absence

of mistake or accident when the same is material, whether such other

crimes, wrongs, or acts are contemporaneous with, or prior or subsequent

to the conduct at issue in the case.”

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to the charged crime, (3) the infrequency of the other acts,

(4) the presence of intervening acts, (5) the lack of reliabil-

ity of the evidence supporting the occurrence of the other

acts, and (6) the lack of need for evidence beyond the

complainant’s and the defendant’s testimony. [Watkins,

491 Mich at 487-488.]

In the present case, the trial court applied the proper

standard by asking whether the evidence was more

prejudicial than probative. Considering defendant’s

July 2007 assaults on his stepdaughter, the trial court

correctly found that these were similar to the present

crimes. Defendant took the other victim to his apart-

ment, asked her to watch a movie, and penetrated her

anally and then vaginally. He also did this again a few

days later. Defendant threatened both victims with

harm to them or their families if they told. The differ-

ence in ages between the two victims (the other victim

was thirteen), is not very material. Less than six

months elapsed between the two crimes. The evidence

of the similar assault against the other victim was very

probative and important to the prosecution’s case,

especially because defendant was able to claim a lack of

physical evidence of sexual assault based on Frederick’s

examination. Also, the passage of time had faded the

victim’s memory regarding some details. The chal-

lenged evidence was relevant because it tended to show

that it was more probable than not that the minors

were telling the truth. People v Mann, 288 Mich App

114, 118; 792 NW2d 53 (2010). Our review of the record

reveals that the trial court carefully weighed pertinent

factors in deciding to admit the evidence. The court also

gave a limiting instruction regarding evidence of other

crimes. See CJI2d 20.28a. The trial court’s decision was

within the range of principled outcomes and therefore

not an abuse of discretion. Benton, 294 Mich App at 195.

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85 [July

The trial court also did not abuse its discretion by

admitting evidence of defendant’s 2009 Arizona con-

viction for attempted molestation of a child. A certi-

fied copy of the conviction was admitted as an exhibit

but details of the conviction were not provided.

Clearly, the instant offenses and the Arizona convic-

tion were “of the same general category,” People v

Mardlin, 487 Mich 609, 622-623; 790 NW2d 607

(2010), because they involve sex crimes (or attempted

sex crimes) against children. Our Legislature has

decided that evidence of other sexual assaults on

children is relevant in a case in which a defendant is

charged with committing a sexual offense against a

minor. MCL 768.27a(1). Such allegations (or here,

charged crimes and convictions) do tend to make the

complainant’s story more believable by showing pro-

pensity to commit the charged offense. See Watkins,

491 Mich at 492. The Arizona conviction was preju-

dicial but not unfairly prejudicial. There was no

danger of confusion of the issues, misleading the jury,

undue delay, or other considerations mentioned in

MRE 403. Because defendant went to Arizona after

committing the assaults in Michigan, the conduct

underlying the 2009 Arizona conviction would not

have been too far removed temporally from the

instant offenses in Michigan. Further, because there

was a conviction, there is no lack of reliability regard-

ing the evidence. Thus, although the details of the

crimes cannot be compared, we conclude that the trial

court did not abuse its discretion by admitting the

evidence in light of the various factors regarding

admissibility under MCL 768.27a and MRE 403.

Watkins, 491 Mich at 487-488.

On the basis of the foregoing, we conclude that the

other acts evidence was properly admitted, and defen-

dant was not denied his due process right to a fair trial.

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101

IV. COMPULSORY PROCESS CLAIM

Defendant filed a pretrial motion to compel the

testimony of Dr. Duane Penshorn, who examined the

victim on January 13, 2008. Penshorn moved to Texas

at some point before trial. The trial court directed the

prosecution attempt to produce him, or his report could

be admitted in evidence at trial. The defense also

proposed to have Penshorn testify by telephone. Al-

though Penshorn apparently agreed to testify by tele-

phone, the prosecution noted that MCR 6.006 might not

permit it. The trial court ruled that MCR 6.006 would

not permit telephonic testimony because the court did

not have two-way interactive video technology. In light

of this ruling, the parties stipulated the admission of

Penshorn’s report.

A. STANDARD OF REVIEW

We review the trial court’s decision regarding evi-

dence for an abuse of discretion. Burns, 494 Mich at

110. We review de novo questions of law related to the

admission or exclusion of evidence. Id.; Benton, 294

Mich App at 195. The trial court abuses its discretion

when the result is outside the range of principled

outcomes. Benton, 294 Mich App at 195.

B. ANALYSIS

Even if the trial court abused its discretion by not

allowing Penshorn to testify by telephone, the error

does not warrant reversal.

Defense counsel wanted Penshorn produced because

he examined the victim on January 13, 2008, a week

before Frederick examined her on January 22, 2008,

and both doctors found no physical evidence of sexual

abuse. Penshorn’s report stated that he found “slight

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85 [July

diffuse redness” of the victim’s external vulva, but no

“obvious scarring or trauma.”

Frederick testified at trial that during his examina-

tion of the victim he found a little nonspecific erythema,

or redness, of the external genitalia. But these findings

were not significant regarding sexual abuse. Frederick

explained that after 7 to 10 days, redness would have no

meaning because the tissue would heal very fast. The

victim had no changes to her hymen indicative of sexual

abuse, but Frederick noted the hymen could also heal

relatively quickly, within four weeks, or it might be left

with a “notch.” Frederick found no indication of a

healed injury. The victim’s anal area was also normal,

but any small tears to the anus would have healed

quickly, within days. In sum, Frederick found no physi-

cal evidence of sexual abuse.

Frederick also testified that the absence of physical

findings did not necessarily negate sexual abuse be-

cause physical evidence of abuse was found in less than

17% of victims, or as low as 4% after 7 to 14 days.

Physical findings would be found in the anal area in

only 1 in a 1,000 cases after a similar time lapse.

MCL 767.40a(1) requires that the prosecution attach

to the information a list of eyewitnesses and witnesses

who might be called at trial. If requested by the defense,

the prosecution or law enforcement must provide rea-

sonable assistance to locate and serve process on wit-

nesses; prosecution objections must be raised in pretrial

motions, and the trial court must hold a hearing to

determine the reasonableness of the defense request.

MCL 767.40a(5). See also People v Burwick, 450 Mich

281, 288-289; 537 NW2d 813 (1995). The trial court has

discretion to fashion a remedy for the prosecution’s

noncompliance with the discovery statute. People v

Williams, 188 Mich App 54, 58-59; 469 NW2d 4 (1991).

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103

To warrant reversal, defendant must show that he was

prejudiced by noncompliance with the statute. Id.at59;

Burwick, 450 Mich at 295-297; People v Hana, 447 Mich

325, 358 n 10; 524 NW2d 682 (1994).

MCL 767.93(1) allows the court to issue a certificate

to obtain the presence of an out-of-state material wit-

ness. Further, MCL 767.40a(4) requires a showing of

good cause for removing a witness from the prosecu-

tion’s witness list. Forgetting to contact or subpoena a

witness is likely not “good cause.” Once a witness is

endorsed under MCL 767.40a(3), the prosecution must

use due diligence to produce the witness. People v

Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004). If

the court finds a lack of due diligence, the court may

give a “missing witness” instruction stating that the

jury may infer the witness’s testimony would have been

favorable to the defense. Id. In this case, the trial court

made no finding regarding the prosecution’s diligence.

Furthermore, the defense did not request a “missing

witness” instruction and instead agreed to allow admis-

sion of Penshorn’s report. Finally, the trial court’s

ruling under MCR 6.006 was technically correct. For

trials, the rule only allows the court to use two-way

interactive video technology to take testimony with the

consent of both parties. MCR 6.006(C)(2).

But assuming for the purpose of analysis that the

prosecution was not duly diligent in producing Pen-

shorn, and further assuming that the trial court abused

its discretion by not permitting Penshorn to testify over

the telephone, defendant has not established he suf-

fered prejudice as a result. First, Penshorn’s report that

was admitted in evidence was favorable to the defense.

Defense counsel was able to argue from it that Pen-

shorn found no physical evidence of sexual assault at a

point in time closer to the alleged assault than Freder-

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85 [July

ick’s examination. Second, defendant makes no argu-

ment regarding how questioning Penshorn in court or

over the telephone would have provided any more

information to the jury than was provided in his report.

Clearly, presenting live testimony is an important factor

for determining whether or not a witness is credible,

but here the information in Penshorn’s report was

undisputed. In sum, defendant has failed to establish

the prejudice necessary to warrant reversal regarding

the alleged failings of the prosecution under MCL

767.40a and the trial court’s alleged abuse of discretion

in fashioning a remedy. Hana, 447 Mich at 358 n 10;

Williams, 188 Mich App at 58-59. Error in the admis-

sion or exclusion of evidence does not warrant reversal

if, in light of the other properly admitted evidence, it

does not affirmatively appear more probable than not

that a different outcome would have resulted without

the error. MCL 769.26; Gursky, 486 Mich at 619.

Defendant has not established outcome-determinative

error that warrants reversal.

V. DOUBLE JEOPARDY

Defendant argues that his conviction for CSC-II was

not supported by the evidence and that it violated

double jeopardy protections. The prosecution argues

that because CSC-I and CSC-II each require proof of a

fact that the other does not, the prohibition against

double jeopardy is not violated by convicting a defen-

dant of both. We review this claim de novo. People v

Nutt, 469 Mich 565, 573; 677 NW2d 1 (2004).

The Double Jeopardy Clause, US Const, Am V, pro-

tects against “(1) multiple prosecutions for the same

offense after acquittal or conviction; and (2) multiple

punishments for the same offense.” People v Herron,

464 Mich 593, 599; 628 NW2d 528 (2001). See also

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105

Const 1963, art 1, § 15. In People v Smith, 478 Mich 292,

316; 733 NW2d 351 (2007), the Court held that when

the Legislature has clearly expressed the intent for

multiple punishments, the prohibition against double

jeopardy is not violated. When no such intent is clearly

expressed, the “same elements” test of Blockburger v

United States, 284 US 299, 304; 52 S Ct 180; 76 L Ed

306 (1932) should be applied. Smith, 478 Mich at 296,

316. The Blockburger test looks at the statutory ele-

ments of the offenses and asks whether each offense

requires proof of a fact that the other does not. Nutt,

469 Mich at 576. This Court has previously applied the

Blockburger test to a double jeopardy challenge of

multiple CSC convictions of different grades. See People

v Garland, 286 Mich App 1, 5-7; 777 NW2d 732 (2009)

(holding that a single act of sexual penetration sup-

ported conviction of both CSC-I and CSC-III because

each offense contains an element that the other does

not).

Application of the Blockburger test to defendant’s

double jeopardy claim requires that we reject it. Defen-

dant was convicted of three counts of CSC-I: two counts

based on vaginal penetration and one count based on

anal penetration. Defendant was also convicted of one

count of CSC-II. The elements of CSC-I in this case are:

(1) the defendant engaged in sexual penetration, (2)

with a person under 13 years of age. MCL

750.520b(1)(a). “Sexual penetration” means “sexual

intercourse, cunnilingus, fellatio, anal intercourse, or

any other 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). The elements of CSC-II are: (1) the defen-

dant engaged in sexual contact, (2) with a person under

13 years of age. MCL 750.520c(1)(a). The statutory

definition of “sexual contact,” pertinent here, includes

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85 [July

“the intentional touching of the victim’s or actor’s

intimate parts or the intentional touching of the cloth-

ing covering the immediate area of the victim’s or

actor’s intimate parts, if that touching can reasonably

be construed as being for the purpose of sexual arousal

or gratification, [or] done for a sexual purpose....”

MCL 750.520a(q). “Intimate parts” includes “the pri-

mary genital area, groin, inner thigh, buttock, or

breast....”MCL750.520a(f).

On the basis of the Legislature’s definitions of

“sexual penetration” and “sexual contact,” CSC-I and

CSC-II each require proof of a fact that the other does

not. See People v Lemons, 454 Mich 234, 253-254; 562

NW2d 447 (1997) (holding that CSC-II is a cognate but

not lesser-included offense of CSC-I). The differing

elements for the offenses of CSC-I and CSC-II demon-

strate the Legislature’s intent to authorize separate

convictions and punishments for these offenses.

“Sexual penetration” is an element of CSC-I but not

CSC-II. CSC-II requires that “sexual contact” be done

for a “sexual purpose,” an element not included in

CSC-I. Under Blockburger, conviction and punishment

for both CSC-I and CSC-II does not violate double

jeopardy.

Defendant’s argument that the evidence did not

support his conviction of CSC-II lacks merit. The same

evidence that supported defendant’s convictions of

CSC-I would also support, on the facts of this case,

conviction for CSC-II. The jury was properly instructed

regarding the elements of each offense, and the evi-

dence was sufficient to support multiple convictions.

VI. INTERSTATE AGREEMENT ON DETAINERS

Defendant argues that under the Interstate Agree-

ment on Detainers (IAD), MCL 780.601, he should have

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107

been brought to trial in Michigan within 180 days after

he wrote to the prosecutor on May 17, 2010. The

prosecution asserts it complied with the IAD by bring-

ing defendant to trial on June 5, 2012, within 180 days

after receiving the certificate required by the IAD on

December 28, 2011. The interpretation and application

of the IAD is a question of law that we review de novo.

People v Swafford, 483 Mich 1, 7; 762 NW2d 902 (2009).

The IAD provides that an inmate incarcerated in one

state may be transported to another for trial on charges

in the receiving state. The main purpose of the statute,

stated in Article I, is to encourage speedy disposition of

pending charges and prevent undue interference with

treatment and rehabilitation programs. See People v

Wilden (On Rehearing), 197 Mich App 533, 535; 496

NW2d 801 (1992). Article III(a) of the IAD sets forth the

procedure for a prisoner against whom a detainer is

filed to notify the prosecutor in the detaining state of

his place of imprisonment and to request final disposi-

tion of the charges. That subpart provides:

Whenever a person has entered upon a term of impris-

onment in a penal or correctional institution of a party

state, and whenever during the continuance of the term of

imprisonment there is pending in any other party state any

untried indictment, information or complaint on the basis

of which a detainer has been lodged against the prisoner,he

shall be brought to trial within one hundred eighty days

after he shall have caused to be delivered to the prosecuting

officer and the appropriate court of the prosecuting offic-

ers’ jurisdiction written notice of the place of his imprison-

ment and his request for a final disposition to be made of

the indictment, information or complaint: Provided that

for good cause shown in open court, the prisoner or his

counsel being present, the court having jurisdiction of the

matter may grant any necessary or reasonable continu-

ance. The request of the prisoner shall be accompanied by

a certificate of the appropriate official having custody of

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85 [July

the prisoner, stating the term of commitment under which

the prisoner is being held, the time already served, the time

remaining to be served on the sentence, the amount of good

time earned, the time of parole eligibility of the prisoner,

and any decisions of the state parole agency relating to the

prisoner. [MCL 780.601, art III(a) (Emphasis added).]

In the present case, the charges were initiated in

April 2008. Apparently while incarcerated in the state

of Arizona, defendant sent a letter to the prosecutor

asking what warrants were outstanding and how to

take care of them.

The prosecution acknowledged

receiving this letter from defendant on May 17, 2010,

but apparently did not respond. Defendant then wrote

to the warden of the Arizona prison where he was

incarcerated on September 27, 2011. The deputy war-

den wrote back on September 29, 2011, that “[s]ince the

case is for a probation violation and not untried charges

the IAD does not apply.”

Defendant then wrote to the

prosecutor and the St. Clair County Clerk on November 2,

In discussing this issue, the parties do not state when or if

Michigan authorities ever filed with authorities in Arizona a “de-

tainer” regarding the instant charges. As the plain language of the

IAD indicates, a detainer from the charging state is required to be filed

with the custodial state for its provisions to apply. See People v Gallego,

199 Mich App 566, 574; 502 NW2d 358 (1993) (“A detainer must be

lodged against a defendant for the IAD to apply.”) A “detainer” is

generally a “written notification filed with the institution in which a

prisoner is serving a sentence advising that the prisoner is wanted to

face pending charges in the notifying state.” Id. Holds placed in the

Law Enforcement Information Network are generally “insufficient to

activate the IAD.” Id. The certificate of inmate status filed by the

Arizona Department of Corrections, which the prosecutor received in

this case on December 28, 2011, provides no information regarding

detainers Michigan filed with Arizona authorizes. We assume in

analyzing this issue that a detainer regarding these charges was filed

with Arizona authorities, thus implicating compliance with the IAD.

We have not located evidence in the record that Michigan ever filed a

detainer with Arizona authorities regarding these charges. See note 4 of

this opinion.

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109

2011, demanding final disposition of the charges under

the IAD. This letter gave defendant’s place of impris-

onment and date of the alleged violations. Defendant

also wrote to the deputy warden of the Arizona prison

where he was incarcerated demanding under the IAD

that the warden process the documents required to

effectuate his IAD request. After an unsatisfactory

response, defendant again repeated his request to

prison authorities in correspondence dated December 8,

2011. Finally, on December 19, 2011, an Arizona prison

official sent to the St. Clair prosecutor the necessary

IAD forms, including the certificate referred to in

Article III(a) of the IAD, which provided information

regarding defendant’s term of commitment, time

served, time remaining, and good time earned. The

Arizona letter transmitting the required IAD forms is

date-stamped “received”

on December 28, 2011, by the

St. Clair prosecutor.

Assuming that the IAD applies to this case, we note

the prosecution correctly argues that commencing de-

fendant’s trial on June 5, 2012, complied with the

180-day time requirement of MCL 780.601, art III(a).

Swafford, 483 Mich at 13-14. The plain language of the

IAD provides that an “untried indictment, information

or complaint on the basis of which a detainer has been

lodged against the prisoner...shall be brought to trial

within one hundred eighty days after” the defendant

“shall have caused to be delivered to the prosecuting

officer...written notice of the place of his imprison-

ment and his request for a final disposition to be made

of the indictment, information or complaint....”MCL

780.601, art III(a). However, the defendant’s request for

disposition “shall be accompanied by a certificate of the

appropriate official having custody of the prisoner,

Capitalization altered.

110 306 M

ICH

85 [July

stating the term of commitment under which the pris-

oner is being held, the time already served, the time

remaining to be served on the sentence,” and other

information required by Article III(a). In this case,

defendant’s demand for disposition of the untried infor-

mation or complaint, accompanied by the Article III(a)

certificate, was not “caused to be delivered” to the

prosecutor until December 28, 2011. This is the date on

which the 180-day timeframe of the IAD commenced.

See Fex v Michigan, 507 US 43, 52; 113 S Ct 1085; 122

L Ed 2d 406 (1993) (holding “that the 180-day time

period in Article III(a) of the IAD does not commence

until the prisoner’s request for final disposition of the

charges against him has actually been delivered to the

court and prosecuting officer of the jurisdiction that

lodged the detainer against him”).

Our Supreme Court has similarly interpreted the

nearly identical language, “causes to be delivered,”

found in Michigan’s intrastate 180-day rule that is set

forth in MCL 780.131 and MCR 6.004(D), regarding

untried charges that are pending against Michigan

prison inmates. People v Lown, 488 Mich 242, 260, 262;

794 NW2d 9 (2011) (holding that the 180-day period of

MCL 780.131 begins “on the day after the prosecutor

receives the required notice from the [Department of

Corrections]”). See also People v Williams, 475 Mich

245, 256 n 4; 716 NW2d 208 (2006). Further, the

“statutory trigger” of “notice to the prosecutor of the

defendant’s incarceration and a departmental request

for final disposition of the pending charges,” applies

equally to MCR 6.004(D). Williams, 475 Mich at 259-

260.

Consequently, defendant’s claim that he was not

brought to trial within the time limit required by the

IAD is without merit.

2014] P

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111

VII. SENTENCING ISSUES

A. STANDARD OF REVIEW

The interpretation of the sentencing guidelines and

the application of facts to them are legal questions that

we review de novo. People v Hardy, 494 Mich 430, 438;

835 NW2d 340 (2013). But a trial court’s factual find-

ings are reviewed for clear error and must be supported

by a preponderance of the evidence. Id. Whether the

facts, as found, are adequate to sustain a particular

score is a question of statutory interpretation, reviewed

de novo. Id. We review de novo constitutional chal-

lenges to the sentencing guidelines. People v Drohan,

475 Mich 140, 146; 715 NW2d 778 (2006).

B. OFFENSE VARIABLE 11

Defendant argues that the trial court improperly

scored offense variable (OV) 11, MCL 777.41, at 50

rather than 25 points because evidence supported only

one “additional” penetration beyond the sentencing

offenses. The prosecution agrees that OV 11 should

have been scored at 25 points, but asserts that resen-

tencing is not required because the scoring error would

not have altered the applicable minimum-sentence

guidelines range. See MCL 777.62.

If the facts were as represented by the prosecution,

we would agree that its concession of error regarding

the scoring of OV 11 would not warrant remand for

resentencing. See People v Francisco, 474 Mich 82, 89

n 8; 711 NW2d 44 (2006). “Where a scoring error does

not alter the appropriate guidelines range, resentencing

is not required.” Id. But the sentencing information

report in the trial court file and the transcript of the

sentencing proceeding both indicate that defendant’s

total OV score was 120 points, including the 50 point

112 306 M

ICH

85 [July

score for OV 11. Applying the stipulated correct OV 11

score of 25 points would reduce defendant’s OV level

from VI to V and change the guidelines’ recommended

minimum-sentence range to 225 months to 750 or life.

MCL 777.62; MCL 769.12. While the 50 year (600

months) minimum sentence that the trial court im-

posed is within the corrected guidelines range, resen-

tencing is still required because a defendant is entitled

to be sentenced based on accurate information. People v

Jackson, 487 Mich 783, 793-794; 790 NW2d 340 (2010);

Francisco, 474 Mich at 89-92. Although the record

indicates that the trial court likely would have imposed

the sentence it did regardless of any deviation in the

guidelines scoring or recommended minimum-sentence

range, the trial court did not clearly say so. See Fran-

cisco, 474 Mich at 89 n 8. Consequently, we must

remand for resentencing based on corrected sentence

guidelines. Jackson, 487 Mich at 793-794; Francisco,

474 Mich at 89-92.

C. SIXTH AMENDMENT CHALLENGE

Defendant argues, citing Alleyne v United States, 570

US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), that

judicial fact-finding permitted by Michigan’s sentencing

guidelines violates the Sixth Amendment. He argues

that the recommended minimum-sentence range de-

rived from Michigan’s sentencing guidelines is essen-

tially a “mandatory minimum sentence” comparable to

those struck down in Alleyne. We disagree.

In People v Herron, 303 Mich App 392, 399; 845

NW2d 533 (2013),

this Court rejected the claim that

under Alleyne “judicial fact-finding using Michigan’s

Our Supreme Court has held the defendant’s application for leave to

appeal in Herron in abeyance pending its decision in People v Lockridge,

496 Mich 852 (2014). See People v Herron, 846 NW2d 924 (2014).

2014] P

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113

sentencing guidelines... as a guide to determine a

minimum term of an indeterminate sentence from a

recommended range violates the Sixth and Fourteenth

Amendments of the United States Constitution.”

Rather, judicial fact-finding and the sentencing guide-

lines inform the trial court’s sentencing discretion

within the maximum determined by statute and the

jury’s verdict. Herron, 303 Mich App at 403. Because

judicial fact-finding under Michigan’s sentencing guide-

lines does not establish a mandatory minimum sen-

tence but only informs the exercise of judicial discre-

tion, the fact-finding does not violate due process or the

Sixth Amendment’s right to a jury trial. Id. at 403-404.

We must follow Herron, MCR 7.215(J)(1); consequently,

we reject defendant’s constitutional challenge to Michi-

gan’s sentencing guidelines.

VIII. SUMMARY

The trial court did not abuse its discretion by ruling

inadmissible evidence of a sexual assault on the victim

by her then stepfather that occurred about one year

before the instant offenses, by admitting statements the

victim made to Frederick, or applying MCL 768.27a and

the balancing test of MRE 403 to admit evidence of

defendant’s Arizona conviction and testimony about a

2007 assault on another victim. Defendant was not

denied his right to present a defense or confront his

accusers; defendant received a fair trial.

With respect to the prosecution’s alleged failure to

comply with MCL 767.40a by not producing Penshorn in

person and the trial court’s alleged abuse of discretion in

failing to permit Penshorn to testify by telephone at trial,

we conclude that defendant has not established that these

alleged errors were outcome determinative. Consequently,

these claims do not warrant reversal.

114 306 M

ICH

85 [July

Defendant’s various constitutional and statutory

claims also lack merit. Because CSC-I and CSC-II each

require proof of a fact that the other does not, defen-

dant’s convictions of both on the same facts do not

violate double jeopardy. The prosecution complied with

the IAD by bringing defendant to trial within 180 days

of receiving the necessary Article III(a) documents from

Arizona authorities. And, judicial fact-finding under

Michigan’s sentencing guidelines does not violate the

Sixth or Fourteenth Amendments of the United States

Constitution.

Last, because the prosecution concedes that OV 11

was erroneously scored at 50 points rather than 25

points, and correction of this error reduces defendant’s

sentencing guidelines recommended minimum-

sentence range to 225 to 750 months or life, we must

remand for resentencing on the basis of accurate infor-

mation.

We affirm defendant’s convictions but remand for

correction of the sentencing information report and

resentencing. We do not retain jurisdiction.

ARKEY

,P.J., and S

AWYER

and W

ILDER

, JJ., concurred.

2014] P

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115

PEOPLE v HUGHES

PEOPLE v HARRIS

PEOPLE v LITTLE

Docket Nos. 316072, 317158, and 317272. Submitted January 15, 2014,

at Detroit. Decided July 15, 2014, at 9:00 a.m. Leave to appeal

sought.

Following an incident in the city of Detroit during which Nevin

Hughes, a Detroit police officer, allegedly assaulted a person and

the investigation of the incident by the Detroit Board of Police

Commissioners Office of the Chief Investigator (OCI), during

which Hughes made statements under the threat of dismissal from

his job, Hughes was charged in the 36th District Court with felony

misconduct in office, misdemeanor assault and battery, and ob-

struction of justice. Two other Detroit police officers, Sean Harris

and William Little, who had been standing nearby during the

incident and had also made statements during the OCI investiga-

tion under the threat of dismissal from their jobs, were also

charged in the district court with obstruction of justice. The

district court dismissed the obstruction-of-justice charges against

the three defendants, relying on US Const, Am V, and MCL 15.393,

which concerns the use in criminal prosecutions of involuntary

statements made by law enforcement officers. The Wayne Circuit

Court, Bruce U. Morrow, J., affirmed the dismissal of the

obstruction-of-justice charges. The Court of Appeals granted the

applications by the prosecution for leave to appeal with regard to

each defendant and consolidated the appeals.

The Court of Appeals held:

1. The Fifth Amendment did not bar the admission in the

prosecutions for obstruction of justice of the false statements

defendants made during the OCI investigation. The United States

Supreme Court held in Garrity v New Jersey, 385 US 493 (1967),

that the protection of the individual under the Fourteenth Amend-

ment against coerced statements prohibits use in subsequent

criminal proceedings of statements obtained under threat of

removal from office. Garrity precludes use of public employees’

compelled incriminating statements in a later prosecution for the

116 306 M

ICH

116 [July

conduct under investigation. However, Garrity does not preclude

use of such statements in prosecutions for the independent crimes

of obstructing the public employer’s investigation or making false

statements during it. The Fifth Amendment did not prohibit the

use of defendants’ statements in prosecutions for the independent

crimes of obstructing the public employer’s investigation or mak-

ing false statements during it. The Fifth Amendment did not

entitle defendants to swear falsely. The reasoning in People v Allen,

15 Mich App 387 (1968), which conflicts with this holding is

expressly disavowed. The district court abused its discretion by

relying on the Fifth Amendment to exclude defendants’ false

statements from evidence.

2. The district court also abused its discretion by excluding

defendants’ false statements under MCL 15.393, which precludes

the use of a police officer’s involuntary statement against that

officer in a criminal prosecution. Although the broad language of

MCL 15.393 appears to embrace any criminal proceeding, includ-

ing prosecutions for the collateral offenses of perjury or obstruc-

tion of justice, the statute internally limits the phrase “involun-

tary statement” to include true statements only. Therefore, false

statements and lies fall outside the scope of the statute’s protec-

tion. An officer’s lies and false statements do not qualify as

involuntary statements under MCL 15.393 and may be used as

evidence in a subsequent criminal prosecution. The plain language

of MCL 15.391(a), which defines the phrase “involuntary state-

ment,” establishes that an involuntary statement includes only

truthful and factual information. When an officer lies, he or she

provides no “information.” MCL 15.393 does not preclude the use

of the officer’s lies in a criminal proceeding. The district court

abused its discretion by excluding defendants’ false statements

from evidence and dismissing the obstruction-of-justice charges

against them. The circuit court erred by affirming the district

court’s rulings. The decisions of the district court and the circuit

court in this regard are reversed and the matter is remanded to the

district court for reinstatement of the obstruction-of-justice

charges against all three defendants.

Reversed and remanded.

ILDER

, J., concurring in part and dissenting in part, concurred

with the majority’s determination that the district court abused its

discretion by excluding the use of defendants’ statements under

the Fifth Amendment but dissented from the majority’s determi-

nation that the district court misinterpreted MCL 15.393 and

abused its discretion by dismissing the charges of obstruction of

justice against defendants. The Legislature, by using the phrase “a

2014] P

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117

criminal proceeding” in MCL 15.393 instead of the phrase “the

criminal proceeding,” expressed its intention to require a more

generalized application of the statute than the narrower protec-

tion the Fifth Amendment would afford. Therefore, the statute

bars the use of involuntary statements in subsequent prosecutions

for perjury or obstruction of justice. In addition, the Legislature

did not define “involuntary statement” to include only true

statements. Because the term “misinform” is defined as giving

false or misleading information to, the term “information” in MCL

15.393 must be interpreted to include the giving of “misinforma-

tion.” The Legislature’s failure to make a distinction between

accurate and inaccurate information demonstrates its intent that

MCL 15.393 broadly apply to defendants’ involuntary statements,

regardless of their accuracy. MCL 15.393 operates to bar the use of

defendants’ statements in their prosecution for obstruction of

justice. The judgment of the circuit court should be affirmed.

1. C

ONSTITUTIONAL

AW —

ELF

-I

NCRIMINATION —

ERJURY

The Fifth Amendment does not protect a defendant from a subse-

quent prosecution for perjury predicated on statements that the

defendant made after being granted immunity from prosecution

regarding the underlying crime; the Fifth Amendment privilege

against self-incrimination grants a privilege to remain silent

without risking contempt, but does not endow the person who

testifies with a license to commit perjury; the right against

self-incrimination only protects a witness from incriminating

himself or herself for crimes already committed.

2. C

ONSTITUTIONAL

AW —

ELF

-I

NCRIMINATION —

ERJURY

The protection of the individual under the Fourteenth Amendment

against coerced statements prohibits the use in subsequent pro-

ceedings of statements obtained under threat of removal from

office; a public employee’s compelled incriminating statements

may not be used in a later prosecution for the conduct under

investigation but may be used in prosecutions for the independent

crimes of obstructing the public employer’s investigation or mak-

ing false statements during it.

3. C

RIMINAL

AW —

VIDENCE —

OLICE

FFICERS

’I

NVOLUNTARY

TATEMENTS

MCL 15.393 precludes the use of a police officer’s involuntary

statement against the officer in a criminal prosecution; MCL

15.391(a) defines an “involuntary statement” as information pro-

vided by a law enforcement officer, if compelled under threat of

dismissal from employment or any other employment sanction by

the law enforcement agency that employs the officer; MCL 15.393

118 306 M

ICH

116 [July

internally limits the phrase “involuntary statement” to include

true statements only; lies and false statements do not qualify as

involuntary statements under MCL 15.393.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Kym Worthy, Prosecuting Attorney,

Timothy A. Baughman, Chief of Research, Training,

and Appeals, and David A. McCreedy, Lead Appellate

Attorney, for the people.

Goldpaugh & Associates, PC (by Donald H. Stol-

berg), for Nevin Hughes.

Steven Fishman for Sean Harris.

Pamella Szydlak for William Little.

Before: M

ETER

,P.J., and J

ANSEN

and W

ILDER

,JJ.

ANSEN

, J. In these consolidated appeals, the prosecu-

tion appeals by leave granted the circuit court’s order

denying its motion to reinstate the obstruction-of-justice

charge against defendant Nevin Hughes,

as well as the

circuit court’s ruling affirming the district court’s dis-

missal of the obstruction-of-justice charges against defen-

dants Sean Harris and William Little.

For the reasons

set forth in this opinion, we reverse and remand to the

district court for reinstatement of the obstruction-of-

justice charges against all three defendants.

These appeals arise out of a police-citizen interaction

People v Hughes, unpublished order of the Court of Appeals, entered

June 3, 2013 (Docket No. 316072).

People v Harris, unpublished order of the Court of Appeals, entered

August 15, 2013 (Docket No. 317158); People v Little, unpublished order

of the Court of Appeals, entered August 15, 2013 (Docket No. 317272).

2014] P

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119

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on November 19, 2009, involving Dajuan James

Hodges-Lamar and defendants. Defendant Hughes, a

Detroit police officer, approached Hodges-Lamar at a

Detroit gas station and asked him questions regarding

his license, registration, and the presence of drugs in his

car. Hughes then opened the door of Hodges-Lamar’s

automobile, pulled Hodges-Lamar out by the collar,

slammed Hodges-Lamar against the car, and searched

him. Defendants Harris and Little, also Detroit police

officers, were standing nearby. Hughes pushed Hodges-

Lamar toward Harris and Little. Hughes subsequently

punched Hodges-Lamar in the throat with an open

hand, punched him again, pushed him to the ground,

picked him up by the collar several times, slammed him

onto the car, and finally pushed him back toward Harris

and Little. Hodges-Lamar never alleged that Harris and

Little assaulted him.

Defendants arrested Hodges-Lamar and searched his

car. Hodges-Lamar received tickets for failure to wear a

seatbelt, no proof of registration, and no proof of

insurance. Eventually, the tickets were dismissed.

Hodges-Lamar sought medical attention and another

police officer took his statement at an area hospital.

The Detroit Board of Police Commissioners Office of

the Chief Investigator (OCI) investigated the incident

and interviewed defendants in July and August 2010.

The OCI provided defendants with a standard depart-

mental constitutional-rights form. The fourth para-

graph of the form stated: “If I refuse... to answer

questions . . . I will be subject to departmental charges

which could result in my dismissal from the police

department.” The fifth paragraph stated: “If I do an-

swer...neither my statements nor any information or

evidence which is gained by reason of such statements

can be used against me in any subsequent criminal

120 306 M

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116 [July

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proceeding.” Defendants also received a reservation of

rights form, which provided, in relevant part:

It is my further belief that this Statement and the

Preliminary Complaint Report will not and cannot be

used against me in any subsequent proceedings other

than disciplinary proceedings within the confines of the

Department itself. For any and all other purposes, I

hereby reserve my Constitutional rights to remain silent

under the FIFTH and FOURTEENTH AMMEND-

MENTS [sic] to the UNITED STATES CONSTITU-

TION, and Article I, Section 17 of the MICHIGAN

CONSTITUTION.

Defendants made statements under the threat of dis-

missal from their jobs. Harris and Little denied that

Hughes had any physical contact with Hodges-Lamar,

with the exception of a pat-down search. Hughes admit-

ted that he pulled Hodges-Lamar out of the car, but

maintained that he did not use any force against

Hodges-Lamar.

The investigation was closed. Hodges-Lamar hired

an attorney, who ultimately obtained a video recording

of the assault and battery from the security camera at

the gas station. The video recording was provided to the

Detroit Police Department Internal Affairs Section. The

prosecution subsequently charged Hughes with felony

misconduct in office, MCL 750.505, misdemeanor as-

sault and battery, MCL 750.81, and obstruction of

justice, MCL 750.505. The prosecution charged Harris

and Little each with one count of obstruction of justice,

MCL 750.505. The video recording was played for the

district court by stipulation of the parties. The district

court dismissed the obstruction-of-justice charges

against all three defendants, relying on the Fifth

Amendment of the United States Constitution and § 3

of the act concerning the disclosure of certain state-

2014] P

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121

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ments by law enforcement officers,

MCL 15.393. The

circuit court affirmed the district court’s dismissals and

declined to reinstate the obstruction-of-justice charges.

The prosecution argues that the district court should

have admitted at the preliminary examination defen-

dants’ statements made during the OCI investigation

because neither Garrity v New Jersey, 385 US 493; 87 S

Ct 616; 17 L Ed 2d 562 (1967), nor MCL 15.393

prohibits the use of an officer’s false denials in a

subsequent obstruction-of-justice prosecution. We

agree.

We review for an abuse of discretion the trial court’s

decision whether to admit evidence, but review de novo

the trial court’s decision on any preliminary question of

law. People v Gursky, 486 Mich 596, 606; 786 NW2d 579

(2010). “A trial court abuses its discretion when its

decision falls ‘outside the range of principled out-

comes.’ ” People v Feezel, 486 Mich 184, 192; 783 NW2d

67 (2010), quoting People v Smith, 482 Mich 292, 300;

754 NW2d 284 (2008). “A trial court necessarily abuses

its discretion when it makes an error of law.” People v

Waterstone, 296 Mich App 121, 132; 818 NW2d 432

(2012). “A district court’s ruling that alleged conduct

falls within the scope of a criminal law is a question of

law that is reviewed de novo....”People v Henderson,

282 Mich App 307, 312; 765 NW2d 619 (2009). We

similarly review de novo questions of constitutional law

and statutory interpretation. People v Brown, 294 Mich

App 377, 389; 811 NW2d 531 (2011).

MCL 15.391 et seq.

122 306 M

ICH

116 [July

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The district court abused its discretion by excluding

defendants’ statements under the Fifth Amendment of

the United States Constitution.

The Fifth Amendment provides that no person “shall be

compelled in any criminal case to be a witness against

himself.” This prohibition “not only permits a person to

refuse to testify against himself at a criminal trial in which

he is a defendant, but also ‘privileges him not to answer

official questions put to him in any other proceeding, civil

or criminal, formal or informal, where the answers might

incriminate him in future criminal proceedings.’ ” [People

v Wyngaard, 462 Mich 659, 671-672; 614 NW2d 143 (2000),

quoting Minnesota v Murphy, 465 US 420, 426; 104 S Ct

1136; 79 L Ed 2d 409 (1984), in turn quoting Lefkowitz v

Turley, 414 US 70, 77; 94 S Ct 316; 38 L Ed 2d 274 (1973).]

To invoke the protection of the Fifth Amendment, a

witness must only possess a reasonable belief that the

evidence could be used against him or her in a criminal

prosecution. Maness v Meyers, 419 US 449, 461; 95 S Ct

584; 42 L Ed 2d 574 (1975); People v Bassage, 274 Mich

App 321, 324-325; 733 NW2d 398 (2007). “The state

constitutional right against self-incrimination is inter-

preted no differently than the federal right.” Bassage,

274 Mich App at 324.

In Garrity, 385 US at 494, the New Jersey attorney

general’s office interviewed police officers about “fix-

ing” traffic tickets. Before the interviews, the attorney

general’s office warned the police officers that anything

they said might be used against them in subsequent

criminal proceedings and that they had the right to

refuse to answer. Id. However, they were also warned

that if they refused to answer, they would be subject to

termination from their positions. Id. The attorney

general’s office later used the police officers’ answers to

2014] P

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123

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prosecute them for conspiracy to obstruct the adminis-

tration of the traffic laws. Id. at 495. The United States

Supreme Court held that “the protection of the indi-

vidual under the Fourteenth Amendment against co-

erced statements prohibits use in subsequent criminal

proceedings of statements obtained under threat of

removal from office....”Id. at 500.

Since its decision in Garrity, the United States Su-

preme Court has held that the Fifth Amendment does

not protect a defendant from a subsequent prosecution

for perjury predicated on statements that the defendant

made on the stand after being granted immunity from

prosecution regarding the underlying crime. See United

States v Wong, 431 US 174, 178; 97 S Ct 1823; 52 L Ed

2d 231 (1977) (holding that “the Fifth Amendment

privilege [against self-incrimination] does not condone

perjury” and that “[i]t grants a privilege to remain

silent without risking contempt, but it ‘does not endow

the person who testifies with a license to commit

perjury’ ”) (citation omitted); see also United States v

Apfelbaum, 445 US 115, 117, 131; 100 S Ct 948; 63 L Ed

2d 250 (1980) (holding that “proper invocation of the

Fifth Amendment privilege against compulsory self-

incrimination allows a witness to remain silent, but not

to swear falsely” and that “neither the immunity stat-

ute nor the Fifth Amendment precludes the use of [a

defendant’s] immunized testimony at a subsequent

prosecution for making false statements, so long as that

testimony conforms to otherwise applicable rules of

evidence”).

Similarly, the United States Court of Appeals for the

Sixth Circuit has observed that, as a general rule, “the

Fifth Amendment permits the government to use com-

pelled statements obtained during an investigation if

the use is limited to a prosecution for collateral crimes

124 306 M

ICH

116 [July

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such as perjury or obstruction of justice.” McKinley v

City of Mansfield, 404 F3d 418, 427 (CA 6, 2005). “This

rule applies with equal force when the statements at

issue were made pursuant to a grant of Garrity immu-

nity during the course of a public employer’s investiga-

tion of its own.” Id. In other words, “Garrity precludes

use of public employees’ compelled incriminating state-

ments in a later prosecution for the conduct under

investigation. However, Garrity does not preclude use of

such statements in prosecutions for the independent

crimes of obstructing the public employer’s investiga-

tion or making false statements during it.” Id. (citation

omitted).

This Court’s precedent similarly instructs that we

view a defendant’s false statements as independent

chargeable offenses, for which the allegedly false state-

ments are not admitted to prove any underlying charge,

but rather to prove the independent offense of lying.

See Bassage, 274 Mich App at 325 (noting that “the

right against self-incrimination only protects a witness

from incriminating himself or herself for crimes already

committed”) (emphasis added). See also Lefkowitz, 414

US at 77.

We acknowledge that the case against Hughes differs

from the cases against Harris and Little because the

focus of the internal investigation was the assault and

battery of Hodges-Lamar, which was committed exclu-

sively by Hughes. Hodges-Lamar never accused Harris

or Little of any assaultive behavior; Harris and Little

were only interviewed as witnesses to Hughes’s miscon-

duct. At the same time, however, all three defendants

could have reasonably believed that their statements

during the OCI interviews might lead to criminal pro-

ceedings against them for various nonassaultive of-

fenses, such as misconduct in office (including nonfea-

2014] P

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125

PINION OF THE

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sance). See Maness, 419 US at 461; Bassage, 274 Mich

App at 324-325; see also Waterstone, 296 Mich App at

126. For this reason, the officers’ statements could not

be used in any criminal prosecution against them “for

crimes already committed,” Bassage, 274 Mich App at

325, such as misconduct in office or assault and battery.

But, as noted previously, the Fifth Amendment did

not prohibit the use of defendants’ statements “in

prosecutions for the independent crimes of obstructing

the public employer’s investigation or making false

statements during it.” McKinley, 404 F3d at 427. Nor

did the Fifth Amendment entitle defendants to swear

falsely. Apfelbaum, 445 US at 117; see also Bassage, 274

Mich App at 326. Thus, there was no Fifth Amendment

bar to the admission of defendants’ statements in the

criminal proceedings (including the preliminary exami-

nation) pertaining to the independent obstruction-of-

justice charges against them. See McKinley, 404 F3d at

427.

We recognize that our holding in this regard, as well

as the post-Garrity federal caselaw, conflicts with this

Court’s decision in People v Allen, 15 Mich App 387,

388; 166 NW2d 664 (1968). In Allen, 15 Mich App at

396, this Court held that “the Fifth and Fourteenth

Amendments’ benefits of freedom from coerced waiver

of the right to remain silent... must be respected,”

even in a subsequent perjury prosecution. In Allen, the

defendant police officers, who were called to testify

before a one-man grand jury about bribery, corruption,

vice, and gambling involving the police department,

were informed of their right to remain silent. Id.at

389-390. However, each of the defendants stated that he

believed that if he invoked his right to remain silent, he

would be suspended from the police department. Id. at

391. After being advised of their rights, the defendants

126 306 M

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were asked whether they had accepted bribes, gifts, or

gratuities from bar owners and liquor licensees in the

city of Detroit. Id. at 389. The defendants denied that

they had received any bribes, gifts, or gratuities. See id.

at 389-390. After contrary testimony was received from

the bar owners in question, the defendants were

charged with perjury for having sworn falsely before the

grand jury. Id. The defendants’ grand-jury testimony,

including their allegedly false denials, was admitted

into evidence at their preliminary examinations. Id.

The defendants were bound over for trial on charges of

perjury. Id. at 390.

The Allen Court rejected the prosecution’s argument

that the principle announced in Garrity should not

apply in prosecutions for perjury. Id. at 393-394. The

Court held that the Fifth Amendment barred the ad-

mission of the defendants’ grand-jury testimony in the

subsequent perjury proceedings. Id. The Allen Court

noted that the prosecution could not presume that the

defendants’ statements were false, and thereby escape

the confines of Garrity, because the truth or falsity of a

defendant’s statement was ultimately an issue to be

determined by the trier of fact in a perjury prosecution.

Id. at 393.

Given the intervening developments in federal law,

including Apfelbaum, 445 US at 117, and McKinley, 404

F3d at 427, the reasoning of Allen cannot stand. Even

assuming that the prosecution treats a defendant’s

statements or denials as false from the inception of the

investigation, the presumption of innocence remains

intact and the prosecution is still required to prove the

elements of perjury or obstruction of justice beyond a

reasonable doubt. Moreover, the prosecution’s decision

to charge the officer with perjury or obstruction of

justice does not run afoul of the Fifth Amendment

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guarantee because the allegedly false or perjurious

statements would be introduced for the limited purpose

of proving perjury or obstruction of justice, not other

underlying crimes. See McKinley, 404 F3d at 427.

Finally, we reiterate that untruths and false denials,

such as those provided by defendants in the instant

cases, are not protected by the Fifth Amendment.

Apfelbaum, 445 US at 117; Wong, 431 US at 178.

We are not bound to follow Allen, which was decided

before November 1, 1990. MCR 7.215(J)(1); People v

Ford, 262 Mich App 443, 452; 687 NW2d 119 (2004).

Indeed, in light of the post-Garrity caselaw permitting a

witness’s statements to be used against him or her in a

subsequent criminal prosecution for a collateral offense

such as perjury or obstruction of justice, we expressly

disavow Allen’s reasoning.

The Fifth Amendment did not bar the admission of

defendants’ false statements in the instant prosecu-

tions for obstruction of justice. The district court

abused its discretion by relying on the Fifth Amend-

ment to exclude defendants’ false statements from

evidence.

The district court also abused its discretion by ex-

cluding defendants’ false statements under MCL

15.393, which precludes the use of a police officer’s

“involuntary statement” against that officer in a crimi-

nal prosecution. Specifically, MCL 15.393 provides:

We wish to make clear that the district court did not err insofar as it

followed the reasoning of Allen. Lower courts are bound to follow this

Court’s published decisions unless and until they are overruled, vacated,

or modified. MCR 7.215(C)(2); People v Herrick, 277 Mich App 255, 258;

744 NW2d 370 (2007).

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An involuntary statement made by a law enforcement

officer, and any information derived from that involuntary

statement, shall not be used against the law enforcement

officer in a criminal proceeding.

We recognize that whereas the Fifth Amendment

only protects witnesses from incriminating themselves

with respect to “crimes already committed,” Bassage,

274 Mich App at 325, the broad language of MCL 15.393

appears to embrace any criminal proceeding, including

prosecutions for the collateral offenses of perjury or

obstruction of justice. However, we conclude that the

statute internally limits the phrase “involuntary state-

ment” to include true statements only, and that false

statements and lies therefore fall outside the scope of

the statute’s protection.

The phrase “involuntary statement” is defined as

“information provided by a law enforcement officer, if

compelled under threat of dismissal from employment

or any other employment sanction, by the law enforce-

ment agency that employs the law enforcement officer.”

MCL 15.391(a) (emphasis added). But when an officer is

compelled to make a statement during an internal

investigation, and provides only misinformation and

lies, he or she has not provided any “information” at all

within the commonly understood meaning of that word.

Among other things, “information” is defined as

“knowledge communicated or received concerning a

particular fact or circumstance.” Random House Web-

ster’s College Dictionary (1997). The word “knowledge,”

in turn, is defined as “the body of truths or facts

accumulated in the course of time.” Id. Because an

officer’s lies do not impart any truths or facts, they

necessarily do not constitute “information.” See MCL

15.391(a). In other words, an officer’s lies and false

statements do not qualify as “involuntary state-

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ment[s]” under MCL 15.393, and consequently may be

used as evidence in a subsequent criminal prosecution.

We conclude that the Legislature’s manifest intent

was to create a mechanism for facilitating internal

police investigations and to provide an incentive for

officers who cooperate by providing needed facts. The

Legislature certainly did not intend to immunize police

officers by precluding the use of their lies and false

statements in criminal proceedings. Indeed, such a

strained construction of MCL 15.393 would be wholly

contrary to the Legislature’s purpose in enacting the

statute. In sum, the plain language of MCL 15.391(a)

establishes that an “involuntary statement” includes

only truthful and factual information. Quite simply,

when an officer lies, he or she provides no “informa-

tion.” Accordingly, MCL 15.393 does not preclude the

use of the officer’s lies in a criminal proceeding.

Defendants’ lies during the OCI investigation were

not entitled to the protection of MCL 15.393. The

district court abused its discretion by relying on MCL

15.393 to exclude defendants’ false statements from

evidence in the prosecutions for obstruction of justice.

III

In sum, the district court erred by misconstruing the

Fifth Amendment guarantee as well as MCL 15.393.

This error of law led the district court to abuse its

discretion by excluding defendants’ false statements

from evidence and dismissing the obstruction-of-justice

charges against them on this ground. The circuit court

erred by affirming the district court’s rulings. We

reverse the decisions of the district court and the circuit

court in this regard. We remand to the district court for

reinstatement of the obstruction-of-justice charges

against all three defendants.

130 306 M

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Reversed and remanded to the district court for

reinstatement of the obstruction-of-justice charges

against all three defendants. We do not retain jurisdic-

tion.

ETER

,P.J., concurred with J

ANSEN

,J.

ILDER

,J.(concurring in part and dissenting in

part). I concur with the majority’s determination in

Part II(B) that the district court abused its discretion by

excluding the use of defendants’ statements under the

Fifth Amendment. I respectfully dissent from the ma-

jority’s determination that the district court misinter-

preted MCL 15.393 and abused its discretion by dis-

missing the charges of obstruction of justice against

defendants. I would conclude that defendants’ state-

ments were protected under MCL 15.393.

MCL 15.393 provides: “An involuntary statement

made by a law enforcement officer, and any information

derived from that involuntary statement, shall not be

used against the law enforcement officer in a criminal

proceeding.” The Legislature defined “involuntary

statement” as “information provided by a law enforce-

ment officer, if compelled under threat of dismissal from

employment or any other employment sanction, by the

law enforcement agency that employs the law enforce-

ment officer.” MCL 15.391(a).

The principles of statutory interpretation are well

established. The “goal in interpreting a statute ‘is to

ascertain and give effect to the intent of the Legislature.

The touchstone of legislative intent is the statute’s

language. If the statute’s language is clear and unam-

biguous, we assume that the Legislature intended its

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plain meaning and we enforce the statute as written.’ ”

People v Hardy, 494 Mich 430, 439; 835 NW2d 340

(2013), quoting People v Gardner, 482 Mich 41, 50; 753

NW2d 78 (2008) (citations omitted).

As is true with the Fifth Amendment, which, under

Garrity v New Jersey, 385 US 493; 87 S Ct 616; 17 L Ed

2d 562 (1967), prohibits the state from using “the

threat of discharge to secure incriminatory evidence

against an employee,” id. at 499, the protections of

MCL 15.393 are triggered when law enforcement offic-

ers are faced with the choice “infected by...coercion,”

id. at 497, between their jobs and self-incrimination:

The choice given petitioners was either to forfeit their

jobs or to incriminate themselves. The option to lose their

means of livelihood or to pay the penalty of self-

incrimination is the antithesis of free choice to speak out or

to remain silent. That practice, like interrogation practices

we reviewed in Miranda v. Arizona, 384 U.S. 436, 464-465[

86 S Ct 1602; 16 L Ed 2d 694 (1966)], is “likely to exert

such pressure upon an individual as to disable him from

making a free and rational choice.” We think the state-

ments were infected by the coercion inherent in this

scheme of questioning and cannot be sustained as volun-

tary under our prior decisions. [Id. at 497-498.]

While the Fifth Amendment protects witnesses only

from incriminating themselves with respect to crimes

already committed, Lefkowitz v Turley, 414 US 70, 77;

94 S Ct 316; 38 L Ed 2d 274 (1973), the broad language

of MCL 15.393 is not so limited. The Legislature used

the indefinite article “a,” not “the,” to modify the

phrase “criminal proceeding.” “ ‘The’ and ‘a’ have

different meanings. ‘The’ is defined as ‘definite article.

1. (used, [especially] before a noun, with a specifying or

particularizing effect, as opposed to the indefinite or

132 306 M

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,J.

generalizing force of the indefinite article a or an)....’”

Robinson v City of Lansing, 486 Mich 1, 14; 782 NW2d

171 (2010), quoting Massey v Mandell, 462 Mich 375, 382

n 5; 614 NW2d 70 (2000) (citation omitted). By using the

indefinite article, the Legislature did not limit the appli-

cation of the statute to the criminal proceeding being

investigated or the other crimes already committed.

Rather, by choosing the phrase “a criminal proceeding,”

the Legislature expressed its intention to require a

more generalized application of the statute than the

narrower protection the Fifth Amendment would af-

ford, and therefore the statute bars the use of involun-

tary statements in subsequent prosecutions for perjury

or obstruction of justice. If the Legislature intended

involuntary statements and information derived from

them to be used in collateral proceedings for obstruc-

tion of justice or perjury, the Legislature could and

would have expressly excluded those proceedings from

the statute. People v Underwood, 278 Mich App 334,

338; 750 NW2d 612 (2008) (“[P]rovisions not included

in a statute by the Legislature should not be included by

the courts....”).

Moreover, although the Fifth Amendment does not

allow witnesses to swear falsely, United States v Apfel-

baum, 445 US 115, 117, 131; 100 S Ct 948; 63 L Ed 2d

250 (1980), the Legislature did not define “involuntary

statement” to include only true statements. MCL

15.393. On appeal, the prosecution, referring to the

Legislature’s definition of an “involuntary statement”

as “information provided by a law enforcement of-

ficer...,”MCL15.391(a), argues that defendants’ false

denials during their interviews by the Detroit Board of

Police Commissioners Office of the Chief Investigator

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(OCI) constituted misinformation that did not amount

to “information” within the meaning of the statute. The

majority agrees, relying on the Random House Web-

ster’s College Dictionary (1997), which defines “infor-

mation” as “knowledge communicated or received con-

cerning a particular fact or circumstance.” The majority

concludes that an officer’s false denials do not impart

any truths or facts, so they cannot constitute “informa-

tion.” I disagree.

The word “misinform” is defined as “giv[ing] false or

misleading information to.” Random House Webster’s

College Dictionary (1997) (emphasis added). Therefore,

the term “information” as used in MCL 15.393 must be

interpreted to include the giving of “misinformation.”

Our United States Supreme Court has ruled that simi-

lar language in the federal immunity statute, 18 USC

6002, “makes no distinction between truthful and un-

truthful statements made during the course of the

immunized testimony.” Apfelbaum, 445 US at 122.

Section 6002 provides that “no testimony or other

information compelled under the order (or any infor-

mation directly or indirectly derived from such testi-

mony or other information) may be used against the

witness in any criminal case, except a prosecution for

perjury, giving a false statement, or otherwise failing to

comply with the order.” (Emphasis added.)

In addition to using the dictionary to give meaning to

undefined statutory terms, we also look to the use by

the Legislature of the same or similar terms in other

statutes to divine Legislative intent. Linton v Arenac Co

Rd Comm, 273 Mich App 107, 118; 729 NW2d 883

(2006) (“Although the terms of one statute are not

Section 6002 differs from MCL 15.393 in that it requires a witness

granted immunity to testify and precludes the witness from invoking the

privilege against self-incriminations.

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dispositive in determining the meaning of another,

especially if the statutes were not designed to effectuate

a common result, the terms of one statute may be taken

as a factor in determining the interpretation of another

statute.”). We make every effort to interpret clear and

unambiguous language in accordance with its plain

meaning because “[c]ourts may not read or include

provisions into a statute that the Legislature did not.”

People v Haynes, 281 Mich App 27, 32; 760 NW2d 283

(2008). “The omission of a provision in one statute that

is included in another statute should be construed as

intentional.” Underwood, 278 Mich App at 338.

The Legislature has used the term “information” in a

number of statutes. For example, in MCL 769.34(10),

our Legislature provided that a sentence “within the

appropriate guidelines sentence range” should be af-

firmed on appeal “absent an error in scoring the sen-

tencing guidelines or inaccurate information relied

upon in determining the defendant’s sentence.” (Em-

phasis added.) In MCL 750.492a(1) the Legislature

provided that “a health care provider or other person,

knowing that the information is misleading or inaccu-

rate, shall not intentionally, willfully, or recklessly place

or direct another to place in a patient’s medical record

or chart misleading or inaccurate information regard-

ing the diagnosis, treatment, or cause of a patient’s

condition.” (Emphasis added.) See also MCL

168.467b(6) (providing a right to equitable relief for a

candidate receiving “incorrect or inaccurate written

information”) (emphasis added), MCL 487.2140(2) (pro-

viding for the correction of submitted information when

the “information ...isnolonger accurate”) (emphasis

added), and MCL 791.235(1)(b) (providing that the

parole board shall not consider “[i]nformation that is

determined by the parole board to be inaccurate or

irrelevant”) (emphasis added). The Legislature’s spe-

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cific references to inaccurate or misleading information

in the above-cited provisions demonstrate that the

distinction between accurate and inaccurate informa-

tion was relevant to those legislative schemes, and that

when such a distinction is important to the Legislature

to make, it will do so. The Legislature’s failure to make

a distinction between accurate and inaccurate informa-

tion here demonstrates its intent that MCL 15.393

broadly apply to defendants’ involuntary statements,

regardless of their accuracy. Underwood, 278 Mich App

at 338.

Our United States Supreme Court, in 1967 in Gar-

rity, and this Court, in 1968 in People v Allen, 15 Mich

App 387, 388; 166 NW2d 664 (1968), held that the Fifth

Amendment barred the admission of police officers’

statements in subsequent prosecutions for conspiracy

to obstruct the administration of the traffic laws and

perjury, respectively. These holdings remained binding

law in Michigan until the United States Supreme Court

ruled differently in Apfelbaum (1980), United States v

Wong, 431 US 174; 97 S Ct 1823; 52 L Ed 2d 231 (1977),

and Lefkowitz (1973). In addition, in In re Investigative

Subpoena re Morton, 258 Mich App 507; 671 NW2d 570

(2003), this Court upheld an order requiring the pro-

duction to the prosecutor of three Garrity statements

by police officers, which resulted in concern that Gar-

rity statements would be used in the determination

whether to prosecute law enforcement officers. MCL

15.393 was enacted in the wake of Morton. See Senate

Legislative Analysis, SB 647, February 20, 2007.

De-

Although legislative analyses are not “an official form of legislative

record in Michigan,” and I acknowledge that “legislative analyses should

be accorded very little significance by courts when construing a statute,”

136 306 M

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116 [July

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,J.

spite the narrowing of Fifth Amendment protections

afforded to law enforcement officers as the result of

these cases (and the Legislature is presumed to be

aware of these cases),

our Legislature was nevertheless

free to codify in Michigan law the more robust Garrity

and Allen protections when it enacted MCL 15.393 in

2006.

When it crafted MCL 15.393, the Legislature used

broad language that did not just protect factually true

statements, but “involuntary statement[s],” and did

not only protect statements made during the investiga-

tion of crimes already committed, but more generally,

statements made “in a criminal proceeding.”

MCL

15.393. Therefore, I would conclude that the Legisla-

ture intended MCL 15.393 to protect a law enforcement

In re Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597(2003), I

cite the Senate Legislative Analysis here for the limited purpose of

demonstrating the likely link between this Court’s decision in Morton

and the Legislature’s enactment of MCL 15.393.

See Lewis v LeGrow, 258 Mich App 175, 183-184; 670 NW2d 675

(2003) (“We presume that the Legislature is aware of the common law

that legislation will affect; therefore, if the express language of legislation

conflicts with the common law, the unambiguous language of the statute

must control.”)

The Legislature’s enactment of MCL 15.395 in the disclosures by law

enforcement officers act also demonstrates its intention to codify broader

protections for officers’ involuntary statements by making them confi-

dential communications, except under limited circumstances. Myers v

City of Portage, 304 Mich App 637, 641-642; 848 NW2d 200 (2014). That

statute also distinguishes between criminal actions, in which I conclude

involuntary statements cannot be used against officers, and civil actions,

in which they can be used. A prosecutor or attorney general may obtain

a confidential involuntary statement in a criminal case, but the prosecu-

tor or attorney general “shall not disclose the contents.” MCL 15.395(b).

In contrast, in a civil action, “the court shall preserve by reasonable

means the confidentiality of the involuntary statement” only “[u]ntil the

close of discovery.” MCL 15.395(d).

2014] P

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officer’s false denials, even in a subsequent, collateral

criminal proceeding such as for perjury or obstruction

of justice, and that the district court did not abuse its

discretion by excluding defendants’ statements under

MCL 15.393.

Although the Fifth Amendment did not bar the use of

defendants’ statements in their prosecution for obstruc-

tion of justice, I would conclude that MCL 15.393 does

operate to bar such statements. I recognize it may seem

an untenable result, to permit law enforcement officers

to make false denials with impunity when giving invol-

untary statements under the threat of an employment

sanction. The great majority of law enforcement offic-

ers, who perform their duties with honor and distinc-

tion, would neither need nor desire to take advantage of

this anomaly in the law, which seems inconsistent with

the design of our system of justice to seek out the truth.

See Polk Co v Dodson, 454 US 312, 318; 102 S Ct 445; 70

L Ed 2d 509 (1981) (“The system assumes that adver-

sarial testing will ultimately advance the public interest

in truth and fairness.”). But we are bound to interpret

the plain language set forth by the Legislature. We

cannot rewrite the law and must apply the statutory

text even if we disagree with the result. See Hanson v

Mecosta Co Rd Comm’rs, 465 Mich 492, 504; 638 NW2d

396 (2002). Therefore, I would affirm the circuit court

and urge the Legislature to revisit MCL 15.393 to

address this anomaly. See In re TALH, 302 Mich App

594, 599; 840 NW2d 398 (2013).

138 306 M

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,J.

HODGE v US SECURITY ASSOCIATES, INC

Docket No. 311387. Submitted February 11, 2014, at Detroit. Decided

July 15, 2014, at 9:05 a.m. Leave to appeal sought.

Carnice Hodge brought an action in the Wayne Circuit Court to

appeal the Unemployment Insurance Agency’s determination that

she was disqualified from receiving unemployment benefits under

MCL 421.29(1)(b), a provision of the Michigan Employment Secu-

rity Act (MESA) that disallows benefits for individuals discharged

for work-related misconduct, after respondent U.S. Security Asso-

ciates, Inc., terminated her employment as a security guard at

Detroit Metropolitan Wayne County Airport. Claimant was fired

for accessing publicly available flight departure information on a

computer near her post at the request of a traveler in violation of

respondent’s policy regarding the unauthorized use of client

equipment. Administrative Law Judge Lawrence E. Hollens af-

firmed the denial of benefits, as did the Michigan Compensation

Appellate Commission (MCAC), but the Wayne Circuit Court,

Robert L. Ziolkowski, J., reversed. The Court of Appeals granted

respondent’s application for leave to appeal.

The Court of Appeals held:

1. The circuit court did not err by reversing the MCAC’s decision

as a matter of law. The court did not determine whether the facts as

found by the agency were supported by substantial evidence because

the facts were undisputed, and the court assumed that the facts as

found by the ALJ were true in reaching its conclusion. Even if the

facts had been disputed, the interpretation and application of the

statute to the facts would have been a question of law that was within

the circuit court’s authority to decide under Const 1963, art 6, § 28

and MCL 421.38(1).

2. The circuit court did not err by concluding as a matter of law

that claimant’s behavior was a good-faith error in judgment rather

than misconduct under MCL 421.29(1)(b). There were no facts in the

record demonstrating that claimant acted with a willful and wanton

disregard for respondent’s interests; rather, the facts indicated that

claimant disregarded the rule prohibiting her use of the computer to

further respondent’s interests. Under these circumstances, claim-

2014] H

ODGE V

US S

ECURITY

SSOC

139

ant’s disregard of respondent’s rule did not rise to the level of

misconduct sufficient to disqualify her from receiving unemployment

benefits.

Affirmed.

1. A

DMINISTRATIVE

AW —

NEMPLOYMENT

OMPENSATION —

ICHIGAN

MPLOY-

MENT

ECURITY

CT —

TANDARD OF

EVIEW

When reviewing an agency’s determination that an individual is

disqualified from receiving unemployment benefits under MCL

421.29(1)(b) for work-related misconduct, the court must first

determine whether the agency’s conclusion of law, accepting for

this purpose the agency’s factual findings, was legally valid; if

not, the court need not determine whether the factual findings

were supported by the evidence and may decide the issue as a

matter of law.

2. U

NEMPLOYMENT

OMPENSATION —

ICHIGAN

MPLOYMENT

ECURITY

CT —

ISQUALIFICATION FOR

ENEFITS —

ISCONDUCT —

EFINITION

The type of misconduct that disqualifies an individual from

receiving unemployment benefits under MCL 421.29(1)(b) is

conduct evincing such willful or wanton disregard of an employ-

er’s interest as is found in deliberate violations or disregard of

standards of behavior that the employer has the right to expect

of an employee, or in carelessness or negligence of such degree

or recurrence as to manifest equal culpability, wrongful intent

or evil design, or to show an intentional and substantial

disregard of the employer’s interests or of the employee’s duties

and obligations to the employer; this does not include mere

inefficiency, unsatisfactory conduct, failure in good performance

as the result of inability or incapacity, inadvertencies or ordi-

nary negligence in isolated instances, or good-faith errors in

judgment or discretion.

Michigan Unemployment Insurance Project (by Steve

Gray) for Carnice Hodge.

Howard & Howard Attorneys PLLC (by Brian A.

Kreucher and Alex G. Cavanaugh) for US Security

Associates, Inc.

Before: O’C

ONNELL

,P.J., and W

ILDER

and M

ETER

,JJ.

ILDER

, J. Respondent U.S. Security Associates, Inc.,

140 306 M

ICH

139 [July

appeals by leave granted

a circuit court order reversing

the decision by the Michigan Compensation Appellate

Commission (MCAC) that claimant was disqualified

from unemployment insurance benefits under MCL

421.29(1)(b). On appeal, respondent argues that the

circuit court applied the incorrect standard when re-

viewing the agency’s decision and that claimant should

be disqualified from benefits for violating respondent’s

rules. We affirm.

Claimant worked for respondent as a security guard

from September 21, 2008, to February 9, 2011, when

respondent mailed her a notice of termination of em-

ployment for violating company rules and regulations

on January 27, 2011.

Before the incident leading to her termination, on

November 11, 2008, claimant signed an acknowledge-

ment of respondent’s “Security Officer’s Guide,” which

provided, in relevant part, that the “[u]nauthorized use

of client facilities or equipment, including copiers, fax

machines, computers, the internet, forklifts and ve-

hicles” may result in immediate termination.

While working at the Detroit Metropolitan Wayne

County Airport in Concourse B, claimant was ap-

proached by an airline passenger seeking departure

information. Claimant looked for that information on

the computer near her post. Shortly after this incident,

claimant received a call from the command center, and

was informed that someone had anonymously com-

plained about her use of the computer. Respondent

drafted a disciplinary report, which claimant signed.

Hodge v US Security Assoc, Inc, unpublished order of the Court of

Appeals, entered March 15, 2013 (Docket No. 311387).

2014] H

ODGE V

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141

Then, respondent told claimant she would be reas-

signed. But later, respondent reevaluated the incident

and instead terminated claimant’s employment in the

February 9 letter.

Claimant filed a claim for unemployment benefits,

and a notice of determination denying her claim was

issued on March 10, 2011. The notice provided:

You were terminated from US Security on 1/28/11 for

accessing the client’s computer system which is a violation

of company policy. You were aware of the policy.

It is found that you were fired for a deliberate disregard

of your employer(s) interest. You are disqualified for ben-

efits under [MESA, MCL 421.29(1)(b)].

Claimant filed an appeal of this notice of determination,

and a hearing was conducted on July 13, 2011, by

Administrative Law Judge Lawrence Hollens (ALJ).

Claimant and respondent’s employment specialist, Ara-

mis Brown, appeared at the hearing without counsel.

Brown first testified that claimant was terminated

for accessing the client’s computer for flight informa-

tion, which violated respondent’s rules and regulations.

The ALJ asked claimant the following series of ques-

tions:

ALJ: They say you used a client computer.

Claimant: Yes.

ALJ: Is that true?

Claimant: Yes, it is.

ALJ: Why would you do that?

Claimant: I used the client computer to help a passenger

out. I --

ALJ: Was that your job?

Claimant: To help the passengers, yes.

142 306 M

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139 [July

ALJ: And so you’re saying as part of your job, you would

normally access the computer?

***

Claimant: Yes, I do.

ALJ: That would be normal for you to do?

Claimant: No.

ALJ: So why did you do something abnormal, if you see

my problem?

Claimant: I did it to assist a passenger. That was the

closest thing --

ALJ: Is there anything in the policy that says it’s okay to

violate these rules so long as you’re assisting a passenger?

Claimant: No.

***

ALJ: And you admit it was in flight information.

Claimant: It was -- yes, flight information.

Claimant further testified that she did not believe it

was “a problem” to check on the departures and arriv-

als to help a passenger, and indicated that she had done

so before this incident. The passenger could have found

the same information on public boards, but the nearest

board was down the hall.

The ALJ affirmed the agency’s determination to

deny unemployment benefits. In his reasoning and

conclusions, the ALJ sets forth the following facts not in

dispute:

Both parties agree that there was a policy that indicated

employees of [respondent] could not access or use the

client’s equipment.

The Claimant was aware of that policy, but had disre-

garded it on some occasions in the past.

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The Claimant never received any instruction from man-

agement or any approval of her accessing flight data

information on the client’s computer.

The Claimant acknowledged the use on January 27,

2011....

The ALJ also found that claimant accessed the com-

puter to assist a passenger with flight arrivals and

departures. The ALJ ruled that the employer met its

burden of proof in establishing that claimant was

discharged for reasons “which would constitute behav-

ior beneath the standard the Employer had reason to

expect of its employee.”

Claimant appealed the ALJ’s decision, arguing that

her conduct did not rise to the level of disqualifying

misconduct. The MCAC issued a decision affirming the

ALJ’s decision and ruled that the decision was in

conformity with the facts as developed at the hearing

and the ALJ properly applied the law to the facts.

Claimant then filed an appeal in the circuit court,

arguing that her conduct did not rise to the level of

disqualifying misconduct given that she was not acting

against her employer’s best interests and her behavior

could be considered no more than an error in judgment.

Respondent replied that claimant acknowledged that

she violated a known rule that prohibited security

officers from using the computer, and that the earlier

decisions were supported by competent, material, and

substantial evidence on the whole record. Following a

hearing, the circuit court reversed the MCAC’s decision,

stating:

Misconduct is limited to conduct evincing such willful or

wanton disregard of an employee -- employer’s interest and

is found in deliberate violations or disregards of standards

of behavior which the employer has the right to

144 306 M

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139 [July

expect of his employee. Or the carelessness or negligence in

such a degree or occurrence as to manifest equal culpabil-

ity.

Wrongful intent or evil design or to show an intentional

and substantial disregard to the employer’s interest or of

the employee’s duties and obligations to the employer.

On the other hand, mere insufficiency, unsatisfactory

conduct, failure in good performance as a result of inability

or incapacity, inadvertence or ordinary negligence in iso-

lated incidents or good faith errors in judgment or discre-

tion are also not to be deemed misconduct within the

meaning of the statute.

I mean, that’s what we have here. There’s a woman...

[c]onflicted with...twopolicy situations. You know, am I

going to help somebody, some customer for the benefit of

the company or I’m going to look in this computer and [sic]

I’m told not to do? You sacrifice and she loses her job.

[Counsel for Respondent]: If I may respond to that, I

would be happy to offer a sentence or two.

The Court: No. That’s good enough. I’ve heard enough.

So I’m going to reverse the decision. I’m going to -- I think

this is a -- it fits under the latter of negligence as opposed

to intentional negligence.

[

]

The circuit court then entered an order reversing the

MCAC “[f]or the reasons stated on the record.” Respon-

dent’s application for leave to appeal followed and was

granted by this Court.

The Michigan Employment Security Act (MESA)

governs unemployment benefits. The purpose of the act

is to “provide benefits for periods of unemployment...

We presume the trial court meant intentional disregard rather than

intentional negligence.

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[to] persons unemployed through no fault of their

own[.]” MCL 421.2(1). Under the MESA, “[a]n indi-

vidual is disqualified from receiving unemployment

benefits if he or she... [w]as... discharged for mis-

conduct connected with the individual’s work....”

MCL 421.29(1)(b). The employer bears the burden of

proving misconduct. Korzowski v Pollack Indus, 213

Mich App 223, 229; 539 NW2d 741 (1995).

In Carter v Employment Security Comm, 364 Mich

538, 541; 111 NW2d 817 (1961), the Michigan Supreme

Court adopted the following definition of “misconduct”

(which was cited by the circuit court below):

“[C]onduct evincing such wilful or wanton disregard of an

employer’s interests as is found in deliberate violations or

disregard of standards of behavior which the employer has

the right to expect of his employee, or in carelessness or

negligence of such degree or recurrence as to manifest

equal culpability, wrongful intent or evil design, or to show

an intentional and substantial disregard of the employer’s

interests or of the employee’s duties and obligations to his

employer.” [Id. (citation omitted).]

The Supreme Court’s description of conduct that is not

misconduct was also cited by the circuit court below:

“On the other hand mere inefficiency, unsatisfactory con-

duct, failure in good performance as the result of inability

or incapacity, inadvertencies or ordinary negligence in

isolated instances, or good-faith errors in judgment or

discretion are not to be deemed ‘misconduct’ within the

meaning of the statute.” [Id.]

Const 1963, art 6, § 28 provides, in pertinent part:

All final decisions, findings, rulings and orders of any

administrative officer or agency existing under the consti-

tution or by law, which are judicial or quasi-judicial and

affect private rights or licenses, shall be subject to direct

review by the courts as provided by law. This review shall

146 306 M

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139 [July

include, as a minimum, the determination whether such

final decisions, findings, rulings and orders are authorized

by law; and, in cases in which a hearing is required,

whether the same are supported by competent, material

and substantial evidence on the whole record. [Emphasis

added.]

Similarly, MCL 421.38(1) provides:

The circuit court...mayreview questions of fact and

law on the record made before the administrative law judge

and the Michigan compensation appellate commission in-

volved in a final order or decision of the Michigan compen-

sation appellate commission, and may make further orders

in respect to that order or decision as justice may require,

but the court may reverse an order or decision only if it

finds that the order or decision is contrary to law or is not

supported by competent, material, and substantial evidence

on the whole record. Application for review shall be made

within 30 days after the mailing of a copy of the order or

decision by any method permissible under the rules and

practices of the circuit court of this state. [Emphasis

added.]

As respondent argues on appeal, the circuit court was

required to uphold the decision of the MCAC unless (1)

its decision was contrary to law, or (2) the decision was

not supported by competent, material, and substantial

evidence. When a circuit court reviews whether a deci-

sion was supported by substantial evidence, it may not

invade the province of the agency as fact-finder, resolve

evidentiary disputes, or pass on witness credibility. See

Smith v Employment Security Comm, 410 Mich 231,

260-261; 301 NW2d 285 (1981); VanZandt v State

Employees Retirement Sys, 266 Mich App 579, 588; 701

NW2d 214 (2005). We review a lower court’s application

of the substantial-evidence standard for clear error,

Boyd v Civil Serv Comm, 220 Mich App 226, 234-235;

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559 NW2d 342 (1996), but we review de novo whether a

circuit court applied correct legal principles in review-

ing an administrative decision, Mericka v Dep’t of

Community Health, 283 Mich App 29, 35-36; 770 NW2d

24 (2009); see also Natural Resources Defense Council v

Dep’t of Environmental Quality, 300 Mich App 79, 88;

832 NW2d 288 (2013) (“Courts review de novo ques-

tions of law, including whether an agency’s action

complied with a statute.”).

When it reversed the MCAC’s decision, the circuit

court did not expressly state on the record whether its

decision was based on a question of law or a lack of

substantial evidence. Claimant maintains on appeal

that the circuit court properly decided a question of law,

and respondent maintains that the circuit court im-

properly invaded the province of the agency when

reviewing the facts in evidence.

Claimant argues the circuit court was not required to

make findings of fact in this case because the facts in

the record were undisputed. And because the facts were

undisputed, claimant argues that the circuit court de-

cided a question of law regarding whether her conduct

constituted misconduct. In Laya v Cebar Const Co, 101

Mich App 26; 300 NW2d 439 (1980),

the underlying

facts were undisputed. The plaintiff, a plumber, was laid

off and could not find work locally because of poor

economic conditions. His local union directed him to

Cincinnati, Ohio, 272 miles away, where he took a job.

The great distance between home and work contributed

to problems with the plaintiff’s wife and children, so he

quit after 25 days of work. This Court held, “Because

“While cases decided before November 1, 1990 are not binding

precedent pursuant to MCR 7.215(J)(1), they nevertheless can be consid-

ered persuasive authority.” Aroma Wines & Equip, Inc v Columbian

Distrib Servs, Inc, 303 Mich App 441, 453 n 4; 844 NW2d 727 (2013).

148 306 M

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139 [July

there is no dispute as to the underlying facts, the

questions presented are questions of law.” Id. at 29. The

question of law was whether the plaintiff had left work

“voluntarily” under MESA and was therefore disquali-

fied from unemployment benefits. Id. at 29-30. Ulti-

mately, this Court concluded that the plaintiff was not

faced with a choice between alternatives that ordinary

persons would consider reasonable, he did not leave

work voluntarily, and he was entitled to benefits. Id.at

32-35.

Like the facts in Laya, the relevant facts were undis-

puted in this case. There was no question that claimant

violated respondent’s rules when she accessed the cli-

ent’s computer, but she testified that she had done so to

help a passenger. The ALJ made this finding of fact in

his decision. At the circuit court hearing, respondent

attempted to create a question of fact by arguing that

“being helpful” was not one of claimant’s “job duties,”

but that argument was inconsistent with the record.

Claimant had previously testified that it was her job to

help passengers, and respondent presented no evidence

to the contrary. Because the facts in the record were

undisputed, claimant’s argument is persuasive that

because there were no disputed factual findings for the

circuit court to test with the substantial-evidence stan-

dard, it must have decided a question of law.

But even if the facts were not undisputed, this Court

has stated that the interpretation and application of the

statute to the facts is a question of law. See In re Wayne

Co Treasurer Petition, 265 Mich App 285, 290; 698

NW2d 879 (2005); see also Natural Resources Defense

Council, 300 Mich App at 88. In Wickey v Employment

Security Comm, 369 Mich 487, 490; 120 NW2d 181

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(1963), our Supreme Court noted that it had “only

rarely...made the sometimes difficult effort to distin-

guish between issues of fact, issues of law, and com-

pound issues of fact and law.” However, the Court

stated that when a dispute involves an agency’s “inter-

pretation or application of a statute, our function is not

restricted by the ‘great weight’ test in determining

whether or not the agency’s application of the statute to

the facts found conforms with the law....”

Id. at 492.

The Court held that reviewing courts must first deter-

mine whether the agency’s conclusion of law, “accepting

for this purpose all of the findings of fact” of the agency,

“was a legally valid conclusion.” Id. at 493. If it was a

legally valid conclusion, reviewing courts then deter-

mine whether the findings of fact were supported by the

evidence. Id. at 493-494.

Just as in Laya, the question of law in Wickey was

whether the claimant had voluntarily left his employ-

ment without good cause. Id. at 494. The claimant was

a seaman who went ashore while off duty and returned

to the ship late, after it had departed. Id. at 494-495.

The Court concluded that this action did not “support

even an inference of intentional, deliberate, voluntary

desertion of his ship.” Id. at 495. The claimant’s subse-

quent conduct—traveling where the ship was next

scheduled to dock—likewise demonstrated that the

claimant did not intend to quit his job, but intended to

resume it. Id. at 496. Because the Court concluded that

the facts as found by the agency did not, as a matter of

law, justify the claimant’s disqualification from unem-

ployment benefits, the Court found it unnecessary to

The version of MCL 421.38 in effect at the time Wickey was decided

allowed courts to reverse if the decision was contrary to the great weight

of the evidence, as opposed to the substantial-evidence standard now

prescribed. Wickey, 369 Mich at 490.

150 306 M

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139 [July

determine whether the findings of fact were supported

by the evidence. Id. at 497-498.

The framework explained by our Supreme Court in

Wickey applies here. Under Const 1963, art 6, § 28 and

MCL 421.38(1), a circuit court must review the agency’s

factual findings under the substantial-evidence standard,

but review the facts, as found, to determine whether they

constitute “misconduct” under the statute.

The question before the circuit court, as framed by

claimant at the hearing on her appeal from the agency

decision, was whether the ALJ’s and the MCAC’s deci-

sions were supported by law. Contrary to respondent’s

argument on appeal, we find nothing in the record to

indicate that the circuit court analyzed whether the

agency’s findings of fact were supported by the record

evidence. As our Supreme Court directed in Wickey, the

circuit court assumed the facts found by the ALJ were

true (noting that claimant had a choice between

whether “to help somebody, some customer for the

benefit of the company” or “to look in this computer” as

she’d been “told not to do”) and applied those facts to

the law. The circuit court relied on the definition of

misconduct in Carter to conclude that claimant’s behav-

ior was mere negligence. Determining whether an

agency decision was authorized by law was within the

circuit court’s authority under Const 1963, art 6, § 28

and MCL 421.38(1) and was not error.

III

Given our conclusion that the circuit court analyzed

whether claimant’s behavior constituted misconduct as

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a matter of law, we must next consider whether the

circuit court erred in this determination. Mericka, 283

Mich App at 35-36. The principles of statutory interpre-

tation are well established. The primary goal of judicial

interpretation of statutes is to ascertain and give effect

to the intent of the Legislature. The statutory language

is the best indicator of the Legislature’s intent. Neal v

Wilkes, 470 Mich 661, 665; 685 NW2d 648 (2004).

Importantly, “ ‘[s]tatutory language should be con-

strued reasonably, keeping in mind the purpose of the

act,’ ” and to avoid absurd results. Draprop Corp v City

of Ann Arbor, 247 Mich App 410, 415; 636 NW2d 787

(2001), quoting Rose Hill Ctr, Inc v Holly Twp, 224 Mich

App 28, 32; 568 NW2d 332 (1997); see also People v

Tennyson, 487 Mich 730, 741; 790 NW2d 354 (2010).

Again, our Supreme Court defined “misconduct”

under MCL 421.29(1)(b) as

conduct evincing such wilful or wanton disregard of an

employer’s interests as is found in deliberate violations or

disregard of standards of behavior which the employer has

the right to expect of his employee, or in carelessness or

negligence of such degree or recurrence as to manifest

equal culpability, wrongful intent or evil design, or to show

an intentional and substantial disregard of the employer’s

interests or of the employee’s duties and obligations to his

employer. On the other hand mere inefficiency, unsatisfac-

tory conduct, failure in good performance as the result of

inability or incapacity, inadvertencies or ordinary negli-

gence in isolated instances, or good-faith errors in judg-

ment or discretion are not to be deemed “misconduct”

within the meaning of the statute. [Carter, 364 Mich at 541

(citation and quotation marks omitted).]

“[W]hile misconduct may justify an employee’s dis-

charge for breach of company rules, not every such

breach rises to the level of misconduct sufficient to

disqualify the employee for unemployment benefits.”

152 306 M

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139 [July

Tuck v Ashcraft’s Market, Inc, 152 Mich App 579, 589;

394 NW2d 426 (1986), citing Reed v Employment Secu-

rity Comm, 364 Mich 395; 110 NW2d 907 (1961).

In Carter, 364 Mich at 540, the claimant was in-

structed by his foreman to shovel a pile of lead dust into

the furnace that the claimant operated. The claimant

refused. When the foreman said he would shovel the

dust, the claimant threatened to punch him in the nose.

The court determined that the claimant’s response was

“both a wilful disregard of the employer’s interests and

a deliberate violation of standards of behavior which an

employer has a right to expect of his employee.” Id.at

542. The claimant’s behavior was “fundamentally dis-

ruptive of orderly conduct of work....”Id. The Court

found no evidence in the record to support the claim-

ant’s contention that his foreman’s instruction was

unreasonable or that his refusal was motivated by fear.

Id. at 543-544. Under these circumstances, the Court

held that the claimant’s behavior constituted miscon-

duct under MESA. See also Parks v Employment Secu-

rity Comm, 427 Mich 224; 398 NW2d 275 (1986) (hold-

ing that the claimant’s failure to abide by city residency

requirements and her attempt to sustain the appear-

ance of residency in the city constituted a willful

disregard of the employer’s interest).

In Tuck, 152 Mich App at 582, the claimant worked

in the meat department of a market. The store had a

scrap barrel where unsaleable products were placed,

and the claimant had been taking scrap from that

barrel for several years for bear baiting. On a day when

a manager was not present, the claimant discovered

spoiled fish in the market (not the scrap barrel) and he

loaded the fish directly into his truck. Only managers

were authorized to determine the appropriate disposi-

tion of unsaleable goods, including whether to sell them

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to restaurants or employees at a discount or to dispose

of them in the scrap barrel. Id. at 582-584. There was no

question that the claimant broke the rules and should

have asked for permission to remove the fish. But this

Court determined the claimant had not willfully and

wantonly disregarded his employer’s interests. His “de-

termination that the fish was unsaleable was a good

faith error in judgment and did not evidence an evil

design or show a substantial disregard of the employer’s

interests.” Id. at 590.

In Razmus v Kirkhof Transformer, 137 Mich App

311, 313; 357 NW2d 683 (1984), the claimant was

terminated for two instances of “wasting time” and

one violation of safety rules. This Court held that

none of the violations amounted to misconduct under

MESA. Id. at 316-317. This Court noted that the

“safety violation, if anything, evinces an intent to

further his employer’s interest. [The claimant] re-

moved his safety glasses because they kept falling off

and interfering with his helping a new employee.” Id.

at 316. Moreover, the claimant only left his work

station for personal business after he had finished his

work (welding) and was waiting for the lead to cool.

Id. at 317; see also LaCharite v State of Florida, 890

So 2d 354 (Fla App, 2004) (claimant who regularly

administered saline IVs administered an IV to a

coworker with permission from the office manager,

but not from a doctor as the employer’s rules pro-

vided, demonstrated a good-faith error in judgment,

not egregious, willful, or wanton behavior that would

warrant a denial of benefits).

We are not bound by the decisions of other states, but we may

consider them to be persuasive authority. K & K Constr, Inc v Dep’t of

Environmental Quality, 267 Mich App 523, 559 n 38; 705 NW2d 365

(2005).

154 306 M

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139 [July

Claimant disregarded respondent’s rules when she

used the computer, but the question before the circuit

court was whether her breach rose to the level of

misconduct, as defined by statute, that would be suffi-

cient to disqualify her from benefits. Tuck, 152 Mich

App at 589. We conclude that the circuit court did not

err by determining that claimant’s behavior was a

good-faith error in judgment and not misconduct under

MESA. Mericka, 283 Mich App 29, 35-36. Claimant was

aware of the rule prohibiting her use of the computer,

but she disregarded it to help a passenger, believing that

helping passengers was one of her job responsibilities as

a security guard at the airport.

There are no facts in the record demonstrating a

willful and wanton disregard for respondent’s interests.

Unlike the claimant who threatened to punch his fore-

man in Carter, and the claimant who willfully lied about

her residency in Parks, claimant’s behavior was in-

tended to further respondent’s interests and assist, not

disrupt, the passengers at the airport. In that respect,

claimant’s behavior is more akin to the violation of the

safety rule in Razmus, which was committed to assist a

coworker. Respondent notes that the rule prohibiting

security guards’ use of the computers was in place

because the airport’s computers contained sensitive

information. But the fact that claimant merely accessed

public flight information, not sensitive information,

advances her claim that this was a good-faith error in

judgment and not evil design. Carter, 364 Mich at 541.

We conclude that, as a matter of law, claimant’s

violation of the rules in this case did not constitute

misconduct under MCL 421.29(1)(b). The circuit court

did not err by addressing whether the agency’s decision

violated the law or by reversing the decision that

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claimant committed misconduct and was therefore dis-

qualified from unemployment benefits. Mericka, 283

Mich App 29, 35-36.

Affirmed. Claimant may tax costs pursuant to MCR

7.219.

O’C

ONNELL

,P.J., and M

ETER

, J., concurred with

ILDER

,J.

156 306 M

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GLAUBIUS v GLAUBIUS

Docket No. 318750. Submitted July 9, 2014, at Detroit. Decided July 15,

at 9:10 a.m. Leave to appeal sought.

Jenny N. Glaubius (plaintiff) and John A. Glaubius (defendant) were

divorced in the Macomb Circuit Court in February 2013. One child

had been born during the time of their marriage. The parties had

joint legal custody, and plaintiff had physical custody of the child.

Plaintiff moved in June 2013 under the Revocation of Paternity

Act, MCL 722.1431 et seq., to revoke defendant’s paternity as a

presumed father, specifically seeking a determination that the

child had been born out of wedlock as defined in MCL 722.1441

and asking the court to vacate portions of the divorce judgment

regarding custody, parenting time, and child support. Plaintiff

asserted that Joseph Witt, a man with whom she had been sexually

involved during her marriage to defendant, was actually the child’s

biological father. Plaintiff maintained that at the time of the

divorce, she believed that defendant was the child’s biological

father and that it was only later that a DNA test established Witt’s

paternity. The court, Kathryn A. Viviano, J., denied plaintiff’s

motion, and plaintiff appealed.

The Court of Appeals held:

1. The Revocation of Paternity Act provides the methods for

setting aside acknowledgments of paternity and determinations

and judgments related to paternity, as well as the measures for

overcoming the presumption of legitimacy. The proofs and circum-

stances necessary to revoke paternity differ depending on the

classification of paternity at issue. MCL 722.1433 recognizes four

classifications of fathers: (1) an acknowledged father (a man who

has affirmatively held himself out as the child’s father by execut-

ing an acknowledgment of parentage), (2) an affiliated father (a

man who was determined in a court to be the child’s father), (3) an

alleged father (a man who by his actions could have fathered the

child), and (4) a presumed father (a man who is presumed to be the

child’s father by virtue of his marriage to the child’s mother at the

time of the child’s conception or birth). The Revocation of Pater-

nity Act details the methods applicable to the revocation of each

specific type of paternity, but under MCL 722.1439(1) there is no

2014] G

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express provision for setting aside an order that established a man

as an affiliated father when he participated in the court proceed-

ings determining his paternity. The parties did not contend that

defendant was an acknowledged father, and Witt, not defendant,

was the alleged (that is, biological) father. The dispute concerned

whether defendant was a presumed father, as plaintiff contended,

or an affiliated father, as defendant contended. Plaintiff alleged

that defendant’s fatherhood arose by operation of the presumption

of legitimacy, while defendant asserted that his status as the

child’s father had been determined in the divorce proceedings, that

is, that the divorce judgment was an order of filiation. Because

defendant participated in the divorce proceedings, he maintained

that his paternity as an affiliated father could not be revoked

under MCL 722.1439(1).

2. Given that defendant was married to plaintiff at the time of

the child’s conception and birth, he had the status of presumed

father under MCL 722.1433(4). At issue, then, was whether

defendant continued as a presumed father after the divorce or

whether he obtained the status of an affiliated father by virtue of

the divorce judgment. Under MCL 722.1433(2) and (5), to decide

whether a man qualifies as an affiliated father requires consider-

ation of whether he was determined in a court to be the child’s

father. An affiliated father exists when a dispute or question over

a man’s paternity was settled or resolved in a court of law and the

court concluded, on the basis of reasoning or observation, that the

man is the child’s father. There must have been an actual

determination of paternity, one in which there was a dispute or

question presented regarding the man’s paternity and the court in

fact resolved the matter. Any judicial order establishing a deter-

mination in court that a man was a child’s father could demon-

strate the determination of an affiliated father within the meaning

of MCL 722.1433(2) and (5). If a court made a determination

regarding a man’s paternity in the course of divorce proceedings

and entered an order establishing that determination, the order

would establish the man’s status as an affiliated father. In this

case, however, defendant’s paternity was not an issue of dispute

between the parties during the course of the divorce and was

therefore not a question that the trial court actually resolved.

Plaintiff did not allege, defendant did not assert or deny, and the

trial court did not actually ascertain that defendant was in fact the

child’s father. Rather, plaintiff’s complaint and the divorce judg-

ment adhered to the presumption of legitimacy, treating defendant

as the presumed father of the child and awarding visitation and

custody in light of his capacity as a presumed father. If the parties

to a divorce action proceed in keeping with this presumption of

158 306 M

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157 [July

legitimacy and do not contest the issue of paternity in the course

of the divorce, the resulting divorce judgment of does not signify a

determination in court that the husband is the father of the child

for purposes of the Revocation of Paternity Act. Instead, on the

facts of this case defendant qualified as a presumed father and did

not become an affiliated father by operation of the divorce judg-

ment.

3. Because defendant was a presumed father rather than an

affiliated father, MCL 722.1441(1)(a) applied to plaintiff’s efforts

to revoke his paternity. That statute provides that a court may

determine that the child was born out of wedlock for the purpose

of establishing the child’s paternity if (1) the mother files an action

within three years after the child’s birth, (2) the mother identifies

the alleged father by name in the complaint or motion commenc-

ing the action, (3) the presumed father, the alleged father, and the

mother at some time mutually and openly acknowledged a biologi-

cal relationship between the alleged father and the child, and (4)

either the court determines the child’s paternity or the child’s

paternity will be established if the child is determined to have been

born out of wedlock. An action under the Revocation of Paternity

Act may be brought by a motion in the existing case at any stage

of the proceedings. The trial court here retained continuing

jurisdiction over child custody, child support, and parenting time,

and plaintiff brought her motion in the parties’ existing divorce

case. Accordingly, the divorce judgment did not preclude plaintiff’s

efforts to establish that the child was born out of wedlock as

defined in MCL 722.1441(1)(a).

4. The doctrine of res judicata bars a subsequent action when

(1) the prior action was decided on the merits, (2) the judgment in

the prior decision was a final decision, (3) both actions involved the

same parties or their privies, and (4) the matter in the second case

was or could have been resolved in the first. Before the enactment

of the Revocation of Paternity Act, a support order arising from a

divorce judgment constituted an adjudication of paternity and,

consequently, the doctrine of res judicata precluded a party to the

divorce from later challenging paternity. The act, however, autho-

rized postjudgment challenges to paternity in certain circum-

stances, including those in which paternity was or could have been

litigated. Therefore, plaintiff’s motion, as a continuation of the

divorce proceedings and brought under the Revocation of Pater-

nity Act, was not subject to res judicata.

Reversed and remanded for further proceedings.

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1. P

ATERNITY —

EVOCATION OF

ATERNITY

CT —

RESUMED AND

FFILIATED

ATHERS —

IVORCE

UDGMENT

STABLISHING

FFILIATED

-F

ATHER

TA-

TUS

The Revocation of Paternity Act, MCL 722.1431 et seq., provides the

methods for setting aside acknowledgments of paternity and

determinations and judgments related to paternity; MCL 722.1433

recognizes four classifications of fathers: (1) an acknowledged

father (a man who has affirmatively held himself out as the child’s

father by executing an acknowledgment of parentage), (2) an

affiliated father (a man who was determined in a court to be the

child’s father), (3) an alleged father (a man who by his actions

could have fathered the child), and (4) a presumed father (a man

who is presumed to be the child’s father by virtue of his marriage

to the child’s mother at the time of the child’s conception or birth);

a man who was married to plaintiff at the time of the child’s

conception and birth and therefore had the status of presumed

father under MCL 722.1433(4) may obtain the status of an

affiliated father under MCL 722.1433(2) and (5) after a divorce if

there was a dispute or question presented regarding the man’s

paternity, the court in fact resolved the matter and made an actual

determination regarding the man’s paternity in the course of the

divorce proceedings, and the court entered an order or divorce

judgment establishing that determination.

2. P

ATERNITY —

EVOCATION OF

ATERNITY

CT —

HILDREN

ORN

UT OF

EDLOCK —

OSTJUDGEMENT

ETERMINATION

MCL 722.1441(1)(a), a provision of the Revocation of Paternity Act,

provides that a court may determine that a child was born out of

wedlock for the purpose of establishing the child’s paternity if (1)

the mother files an action within three years after the child’s birth,

(2) the mother identifies the alleged father by name in the

complaint or motion commencing the action, (3) the presumed

father (the man who is presumed to be the child’s father by virtue

of his marriage to the child’s mother at the time of the child’s

conception or birth), the alleged father (the man who by his

actions could have fathered the child), and the mother at some

time mutually and openly acknowledged a biological relationship

between the alleged father and the child, and (4) either the court

determines the child’s paternity or the child’s paternity will be

established if the child is determined to have been born out of

wedlock; an action under the Revocation of Paternity Act may be

brought by a motion in a case at any stage of the proceedings,

including after the entry of a divorce judgment.

160 306 M

ICH

157 [July

Speaker Law Firm, PLLC (by Liisa R. Speaker), for

Jenny N. Glaubius.

Scott Bassett for John A. Glaubius.

Before: B

ECKERING

,P.J., and H

OEKSTRA

and G

LEICHER

JJ.

OEKSTRA

, J. In this action involving the Revocation

of Paternity Act, MCL 722.1431 et seq., plaintiff appeals

as of right the trial court’s order denying her motion to

revoke defendant’s paternity and determine that the

minor child in question was born out of wedlock.

Because defendant qualifies as a “presumed father” on

the facts of this case and the parties’ divorce judgment

does not preclude an action to overcome the presump-

tion of legitimacy, we reverse and remand for further

proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff and defendant married on August 30, 2008.

During their marriage, plaintiff became pregnant and

subsequently gave birth to a daughter on May 18, 2011.

On August 1, 2012, plaintiff filed for divorce, including

in her complaint the allegation that the “parties have

had one (1) child born of this marriage....”Defendant,

who had moved to Nebraska, acknowledged receipt of

the complaint but failed to respond. As a result, at

plaintiff’s request, a default entered against defendant.

On December 28, 2012, the parties entered into a

settlement agreement relating to their divorce, and

thereafter the parties appeared before the trial court for

a hearing and both consented to the entry of a default

divorce judgment. The divorce judgment, which the

trial court entered on February 13, 2013, did not make

express findings of fact but stated generally that the

2014] G

LAUBIUS V

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161

complaint had “heretofore... been taken as con-

fessed....” Referring to the parties as “Plaintiff-

Mother” and “Defendant-Father,” the divorce judgment

provided that legal custody of the minor child was

granted to both parties, while physical custody re-

mained with plaintiff. The divorce judgment also de-

tailed the parties’ arrangements for defendant’s visita-

tion with the minor child. Defendant’s duty to pay child

support was waived in exchange for his payment of all

travel costs related to visitation with the minor child.

On June 10, 2013, plaintiff filed a motion to revoke

defendant’s paternity as a “presumed father” under the

Revocation of Paternity Act. Specifically, plaintiff’s mo-

tion sought a determination that the child had been

“born out of wedlock” as defined in MCL 722.1441, and

she asked the trial court to vacate portions of the

divorce judgment regarding custody, parenting time,

and child support. According to plaintiff’s motion, the

child’s biological father was actually Joseph Witt, a man

with whom plaintiff had been sexually involved during

her marriage to defendant. Despite this extramarital

relationship, plaintiff maintained that, at the time of

her divorce, she believed defendant to be the child’s

biological father. It was only after the divorce, when a

family member remarked on the lack of physical resem-

blance between the child and defendant, that plaintiff

obtained a DNA test, which established with a 99.999%

certainty that Witt was the child’s biological father.

In support of her motion, plaintiff attached an e-mail

from defendant in which defendant arguably acknowl-

edged Witt’s biological relationship to the child and

stated that he believed the child should have the

opportunity “to grow up knowing her real father as

daddy....” In this e-mail, defendant further stated

that he was prepared to waive “any legal rights” to the

child. In addition, plaintiff provided an affidavit in

162 306 M

ICH

157 [July

which she attested that Witt had acknowledged his

paternity and was desirous of establishing a relation-

ship with the child.

Despite his remarks in the e-mail correspondence,

defendant opposed plaintiff’s motion to revoke his pa-

ternity. In opposing plaintiff’s motion, defendant ar-

gued that plaintiff’s characterization of defendant as a

“presumed father” under the Revocation of Paternity

Act was inaccurate because the divorce judgment estab-

lished defendant as an “affiliated father.” MCL

722.1433(2) and (4). As an affiliated father, defendant

asserted that his paternity could not be revoked on the

facts of this case because he had participated in the

proceedings establishing him as an affiliated father. In a

related argument, defendant further asserted, on the

basis of principles of res judicata and equitable estoppel,

that revocation of his paternity was improper because

the default divorce judgment established defendant as

the minor child’s father.

Following a hearing, the trial court entered an order

and opinion denying plaintiff’s motion to revoke defen-

dant’s parentage. Plaintiff now appeals as of right.

II. REVOCATION OF PATERNITY ACT

On appeal, plaintiff challenges the trial court’s dis-

missal of her motion to determine that the minor child

was born out of wedlock and is not, in fact, defendant’s

On appeal, defendant argues, without citation to supporting author-

ity, that this Court lacks jurisdiction over this case because “it is not clear

that the trial court’s order qualifies as an order affecting custody” under

MCR 7.202(6)(a)(iii). Contrary to defendant’s argument, plaintiff specifi-

cally requested that defendant’s award of custody and parenting time as

set forth in the divorce judgment be vacated. The trial court’s order

denying this request thus affects custody of a minor under MCR

7.202(6)(a)(iii), and this Court has jurisdiction over this appeal.

2014] G

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163

child. Specifically, she maintains defendant is a “pre-

sumed father” within the meaning of the Revocation of

Paternity Act whose paternity may thus be challenged

pursuant to MCL 722.1441, regardless of the fact that a

divorce judgment establishing child custody, child sup-

port, and parenting time had previously been entered

by the trial court.

A. STANDARDS OF REVIEW AND RULES OF INTERPRETATION

When reviewing a decision related to the Revocation

of Paternity Act, this Court reviews the trial court’s

factual findings, if any, for clear error. Parks v Parks,

304 Mich App 232, 237; 850 NW2d 595(2014) (citation

omitted). “ ‘The trial court has committed clear error

when this Court is definitely and firmly convinced that

it made a mistake.’ ” Id. (citation omitted). In contrast,

we review de novo the interpretation and application of

statutory provisions. Book-Gilbert v Greenleaf, 302

Mich App 538, 541; 840 NW2d 743 (2013). To the extent

necessary, interpretation of a divorce judgment is also

reviewed de novo. Neville v Neville, 295 Mich App 460,

466; 812 NW2d 816 (2012).

This case requires interpretation of the Revocation of

Paternity Act. When interpreting a statute, we must

give effect to the Legislature’s intent, which we deter-

mine by examining first the language of the statute

itself. Tellin v Forsyth Twp, 291 Mich App 692, 700-701;

806 NW2d 359 (2011). In doing so, we give effect to

every word, phrase, and clause, avoiding a construction

that would render part of the statute surplusage or

nugatory. Book-Gilbert, 302 Mich App at 541. Unde-

fined words are afforded their plain and ordinary mean-

ing, and a dictionary may be consulted to ascertain the

common meaning of a term. Sands Appliance Servs, Inc

v Wilson, 463 Mich 231, 240; 615 NW2d 241 (2000).

164 306 M

ICH

157 [July

“When the language of a statute is unambiguous, the

Legislature’s intent is clear and judicial construction is

neither necessary nor permitted.” Lash v Traverse City,

479 Mich 180, 187; 735 NW2d 628 (2007).

B. CLASSIFICATIONS OF FATHERS

In 2012 PA 159, the Legislature enacted the Revoca-

tion of Paternity Act, which provides the methods for

setting aside acknowledgments of paternity, and deter-

minations and judgments related to paternity, as well as

the measures for overcoming the presumption of legiti-

macy. See In re Daniels Estate, 301 Mich App 450,

458-459; 837 NW2d 1 (2013). Under the applicable

provisions, the proofs and circumstances necessary to

revoke paternity differ depending on the classification

of paternity at issue, and, in some respects, depending

on the individual seeking the revocation of paternity.

Specifically, with regard to the type of paternity at

issue, under MCL 722.1433, four classifications of fa-

thers are recognized:

(1) “Acknowledged father” means a man who has affir-

matively held himself out to be the child’s father by

executing an acknowledgment of parentage under the

acknowledgment of parentage act, 1996 PA 305, MCL

722.1001 to 722.1013.

(2) “Affiliated father” means a man who has been

determined in a court to be the child’s father.

(3) “Alleged father” means a man who by his actions

could have fathered the child.

(4) “Presumed father” means a man who is presumed to

be the child’s father by virtue of his marriage to the child’s

mother at the time of the child’s conception or birth.

After identifying the classifications of fathers, the Re-

vocation of Paternity Act details the methods applicable

to the revocation of each specific type of paternity. For

2014] G

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165

example, MCL 722.1437 provides the methods for set-

ting aside an acknowledgement of parentage. MCL

722.1441 governs an action to determine that a child

has been “born out of wedlock” and is not in fact a

presumed father’s child. See Grimes v Van Hook-

Williams, 302 Mich App 521, 527; 839 NW2d 237

(2013). Lastly, MCL 722.1439 details the process for

setting aside an order of filiation, i.e., “a judicial order

establishing an affiliated father,” MCL 722.1433(5), if

the affiliated father did not participate in the proceed-

ings establishing his paternity. Notably, however, no

express provision is made for setting aside an order

establishing a man as an affiliated father when the man

participated in the court proceedings determining his

paternity. See MCL 722.1439(1).

C. ANALYSIS

In the present case, as an initial matter, we must

decide what procedures apply to plaintiff’s efforts to

revoke defendant’s paternity. In other words, we must

first decide which statutory definition of “father” ap-

plies to defendant so that we may ascertain under

which statutory provision, if any, plaintiff may seek

revocation of defendant’s paternity. The parties do not

contend that defendant qualifies as an “acknowledged

father,” and there is no evidence that an acknowledg-

ment of parentage has been signed in this case. See

MCL 722.1433(1). Further, it appears that Witt, not

defendant, is the “alleged” or biological father of the

child. See MCL 722.1433(3). Thus, the specific defini-

tional dispute at issue relates to whether defendant is a

“presumed father,” as contended by plaintiff, or an

“affiliated father,” as maintained by defendant. In par-

ticular, plaintiff alleges that defendant’s fatherhood

arose by operation of the presumption of legitimacy,

166 306 M

ICH

157 [July

while defendant asserts that his status as the child’s

father was determined in the divorce proceedings,

meaning that, in defendant’s view, the divorce judg-

ment is an order of filiation. Because defendant partici-

pated in the divorce proceedings, he maintains that his

paternity as an affiliated father may not be revoked

under MCL 722.1439(1).

As noted, “presumed father” refers to a man who is

“presumed to be the child’s father by virtue of his

marriage to the child’s mother at the time of the child’s

conception or birth.” MCL 722.1433(4). Indeed, Michi-

gan has long recognized that a child conceived or born

during an intact marriage is presumed to be a child of

the marriage. See In re KH, 469 Mich 621, 634-635; 677

NW2d 800 (2004); People v Case, 171 Mich 282, 284-

285; 137 NW 55 (1912). Given that defendant was

married to plaintiff at the time of the child’s conception

and birth, he plainly obtained the status of presumed

father. See MCL 722.1433(4). The foremost issue before

this Court thus becomes whether defendant continued

as a presumed father after the parties’ divorce or

whether by virtue of the divorce judgment he obtained

the status of an affiliated father.

Relevant to this determination, as noted, the

phrase “affiliated father” refers to “a man who has

been determined in a court to be the child’s father.”

MCL 722.1433(2). As a related matter, an “order of

filiation” in turn refers to “a judicial order establish-

ing an affiliated father.” MCL 722.1433(5). Thus, an

order of filiation is a judicial order establishing that a

man has been determined in a court to be a child’s

father. Ultimately, to decide whether a man qualifies

as an affiliated father requires consideration of

whether he has been determined in a court to be the

child’s father.

2014] G

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167

According to a basic dictionary definition, to “deter-

mine” is “1. to settle or resolve (a dispute, question,

etc.) by an authoritative or conclusive decision [or] 2. to

conclude or ascertain, as after reasoning or observa-

tion.” Random House Webster’s College Dictionary

(1992). Applying this basic definition, it follows that an

affiliated father exists when, in a court of law, a dispute

or question about a man’s paternity has been settled or

resolved and it was concluded by the court, on the basis

of reasoning or observation, that the man is the child’s

father. Given this understanding, it seems plain that

the Legislature intended to recognize the existence of

an affiliated father when there was an actual determi-

nation of paternity; that is, when there was a dispute or

question presented regarding the man’s paternity and

the matter was in fact resolved by a court. A judicial

order establishing this determination would constitute

an order of filiation for purposes of the Revocation of

Paternity Act.

As plaintiff notes on appeal, determinations regard-

ing a man’s paternity might occur, and often do occur, in

the context of an action under the Paternity Act, MCL

722.711 et seq. Indeed, the Paternity Act expressly

provides for the entry of an order of filiation declaring

paternity. See MCL 722.717. On appeal, plaintiff argues

that it is only an order of filiation entered pursuant to

the Paternity Act that qualifies as an order of filiation

for purposes of the Revocation of Paternity Act.

Contrary to plaintiff’s arguments in this respect, we

do not believe that an order of filiation may only arise

from the procedures prescribed in the Paternity Act. As

defined in the Revocation of Paternity Act, an “order of

filiation” is simply “a judicial order establishing an

affiliated father”; this definition makes no reference to

an order entered pursuant to the Paternity Act. See

168 306 M

ICH

157 [July

MCL 722.1433(5). This general reference to a “judicial

order” in MCL 722.1433(5), without reference to the

Paternity Act, stands in marked contrast to the Revo-

cation of Paternity Act’s definition of an “acknowledged

father” as one who executed an acknowledgment of

parentage under the Acknowledgment of Parentage

Act, MCL 722.1001 et seq. See MCL 722.1433(1). Had

the Legislature similarly intended to restrict affiliated

fathers to those identified through paternity actions,

the Legislature would have so specified. See Book-

Gilbert, 302 Mich App at 542 (“The courts may not read

into the statute a requirement that the Legislature has

seen fit to omit.”).

Absent any indication of such

specificity, any judicial order establishing a determina-

tion in court that a man is a child’s father could

demonstrate the determination of an affiliated father

within the meaning of MCL 722.1433(2). See also MCL

722.1433(5).

To be sure, paternity claims and determinations of

paternity frequently arise during divorce or custody

disputes, unrelated to actions under the Paternity Act.

See KH, 469 Mich at 635; Girard v Wagenmaker, 437

Mich 231, 246; 470 NW2d 372 (1991). If, in the course of

a divorce proceeding, the court makes a determination

regarding a man’s paternity and correspondingly enters

an order establishing this determination, we see noth-

ing in the plain language of MCL 722.1433(2) or (5) to

suggest that such a determination in the context of

divorce or custody proceedings would not establish a

man’s status as an affiliated father.

Indeed, elsewhere in its provisions, the Revocation of Paternity Act

does in fact specifically refer to the Paternity Act and its procedures. See,

e.g., MCL 722.1443(2)(d). This express reference to the Paternity Act in

one provision of the Revocation of Paternity Act makes plain that its

omission from the definitions of “order of filiation” and “affiliated

father” was deliberate. See Book-Gilbert, 302 Mich App at 541-542.

2014] G

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169

Of course, not all divorce proceedings squarely ad-

dress the question of a child’s paternity. See, e.g.,

Barnes v Jeudevine, 475 Mich 696, 705-706; 718 NW2d

311 (2006). Whether a particular divorce proceeding

resolved the question of paternity will depend on the

facts of the particular case and the determinations

expressed in the divorce judgment. Specifically, whether

divorce proceedings and a resulting divorce judgment

establish the man as an affiliated father within the

meaning of MCL 722.1433(2) necessarily depends on

whether there was a determination in court that the

man was the child’s father. That is, applying the plain

language of the statute as discussed, for a man to have

been “determined” in a court to be a child’s father,

there must have been a dispute or question about the

issue of paternity and an actual resolution of the matter

by the trial court, culminating in a judicial order

establishing the man as the child’s father.

On the present facts, we are persuaded that this

particular divorce judgment was not a determination of

defendant’s fatherhood and thus not an order establish-

ing him as an affiliated father. Specifically, in this case,

the question of defendant’s paternity appears never to

have been an issue of dispute between the parties

during the course of their divorce, and it was therefore

not a question that the trial court actually resolved.

Plaintiff alleged in her complaint that there had been

one child “born of this marriage,” a fact that the divorce

judgment took to be “confessed.” But nowhere did

plaintiff allege, defendant assert or deny, or the trial

court actually ascertain that defendant was in fact the

minor child’s father. Rather, fairly considered, plain-

tiff’s complaint and the ultimate divorce judgment

adhered to the presumption of legitimacy, treating

defendant as the presumed father of the minor child

and awarding visitation and custody in light of defen-

170 306 M

ICH

157 [July

dant’s capacity as a presumed father. See generally KH,

469 Mich at 635 (recognizing that the presumption of

legitimacy remains intact and becomes conclusive if not

rebutted during a divorce or custody dispute).

When the parties to a divorce action have proceeded in

keeping with this presumption of legitimacy and do not

contest the issue of paternity in the course of the divorce,

in our judgment, the resulting divorce judgment does not

signify a determination in court that the husband is the

father of the child for purposes of the Revocation of

Paternity Act. Rather, the divorce judgment merely recog-

nizes the continued adherence to the presumption of

legitimacy without answering the distinct question of

whether the husband is the child’s father. Cf. Barnes, 475

Mich at 705. Stated differently, in such cases paternity was

established by operation of the presumption of legitimacy

during the parties’ marriage, and absent some challenge

to paternity during the course of the divorce, the matter of

paternity was simply not at issue in the divorce and not a

question “determined” by the trial court’s decision. Cf.

Sinicropi v Mazurek, 273 Mich App 149, 174; 729 NW2d

256 (2006) (“Paternity was not an issue when [the ac-

knowledged father] filed the motion for custody in 2001

because the acknowledgment of parentage had already

established paternity.”). Accordingly, on the facts of the

present case, defendant qualifies as a presumed father and

did not become an affiliated father by operation of the

divorce judgment.

Given our conclusion that defendant qualifies as a

presumed father rather than an affiliated father, it

follows that MCL 722.1441(1)(a) applies to plaintiff’s

efforts to revoke defendant’s paternity.

Specifically,

MCL 722.1441(1)(a) provides:

A mother may also seek a determination that the child was born out

of wedlock under MCL 722.1441(1)(b) when a presumed father has failed

2014] G

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171

(1) If a child has a presumed father, a court may

determine that the child is born out of wedlock for the

purpose of establishing the child’s paternity if an action is

filed by the child’s mother and...

(a) All of the following apply:

(i) The mother identifies the alleged father by name in

the complaint or motion commencing the action.

(ii) The presumed father, the alleged father, and the

child’s mother at some time mutually and openly acknowl-

edged a biological relationship between the alleged father

and the child.

(iii) The action is filed within 3 years after the child’s

birth. The requirement that an action be filed within 3

years after the child’s birth does not apply to an action filed

on or before 1 year after the effective date of this act.

(iv) Either the court determines the child’s paternity or

the child’s paternity will be established under the law of

this state or another jurisdiction if the child is determined

to be born out of wedlock.

Considering this provision, nothing in the plain lan-

guage of the statute required plaintiff to challenge the

presumption of legitimacy in the divorce proceedings or

prevents plaintiff from now seeking to challenge defen-

dant’s paternity after entry of the divorce judgment.

Instead, the only time constraint decreed in this provi-

sion requires the filing of an action within 3 years after

the child’s birth, and this constraint does not apply to

actions filed on or before 1 year after the effective date

of the act. There is no suggestion in the statute that its

provisions cannot apply after a divorce.

On the contrary, following the divorce proceedings,

the trial court retained continuing jurisdiction over

child custody, child support, and parenting time, and

to support a child or lived apart from the child. The parties agree,

however, that this provision is inapplicable in this case.

172 306 M

ICH

157 [July

according to MCL 722.1443(1), when an action for the

support, custody, or parenting time of the child exists,

an action under the Revocation of Paternity Act may be

brought at any stage of the proceedings by a motion in

the existing case. And more specifically, an action to

determine that a child was born out of wedlock may be

brought “by a motion filed in an existing action....”

MCL 722.1441(5). By filing her motion in her existing

divorce case, plaintiff has brought such a motion in the

present case. Thus, in sum, in this case the divorce

judgment does not preclude plaintiff’s efforts to estab-

lish that the minor child was born out of wedlock, and

on remand plaintiff may seek a determination under

MCL 722.1441(1)(a) that the child was born out of

wedlock.

III. RES JUDICATA

Before the trial court, and again on appeal, defendant

also argues that the doctrine of res judicata prohibits

plaintiff from attacking a paternity determination that

was made, or could have been made, in the course of

their divorce proceedings. The applicability of the doc-

trine of res judicata presents a question of law that we

review de novo. Stoudemire v Stoudemire, 248 Mich

App 325, 332; 639 NW2d 274 (2001).

Res judicata prevents “multiple suits litigating the

same cause of action.” Adair v Michigan, 470 Mich 105,

121; 680 NW2d 386 (2004). Specifically, the doctrine

bars a subsequent action when “(1) the prior action was

On remand, the trial court may determine that the minor child was

born out of wedlock if plaintiff has satisfied MCL 722.1441(1)(a). How-

ever, even if the requirements of MCL 722.1441(1)(a) are met, the trial

court may, of course, refuse to make that a determination “if the court

finds evidence that the order would not be in the best interests of the

child.” MCL 722.1443(4).

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173

decided on the merits, (2) the decree in the prior

decision was a final decision, (3) both actions involved

the same parties or their privies, and (4) the matter in

the second case was or could have been resolved in the

first.” Stoudemire, 248 Mich App at 334. Res judicata

has been broadly applied, barring “not only claims

already litigated, but also every claim arising from the

same transaction that the parties, exercising reasonable

diligence, could have raised but did not.” Adair, 470

Mich at 121. Res judicata does not, however, apply to a

continuation of a single legal action. Harvey v Harvey,

237 Mich App 432, 437; 603 NW2d 302 (1999). Further,

res judicata is a “judicially created” doctrine and “must

not be applied when its application would subvert the

intent of the Legislature.” Bennett v Mackinac Bridge

Auth, 289 Mich App 616, 630; 808 NW2d 471 (2010).

Before the enactment of the Revocation of Paternity

Act, it had been repeatedly recognized that a support

order arising from a divorce judgment constituted an

adjudication of paternity and, consequently, the doc-

trine of res judicata precluded a party to the divorce

from later challenging paternity. See Hackley v Hackley,

426 Mich 582, 585; 395 NW2d 906 (1986) (opinion by

OYLE

, J.); Hawkins v Murphy, 222 Mich App 664, 671;

565 NW2d 674 (1997); Rucinski v Rucinski, 172 Mich

App 20, 22; 431 NW2d 241 (1988); Baum v Baum,20

Mich App 68, 74; 173 NW2d 744 (1969). Defendant now

argues on appeal that these cases should continue to

control and res judicata should accordingly prevent

plaintiff from relitigating the question of paternity.

In a related argument, defendant maintains that this line of cases

supports his claim that he is an affiliated father because they stand for the

proposition that a child support order arising from a divorce is an adjudica-

tion of paternity. However, these cases involved the application of res

judicata, not a discussion of who qualifies as an affiliated father within the

meaning of the Revocation of Paternity Act. Again, MCL 722.1433(2) defines

174 306 M

ICH

157 [July

However, these cases were decided before the enact-

ment of the Revocation of Paternity Act, meaning they

were decided on judicial principles of res judicata with-

out consideration of whether the Revocation of Pater-

nity Act legislatively authorized postdivorce challenges

to paternity. Considering the Revocation of Paternity

Act, we conclude that, in the particular circumstances

described in the statute, the Legislature intended to

authorize postjudgment challenges to paternity, includ-

ing for cases in which paternity was or could have been

litigated. Further, we are persuaded that this legislative

intent would be improperly thwarted by the application

of res judicata to bar actions otherwise authorized by

the Revocation of Paternity Act.

To begin with, in broad terms, the title of the

Revocation of Paternity Act states that it is “AN ACT to

provide procedures to determine the paternity of chil-

dren in certain circumstances; [and] to allow acknowl-

edgments, determinations, and judgments relating to

paternity to be set aside in certain circumstances....”

2012 PA 159, title. As the act title makes clear, central

to the purpose of the Revocation of Paternity Act is the

creation of the ability to revisit and set aside prior

an affiliated father as one who “has been determined” to be the child’s

father. As we have discussed, this language clearly requires a determination

regarding a man’s paternity in a case in which the question of his paternity

has truly been at issue; that is, there is no indication that a man becomes an

affiliated father simply because the presumption of legitimacy went unchal-

lenged during a divorce or a determination of paternity could have been

made in the course of previous proceedings. In other words, in our view, the

Legislature plainly intended an actual determination of paternity. It would

thus subvert the Legislature’s intent if we held that paternity “has been

determined” in every case in which the issue of paternity could have been

determined.

While an act’s title may not be considered authority for construing an

act, it is useful for the interpretation of the statute’s purpose and scope.

King v Ford Motor Credit Co, 257 Mich App 303, 311-312; 668 NW2d 357

(2003).

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175

determinations of paternity in specific circumstances.

To effectuate this purpose, as we have discussed, the

Revocation of Paternity Act allows for the revocation of

acknowledgements of parentage, and the setting aside

of judicial orders related to paternity. See MCL

722.1443(2). Through the enactment of methods for

setting aside judicial determinations of paternity and

other established classifications of paternity, the Legis-

lature clearly evidenced an intent to allow relitigation

or reconsideration of paternity in certain circum-

stances, provided that the statutory requirements are

met. While we do not suggest that parties may repeti-

tively litigate the question of paternity without end, it

would nevertheless clearly subvert the Legislature’s

intent if we employed res judicata as a categorical bar to

all litigation of paternity when paternity had been

previously determined by a court, or could have been

previously decided.

More specifically, the argument that a child custody

determination or a child support order incident to a

divorce should always bar later attempts to litigate

paternity is particularly unavailing given the plain

language of MCL 722.1443(1), which provides that an

action under the Revocation of Paternity Act may be

brought by motion “at any stage of the proceedings” in

an action for support, custody, or parenting time. (Em-

phasis added.) See also MCL 722.1441(5) (“An action [to

determine that a child was born out of wedlock] may be

brought...byamotion in an existing action....”). By

its plain terms, this provision authorizes motions at any

stage, thereby including proceedings after the entry of a

divorce judgment. That is, even after the entry of a

divorce judgment, a court has continuing jurisdiction

over child custody and support determinations, Harvey

v Harvey, 470 Mich 186, 192; 680 NW2d 835 (2004),

including the authority to revise, alter, or amend the

176 306 M

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157 [July

original divorce judgment, Kelley v Hanks, 140 Mich

App 816, 821; 366 NW2d 50 (1985); MCL 552.17. The

duly authorized filing of a motion under the Revocation

of Paternity Act in relation to those proceedings may

thus be construed as a continuation of the divorce

action to which res judicata does not apply. See Harvey,

237 Mich App at 437 (“Because the present controversy

is a continuation of the parties’ original divorce action,

and not a separate lawsuit, the doctrine of res judicata

is inapplicable here.”). Accordingly, plaintiff’s motion in

the present case, as a continuation of divorce proceed-

ings, would not be subject to res judicata.

Reversed and remanded for further proceedings. We

do not retain jurisdiction.

ECKERING

,P.J., and G

LEICHER

, J., concurred with

OEKSTRA

,J.

2014] G

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TRAVELERS PROPERTY CASUALTY COMPANY

OF AMERICA v PEAKER SERVICES, INC

Docket No. 315070. Submitted June 11, 2014, at Lansing. Decided July 22,

2014, at 9:00 a.m. Leave to appeal sought.

Travelers Property Casualty Company of America brought an action

in the Livingston Circuit Court against Peaker Services, Inc.,

seeking a declaratory judgment regarding its contractual obliga-

tions to defend and indemnify Peaker Services under a commercial

general liability (CGL) insurance policy. Peaker Services filed a

counterclaim, seeking a declaratory judgment that Travelers was

obligated to defend and indemnify it. The University of Michigan

hired Peaker Services to install an electronic over-speed system at

its central power plant in Ann Arbor. Included in the purchase-

order agreement for the system was a clause stating that Peaker

Services would be responsible for the costs to return university

property to “as was” condition in the event that the power plant

was damaged by Peaker Services personnel. In 2011, the univer-

sity and its insurer commenced a breach-of-contract action against

Peaker Services, alleging that the over-speed system was improp-

erly calibrated, resulting in significant damage to the generator

system. Peaker Services filed a claim with Travelers, asking

Travelers to defend and indemnify it in the university’s lawsuit.

Travelers participated in the defense, but reserved the right to

dispute coverage. Travelers commenced this action in 2012 to

determine its obligation to defend and indemnify Peaker Services.

Travelers moved for summary disposition, asserting that it did not

have a duty to defend and indemnify Peaker Services in the

university’s lawsuit because Peaker Services’s claim fell under the

CGL policy’s “contractual liability” exclusion. That exclusion

provided that the policy did not provide coverage for bodily injury

or property damage for which Peaker Services was obligated to pay

damages by reason of an assumption of liability in a contract or

agreement. The court, David J. Reader, J., granted summary

disposition in favor of Peaker Services under MCR 2.116(I)(2), and

subsequently entered an order granting judgment in favor of

Peaker Services, holding that Peaker Services was entitled to

coverage under the CGL policy. Travelers appealed.

178 306 M

ICH

178 [July

The Court of Appeals held:

The contractual-liability exclusion precludes coverage for dam-

ages incurred by reason of the assumption of liability in a contract

or agreement, but provides an exception to the exclusion when (1)

the insured would have incurred liability irrespective of the

contract or agreement, or (2) the insured assumed liability in an

insured contract. The phrase “assumption of liability” plainly

means the act of taking on the legal obligations or responsibilities

of another, a conclusion that is supported by caselaw from other

jurisdictions and relevant treatises. Assumed liability differs from

liability arising from an insured’s breach of his or her own contract

in that the former connotes the taking on of additional liabilities in

excess of those imposed on the insured under general law. There-

fore, the contractual-liability exclusion does not bar coverage for

all contract liability, but rather is limited to a special type of

contract—one in which the insured has assumed the liability of

another, i.e., a hold harmless or indemnification agreement. By

agreeing to return the university’s property to “as was” condition,

Peaker Services did not enlarge its duty to exercise ordinary care

in fulfilling its contract. Rather, it agreed to do no more than was

imposed on it under general law. Therefore, the contractual-

liability exclusion in the CGL policy did not preclude coverage, and

the trial court reached the correct result.

Affirmed.

NSURANCE —

OMMERCIAL

ENERAL

IABILITY

OLICIES —

ONTRACTUAL

IABILITY

XCLUSIONS —

SSUMPTION OF

IABILITY

EFINED

The standard contractual-liability exclusion in a commercial general

liability insurance policy precludes coverage for damages incurred

by reason of the assumption of liability in a contract or agreement;

the phrase “assumption of liability” means the act of taking on the

legal obligations or responsibilities of another; the standard

contractual-liability exclusion does not bar coverage for all con-

tract liability, but rather is limited to a special type of contract—

one in which the insured has assumed the liability of another, i.e.,

a hold harmless or indemnification agreement.

Plunkett Cooney (by Jeffrey C. Gerish, Charles W.

Browning, and Shannon L. H. Phillips) for Travelers

Property Casualty Company of America.

Clark Hill PLC (by Jay M. Berger and Matthew

Heron) for Peaker Services, Inc.

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Before: B

ORRELLO

,P.J., and S

ERVITTO

and B

ECKERING

JJ.

ORRELLO

,P.J. This appeal involves an insurance cov-

erage dispute between plaintiff/counterdefendant, Travel-

ers Property Casualty Company of America (plaintiff),

and defendant/counterplaintiff, Peaker Services, Inc. (de-

fendant). The trial court denied plaintiff’s motion for

summary disposition under MCR 2.116(C)(10) and

granted summary disposition in favor of defendant under

MCR 2.116(I)(2). The trial court held that plaintiff had a

duty to defend and indemnify defendant in a separate

breach-of-contract action pursuant to the commercial gen-

eral liability (CGL) insurance policy that it issued to

defendant. Plaintiff appeals as of right. For the reasons set

forth in this opinion, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Defendant is a corporation involved in the business of

servicing commercial power-generation systems. Effective

June 1, 2007, plaintiff issued a CGL policy to defendant

wherein plaintiff agreed to provide liability coverage for

“those sums that the insured becomes legally obligated to

pay as damages because of ‘bodily injury’ or ‘property

damage’ to which this insurance applies.”

In 2006, the University of Michigan contacted defen-

dant seeking a quote for services at its central power plant

in Ann Arbor. The power plant utilizes steam turbines

that generate electricity by directing steam across fan

blades mounted to a generator. The university hired

defendant to install an “electronic over-speed system” to

replace its mechanical over-speed system. An over-speed

system is used to prevent the turbines from spinning too

fast and causing damage to the equipment.

180 306 M

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178 [July

On July 18, 2006, the university signed a purchase-

order agreement for defendant to install a ProTech 203

Digital Fault Tolerant Over-Speed Trip System (Pro-

Tech 203). The contract contained the following perti-

nent provisions:

4.0 Warranties and Representations of Supplier. Sup-

plier acknowledges that the University is relying on these

representations and warranties as essential elements to

this Agreement, representing as they do, material induce-

ments, without which the University would not have

entered into this Agreement.

4.1 General Product Warranty. Supplier represents that

all products and any support services provided under this

Agreement (a) are new and unused... and free from

defects in material and workmanship; (b) are of the quality,

size, dimension and specifications ordered; (c) meets the

highest performance and manufacturing specifications as

described in documents or writings made available by the

Supplier to the public or University....

4.2 Qualifications. Supplier warrants that it, as well as

its employees, agents and subcontractors engaged to pro-

vide the products or services under this Agreement... ,

has and will maintain all the skills, experience, and quali-

fications necessary to provide the services contemplated by

this Agreement, including any required training, registra-

tion, certification or licensure.

***

15.18 Supplier Damage to University Property. Without

regard to any other section of the Agreement, Supplier

shall be responsible for the costs to return to “as was”

condition from any damage caused to the building,

grounds, or other equipment and furnishings caused in

whole or part by Supplier Personnel while performing

activities arising under this Agreement. Supplier shall

immediately report in writing the occurrence of any dam-

age to the Building/Project Manager.

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Defendant commenced work on the power plant in

October 2007. Shortly after defendant completed the

project, however, the power plant experienced problems.

According to the university, defendant improperly cali-

brated the ProTech 203, causing one of the university’s

turbines to operate at twice the safe operational speed,

resulting in significant damage to the generator equip-

ment.

On March 17, 2011, the Regents of the University of

Michigan and their captive insurer, Veritas Insurance

Corporation (together referred to as “the Regents”),

commenced a breach-of-contract action against defen-

dant seeking in excess of $3 million in damages. The

Regents alleged that defendant breached express war-

ranties contained in the purchase-order agreement,

breached the implied warranty of merchantability un-

der the Uniform Commercial Code (UCC), MCL

440.1101 et seq., and breached “the prevailing industry

standards and practices....”

Defendant filed a claim with plaintiff under the CGL

policy asking plaintiff to defend and indemnify it in the

Regents’ suit. Plaintiff participated in the defense, but

reserved the right to dispute coverage.

On June 14, 2012, plaintiff commenced this lawsuit

seeking a declaratory judgment regarding its contrac-

tual obligations to defend and indemnify defendant

under the CGL policy.

Defendant filed a counterclaim,

seeking a declaratory judgment that plaintiff was obli-

gated to defend and indemnify defendant under the

policy.

Plaintiff moved for summary disposition under MCR

2.116(C)(10), arguing that it did not have a duty to

Sometime thereafter, defendant reached a settlement agreement with

the Regents.

182 306 M

ICH

178 [July

defend and indemnify defendant, in part, because de-

fendant’s claim was excluded under the CGL policy’s

“contractual liability” exclusion. That exclusion pro-

vided, in relevant part, that the insurance contract did

not cover bodily injury or property damage for which

defendant was obligated to pay damages “by reason of

the assumption of liability in a contract or agreement.”

Plaintiff argued that defendant’s claim fell within

the contractual-liability exclusion because defendant

was liable to the university by way of an assumption of

liability. Specifically, plaintiff cited § 15.18 of the

purchase-order agreement, wherein defendant agreed

that, in the event the power plant was damaged, it

would be “responsible for the costs to return [the

property] to ‘as was’ condition....” Plaintiff essen-

tially argued that in this clause, defendant “assumed”

its own liability and therefore was not covered for

damages arising from breach of the contract.

Defendant responded, arguing the contractual-

liability exclusion applied only to agreements wherein

the insured assumed liability of a third party—i.e.,

indemnity or hold-harmless agreements. Defendant ar-

gued that it did not assume the liability of a third party,

hence, there was no “assumption of liability” and

plaintiff was obligated to provide coverage.

Following oral arguments, the trial court denied plain-

tiff’s motion and granted summary disposition in favor of

defendant pursuant to MCR 2.116(I)(2). The trial court

did not clearly articulate the basis for its holding; rather,

the court appeared to hold that the contractual-liability

exclusion did not preclude coverage because “what we

have -- there’s potential tort liability and the fact that it’s

blocked by the statute of limitations I think is not decisive

here. We look at the gravamen of the allegations, which

are in fact negligence.”

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To obtain a final judgment and narrow the issues for

appeal, plaintiff amended its complaint to, apart from

the contractual-liability exclusion, “withdraw the other

grounds for asserting a lack of coverage.” The trial

court entered a written order on February 14, 2013,

granting judgment in favor of defendant and holding

that defendant was entitled to coverage under the CGL

policy. This appeal ensued.

II. STANDARD OF REVIEW

At issue in this case is the interpretation and appli-

cation of an insurance contract, which presents a ques-

tion of law that we review de novo. Cohen v Auto Club

Ins Ass’n, 463 Mich 525, 528; 620 NW2d 840 (2001).

Similarly, we review de novo a trial court’s ruling on a

motion for summary disposition. Maiden v Rozwood,

461 Mich 109, 118; 597 NW2d 817 (1999).

III. ANALYSIS

Plaintiff argues that the trial court erred by holding

that the contractual-liability exclusion did not preclude

coverage. Resolution of this issue requires that we

construe the relevant portions of the insurance policy.

A. PRINCIPLES OF INTERPRETATION

Similar to any other contract, “[a]n insurance policy

must be enforced in accordance with its terms.” Fran-

kenmuth Mut Ins Co v Masters, 460 Mich 105, 111; 595

NW2d 832 (1999). “Interpretation of an insurance

policy ultimately requires a two-step inquiry: first, a

determination of coverage according to the general

insurance agreement and, second, a decision regarding

whether an exclusion applies to negate coverage.” Auto-

Owners Ins Co v Harrington, 455 Mich 377, 382; 565

184 306 M

ICH

178 [July

NW2d 839 (1997). “While [i]t is the insured’s burden to

establish that his claim falls within the terms of the

policy, [t]he insurer should bear the burden of proving

an absence of coverage.” Hunt v Drielick, 496 Mich 366,

373; 852 NW2d 562 (2014) (quotation marks and cita-

tions omitted) (alteration in original). And, “[e]xclu-

sionary clauses in insurance policies are strictly con-

strued in favor of the insured.” Auto-Owners Ins Co v

Churchman, 440 Mich 560, 567; 489 NW2d 431 (1992).

“However, [i]t is impossible to hold an insurance com-

pany liable for a risk it did not assume, and, thus,

[c]lear and specific exclusions must be enforced.” Hunt,

496 Mich at 373 (quotation marks and citations omit-

ted) (alteration in original).

B. GENERAL INSURANCE AGREEMENT

CGL policies are generally written on standardized

forms developed by the Insurance Services Office, Inc.

(ISO).

American Family Mut Ins Co v American Girl,

Inc, 268 Wis 2d 16, 33; 2014 Wis 2; 673 NW2d 65 (2004).

The CGL policy provides coverage for “sums that the

insured becomes legally obligated to pay as damages

because of ‘bodily injury’ or ‘property damage’ to which

this insurance applies.” (Emphasis added.) The policy

defines “property damage” to include “[p]hysical injury

to tangible property,” or “[l]oss of use of tangible

property,” arising from an “occurrence” that occurs in

the “coverage territory.”

In this case, plaintiff does not argue that the universi-

ty’s property damage did not arise from an occurrence

within the meaning of the CGL’s general insurance agree-

ment. Instead, plaintiff contends coverage was precluded

ISO is a “national insurance policy drafting organization....”State

Auto Prop & Cas Ins Co v Travelers Indemnity Co of America, 343 F3d

249, 255n9(CA4,2003).

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by the policy’s contractual-liability exclusion. Therefore,

we proceed by determining whether the contractual-

liability exclusion applied to negate coverage.

C. CONTRACTUAL-LIABILITY EXCLUSION

The CGL policy provides a “broad statement of

coverage, and insurers limit their exposure to risk

through a series of specific exclusions.” American Fam-

ily, 268 Wis 2d at 34. The contractual-liability exclusion

provides in pertinent part:

(2) Exclusions

This insurance does not apply to:

***

b. Contractual Liability

“Bodily injury” or “property damage” for which the

insured is obligated to pay damages by reason of the

assumption of liability in a contract or agreement. This

exclusion does not apply to liability for damages:

(1) That the insured would have in the absence of the

contract or agreement; or

(2) Assumed in a contract or agreement that is an

“insured contract”....[Emphasis added.]

This clause contains two components: (1) a contractual-

liability exclusion that excludes coverage for damages

incurred “by reason of the assumption of liability in a

contract or agreement,” and (2) an exception to the

exclusion that brings the insured’s claim back into cover-

age when the insured would have incurred the liability

irrespective of the contract or agreement, or the insured

assumed liability in an “insured contract.”

We proceed by

The policy specifically defines “insured contract.” Neither party

contends that plaintiff’s contract with the university was an insured

contract.

186 306 M

ICH

178 [July

first applying the contractual-liability exclusion before, if

necessary, addressing the exceptions to the exclusion.

The critical language in the contractual-liability ex-

clusion is the phrase, “assumption of liability,” particu-

larly, the term “assumption.” Plaintiff argues that the

term encompasses all contracts wherein the insured

assumed any liability, including his or her own liability.

Defendant, in contrast, argues that the term “assump-

tion of liability” is generally understood to mean situa-

tions wherein an insured assumed the liability of a third

party, such as an indemnity or hold-harmless agree-

ment, and that assuming liability is wholly distinct

from assuming a duty to perform a contract in a certain

manner.

The CGL policy does not define the phrase “assump-

tion of liability,” and there is no published caselaw in

Michigan defining the phrase in this context. Therefore,

we turn to the dictionary. See Pugh v Zefi, 294 Mich App

393, 396; 812 NW2d 789 (2011) (stating that when a

contract fails to define a term, “it is appropriate to

consult a dictionary to determine the ordinary or com-

monly used meaning” of the term). Black’s Law Dic-

tionary (10th ed) defines “assumption” in relevant part

as, “[t]he act of taking ([especially] someone else’s debt

or other obligation) for or on oneself....”(Emphasis

added.) “Liability,” in turn, is defined as “[t]he quality,

state, or condition of being legally obligated or account-

able....”Id.

Applying these definitions, when viewed in the

context of a CGL policy as a whole—the purpose of

which is to “protect[] business owners against liabil-

ity to third-parties”

—the plain meaning of the phrase

“assumption of liability” can reasonably be construed to

3, Thomas & Mootz, New Appleman on Insurance Law Library

Edition (September 2013 update), § 16.02[3][a], p 16-28.

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mean the act of taking on the legal obligations or

responsibilities of another. Notably, in defining the term

“assumption” to mean the act of “taking...fororon

oneself,” Black’s Law Dictionary states, “[especially]

someone else’s” obligation. (Emphasis added.) “Espe-

cially” means “to an exceptional degree,” “particularly,”

“preeminently,” or “specifically.” Random House Web-

ster’s College Dictionary (1997). Thus, the meaning of

the term “assumption” predominantly refers to the act

of taking on “someone else’s” obligations. Indeed, a

review of relevant legal treatises and caselaw from

other jurisdictions supports that, in the context of a

CGL policy, “assumption of liability” refers to the

assumption of another’s liability. See, e.g., Klapp v

United Ins Group Agency, Inc, 468 Mich 459, 472; 663

NW2d 447 (2003) (indicating that it may be appropriate

to consult legal treatises when interpreting an ambigu-

ous contract); Mettler Walloon, LLC, v Melrose Twp, 281

Mich App 184, 221 n 6; 761 NW2d 293 (2008) (stating

that while not binding, caselaw from sister states and

federal courts may be considered persuasive authority).

“ ‘The key to understating [the contractual-liability

exclusion]...istheconcept of liability assumed.’ ” Ameri-

can Family, 268 Wis 2d at 47, quoting 2 Long, The Law of

Liability Insurance (2002), § 10.05[2], pp 10-56, 10-57.

Assumed liability differs from liability arising from an

insured’s breach of his or her own contract in that the

former connotes the taking on of additional liabilities in

excess of those imposed on the insured under general law.

As the Wisconsin Supreme Court recently noted:

Although, arguably, a person or entity assumes liability

(that is, a duty of performance, the breach of which will

give rise to liability) whenever one enters into a binding

contract, in the CGL policy and other liability policies an

‘assumed’ liability is generally understood and interpreted

188 306 M

ICH

178 [July

by the courts to mean the liability of a third party, which

liability one ‘assumes’ in the sense that one agrees to

indemnify or hold the other person harmless. [American

Family, 268 Wis 2d at 47-48 (quotation marks and citation

omitted).]

Thus, the contractual-liability exclusion does not “bar

all contract liability,” but rather “is limited to a special

type of contract—one in which the insured has assumed

the liability of another, i.e., a hold harmless or indem-

nification agreement.” 3 Thomas & Mootz, New Apple-

man on Insurance Law Library Edition (September

2013 update), § 18.03[3][a], p 18-43 (emphasis added).

The rationale behind excluding the contractually

assumed liability of another from CGL coverage is that

“ ‘liability assumed by the insured under a contract or

agreement presents an uncertain risk’ which cannot be

determined in advance for the purpose of fixing premi-

ums.” Gibbs M Smith, Inc v United States Fidelity

& Guaranty Co, 949 P2d 337, 342 (Utah, 1997), quoting

1 Long, Law of Liability Insurance (1997), § 1.07[2],

p 1-42.1. Therefore,

“[c]ontractual exclusion clauses which deny coverage for

liability assumed by the insured under any contract or

agreement not defined in the policy relieve the insurer

from liability only in fact situations where the insured

would not be liable to a third person except for the express

assumption of such liability.” [Gibbs M Smith, 949 P2d at

342, quoting 1 Long, § 1.07[2], p 1-44 (alteration in origi-

nal) (emphasis omitted).]

In contrast, if the exclusion “excluded all liability associ-

ated with a contract made by the insured, commercial

liability insurance would be severely limited in its cover-

age.” Gibbs M Smith, 949 P2d at 342 (emphasis added).

Consistently with how legal treatises have addressed

the issue, state and federal courts have held that the

2014] T

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contractual-liability exclusion applies to contracts in-

volving assumption of the liability of a third party. For

example, in Olympic, Inc, v Providence Washington Ins

Co of Alaska, 648 P2d 1008, 1011 (Alas, 1982), in

interpreting a contractual-liability exclusion similar to

the one at issue in this case,

the Alaska Supreme Court

distinguished between “incurring liability through

breach of contract and specifically contracting to as-

sume liability for another’s negligence.” The court

explained that “ ‘[l]iability assumed by the insured

under any contract’ refers to liability incurred when

one promises to indemnify or hold harmless another,

and does not refer to the liability that results from

breach of contract.” Id. at 1011 (emphasis added).

More recently, in American Family Mut Ins Co v

American Girl, Inc, 268 Wis 2d at 48, the Wisconsin

Supreme Court held that the contractual-liability exclu-

sion in a standard CGL policy “applies where the insured

has contractually assumed the liability of a third party, as

in an indemnification or hold harmless agreement[.]” In

rejecting the contention that the exclusion precluded

coverage for all incidents involving the insured’s contrac-

tual liability, the court explained that “[t]he term ‘as-

sumption’ must be interpreted to add something to the

phrase ‘assumption of liability in a contract or agree-

ment.’ ” Id. Otherwise, “[r]eading the phrase to apply to

all liabilities sounding in contract renders the term ‘as-

sumption’ superfluous.” Id. (emphasis added). Further-

more, the court reasoned, limiting the exclusion to in-

stances involving the assumed liability of another

is consistent with the general purposes of liability insur-

ance because it enables insurers to enforce the fortuity

The exclusion provided that the CGL policy did not apply to “ ‘liability

assumed by the insured under any contract or agreement except an

incidental contract....’”Olympic, 648 P2d at 1010.

190 306 M

ICH

178 [July

concept by excluding from coverage any policyholder agree-

ments to become liable after the insurance is in force and

liability is a certainty....[Thus] further[ing] the goal of

protecting the insurer from exposure to risks whose scope

and nature it cannot control or even reasonably foresee.

[Id.]

Consistently with Olympic and American Family,

many other courts and legal authorities have concluded

that the contractual-liability exclusion is limited to

contracts wherein the insured assumes the liability of

another. See, e.g., 46 CJS, Insurance, § 1413, pp 310-311

(“A provision in a liability insurance policy excluding

coverage for liabilities assumed under any contract...

does not apply to liabilities not within its terms. Such

liability includes promises to indemnify or hold harm-

less another, but not liability resulting from a breach of

contract.”) (citations omitted).

We find these authori-

ties persuasive and hold that “assumption of liability”

in the context of a CGL policy’s contractual-liability

See also Anno: Scope & Effect of Clause in Liability Policy Excluding

From Coverage Liability Assumed by Insured Under Contract Not De-

fined in Policy, 63 ALR2d 1122, §§ 1-3; Indiana Ins Co v Kopetsky,11

NE3d 508 (Ind Ct App, 2014) (“Today we join those jurisdictions who

have held that contractual liability exclusions in CGL policies bar

coverage not for liability incurred by a contract breach but, rather, for

liability assumed from a third party, which seems to be the majority

position by a wide margin.”) Desert Mountain Props Ltd Partnership v

Liberty Mut Fire Ins Co, 225 Ariz 194, 205; 236 P3d 421 (Ariz Ct App,

2010) (holding that the exclusion “applies only to ‘the assumption of

another’s liability’ ”); Federated Mut Ins Co v Grapevine Excavation Inc,

197 F3d 720, 726 (CA 5, 1999) (because the insured was not “being sued

as the contractual indemnitor of a third party’s conduct, but rather for its

own conduct, the exclusion [was] inapplicable”); Marlin v Wetzel Co Bd of

Ed, 212 W Va 215, 222; 569 SE2d 462 (2002) (“ ‘[L]iability assumed by

the insured under any contract’ in an insurance policy... refers to

liability incurred when an insured promises to indemnify or hold harm-

less another party....”); Gibbs M Smith, 949 P2d at 340-342 (holding

that “assumption of liability” refers to the assumption of a third-party’s

liability).

2014] T

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exclusion refers to those contracts or agreements

wherein the insured assumes the liability of another. To

conclude otherwise and construe “assumption” to en-

compass an insured’s own liability for breach of con-

tract renders the phrase “assumption of liability” sur-

plusage. American Family, 268 Wis 2d at 48. This is

because under general law an insured is inherently

liable for damages arising from breach of its own

contract. See, e.g., Fultz v Union-Commerce Assoc, 470

Mich 460, 465; 683 NW2d 587 (2004), quoting Clark v

Dalman, 379 Mich 251, 260-261; 150 NW2d 755 (1967)

(“ ‘[A]ccompanying every contract is a common-law

duty to perform with ordinary care the thing agreed to

be done, and . . . a negligent performance constitutes a

tort as well as a breach of contract.’ ”). And, in the event

that the insured is a seller of goods, the insured has

additional inherent liabilities under the UCC. Specifi-

cally, MCL 440.2314 provides that “a warranty that...

goods shall be merchantable is implied in a contract for

their sale if the seller is a merchant with respect to

goods of that kind,” and MCL 440.2315 provides an

implied warranty of fitness that generally attaches to

the sale of goods. Thus, in a contract, an insured need

not assume liability for something that the law already

imposes—i.e., liability for damages arising from breach

of that contract.

Plaintiff contends that the jurisdictions holding that

the contractual-liability exclusion concerns the assump-

tion of a third-party’s liability have applied a “term of

art” approach to interpreting the contractual-liability

exclusion in a manner that does not comport with

Michigan’s “plain meaning” approach to contract inter-

pretation. Plaintiff contends that Gilbert Texas Constr,

LP v Underwriters at Lloyd’s London, 327 SW3d 118

(Tex, 2010), should govern our analysis. According to

plaintiff, in that case, the Texas Supreme Court cor-

192 306 M

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178 [July

rectly applied a plain-meaning approach to contract

interpretation and held that the exclusion barred

breach-of-contract claims arising from contracts

wherein the insured assumed its own liability. Plain-

tiff’s reading of Gilbert, however, is overly broad.

In Gilbert, Gilbert Texas Construction, LP con-

tracted with the Dallas Area Rapid Transit Authority

(DART) to construct a light-rail system. Id. at 121-

122. Gilbert, as DART’s contractor, enjoyed govern-

mental immunity, id. at 122 n 4; however, in the

contract, Gilbert agreed to “pay for damage to third-

party property resulting from either (1) a failure to

comply with the requirements of the contract, or (2)

a failure to exercise reasonable care in performing the

work.” Ewing Constr Co, Inc v Amerisure Ins Co, 420

SW3d 30, 35 (Tex, 2014) (emphasis omitted), citing

Gilbert, 327 SW3d at 127. During construction, heavy

rains damaged an adjacent property and the property

owner, RT Realty (RTR), sued Gilbert alleging breach

of contract and other claims. Gilbert, 327 SW3d at

122-123. Gilbert filed a claim for defense and indem-

nity under its CGL policy issued by Underwriters at

Lloyds London (Underwriters). Id. Meanwhile, the

trial court dismissed all of the claims against Gilbert

except for the breach-of-contract claim. Id. at 123.

Underwriters then denied coverage on grounds that

the CGL policy’s contractual-liability exclusion (iden-

tical to the one at issue in this case) precluded

coverage. Id. Gilbert sued Underwriters, claiming

that Underwriters had a duty to indemnify it under

the CGL policy. Id.

The central issue on appeal was whether the exclu-

sion for contractually assumed liability was limited in

scope to contracts wherein the insured assumed the

liability of a third party. The Texas Supreme Court held

2014] T

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that the exclusion was not limited to contracts involv-

ing the assumption of the liability of another, explain-

ing:

[H]ad it been intended to be so narrow as to apply only to

an agreement in which the insured assumes liability of

another party...itwould have been simple to have said

so....

***

. . . [T]he exclusion does not say it is limited to the

narrow set of contracts by which the insured assumes the

liability of another person; the exclusion’s language applies

without qualification to liability assumed by contract ex-

cept for two situations: (1) specified types of contracts

referred to as ‘insured contracts,’ including indemnity

agreements by which the insured assumes another’s tort

liability, and (2) situations in which the insured’s liability

for damages would exist absent the contract—in other

words, situations in which the insured’s liability for dam-

ages does not depend solely on obligations assumed in the

contract. [Id. at 127-128 (emphasis omitted).]

At first blush, Gilbert appears to sweep with great

breadth. Indeed, the court acknowledged precedent

from other jurisdictions and expressly stated that it

disagreed “by and large, with courts’ and treatises’

conclusions that the language of the contractual

liability exclusion before us applies only to indemnity

or hold-harmless agreements....”Id. at 131. How-

ever, upon closer review, Gilbert is not as sweeping as

it may appear. The Gilbert Court did not hold that the

exclusion barred all claims involving the insured’s

contractual liability. See, e.g., id. at 128 (“We do not

hold that the exclusion in Coverage A precludes

liability for all breach of contract claims.”). Instead,

the court held that the exclusion barred claims aris-

ing under a contract wherein the insured assumed

194 306 M

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178 [July

greater liability than that which the insured would

have incurred under general law. Specifically, the

court explained as follows:

Independent of its contractual obligations, Gilbert owed RTR

the duty to comply with law and to conduct its operations

with ordinary care so as not to damage RTR’s property, and

absent its immunity it could be liable for damages it caused by

breaching its duty. In its contract with DART, however,

Gilbert undertook a legal obligation to protect improvements

and utilities on property adjacent to the construction site, and

to repair or pay for damage to any such property “resulting

from a failure to comply with the requirements of this

contract or failure to exercise reasonable care in performing

the work.” (emphasis added). The latter obligation—to exer-

cise reasonable care in performing its work—mirrors Gil-

bert’s duty to RTR under general law principles. The obliga-

tion to repair or pay for damage to RTR’s property “resulting

from a failure to comply with the requirements of this

contract” extends beyond Gilbert’s obligations under general

law and incorporates contractual standards to which Gilbert

obligated itself.[Id. at 127 (emphasis altered).]

In a subsequent case, the Texas Supreme Court articu-

lated Gilbert’s holding as follows:

Gilbert did not contractually assume liability for damages

within the meaning of the policy exclusion unless the

liability for damages it contractually assumed was greater

than the liability it would have had under general law ....

[Ewing, 420 SW3d at 36 (emphasis added).]

In short, under Gilbert when an insured would be

liable at general law for damages arising from its breach

of contract, the contractually assumed liability does not

preclude coverage, but when an insured takes on addi-

tional legal obligations and liabilities beyond those

imposed at general law, coverage is barred by the

contractual-liability exclusion.

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Our reading of Gilbert aligns with Ewing Constr Co,

Inc v Amerisure Ins Co, 420 SW3d 30, wherein the

Texas Supreme Court clarified the scope of Gilbert.In

that case, Ewing Construction Company, Inc., con-

tracted with a school district to construct tennis courts.

Ewing, 420 SW3d at 31. In the contract, Ewing agreed

to perform the work in “a good and workmanlike

manner....”Id. at 36. Shortly after construction was

complete, the tennis courts began flaking, crumbling,

and cracking and were unusable for their intended

purpose. Id. at 31. The school district sued Ewing,

alleging breach of contract and negligence. Id. at 31-32.

Ewing filed a claim with Amerisure Insurance Com-

pany, its CGL provider, seeking defense and indemnity.

Id. at 32. Amerisure denied coverage, and Ewing filed a

complaint for declaratory judgment. Id.

Citing Gilbert, Amerisure argued, in part, that cov-

erage was precluded under the CGL policy’s

contractual-liability exclusion because Ewing had as-

sumed liability for damages by contracting with the

school district to perform work in a good and workman-

like manner. Id. at 32, 36. Ewing countered, arguing

that “its express agreement to perform the construction

in a good and workmanlike manner did not enlarge its

obligations and was not an ‘assumption of liability’

within the meaning of the policy’s contractual liability

exclusion.” Id. In agreeing with Ewing, the Texas

Supreme Court clarified its holding in Gilbert, explain-

ing, “we...determined in Gilbert that ‘assumption of

liability’ means that the insured has assumed a liability

for damages that exceeds the liability it would have

under general law....Otherwise, the words ‘assump-

tion of liability’ are meaningless and are surplusage.”

Id. at 37, citing American Family, 268 Wis 2d at 48. The

court held that Ewing did not assume liability for

damages that exceeded the liability it had under general

196 306 M

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178 [July

law and, therefore, its claim was not precluded by the

contractual-liability exclusion. Ewing, 420 SW3d at 37.

Ewing had a “common law duty to perform its contract

with skill and care” as that duty “accompanies every

contract....”Id. (quotation marks and citation omit-

ted). The court concluded:

[A] general contractor who agrees to perform its construction

work in a good and workmanlike manner, without more, does

not enlarge its duty to exercise ordinary care in fulfilling its

contract, thus it does not ‘assume liability’ for damages

arising out of its defective work so as to trigger the Contrac-

tual Liability Exclusion. [Id. at 38 (emphasis added).]

Contrary to plaintiff’s argument, Gilbert does not

support the proposition that defendant’s claim for CGL

coverage was barred by the contractual-liability exclu-

sion. Rather, under the rationale articulated in Gilbert

and Ewing, the exclusion does not apply in this case. By

warranting that its goods and services were “free from

defects in material and workmanship,” and by agreeing

to return the university’s property to “as was” condi-

tion in the event that defendant damaged property

during completion of the contract, defendant did not

“enlarge its duty to exercise ordinary care in fulfilling

its contract....” Ewing, 420 SW3d at 38. General

principles of law required that defendant’s goods be fit

and merchantable for their intended use so as not to

cause damages to the university’s property and for

defendant to perform the contract with good and ordi-

nary care. See Fultz, 470 Mich at 465 (“[A]ccompanying

every contract is a common-law duty to perform with

ordinary care the thing agreed to be done....”)(quo-

tation marks and citation omitted). See also MCL

440.2314 and MCL 440.2315. In this case, like the

general contractor in Ewing, by agreeing to return the

university’s property to “as was” condition, defendant

2014] T

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agreed to no more than what was imposed upon it under

general law. Therefore, like in Ewing, defendant did not

“ ‘assume liability’ for damages arising out of its

defective work so as to trigger the Contractual Liability

Exclusion.” Ewing, 420 SW3d at 38.

Plaintiff also contends that Envision Builders, Inc, v

Citizens Ins Co of America, unpublished opinion per

curiam of the Court of Appeals, issued July 24, 2012

(Docket Nos. 303652 and 303668), stands for the propo-

sition that the contractual-liability exclusion applies to

contracts wherein the insured assumes its own liability

for breaching the contract.

In Envision Builders, the Macomb County Road

Commission contracted with Envision Builders, Inc., to

perform construction work, including the erection of

roof trusses. Id. at 3. The contract provided that “ ‘[a]ny

trusses that are damaged during delivery or erection

shall be replaced at no extra cost to the Owner.’ ” Id.at

4 (alteration in original). Envision hired a subcontrac-

tor to install the trusses. Id. at 3. During installation,

the subcontractor failed to install temporary bracing,

and before the roof work was complete, a wind storm

caused the trusses to collapse, causing damage at the

construction site. Id. Envision filed a claim for coverage

under a standard CGL policy. Id. On appeal, this Court

held that Envision was not entitled to coverage under

the policy because the damages did not arise from an

occurrence within the meaning of the policy. Id. at 3-4.

After concluding that there was no occurrence under

the policy, this Court stated, “Even if there was cover-

age under the contract,” the CGL policy’s contractual-

liability exclusion precluded coverage. Id. at 4. This

Court reasoned that under Envision’s contract with the

road commission, Envision was obligated to replace any

trusses that were damaged during completion of the

198 306 M

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178 [July

construction project. Id. This Court concluded, “Be-

cause Envision was obligated to pay damages for prop-

erty damage by reason of its assumption of liability in

its contract with the [road commission], the damage to

the trusses is excluded from coverage.” Id. This Court

rejected the trial court’s conclusion that the

contractual-liability exclusion was limited to indemnity

agreements, explaining:

[U]nder [the contractual-liability exclusion,] indemnity

agreements as well as the assumption of liability in a contract

or agreement are excluded.... [T]he trial court failed to

recognize that the contractual liability exclusion also applied

to the assumption of liability in a contract like the one

between Envision and the [road commission,] in which Envi-

sion assumed liability for damage to the trusses. [Id.]

We decline plaintiff’s invitation to adopt the analysis

set forth in Envision Builders. Initially, we note that

Envision Builders, is an unpublished opinion and is not

binding precedent under the rule of stare decisis. MCR

7.215(C)(1); Dyball v Lennox, 260 Mich App 698, 705

n 1; 680 NW2d 522 (2004). Moreover, we do not find

Envision Builders persuasive. This Court’s discussion

of the contractual-liability exclusion in that case was

limited and came after the Court concluded that the

underlying event did not constitute an occurrence.

Therefore, the analysis was not necessary to resolve the

central issue in the case, and this Court did not need to

engage in in-depth analysis of the contractual-liability

exclusion. This Court did not provide any analysis of

relevant legal authorities interpreting the exclusion

and because it was not necessary to do so, this Court did

not define the meaning of the words “assumption of

liability” in the context of the CGL policy as a whole.

Therefore, we do not find Envision Builders to be of

value to our analysis in this case.

2014] T

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Finally, plaintiff contends that by failing to apply

the contractual-liability exclusion, the trial court

expanded the scope of the CGL policy to include

contract claims when the policy was meant to be

limited to potential tort liability. Plaintiff essentially

argues that coverage under the policy turns on the

form of the injured party’s underlying complaint.

This argument is not persuasive.

The CGL policy does not limit coverage for property

damage arising from defendant’s tort liability. Instead,

in relevant part, the coverage applies to “property

damage,” caused by an “occurrence.” Defective work-

manship that damages a customer’s property can con-

stitute an occurrence, within the meaning of a CGL

policy. See Radenbaugh v Farm Bureau Gen Ins Co, 240

Mich App 134, 145-148; 610 NW2d 272 (2000). More-

over, “the duty to defend and the duty to indemnify are

not determined solely on the basis of the terminology

used in a plaintiff’s pleadings.” United States Fidelity

& Guaranty Co v Citizens Ins Co of America, 201 Mich

App 491, 493; 506 NW2d 527 (1993). “Instead, a court

must focus on the cause of the injury to ascertain

whether coverage exists.” Id. at 494. “It is the sub-

stance rather than the form of the allegations in the

complaint which must be scrutinized.” Id.

In this case, while the Regents brought a breach-

of-contract action, the substance of the claim sounded

in negligent performance of the purchase-order con-

tract that could have given rise to either a tort or

contract claim. The Regents alleged in part that

defendant breached “the prevailing industry stan-

dards and practices....”AsourSupreme Court has

previously explained, “accompanying every contract

is a common-law duty to perform with ordinary care

the thing agreed to be done, and... a negligent

200 306 M

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178 [July

performance constitutes a tort as well as a breach of

contract.” Fultz, 470 Mich at 465 (quotation marks

and citation omitted). Accordingly, merely because

the Regents brought a breach-of-contract action as

opposed to a tort action is not dispositive regarding

whether coverage existed under the CGL policy.

Rather, the policy’s initial grant of coverage turned

on whether the property damage arose from an

occurrence, and plaintiff abandoned any argument

regarding whether an occurrence caused the univer-

sity’s property damage in this case.

IV. CONCLUSION

In the context of a CGL policy, “assumption of

liability” means assuming the legal obligations or re-

sponsibilities of another. In this case, defendant did not

assume the legal obligations or responsibilities of an-

other when it contracted with the university to provide

goods and services of a particular quality and to return

the university’s property to “as was” condition in the

event the university’s property was damaged during

completion of the contract. Therefore, the contractual-

liability exclusion in the CGL policy did not preclude

coverage in this case, and the trial court reached the

correct result, albeit for different reasons. See Gleason

v Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822

(2003) (“A trial court’s ruling may be upheld on appeal

where the right result issued, albeit for the wrong

reason.”).

In its brief on appeal, plaintiff states that after the trial court’s ruling,

it amended its complaint to “withdraw the other grounds for asserting a

lack of coverage.”

Given our resolution of this issue, we need not address whether the

exceptions to the contractual-liability exclusion applied or whether

plaintiff was estopped from asserting the exclusion.

2014] T

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Affirmed. Defendant having prevailed, may tax costs.

MCR 7.219(A). We do not retain jurisdiction.

ERVITTO

and B

ECKERING

, JJ., concurred with B

ORRELLO

P.J.

202 306 M

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178 [July

RONNISCH CONSTRUCTION GROUP, INC v LOFTS ON THE NINE,

LLC

Docket No. 314195. Submitted July 17, 2014, at Detroit. Decided July 24,

2014, at 9:00 a.m. Leave to appeal sought.

Ronnisch Construction Group, Inc., brought an action in the Oakland

Circuit Court against Lofts on the Nine, LLC, and others, alleging

breach of contract and unjust enrichment and seeking foreclosure of

a lien. The contract between plaintiff and defendants involved the

construction of a loft-style condominium building in Ferndale, Michi-

gan, and required that any claim arising out of or related to the

contract be submitted to arbitration. Because of a deficiency in

payment, plaintiff had filed a claim of lien under the Construction

Lien Act, MCL 570.1101 et seq., in the Oakland County Register of

Deeds. The parties stipulated to stay the proceedings in the circuit

court and proceeded with arbitration, at which Lofts on the Nine

asserted claims of its own related to faulty or incomplete work. The

arbitrator awarded damages to both plaintiff and Lofts on the Nine,

resulting in a net award to plaintiff. Lofts on the Nine shortly

thereafter paid plaintiff the net award amount plus interest. Plaintiff

then moved for confirmation of the arbitration award and sought

attorney fees and costs under MCL 570.1118(2) as a prevailing lien

claimant. Lofts on the Nine argued that plaintiff’s motion should be

denied in full because it had already satisfied the arbitration award by

paying plaintiff and that no attorney fees were warranted because

once plaintiff’s breach-of-contract claim had been settled, its lien-

foreclosure claim became moot. The court, Shalina Kumar, J., denied

plaintiff’s motion. With respect to attorney fees, the court held that

because Lofts on the Nine had paid plaintiff the amount owed under

the arbitration award and neither the court nor the arbitrator had

adjudicated plaintiff’s lien-foreclosure claim, plaintiff was not a

prevailing lien claimant and the court did not have discretion to

award plaintiff attorney fees and costs under the Construction Lien

Act. Plaintiff appealed.

The Court of Appeals held:

1. MCL 570.1118(2) provides that in an action to enforce a

construction lien through foreclosure, the court must determine the

amount, if any, due to each lien claimant and may allow reasonable

2014] R

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attorney fees to a lien claimant who is the prevailing party. The

Construction Lien Act is remedial in nature and sets forth a compre-

hensive scheme aimed at protecting the rights of lien claimants to

payment for expenses and the rights of property owners not to pay

twice for these expenses. It is to be liberally construed to secure the

beneficial results, intents, and purposes of the act. Bosch v Altman

Constr Corp, 100 Mich App 289 (1980), held that it would violate the

spirit of the act to permit a lienee to force a lienor to accept payment

of a lien claim just before the commencement of a lien foreclosure

trial and thereby avoid a possible assessment for attorney fees. Under

that rule, a lienee could drag a lienor through costly pretrial proceed-

ings in the hope of gaining a beneficial settlement without putting the

lienee in jeopardy of paying attorney fees. The purpose of MCL

570.1118(2) is to avoid such a situation. As in Bosch, plaintiff in this

case filed both a breach-of-contract claim and a claim for foreclosure

of a lien, the amount that was owed under the contract/lien was

established in a proceeding distinct from any actual lien foreclosure

proceeding, and defendant paid the amount ultimately determined to

be owed under the contract before any lien foreclosure proceeding

commenced. Contrary to the circuit court’s holding, plaintiff’s sub-

stantially prevailing on the amounts it sought under the claim of lien

made it a prevailing party under the Construction Lien Act, and the

court had the discretion under MCL 570.1118(2) to award attorney

fees.

2. The fact that no foreclosure ever occurred was not perti-

nent. MCL 570.1118(2) distinguishes between an action based

solely in contract and one based on a construction lien. Those

actions are distinct and separate and may be pursued simulta-

neously. Plaintiff did not seek recovery solely on a breach of

contract claim; its complaint included both a contract claim and a

foreclosure-of-lien claim. The fact that the amount owed on the

contract, and consequently the proper amount of the lien, was

determined in a separate proceeding was of no consequence. Nor

did the fact that the arbitrator rather than a court or jury

established the lien amount require a different conclusion.

3. It was necessary to vacate the portion of the circuit court’s

order denying plaintiff’s request for attorney fees because the

court erroneously believed that it lacked discretion to award them.

On remand, however, the circuit court would not be required to

award attorney fees. Rather, the court was directed to exercise its

discretion under MCL 570.1118(2) in deciding whether to award

them.

Vacated in part and remanded.

204 306 M

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203 [July

IENS —

ONSTRUCTION

IENS —

REVAILING

ARTIES —

TTORNEY

EES —

RBITRATION

WARDS

MCL 570.1118(2), part of the Construction Lien Act, MCL

570.1101 et seq., provides that in an action to enforce a

construction lien through foreclosure, the court must determine

the amount, if any, due to each lien claimant and may allow

reasonable attorney fees to a lien claimant who is the prevailing

party; a lien claimant may be a prevailing party even if (1) the

lien claimant brought both a breach-of-contract claim and a

claim for foreclosure of a lien, (2) the amount owed under the

contract/lien was established in a proceeding distinct from any

actual lien foreclosure proceeding (such as arbitration or a

separate action), and (3) the defendant paid the amount ulti-

mately determined to be owed under the contract before any

lien foreclosure proceeding commenced.

Deneweth, Dugan & Parfitt, PC (by Ronald A. De-

neweth and Mark D. Sassak), for Ronnisch Construc-

tion Group, Inc.

Seyburn Kahn (by Joel H. Serlin, Ronald L. Cornell,

Jr., and Gregory M. Krause), for Lofts on the Nine, LLC.

Before: J

ANSEN

,P.J., and S

AAD

and D

ONOFRIO

,JJ.

ONOFRIO

, J. Plaintiff appeals as of right

the circuit

court’s order denying its request for attorney fees

under the Construction Lien Act, MCL 570.1101 et

seq. Because the circuit court erroneously concluded

that it was precluded from considering awarding

attorney fees under MCL 570.1118(2), we vacate the

portion of the order dealing with attorney fees and

remand the case.

Plaintiff filed its claim of appeal on January 8, 2013, but our review

of the record indicates that the final order in this case was not entered

until January 23, 2013. Thus, plaintiff filed its claim of appeal prema-

turely. In the interest of judicial economy, we treat the claim of appeal as

an application for leave to appeal, which we grant. Wardell v Hincka, 297

Mich App 127, 133 n 1; 822 NW2d 278 (2012).

2014] R

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I. BASIC FACTS

This case arises from a construction contract that

was entered into between plaintiff and defendant

Lofts on the Nine, L.L.C., in May 2007.

The contract

called for the construction of a loft-style condo-

minium building in Ferndale, Michigan, for the price

of approximately $6 million and provided that “[a]ny

Claim arising out of or related to the Contract” was to

be submitted to arbitration. Plaintiff last provided

labor or materials on April 24, 2009. Defendant had

paid plaintiff almost $5.5 million, resulting in a

deficiency of $626,163.73. As a result, plaintiff filed a

claim of lien in the Oakland County Register of Deeds

in June 2009.

Because of the deficiency, on November 25, 2009,

plaintiff filed a complaint against defendant in circuit

court, alleging three counts: breach of contract, foreclo-

sure of lien, and unjust enrichment. Additionally, be-

cause the contract required that claims be submitted to

arbitration, the parties stipulated to stay the proceed-

ings at circuit court and proceeded with arbitration. At

arbitration, defendant asserted claims of its own, alleg-

ing that it had incurred between $1.1 million and $1.5

million in damages because of faulty or incomplete work

done by plaintiff.

On January 26, 2012, the arbitrator issued his ruling.

The arbitrator awarded plaintiff $626,163.72

for “[d]i-

rect damages for work performed under the Construc-

tion Contract” and $9,895 for “[r]eimbursement for

additional Faucet Claim.” Thus, the total awarded on

The other defendants are not implicated in this appeal, so our use of

the term “defendant” will refer only to Lofts on the Nine, L.L.C.

It is not apparent why there was a $0.01 discrepancy between this

amount and the amount noted on the claim of lien.

206 306 M

ICH

203 [July

plaintiff’s claims was $636,058.72. However, the arbi-

trator specifically declined to address plaintiff’s request

for attorney fees as a prevailing lien claimant under

MCL 570.1118(2) and expressly “reserved for the Cir-

cuit Court” that issue. On defendant’s counterclaims,

the arbitrator awarded defendant $185,238.36, result-

ing in a net award of $450,820.36 to plaintiff. Defendant

shortly thereafter paid the net award amount plus

interest to plaintiff.

On February 21, 2012, plaintiff filed a motion to lift

the stay and confirm the arbitration award and re-

quested attorney fees and costs under MCL

570.1118(2). Plaintiff asserted that it was a prevailing

lien claimant and was entitled to attorney fees and costs

totaling $310,125.25.

Defendant filed a response and argued that the motion

should be denied in total because, at the outset, it already

had satisfied the arbitration award by paying plaintiff

shortly after the arbitrator made his ruling. Furthermore,

defendant argued that no attorney fees were warranted

because once plaintiff’s breach-of-contract claim was

settled, it rendered plaintiff’s lien-foreclosure claim moot.

Defendant also argued that plaintiff could not be consid-

ered as prevailing in arbitration because defendant had

reasonably disputed paying the final 10% of the contract

price because of numerous contract breaches on plaintiff’s

behalf. Defendant noted that the $450,820.36 plaintiff

ultimately was awarded was less than 70% of what plain-

tiff had claimed was owed in the claim of lien.

The circuit court denied plaintiff’s motion in an

opinion and order issued on April 24, 2012. With respect

to the request for attorney fees, the circuit court rea-

While defendant asserted that the amount awarded was less than 70%

of the amount listed on the lien, our review shows that the amount

awarded was actually 72% of the amount listed on the lien

($450,820.36/$626,163.73 = 0.720).

2014] R

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soned as follows:

As [defendant] paid [plaintiff] the amount [defendant]

owed pursuant to the Arbitration Award on February 16,

2012 and [plaintiff’s] lien foreclosure claim was not adju-

dicated by this Court or the Arbitrator . . . , [plaintiff]

cannot be deemed to be a prevailing lien claimant in this

matter. Therefore, the Court does not have the discretion

to award [plaintiff] its attorney fees and costs under the

Michigan Construction Lien Act.

II. STANDARD OF REVIEW

This Court reviews a circuit court’s decision on

whether to award attorney fees under the Construction

Lien Act for an abuse of discretion. C D Barnes Assoc,

Inc v Star Heaven, LLC, 300 Mich App 389, 425; 834

NW2d 878 (2013). An abuse of discretion occurs when

the decision results in an outcome falling outside the

range of principled outcomes. Woodard v Custer, 476

Mich 545, 557; 719 NW2d 842 (2006). Likewise, a court

abuses its discretion when it makes an error of law. In

re Waters Drain Drainage Dist, 296 Mich App 214, 220;

818 NW2d 478 (2012).

This Court also reviews issues of statutory interpreta-

tion de novo. The primary goal of judicial interpretation of

statutes is to discern the intent of the Legislature by

examining the plain language of the statute. The starting

point in every case involving construction of a statute is the

language itself....Thecourt must consider the object of

the statute in light of the harm it is designed to remedy and

apply a reasonable construction that best accomplishes the

purposes of the statute. [C D Barnes, 300 Mich App at

407-408 (citations omitted).]

III. ANALYSIS

Generally, attorney fees are not recoverable unless a

statute, court rule, or common-law exception to this

208 306 M

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203 [July

general prohibition exists. Dessart v Burak, 470 Mich

37, 42; 678 NW2d 615 (2004).

Plaintiff sought to recover attorney fees under the

Construction Lien Act. Specifically, MCL 570.1118(2)

provides, in relevant part:

In an action to enforce a construction lien through

foreclosure, the court shall examine each claim and defense

that is presented and determine the amount, if any, due to

each lien claimant or to any mortgagee or holder of an

encumbrance and their respective priorities. The court

may allow reasonable attorneys’ fees to a lien claimant who

is the prevailing party.

The Construction Lien Act is remedial in nature and

“sets forth a comprehensive scheme aimed at ‘protect-

ing the rights of lien claimants to payment for expenses

and...therights of property owners from paying twice

for these expenses.’ ” Stock Bldg Supply, LLC v Parsley

Homes of Mazuchet Harbor, LLC, 291 Mich App 403,

406-407; 804 NW2d 898 (2011) (citation omitted). As

such, it is to be “liberally construed to secure the

beneficial results, intents, and purposes of this act.”

MCL 570.1302(1).

The circuit court determined that it could not award

attorney fees under this statute because plaintiff could

not be considered a prevailing lien claimant. The court

relied on the belief that the lien-foreclosure claim was

not adjudicated by it or the arbitrator and concluded

that it did “not have the discretion to award [plaintiff]

its attorney fees and costs under the Michigan Con-

struction Lien Act.” We disagree.

We conclude that this case is analogous to the situa-

tion presented in Bosch v Altman Constr Corp, 100

Mich App 289; 298 NW2d 725 (1980), in which this

Court affirmed the award of attorney fees under the

2014] R

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mechanics’ lien act.

In Bosch, the plaintiff filed a lien

for $8,215.08 for money owed on a construction con-

tract. Id. at 292. A year later, the plaintiff filed an action

in the circuit court to foreclose on the lien. Id. A few

months after that, the plaintiff filed another suit

against the defendant in the district court—this time

alleging breach of contract. Id. at 293. Following a jury

trial on the breach-of-contract claim, judgment was

entered in favor of the plaintiff for $6,013.67. Id. After

this judgment, the defendant tendered payment, but

the plaintiff refused because he thought he was entitled

to attorney fees as well. Id.

The Bosch circuit court then ordered the plaintiff to

execute a discharge of the lien upon payment of the

district court judgment, and on the morning of the

circuit court trial, the defendant tendered a check to the

plaintiff in the amount of the district court judgment

plus interest. Consequently, the plaintiff signed a satis-

faction of judgment and a discharge of the lien. In the

circuit court, the plaintiff still asserted that he was

owed attorney fees. The defendant argued that, because

the lien was satisfied before trial commenced, the

circuit court lacked the authority to award any attorney

fees. Id. This Court disagreed with the defendant and

stated:

We believe it would clearly violate the spirit of the

mechanics’ lien statute to permit a lienee to force a lienor

to accept payment of a lien claim just before the commence-

ment of a lien foreclosure trial and thereby avoid a possible

assessment for attorney fees. Under such a rule, a lienee

could drag a lienor through costly pretrial proceedings in

the hope of gaining a beneficial settlement without putting

himself in jeopardy of paying the attorney fees of the lienor.

The former mechanics’ lien act, MCL 570.1 et seq., preceded the

current Construction Lien Act. Jeddo Drywall, Inc v Cambridge Inv

Group, Inc, 293 Mich App 446, 451; 810 NW2d 633 (2011).

210 306 M

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203 [July

Many a materialman, lacking in deep financial resources,

would be seriously hampered in pursuing his legal rem-

edies. The purpose of MCL 570.12 [the predecessor of MCL

570.1118(2)] is to avoid such a situation. [Id.at296

(citation omitted).]

The facts in the instant case are remarkably similar

to those in Bosch. Like the Bosch plaintiff, plaintiff here

filed both a breach-of-contract claim and a claim for

foreclosure of a lien against defendant. And as in Bosch,

the amount that was owed under the contract/lien was

established in a proceeding distinct from any actual

lien-foreclosure proceeding. Notably, in both Bosch and

our case, the amount finally determined to be owed was

less than the initial amount claimed on the lien.

And

finally, the defendants in both cases paid the amount

determined to be ultimately owed under the contract

before any lien-foreclosure proceedings commenced. As

a result, we conclude that the instant case is entitled to

the same outcome as Bosch. Specifically, contrary to the

circuit court’s view, plaintiff’s substantially prevailing

on the amounts it sought under the claim of lien made

it a prevailing party under the Construction Lien Act,

and the circuit court had the discretion under MCL

570.1118(2) to award attorney fees.

The fact that no foreclosure ever occurred is not

pertinent. In addition to Bosch, this Court has already

rejected this position in Solution Source, Inc v LPR

Assoc Ltd Partnership, 252 Mich App 368; 652 NW2d

474 (2002). In Solution Source, the defendants argued

that because the plaintiff had attempted to satisfy its

judgment through garnishment instead of through fore-

closure, the plaintiff could not use MCL 570.1118(2) to

In Bosch, the plaintiff received a judgment for $6,013.67, which was

73.2% of the amount it claimed on the lien. In our case, as noted earlier,

plaintiff’s arbitration award was 72.0% of the amount claimed on its lien.

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recover attorney fees. Id. at 377. This Court disagreed

and, while noting that the statute is to be construed

liberally in order to carry out its intended purpose of

protecting lien claimants, determined that MCL

570.1118(2) “was not meant to be read in such a

restrictive manner.” Id. at 378. The Court explained:

In stating that a lien claimant who is a prevailing party

in an action to enforce a construction lien through foreclo-

sure is entitled to attorney fees, we believe that MCL

570.1118(2) is simply distinguishing between an action

based solely in contract and one based on a construction

lien. These actions are distinct and separate and may be

pursued simultaneously. [Id. (emphasis added).]

In this case, plaintiff did not solely seek recovery on a

breach of contract claim: plaintiff’s complaint listed both a

contract claim and a foreclosure-of-lien claim. As ex-

plained previously, the fact that the amount owed on the

contract, and consequently the proper amount of the lien,

was determined in a separate proceeding is of no conse-

quence.

We agree with the Solution Source Court, which,

while relying on the reasoning in Bosch, noted that the

entire purpose of the Construction Lien Act could be

thwarted if lienors were able to fight valid liens in the

hope that the lien claimants would run out of resources

to continue their pursuit and then only pay right before

The amounts owed on a contract and on a lien are inextricably linked.

MCL 570.1107(1) provides that “[a] construction lien acquired pursuant

to this act shall not exceed the amount of the lien claimant’s contract less

payments made on the contract.” See also C D Barnes, 300 Mich App at

419, 427-428. And MCL 570.1107(6) provides that

[i]f the real property of an owner or lessee is subject to multiple

construction liens, the sum of the construction liens shall not

exceed the amount the owner or lessee agreed to pay the person

with whom he or she contracted...less payments made by or

on behalf of the owner or lessee....

212 306 M

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203 [July

trial in an attempt to circumvent the attorney-fee

provision of MCL 570.1118(2). Solution Source, 252

Mich App at 380-381. Accordingly, not allowing the

award of attorney fees just because a lienor paid off a

lien before a court actually ruled on a lien claimant’s

claim of foreclosure would be contrary to the purpose of

the act. See id. at 381 (stating that “satisfaction of a lien

does not bar a lien claimant who is the prevailing party

from recovering its appellate and postjudgment attor-

ney fees incurred in connection with enforcement of its

lien”); Bosch, 100 Mich App at 296.

Defendant’s and the circuit court’s reliance on HA

Smith Lumber & Hardware Co v Decina, 480 Mich 987

(2007), is misplaced. In an order, our Supreme Court

ruled in Decina that the subcontractor plaintiffs were

not able to recover attorney fees under the Construc-

tion Lien Act because they did not “prevail on [their]

lien foreclosure action.” Id. at 988. But the facts in

Decina are easily distinguishable because the subcon-

tractors had liens that never attached to the property.

H A Smith Lumber & Hardware Co v Decina, 258 Mich

App 419, 424, 431; 670 NW2d 729 (2003), vacated in

part 471 Mich 925 (2004).

The liens could not attach

because the homeowners, who contracted with the gen-

eral contractor, had paid the entire contract amount.

Decina, 258 Mich App at 424; see also MCL 570.1107(1)

and (6) (indicating that any lien amount cannot exceed the

amounts owed on the original construction contract).

Accordingly, the Supreme Court aptly concluded that in

light of no lien legally being able to attach to the property,

it was impossible for the subcontractors to have prevailed

on their lien claims, which is a prerequisite for being able

to collect attorney fees under MCL 570.1118(2).

The Supreme Court’s order did not provide the background facts, so

we refer to this Court’s prior opinion.

2014] R

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In the present case, it is undisputed that the land-

owner, defendant, did not pay the full amount of the

contract price to the general contractor, plaintiff. Thus,

these facts are distinguishable from those in Decina,

and there was no question that plaintiff’s lien had,

indeed, attached to the property. Thus, we conclude

that the Supreme Court’s decision in Decina simply is

not applicable.

Therefore, we hold that pursuant to Bosch and

Solution Source, plaintiff was a prevailing lien claimant

under MCL 570.1118(2). The fact that the lien amount

was established by an arbitrator instead of a court or

jury does not compel us to reach a different conclusion.

As a result, we vacate the portion of the circuit court’s

opinion and order denying plaintiff’s request for attor-

ney fees because the circuit court erroneously believed

that it lacked discretion to award attorney fees. How-

ever, contrary to plaintiff’s view, the circuit court is not

required to award attorney fees on remand. Instead, on

remand, the circuit court simply is to exercise its

discretion in deciding whether to award attorney fees.

MCL 570.1118(2) states that “[t]he court may allow

reasonable attorneys’ fees to a lien claimant who is the

prevailing party.” (Emphasis added.) It is well estab-

lished that the use of the word “may” connotes permis-

sive, not mandatory, action. AFSCME v Detroit, 267

Mich App 255, 260; 704 NW2d 712 (2005).

The portion of the circuit court’s order denying

plaintiff’s request for attorney fees is vacated, and we

remand this case for proceedings consistent with this

opinion. We do not retain jurisdiction. No costs

awarded, as neither party prevailed in full on appeal.

MCR 7.219.

ANSEN

,P.J., and S

AAD

, J., concurred with D

ONOFRIO

,J.

214 306 M

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203 [July

NICHOLS v HOWMET CORPORATION (ON REMAND)

Docket No. 303783. Submitted May 15, 2014, at Lansing. Decided July 24,

2014, at 9:05 a.m. Leave to appeal sought.

Edwin A. Nichols injured his cervical spine in 1989 and reinjured

it in 1993 while working for Howmet Corporation. Pacific

Employers Insurance Company/CIGNA was Howmet’s workers’

compensation insurer at those times. In 1998, a magistrate

found that the 1993 injury partially disabled Nichols and that

he could return to light-duty work. The magistrate determined

that Nichols’s average weekly wage on January 28, 1993, was

$635. Nichols returned to work at a lower wage than he earned

before the 1993 cervical-spine injury. In 1998, Nichols injured

his low back while engaged in light-duty work. At that time,

Howmet was known as Cordant Technologies and American

Manufacturers Mutual Insurance was Cordant’s workers’ com-

pensation insurer. Following the low-back injury, a magistrate

awarded Nichols an open award of wage-loss benefits. The

magistrate found that Nichols’s average weekly wage at the

time of his 1998 low-back injury was $567.70. The Workers’

Compensation Appellate Commission ordered that American

must pay benefits related to the low-back injury and Pacific

must pay benefits related to the cervical-spine injury, including

wage-loss benefits. Howmet and Pacific appealed and Nichols

cross-appealed. Pacific contended that, if it is liable for wage-

loss benefits, it is only obligated to pay the difference above the

wage loss attributable to the 1998 low-back injury. The Court of

Appeals affirmed, concluding that it could not reach the issue

because Pacific did not raise the issue before the commission

and the commission did not address it. Nichols v Howmet Corp,

302 Mich App 656 (2013). The Michigan Supreme Court, in lieu

of granting leave to appeal, determined that Pacific did raise the

issue before the commission and that the commission had

implicitly rejected Pacific’s argument. The Supreme Court

vacated that portion of the Court of Appeals’ opinion and

remanded the matter to the Court of Appeals, ordering the

Court to address whether Pacific is only obligated to pay

differential wage-loss benefits beyond those that American

must pay for the wage loss attributable to the 1998 low-back

2014] N

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injury. Nichols v Howmet Corp, 495 Mich 988 (2014). The

Michigan Property & Casualty Association was substituted for

American on appeal. For the sake of clarity, the Court of Appeals

continued to refer to the defendant insurance carriers as Pacific

and American in its opinions.

On remand, the Court of Appeals held:

1. The Court of Appeals may order the allocation of liability or

reimbursement if either is warranted in this case. Although the

Legislature has provided rules for allocating liability for wage-loss

benefits, this case involves none of the specific circumstances

addressed by the rules.

2. MCL 418.301(5)(e), as constituted at the time applicable to

this case, provides that a disabled employee who works less than

100 weeks and loses his or her job for whatever reason shall receive

compensation based on his or her wage at the original date of

injury.

3. Pacific is only liable for the wage-loss benefits above those

that American should pay for the 1998 low-back injury.

4. The commission erred when it declined to hold American

liable for wage-loss benefits related to the 1998 low-back injury.

The commission correctly determined that Pacific was liable to pay

benefits based on Nichols’s wages at the time of the original injury.

The commission should have considered general principles of

workers’ compensation law to determine whether allocation was

appropriate.

5. To hold the first insurer liable for the employee’s entire

amount of wage-loss benefits under MCL 418.301(5)(e), as

constituted at the time applicable to this case, when a second

disabling injury causes the employee to lose his or her job defies

principles of causation in workers’ compensation law for two

reasons. First, an employee’s entitlement to wage-loss benefits

from an employer is based on the employee’s reduction in

wage-earning capacity. Nichols’s 1993 cervical-spine injury did

not cause the vast majority of his wage loss. His 1998 low-back

injury caused much of his wage loss. Second, an employee’s

postinjury earnings or ability to earn operates as a credit and

mitigates the employer’s liability to pay wage-loss benefits.

Nichols’s earnings after his 1993 cervical-spine injury mitigated

Pacific’s liability to pay wage-loss benefits. Nichols’s 1998

low-back injury caused his involuntary removal from the work-

force and ended the mitigation of Pacific’s liability to pay

wage-loss benefits. American was the workers’ compensation

insurer for any injury at that time. It is logical that American

216 306 M

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215 [July

should reimburse Pacific when Nichols’s 1998 low-back injury

ended the mitigation of Pacific’s liability to pay wage-loss

benefits.

6. Under the circumstances of this case, American is respon-

sible for Nichols’s wage loss attributable to his 1998 low-back

injury and second disability and Pacific remains liable for wage-

loss benefits from the partial disability caused by the 1993

cervical-spine injury. The order of the commission allocating

liability solely to Pacific is vacated and the matter is remanded to

the commission for the allocation of liability in accordance with

this opinion.

Vacated and remanded.

McCroskey Law (by Michael J. Flynn) and John A.

Braden for Edwin A. Nichols.

Smith Haughey Rice & Roegge (by Jon D. Vander

Ploeg, Calvin J. Sterk, and Thomas R. Tasker) for

Howmet Corporation and Pacific Employers Insurance

Company/CIGNA.

Conklin Benham, PC (by Martin L. Critchell), for

Cordant Technologies and the Michigan Property & Ca-

sualty Association (substituted for American Manufactur-

ers Mutual Insurance).

ON REMAND

Before: S

ERVITTO

, P.J., and W

HITBECK

and O

WENS

,JJ.

URIAM

. This case, which involves a dispute be-

tween two insurance carriers of a single employer, How-

met Corporation, returns to this Court on remand from

the Michigan Supreme Court. The Michigan Supreme

Court has directed this Court to address whether liability

for Edwin A. Nichols’s wage-loss benefits should be allo-

cated between defendant Pacific Employers Insurance

Company/CIGNA (Pacific) and defendant American

Manufacturers Mutual Insurance (American). The Michi-

2014] N

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gan Property & Casualty Association was substituted for

American on appeal,

but for the sake of clarity, we will

continue to refer to the carriers as Pacific and American.

We conclude that, when a first injury partially disables an

employee, that employee resumes working, but then suf-

fers a second disabling injury, the first insurance carrier is

not liable for wage-loss benefits attributable to the second

disabling injury. Therefore, we vacate the Workers’ Com-

pensation Appellate Commission’s allocation of liability

for wage-loss benefits solely to Pacific and remand to the

commission for allocation of liability in accordance with

this opinion.

I. FACTS

A. BACKGROUND FACTS

This Court’s previous opinion fully states the facts of

this case.

To briefly summarize, Nichols injured his

cervical spine in 1989 and reinjured it in 1993. At those

times, Pacific was Howmet’s workers’ compensation in-

surer. In 1998, a magistrate found that Nichols’s 1993

cervical-spine injury partially disabled him and that he

could return to light-duty work. The magistrate found

that Nichols’s average weekly wage was $635 on Janu-

ary 28, 1993.

Nichols returned to work at a lower wage than he had

earned before his 1993 cervical-spine injury. In Decem-

ber 1998, while engaged in light-duty work, Nichols

injured his low back. At that time, Howmet was known

as Cordant Technologies. American was Howmet’s

workers’ compensation insurer. After Nichols’s 1998

low-back injury, a magistrate awarded Nichols an open

Nichols v Howmet Corp, 495 Mich 988 (2014).

Nichols v Howmet Corp, 302 Mich App 656; 840 NW2d 388 (2013),

vacated in part 495 Mich 988 (2014).

218 306 M

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215 [July

award of wage-loss benefits. The magistrate found that

Nichols’s average weekly wage at the time of his 1998

low-back injury was $567.70. The commission ordered

that “[American] must pay benefits related to plaintiff’s

low back injury. [Pacific] must pay benefits related to

plaintiff’s cervical injury including wage loss benefits.”

B. PROCEDURAL HISTORY

On appeal, Pacific contended that, if it is liable for

wage-loss benefits, it is only obligated to pay the difference

above the wage loss attributable to Nichols’s 1998 low-

back injury. This Court concluded that we could not reach

the issue because Pacific did not raise the issue before the

commission and the commission did not address it.

The

Michigan Supreme Court determined, however, that Pa-

cific did raise the issue before the commission and that the

commission implicitly rejected Pacific’s argument.

Ac-

cordingly, the Michigan Supreme Court vacated that por-

tion of this Court’s opinion and remanded to this Court,

ordering this Court to address whether Pacific “is only

obligated to pay differential wage loss benefits beyond

those defendant American...must pay for the plaintiff’s

wage loss due to that later injury.”

II. ALLOCATION OF LIABILITY

A. STANDARD OF REVIEW

This Court reviews de novo questions of law related

to a final order of the commission.

Nichols, 302 Mich App at 673.

Nichols, 495 Mich at 988.

Id.

DiBenedetto v West Shore Hosp, 461 Mich 394, 401; 605 NW2d 300

(2000).

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B. THIS COURT’S POWER TO ORDER ALLOCATION

OR REIMBURSEMENT

In its supplemental brief, American contends that

this Court cannot allocate liability in this instance

because specific statutory sections provide for the allo-

cation of wage-loss benefits. We disagree.

Generally, it is true that “[t]hat which is expressed

puts an end to or renders ineffective that which is

implied.”

But we conclude that this rule of statutory

interpretation does not apply in this case. The Legisla-

ture has provided rules for allocating liability for wage-

loss benefits.

The specific circumstances addressed by

the rules are exactly that—specific—and this case in-

volves none of those specific circumstances. Rather,

this case fits into the more general framework of

MCL 418.301(5).

In that subsection, the Legislature

has set out when an employee is entitled to wage-loss

benefits but has not set out who must pay benefits or

whether one insurance carrier is entitled to reimburse-

ment from another. The Legislature’s decision not to

specifically authorize allocation or reimbursement does

not prevent this Court from ordering allocation or

reimbursement.

Sebewaing Indus, Inc v Village of Sebewaing, 337 Mich 530, 545; 60

NW2d 444 (1953). See Johnson v Recca, 492 Mich 169, 176 n 4; 821 NW2d

520 (2012).

See, e.g., MCL 418.372(1)(b) (allocating liability when an employee

has two employers); MCL 418.921 (allocating liability of an employer of

an employee with a vocational disability).

MCL 418.301 was amended effective December 19, 2011, and the

relevant provisions of Subsection (5) are now contained in Subsection (9)

of the statute. References in this opinion to Subsection (5) are to

Subsection (5) as constituted at the time applicable to this case.

Stewart v Saginaw Osteopathic Hosp, 100 Mich App 502, 510; 298

NW2d 911 (1980) (reimbursement). See Arnold v Gen Motors Corp, 456

Mich 682, 691-692; 575 NW2d 540 (1998) (allocation).

220 306 M

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215 [July

Stated another way, MCL 418.301(5)(e) does not

prohibit allocation or reimbursement because it does

not address the issue. Nor has the Legislature pro-

hibited, by negative implication, allocating liability

between insurance carriers when a partially disabled

employee suffers another injury while performing

reasonable employment. We conclude that we may

order allocation or reimbursement, if either is war-

ranted.

American also argues that MCL 418.301(5)(e) pro-

vides that the employer is liable for wage loss based on

the original date of injury and thus establishes that

Pacific cannot allocate that liability. We find this argu-

ment unpersuasive because MCL 418.301(5)(e) does not

allocate liability among insurance carriers,

but instead

is simply silent on the issue.

C. DIFFERENTIAL WAGE-LOSS BENEFITS

1. LEGAL STANDARDS

An employee is disabled when the employee experi-

ences a disability covered under the workers’ compensa-

tion act that results in a reduction in wage-earning

capacity.

But an employee who is only partially disabled

retains a partial capacity for work.

The employer is not

liable for the employee’s partial capacity, and his or her

“[p]ost-injury earnings, during periods of partial disability,

operate as a credit, and in mitigation of, an employer’s

wage indemnity liability.”

The Legislature has partially

Nichols, 495 Mich at 988.

Sington v Chrysler Corp, 467 Mich 144, 155; 648 NW2d 624 (2002).

See MCL 418.361 as constituted at the time applicable to this case;

Sweatt v Dep’t of Corrections, 468 Mich 172, 181; 661 NW2d 201 (2003).

Schmaltz v Troy Metal Concepts, Inc, 469 Mich 467, 473; 673 NW2d

95 (2003) (quotation marks and citation omitted).

2014] N

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codified the favored-work doctrine in the act’s reasonable

employment provision.

Reasonable employment is

work that is within the employee’s capacity to perform that

poses no clear and proximate threat to that employee’s

health and safety, and that is within a reasonable distance

from that employee’s residence.

[

]

MCL 418.301(5)(e) provides that a disabled employee

who works less than 100 weeks and loses his or her job

“for whatever reason... shall receive compensation

based upon his or her wage at the original date of

injury.”

In Arnold, the Michigan Supreme Court held

that under such circumstances, “the original employer

is to pay benefits computed using wages at the time of

the original injury.”

But the Court declined to address

whether the original employer might be entitled to

reimbursement when the employee loses his or her job

because he or she is disabled while performing reason-

able employment.

2. APPLYING THE STANDARDS

Pacific contends that it should only be liable for the

wage-loss benefits above those that American should

pay for Nichols’s 1998 low-back injury. We agree.

Here, Pacific paid wage-loss benefits for Nichols’s

1993 cervical-spine injury. That injury partially dis-

abled Nichols, but he remained capable of earning an

average weekly wage of $567.70. In December 1998,

Derr v Murphy Motor Freight Lines, 452 Mich 375, 383; 550 NW2d

759 (1996).

MCL 418.301(9) as constituted at the time applicable to this case.

MCL 418.301(5)(e).

Arnold, 456 Mich at 691.

Id.at692n9.

222 306 M

ICH

215 [July

Nichols suffered a second, distinct injury to his low back

while performing reasonable employment. He was then

fully disabled.

We conclude that the commission erred when it de-

clined to hold American liable for wage-loss benefits

related to Nichols’s 1998 low-back injury. The commission

correctly determined that Pacific, the first insurance car-

rier, was liable to pay benefits on the basis of Nichols’s

wages at the time of the original injury.

But the commis-

sion should not have declined to order reimbursement for

Pacific simply because the Michigan Supreme Court did

not address the issue in Arnold. Accepting as we must the

Michigan Supreme Court’s determination that Pacific

raised this issue before the commission, we conclude that

the commission should have considered general principles

of workers’ compensation law to determine whether allo-

cation was appropriate.

To hold the first insurer liable for the employee’s entire

amount of wage-loss benefits under MCL 418.301(5)(e)

when a second disabling injury causes the employee to lose

his or her job defies principles of causation in workers’

compensation law for two reasons. First, an employee’s

entitlement to wage-loss benefits from an employer (or

insurance carrier) is based on his or her reduction in

wage-earning capacity.

Here, Nichols’s 1993 cervical-

spine injury did not cause the vast majority of Nichols’s

wage loss. Rather his 1998 low-back injury caused much

of that wage loss. Nichols’s ability to continue to earn

$567.70 a week while performing reasonable employ-

ment after his 1993 cervical-spine injury illustrates this

point precisely. To reiterate, Nichols’s 1998 low-back

injury separately caused much of the reduction in his

See Arnold, 456 Mich at 691.

See Sington, 467 Mich at 155; Sweatt, 468 Mich at 186.

2014] N

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) 223

wage-earning capacity.

Second, an employee’s postinjury earnings or ability

to earn operates as a credit and mitigates the employ-

er’s liability to pay wage-loss benefits.

Even after

Nichols’s 1993 cervical-spine injury, he retained some

capacity to work.

His earnings mitigated Pacific’s

liability to pay wage-loss benefits.

Nichols’s 1998

low-back injury caused his involuntary removal from

the workforce and ended the mitigation of Pacific’s

liability to pay wage-loss benefits. At that time, Ameri-

can was the worker’s compensation insurer for any

injury. It is logical that American should reimburse

Pacific when Nichols’s 1998 low-back injury ended the

mitigation of Pacific’s liability to pay wage-loss benefits.

We conclude that, under the circumstances of this

case, American, as the insurer at the time of Nichols’s

1998 low-back injury, is responsible for Nichols’s wage

loss attributable to his 1998 low-back injury and second

disability but that Pacific, as the insurer at the time of

the commission’s partial disability determination,

should remain liable for wage-loss benefits from the

partial disability caused by Nichols’s 1993 cervical-

spine injury. Our conclusion is consistent with general

disability principles concerning causation and with rea-

sonable employment principles.

III. CONCLUSION

We conclude that Pacific is only liable for wage loss

related to Nichols’s 1993 cervical-spine injury and par-

Nichols, 302 Mich App at 672. See Sington, 467 Mich at 155.

Schmaltz, 469 Mich at 473; Perez v Keeler Brass Co, 461 Mich 602,

611; 608 NW2d 45 (2000); MCL 418.301(5)(a).

See Sweatt, 468 Mich at 181.

See Schmaltz, 469 Mich at 473.

224 306 M

ICH

215 [July

tial disability, and American is liable for wage loss

related to Nichols’s 1998 low-back injury. We vacate the

commission’s allocation of liability solely to Pacific and

remand for the commission to allocate liability in accor-

dance with this opinion. We do not retain jurisdiction.

No costs under MCR 7.219 because an issue of public

interest is involved.

ERVITTO

,P.J., and W

HITBECK

and O

WENS

, JJ., con-

curred.

2014] N

ICHOLS V

OWMET

ORP

EMAND

) 225

In re LAMPART

Docket No. 315333. Submitted May 15, 2014, at Traverse City. Decided

July 31, 2014, at 9:00 a.m.

Robby Lampart entered a plea of admission to arson in the Family

Division of the Gogebic Circuit Court. The court ordered restitu-

tion in the amount of $28,210. The court ordered Lampart’s

mother, Diana Alexandroni, to make payments toward the resti-

tution obligation in the amount of $250 a month. The court

further ordered Alexandroni’s employer to withhold $62.50 from

her weekly wages to satisfy her restitution obligation. Alexandroni

subsequently suffered a heart attack and became unemployed. She

averred in an affidavit that her only source of income was $730 a

month in Social Security disability insurance (SSDI) benefits. She

asserted that any attempt by the court to enforce the restitution

order would violate 42 USC 407(a), which provides that Social

Security benefits are not subject to execution, levy, attachment,

garnishment, or other legal process. The court, Joel L. Massie, J.,

concluded that it could consider the SSDI benefits as income and

enforce the restitution order against Alexandroni after the income

was in her possession through the court’s contempt powers, but

lowered Alexandroni’s monthly payment obligation to $150 a

month. Alexandroni moved for relief from the judgment. The court

denied the motion. Alexandroni appealed by delayed leave granted.

The Court of Appeals held:

Under 42 USC 407(a), the right of any person to any future

payment under 42 USC 401 through 42 USC 434, including SSDI

benefits, shall not be transferable or assignable, at law or in equity,

and none of the moneys paid or payable or rights existing under

those sections shall be subject to execution, levy, attachment,

garnishment, or other legal process, or to the operation of any

bankruptcy or insolvency law. The protection afforded to money

received as Social Security benefits extends before and after the

benefits are received. The fact that benefits have been paid and

may be on deposit in a recipient’s bank account does not shed them

of that protection until they are in some way converted into some

other kind of asset. The terms “execution,” “levy,” “attachment,”

and “garnishment” refer to formal procedures by which one

226 306 M

ICH

226 [July

person gains a degree of control over property otherwise subject to

the control of another and generally involve some form of judicial

authorization. The term “other legal process” should be under-

stood to be a process much like the processes of execution, levy,

attachment, and garnishment. At a minimum, “other legal pro-

cess” (1) requires the use of some judicial or quasi-judicial mecha-

nism, (2) by which control over property passes from one person to

another, (3) in order to discharge or secure discharge of an existing

or anticipated liability. In this case, a judicial mechanism was

being used to discharge an existing liability. If the trial court were

to use its contempt powers so as to cause Alexandroni to satisfy her

restitution obligations from her SSDI benefits, the court’s actions

would constitute the use of a judicial mechanism to pass control

over those benefits from one person to another in violation of 42

USC 407(a), because the process employed would fall within the

definition of “other legal process.” To the extent the trial court’s

consideration of Alexandroni’s SSDI benefits as income resulted in

an order of restitution that could only be satisfied from those

benefits, the use of the court’s contempt powers to enforce the

restitution order would violate 42 USC 407(a). The mere specter of

a contempt order, however, does not necessarily constitute other

legal process under the statute, and might serve a legitimate

purpose by providing a mechanism by which an obligor’s assets

and income can be determined. Alexandroni would be entitled at

any contempt hearing, however, to use 42 USC 407(a) as a personal

defense if ordered to pay her payments to someone else, or if her

payments were ordered to be taken by legal process. If it were

determined on remand that Alexandroni’s only asset or source of

income is her SSDI benefits, 42 USC 407(a) would prohibit the use

of legal process, including by a finding of contempt, from reaching

those benefits to satisfy the restitution order. If Alexandroni were

found to have income or assets aside from her SSDI benefits, that

income and assets could be used to satisfy the restitution award.

The restitution order itself remained valid. Because Alexandroni

may have assets or receive income from other sources in the

future, the trial court did not err by refusing to cancel or modify

the restitution obligation.

Trial court determination that using the power of contempt to

enforce a restitution order would not constitute “other legal

process” under 42 USC 407(a) reversed; trial court decision

denying Alexandroni’s motion to cancel or modify her restitution

obligation affirmed; case remanded for further proceedings.

ONAYNE

RAUSE

, J., dissenting, would have affirmed the deci-

sion of the trial court. The majority’s conclusion eliminates the

2014] In re L

AMPART

227

distinction between the kinds of legal processes that the United

States Supreme Court has explained are contemplated by 42 USC

407(a) and other legal processes of any kind. As a result, trial

courts will be hamstrung and SSDI recipients will have free rein to

scoff at any law unless the violation thereof necessitates incarcera-

tion. The term “other legal process” must be read narrowly to

mean a process in the nature of garnishment. Accordingly, not all

legal processes or legal means of enforcing compliance with some

court-ordered obligation will run afoul of the protections of 42

USC 407(a). The power to punish contempt is inherent in the

courts and essential to the exercise of their functions. A holding of

civil contempt is not an exercise by the court of direct control over

the contemnor’s money, but rather a personal sanction imposed on

the contemnor. Exercising authority over a person is in the nature

of something entirely different from garnishment. The protections

of 42 USC 407(a) do not extend to precluding courts from exercis-

ing their contempt powers to compel compliance with their orders.

ONTEMPT —

AILURE TO

OMPLY WITH

ESTITUTION

RDER —

OCIAL

ECURITY

ENEFITS —

THER

EGAL

ROCESS

Under 42 USC 407(a), the right of any person to any future payment

under 42 USC 401 through 42 USC 434, including Social Security

disability insurance benefits, shall not be transferable or assign-

able, at law or in equity, and none of the moneys paid or payable or

rights existing under those sections shall be subject to execution,

levy, attachment, garnishment, or other legal process, or to the

operation of any bankruptcy or insolvency law; the protection

afforded under 42 USC 407(a) to money received as Social Security

benefits extends before and after the benefits are received; the

term “other legal process” refers to (1) the use of some judicial or

quasi-judicial mechanism, (2) by which control over property

passes from one person to another, (3) in order to discharge or

secure discharge of an existing or anticipated liability; to the

extent that a trial court’s consideration of Social Security benefits

as income results in an order of restitution that can only be

satisfied from those benefits, the use of the court’s contempt

powers to enforce the restitution order would violate 42 USC

407(a).

A. Dennis Cossi Law Office (by A. Dennis Cossi) for

Diana Alexandroni.

Before: B

ECKERING

,P.J., and R

ONAYNE

RAUSE

and

OONSTRA

,JJ.

228 306 M

ICH

226 [July

OONSTRA

, J. Appellant Diana Alexandroni, the

mother and supervisory parent of juvenile respondent

Robby Lampart, appeals by delayed leave granted

the

trial court’s order denying her motion to modify or

cancel a restitution obligation. We reject certain por-

tions of the trial court’s reasoning, and therefore re-

verse that order in part, and remand for further pro-

ceedings. We also affirm the order in part, because we at

this time agree with the trial court’s decision not to

cancel or modify the restitution obligation, inasmuch as

Alexandroni may have assets, or may in the future have

sources of income, other than her Social Security dis-

ability insurance (SSDI) benefits, from which her res-

titution obligation can be satisfied.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

In 2007, Lampart, a juvenile at the time, entered a

plea of admission to arson. Restitution was ordered in

the total amount of $28,210. The trial court subse-

quently ordered Alexandroni, on behalf of Lampart, to

pay restitution, pursuant to MCL 712A.30(15), in the

amount of $250 per month. See also In re McEvoy, 267

Mich App 55, 57-58; 704 NW2d 78 (2005). The trial

court further ordered Alexandroni’s employer to with-

hold $62.50 from her wages each week in order to

satisfy the restitution obligation.

In September 2009, Alexandroni suffered a heart

attack. Her resultant heart condition left her unem-

ployed. At the time of her heart attack, the unpaid

restitution totaled $22,960. Because Alexandroni was

unemployed, the wage garnishment of $62.50 that was

originally ordered by the trial court terminated.

In re Lampart, unpublished order of the Court of Appeals, entered

November 1, 2013 (Docket No. 315333).

2014] In re L

AMPART

229

PINION OF THE

OURT

On April 18, 2011, the trial court held a reimburse-

ment hearing regarding Alexandroni’s obligation under

the restitution order in light of the fact that garnish-

ment of her wages was no longer available. In an

affidavit, Alexandroni averred that she was unemployed

and that her only source of income was $730 per month

in SSDI benefits.

Alexandroni argued that under 42

USC 407(a), which provides an antiattachment provi-

sion for Social Security benefits, the SSDI benefits were

exempt from attachment, garnishment, or other court-

imposed obligation. 42 USC 407(a) provides:

The right of any person to any future payment under

this subchapter shall not be transferable or assignable, at

law or in equity, and none of the moneys paid or payable or

rights existing under this subchapter shall be subject to

execution, levy, attachment, garnishment, or other legal

process, or to the operation of any bankruptcy or insol-

vency law.

Alexandroni argued that any attempt to enforce the

restitution order would constitute “other legal process”

under 42 USC 407(a), and that such attempt would be

barred by the statute.

In an opinion and order dated April 27, 2011, the trial

court concluded that enforcing a restitution order un-

der the juvenile code, MCL 712A.1 et seq., did not

constitute “execution, levy, attachment, garnishment or

other legal process.” The trial court concluded that it

could consider Alexandroni’s SSDI benefits as “income”

and enforce the restitution order against Alexandroni

personally, through the power of contempt, after the

income was in her possession. The trial court reasoned

that to hold otherwise would have the effect of making

Alexandroni exempt from making payments under the

Lampart received an additional $545 per month.

230 306 M

ICH

226 [July

PINION OF THE

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restitution order.

The court therefore indicated that it

would “consider the family’s income of $1275” and,

noting that “circumstances have changed and the cur-

rent order may need to be reassessed,” that it would

schedule a new reimbursement hearing “to determine

an equitable payment.” That order was not appealed.

On May 12, 2011, the trial court entered an order for

reimbursement requiring Alexandroni to pay $150 per

month beginning on June 1, 2011, and continuing until

the balance was paid in full. That order also was not

appealed.

In 2012, Alexandroni filed a motion for relief from

judgment under MCR 2.612(C)(1)(d) and (f), seeking to

modify or cancel the obligation to make restitution

payments. In an opinion and order dated January 25,

2013, the trial court denied that motion, noting that

“[t]he crux of this case boils down to whether the

Court’s action in enforcing a restitution order subject to

contempt is ‘other legal process’ ” under 42 USC 407(a).

Citing Washington State Dep’t of Social & Health Servs

v Guardianship Estate of Keffeler, 537 US 371; 123 S Ct

1017; 154 L Ed 2d 972 (2003), the trial court applied a

narrow definition of the term “other legal process,” and

observed that it had “not pursued garnishment or

attachment like actions in enforcement.” Aside from

applying a narrow definition of “other legal process,”

the trial court stated a policy justification for its deci-

sion:

[T]he Court cannot reconcile the arguments with a com-

mon sense result. That is, how can a Social Security

Disability recipient (as opposed to a recipient of SSI, which

is minimal and means tested) be exempt when often their

income is greater than the working poor who are subject to

The trial court made a similar finding regarding Lampart’s Social

Security benefits.

2014] In re L

AMPART

231

PINION OF THE

OURT

enforcement. The guidelines promulgated by the collection

statute for juvenile courts, MCL 712A.18(6), specifically

mention Social Security Disability benefits as income that

can be considered. Those guidelines also start collecting

SOMETHING on incomes as low as $100 per week. To

allow the exemption argued for would mean that no

individual with any court obligation, no speeder, no drunk

driver, no felon whose only income was Social Security

Disability would ever have to pay restitution or court costs

or fines of any nature. That result simply does not make

sense. [Citation omitted.]

The trial court denied the motion to modify or cancel

Alexandroni’s restitution obligation. Noting that Alexan-

droni had suffered a reduction in household income be-

cause of the fact that Lampart was then in placement,

such that his SSDI benefits were being received by the

state, the trial court indicated that it would “again review

the monthly payment status at the next review hearing.”

It is this order that is the subject of this appeal.

On appeal, Alexandroni requests that this Court

“amend[]” the trial court’s April 27, 2011 order “to

provide that the Social Security benefits of [Alexandroni

and Lampart] are exempt,” and that the “obligation

requiring payment of restitution be canceled” because

Alexandroni’s sole source of income is her SSDI benefits.

II. ANALYSIS

Resolution of this issue involves an issue of statutory

interpretation, which we review de novo. Edge v Edge,

299 Mich App 121, 127; 829 NW2d 276 (2012).

A. RESTITUTION STATUTE

Under the Michigan Constitution, crime victims are

entitled to restitution. Const 1963, art 1, § 24. Under

the Crime Victim’s Rights Act (CVRA), MCL 780.751 et

232 306 M

ICH

226 [July

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seq., it is mandatory, not discretionary, for trial courts

to order convicted defendants to “make full restitu-

tion to any victim of the defendant’s course of con-

duct that gives rise to the conviction....”People v

Fawaz, 299 Mich App 55, 65; 829 NW2d 259 (2012),

quoting MCL 780.766(2).

The defendant’s ability to

pay is irrelevant; only the victim’s actual losses from

the criminal conduct are to be considered. Id.at65;

People v Crigler, 244 Mich App 420, 428; 625 NW2d 424

(2001) (“Since June 1, 1997, MCL 780.767; MSA

28.1287(767) no longer includes the defendant’s ability

to pay among the factors to be considered when deter-

mining the amount of restitution.”).

Under the juvenile code, MCL 712A.1 et seq., restitu-

tion also is required, and many of its provisions are

substantively identical to those of the CVRA. In re

McEvoy, 267 Mich App at 63. “The juvenile code, MCL

712A.30, provides for restitution of a loss sustained by

a victim of a juvenile offense[.]” Id. at 60. An order of

restitution under the juvenile code is “a judgment and

lien against all property of the individual ordered to pay

restitution for the amount specified in the order of

restitution.” MCL 712A.30(13). If a juvenile is or will be

unable to pay a restitution order, “the court may order

the parent or parents having supervisory responsibility

for the juvenile...topayanyportion of the restitution

ordered that is outstanding.” MCL 712A.30(15). When

ordering a parent to pay restitution, however, the trial

court “shall take into account the financial resources of

the parent and the burden that the payment of restitu-

tion will impose, with due regard to any other moral or

legal financial obligations that the parent may have.”

MCL 780.766 concerns restitution following conviction of a felony.

MCL 780.794 is the similarly mandatory statute in the CVRA pertaining

to juvenile adjudications.

2014] In re L

AMPART

233

PINION OF THE

OURT

MCL 712A.30(16). Regarding enforcement, MCL

712A.30(13) provides that “[a]n order of restitution

may be enforced by the prosecuting attorney, a victim, a

victim’s estate, or any other person or entity named in

the order to receive the restitution in the same manner

as a judgment in a civil action or a lien.”

B. 42 USC 407(a)

Alexandroni contends that 42 USC 407(a) prohibits a

state court from enforcing the restitution order against

her because her sole income is her SSDI benefits. 42

USC 407(a) acts as an antiattachment statute for Social

Security benefits, and provides:

The right of any person to any future payment under

this subchapter shall not be transferable or assignable, at

law or in equity, and none of the moneys paid or payable or

rights existing under this subchapter shall be subject to

execution, levy, attachment, garnishment, or other legal

process, or to the operation of any bankruptcy or insol-

vency law.

The protection afforded to money received as Social

Security benefits extends before and after the benefits

are received. Philpott v Essex Co Welfare Bd, 409 US

413, 415-417; 93 S Ct 590; 34 L Ed 2d 608 (1973). See

also State Treasurer v Abbott, 468 Mich 143, 155; 660

NW2d 714 (2003); Whitwood, Inc v South Blvd Prop

Mgt Co, 265 Mich App 651, 654; 701 NW2d 747 (2005).

The fact that the payments have been made does not

make them lose their character as Social Security

benefits or make them subject to legal process. To the

contrary, the protections of 42 USC 407(a) apply, by

their terms, to “moneys paid or payable” (emphasis

added); the fact that benefits have been paid and may be

on deposit in a recipient’s bank account does not shed

them of that protection until they are in some way

234 306 M

ICH

226 [July

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converted into some other kind of asset. Philpott, 409

US at 415-417. Thus, even after a recipient receives

SSDI benefits and deposits them into a bank account,

the SSDI benefits are still protected by 42 USC 407(a).

Whitwood, 265 Mich App at 654. When a state court

order attaches to Social Security benefits in contraven-

tion of 42 USC 407(a), the attachment amounts to a

conflict with federal law, and such a conflict is one “that

the State cannot win.” Bennett v Arkansas, 485 US 395,

397; 108 S Ct 1204; 99 L Ed 2d 455 (1988). Other

jurisdictions have held that a state court

cannot order

restitution to be paid from a defendant’s Social Security

benefits. See, e.g., State v Eaton, 323 Mont 287, 294;

2004 Mont 283; 99 P3d 661 (2004).

C. OTHER LEGAL PROCESS

In the case at bar, it appears undisputed that, at least

as of the trial court’s April 27, 2011 order, Alexandro-

ni’s only income came from her SSDI benefits. It is also

undisputed that Alexandroni’s SSDI benefits were not

18 USC 3613(a) provides:

The United States may enforce a judgment imposing a fine in

accordance with the practices and procedures for the enforcement

of a civil judgment under Federal law or State law. Notwithstand-

ing any other Federal law (including section 207 of the Social

Security Act), a judgment imposing a fine may be enforced against

all property or rights to property of the person fined[.]

This provision also applies to the United States when it seeks enforce-

ment of restitution orders. 18 USC 3613(f). Accordingly, although state

courts may not enforce restitution orders or fines against an individual’s

Social Security benefits, “[t]he United States may enforce” fines or

restitution orders against an individual’s Social Security benefits. 18

USC 3613(a) and (f) (emphasis added).

When interpreting federal statutes, we may look to decisions from

other jurisdictions for guidance. See Abela v Gen Motors Corp, 469 Mich

603, 606-607; 677 NW2d 325 (2004).

2014] In re L

AMPART

235

PINION OF THE

OURT

subject to direct execution, levy, attachment, or garnish-

ment, nor did the trial court employ any of those

mechanisms. Rather, the issue is whether the trial

court’s decision to consider Alexandroni’s SSDI ben-

efits, after they were received, as income reachable

through enforcement of the restitution order under the

court’s powers of contempt, amounted to “other legal

process” and thus violated 42 USC 407(a).

In Keffeler, 537 US at 382-386, the United States

Supreme Court had occasion to interpret the phrase

“other legal process” as it is used in 42 USC 407(a). Before

doing so, the Court examined the terms “ ‘execution, levy,

attachment, [and] garnishment,’ ” and explained that

“[t]hese legal terms of art refer to formal procedures by

which one person gains a degree of control over prop-

erty otherwise subject to the control of another, and

generally involve some form of judicial authorization.”

Id. at 383. Noting that the term “other legal process”

followed the use of those more specific terms, the Court

concluded that 42 USC 407(a) uses the term “other

legal process” restrictively. Id. at 384. The Court em-

ployed the interpretive canons of noscitur a sociis and

ejusdem generis, under which when “general words

follow specific words in a statutory enumeration, the

general words are construed to embrace only objects

similar in nature to those objects enumerated by the

preceding specific words.” Id. at 384 (citations and

quotation marks omitted). Thus, the Court concluded,

the term “other legal process”

should be understood to be process much like the processes

of execution, levy, attachment, and garnishment, and at a

minimum, would seem to require utilization of some judi-

cial or quasi-judicial mechanism, though not necessarily an

elaborate one, by which control over property passes from

one person to another in order to discharge or secure

236 306 M

ICH

226 [July

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discharge of an allegedly existing or anticipated liability.

[Id. at 385.]

The Court explained that its definition was consistent

with definitions of “other legal process” that were

contained in the Social Security Administrator’s Pro-

gram Operations Manual System (POMS). Id. One such

definition explained “other legal process” as “ ‘the

means by which a court (or agency or official authorized

by law) compels compliance with its demand; generally,

it is a court order.’ ” Id., quoting POMS GN 02410.001

(2002). Elsewhere, the POMS defined “other legal pro-

cess” as “ ‘any writ, order, summons or other similar

process in the nature of garnishment.’ ” Id.

In applying Keffeler, it is important to note the

particular circumstances that were presented in that

case. Specifically, Washington’s Department of Social

The Supreme Court in Keffeler made clear that its definition of “other

legal process” was a product of statutory interpretation, which was

merely “confirmed” by the “legal guidance” in the POMS. Keffeler, 537

US at 385. Obviously, revisions over time to the POMS do not alter the

statute, or the Supreme Court’s interpretation of it in Keffeler. We note,

in any event, that the current version of POMS GN 02410.200 (2006)

(entitled “Garnishment”), which relates to a specific statutory exception

for enforcing child support or alimony obligations, defines “legal process”

for that purpose as “any writ, order, summons, or notice to withhold...

or other similar process in the nature of garnishment.” Also, POMS

GN 02410.001 (2014) (entitled “Assignment of Benefits”) applies gener-

ally to the statute’s sections that “prohibit the transfer of control over

money to someone other than the beneficiary, recipient, or the represen-

tative payee.” Whereas that provision formerly defined “legal process” as

quoted in Keffeler, 537 US at 385, the current version reflects no

definition, but instead states generally that, apart from certain excep-

tions that are not applicable here, 42 USC 407(a) “protect[s] payments as

long as we can identify them as [Social Security benefits].” Id. The

provision cites as an example “a situation in which [Social Security

benefits] are the only direct deposit payments in the account,” and notes

that a “beneficiary or recipient can use [42 USC 407(a)] as a personal

defense if ordered to pay his or her payments to someone else, or if his or

her payments are ordered to be taken by legal process.” Id.

2014] In re L

AMPART

237

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and Health Services provided foster care for children

who were in need of such care, some of whom were

recipients of Social Security benefits. The department

was the “representative payee” for those children and,

as such, the department directly received the children’s

Social Security benefits. The suit alleged that the de-

partment’s use of those benefits to reimburse itself for

the costs of foster care violated 42 USC § 407(a).

After defining the term “other legal process,” the

Supreme Court rejected the notion that the depart-

ment’s “efforts to become [the children’s] representa-

tive payee and its use of [their] benefits in that capac-

ity” fit within the definition. Id. at 386. Rather, “the

department’s reimbursement scheme operates on funds

already in the department’s possession and control,

held on terms that allow the reimbursement.” Id.

It is significant that the alleged “legal process” in

Keffeler involved no resort whatsoever to the judicial

process. For that reason, the Court contrasted the

situation before it with one where there was “utiliza-

tion of some judicial or quasi-judicial mechanism,

though not necessarily an elaborate one, by which

control over property passes from one person to another

in order to discharge or secure discharge of an allegedly

existing or anticipated liability.” Id. at 385. As the

Supreme Court ruled, “other legal process” (1) requires

the use of some judicial or quasi-judicial mechanism, (2)

by which control over property passes from one person

to another, (3) in order to discharge or secure discharge

of an existing or anticipated liability.

Unlike in Keffeler, we find that a judicial mechanism

is being used here. Indisputably, resort is being made to

the courts to secure payment. We further find that the

judicial mechanism is being used to secure the dis-

charge of an existing liability, i.e., restitution. The

238 306 M

ICH

226 [July

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question, therefore, is whether it is being used to pass

control over property from one person to another, in a

manner that runs afoul of 42 USC 407(a).

We find that the reasoning of the trial court, if

effectuated through its contempt powers so as to cause

Alexandroni to satisfy her restitution obligations from

her SSDI benefits, would be the use of a judicial

mechanism to pass control over those benefits from one

person to another. Thus, it would constitute “other

legal process” that is prohibited under 42 USC 407(a).

The process by which the trial court would enforce the

restitution order would be the employment of its civil-

contempt powers. Civil contempt is defined as “[t]he

failure to obey a court order that was issued for another

party’s benefit.” Black’s Law Dictionary (9th ed), p 360.

“A civil-contempt proceeding is coercive or remedial in

nature.” Id.

When used in this manner, the court’s use of its

civil-contempt powers to enforce a restitution order

would act as a process much like the processes of

execution, levy, attachment, and garnishment, because

in that context, the process would involve a formal

procedure by which the restitution victim, through the

trial court, would gain control over Alexandroni’s SSDI

benefits. See Keffeler, 537 US at 383-385. Indeed, Kef-

feler noted that the POMS defined “legal process” as it

was used in 42 USC 407(a) as “the means by which a

court...compels compliance with its demand; gener-

ally, it is a court order.” Id. at 385 (citation and

quotation marks omitted).

In this case, the court’s

As noted, the current version of the POMS does not expressly use this

definition, but it continues to describe 42 USC 407(a) as generally

providing protection to Social Security benefits, and as allowing the

recipient to use 42 USC 407(a) “as a personal defense if ordered to pay his

or her payments to someone else, or if his or her payments are ordered to

be taken by legal process.” POMS GN 02410.001 (2014).

2014] In re L

AMPART

239

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demand was the restitution order, and the court would

compel compliance with that demand through its civil-

contempt powers. Consequently, if the trial court were

in fact to use its contempt powers in a manner as would

compel Alexandroni to satisfy her restitution obliga-

tions using her SSDI benefits, we would find that the

process employed falls within the definition of “other

legal process” as the term is used in 42 USC 407(a).

In this case, it appears undisputed that Alexandro-

ni’s only source of income, at least as of the April 27,

2011 trial court order, was her SSDI benefits. The

trial court clearly was aware of this, and nonetheless

decided to consider her SSDI benefits as income for

purposes of fashioning a restitution order subject to

contempt. While we find no error merely in the trial

court’s consideration of Alexandroni’s SSDI benefits

as income, because 42 USC 407(a) does not directly

proscribe such consideration, we hold that, to the

extent the trial court’s consideration of those benefits

results in an order of restitution that could only be

satisfied from those benefits, the use of the court’s

contempt powers then would violate 42 USC 407(a).

As noted, the protection afforded to SSDI benefits

extends after those benefits are received. Philpott,

409 US at 415-417; State Treasurer, 468 Mich at 155;

Whitwood, 265 Mich App at 654. See also United

States v Smith, 47 F3d 681, 684 (CA 4, 1995) (holding,

under a federal statute employing similar language to

42 USC 407(a), that a court could not order restitu-

tion against benefits after they were received because

“[t]he government should not be allowed to do indi-

rectly what it cannot do directly[,]” meaning that it

could not require the defendant “to turn over his

benefits as they are paid to him”). As we explained in

Whitwood, 265 Mich App at 654:

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Plainly, pursuant to 42 USC 407(a), money received as

social security benefits is not subject to execution or

garnishment even after received and deposited by the

recipient. Therefore, the trial court clearly erred when it

found that the protection against garnishment ended when

the social security proceeds were deposited into defen-

dants’ account.

It appears to us that the trial court carefully avoided

holding Alexandroni in contempt, yet came perilously

close to using the threat of its contempt powers to

compel Alexandroni to satisfy her restitution obliga-

tions from her SSDI benefits, which would violate 42

USC 407(a). On remand, the trial court should be

careful to avoid any order that in fact would compel

Alexandroni to satisfy her restitution obligation from

the proceeds of her SSDI benefits. That said, the

current record does not reflect whether Alexandroni

possesses any assets, other than as generated by her

SSDI benefit income, from which her restitution might

be satisfied. Nor does the record reflect whether Alex-

androni’s income remains solely her SSDI benefits, as

her income and income sources conceivably could

change over time. Those are matters that the trial court

should explore on remand.

We note that it could be argued that, in imposing a civil

contempt, a court does not touch a contemnor’s money

directly, but rather imposes a personal sanction on the

contemnor that will be lifted if the contemnor chooses to

comply. In other words, civil contempt imposes a choice;

perhaps a choice in which neither alternative is appealing,

but nonetheless a choice that the contemnor is in fact free

to make. However, we find this argument not to be

compelling when the circumstances are such that a con-

tempt finding necessarily requires a contemnor to satisfy

the legal obligation that is the subject of the contempt

order by invading a monetary source that the court is not

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allowed to reach directly. In those circumstances, the

contempt order would be the functional equivalent of an

order directly reaching the funds, such that labeling the

order as one of “contempt” rather than “garnishment”

would exalt form over substance and ignore the reality of

the circumstances. See In re Bradley Estate, 494 Mich

367, 387-388; 835 NW2d 545 (2013) (holding that the

substance of an action labeled a civil-contempt indemnifi-

cation action was a claim for tort liability despite its label).

Given that the trial court in this case has not yet held

Alexandroni in contempt, has not made a determination

with regard to whether she has any other assets (apart

from any that are proceeds of her SSDI benefits) from

which restitution may be satisfied, and has not made

any recent determination of her income sources to

ascertain whether any exist apart from her SSDI ben-

efits, we decline to determine whether circumstances

exist that might warrant a contempt order at this time.

However, on remand, the trial court should follow our

direction in this opinion, to appropriately (and perhaps

periodically) ascertain Alexandroni’s assets and sources

of income, perhaps through a contempt hearing,

and to

enter further orders as appropriate, while avoiding any

directive, either explicit or otherwise, that will in fact

cause Alexandroni to have to invade her SSDI benefits

(or the proceeds thereof) to satisfy her continuing

restitution obligation.

Finally, we note the differing approaches of other

state and federal circuit courts regarding whether the

mere threat of contempt (as arguably already exists in

A contempt hearing can be a proper mechanism for ascertaining a

person’s assets or income for the purpose of satisfying a legal obligation.

See, e.g., Causley v LaFreniere, 78 Mich App 250, 251; 259 NW2d 445

(1977); Moncada v Moncada, 81 Mich App 26, 27-28; 264 NW2d 104

(1978).

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this case) itself amounts to “other legal process” under

42 USC 407(a). For example, in Chambliss v Buckner,

804 F Supp 2d 1240, 1255-1256 (MD Ala, 2011), the

United States District Court for the Middle District of

Alabama determined that the plaintiff, Dexter A.

Chambliss, from whom the Alabama Department of

Human Resources sought child support payments,

could not cite 42 USC 407(a) as a means to avoid a

contempt hearing. In that case, Chambliss sought to

avoid the hearing altogether and merely alleged, with-

out providing support, that Social Security benefits

were his only source of income. Id. Similarly, in Daniel-

son v Evans, 201 Ariz 401, 412-413; 36 P3d 749 (Ariz

App, 2001), the court held that a contempt order

requiring the defendant, Donald Evans, to pay attorney

fees to the plaintiff, Susan Danielson, did not violate 42

USC 407(a). Significantly, however, the court did not

expressly require Evans to satisfy his obligations with

his SSDI benefits. Id.

By contrast, the court in Becker Co Human Servs v

Peppel, 493 NW2d 573, 575 (Minn App, 1992), con-

cluded that “an implied or express threat of formal legal

sanction constitutes a ‘legal process’ within the mean-

ing of section 407(a).” The trial court in that case had

issued a child support order based on “the only source of

income available to [the mother]: her [Supplemental

Security Income (SSI)] benefits of $407 per month,”

and its order expressly stated that the mother “would

be held in contempt if she failed to comply.” Id. at 574.

Consequently, the appellate court held that the trial

court’s “threat to hold [the mother] in contempt cer-

Although 42 USC 407(a) does not itself distinguish between SSDI

benefits and SSI benefits, the Becker Court stressed that SSI benefits

(unlike SSDI benefits, as the trial court in this case correctly noted) are

intended to protect indigent persons. Becker, 493 NW2d at 574.

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tainly qualifies as a legal process under section 407(a).”

Id. at 575. See also Fetterusso v New York, 898 F2d 322,

328 (CA 2, 1990) (stating in dicta that “Congress

intended the words ‘or other legal process’ to embrace

not only the use of formal legal machinery but also

resort to express or implied threats and sanctions”);

First Nat’l Bank & Trust Co of Ada v Arles, 816 P2d

537, 541; 1991 Okla 78 (Okla, 1991) (“The contempt

action was the procedure by which the court was

attempting, through legal channels, to obtain jurisdic-

tion over [the defendant] and force repayment of a...

debt. As such, it is a ‘legal process’ forbidden by Section

407(a).”).

Although we find that a contempt order that would

cause Alexandroni to satisfy her restitution obligations

from her SSDI benefits would be the use of “other legal

process” in contravention of 42 USC 407(a), we decline

to conclude that the mere specter of a contempt hearing

necessarily constitutes such “other legal process.” That

is, although we recognize that there is some level of

threat and coercion inherent in a prospective contempt

proceeding itself, the specter of contempt also can serve

the legitimate purpose of providing a mechanism by

which an obligor’s assets and income can be deter-

mined. See Causley v LaFreniere, 78 Mich App 250, 251;

259 NW2d 445 (1977); Moncada v Moncada, 81 Mich

App 26, 27-28; 264 NW2d 104 (1978). As noted in the

current version of the POMS, Alexandroni is entitled at

any contempt hearing to use 42 USC 407(a) “as a

personal defense if ordered to pay...herpayments to

someone else, or if...herpayments are ordered to be

taken by legal process.” POMS GN 02410.001 (2014).

We also note that the trial court found, as a matter of

policy, that SSDI benefits should be used to satisfy

restitution or court-imposed fines because SSDI ben-

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efits are not awarded on the basis of need. The trial

court determined that SSDI benefits should not be

exempt from satisfying costs or fines because, unlike a

recipient of SSI benefits, an SSDI recipient’s benefits

are not based on need, and may in certain instances be

“greater than the working poor who are subject to

enforcement.” The trial court correctly recognized that

SSDI benefits, unlike SSI benefits, are not based on

need. Mathews v Eldridge, 424 US 319, 340-341; 96 S Ct

893; 47 L Ed 2d 18 (1976). However, the trial court’s

reasoning is flawed. 42 USC 407(a) represents a clear

choice by Congress to exempt all Social Security ben-

efits, whether from SSDI or SSI, from any legal process,

save for a few enumerated exceptions not at issue in

this case. See Bennett, 485 US at 398 (explaining that 42

USC 407(a) demonstrates Congress’s “clear intent...

that Social Security benefits not be attachable”);

Philpott, 409 US at 417 (explaining that 42 USC 407(a)

acts as a “broad bar against the use of any legal process

to reach all social security benefits”) (emphasis added).

Accordingly, regardless of whether Alexandroni’s SSDI

benefits were based on need, those benefits could not be

used to satisfy court-ordered restitution.

Although the trial court questioned the “sense” of

that result, policymaking, whether sensible or not, is

the province of the legislative branch of government,

not the judicial. See Devillers v Auto Club Ins Ass’n, 473

Mich 562, 581; 702 NW2d 539 (2005). Consequently, the

“sense” of the policy, from a policymaking perspective,

is not ours to judge.

If it were determined that Alexandroni’s only asset,

or source of income, is and remains from SSDI benefits,

42 USC 407(a) prohibits the use of legal process—

including by a finding of contempt—from reaching

those benefits to satisfy the restitution order. See

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Philpott, 409 US at 417. If, however, Alexandroni is

found to have income aside from her SSDI benefits, or

other assets that are derived from other sources, that

income or those assets could be used to satisfy the

restitution award. The restitution order itself remains

valid. Indeed, Alexandroni’s receipt of SSDI benefits

does not immunize her from the restitution order;

rather, it merely prohibits the trial court from using

legal process to compel satisfaction of the restitution

order from those benefits. Because it is possible that

Alexandroni may have assets or may receive income

from other sources in the future, we affirm the trial

court’s refusal to cancel or modify Alexandroni’s resti-

tution obligation.

The trial court’s contempt powers similarly remain a

valid tool in enforcing the restitution order, and our

decision today should not be read otherwise. Again, a

contempt hearing can be an appropriate vehicle for

determining income and assets from which the restitu-

tion order may properly be enforced. See Causley,78

Mich App at 251; Moncada, 81 Mich App at 27-28.

However, the trial court may not compel Alexandroni to

satisfy her restitution obligation out of her SSDI ben-

efits, by a contempt finding or other legal process,

because Alexandroni is entitled to the protections of 42

USC 407(a).

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. We do

not retain jurisdiction.

ECKERING

,P.J., concurred with B

OONSTRA

,J.

ONAYNE

RAUSE

,J.(dissenting) I respectfully dissent

and would affirm the trial court. I believe that the

majority’s conclusion eliminates the distinction be-

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,J.

tween the kinds of legal processes that the United

States Supreme Court has explained are contemplated

by 42 USC 407(a) and other legal processes of any kind,

and as a result trial courts will be hamstrung and Social

Security Disability Insurance (SSDI) recipients will

have essentially free rein to scoff at any law unless the

violation thereof necessitates incarceration. I do not

believe the plain language of the statute reflects an

intent by Congress to achieve such an absurd result, so

I would not create it.

The majority’s recitation of the facts and the relevant

statutes and caselaw requires no repetition. Where I

part ways is with the majority’s conclusion that 42 USC

407(a) reflects a choice to exempt SSDI benefits from

any legal process not explicitly enumerated as an excep-

tion. The United States Supreme Court emphatically

explained that the term “other legal process” in that

statute would be a way in which a court compels

compliance with some requirement, but also that any

such process would be “ ‘in the nature of garnish-

ment,’ ” Washington State Dep’t of Social & Health

Servs v Keffeler, 537 US 371, 385; 123 S Ct 1017; 154 L

Ed 2d 972 (2003), quoting the Social Security Adminis-

tration’s Program Operations Manual System (POMS)

GN 02410.200 (2002). The United States Supreme

Court further opined that “other legal process” should

be defined narrowly rather than “in abstract breadth.”

Keffeler, 537 US at 385.

As the majority correctly notes, under 42 USC 407(a),

“moneys paid” (emphasis added) are also not subject to

“execution, levy, attachment, garnishment, or other

legal process”; the fact that such paid benefits are on

deposit in a recipient’s bank account does not shed

them of that protection until they are in some way

converted into some other kind of asset. Philpott v

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Essex Co Welfare Bd, 409 US 413, 415-417; 93 S Ct 590;

34 L Ed 2d 608 (1973). The protection against legal

processes under 42 USC 407(a) therefore continues

after the benefits are paid. In re Vary Estate, 401 Mich

340, 346-348; 258 NW2d 11 (1977).

Nevertheless, the United States Supreme Court ob-

served that the terms “ ‘execution, levy, attachment,

[and] garnishment’ ”are “legal terms of art” referring

to “formal procedures by which one person gains a

degree of control over property otherwise subject to the

control of another, and generally involve some form of

judicial authorization.” Keffeler, 537 US at 383. It

concluded that “other legal process” should therefore

refer to the same kinds of processes. Id. at 384-385.

Indeed, the Court emphasized that simply because

some manner of legal process is involved does not mean

that “other legal process” within the meaning of 42

USC 407(a) is at issue. Id. at 384. In view of this

“restrictive understanding of ‘other legal process,’ ” id.

at 386, it is clear that not all legal processes or legal

means of enforcing compliance with some court-ordered

obligation will run afoul of the protections of 42 USC

407(a). The consistent theme is that courts may not

directly assume control over the money that comes into

a person’s possession and control through SSDI pay-

ments, whether before or after those moneys are trans-

ferred.

The majority accurately notes that the factual sce-

nario in Keffeler did not entail a party resorting to

judicial process. That does not, in my opinion, invali-

date any of the Court’s reasoning. Beyond that, the

majority apparently makes an end run around the

Court’s straightforward construction by concluding

that any process that would have the ultimate result of

conveying any portion of a recipient’s SSDI proceeds

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into the hands of a court must be in the nature of

garnishment. I simply cannot agree with that conclu-

sion. The exercise of a trial court’s contempt power is

not in the same nature as the “other legal process”

contemplated by 42 USC 407(a).

The power to punish contempt has always been

considered inherent in courts and “essential to the

exercise of their functions” or “the laws would be

partially and imperfectly administered.” See United

States v Sheldon, Case No. 1315 (Mich Terr Sup Ct,

1829) (opinion by C

HIPMAN

, J.), in 5 Blume, Transac-

tions of the Supreme Court of the Territory of Michigan

1825-1836, pp 337, 344-345. This power was regarded

as being “inherent in, and as ancient as, courts them-

selves,” and, critically, in the nature of “attachment of

the offender... .” In re Chadwick, 109 Mich 588,

596-597; 67 NW 1071 (1896) (citation and quotation

marks omitted) (emphasis added). A holding of con-

tempt calculated to induce compliance with a court

order—the situation at bar—is civil contempt, as dis-

tinguished from criminal contempt, which would be

intended to punish some manner of misconduct. Spalter

v Wayne Circuit Judge, 35 Mich App 156, 160-161; 192

NW2d 347 (1971). As the majority notes, a holding of

civil contempt is not an exercise by the court of direct

control over the contemnor’s money, but rather is a

personal sanction imposed on the contemnor him- or

herself that the contemnor holds the power to lift upon

payment.

Unlike the majority, however, I do not believe this

distinction to be semantic pettifoggery without real-

world relevance. The legal processes listed in the stat-

ute and discussed by the United States Supreme Court

involved processes that either bypassed the SSDI recipi-

ent entirely or otherwise assumed control over the

2014] In re L

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,J.

money itself. Exercising authority over a person is in

the nature of something entirely different from gar-

nishment. Under a narrow reading of what 42 USC

407(a) means by “other legal process,” as the United

States Supreme Court has held is appropriate, the

protections of that statute do not extend to precluding

courts from exercising their contempt powers to compel

compliance with their orders.

That being said, I wish to emphasize that the trial

court apparently determined that Alexandroni is indi-

gent and consequently waived or suspended her pay-

ment of fees pursuant to MCR 2.002(D). Although

ability to pay is not a consideration for determining the

obligation to pay restitution, present income and re-

sources are considerations under the guidelines for

making actual payments thereon. See MCL 712A.18(6);

In re Juvenile Commitment Costs, 240 Mich App 420,

441-443; 613 NW2d 348 (2000). Incarceration for civil

contempt is limited to the extent the contemnor is

actually able to comply with the order or otherwise

purge the contempt. Shillitani v United States, 384 US

364, 371; 86 S Ct 1531; 16 L Ed 2d 622 (1966); People v

Johns, 384 Mich 325, 333; 183 NW2d 216 (1971) (stat-

ing that the opportunity to punish someone held in civil

contempt for refusing to answer the questions of a

grand jury expires with the grand jury). Although

Shillitani and Johns discussed civil contempt holdings

used to enforce compliance with grand juries, the same

principle applies here: if a person subject to a financial

obligation to the court is unable to make payments

because of destitution, the court can no more subject

the person to contempt than require payments. If that

individual claims destitution, he or she is entitled to a

hearing and determination thereof, and payments can-

not be required unless or until the person is actually

able to pay them. Put another way, the purpose and

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,J.

function of civil contempt is to deter refusals to comply

with orders, not necessarily mere failures to comply. In

re Moroun, 295 Mich App 312, 339-341; 814 NW2d 319

(2012) (opinion by K. F. K

ELLY

, J.). SSDI recipients are

in no greater danger of debtors’ prison than any other

potential contemnor, which is to say, they are not in any

such danger.

Consequently, the trial court may not compel pay-

ments in the instant case at this time by using its

contempt power, because insofar as I am aware, Alex-

androni would not be able to comply. An inability to

survive on the funds remaining after payment is, in my

opinion, functionally identical to a lack of the funds

altogether under any legal system that purports to have

any concern for justice. However, the mere fact that her

sole source of income is SSDI payments does not per se

immunize her from the theoretical possibility of being

ordered to make payments on pain of contempt. To hold

otherwise would be essentially to neuter an inherent

function of the courts and immunize recipients of SSDI

benefits—even if they have funds to make payments—

from having to pay traffic tickets, parking tickets, fines

for misdemeanors, and indeed a great many other fees

and financial obligations. Payment of SSDI benefits is

not based on indigency. And it is incompatible with

justice to prevent the courts from being able to require

persons who can comply with court orders from doing

so. Victims in any case, and perhaps here in this case,

may be on SSDI. I simply refuse to hold that victims

should pay for crimes committed against them if a

defendant has the ability to pay. The law does not

require that result, and I will not impose that result on

the victims of crime in this state.

I would therefore affirm.

2014] In re L

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,J.

In re CASEY ESTATE

Docket Nos. 314209 and 314728. Submitted May 7, 2014, at Detroit.

Decided July 31, 2014, at 9:05 a.m.

Everett and Mary Alice Casey had two children during their mar-

riage, Kathryn and Kirk Casey. Mary Alice predeceased Everett. In

1997 Everett executed a will and trust, naming in his trust

Kathryn and Kirk as his only children. After Everett died in 2012,

Kathryn filed a petition for probate in the Oakland County

Probate Court and sought to admit Everett’s 1997 will to probate.

Gerald Rossi was named special personal representative of the

estate. Renee and Bruce Keene filed demands for notice and

objections to the petition for probate, claiming that Everett was

their biological father. Renee and Bruce alleged that Everett and

their mother, Corinne Keene, had had an extramarital affair while

Corinne was married to Robert Keene, the man listed as Renee

and Bruce’s father on their birth certificates. Robert had died in

1966 and Renee and Bruce had not sought to establish Everett’s

paternity until the present probate action. The probate court,

Linda S. Hallmark, J., granted Kathryn’s motions for summary

disposition on the grounds that Renee and Bruce were not inter-

ested persons, the 1997 will was valid and unrevoked, and there

was no genuine issue of material fact that Everett did not gift the

contents of a certain safe to Bruce. The court admitted the will to

probate and ordered an evidentiary hearing to determine the

amount of money that had been in Everett’s safe at the time of his

death. Renee and Bruce each appealed. The Court of Appeals

consolidated the appeals.

The Court of Appeals held:

1. The Estates and Protected Individuals Code, MCL 700.1101

et seq., governs the question presented in this case.

2. For purposes of intestate succession, a child is to take from

his or her natural parent regardless of their marital status. MCL

700.2114(1).

3. The parents of children born during a marriage are pre-

sumed to be the natural parents of those children. MCL

700.2114(1)(a).

252 306 M

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252 [July

4. If a child is born or conceived during a marriage but is not

the issue of that marriage, the court can determine whether the

alleged father is the child’s natural one under the procedures of

the Paternity Act, MCL 722.711 et seq. MCL 700.2114(1)(b)(v).

5. The Legislature’s use of “if” in the first and second clauses

of MCL 700.2114(1)(b) sets forth the alternative conditions under

which the rest of that subsection is premised. Absent satisfaction

of one of these conditions, the remainder of subsection (1)(b) does

not come into play.

6. MCL 700.2114(5) provides the exclusive means by which the

presumption of natural parenthood set forth in MCL

700.2114(1)(a) may be overcome. It specifies that the only person

holding the right to challenge the presumption is the presumptive

natural parent. The right to attempt to overcome the presumption

ends when the presumed parent dies. Therefore, the exclusive

right to disprove the presumption that Renee and Bruce are

Robert’s natural children has terminated.

7. Three elements must be satisfied for a gift to be valid. First,

the donor must possess the intent to transfer title gratuitously to

the donee. Second, there must be actual or constructive delivery of

the subject matter to the donee, unless it is already in the donee’s

possession. Third, the donee must accept the gift. Delivery must be

unconditional and must place the property within the dominion

and control of the donee. An inter vivos gift must be fully

consummated during the donor’s lifetime and must invest owner-

ship in the donee beyond the power of recall by the donor. Before

his death, Everett not only retained control over the safe, but also

retained the power of recall. There was no delivery of a gift to

Bruce.

Affirmed.

HAPIRO

, J., concurring, concurred with the result and the

reasoning of the majority but disagreed with the majority to the

extent that the majority’s decision may be read as turning upon a

particular definition contained within a particular edition of a

particular dictionary. In the absence of a legislative designation of

a particular dictionary’s use, it cannot be said that one dictionary

is the best, let alone conclusive, determiner of legislative intent.

Prince Law Firm (by Shaheen I. Imami and Amber N.

Atkins) for Kathryn Casey.

Smith & Mabley, PLC (by John D. Mabley), for Kirk

Casey.

2014] In re C

ASEY

STATE

253

LoPrete & Lyneis, PC (by Mary M. Lyneis and

Jonathan R. Nahhat), for Gerald Rossi, special personal

representative of the estate of Everett R. Casey, de-

ceased.

Hubbell DuVall PLLC (by Clinton J. Hubbell and

Dylan J. DuVall) for Renee Keene.

Bruce Keene in propria persona.

Before: M

URRAY

,P.J., and J

ANSEN

and S

HAPIRO

,JJ.

URRAY

,P.J. This is an inheritance dispute between the

natural children of Everett and Mary Alice Casey, Kath-

ryn and Kirk Casey, and Renee and Bruce Keene, who

claim to be the offspring of Everett and their mother’s

(Corinne Keene) adulterous affair in the 1960s. Everett

and Corinne were both married during their alleged affair.

In these consolidated appeals, appellants, Renee and

Bruce Keene, appeal as of right the order granting sum-

mary disposition in favor of appellee Kathryn Casey.

Kathryn Casey filed three separate motions for summary

disposition below and argued: (1) neither Renee nor Bruce

were interested persons or heirs of the decedent, Everett;

(2) the decedent’s 1997 will is valid and unrevoked; and (3)

the decedent did not gift the contents of the safe located at

his company’s office to Bruce before his death. Renee and

Bruce challenge the probate court’s determination that

they are not interested persons or heirs of the decedent.

Bruce also challenges the probate court’s determination

that the decedent did not gift the contents of his safe to

him. We affirm.

I. FACTS AND PROCEEDINGS

The decedent, Everett Casey, and his wife, Mary

Alice, who predeceased him, had two children during

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their marriage, Kathryn and Kirk Casey. During the

latter part of the decedent’s lifetime, Bruce worked for

the decedent’s company, Precision Standard Inc. (PSI).

In July 1997, the decedent executed a will and trust,

naming in his trust Kathryn and Kirk as his only

children.

After the decedent’s death on March 24, 2012,

Kathryn filed a petition for probate and sought to admit

the decedent’s 1997 will to probate. Renee and Bruce

filed demands for notice and objections to the petition

for probate, claiming that the decedent was their bio-

logical father. Renee and Bruce alleged that the dece-

dent and their mother, Corinne Keene, had an extra-

marital affair while she was married to Robert Keene,

the man listed as Bruce and Renee’s father on their

birth certificates. Robert Keene died in 1966, and Renee

and Bruce did not seek to establish the decedent’s

paternity until the present action.

The probate court issued a thorough written opinion

and order granting Kathryn’s motions for summary

disposition on the grounds that (1) Renee and Bruce

were not interested persons, (2) the 1997 will was valid

and unrevoked, and (3) no genuine issue of material fact

existed that the decedent did not gift the contents of the

safe to Bruce. The decedent’s 1997 will was admitted to

probate and the court ordered an evidentiary hearing to

determine the amount of money in the decedent’s safe

at the time of his death.

With respect to the interested-person determination,

the probate court ruled that MCL 700.2114(1)(b)(v) was

inapplicable because the plain language of the statute

requires an initial finding either that Renee and Bruce

were born out of wedlock or that they were born or

conceived during the marriage but were not the issue of

The decedent’s will left certain property to his children, but did not

explicitly state their names.

2014] In re C

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the marriage before the court could make a natural-

parent determination under MCL 700.2114(1)(b)(v).

The court reasoned that because Corinne and Robert

Keene were married when Bruce and Renee were born,

Robert Keene is the presumed father and “there has

been no determination that the children were not an

issue of the marriage,” and thus, Renee and Bruce were

not interested persons.

II. ANALYSIS

A. INTERESTED PERSONS

Renee and Bruce contend that the probate court

erred in its interpretation and application of MCL

700.2114(1)(b)(v) and improperly granted summary dis-

position in favor of Kathryn on this basis. This chal-

lenge involves questions of statutory interpretation and

standing, which we review de novo. In re MCI Telecom

Complaint, 460 Mich 396, 413; 596 NW2d 164 (1999);

Mich Ed Ass’n v Superintendent of Pub Instruction, 272

Mich App 1, 4; 724 NW2d 478 (2006). Additionally, this

Court reviews de novo a probate court’s decision on a

motion for summary disposition. Wortelboer v Benzie

Co, 212 Mich App 208, 213; 537 NW2d 603 (1995). In

reviewing a motion brought under MCR 2.116(C)(5)

(regarding whether a party lacks the capacity to sue),

this Court considers the pleadings, depositions, admis-

sions, affidavits, and other documentary evidence sub-

mitted by the parties. McHone v Sosnowski, 239 Mich

App 674, 676; 609 NW2d 844 (2000). A motion under

MCR 2.116(C)(8) tests the legal sufficiency of the claim

as pleaded, and all factual allegations and reasonable

inferences supporting the claim are taken as true. Id.

“The paramount rule of statutory interpretation is

that we are to effect the intent of the Legislature.”

256 306 M

ICH

252 [July

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Omelenchuk v City of Warren, 466 Mich 524, 528; 647

NW2d 493 (2002) (citation and quotation marks omit-

ted). “To do so, we begin with the statute’s language. If

the statute’s language is clear and unambiguous, we

assume that the Legislature intended its plain meaning,

and we enforce the statute as written.” PNC Nat’l Bank

Ass’n v Dep’t of Treasury, 285 Mich App 504, 506; 778

NW2d 282 (2009) (citation and quotation marks omit-

ted). “In construing a statute, this Court should give

every word meaning, and should seek to avoid any

construction that renders any part of a statute surplus

or ineffectual.” In re Turpening Estate, 258 Mich App

464, 465; 671 NW2d 567 (2003). It is well established

that “to discern the Legislature’s intent, statutory

provisions are not to be read in isolation; rather, context

matters, and thus statutory provisions are to be read as

a whole.” Robinson v City of Lansing, 486 Mich 1, 15;

782 NW2d 171 (2010). Provisions not included by the

Legislature should not be included by the courts. Mich

Basic Prop Ins Ass’n v Office of Fin & Ins Regulation,

288 Mich App 552, 560; 808 NW2d 456 (2010).

At the time of the decedent’s death in 2012, the

Estates and Protected Individuals Code (EPIC), MCL

700.1101 et seq., was in effect, and accordingly governs

the question before us.

See In re Adolphson Estate, 403

Mich 590, 593; 271 NW2d 511 (1978) (“Determinations

Throughout these proceedings the parties have operated under the

correct understanding that MCL 700.1105, which relates to intestate suc-

cession, applies to this issue despite the decedent’s having a valid will at the

time of his death. That is because EPIC describes who is entitled to notice to

challenge a will, and the statutory definitions lead us to the intestate-

succession provisions of MCL 700.2114. Specifically, notice must be given to

all interested persons, MCL 700.1401, and interested persons is defined to

include a “child,” MCL 700.1105(c), and child is in turn defined as “an

individual entitled to take as a child under this act by intestate succession

from the parent whose relationship is involved.” MCL 700.1103(f). That

definition thus requires application of MCL 700.2114.

2014] In re C

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of heirs are to be governed by statutes in effect at the

time of death, and an adoption statute in effect at the

time of death is controlling.”) (citation omitted). That

statute defines “interested person”—the category of

people entitled to notice of probate proceedings—to

include a child or heir, among others. MCL 700.1105(c).

Because Renee and Bruce claim to be interested persons

as the biological children of the decedent, the parties

focused their attention on MCL 700.2114, which sets

forth the framework for establishing the parent-child

relationship for purposes of intestate succession. That

section provides, in relevant part:

(1) Except as provided in subsections (2), (3), and (4), for

purposes of intestate succession by, through, or from an

individual, an individual is the child of his or her natural

parents, regardless of their marital status. The parent and

child relationship may be established in any of the follow-

ing manners:

(a) If a child is born or conceived during a marriage,

both spouses are presumed to be the natural parents of the

child for purposes of intestate succession. A child conceived

by a married woman with the consent of her husband

following utilization of assisted reproductive technology is

considered as their child for purposes of intestate succes-

sion. Consent of the husband is presumed unless the

contrary is shown by clear and convincing evidence. If a

man and a woman participated in a marriage ceremony in

apparent compliance with the law before the birth of a

child, even though the attempted marriage may be void,

the child is presumed to be their child for purposes of

intestate succession.

(b) If a child is born out of wedlock or if a child is born

or conceived during a marriage but is not the issue of that

marriage, a man is considered to be the child’s natural

father for purposes of intestate succession if any of the

following occur:

***

258 306 M

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252 [July

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(v) Regardless of the child’s age or whether or not the

alleged father has died, the court with jurisdiction over

probate proceedings relating to the decedent’s estate de-

termines that the man is the child’s father, using the

standards and procedures established under the paternity

act, 1956 PA 205, MCL 722.711 to 722.730.

***

(5) Only the individual presumed to be the natural

parent of a child under subsection (1)(a) may disprove a

presumption that is relevant to that parent and child

relationship, and this exclusive right to disprove the pre-

sumption terminates on the death of the presumed parent.

[MCL 700.2114 (emphasis added).]

As a preliminary matter, we recognize that the statute

clearly provides that, for purposes of intestate succession,

a child is to take from his or her natural parent, “regard-

less of their marital status.” MCL 700.2114(1). The statu-

tory language also could not more clearly establish that

the parents of children born during a marriage are pre-

sumed to be the natural parents of those children. MCL

700.2114(1)(a). The statute then provides that the parent-

child relationship with the alleged natural parent can be

established in a number of ways. Relevant to this case, the

statute provides that (1) “if” a child is born or conceived

during a marriage but is not the issue of that marriage,

then (2) the court can determine whether the alleged

father is the child’s natural one under the procedures of

the Paternity Act, MCL 722.711 et seq. MCL

700.2114(1)(b)(v). In other words, “if” a person can estab-

lish that he was born or conceived during a marriage but

is not the issue of that marriage (and therefore has

disclaimed that the presumed natural father is not the

natural father), the court can then proceed to the next

step of DNA testing under the Paternity Act to determine

2014] In re C

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259

PINION OF THE

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whether the alleged father (here the decedent) is the

natural parent of Renee and Bruce.

The Legislature’s use of the word “if” at the start of

the subsection and the relevant clause is critical. The

Random House Webster’s College Dictionary (2001)

offers several definitions of “if,” the more pertinent

being: “1. in case that; granting or supposing that; on

condition that[.]” See Hottmann v Hottmann, 226 Mich

App 171, 178; 572 NW2d 259 (1997) (a dictionary

definition is appropriately used to construe undefined

statutory language according to common and approved

usage).

Thus, the use of “if” in the first and second

clauses of MCL 700.2114(1)(b) sets forth the alternative

conditions upon which the rest of that subsection is

premised. Absent satisfaction of one of those conditions,

the remainder of subsection (1)(b) does not come into

play.

Under these provisions, a presumption exists that

Bruce and Renee are the children of Corinne and

In response to our concurring colleague, we simply state that al-

though there may be more than one dictionary definition of a term, this

does not render the statute ambiguous, Lash v Traverse City, 479 Mich

180, 189 n 12; 735 NW2d 628 (2007), for when faced with multiple

definitions the courts must look to the context in which the word is used

in the statute before determining the correct definition to apply, Feyz v

Mercy Mem Hosp, 475 Mich 663, 684 n 62; 719 NW2d 1 (2006). Both the

state and federal courts long ago concluded that utilizing dictionaries is

a proper and objective means to define undefined words, with the context

of the word being important in those circumstances in which various

definitions of the same word exist. See Taniguchi v Kan Pacific Saipan,

Ltd, 566 US ___, ___; 132 S Ct 1997, 2002-2003; 182 L Ed 2d 903, 912-913

(2012) (canvassing numerous dictionaries for the common understanding

of an undefined statutory term), Spectrum Health Hosps v Farm Bureau

Mut Ins Co, 492 Mich 503, 516; 821 NW2d 117 (2012), and Feyz, 475 Mich

at 684 n 62. In any event, the definition of “if” we utilize today is

certainly a common and ordinary one as reflected in several different

dictionaries. See, e.g., The American Heritage College Dictionary (1994)

and Oxford American Dictionary (1980).

260 306 M

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252 [July

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Robert Keene, as they were married when Bruce and

Renee were conceived (a fact established by their birth

certificates). MCL 700.2114(1)(a). Because of that un-

disputed fact, Renee and Bruce established that they

were born during a marriage. But what of the proof that

they were not the issue of that marriage? Bruce and

Renee claim that DNA evidence purportedly showing

that they are the biological children of the decedent

accomplishes that task.

However, the plain language of MCL 700.2114(5)

provides the exclusive means by which the presumption

of natural parenthood set forth in MCL 700.2114(1)(a)

may be overcome, and it specifies that the only person

holding the right to challenge the presumption is the

presumptive natural parent, and the right to attempt to

overcome the presumption ends when the presumed

parent is deceased. Here, that person is Robert Keene.

However, since Robert Keene has already died, the

exclusive right to disprove the presumption that Renee

and Bruce are his natural children has terminated.

Accordingly, Renee and Bruce do not satisfy the express

criteria of MCL 700.2114(1)(b). To hold otherwise

would effectively allow an additional method to rebut

the presumption of paternity provided in subsection (5)

and render the relevant portion of subsection (1)(b)

superfluous. That we cannot do. Turpening Estate, 258

Mich App at 465.

Before moving on, we make two additional points.

First, appellants’ reliance upon In re Daniels Estate,

301 Mich App 450, 453-454; 837 NW2d 1 (2013), is of no

moment. In that case our Court ruled that MCL

700.2114(1)(b) did not first require an underlying find-

Based on this conclusion, Renee and Bruce lack standing to challenge

the admission of the decedent’s 1997 will to probate. Kathryn’s argument

that this issue has been abandoned on appeal is therefore moot.

2014] In re C

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PINION OF THE

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ing that a child is the biological child of the decedent

before MCL 700.2114(1)(b)(i) through (vi) come into

play. Id. at 459. That argument is not being made here.

Moreover, the child in that case was undisputedly born

out of wedlock. Id. at 452. Accordingly, one of the

conditions of MCL 700.2114(1)(b) was satisfied before

the Court proceeded to analyze MCL 700.2114(1)(b)(i)

through (vi). In contrast, because Renee and Bruce

cannot rebut the presumption of natural parentage of

Robert Keene, we can proceed no further under subsec-

tion (1)(b). Our holding is fully consistent with Daniels

and, just as importantly, the statute.

Second, we reject Bruce and Renee’s assertion that the

subsection of the statute allowing for testing under the

paternity act (MCL 700.2114(b)(v)) to determine who the

natural parent is would have no meaning if there was an

initial requirement to show (under MCL 700.2114(b)) that

the child was born out of wedlock (which presumably is

accomplished by DNA testing as it is under the paternity

act). What that argument glosses over is the different

purposes of each showing. It is one thing to prove that a

child’s presumed parent is not the natural parent; it is a

wholly separate thing to prove that another person is the

child’s natural parent. These are separate issues, and our

reading of the statute is that the Legislature has condi-

tioned proof of the former as being required before a child

can proceed to proof of the latter.

B. GIFT

Finally, we reject Bruce’s contention that a genuine

issue of material fact exists regarding whether the

The probate court should have relied exclusively on the statutory

language, as the citation to In re Quintero Estate, 224 Mich App 682; 569

NW2d 889 (1997), was misplaced. See In Re Daniels Estate, 301 Mich App

at 459.

262 306 M

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252 [July

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decedent made an inter vivos gift of the contents of his

safe to Bruce. Our review of this issue implicates MCR

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

MCR 2.116(C)(10) tests the factual sufficiency of the

complaint. Joseph v Auto Club Ins Ass’n, 491 Mich 200,

206; 815 NW2d 412 (2012). This Court reviews a

“motion brought under MCR 2.116(C)(10) by consider-

ing the pleadings, admissions, and other evidence sub-

mitted by the parties in the light most favorable to the

nonmoving party.” Latham v Barton Malow Co, 480

Mich 105, 111; 746 NW2d 868 (2008). Review is limited

to the evidence that was presented to the probate court

at the time the motion was decided. Innovative Adult

Foster Care, Inc v Ragin, 285 Mich App 466, 475-476;

776 NW2d 398 (2009). “Summary disposition under

MCR 2.116(C)(10) is appropriately granted if there is no

genuine issue regarding any material fact and the

moving party is entitled to judgment as a matter of

law.” GreenevAPProd, Ltd, 475 Mich 502, 507; 717

NW2d 855 (2006) (quotation marks and citations omit-

ted). A genuine issue of material fact exists when the

record, giving the benefit of reasonable doubt to the

nonmoving party, leaves open an issue upon which

reasonable minds could differ. Debano-Griffin v Lake

Co, 493 Mich 167, 175; 828 NW2d 634 (2013).

“[F]or a gift to be valid, three elements must be

satisfied: (1) the donor must possess the intent to

transfer title gratuitously to the donee, (2) there must

be actual or constructive delivery of the subject matter

to the donee, unless it is already in the donee’s posses-

sion, and (3) the donee must accept the gift.” Davidson

v Bugbee, 227 Mich App 264, 268; 575 NW2d 574 (1997).

“A gift inter vivos is not only immediate, but absolute

and irrevocable.” In re Reh’s Estate, 196 Mich 210, 217;

162 NW 978 (1917). Delivery must be unconditional and

must place the property within the dominion and con-

2014] In re C

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PINION OF THE

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trol of the donee. Osius v Dingell, 375 Mich 605, 611;

134 NW2d 657 (1965). Additionally, an inter vivos gift

“must be fully consummated during the lifetime of the

donor and must invest ownership in the donee beyond

the power of recall by the donor.” Id.

Here, as the probate court found, Bruce’s affidavit

fails to establish delivery. Indeed, although Bruce

claims the decedent provided him the combination to

the safe and indicated that the contents of the safe

belonged to him, it was the decedent who retained

dominion and control over the safe and its contents.

The safe was located in the decedent’s office at PSI, a

company exclusively owned by the decedent. In addi-

tion, the decedent retained control of the combination,

which he could change at any time, thereby precluding

Bruce’s access to the safe’s contents. This means the

decedent retained not only control, but the power of

recall. There was no delivery. Id.

Affirmed.

No costs will be allowed on appeal. MCR 7.219(A).

ANSEN

, J., concurred with M

URRAY

,P.J.

HAPIRO

,J.(concurring). I concur with the majority’s

affirmance and reasoning. I write separately only to

note my belief that this Court is capable of construing

the meaning of the word “if” without consulting a lay

dictionary. See ADVO-Systems, Inc v Dep’t of Treasury,

186 Mich App 419, 424; 465 NW2d 349 (1990) (“re-

course to the dictionary is unnecessary when the legis-

lative intent may be readily discerned from reading the

statute itself”).

I do not disagree with the general principle that we

may consult dictionaries as an aid in interpreting

statutory language. See, e.g., Hottmann v Hottmann,

264 306 M

ICH

252 [July

ONCURRING

PINION BY

HAPIRO

,J.

226 Mich App 171, 178; 572 NW2d 259 (1997). However,

to the extent that the majority’s decision may be read as

turning upon a particular definition contained within a

particular edition of a particular dictionary, I disagree.

The Legislature does not have an official dictionary nor

has it directed Michigan appellate courts to any particu-

lar dictionary or edition thereof. Accordingly, it is the

responsibility of this Court, to the best of its ability and

using all the available tools and data, to determine the

Legislature’s intent in using a certain word or phrase.

While it is proper that we consult both legal and lay

dictionaries in the execution of that responsibility, we

should not construe a particular definition in a particu-

lar edition of a particular dictionary as the definitive

interpretation of the meaning of a statute or even of a

particular word in that statute. Indeed, once recourse to

any aid—including a dictionary—outside the bare leg-

islative text, is deemed required, the statutory language

cannot fairly be viewed as plain and unambiguous on its

face and so must be interpreted in accordance with all

the rules of statutory construction rather than only the

one that allows consultation of a dictionary. Otherwise,

we risk the possibility that a court may simply justify its

own policy preferences by reference to a selected defi-

nition in a selected edition of a selected dictionary,

followed by a claim that no further analysis of legisla-

tive intent is needed or even permitted. In the absence

of a legislative designation of a particular dictionary’s

use, it cannot be said that one dictionary is the best, let

alone conclusive, determiner of legislative intent,

which, as always, is the indisputable touchstone of

statutory interpretation. See Hoffman, Parse the Sen-

tence First: Curbing the Urge to Resort to the Dictionary

When Interpreting Legal Texts, 6 NYU J Legis & Pub

Pol’y 401 (2003).

2014] In re C

ASEY

STATE

265

ONCURRING

PINION BY

HAPIRO

,J.

JANET TRAVIS, INC v PREKA HOLDINGS, LLC

Docket No. 315560. Submitted June 4, 2014, at Detroit. Decided July 31,

2014, at 9:10 a.m.

Janet Travis, Inc., brought an action in the Macomb Circuit Court

against Preka Holdings, LLC, for trademark infringement under

MCL 429.42. Plaintiff owns a restaurant and has used the sur-

name “Travis” as a mark in connection with its business since the

1940s. It registered the “TRAVIS” mark with the state in 1996

under MCL 429.34. This dispute arose in 2011, when defendant

began to operate a restaurant called “Travis Grill,” serving what it

called the “famous Travis Burger,” in the same geographical area

as plaintiff’s restaurant and licensees. Defendant moved for sum-

mary disposition, arguing that because plaintiff’s mark was a

surname, plaintiff was required to establish that it had acquired

secondary meaning by showing that the public associated plain-

tiff’s products or services with that surname. The court, Edward

A. Servitto, J., granted an injunction under MCL 429.43 against

defendant’s further use of “Travis”-related marks. Defendant

appealed.

The Court of Appeals held:

The trial court properly granted plaintiff’s request for an

injunction against defendant’s use of “Travis”-related marks un-

der MCL 429.43. Because plaintiff’s “TRAVIS” mark was regis-

tered, the burden was on defendant to show that the mark was

invalid, which it failed to do, and plaintiff showed that it had

priority in the mark, that defendant’s marks confused consumers,

and that defendant used the confusing mark in the sale or

advertising of services rendered in Michigan. Although the trial

court did not analyze the case in this manner, it reached the

correct result.

Affirmed.

1. T

RADEMARKS AND

RADE

AMES —

TATUTES —

NFRINGEMENT —

NJUNCTIONS

A plaintiff who brings a trademark infringement action under MCL

429.42 must demonstrate that (1) the mark that the plaintiff

claims to hold is valid, in that the mark actually functions as a

trademark, (2) the plaintiff used the mark before the defendant

266 306 M

ICH

266 [July

and thus holds priority in the mark, (3) consumers are likely to

confuse the defendant’s mark with the plaintiff’s mark, and (4) the

defendant used the allegedly infringing mark.

2. T

RADEMARKS AND

RADE

AMES —

EGISTRATION OF

RADEMARK —

VIDENCE

ALIDITY

In a trademark infringement action under MCL 429.42, the fact that

the trademark was registered under MCL 429.34 is prima facie

evidence that the mark is valid.

3. T

RADEMARKS AND

RADE

AMES —

EGISTRATION OF

URNAME AS

RADEMARK —

VIDENCE OF

ALIDITY —

ECONDARY

EANING —

URDEN OF

ROOF

In a trademark infringement action under MCL 429.42 to enjoin the

use of a surname that the plaintiff has registered as a mark, the

burden is on the defendant to show that the mark has failed to

acquire secondary meaning and is therefore invalid.

Aidenbaum Schloff and Bloom PLLC (by Jay M.

Schloff) for plaintiff.

Anthony Della Pelle for defendant.

Before: W

ILDER

,P.J., and S

AAD

and K. F. K

ELLY

,JJ.

AAD

, J. Defendant appeals the trial court’s order

that denied its motion for summary disposition and

granted plaintiff’s request for a permanent injunction.

For the reasons stated below, we affirm.

I. NATURE OF THE CASE

This action is a trademark-infringement suit. Michi-

gan courts have protected trademark rights since the

nineteenth century, initially under the common law of

unfair competition. Michigan law has offered this pro-

tection for the benefit of two related groups: business

owners, and the consuming public. Business owners,

who invest significant amounts of money and effort to

convince consumers to identify their marks with their

products and services, needed a remedy against com-

2014] J

ANET

RAVIS

NC V

REKA

OLDINGS

267

petitors who sought to free ride on this accumulated

goodwill by copying or pirating already established

marks.

Consumers, who associated and expected a

certain level of service and quality with certain marks,

needed protection from imposters who copied or pirated

already established marks to “pass off” their goods and

services as those of the business associated with the

marks.

For this reason, trademark law has always

involved the advancement of two distinct but related

interests: the private right of the trademark holder to

prevent others from using its mark to pass off their

goods or services as its own, and the public right to

protection from this deceptive practice.

Accordingly, Michigan courts have defined a “trade-

mark” as any “peculiar...device” or symbol used by a

manufacturer or service provider to distinguish its

goods or services from those of others.

And courts

protected a manufacturer or service provider’s exclu-

sive right to use a trademark “to protect [its] good will

against the sale of another’s product as [its own]” and

“to prevent confusion of the public regarding the origin

of goods of competing vendors.”

These interests inform the nature of plaintiff’s action

and the necessary proofs to protect its trademark. In

actions for trademark infringement, courts require a

plaintiff to show that (1) its mark was valid (i.e., was

being used in the market and was “distinctive,” in that

consumers associated the mark at issue with plaintiff’s

See Restatement Unfair Competition, 3d, § 9, comment c, pp 77-78;

and comment d, pp 79-81.

Id.

Shakespeare Co v Lippman’s Tool Shop Sporting Goods Co, 334 Mich

109, 113-114; 54 NW2d 268 (1952).

Smith v Imus, 57 Mich 456, 474; 24 NW 830 (1885).

Shakespeare Co, 334 Mich at 113.

268 306 M

ICH

266 [July

business), (2) plaintiff had priority in the mark (i.e., had

used it before defendant), (3) defendant’s allegedly in-

fringing mark was likely to confuse consumers as to the

source of defendant’s products or services, and (4) defen-

dant used the allegedly infringing mark.

Through these

requirements, courts ensure that only words, devices, and

symbols that function as trademarks—that is, those that

consumers actually identify with a certain business own-

er’s products or services—receive legal protection.

Those

words, devices, and symbols that consumers do not iden-

tify with a particular business owner’s products or ser-

vices are left unprotected, so that new competitors and

entrepreneurs could use these brand and trade names to

fairly describe their products and services.

As American business became more sophisticated

and new technologies enabled marketing and branding

to take place at a national level, several states and the

federal government codified the common law of trade-

marks. These statutes generally retain the common-law

doctrines and principles on which they were based, and

do not ordinarily disturb or eliminate the common law

of trademarks as a remedy,

but they also create regis-

tration schemes for trademarks for better organization

and ease of dispute resolution in the courts.

And,

consistent with the national trend toward codifying

trademark law, the Michigan Legislature enacted the

Trademark Act (“the Act”) in 1970, MCL 429.31 et seq.,

and it is this statute that concerns our Court today.

In this case, plaintiff owns a restaurant and has used

a surname, “Travis,” as a mark in connection with the

See, generally, Restatement Unfair Competition, 3d, § 9, comment g,

pp 82-83, and § 20, p 208.

See id., comment d, p 80.

Id., comment e, p 81.

Id.

2014] J

ANET

RAVIS

NC V

REKA

OLDINGS

269

food-service industry since the 1940s. It registered the

“TRAVIS”

mark with the state in 1996 under MCL

429.34. This dispute arose in 2011, when defendant

began to operate a restaurant called “Travis Grill” in

the same geographical area as plaintiff’s restaurant and

licensees. Plaintiff sued defendant for trademark in-

fringement under MCL 429.42 in Macomb Circuit

Court, and the court granted an injunction under MCL

429.43 against defendant’s further use of “Travis”-

related marks. Defendant appealed its loss in our Court,

and argues that the injunction should be reversed

because plaintiff’s trademark is not valid.

As at common law, a plaintiff who alleges trademark

infringement under MCL 429.42 must show: (1) its

mark is valid, (2) it has priority in the mark, (3) it is

likely consumers will confuse defendant’s mark with its

own, and (4) defendant used the allegedly infringing

mark. Because multiple individuals can possess the

same surname, and thus might need use of the surname

in a business capacity, Michigan courts generally do not

give legal protections to surnames used as marks.

However, if a surname-mark acquires “secondary

meaning”—i.e., if the consuming public comes to asso-

ciate the mark with “the product of some particular

person or factory or business” (for example,

“McDonald’s”)—the surname-mark may be entitled to

protection under MCL 429.42.

As noted, the burden of

showing a mark’s validity usually falls on the plaintiff,

but if the plaintiff registers its mark under the Act,

The mark’s registration is in all capital letters, but this distinction is

insignificant in this case.

Buscemi’s Inc v Anthony Buscemi Delicatessen & Party Store, Inc,96

Mich App 714, 717; 294 NW2d 218 (1980). See also MCL 429.32(d) and

(e).

Buscemi’s, 96 Mich App at 717; MCL 429.32(e).

270 306 M

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then the burden shifts to the defendant to demonstrate

that the plaintiff’s surname-mark is not valid.

In this case, plaintiff’s mark was registered, and,

therefore, defendant has the burden of showing that

plaintiff has either not used the “Travis” mark or that

it is not distinctive because it lacks secondary meaning

to consumers.

Because defendant provides no convincing evidence

that plaintiff’s mark is not valid, and because plaintiff

offers the remaining evidence necessary to show in-

fringement under MCL 429.42, we reject defendant’s

appeal and affirm the order of the trial court.

II. FACTS AND PROCEDURAL HISTORY

This dispute involves marks used in connection with

the promotion of plaintiff and defendant’s respective

restaurant and food-service businesses. Plaintiff and its

predecessors have used the mark “TRAVIS” in connec-

tion with the advertising and operation of various

family-owned restaurants since 1944. Plaintiff regis-

tered the mark with the state in 1996, and the registra-

tion remains valid through 2016. In 2011, defendant

bought a restaurant licensed to use plaintiff’s

“TRAVIS” mark, but defendant purchased only the

restaurant—it did not negotiate with plaintiff to retain

the license to use the “TRAVIS” mark. It is unclear

whether defendant checked with the Michigan trade-

mark office before or at the time it purchased its

restaurant, as defendant could have easily discovered

plaintiff’s registration of the “TRAVIS” mark in con-

nection with the restaurant industry. Instead, defen-

dant filed a certificate of assumed name with the state,

changed the name of the restaurant from “Travis of

Chesterfield” to “Travis Grill,” and used the latter

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name on its menus and advertising.

It also advertised

a “famous Travis burger” on its menu, with the implicit

admission that the “Travis” name has identifiable value

in the restaurant business.

After plaintiff discovered defendant’s use of the

“Travis Grill” and “famous Travis burger” marks, it

filed suit against defendant for trademark infringement

under MCL 429.42. Specifically, it alleged that its

“TRAVIS” mark was distinctive and possessed second-

ary meaning to consumers, and that defendant’s use of

the “Travis Grill” and “famous Travis burger” marks

thus confused consumers, who would wrongly believe

that defendant’s restaurant was owned, operated, li-

censed, or otherwise affiliated with plaintiff. In addition

to evidence of its registration and longstanding use of

the “TRAVIS” mark, plaintiff also submitted affidavits

from consumers, which stated that they believed defen-

dant’s restaurant was affiliated in some way with

plaintiff’s. Plaintiff asked the trial court to enjoin

defendant’s use of the “TRAVIS”-related marks.

Defendant responded with a motion for summary

disposition, and claimed that the plain language of MCL

429.42 allowed a distinction between use of plaintiff’s

admittedly protected “TRAVIS” mark and defendant’s

“Travis Grill.”

It also argued that the “TRAVIS” mark

had not acquired “secondary meaning,” and thus did

not constitute a valid trademark under MCL 429.31 et

seq.

Defendant uses alternative spellings of the word “Grill” and “Grille,”

in its advertising, menus, and business name, apparently interchange-

ably.

Defendant also erroneously claimed that it obtained a contractual

right to use the name “Travis Restaurant Chesterfield—Gratiot” from

the prior owner. However, it has abandoned this “contractual” argument

on appeal, and we therefore do not address it in our opinion.

272 306 M

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In February 2013, the trial court correctly held that

the “TRAVIS” mark had acquired secondary meaning

and was thus a valid trademark under MCL 429.31 et

seq. It accordingly denied defendant’s motion for sum-

mary disposition and granted plaintiff’s request for a

permanent injunction against defendant’s use of the

marks, a decision we affirm.

III. STANDARD OF REVIEW

A. SUMMARY DISPOSITION

A trial court’s decision on a motion for summary

disposition is reviewed de novo. Johnson v Recca, 492

Mich 169, 173; 821 NWd 520 (2012). If the trial court

does not specify under which specific subrule it granted

or denied a motion for summary disposition, and it

considered material outside the pleadings, we review

the decision under MCR 2.116(C)(10). Cuddington v

United Health Servs, Inc, 298 Mich App 264, 270; 826

NW2d 519 (2012). A motion for summary disposition

under MCR 2.116(C)(10) tests the factual sufficiency of

the complaint. Joseph v Auto Club Ins Ass’n, 491 Mich

200, 206; 815 NW2d 412 (2012). “This Court reviews

the motion by considering the pleadings, admissions,

and other evidence submitted by the parties in the light

most favorable to the nonmoving party.” Auto Club

Group Ins Ass’n v Andrzejewski, 292 Mich App 565,

569; 808 NW2d 537 (2011).

Summary disposition “is proper when there is no

genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.” McCoig

Materials, LLC v Galui Const, Inc, 295 Mich App 684,

693; 818 NW2d 410 (2012). “A genuine issue of material

fact exists when the record, giving the benefit of rea-

sonable doubt to the opposing party, leaves open an

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issue upon which reasonable minds could differ.” Bron-

son Methodist Hosp v Auto-Owners Ins Co, 295 Mich

App 431, 441; 814 NW2d 670 (2012).

B. INJUNCTIONS

MCL 429.43 explicitly states that “[a]ny owner of a

mark registered under [MCL 429.31 et seq.] may pro-

ceed by suit to enjoin” defendant’s infringement. MCL

429.43(1). A trial court’s decision to grant or deny

injunctive relief is reviewed for an abuse of discretion.

Wiggins v City of Burton, 291 Mich App 532, 558-559;

805 NW2d 517 (2011) (citations omitted). Injunctive

relief is an extraordinary remedy that issues only when

justice requires, there is no adequate remedy at law, and

there is a real and imminent danger of irreparable

injury. Id. The decision to grant injunctive relief must

be tailored to the facts of the particular case. Soergel v

Preston, 141 Mich App 585, 590; 367 NW2d 366 (1985).

Our Court weighs the following factors when it

determines whether the trial court properly issued a

permanent injunction:

(a) the nature of the interest to be protected, (b) the

relative adequacy to the plaintiff of injunction and of other

remedies, (c) any unreasonable delay by the plaintiff in

bringing suit, (d) any related misconduct on the part of the

plaintiff, (e) the relative hardship likely to result to defen-

dant if an injunction is granted and to plaintiff if it is

denied, (f) the interests of third persons and of the public,

and (g) the practicability of framing and enforcing the

order or judgment. [Wayne Co Employees Retirement Sys v

Wayne Co, 301 Mich App 1, 28; 836 NW2d 279 (2013), lv gtd

495 Mich 983 (2014) (citation and quotation marks omit-

ted).]

Courts balance the benefit of an injunction to a

requesting plaintiff against the damage and inconve-

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266 [July

nience to the defendant, and will grant an injunction if

doing so is most consistent with justice and equity.

Wayne Co Retirement Sys, 301 Mich App at 28-29.

C. THE TRADEMARK ACT

Matters of statutory interpretation are reviewed de

novo. People v Lewis, 302 Mich App 338, 341; 839 NW2d

37 (2013). When a court interprets a statute, it seeks to

ascertain and implement the intent of the Legislature.

Huron Mountain Club v Marquette Co Road Comm, 303

Mich App 312, 323; 845 NW2d 523 (2013). The Legis-

lature’s intent is best expressed through the plain

meaning of the statute’s language. Ter Beek v City of

Wyoming, 495 Mich 1, 8; 846 NW2d 531 (2014).

The Trademark Act is based on the common law, and

it is therefore appropriate, when interpreting the stat-

ute, to consider federal and state cases that apply the

common law of trademark. See MCL 429.44 (stating

that “[n]othing contained in this act shall adversely

affect the rights or the enforcement of rights in marks

acquired in good faith at any time at common law”) and

Ed Subscription Servs, Inc v American Ed Servs, Inc,

115 Mich App 413; 320 NW2d 684 (1982) (entertaining

a corporate-name dispute brought at common law after

passage of Trademark Act). It is also “appropriate to

look to federal case law when interpreting a state

statute which parallels its federal counterpart,”

as it

appears the Michigan Trademark Act does the federal

Lanham Act.

See Leelanau Wine Cellars, Ltd v Black

State Employees Ass’n v Dep’t of Mgt and Budget, 428 Mich 104, 117;

404 NW2d 606 (1987).

It is unclear whether the Legislature intended the Trademark Act to

be a direct copy of the Lanham Act, but it was enacted after the Lanham

Act, and its structure and language clearly parallel the initial version of

the Lanham Act. Congress passed the Lanham Act in 1948; the Legisla-

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& Red, Inc, 502 F3d 504, 521 (CA 6, 2007) (holding that

Michigan statutory and common law uses the same

likelihood-of-confusion test for trademark infringement

as under federal law); and Goscicki v Custom Brass

& Copper Specialties, Inc, 229 F Supp 2d 743, 756 (ED

Mich, 2002) (ruling that Michigan common law uses “the

same... tests for federal trademark infringement and

federal unfair competition”).

IV. ANALYSIS

A. TRADEMARK INFRINGEMENT UNDER MCL

429.42

In Michigan, there are three sources of trademark

law: common law, the state Trademark Act, and the

federal Lanham Act. A plaintiff may bring separate

trademark-related claims under each body of law. This

case is brought under Michigan’s Trademark Act,

which is codified at MCL 429.31 et seq. The Act states

that a “mark” is “any trademark or service mark,”

and defines “trademark” as “any word, name, symbol,

or device, or any combination thereof, other than a

trade name in its entirety, adopted and used by a person

to identify goods made or sold by him or her and to

distinguish them from similar goods made or sold by

others.” MCL 429.31(a).

The Act details a system of registration for trade-

marks, and also creates a remedy for holders of Michi-

gan trademarks that have been infringed. Specifically,

MCL 429.42 states that “any person who shall”

ture passed the Trademark Act in 1970. The Trademark Act’s structure

and much of its language bear a striking resemblance to the Model State

Trademark Bill, which is patterned after the Lanham Act. 3 McCarthy,

Trademarks and Unfair Competition, § 22.7; see also id. at § 22.5

(observing that the Model Bill is used in all states except West Virginia,

Hawaii, Wisconsin, and New Mexico).

MCL 429.31(f).

276 306 M

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(a) Use, without the consent of the registrant, any

reproduction, counterfeit, copy or colorable imitation of a

mark registered under this act in connection with the sale,

offering for sale, or advertising of any goods or services on

or in connection with which such use is likely to cause

confusion or mistake or to deceive as to the source of origin

of such goods or services; or

(b) Reproduce, counterfeit, copy or colorably imitate any

such registered mark and apply such reproduction, coun-

terfeit, copy or colorable imitation to labels, signs, prints,

packages, wrappers, receptacles or advertisements in-

tended to be used upon or in connection with the sale or

other distribution in this state of such goods or services; is

liable to a civil action by the owner of the registered mark

for any or all of the remedies provided in [MCL

429.43]....

MCL 429.43 also states that “[a]ny owner of a mark

registered under this act” may bring suit against a

trademark infringer, and that the plaintiff may ask a

court to “enjoin the manufacture, use, display or sale of

any counterfeits or imitations” of its mark by the

defendant. MCL 429.43(1).

As mentioned earlier, trademark law thus advances

two interests—the private right of the trademark

holder to prevent others from using his mark to reap

monetary reward, and the public right to protection

from deceptive practices—and seeks to align those

interests so that the private trademark holder will

pursue infringers, thereby protecting the broader pub-

lic from fraudulent trade practices. See Hanover Star

Milling Co v Metcalf, 240 US 403, 412-413; 36 S Ct 357;

60 L Ed 713 (1916), and Shakespeare Co, 334 Mich at

113.

Accordingly, a plaintiff who brings a trademark-

infringement suit under MCL 429.42 must demonstrate

that (1) the mark the plaintiff claims to hold is valid, in

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that it actually functions as a trademark,

(2) the

plaintiff holds priority in the mark, i.e., the plaintiff

used the mark before the defendant,

(3) consumers are

likely to confuse the defendant’s mark with the plain-

tiff’s mark,

and (4) the defendant used the allegedly

infringing mark.

As noted earlier, if the mark is

registered with the state, the registration is prima

facie evidence that the plaintiff’s mark is valid, and

the burden of production shifts to the defendant to

demonstrate that the mark is not valid. MCL

429.34(3).

If these four elements are established,

any court “of competent jurisdiction” may issue an

injunction to “restrain” the defendant from “[the]

manufacture, use, display or sale” of “any counter-

See Boron Oil Co v Callanan, 50 Mich App 580, 583; 213 NW2d 836

(1973).

United Drug Co v Theodore Rectanus Co, 248 US 90, 100; 39 S Ct 48;

63 L Ed 141 (1918); Interstate Brands Corp v Way Baking Co, 403 Mich

479, 481; 270 NW2d 103 (1978); MCL 429.31(a) and (h); and MCL

429.42(a).

Boron Oil Co, 50 Mich App at 584.

MCL 429.42(a).

See also the corresponding provision of the Lanham Act, 15 USC

1057(b), which states that

[a] certificate of registration of a mark... shall be prima facie

evidence of the validity of the registered mark and of the registra-

tion of the mark, of the owner’s ownership of the mark, and of the

owner’s exclusive right to use the registered mark in commerce on

or in connection with the goods or services specified in the

certificate, subject to any conditions or limitations stated in the

certificate.

Federal courts have interpreted this provision to mean that registration

of a mark relieves the mark holder of the burden of proving validity and

secondary meaning and “shifts the burden of proof to the contesting

party, who must introduce sufficient evidence to rebut the presumption of

the holder’s right to protected use.” Qualitex Co v Jacobson Prod Co, Inc,

13 F3d 1297, 1301 (CA 9, 1994), rev’d on other grounds 514 US 159

(1995).

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feits or imitations” of the plaintiff’s marked goods or

services. MCL 429.43(1). We address each issue in

turn.

B. VALIDITY

1. LEGAL PRINCIPLES

Under the Trademark Act and at common law,

trademarks only receive legal protection when they

are (1) used in connection with the sale and advertis-

ing of products or services, and (2) distinctive, in that

consumers understand the mark to designate goods

or services as the “product of a particular manufac-

turer or trader.” Shakespeare Co, 334 Mich at 113. In

other words, a “distinctive” mark serves as a source

identifier to consumers. Wal-Mart Stores, Inc v Sa-

mara Bros, Inc, 529 US 205, 212; 120 S Ct 1339; 146

L Ed 2d 182 (2000).

“The right to a trademark grows out of its use, and

covers the area in which it is used.” Interstate Brands

Corp v Way Baking Co, 403 Mich 479, 481; 270 NW2d

103 (1978). In Michigan, a mark is used when it is

placed in any manner on the goods or their containers or on

the tags or labels affixed thereto and such goods are sold or

otherwise distributed in this state, and on services when it

is used or displayed in this state in the sale or advertising

of services and the services are rendered in this state.

[MCL 429.31(h).]

[23]

This commonsense interpretation of “used” is consistent with

(and clearer than) the Lanham Act’s requirement that a mark be

“use[d] in commerce,” meaning that a mark must be used when the

goods are sold or transported in commerce—i.e., in the ordinary course

of trade—to be a valid trademark. 15 USC 1127. See also Central Mfg,

Inc v Brett, 492 F3d 876, 882-883 (CA 7, 2007) (holding that manufac-

turer did not have trademark on mark “Stealth” for baseballs when it

could not show that it had ever sold any baseballs under that mark).

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Courts assess a mark’s distinctiveness using the

“now-classic test”

formulated by Judge Henry

Friendly in Abercrombie & Fitch Co v Hunting World,

Inc, 537 F2d 4 (CA 2, 1976). Drawing on the common

law of trademark to assess a mark’s validity under the

Lanham Act, Judge Friendly identified a taxonomy of

marks that courts had used to determine whether a

mark was “distinctive” and thus eligible for trademark

protections. Abercrombie, 537 F2d at 9. Under the

classification scheme, there are four types of marks:

“(1) generic, (2) descriptive, (3) suggestive, and (4)

arbitrary or fanciful.” Id. “Arbitrary or fanciful”

and

“suggestive”

marks are “inherently distinctive,” in

that they “distinguish a good as coming from a particu-

lar source.” Abercrombie & Fitch Stores, Inc v American

Eagle Outfitters, Inc, 280 F3d 619, 635-636 (CA 6,

Wal-Mart, 529 US at 210.

In plain English, an “arbitrary” mark takes a word that is already in

common usage and applies it to a product or service that has nothing to

do with its ordinary meaning. See Abercrombie, 537 F2d at 11 n 12. An

arbitrary mark is thus mismatched to a particular product or service,

because its commonplace meaning has no relationship with that product

or service. Examples include “Ivory” soap and “Lucky Strike” cigarettes.

Abercrombie,537F2dat9n6;American Eagle, 280 F3d at 635.

A “fanciful” mark is a coined term that has no commonplace meaning

whatsoever, and is “completely fabricated by the trademark holder[].”

Kellogg Co v Toucan Golf, Inc, 337 F3d 616, 624 (CA 6, 2003). Examples

include “Kodak” film, “Exxon” oil, and “Clorox” bleach. Id.; Exxon Corp

v XOIL Energy Resources, Inc, 552 F Supp 1008, 1014 (SD NY, 1981);

Clorox Chem Co v Chlorit Mfg Corp, 25 F Supp 702, 705 (ED NY, 1938).

“Suggestive” marks are somewhat descriptive and only indirectly

convey an impression of the goods or services on offer. “ ‘A term is

suggestive if it requires imagination, thought and perception to reach a

conclusion as to the nature of goods.’ ” Abercrombie, 537 F2d at 11

(citation omitted). Examples include “Tide” laundry detergent, “Cit-

ibank” bank, or “Snuggle” fabric softener. American Eagle, 280 F3d at

635; Citibank, NA v Citibanc Group, Inc, 724 F2d 1540, 1547 (CA 11,

1984); Lever Bros Co v Mattel, Inc, 609 F Supp 1395, 1400 (SD NY, 1985).

280 306 M

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266 [July

2002). Accordingly, arbitrary or fanciful and suggestive

marks are considered valid trademarks for the purposes

of trademark law. Id.

By contrast, “descriptive (‘Soft Soap’) or generic

(‘soap’) terms do not inherently distinguish a good as

coming from a particular source,” and therefore may

not generally serve as trademarks. American Eagle, 280

F3d at 635. Generic marks “refer[], or [have] come to be

understood as referring, to the genus of which the

particular product is a species.” Abercrombie, 537 F2d

at 9.

In other words, a generic term is one that is

commonly used as the name or description of a class of

goods. As such, generic terms are unable to function as

a source identifier to consumers and can never serve as

trademarks.

Likewise, marks that are “merely descriptive”

can-

not serve as trademarks, MCL 429.32(e), because they

are unable to distinguish a good as originating from a

particular source. Moreover, because descriptive marks

simply describe a product or service, trademark law

Generic terms can thus be synonymous with the good or service itself

(“apple” is generic when used by an apple orchard) or may describe a

broader category to which the particular good or service belongs (“fruit” is

also generic when used by an apple orchard). See also Kellogg Co v Nat’l

Biscuit Co, 305 US 111, 116-117; 59 S Ct 109; 83 L Ed 73 (1938) (Brandeis,

J.) (holding the mark “shredded wheat” to be generic because it “is the term

by which the biscuit in pillow-shaped form is generally known by the

public”). Other examples of a generic mark would include “cola,” “cereal,”

and “toothpaste.” Note that a term that is otherwise generic (“apple” for an

apple orchard) can be arbitrary if used in a different context (“apple” for a

computer company). See Abercrombie,537F2dat9n6(“‘Ivory’ would be

generic when used to describe a product made from the tusks of elephants

but arbitrary as applied to soap.”).

Descriptive marks describe a particular characteristic quality, or

function, “of the product in a way that does not require any exercise of

the imagination.” George & Co LLC v Imagination Entertainment Ltd,

575 F3d 383, 394 (CA 4, 2009). Examples of a descriptive mark include

“After Tan” post-tanning lotion and “5 Minute glue.” Id.

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refuses to grant a monopoly on the descriptive mark to

the manufacturer or service provider—those descrip-

tive words must remain available to competitors to

describe their products and services. Surnames that are

used as marks are classified as descriptive marks for

both reasons: they merely describe the mark user’s

identity, and they interfere with the right of other

business owners with the same surname to use that

surname to advertise their products and services. Bus-

cemi’s Inc v Anthony Buscemi Delicatessen & Party

Store, Inc, 96 Mich App 714, 717; 294 NW2d 218 (1980).

See also MCL 429.32(d) and (e).

Descriptive marks differ from generic marks in one

crucial respect, however: it is possible for descriptive

marks to become source identifiers, and thus valid

trademarks. A descriptive mark gains source-

identifying capacity when it acquires “secondary mean-

ing,” which occurs when a descriptive mark has “be-

come associated in the minds of purchasers or

customers with the source or origin of goods or services

rather than with the goods or services themselves.”

Burke v Dawn Donut Sys, Inc, 147 Mich App 42, 46; 383

NW2d 98 (1985) (citations and quotation marks omit-

ted). Like other descriptive marks, a surname-mark can

become a valid trademark if it acquires secondary

meaning. Buscemi’s, 96 Mich App at 717. To determine

whether a plaintiff’s mark has acquired secondary

meaning, a court considers the “length of use of the

symbol or mark, nature and extent of popularizing and

advertising the symbol, and the efforts expended by

plaintiff in promoting the connection in the minds of

the general public of his mark or symbol with a particu-

lar product.” Boron Oil Co, 50 Mich App at 583-584.

See Wolf Appliance, Inc v Viking Range Corp, 686 F Supp 2d 878, 887

(WD Wis, 2010), for a more recent summation of the factors federal

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2. APPLICATION

In this case, plaintiff registered its mark “TRAVIS”

in connection with the restaurant and food-service

industry in 1996, and the registration remains good

through 2016. Plaintiff’s registration serves as prima

facie evidence that the mark is valid, and the burden of

production thus shifts to defendant to show that it is

not. MCL 429.34(3). Defendant notes that plaintiff’s

mark is a surname, and therefore must acquire second-

ary meaning to be a valid trademark—something defen-

dant asserts the mark has not done. It also claims that

plaintiff’s evidence of secondary meaning is not actual

evidence of secondary meaning. Defendant accordingly

asks us to reverse the trial court’s decision, which held

that the “TRAVIS” mark possessed secondary meaning

and was a valid trademark.

Defendant correctly identifies plaintiff’s mark as a

surname and argues that, because surname-marks are

descriptive, “TRAVIS” must possess secondary mean-

ing to be a valid trademark. Buscemi’s, 96 Mich App at

717. However, as noted, because plaintiff’s mark is

registered, it is defendant’s burden to show that

“TRAVIS” lacks secondary meaning, which defendant

fails to do. MCL 429.34(3). Instead of introducing such

evidence, defendant inexplicably emphasizes the totally

irrelevant fact that plaintiff does not provide food

products to its business. This assertion, while it may be

literally true—in that plaintiff is not the actual source

of the food products defendant sells—has nothing to do

with secondary meaning, which is rooted in consumer

courts consider when assessing whether a product has acquired second-

ary meaning (listing the factors as “(1) direct consumer testimony and

consumer surveys; (2) exclusivity, length and manner of use; (3) amount

and manner of advertising; (4) amount of sales and number of customers;

(5) established place in the market; and (6) proof of intentional copying”).

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perception: here, the perception (encouraged by defen-

dant’s use of the “Travis Grill” and “famous Travis

burger” marks) that plaintiff is associated in some way

with defendant’s business.

And, though plaintiff was not required to prove

validity under the statute, it nonetheless gave evidence

that its mark possessed secondary meaning, in the form

of (1) the 60-year span over which plaintiff or its

predecessors have used the “TRAVIS” mark in the

restaurant business, (2) defendant’s use of the “famous

Travis burger” on its menu, the same wording plain-

tiff’s licensee uses (and has used) to describe its ham-

burger, and (3) affidavits from customers who patron-

ized defendant’s restaurant and believed it to be

operated by or under the authority of plaintiff. As

noted, a plaintiff can show the existence of secondary

meaning through the “length of use of the symbol or

mark” and “direct consumer testimony and consumer

surveys.” Boron Oil Co, 50 Mich App at 583; Wolf

Appliance, 686 F Supp 2d at 887.

Because defendant has not shown that plaintiff’s

mark lacked secondary meaning, it has failed to show

that plaintiff’s mark is invalid under the Trademark

Act, and we affirm the trial court’s holding that plain-

tiff’s mark is valid.

C. PRIORITY

“Trademark rights arise out of appropriation and

use. Generally, the right belongs to one who first

appropriates and uses the mark.” Interstate Brands

Corp v Way Baking Co, 79 Mich App 551, 555; 261

NW2d 84 (1977), rev’d on other grounds 403 Mich 479.

In this case, it is undisputed that plaintiff used the

mark in commerce earlier than defendant: plaintiff’s

predecessors have used the “TRAVIS” mark in connec-

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tion with restaurants since 1944, and defendants do not

claim they used the “Travis Grill” or “famous Travis

burger” marks before that date. Plaintiff thus has

priority in the “TRAVIS” mark.

D. LIKELIHOOD OF CONFUSION

After a trademark-infringement plaintiff demon-

strates that its mark is valid (or, as here, the defendant

fails to demonstrate that the plaintiff’s mark is invalid)

and possesses priority over the defendant’s mark, the

plaintiff must show that the defendant’s mark is so

similar to its own that it is likely to create confusion

among consumers as to the source of defendant’s goods

or services. MCL 429.42(a); Boron Oil Co, 50 Mich App

at 584. “Actual confusion of customers, clients, or the

public at large does not need to be shown; it is sufficient

if the acts of the defendant indicate that probable

confusion will occur.” Boron Oil Co, 50 Mich App at 584;

see also 220 Bagley Corp v Julius Freud Land Co, 317

Mich 470, 475; 27 NW2d 59 (1947).

Courts assess the likelihood of confusion by consid-

ering the particular facts of each case. Boron Oil Co,50

Mich App at 584. Prior factors courts have found

relevant when assessing the likelihood of confusion

include the (1) strength of the plaintiff’s mark, (2)

relatedness of the plaintiff’s and the defendant’s ser-

vices, (3) similarity of the marks, (4) evidence of actual

confusion, (5) marketing channels used, (6) likely de-

gree of customer’s care and sophistication, (7) intent of

the defendant in selecting the mark, and (8) likelihood

of expansion of the product lines using the marks.

Homeowners Group, Inc, v Home Mktg Specialists, Inc,

931 F2d 1100, 1106 (CA 6, 1991). This list of factors is

“not exhaustive,” as “any factor that is likely to influ-

ence the impression conveyed to prospective purchas-

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285

ers” by the use of a mark is relevant when assessing the

likelihood of confusion. Restatement Unfair Competi-

tion, 3d, § 21, comment a, p 227. Nor should the list of

factors be applied as a rote test, with plaintiff required

to show each factor listed above to prevail—the factors

“are simply a guide to help determine whether confu-

sion is likely....Each case presents its own complex set

of circumstances and not all of these factors may be

particularly helpful in any given case.” Id. at 1107.

“The ultimate question remains whether relevant con-

sumers are likely to believe that the products or services

offered by the parties are affiliated in some way.” Id.

To analyze the strength of a mark, a court “ ‘focuses

on the distinctiveness of a mark and its recognition

among the public.’ ” Express Welding, Inc v Superior

Trailers, LLC, 700 F Supp 2d 789, 797 (ED Mich, 2010)

(citation omitted). Plaintiff’s mark “TRAVIS” is de-

scriptive and has acquired secondary meaning. It is

accordingly not as strong as an “arbitrary or fanciful”

or “suggestive” mark,

yet the consumer affidavits and

the length of the mark’s use suggest that it is widely

recognized in Macomb County. The name of defendant’s

As explained earlier, “arbitrary or fanciful” and “suggestive”

marks are inherently distinctive, in that they “distinguish a good as

coming from a particular source.” American Eagle Outfitters, Inc, 280

F3d at 635-636. If they acquire public recognition, arbitrary or fanciful

and suggestive marks are thus the strongest type of mark because they

function as ready-made designators of the good or service’s origin.

Descriptive marks that have acquired secondary meaning are usually

weaker by comparison, because a descriptive mark begins as a term

that describes the product or service on offer, and thus does not

function as a ready-made designator of the good or service’s origin. Of

course, a descriptive mark with secondary meaning can acquire great

strength over time—for example, “McDonald’s” restaurants. See

Quality Inns Int’l, Inc v McDonald’s Corp, 695 F Supp 198, 211-212 (D

Md, 1988). “Travis” and the “famous Travis burger,” however, are

hardly as widely recognized among consumers as “McDonald’s” and

the “Big Mac.”

286 306 M

ICH

266 [July

restaurant, “Travis Grill,” is almost identical to plain-

tiff’s mark. See Ed Subscription Serv, Inc, 115 Mich

App at 421 (stating that “[c]orporate names are confus-

ingly similar when the first two words of a compound

name are identical and in the same sequence”). In what

amounts to a telling admission, defendant again used

an almost identical mark to plaintiff’s mark—“the

famous Travis Burger”—on its menu to advertise its

food products. And plaintiff, through its customer affi-

davits, also introduced evidence that defendant’s mark

actually confused consumers, who believed that defen-

dant was owned, operated, licensed, or otherwise affili-

ated with plaintiff in some way.

When these factors are weighed against defendant’s

mere unsupported statement that no likelihood of con-

fusion exists,

it is apparent that plaintiff has shown

that a likelihood of confusion (and, indeed, actual

confusion) exists with respect to its mark and defen-

dant’s.

E. DEFENDANT’S USE OF THE INFRINGING MARK

To be liable for infringement, a defendant must “use”

the allegedly infringing mark. MCL 429.42(a). As noted,

a mark is “used” under the Trademark Act when

it is placed in any manner on the goods or their containers

or on the tags or labels affixed thereto and such goods are

sold or otherwise distributed in this state, and on services

when it is used or displayed in this state in the sale or

advertising of services and the services are rendered in this

state. [MCL 429.31(h).]

“A party may not merely announce a position and leave it to this

Court to discover and rationalize the basis for the claim.” National

Waterworks, Inc v Int’l Fidelity & Surety, Ltd, 275 Mich App 256, 265;

739 NW2d 121 (2007).

2014] J

ANET

RAVIS

NC V

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OLDINGS

287

In this case, it is undisputed that defendant used the

marks “Travis Grill” and “famous Travis burger” “in

the sale or advertising of services” that were “ren-

dered” in the state of Michigan. Defendant has thus

used the allegedly infringing mark under MCL

429.42(a).

V. CONCLUSION

The trial court properly granted plaintiff’s request

for an injunction against defendant’s use of the “Travis

Grill” and “famous Travis burger” marks under MCL

429.43 because defendant failed to show that plaintiff’s

“TRAVIS” mark was invalid, and plaintiff showed that

(1) it had priority in the trademark, (2) defendant’s

marks confused consumers and suggested that defen-

dant’s business was associated with plaintiff, and (3)

defendant used the confusing mark in the sale or

advertising of services rendered in Michigan. Though

the trial court did not analyze the case in the precise

method outlined above, it reached the correct result,

and we accordingly affirm its order that granted plain-

tiff’s request for an injunction. Plaintiff may tax costs

as the prevailing party.

Affirmed.

ILDER

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

ELLY

, J., concurred with S

AAD

“A trial court’s ruling may be upheld on appeal where the right result

issued, albeit for the wrong reason.” Gleason v Dep’t of Transp, 256 Mich

App 1, 3; 662 NW2d 822 (2003).

288 306 M

ICH

266

PEOPLE v GAINES

Docket Nos. 310367, 310368, and 310369. Submitted April 1, 2014, at

Lansing. Decided August 5, 2014, at 9:00 a.m. Leave to appeal

sought.

Logan S. Gaines was convicted following a jury trial of three

consolidated cases in the Saginaw Circuit Court, Janet M. Boes, J.,

of accosting, enticing, or soliciting a child (CP) for immoral

purposes, third-degree criminal sexual conduct (CSC-III) (sexual

intercourse with AW, a victim 13 to 15 years old), three other

counts of CSC-III (digital penetration with MM, a victim 13 to 15

years old), and accosting a child (MM) for immoral purposes.

Defendant appealed separately with regard to each case. The

Court of Appeals consolidated the appeals.

The Court of Appeals held:

1. A reasonable trier of fact could conclude from the evidence

that AW was 15 years old when she had sexual intercourse with

defendant. The trial court did not abuse its discretion by denying

defendant’s motion for a new trial that alleged that the prosecu-

tion failed to prove that AW was under 16 years of age for purposes

of the CSC-III conviction regarding AW under MCL

750.520d(1)(a).

2. Any error in the charging documents regarding the dates of

the second and third acts of CSC-III involving MM did not affect

defendant’s substantial rights. Defendant presented a defense and

did not demonstrate prejudice from the alleged imprecision re-

garding the exact dates of the offenses.

3. Defendant failed to demonstrate plain error affecting his

substantial rights from any imprecision regarding the time during

which the accosting regarding MM and CP was alleged to have

occurred.

4. Defendant failed to establish prejudice from defense coun-

sel’s failure to object with regard to any imprecision concerning

the applicable dates stated in the charging documents.

5. The trial court did not abuse its discretion by admitting

evidence of other charged and uncharged acts by defendant under

MCL 768.27a. The statute does not preclude the prosecution from

EOPLE V

AINES

289

incorporating the disclosure of the evidence by reference to the

other acts recounted in police reports and disclosed in discovery

when the prosecution filed its notice of intent to offer the evidence.

Any error in the disclosure was harmless. It was not error to

conclude that the probative value of the other-acts evidence was

not substantially outweighed by the danger of unfair prejudice.

6. Offenses are related for purposes of MCR 6.120(B)(1)(c)

when the evidence indicates that the defendant engaged in ongo-

ing acts constituting parts of the defendant’s overall scheme or

plan. The trial court did not err by ruling that the charged offenses

were related. The trial court did not abuse its discretion by holding

that joinder of the three cases was appropriate. Joinder of the

three cases did not affect defendant’s constitutional right to

remain silent.

7. Although the trial court improperly excluded as hearsay

AW’s testimony regarding whether the police intimidated her and

forced her to testify, the error was harmless and did not affect

defendant’s substantial rights.

8. Defendant failed to establish prejudice with regard to the

parties’ stipulation to dismiss one of two counts of accosting with

regard to MM after the jury was selected and informed of the

charges.

9. The prosecutor erred by asking defendant to comment

regarding the credibility of several witnesses’ testimony. A timely

objection could have cured the error. Defendant failed to establish

that the questions affected his substantial rights.

10. The prosecutor did not suggest in his closing arguments

that he had personal knowledge that his witnesses were worthy of

belief while defendant was not.

11. The prosecutor did not improperly appeal to the jury to

sympathize with the victims because of their young age.

12. Defendant failed to provide evidentiary support to over-

come the presumption that his counsel employed trial strategy

when counsel failed to object to the cross-examination of defen-

dant regarding the credibility of the prosecutor’s witnesses.

13. Defendant waived any error regarding the jury instruc-

tions for the accosting charges. Because there was overwhelming

evidence that defendant intended to induce the victims to send

naked photographs to him, defense counsel’s failure to object to

the absence of the specific-intent element of the “accosts, entices,

or solicits” prong of the offense did not prejudice defendant.

Defendant was not denied the effective assistance of counsel.

290 306 M

ICH

289 [Aug

14. The trial court’s statement to the prospective jurors that

characterized the cases as “kind of related” was not improper and

did not indicate that the judge was not impartial.

15. The trial court did not plainly err when it responded to the

jury’s request for further clarification regarding the CSC-III

instruction. Defense counsel was not ineffective for failing to

object to the trial court’s response.

16. Absent any showing that the identities of any other alleged

recipients of naked photographs from the victims had any particu-

lar relevance, defendant’s right of confrontation was not denied

when the trial court precluded testimony about the identities of

others the victims may have sent naked photographs.

17. Both MM and AW were “victims” for purposes of MCL

750.520j because they alleged that they were subjected to criminal

sexual conduct. MCL 750.520a(s). Evidence of any instances of

sexual contact MM and AW may have had with other boys was

inadmissible under MCL 750.520j. Regardless whether MM and

AW were testifying to support their own case or to provide

other-acts evidence under MCL 768.27a for the other cases, they

still alleged that they were subjected to criminal sexual conduct

and were “victims” under MCL 750.520a(s).

18. Because, in his defense to the accosting charges, defendant

claimed that the victims first initiated sending naked photographs

to him and that they sent naked photographs to others, whether

the victims had sexual contact with others was not relevant to

defendant’s defense to those charges. Defendant had no right to

confrontation regarding irrelevant issues.

19. MCL 750.145a is not unconstitutional on its face. The

statute is neither vague nor overbroad.

20. The trial court erred by ordering defendant to pay restitu-

tion for the general costs of investigating and prosecuting his

criminal activity. Such costs did not constitute direct financial

harm to the governmental entities resulting from defendant’s

crimes. The portion of the judgment of sentence ordering restitu-

tion is vacated and the cases are remanded to the trial court for

entry of an amended judgment of sentence.

Convictions affirmed, order of restitution vacated, and re-

manded for entry of an amended judgment of sentence.

1. C

RIMINAL

AW —

VIDENCE —

OTICE

MCL 768.27a provides that in a criminal case in which the defendant

is accused of committing a listed offense against a minor, evidence

that the defendant committed another listed offense against a

2014] P

EOPLE V

AINES

291

minor is admissible and may be considered for its bearing on any

matter to which it is relevant; the statute requires a prosecuting

attorney who intends to offer such evidence to disclose the

evidence to the defendant at least 15 days before trial but does not

preclude the prosecutor from incorporating the disclosure of the

evidence in the notice of intent by reference.

2. A

PPEAL AND

RROR —

UMULATIVE

FFECT OF

RRORS

Only “actual errors” are aggregated when reviewing a claim that the

cumulative effect of prosecutorial errors warrants reversal.

3. C

ONSTITUTIONAL

AW —

TATUTES —

CCOSTING

HILD FOR

MMORAL

UR-

POSES

The provisions of MCL 750.145a are neither unconstitutionally

vague nor overbroad.

4. S

ENTENCES —

ESTITUTION —

OSTS OF

NVESTIGATING AND

ROSECUTING

RIMES

A trial court errs by ordering a defendant to pay restitution to a

governmental entity for the general costs of investigating and

prosecuting the defendant’s criminal activity; such costs do not

constitute direct financial harm to the governmental entity result-

ing from the defendant’s crime (MCL 780.766(1)).

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, John A. McColgan, Jr., Prosecuting

Attorney, and Randy L. Price, Assistant Prosecuting

Attorney, for the people.

John F. Royal for defendant.

Before: W

ILDER

,P.J., and F

ITZGERALD

and M

ARKEY

,JJ.

ILDER

,P.J. Defendant appeals as of right his con-

victions following a jury trial of three consolidated

cases. We consolidated the appeals. In Saginaw Cir-

cuit Court Docket No. 10-035017-FH, defendant was

convicted of accosting, enticing, or soliciting a child

(CP) for immoral purposes, MCL 750.145a, and sen-

tenced to 13 months to 4 years in prison. In Docket

No. 10-035018-FH, defendant was convicted of third-

292 306 M

ICH

289 [Aug

degree criminal sexual conduct (CSC-III) involving

AW, MCL 750.520d(1)(a) (sexual intercourse with a

victim 13 to 15 years old), and sentenced to 4 to 15

years in prison. In Docket No. 10-035019-FH, defen-

dant was convicted of three counts of CSC-III involv-

ing MM (digital penetration with a victim 13 to 15

years old) and accosting a child (MM) for immoral

purposes, and was sentenced to 4 to 15 years in prison

for the CSC-III convictions and 13 months to 4 years

in prison for the accosting conviction. We affirm

defendant’s convictions, vacate the portion of the

judgment of sentence ordering restitution, and re-

mand to the trial court for entry of an amended

judgment of sentence.

The cases against defendant arose out of his interac-

tions with AW, CP, and MM in his senior year of high

school (2008-2009) and the year following his graduation,

when he was 18 or 19 years old. In defendant’s senior year,

he met AW. AW testified that she really got to know

defendant during the 2009 track season, when she was 15

years old. They both attended a bonfire, which defendant

testified was in May 2009. According to AW, they left the

bonfire, went to defendant’s parents’ house, and had

“consensual” sexual intercourse in defendant’s basement

bedroom. Defendant claimed they only “made out.”

MM met defendant in October 2009 after defendant

had graduated. MM was 13 or 14 years old. MM testified

that she and defendant exchanged text messages and that,

at first, their text messages were not personal. MM

testified that in November or December 2009, defendant

asked for photographs of MM and that, later, defendant

asked for photographs with her clothes off. MM explained

that she first sent photographs of her buttocks and

2014] P

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AINES

293

stomach, but when defendant asked for photographs of

her breasts and vagina, she sent them.

The record demonstrated that MM also visited defen-

dant’s parents’ house on several occasions. MM testified

that, in May 2010, defendant “fingered” MM in his

basement by putting his finger in her vagina for three to

five minutes. About a week later, MM asked defendant to

hang out. He picked up MM and her friend, Sarah Cramer.

MM testified that defendant digitally penetrated her

when Cramer went to the bedroom to talk on the phone.

Although Cramer came out of the bedroom while defen-

dant was digitally penetrating her, MM testified that she

did not think Cramer knew what was happening because

defendant’s back was to Cramer and the lights and

television were off.

MM testified that she told

Cramer what defendant did to her after they got

home. Although Cramer told the police that MM had

said “nothing happened,” Cramer testified at trial

that she was afraid of getting in trouble and that MM

had actually said that defendant “fingered” her. MM

testified that, around June 10, 2010, she visited

defendant’s parents’ house again and he digitally

penetrated her on his bed. Defendant offered con-

trary testimony from his friend, who testified that he

was present during this visit and never left MM and

defendant alone.

Although he never tried to have sexual intercourse

with MM, defendant texted MM, “I wanna f*** you if

you weren’t so young.” According to MM, defendant

also told her not to tell others about their relationship

because he knew their age difference was “illegal.”

MM testified that defendant was not the first person to whom she had

sent naked photographs.

Defendant’s sister testified, however, that she went downstairs re-

peatedly under the guise of doing laundry to check up on the children and

that whenever she went downstairs, the lights and television were on.

294 306 M

ICH

289 [Aug

Defendant met and started texting CP in the spring

of 2010 when she was 14 years old

and on the track

team. Defendant had graduated, but was practicing at

the high school track to prepare for college track

tryouts. At the same time, he helped some students,

including CP, on the track team. CP testified that

defendant asked for naked photographs,

which she

sent from about May 2010 to July 2010. CP testified

that, if she refused to send photographs, defendant

would threaten not to talk to her or help her with track.

CP also testified that defendant told her not to tell

anyone what was happening.

In the summer of 2010, MM’s father discovered her

communications with defendant and contacted the po-

lice. In August 2010, Detective Jason Wise interviewed

defendant. Detective Wise testified that defendant ini-

tially denied that MM had sent him naked photographs,

but after the detective showed him the photographs on

a computer, defendant admitted that she had sent him

photographs of her buttocks, lower body, and breasts.

Detective Wise testified that defendant also admitted

that he used his finger to penetrate MM’s vagina on at

least two occasions.

Throughout trial, defendant testified that he did not

have sexual intercourse with any of the victims. Con-

trary to Detective Wise’s testimony, defendant specifi-

cally denied penetrating MM with his finger. Defendant

testified that he only told MM to send him photographs

that she had already sent to at least two other boys.

Similarly, defendant testified that CP had originally

suggested sending him pictures and that he had merely

persisted in asking for them afterward.

Defendant testified that he thought CP was 16 years old.

On cross-examination, CP testified that she could have first sent

defendant a picture.

2014] P

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AINES

295

Defendant first challenges the sufficiency of the

evidence to support his conviction of CSC-III with

regard to AW. Defendant further claims this conviction

was against the great weight of the evidence and the

trial court abused its discretion when it denied his

motion for a new trial. We disagree.

A challenge to the sufficiency of the evidence in a jury

trial is reviewed de novo, viewing the evidence in the

light most favorable to the prosecution, to determine

whether the trier of fact could have found that the

essential elements of the crime were proved beyond a

reasonable doubt. People v Harverson, 291 Mich App

171, 175; 804 NW2d 757 (2010). The trial court’s

decision regarding defendant’s motion for a new trial is

reviewed for an abuse of discretion. People v Lemmon,

456 Mich 625, 642, 644; 576 NW2d 129 (1998).

In challenging his conviction of CSC-III with regard

to AW, defendant only alleges that the prosecutor failed

to prove that AW was under 16 years of age for purposes

of MCL 750.520d(1)(a)

when she and defendant had

sexual intercourse. The prosecutor established that AW

met defendant when she was a freshman and he was a

senior. AW further testified that she encountered defen-

dant at a bonfire, which they left to go to defendant’s

parents’ house, where they had sexual intercourse in

his basement bedroom. We agree with defendant that

AW did not testify when the bonfire occurred. But

defendant testified that the bonfire occurred in May

2009. Given evidence in the record that AW was born in

December 1993, a reasonable trier of fact could con-

MCL 750.520d(1)(a) provides: “A person is guilty of criminal sexual

conduct in the third degree if the person engages in sexual penetration

with another person” and the “other person is at least 13 years of age and

under 16 years of age.”

296 306 M

ICH

289 [Aug

clude that AW was 15 years old at the time of the May

2009 bonfire, when she had sexual intercourse with

defendant.

The trial court denied defendant’s motion for a new

trial, holding that the great weight of the evidence

supported a finding that AW was 15 years old at the

time of the offense. None of the exceptional circum-

stances that would warrant a conclusion that the find-

ing was against the great wright of the evidence, as

expressed in Lemmon, 456 Mich at 643-644, are present

in this case. Thus, nothing warrants a conclusion that

this verdict is contrary to the great weight of the

evidence. The evidence does not preponderate so

heavily against the verdict that it would be a miscar-

riage of justice to allow the verdict to stand. People v

McCray, 245 Mich App 631, 637; 630 NW2d 633 (2001).

The trial court did not abuse its discretion by denying

the motion for a new trial.

III

Defendant next claims he was denied his constitu-

tional rights to due process and notice of the accosting

charges and two of the charges of CSC-III with regard

to MM because there was no evidence that those of-

fenses occurred on or about May 1, 2010, as set forth in

the charging documents. We disagree. Defendant’s un-

preserved constitutional claims are reviewed for plain

error affecting substantial rights. People v Carines, 460

Mich 750, 763, 774; 597 NW2d 130 (1999).

“The Due Process Clause of the Fourteenth Amend-

ment mandates that a state’s method for charging a

crime give a defendant fair notice of the charge against

the defendant, to permit the defendant to adequately

prepare a defense.” People v Chapo, 283 Mich App 360,

364; 770 NW2d 68 (2009); see Chambers v Mississippi,

2014] P

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AINES

297

410 US 284; 93 S Ct 1038; 35 L Ed 2d 297 (1973).

“Prejudice is essential to any claim of inadequate no-

tice.” Chapo, 283 Mich App at 364.

MCL 767.45(1)(b) provides that the indictment or

information shall include: “The time of the offense as

near as may be. No variance as to time shall be fatal

unless time is of the essence of the offense.” MCL

767.51 provides:

Except insofar as time is an element of the offense charged,

any allegation of the time of the commission of the offense,

whether stated absolutely or under a videlicet, shall be

sufficient to sustain proof of the charge at any time before

or after the date or dates alleged, prior to the finding of the

indictment or the filing of the complaint and within the

period of limitations provided by law: Provided, That the

court may on motion require the prosecution to state the

time or identify the occasion as nearly as the circumstances

will permit, to enable the accused to meet the charge.

[

]

In Turner v People, 33 Mich 363, 378 (1876), the facts

did not allow the prosecutor to “state positively and

certainly the exact day” of the offense. But our Michi-

gan Supreme Court ruled:

This, however, was not important so long as the facts

and incidents precluded all doubts respecting the identity

of the transaction to be prosecuted, and so long as it was

manifest that the act was recent enough to be subject to

prosecution, and that a preliminary examination in regard

to it had been had. Time is not an ingredient of the offense

in any such sense as to make it necessary to charge it

according to the truth. The information or indictment may

state one time and the proof show a different one without

involving an objectionable variance. [Id.]

“[I]n People v Howell, 396 Mich 16, 27 n 13; 238 NW2d

148 (1976), the Supreme Court suggested that an im-

Defendant did not make such a request under MCL 767.51.

298 306 M

ICH

289 [Aug

precise time allegation would be acceptable for sexual

offenses involving children, given their difficulty in

recalling precise dates.” People v Naugle, 152 Mich App

227, 234 n 1; 393 NW2d 592 (1986) (the child victim in

Naugle was molested from age 8 to 13, a detective

testified that children have difficulty remembering the

exact dates of individual assaults, and this Court held

“it is conceivable that specific dates would not stick out

in her mind”) id. at 235.

The prosecutor alleged in the charging documents

that the three acts of CSC-III involving MM occurred on

or about May 1, 2010, but defendant argues that the

second and third acts must have occurred subsequently.

Like the abuse that occurred in Naugle, the criminal

sexual conduct involving MM was repeated and MM

had difficulty remembering the exact dates. Naugle,

152 Mich App at 234 n 1. The prosecutor made a

good-faith effort to establish the dates with MM’s text

messages, which reflected when she visited defendant

at his parents’ house, where the offenses occurred.

Furthermore, defendant was not prejudiced in prepar-

ing a defense because, at the preliminary examination,

MM testified regarding the time frame during which

the criminal sexual conduct occurred and, at trial,

defendant offered specific testimony from several wit-

nesses about this time frame. Because defendant pre-

sented a defense and has demonstrated no prejudice

from the imprecise allegations regarding the time of the

second and third acts of CSC-III involving MM, any

error in the charging documents did not affect defen-

dant’s substantial rights.

The bases for the allegations of accosting that oc-

curred on or about May 1, 2010, were text messages

from defendant to MM and CP requesting naked pho-

tographs. CP testified at the preliminary examination

2014] P

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299

that she sent the photographs defendant requested

during the 2010 track season. MM testified that, in

November or December 2009, defendant started asking

for naked photographs. Defendant was aware of the

allegations by MM as early as his August 2010 interview

with the police and, during discovery, he received copies

of all the text messages. Defendant admitted that he

“studied” the text messages “several times.” He testi-

fied at trial that “there’s a lot of missing texts” and that

MM and CP actually offered to send him photographs

before he asked for them. Because defendant had pre-

trial notice of the text messages and presented a defense

to the accosting charges accordingly, he cannot demon-

strate plain error affecting his substantial rights from

the imprecision regarding the time during which the

accosting was alleged to have occurred.

Defense counsel was not ineffective for failing to

object to the charging documents. Effective assistance

of counsel is presumed, and defendant bears a heavy

burden of proving otherwise. People v LeBlanc, 465

Mich 575, 578; 640 NW2d 246 (2002). To demonstrate

ineffective assistance, defendant must show: (1) that his

attorney’s performance fell below an objective standard

of reasonableness, and (2) that this performance so

prejudiced him that he was deprived of a fair trial.

People v Grant, 470 Mich 477, 485-486; 684 NW2d 686

(2004). “To demonstrate prejudice, the defendant must

show the existence of a reasonable probability that, but

for counsel’s error, the result of the proceeding would

have been different.” People v Carbin, 463 Mich 590,

600; 623 NW2d 884 (2001).

Any related claim regarding the sufficiency or great weight of the

evidence does not require reversal because time is not an element of the

offenses. See People v Dobek, 274 Mich App 58, 83; 732 NW2d 546 (2007);

MCL 750.145a.

300 306 M

ICH

289 [Aug

The result would not have been different if defense

counsel had objected to the charging documents. Id.

Defense counsel had advance notice of the applicable

dates of the charged offenses following the preliminary

examination and was prepared with a defense, includ-

ing witness testimony regarding those specific dates.

Defendant does not argue that his defense would have

been any different if the charging documents had been

more specific. Therefore, defendant cannot establish

prejudice from defense counsel’s failure to object.

Grant, 470 Mich 485-486.

Defendant also claims that the trial court abused its

discretion by admitting evidence of other charged and

uncharged acts under MCL 768.27a. We disagree.

The prosecutor offered evidence of the following

other acts at trial:

• Charged offenses: The evidence supporting the

charges in each victim’s case was offered under MCL

768.27a in the other victims’ cases.

• Uncharged offenses: Testimony that AW stated, in a

previous interview, that defendant asked her for photo-

graphs. Testimony that defendant stated he wanted to

have sexual intercourse with MM. Testimony that defen-

dant invited CP to sleep with him at his college.

MCL 768.27a provides, in pertinent part:

(1) Notwithstanding section 27, in a criminal case in which

the defendant is accused of committing a listed offense

against a minor, evidence that the defendant committed

another listed offense against a minor is admissible and

may be considered for its bearing on any matter to which it

is relevant. If the prosecuting attorney intends to offer

evidence under this section, the prosecuting attorney shall

disclose the evidence to the defendant at least 15 days

2014] P

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AINES

301

before the scheduled date of trial or at a later time as

allowed by the court for good cause shown, including the

statements of witnesses or a summary of the substance of

any testimony that is expected to be offered.

Defendant claims that notice was not provided prop-

erly because the prosecutor filed the notice of intent

and, rather than listing the other acts in the document,

referred defendant to the other acts recounted in the

police reports and other discovery. As the trial court

found, the statute only requires the prosecutor to

“disclose the evidence to the defendant at least 15 days”

before trial. The statute does not preclude a prosecutor

from incorporating the disclosure of the evidence in the

notice of intent by reference. Furthermore, as the trial

court found, any error in the prosecutor’s disclosure

was harmless because defendant does not allege that he

was unaware of the other-acts evidence. MCR 2.613(A).

Moreover, it was not error to conclude that the

probative value of the other-acts evidence was not

substantially outweighed by the danger of unfair preju-

dice.

Our Supreme Court has explained that there are

several considerations that may lead a court to exclude

other-acts evidence.

These considerations include (1) the dissimilarity between

the other acts and the charged crime, (2) the temporal

proximity of the other acts to the charged crime, (3) the

Defendant claims the trial court failed to conduct its balancing of

prejudicial effect and probative value under MRE 403 on the record, but

a trial court need not state on the record how it balanced the prejudicial

effect and probative value. People v Smith, 243 Mich App 657, 675; 625

NW2d 46 (2000). The trial court is presumed to know the law, see People

v Garfield, 166 Mich App 66, 79; 420 NW2d 124 (1988), and it ruled that

MRE 403 applied to this evidence. Defense counsel was not ineffective for

failing to making a futile objection to the trial court’s failure to conduct

balancing under MRE 403 on the record. See People v Thomas, 260 Mich

App 450, 457; 678 NW2d 631 (2004).

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infrequency of the other acts, (4) the presence of interven-

ing acts, (5) the lack of reliability of the evidence support-

ing the occurrence of the other acts, and (6) the lack of need

for evidence beyond the complainant’s and the defendant’s

testimony. [People v Watkins, 491 Mich 450, 487-488; 818

NW2d 296 (2012).]

Defendant claims that the other charged acts were

dissimilar because he engaged in sexual penetration

with AW and MM, not CP, and he obtained naked

photographs from MM and CP, not AW. But in each case

defendant formed a relationship with a much-younger

girl at his high school. They used cell phones and text

messaging to communicate. Defendant’s pursuit of all

three victims occurred close together in time—during

his senior year of high school and the year following.

The other-acts evidence was also reliable because much

of it was confirmed by the messages exchanged between

defendant and the victims. The other acts did not “stir

such passion” that the jury was unable to consider the

merits of the case. People v Cameron, 291 Mich App 599,

611; 806 NW2d 371 (2011). Therefore, the probative

value—showing the nature of the relationship between

defendant and the victims and assisting the jury in

assessing the credibility of the victims—substantially

outweighed any unfair prejudice. The trial court did not

abuse its discretion when it admitted the other-acts

evidence under MCL 768.27a.

Defendant’s claim that the admission of other-acts evidence violates

due process is moot because the admission of the evidence was subject to

the MRE 403 balancing test. Watkins, 491 Mich at 456 n 2. Moreover,

defendant argues that the trial court erred by failing to instruct the jury

about other-acts evidence with CJI2d 20.28a. But this argument is

waived because defense counsel stated on the record that he had no

objection to the jury instructions. People v Kowalski, 489 Mich 488,

504-505; 803 NW2d 200 (2011). Furthermore, defendant has not pro-

vided any evidentiary support to overcome the presumption of strategy

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Defendant argues that joinder of the three cases was

an abuse of discretion, which affected his constitutional

right to remain silent. We disagree.

Whether joinder is appropriate is a mixed question of

fact and law. People v Williams, 483 Mich 226, 231; 769

NW2d 605 (2009). “To determine whether joinder is

permissible, a trial court must first find the relevant

facts and then must decide whether those facts consti-

tute ‘related’ offenses for which joinder is appropriate.”

Id. This Court reviews a trial court’s factual findings for

clear error and its interpretation of a court rule, which

is a question of law, de novo. Id. However, the ultimate

decision on permissive joinder of related charges lies

“firmly within the discretion of trial courts.” See People

v Breidenbach, 489 Mich 1, 14; 798 NW2d 738 (2011).

This Court reviews de novo questions of constitutional

law. People v Harper, 479 Mich 599, 610; 739 NW2d 523

(2007).

MCR 6.120 provides, in relevant part:

(B) Postcharging Permissive Joinder or Severance. On

its own initiative, the motion of a party, or the stipulation

of all parties, except as provided in subrule (C), the court

may join offenses charged in two or more informations or

indictments against a single defendant, or sever offenses

charged in a single information or indictment against a

single defendant, when appropriate to promote fairness to

the parties and a fair determination of the defendant’s

guilt or innocence of each offense.

(1) Joinder is appropriate if the offenses are related. For

purposes of this rule, offenses are related if they are based

with respect to defense counsel’s waiver. People v Ginther, 390 Mich 436,

443; 212 NW2d 922 (1973); People v Hoag, 460 Mich 1, 6; 594 NW2d 57

(1999).

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(a) the same conduct or transaction, or

(b) a series of connected acts, or

or plan.

(2) Other relevant factors include the timeliness of the

motion, the drain on the parties’ resources, the potential

for confusion or prejudice stemming from either the num-

ber of charges or the complexity or nature of the evidence,

the potential for harassment, the convenience of witnesses,

and the parties’ readiness for trial.

(3) If the court acts on its own initiative, it must provide

the parties an opportunity to be heard.

Our Supreme Court has stated that offenses are “re-

lated” for purposes of MCR 6.120(B)(1)(c) when the

evidence indicates that the “defendant engaged in on-

going acts constituting parts of his overall scheme or

plan....”Williams, 483 Mich at 235.

The evidence demonstrated that defendant engaged

in ongoing acts related to his scheme of preying upon

young, teenage girls from his high school. In each case,

defendant used text messages to communicate with the

victims and encouraged them to keep their communi-

cations secret. In at least two cases, defendant re-

quested naked photographs from the victims and, if

they refused, threatened to cut off ties with them. He

also used his parents’ basement to isolate two of the

young girls and sexually penetrate them.

The facts were not complex and presented little

potential for confusion. Because defendant’s actions

against each victim were admissible in each case pur-

suant to MCL 768.27a, each victim would have been

required to testify in each trial if the cases were tried

separately. Joinder offered convenience to the victims,

who had already suffered harassment in their commu-

nities as a result of these cases.

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Finally, defendant’s claim that joinder affected his

constitutional right to remain silent has no merit. The

trial court did not clearly err when it found incredible

defendant’s claim that he would have testified only in

MM’s case if the three cases were tried separately.

Rather, because MM would have offered the same

testimony in all three trials under MCL 768.27a, the

trial court found that defendant would have also testi-

fied in response in all three trials.

In sum, we conclude the trial court did not err by

ruling that the offenses were related and joinder was

not an abuse of discretion.

Defendant argues that the trial court improperly

excluded as hearsay AW’s testimony regarding whether

the police intimidated her and forced her to testify.

Defendant argues that as a result of the exclusion of the

testimony, he was deprived of his rights to confront

witnesses, to present a defense, and to a fair trial. We

agree that the challenged testimony was improperly

excluded as hearsay, but conclude that the exclusion of

the testimony was harmless. Defendant preserved this

claim for appeal by arguing that it was not hearsay, but

defendant did not argue that the exclusion of the

evidence affected his constitutional rights. Therefore,

the trial court’s exclusion of the evidence is reviewed for

an abuse of discretion, People v King, 297 Mich App 465,

472; 824 NW2d 258 (2012), and the constitutional

claims are reviewed for plain error affecting substantial

rights, Carines, 460 Mich at 763, 774.

“ ‘Hearsay’ is a statement, other than the one made

by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter

asserted.” MRE 801(c). An out-of-court statement in-

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troduced to show its effect on a listener, as opposed to

proving the truth of the matter asserted, does not

constitute hearsay under MRE 801(c). See Hilliard v

Schmidt, 231 Mich App 316, 318; 586 NW2d 263 (1998),

overruled in part on other grounds in Molloy v Molloy,

247 Mich App 348, 349-350 (2001). Such statements are

“not offered for a hearsay purpose because [their] value

does not depend upon the truth of the statement[s].”

People v Lee, 391 Mich 618, 642; 218 NW2d 655 (1974).

Defense counsel asked AW, “Did anyone indicate to

you what would happen if you didn’t come [to testify]?”

When she responded affirmatively, defense counsel

asked, “And that would be that you would be taken to

jail?” This question was not offered to prove that AW

would, in fact, go to jail if she refused to testify, but

instead to prove why AW was testifying against her will.

Therefore, the trial court erred by ruling that the

question called for inadmissible hearsay. In any event, it

was clear from other testimony in the record that AW

did not want to testify and she did not want defendant

to get in trouble. Defendant was not precluded from

questioning AW’s credibility and, in closing argument,

defense counsel maintained that AW only testified

against defendant because she wanted the police “off

her back.” Even though the trial court erred by exclud-

ing the challenged evidence, the error was harmless and

did not affect defendant’s substantial rights.

VII

Defendant claims that the prosecutor improperly

dismissed an accosting charge after the jury was se-

lected, questioned him about the credibility of other

witnesses, commented about the credibility of witnesses

in closing argument, and appealed to the jury to sym-

pathize with the victims because of their young age.

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307

Defendant failed to object to the prosecutor’s alleged

errors. Therefore, his unpreserved claims are reviewed

for plain error affecting substantial rights. People v

Grant, 445 Mich 535, 545-546, 553; 520 NW2d 123

(1994).

First, defendant argues that the stipulation by the

parties to dismiss one of two counts of accosting with

regard to MM—after the jury had been selected and

informed of the charges—constitutes error. But when

this claim was raised in the posttrial motion for a new

trial, the trial court found no impropriety or bad motive

in the prosecutor’s decision to dismiss this charge.

Whether to charge defendant was within the prosecu-

tor’s discretion. People v Venticinque, 459 Mich 90, 100;

586 NW2d 732 (1998). Moreover, defendant cannot

establish prejudice. Even though the prosecutor dis-

missed the second accosting charge, the jury was nev-

ertheless aware of defendant’s repeated requests of MM

for naked photographs.

Second, we agree that the prosecutor erred by asking

defendant to comment on the credibility of several

witnesses’ testimony. The Supreme Court has held that

it is improper for a prosecutor to ask a defendant to

comment on the credibility of prosecution witnesses

because his or her opinion “is not probative of the

matter.” People v Buckey, 424 Mich 1, 17; 378 NW2d 432

(1985). But a timely objection could have cured this

error, id., and in its closing instructions to the jury, the

trial court advised the jury that it was the “only judge[]

of the facts” and it “must decide which witnesses [to]

believe.” Therefore, defendant cannot establish that the

prosecutor’s questions affected his substantial rights.

Third, contrary to defendant’s claim on appeal, the

prosecutor did nothing in closing argument to suggest

that he had personal knowledge that his witnesses were

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worthy of belief while defendant was not. Rather, the

prosecutor argued that, based on the facts already in

evidence, his witnesses were credible. Likewise, the

prosecutor attacked defendant’s credibility on the basis

of the unlikelihood that all of the witnesses had collabo-

rated to lie. People v Couch, 49 Mich App 69, 72; 211

NW2d 250 (1973). Because the prosecutor did not

insinuate that he had some special knowledge regarding

whether defendant was testifying truthfully, but in-

stead relied on the facts in the record, defendant cannot

establish plain error. People v Thomas, 260 Mich App

450, 453-454; 678 NW2d 631 (2004). Moreover, even if

the prosecutor relied on his improper questioning of

defendant, no prejudice resulted because the trial court

instructed the jury that the attorneys’ closing argu-

ments were not evidence. People v Ackerman, 257 Mich

App 434, 449; 669 NW2d 818 (2003).

Fourth, we conclude that the prosecutor did not

improperly appeal to the jury to sympathize with the

victims because of their young age. Rather, as the trial

court found, age was at issue in the cases. The prosecu-

tor was entitled to latitude in arguing his theory of the

case, People v Bahoda, 448 Mich 261, 282; 531 NW2d

659 (1995), particularly because the victims testified

that they participated in the charged conduct willingly

with defendant and they did not want him to get in

trouble, but the Legislature has enacted the age-based

CSC and accosting statutes to protect children who are

not capable of consenting to participate. See People v

Armstrong, 490 Mich 281, 292 n 14; 806 NW2d 676

(2011), quoting People v Cash, 419 Mich 230, 247-248;

351 NW2d 822 (1984) (“ ‘[T]here is no issue of consent

in a statutory rape charge because a victim below the

age of consent is conclusively presumed to be legally

incapable of giving his or her consent to sexual inter-

course.’ ”).

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309

Reversal is not required because there is no basis to

conclude that the prosecutor’s charging decision, ques-

tioning, or argument resulted in the conviction of an

actually innocent defendant or seriously affected the

fairness, integrity, or public reputation of the judicial

proceedings. Defendant argues that the cumulative

effect of the alleged prosecutorial errors warrants re-

versal even if the individual errors do not. But only

“actual errors” are aggregated when reviewing a

cumulative-error argument. Bahoda, 448 Mich at 292 n

64. Here, only the prosecutor’s cross-examination of

defendant, requiring him to comment on the credibility

of the prosecutor’s witnesses, constituted error. Again,

this error, alone, did not affect defendant’s substantial

rights and does not require reversal.

Defendant cannot establish that he was denied the

effective assistance of counsel from the failure to object

to the cross-examination of defendant regarding the

credibility of the prosecutor’s witnesses. Defendant

failed to provide any evidentiary support to overcome

the presumption of trial strategy. People v Ginther, 390

Mich 436, 443; 212 NW2d 922 (1973); People v Hoag,

460 Mich 1, 6; 594 NW2d 57 (1999). Moreover, in light

of the overwhelming evidence presented at trial, the

failure to object was not outcome-determinative. Any

objection to the remaining claims of prosecutorial error

would have been futile. Thomas, 260 Mich App at 457.

VIII

Next, defendant argues that the trial court erred by

providing an incorrect instruction for the accosting

charges and that defense counsel was ineffective for

failing to object to the instruction. We disagree. Defen-

dant’s claim of instructional error is waived because

defense counsel stated on the record that he had no

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objection to the jury instructions. People v Kowalski,

489 Mich 488, 504-505; 803 NW2d 200 (2011). More-

over, even if the instruction was erroneous, defendant

cannot establish that defense counsel’s failure to object

so prejudiced him that he was deprived of a fair trial.

Grant, 470 Mich at 485-486. MCL 750.145a provides:

A person who accosts, entices, or solicits a child less than

16 years of age, regardless of whether the person knows the

individual is a child or knows the actual age of the child, or

an individual whom he or she believes is a child less than 16

years of age with the intent to induce or force that child or

individual to commit an immoral act, to submit to an act of

sexual intercourse or an act of gross indecency, or to any

other act of depravity or delinquency, or who encourages a

child less than 16 years of age, regardless of whether the

person knows the individual is a child or knows the actual

age of the child, or an individual whom he or she believes is

a child less than 16 years of age to engage in any of those

acts is guilty of a felony punishable by imprisonment for

not more than 4 years or a fine of not more than $4,000.00,

or both.

In Kowalski, the trial court explained the elements of

the crime of accosting a child:

Because the Legislature used the disjunctive term “or,” it is

clear that there are two ways to commit the crime of

accosting a minor. A defendant is guilty of accosting a

minor if the prosecution proves beyond a reasonable doubt

that the defendant (1) accosted, enticed, or solicited (2) a

child (or an individual whom the defendant believed to be

a child) (3) with the intent to induce or force that child to

commit (4) a proscribed act. Alternatively, a defendant is

guilty of accosting a minor if the prosecution proves beyond

a reasonable doubt that the defendant (1) encouraged (2) a

child (or an individual whom the defendant believed to be

a child) (3) to commit (4) a proscribed act. Taken as a

whole, the statute permits conviction under two alterna-

tive theories, one that pertains to certain acts and requires

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a specific intent and another that pertains to encourage-

ment only and is silent with respect to mens rea.[Kowalski,

489 Mich at 499.]

The trial court in Kowalski instructed the jury cor-

rectly with respect to the “encourages” prong, but the

Supreme Court concluded that it erroneously omitted

the actus reus element of the “accosts, entices, or

solicits” prong of the offense. Id. at 502. In any event,

the defendant’s attorney waived this error by stating

that he had no objections to the instructions. Id.at

503-505. The Court further held that the defendant’s

attorney was not ineffective because the jury would

have convicted the defendant on the basis of the

evidence regardless of the instructional error. Id.at

507, 510 n 38.

Here, too, defendant alleges that the trial court

omitted the requirement that he intended to induce or

force a child to commit a proscribed act in the “accosts,

entices, or solicits” prong of the offense. The instruction

provided, in relevant part:

First, that the defendant intended to accost, entice, or

solicit a child....Second, that the child was less than 16

years of age. Third, that the defendant intended to encour-

age [MM/CP] to do any of the following: A, commit an

immoral act. B, submit to an act of gross indecency. C, any

other act of depravity or delinquency.

Just like in Kowalski, defense counsel waived this claim

of instructional error and was not ineffective because

the jury would have convicted defendant on the basis of

the evidence regardless of the instructional error. De-

fendant testified that he texted “dirty” messages to MM

because she liked it and did not deny that he “persis-

tently” requested that MM and CP send him naked

photographs. The victims also testified that, if they did

not send the photographs, defendant would ignore them

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or threaten to end their relationship—according to CP,

defendant told her he would stop coaching her in track.

Defendant told the victims not to reveal their relation-

ships with him to others. Because there was over-

whelming evidence that defendant intended to induce

the victims to send naked photographs to him, defense

counsel’s failure to object to the absence of the specific-

intent element of the “accosts, entices, or solicits”

prong of the offense did not prejudice defendant. Defen-

dant was not denied the effective assistance of counsel.

Defendant also argues that a statement by the trial

court during voir dire amounted to vouching and denied

him the right to an impartial judge. We disagree.

In its voir dire instructions to the prospective jurors,

the trial court explained:

The Information--or,actually, there’s a couple of Infor-

mations in this case, because we’ve combined several files.

But the Informations in these cases charge the defendant,

Logan Gaines, with the crimes of accosting a child for an

immoral purpose and criminal sexual conduct, third de-

gree. We have three separate Informations. They have been

combined because they’re kind of related, as you’ll learn

through the course of this trial.

Defense counsel did not object to the characterization

of the cases as “kind of related.” A trial court is

presumed to be fair and impartial. People v Wade, 283

Mich App 462, 470; 771 NW2d 447 (2009). Thus,

defendant has a heavy presumption of impartiality to

overcome. People v Wells, 238 Mich App 383, 391; 605

NW2d 374 (1999). Absent deep-seated favoritism or

antagonism making the exercise of fair judgment

impossible, judicial rulings or opinions are not valid

grounds for alleging bias. People v Jackson, 292 Mich

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App 583, 598; 808 NW2d 541 (2011). In reviewing

challenged remarks, “[p]ortions of the record should

not be taken out of context in order to show trial

court bias against defendant; rather the record

should be reviewed as a whole.” People v Paquette, 214

Mich App 336, 340; 543 NW2d 342 (1995).

Looking at the remarks as a whole, the instruction to

the prospective jurors that the cases were “kind of

related” was merely an attempt by the trial court to

explain why three separate cases were being tried

together. We concluded in Part V that the cases were in

fact related to defendant’s overall scheme or plan of

preying on young, teenage girls. Therefore, the trial

court’s characterization was not improper and, con-

trary to defendant’s claim, the statement does not

indicate that he was denied an impartial judge. Because

the trial court’s characterization was not improper, any

objection by defense counsel would have been futile.

Therefore, defendant cannot establish that defense

counsel was ineffective for failing to object. Thomas,

260 Mich App at 457.

Defendant argues that the trial court foreclosed the

jury from requesting further clarification about the

CSC-III instruction. We disagree.

During deliberations and after meeting with counsel

at the bench, the trial court advised the jury:

Ladies and gentlemen, I received your most recent note

which says we need clarity on the third degree criminal

sexual conduct. You have the instructions on that, so I

would suggest you refer to those. And with that, I will

excuse you at this time to go back and continue your

deliberations.

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Defendant relies on the line of cases regarding a jury’s

request for transcripts. That authority provides that

the trial court errs by completely foreclosing the possi-

bility of later reviewing the testimony. See People v

Holmes, 482 Mich 1105 (2008); People v Carter, 462

Mich 206, 218; 612 NW2d 144 (2000); People v Davis,

216 Mich App 47, 57; 549 NW2d 1 (1996). Defendant’s

reliance on this authority is misplaced, but in any event,

the trial court did not completely foreclose further

inquiry. The trial court had previously indicated on the

record that it would be receptive to questions and would

respond appropriately. Here, the trial court referred the

jury to its initial instruction on CSC-III, which defen-

dant does not allege was improper. People v Katt, 248

Mich App 282, 311; 639 NW2d 815 (2001) (a trial court

is not obligated to repeat previously given instructions

as long as the “court’s supplemental instruction was

responsive to the jury’s request and did not serve to

mislead the jury in any manner”). Therefore, reviewing

the instructions as a whole, People v Henderson, 306

Mich App 1, 4; 854 NW2d 234(2014), we conclude that

the trial court did not plainly err. Absent any error,

defense counsel was not ineffective for failing to object

to the trial court’s response to the jury’s question.

Thomas, 260 Mich App at 457.

Defendant argues that he was denied his constitu-

tional right to confront witnesses because two lines of

inquiry were precluded: (1) the identities of other boys

the victims sent naked photographs, and (2) whether

the victims had similar sexual contact with other boys.

A primary interest secured by the Confrontation

Clause is the right of cross-examination. Delaware v

Van Arsdall, 475 US 673, 678; 106 S Ct 1431; 89 L Ed 2d

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674 (1986); Douglas v Alabama, 380 US 415, 418; 85 S

Ct 1074; 13 L Ed 2d 934 (1965). “[L]imitation[s] on

cross-examination that prevent[ ] a defendant from

placing before the jury facts from which bias, prejudice,

or lack of credibility of a prosecution witness might be

inferred constitutes denial of the constitutional right of

confrontation.” People v Kelly, 231 Mich App 627, 644;

588 NW2d 480 (1998). However, “[t]he right of cross-

examination does not include a right to cross-examine

on irrelevant issues....”People v Adamski, 198 Mich

App 133, 138; 497 NW2d 546 (1993). “ ‘[T]rial judges

retain wide latitude insofar as the Confrontation Clause

is concerned to impose reasonable limits on such cross-

examination based on concerns about...interrogation

that is repetitive or only marginally relevant.’ ” Id.,

quoting Van Arsdall, 475 US at 679.

First, defendant claimed that the victims had actu-

ally suggested sending naked photographs to him. To

support this defense, testimony that the victims sent

photographs to others was arguably relevant and thus

permissible at trial. But the identities of the other

alleged recipients would not have had any significant

tendency to make the defense more or less probable.

MRE 401. Absent any showing that the identities of the

other alleged recipients had any particular relevance,

defendant’s right of confrontation was not denied when

the trial court precluded testimony about the identities

of other boys the victims may have sent naked photo-

graphs. Adamski, 198 Mich App at 138.

Second, defendant claims that evidence of the vic-

tims’ sexual activity with others of the “same type”

alleged to have occurred with him should have been

admitted. Only MM and AW alleged that they had any

sexual contact with defendant. Accordingly, the ques-

tion before this Court is whether defendant should have

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been allowed to offer evidence that MM and AW had

similar sexual contact with other boys. MCL 750.520j

provides, in relevant part:

(1) Evidence of specific instances of the victim’s sexual

conduct, opinion evidence of the victim’s sexual conduct,

and reputation evidence of the victim’s sexual conduct

shall not be admitted under sections 520b to 520g unless

and only to the extent that the judge finds that the

following proposed evidence is material to a fact at issue in

the case and that its inflammatory or prejudicial nature

does not outweigh its probative value:

(a) Evidence of the victim’s past sexual conduct with the

actor.

(b) Evidence of specific instances of sexual activity

showing the source or origin of semen, pregnancy, or

disease.

A “victim” is defined in MCL 750.520a(s) as “the person

alleging to have been subjected to criminal sexual

conduct.” Here, MM testified that defendant repeatedly

digitally penetrated her vagina and AW testified that

she had sexual intercourse with defendant. Therefore,

MM and AW were victims under MCL 750.520j because

they alleged that they were subjected to criminal sexual

conduct. Evidence of any instances of sexual contact

they had with other boys was inadmissible.

Defendant claims evidence of the other instances of

sexual contact should have been admissible because the

victims were not just testifying as victims in their own

cases, but were testifying as witnesses in the other

cases; defendant claims that victims, not witnesses, are

protected by MCL 750.520j. Defendant’s argument is

unpersuasive because, regardless whether MM and AW

were testifying to support their own case or to provide

other-acts evidence under MCL 768.27a for the other

cases, they still alleged that they were “subjected to

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criminal sexual conduct” and were “victims” under

MCL 750.520a(s).

Defendant also claims that even if evidence of the

other instances of sexual contact was inadmissible in

the prosecution for CSC-III, the evidence should have

been admitted in the prosecution for accosting; accost-

ing is not protected by MCL 750.520j. Again, in his

defense to the accosting charges, defendant claimed

that the victims first initiated sending naked photo-

graphs to him and that they sent naked photographs to

others. Whether the victims had sexual contact with

others was not relevant to his defense to those charges.

MRE 401. Defendant had no right of confrontation with

regard to irrelevant issues. Adamski, 198 Mich App at

138. Moreover, even if the evidence was somehow rel-

evant, the trial court did not clearly err by determining,

in response to the motion for a new trial, that the

proposed testimony raised “concerns about harass-

ment, prejudice, confusion of the issues....” Defen-

dant was not denied his constitutional right of confron-

tation.

XII

Defendant argues that MCL 750.145a is unconstitu-

tional on its face, claiming it is both vague and over-

broad. We disagree. Again, this Court reviews de novo

questions of constitutional law. Harper, 479 Mich at

610.

Again, MCL 750.145a provides:

A person who accosts, entices, or solicits a child less than

16 years of age, regardless of whether the person knows the

individual is a child or knows the actual age of the child, or

an individual whom he or she believes is a child less than 16

years of age with the intent to induce or force that child or

individual to commit an immoral act, to submit to an act of

318 306 M

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289 [Aug

sexual intercourse or an act of gross indecency, or to any

other act of depravity or delinquency, or who encourages a

child less than 16 years of age, regardless of whether the

person knows the individual is a child or knows the actual

age of the child, or an individual whom he or she believes is

a child less than 16 years of age to engage in any of those

acts is guilty of a felony punishable by imprisonment for

not more than 4 years or a fine of not more than $4,000.00,

or both.

There is a presumption that a statute is constitu-

tional, and this Court will construe it this way unless its

unconstitutionality is “clearly apparent.” People v Hub-

bard (After Remand), 217 Mich App 459, 483-484; 552

NW2d 493 (1996). A statute can be unconstitutionally

vague if it: (1) fails to provide fair notice to the public of

the proscribed conduct, (2) gives the trier of fact un-

structured and unlimited discretion to determine if an

offense has been committed, or (3) is overbroad and

impinges on First Amendment rights. People v Nichols,

262 Mich App 408, 409-410; 686 NW2d 502 (2004). To

evaluate a vagueness challenge, a court must examine

the entire text of the statute and give the words of the

statute their ordinary meanings. People v Hrlic, 277

Mich App 260, 263; 744 NW2d 221 (2007). Vagueness

challenges must be considered in light of the facts at

issue. Id. “A statute is unconstitutionally vague if

persons of ordinary intelligence must necessarily guess

at its meaning.” People v Pierce, 272 Mich App 394,

398-399; 725 NW2d 691 (2006). A “statute is suffi-

ciently definite if its meaning can fairly be ascertained

by reference to judicial interpretations, the common

law, dictionaries, treatises, or the commonly accepted

meanings of words.” People v Lueth, 253 Mich App 670,

676; 660 NW2d 322 (2002).

The dictionary definition of “immoral” is “violating

moral principles” or “licentious; lascivious.” The term

2014] P

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AINES

319

“licentious” is defined as “sexually unrestrained” and

the term “lascivious” means “arousing sexual desire.”

“Indecent” means “offending against standards of mo-

rality or propriety” and “deprave” means “to make

morally bad or evil; vitiate; corrupt.” Finally, “delin-

quency” is defined as “wrongful, illegal, or antisocial

behavior.” Random House Webster’s College Dictionary

(2001). Persons of ordinary intelligence need not guess

at the meaning of these terms in MCL 750.145a be-

cause, when read in context with the rest of the statute,

the language refers to criminal acts and is intended to

protect children from being induced, forced, or encour-

aged to commit such acts.

Contrary to defendant’s claim on appeal, read in

context, the statute provides fair notice to the public of

the proscribed conduct and does not give a trier of fact

unstructured and unlimited discretion to determine

whether an offense has been committed. No reasonable

person would have to guess whether asking 13- or

14-year-old girls for photographs of them naked, par-

ticularly of their breasts and vaginas, is immoral con-

duct under the statute. Therefore, defendant’s vague-

ness challenge must fail because he cannot establish

that no circumstances exist under which the statute

would be valid. People v Abraham, 256 Mich App 265,

280; 662 NW2d 836 (2003) (“The challenger to the face

of a statute must establish that no circumstances exist

under which it would be valid.”).

A statute is overbroad when it precludes or prohibits

constitutionally protected conduct in addition to con-

duct or behavior that it may legitimately regulate.

People v McCumby, 130 Mich App 710, 714; 344 NW2d

338 (1983). Under the overbreadth doctrine, a defen-

dant may “challenge the constitutionality of a statute

on the basis of the hypothetical application of the

320 306 M

ICH

289 [Aug

statute to third parties not before the court.” People v

Rogers, 249 Mich App 77, 95; 641 NW2d 595 (2001).

Defendant argues that the statute regulates both

speech and conduct. Therefore, defendant must demon-

strate that the overbreadth of the statute is both real

and substantial—there is a “ ‘realistic danger that the

statute itself will significantly compromise recognized

First Amendment protections of parties not before the

Court for it to be facially challenged on overbreadth

grounds.’ ” Id. at 96, quoting Los Angeles City Council

v Taxpayers for Vincent, 466 US 789, 801; 104 S Ct

2118; 80 L Ed 2d 772 (1984). The statute will not be

found to be facially invalid on overbreadth grounds,

however, “where it has been or could be afforded a

narrow and limiting construction by state courts or if

the unconstitutionally overbroad part of the statute can

be severed.” Rogers, 249 Mich App at 96.

MCL 750.145a proscribes accosting or encouraging

children for the purpose of inducing them to engage in

criminal activity. This statute does not pose realistic

dangers to First Amendment protections. Because the

statute is aimed at criminal activity, it does not apply to

defendant’s scenarios, such as a mother’s recommend-

ing an abortion to her child or skipping mass on

Sundays. Therefore, MCL 750.145a is not facially over-

broad. Defendant’s constitutional challenge to MCL

750.145a is without merit.

XIII

Defendant claims that the cumulative effect of errors

at trial deprived him of a fair trial and that reversal is

required. We disagree. “ ‘The cumulative effect of

several errors can constitute sufficient prejudice to

warrant reversal even when any one of the errors alone

would not merit reversal, but the cumulative effect of

2014] P

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321

the errors must undermine the confidence in the reli-

ability of the verdict before a new trial is granted.’ ”

People v Brown, 279 Mich App 116, 146; 755 NW2d 664

(2008), quoting People v Dobek, 274 Mich App 58, 106;

732 NW2d 546 (2007). Because we have found support

in the record for only two of defendant’s claims of error,

and because those errors were harmless, they neither

separately nor cumulatively warrant a new trial.

XIV

Last, defendant argues that the trial court erred by

ordering him to pay restitution for the general cost of

investigating and prosecuting his criminal activity. We

agree. Although defendant failed to preserve this issue,

this Court may review the trial court’s restitution

award for plain error affecting substantial rights.

People v Buie, 285 Mich App 401, 407; 775 NW2d 817

(2009).

Restitution is afforded both by statute and by the

Michigan Constitution. Const 1963, art 1, § 24; People v

Grant, 455 Mich 221, 229; 565 NW2d 389 (1997). The

purpose of restitution is to “allow crime victims to recoup

losses suffered as a result of criminal conduct.” Id. at 230.

The Crime Victim’s Rights Act, MCL 780.751 et seq.,

determines whether a sentencing court’s restitution order

is appropriate. People v Crigler, 244 Mich App 420, 423; 625

NW2d 424 (2001). [People v Newton, 257 Mich App 61, 68;

665 NW2d 504 (2003).]

Under MCL 780.766(1), victims entitled to restitution

include a “governmental entity... that suffers direct

physical or financial harm as a result of a crime.”

(Emphasis added.)

In Crigler, 244 Mich App at 423, this Court deter-

mined that the loss of “buy money” paid by a narcotics

enforcement team for controlled substances constituted

322 306 M

ICH

289 [Aug

direct financial harm resulting from the defendant’s

crime. Id. at 426-427. This Court noted:

The loss of buy money is qualitatively unlike the expendi-

ture of other money related to a criminal investigation,

because it results directly from the crime itself; that is, the

money is lost when it is exchanged for the controlled

substance. The payment of salaries and overtime pay to the

investigators, the purchase of surveillance equipment, the

purchase and maintenance of vehicles, and other similar

expenditures are “costs of investigation” unrelated to a

particular defendant’s criminal transaction. These expen-

ditures would occur whether or not a particular defendant

was found to be engaged in the sale of controlled sub-

stances. [Id. at 427.]

In Newton, this Court relied on the dicta in Crigler

that the payment of the costs of the investigation a

crime, such as salaries and equipment, would occur

regardless whether a particular defendant committed

the crime and therefore could not be recouped through

restitution. Newton, 257 Mich App at 69-70. Therefore,

the Newton panel determined that the $2,500 the

defendant was ordered to pay the sheriff’s department

as reimbursement for its cost in the investigation of the

defendant was plain error affecting the defendant’s

substantial rights. Id.at70.

Here, the trial court ordered defendant to pay resti-

tution for officer investigation (24 hours for $864), a

forensic analyst (102 hours for $3,672), and discs

($6.64). These costs are comparable to costs of the

investigation in Newton and distinguishable from the

direct cost of the buy money paid in Crigler.

There-

We reject the prosecutor’s argument that the trial court could have

alternatively ordered the costs to be repaid under the general taxing

authority of MCL 769.34(6), which provides, “As part of the sentence, the

court may also order the defendant to pay any combination of a fine,

costs, or applicable assessments. The court shall order payment of

2014] P

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323

fore, the trial court erred by ordering restitution and we

vacate that portion of the judgment of sentence order-

ing $4,542.64 in restitution.

We affirm defendant’s convictions, vacate the order

of restitution, and remand to the trial court for entry of

an amended judgment of sentence consistent with this

opinion. We do not retain jurisdiction.

ITZGERALD

and M

ARKEY

, JJ., concurred with W

ILDER

P.J.

restitution as provided by law.” Our Michigan Supreme Court recently

explained, “MCL 769.34(6) allows courts to impose only those costs or

fines that the Legislature has separately authorized by statute.” People v

Cunningham, 496 Mich 145, 158 n 11; 852 NW2d 118 (2014).

324 306 M

ICH

289 [Aug

PEOPLE v MINEAU

Docket No. 313178. Submitted May 13, 2014, at Marquette. Decided

August 5, 2014, at 9:05 a.m.

Francis S. Mineau was convicted in 1999 of indecent exposure involving

two minors and required to register as a sex offender under the Sex

Offender Registration Act (SORA), MCL 28.721 et seq. At that time

and all times relevant to this case, he lived less than 1,000 feet from

an elementary school. In 2005, the Legislature amended SORA by

adding provisions related to student safety zones. MCL 28.733(f)

defines a student safety zone as the area 1,000 feet or less from school

property, and MCL 28.735(1) prohibits registered sex offenders from

residing within that zone. MCL 28.735(3)(c), however, additionally

provides that the prohibition does not apply to someone who was

living in the zone on January 1, 2006. Accordingly, defendant’s 1999

conviction did not require him to vacate his residence when the

amendments became effective. Defendant was removed from the sex

offender registry in 2011, but in 2012 he exposed himself to minors

who were passing his house. He was charged in the Delta Circuit

Court with and pleaded guilty of aggravated indecent exposure, MCL

750.335a(2)(b) and was again required to register as a sex offender.

Defendant was sentenced to probation. The prosecution argued that

defendant was required by MCL 28.735(1) to vacate his residence

within the student safety zone and relocate more than 1,000 feet from

school property. The court, Stephen T. Davis, J., concluded that

because defendant had resided within the student safety zone on

January 1, 2006, the exception set forth in MCL 28.735(3)(c) applied

and accordingly declined to order defendant to vacate his residence as

a term of probation. The prosecution appealed by leave granted.

The Court of Appeals held:

1. The first sentence of MCL 28.735(3)(c) provides a general

exception to the prohibition against living in a student safety zone

for sex offenders who were residing within the zone on January 1,

2006. The second sentence of MCL 28.735(3)(c), however, renders

that exception inapplicable to an individual who initiates or

maintains contact with a minor within that student safety zone.

The statute has no temporal component; it does not require that

the initiation or maintenance of contact that triggers this excep-

2014] P

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325

tion to the general exception occur after the conduct giving rise to

the defendant’s current offense. Consequently, the exception set

forth in the first sentence of MCL 28.735(3)(c) does not apply in

the case of an individual who has contact with a minor in a student

safety zone, and MCL 28.735(1) required defendant to vacate his

residence within the student safety zone.

2. Under MCL 28.735(4), an individual who is required to

move from a student safety zone pursuant to MCL 28.735(1) has a

period of up to 90 days in which to do so. This provision applies to

an individual such as defendant who generally meets the require-

ment of the MCL 28.735(3)(c) exception (that he or she had been

living in the student safety zone on January 1, 2006) but to whom

MCL 28.735(3)(c) does not apply by virtue of the exception to the

exception set forth in the second sentence of MCL 28.735(3)(c) for

individuals who initiated or maintained contact with a minor.

Therefore, defendant had 90 days from the imposition of his

sentence to vacate his residence within the student safety zone.

3. MCL 28.735(4) further provides that if the individual ini-

tiates or maintains contact with a minor within the student safety

zone during the 90-day period, he or she is not entitled to the

benefit of the 90-day allowance to effect the change of residence.

Trial court’s order vacated and case remanded for resentencing

with a probation term requiring defendant to leave his residence.

1. C

RIMINAL

AW —

FFENDERS

EGISTRATION

CT —

TUDENT

AFETY

ONES

ROUND

CHOOLS —

ACATING

ESIDENCE

The Sex Offender Registration Act defines a student safety zone in

MCL 28.733(f) as the area 1,000 feet or less from school property, and

MCL 28.735(1) prohibits registered sex offenders from residing

within that zone; MCL 28.735(3)(c) provides a general exception to

that prohibition for sex offenders who were residing within the zone

on January 1, 2006, but the exception does not apply to an individual

who initiates or maintains contact with a minor within that student

safety zone, and that individual is required to vacate his or her

residence within the zone; the initiation or maintenance of contact

that triggers this exception to the general exception may be the

conduct that gave rise to the sex offender’s current offense (MCL

28.721 et seq.).

2. C

RIMINAL

AW —

FFENDERS

EGISTRATION

CT —

TUDENT

AFETY

ONES

ROUND

CHOOLS —

ACATING

ESIDENCE —

90-D

ERIOD TO

ACATE

The Sex Offender Registration Act provides in MCL 28.735(4) that a

registered sex offender who is required to move from a student

326 306 M

ICH

325 [Aug

safety zone pursuant to MCL 28.735(1) has a period of up to 90

days in which to do so; the provision applies to an individual who

under MCL 28.735(3)(c) would otherwise not be required to move

because he or she was living in the zone on January 1, 2006, except

for the fact that he or she initiated or maintained contact with a

minor, rendering the exception of MCL 28.735(3)(c) inapplicable;

furthermore, an individual who initiates or maintains contact with

a minor within the student safety zone during the 90-day period is

no longer entitled to the benefit of the 90-day allowance to effect

the change of residence (MCL 28.721 et seq.).

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Steven C. Parks, Prosecuting Attor-

ney, and James E. Soderberg, Assistant Prosecuting

Attorney, for the people.

Russell W. Hall for defendant.

Before: B

ECKERING

,P.J., and R

ONAYNE

RAUSE

and

OONSTRA

,JJ.

OONSTRA

, J. The prosecution appeals by leave

granted

the trial court’s order denying its request to

order defendant, Francis Steven Mineau, to vacate his

residence within the “student safety zone” as a term of

probation as a registered sex offender in accordance

with MCL 28.735(1), part of the Sex Offenders Regis-

tration Act (SORA), MCL 28.721 et seq. We vacate the

order and remand for resentencing.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

At all relevant times, defendant’s residence was

located approximately 191 feet from an elementary

school. Pursuant to SORA, because he lived within

1,000 feet of the school, he lived within a “student

People v Mineau, unpublished order of the Court of Appeals, entered

June 21, 2013 (Docket No. 313178).

2014] P

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INEAU

327

safety zone.” MCL 28.733(f). In 1999, he was appar-

ently

convicted of indecent exposure involving two

young girls who were walking to school. See MCL

750.335a. Consequently, he was required to register as a

sex offender, but at the time, SORA did not require him

to vacate his residence. In 2005, the Legislature

amended SORA by adding MCL 28.735, which, inter

alia, provides that individuals who are required to be

registered under SORA “shall not reside within a stu-

dent safety zone.” MCL 28.735(1), as added by 2005 PA

121 (effective January 1, 2006). However, notwithstand-

ing his 1999 conviction, defendant was not required to

vacate his residence when the statute became effective

because he “was residing within that student safety

zone on January 1, 2006.” MCL 28.735(3)(c), as

amended by 2005 PA 322. In 2011, defendant was

removed from the sex offender registry.

On May 15, 2012, defendant exposed himself to

elementary school children who were passing his house

in a school bus. Defendant was charged with, and

pleaded guilty of, aggravated indecent exposure, MCL

750.335a(2)(b). As a consequence, defendant was again

required to register as a sex offender. Defendant was

sentenced, in relevant part, to probation subject to a

number of conditions, including placing an opaque

fence around his property. Relevant to the instant

appeal, the prosecutor argued that under MCL

28.735(1), defendant was required to vacate his resi-

dence within the student safety zone and relocate to

more than 1,000 feet from school property. The trial

court concluded that because defendant had resided

The exact nature of defendant’s prior conviction was not specified in

the record before us, and we have not been provided with a copy of

defendant’s presentence investigation report. Nevertheless, defendant

has not disputed the prosecution’s description of the 1999 incident.

328 306 M

ICH

325 [Aug

within the student safety zone on January 1, 2006, the

exception set forth in MCL 28.735(3)(c) applied to him.

The trial court accordingly declined to order defendant

to vacate his residence as a term of probation. This

appeal followed.

II. STANDARD OF REVIEW

“We review for an abuse of discretion a trial court’s

decision to set terms of probation.” People v Mali-

nowski, 301 Mich App 182, 185; 835 NW2d 468 (2013).

An abuse of discretion occurs when the trial court’s

decision falls outside the range of principled outcomes.

Id. Additionally, an error of law might lead a trial court

to abuse its discretion. Donkers v Kovach, 277 Mich App

366, 368; 745 NW2d 154 (2007). We review de novo as a

question of law an issue of statutory interpretation.

People v Anderson, 298 Mich App 178, 181; 825 NW2d

678 (2012).

III. ANALYSIS

MCL 28.735(1) states that “[e]xcept as otherwise pro-

vided . . . , an individual required to be registered [under

SORA] shall not reside within a student safety zone.” It is

not disputed that unless an exception applies, MCL

28.735(1) would require defendant, as a registered sex

offender living in a student safety zone, to vacate his

residence. However, the statute provides exceptions to the

requirement found in MCL 28.735(1) in certain instances.

In pertinent part, MCL 28.735(3) provides:

This section does not apply to any of the following:

***

safety zone on January 1, 2006. However, this exception

2014] P

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329

does not apply to an individual who initiates or maintains

contact with a minor within that student safety zone.

As noted, defendant was residing in his current resi-

dence on January 1, 2006. Consequently, under the first

sentence of MCL 28.735(3)(c), defendant would not be

required to vacate his residence. However, the applica-

bility of the second sentence is at issue here. It is equally

undisputed that “contact” need not be direct and physi-

cal. The trial court properly, if implicitly, concluded that

defendant’s conduct in the instant offense had consti-

tuted a kind of contact. The relevant inquiry is whether

the “exception to the exception” set forth in the second

sentence of MCL 28.735(3)(c) can be satisfied by the

very conduct that causes an individual to have to

satisfied by subsequent conduct. In other words, does

the Legislature’s use of the phrase “initiates or main-

tains contact” include a temporal component that can-

not be satisfied by the conduct giving rise to the current

offense but can only be satisfied by subsequent con-

duct?

We do not find such a temporal component in the

language used by the Legislature in MCL 28.735(3)(c).

What the Legislature was addressing was its height-

ened concern regarding that subset of sex offenders

whose conduct is directed at minors and, in particular,

minors within a student safety zone. Consequently, in

recognition of the fact that the first sentence of MCL

28.735(3)(c) provides a general exception for sex offend-

ers (of any type) who were residing within a student

safety zone on January 1, 2006, the Legislature added

the second sentence of MCL 28.735(3)(c) to render that

exception wholly inapplicable to “an individual who

initiates or maintains contact with a minor within that

student safety zone.”

330 306 M

ICH

325 [Aug

The language used by the Legislature does not, as

defendant suggests, limit the exception to the exception

to conduct that occurs after an individual is required to

ture provided that the exception set forth in the first

sentence of MCL 28.735(3)(c) simply has no application

in the case of an individual who has contact with a

minor in a student safety zone. The suggested temporal

component would, in essence, grant defendant a “free

pass,” but it is one that we find the Legislature did not

intend by the plain language of the statute.

Accordingly, we hold that the statutory language does

not limit the exception to the exception to conduct that

occurs after an individual is required to register as a sex

offender. Rather, the exception set forth in the first

sentence of MCL 28.735(3)(c) simply does not apply in

the case of an individual who has contact with a minor

in a student safety zone.

This Court’s decision in People v Zujko, 282 Mich App

520; 765 NW2d 897 (2009), is not to the contrary. In

Zujko, this Court held that “MCL 28.735(1) and MCL

28.735(3)(c), taken together, mean that a registered sex

offender shall not reside in a student safety zone unless

the offender resided in that zone as of January 1, 2006.”

Id. at 523. In discussing the word “individual” in the

context of MCL 28.735(3)(c), this Court stated that “if

such an individual engages in any contact with a minor,

the individual loses the benefit of the [exception] and

We similarly find no temporal component in the Legislature’s use of

the word “required” in MCL 28.735(1). The Legislature could have

prohibited only those individuals who were required to register before

committing a current offense from residing in a student safety zone. It

did not do so, however. Rather, by the plain language of MCL 28.735(1),

defendant is, by virtue of his current offense, “an individual required to

be registered” under SORA. He is therefore prohibited under that section

from residing in the student safety zone.

2014] P

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INEAU

331

must move his or her residence within 90 days pursuant

to [MCL 28.735(4)].” Id. at 524. Zujko thus merely held

that the exception set forth in the first sentence of MCL

28.735(3)(c) applied to any individual who resided in the

student safety zone as of January 1, 2006, thereby

rejecting the prosecution’s position that MCL

28.735(3)(c) also required that the individual have been

a registered sex offender as of that date. The Court’s

holding did not require interpretation of the second

sentence of MCL 28.735(3)(c) because the defendant in

that case was not charged with, or required to register

as a sex offender because of, any “contact with a minor

within [the] student safety zone.” MCL 28.735(3)(c).

Nor does the interplay between MCL 28.735(3)(c)

and (4) require a different result. MCL 28.735(4) states:

An individual who resides within a student safety zone

and who is subsequently required to register under [MCL

28.723 through MCL 28.730] shall change his or her

residence to a location outside the student safety zone not

more than 90 days after he or she is sentenced for the

conviction that gives rise to the obligation to register under

[MCL 28.723 through MCL 28.730]. However, this excep-

tion does not apply to an individual who initiates or

maintains contact with a minor within that student safety

zone during the 90-day period described in this subsection.

While MCL 28.735(4) was not directly at issue in

Zujko, the Court addressed its interplay with MCL

28.735(3)(c) in dicta,

as follows:

Subsection 4 gives an individual who resides in a student

safety zone and who becomes a registered sex offender 90

days to relocate outside the zone. A reading of MCL

In arguing that an individual did not fall within the MCL 28.735(3)(c)

exception unless he or she was a registered sex offender as of January 1,

2006, the prosecution contended in Zujko that the trial court’s contrary

interpretation would render MCL 28.735(4) nugatory. This Court re-

jected that position.

332 306 M

ICH

325 [Aug

28.735(4) and MCL 28.735(3)(c) indicates that an indi-

vidual who falls under the 3(c) exemption would not be

compelled to comply with the requirement of subsection 4.

However, an individual who did not meet the 3(c) require-

ment, i.e., he or she did not reside in a school safety zone

before January 1, 2006, would be required to move his or

her residence within 90 days pursuant to subsection 4.

[Zujko, 282 Mich App at 523-524.]

MCL 28.735(4) thus generally affords an individual

who is required to move from a student safety zone

pursuant to MCL 28.735(1) a period of up to 90 days in

which to do so. As the Court in Zujko noted, an

individual who falls under the MCL 28.735(3)(c) excep-

tion is not required to move from the student safety

zone, and therefore Subsection (4) does not apply to

that individual. But “an individual who did not meet

the [Subsection] 3(c) requirement, i.e., he or she did not

reside in a school safety zone before January 1, 2006,

would be required to move his or her residence within

90 days pursuant to subsection 4.” Id. at 524. What the

Court in Zujko did not address, even in dicta, was the

effect, if any, of Subsection (4) when the second sen-

tence of MCL 28.735(3)(c) applies. That, again, is be-

cause the defendant in Zujko had not engaged in any

“contact with a minor within [the] student safety zone.”

MCL 28.735(3)(c).

We conclude, consistently with Zujko, that like an

individual to whom MCL 28.735(3)(c) does not apply

(because the individual did not reside within the stu-

dent safety zone as of January 1, 2006), an individual

who generally does meet that MCL 28.735(3)(c) require-

ment, but to whom MCL 28.735(3)(c) is wholly inappli-

cable by virtue of the exception to the exception set

forth in the second sentence of MCL 28.735(3)(c), is

subject to MCL 28.735(4). He or she must therefore

“change his or her residence to a location outside the

2014] P

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333

student safety zone not more than 90 days after he or

she is sentenced for the conviction that gives rise to the

obligation to register under [MCL 28.723 through MCL

28.730].” MCL 28.735(4). However, as it did in MCL

28.735(3)(c), the Legislature has provided an exception

when the individual “initiates or maintains contact

with a minor within that student safety zone during the

90-day period....”MCL28.735(4). In that event, the

individual is not entitled to the benefit of the 90-day

allowance that Subsection (4) otherwise affords.

In other words, if, as here, the current offense

required registration under SORA, see MCL

28.723(1)(a); MCL 28.722(k) and (s)(ii), and MCL

750.335a(2)(b), and the individual offender was not

subject to an exception or, as here, the specific exception

was inapplicable, the individual generally would have a

90-day period within which to change his or her resi-

dence. That is true even if, as here, the offense involved

“contact with a minor within [the] student safety zone.”

MCL 28.735(3)(c). However, if the individual “initiates

or maintains contact with a minor within [the] student

safety zone during the 90-day period,” MCL 28.735(4),

he or she loses the benefit of the 90-day period other-

wise allowed to effect the change of residence.

Consequently, because defendant’s current offense

involved contact with a minor within the student safety

zone, MCL 28.735(3)(c), the exception set forth in the

first sentence of that subsection is inapplicable, and

defendant must therefore vacate his residence within

the student safety zone pursuant to MCL 28.735(1).

Pursuant to MCL 28.735(4), he must do so within 90

days of the imposition of his sentence. If he were to

initiate or maintain contact with a minor within that

student safety zone during that 90-day period, he would

lose the benefit of that 90-day allowance.

334 306 M

ICH

325 [Aug

We therefore find that the “exception to the excep-

tion” set forth in the second sentence of MCL

28.735(3)(c) is satisfied by the conduct of the instant

offense that caused defendant to have to register as a

sex offender. We vacate the trial court’s order denying

the prosecution’s request to order defendant to vacate

his residence as a term of probation, and remand for

resentencing with that added term of probation.

Reversed and remanded. We do not retain jurisdic-

tion.

ECKERING

,P.J., and R

ONAYNE

RAUSE

, J., concurred

with B

OONSTRA

,J.

2014] P

EOPLE V

INEAU

335

NATIONAL WILDLIFE FEDERATION v DEPARTMENT OF

ENVIRONMENTAL QUALITY (No 1)

Docket No. 307602. Submitted June 3, 2014, at Lansing. Decided August 12,

2014, at 9:00 a.m. Leave to appeal sought.

Kennecott Eagle Minerals Company sought to develop an under-

ground mine to extract nickel and copper from the sulfide ores

beneath the headwaters of the Salmon Trout River in the Yellow

Dog Plains in Marquette County. Kennecott submitted applica-

tions to the Department of Environmental Quality (DEQ) for a

nonferrous metallic mineral mining permit and a groundwater

discharge permit. The DEQ consolidated the applications for

public hearings and eventually issued the mining and discharge

permits to Kennecott. Petitioners, the National Wildlife Federa-

tion, Yellow Dog Watershed Preserve, Inc., Keweenaw Bay Indian

Community, and Huron Mountain Club, requested contested case

hearings on both permits. An administrative law judge (ALJ)

issued a proposal for decision, rejecting all challenges but crediting

the concern of the Keweenaw Bay Indian Community that Eagle

Rock, the proposed location for the mine’s portal, was a place of

worship and concluding that the permit application should there-

fore include a specific assessment in that regard. The DEQ initially

remanded the matter to the ALJ for additional findings on

whether Eagle Rock was a place of worship, then vacated that

order and referred that issue along with the rest of the issues in

the case to the DEQ’s final decision-maker for a final determina-

tion and order. The final determination and order adopted the

findings of fact and conclusions of law set forth in the ALJ’s

proposal for decision, with minor additions, except the final

decision-maker concluded that a stipulation prevented petitioners

from making the religious status of Eagle Rock an issue or,

alternatively, that Mich Admin Code, R 425.202(2)(p), which calls

for the assessment of mining impacts on “places of worship,”

concerned only buildings used for human occupancy, not purely

outdoor locations such as Eagle Rock. Petitioners sought judicial

review in the Ingham Circuit Court. The circuit court, Paula J.

Manderfield, J., entered separate orders affirming the decisions of

the DEQ to grant both permits. Petitioners filed separate applica-

tions for leave to appeal with regard to both permits. The Court of

336 306 M

ICH

336 [Aug

Appeals granted both applications in unpublished orders. The

present case, Docket No. 307602, concerns the decision to grant

the mining permit. The companion case, Docket No. 308366,

concerns the decision to grant the groundwater discharge permit

and is reported following the present case.

The Court of Appeals held:

1. The DEQ and the circuit court correctly recognized the

contested case proceeding below as an extension of the initial

application process.

2. The DEQ did not err by allocating to appellants the burden

of proof to prove their objections in the contested case proceedings.

Mich Admin Code, R 324.64(1) imposes on a party filing a petition

for a contested case hearing the burden of proof and of moving

forward unless otherwise required by law. The provisions of MCL

324.63205(3), which establish that a person or entity seeking a

mining permit under Part 632 of the Natural Resources and

Environmental Protection Act, MCL 324.63201 to MCL

324.63223, bears the burden of proving that the mining project

will satisfy applicable requirements, do not set forth other law

governing contested case proceedings under Part 632.

3. The testimony does not support appellants’ contention that

the DEQ failed to hold Kennecott to its initial burden of proof

concerning mitigating environmental damage or otherwise com-

plying with applicable law.

4. The circuit court did not misapprehend or misapply the

pertinent standard of review by holding that substantial evidence

supported the DEQ’s conclusion that the mine would be structur-

ally sound.

5. Substantial evidence supported the conclusion that the

proposed mining project imposed no significant potential for

environmental impacts beyond the mining site. There was more

than a scintilla of the evidence supporting the conclusion that

there was no significant potential for environmental impacts

beyond the immediate mining area.

6. Because Kennecott neither knew, nor should have known, of

the alleged traditional cultural uses of Eagle Rock when it offered

its environmental impact assessment under MCL 324.63205(2)(b),

the assessment was not deficient for want of consideration of Eagle

Rock.

7. The circuit court correctly recognized that the expert testi-

mony concerning the lack of protocols for analyzing the cumula-

tive impacts from all proposed mining activities and through all

processes or mechanisms and that indicated that Kennecott had

2014] N

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DEQ (N

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followed best practices constituted substantial evidence to support

the DEQ’s determination that Kennecott had satisfied the require-

ment of Mich Admin Code, R 425.202(1)(b) and (2) to consider

cumulative impacts.

8. The record contains more than a scintilla of the evidence

indicating that the mining plans include adequate safeguards to

protect surface waters from acid rock drainage.

9. Because substantial evidence supported the conclusion that

the crown pillar of the mine would be stable, the DEQ and the

circuit court did not err by not requiring Kennecott’s contingency

plans to consider an extreme-case scenario regarding failure of the

crown pillar.

Affirmed.

DMINISTRATIVE

AW —

URDEN OF

ROOF —

ONTESTED

ASE

ROCEEDINGS

MCL 324.63205(3) establishes that a person or entity seeking a

mining permit under Part 632 of the Natural Resources and

Environmental Protection Act, MCL 324.63201 to MCL

324.63223, bears the burden of proving that the mining project

will satisfy the requirements applicable to the project; Subsection

63205(3) does not set forth “other law” governing contested case

proceedings under Part 632 for purposes of Mich Admin Code, R

324.64(1), which imposes on a party filing a petition for a contested

case hearing the burden of proof and of moving forward “unless

otherwise required by law.”

Hooper, Hathaway, Price, Beuche & Wallace (by

Bruce T. Wallace, William J. Stapleton, and Angela L.

Jackson) for the National Wildlife Federation, Yellow

Dog Watershed Preserve, Inc., Keweenaw Bay Indian

Community, and Huron Mountain Club.

F. Michelle Halley for the National Wildlife Federa-

tion and Yellow Dog Watershed Preserve, Inc.

Honigman, Miller, Schwartz and Cohn LLP (by Eric

J. Eggan and H. Kirk Meadows) and Heather L. Chap-

man for the Keweenaw Bay Indian Community.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Richard A. Bandstra, Chief Legal

338 306 M

ICH

336 [Aug

Counsel, and Robert P. Reichel and Andrew T. Prins,

Assistant Attorneys General, for the Department of

Environmental Quality.

Warner Norcross & Judd LLP (by Daniel P. Ettinger

and Gaëtan Gerville-Réache) for Kennecott Eagle Min-

erals Company.

Before: C

AVANAGH

,P.J., and O

WENS

and S

TEPHENS

,JJ.

URIAM

. Appellants appeal by leave granted the

circuit court’s order affirming the decision of the De-

partment of Environmental Quality (DEQ) to grant a

mining permit to the Kennecott Eagle Minerals Com-

pany. We affirm.

I. FACTS

This case reflects the attempt to balance the poten-

tially conflicting imperatives of exploiting a great eco-

nomic opportunity and protecting the environment,

natural resources, and public health. At issue is appel-

lee Kennecott’s proposal to develop an underground

mine to extract nickel and copper from the sulfide ores

beneath the headwaters of the Salmon Trout River in

the Yellow Dog Plains in Marquette County.

Governing such activities is 2004 PA 449, which

added Part 632, MCL 324.63201 to MCL 324.63223, to

the Natural Resources and Environmental Protection

Act, MCL 324.101 et seq. MCL 324.63205(1) states: “A

person shall not engage in the mining of nonferrous

metallic minerals except as authorized in a mining

permit issued by the department.” A “nonferrous me-

tallic mineral” is “any ore or material to be excavated

from the natural deposits on or in the earth for its

metallic content, but not primarily for its iron or iron

2014] N

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mineral content, to be used for commercial or industrial

purposes.” MCL 324.63201(j). The Legislature set forth

certain findings on this subject in MCL 324.63202,

including the following:

from the iron oxide ore deposits currently being mined in

Michigan in that the sulfide minerals may react, when

exposed to air and water, to form acid rock drainage. If the

mineral products and waste materials associated with

nonferrous metallic sulfide mining operations are not prop-

erly managed and controlled, they can cause significant

damage to the environment, impact human health, and

degrade the quality of life of the impacted community.

(d) The special concerns surrounding nonferrous metal-

lic mineral mining warrant additional regulatory measures

beyond those applied to the current iron mining opera-

tions.

(e) Nonferrous metallic mineral mining may be an

important contributor to Michigan’s economic vitality. The

economic benefits of nonferrous metallic mineral mining

shall occur only under conditions that assure that the

environment, natural resources, and public health and

welfare are adequately protected.

In February 2006, Kennecott submitted applications

to the DEQ for a nonferrous metallic mineral mining

permit and a groundwater discharge permit. In January

2007, the DEQ consolidated the applications for public

hearings, which were held in September 2007. In De-

cember 2007, the DEQ issued the mining and discharge

permits to Kennecott.

Appellants requested contested case hearings on

both permits. The DEQ’s administrative law judge

(ALJ) held consolidated hearings over the spring and

summer of 2008. In August 2009, the ALJ issued a

proposal for decision, rejecting all challenges but cred-

iting the concern of appellant Keweenaw Bay Indian

340 306 M

ICH

336 [Aug

Community that the proposed location for the mine’s

portal, Eagle Rock, was a place of worship, and conclud-

ing that the permit application should therefore include

a specific assessment in that regard.

The DEQ initially remanded the matter to the ALJ

for additional findings on whether Eagle Rock was a

place of worship, then vacated that order and referred

that issue along with the rest of the case to its final

decision-maker for a final determination and order.

The final decision-maker concluded that a stipulation

prevented appellants from making the religious status

of Eagle Rock an issue, and, alternatively, that Mich

Admin Code, R 425.202(2)(p), which calls for assess-

ment of mining impacts on “places of worship,” con-

cerned only buildings used for human occupancy, not

purely outdoor locations such as Eagle Rock. The final

determination and order thus departed from the ALJ’s

recommendations in that regard, but otherwise adopted

the findings of fact and conclusions of law set forth in

the proposal for decision, with minor additions, and

granted the mining permit.

Appellants sought judicial review in the circuit court,

which, in a lengthy and detailed opinion and order, af-

firmed the DEQ in all regards. This Court granted leave to

appeal in an unpublished order entered August 7, 2012.

II. STANDARDS OF REVIEW

The circuit court’s task was to review the administra-

tive decision to determine if it was authorized by law and

supported by competent, material, and substantial evi-

As noted, this appeal relates only to the decision to grant the mining

permit. The decision to grant the groundwater discharge permit is the

subject of this case’s companion, Nat’l Wildlife Federation v Dep’t of

Environmental Quality (No 2), 306 Mich App 369; 856 NW2d 394 (2014)

(Docket No. 308366).

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DEQ (N

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dence on the whole record. Const 1963, art 6, § 28; MCL

24.306(1). An agency decision is not authorized by law if it

violates constitutional or statutory provisions, lies beyond

the agency’s jurisdiction, follows from unlawful proce-

dures resulting in material prejudice, or is arbitrary and

capricious. Northwestern Nat’l Cas Co v Comm’r of Ins,

231 Mich App 483, 488; 586 NW2d 563 (1998).

“[W]hen reviewing a lower court’s review of agency

action this Court must determine whether the lower

court applied correct legal principles and whether it

misapprehended or grossly misapplied the substantial

evidence test to the agency’s factual findings.” Boyd v

Civil Serv Comm, 220 Mich App 226, 234; 559 NW2d

342 (1996). “This latter standard is indistinguishable

from the clearly erroneous standard....[A]finding is

clearly erroneous when, on review of the whole record,

this Court is left with the definite and firm conviction

that a mistake has been made.” Id. at 234-235.

A tribunal’s interpretation of a statute is subject to

review de novo. In re Complaint of Rovas, 482 Mich 90,

102; 754 NW2d 259 (2008). A tribunal’s interpretation

of an administrative rule is reviewed likewise. Aaronson

v Lindsay & Hauer Int’l Ltd, 235 Mich App 259, 270;

597 NW2d 227 (1999). A tribunal’s evidentiary deci-

sions are reviewed for an abuse of discretion. See Price

v Long Realty, Inc, 199 Mich App 461, 466; 502 NW2d

337 (1993).

Unpreserved issues, however, are reviewed for plain

error affecting substantial rights. Kern v Blethen-

Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).

III. SCOPE OF CONTESTED CASE PROCEEDINGS

Appellants argue that the ALJ erred by allowing the

introduction of new evidence in the contested case

proceedings, or otherwise in treating the contested case

342 306 M

ICH

336 [Aug

as an extension of the original process of deciding the

permit application. Appellants suggest that the original

application proceedings leading up to the initial deci-

sion to issue the mining permit should be deemed a

completed adjudication, with the contested case pro-

ceedings that followed then serving as the first stage of

appellate review, which, for that reason, should have

proceeded with a conservative approach to taking new

evidence. We disagree.

As noted in our opinion affirming the circuit court’s

rejection of this argument in connection with appel-

lants’ objections to the DEQ’s decision to issue a

groundwater discharge permit, Nat’l Wildlife Federa-

tion v Dep’t of Environmental Quality (No. 2), 306 Mich

App 369; 856 NW2d 394 (2014) (Docket No. 308366),

§ 1701(1) of the Natural Resources and Environmental

Protection Act, MCL 324.1701(1), authorizes the circuit

court to grant “declaratory and equitable relief against

any person for the protection of the air, water, and other

natural resources and the public trust in these re-

sources from pollution, impairment, or destruction.”

Section 1704(2) adds that, when “administrative, li-

censing, or other proceedings are required or available

to determine the legality of the defendant’s conduct, the

court may direct the parties to seek relief in such

proceedings.” Section 1704(4) states: “If judicial review

of an administrative, licensing, or other proceeding is

available,... the court originally taking jurisdiction

shall maintain jurisdiction for purposes of judicial re-

view.”

MCL 324.63205(2) through MCL 324.63205(15) set

forth procedures for applying for a mining permit and

for an initial agency decision on the application. MCL

324.63219(1) in turn authorizes a person aggrieved by

agency action or inaction relating to a mining permit to

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file a petition for a contested case hearing. The statutes

governing discharge permits set forth parallel provi-

sions. See MCL 324.3103(1); MCL 324.3106; MCL 324.

3112(1) and (3).

As noted in the companion case, these statutory

provisions collectively set forth avenues for the DEQ to

arrive at a single final decision on a permit application.

We decline to repeat here the full analysis from the

companion case, but reiterate that MCL 324.1704 re-

serves appellate review to the circuit court that deferred

to an administrative agency in the first instance and

that the provisions for third parties to initiate contested

cases, and generous provisions for submission of new

evidence, better comport with original actions than

with appellate proceedings. See also MCR 7.210(A) and

MCR 7.216(A)(4) (restricting additions to the original

record in appeals before this Court); MCL 24.275 and

Mich Admin Code, R 324.64 (liberally providing for the

presentation of evidence in contested cases).

For these reasons, we conclude that the DEQ and the

circuit court correctly recognized the contested case

proceeding below as an extension of the initial applica-

tion process for purposes of arriving at a single final

agency decision on the application for a mining permit.

IV. BURDEN OF PROOF

Appellants argue that the DEQ erred by allocating

the burden of proof to appellants to prove their objec-

tions in the contested case proceedings. We disagree.

MCL 324.63205(3) establishes that a person or entity

seeking a mining permit under Part 632 bears the

burden of proving that the mining project will satisfy

applicable requirements, including that the project will

proceed in ways minimizing adverse impacts on the

environment:

344 306 M

ICH

336 [Aug

The applicant has the burden of establishing that the terms

and conditions set forth in the permit application; mining,

reclamation, and environmental protection plan; and envi-

ronmental impact assessment will result in a mining op-

eration that reasonably minimizes actual or potential ad-

verse impacts on air, water, or other natural resources and

meets the requirements of this act.

MCL 324.63219(1) authorizes a person aggrieved by

agency action or inaction relating to a mining permit to

file a petition for a contested case hearing, and

§ 63219(2) directs that such contested case hearings be

held in accordance with the Administrative Procedures

Act.

The latter authorizes administrative agencies to

promulgate rules governing procedures for contested

cases. MCL 24.233(3). Mich Admin Code, R 324.64(1),

in turn, imposes on a party “filing an administrative

complaint or petition for a contested case hearing...

the burden of proof and of moving forward unless

otherwise required by law.”

Appellants insist that the burden of proof set forth in

MCL 324.63205(3) properly remained with Kennecott

beyond the initial application proceedings and through

its answering of appellants’ objections in the contested

case proceedings. Appellants acknowledge Rule

324.64(1), but emphasize that it subordinates its allo-

cation of the burden of proof where a different alloca-

tion is “required by law,” and argue that such deference

to “other law” should have kept MCL 324.63205(3)

applicable throughout the proceedings below.

But MCL 324.63205(3) does not set forth “other law”

governing contested case proceedings under Part 632,

because it sets forth the burden of proof for an “appli-

cant,” meaning a party seeking a mining permit. Appel-

lants assert that Kennecott remained an “applicant”

MCL 24.201 et seq.

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DEQ (N

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through all the proceedings below, which is true in an

important sense, given that, as discussed in Part III of

this opinion, the contested case proceeding properly

decided the question of Kennecott’s mining permit de

novo, and so Kennecott always bore the burden of

offering evidence with which the DEQ could decide if

the requirements for a mining permit were satisfied.

But if, in that sense, Kennecott retained the status of

applicant throughout the proceedings, it nonetheless

took on the status of responding intervenor in answer-

ing appellants’ objections. MCL 324.63205(3) governs

applicants, not intervenors or respondents, and so does

not constitute “other law” supplanting the allocation of

the burden of proof in Rule 324.64(1) to those resorting

to contested cases in hopes of vindicating objections to

agency action or inaction.

Appellants also suggest that the DEQ failed to apply

the proper statutory evidentiary standard in reviewing

Kennecott’s permit application in the first instance,

asserting that the DEQ official who headed the review

team in this matter testified that his team did not apply

MCL 324.63205 in reviewing the permit application,

and that the ALJ called on appellants to submit conclu-

sive evidence that the mining operation would, in fact,

pollute, impair, or destroy natural resources.

However, checking the page of the record appellants

cited to support their assertion concerning how the ALJ

approached the case brought to light only one of the

many instances where the ALJ held appellants to the

burden of proving their objections, consistent with the

substantive commands of Rule 324.64(1). The discus-

The DEQ’s final determination and order reflected this understand-

ing in pointing out that the case was ultimately decided on the basis of

how the evidence preponderated generally, not simply on the basis of

appellants’ failure to prove their objections.

346 306 M

ICH

336 [Aug

sion at the page cited related to the contested case

proceeding, and thus sheds no light on what burden

Kennecott was held to in initially satisfying the DEQ

that it was entitled to the mining permit.

Appellants draw their argument about how the

DEQ’s team leader testified from the following ex-

change that occurred when that witness was cross-

examined:

Q. Subsection (11)

[

]

lays out the terms under which

your department could grant a permit; right?

A. Correct.

Q. And could you just read that language for the

record? . . . Subsection (b) would be okay, I think.

A. Okay.

“Subject to subsection (10), the department shall ap-

prove a mining permit if it determines both of the follow-

ing: The permit application meets the requirements of this

part. The proposed mining operation will not pollute,

impair or destroy the air, water or other natural resources

or the public trust in those resources in accordance with

Part 17 of this act.

[

]

In making this determination, the

department shall take into account the extent to which

other permit determinations afford protection to natural

resources. For the purposes of this subsection, excavation

and removal of nonferrous metallic minerals and of asso-

ciated overburden and waste rock in and of itself does not

constitute pollution, impairment or destruction of those

natural resources.”

Q. Now, subsection (12) indicates that, if the conditions

in subsection (11), which you just read, are not met, the

department shall deny the permit; right?

MCL 324.63205(11).

“This act” refers to the Natural Resources and Environmental

Protection Act, MCL 324.101 et seq., Part 17 of which, MCL 324.1701 to

MCL 324.1706, is the Michigan environmental protection act, commonly

referred to as the MEPA.

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DEQ (N

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A. That is correct.

Q. Now, given the section we just read before this about

the burden of proof being on the applicant, would you agree

with me that the burden of proof is on the applicant to

prove that they will not pollute, impair or destroy the air,

water or other natural resources of the public trust and

those resources in accordance with Part 17, which is the

Michigan Environmental Protection Act, for the record?

A. The applicant does have the burden under this

section, yes.

Q. Okay. The burden that they will not pollute; right?

A. . . . I’m not familiar with Part 17....I’mnotsure of

the contents of that.

Q. Okay. But they have the burden of proving that they

will not pollute natural resources; right?

A. . . . [I]t says that subsection (10)—“The department

shall approve a mining permit if it determines both of the

following.” But you’re right. They have to provide us the

information that we would be able to use to make that

determination.

Q. So the applicant has the burden of proving that they

will not pollute air, water or other natural resources; right?

A. Well, I don’t understand that. I’m not sure what your

question—

Q. I’m just asking do you agree with me about that—

that that’s what the language here says?

A. It does not say that, because it doesn’t say anything

about the applicant having the burden of proof there.

Q. But we just read that.

A. We read that in the previous section.

Q. Right. But we could go back and look at it if you want

to....I’ll just read.

“The applicant has the burden of establishing that the

terms and conditions set forth in the permit application,

mining, reclamation and environmental protection plan

and environmental assessment will result in a mining

348 306 M

ICH

336 [Aug

operation that reasonably minimizes actual or potential

adverse impacts on air, water and other natural resources

and meets the requirements of this act.”

[

]

Right?

A. Correct.

Q. So all of these requirements—for the whole Part 632

and its rules, the applicant has the burden; right?

A. I’m not sure.

Counsel for Kennecott then objected that this question

had been asked and answered. The ALJ opined that

“he’s done the best he can in answering it,” but counsel

for the National Wildlife Federation and the Yellow Dog

Watershed Preserve, Inc., continued:

Q. [W]hat standard did you apply in guiding your team’s

review of the application and ultimately making a recom-

mendation that the application be approved and a permit

be granted? What was the standard you used?

A. We referred to the rule package and under the rules

identified the sections that were required to be submitted

by the applicant and did those indeed meet the require-

ments of the rules. And there’s many rules that are there.

Q. There are. Did you apply this section of the statute to

your analysis?

A. I did not, no.

Q. Did the mining team apply this section of the statute

to its analysis?

A. I don’t believe so, no.

Although counsel did finally succeed in obtaining the

witness’s agreement that his review team did not apply

the statutory standard, presumably still referring to

MCL 324.63205(3) and its placing of the burden on the

applicant to show that a mining project will reasonably

This is a close paraphrase of MCL 324.63205(3).

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DEQ (N

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minimize adverse impacts on natural resources and

otherwise comply with environmental laws, the witness

stated earlier that the applicant bore the burden of

showing such compliance. That witness’s inability to

engage in a discourse on the environmental protection

act, as incorporated by reference within Part 632, shows

only that the review team considered the myriad factors

involved in deciding a permit application as being

guided by a “package” of “many rules” instead of by

general statutory provisions. The cross-examination set

forth above did not include detailing or exploring those

“many rules,” let alone attempting to expose them as

failing to operate in furtherance of the applicable statu-

tory imperatives.

For these reasons, we conclude that the testimony

that appellants here take issue with did not imply that

the DEQ failed to hold Kennecott to its initial burden of

proof concerning mitigating environmental damage or

otherwise complying with applicable law.

V. HYDRAULIC AND STRUCTURAL STABILITY

Appellants argue that the overwhelming weight of

the evidence established that the mine is at substantial

risk of hydraulic or structural failure if constructed and

operated as planned. Appellants express concerns that

the crown pillar—the undisturbed rock mass that is left

between the active mine workings and the surface, in

other words the “roof” of the mine—may collapse and

that water from the overhead Salmon Trout River or

wetlands could flood the mine and cause acid rock

drainage on a large scale. The circuit court was satisfied

that substantial evidence supported the DEQ’s conclu-

sion that the mine would be structurally sound. We

agree with the circuit court.

350 306 M

ICH

336 [Aug

Appellants point out that the DEQ’s review team for

this project resorted to outside experts to supplement

its expertise in rock mechanics and geochemistry to

review the plans and assert that the experts so relied on

adjudged the mine application as proposing a “ ‘sloppy’

and ‘indefensible’ ”design. However, review of the com-

plete opinions offered by those experts reveals that both

were persuaded that the plans for the mine, as finally

determined, would result in a structurally stable opera-

tion.

One of those experts, who was recognized without

objection as an expert in the fields of mining engineer-

ing, geotechnical engineering, rock mechanics, and

mine stability, recounted that he became involved in the

instant project in 2007 and that initial concerns had

included the stability of the crown pillar. But asked

about a recommendation that mining operations be

conducted initially to ensure a minimum thickness of

meters for the crown pillar, with careful monitor-

ing thereafter, the expert opined that this “was a

technically sound recommendation” and agreed that

the mining permit should be approved. The other of

those experts, whose credentials included having writ-

ten a Ph.D. thesis on the analysis of crown-pillar

stability, testified that the earlier envisioned crown

pillar of 57

meters would be “marginally stable,” but

that one of 87 meters as eventually decided on “is

definitely going to be stable.”

Appellants repeatedly assert that the latter witness

contradicted himself in a communication offered the

same day, and they separately contest an evidentiary

decision that kept that contradiction out of the record.

Appellants advise that this expert communicated

through an e-mail to an official with Kennecott’s parent

company that he retained serious concerns with even an

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DEQ (N

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-meter crown pillar. However, the copy of this

e-mail appellants wanted to enter into evidence was but

one part of an offered deposition exhibit of over a

thousand pages. Although the subject of that e-mail was

touched upon during that expert’s deposition, there was

no hint that that one part of the voluminous exhibit

seemed to contradict his approval of the crown pillar as

ultimately proposed. Further, that witness was avail-

able for neither cross-examination nor rehabilitation

when appellants attempted to contest that potential

impeachment evidence. For those reasons, the ALJ

limited admission of that exhibit to documents actually

discussed during the deposition. The circuit court af-

firmed that decision. We agree that, because appellants

wished to resort to that impeachment evidence only

after the opportunity to cross-examine the witness

regarding it had passed, the ALJ’s decision to disallow it

was not an abuse of discretion.

Appellants otherwise point to expert testimony that

persisted in expressing concerns about the stability of

the mine and argue that it should have held sway. But,

again, the circuit court’s task was not to reevaluate the

evidence, but rather to determine if substantial evi-

dence supported the DEQ’s decisions. “ ‘Substantial

evidence’ is evidence which a reasoning mind would

accept as sufficient to support a conclusion. While it

consists of more than a scintilla of evidence, it may be

substantially less than a preponderance.” Tomczik v

State Tenure Comm, 175 Mich App 495, 499; 438 NW2d

642 (1989). Because the circuit court recognized that

the opinions of the two experts discussed above approv-

ing of the crown pillar design as finally determined

provided substantial evidence in support of the DEQ’s

conclusion that agreed with them, we conclude that the

circuit court did not misapprehend or misapply the

pertinent standard of review.

352 306 M

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336 [Aug

VI. ENVIRONMENTAL IMPACT ASSESSMENT

MCL 324.63205(2)(b) requires that an application for

a permit to engage in the mining of nonferrous metallic

minerals include an environmental impact assessment

(EIA) describing “the natural and humanmade fea-

tures...intheproposed mining area and the affected

area that may be impacted by the mining, and the

potential impacts on those features from the proposed

mining operation,” and further directs that the EIA

“define the affected area and...address feasible and

prudent alternatives.”

A. POTENTIALLY AFFECTED AREA

Appellants argue that Kennecott’s EIA failed to

consider potential impacts outside the immediate min-

ing area. We agree with the DEQ and the circuit court

that Kennecott satisfied the pertinent requirement by

showing that there would be no such impacts.

“Affected area” is defined as “an area outside of the

mining area where the land surface, surface water,

groundwater, or air resources are determined through

an environmental impact assessment to be potentially

affected by mining operations within the proposed

mining area.” MCL 324.63201(b). In this case, Ken-

necott’s EIA addressed environmental impacts of the

mining project within the mining site only, insisting

that there was no significant potential for impacts

beyond the site and thus that its study needed to go no

further. Appellants argue that Kennecott’s EIA thus

failed to satisfy the requirement to take into account

the whole area that mining operations might impact,

including “area outside of the mining area.”

We note that the statutory command to consider

impacts “outside of the mining area” where natural

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resources “are determined through an environmental

impact assessment to be potentially affected by mining

operations” on its face imposes the duty to consider

area outside the immediate mining area only to the

extent that “the land surface, surface water, groundwa-

ter, or air resources” of such area are determined to be

vulnerable to the impacts of mining. The question,

then, is whether there was substantial evidence to

support the conclusion that the proposed mining project

imposed no significant potential for such environmental

impacts beyond its fences.

Not in dispute is that the experts offered conflicting

opinions in these regards. The ALJ resolved them in

favor of Kennecott, concluding that the record showed

that there would be no adverse environmental effects

outside the mine’s fence line from air deposition, water

drawdown, habitat fragmentation, or noise, that Ken-

necott’s air emissions would meet air quality standards

both on and off site, and that emissions would be at

permissible levels and have no adverse impact on the

area’s flora or fauna. The ALJ was thus satisfied that

Kennecott fulfilled the requirements of Part 632 to

address the “affected area” subject to mining impacts.

Appellants insist that the evidence militated in favor

of recognizing significant environmental impacts out-

side the area covered by the EIA. However, again,

weighing the evidence that way is not this Court’s, nor

was it the circuit court’s, task, which was and is to

review for substantial evidence.

The circuit court summarized in detail the testimony

of the environmental engineer who prepared Ken-

necott’s air permit application, who stated that he

intentionally overestimated the amount of air pollut-

ants likely to be produced, but that even under those

conditions the mine’s emissions would fall well within

354 306 M

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336 [Aug

legal limits. The court additionally noted that an air

quality specialist with the DEQ testified that the

amount and concentration of every air pollutant or

toxin that the mine would produce would be below the

permitted maximum and that, even after 10 years of

accumulation, the levels would be low enough that area

streams and soil would meet Michigan’s drinking water

and direct-contact criteria. According to this expert,

although particulate deposition would occur over a wide

area, it would be of no consequence because even the

highest of such concentrations would be at insignificant

levels. The court additionally noted that two toxicolo-

gists agreed that the maximum amount of emissions

and concentrations, even as projected over the 10-year

expected life of the mine, did not rise to the threshold of

concentrations that would bring about adverse effects

in plants, invertebrates, birds, or mammals. One of

them further explained that the annual maximum

deposition of the two heavy metals of greatest concern,

copper and nickel, would constitute a fraction of the

amount of those metals that was already found in the

area’s soil. The other opined that the amount of heavy

metals entering the area’s streams would be so small

that it was unlikely that there would be any toxic plume

in Lake Superior or any significant effect on the mouth

of the Salmon Trout River.

The circuit court further noted that several of appel-

lants’ own witnesses admitted that serious habitat

fragmentation had already occurred in the area as the

result of historical and ongoing logging and other

activities, that there was no evidence that wildlife used

the Yellow Dog Plains as a corridor between habitats,

and that other areas within the vicinity of the mine

provided the same habitats as those found within the

mine footprint, and so wildlife displaced by the mine

could readily relocate.

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The court recounted that Kennecott’s expert opined

that the decibel level of the blasting noise would start at

something akin to that of a chainsaw at the portal but

only register at the level of a spoken conversation at the

property line, but that after approximately one week

the noise from the blasts would register at the level of a

spoken conversation at the mine portal itself and would

be inaudible at the fence line. The court further noted

that Kennecott would be shielding lights at the mine

site, building berms around the outside of the surface

facilities to dampen noise, and equipping the exhaust

stacks with silencers.

The court continued that Kennecott planned to build

no new roads, intended to control road dust by watering

at regular intervals in accordance with the strict limits

set forth in the mining permit, and planned to follow a

fugitive dust plan. The court further noted that there

was testimony to the effect that road use associated

with the mine would not have a substantial impact on

wildlife in the area because the road was already well

used and regularly graded.

The court additionally summarized Kennecott’s

blasting expert’s testimony as stating that various

techniques would mitigate the vibrations of blasts in

order to protect sensitive areas or structures, so that

the particle velocity from blasting would be well below

levels that could damage buildings. The court noted

that the expert added that the blasting energy would be

well below the level that would be harmful to the fish in

the Salmon Trout River.

Appellants do not take issue with any of these

representations concerning the evidence of record, but

instead point to several examples of conflicting testi-

mony that they insist should have held sway. But the

DEQ was entitled to resolve such factual controversies

356 306 M

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336 [Aug

on the basis of substantial evidence, and the circuit

court’s summary obviously showed that there was more

than a scintilla of the evidence supporting the conclu-

sion that there was no significant potential for environ-

mental impacts beyond the immediate mining area.

B. PLACE OF WORSHIP

Mich Admin Code, R 425.202(1)(a)(i) requires that an

EIA include an “identification and description of the

condition or feature as it currently exists within the

mining area and the affected area.” Rule 425.202(2)

states that the latter requirements “apply to natural

and humanmade conditions and features including, but

not limited to,” several listed items, among which

Subrule (2)(p) specifies “[r]esidential dwellings, places

of business, places of worship, schools, hospitals, gov-

ernment buildings, or other buildings used for human

occupancy all or part of the year.”

At issue is the mining project’s impacts on Eagle

Rock, which appellants describe in their brief on appeal

as “an imposing jagged rock outcrop rising some 60 feet

at its highest point, from the otherwise flat geography

of the Yellow Dog Plain.” The testimony below included

elaborate descriptions of traditional religious and other

cultural uses of that location as a special gathering

place, along with ancient names for it from the perti-

nent Native American languages.

Kennecott’s EIA considered Eagle Rock only as nor-

mal topography, its archeologist having reported noth-

ing about that location to suggest that it was a place of

any cultural significance. The Keweenaw Bay Indian

Community intervened in this case over its concerns

regarding the impacts of mining operations on the

cultural traditions associated with Eagle Rock.

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Appellees objected to further development of this

issue below on the ground that appellants had stipu-

lated to limit such advocacy to the issue of the

Keweenaw Bay Indian Community’s standing to inter-

vene. The ALJ, however, reached the issue on its merits

and determined that further findings were in order. The

DEQ’s final decision-maker, however, alternatively con-

cluded that a stipulation kept the issue off the table and

that “place of worship” for purposes of Rule

425.202(2)(p) referred to buildings for human occu-

pancy, not purely outdoor locations. The circuit court in

turn affirmed the DEQ on those alternative grounds.

We affirm on still other grounds. See Zimmerman v

Owens, 221 Mich App 259, 264; 561 NW2d 475 (1997)

(stating that this Court will not reverse when the trial

court reaches the correct result even for the wrong

reason). Kennecott submitted its EIA in February 2006,

and public hearings on the mining application were

held in September of that year. In their brief on appeal,

appellants advise that Kennecott and the DEQ “were

informed of the significance of Eagle Rock during the

Part 632 public comment period,” thus admitting that

Kennecott had no knowledge of any such customs when

it submitted its EIA. Appellants nowhere suggest that

any investigation or inquiry on Kennecott’s part in the

early stages of the proceedings was deficient, nor do

they cite any authority for the proposition that a mining

applicant is obliged to update its EIA throughout the

whole review process to take account of newly acquired

information. Accordingly, assuming without deciding

that no stipulation prevented litigation of this issue and

also that “places of worship” for purposes of Rule

425.202(2)(p) include such outdoor locations as Eagle

Rock, we nonetheless hold that Kennecott’s EIA was

not deficient for want of consideration of Eagle Rock as

a place of worship, because it neither knew, nor should

358 306 M

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336 [Aug

have known, of such traditional cultural uses of that

location when it offered its EIA.

C. CUMULATIVE IMPACTS ANALYSIS

Mich Admin Code, R 425.202(1)(b) requires that an

EIA provided with an application for a permit to mine

nonferrous metallic minerals include an “analysis of the

potential cumulative impacts on each of the conditions

or features listed in [Rule 425.202(2)] within the mining

area and the affected area from all proposed mining

activities and through all processes or mechanisms,”

and specifies that the analysis “consider additive ef-

fects, and the assessment of significant interactions

between chemical and physical properties of any dis-

charges, with reference to the physical and chemical

characteristics of the environment into which the dis-

charge may be released.” Rule 425.202(2) lists the many

features and conditions to be considered. “Cumulative

impact” is “the environmental impact that results from

the proposed mining activities when added to other

past, present, and reasonably foreseeable future activi-

ties.” Mich Admin Code, R 425.102(1)(h).

That the witnesses differed on how best to analyze

cumulative impacts, and thus on whether Kennecott

satisfied that requirement, is not at issue. The ALJ

concluded that there was no generally accepted scien-

tific protocol for evaluating cumulative impacts of this

sort, that the only evidence in the record was that the

best practice was to accumulate as much data about

individual stressors as is practical and use that data to

The proceedings below included occasional comments about Native

American treaty rights in connection with Eagle Rock, which comments

were echoed at oral argument. But such discussion was properly kept at

the margins in this case, because proceedings under Part 632 are not a

forum for vindicating treaty rights.

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reach conclusions regarding overall potential impacts,

and that because Kennecott followed that best practice

its EIA included a cumulative-impacts analysis that

satisfied the requirements of Part 632.

The circuit court in turn acknowledged that appel-

lants presented witnesses who disapproved of how

Kennecott endeavored to address cumulative impacts,

but noted that a toxicologist had testified that the

components that a cumulative impact analysis should

include had in fact been addressed in Kennecott’s

permit application and that another expert testified

that the cumulative impact of multiple stressors was

very difficult to measure, that there was no established

protocol for evaluating the effect of multiple stressors,

at least with regard to wildlife, and that Kennecott

followed the standard method of assessing cumulative

impacts in its EIA.

Appellants do not dispute the circuit court’s sum-

mary of the evidence but for questioning the relevance

of, and otherwise discounting, the toxicologist’s opinion

on the sufficiency of Kennecott’s approach to cumula-

tive impacts.

We conclude that the circuit court correctly recog-

nized that the expert testimony concerning the lack of

protocols for analyzing cumulative impacts and indicat-

ing that Kennecott had followed best practices, consti-

tuted substantial evidence to support the DEQ’s deter-

mination that Kennecott had satisfied the requirement

to consider cumulative impacts.

VII. RECLAMATION AND ENVIRONMENTAL PROTECTION PLAN

MCL 324.63205(2)(c)(v) requires that an application

for a permit to mine nonferrous metallic minerals

include a reclamation and environmental protection

plan, which must in turn include “[p]rovisions for the

360 306 M

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336 [Aug

prevention, control, and monitoring of acid-forming

waste products and other waste products from the

mining process so as to prevent leaching into ground-

water or runoff into surface water.” Mich Admin Code,

R 425.203(c)(xxi) in turn requires that such plans

include information depicting or describing “[p]lans

and schedules for monitoring, containment, and treat-

ment of surface runoff that has contacted, or may

contact, ore, waste rock, overburden, or tailings deter-

mined to be reactive,” and that such plans “be designed

to reasonably minimize actual and potential adverse

impacts on groundwater and surface water by prevent-

ing leaching or runoff of acid-forming waste products

and other waste products from the mining process.”

MCL 324.63205(2)(c)(i) adds that such plans must

include “[a] description of materials, methods, and

techniques that will be utilized.” Subsection (2)(c)(ii)in

turn calls for “[i]nformation that demonstrates that all

methods, materials, and techniques proposed... are

capable of accomplishing their stated objectives in pro-

tecting the environment and public health,” with the

exception that “such information may not be required

for methods, materials, and techniques that are widely

used in mining or other industries and are generally

accepted as effective.”

A. ACID ROCK DRAINAGE

Appellants argue that Kennecott failed to adequately

address the prevention, control, and monitoring of

acid-forming waste products to prevent runoff into

surface waters. The circuit court dismissed that con-

cern on the ground that appellants had failed to provide

evidentiary support for their position. Appellants do not

argue that they did in fact provide evidentiary support

for their position, but instead suggest that this issue

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was self-preserving simply because, in their view, the

mining application was facially deficient in addressing

management of acid rock drainage and how to protect

nearby watercourses from it. We disagree and conclude

that the circuit court correctly recognized that appel-

lants bore the burden of proof in the contested case

proceedings (as discussed in Part IV of this opinion),

and so forfeited any issue over which they failed to give

expression to, and provide support for, any concerns

they had.

Further, appellants argue this issue in purely sub-

stantive terms, articulating no challenge to the circuit

court’s decision to deem it forfeited for lack of preser-

vation. Because appellants do not challenge the proce-

dural basis upon which the circuit court rejected its

appellate arguments regarding the adequacy of Ken-

necott’s plans to minimize the hazards of acid rock

drainage, we affirm the result below in this regard for

that reason.

Alternatively, we conclude that there was substantial

evidence to show that Kennecott’s reclamation and

environmental protection plan well enough addressed

that hazard.

The evidence showed that runoff from the facility or

road surfaces could contain sulfide- or sulfur-bearing

rock, which could turn to sulfuric acid, and that acid

rock drainage may also occur from runoff from devel-

opment rock, which is the material removed from the

mine to reach the ore. An environmental chemist elabo-

rated that a project of this sort involves “a lot of rock

that has not experienced oxygen or water...very deep

in the earth,” and that “as that rock is excavated...it

is exposed to oxygen and water,” triggering “reac-

tions...that generate sulfuric acid.” The expert added

that “the sulfuric acid then dissolves a variety of

362 306 M

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constituents,” potentially resulting in “water that’s...

acidic and has a highly variable metal loading that can

cause substantial impacts on receding waters.”

The

parties have consistently agreed that the hazard of acid

rock drainage that this mining project poses demands

careful management.

Kennecott’s application reported that development

rock would initially be stored in a temporary storage

area, then later returned to the mine as backfill. The

permit itself confirms this plan. The development rock

will be sheltered and neutralized with limestone, and

runoff will be routed to lined basins, whose pumps are

designed to handle even severe storms, and then pro-

cessed through the wastewater treatment plant. A

water resources engineer testified that the life of the

instant mining project was projected at seven years, but

that the wastewater treatment plant was designed to

accommodate extremes of rainfall that might occur over

a 100-year period, and combinations of snowmelt and

rainfall that might occur over a 50-year period, charac-

terizing those models as “prudent” and resulting in a

“conservative” design.

The record thus contains more than a scintilla of

evidence indicating that the mining plans include ad-

equate safeguards to protect surface waters from acid

rock drainage.

B. AIR FILTER

Appellants argued below that Kennecott had failed to

provide information to show that the air filter it in-

tended to use with its smokestack to limit emissions of

pollutants would be effective for that purpose, or was

This testimony confirms the Legislature’s findings stated in MCL

324.63202(c), which we earlier set forth in the recitation of facts.

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well enough established through uses in industry to

obviate the need to do so. The circuit court agreed that

Kennecott did not provide information regarding the

exhaust stack, but rejected appellants’ challenge on the

basis of expert testimony that similar filtration systems

were widely used in other industries and worked at a

high efficiency rate.

We decline to address this issue in light of events

transpiring since it was originally litigated. In their

briefs on appeal, the parties agreed that Kennecott

submitted an amended application for an air permit

that eliminated the filter from the plan, and at oral

argument the parties agreed that Kennecott prevailed

in this regard and was vindicated in litigation not at

issue in this appeal.

For these reasons, we decline to reach this issue in

deference to an earlier determination, see In re Appli-

cation of Consumers Energy Co for Rate Increase, 291

Mich App 106, 122; 804 NW2d 574 (2010) (noting that

collateral estoppel retains limited operation in cases

originating in administrative agencies), or, alterna-

tively, because subsequent events have rendered it

impossible for us to grant any relief in the matter, see B

P 7 v Bureau of State Lottery, 231 Mich App 356, 359;

586 NW2d 117 (1998) (“As a general rule, an appellate

court will not decide moot issues.”).

VIII. CONTINGENCY PLANS

MCL 324.63205(2)(d) requires that an application for

a permit to mine nonferrous metallic minerals include a

“contingency plan that includes an assessment of the

risk to the environment or public health and safety

associated with potential significant incidents or fail-

ures and describes the operator’s notification and re-

sponse plans.” Mich Admin Code, R 425.205(1)(a) lists

364 306 M

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336 [Aug

among the potential accidents or failures that must be

addressed for this purpose unplanned subsidence of the

mine’s structure, power disruptions, equipment fail-

ures, fires, natural disasters, and the various risks

attendant to producing, processing, storing, releasing,

or transporting hazardous substances. Rule

425.205(1)(b) and (c) call for descriptions of emergency

procedures, including persons or entities to notify, and

Subrule (1)(d) calls for a plan for testing the contin-

gency plan.

Kennecott’s contingency plan listed the 12 hazards

set forth in Rule 425.205(1)(a), and addressed each in

turn, along with emergency procedures and testing.

Appellants protest that the plan is inadequate for

failure to consider interruptions of electrical service

occasioned by natural disasters and for want of plans

for recapturing escaping contaminants, plugging any

holes or fractures associated with subsidence, neutral-

izing any acidification resulting from that or other

mishaps, restoring water levels drawn down by subsid-

ence, or rescuing the fish and other wildlife potentially

affected by a disaster under the Salmon Trout River.

Appellants further assert that the head of the DEQ’s

review team for this project stated that Kennecott’s

application “contains no contingency plan for subsid-

ence or crown pillar failure; for closure of the wastewa-

ter treatment plant for a substantial period of time; for

significantly increased inflow to the mine; malfunction

of the [mine ventilation air raise] air filtering system; or

for water leaking into aquifers from the underground

mine.” Appellants further protest that “Kennecott’s

application proposes to form a plan only after the fact.

If its subsidence monitoring indicates the existence of a

problem, only then will it initiate an evaluation of its

mining methods and only then will it attempt to devise

‘response measures’ to combat disaster.”

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In contrast, the ALJ described Kennecott’s contin-

gency plan as “thorough” and “complete,” addressing

“a host of contingencies,” including unexpected subsid-

ence, meaning sinking, or partial collapse, of the crown

pillar.

The court noted that appellants had asserted that the

head of the DEQ’s review team had admitted that the

contingency plan failed to consider crown pillar failure,

long-term closure of the wastewater treatment plant,

significantly greater mining inflow than estimated,

failure of the exhaust stack, contaminated-water leak-

age from the reflooded mine, or other catastrophic

events. The circuit court continued that appellants had

in fact misrepresented that DEQ official’s testimony,

noting that in the testimony appellants cited the official

was speaking not of the contingency plan submitted by

Kennecott, but of contingency conditions included

within the permit.

The circuit court further noted in detail that Ken-

necott’s plan contained information regarding each of

the contingencies identified by appellants, then added

that “[g]iven the multiple different variables that may

come into play should any given contingency occur, such

as the scope of the problem and the cause or causes of

the problem, providing a range of possible measures

that will be considered and undertaken is a reasonable

approach to drafting a contingency plan.”

Our review of the record confirms the circuit court’s

observations concerning the testimony of the DEQ

official to whom appellants attribute admissions con-

cerning major deficiencies in Kennecott’s contingency

plan. In the testimony that appellants cite, that witness

was indeed testifying that the permit, as issued, did not

address contingency plans in the event of crown pillar

failure, tornadoes, forest fires, prolonged shutdowns of

366 306 M

ICH

336 [Aug

the wastewater treatment plant, inflows to the mine

upwards of 500 gallons per minute, or malfunctions of

the air filtering system. The witness later reiterated

that the permit did not include any contingency plan for

failure of the crown pillar, but stated that he would have

to check the application to see what it had to say on that

subject, then added, “I have not agreed” that the

application lacked a contingency plan for crown pillar

failure. The next day, the witness again testified about

hazards for which the permit, not the application,

included no contingency plans. As the circuit court ably

noted, the testimony cited does not support the propo-

sition for which appellants cited it.

We further agree with the circuit court that Ken-

necott properly offered a range of possible responses to

several potential misadventures and did not fall short in

connection with the most devastating of conceivable

disasters, the wholesale collapse of the crown pillar.

Kennecott’s plan first describes mining techniques

calculated to “minimize the potential for surface sub-

sidence to occur,” then explains the prediction that

“displacement of the crown pillar...will be impercep-

tible at the ground surface,” then continues as follows:

The contingency measures to be taken in the event

unanticipated surface subsidence occurs will be initiated

based on subsidence monitoring. Subsidence monitoring

will be performed at two locations above the ore body,

adjacent to the overlying wetland. In the event of unantici-

pated subsidence, the mining sequence and backfill meth-

ods...will be evaluated and adjusted to reduce the sub-

sidence. Adjustments to the stope sequence, backfill

methods, crown pillar thickness, and backfill mix would be

[made] as needed to minimize subsidence.

Appellants do not argue that adjustments in the mining

sequence and backfill methods are insufficient to cor-

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rect for unexpected subsidence, but instead suggest that

the plan is deficient for failing to consider a disastrous

degree of subsidence occurring too quickly for those

techniques to remediate. We conclude that because

there was substantial evidence to support the conclu-

sion that the crown pillar would be stable (see Part V of

this opinion), the DEQ and the circuit court did not err

by not insisting that the contingency plan consider such

an extreme-case scenario.

IX. CONCLUSION

For the reasons stated, we affirm the decision of the

circuit court affirming the DEQ’s decision to grant

Kennecott a Part 632 mining permit.

Affirmed. No taxable costs under MCR 7.219, a

question of public policy being involved.

AVANAGH

,P.J., and O

WENS

and S

TEPHENS

, JJ., con-

curred.

368 306 M

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336 [Aug

NATIONAL WILDLIFE FEDERATION v DEPARTMENT OF

ENVIRONMENTAL QUALITY (No 2)

Docket No. 308366. Submitted June 3, 2014, at Lansing. Decided August 12,

2014, at 9:05 a.m. Leave to appeal sought.

Kennecott Eagle Minerals Company sought to develop an under-

ground mine to extract nickel and copper from the sulfide ores

beneath the headwaters of the Salmon Trout River in the Yellow

Dog Plains in Marquette County. Kennecott submitted applica-

tions to the Department of Environmental Quality (DEQ) for a

nonferrous metallic mineral mining permit and a groundwater

discharge permit. The DEQ consolidated the applications for

public hearings and eventually issued the mining and discharge

permits to Kennecott. Petitioners, the National Wildlife Federa-

tion, Yellow Dog Watershed Preserve, Inc., Keweenaw Bay Indian

Community, and Huron Mountain Club, requested contested case

hearings on both permits. The contested case proceedings pro-

gressed through the proposal for decision by the administrative

law judge (ALJ) to the final decision-maker’s final determination

and order, which adopted the proposal for decision, but for minor

adjustments, and the DEQ thereafter affirmed the granting of the

permits. Petitioners sought judicial review in the Ingham Circuit

Court. The circuit court, Paula J. Manderfield, J., entered separate

orders affirming the decisions of the DEQ to grant both permits.

Petitioners filed separate applications for leave to appeal with

regard to both permits. The Court of Appeals granted both

applications in unpublished orders. The present case, Docket No.

308366, concerns the decision to grant the groundwater discharge

permit. The companion case, Docket No. 307602, concerns the

decision to grant the mining permit and is reported preceding the

present case.

The Court of Appeals held:

1. The DEQ and the circuit court correctly recognized that the

contested case proceedings were an extension of the original

application process, not appellate review of the initial decision on

the application to which a more limited evidentiary standard

would apply.

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2. The circuit court did not err by considering whether, to the

extent that the discharges that the appellants opposed required

permits, they did not necessarily have to come under the specific

permit under review. The provisions of Mich Admin Code, R

324.74(1), which direct that review of a proposal for decision by a

final decision-maker shall be restricted to the record made at the

hearing and the exceptions and arguments submitted by the

parties, do not prevent an appellate court from exercising any of its

normal decision-making prerogatives.

3. An applicant for a permit retains that status, and the

attendant burden of proof, throughout the permitting process in

connection with proving entitlement to the permit, but a peti-

tioner in a contested case hearing normally bears the burden of

proving that petitioner’s objections. To the extent that Kennecott

relied on exemptions to permit requirements, it bore the burden of

proving that they applied. To the extent that the appellants

disagreed, they bore the burden of proving otherwise. There was

no error in the allocations of the burdens of proof in connection

with this issue.

4. The circuit court properly determined that the permit to

allow discharge from the mine’s wastewater treatment system

under Part 31 of the Natural Resources and Environmental

Protection Act, MCL 324.3101 to MCL 324.3134, was not invali-

dated because it failed to cover the plans for the recirculation of

utility water within the mine, backfilling the excavation area, and

reflooding the mine. The plans for utility water within the mine do

not involve any discharges for purposes of Part 31 and Mich Admin

Code, R 323.2210 provides exemptions to permit requirements

applicable to the plans for backfilling and reflooding. The activities

within the mine come under a Part 632 mining permit, MCL

324.63201 to MCL 324.63223, and require no separate Part 31

permit.

5. The circuit court properly affirmed the conclusions of the

DEQ that the state of the design of the wastewater treatment

system was sufficiently advanced so that the DEQ could evaluate

it, that the estimates or assumptions used to predict the quality of

influent and rate of water inflow satisfied the requirements of the

applicable administrative rules, and that Kennecott used the best

available information or technology for those purposes.

Affirmed.

DMINISTRATIVE

AW —

URDEN OF

ROOF —

ONTESTED

ASE

ROCEEDINGS

An applicant for a permit retains that status, and the attendant

burden of proof, throughout the permitting process in connection

370 306 M

ICH

369 [Aug

with proving entitlement to the permit; a petitioner in a contested

case hearing normally bears the burden of proving that petition-

er’s objections.

Hooper, Hathaway, Price, Beuche & Wallace (by

Bruce T. Wallace, William J. Stapleton, and Angela L.

Jackson) for the National Wildlife Federation, Huron

Mountain Club, and Yellow Dog Watershed Preserve,

Inc.

F. Michelle Halley for the National Wildlife Federa-

tion and Yellow Dog Watershed Preserve, Inc.

Honigman, Miller, Schwartz and Cohn LLP (by Eric

J. Eggan and H. Kirk Meadows) and Heather L. Chap-

man for the Keweenaw Bay Indian Community.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Richard A. Bandstra, Chief Legal

Counsel, and Robert P. Reichel and Andrew T. Prins,

Assistant Attorneys General, for the Department of

Environmental Quality.

Warner Norcross & Judd LLP (by Daniel P. Ettinger

and Scott M. Watson) for Kennecott Eagle Minerals

Company.

Before: C

AVANAGH

,P.J., and O

WENS

and S

TEPHENS

,JJ.

URIAM

. Appellants appeal by leave granted the

circuit court’s order affirming the decision of the De-

partment of Environmental Quality (DEQ) to grant a

groundwater discharge permit to the Kennecott Eagle

Minerals Company in connection with the latter’s plan

to develop an underground mine to extract nickel and

copper from the sulfide ores beneath the headwaters of

the Salmon Trout River in the Yellow Dog Plains in

Marquette County. We affirm.

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I. FACTS

In February 2006, Kennecott submitted applications

to the DEQ for a nonferrous metallic mineral mining

permit and a groundwater discharge permit. The DEQ

consolidated the applications for public hearings. In

December 2007, the DEQ issued mining and discharge

permits to Kennecott.

Appellants requested contested case hearings on

both permits. Appellants’ major concerns were that the

mine might collapse and that operations would produce

excessive acid rock drainage,

either of which would

result in serious damage to the area’s environment and

natural resources, including the Salmon Trout River.

The contested case proceedings progressed through the

proposal for decision by the administrative law judge

(ALJ) to the final decision-maker’s January 14, 2010

final determination and order, which adopted the pro-

posal for decision, but for minor adjustments, and the

DEQ affirmed the granting of the permits.

Appellants sought judicial review in the circuit court,

which, in a lengthy and detailed opinion and order, af-

firmed the DEQ in all regards. This Court granted leave to

appeal in an unpublished order entered August 7, 2012.

II. STANDARDS OF REVIEW

The circuit court’s task was to review the adminis-

trative decision to determine if it was authorized by law

According to expert testimony, a project of this sort involves excavat-

ing large quantities of rock that, when exposed to oxygen and water,

generate sulfuric acid. The parties agree that the hazard of acid rock

drainage inherent in this project necessitates careful management.

As noted, this appeal relates only to the decision to grant the

groundwater discharge permit. The decision to grant the mining permit

is the subject of this case’s companion, Nat’l Wildlife Federation v Dep’t

of Environmental Quality, 306 Mich App 336; ___ NW2d ___ (2014)

(Docket No. 307602).

372 306 M

ICH

369 [Aug

and supported by competent, material, and substantial

evidence on the whole record. Const 1963, art 6, § 28;

MCL 24.306(1). An agency decision is not authorized by

law if it violates constitutional or statutory provisions, lies

beyond the agency’s jurisdiction, follows from unlawful

procedures resulting in material prejudice, or is arbitrary

and capricious. Northwestern Nat’l Cas Co v Comm’r of

Ins, 231 Mich App 483, 488; 586 NW2d 563 (1998).

“[W]hen reviewing a lower court’s review of agency

action this Court must determine whether the lower

court applied correct legal principles and whether it

misapprehended or grossly misapplied the substantial

evidence test to the agency’s factual findings.” Boyd v

Civil Serv Comm, 220 Mich App 226, 234; 559 NW2d

342 (1996). “This latter standard is indistinguishable

from the clearly erroneous standard....[A]finding is

clearly erroneous when, on review of the whole record,

this Court is left with the definite and firm conviction

that a mistake has been made.” Id. at 234-235.

A tribunal’s interpretation of a statute is subject to

review de novo. In re Complaint of Rovas, 482 Mich 90,

102; 754 NW2d 259 (2008). A tribunal’s interpretation

of an administrative rule is reviewed likewise. Aaronson

v Lindsay & Hauer Int’l Ltd, 235 Mich App 259, 270;

597 NW2d 227 (1999). A tribunal’s evidentiary deci-

sions are reviewed for an abuse of discretion. See Price

v Long Realty, Inc, 199 Mich App 461, 466; 502 NW2d

337 (1993).

Unpreserved issues, however, are reviewed for plain

error affecting substantial rights. Kern v Blethen-

Coluni, 240 Mich App 333, 336; 612 NW2d 838 (2000).

III. SCOPE OF CONTESTED CASE PROCEEDINGS

Appellants argue that the administrative law judge

erred by allowing the introduction of new evidence in

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the contested case proceedings, or otherwise in treating

the contested case as an extension of the original

process of deciding the permit application. Appellants

suggest that the original application proceedings lead-

ing up to the initial decision to issue the groundwater

discharge permit should be deemed a completed adjudi-

cation, with the contested case proceedings that fol-

lowed then serving as the first stage of appellate review,

which for that reason should have proceeded with a

conservative approach to taking new evidence. The

DEQ and the circuit court rejected this argument, as do

we.

Section 1701(1) of the Natural Resources and Envi-

ronmental Protection Act, MCL 324.1701, authorizes

the circuit court to grant “declaratory and equitable

relief against any person for the protection of the air,

water, and other natural resources and the public trust

in these resources from pollution, impairment, or de-

struction.” Section 1704(2) adds that, where “adminis-

trative, licensing, or other proceedings are required or

available to determine the legality of the defendant’s

conduct, the court may direct the parties to seek relief

in such proceedings.” MCL 324.1704(2). Section

1704(4) states: “If judicial review of an administrative,

licensing, or other proceeding is available,...thecourt

originally taking jurisdiction shall maintain jurisdiction

for purposes of judicial review.” MCL 324.1704(4).

Water resources protection falls under Part 31, MCL

324.3101 to MCL 324.3134, of the Natural Resources

and Environmental Protection Act.

MCL 324.3103(1)

states that “[t]he department shall protect and con-

serve the water resources of the state and shall have

control of the pollution of surface or underground

waters of the state and the Great Lakes, which are or

MCL 324.101 et seq.

374 306 M

ICH

369 [Aug

may be affected by waste disposal of any person.”

Section 3106 states that “[t]he department shall estab-

lish pollution standards for lakes, rivers, streams, and

other waters of the state...[and] shall issue permits

that will assure compliance with state standards to

regulate municipal, industrial, and commercial dis-

charges or storage of any substance that may affect the

quality of the waters of the state.” MCL 324.3106.

Section 3112(1) states that “[a] person shall not dis-

charge any waste or waste effluent into the waters of

this state unless the person is in possession of a valid

permit from the department.” MCL 324.3112(1). Sec-

tion 3113(3) authorizes “the permittee, the applicant,

or any other person” to file objections and request a

contested case hearing in accordance with the Admin-

istrative Procedures Act.

MCL 324.3113(3).

These statutory provisions collectively set forth av-

enues for the DEQ to arrive at a single final decision on

a permit application: agency review of extensive appli-

cation materials subject to broadening with a contested

case hearing when an applicant or third party per-

suades the agency that the additional procedure is

warranted.

Appellants’ interpretation of those provisions as es-

tablishing an initial agency decision as a final order

with the contested case hearing functioning as appellate

review is a strained one. This is particularly so consid-

ering that MCL 324.1704(2) encourages judicial defer-

ence to administrative proceedings where required, and

MCL 324.1704(4) then calls for the court otherwise so

deferring its original jurisdiction to “maintain jurisdic-

tion for purposes of judicial review.” These provisions

call for administrative proceedings to arrive at a final

decision first subject to appeal in the circuit court.

MCL 24.201 et seq.

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Other authorities bearing on contested cases and ap-

peals support our conclusion.

Appeals involve the parties in the original litigation,

or subsets of them, and come about when initiated by

one or more parties, with strangers to the case eligible

to participate only as amici curiae constrained to ad-

dressing issues raised by the parties. See MCR

7.212(H). But Part 31 authorizes even strangers to the

original permit proceedings to petition for a contested

case hearing. MCL 324.3113(3).

Further, the rules governing appellate practice

establish that appeals in this Court “are heard on the

original record,” MCR 7.210(A), except that this

Court, “in its discretion, and on the terms it deems

just,” may “permit amendments, corrections, or ad-

ditions to the transcript or record,” MCR 7.216(A)(4).

In contrast, MCL 24.275 sets forth several general

rules for the admission of evidence in contested case

proceedings in the administrative setting, including

incorporation by reference of “the rules of evidence as

applied in a nonjury civil case in circuit court,” and

the statement that “an agency may admit and give

probative effect to evidence of a type commonly relied

upon by reasonably prudent men in the conduct of

their affairs.” This statute is inclusive in nature,

inviting further evidentiary development. As are the

administrative rules governing evidence in contested

case proceedings. Mich Admin Code, R 324.64(5)

states that “[p]arties are entitled to offer evidence as

to the facts at issue,” Subrule (2) states that “parties

shall present the evidence in an order determined by

the administrative law judge,” and Subrule (4) autho-

rizes parties to cross-examine witnesses. The conser-

vative provisions for enlarging the record for pur-

poses of appeals in this Court thus stand in stark

376 306 M

ICH

369 [Aug

contrast to the liberal provisions for presenting new

evidence in administrative contested case proceed-

ings.

At oral argument, appellants attempted to draw

support for their position from the administrative rules

promulgated to implement Part 31. In particular, Mich

Admin Code, R 323.2133, Subrule (1), which authorizes

“the department” to issue a final decision on a permit

application after review of pertinent determinations,

recommendations, and comments, and Subrule (2),

which states that “[a]n appeal to a final determination

of the department made pursuant to subrule (1)...,or

to a condition of a permit issued, or the denial of a

permit pursuant to part 31 of the act and the rules shall

be in accordance with and subject to section 3113 of

part 31 of the act.” (Emphasis added.)

Appellants argue that use of the word “appeal”

indicates the understanding that a contested case pro-

ceeding following an initial agency decision is in the

nature of an appellate proceeding. We disagree. The

word “appeal” appears in tandem with a reference to

MCL 324.3113, and thus the latter’s Subsection (3)

that, again, directs that a contested case hearing pro-

ceed in accordance with the Administrative Procedures

Act. That incorporation by reference thus brings to bear

the generous provisions of MCL 24.275 for submission

of new evidence, which, as noted, are more consistent

with original actions than appellate ones. Further, “[i]t

is fundamental administrative law that administrative

agencies are the creatures of statute.” Castro v Goe-

maere, 53 Mich App 78, 80; 218 NW2d 395 (1974).

Accordingly, an agency cannot, by word choice or oth-

erwise, transform statutory provisions reserving appel-

late review to the judiciary into a scheme whereby the

agency itself sits as its own first appellate tribunal.

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Appellants rely on In re 1987-88 Med Doctor Provider

Class Plan, 203 Mich App 707; 514 NW2d 471 (1994),

where this Court held that a contested case proceeding

conducted in accordance with the Administrative Pro-

cedures Act, which thus may involve introduction of

new evidence, does not necessarily transform the con-

tested case proceeding into “a ‘square one’ determina-

tion ‘de novo’ ” of the issue at hand. Id. at 728. But, as

the circuit court in this case noted, that case involved

“an unusual appellate process.” Id. at 724. At issue was

a statutory scheme according to which a determination

of the Insurance Commissioner is subject to appellate

review by an independent hearing officer. See id. at 710.

This Court noted that, although the appeal was to take

the form of a contested case proceeding under the

Administrative Procedures Act, the pertinent provi-

sions of the Nonprofit Health Care Corporation Reform

Act, MCL 550.1101 et seq., consistently specified that

the independent hearing officer’s review was in the

nature of an appeal. In re Med Doctor, 203 Mich App at

725-726. Accordingly, despite being directed to conduct

a contested case hearing pursuant to the Administra-

tive Procedures Act, the independent hearing officer

owed considerable deference to the Insurance Commis-

sioner. Id. at 727-728. In re Med Doctor is distinguish-

able from the instant case in that Part 31 nowhere

describes as an appeal a contested case proceeding to

decide whether to grant a groundwater discharge per-

mit.

Appellants also rely on Sierra Club Mackinac Chap-

ter v Dep’t of Environmental Quality, 277 Mich App 531;

747 NW2d 321 (2008), in which this Court disapproved

of the DEQ’s practice of issuing general permits to

allow concentrated animal feeding operations to de-

velop their own comprehensive nutrient management

plans that substantially bypassed the public participa-

378 306 M

ICH

369 [Aug

tion required for the permitting process by the federal

Clean Water Act.

Id. at 554-555. Sierra Club is distin-

guishable from the instant case because the application

process here at issue included extensive public notice

and comment, of which appellants took full advantage.

Appellants complain that the additional evidence

received through contested case proceedings was not

subject to such public scrutiny, but cite no authority

that stands for the proposition that, when the eviden-

tiary record is supplemented for contested case proceed-

ings in accordance with MCL 324.3113(3), MCL 24.275,

and Rule 324.64, any such new evidence must be limited

to matters subjected to public notice and comment in

accordance with the initial review process. We do not

deem the Legislature’s apparent satisfaction that public

notice and comment apply to only the initial permitting

process as suggesting that the Legislature envisioned

proceeding to a contested case hearing as starting the

appeal process instead of as continuing the original

decisional mechanisms.

For these reasons, the DEQ and the circuit court

correctly recognized the contested case proceeding be-

low as an extension of the initial application process for

the purpose of arriving at a single final agency decision

on the application for a groundwater discharge permit.

IV. SCOPE OF THE PART 31 PERMIT

Kennecott applied for a permit to discharge storm

water coming into contact with potentially polluting

materials at the surface of the mine site, drainage water

collected from the development rock storage area, and

water pumped out of the mine to enable mining opera-

tions. The DEQ granted a permit authorizing a maxi-

33 USC 1251 et seq.

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mum daily discharge originating from the aforemen-

tioned sources of 504,000 gallons per day, or 350 gallons

per minute, through the treated-water infiltration sys-

tem. Appellants argue that the Part 31 permitting

process should have also covered Kennecott’s plans to

recirculate utility water

within the mine, to backfill the

mine cavity in time by returning development rock to it,

and to reflood the mine upon the completion of opera-

tions. At issue are whether the circuit court erred by

treating this issue as properly preserved, whether it

correctly allocated the burden of proof, and whether it

correctly identified the pertinent substantive require-

ments of Part 31.

A. ISSUE PRESERVATION

An issue is preserved for appellate review if it was

raised in, and decided by, the trial court. See Fast Air,

Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489

(1999). In this case, there was considerable advocacy

and decision-making concerning this issue in the pro-

ceedings below.

In answering appellants’ exceptions to the proposal

for decision, Kennecott argued that the instant proceed-

ing was limited to a determination of the adequacy of

the permits at hand and that appellants’ “claim that

Kennecott needs additional permits to engage in mining

activity is not a basis for overturning the Permits at

issue in this proceeding.” Kennecott appended to that

brief a copy of its closing arguments and proposed

findings of fact and conclusions of law, which included

the assertions that the alleged discharges that appel-

lants oppose “do not involve ‘discharges’ at all within

One of appellants’ witnesses described “utility water” as inflowing

water that, “before it goes into the wastewater treatment plant... is

peeled off...fordifferent uses at the mine facility.”

380 306 M

ICH

369 [Aug

the meaning of the Part 22 groundwater permit rules,

or they are the subject of specific exemptions from the

permitting requirements of the Part 22 rules.”

An employee of the DEQ’s Water Bureau testified

that the agency’s position was that the discharges that

appellants oppose came under exemptions to permit

requirements as specified in Mich Admin Code, R

323.2210(a) to (x), or, alternatively, that because the

discharges in question all involved in-mine operations,

they were subject to regulation under the provisions of

Part 632 governing mining permits, not the provisions

of Part 31 governing groundwater discharge permits.

For these reasons, the circuit court did not err by

considering whether, to the extent that the discharges

that appellants opposed required permits, they did not

necessarily have to come under the specific permit

under review.

Appellants point out that Mich Admin Code, R

324.74(1) directs that review of a proposal for decision

by a final decision-maker “shall be restricted to the

record made at the hearing and the exceptions and

arguments submitted by the parties” and suggest that

subsequent review should be likewise so limited. We

disagree. As discussed in Part III of this opinion,

contested case proceedings of this sort are an extension

of the original application proceedings, not appellate

review of the initial decision on the application. Rule

324.74(1) thus sets forth limitations on the final

decision-maker after a potentially lengthy and expan-

sive decision-making process presided over by the ALJ.

It does not admonish against exercise by an appellate

court, including the circuit court when sitting in that

capacity, of any of an appellate court’s normal decision-

making prerogatives.

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B. BURDEN OF PROOF

The circuit court, citing Brown v Beckwith Evans Co,

192 Mich App 158, 168-169; 480 NW2d 311 (1991),

recited the general rule according to which a party

claiming the benefit of a statutory exception bears the

burden of proving the applicability of that exception

and then concluded that the ALJ and the final decision-

maker below erred by putting the burden on appellants

to prove that exemptions to permit requirements did

not apply. We conclude that the circuit court was led

slightly astray on this issue.

In discussing the Part 31 permit, the ALJ never

suggested that Kennecott bore no responsibility for

showing that exemptions applied while holding appel-

lants responsible for proving that they did not. Appel-

lants concede that the DEQ’s final determination and

order similarly does not state that appellants were

obliged to prove that the exemptions did not apply, but

note that the order does state in general terms that the

petitioners in a contested case hearing bear the burden

of proving the objections they raise.

As we discussed in the companion case,

an applicant

for a permit retains that status, and the attendant

burden of proof, throughout the permitting process in

connection with proving entitlement to the permit, but

a petitioner in a contested case hearing normally bears

the burden of proving that petitioner’s objections. See

Mich Admin Code, R 323.2206(1) (“It is the responsi-

bility of the applicant to provide the information de-

scribed in these rules as required or necessary for the

department to make a decision.”); Mich Admin Code, R

324.64(1) (imposing on a party “filing an administrative

complaint or petition for a contested case hearing...

Nat’l Wildlife Federation, 306 Mich App at 345.

382 306 M

ICH

369 [Aug

the burden of proof and of moving forward unless

otherwise required by law”).

Accordingly, to the extent that Kennecott relied on

exemptions to permit requirements, it bore the burden

of proving that they applied, and to the extent that

appellants disagreed, they bore the burden of proving

otherwise. There was no error in allocations of burdens

of proof in connection with this issue.

Further, this issue concerns a question of law, not

evaluation of evidence. Accordingly, as the circuit court

held, any error in the allocation of burdens of proof was

harmless.

C. PART 31 PERMIT

Kennecott’s application for a Part 31 permit covered

discharges of storm water coming into contact with

potentially polluting materials at the surface of the

mine site, drainage water collected from the develop-

ment rock

storage area, and water pumped out of the

mine to enable mining operations, and the resulting

permit authorizes a maximum daily discharge originat-

ing from the aforementioned sources of 504,000 gallons

per day, or 350 gallons per minute through the treated-

water infiltration system. Appellants insist that Ken-

necott’s plans to recirculate utility water within the

mine, to backfill excavated areas in time by returning

development rock to the mine cavity, and to reflood the

mine upon the completion of operations likewise re-

quire a Part 31 permit.

The ALJ, in the proposal for decision, held that those

activities “either do not involve ‘discharges’ within the

meaning of the Part 22 administrative rules, or are

“Development rock” is the rock that must be excavated to provide

access to the desired ores.

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subject to specific exemptions from the permitting

requirements as set forth in those rules.”

Concerning utility water, Mich Admin Code, R

323.2201(i) defines “discharge” as “any direct or indi-

rect discharge... into the groundwater or on the

ground” of waste, waste effluent, wastewater, pollutant,

cooling water, or a combination of those things. The

ALJ noted this definition and added that according to

Webster’s Ninth New Collegiate Dictionary (1983) “dis-

charge” means “ ‘a flowing or issuing out.’ ” The ALJ

reasoned that the “utility water is cycled through the

mining operation in closed-loop fashion,” and since

“[t]here is no ‘discharge’ of utility water,” there is no

need for a discharge permit.

The ALJ continued that the process of “backfilling

and rapidly reflooding the mine” came under the fol-

lowing three exemptions set forth in Rule 323.2210:

(w) A discharge that has been specifically authorized by

the department under a permit if the permit was not issued

under this part.

(x) A discharge that occurs as the result of placing waste

materials on the ground in compliance with a designation

of inertness issued under part 115....

(y) A discharge that has been determined by the depart-

ment to have an insignificant potential to be injurious

based on volume and constituents. In making the determi-

nation, the department shall follow the public notice and

comment procedures of R 323.2117 to R 323.2119. The

department may establish criteria, limitations, or condi-

tions applicable to the discharge to ensure that it meets the

terms of this subdivision.

The ALJ elaborated as follows:

Because Kennecott’s backfilling and reflooding opera-

tions: (1) are authorized under the Part 632 permit; (2)

consist of backfill materials that automatically qualify as

384 306 M

ICH

369 [Aug

“inert” under Part 115

[

]

; and (3) will occur in an unusable

aquifer, and because the Part 632 permit imposes require-

ments to protect the upper glacial aquifer to minimize the

risks of any impacts from the backfill and reflooding, the

DEQ implicitly concluded that the backfill and reflooding

would not be “injurious”,...they are exempt “discharges”

under the Part 22 rules and, therefore, Kennecott is not

required to obtain an additional Part 31 permit for those

activities.

Appellants expressly eschew offering argument with

the ALJ’s reasoning, characterizing such advocacy as

beyond the scope of this appeal.

The circuit court in turn held as follows:

[T]he permit being challenged here is a permit to discharge

from the mine’s wastewater treatment system. The neces-

sity for Kennecott to seek additional Part 31 discharge

permits for other discharges, specifically for the discharge

into the mine of utility water, backfill, and water to re-flood

the mine, accordingly, is irrelevant....

...Petitioners assert that they are not arguing that

additional Part 31 permits are required, but rather that the

discharges into the mine of utility water, backfill, and

water to re-flood the mine are required to be considered

and included in the Part 31 permit at issue here. Clearly

discharges into the mine, which never become discharges

from the wastewater treatment system, are entirely differ-

ent [from] discharges from the wastewater treatment sys-

tem into the groundwater and, accordingly, to the extent

Part 115 of the Natural Resources and Environmental Protection Act

comprises MCL 324.11501 to MCL 324.11550 and concerns solid waste

management. Within those provisions, MCL 324.11504(2) defines “inert

material” as “a substance that will not decompose, dissolve, or in any

other way form a contaminated leachate upon contact with water, or

other liquids determined by the department as likely to be found at the

disposal area, percolating through the substance.” MCL 324.11507(3), in

turn, states: “The department may exempt from regulation under this

part solid waste that is determined by the department to be inert

material for uses and in a manner approved by the department.”

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that such discharges might require a Part 31 permit, that

permit (or permits) would be separate from the Part 31

permit currently being challenged.

We think that the ALJ’s treatment of this issue was

more satisfactory than that of the circuit court. It is

apparent that appellants’ concern was that there was

no Part 31 permit for utility water within the mine, or

for backfilling and reflooding, not necessarily that the

permit under consideration did not happen to include

those things. Because the objection was that those

activities were subject to regulation through a Part 31

permit, but that none was requested, let alone issued,

the circuit court was hasty in disposing of those objec-

tions simply on the grounds that additional Part 31

permitting might come about.

The ALJ, however, ably identified bases for recogniz-

ing that Kennecott’s plans for utility water within the

mine do not involve any discharges for purposes of Part

31, along with exemptions to permit requirements

applicable to the plans for backfilling and reflooding,

which harmonize nicely with appellees’ position that

activities within the mine came under the Part 632

permit and thus required no separate Part 31 permit.

For these reasons, we adopt the ALJ’s reasoning as

our own in affirming the circuit court’s determination

that the discharge permit at issue was not invalidated

for failing to cover the additional activities of which

appellants here make issue.

V. WASTEWATER TREATMENT SYSTEM

Appellants argue that the DEQ and the circuit court

erred by approving plans for the wastewater treatment

system on the basis of the grounds that the design was

not yet complete and that Kennecott did not satisfy the

386 306 M

ICH

369 [Aug

requirement to predict wastewater influent

concen-

trations with some accuracy. The circuit court affirmed

the DEQ’s conclusions that the state of the design of the

wastewater treatment system was sufficiently advanced

so that the DEQ could evaluate it, that the estimates or

assumptions used to predict the quality of influent and

rate of water inflow satisfied the requirements of the

applicable administrative rules, and that Kennecott

used the best available information or technology for

those purposes. We agree with the circuit court.

Again, MCL 324.3106 states that “[t]he depart-

ment...shall issue permits that will assure compliance

with state standards to regulate municipal, industrial,

and commercial discharges or storage of any substance

that may affect the quality of the waters of the state,”

and MCL 324.3112(1) states that “[a] person shall not

discharge any waste or waste effluent into the waters of

this state unless the person is in possession of a valid

permit from the department.”

The applicable administrative rules require an appli-

cant for a Part 31 discharge permit to show that the

proposed wastewater treatment system has sufficient

capacity to treat the anticipated influent and to describe

the anticipated influent, characterize the discharge

using the best available information, and evaluate and

implement the best technology in processing and treat-

ment that would eliminate or reduce the new or in-

creased loading of certain listed substances. “It is the

responsibility of the applicant to provide the informa-

tion described in these rules as required or necessary

for the department to make a decision.” Mich Admin

Code, R 323.2206(1).

“Influent” refers to the wastewater coming into the system for

treatment, and “effluent” refers the treated water to be discharged into

the environment.

2014] N

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2) 387

A. DESIGN OF WASTEWATER TREATMENT SYSTEM

Mich Admin Code, R 323.2218(2) conditions discharge

permits on a showing that “the proposed system for

treating the wastewater to be discharged shall have suffi-

cient hydraulic capacity and detention time to adequately

treat the anticipated organic and inorganic pollutant

loading.” It states that, for this purpose, “at the time of

application a permit applicant shall submit a basis of

design for the treatment system,” and it lists many factors

to be covered. Subrule (2)(c) calls for “[a] description of

the existing or proposed treatment, or both,” then sets

forth many details that must be addressed.

Appellants do not assert that Kennecott’s application

failed to address any of these requirements, but argue

instead that testimony concerning the possibility of

design modifications or other changes in operations as

needs arise showed that there really was no complete

plan in place for the DEQ to evaluate.

An environmental chemist described the proposed

wastewater treatment system as “expensive,” “compli-

cated,” and “unprecedented,” and elaborated that “it

would be highly unusual to have all these components

put together and work the first time out.” The expert

continued, “I suspect that certainly before designing

the system...there would need to be quite a bit more

work before you can assume a system like this will

work.” The witness opined that the proposal was “not

unreasonable,” but nonetheless “may not work.” The

expert noted that alternative approaches were under

consideration for a major aspect of the system’s design

and expressed the concern that “certainly this water

treatment system has not been tested, and they’re not

completely sure how they’re going to configure it yet

either.” The witness added, “I would suggest that it

needs certainly a much more extensive set of tests to

388 306 M

ICH

369 [Aug

determine in fact that these individual components

could... come together to treat water quality that’s

both...predicted and then plus some uncertainty in

that water quality.”

The lead process engineer for the mining project, who

served as its certifying engineer for the groundwater

discharge application, similarly testified that Kennecott

was evaluating some alternative approaches for some

aspects of the wastewater treatment process and that

early in the review process it would be unusual to offer

more detailed specifications for the system. This expert

agreed that the particular combination of components

envisioned for the instant system was a new one, but

added that the individual components were not new and

were well tested. The process engineer continued that

the system was conservatively designed so that it would

be able to treat much higher concentrations of contami-

nants than predicted levels and still stay within the

permitted discharge limits.

The official from the DEQ’s Water Bureau who

reviewed the basis for the design of the wastewater

treatment system stated that the individual unit pro-

cesses proposed or included in the basis of design for the

system in question were demonstrated technologies

used in other industrial settings and opined that there

was no reason to believe that they would not work well.

This witness opined that Kennecott’s application and

supplemental information adequately described the ba-

sis for the proposed system and its expected perfor-

mance. She additionally opined that Kennecott had

shown that the proposed treatment system made use of

the most advanced, adequately demonstrated, and rea-

sonably available treatment techniques.

The circuit court noted that Rule 323.2218(2) does

not require any set level of specificity in making the

2014] N

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required showing, but, instead, requires a description of

the existing or proposed treatment along with, to the

extent applicable, engineering plans depicting such

things as a schematic flow diagram, information on unit

processes, flow rates, and design hydraulic capacity. The

court further noted that the only requirement of final-

ity with regard to the wastewater treatment system

pertained to the Part 632 mining permit, not the Part

31 discharge permit.

We agree that the call for the submission of a “basis

of design” in Rule 323.2218(2) is not a demand for an

exhaustive plan complete in every detail. The rule thus

reflects the understanding that undertakings of this

sort remain projects in progress well into actual opera-

tion. That certain details of operation were not yet

firmly in place, or that alternatives were under consid-

eration for some aspects of the design, underscore

Kennecott’s preparedness to address a broad range of

potential realities as they come into play in order for

Kennecott to operate within permit limits. Because

there was substantial evidence that the design of the

proposed wastewater treatment system, including

where alternatives were yet in contemplation, was

sufficiently complete and detailed to allow the DEQ to

evaluate it for purposes of the Part 31 permit, the

circuit court properly rejected appellants’ argument to

the contrary.

B. ANTICIPATED INFLUENT CONCENTRATIONS

Mich Admin Code, R 323.2218(2)(b) requires that a

discharge permit applicant’s description of the basis for

design of the treatment system include “a description of

the anticipated influent, including the substances to be

treated...andtheconcentrations of the substances.”

Appellants argue that Kennecott failed to satisfy this

390 306 M

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369 [Aug

requirement because its witnesses provided insuffi-

ciently precise or firm estimates in these regards.

Appellants challenge of the testimony of the

geochemist whose company performed the geochemical

testing in connection with the instant mining project.

That witness testified that “there are sufficient sulfide

minerals present in the development rock and the

concentrations of trace metals are sufficiently high that

active management of all rock units in the mine...will

be required in order to have a modern environmental

program for a mine.” He explained that he did not

endeavor to predict precisely the number of various

constituents that would be in the water in the mine, or

water collected from the development rock storage area,

because he did not believe that such predictions were

scientifically possible. The expert elaborated that he

had engaged in “an exploratory type of modeling for the

purposes of answering simple questions about the di-

rections that materials are going to go in a system, not

making firm predictions of specific details that would

exist sometime in the future before we’ve ever gone

underground.”

The geochemist continued that his reporting had

relied on estimates of concentrations of pollutants that

were generally lower than those of appellants’ experts

because “we had data only up to about week 50” and the

others were using a “time period in here around 50 to

70 weeks,” and he added that “there are increasing

concentrations in some but not all of the samples.” But

the witness stated that, even if crediting the higher

figures, his conclusion remained that the situation

called for active management of all rock types.

The geochemist additionally acknowledged that he

used an estimate for the rate of groundwater inflow

into the mine based on information from Kennecott’s

2014] N

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hydrogeologist and that, had he used the estimate

suggested in a later report, the result would have

been an increase in the calculated concentration by a

factor of approximately 2.4. The witness character-

ized those figures as illustrating the uncertainty

inherent in calculations of that sort and reiterated

that his advice to Kennecott, using either an estimate

or a calculation, would have been that the situation

called for active management.

Appellants suggest that this expert chose his figures

arbitrarily, making no effort to arrive at accurate con-

clusions, and thus that his work fell short of satisfying

the requirement of Rule 323.2218(2)(b) for “a descrip-

tion of the anticipated influent, including the sub-

stances to be treated...andtheconcentrations of the

substances.” The circuit court rebuffed those conten-

tions, crediting the recommendation for “active man-

agement” as covering well the possibility that the

hazard for acid rock drainage would be greater than

estimated, and similarly noting that the various esti-

mates Kennecott’s experts used in modeling the opera-

tions were conservatively chosen in order to steer

operations toward a system that could process even the

largest reasonably apprehended quantities of wastewa-

ter and pollutants. The court further noted that Rule

323.2218(2)(b) does not call for accurate predictions of

precise concentrations of pollutants, but instead re-

flects the understanding that “where an operation has

not yet been undertaken it is scientifically impossible to

provide an exact or accurate accounting of the concen-

trations of the substances that will be found in the

operation’s influent wastewater.”

The circuit court concluded that, for these reasons,

“there is evidence that a reasoning mind would accept

as sufficient to support the...finding that Kennecott’s

392 306 M

ICH

369 [Aug

influent wastewater quality prediction met the require-

ments of Part 31 and the administrative rules promul-

gated to implement Part 31.”

We conclude that the circuit court correctly reasoned

that, despite appellants’ characterizations, the

geochemist at issue was as concerned about the accu-

racy, or lack thereof, of some of the figures he was

working with as the situation demanded. The court

recognized that what was important, in light of the

regulatory purpose behind Rule 323.2218(2)(b), was

that the expert advised active management, meaning

close monitoring and quick adjustments, in connection

with all rock types removed from the mine and that

there was substantial evidence that the wastewater

treatment system had sufficient capacity to handle the

whole range of concentrations of contaminants, and the

water flow rates, that the various witnesses put forward

as reasonably likely to occur.

Appellants further assert that the geochemist’s

prediction of mine drainage quality omitted the pres-

ence of backfill, where the backfilling actually

planned would cause additional leaching and thus

higher concentrations of pollutants, and that this

expert admitted that the prediction was not accurate

and was not intended to be. However, this character-

ization does not accurately reflect the record. In fact,

the geochemist explained that he eschewed taking

backfill into account for that particular calculation

because he “was looking at what the impacts of the

mine walls would be on water quality” and was thus

“simplifying the system for the purposes of under-

standing a partial behavior and providing informa-

tion that would be useful to my client.” The expert

then continued that in forecasting a final scenario for

the water quality in the mine after the completion of

2014] N

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operations, he had “assumed 379,000 tons of backfill

without limestone amendment.”

C. CHARACTERIZATION OF DISCHARGE, PREDICTED EFFLUENT,

BEST TECHNOLOGY AVAILABLE

Mich Admin Code, R 323.2220(1) obligates an appli-

cant for a discharge permit to “properly characterize

the waste or wastewater to be discharged” by determin-

ing “the pollutants that may be present in the waste or

wastewater in light of the process by which it is gener-

ated.” Subrule (6) states that, “[f]or a facility not yet

operating, the discharger shall characterize the antici-

pated discharge using the best available information”

and “identify the source of the information in the

application.” Similarly, Mich Admin Code, R

323.1098(4)(b)(iii) requires a “discharger” in certain

situations, including this one,

to “evaluate and imple-

ment the best technology in process and treatment

(BTPT) that would eliminate or reduce the new or

increased loading of the LSB-BSIC,”

and it defines

“best technology in process and treatment” as “the

most advanced treatment techniques which have been

adequately demonstrated and which are reasonably

available to the discharger.”

Appellants argue that their objections concerning

the state of design completion, and the accuracy of

various predictions and estimates, also apply in con-

The witness here referred to Kennecott’s plan to neutralize stored

development rock with limestone to reduce its potential to leak sulfuric

acid.

The DEQ determined that this “antidegradation” rule would apply

to the discharges here at issue, and Kennecott has not argued otherwise.

This initialism stands for “Lake Superior basin-bioaccumulative

substances of immediate concern,” which are “substances identified in

the September 1991 binational program to restore and protect the Lake

Superior basin....”Mich Admin Code, R 323.1043(qq).

394 306 M

ICH

369 [Aug

nection with the rules governing discharges on the

ground that, before deciding to issue a permit on the

basis of an applicant’s predictions of the concentra-

tions of contaminants that will be in its discharge, the

DEQ must confirm that the applicant’s predictions

are correct and that the proposed treatment system is

in fact capable of meeting those predictions. For the

same reasons that we concluded that the circuit court

correctly rejected those objections in connection with

Rule 323.2218(2)(b) (anticipating influent quality)

and (c) (system design), we conclude that the circuit

court correctly rejected them in connection with the

rule governing effluent.

Further, the circuit court

specifically cited expert testimony that the proposed

treatment system made use of the most advanced,

adequately demonstrated, and reasonably available

treatment techniques as substantial evidence that that

requirement of Rule 323.1098(4)(b)(iii) had been met.

For these reasons, we reject appellant’s claims of

error concerning system design, estimates or assump-

tions concerning concentrations of contaminants, or

use of the best available information or technology.

VI. CONCLUSION

For the reasons stated, we affirm the decision of the

circuit court affirming the DEQ’s decision to grant

Kennecott a Part 31 groundwater discharge permit.

The circuit court held that because Rule 323.2220(1) and (6)

concerned discharges, there was no need to consider those subrules

while deciding whether the requirements of Rule 323.2218(2)(b)

regarding anticipated influent were satisfied. Appellants characterize

this holding as a declaration that “inaccurate prediction of wastewater

influent concentrations is not relevant to these rules.” In fact, the

circuit court simply considered those objections under a different

rubric.

2014] N

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2) 395

Affirmed. No taxable costs under MCR 7.219, a

question of public policy being involved.

AVANAGH

,P.J., and O

WENS

and S

TEPHENS

, JJ., con-

curred.

396 306 M

ICH

369 [Aug

PEABODY v DIMEGLIO

Docket No. 315319. Submitted June 4, 2014, at Lansing. Decided August 12,

2014, at 9:10 a.m.

Dany Jo Peabody filed a complaint in the Eaton County Probate

Court against Marta DiMeglio, individually and as the personal

representative of the estate of Paul J. DiMeglio, after Marta denied

Peabody’s claims against the estate. Peabody and Paul had been

married in 1989 and divorced in 1995. They entered into a

property settlement agreement, which was incorporated, but not

merged, into a Virginia divorce judgment by express language. The

relevant portion of the agreement concerned a parcel of property

located in Colorado. It provided (1) that the property would

continue to be investment property, (2) that it would remain in

Peabody’s name, (3) that Paul would indemnify Peabody from any

liability arising out of the property, (4) that he would make the

mortgage payments, (5) that Peabody could not sell the property,

(6) that Peabody had a right of first refusal if Paul did, and (7) that

the proceeds would be split equally between the parties upon sale.

After Paul missed several mortgage payments in 1997, Peabody

executed a quitclaim deed conveying her entire interest in the

property to Paul in order to avoid financial responsibility for the

property and allow him to refinance. Paul further encumbered the

property with mortgage debt in 2000 and eventually conveyed his

entire interest in the property to Marta, who was his new wife, by

means of two quitclaim deeds executed in 2003 and 2004. Marta

conveyed the property to a third-party buyer the same day and

used the proceeds from the sale for a like-kind exchange under 26

USC 1031 of the Internal Revenue Code in which she purchased

property in Michigan. Peabody’s complaint in the probate court

action alleged breach of contract, breach of a covenant of good

faith and fair dealing, conversion, statutory conversion, concert of

action, fraud, and unjust enrichment and sought enforcement of

the Virginia divorce judgment. Marta moved for summary dispo-

sition under MCR 2.116(C)(7), (8), and (10). The court, Thomas K.

Byerley, J., granted summary disposition under MCR 2.116(C)(8)

and (10) to Marta in her individual capacity because she was not a

party to the property settlement agreement and had no personal

liability for any of the claims. The court further granted summary

2014] P

EABODY V

EGLIO

397

disposition under MCR 2.116(C)(7) to Marta in both capacities,

concluding that the six-year statutory period of limitations for

contract claims had run. Peabody appealed, specifically contesting

the court’s finding that the statute of limitations for contract

claims barred her claims for enforcement of the divorce judgment

and unjust enrichment, and Marta cross-appealed the denial of her

motion for attorney fees.

The Court of Appeals held:

1. Peabody argued that Virginia substantive law regarding the

incorporation of property settlements should apply because the

judgment was a Virginia divorce judgment that provided for

incorporation by reference. MCL 691.1173 (part of the Uniform

Enforcement of Foreign Judgments Act), however, authorizes the

filing of a copy of an authenticated foreign judgment in certain

courts of this state and further provides that a judgment filed in

that manner has the same effect and is subject to the same

procedures, defenses, and proceedings as a judgment of a Michigan

court and may be enforced or satisfied in the same manner.

Because the divorce judgment was filed in accordance with the act,

it was treated as a Michigan judgment and Michigan law applied to

its enforcement.

2. The probate court erred by applying the 6-year period of

limitations of MCL 600. 5807(8) for breach-of-contract claims to

Peabody’s action to enforce the divorce judgment rather than the

10-year period of limitations of MCL 600.5809(3) for noncontrac-

tual money obligations founded on a judgment. “Incorporation by

reference” refers to making a secondary document a part of the

primary document by stating in the primary document that the

secondary document should be treated the same as if it were

contained in the primary one. Merger, in the context of this case,

is the absorption of a contract into a court order so that the

agreement loses any separate identity as an enforceable contract.

When the parties to a divorce agree to incorporate the terms of a

property settlement agreement by reference and specifically agree

not to merge the agreement into a judgment, their clear intent is

to make the agreement enforceable both as a court order and as an

ordinary contract. Given that the property settlement agreement

was incorporated, rather than merged, into the divorce judgment,

it was enforceable as a judgment to which the 10-year limitations

period applied. Because Peabody sought enforcement of the provi-

sion requiring Paul to pay her half of the property sale proceeds,

her cause of action for that claim accrued in 2004 when Paul sold

the property and did not pay Peabody half of the proceeds.

Therefore, Peabody timely filed her complaint in 2012.

398 306 M

ICH

397 [Aug

3. The probate court also erred by granting summary disposi-

tion to Marta on Peabody’s claim of unjust enrichment. The law

implies a contract in order to prevent unjust enrichment, but not

if there is already an express contract on the same subject matter.

Peabody, however, alleged more than a breach of contract in her

unjust-enrichment claim, asserting not only that the estate owed

her for Paul’s breach, but that Marta was unjustly enriched when

she retained the funds from the sale of the property. That was a

purely equitable claim not covered by any express contract of the

parties. Because the claim was not based on an analogous legal

claim, the statute of limitations for breach of contract did not

apply, and the claim for unjust enrichment would instead be

time-barred, if at all, under the equitable doctrine of laches. On

remand, the probate court was directed to determine whether

laches barred Peabody’s claim for unjust enrichment.

4. The probate court’s interpretation of the language in the

property settlement agreement that provided for attorney fees was

overly narrow. A contract provision providing for attorney fees is a

valid exception to the American rule regarding attorney fees, and

a commonsense reading of the relevant provisions of the property

settlement agreement was that the reasonable costs incurred by a

party in the successful defense to any action for enforcement of

any of the agreements between the parties would include attorney

fees regardless of which party prevailed. Given the disposition of

Peabody’s appeal, however, Marta no longer had a successful

defense within the meaning of the contractual language unless the

probate court were to find in her favor on the merits on remand.

Reversed and remanded.

IVORCE —

UDGMENTS —

ROPERTY

ETTLEMENTS —

NCORPORATION BY

EFER-

ENCE —

NFORCEMENT —

TATUTES OF

IMITATIONS

Incorporation by reference refers to making a secondary document a

part of the primary document by stating in the primary document

that the secondary document should be treated the same as if it

were contained in the primary one; merger of documents is the

absorption of a contract into a court order so that the agreement

loses any separate identity as an enforceable contract; parties to a

divorce who agree to incorporate the terms of a property settle-

ment agreement by reference and specifically agree not to merge

the agreement into a divorce judgment make that agreement

enforceable both as a court order and as an ordinary contract, and

it is accordingly enforceable as a judgment with a 10-year limita-

tions period under MCL 600.5809(3) for noncontractual money

obligations founded on a judgment.

2014] P

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399

Ligon Law Office (by M. Jean Ligon and Paul S.

Vaidya) for Dany Jo Peabody.

The Gallagher Law Firm, PLC (by Craig S. Girard

and Jennifer M. Tichelaar), for Marta DiMeglio.

Before: C

AVANAGH

,P.J., and O

WENS

and S

TEPHENS

,JJ.

URIAM

. Plaintiff, Dany Jo Peabody, appeals as of

right the probate court’s order granting summary dis-

position for defendant, Marta DiMeglio, in her indi-

vidual and representative capacities, pursuant to MCR

2.116(C)(7), based on the expiration of the six-year

statutory period of limitations for breach-of-contract

claims. Defendant cross-appeals the probate court’s

order denying her motion for attorney fees. We reverse

the probate court’s grant of summary disposition and

remand for further proceedings.

Plaintiff and Paul DiMeglio (the decedent) were

married in 1989 and divorced in 1995. As part of the

divorce, plaintiff and the decedent entered into a prop-

erty settlement agreement, which was incorporated,

but not merged, into a Virginia divorce judgment by

express language to that effect on December 15, 1995.

The portion of the agreement relevant to this appeal

deals with a piece of real property located in Colorado

(the Colorado property). Paragraph 16(B)(2) of the

agreement states, “The Husband specifically agrees

that he shall be responsible for and shall indemnify the

Wife from any liability whatsoever arising out of the...

Colorado Mortgage....”Paragraph 19(B) of the agree-

ment states:

The parties agree that Wife is the sole owner of a

property located at 1222 Colorado Boulevard, Idaho

Springs, Colorado, in which the Husband has an invest-

ment interest. The parties further agree that:

400 306 M

ICH

397 [Aug

(1) Said Colorado residence shall remain as an invest-

ment property.

(2) Wife shall not sell, deed over or otherwise dispose of

said property in any manner.

(3) Neither party shall encumber said property by

subsequent mortgages, equity loans or any other means

without the written agreement of the other.

(4) Husband shall be responsible for all mortgage pay-

ments on said property even though the mortgage loan on

said property is in the name of the Wife.

***

(7) Husband has the sole and separate right and option

to sell said property at any time of his choosing. Wife shall

have the right of first refusal to purchase said property

incident to any such sale.

(8) If said property is sold, all net proceeds of sale after

customary costs of sale, such as the real estate commission,

closing costs, mortgage pay-off and capital gains tax re-

sponsibilities, etc., shall be divided equally between the

parties. The settlement attorney or other person conduct-

ing the settlement shall receive a copy of this Agreement as

his or her instructions.

Sometime before 1997, the decedent missed several

mortgage payments on the Colorado property. On No-

vember 27, 1997, plaintiff executed a quitclaim deed in

favor of the decedent conveying her entire interest in

the Colorado property. This was done to remove her

from the mortgage to avoid financial responsibility for

the property and to allow the decedent to refinance.

Sometime around 2000, the decedent further encum-

bered the property with mortgage debt.

On November 12, 2003, the decedent conveyed his

entire interest in the Colorado property to his new wife,

defendant Marta DiMeglio, by quitclaim deed. He ex-

ecuted a second quitclaim deed in favor of Marta on

2014] P

EABODY V

EGLIO

401

August 30, 2004. On that same day, Marta conveyed the

property to a third-party buyer by general warranty

deed for consideration of $215,000. The proceeds from

the sale were used in a § 1031 “like-kind” exchange

which Marta purchased real property in Eaton Rapids,

Michigan.

The decedent died on November 12, 2011. Plaintiff

filed a claim against his estate that Marta, as personal

representative, denied. Plaintiff then filed her eight-

count complaint in the probate court against the dece-

dent’s estate and Marta as personal representative of

the estate and individually. The complaint alleged

breach of contract, breach of a covenant of good faith

and fair dealing, conversion, statutory conversion, con-

cert of action, fraud, enforcement of the divorce judg-

ment, and unjust enrichment.

Marta moved for summary disposition under MCR

2.116(C)(7), (8), and (10). The probate court granted

summary disposition under MCR 2.116(C)(8) and (10)

to Marta in her individual capacity because she was not

a party to the property settlement agreement and had

no personal liability for any of the claims. The probate

court further granted summary disposition under MCR

2.116(C)(7) to Marta in both capacities, finding that the

six-year statutory period of limitations for contract

claims had run. On appeal, plaintiff only contests the

probate court’s finding that the statute of limitations

for contract claims barred all of plaintiff’s claims,

Like-kind exchanges are provided for in § 1031 of the Internal

Revenue Code:

No gain or loss shall be recognized on the exchange of property

held for productive use in a trade or business or for investment if

such property is exchanged solely for property of like kind which is

to be held either for productive use in a trade or business or for

investment. [26 USC 1031(a)(1).]

402 306 M

ICH

397 [Aug

including, in particular, the claims for enforcement of

the divorce judgment and unjust enrichment provided

for in Counts VII and VIII of her complaint, respec-

tively.

We review de novo a trial court’s decision to grant or

deny summary disposition. Maiden v Rozwood, 461 Mich

109, 118; 597 NW2d 817 (1999). Whether a defendant is

entitled to governmental immunity is a question of law,

which we also review de novo. Herman v Detroit, 261

Mich App 141, 143; 680 NW2d 71 (2004). “A motion under

MCR 2.116(C)(7) tests whether a claim is barred because

of immunity granted by law, and requires consideration of

all documentary evidence filed or submitted by the par-

ties.” Diamond v Witherspoon, 265 Mich App 673, 681;

696 NW2d 770 (2005) (quotation marks and citations

omitted). “The contents of the complaint are accepted as

true unless contradicted by documentation submitted by

the movant.” Maiden, 461 Mich at 119.

At the outset, with regard to plaintiff’s claim for

enforcement of the divorce judgment in Count VII of

her complaint, plaintiff argues that Virginia substan-

tive law regarding incorporation of property settle-

ments should apply because the judgment is a Virginia

divorce decree that provided for incorporation. Michi-

gan has adopted the Uniform Enforcement of Foreign

Judgments Act, MCL 691.1171 et seq., which provides

in pertinent part,

A copy of a foreign judgment authenticated in accor-

dance with an act of congress or the laws of this state may

be filed in the office of the clerk of the circuit court, the

district court, or a municipal court of this state. The clerk

shall treat the foreign judgment in the same manner as a

judgment of the circuit court, the district court, or a

municipal court of this state. A judgment filed under this

act has the same effect and is subject to the same proce-

dures, defenses, and proceedings for reopening, vacating,

2014] P

EABODY V

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403

or staying as a judgment of the circuit court, the district

court, or a municipal court of this state and may be

enforced or satisfied in like manner. [MCL 691.1173.]

Because the divorce judgment was filed in accordance

with this act, the judgment is treated as a Michigan

judgment and Michigan law applies to its enforcement.

Statutes of limitations are found at Chapter 58 of the

Revised Judicature Act (RJA), MCL 600.5801 et seq.

MCL 600.5807(8) provides a six-year statutory period of

limitations for ordinary breach-of-contract claims.

Plaintiff, however, argues that claims to enforce a

judgment are classified as “noncontractual money obli-

gations” that carry a 10-year statutory period of limi-

tations pursuant to MCL 600.5809, which provides in

pertinent part,

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

enforce a noncontractual money obligation unless, after the

claim first accrued to the person or to someone through

whom he or she claims, the person commences the action

within the applicable period of time prescribed by this section.

***

(3) Except as provided in subsection (4),

[

]

the period of

limitations is 10 years for an action founded upon a

judgment or decree rendered in a court of record of this

state, or in a court of record of the United States or of

another state of the United States, from the time of the

rendition of the judgment or decree.

In Gabler v Woditsch, 143 Mich App 709; 372 NW2d

647 (1985), we directly addressed the issue of which

statute of limitations applies in this context. The Court

stated:

MCL 600.5809(4) addresses actions to enforce support order that are

enforceable under the Support and Parenting Time Enforcement Act,

MCL 552.601 et seq.

404 306 M

ICH

397 [Aug

The present action is an action to enforce the provisions

of the 1968 divorce judgment and is therefore an action

founded upon a judgment within RJA § 5809(3). Plaintiff’s

claim is not converted into a breach of contract action

merely because the specific payment provision which he

seeks to enforce was contained in a property settlement

agreement. That agreement was expressly incorporated by

reference into the divorce judgment. The trial court cor-

rectly applied the ten-year period in RJA § 5809(3). [Id.at

711 (emphasis added).]

Thus, according to Gabler, because plaintiff and the

decedent’s property settlement, which plaintiff seeks to

enforce, was expressly incorporated by reference into

the divorce judgment, the action is “founded upon a

judgment within” MCL 600.5809(3) and the 10-year

period of limitations would apply.

Defendant, however, persists in arguing that the

provisions of the property settlement can only be en-

forced in an action for breach of contract and not in an

action to enforce a judgment. In support of this argu-

ment, defendant relies on the following language in

Marshall v Marshall, 135 Mich App 702, 712-713; 355

NW2d 661 (1984):

In the within case, the divorce judgment incorporated

the parties’ property settlement agreement by reference,

but specifically provided that the property settlement

agreement was not merged in the divorce judgment. When

a property settlement agreement is incorporated and

merged in a divorce judgment, it becomes a disposition by

the court of the property. But, when not merged in the

divorce judgment, the property settlement agreement may

only be enforced by resort to the usual contract remedies and

not as part of the divorce judgment.

Thus, in the within case, by providing that the property

settlement agreement was not merged in the divorce judg-

ment, the parties lifted enforcement out from under GCR

1963, 528.3 [the former court rule governing relief from

2014] P

EABODY V

EGLIO

405

judgment]. This analysis does not, however, aid plaintiff

because, for the reasons indicated, we have already de-

clined to find ambiguity, and thus find that the trial court

lacked inherent power to interpret and clarify the terms of

the property settlement agreement. [Emphasis added.]

The italicized language, however, is ambiguous. The

language appears to provide one outcome when an

agreement is incorporated and merged, and the oppo-

site outcome when the agreement is not merged. Mar-

shall does not specifically address the third possible

situation, in which the agreement is incorporated but

not merged. It is unclear whether the Court confused

the terms “merged” and “incorporated” or whether it

wished to create a rule that nonmerger precludes en-

forcement of the agreement as a judgment. Further,

this language appeared in the opinion after the Court

stated its holding. The Court made it clear that this

analysis did not aid the plaintiff because it had already

determined that the trial court could not interpret the

property settlement agreement. Therefore, it is clear

that this language was not “germane to the controversy

in the case” and was therefore dictum that is not

binding on this Court. Griswold Props, LLC v Lexington

Ins Co, 276 Mich App 551, 563; 741 NW2d 549 (2007).

We find defendant’s argument unpersuasive, and we

reaffirm the principle of law in Gabler that incorpora-

tion by reference into a divorce judgment makes a

property settlement agreement enforceable as a judg-

ment to which the 10-year statutory period of limita-

tions, MCL 600.5809(3), applies. In doing so, we note

that our holding is consistent with the meaning of the

terms “incorporation by reference” and “merger” and

respects the intent of parties. “Incorporation by refer-

ence” means “[a] method of making a secondary docu-

ment part of a primary document by including in the

primary document a statement that the secondary

406 306 M

ICH

397 [Aug

document should be treated as if it were contained in

the primary one.” Black’s Law Dictionary (9th ed), p

834. “Merger,” as used in this context, is defined as

“[t]he absorption of a contract into a court order, so that

an agreement between the parties (often a marital

agreement incident to a divorce or separation) loses its

separate identity as an enforceable contract when it is

incorporated into a court order.” Id. at 1079. When the

parties to a divorce agree, through their attorneys, to

incorporate the terms of a property settlement agree-

ment by reference and specifically agree not to merge

the agreement into a judgment, it could be assumed

that the attorneys and the court that enters the judg-

ment understand the definitions of “merger” and “in-

corporation by reference.” The clear intent of parties

entering into such an agreement would be to make the

agreement enforceable both as a court order and as an

ordinary contract.

Applying Gabler to this case, we conclude that the

property settlement agreement is enforceable as a judg-

ment because it was incorporated, rather than merged,

into the divorce judgment. Therefore, the probate court

erred by applying the 6-year statutory period of limita-

tions for breach-of-contract claims to plaintiff’s claim to

enforce the divorce judgment and should have applied

the 10-year statutory period of limitations for noncon-

tractual money obligations pursuant to MCL

600.5809(3). Because plaintiff sought enforcement of

the provision requiring the decedent to pay plaintiff

half of the proceeds from the 2004 sale of the Colorado

property, her cause of action for that claim accrued in

2004 when the property was sold and the decedent

failed to pay plaintiff half of the proceeds. Therefore,

plaintiff timely filed her complaint in 2012 pursuant to

MCL 600.5809(3).

2014] P

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407

Plaintiff also argues that her claim for unjust enrich-

ment in Count VIII of her complaint should not have

been barred by the six-year statutory period of limita-

tions for breach-of-contract claims. Defendant argues

that a claim for unjust enrichment cannot be sustained

when an express contract on the same subject matter

exists. Defendant is correct that “the law operates to

imply a contract in order to prevent unjust enrichment”

and that this will not occur if there is already an express

contract on the same subject matter. Barber v SMH

(US), Inc, 202 Mich App 366, 375; 509 NW2d 791

(1993). Count VIII of the complaint, however, goes

beyond a claim for breach of contract. Plaintiff alleges

not only that the estate owes her for the decedent’s

breach, but that Marta was unjustly enriched when she

retained the funds from the sale of the Colorado prop-

erty. This is a purely equitable claim that is not covered

by any express contract of the parties. Because the

claim is not based on an analogous legal claim, the

breach-of-contract statute of limitations does not apply.

Lothian v Detroit, 414 Mich 160, 170; 324 NW2d 9

(1982). If the claim for unjust enrichment were time-

barred, it would be under the equitable doctrine of

laches. Id. “As a general rule, ‘[w]here the situation of

neither party has changed materially, and the delay of

one has not put the other in a worse condition, the

defense of laches cannot***berecognized.’ ” Id.at

168, quoting Walker v Schultz, 175 Mich 280, 293; 141

NW 543 (1913). On remand, the probate court should

determine whether laches bars the claim for unjust

enrichment.

Accordingly, we hold that the probate court erred by

granting summary disposition to defendant as to plain-

tiff’s Count VII (enforcement of the divorce judgment)

and Count VIII (unjust enrichment).

408 306 M

ICH

397 [Aug

With regard to defendant’s cross-appeal challenging

the probate court’s denial of her motion for attorney

fees, we conclude that the probate court’s interpreta-

tion of the contractual language in the property settle-

ment agreement providing for attorney fees is overly

narrow. Contrary to the probate court’s determination,

a contract provision providing for attorney fees is a

valid exception to the American rule regarding attorney

fees. Grace v Grace, 253 Mich App 357, 370-371; 655

NW2d 595 (2002). A commonsense reading of ¶ 31, the

relevant provision of the property settlement agree-

ment, is that “reasonable costs incurred by a party in

the successful defense to any action for enforcement of

any of the agreements, covenants, or provisions of [the

property settlement agreement]” would include attor-

ney fees regardless of which party prevails. We decline

to reverse the probate court’s order, however, because

given our disposition of plaintiff’s appeal, defendant no

longer has a “successful defense” under the contractual

language, unless and until the probate court holds in

defendant’s favor on the merits. Gleason v Dep’t of

Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003) (“A

trial court’s ruling may be upheld on appeal where the

right result issued, albeit for the wrong reason.”).

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

AVANAGH

,P.J., and O

WENS

and S

TEPHENS

, JJ., con-

curred.

2014] P

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409

GALIEN TOWNSHIP SCHOOL DISTRICT v

DEPARTMENT OF EDUCATION

Docket Nos. 317734 and 317739. Submitted August 5, 2014, at Lansing.

Decided August 14, 2014, at 9:00 a.m. Vacated in part and

remanded (as to Galien Twp School Dist) at 497 Mich ___. Leave to

appeal denied (as to Delton-Kellogg Schools) at 497 Mich ___.

Galien Township School District filed a claim of appeal in the Ingham

Circuit Court related to a final decision by the Department of

Education and the Superintendent of Public Instruction. In the same

document, Galien and Delton-Kellogg Schools brought an action for

declaratory relief against the department and the superintendent in

connection with the same administrative proceedings. Defendants

had audited both school districts’ pupil-attendance records and,

unable to verify the enrollment of numerous students, reduced state

school aid for both districts, following which they sought administra-

tive review. Galien exhausted its administrative remedies. In Galien’s

first-level review, the department reinstated full-time equivalents

(FTEs) related to some of the students for purposes of calculating

school aid. Galien then sought further administrative review, request-

ing the reinstatement of additional FTEs. The superintendent con-

ducted the final review, which resulted in the reinstatement of

approximately two additional FTEs. Delton-Kellogg did not exhaust

its administrative remedies. In its first-level review, the department

reinstated numerous FTEs. Delton-Kellogg appealed to the superin-

tendent, but that appeal remained pending when the instant action

was filed. The court, Rosemarie E. Aquilina, J., granted the school

districts a declaratory judgment, determining that defendants did not

have the authority to retroactively audit them. The court also

overruled the superintendent’s final decision that reduced Galien’s

state aid because of the findings of the retroactive audits and ordered

defendants to reinstate all wrongfully deducted FTEs and return

state aid. Defendants appealed in Docket No. 317734 with respect to

Delton-Kellogg, and appealed by leave granted in Docket No. 317739

with respect to both districts. The Court of Appeals consolidated the

appeals.

The Court of Appeals held:

1. Because Delton-Kellogg failed to exhaust its administrative

remedies, the circuit court lacked jurisdiction over all of Delton-

410 306 M

ICH

410 [Aug

Kellogg’s claims. MCL 24.301 provides for judicial review, but

requires the party seeking review to first exhaust all administra-

tive remedies available within the agency unless review of the

agency’s final decision or order would not provide an adequate

remedy, that is, if it would run counter to the policies that underlie

the doctrine. The policies requiring the exhaustion of administra-

tive remedies include the following: (1) an untimely resort to the

courts might result in delay and disruption of an otherwise

cohesive administrative scheme, (2) judicial review is best made

with a full factual record developed before the agency, (3) resolu-

tion of the issues might require the technical competence of the

agency or might have been entrusted by the Legislature to the

agency’s discretion, and (4) a successful agency settlement of the

dispute might render a judicial resolution unnecessary. Delton-

Kellogg submitted to the administrative procedure, but disrupted

the progression of the otherwise cohesive process by seeking relief

in the circuit court. Further, it was partially successful at the first

level of review. Full review through the administrative process

might result in the reinstatement of all contested FTEs, which

would provide the relief requested, rendering judicial review

unnecessary. The interests of judicial economy were not served by

interrupting the administrative process.

2. Galien’s act of combining its claim of appeal and claim for

declaratory relief in a single pleading did not divest the circuit

court of subject-matter jurisdiction. Under MCL 600.631 and MCR

7.103(A), a circuit court has subject-matter jurisdiction over a

claim of appeal from a final administrative order or decision. A

circuit court has jurisdiction over a claim for declaratory relief

under MCR 2.605(A)(1) and (2) if the court would have jurisdiction

of an action on the same claim or claims in which the plaintiff

sought relief other than declaratory judgment, regardless of

whether other relief is or could be sought or granted. Given that

the circuit court has jurisdiction to hear appeals regarding final

orders or decisions of the department, it also had jurisdiction over

Galien’s claim for declaratory relief and the existence of an appeal

did not void that jurisdiction.

3. The circuit court, however, did not have jurisdiction to grant

declaratory relief in this case because substantively the claim

failed to address a future harm as required by MCR 2.605, which

requires a case of actual controversy as a condition precedent to

invocation of declaratory relief. Generally, an actual controversy

exists when a declaratory judgment is necessary to guide a

plaintiff’s future conduct in order to preserve the plaintiff’s legal

rights. While Galien styled the relief requested as declaratory

2014] G

ALIEN

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411

relief, asserting that future retroactive audits might compel it to

refund additional state-aid monies, the audits had already been

completed, they were decided against Galien, and the department

reduced current and future school aid over a number of years to

make up the deficiency revealed by the audits. These facts estab-

lished instead a current conflict between Galien and the depart-

ment that was based on a past controversy.

4. The circuit court erred by concluding that the department

did not have the authority to retroactively audit the districts and

adjust their state school aid. The State School Aid Act, MCL

388.1601 et seq., governs the allocation of school aid among school

districts. MCL 388.1615, MCL 388.1618, and MCL 388.1768 em-

power the department to audit districts and to do so retroactively

to gather updated data for prior fiscal years. The department may

use this updated data to make deductions from a district’s school

aid allocation for incorrect allocations related to a prior fiscal year.

Order vacated in its entirety in Docket No. 317734, and

Delton-Kellogg directed to exhaust its administrative remedies.

Order vacated in its entirety in Docket No. 317739, and case

remanded for reinstatement of the superintendent’s March 14,

2013 final decision.

1. C

OURTS —

IRCUIT

OURTS —

UBJECT

-M

ATTER

URISDICTION —

DMINISTRA-

TIVE

PPEALS —

ECLARATORY

ELIEF —

LEADINGS

Under MCL 600.631 and MCR 7.103(A), a circuit court has subject-

matter jurisdiction over a claim of appeal from a final administra-

tive order or decision; under MCR 2.605(A)(1) and (2), a circuit

court has jurisdiction over a claim for declaratory relief if the court

would have jurisdiction of an action on the same claim or claims in

which the plaintiff sought relief other than declaratory judgment,

regardless of whether other relief is or could be sought or granted;

the jurisdiction to hear appeals regarding final orders or decisions

of an agency may coexist with the court’s jurisdiction over a claim

for declaratory relief, and the combining of a claim of appeal and a

claim for declaratory relief in a single pleading does not divest the

circuit court of subject-matter jurisdiction.

2. S

CHOOLS —

TATE

CHOOL

ID —

UDITS —

ETROACTIVE

UDITING —

EPARTMENT OF

DUCATION

The State School Aid Act, MCL 388.1601 et seq., governs the

allocation of school aid among school districts; MCL 388.1615,

MCL 388.1618, and MCL 388.1768 empower the Department of

Education to audit school districts, including doing so retroactively

to gather updated data for prior fiscal years; the department may

412 306 M

ICH

410 [Aug

use this updated data to make deductions from a district’s school

aid allocation for incorrect allocations related to a prior fiscal year.

Thrun Law Firm, PC (by Margaret M. Hackett and

Jennifer K. Johnston), for Galien Township School

District.

Thrun Law Firm, PC (by Robert A. Dietzel and

Jennifer K. Johnston), for Delton-Kellogg Schools.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, and Travis Comstock, Assistant At-

torney General, for the Department of Education and

the Superintendent of Public Instruction.

Before: S

AAD

,P.J., and O

WENS

and K. F. K

ELLY

,JJ.

URIAM

. In these consolidated appeals,

defendants—the Michigan Department of Education

(MDE) and the Superintendent of Public Instruction—

appeal as of right, in Docket No. 317734, a circuit court

order that granted plaintiff Delton-Kellogg Schools a

declaratory judgment, determining that defendants did

not have the authority to retroactively audit plaintiff. In

Docket No. 317739, the same defendants appeal by

leave granted

the same circuit court order, which also

granted plaintiff Galien Township School District de-

claratory judgment for the same reasons. The circuit

court order also overruled the superintendent’s final

decision that reduced Galien’s state aid because of the

findings of the retroactive audits and ordered that

defendants reinstate all wrongfully deducted full-time

equivalent students (FTEs) and return state aid. In

Docket No. 317734, we conclude that the circuit court

Galien Twp Sch Dist v Superintendent of Pub Instruction, unpub-

lished order of the Court of Appeals, entered December 18, 2013 (Docket

No 317739).

2014] G

ALIEN

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413

did not have subject-matter jurisdiction over Delton-

Kellogg’s claims and vacate the circuit court’s order in

its entirety. In Docket No. 317739, we vacate the circuit

court’s order in its entirety and remand for reinstate-

ment of the superintendent’s final decision.

I. BACKGROUND

After plaintiffs admitted teacher misconduct in

reporting student attendance, defendants claimed

authority under the State School Aid Act (SSAA),

MCL 388.1601 et seq., and audited prior years’ atten-

dance records. The audit could not verify 225.75

FTEs enrolled in Galien Township School District

and 408.75 FTEs enrolled in Delton-Kellogg Schools.

On the basis of these retroactive audits, defendants

reduced approximately $750,000 from state aid for

Galien and approximately $1.5 million for Delton-

Kellogg. Both school districts sought administrative

review. Galien exhausted its administrative remedies,

and in a first-level review, the MDE reinstated 35.27

FTEs. Galien sought further administrative review,

requesting that 190.38 additional FTEs be reinstated.

Superintendent of Public Instruction Michael Flana-

gan conducted the final review and issued his report

on March 14, 2013. The final administrative review

resulted in 1.84 additional reinstated FTEs. Galien

then filed the instant action, including a claim of

appeal, in the circuit court.

Delton-Kellogg, on the other hand, did not exhaust

its administrative remedies. In a first-level review, the

MDE reinstated 162.4 FTEs. Delton-Kellogg appealed

to the superintendent, and that appeal remains pend-

ing. In the meantime, Delton-Kellogg brought the in-

stant action in the circuit court.

414 306 M

ICH

410 [Aug

II. SUBJECT-MATTER JURISDICTION

A. DOCKET NO.

317734

Defendants argue that the circuit court erred by

holding that it had subject-matter jurisdiction over all

of Delton-Kellogg’s claims because Delton-Kellogg

failed to exhaust all the administrative remedies avail-

able. We agree. “Whether a court has subject matter

jurisdiction is a question of law that we review de novo.”

Bruley Trust v Birmingham, 259 Mich App 619, 623;

675 NW2d 910 (2003) (citation omitted).

MCL 24.301 addresses judicial review in the context

of administrative exhaustion:

When a person has exhausted all administrative rem-

edies available within an agency, and is aggrieved by a final

decision or order in a contested case, whether such decision

or order is affirmative or negative in form, the decision or

order is subject to direct review by the courts as provided

by law. Exhaustion of administrative remedies does not

require the filing of a motion or application for rehearing or

reconsideration unless the agency rules require the filing

before judicial review is sought. A preliminary, procedural

or intermediate agency action or ruling is not immediately

reviewable, except that the court may grant leave for

review of such action if review of the agency’s final decision

or order would not provide an adequate remedy.

Delton-Kellogg does not dispute that it has not ex-

hausted all administrative remedies, but it argues that

exhaustion was not required here. As stated, exhaustion is

not required “if review of the agency’s final decision or

order would not provide an adequate remedy,” MCL

24.301, i.e., “if it would run counter to the policies which

underlie the doctrine,” Int’l Business Machines Corp v

Dep’t of Treasury, 75 Mich App 604, 610; 255 NW2d

702 (1977) (IBM). See also Citizens for Common Sense

in Gov’t v Attorney General, 243 Mich App 43, 53;

2014] G

ALIEN

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415

620 NW2d 546 (2000), quoting IBM, 75 Mich App at

610. These policies include the following:

(1) an untimely resort to the courts may result in delay and

disruption of an otherwise cohesive administrative scheme;

(2) judicial review is best made upon a full factual record

developed before the agency; (3) resolution of the issues

may require the accumulated technical competence of the

agency or may have been entrusted by the Legislature to

the agency’s discretion; and (4) a successful agency settle-

ment of the dispute may render a judicial resolution

unnecessary. [IBM, 75 Mich App at 610; see also Citizens

for Common Sense, 243 Mich App at 53.]

Relying on IBM, Delton-Kellogg asserts that exhaustion

was not required here because the question raised only

challenged the MDE’s legal authority to take the

complained-of action, it was clearly framed for review,

fact-finding was unnecessary, application of the MDE’s

expertise was not required, review by the circuit court

promoted judicial economy, and the MDE did not have

exclusive jurisdiction over questions of statutory au-

thority. We disagree. The record shows that Delton-

Kellogg submitted to the administrative procedure, but

disrupted the progression of the otherwise cohesive

process by seeking relief in the circuit court. Further,

Delton-Kellogg was successful in the first level of re-

view, regaining 162.4 FTEs. Not only will this Court not

presume that administrative review is futile when the

outcome has aided the party seeking review, see Papas

v Gaming Control Bd, 257 Mich App 647, 664-665; 669

NW2d 326 (2003), but also full review through the

administrative process could very well result in the

reinstatement of all contested FTEs, which would pro-

vide the relief requested, rendering judicial review

unnecessary. Accordingly, the interests of judicial

economy are not served here by interrupting the admin-

istrative process. Given the pending appeal before the

416 306 M

ICH

410 [Aug

superintendent, the disruptive potential of pursuing judi-

cial review is a circumstance to be avoided. See Citizens

for Common Sense, 243 Mich App at 52 (“Our Supreme

Court has stated that ‘administrative law dictates that

courts move very cautiously when called upon to interfere

with the assumption of jurisdiction by an administrative

agency.’ ”), quoting 74th Judicial Dist Judges v Bay Co,

385 Mich 710, 727; 190 NW2d 219 (1971). Cf. Detroit Auto

Inter-Ins Exch v Ins Comm’r, 125 Mich App 702, 708-709;

336 NW2d 860 (1983). Therefore, we conclude that be-

cause Delton-Kellogg failed to exhaust its administrative

remedies, the circuit court lacked jurisdiction over all of

Delton-Kellogg’s claims.

B. DOCKET NO. 317739

Defendants next attack the circuit court’s subject-

matter jurisdiction to hear Galien’s claims because its

claim of appeal and claim for declaratory relief were

combined in a single pleading. Defendants also assert

that the circuit court did not have jurisdiction over

Galien’s claim for declaratory relief because there was

no claim or controversy. Again, we review this issue de

novo. Bruley Trust, 259 Mich App at 623.

We reject defendants’ argument that the circuit court

lacked jurisdiction because Galien combined the claims.

A circuit court has subject-matter jurisdiction over a

claim of appeal from a final administrative order or

decision. MCL 600.631; MCR 7.103(A)(3) and (4). For

the circuit court to be vested with jurisdiction in an

appeal of right, MCR 7.104(B), provides that

an appellant must file with the clerk of the circuit court

within the time for taking an appeal:

(1) the claim of appeal, and

(2) the circuit court’s appeal fee, unless the appellant is

indigent.

2014] G

ALIEN

CH V

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417

Likewise, a circuit court has jurisdiction over a claim for

declaratory relief “if the court would have jurisdiction

of an action on the same claim or claims in which the

plaintiff sought relief other than a declaratory judg-

ment,” MCR 2.605(A)(2), and this jurisdiction is in-

voked by filing a complaint with the court, MCR 2.101.

Thus, given that the circuit court has jurisdiction to

hear appeals regarding final orders or decisions of the

MDE, MCR 7.103(A)(3) and (4), it follows that it would

have jurisdiction over Galien’s claim for declaratory

relief. By the plain language of the court rule, the

existence of an appeal does not void jurisdiction over

the declaratory judgment, as that jurisdiction applies

“whether or not other relief is or could be sought or

granted.” MCR 2.605(A)(1).

Further, Galien’s act of combining the claims into

one document did not divest the circuit court of juris-

diction according to the plain language of the court

rules. The record indicates, and defendants have not

argued to the contrary, that Galien invoked the court’s

jurisdiction by filing its claim of appeal and complaint

for declaratory relief and paying the fees. This was

sufficient to invoke the court’s jurisdiction over both

claims. While it would perhaps have been advisable to

bring the appeal and declaratory relief actions under

separate circuit court dockets and move for consolida-

tion, the presentation of the claims together was insuf-

ficient to divest the court of subject-matter jurisdiction.

This is particularly evident given that the record indi-

cates that the circuit court addressed the two claims

separately, as reflected in its opinion and order. See

Chen v Wayne State Univ, 284 Mich App 172, 199; 771

NW2d 820 (2009) (noting that cases consolidated for

administrative convenience or judicial economy retain

their separate identities).

418 306 M

ICH

410 [Aug

Nevertheless, we do conclude that the circuit court

did not have jurisdiction to grant declaratory relief

because substantively the claim failed to address a

future harm. MCR 2.605 governs declaratory judg-

ments, reading in relevant part as follows:

(A) Power To Enter Declaratory Judgment.

(1) In a case of actual controversy within its jurisdiction,

a Michigan court of record may declare the rights and other

legal relations of an interested party seeking a declaratory

judgment, whether or not other relief is or could be sought

or granted.

(2) For the purpose of this rule, an action is considered

within the jurisdiction of a court if the court would have

jurisdiction of an action on the same claim or claims in

which the plaintiff sought relief other than a declaratory

judgment.

***

adequate remedy does not preclude a judgment for declara-

tory relief in an appropriate case.

***

(F) Other Relief. Further necessary or proper relief

based on a declaratory judgment may be granted, after

reasonable notice and hearing, against a party whose rights

have been determined by the declaratory judgment.

A case of actual controversy is a “condition precedent

to invocation of declaratory relief.” Citizens for Com-

mon Sense, 243 Mich App at 54-55 (quotation marks

and citation omitted). “Generally, an actual controversy

exists where a declaratory judgment is necessary to

guide a plaintiff’s future conduct in order to preserve

the plaintiff’s legal rights.” Id. It is essential that a

plaintiff “pleads facts entitling him to the judgment he

2014] G

ALIEN

CH V

’

419

seeks and proves each fact alleged” and those facts

“indicate an adverse interest necessitating the sharp-

ening of the issues raised.” Shavers v Attorney General,

402 Mich 554, 589; 267 NW2d 72 (1978).

Galien styled the relief requested in circuit court as

declaratory relief, asserting that future retroactive au-

dits might compel the district to refund additional

state-aid monies. It is undisputed that the audits were

completed by the MDE, that were they decided against

Galien, and that the MDE reduced current and future

school aid over a number of years to make up the

deficiency revealed by the audits. These facts establish

a controversy between Galien and the MDE, but a

current conflict based on a past controversy. That the

MDE allowed the funding deficits to be repaid over

several years is not dispositive because the determina-

tion of the legal rights of the parties was already settled.

See Lansing Sch Ed Ass’n, MEA/NEA v Lansing Bd of

Ed (On Remand), 293 Mich App 506, 516; 810 NW2d 95

(2011) (holding that an actual controversy was lacking

because the plaintiffs had not alleged imminent injury

given that the alleged physical injuries had already

occurred). Accordingly, the circuit court did not have

jurisdiction over Galien’s claim for declaratory relief.

III. RETROACTIVE AUDITS

Defendants also argue that the circuit court improp-

erly granted plaintiffs appellate relief on the basis of the

erroneous conclusion that the MDE lacked authority to

We note that although we conclude that the circuit court did not have

jurisdiction over Delton-Kellogg’s claims because of its failure to exhaust

its administrative remedies, we would conclude for the reasons given

here that the circuit court would not have had jurisdiction to grant

declaratory relief to Delton-Kellogg even if it had exhausted its adminis-

trative remedies.

420 306 M

ICH

410 [Aug

retroactively audit and adjust state school aid.

This

issue requires us to interpret and apply various sections

of the SSAA. Interpretation and application of a statute

is a question of law we review de novo. McAuley v Gen

Motors Corp, 457 Mich 513, 518; 578 NW2d 282 (1998).

The foremost rule of statutory construction “is to

discern and give effect to the intent of the Legislature.”

Whitman v City of Burton, 493 Mich 303, 311; 831

NW2d 223 (2013). Interpretation strives to give effect to

“every phrase, clause, and word in the statute and,

whenever possible, no word should be treated as sur-

plusage or rendered nugatory.” Id. at 311-312. Each

word or phrase of a statute is given its commonly

accepted meaning unless otherwise expressly defined.

McAuley, 457 Mich at 518. “Statutes should be con-

strued so as to prevent absurd results, injustice, or

prejudice to the public interest.” Id.

During the course of proceedings below, § 15 of the

SSAA provided, in pertinent part:

(1)...Subject to subsections (2) and (3), if a district or

intermediate district has received more than its proper

apportionment, the department, upon satisfactory proof,

shall deduct the excess in the next apportionment. Not-

withstanding any other provision in this article, state aid

overpayments to a district, other than overpayments in

payments for special education or special education trans-

portation, may be recovered from any payment made under

this article....

(2) If the result of an audit conducted by or for the

department affects the current fiscal year membership,

affected payments shall be adjusted in the current fiscal

In light of our conclusion that the circuit court did not have

jurisdiction over any of Delton-Kellogg’s claims, we need not consider

this issue as it relates to Delton-Kellogg. However, because our analysis

of this issue is the same for both plaintiffs, we will address the issue as it

relates to both plaintiffs.

2014] G

ALIEN

CH V

’

421

year. A deduction due to an adjustment made as a result of

an audit conducted by or for the department, or as a result

of information obtained by the department from the dis-

trict, an intermediate district, the department of treasury,

or the office of auditor general, shall be deducted from the

district’s apportionments when the adjustment is final-

ized....[T]he department may grant up to an additional 4

years for the adjustment....

(3) If, because of the receipt of new or updated data, the

department determines during a fiscal year that the

amount paid to a district or intermediate district under this

article for a prior fiscal year was incorrect under the law in

effect for that year, the department may make the appro-

priate deduction or payment in the district’s or intermedi-

ate district’s allocation for the fiscal year in which the

determination is made. [MCL 388.1615, as amended by

2012 PA 286.]

[

]

Further, § 18 provided, in pertinent part:

(4) For the purpose of determining the reasonableness of

expenditures and whether a violation of this article has

occurred, all of the following apply:

(a) The department shall require that each district and

intermediate district have an audit of the district’s or

intermediate district’s financial and pupil accounting

records conducted at least annually at the expense of the

district or intermediate district, as applicable, by a certified

public accountant or by the intermediate district superin-

tendent, as may be required by the department, or in the

case of a district of the first class by a certified public

accountant, the intermediate superintendent, or the audi-

tor general of the city.

***

2014 PA 196 amended § 15, effective October 1, 2014, by amending

the language of Subsection (3) and adding a new Subsection (4) that

provided: “The department may conduct audits, or may direct audits by

designee of the department, for the current fiscal year and the immedi-

ately preceding 3 fiscal years of all records related to a program for which

a district or intermediate district has received funds under this article.”

422 306 M

ICH

410 [Aug

(d) The pupil and financial accounting records and

reports, audits, and management letters are subject to

requirements established in the auditing and accounting

manuals approved and published by the department.

***

(8) The department shall review its pupil accounting

and pupil auditing manuals at least annually and shall

periodically update those manuals to reflect changes in this

article. [MCL 388.1618, as amended by 2012 PA 201.]

[

]

And § 168 provided:

In order to receive funds under this act, a district...or

other entity that directly or indirectly receives funds under

this act shall allow access for the department or the

department’s designee to audit all records related to a

program for which it receives such funds. The district...

or other entity shall reimburse the state for all disallow-

ances found in the audit. [MCL 388.1768, as amended by

1993 PA 175.]

[

]

Section 168, which empowers the MDE “to audit all

records related to a program,” notes that it is applicable

to “funds under this act,” indicating that the powers

and definitions in § 168 applied to the entire SSAA.

Thus, the ability to access the records to conduct an

audit applied to the other sections under consideration

here, including §§ 15 and 18. Although the MDE is

2014 PA 196 also amended § 18(4)(a) to indicate that audits could be

conducted “at such other times as determined by the department” and

that districts “shall retain these records for the current fiscal year and

from at least the 3 immediately preceding fiscal years.”

2014 PA 196 amended § 168 to change references from “this act” to

“this article” and require access related to programs for which funds have

been received “for any of the 3 immediately preceding fiscal years.”

2014 PA 196 did not change this. While it refers to “this article”

rather than “this act,” the reference is to the article of the SSAA that

governs public schools.

2014] G

ALIEN

CH V

’

423

clearly empowered to audit, the question is whether it

may retroactively audit.

We conclude that when they are read together in

their entirety, the interplay of §§ 15 and 168 authorizes

the MDE to conduct retroactive audits. MCL

388.1615(3) provides:

If, because of the receipt of new or updated data, the

department determines during a fiscal year that the

amount paid to a district or intermediate district under this

article for a prior fiscal year was incorrect under the law in

effect for that year, the department may make the appro-

priate deduction... in the district’s or intermediate dis-

trict’s allocation for the fiscal year in which the determi-

nation is made.

Section 15(3) clearly empowers the MDE to make deduc-

tions from a district’s allocation for incorrect allocations

related to a prior fiscal year. Any deduction is driven by

the “receipt of new or updated data.” Further, § 168

required districts to “allow access for the department or

the department’s designee to audit all records related to a

program for which it receives such funds.” MCL 388.1768.

“All records” necessarily includes past and present records

and the right of access to complete an audit is given to the

MDE. MCL 388.1615(3), unlike MCL 388.1615(2), does

not use the term “audit,” but that is the most likely

avenue for the MDE to receive new or updated data,

especially given the reference to audits in MCL

388.1615(2). The MDE clearly has audit power and there

is no indication in § 15(3) that this power cannot be used

to gather “new or updated data.” Therefore, the audit

power can act retroactively to gather updated data on a

prior fiscal year.

Accordingly, we hold that the circuit

We reject Galien’s argument that the amendments made by 2014 PA

196 indicate that the MDE previously lacked the authority to conduct

retroactive audits. As we have concluded, before the amendments, the

424 306 M

ICH

410 [Aug

court erred by concluding that the MDE did not have

the authority to retroactively audit.

IV. CONCLUSION

In Docket No. 317734, we vacate the circuit court’s

order in its entirety and direct Delton-Kellogg to ex-

haust its administrative remedies before seeking judi-

cial review.

In Docket No. 317739, we vacate the circuit court’s

order in its entirety and remand for reinstatement of

the superintendent’s March 14, 2013 final decision.

AAD

,P.J., and O

WENS

and K. F. K

ELLY

, JJ., concurred.

SSAA clearly granted the MDE the authority to conduct retroactive

audits. The recently passed amendments simply clarify this authority by

specifically limiting the scope of audits and recordkeeping requirements

to three years, rather than an undefined period.

2014] G

ALIEN

CH V

’

425

IMEvDBS

Docket No. 316274. Submitted August 5, 2014, at Grand Rapids. Decided

August 14, 2014, at 9:05 a.m.

IME, through her next friend, GE, filed a petition in the Allegan

Circuit Court seeking an ex parte personal protection order (PPO)

against DBS. DBS, a juvenile, in a previous delinquency proceed-

ing was found to have committed first- and second-degree criminal

sexual conduct against petitioner. The court, Margaret Z. Bakker,

J., granted the petition. Respondent moved to modify or terminate

the PPO, asserting that the statute under which the PPO was

granted, MCL 600.2950a(2)(a), was unconstitutional. Following a

hearing, the court amended the order to allow respondent to

possess a firearm while hunting with family members. The court

took the issue of the constitutionality of the statute under advise-

ment. The court subsequently determined that respondent had

failed to demonstrate that the statute was unconstitutional and

denied respondent’s motion to terminate the order. Respondent

appealed.

The Court of Appeals held:

1. Under MCL 600.2950a(2)(a), a person may petition a court

to enter a PPO to restrain or enjoin an individual from engaging in

certain acts if that individual has been convicted of a sexual

assault of the petitioner. Consistent with the minimum require-

ments of the Due Process Clause, the respondent to a petition for

a PPO under MCL 600.2950a(2)(a) has the ability to contest the

petition by presenting evidence that he or she has not in fact been

convicted of sexually assaulting the petitioner. The fact that the

respondent’s status satisfies the requirement for issuing a PPO

under the statute does not result in a violation of procedural due

process because the respondent received all the process to which

he or she was due at the criminal proceeding that led to conviction.

The Legislature also enacted additional procedural safeguards to

ensure that the orders are properly issued and subject to review.

The statute requires a demonstration of exigent circumstances

before an ex parte PPO may be issued, provides for rescission of a

PPO on motion by the respondent, and allows a respondent who

has not received notice of the PPO to avoid arrest for an unwitting

426 306 M

ICH

426 [Aug

violation of the PPO. These safeguards are sufficient to protect a

respondent’s right to procedural due process, and, on the facts of

this case, respondent was given a meaningful opportunity to be

heard and to seek appropriate modifications of the PPO.

2. To determine whether a statute is unconstitutional, courts

must examine whether the statute interferes with a fundamental

right. If the right asserted is not fundamental, the government’s

interference with that right need only be reasonably related to a

legitimate government interest. When issuing a PPO under MCL

600.2950a(2)(a), a court may restrain or enjoin a number of

different acts, which are identified in MCL 600.2950a(3), but the

court is not required to restrain or enjoin the respondent from

engaging in any of those acts, and most of those acts do not

implicate fundamental rights. To the extent that the court has the

power to restrain or enjoin the purchase or possession of firearms,

the restriction is a reasonable exercise of the state’s police power

because it allows the court to make a judgment regarding whether

and to what extent the PPO should restrict the right to bear arms.

Therefore, the statute does not on its face impair a fundamental

right. With the enactment of MCL 600.2950a(2)(a), the Legislature

intended to protect the victims of sexual assault from further

victimization by the perpetrator of the sexual assault. The Legis-

lature could have reasonably concluded that the victims of sexual

assault are particularly susceptible to further victimization by the

perpetrator of the assault, and that they require additional mea-

sures to protect them from their previous attackers beyond those

provided under MCL 600.2950 and MCL 600.2950a(1). Therefore,

the Legislature’s decision to allow victims of sexual assault to seek

personal protections orders against the persons convicted of as-

saulting them is reasonably related to the legitimate government

purpose of protecting victims of sexual assault from further

victimization. The flexibility given to the court when fashioning

the PPO also ensures that the liberty interests of respondents are

not arbitrarily or unreasonably restrained. The trial court cor-

rectly ruled that MCL 600.2950a(2)(a) passes constitutional scru-

tiny.

Affirmed.

1. S

TATUTES —

ERSONAL

ROTECTION

RDERS

GAINST

ERPETRATORS OF

EXUAL

SSAULTS —

ONSTITUTIONAL

AW —

ROCEDURAL

ROCESS

Under MCL 600.2950a(2)(a), a person may petition a court to enter

a personal protection order to restrain or enjoin an individual from

engaging in certain acts if that individual has been convicted of a

2014] IME

DBS 427

sexual assault of the petitioner; the statute contains sufficient

procedural safeguards to protect a respondent’s right to proce-

dural due process.

2. S

TATUTES —

ERSONAL

ROTECTION

RDERS

GAINST

ERPETRATORS OF

EXUAL

SSAULTS —

ONSTITUTIONAL

AW —

UBSTANTIVE

ROCESS

When issuing a personal protection order under MCL

600.2950a(2)(a), a court may restrain or enjoin a number of

different acts, but the statute does not on its face impair a

fundamental right; the Legislature’s decision to allow victims of

sexual assault to seek personal protections orders against the

persons convicted of assaulting them is reasonably related to

the legitimate government purpose of protecting victims of

sexual assault from further victimization; the flexibility given

to the court when fashioning the personal protection order

ensures that the liberty interests of respondents are not arbi-

trarily or unreasonably restrained; MCL 600.2950a(2)(a) passes

constitutional scrutiny.

Law Office of Leo Hendges, PLLC (by Leo T.

Hendges), for respondent.

Before: M. J. K

ELLY

,P.J., and S

AWYER

and H

OEKSTRA

JJ.

URIAM

. Respondent, DBS, appeals by right the

trial court’s decision to grant the request for a personal

protection order (PPO) by petitioner, IME, through her

next friend, GE, who is her father. Because we conclude

there were no errors warranting relief, we affirm.

I. BASIC FACTS

These events have their origin in a prior incident

that occurred when respondent was just 12 years of age.

He was visiting the home of petitioner’s family at the

time. GE walked into a room and discovered respondent

with petitioner, who was just 6 years of age. Petitioner

was in a state of undress.

428 306 M

ICH

426 [Aug

The county prosecutor initiated a delinquency pro-

ceeding against respondent in September 2010. At the

proceeding, the jury heard evidence that respondent

touched petitioner’s vagina and performed cunnilingus

on her. The jury found him guilty of one count each of

criminal sexual conduct in the first degree and criminal

sexual conduct in the second degree.

In October 2012, petitioner’s father petitioned for

a PPO against respondent on his daughter’s behalf.

In a statement attached in support of the petition,

petitioner’s mother noted that petitioner was a victim

of sexual assault and described the incident at a high

school football game that she attended with her

daughter (age 9 as of the petition), which precipitated

the need for a PPO. She stated that her daughter

became “scared and panicked” and began to cry after

she saw respondent at the game. She was alarmed

because respondent was “walking around and staring

at her.” Petitioner’s mother argued that, “[a]s a

victim[,] she [petitioner] shouldn’t have to leave

school functions and activities because he [respon-

dent] is there.” “Furthermore,” she stated, “he

shouldn’t be allowed at school [functions] or around

other young children.” Petitioner’s father asked the

court to issue an ex parte order prohibiting respon-

dent from “following” or “approaching or confront-

ing” petitioner “in a public place or on private

property.”

The trial court granted the petition on the ground

that respondent had committed a sexual assault against

petitioner. However, it expanded the scope of the order

to include limitations beyond those requested in the

petition. The court barred respondent from following

petitioner, appearing at her workplace or residence,

approaching or confronting her in a public place or on

2014] IME

DBS 429

private property, entering onto or remaining on prop-

erty owned, leased, or occupied by her, sending mail or

other communications to her, contacting her by tele-

phone, placing an object on or delivering an object to

property owned, leased, or occupied by her, or threat-

ening to kill or physically injure her. In addition, the

court prohibited him from purchasing or possessing a

firearm. Respondent received service of the order in

November 2012. The order stated that it would remain

in effect until October 2013.

In December 2012, respondent moved to modify or

terminate the PPO. He maintained that the statute

allowing courts to issue a PPO on the basis of a single

prior sexual assault is unconstitutional. He argued that

it is overbroad because it restricts “more conduct than

is necessary to accomplish the goal of protecting victims

of convicted sex offenders.” Respondent also asserted

that the statute is impermissibly overbroad because

there are “no time limitations built into this law”; the

petitioner could obtain a PPO every year for the rest of

her life. Respondent further argued that the statute is

unconstitutional because it allows a court to restrain

the respondent’s personal liberties even after he or she

has served his or her sentence. In his brief in support of

his motion, respondent also claimed that the PPO

violated his right to equal protection of the laws, his

right to exercise his religion, his right to freely associ-

ate, his right to bear arms, his right against unreason-

able searches and seizures, and his right not to be

subjected to double jeopardy.

The trial court held a hearing on the motion in

February 2013. At the hearing, the trial court noted

that respondent had not challenged the underlying

facts, but was challenging the constitutionality of the

statute alone. Respondent’s lawyer agreed that that

was the case.

430 306 M

ICH

426 [Aug

At the hearing, respondent’s lawyer explained how

the PPO stripped respondent of his ability to lead a

normal life on the basis of a single underlying convic-

tion for a sex crime. Now respondent cannot do the

things that he likes to do:

In this case, go to a football game where [respondent] is

back in school.... He actually was on the team for a

period. I am not sure if he still is now. But he likes going to

football games. And he--he’s a fifteen year old kid now. He

scans the stands to see if his friends are there. And in this

case, apparently [petitioner’s family] felt that he was

staring at them. And they feel that that made [petitioner]

nervous, so they filed for a personal protection order.

Respondent’s lawyer also explained that respondent

cannot go hunting with his family and, if petitioner’s

family suddenly chose to attend his church, he would be

precluded from practicing his religion. And these limi-

tations, he emphasized, can be renewed in perpetuity

under the statute. It is this breadth, he maintained,

that makes the statute unconstitutional:

In this case, the parties live in similar towns. They go to

the grocery store. They run into each other. That’s going to

happen. There is no showing that [respondent or his

family] have in any way tried to approach them, tried to

come to their house, tried to mail things. But they are

still--[respondent] is subject to a personal protection or-

der....

***

He is back in the public schools. He is trying to get on

with his life. Fortunately he doesn’t have to register on the

sex offender registry, because that was amended. But now

he is subject to personal protection orders and if he wants

to buy a gun to go hunting this next year with his father in

Cadillac, at his uncle’s property, he can’t do that because he

can’t own a gun. If that is the way that the order is entered.

2014] IME

DBS 431

Petitioner’s father spoke on his daughter’s behalf

and argued that the statute was proper. He related that

he too had previously made a bad decision and had to

live with the consequences: “And we all--you know, ten

years ago, I decided to do something and commit two

felonies. And because of that decision, I have to live

with not being able to have a gun, not being able to do

certain things because of my criminal record.” But, he

stated, it was his job to protect his daughter and “now

she feels that she is unsafe.” Petitioner’s father reiter-

ated that he was not trying to make respondent miser-

able: “we went two years without having any issues

until that day.” But after the incident he wanted to

“make sure that she is protected.” The trial court asked

petitioner’s father if it would be all right to amend the

order to allow respondent to hunt, and he agreed: “You

know what, I don’t care if he can possess--I don’t want

to ruin his--everything about his life.... [T]hat’s not

my point here.”

The trial court took the motion under advisement,

but left the existing order in place pending its decision.

It, however, amended the order to allow respondent to

possess a firearm while hunting with family members.

In April 2013, the trial court issued its opinion and

order on the motion to modify or terminate the PPO.

The trial court determined that respondent had not met

his burden to demonstrate that the statute was uncon-

stitutional. The court explained that respondent had to

show that the statute’s overbreadth was “real and

substantial” when judged in relation to its legitimate

sweep. Although respondent identified possible situa-

tions in which the PPO authorized under the statute

might interfere with his exercise of certain rights, those

possibilities were merely theoretical rather than realis-

tic dangers arising from the statute itself. The trial

432 306 M

ICH

426 [Aug

court also rejected respondent’s contention that the

statute violated the prohibition against multiple pun-

ishments because any punishment would be for the

violation of the PPO and not for committing the origi-

nal sexual assault. Finally, it concluded that the statute

met the minimum requirements for due process. For

these reasons, the trial court denied respondent’s mo-

tion to the extent that it asked the trial court to find the

statute unconstitutional or to construe it in a way to

impose additional requirements.

This appeal followed.

II. CONSTITUTIONALITY

A. STANDARDS OF REVIEW

On appeal, respondent argues that MCL

600.2950a(2)(a) is unconstitutional because it allows a

petitioner to obtain a PPO against a respondent solely

on the basis that the respondent sexually assaulted the

petitioner or provided the petitioner with obscene ma-

terial. Respondent asserts that by creating this auto-

matic right to a PPO, the Legislature eliminated the

need for the petitioner to demonstrate that he or she

needs a PPO in order to ensure his or her safety, which

violates the respondent’s right to procedural due pro-

cess.

Respondent also claims that the statute is uncon-

stitutional because it does not satisfy the rational-basis

test.

This Court reviews de novo a challenge to the con-

stitutionality of a statute. Bonner v Brighton, 495 Mich

209, 221; 848 NW2d 380 (2014). This Court also reviews

de novo whether the trial court properly selected,

interpreted, and applied a statute. Kincaid v Cardwell,

We note that respondent has not challenged whether MCL

600.2950a(2)(a) applies to juvenile adjudications.

2014] IME

DBS 433

300 Mich App 513, 522; 834 NW2d 122 (2013). This

Court must presume that MCL 600.2950a(2)(a) is con-

stitutional unless its “ ‘invalidity appears so clearly as

to leave no room for reasonable doubt that it violates

some provision of the Constitution....’”Bonner, 495

Mich at 221, quoting Cady v Detroit, 289 Mich 499, 505;

286 NW 805 (1939).

B. PROCEDURAL DUE PROCESS

Although respondent argues that MCL 600.2950a(2)(a)

is unconstitutional because it denies respondents a

meaningful opportunity to be heard, he does not

actually address the procedural safeguards that the

Legislature put into place to protect persons who are

respondents in a proceeding under the statute. In-

deed, he appears to concede that he received notice

and had an opportunity to contest the PPO; he simply

does not like the fact that the statute provides the

victims of sexual assault with an automatic right to

obtain a PPO against the persons convicted of attack-

ing them. Nevertheless, we shall examine the safe-

guards of the statutory scheme.

Before the state may deprive persons of liberty or

property, due process requires that the person be given

notice of the proceedings and an opportunity to be

heard in a meaningful time and manner. Dow v Michi-

gan, 396 Mich 192, 206-207; 240 NW2d 450 (1976). Any

additional procedural protections required by due pro-

cess are flexible and depend on the particular situation.

In re Brock, 442 Mich 101, 110-111; 499 NW2d 752

(1993). Generally, three factors will be considered when

determining what is required by due process: (1) the

private interest affected by the official action, (2) the

risk of erroneous deprivation of the interest through

434 306 M

ICH

426 [Aug

the procedures used, and (3) the probable value, if any,

of additional or substitute procedural safeguards. Id.at

111.

The Legislature has provided courts with the author-

ity to restrain or enjoin persons from engaging in

certain conduct. The statutory provisions governing

such orders are found under MCL 600.2950 and MCL

600.2950a. Under MCL 600.2950a, which is at issue

here, the Legislature provided for personal protection

orders against persons other than those with whom the

petitioner has a domestic relationship. Originally, this

statute only permitted a petitioner to obtain a PPO to

restrain or enjoin the respondent from engaging in the

conduct criminalized under MCL 750.411h or MCL

750.411i, which statutes prohibit what is commonly

referred to as stalking. See 1992 PA 262. However, the

Legislature determined that certain other potentially

vulnerable persons should have the power to petition

for personal protection orders to restrain persons who

pose a danger to them.

The current statute allows a petitioner to obtain a

PPO under three circumstances. A petitioner may ob-

tain a PPO enjoining the respondent from engaging in

the conduct prohibited under MCL 750.411h, MCL

750.411i, or MCL 750.411s, when the petitioner alleges

that the respondent engaged in acts that would consti-

tute a violation of one of those statutes without regard

to whether the respondent has actually been charged or

convicted of such a violation. MCL 600.2950a(1). A

petitioner may also seek a PPO to enjoin or restrain a

respondent from engaging in certain conduct—listed

under MCL 600.2950a(3)—when the petitioner has

“been subjected to, threatened with, or placed in rea-

sonable apprehension of sexual assault by the indi-

vidual to be enjoined.” MCL 600.2950a(2)(b). Finally, a

2014] IME

DBS 435

petitioner may seek a PPO to restrain or enjoin the

respondent from engaging in the conduct listed under

MCL 600.2950a(3) when the “respondent has been

convicted of a sexual assault of the petitioner” or has

been “convicted of furnishing obscene material to the

petitioner....”MCL600.2950a(2)(a).

Consistent with minimum due process, the respon-

dent to a petition for an order under MCL

600.2950a(2)(a) has the ability to contest the petition by

presenting evidence that he or she has not in fact been

convicted of sexually assaulting the petitioner or fur-

nishing obscene material to the petitioner. And, with

regard to those respondents who have been convicted of

sexually assaulting the petitioner, the fact that his or

her status satisfies the minimum requirements for

issuing a PPO does not—by itself—result in a violation

of procedural due process; the respondent received “all

the process to which he [or she] was due” at the

criminal proceeding resulting in his or her conviction.

People v Minch, 493 Mich 87, 94; 825 NW2d 560 (2012).

The Legislature also enacted procedural safeguards to

ensure that the orders are properly issued and subject to

review. The petitioner has the burden to establish grounds

for the issuance of a PPO. See MCL 600.2950a(1) and

MCL 600.2950a(2). The order must be served on the

respondent and, in the case of minors, on the respondent’s

parent, guardian, or custodian. MCL 600.2950a(18).

When seeking an ex parte order, the petitioner must

establish “that immediate and irreparable injury, loss, or

damage will result from the delay required to effectuate

notice....”MCL600.2950a(12). A respondent to a peti-

tion under MCL 600.2950a(2)(a) also has the right to file

and have a hearing on his or her motion to rescind or

modify the PPO. MCL 600.2950a(13) and MCL

600.2950a(14). Similarly, a respondent named in a PPO

436 306 M

ICH

426 [Aug

issued under MCL 600.2950a who has not received notice

of the PPO cannot be arrested unless given actual notice

and the opportunity to comply with the order. MCL

600.2950a(22). Finally, even after the expiration of the

period within which to request a hearing, the respondent

may request a hearing to rescind or modify the PPO on

the basis of a showing of good cause. See MCL

600.2950a(13).

These procedural safeguards are substantially simi-

lar to the safeguards provided under MCL 600.2950 for

the issuance of a PPO involving domestic relations. And

this Court has already determined that those safe-

guards were sufficient to protect a respondent’s right to

procedural due process. See Kampf v Kampf, 237 Mich

App 377, 383-386; 603 NW2d 295 (1999). Accordingly,

for the reasons stated in Kampf, we conclude that MCL

600.2950a provides sufficient procedural safeguards to

satisfy due process.

Even considering the facts of this case, it is evident

that these procedural safeguards afforded respondent a

meaningful opportunity to be heard and ensured that

his liberty was not improperly limited. Respondent

received notice of the PPO and had the opportunity to

file a motion to rescind or modify the order. Notably,

although the statute requires the trial court to issue a

PPO on a petitioner’s request when the petitioner

establishes that the person to be enjoined has been

convicted of sexually assaulting the petitioner, the

statutory scheme leaves it to the trial court to tailor the

order to the specific circumstances—that is, it does not

require the trial court to enjoin any specific conduct.

See MCL 600.2950a(3). Moreover, the trial court had

the discretion to modify or rescind the order on the

basis of a proper motion. See MCL 600.2950a(13) and

(14). And the trial court actually modified the order at

2014] IME

DBS 437

issue after respondent’s lawyer noted that the order

would preclude respondent from hunting with his fam-

ily. Had the trial court felt it appropriate, it could have

removed the firearms restrictions altogether. Finally,

although petitioner can renew her request for a PPO in

perpetuity, the trial court still has the discretion to take

into consideration the specific facts applicable when

fashioning a new or renewed PPO. Even when consid-

ered on the facts specific to this case, the statutory

scheme provided respondent with a meaningful oppor-

tunity to be heard and the opportunity to seek appro-

priate modifications to the order.

C. SUBSTANTIVE CHALLENGE

Although framed as a procedural challenge, respon-

dent’s claim on appeal bears the hallmarks of a substan-

tive challenge; specifically, he appears to argue that MCL

600.2950a(2)(a) is unconstitutional because it impermis-

sibly allows the petitioner to obtain an order to restrain or

enjoin the respondent without a sufficiently high burden

of proof, which, he maintains, is irrational. Stated another

way, he challenges whether the Legislature has the au-

thority to enact a statute that allows a person to petition

the trial court for a PPO to restrain or enjoin another

person on the sole basis that the individual to be re-

strained has been convicted of sexually assaulting the

petitioner. In respondent’s view, the Legislature cannot

enact such a statute because the mere fact that a person

has sexually assaulted another person in the past is not

sufficiently indicative of whether the perpetrator poses a

future danger to his or her victim. He also indicates that it

is fundamentally unfair that the statute does not have a

“sunset provision.”

In order to properly determine whether a statute is

unconstitutional, courts must first examine whether

438 306 M

ICH

426 [Aug

the statute interferes with a fundamental right; if the

right asserted is not fundamental, “the government’s

interference with that right need only be reasonably

related to a legitimate government interest.” Bonner,

495 Mich at 227. Before the trial court, respondent’s

lawyer argued that the statute impermissibly allows a

court to issue a PPO that—in theory—could interfere

with a variety of fundamental rights, especially if the

petitioner is vindictive.

He stated that the PPO could

interfere with respondent’s right to equal protection of

the laws, his right to exercise his religion, his right to

freely associate, his right to bear arms, his right against

unreasonable searches and seizures, and his right not to

be subjected to double jeopardy. Respondent’s lawyer

has not repeated these arguments on appeal with the

exception of a brief mention of the fact that the order

limits respondent’s right to purchase and possess fire-

arms.

In any event, because he has challenged the facial

validity of the statute, the specific facts surrounding

respondent’s claim are inapposite; the fact that the

statute might operate unconstitutionally under some

conceivable set of circumstances is insufficient to invali-

date it. Bonner, 495 Mich at 223. Instead, respondent

must show that no set of circumstances exists under

which the statute could be said to be valid. Id. A “facial

challenge to a legislative Act is, of course, the most

difficult challenge to mount successfully, since the chal-

lenger must establish that no set of circumstances

This Court has already considered the possibility that a party may

inappropriately use the procedures for obtaining a PPO and determined

that the trial courts are in the best position to recognize and address that

possibility through the exercise of their discretion to grant, rescind, or

modify the PPO. Pickering v Pickering, 253 Mich App 694, 702 n 3; 659

NW2d 649 (2002).

2014] IME

DBS 439

exists under which the Act would be valid.” United

States v Salerno, 481 US 739, 745; 107 S Ct 2095; 95 L

Ed 2d 697 (1987).

When issuing a PPO under MCL 600.2950a(2)(a), a

trial court may restrain or enjoin a variety of conduct. It

may restrain or enjoin the individual against whom the

PPO is sought from “[e]ntering onto premises,”

“[t]hreatening to sexually assault, kill, or physically

injure [the] petitioner or a named individual,” “[p]ur-

chasing or possessing a firearm,” “[i]nterfering with the

petitioner’s efforts to remove the petitioner’s children

or personal property from premises that are solely

owned or leased by the individual to be restrained or

enjoined,” “[i]nterfering with the petitioner at the

petitioner’s place of employment or education or engag-

ing in conduct that impairs the petitioner’s employ-

ment or educational relationship or environment,”

“[f]ollowing or appearing within the sight of the peti-

tioner,” “[a]pproaching or confronting the petitioner in

a public place or on private property,” “[a]ppearing at

the petitioner’s workplace or residence,” “[e]ntering

onto or remaining on property owned, leased, or occu-

pied by the petitioner,” “[c]ontacting the petitioner by

telephone,” “[s]ending mail or electronic communica-

tions to the petitioner,” “[p]lacing an object on, or

delivering an object to, property owned, leased, or

occupied by the petitioner,” “[e]ngaging in conduct that

is prohibited under” MCL 750.411s, or “[a]ny other

specific act or conduct that imposes upon or interferes

with personal liberty or that causes a reasonable appre-

hension of violence or sexual assault.” MCL

600.2950a(3)(a) to (n). The trial court is, however, not

required to restrain or enjoin the respondent from

engaging in any one or more of these types of conduct

and most of the conduct listed does not on its face

implicate a fundamental right. Even with regard to a

440 306 M

ICH

426 [Aug

person’s right to bear arms, this Court has held that the

analogous statutory scheme found under MCL 600.2950

is a reasonable exercise of the state’s police power

because it allows the trial court to “make a judgment”

regarding whether and to what extent the PPO should

include a restriction on the right to bear arms. See

Kampf, 237 Mich App at 383 n 3. Because the statute

does not on its face impair a fundamental right, this

Court must uphold the statute if there is a “reasonable

relationship between the governmental purpose and the

means chosen to advance that purpose.” Bonner, 494

Mich at 230.

Respondent argues that MCL 600.2950a(2)(a) is irra-

tional because it imposes no burden on the petitioner;

rather, it allows a trial court to issue a PPO without any

showing that the PPO is reasonably necessary for the

petitioner’s protection. Respondent, however, fails to see

that a single incident of sexual assault is indicative of the

danger that the perpetrator poses to the victim—perhaps

more so than the other conduct for which a petitioner may

obtain a PPO. In addition, he improperly equates the ease

with which a petitioner can marshal his or her proofs with

the nature of the burden to be demonstrated in order to

justify the issuance of a PPO.

Under MCL 600.2950a(2)(a), the Legislature placed

the burden on the petitioner (in relevant part) to

demonstrate that the person to be restrained has been

convicted of sexually assaulting the petitioner. Admit-

tedly, once a person has been convicted of sexually

assaulting another person, presenting proof of that fact

will not be burdensome. But that does not mean that

the burden is meaningless or even less onerous than the

burden of proof applicable to the other statutes govern-

ing the issuance of a PPO. In the domestic relations

context, a petitioner can establish the right to a PPO by

2014] IME

DBS 441

alleging facts that would permit the trial court to find

that there is reasonable cause to believe that the person

to be restrained might commit an act that could be

enjoined. MCL 600.2950(4). That is, the petitioner can

obtain a PPO against the person to be enjoined without

having to prove that the person has actually done

anything illegal. Similarly, a petitioner can obtain a

restraining order under MCL 600.2950a(1) by alleging

that the person to be restrained engaged in acts that

constitute stalking without the need to show that the

person to be restrained has actually been charged or

convicted of violating the applicable statutes. By con-

trast, to establish the right to a PPO under MCL

600.2950a(2)(a), in relevant part, the petitioner must

establish that a jury has already found beyond a rea-

sonable doubt that the person to be restrained sexually

assaulted the petitioner. That is, the petitioner must

have endured a sexual assault, must have gone through

the difficult experience of a criminal prosecution, which

likely included testifying against the person to be en-

joined, and must have convinced a jury to unanimously

find beyond a reasonable doubt that the person to be

enjoined actually committed the sexual assault. When

considered in full context, meeting the qualifications for

a PPO under MCL 600.2950a(2)(a) is more onerous

than meeting the qualifications for one under MCL

600.2950(4) and MCL 600.2950a(1).

With the enactment of MCL 600.2950a(2)(a), the

Legislature intended to protect the victims of sexual

assault from further humiliation and victimization at

the hands of the person who perpetrated the sexual

assault. Sexual assault is a particularly heinous crime

that—as courts have recognized—commonly results in

psychological injury. See, e.g., People v Smith, 482 Mich

292, 311; 754 NW2d 284 (2008) (recognizing that sexual

assault is “most certainly heinous”); People v Beckley,

442 306 M

ICH

426 [Aug

434 Mich 691, 721; 456 NW2d 391 (1990) (opinion by

RICKLEY

, J.) (characterizing sexual assault as one of

society’s most heinous offenses); Jenkins v McCoy,

unpublished opinion per curiam of the United States

Court of Appeals for the Fourth Circuit, issued Septem-

ber 14, 1994 (Case No. 93-6919), p 3 (stating that any

layman knows about the psychological injury associated

with rape). On that basis, the Legislature could reason-

ably conclude that the victims of sexual assault—more

so than the victims of other crimes—are particularly

susceptible to further victimization by the perpetrators

of the assault, whether inadvertently or through delib-

erate acts directed to that purpose. Moreover, the per-

petrators of sexual assault may be intimately ac-

quainted with their victims and may return to their

communities after serving their sentences. From that,

the Legislature could reasonably infer that the person

who sexually assaulted the victim continues to be a

danger to his or her victim. Given the nature and extent

of the harm caused by sexual assaults and the height-

ened possibility that the perpetrators might again di-

rectly or indirectly harm their victims, the Legislature

could reasonably conclude that the victims of sexual

assault require additional measures to protect them

from their attackers beyond those provided under MCL

600.2950 and MCL 600.2950a(1).

The Legislature’s decision to allow the victims of

sexual assault to seek personal protection orders

against the persons convicted of assaulting them is

reasonably related to the legitimate government pur-

pose of protecting the victims of sexual assault from

further victimization. See Bonner, 495 Mich at 227.

Moreover, trial courts have substantial discretion to

fashion a PPO that balances the petitioner’s need for

appropriate protection and the respondent’s liberty

interests. The respondent has the opportunity to file a

2014] IME

DBS 443

motion to rescind or modify the order and is entitled to

a hearing on that motion. At the hearing, the respon-

dent can argue and present evidence that the order

should be limited or even rescinded under the facts

peculiar to the case. The trial court also has the

discretion to set the term of the PPO. See MCL

600.2950a(13); MCL 600.2950a(11)(d). By setting an

appropriate term, the trial court can ensure that the

order will be subject to periodic review. This flexibility

advances the Legislature’s interest in protecting the

victims of sexual assault while ensuring that the perpe-

trators’ liberty interests are not arbitrarily or unrea-

sonably restrained.

For all these reasons, MCL 600.2950a(2)(a) passes

constitutional scrutiny.

III. CONCLUSION

Respondent failed to demonstrate that MCL

600.2950a(2)(a) is unconstitutional. Because respon-

dent has not otherwise challenged the trial court’s

exercise of discretion in fashioning and imposing the

PPO, we affirm.

Affirmed.

M. J. K

ELLY

,P.J., and S

AWYER

and H

OEKSTRA

,JJ.,

concurred.

444 306 M

ICH

426 [Aug

OKRIE v STATE OF MICHIGAN

Docket No. 319550. Submitted July 8, 2014, at Detroit. Decided August 19,

2014, at 9:00 a.m. Leave to appeal denied 497 Mich 955.

Thomas R. Okrie brought an action in the Court of Appeals under

MCL 600.308(4) to challenge the constitutionality of 2013 PA 164,

which relocated the Court of Claims from the Ingham Circuit

Court to the Court of Appeals. Before 2013 PA 164 took effect,

plaintiff had filed an action against the state of Michigan, Gover-

nor Rick Snyder, and others in the Court of Claims, alleging that

the taxation of his pension pursuant to 2011 PA 38 constituted a

breach of contract. The underlying case was temporarily stayed,

and the Court of Appeals ordered that plaintiff’s petition proceed

to a full hearing.

The Court of Appeals held:

1. The transfer of the Court of Claims from the Ingham Circuit

Court to the Court of Appeals did not conflict with the separation

of powers set forth in Const 1963, art 3, § 2. The Court of Claims

was not a division of the circuit court; rather, it was created by and

derives its powers from the Legislature, which had the authority to

transfer its functions to the Court of Appeals. Plaintiff did not

demonstrate that the separation-of-powers doctrine precluded

2013 PA 164 from any valid application.

2. The Court of Appeals judges appointed to serve as Court of

Claims judges were not holding incompatible offices in violation of

MCL 15.182. Contrary to plaintiff’s argument, Const 1963, art 6, § 8

does not prohibit a Court of Appeals judge from sitting as a judge on

a lower tribunal while holding elective office, and nothing in the

record supported a finding that the Court of Claims judges would

review their own judgments. Quo warranto was not merited.

3. 2013 PA 164 did not violate Const 1963, art 6, § 13 by

reassigning the functions of the Court of Claims to the Court of

Appeals. The Legislature did not exercise general control over the

Ingham Circuit Court but over the Court of Claims, which was not a

division of the circuit court but a legislatively created function of it.

4. Plaintiff did not show that his due-process right to an

impartial decision-maker was violated when the underlying case

2014] O

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445

was moved from the circuit court to the Court of Appeals. Plaintiff

did not establish that the four Court of Claims judges are biased,

that the judge overseeing his case was not neutral, or that the

appellate review procedure established in 2013 PA 164 gave rise to

the probability of bias or appearance of impropriety.

5. Plaintiff’s argument that the immediate effect given to 2013

PA 164 violated Const 1963, art 4, § 27 was without merit because

it was based on the roll call vote in the House of Representatives

for the bill itself rather than the vote for immediate effect, which

the House Journal recorded as having garnered the requisite

two-thirds majority.

Relief sought in the petition was denied.

Law Office of Gary P. Supanich (by Gary P. Supanich)

for plaintiff.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Matthew Schneider, Chief Legal

Counsel, and Patrick M. Fitzgerald, Joshua Booth, and

Margaret Nelson, Assistant Attorneys General, for de-

fendants.

Before: B

ECKERING

,P.J., and H

OEKSTRA

and F

ORT

OOD

,JJ.

URIAM

. Plaintiff, Thomas R. Okrie, commenced

this original action to challenge the constitutionality of

Public Act 164 of 2013 (PA 164).

Plaintiff objects to the

transfer of the Court of Claims from the Ingham Circuit

Court (the circuit court for the 30th judicial circuit),

where it has been housed since 1978, to this Court, in

which appeals from the Court of Claims are also heard.

Plaintiff challenges the legislation on various constitu-

This Court is authorized to hear certain original actions. Lapeer Co

Clerk v Lapeer Circuit Judges, 465 Mich 559, 566; 640 NW2d 567 (2002).

Jurisdiction for this particular action is provided for in PA 164 itself:

“The court of appeals has exclusive original jurisdiction over any action

challenging the validity of [MCL 600.6404, 600.6410, 600.6413, or

600.6419].” MCL 600.308(4).

446 306 M

ICH

445 [Aug

tional grounds. Defendants contend that PA 164 is

constitutional and that the transfer was within the

Legislature’s authority. Although Michigan is not alone

in creating a separate court or tribunal to hear claims

made against the government, the Legislature’s deci-

sion to house the trial court for claims against the state

in the appellate court is very unusual and quite possibly

unprecedented.

Nevertheless, plaintiff has not estab-

lished that PA 164 is unconstitutional on its face.

I. FACTUAL BACKGROUND

A. HISTORY OF THE COURT OF CLAIMS

In the mid-1800s, long before the creation of the

Court of Claims, the Board of State Auditors, which was

a specially initiated administrative board, decided

claims brought against the state:

Before the Court of Claims was created, persons with

claims for damages against the state initially sought relief

before the Board of State Auditors. This board, originally

created by 1842 PA 12, heard claims against the state until

the early Twenties, at which time the State Administrative

A number of jurisdictions have created a separate court or tribunal to

hear claims against the state. See, e.g., 28 USC 1491; Ohio Rev Code Ann

2743.03(3)(B); NY Court of Claims Act, §§ 8 and 9 (McKinney 1963); 705

Ill Comp Stat 505/1; W Va Code 14-2-4; Tenn Code Ann 9-8-307; 42 Pa

Con Stat 761. However, we note that these jurisdictions create a court or

tribunal that is separate from the court that will eventually hear an

appeal as of right from the original decision. In particular, we note that

in Pennsylvania, although the Commonwealth Court (which functions as

an intermediate appellate court) hears actions against the state as

original actions, it does not hear appeals from its own decisions; instead,

those appeals are heard in the Pennsylvania Supreme Court. See 42 Pa

Con Stat 723(a); Commonwealth of Pennsylvania, Dep’t of Environmental

Protection v Cromwell Twp, Huntingdon Co, 613 PA 1, 14; 32 A3d 629

(2011). We have found no other court structure in the country similar to

that set forth in PA 164.

2014] O

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447

Board was created to hear such claims.

[

]

1921 PA 3, 1925

PA 374, 1927 PA 133, and 1929 PA 259. See, Cooperrider,

Governmental Tort Liability, 72 Mich L Rev 187, 250-256

(1973). 1939 PA 135, the original Court of Claims Act, gave

the state Court of Claims exclusive jurisdiction over claims

and demands against the state or any of its departments or

agencies. [Freissler v State Hwy Comm, 53 Mich App 530,

537; 220 NW2d 141 (1974).]

In 1939, the Legislature enacted the Court of Claims

Act, 1939 PA 135,

and therein adopted a comprehen-

sive scheme authorizing lawsuits against the state and

its agencies. See Greenfield Const Co Inc v Dep’t of State

Hwys, 402 Mich 172, 195; 261 NW2d 718 (1978) (opin-

ion by R

YAN

, J.). In 1961, the Legislature amended 1939

PA 135 and reenacted it as Chapter 64 of 1961 PA 236.

The Court of Claims Act reflects the state’s waiver of

sovereign immunity from suit and submission to a

court’s jurisdiction. Greenfield Constr Co, 402 Mich at

195. The Court of Claims thus was legislatively created.

It has limited powers, Feliciano v Dep’t of Natural

Resources, 97 Mich App 101, 109; 293 NW2d 732 (1980),

with explicit limits on the scope of its subject-matter

jurisdiction, Dunbar v Dep’t of Mental Health, 197 Mich

App 1, 5; 495 NW2d 152 (1992). The jurisdiction of the

Court of Claims is subject to Michigan statutory law.

Parkwood Ltd Dividend Housing Ass’n v State Housing

Dev Auth, 468 Mich 763, 767; 664 NW2d 185 (2003).

The Court of Claims therefore does not have extensive

and inherent powers akin to those of a constitutional

court of general jurisdiction. Taylor v Auditor General,

360 Mich 146, 150; 103 NW2d 769 (1960), disapproved

on other grounds in Parkwood, 468 Mich 763.

The current State Administrative Board has the discretionary author-

ity, upon the advice of the Attorney General, to allow any claim against

the state for an amount less than $1,000. MCL 600.6419(1).

The current Court of Claims Act is MCL 600.6401 et seq.

448 306 M

ICH

445 [Aug

In 1978, the Legislature exercised its statutory con-

trol over the Court of Claims, declaring in the former

version of MCL 600.6404(1) that “[t]he court of claims

is created as a function of the circuit court for the

thirtieth judicial circuit.” 1978 PA 164. Also, the 1978

Court of Claims legislation reflected that Ingham Cir-

cuit Court judges, and any judge assigned to that circuit

court, could exercise Court of Claims jurisdiction. Thus,

the Court of Claims had resided in the Ingham Circuit

Court for 35 years before PA 164 was enacted.

In late 2013, PA 164 was introduced to enlarge the

jurisdiction of the Court of Claims and transfer it to this

Court. To the concern of many in the legal community, the

bill was ushered through the Legislature with extraordi-

nary speed and little allowance for discussion as to the

wisdom of the proposed dramatic changes to the Court of

Claims system.

The Senate passed and gave immediate

effect to PA 164 on October 30, 2013;

the House of

Representatives did likewise on November 6, 2013.

Gov-

ernor Rick Snyder approved the legislation, and PA 164

became effective on November 12, 2013.

The scant testimony on PA 164 that was received by the Committee on

Government Operations was largely in opposition and repeatedly expressed

concerns with the speed of the enactment of the legislation, with several

individuals and entities calling upon the Legislature to take time to allow

more responses to the legislation. See House Committee on Government

Operations, Testimony From 1/2013, available at <http://house.mi.gov/

mhrpublic/CommitteeInfo.aspx?comkey=229> (accessed July 17, 2014)

[perma.cc/8239-7UD2]. One commentator remarked that the swift manner

in which the legislation was passed “is an embarrassment to the democratic

ideal and should not be repeated.” Hastings, Down the Rabbit Hole with the

Court of Claims, 93 Mich B J 14, 16 (July 2014).

Senate Journal 89 reflects 26 yeas to 11 nays for passage (10/30/13

Journal, p 1689).

House Journal 96 reflects 57 yeas to 52 nays for passage (16/13

Journal, p 1757).

The Legislature subsequently amended the Court of Claims Act to

clarify that matters in the Court of Claims may be joined for trial with

2014] O

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449

PA 164 provides that the jurisdiction in the Court of

Claims is exclusive and that all Court of Claims actions

“shall be filed” in the Court of Appeals. MCL

600.6419(1). Under PA 164, the Court of Claims con-

sists of four Court of Appeals judges from at least two

districts.

The Michigan Supreme Court assigns the

four judges, who may exercise the jurisdiction of the

Court of Claims. MCL 600.6404(1). The judges serve

two-year terms, but may be reassigned. MCL

600.6404(6). As a result of PA 164, pending Court of

Claims matters were transferred for assignment among

the four Court of Appeals judges sitting as Court of

Claims judges. MCL 600.6404(2). The clerk of the Court

of Claims

assigned the cases by blind draw. MCL

600.6410(3).

B. PROCEDURAL HISTORY

In July 2013, plaintiff filed a verified class action

against the state of Michigan in the Court of Claims

alleging breach of contract due to taxation of his pen-

sion under 2011 PA 38. The case, Okrie v Michigan

(Docket No. 13-93-MK), was assigned to Ingham Circuit

Judge Rosemarie Aquilina. In August 2013, defendants

moved for summary disposition of the breach-of-

cases arising out of the same transaction pending in a trial court of the

state. 2013 PA 205. Plaintiff does not challenge that amendment and it is

not at issue in this case.

The current Court of Claims Judges are Chief Judge M

ICHAEL

ALBOT

and Judges P

M. D

ONOFRIO

ONAYNE

RAUSE

, and D

EBORAH

A. S

ERVITTO

The clerk of this Court also serves as the clerk of the Court of Claims.

MCL 600.6410(1).

The proposed class consists of similarly situated state and public

school employees whose pensions will be subject to taxation under 2011

PA 38. For ease of reference, and because the Court of Claims denied

plaintiff’s motion for class certification, plaintiff is referred to in the

singular.

450 306 M

ICH

445 [Aug

contract claim. Plaintiff thereafter filed an amended

complaint alleging unjust enrichment, breach of em-

ployment contract, and violations of the contract and

takings clauses of the federal and state constitutions.

Plaintiff also alleged substantive and procedural due

process violations.

On November 5, 2013, the Court of Claims granted

summary disposition to defendants on plaintiff’s

breach-of-contract claim. Defendants then moved for

summary disposition of the remainder of plaintiff’s

claims. PA 164 took effect on November 12, 2013, and

on the following day, Judge M

ICHAEL

J. T

ALBOT

, Chief

Judge of the Court of Claims, issued an order tempo-

rarily staying all Court of Claims cases. On Decem-

ber 13, 2013, plaintiff filed the instant petition, the

first such petition under MCL 600.308(4), to chal-

lenge PA 164.

This Court ordered that plaintiff’s petition proceed to

a full hearing.

In its order, the Court invited briefs

amicus curiae; however, despite the public outcry from

the legal community during the Legislature’s enact-

ment proceedings, no such briefs were filed. Therefore,

this Court restricts its analysis to the issues raised by

plaintiff.

After this Court issued the order directing a hearing

on plaintiff’s petition, Judge S

ERVITTO

granted defen-

Once the temporary stay was lifted in the Court of Claims, plaintiff

filed a second amended complaint, adding counts for breach of an

investment contract purchasing service credit and breach of the Michi-

gan Investment Plan contract. Plaintiff moved in the Court of Claims for

a stay of the underlying case in light of the instant constitutional

challenge to the transfer pending in this Court, but Judge D

EBORAH

ERVITTO

, acting as a judge on the Court of Claims, denied plaintiff’s

motion for stay.

See Okrie v Michigan, unpublished order of the Court of Appeals,

entered April 17, 2014 (Docket No. 319550).

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451

dants’ motion for summary disposition. When this

opinion was drafted, reconsideration remained pend-

ing.

II. DISCUSSION

A. LEGAL STANDARDS

In this petition, plaintiff challenges the constitution-

ality of PA 164. An examination of the constitutionality

of a statute presents a question of law. GMAC LLC v

Treasury Dep’t, 286 Mich App 365, 372; 781 NW2d 310

(2009). Plaintiff’s issues involve interpretation of the

Michigan Constitution, a process that requires the

application of three rules. The first is the rule of

“common understanding,” which means that courts

should give the Constitution the interpretation that the

majority of the people would give it. See Nat’l Pride at

Work, Inc v Governor, 481 Mich 56, 67; 748 NW2d 524

(2008). Consequently, when interpreting the Constitu-

tion, this Court examines what the text meant to the

ratifiers, the people, when they ratified the Constitu-

tion. Mich Dep’t of Transp v Tomkins, 481 Mich 184,

191; 749 NW2d 716 (2008). The second rule provides

that, to clarify the meaning of constitutional provision,

courts should consider the circumstances surrounding

its adoption and the purpose sought to be accomplished.

Kearney v Bd of State Auditors, 189 Mich 666, 673; 155

NW 510 (1915). Third, courts generally are to presume

that a statute is constitutional. Midland Cogeneration

Venture Ltd Partnership v Naftaly, 489 Mich 83, 90; 803

NW2d 674 (2011).

Despite that order, this challenge to the constitutionality of PA 164 is

not moot. In light of the constitutional challenges raised, the grant of

summary disposition is not the type of subsequent event for which this

Court may not fashion a remedy. See In re Contempt of Dudzinski, 257

Mich App 96, 112; 667 NW2d 68 (2003).

452 306 M

ICH

445 [Aug

Plaintiff raises a facial challenge to the constitution-

ality of PA 164. A facial challenge is a claim that the law

is “invalid in toto—and therefore incapable of any valid

application....”Steffel v Thompson, 415 US 452, 474;

94 S Ct 1209; 39 L Ed 2d 505 (1974). A litigant raising

a facial challenge faces an arduous task. Detroit Mayor

v Arms Technology, Inc, 258 Mich App 48, 59; 669

NW2d 845 (2003). The litigant must establish that no

circumstances exist under which the statute would be

valid. In re Request for Advisory Opinion re Constitu-

tionality of 2005 PA 71, 479 Mich 1, 11; 740 NW2d 444

(2007). “ ‘The fact that the... [a]ct might operate

unconstitutionally under some conceivable set of cir-

cumstances is insufficient....’ ” Straus v Governor,

459 Mich 526, 543; 592 NW2d 53 (1999), quoting United

States v Salerno, 481 US 739, 745; 107 S Ct 2095; 95 L

Ed 2d 697 (1987). Accordingly, we must determine

whether PA 164 is capable of any construction that

would make it constitutional. See Keenan v Dawson,

275 Mich App 671, 680; 739 NW2d 681 (2007).

B. SEPARATION OF POWERS

Plaintiff maintains that PA 164 unconstitutionally

interferes with this Court’s jurisdiction and blurs the

line dividing the powers of government. Whether the

separation-of-powers doctrine has been violated is a

question of law. Fieger v Cox, 274 Mich App 449,

463-464; 734 NW2d 602 (2007).

The separation-of-powers clause in the Michigan

Constitution provides:

The powers of government are divided into three branches:

legislative, executive and judicial. No person exercising

powers of one branch shall exercise powers properly be-

longing to another branch except as expressly provided in

this constitution. [Const 1963, art 3, § 2.]

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Separating the three branches of government preserves

the independence of each branch. Armstrong v Ypsilanti

Charter Twp, 248 Mich App 573, 585; 640 NW2d 321

(2001). Simply put, the legislative branch makes the laws,

the executive branch executes them, and the judicial

branch interprets and applies them in cases properly

before the courts. Kyser v Kasson Twp, 486 Mich 514, 535;

786 NW2d 543 (2010). More recently, our Supreme Court

further explained that “[t]he true meaning [of the doc-

trine] is that the whole power of one of these departments

should not be exercised by the same hands which possess

the whole power of either of the other departments; and

that such exercise of the whole would subvert the prin-

ciples of a free Constitution.” Makowski v Governor, 495

Mich 465, 482; 852 NW2d 61 (2014) (citation and quota-

tion marks omitted).

In order to determine whether PA 164 violates the

separation-of-powers clause, we examine the constitu-

tional authority granted to the Legislature with regard

to the courts.

Given that the Legislature’s task is to enact laws in

accordance with the authority that has been granted to

it, it follows that the Legislature does not have author-

ity to alter the jurisdiction of a court in a manner that

is inconsistent with our Constitution. See Chicago

& WMR Co v Nester, 63 Mich 657, 660; 30 NW 315

(1886) (stating that the Legislature may not disturb or

destroy the jurisdiction of a constitutional court, i.e.,

one on which the state constitution confers authority).

We therefore examine the creation of the Court of

Claims and the mechanism by which it is empowered in

order to determine whether the Legislature had the

authority to enact PA 164.

The Constitution of 1835 established the Supreme

Court as the lone constitutional court in Michigan, but

454 306 M

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445 [Aug

also indicated that the Legislature could establish other

courts. Const 1835, art 6, § 1 (“The judicial power shall

be vested in one supreme court, and in such other

courts as the legislature may, from time to time, estab-

lish.”). It is notable that this state’s first constitution

established that the Legislature had the authority to

establish courts. Successive constitutions narrowed and

further defined that authority, but did not abolish it.

For example, the Constitution of 1850 provided for the

creation of circuit courts, probate courts, and justices of

the peace along with the Supreme Court.

Const 1850,

art 6, § 1. That section also authorized the Legislature

to establish municipal courts. Id. (“The judicial power is

vested in one supreme court, in circuit courts, in

probate courts, and in justices of the peace. Municipal

courts of civil and criminal jurisdiction may be estab-

lished by the Legislature in cities.”). The Constitution

of 1908 likewise permitted the Legislature to establish

certain courts inferior to our Supreme Court. See Const

1908, art 7, § 1 (“The judicial power shall be vested in

one supreme court, circuit courts, probate courts, jus-

tices of the peace and such other courts of civil and

criminal jurisdiction, inferior to the supreme court, as

the legislature may establish by general law....”).

The system of providing for certain constitutionally

created courts, along with providing the Legislature

with authority to create other courts, continues in our

current Constitution. Notably, Const 1963, art 6, § 1

provides:

The judicial power of the state is vested exclusively in one

court of justice which shall be divided into one supreme

Apparently, the Legislature’s establishment and dissolution of courts

had been considered with disfavor. See Streeter v Paton, 7 Mich 341, 349

(1859) (observing that the Legislature’s “frequent changes in the judicial

tribunals of the state were looked upon as an evil”).

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court, one court of appeals, one trial court of general

jurisdiction known as the circuit court, one probate court,

and courts of limited jurisdiction that the legislature may

establish by a two-thirds vote of the members elected to

and serving in each house.

Consequently, selected courts, such as municipal courts

and the Court of Claims, are not constitutionally cre-

ated, but instead are only constitutionally permitted,

and derive all their powers from the Legislature. People

ex rel Wexford Co Prosecuting Attorney v Kearney, 345

Mich 680, 687; 77 NW2d 115 (1956).

Plaintiff admits that, like the municipal courts, the

Court of Claims is not a constitutional court. Our Court

clearly has stated that the Court of Claims is a court of

legislative creation:

The Court of Claims is a “legislative court” and not a

“constitutional court” and derives its powers only from

the act of the Legislature and is subject to the limitations

therein imposed. Manion v State Highway Comm’r, 303

Mich 1; 5 NW2d 527 (1942), cert den 317 US 677; 63 S Ct

159; 87 L Ed 543 (1942). The Legislature created a Court

of Claims as a substitute “for the ‘board of State audi-

tors’ and the ‘State administrative board’ for the pur-

pose of hearing and determining ‘all claims and de-

mands, liquidated and unliquidated, ex contractu and ex

delicto against the State’***”.Id., 20. Taylor v Auditor

General, 360 Mich 146, 150; 103 NW2d 769 (1960). Thus,

the jurisdiction granted to the Court of Claims is “nar-

row and limited, substituting, merely, a ‘court’ of claims

for the superseded claims jurisdiction of the earlier

boards”. Id.[Littsey v Bd of Governors of Wayne State

Univ, 108 Mich App 406, 412; 310 NW2d 399 (1981).]

Given that the Court of Claims was created by legisla-

tion, the amendment of that legislation does not run

afoul of the constitutional separation-of-powers doc-

trine. As Littsey noted, the Court of Claims derives its

powers from the Legislature, which retains its author-

456 306 M

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ity over that court. Accordingly, because the Legislature

has authority over the Court of Claims, it could transfer

the functions of that court from the circuit court to this

Court.

Plaintiff asserts, however, that PA 164 violates the

fundamental jurisdictional character of this Court by

transferring additional duties to this Court. In contrast

to the Court of Claims, the roots of this Court are

grounded in our Constitution:

The judicial power of the state is vested exclusively in one

court of justice which shall be divided into one supreme

court, one court of appeals, one trial court of general

jurisdiction known as the circuit court, one probate court,

and courts of limited jurisdiction that the legislature may

establish by a two-thirds vote of the members elected to

and serving in each house. [Const 1963, art 6, § 1.]

The 1963 Constitution also set forth parameters for the

Legislature to establish this Court’s jurisdiction: “The

jurisdiction of the court of appeals shall be provided by

law and the practice and procedure therein shall be

prescribed by rules of the supreme court.” Const 1963,

art 6, § 10.

The parties agree, and we concur, that the principal

function of this Court is to act as an intermediate

appellate court and to hear appeals of right from circuit

courts. In addition, this Court’s jurisdiction encom-

passes appeals by leave as well as certain original

actions and any other appeal or action established by

law. See Const 1963, art 9, § 32; MCL 259.110(4);

600.308(1) and (2); MCR 7.203(A) through (D); MCR

7.206(E). Notably, those jurisdictional provisions are

expressed via statute, as well as court rule. While it is

true that appellate jurisdiction is understood to “only

lie from one court to another,” In re Mfr’s Freight

Forwarding Co, 294 Mich 57, 69; 292 NW 678 (1940)

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(citation and quotation marks omitted), as noted, this

Court’s jurisdiction is not exclusively limited to appel-

late matters. Further, Const 1963, art 6, § 10 expressly

states that this Court’s jurisdiction shall be “provided

by law,” and therefore, the provisions of PA 164 are

consistent with the Constitution.

Although plaintiff argues that the Legislature inter-

fered with the essential constitutionally created juris-

diction of this Court, plaintiff has not cited any law

expressly forbidding the transfer. More significantly,

plaintiff’s argument fails to account for the fact that our

Constitution expressly provides that “[t]he jurisdiction

of the court of appeals shall be provided by law and the

practice and procedure therein shall be prescribed by

rules of the supreme court.” Const 1963, art 6, § 10

(emphasis added). And plaintiff has not demonstrated

how PA 164 fundamentally altered this Court’s juris-

diction.

Thus, plaintiff has not demonstrated that the

Legislature’s decision to transfer the Court of Claims to

this Court violated the separation-of-powers doctrine.

To the extent that plaintiff argues that this Court is

not equipped to be a trial court, that argument fails, as

only the Court of Claims, not this Court, must function

as a trial court under PA 164. Admittedly, before

becoming Chief Justice, Justice Y

OUNG

commented that

this Court is “poorly suited and equipped for factual

development of new claims,” see MCR 2.112, Comments

of Justices to 2007 Amendment, providing some merit

to plaintiff’s argument that this Court ordinarily is not

prepared to be a trial court. The issue here, however, is

PA 164 did alter this Court’s jurisdiction in one respect, by giving

this Court exclusive original jurisdiction over any action challenging the

validity of the amended statutes. MCL 600.308(4). However, this alter-

ation was consistent with the constitutional mandate that this Court’s

jurisdiction “shall be provided by law....”Const 1963, art 6, § 10.

458 306 M

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whether the Court of Claims is outfitted to perform as

a trial court. The Court of Claims has sufficiently

rebutted plaintiff’s argument by ably functioning as a

trial court over the months preceding this decision by

accepting new cases, holding hearings both in person

and over the telephone, conducting settlement confer-

ences and status conferences, and disposing of cases.

Even if plaintiff’s argument had merit, we may not

consider the wisdom of statutes properly enacted by the

Legislature. Taylor v Gate Pharm, 468 Mich 1, 6; 658

NW2d 127 (2003). The courts should not exchange their

judgment for that of the Legislature, which has respon-

sibility over the legislatively created Court of Claims.

See generally Kyser, 486 Mich at 535 (observing that

the Court should not substitute its judgment for that of

the Legislature in matters over which the Legislature is

responsible).

Next, plaintiff argues that PA 164 erodes the consti-

tutional division of judicial power between a superior

appellate court and a trial court whose orders are

subject to appellate review. The effect of PA 164 is that

the Court of Appeals is required to simultaneously

house an appellate court and a trial court of limited

jurisdiction. Courts have long been critical of “horizon-

tal” or “lateral” appeals. See, e.g., In re Mfr’s Freight

Forwarding Co, 294 Mich at 69 (“We cannot lose sight

of the fact that appeals only lie from one court to

another—not from an executive officer to a court. There

must be a competent judicial tribunal to pass upon a

case before an appeal can be taken to a higher court.”)

(citation and quotation marks omitted); A Miner Con-

tracting, Inc v Toho-Tolani Co Improvement Dist, 233

Ariz 249, 254 n 7; 311 P3d 1062 (2013); Economou v

Economou, 133 Vt 418, 422; 340 A2d 86 (1975), over-

ruled on other grounds by Morrisseau v Fayette, 164 Vt

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358 (1995) (“The appellate process must proceed verti-

cally, not sideways.”). PA 164 requires judges from this

Court to first hear Court of Claims cases at the trial

court level, and provides for direct review of those

decisions, as of right, by the colleagues of the judges

who first heard the matter. At first glance, such a

procedure could be viewed as giving the appearance

that there is no meaningful appellate review, and that

the same court is merely rendering an appellate opinion

on a matter that it already decided. However, nothing in

PA 164 requires a Court of Claims judge to review his or

her decisions in appeals filed in this Court. And the four

Court of Claims judges will not sit in review of Court of

Claims decisions. This Court routinely screens cases to

identify potential conflicts and flags them for the judge

in question to decide whether recusal is necessary. See

Internal Operating Procedure (IOP) 7.213(D)-(3) (pro-

viding, in pertinent part, that “[t]he Court screens

cases to identify potential conflicts based on even mini-

mal involvement of a current Court of Appeals judge at

the trial court level....If,upon assignment of a case, a

judge on the panel discovers a prior connection to the

case, the judge will decide whether recusal is neces-

sary.”). Further, in the unlikely event that a Court of

Claims judge does not recuse himself or herself when

assigned a Court of Claims matter on appeal, parties are

free to move for disqualification. See IOP 7.213(D)-(3)

(providing that “[a] party seeking to disqualify a judge

of the Court may file a motion to disqualify.”). Thus, we

do not conclude that this amounts to a violation of the

separation-of-powers doctrine.

Next, plaintiff argues that PA 164 violates the

separation-of-powers doctrine because, he maintains,

Plaintiff raises a similar argument in asserting a due process

violation. We will discuss that claim later in this opinion.

460 306 M

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the Legislature may not combine the office of a Court of

Appeals judge with that of a Court of Claims judge.

Plaintiff relies on Const 1963, art 6, § 15, which in-

volves probate courts, and provides:

In each county organized for judicial purposes there shall

be a probate court. The legislature may create or alter

probate court districts of more than one county if approved

in each affected county by a majority of the electors voting

on the question. The legislature may provide for the com-

bination of the office of probate judge with any judicial

office of limited jurisdiction within a county with supple-

mental salary as provided by law.... [Id. (emphasis

added).]

Plaintiff points out that the Constitution does not

include a provision for combining the office of a Court of

Appeals judge with another judicial office, such as judge

of the Court of Claims. Although the Constitution

expressly provides for the combination of a probate

judge with another judicial office, the inclusion of § 15

was an attempt to better administrate courts in the

state’s small counties,

a consideration not relevant to

the Court of Claims. We conclude that the existence of

this constitutional provision does not preclude the

combination of the positions of a Court of Appeals judge

with a Court of Claims judge, and we decline plaintiff’s

invitation to engage in constitutional interpretation by

negative implication. See Lowe v Estate Motors Ltd, 428

Mich 439, 465; 410 NW2d 706 (1987).

In addition, we reject plaintiff’s contention that the

Court of Claims is considered a “division” of the circuit

court, thereby precluding the Legislature from interfer-

“These permissive provisions are included to make possible better

administration of these courts in the smaller counties of the state.” 2

Official Record, Constitutional Convention 1961, p 3387. See also Green

v Court Administrator, 44 Mich App 259, 261; 205 NW2d 306 (1972).

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ing with the circuit court’s jurisdiction. Plaintiff con-

spicuously neglects to provide legal authority for that

assertion. See Dunn v Bennett, 303 Mich App 767, 775;

846 NW2d 75 (2013) (stating that when the appellant

failed to include legal authority, the appellant aban-

doned the argument). Further, the Court of Claims Act

does not support plaintiff’s theory, given that the prior

version of MCL 600.6404(1) indicated that the Court of

Claims was “created as a function of the circuit court [in

Ingham County].” (Emphasis added.) “Function” is

defined in part as “the kind of action or activity proper

to a person, thing, or institution; the purpose for which

something is designed or exists; role.” Random House

Webster’s College Dictionary (1997).

Under the former

version of the statute, the circuit court was authorized

merely to perform the actions or activities of the Court

of Claims; the plain statutory language does not sup-

port plaintiff’s contention that the Court of Claims was

ever a part or division of the circuit court.

Plaintiff adds that PA 164 interferes with the judicial

independence of this Court to perform its constitution-

ally mandated duties as an intermediate appellate court

that is separate from the trial court whose actions are

being reviewed. Initially, we observe that the addition of

the independent Court of Claims has not impeded this

Court from operating as the intermediate appellate

court. Further, the combining of courts is not unprec-

edented. In 1998, this Court affirmed a trial court’s

ruling that the statute transferring judges from the

Recorder’s Court in Detroit, a limited jurisdiction court,

to the Third Circuit Court, a general jurisdiction court,

did not violate constitutional provisions regarding or-

Because the statute does not define the term “function,” it is proper

to consult a dictionary for its common meaning. Klooster v City of

Charlevoix, 488 Mich 289, 304; 795 NW2d 578 (2011).

462 306 M

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ganization and jurisdiction of constitutionally and leg-

islatively created courts. Kuhn v Secretary of State, 228

Mich App 319, 325-326; 579 NW2d 101 (1998). More-

over, we disagree that PA 164 alters the jurisdictional

character of the Court of Appeals as an intermediate

appellate court. Because PA 164 did not disturb this

Court’s jurisdiction over matters that are appealable by

right and by application,

this Court has retained its

essential character as an intermediate appellate court.

Although PA 164 also expanded this Court’s jurisdiction

to include exclusive original jurisdiction over any action

challenging the validity of statutes that pertain to the

Court of Claims,

that lone addition did not fundamen-

tally change this Court’s jurisdiction.

PA 164 does not violate the separation-of-powers

doctrine because it governs the Court of Claims, a

legislatively created court deriving its powers from the

Legislature. The Court of Claims was not a division of

the circuit court, but was merely a function performed

by the circuit court. Plaintiff has not demonstrated that

the separation-of-powers doctrine precludes PA 164

from any valid application.

C. INCOMPATIBLE OFFICES—CONST 1963,ART6,§8

Plaintiff argues that PA 164 results in the four Court

of Claims judges holding incompatible offices. In mak-

ing this argument, plaintiff cites, in cursory fashion,

Const 1963, art 6, § 8, which provides:

The court of appeals shall consist initially of nine judges

who shall be nominated and elected at non-partisan elec-

MCL 600.308(1) details matters that are appealable as a matter of

right. Section 308(2) describes matters that may be appealed by leave.

MCL 600.308(4) provides: “The court of appeals has exclusive

original jurisdiction over any action challenging the validity of [MCL

600.6404, 600.6410, 600.6413, or 600.6419].”

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tions from districts drawn on county lines and as nearly as

possible of equal population, as provided by law. The

supreme court may prescribe by rule that the court of

appeals sit in divisions and for the terms of court and the

times and places thereof. Each such division shall consist of

not fewer than three judges. The number of judges com-

prising the court of appeals may be increased, and the

districts from which they are elected may be changed by

law.

Plaintiff maintains that a violation of this provision

occurs when a Court of Appeals judge is assigned to fill

his or her judicial office in a different manner, i.e., by

assuming the duties of a Court of Claims judge. The

plain language above, however, does not prohibit a

judge of this Court from sitting as a judge on a lower

tribunal while holding elective office.

In further support, plaintiff cites In re Districting for

Court of Appeals, 372 Mich 227; 125 NW2d 719 (1964),

in which our Supreme Court opined that this Court’s

districts could not be split, but instead must be drawn

on county lines pursuant to Const 1963, art 6, § 8. In re

Districting is distinguishable because our Constitution

expressly provides that judges shall be elected from

“districts drawn on county lines.” Const 1963, art 6, § 8

does not expressly delineate the duties of a Court of

Appeals judge; hence, it may be concluded that Const

1963, art 6, § 8 does not preclude this Court’s judges

from acting as judges for the Court of Claims.

Consider also that our Supreme Court has the con-

stitutional authority to assign duties to judges: “The

supreme court may authorize persons who have been

elected and served as judges to perform judicial duties

for limited periods or specific assignments.” Const

1963, art 6, § 23. Additionally, Const 1963, art 6, § 4

bestows the power of superintending control over all

courts on the Supreme Court. See also MCL 600.225(1)

464 306 M

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445 [Aug

(providing that the Supreme Court generally may as-

sign an elected judge to serve in any other court in

Michigan). The assignment of judges onto the Court of

Claims as set forth in PA 164 thus is consistent with the

authority granted to the Supreme Court.

Plaintiff also cites MCL 15.182, the statute providing

that a public officer or employee “shall not hold 2 or

more incompatible offices at the same time.” We are not

convinced that the statute applies to this circumstance.

The Attorney General or a local prosecutor must bring

an action to enforce the statute; no private cause of

action exists. See MCL 15.184 (explaining that the

statute governing incompatible offices “shall not create

a private cause of action” and that the “attorney

general or a prosecuting attorney may apply” for “in-

junctive or other appropriate judicial relief or rem-

edy.”). Moreover, the four Court of Claims judges con-

tinue to perform the responsibilities that they were

elected to fulfill as Court of Appeals judges. In addition,

they also perform work duties related to the Court of

Claims. Although the offices may be considered “incom-

patible” if the judges reviewed their own Court of

Claims decisions, nothing in the record supports a

finding that the Court of Claims judges will review their

own judgments once the cases they have decided are

before this Court.

Likewise, plaintiff’s argument that he is entitled to

the exceptional remedy of quo warranto fails.

Quo

warranto “is the proper and exclusive remedy to try

title to office finally and conclusively.” Layle v Adjutant

General of Mich, 384 Mich 638, 641; 186 NW2d 559

(1971). “Where one has been found to be holding office

contrary to law, courts must order their removal from

Quo warranto is an extraordinary remedy provided for by law.

Sobocinski v Quinn, 330 Mich 386, 389; 47 NW2d 655 (1951).

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office.” Wayne Co Republican Comm v Wayne Co Bd of

Comm’rs, 70 Mich App 620, 627; 247 NW2d 571 (1976).

Quo warranto relief is not merited here because we

have decided that the four Court of Claims judges are

not holding incompatible offices.

D. TRANSFER OF FUNCTIONS—CONST 1963,ART6,§13

Plaintiff also maintains that the transfer of the Court

of Claims from the Ingham Circuit Court to the Court of

Appeals improperly impedes the circuit court’s jurisdic-

tion. The scope of a trial court’s powers is a question of

law. Hill v City of Warren, 276 Mich App 299, 305; 740

NW2d 706 (2007).

Generally, the jurisdiction of circuit courts, which are

constitutional courts,

cannot be diminished by legisla-

tive enactment. Irishman’s Lot, Inc v Secretary of State,

338 Mich 662, 665; 62 NW2d 668 (1954). See also People

ex rel Allen v Kent Co Circuit Judge, 37 Mich 473, 475

(1877) (ruling in part that circuit courts “are constitu-

tional courts, and so far as any jurisdiction is conferred

upon [them] by the Constitution, it is beyond the reach

of the legislative power”).

Const 1963, art 6, § 13, which sets forth the jurisdic-

tion of circuit courts, provides:

The circuit court shall have original jurisdiction in all

matters not prohibited by law; appellate jurisdiction from

all inferior courts and tribunals except as otherwise pro-

vided by law; power to issue, hear and determine preroga-

tive and remedial writs; supervisory and general control

over inferior courts and tribunals within their respective

jurisdictions in accordance with rules of the supreme court;

and jurisdiction of other cases and matters as provided by

rules of the supreme court.

See Const 1963, art 6, § 11. See also Const 1963, art 6, § 1 (stating

that Michigan’s “one court of justice” includes “one trial court of general

jurisdiction known as the circuit court”).

466 306 M

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445 [Aug

Plaintiff cites Mooney v Unemployment Compensa-

tion Comm, 336 Mich 344, 353; 58 NW2d 94 (1953), for

the proposition that the Legislature may not exercise

general control over circuit courts. The Legislature,

however, has not asserted general control over the

Ingham Circuit Court in PA 164; rather, it has asserted

control over the Court of Claims. As we stated previ-

ously, the Court of Claims is not a constitutional court,

but was established by the Legislature pursuant to the

Court of Claims Act and therefore derives all of its

powers from the Legislature. It is not a court of general

jurisdiction. See Dunham v Tilma, 191 Mich 688, 692;

158 NW 216 (1916) (recognizing the Legislature’s role

in determining the extent of the authority to be given to

municipal courts, which received their powers from

legislation, not the Constitution). If a court is a creation

of the Legislature, the legislation establishing that

court guides the determination of the court’s authority.

See Nichols v Grand Rapids Superior Court Judge, 130

Mich 187, 191; 89 NW 691 (1902). And, as discussed

earlier, we note that the prior version of MCL 600.6404

described the Court of Claims as a “function” of the

circuit court, MCL 600.6404(1). Accordingly, we cannot

accept plaintiff’s argument that the Court of Claims is

a “division” of the circuit court.

Plaintiff adds that PA 164 changed the jurisdictional

makeup of the circuit court as a court of general

jurisdiction in which orders are subject to appellate

review in a constitutionally tiered judicial system. The

circuit court’s jurisdiction derives from the general

jurisdiction imparted to circuit courts by the Michigan

Constitution. See Const 1963, art 6, § 13; Hillsdale Co

Senior Servs, Inc v Hillsdale Co, 494 Mich 46, 51; 832

NW2d 728 (2013). Michigan’s circuit courts are courts

of general jurisdiction. See MCL 600.605 (providing, in

part, that “[c]ircuit courts have original jurisdiction to

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hear and determine all civil claims and remedies....”);

Ammex, Inc v Dep’t of Treasury, 272 Mich App 486, 494;

726 NW2d 755 (2006). Nevertheless, the circuit courts’

jurisdiction is not without limits. In re Harper, 302

Mich App 349, 353; 839 NW2d 44 (2013). Exceptions to

the general rule occur when the constitution or a

statute gives exclusive jurisdiction to another court or

denies jurisdiction. See MCL 600.605 (providing that

circuit courts generally have original jurisdiction except

“where exclusive jurisdiction is given in the constitu-

tion or by statute to some other court or where the

circuit courts are denied jurisdiction by the constitution

or statutes of this state”). See also MCL 600.151 (indi-

cating that circuit court is a trial court of “general

jurisdiction”) and MCL 600.601 (setting forth the juris-

diction and powers of the circuit court).

Plaintiff neglects to explain how the transfer of Court

of Claims’ functions to this Court alters the general

jurisdictional makeup of the circuit court. Admittedly,

by granting exclusive jurisdiction over Court of Claims

matters to the four Court of Claims judges in this Court,

the Legislature divested the Ingham Circuit Court of

the authority to adjudicate those disputes. But that

divestiture is not prohibited under statute. See, e.g.,

MCL 600.605, regarding the circuit court’s general

jurisdiction. It simply does not follow that that transfer

of authority interfered with the circuit court’s general

jurisdiction. The transfer of the Court of Claims there-

fore does not, as plaintiff contends, “diminish” the

jurisdiction of the circuit court. Given that our Consti-

tution does not otherwise expressly confer jurisdiction

on the circuit courts over cases against the state, PA

164’s transfer of the Court of Claims to this Court does

not deprive the Ingham Circuit Court of constitution-

ally based jurisdiction.

468 306 M

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445 [Aug

Finally, that transfer does not, as plaintiff argues,

create a new trial court requiring a constitutional

amendment. The Court of Claims was first created by

statute in 1939 and was further formed by the amended

Court of Claims Act in 1961. The transfer of Court of

Claims functions from one existing constitutional court

to another existing constitutional court did not create

an entirely new court.

E. DUE PROCESS RIGHT TO AN IMPARTIAL DECISION-MAKER

Plaintiff contends that his right to an objective,

deliberative, and reasoned adjudication before a neutral

decision-maker has been thwarted. Whether a party has

been afforded due process of law is a question of law.

Elba Twp v Gratiot Co Drain Comm’r, 493 Mich 265,

277; 831 NW2d 204 (2013). In plaintiff’s view, the fact

that PA 164 authorizes our Supreme Court to choose

the four judges to serve on the Court of Claims, see

MCL 600.6404(1), in contrast to the random draw

plaintiff received at the Ingham Circuit Court, calls into

question whether he will receive a neutral decision-

maker.

“Due process in civil cases generally requires notice

of the nature of the proceedings, an opportunity to be

heard in a meaningful time and manner, and an impar-

tial decisionmaker.” Hinky Dinky Supermarket, Inc v

Dep’t of Community Health, 261 Mich App 604, 606; 683

NW2d 759 (2004) (citation and quotation marks omit-

ted). Due process, a flexible concept, essentially re-

quires fundamental fairness. AFP Specialties, Inc v

Vereyken, 303 Mich App 497, 514; 844 NW2d 470 (2014).

“It is axiomatic that [a] fair trial in a fair tribunal is a

basic requirement of due process.” Caperton v AT

Massey Coal Co, Inc, 556 US 868, 876; 129 S Ct 2252;

173 L Ed 2d 1208 (2009) (citation and quotation marks

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469

omitted). “[T]he Due Process Clause incorporated the

common-law rule that a judge must recuse himself

when he has a direct, personal, substantial, pecuniary

interest in a case.” Id. (citation and quotation marks

omitted). “This rule reflects the maxim that ‘[n]o man

is allowed to be a judge in his own cause; because his

interest would certainly bias his judgment, and, not

improbably, corrupt his integrity.’ ” Id., quoting The

Federalist No. 10 (James Madison) (J. Cooke ed. 1961),

p 59.

Although plaintiff argues that PA 164 violates his

right to a neutral decision-maker, plaintiff makes no

specific suggestion that the four Court of Claims judges

are biased, nor does he contend that the particular

judge who has been assigned to this case is not a neutral

judge. That the Michigan Supreme Court chooses the

four judges to serve on the Court of Claims does not

amount to a showing of bias. Thus, we find no due

process violation based on bias that would amount to a

successful facial challenge of PA 164.

In addition, we find no direct bias in the appellate

review procedure established by PA 164. The statute

essentially requires Court of Appeals judges to review

the work of their colleagues; significantly, however,

we find unfounded any concerns that the statute

would require or permit Court of Claims judges to sit

in review of their own decisions on appeal of those

decisions. The Legislature could have alleviated con-

cerns that this Court would review itself by including

in PA 164 a specific prohibition whereby Court of

Claims judges could not conduct appellate review of

cases originating from the Court of Claims; however,

although past practice may have allowed a judge to

review his or her own decisions, that practice has not

been accepted for more than a century. See, e.g.,

470 306 M

ICH

445 [Aug

Rexford v Brunswick-Balke-Collender Co, 228 US 339,

343-344; 33 S Ct 515; 57 L Ed 864 (1913) (ruling that

the appellate court should have judges who did not

previously rule on the case). In addition, this Court’s

internal operating procedures will prevent a Court of

Claims judge from sitting in appellate review of his or

her Court of Claims decisions. Similarly, this Court

keeps a docketing system that is separate from that of

the Court of Claims; no overlap in recordkeeping

exists.

Although plaintiff is unable to show actual bias, that

does not end our inquiry under the due process clause.

Plaintiff need not show actual bias “[i]f the situation is

one in which ‘experience teaches that the probability of

actual bias on the part of a decisionmaker is too high to

be constitutionally tolerable.’ ” Hughes v Almena Twp,

284 Mich App 50, 70; 771 NW2d 453 (2009) (citation

and quotation marks omitted). For example, that risk

may be present when the decision-maker:

(1) has a pecuniary interest in the outcome; (2) has been

the target of personal abuse or criticism from the party

before him; (3) is enmeshed in [other] matters involving

the petitioner . . . ; or (4) might have prejudged the case

because of prior participation as an accuser, investigator,

fact finder or initial decisionmaker. [Crampton v Dep’t of

State, 395 Mich 347, 351; 235 NW2d 352 (1975) (citations

and quotation marks omitted; formatting altered).]

In evaluating this issue, we consider “whether, ‘under a

realistic appraisal of psychological tendencies and hu-

man weakness,’ the interest ‘poses such a risk of actual

bias or prejudgment that the practice must be forbidden

if the guarantee of due process is to be adequately

implemented.’ ” Caperton, 556 US at 883-884, quoting

Withrow v Larkin, 421 US 35, 47; 95 S Ct 1456; 43 L Ed

2d 712 (1975).

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In addition, the appearance of impropriety, under

Canon 2 of the Michigan Code of Judicial Conduct, may

provide grounds for disqualification of a judge. Canon 2

provides that judges “must avoid all impropriety and

appearance of impropriety.” Under this objective stan-

dard, whether an appearance of impropriety exists

requires consideration of “ ‘whether the conduct would

create in reasonable minds a perception that the judge’s

ability to carry out judicial responsibilities with integ-

rity, impartiality and competence is impaired.’ ” Caper-

ton, 556 US at 888, quoting ABA Annotated Model Code

of Judicial Conduct, Canon 2 (2004).

Although plaintiff fairly contends that the nature of

appellate review set forth in PA 164 lends itself to

criticism,

we do not find an appearance of impropriety,

We would be remiss not to acknowledge the fact that PA 164’s

unusual court structure is fairly subject to criticism, albeit not rising to

the level of constitutional infirmity. Most notably, the statute creates a

Court of Claims where one Court of Appeals judge hears cases at the trial

court level, and then a panel of that judge’s colleagues on the Court of

Appeals reviews the decision on direct review. Surely, we do not doubt

that Court of Appeals judges can be fair when reviewing their colleagues’

rulings in Court of Claims cases. See, generally, People v Aceval, 486 Mich

887, 889 (2010) (statement of H

ATHAWAY

, J.) (noting that Court of Appeals

judges and Michigan Supreme Court justices routinely review the deci-

sions of their former colleagues). As members of three-person panels, we

are regularly tasked with the obligation of dissenting when we disagree

with the legal reasoning or conclusions of our colleagues. However, a fair

concern exists with the appearance of how this direct appellate review

will function. Although legally incorrect, the statute lends itself to lay

criticism that an appeal as of right for Court of Claims cases is nothing

more than a horizontal or lateral appeal. A peaceful governance based on

principles such as the rule of law depends on the public’s trust that the

judicial system is fairly and impartially deciding cases. PA 164, with its

apparently unprecedented system of housing the trial court for state

claims in the only appellate court of right, could contribute to distrust in

the appellate process when it concerns Court of Claims matters. See

Hunt, Legal Ethics—Attorney Conflicts of Interest—The Effect of Screen-

ing Procedures and the Appearance of Impropriety Standard on the

Vicarious Disqualification of a Law Firm, 70 Tenn L Rev 251, 278 (2002),

472 306 M

ICH

445 [Aug

nor do we find that this case is the type of “extreme”

situation that would amount to a due process violation.

See Caperton, 556 US at 887. The “appearance of

impropriety” inquiry is an objective one, asking

“ ‘whether the conduct would create in reasonable

minds a perception that the judge’s ability to carry out

judicial responsibilities with integrity, impartiality and

competence is impaired.’ ” Id. at 888, quoting Model

Code of Judicial Conduct, Canon 2 (emphasis added).

See also MCR 2.003(C)(1)(b) (providing for the disquali-

fication of a judge “based on objective and reasonable

perceptions”); Cain v Dep’t of Corrections, 451 Mich

470, 512 n 48; 548 NW2d 210 (1996) (citation and

quotation marks omitted; emphasis added) (describing

the federal standard that “recusal is appropriate where

a reasonable person with knowledge of all the facts

would conclude that the judge’s impartiality might

reasonably be questioned”). Objectively, although hous-

ing appellate review of Court of Claims cases in the very

same court where the cases are heard at the trial court

level appears, at first glance, strange, we are satisfied

that it does not amount to such an extreme case as to

require recusal of all Court of Appeals judges under the

Due Process Clause. See Caperton, 556 US at 887. Indeed,

PA 164 does not create a situation in which any Court of

Appeals judges who will be reviewing the work of their

colleagues as Court of Claims judges have any sort of

financial interest or interest because of participation in an

earlier proceeding. See id. at 877, 880 (explaining that

such interests can create a due process violation).

Initially, as noted, this Court’s internal operating pro-

cedures will screen judges who earlier participated in a

quoting Llewellyn, The Bramble Bush, (New York: Oceana Publications,

Inc, 1960), p 171 (explaining that among the reasons for distrust and

distaste of the legal profession is that “[t]he more ‘delicate and strange

[the lawyer’s] work...theless we love him’ ”).

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473

case; thus, although there is a subjective concern of a

lack of meaningful appellate review, the objective facts

suggest otherwise. Further, we are confident that mem-

bers of this Court will maintain the highest ethical

standards when reviewing Court of Claims cases that

were initially decided by their colleagues. In other

words, we are confident that appeals of Court of Claims

cases will be given the independent, impartial review to

which they are entitled, regardless of who initially

decided the cases. We decline to accept plaintiff’s con-

tention that the judges of this Court are unable to

impartially review the decisions of the Court of Claims

judges who are their colleagues. Thus, although PA 164

creates a situation whereby Court of Appeals judges are

required, on a regular basis, to review the work of their

colleagues,

we conclude that plaintiff has not shown a

clear affiliation between the decision-maker (one of the

four Court of Claims judges) and the reviewing court

Reviewing the work of a colleague is not unheard of in the judiciary;

indeed, conflict panels on this Court and en banc proceedings in the

federal circuit courts require some review of a colleague’s decisions, albeit

on a less frequent basis, and in a situation that is not entirely comparable

to the direct review, as of right, of decisions under PA 164. In addition,

circuit court judges, in years past, sat on this Court by designation,

thereby requiring those judges to review the work of their colleagues.

Still, the nature of reviewing the work of a colleague, even in an en banc

manner, is not without its critics. See, e.g., Haire, Lindquist, and Songer,

Appellate Court Supervision in the Federal Judiciary: A Hierarchical

Perspective, 37 Law & Society Rev 143, 151, 160-161 (2003) (explaining

that studies of the federal judiciary have found that district judges who

sit on appellate panels, and therefore review their colleagues’ work, are

less likely to vote for reversal); Brudney and Ditslear, Designated

Diffidence: District Court Judges on the Courts of Appeals,35Law

& Society Rev 565, 575 (2001); Abramowicz, En Banc Revisited, 100

Colum L Rev 1600, 1617-1619 (October 2000) (questioning the decisions

of judges in review of their colleagues, given the inevitable connections

between colleagues); Rooklidge & Weil, En Banc Review, Horror Pleni,

and the Resolution of Patent Law Conflicts, 40 Santa Clara L Rev 787, 795

(2000).

474 306 M

ICH

445 [Aug

(the remaining judges in the Court of Appeals), aside

from the fact that the judges sit on the same court. In

the absence of the probability of bias, no due process

violation has occurred. See Monroe v State Employees’

Retirement Sys, 293 Mich App 594, 603; 809 NW2d 453

(2011) (ruling that no alignment had been shown be-

tween the decision-making board, one of whose mem-

bers was an Assistant Attorney General, and the advo-

cate, an Assistant Attorney General who represented

the employees’ retirement system, particularly in light

of the board’s statutory duty to manage the system for

retirees’ benefit). And, for many of the same reasons,

we conclude that, objectively, there is no appearance of

impropriety that would require all Court of Appeals

judges to recuse themselves from hearing Court of

Claims cases. Indeed, this Court can, and will, imple-

ment requisite screening procedures where necessary,

and appellants in Court of Claims cases will receive an

independent, impartial review. Thus, plaintiff’s facial

challenge fails. Accordingly, although we express no

opinion on the wisdom of the direct review process

provided for by PA 164, we do not conclude that the

statute creates a due process violation or that it creates

an appearance of impropriety that prevents all Court of

Appeals judges from hearing Court of Claims appeals.

F. IMMEDIATE EFFECT—CONST 1963,ART4,§27

Plaintiff finally argues that the immediate effect

given to PA 164 violates Const 1963, art 4, § 27 because

the bill did not obtain two-thirds of the votes of the

members of the House of Representatives. We disagree.

A statute becomes operational on its effective date. In

re Request for Advisory Opinion re Constitutionality of

2005 PA 71, 479 Mich at 12. Generally, the effective date

of a statute is 90 days after the end of the session at

2014] O

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475

which it was passed. See Frey v Dep’t of Mgt & Budget,

429 Mich 315, 333, 340; 414 NW2d 873 (1987). How-

ever, Const 1963, art 4, § 27 provides that the Legisla-

ture may vote to give an act immediate effect:

No act shall take effect until the expiration of 90 days from

the end of the session at which it was passed, but the

legislature may give immediate effect to acts by a two-

thirds vote of the members elected to and serving in each

house.

Unless two-thirds of the members of each house vote

for immediate effect, that act will not become effec-

tive until 90 days after the end of the pertinent

session. Genesee Merchants Bank & Trust Co v St Paul

Fire & Marine Ins Co, 47 Mich App 401, 405; 209

NW2d 605 (1973).

Accordingly, if each house obtains

a two-thirds vote in favor, an act may take immediate

effect.

Plaintiff states that the roll call vote in the House

of Representatives (57 in favor, 52 opposed) demon-

strates that the two-thirds necessary for immediate

effect was not reached. Plaintiff, however, has cited

only the record roll call vote of the yeas and nays on

the bill itself. The “record roll call vote” required to

pass an act, cited by plaintiff, is separate from the

“rising or voice vote” taken regarding whether to give

an act immediate effect. Const 1963, art 4, § 27 does

not require the taking of a record roll call vote on the

issue of immediate effectiveness. Hammel v Speaker

of House of Representatives, 297 Mich App 641, 649;

825 NW2d 616 (2012). The journal entry is dispositive

For examples of acts that were not ordered to take immediate

effect because the vote for immediate effect either failed or was not

taken, see Lansing v State Bd of Tax Admin, 295 Mich 674, 680; 295

NW 358 (1940), and In re Contempt of Henry, 282 Mich App 656, 682;

765 NW2d 44 (2009).

476 306 M

ICH

445 [Aug

of the vote on immediate effect. Mich Taxpayers

United, Inc v Governor, 236 Mich App 372, 379; 600

NW2d 401 (1999).

Plaintiff has failed to cite House Journal 96 of the

session on November 6, 2013, which reflects that the

requisite two-thirds of the representatives voted for

immediate effect:

Rep. Stamas moved that the bill be given immediate effect.

The motion prevailed,

of the members serving voting

therefor. [2013 House Journal 1758.]

The House Journal reflects that the two-thirds total

was reached.

Plaintiff’s argument is meritless.

Plaintiff thereafter relies on City of Pontiac Retired

Employees Ass’n v Schimmel, 726 F3d 767 (CA 6, 2013),

in which a panel of the Sixth Circuit addressed the

immediate effect of a bill regarding emergency manag-

ers and remanded to the district court for it to examine

whether, contrary to the holding in Hammel, our Con-

stitution restricts the Legislature’s ability to give bills

immediate effect absent a “real” two-thirds vote from

the elected members. However, upon rehearing en banc,

that opinion in City of Pontiac Retired Employees Ass’n

v Schimmel was vacated, 751 F3d 427 (CA 6, 2014).

We note that although an official dissent was registered in which

more than a third of House members disputed whether this vote was in

fact taken, see 2013 House Journal 1766, our Supreme Court has

recognized that such a dissent “is a personal privilege merely. It has no

force as legislative action, and cannot be resorted to to nullify a legislative

act. It has no force as a statement of fact contradicting the journal.”

Auditor General v Menominee Co Bd of Supervisors, 89 Mich 552, 577; 51

NW 483 (1891).

In making this argument, plaintiff does not contend that the bill

failed to garner enough votes for immediate approval from the Michigan

Senate. Such a claim would be meritless, however, given that the Senate

Journal reveals that at least

/3 of the members of the Senate voted to give

PA 164 immediate effect. 2013 Senate Journal 1689.

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477

Consequently, this Court is bound by Hammel. As

indicated, Hammel supports that the two-thirds vote

recorded in the Journal is a sufficient basis for this

Court to rule that PA 164 properly was given immediate

effect and does not violate Const 1963, art 4, § 27.

III. CONCLUSION

We hold that plaintiff has failed to establish a consti-

tutional infirmity in PA 164. The transfer of the Court

of Claims to this Court does not conflict with the

separation-of-powers doctrine because the Court of

Claims is a legislatively created court. The Court of

Claims judges on this Court are not holding incompat-

ible offices. PA 164 does not violate the Michigan

Constitution by reassigning to this Court the functions

of the Court of Claims. Plaintiff has not shown that his

due-process right to an impartial decision-maker was

violated when the underlying case was moved from the

circuit court to this Court. And the immediate effect

given to PA 164 did not violate Const 1963, art 4, § 27

because the House Journal reflects that the motion

obtained the requisite votes. In sum, plaintiff has not

met his heavy burden to show that PA 164 is unconsti-

tutional, and we must deny the relief sought in his

petition.

ECKERING

,P.J., and H

OEKSTRA

and F

ORT

OOD

,JJ.,

concurred.

478 306 M

ICH

445 [Aug

P J HOSPITALITY, INC v DEPARTMENT OF TREASURY

Docket No. 314302. Submitted June 11, 2014, at Detroit. Decided June 26,

2014. Approved for publication August 21, 2014, at 9:00 a.m.

The Department of Treasury assessed P. J. Hospitality, Inc., for the

Michigan tax liability of Soulful Concepts, Inc., on the basis that

P. J. Hospitality was a successor of Soulful Concepts under MCL

205.27a(1). A hearing referee upheld the assessment. The Tax

Tribunal adopted the findings of fact and conclusions of law of the

referee and entered an opinion and judgment in favor of the

Department of Treasury. P. J. Hospitality appealed.

The Court of Appeals held:

1. According to the plain language of MCL 205.27a(1), P.J.

Hospitality is personally liable for the payment of the taxes,

interest, and penalties accrued and unpaid by Soulful Concepts

because P. J. Hospitality failed to comply with the escrow require-

ments of § 27a(1) when it purchased Soulful Concepts’ business,

including all of its assets.

2. Because P. J. Hospitality failed to provide any evidence of

what the market value of the business assets of Soulful Concepts

was, it cannot claim the benefits of the provision in §27a(1) to the

effect that the purchaser’s personal liability is limited to the fair

market value of the business less the amount of any proceeds that

are applied to balances due on secured interests that are superior

to the lien provided for in MCL 205.29(1).

3. MCL 205.27a(1) only allows for an offset for “any proceeds

that are applied to balances due on secured interests that are

superior to the lien provided for in section 29(1).” In order for such

an offset to occur, proceeds from the sale must be applied to

balances due. The mere existence of any balances is insufficient for

an offset. There is no evidence that any part of the proceeds of the

sale of Soulful Concepts was applied to balances due on secured

interests that are superior to the lien provided for in § 29(1).

Affirmed.

Abraham & Rose, PLC (by Jerry R. Abraham), for

P. J. Hospitality, Inc.

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479

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Richard A. Bandstra, Chief Legal

Counsel, and Matthew B. Hodges, Assistant Attorney

General, for the Department of Treasury.

Before: D

ONOFRIO

,P.J., and G

LEICHER

and M. J. K

ELLY

JJ.

URIAM

. Petitioner appeals as of right the Tax

Tribunal’s opinion and judgment, which adopted the

findings of fact and conclusions of law of a hearing

referee, who had upheld respondent’s assessment of

successor liability to petitioner. Because the tribunal

did not commit an error of law or adopt a wrong legal

principle and its factual findings were supported by

competent, material, and substantial evidence, we af-

firm.

I. BASIC FACTS

Before 2007, the entity Soulful Concepts, Inc., owned

the restaurant in Southfield, Michigan, called Beans

& Cornbread. Patrick Coleman, in turn owned Soulful

Concepts. In 2007, petitioner, also owned by Coleman,

purchased all of Soulful Concepts’ business, including

all of its assets, for $50,000

and continued to operate

the Beans & Cornbread restaurant. Coleman testified

that he thought the value of all the assets was between

$30,000 and $40,000. Coleman stated that this transac-

tion was done because Soulful Concepts had “some debt

issues” and “needed to get a fresh start.” Part of those

debt issues involved large tax liabilities owed to both

the federal government and the state of Michigan.

No actual money exchanged hands though. Instead, petitioner gave

Soulful Concepts a promissory note for the $50,000, and Coleman signed

the purchase agreement on behalf of both parties.

480 306 M

ICH

479 [Aug

Specifically, at the time of the referee’s hearing, the

amount owed to the federal government was approxi-

mately $150,000, and the amount owed to the state of

Michigan, not including some interest, was approxi-

mately $57,000.

Respondent assessed petitioner with Soulful Con-

cepts’ Michigan tax liability on the basis that it was a

successor entity under MCL 205.27a(1). Petitioner ob-

jected to the assessment and filed a petition for a

hearing. Petitioner argued at the hearing that under

the statute, its liability was limited by the fair market

value of the assets acquired minus any senior, outstand-

ing liabilities, such as the amount owed to the federal

government. As a result, petitioner claimed that, with

the value of the assets not exceeding $40,000, the

outstanding $150,000 owed to the federal government

“eviscerate[d] any sort of liability” to respondent.

After holding a hearing, the referee disagreed and

concluded that respondent’s assessment was proper.

First, the referee did not accept Coleman’s lay opinion

on the evaluation of the assets, stating that it “cannot

be accepted as credible or accurate.” The referee ex-

plained:

[Coleman] did not make any effort to describe the property

with the specificity that would be needed to determine its

fair market value. There is no evidence regarding the value

of the liquor license or goodwill. [Coleman] executed the

documents of sale on behalf of both the seller and the

purchaser, which indicates that this was not an arm’s-

length transaction and the stated purchase price cannot be

accepted as fair market value. There is no market evidence

whatsoever to support an appraisal of the value of the

assets or the business.

The referee also concluded that if any federal tax

liens existed, there was no evidence that they were ever

2014] P J H

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481

perfected by being recorded in the Oakland County

that the statute only allows for liability to be limited by

the fair market value of the business acquired minus

any proceeds of the sale that were used to satisfy a

senior, secured interest. But the referee also found that

none of the proceeds were used for such a purpose; thus,

petitioner was not entitled to any reduction in liability.

The Tax Tribunal affirmed the referee’s decision and

adopted his proposed opinion, including the findings of

fact and conclusions of law.

II. ANALYSIS

Review of decisions by the Tax Tribunal is limited.

“Unless fraud is alleged, an appellate court reviews the

decision for a misapplication of the law or adoption of a

wrong principle.” Podmajersky v Dep’t of Treasury, 302

Mich App 153, 162; 838 NW2d 195 (2013), quoting

Liberty Hill Housing Corp v Livonia, 480 Mich 44, 49;

746 NW2d 282 (2008) (quotation marks omitted). “The

tribunal’s factual findings are deemed conclusive pro-

vided they are supported by competent, material, and

substantial evidence on the whole record.” Podmajer-

sky, 302 Mich App at 162.

But to the extent that our review involves issues of

statutory interpretation, that aspect of our review is de

novo. Id. The primary goal of statutory interpretation is

to give effect to the intent of the Legislature. Ford

Motor Co v Woodhaven, 475 Mich 425, 438; 716 NW2d

247 (2006). To ascertain the Legislature’s intent, we

look to the language in the statute and give the words

their plain and ordinary meanings. Lafarge Midwest,

Inc v Detroit, 290 Mich App 240, 246; 801 NW2d 629

(2010). If the statute’s language is not ambiguous, this

482 306 M

ICH

479 [Aug

Court will enforce the statute as written. Ford Motor,

475 Mich at 438-439.

MCL 205.27a(1), which governs successor liability,

provided the following at all relevant times:

If a person liable for a tax administered under this act sells

out his or her business or its stock of goods or quits the

business, the person shall make a final return within 15

days after the date of selling or quitting the business. The

purchaser or succeeding purchasers, if any, who purchase a

going or closed business or its stock of goods shall escrow

sufficient money to cover the amount of taxes, interest, and

penalties as may be due and unpaid until the former owner

produces a receipt from the state treasurer or the state

treasurer’s designated representative showing that the

taxes due are paid, or a certificate stating that taxes are not

due. Upon the owner’s written waiver of confidentiality,

the department may release to a purchaser a business’s

known tax liability for the purposes of establishing an

escrow account for the payment of taxes. If the purchaser

or succeeding purchasers of a business or its stock of goods

fail to comply with the escrow requirements of this subsec-

tion, the purchaser is personally liable for the payment of

the taxes, interest, and penalties accrued and unpaid by the

business of the former owner. The purchaser’s or succeed-

ing purchaser’s personal liability is limited to the fair

market value of the business less the amount of any

proceeds that are applied to balances due on secured

interests that are superior to the lien provided for in [MCL

205.29(1)].

Petitioner first argues that the tribunal erred by

relying on the fact that there was no evidence that any

of the federal tax liens were ever recorded. However,

this issue is not relevant because, as will be discussed

later, the existence of any senior security interests only

comes into play when proceeds from the sale of the

MCL 205.27a(1) was modified by 2014 PA 3, effective February 6,

2014.

2014] P J H

OSPITALITY V

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’

483

business are used to satisfy part of that debt, and there

was no evidence that any proceeds were applied in this

manner. Thus, we offer no opinion on whether the

federal tax liens in this case qualify as “secured inter-

ests that are superior to the [state’s tax] lien.”

Here, Coleman admitted that he never escrowed any

funds on behalf of petitioner. Thus, according to the

plain language of the statute, it is clear that petitioner

“is personally liable for the payment of the taxes,

interest, and penalties accrued and unpaid by” Soulful

Concepts. MCL 205.27a(1); see also STC, Inc v Dep’t of

Treasury, 257 Mich App 528, 537; 669 NW2d 594

(2003).

The next inquiry is to determine to what extent

petitioner is liable. Petitioner claims that the indebted-

ness owed to the federal government needs to be taken

into account for determining the amount it owes the

state as a successor entity. The statute provides that the

“purchaser’s personal liability is limited to the fair

market value of the business less the amount of any

proceeds that are applied to balances due on secured

interests that are superior to the lien provided for in

[MCL 205.29(1)].” The tribunal determined that peti-

tioner could not invoke the benefits of this section

because it failed to establish the fair market value of the

business. The finding that petitioner failed to establish

the fair market value was supported by competent,

material, and substantial evidence. Coleman agreed at

the hearing that the sale of the business was not an

arm’s-length transaction. Accordingly, the $50,000 sale

price had no bearing on any market value determina-

tion. See Mackey v Dep’t of Human Servs, 289 Mich App

688, 704; 808 NW2d 484 (2010). Further, petitioner

offered nothing to establish what the fair market value

may be except for Coleman’s unsupported lay opinion

484 306 M

ICH

479 [Aug

regarding the value. The referee and the tribunal

decided that Coleman’s opinion on the value of the

assets was not credible, and such credibility determina-

tions will not be disturbed by this Court. Detroit Lions,

Inc v Dearborn, 302 Mich App 676, 703; 840 NW2d 168

(2013). Further, Coleman admitted that he never got an

appraisal of the assets and did not provide a list of the

specific assets to respondent. Accordingly, because peti-

tioner utterly failed to provide any evidence of what the

market value of the business assets was it cannot claim

this limitation. Cf. Podmajersky, 302 Mich App at

164-165 (stating that the burden of proving an exemp-

tion to a tax is on the party claiming the exemption).

The tribunal further found that there was no evi-

dence that any proceeds from the sale were applied to

balances due on any superior secured interests. Peti-

tioner does not dispute this finding. Rather, petitioner

argues that the presence of a superior secured interest,

without any proceeds having been applied to the bal-

ance of the secured interest, is enough for it to offset its

successor liability. However, the statute only allows for

an offset for “any proceeds that are applied to balances

due on secured interests that are superior to the lien

provided for in section 29(1).” MCL 205.27a(1) (empha-

sis added). Thus, it is clear that in order for any such

offset to occur, proceeds from the sale must be “applied”

to balances due—the mere existence of any balances is

insufficient. Accordingly, the tribunal did not misapply

the law or adopt an incorrect legal principle when it

came to the same conclusion.

In conclusion, we affirm the Tax Tribunal’s opinion

and judgment affirming the imposition of petitioner’s

successor liability pursuant to MCL 205.27a(1). The

tribunal did not misapply the law or adopt an incorrect

legal principle. It is undisputed that petitioner was

2014] P J H

OSPITALITY V

REAS

’

485

liable for Soulful Concepts’ liability because it did not

escrow any funds in conjunction with the business

purchase. While normally, petitioner’s liability would

have been limited to the fair market value of the

business acquired, petitioner offered no evidence of the

fair market value. Finally, the existence of any superior

federal tax liens is of no consequence because the

statute only allows for any offset of successor liability

when proceeds from the sale are applied to such supe-

rior liens, and there is no evidence that any part of the

proceeds were applied in this manner.

Affirmed.

ONOFRIO

,P.J., and G

LEICHER

and M. J. K

ELLY

,JJ.,

concurred.

486 306 M

ICH

479 [Aug

FEDERAL HOME LOAN MORTGAGE ASSOCIATION v KELLEY

(ON RECONSIDERATION)

Docket No. 315082. Submitted June 11, 2014, at Lansing. Decided

August 26, 2014, at 9:00 a.m.

The Federal Home Loan Mortgage Association (Freddie Mac)

brought an action in the 55th district court to evict defendants

Michael R. Kelley and Kathryn Kelley from a home that Freddie

Mac bought at a sheriff’s sale after defendants defaulted on their

mortgage. Defendants’ mortgage was obtained from First National

Bank of America, which assigned it to ABN-AMRO Mortgage

Group, Inc. Before defendants defaulted, ABN-AMRO merged

with CitiMortgage, Inc. CitiMortgage (CMI) foreclosed on defen-

dants’ property by advertisement under MCL 600.3201 et seq., and

after defendants failed to redeem the property within the six-

month statutory redemption period, the property vested in Fred-

die Mac. Defendants challenged the foreclosure, arguing that

foreclosing on the property by advertisement violated their Fifth

Amendment due process rights and that CMI’s foreclosure was

statutorily invalid under the recording act because there was no

chain of title evidencing the transfer of the mortgage from

ABN-AMRO to CMI. Therefore, according to defendants, CMI did

not own the debt and the foreclosure notice failed to properly

identify the foreclosing entity. The district court, Thomas P. Boyd,

J., granted Freddie Mac’s motion for summary disposition, ruling

that Freddie Mac was not a governmental actor subject to Fifth

Amendment claims and that the chain of title was proper under

MCL 600.3204(3) because the merger between ABN-AMRO and

CMI did not constitute an assignment of the mortgage that

necessitated a recording. Defendants appealed. The circuit court,

Rosemarie E. Aquilina, J., reversed the district court on both

grounds and dismissed the complaint. Freddie Mac applied for

leave to appeal, and the Federal Housing Finance Agency (FHFA),

which had placed Freddie Mac into conservatorship, moved to

intervene. The Court of Appeals granted both applications and

initially affirmed in part, reversed in part, and remanded for

reinstatement of the district court’s order. Plaintiff filed a motion

for reconsideration. The Court of Appeals granted reconsideration,

vacating its earlier opinion.

2014] F

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) 487

On reconsideration, the Court of Appeals held:

1. The circuit court erred by concluding that Freddie Mac was

a governmental entity subject to Fifth Amendment claims. The

fact that Freddie Mac filed tax exemptions as the United States

under MCL 207.526(h)(i) and 505(h)(i) was not determinative

given that, under 12 USC 1452(e), Freddie Mac would have been

exempt from taxation regardless of whether it sought an exemp-

tion as the United States, and, in any event, no authority sup-

ported the position that seeking a tax exemption as the United

States subjected federally created corporations to constitutional

claims under the Fifth Amendment. Under Lebron v Nat’l Rail-

road Passenger Corp, 513 US 374 (1995), a corporation is part of

the federal government for constitutional purposes if the Govern-

ment created it by special law for the furtherance of governmental

objectives and retained permanent authority to appoint a majority

of the directors of that corporation. In this case, there was no

dispute that the government created Freddie Mac by special

statute for the purpose of furthering governmental objectives, but

the FHFA’s 2008 conservatorship did not transform Freddie Mac

into a governmental entity because the conservatorship was tem-

porary rather than permanent.

2. It was unnecessary to determine whether the circuit court

erred by concluding that CMI was required to record the transfer

of defendants’ mortgage under MCL 600.3204(3) because defen-

dants did not allege that they were prejudiced by CMI’s failure to

do so.

Reversed and remanded for further proceedings.

1. M

ORTGAGES —

ONSTITUTIONAL

AW —

EDERAL

OME

OAN

ORTGAGE

SSOCIATION —

ROCESS

LAIMS

The Federal Home Loan Mortgage Association, commonly known as

“Freddie Mac,” is not a governmental entity subject to Fifth

Amendment claims.

2. M

ORTGAGES —

ORECLOSURES BY

DVERTISEMENT —

TATUTORY

ECORDING

EQUIREMENTS —

AILURE TO

OMPLY —

ELIEF —

REJUDICE

To obtain relief on the ground that a mortgagee failed to comply with

the statutory recording requirement in MCL 600.3204(3), a mort-

gagor must establish that the failure to comply was prejudicial.

Dykema Gossett PLLC (by Jill M. Wheaton and

Christyn M. Scott) for plaintiff.

488 306 M

ICH

487 [Aug

Legal Services of South Central Michigan (by Nicole

Shannon, Kellie Maki, and Perry Thompson) for defen-

dants.

Amicus Curiae:

Warner Norcross & Judd LLP (by Gaëtan Gerville-

Réache and Rodney D. Martin) for the Michigan Bank-

ers Association.

ON RECONSIDERATION

Before: B

ORRELLO

,P.J., and S

ERVITTO

and B

ECKERING

JJ.

URIAM.

In this foreclosure-related litigation,

plaintiff, Federal Home Loan Mortgage Association

(Freddie Mac), appeals by leave granted an Ingham

Circuit Court opinion and order reversing the 55th

District Court’s July 31, 2012 order terminating the

possession by defendants Michael R. and Kathryn M.

Kelley

of residential property located in East Lansing.

For the reasons set forth in this opinion, we reverse and

remand for reinstatement of the district court’s order.

I. BACKGROUND

A. UNDERLYING MORTGAGE TRANSACTION

This dispute involves real property located at 2458

Barnsbury Road, in East Lansing, Michigan. On

In the lower court, plaintiff referred to itself as the Federal Home

Loan Mortgage Corporation; however, on appeal, it refers to itself as the

Federal Home Loan Mortgage Association. For purposes of this opinion,

we will refer to plaintiff as “Freddie Mac.”

Although it appears from the mortgage and other documents that

defendants’ surname is “Kelly,” this opinion retains the spelling from the

caption of the order being appealed.

2014] F

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) 489

March 21, 2003, First National Bank of America

loaned defendants $240,000 for the purchase of the

property. Defendants executed a mortgage encumber-

ing the property to First National. The mortgage was

recorded on April 24, 2003. On March 26, 2003, First

National assigned the mortgage to ABN-AMRO Mort-

gage Group, Inc. The assignment was recorded on

November 25, 2003. On September 1, 2007, CitiMort-

gage, Inc. and ABN-AMRO merged and maintained

the name CitiMortgage (hereinafter CMI).

B. FREDDIE MAC AND THE FEDERAL HOUSING FINANCE AGENCY

CONSERVATORSHIP

Freddie Mac is a federally chartered corporation that

was created as part of the Emergency Home Finance

Act of 1970.

See 12 USC 1451 et seq.; American

Bankers Mtg Corp v Fed Home Loan Mtg Corp,75F3d

1401, 1404 (CA 9, 1996). Freddie Mac operates in the

secondary mortgage market, purchasing and securitiz-

ing residential mortgages. Sonoma Co v Fed Housing

Fin Agency, 710 F3d 987, 989 (CA 9, 2013). Freddie Mac

is governed by the Federal Housing Enterprises Finan-

cial Safety and Soundness Act, 12 USC 4501 et seq.

Sonoma Co, 710 F3d at 989.

In 2008, Congress amended the Financial Safety and

Soundness Act by enacting the Housing and Economic

Recovery Act (HERA), 12 USC 4511 et seq. “HERA

established the Federal Housing Finance Agency

[FHFA], an independent agency charged with supervis-

ing [Fannie Mae and Freddie Mac] and the Federal

Home Loan Banks.” Sonoma Co, 710 F3d at 989. HERA

empowered the FHFA to act, under certain circum-

stances, as a conservator or receiver of Freddie Mac or

“Freddie Mac” was officially titled the “Federal Home Loan Mortgage

Corporation.” See 12 USC 1451, 1452.

490 306 M

ICH

487 [Aug

the Federal National Mortgage Association (Fannie

Mae) for purposes of “reorganizing, rehabilitating, or

winding up the affairs” of either entity. 12 USC

4617(a)(2). It is undisputed that the FHFA placed

Freddie Mac into conservatorship in September 2008.

C. FORECLOSURE OF THE PROPERTY

In June 2011, defendants defaulted on the mortgage

and CMI foreclosed on the property under Michigan’s

foreclosure by advertisement statute, MCL 600.3201 et

seq. Freddie Mac purchased the property at an October 20,

2011 sheriff’s sale. Defendants failed to redeem the prop-

erty within the six-month statutory redemption period,

and the property vested in Freddie Mac on April 20, 2012.

See MCL 600.3236.

On May 1, 2012, after expiration of the statutory

redemption period, Freddie Mac initiated eviction pro-

ceedings in district court pursuant to MCL 600.5704.

Defendants challenged the foreclosure, arguing in part

that the foreclosure violated their Fifth Amendment

due process rights. Defendants maintained that Freddie

Mac was a federal actor by virtue of FHFA’s conserva-

torship and was subject to the due process requirements

of the Fifth Amendment, and therefore could not fore-

close by advertisement.

Defendants also argued that

CMI’s foreclosure was invalid under MCL 600.3204(3)

because there was no chain of title evidencing the

transfer of the mortgage from ABN-AMRO to CMI.

Therefore, according to defendants, CMI did not own

The FHFA also simultaneously placed Fannie Mae into conservator-

ship. See Herron v Fannie Mae, 857 F Supp 2d 87 (D DC, 2012).

Defendants’ brief on appeal explains that at the time of the foreclo-

sure, Freddie Mac was the investor of defendants’ mortgage, and CMI

was selected by Freddie Mac to service the mortgage.

2014] F

OME

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) 491

the debt and the foreclosure notice failed to properly

identify the foreclosing entity.

The district court granted Freddie Mac’s motion for

summary disposition under MCR 2.116(C)(9) (failure to

state valid defense) and MCR 2.116(C)(10) (no genuine

issue of material fact). The district court held in rel-

evant part that Freddie Mac was not a governmental

actor subject to Fifth Amendment claims and that the

chain of title was proper under MCL 600.3204(3) be-

cause the merger between ABN-AMRO and CMI did not

constitute an “assignment” of the mortgage that neces-

sitated a recording.

Defendants appealed, and the circuit court reversed.

The circuit court held that Freddie Mac was a govern-

mental entity subject to the Fifth Amendment’s notice

and hearing requirements. The circuit court reasoned

that Freddie Mac filed tax exemptions as the United

States under MCL 207.526(h)(i) and 505(h)(i) and that

the federal government retained permanent control

over all aspects of Freddie Mac. Noting that “FHFA

controls every aspect of [Freddie Mac’s] business and its

Board of Directors is appointed by and answers to the

Director of the FHFA,” the court concluded that “the

procedures and provisions in place in this case make the

conservatorship, in all practicality, permanent.” Re-

garding the chain of title, the circuit court held that the

foreclosure was invalid because MCL 600.3204(3) re-

quires assignments to be made whenever the foreclos-

ing party is not the original mortgagee, so that assign-

ments must be recorded when a mortgagee merges into

another company. The court stated, “ABN AMRO

ceased to exist when it merged with [CMI]. Because of

this, [CMI] is not synonymous with ABN AMRO, but is

an entirely different entity that is required to be as-

signed the mortgage under MCL 600.3204(3).”

492 306 M

ICH

487 [Aug

The circuit court reversed the district court’s order

awarding possession to Freddie Mac and dismissed the

complaint. Freddie Mac applied for leave to appeal and

the FHFA moved to intervene. This Court granted both

applications.

On appeal, Freddie Mac argues that the

circuit court erred by holding that it was a governmen-

tal entity for constitutional purposes, erred by conclud-

ing that the foreclosure failed to comply with MCL

600.3204(3), and, to the extent there was a defect in the

chain of title, erred by concluding that the foreclosure

was void ab initio as opposed to merely voidable.

II. STANDARD OF REVIEW

“We review de novo a trial court’s decision on a

motion for summary disposition to determine whether

the moving party is entitled to judgment as a matter of

law.” Cuddington v United Health Servs, Inc, 298 Mich

App 264, 270; 826 NW2d 519 (2012). We review consti-

tutional issues and issues of statutory construction

under the same standard. Great Lakes Society v Geor-

getown Charter Twp, 281 Mich App 396, 425; 761 NW2d

371 (2008); Cuddington, 298 Mich App at 271.

III. ANALYSIS

A. DUE PROCESS

The Fifth Amendment “appl[ies] to and restrict[s] only

the Federal Government and not private persons.” Pub

Utilities Comm of DC v Pollak, 343 US 451, 461; 72 S Ct

813; 96 L Ed 1068 (1952). Therefore, the threshold ques-

tion in this case is whether Freddie Mac is a governmental

entity subject to a Fifth Amendment claim.

Fed Home Loan Mtg Ass’n v Kelley, unpublished order of the Court of

Appeals, entered October 11, 2013 (Docket No. 315082).

2014] F

OME

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ECON

) 493

The circuit court concluded that Freddie Mac is a

governmental entity subject to Fifth Amendment

claims for two reasons: (1) Freddie Mac “filed tax

exemptions as the United States under MCL

207.526(h)(i) and 505(h)(i)”; and (2) Freddie Mac is a

governmental entity under Lebron v Nat’l R Passenger

Corp, 513 US 374, 377; 115 S Ct 961; 130 L Ed 2d 902

(1995). Both of these conclusions are erroneous.

With respect to Freddie Mac’s tax status, while MCL

207.505(h)(i) and MCL 207.526(h)(i) provide tax ex-

emptions for certain instruments and transactions in-

volving the United States, Freddie Mac is specifically

authorized by federal statute to be exempt from “all

taxation now or hereafter imposed by any... State,”

except for real property taxes. 12 USC 1452(e). Thus,

Freddie Mac would have been exempt regardless of

whether it sought an exemption “as the United States.”

Moreover, the circuit court did not cite, and defendants

do not provide, any authority supporting the position

that seeking a tax exemption “as the United States”

subjects federally created corporations to constitutional

claims under the Fifth Amendment. As the United

States Court of Appeals for the Ninth Circuit stated in

Hall v American Nat’l Red Cross, 86 F3d 919, 922 (CA

9, 1996), “Government-created corporations are often

held to be tax-immune government instrumentalities,

but courts have also frequently found them not to be

subject to constitutional treatment as government ac-

tors.”

Thus, the mere fact that Freddie Mac filed for

tax exemptions as “the United States” was not disposi-

tive of whether Freddie Mac is a governmental entity

“Though not binding on this Court, federal precedent is generally

considered highly persuasive when it addresses analogous issues.” Wil-

coxon v Minn Mining & Mfg Co, 235 Mich App 347, 360 n 5; 597 NW2d

250 (1999).

494 306 M

ICH

487 [Aug

for constitutional purposes. Instead, Lebron, 513 US

374, is controlling on this issue, and under the Lebron

framework, we conclude that Freddie Mac is not a

governmental entity.

In Lebron, the United States Supreme Court ad-

dressed whether the National Railroad Passenger Cor-

poration (commonly known as Amtrak) was a govern-

mental entity for constitutional purposes. In that case,

Amtrak refused to display the plaintiff’s political adver-

tisement on a large billboard at Penn Station commonly

known as “the Spectacular.” The plaintiff sued, alleging

violations of his First and Fifth Amendment rights. Id.

at 377-378. At issue was whether Amtrak was a govern-

mental entity subject to the plaintiff’s constitutional

claims. Id. at 378-379.

In resolving this issue, the Supreme Court held that,

“where... the Government creates a corporation by

special law, for the furtherance of governmental objec-

tives, and retains for itself permanent authority to

appoint a majority of the directors of that corporation,

the corporation is part of the Government” for consti-

tutional purposes. Id. at 400. Although Amtrak’s autho-

rizing statute expressly stated that Amtrak was not a

federal entity, the Lebron Court concluded otherwise.

The Court reasoned that Amtrak was created by special

statute explicitly for the furtherance of a governmental

goal—specifically, the preservation of passenger trains

in the United States. Id. at 383, 397-398. Furthermore,

six of the eight Amtrak board members were directly

appointed by the President of the United States. Id.at

397. Moreover, the Court reasoned, the government’s

control of Amtrak was permanent in nature, explaining:

Amtrak is not merely in the temporary control of the

Government (as a private corporation whose stock comes

into federal ownership might be); it is established and

2014] F

OME

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ECON

) 495

organized under federal law for the very purpose of pursu-

ing federal governmental objectives, under the direction

and control of federal governmental appointees. It is in

that respect no different from the so-called independent

regulatory agencies such as the Federal Communications

Commission or the Securities Exchange Commission,

which are run by Presidential appointees with fixed terms.

[Id.]

In concluding that Amtrak was a federal entity, the

Lebron Court distinguished Regional Rail Reorganiza-

tion Act Cases, 419 US 102; 95 S Ct 335; 42 L Ed 2d 320

(1974), wherein the Supreme Court held that Conrail

was not a federal instrumentality “despite the Presi-

dent’s power to appoint . . . 8 of [Conrail’s] 15 direc-

tors.” Lebron, 513 US at 399. The Lebron Court noted

that, in Regional Rail, the federal appointees were

appointed to the Conrail board to protect federally

backed debt obligations. Id. Furthermore, the appoin-

tees were required to operate Conrail “at a profit for the

benefit of its shareholders,” and full control of the

board would shift back to the shareholders once feder-

ally backed debt obligations fell below 50 percent of

total indebtedness. Id. (quotation marks and citations

omitted). In contrast, “[t]he Government exerts its

control [over Amtrak] not as a creditor but as a policy-

maker, and no provision exists that will automatically

terminate control upon termination of a temporary

financial interest.” Id.

In this case, there is no dispute that the government

created Freddie Mac by special statute for the purpose

of furthering governmental objectives.

Defendants do

See, e.g., 12 USC 4501; American Bankers Mtg Corp v Fed Home Loan

Mtg Corp, 75 F3d 1401, 1406-1407 (CA 9, 1996) (“The congressional

purposes for Freddie Mac are clearly designed to serve the public interest by

increasing the availability of mortgages on housing for low- and moderate-

income families and by promoting nationwide access to mortgages.”).

496 306 M

ICH

487 [Aug

not argue, nor can they prove that, preconservatorship,

Freddie Mac was a governmental entity. See American

Bankers Mtg Corp v Fed Home Loan Mtg Corp,75F3d

1401, 1406-1409 (CA 9, 1996) (holding that preconser-

vatorship Freddie Mac lacked sufficient government

control under Lebron because 13 of its 18 directors were

elected annually by common shareholders and its 60

million shares of common stock were publicly traded on

the New York Stock Exchange).

Instead, defendants argue that the FHFA’s 2008

conservatorship served to transform Freddie Mac into a

governmental entity. This argument is not novel and

has been repeatedly rejected by federal courts including

the United States Court of Appeals for the Sixth Cir-

cuit, which recently held that “[u]nder the Lebron

framework, Freddie Mac is not a government actor who

can be held liable for violations of the Fifth Amend-

ment’s Due Process Clause.” Mik v Fed Home Loan Mtg

Corp, 743 F3d 149, 168 (CA 6, 2014). This holding

aligned with numerous decisions by federal courts

across the country, which have soundly rejected the

same argument.

For the following reasons, we now

See, e.g., Narra v Fannie Mae, opinion of the United States District

Court for the Eastern District of Michigan, issued February 7, 2014 (Docket

No. 2:13-cv-12282); Fed Home Loan Mtg Corp v Shamoon, 922 F Supp 2d

641 (ED Mich, 2013); Lopez v Bank of America, N.A., 920 F Supp 2d 798

(WD Mich, 2013); Dias v Fed Nat’l Mtg Ass’n, 990 F Supp 2d 1042 (D

Hawaii, 2013); Matveychuk v One West Bank, opinion of the United States

District Court for the Northern District of Georgia, issued December 19,

2013 (Docket No. 1:13-CV-3464-AT); May v Wells Fargo Bank, opinion of the

United States District Court for the Southern District of Texas, issued

August 29, 2013 (Docket No. 4:11-3516); Bernard v Fed Nat’l Mtg Ass’n,

opinion of the United States District Court for the Eastern District of

Michigan, issued March 27, 2013 (Docket No. 12-14680); In re Kapla, 485

BR 136 (Bankr ED Mich, 2012); Syriani v Freddie Mac Multiclass Certifi-

cates, opinion of the United States District Court for the Central District of

California, issued July 10, 2012 (Docket No. CV 12-3035-JFW); Herron v

Fannie Mae, 857 F Supp 2d 87, 95-96 (D DC, 2012).

2014] F

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) 497

similarly hold that Freddie Mac, under the conservator-

ship of the FHFA, is not a governmental entity for

constitutional purposes.

As conservator, the FHFA succeeded to “all” of Fred-

die Mac’s “rights, titles, powers, and privileges,” with

authority to operate all of its business “with all the

powers of the shareholders, the directors, and the

officers....” 12 USC 4617(b)(2)(A), (B)(i). Although

these powers are sweeping, importantly, Congress did

not appoint FHFA as permanent conservator over Fred-

die Mac. Instead, the purpose of the conservatorship is

to reorganize, rehabilitate, or wind up Freddie Mac’s

affairs. 12 USC 4617(a)(2). These terms connote a

temporary period of control, and defendants identify no

statutory language showing that the government in-

tended to effectuate a permanent takeover of Freddie

Mac.

The circuit court concluded that although “conserva-

torship is described as a temporary status of a company,

the procedures in place in this case make the conserva-

torship, in all practicality, permanent,” noting that

“there is no determined end date in which [Freddie

Mac] will become a private entity, nor is there an

automatic provision that will revert [Freddie Mac] to a

private entity.” Similarly, defendants point out that in

Regional Rail, 419 US at 102, the Court held that

Conrail was not a federal instrumentality in part be-

cause the government’s full voting control would auto-

matically shift back to Conrail’s shareholders once the

corporation’s federal debt obligations fell below 50

percent of its indebtedness. Lebron, 513 US at 399,

citing Regional Rail, 419 US at 152. Defendants argue

that, unlike Conrail, in this case there is no triggering

mechanism that terminates the conservatorship. These

arguments are unpersuasive.

498 306 M

ICH

487 [Aug

The Lebron Court noted that with respect to Conrail

the government was merely acting as its creditor and

exerted control over Conrail for the purpose of ensuring

a profit for Conrail’s shareholders. Lebron, 513 US at

399. Notably, the Lebron Court did not state that

government control would be deemed permanent unless

the government’s involvement was scheduled to termi-

nate on a specified date or upon the satisfaction of a

specified condition. To the contrary, the Lebron Court

recognized that the indefinite government control over

Conrail, pending the satisfaction of certain conditions,

did not equate to permanent government control. Id.

With respect to permanence, the conservatorship of

Freddie Mac is analogous to the government’s control of

Conrail, as it is similarly of indefinite duration pending

the satisfaction of certain conditions. See 12 USC

4617(a)(2). Thus, Congress’s failure to specify a termi-

nation date does not render the FHFA’s control perma-

nent under the Lebron framework. This is especially

true considering that the government’s control of Fred-

die Mac was imposed for the inherently temporary

purpose of “reorganizing, rehabilitating, or winding

up” its affairs. 12 USC 4617(a)(2).

In sum, Freddie Mac was created by special law for

governmental purposes; however, although the federal

government, through the FHFA, exercises control over

Freddie Mac, that control is not permanent in nature.

Accordingly, under the Lebron framework, Freddie Mac

is not a federal entity for constitutional purposes, and

defendants’ due process claim fails as a matter of law.

See Nat’l Airport Corp v Wayne Bank, 73 Mich App 572,

Because we conclude that Freddie Mac is not a governmental entity

for constitutional purposes, we need not address Freddie Mac’s argument

that Michigan’s foreclosure by advertisement does not violate the Due

Process Clause.

2014] F

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) 499

574; 252 NW2d 519 (1977) (“It is unquestioned that

state action is required in order to assert a denial of due

process under both the Michigan and United States

Constitutions.”).

B. VALIDITY OF FORECLOSURE UNDER MCL 600.3204(3)

Freddie Mac argues that the circuit court erred in

holding that the foreclosure was void ab initio because

the foreclosure did not comply with MCL 600.3204(3).

MCL 600.3204(3) provides as follows:

If the party foreclosing a mortgage by advertisement is

not the original mortgagee, a record chain of title shall exist

prior to the date of sale under [MCL 600.3216] evidencing

the assignment of the mortgage to the party foreclosing the

mortgage. [Emphasis added.]

[

]

In this case, it is undisputed that the foreclosing

party was not the original mortgagee. First National

assigned the mortgage to ABN-AMRO, and that assign-

ment was duly recorded. Subsequently, ABN-AMRO

merged with CMI, the foreclosing entity. Freddie Mac

argues that CMI was not required to record its interest

in defendants’ mortgage under MCL 600.3204(3) be-

cause it acquired that interest pursuant to a merger.

Defendants argue that the circuit court correctly con-

cluded that CMI failed to comply with MCL

600.3204(3). We need not address the substance of this

issue, however, because our Supreme Court in Kim v

JPMorgan Chase Bank, NA, 493 Mich 98, 115-116; 825

NW2d 329 (2012), held that parties seeking to set aside

a foreclosure sale on this basis must show that they

were prejudiced by the mortgagee’s failure to comply

This language reflects the version of MCL 600.3204(3) in effect when

this action was filed. The minor amendment of this provision that became

effective on June 19, 2014, does not affect our analysis. See 2014 PA 125.

500 306 M

ICH

487 [Aug

with MCL 600.3204 by demonstrating that “they would

have been in a better position to preserve their interest

in the property absent [the mortgagee’s] noncompli-

ance with the statute.” In this case, the only prejudice

defendants allege is that plaintiff violated their due

process rights. In light of our holding that defendants’

due process rights were not violated, defendants have

failed to allege the prejudice necessary for this Court to

reach the merits of this issue.

IV. CONCLUSION

In summary, we conclude that Freddie Mac is not a

governmental entity for constitutional purposes and

defendants’ due process claim therefore failed as a

matter of law. Further, whether CMI properly complied

with MCL 600.3204(3) is not before us given defen-

dants’ failure to allege prejudice. Therefore, defendants

were not entitled to any relief, and the district court

properly entered an order terminating defendants’ pos-

session of the property. Accordingly, we reverse the

circuit court’s order and remand for reinstatement of

the district court’s order terminating defendants’ pos-

session of the property.

Reversed and remanded for proceedings consistent

with this opinion. No costs are awarded in this matter.

MCR 7.219 (A). We do not retain jurisdiction.

ORRELLO

,P.J., and S

ERVITTO

and B

ECKERING

,JJ.,

concurred.

2014] F

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) 501

ATTALA v ORCUTT

Docket No. 315630. Submitted June 3, 2014, at Grand Rapids. Decided

August 26, 2014, at 9:05 a.m.

Tammi Attala brought a premises liability action against Larry and

Carolyn Orcutt in the Kent Circuit Court. Plaintiff was injured

when she slipped and fell on the icy surface of the parking lot

outside her apartment, which she rented from defendants. She was

on her way to school to turn in a report that was due that day.

Plaintiff slipped as she was entering her car. The parties stipulated

the facts and agreed that the sole issue was whether special aspects

existed such that defendants owed a duty to plaintiff despite the

open and obvious nature of the hazardous ice. The court, Dennis B.

Leiber, J., ruled that the hazard was effectively unavoidable and,

therefore, the open and obvious danger doctrine did not vitiate

defendants’ duty. The court entered judgment in favor of plaintiff.

Defendants appealed.

The Court of Appeals held:

A premises owner retains a duty with regard to those open and

obvious hazards that have either of two special aspects: those that

are either (1) effectively unavoidable, or (2) pose a substantial risk

of death or serious injury. If the hazard in question has either of

these special aspects, it presents an unreasonable risk of harm

despite being open and obvious. In this case, the trial court

properly rejected defendants’ sole argument—that to fall outside

the open and obvious danger doctrine, the conditions of the

premises must be both effectively unavoidable and pose a substan-

tial risk of death or serious injury.

Affirmed.

IORDAN

, J., dissenting, concluded that plaintiff had failed to

establish the existence of special aspects sufficient to overcome the

open and obvious danger doctrine and would have reversed.

Plaintiff chose to walk on the parking lot in conditions that were

known, open, and obvious to her. The stipulated facts did not lead

to the conclusion that plaintiff was required or compelled to

confront the hazard. Accordingly, the hazard was not effectively

unavoidable.

502 306 M

ICH

502 [Aug

EGLIGENCE —

REMISES

IABILITY —

PEN AND

BVIOUS

ANGERS —

PECIAL

SPECTS

A premises owner retains a duty with regard to those open and

obvious hazards that have either of two special aspects: those that

are either (1) effectively unavoidable, or (2) pose a substantial risk

of death or serious injury; if the hazard in question has either of

these special aspects, it presents an unreasonable risk of harm

despite being open and obvious.

Dale Sprik & Associates, PC (by Scott B. Hansberry),

for plaintiff.

James M. Searer, PC (by James M. Searer), for

defendants.

Before: M

URPHY

, C.J., and S

HAPIRO

and R

IORDAN

,JJ.

HAPIRO

, J. Defendants appeal from the trial court

judgment for plaintiff in this premises liability and

personal injury action. Because the trial court did not

err in its application of the exceptions to the open and

obvious danger doctrine, we affirm.

On January 20, 2010, plaintiff was injured when she

slipped and fell on the icy surface of the parking lot

outside her apartment, which she rented from defendants,

while trying to get into her car in order to attend her

college class as scheduled. The parties reached an agree-

ment that the case turned solely on whether or not

defendants owed plaintiff a duty given that (a) the ice was

an open and obvious hazard and (b) the entire parking lot

was covered in ice and the plaintiff had to encounter the

ice in order to get to her car. They agreed that if defen-

dants owed a duty under these conditions, judgment

should enter for plaintiff, but that if defendants did not

owe a duty under these conditions, judgment should enter

for defendants. Accordingly, the parties jointly submitted

this purely legal issue to the trial court for determination

on the following stipulated facts:

2014] A

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PINION OF THE

OURT

1. On January 20, 2010, Plaintiff, Tammi Attala,

slipped and fell on ice in the parking lot of the apartment

she rented at 1307 Northfield Ave., Grand Rapids, Michi-

gan.

2. That at all times pertinent, the Defendants, Larry

Orcutt and Carolyn Orcutt, were the Plaintiff’s landlords

and owners of the premises where the injury occurred.

3. Tammi Attala had the status of an invitee on the

premises at the time of the accident.

4. The apartment rented by Plaintiff was one of four

apartments in the Defendants’ apartment building.

5. That the Defendants, as owners and landlords of the

Plaintiff, provided the parking lot for use of their tenants.

6. That the Defendants owned, managed and main-

tained the premises, including the parking lot.

7. That Defendants provided the parking for their ten-

ants and the tenants could reasonably expect to be able to get

to and from their vehicles as part of using this parking lot.

8. That on January 20, 2010, and for a period of time

prior thereto, the entire parking lot was covered with thick

ice. There was no snow covering the ice.

9. The lot had been plowed at some time prior to

January 20, 2010 but not salted.

10. That on January 20, 2010, Plaintiff was a student

taking classes to become a medical assistant. On the date of

her injury, she was going to school to attend classes and

turn in a report that was due that day.

11. To get to her car from her apartment, Ms. Attala had

to encounter the ice on the surface of the parking lot.

12. Plaintiff was injured when she slipped and fell on

the ice as she was entering into her car.

13. The thick ice covering the parking lot was known to

Ms. Attala and open and obvious.

14. The amount of Ms. Attala’ damages after all appli-

cable setoffs is $12,500.

504 306 M

ICH

502 [Aug

PINION OF THE

OURT

15. The sole issue for determination by the Court is

whether special aspects existed such that Defendants owed a

duty to the Plaintiff despite the [sic] open and obvious

nature of the hazard. [Emphasis added.]

The trial court ruled that, because it was undisputed

that to reach her car, plaintiff had to encounter the icy

conditions and that the entire parking lot was covered

with thick ice, the hazard was effectively unavoidable

and, therefore, the open and obvious danger doctrine

did not vitiate defendants’ duty. The court reviewed the

decisions in Lugo v Ameritech Corp, Inc, 464 Mich 512;

629 NW2d 384 (2001), and Hoffner v Lanctoe, 492 Mich

450, 463-465; 821 NW2d 88 (2012), correctly noting

their holdings that a premises owner retains a duty as

to those open and obvious hazards that have either of

two “special aspects”: those that are either (1) effec-

tively unavoidable or (2) pose a substantial risk of death

or serious injury. Lugo, 464 Mich at 517-519; Hoffner,

492 Mich at 463. As explained in Lugo, these two types

of special aspects address the two different ways in

which a risk may remain unreasonable even when open

and obvious. An effectively unavoidable hazard “give[s]

rise to a uniquely high likelihood of harm” while one

which poses a substantial risk of death or serious injury

“give[s] rise to a uniquely high . . . severity of

harm....”Lugo, 464 Mich at 519 (emphasis added). If

the hazard in question has either of these special

aspects, then it continues to present an “unreasonable

risk of harm” despite being open and obvious. Id.at

517-519.

Given these principles, the trial court properly re-

jected defendants’ sole argument—that to fall outside

the open and obvious danger doctrine, the conditions of

the premises must be both effectively unavoidable and

pose a substantial risk of death or serious injury. The

trial court accurately stated the law in its opinion:

2014] A

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505

PINION OF THE

OURT

[C]ontrary to Defendants’ position, the Lugo Court clearly

saw unavoidable situations as distinct from avoidable but

substantial risks. This distinction is applied in Hoffner,

where the Court first found that the plaintiff freely admit-

ted that the danger was avoidable. Hoffner supra at 473.

The Hoffner Court then proceeded to analyze whether the

danger was substantial. Id. Therefore, the Hoffner Court

did not see substantiality and unavoidability as two neces-

sary elements because the substantiality analysis would

have been unnecessary once the plaintiff admitted that the

condition was avoidable. See id.

The trial court was correct in describing Hoffner’s

two-part analysis and in describing effective unavoid-

ability as one of the exceptions to the open and obvious

danger doctrine. However, the trial court erred by

referring to the second exception as being applicable

when “the danger was substantial.” This understates

the degree of potential injury that must be present for

the second exception to apply. The Supreme Court has

made clear that if the danger is not effectively unavoid-

able, the premises owner does not have a duty unless

the hazard poses “ ‘an extremely high risk of severe

harm....’”Hoffner, 492 Mich at 462, quoting Lugo,

464 Mich at 519 n 2 (emphasis added). As an example,

Lugo offered a 30-foot deep unguarded pit in a parking

lot, noting that while the pit would be avoidable, a

person who failed to avoid it would suffer “a substantial

risk of death or severe injury....”Lugo, 464 Mich at

518. Therefore, contrary to the characterization used by

the trial court, if the hazard is not effectively unavoid-

able, the premises owner’s duty under the common law

is limited to situations in which the hazard poses a

substantial risk of death or severe injury.

The parties agreed that judgment should enter for

plaintiff if defendants owed a duty and for defendants if

defendants did not owe such a duty. Defendants did not

506 306 M

ICH

502 [Aug

PINION OF THE

OURT

argue below or on appeal that the hazard was not effec-

tively unavoidable. The parties submitted a question of

law to the trial court on stipulated facts and the trial court

correctly stated and applied the relevant law.

Affirmed.

URPHY

, C.J., concurred with S

HAPIRO

,J.

IORDAN

,J.(dissenting). Because plaintiff fails to

establish the existence of special aspects sufficient to

overcome the open and obvious danger doctrine, I

respectfully dissent.

Our dissenting colleague concludes that plaintiff’s case should have been

dismissed because she failed to show that “alternative” modes of transpor-

tation were not available to her. We reject this view for several reasons. First,

defendant never made any such argument in either the trial court or in its

brief to this Court. See Barnard Mfg Co, Inc v Gates Performance Engi-

neering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009) (stating that in

a motion brought under MCR 2.116(C)(10), the moving party must

“ ‘specifically identify the issues as to which the moving party believes there

is no genuine issue as to any material fact’ ”), quoting MCR 2.116(G)(4).

Second, defendants stipulated, “[plaintiff] had to encounter the ice on the

surface of the parking lot” to get to her car, so any claim that she did not

need to do so is waived. Third, the dissent never states what reasonable

alternative modes of transportation it theorizes might have allowed plaintiff

to avoid the icy conditions that covered the entire premises and cites no

evidence to support that theory. This is a telling omission, as it is difficult to

imagine what could have transported plaintiff off the property without

having to encounter the universally present ice. The dissent seems to take

the view that that, even if a defendant does not argue that safe and

reasonable alternatives existed, a plaintiff must nevertheless demonstrate a

lack of safe and reasonable alternatives. A plaintiff is required to rebut the

reasonableness of any alternatives proffered by the defense, but is not

required to do so where the defense, as here, fails to offer evidence (or even

a claim) of any such alternatives. The dissent’s approach suggests that the

party with the burden of proof must rebut theories that are never presented.

This is akin to an appellate court reversing a defendant’s conviction because

the prosecution failed to disprove self-defense or alibi when the defendant

never asserted that he acted in self-defense or that he had an alibi for the

time in question.

2014] A

TTALA V

RCUTT

507

ISSENTING

PINION BY

IORDAN

,J.

In its opinion and order, the trial court misstated the

stipulation between the parties. It wrote, in the first

paragraph of its opinion, that the parties agreed that the

ice in the parking lot “was not avoidable in order for

Plaintiff to enter or exit her apartment.” In fact, the

parties stipulated, “[t]o get to her car from her apartment,

Ms. Attala had to encounter the ice on the surface of the

parking lot.” Defendants did not concede that the ice was

unavoidable under all circumstances and, in particular,

that the ice “was not avoidable in order for Plaintiff to

enter or exit her apartment.” In fact, the ice was “un-

avoidable” only if plaintiff chose to walk on the parking lot

in conditions that were known, open, and obvious to her.

In essence, the trial court reached its decision in favor of

plaintiff on the basis of a faulty premise.

Seemingly recognizing this faulty premise, the ma-

jority’s opinion focuses on the fact that plaintiff “had to

encounter the ice to get to her car.” It also describes the

ice as being “universally present,” to strengthen the

conclusion that the plaintiff was compelled or required

to traverse the ice in the parking lot. The majority

twists the issue, and the stipulated facts, to transform

this case by inserting on its own accord, like the trial

court, a new, unstipulated fact, that plaintiff was com-

pelled to encounter the admittedly open and obvious

condition on the parking lot, when, in actuality, the

facts indicate that she simply chose to do so.

A landowner generally owes no duty to protect or warn

an invitee of dangers that are open and obvious. Lugo v

Ameritech Corp, Inc, 464 Mich 512, 516; 629 NW2d 384

(2001). But the Michigan Supreme Court “has discussed

two instances in which the special aspects of an open and

obvious hazard could give rise to liability: when the

danger is unreasonably dangerous or when the danger is

effectively unavoidable.” Hoffner v Lanctoe, 492 Mich

508 306 M

ICH

502 [Aug

ISSENTING

PINION BY

IORDAN

,J.

450, 463; 821 NW2d 88 (2012). As the Court cautioned,

“In either circumstance, such dangers are those that give

rise to a uniquely high likelihood of harm or severity of

harm if the risk is not avoided and thus must be differen-

tiated from those risks posed by ordinary conditions or

typical open and obvious hazards.” Id. at 463 (quotation

marks and citation omitted). Accordingly, the special as-

pects exception is exceedingly narrow because “neither a

common condition nor an avoidable condition is uniquely

dangerous.” Id.

In the instant case, the parties stipulated that the

parking lot was covered with thick ice at the time of

plaintiff’s fall and that no snow was covering it. Both

parties agreed that the ice covering the parking lot

was known to plaintiff, and open and obvious. The

parties also agreed that in order to reach her car,

plaintiff had to encounter the ice. From these facts,

the majority concludes that there was a hazard,

though not necessarily an unreasonable one, that was

effectively unavoidable and, as a result, defendants

are liable.

The majority’s conclusion requires a logical leap that

is not supported by the limited stipulated facts before

this Court. While the parties stipulated that plaintiff

was going to class to turn in a report, there is no

evidence establishing that her only option to do so was

to encounter ice in the parking lot, a condition the

majority now has taken to describe as, “universally

present.” Further, contrary to plaintiff’s suggestion,

there was no evidence that she was “trapped” in her

apartment. Even if walking across the parking lot at the

instant she desired was the only way to reach her car,

she voluntarily chose to do so.

In her appellate brief, plaintiff frames the issue

before the Court as being:

2014] A

TTALA V

RCUTT

509

ISSENTING

PINION BY

IORDAN

,J.

Whether the Circuit Court Erred in Determining that

Special Circumstances Existed Where the Parking Lot of

Tammi Attala’s Apartment Building Was Completely Cov-

ered With Thick Ice That She Was Required to Cross to

Leave Her Apartment.

[

]

Plaintiff argues on appeal, without there being any

factual basis in the record to support her, that she “had”

to get to her car, she was “unable to protect herself,” she

“had no option,” she “had no choice” and that she was

otherwise “trapped” in the apartment building. In

reality, the parties did not stipulate those facts, nor

were they ever established in the trial court.

As the Michigan Supreme Court has held, a hazard is

effectively unavoidable if a person “for all practical

purposes, must be required or compelled to confront a

dangerous hazard. As a parallel conclusion, situations

in which a person has a choice whether to confront a

hazard cannot truly be unavoidable, or even effectively

so.” Hoffner, 492 Mich at 468-469.

The example the Court provided in Lugo further

demonstrates this point. The Court provided the follow-

ing example of an effectively unavoidable condition:

“[A] commercial building with only one exit for the

general public where the floor is covered with standing

water.” Lugo, 464 Mich at 518. In such a scenario, a

person would be effectively trapped in the building, as

he or she could not exit safely. Yet, in this case, there is

no evidence that plaintiff was unable to exit her apart-

ment safely, that she had no alternative way of attend-

ing her class or submitting her report other than by

walking through the parking lot to her car. The facts

provided through the parties’ stipulation merely indi-

cate that plaintiff voluntarily chose to walk on the open

and obvious ice. The parties do not stipulate that

Capitalization altered.

510 306 M

ICH

502 [Aug

ISSENTING

PINION BY

IORDAN

,J.

plaintiff was required or compelled to do so. As such,

from the limited facts before this Court, it cannot be

said that the hazard was effectively unavoidable or that

plaintiff was required or compelled to confront it.

Moreover, as the Court in Hoffner emphasized, the

exception for effectively unavoidable hazards “is a lim-

ited exception designed to avoid application of the open

and obvious doctrine only when a person is subjected to

an unreasonable risk of harm.” Hoffner, 492 Mich at

468. In other words, the “touchstone of the ‘special

aspects’ analysis is that the condition must be charac-

terized by its unreasonable risk of harm. Thus, an

‘unreasonably dangerous’ hazard must be just that—

not just a dangerous hazard, but one that is unreason-

ably so.” Id. at 455-456.

While the parking lot may have had ice, the parties

did not stipulate that it created such a risk that its mere

presence made it unreasonably hazardous, that it was

universally present, or that it created an unreasonable

risk of harm. As our Supreme Court has observed,

“Michigan, being above the 42nd parallel of north

latitude, is prone to winter. And with winter comes

snow and ice accumulations on sidewalks, parking lots,

roads, and other outdoor surfaces.” Id. at 454. Nothing

in the stipulated facts indicates that the accumulation

of ice in the parking lot was anything other than typical.

As such, the ice was nothing more than an “ordinary

condition[],” which did not present any special aspects

that could give rise to liability. See id.at463

Because plaintiff failed to meet her burden of proof

on the stipulated facts,

I dissent from the majority

opinion. I would reverse.

Plaintiff bore the burden to prove that defendants owed her a duty in

this negligence action. See Flones v Dalman, 199 Mich App 396, 402-403;

502 NW2d 725 (1993).

2014] A

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511

ISSENTING

PINION BY

IORDAN

,J.

MAYOR OF CADILLAC v BLACKBURN

Docket No. 312803. Submitted October 3, 2013, at Petoskey. Decided

August 26, 2014, at 9:10 a.m.

Petitioner, the mayor of the city of Cadillac, sent respondent, Jim

Blackburn, an appointed commissioner of the city’s Act 78 fire

and police department civil service commission, written notice

of his removal from the commission pursuant to MCL 38.504.

Respondent promptly answered the notice. Petitioner then filed

a petition in the Wexford Circuit Court, setting forth the reason

for said removal and seeking confirmation by the court of the

mayor’s action. The court, William M. Fagerman, J., ruled that

it would decide the matter by determining whether the mayor

proved the allegations in the petition by a preponderance of the

evidence and entered an order to that effect. The Court of

Appeals granted petitioner’s application for leave to appeal that

alleged that the circuit court employed an incorrect standard of

review and violated the constitutional doctrine of the separation

of powers.

The Court of Appeals held:

1. The circuit court correctly determined that the plain lan-

guage of MCL 38.504 places the burden of proof on petitioner to

establish good cause for removal by the preponderance of the

evidence at a hearing de novo.

2. MCL 38.504 does not provide for circuit court review of a

final administrative decision. It provides a procedure for an

original action by a mayor for the removal of a commissioner. The

circuit court correctly held that it possessed original jurisdiction

over the dispute under MCL 38.504.

3. Because the notice of removal, and more particularly the

petition for confirmation of removal, is not a final administrative

decision, the provisions of Const 1963, art 6, § 28 regarding the

review of final decisions, findings, rulings, and orders of adminis-

trative officers, do not control the circuit court proceedings under

MCL 38.504.

4. Permitting review de novo in the circuit court of petitioner’s

decision to seek removal of respondent does not violate the

512 306 M

ICH

512 [Aug

constitutional doctrine of the separation of powers. MCL 38.504

does not impinge on a mayor’s decision to seek the removal of a

civil service commissioner or pose an impediment to the mayor’s

decision in the first instance of what constitutes other good cause

for removal under the statute. There can be no encroachment by

the circuit court on an executive or administrative function of a

mayor contrary to Const 1963, art 3, § 2 because that constitu-

tional provision applies only to state government, not local gov-

ernment.

Affirmed and remanded for further proceedings.

UNICIPAL

ORPORATIONS —

OARDS AND

OMMISSIONS —

EMOVAL OF

OMMIS-

SIONERS —

CTIONS

MCL 38.504 provides a procedure for an original action in the

circuit court by a mayor or other principal executive officer of a

city, village, or municipality that has established a fire and

police department civil service commission under 1935 PA 78

for the removal of a commissioner for incompetence, malfea-

sance, or other good cause; the burden of proof is placed on the

mayor in the circuit court action to establish good cause for

removal by a preponderance of the evidence; the provisions of

Const 1963, art 6, § 28 regarding the review of administrative

action do not apply to the original circuit court action under

MCL 38.504.

Foster, Swift, Collins & Smith, PC (by Michael D.

Homier and Laura J. Genovich), for petitioner.

McCurdy, Wotila & Porteous, PC (by Roger Wotila

and Cynthia Wotila), for respondent.

Before: R

IORDAN

,P.J., and M

ARKEY

and K. F. K

ELLY

,JJ.

URIAM

. Petitioner, the mayor of the city of

Cadillac, appeals by leave granted the trial court’s

ruling that it would hear and decide the mayor’s peti-

tion for removal of respondent as a civil service com-

missioner under 1935 PA 78, MCL 38.501 et seq., by

determining whether the mayor proved the allegations

in his removal petition by the preponderance of the

2014] C

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AYOR V

LACKBURN

513

evidence.

The mayor argues that the trial court’s

ruling provides for review de novo of the mayor’s

administrative decision, contrary to the review pro-

vided for in Const 1963, art 6, § 28, and would also

violate the doctrine of the separation of powers, Const

1963, art 3, § 2. We affirm and remand for further

proceedings.

During the city’s 2011 election cycle, the mayor was

informed that respondent served on a political commit-

tee or was active in the management of the campaign of

the mayor’s political opponent. Respondent had served

for several years as an unpaid, appointed commissioner

of the city’s Act 78 fire and police department civil

service commission. The commission consists of three

members, one appointed by the “principal elected of-

ficer of the city,” one selected by the paid members of

the police and fire department, and one selected by the

other two commissioners. MCL 38.502. The act prohib-

its any civil service commissioner from serving on “any

political committee or [taking] any active part in the

management of any political campaign.” MCL 38.503.

Section 4 of the act provides that the mayor or principal

executive officer of the pertinent city, village, or munici-

pality “shall at any time remove any commissioner for

incompetency, dereliction of duty, malfeasance in office

This Court originally dismissed petitioner’s interlocutory applica-

tion for leave to appeal for lack of jurisdiction. See Mayor of Cadillac

v Blackburn, unpublished order of the Court of Appeals, entered

October 29, 2012 (Docket No. 312803). Our Supreme Court decided

otherwise in Mayor of the City of Cadillac v Blackburn, 493 Mich 889

(2012), holding that this Court “has jurisdiction over the petitioner’s

application for leave to appeal pursuant to Const 1963, art 6, § 10, MCL

600.308(2)(e), and MCR 7.203(B)(1).” The Supreme Court also granted a

stay of the proceedings in the circuit court pending this appeal. Black-

burn, 493 Mich 889. This Court subsequently granted leave to appeal.

Mayor of Cadillac v Blackburn, unpublished order of the Court of

Appeals, entered December 17, 2012 (Docket No. 312803).

514 306 M

ICH

512 [Aug

or any other good cause....”MCL38.504. The mayor

or principal executive officer must initiate removal in a

writing filed with the commission and served on the

commissioner. But when the executive initiates re-

moval, § 4 provides that “such removal shall be tempo-

rary only and shall be in effect for a period of 10 days.”

Id. The commissioner is “deemed removed” if he or she

does not respond within the 10 days. If, however, the

commissioner answers the removal notice within 10

days, the statute provides:

[T]he mayor shall file in the office of the clerk of the circuit

court of said county a petition setting forth in full the

reason for said removal and praying for the confirmation

by said circuit court of the action of the mayor in so

removing the said commissioner. A copy of said petition, in

writing, shall be served upon the commissioner so removed

simultaneously with its filing in the office of the clerk of the

circuit court and shall have precedence on the docket of the

said court and shall be heard by said court as soon as the

removed commissioner shall demand. [MCL 38.504.]

Petitioner complied with the initial removal re-

quirements of MCL 38.504 by sending respondent

written notice of his removal and by then petitioning

the circuit court for confirmation of his removal

decision after respondent promptly answered the

notice. The circuit court held that it had original

jurisdiction over the dispute under MCL 38.504 so

that petitioner had to prove, by a preponderance of

the evidence, the good cause for removing respondent

from office that petitioner alleged in its removal

petition. On appeal, petitioner argues that the court

erroneously interpreted MCL 38.504 in a manner

inconsistent with the judicial review of administra-

tive decisions provided for in Const 1963, art 6, § 28.

Petitioner also asserts that a circuit court’s review de

novo of a mayor’s removal decision would violate the

2014] C

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AYOR V

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515

separation of powers doctrine, Const 1963, art 3, § 2.

We hold that the circuit court correctly applied the

plain terms of the statute and that this reading of the

statute is not contrary to Michigan’s Constitution.

I. STANDARD OF REVIEW

This case presents questions of law regarding statu-

tory interpretation and also the application of our state

Constitution, which we review de novo. In re Sanders,

495 Mich 394, 404; 852 NW2d 524 (2014). “Statutes are

presumed to be constitutional, and we have a duty to

construe a statute as constitutional unless its unconsti-

tutionality is clearly apparent.” Id. When interpreting a

statute, our primary goal is to “give effect to the intent

of the Legislature.” Superior Hotels, LLC v Mackinaw

Twp, 282 Mich App 621, 628; 765 NW2d 31 (2009). If

the language of a statute is unambiguous, we presume

the Legislature “intended the meaning expressed in the

statute.” Briggs Tax Serv, LLC v Detroit Pub Sch, 485

Mich 69, 76; 780 NW2d 753 (2010). A statutory provi-

sion is ambiguous only if it conflicts irreconcilably with

another provision or it is equally susceptible to more

than one meaning. Fluor Enterprises, Inc v Dep’t of

Treas, 477 Mich 170, 177 n 3; 730 NW2d 722 (2007). A

statute is not ambiguous merely because a term it

contains is undefined or has multiple definitions in a

dictionary, especially when the term is read in context.

Cairns v East Lansing, 275 Mich App 102, 107; 738

NW2d 246 (2007). When construing a statute, we must

assign every word or phrase its plain and ordinary

meaning unless the Legislature has provided specific

definitions or has used technical terms that have ac-

quired a peculiar and appropriate meaning in the law.

Superior Hotels, 282 Mich App at 629.

516 306 M

ICH

512 [Aug

The primary goal of the judiciary when construing

Michigan’s Constitution is to ascertain the purpose and

intent of the provision at issue. Adair v Michigan, 486

Mich 468, 477; 785 NW2d 119 (2010). To do so, courts

must apply the original meaning attributed to the

words of a constitutional provision by its ratifiers, i.e.,

the most obvious commonly understood meaning the

people would have assigned the words employed at the

time of ratification. People v Nutt, 469 Mich 565, 573;

677 NW2d 1 (2004). This is known as the rule of

“common understanding.” Traverse City Sch Dist v

Attorney General, 384 Mich 390, 405; 185 NW2d 9

(1971). Under the rule of common understanding, we

must apply the meaning that, at the time of ratification,

was the most obvious to the common understanding,

the one that reasonable minds and the great mass of the

people themselves, would give it. In re Burnett Estate,

300 Mich App 489, 497; 834 NW2d 93 (2013). Thus,

words should be given their common and most obvious

meaning, and consideration of dictionary definitions

used at the time of passage for undefined terms may be

appropriate. Id. at 497-498. While historical records

such as those concerning the debate that occurred at

the constitutional convention are relevant, they are not

controlling. Lapeer Co Clerk v Lapeer Circuit Court, 469

Mich 146, 156; 665 NW2d 452 (2003). Furthermore, all

provisions must be read in light of the whole document

and no provision should be read to nullify another. Id.

II. ANALYSIS

We hold the circuit court correctly read the plain

terms of MCL 38.504 as placing the burden of proof on

petitioner to establish good cause for removal by the

preponderance of evidence at a hearing de novo. We also

find that this reading of MCL 38.504 violates neither

2014] C

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AYOR V

LACKBURN

517

the provision for judicial review of final administrative

decisions established in Const 1963, art 6, § 28, nor the

constitutional doctrine of the separation of powers,

Const 1963, art 3, § 2.

First, we examine the plain terms of the statute.

Contrary to petitioner’s contention, the mayor’s admin-

istrative (or executive) decision to seek removal of

respondent is, on the facts of this case, not final. Rather,

the statute plainly provides that where, as here, respon-

dent answers the mayor’s notice of removal within 10

days, the notice results in only a suspension of the

commissioner during the removal proceedings. When

the commissioner subject to removal timely answers the

notice, the statute places the burden of going forward

on the mayor, who must file “a petition setting forth in

full the reason for said removal and praying for the

confirmation by said circuit court of the action of the

mayor in so removing the said commissioner.” MCL

38.504. If the mayor fails to file a petition for confirma-

tion of the removal decision within 10 days after the

commissioner’s answer, the “commissioner shall imme-

diately resume his position as a member of the civil

service commission.” Id. On the timely filing of the

petition, “the commissioner so suspended shall remain

suspended until a hearing is had upon the petition of

the mayor.” Id.

Under the foregoing, MCL 38.504 clearly does not

provide for circuit court review of a final administrative

decision; rather, it provides a procedure for an original

action by the mayor or other principal executive officer

of a city, village, or municipality that has established an

Act 78 fire and police department civil service commis-

sion for the removal of a commissioner that the execu-

tive believes to be incompetent or has committed mal-

feasance, or for which other good cause exists for

518 306 M

ICH

512 [Aug

removal. The statute in no way impinges on the admin-

istrative or executive determination in the first in-

stance that good cause to remove a commissioner exists.

Indeed, the mayor’s interpretation of the statute is

entitled to respectful consideration, consonant with the

principle of the separation of powers. In re Complaint of

Rovas Against SBC Mich, 482 Mich 90, 93, 103; 754

NW2d 259 (2008). But interpreting the law is a defining

aspect of judicial power. Id. at 98. While an administra-

tive agency in a contested case may engage in the

“quasi-judicial” function of fact finding, id. at 99, de-

ciding an existing case or controversy pending before

the court is a quintessentially judicial function. See Lee

v Macomb Co Bd of Comm’rs, 464 Mich 726, 738; 629

NW2d 900 (2001), quoting Daniels v People, 6 Mich 381,

388 (1859) (“ ‘By the judicial power of courts is gener-

ally understood the power to hear and determine con-

troversies between adverse parties, and questions in

litigation.’ ”) (emphasis omitted), and Risser v Hoyt,53

Mich 185, 193; 18 NW 611 (1884) (“ ‘The judicial power

referred to is the authority to hear and decide contro-

versies, and to make binding orders and judgments

respecting them.’ ”) (emphasis omitted); see also Lan-

sing Sch Ed Ass’n v Lansing Bd of Ed, 487 Mich 349,

360 n 6; 792 NW2d 686 (2010).

In this case, the clear and unambiguous terms of the

statute must be enforced as written. Fluor Enterprises,

477 Mich at 174; Pohutski v City of Allen Park, 465 Mich

675, 683; 641 NW2d 219 (2002). As discussed, under

MCL 38.504, the mayor’s decision to initiate removal of

a commissioner from office only works a temporary

suspension; removal becomes final only after either (1)

the commissioner fails to respond to the notice of

removal after 10 days, or (2) the circuit court confirms

the mayor’s removal decision. The statute further pro-

vides that after the mayor files a petition in the circuit

2014] C

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court that states in “full the reason for... removal,”

the court “shall hear and decide upon said petition.” Id.

Indeed, the hearing is to be accorded precedence on the

court’s docket and “and shall be heard by said court as

soon as the removed commissioner shall demand.” The

statute contemplates an evidentiary hearing at which

the “contestant...shall have the right of appearing in

person and by counsel and presenting his defense....”

Id. With respect to the circuit court’s decision on the

removal petition, the statute provides the right “to

petition the supreme court for a review...asinchan-

cery cases.” Id.

Thus, we conclude that the circuit court correctly

held that it possessed original jurisdiction over the

present dispute under MCL 38.504. While the exact

nature of the hearing afforded by the statute is delin-

eated, it is clear that petitioner could not, over respon-

dent’s timely objection, unilaterally remove respondent

from office. Because the mayor’s decision to seek re-

moval of respondent as a civil service commissioner was

not final until confirmed, after a circuit court hearing,

the trial court correctly concluded that the removal

proceeding is not controlled by Const 1963, art 6, § 28.

That provision guarantees and provides a minimum

standard for judicial review of “final decisions, findings,

rulings and orders of any administrative officer or

agency existing under the constitution or by law, which

are judicial or quasi-judicial and affect private rights or

licenses....”SeeRental Prop Owners Ass’n v Grand

Rapids, 455 Mich 246, 269; 566 NW2d 514 (1997). We

agree with petitioner that where applicable, Const

1963, art 6, § 28 does not provide for or permit review

de novo of final administrative decisions. See Viculin v

Dep’t of Civil Serv, 386 Mich 375, 392; 192 NW2d 449

(1971) (“Art 6, § 28, neither guarantees nor permits de

novo review of final decisions of the State Civil Service

520 306 M

ICH

512 [Aug

Commission. The scope of review is that stated by the

constitution, ‘whether the same are supported by com-

petent, material and substantial evidence on the whole

record.’ ”). But the mayor’s notice of removal, and more

particularly the petition for confirmation of removal, is

not a final administrative decision; it is an original

action. Consequently, Const 1963, art 6, § 28 does not

control the circuit court proceedings under MCL

38.504.

Because the circuit court had original jurisdiction

over this dispute, the court correctly determined that

petitioner, who is the proponent of facts justifying

removal, bore the burden of establishing the allegations

supporting removal by a preponderance of the evidence,

which is the default burden of proof in civil disputes.

See Kar v Hogan, 399 Mich 529, 539; 251 NW2d 77

(1976) (“The party alleging a fact to be true should

suffer the consequences of a failure to prove the truth of

that allegation.”); Residential Ratepayer Consortium v

Pub Serv Comm, 198 Mich App 144, 149; 497 NW2d 558

(1993) (where the statute did not specify the standard of

proof, the usual civil “ ‘preponderance of the evidence’ ”

quantum of proof applied). After respondent answered

petitioner’s removal notice, MCL 38.504 placed the

burden on the mayor to petition the circuit court for

confirmation of the mayor’s removal decision. The

mayor must set forth his reasons “in full” for removal.

The statute also permits respondent to appear in person

and with counsel to present his defense to the mayor’s

allegations. Further, the statute provides for a hearing in

the circuit court by stating that the court “shall hear and

decide upon said petition.” Thus, as the proponent of the

allegations supporting removal, the burden of proof rested

with the mayor. Kar, 399 Mich at 539; see also Baker v

Costello, 300 Mich 686, 689; 2 NW2d 881 (1942), and

Bunce v Secretary of State, 239 Mich App 204, 216;

2014] C

ADILLAC

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521

607 NW2d 372 (1999). Further, because the statute does

not state the quantum of proof necessary to obtain con-

firmation of removal, the default standard in civil cases,

the preponderance of the evidence, applies. See Residen-

tial Ratepayer Consortium, 198 Mich App at 149; see also

In re Moss, 301 Mich App 76, 84; 836 NW2d 182 (2013)

(“in civil cases, the Legislature’s failure to spell out a

standard of proof would usually require application of the

preponderance of the evidence standard”).

Petitioner lastly argues that permitting review de

novo of his decision to seek removal of respondent as a

civil service commissioner violates the constitutional

doctrine of the separation of powers. Const 1963, art 3,

§ 2. Petitioner contends that as the highest executive

official of the city, he has sole discretion on how to

operate the city, including whether to remove a civil

service commissioner from office. The circuit court

conducting a hearing on the executive’s removal deci-

sion, petitioner argues, intrudes on the domain of the

executive contrary to the constitutionally mandated

separation of powers. We disagree.

Our state Constitution expressly delineates three

branches of government as follows:

The powers of government are divided into three

branches; legislative, executive and judicial. No person

exercising powers of one branch shall exercise powers

properly belonging to another branch except as expressly

provided in this constitution. [Const 1963, art 3, § 2.]

This state’s courts have long held that each branch of

government must carefully balance their exercise of

power so as not to intrude on the exclusive domain of

the other branches.

Our government is one whose powers have been carefully

apportioned between three distinct departments, which

522 306 M

ICH

512 [Aug

emanate alike from the people, have their powers alike

limited and defined by the constitution, are of equal

dignity, and within their respective spheres of action

equally independent. One makes the laws, another applies

the laws in contested cases, while the third must see that

the laws are executed. This division is accepted as a

necessity in all free governments, and the very apportion-

ment of power to one department is understood to be a

prohibition of its exercise by either of the others. [Suther-

land v Governor, 29 Mich 320, 324-325 (1874).]

But the separation of powers doctrine does not require

so strict a separation that no overlap of responsibilities

and powers of the various branches of government is

permitted. Armstrong v Ypsilanti Charter Twp, 248

Mich App 573, 585; 640 NW2d 321 (2001). “ ‘If the

grant of authority to one branch is limited and specific

and does not create encroachment or aggrandizement of

one branch at the expense of the other, a sharing of

power may be constitutionally permissible.’ ” Id. (cita-

tion omitted).

In this case, as we have discussed already, the statute

as correctly interpreted by the circuit court in no way

impinges on the city executive’s decision to seek re-

moval of a civil service commissioner. Further, the

statute, as interpreted, poses no impediment to the

mayor’s deciding in the first instance what constitutes

“other good cause” for removal under the statute.

Moreover, the statute merely requires that the circuit

court perform a quintessentially judicial function of

deciding an existing case or controversy pending before

it. Lee, 464 Mich at 738. But, more fundamentally, there

can be no encroachment by the circuit court on an

executive or administrative function of a mayor con-

trary to Const 1963, art 3, § 2 because that constitu-

tional provision applies only to state government and

not local government. See Rental Prop Owners Ass’n,

2014] C

ADILLAC

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523

455 Mich at 266-268; see also Hackel v Macomb Co

Comm, 298 Mich App 311, 327; 826 NW2d 753 (2012).

We affirm and remand for further proceedings. We do

not retain jurisdiction. Respondent appellee, as prevail-

ing party, may tax costs pursuant to MCR 7.219.

IORDAN

,P.J., and M

ARKEY

and K. F. K

ELLY

, JJ., con-

curred.

524 306 M

ICH

512 [Aug

KUBICKI v SHARPE

Docket No. 317614. Submitted August 5, 2014, at Detroit. Decided

August 28, 2014, at 9:00 a.m.

DLS was born in 2002 to Holly Westmoreland (now Holly Kubicki)

and Dale Sharpe, Jr. The parties never married and only lived

together briefly. In 2005, the parties consented to a judgment in

the Wayne Circuit Court, Family Division, that awarded Holly sole

legal and physical custody of DLS and granted Dale reasonable

parenting time. In 2006, Dale moved for a change of custody. The

court entered an order that Holly and Dale share joint legal

custody and that Holly had primary physical custody. In November

2012, Dale again moved to modify the custody order on the basis

that Holly planned to join the United States military. Dale sought

primary physical custody while Holly was training or deployed

outside southeastern Michigan. A hearing referee determined that

Dale had failed to establish grounds warranting a custody review.

Dale objected to the recommendation of the referee and the circuit

court scheduled a hearing. Before the hearing was held, Holly filed

a motion for a change of domicile. The court entered an order

expanding Dale’s parenting time on January 11, 2013. The court

scheduled a single hearing concerning the custody and domicile

motions and did not address Dale’s objections to the referee’s

recommendation. Dale filed a motion seeking to modify the Janu-

ary 11, 2003 order, alleging that he had only recently learned that

Holly’s husband, Daniel Kubicki, had been arrested and charged

with domestic violence two years earlier and had pleaded guilty to

a charge of killing an animal and been sentenced to probation. On

May 3, 2013, the court entered an order awarding Dale temporary

custody and Holly weekend parenting time. The order stated that

it would remain in force and effect until there was a decision on

Holly’s motion for a change of domicile. An evidentiary hearing

was conducted in June 2013. In July 2013, the court, Lynne A.

Pierce, J., entered an opinion and order modifying parenting time.

The court prefaced its legal conclusions with the statement that

because of Holly’s active military duty, the court could not consider

a motion to change custody and would treat Dale’s motion as a

motion for a change of parenting time. The court determined that

Daniel Kubicki’s proposed status as DLS’s primary caregiver, his

2014] K

UBICKI V

HARPE

525

mental health diagnosis, his failure to complete treatment, and his

conviction for killing an animal were a change of circumstances

sufficient to reevaluate custody. The court noted that to consider a

change of parenting time amounted to considering a request to

change the child’s placement to Dale’s home. The court quoted the

language of MCL 722.27(1)(c) that provides that when a parent is

in active military duty the court may enter a temporary custody

order if there is clear and convincing evidence that it is in the best

interest of the child. The court stated that it had to determine if a

temporary change of placement was in the child’s best interest and

that Dale must show this by clear and convincing evidence. The

court, noting that Holly had asked for a change of domicile to

Kansas, found that it was appropriate to apply the best interest

factors provided in MCL 722.23, because a change of placement to

Dale’s home amounted to a change of the child’s established

custodial environment. The court proceeded to consider the best

interest factors and determined that Factors (a), (b), (c), (e), (h),

and (j) favored the parties equally, Factor (d) slightly favored Dale,

Factors (f), (g), (k), and (l) favored Dale, and Factor (i) would not

be considered because the parties did not want the court to

interview the child. Following consideration of the factors appli-

cable to a change of domicile provided in MCL 722.31(4), the court

held that Holly had failed to show by a preponderance of the

evidence that a change of domicile was warranted and that Dale

had presented clear and convincing evidence that a temporary

change of placement was in the child’s best interest. The court

entered an order that the parties continue to share joint custody,

with Dale having temporary physical placement of the child until

further order of the court. Holly appealed.

The Court of Appeals held:

1. The limitation on custodial changes stated in MCL

722.27(1)(c) applies only if a motion for a change of custody is filed

during the time a parent is in active military duty. The statute did

not foreclose a custodial change in this case because Dale sought to

change the child’s custody before Holly enlisted. The circuit court

incorrectly concluded that Holly’s intervening deployment de-

prived it of authority to change custody of the child.

2. The circuit court employed the analysis required for a

custodial change despite inaccurately styling its order as merely

concerning parenting time.

3. The trial court implicitly found that the child’s established

custodial environment lay either with Holly or with both parents.

4. Except with regard to Factors (f) and (i), the trial court’s

factual findings regarding the best-interest factors set forth in

526 306 M

ICH

525 [Aug

MCL 722.23 are well supported by the evidence. The best-interest

analysis called for in motions to change domicile is identical to that

required for motions to change custody. The touchstone for both is

the child’s best interest.

5. The great weight of the evidence supports the trial court’s

decision to score Factor (e) as favoring the parties equally. Factor

(f) concerns the moral fitness of the parties and focuses on moral

fitness as a parent. On remand, the trial court must confine its

evaluation under Factor (f) to the moral fitness of Holly and Dale

as parents. Kubicki’s conduct and mental health should not be

considered under this factor.

6. The trial court erred by failing to consider under Factor (i)

the 10-year-old child’s preference. The order of the trial court is

vacated and the matter is remanded for a new custody hearing.

Vacated and remanded.

1. C

HILD

USTODY —

OTIONS TO

HANGE

USTODY —

ARENT

’

CTIVE

ILI-

TARY

UTY

The limitation on custodial changes stated in MCL 722.27(1)(c)

applies only if a motion for a change of custody is filed during the

time a parent is in active military duty.

2. C

HILD

USTODY —

EST

NTERESTS OF THE

HILD

Factor (f) of the factors to be considered in determining the best

interests of the child under MCL 722.23 concerns the moral fitness

of the “parties” and focuses on moral fitness as a parent.

3. C

HILD

USTODY —

EST

NTERESTS OF THE

HILD —

EASONABLE

REFERENCE

OF THE

HILD

When a court deems a child to be of sufficient age to express a

preference, a factor that a trial court must consider in determining

the best interests of the child involved in a custody dispute is the

reasonable preference of the child (MCL 722.23(i)).

Robert A. Switzer for plaintiff.

Law Offices of Suzanna Kostovski (by Suzanna Kos-

tovski) for defendant.

Before: G

LEICHER

,P.J., and S

ERVITTO

and R

ONAYNE

RAUSE

,JJ.

2014] K

UBICKI V

HARPE

527

URIAM

. This child custody dispute requires us to

construe a provision of the Child Custody Act intended

to safeguard the custodial rights of a parent called to

active military duty. Holly Kubicki, an active-duty

member of the United States Army, contends that by

placing her son in the temporary custody of his father,

the circuit court deprived her of the statute’s protec-

tion. Because the father filed a change of custody

motion before the mother was called to active duty, we

find the relevant statutory language inapplicable. Nev-

ertheless, we must vacate the custody order and re-

mand for a new evidentiary hearing, as the court failed

to consider the child’s wishes.

I. UNDERLYING FACTS AND PROCEEDINGS

DLS was born in 2002 to plaintiff, Holly Westmo-

reland (now Kubicki), and defendant, Dale Sharpe, Jr.

The parties never married. Holly and Dale briefly

lived together with the child.

In 2005, they consented

to a judgment awarding Holly sole legal and physical

custody and granting Dale “reasonable parenting

time[.]”

In 2006, Dale moved for a change of custody. He

asserted that Holly had established a coguardianship of

the minor child with her sister and brother-in-law and

that due to Holly’s living arrangement, the child “does

not have his own bedroom or bed.” Holly retorted that

she obtained the guardianship so that the child would

have health insurance, maintaining that Dale, whose

child support payments were substantially in arrears,

had consented to it. She denied that her son lacked an

appropriate place to sleep. The circuit court terminated

For the sake of clarity and ease of reference, we refer to the parties by

their first names.

528 306 M

ICH

525 [Aug

the guardianship and ordered that Holly and Dale share

joint legal custody, with Holly having primary physical

custody.

Dale again moved to modify DLS’s custody in Novem-

ber 2012.

He averred that Holly planned to join the

United States military, which “will either require physi-

cal displacement of the minor son and complete disrup-

tion of the established custodial environments with

both parents, or he will be left in the custody of his

step-father.”

According to the motion, DLS expressed a

preference to live with his father “if his mother is

absent.” Dale requested an order stating that when

Holly “is in training or deployed outside southeastern

Michigan in the U.S. military, [Dale] will have primary

physical custody.” A referee ascertained that Holly had

enlisted in the Army and would start basic training in

January 2013. Holly intended to leave the child with

her husband, Daniel Kubicki, during basic training. If

subsequently stationed more than 100 miles from her

home, Holly planned to file a motion for a change of

domicile and to allow Dale expanded parenting time.

The referee determined that Dale failed to establish

grounds warranting a custody review.

Dale objected to the referee’s recommendation and

the circuit court scheduled a hearing for January 11,

2013. Before the hearing was held, Holly filed a motion

for a change of domicile. She asserted that after com-

pleting 12 weeks of basic training she would be deployed

more than 100 miles away and that “it would be in the

best interests of the child to remain primarily in her

Dale had also sought modification of the custody order in 2010, after

DLS ran away from Holly’s home in the middle of the night. That request

was denied.

Dale’s motion raised other custodial issues that are not pertinent to

our resolution of this case.

2014] K

UBICKI V

HARPE

529

family’s care and custody during active duty deploy-

ment.” Holly explained that her “Army-retired husband

and their two children” would live in on-base housing

and that Kubicki would “assume most housekeeping

and child care responsibilities.”

It is unclear whether the circuit court conducted the

hearing scheduled for January 2013.

In an order dated

January 11, 2013, the circuit court expanded Dale’s

parenting time and called for “the step-parent” to “have

parenting time during the balance of the month.” The

court did not address Dale’s objections to the referee’s

recommendation, and instead scheduled a single hear-

ing concerning the custody and domicile motions. In

April 2013, Dale filed a motion seeking modification of

the January 11, 2013 order. He alleged that he had only

recently learned that approximately two years earlier,

Kubicki was arrested and charged with domestic

violence after shooting Holly’s dog. According to

Dale’s motion, Kubicki ultimately pleaded guilty to a

charge of “killing an animal” and was sentenced to

two years’ probation. The motion further averred

that, while in Kubicki’s care, the child had been tardy

from school on nine occasions and “wears dirty

clothes,” and that Kubicki did not help the child with

his homework.

Daniel Kubicki has custody of a child born from an earlier relation-

ship. He and Holly also have a child together.

This Court has struggled to obtain the entire circuit court record in

this case. The record initially produced was woefully incomplete. This

Court’s subsequent record requests have yielded only portions of the

missing record items. The circuit court’s disorganized and inefficient

approach to its basic recordkeeping obligation has unnecessarily delayed

and complicated our review. We remind the circuit court that the court

rules require production of a complete record, “except for those things

omitted by written stipulation of the parties.” MCR 7.210(G). No such

stipulation was filed. In the future, the circuit court is advised to produce

the entire record when requested to do so by this Court.

530 306 M

ICH

525 [Aug

On May 3, 2013, the circuit court entered an order

awarding Dale “temporary custody,” with Holly granted

weekend parenting time upon her return from basic

training. The order concluded: “This order shall remain

in force and effect until there is a decision on [Holly’s]

motion for change of domicile.”

At the outset of the June evidentiary hearing, the

circuit court characterized the issue presented as in-

volving Holly’s change of domicile. The court acknowl-

edged awareness of the pertinent language of MCL

722.27(1)(c) concerning the active military duty of a

parent. Regarding Dale’s motion to change custody, the

circuit court stated:

One of the other things that we talked about is whether

this is a motion for change of custody and whether the

Court has to look at all the best interests factors in making

a determination on this matter. We will be moving forward

with mother’s Motion for Change of Domicile, and the

Court will be looking at the factors that are involved with

that, and then based on the facts the Court will have to

make the determination of whether I have to apply the best

interests factors to that.

Holly testified that she enlisted in the Army on

January 2, 2013, completed basic training, and deployed

to Fort Riley, Kansas, in May 2013. She described her

job as a cook required her to work from 4:00 a.m. until

1:30 p.m. Holly secured a four-bedroom house on the

base located in a community designated for families.

She contemplated that Kubicki would care for the

children during the morning, pack their lunches, and

walk them to school. She would assume parenting

responsibilities in the afternoon.

The focus of the hearing then turned to Kubicki’s

2011 arrest. Holly recounted that on the day of his

arrest, she and Kubicki had a “big fight” about her

2014] K

UBICKI V

HARPE

531

12-pound miniature Doberman pinscher. The dog had

bitten Kubicki and the children on many occasions, and

Kubicki insisted that she get rid of it. The argument

escalated. Kubicki took Holly’s identification papers and a

cable modem. Holly responded by telling Kubicki that she

had hidden something of his. The two then fought over a

phone charger, which broke. Kubicki threw Holly’s dog

across the kitchen, and the two moved their dispute

outside. While Kubicki choked the dog, Holly bit Kubicki’s

wrist. Although Holly claimed in a written statement that

Kubicki had pulled her hair, she recanted at the hearing,

asserting that he merely “pulled” his fingers through it.

When she stopped biting Kubicki, she kicked Kubicki’s

dog. He retrieved a pistol from the home, held her minia-

ture pinscher in the air by the collar, and shot it in the

head at point-blank range.

Holly told the police that she tried to leave the home

with the children, but Kubicki forbade her from leaving

with his son that was born from an earlier relationship.

After she called 911, she and the children fled the scene.

The police arrested Kubicki and seized two pistols and

eight rifles from the home.

The prosecutor charged Kubicki with killing an ani-

mal, a four-year felony under MCL 750.50b, and use of

a firearm in the commission of a felony in violation of

MCL 750.227b. Kubicki pleaded guilty to the charge of

killing an animal in exchange for dismissal of the

felony-firearm charge. The court sentenced him to a

two-year term of probation during which he was or-

dered to complete an anger-management program and a

residential treatment program for posttraumatic stress

disorder (PTSD) offered by the Veterans Administra-

tion (VA). Holly admitted that Kubicki had never en-

tered the residential treatment program, insisting that

he did not suffer from PTSD.

532 306 M

ICH

525 [Aug

Kubicki explained that he had served for 6

years in

the Army and was medically discharged after a roadside

bomb explosion fractured several bones in his cervical

spine. The Army considers him 30% disabled and able to

work. Kubicki admitted killing the dog, but expressed

his belief that he had acted “in self defense from a dog

that bit me[.]” Contrary to his wife’s testimony, Kubicki

conceded that he suffered from PTSD and that he had

been treated for this disorder on approximately five

occasions before the dog incident. Kubicki acknowl-

edged that his plea agreement required him to obtain

residential treatment for PTSD, but claimed that he

had not been permitted to enroll because the VA pro-

gram had no room for him. He claimed that he success-

fully completed the anger-management class. Despite

having been diagnosed with “major depressive disor-

der” by the VA, Kubicki denied suffering from this

condition and admitted that he did not take his pre-

scribed antidepressant medication.

The circuit court engaged in the following dialogue

with Kubicki:

The Court:... [D]o you have something from [the] VA

Hospital or can you provide the Court with anything showing

that you have completed your treatment for [PTSD] and

you’re no longer considered to have that condition?

Kubicki: I’m sure I can get with Dr. Smith or something

on that, your Honor.

The Court: You do understand that that’s the essence of

this case, right?

Kubicki: Yes, your Honor.

The Court: You do understand that, right?

Kubicki: I do now, your Honor.

The Court: You understand that the reason we’re here is

that [Dale] is worried about the safety of his son in your

care and custody because of your [PTSD], you do under-

stand that, right?

2014] K

UBICKI V

HARPE

533

Kubicki: Yes, your Honor.

Dale testified that he works full-time as a diesel

technician, is married, and has no other children. He

shared his concern that Kubicki would act impulsively

due to the PTSD and expressed dismay at the prospect

of not being able to see his son regularly.

At the close of the evidentiary hearing, the circuit

court first stated:

[T]here is a statute that says the Court cannot change

custody when one parent is in the active military. What the

Court can do is order a temporary placement of the child

with the other parent if I feel it’s appropriate based on

clear and convincing evidence which is a fairly high stan-

dard of proof. So the Court has to be convinced based on

that standard that it would be better that it’s in [DLS’s]

best interests that he stay with his father if I were to make

that ruling.

The court then observed that its most recent custody

order had only temporarily changed custody, continu-

ing:

And I want to state for the record that that order really

should have said temporary -- that there is a temporary

placement with father, that the parenting time -- that he’s

the primary placement of the child for parenting time

purposes, it’s not actually a change of custody.

I don’t know if I said that as clearly as I could have, but

even though the order says temporary custody of the minor

child is transferred to [Dale], it’s really that the parenting

time was changed to allow the child to be at dad’s primarily

while mom was at her basic training, because this Court

doesn’t have the authority to enter a custody change under

these circumstances.

The court opined that, “from the Court’s point of

view, this case hinges on whether Mr. Kubicki has

received sufficient treatment for the Court to be com-

534 306 M

ICH

525 [Aug

fortable that [DLS] should continue to be living with his

mother.” The court explained that it lacked sufficient

evidence regarding Kubicki’s recovery from his PTSD

and directed him to provide documentation regarding

the current status of his PTSD within two weeks.

In a subsequent order the court reiterated:

Daniel Kubicki shall procure and provide to the parties

and the court, through [Holly’s] counsel, a report by a

medical professional or any other information on his diag-

nosis, treatment plan, and/or medical discharge regarding

[PTSD] and Major Depressive Disorder. This must be done

by 28 June 2013 or the Court will decide without this

information.

In July 2013, the circuit court issued a written

“Opinion and Order Modifying Parenting Time[.]” Af-

ter summarizing the evidence produced during the

hearing, the circuit court found that Kubicki had not

“sought or obtained any additional treatment for his

[PTSD]” since completing the required anger-

management therapy. The court continued: “He did not

provide the Court with a psychological evaluation nor

did he ever attend an in-patient program for [h]is

[PTSD].”

The circuit court prefaced its legal conclusions with

the statement that: “Due to [Holly’s] active military

duty this Court cannot consider a change of custody....

Therefore, [the] Court will treat [Dale’s] motion as a

motion for Change of Parenting Time.” The court found

that Kubicki’s proposed status as DLS’s primary car-

egiver, his “mental health diagnosis, his failure to

complete treatment, and his conviction for willfully

killing the family dog” yielded a change of circum-

stances sufficient to reevaluate custody. The court con-

tinued:

2014] K

UBICKI V

HARPE

535

To consider a change of parenting time i[n] this instance

amounts to a request to change the child’s placement to

[Dale’s] home. MCL [722.27(1)(c)] states:

. . . [when] a parent is in active military duty... the

Court may enter a temporary custody order if there is clear

and convincing evidence that it is in the best interest of the

child.

The Court must determine if a temporary change of

placement is in the child’s best interest. [Dale] must show

this by clear and convincing evidence.

Since [Holly] has asked for a change in domicile to the

state of Kansas, this Court finds that it is appropriate to

apply the 12 best interest factors, since a change of

placement to [Dale’s] home amounts to a change of the

child’s established custody environment.

The court proceeded to the statutory best interests

factors,

finding that Factors (a),(b), (c), (e), (h), and (j)

MCL 722.23 provides the statutory best interest factors “to be

considered, evaluated, and determined by the court.” These factors are:

(a) The love, affection, and other emotional ties existing

between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give

the child love, affection, and guidance and to continue the educa-

tion and raising of the child in his or her religion or creed, if any.

provide the child with food, clothing, medical care or other

remedial care recognized and permitted under the laws of this

state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfac-

tory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or

proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties involved.

(h) The home, school, and community record of the child.

536 306 M

ICH

525 [Aug

favored the parties equally. Factor (d), the court deter-

mined, “slightly” favored Dale, while Factors (f), (g),

(k), and (l) favored Dale. In regard to Factor (i), the

preference of the child, the court stated, “The parties

did not want the Court to interview the child. There-

fore, his preference has not been considered by the

Court.”

The court then turned to the D’Onofrio

factors,

observing that Holly was required to show by a prepon-

derance of the evidence that a change of domicile would

serve the child’s best interest. Although the court found

that the move to on-base housing “has the capacity to

improve the quality of life for [Holly’s] family” and that

Holly would likely comply with Dale’s increased parent-

ing time, the court apparently determined that Holly

had not demonstrated by an evidentiary preponderance

that a change of domicile was warranted. The court

found that Dale “has met his burden of proof by clear

and convincing evidence that a temporary change of

placement is in the child’s best interest.” The court

ordered that the parties continue to share joint custody,

(i) The reasonable preference of the child, if the court considers

the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parties to facilitate

and encourage a close and continuing parent-child relationship

between the child and the other parent or the child and the

parents.

(k) Domestic violence, regardless of whether the violence was

directed against or witnessed by the child.

(l) Any other factor considered by the court to be relevant to a

particular child custody dispute.

D’Onofrio v D’Onofrio, 144 NJ Super 200; 365 A2d 27 (1976), aff’d

144 NJ Super 352 (1976). The D’Onofrio factors have been codified in

MCL 722.31(4). Rittershaus v Rittershaus, 273 Mich App 462, 469-470;

730 NW2d 262 (2007).

2014] K

UBICKI V

HARPE

537

with Dale having “temporary physical placement of the

child until further order of the Court.” Holly now

appeals.

II. ANALYSIS

Three different standards govern our review of a

circuit court’s decision in a child-custody dispute. We

review findings of fact to determine if they are against

the great weight of the evidence, we review discretion-

ary decisions for an abuse of discretion, and we review

questions of law for clear error. Fletcher v Fletcher, 447

Mich 871, 876-877; 526 NW2d 889 (1994). A clear legal

error occurs when the circuit court “incorrectly

chooses, interprets, or applies the law....”Id. at 881.

De novo review applies to underlying issues of statutory

interpretation. People v Smith-Anthony, 296 Mich App

413, 416; 821 NW2d 172 (2012).

Holly first challenges the circuit court’s interpreta-

tion of the “active military duty” provision of the Child

Custody Act, MCL 722.27(1)(c). We agree with Holly

that the circuit court misconstrued the statute. The

circuit court’s flawed legal analysis does not yield a

victory for Holly, however, as under the circumstances

presented, the statute plainly permitted a custodial

change.

We begin by examining the pertinent language of

MCL 722.27(1)(c):

If a motion for change of custody is filed during the time a

parent is in active military duty, the court shall not enter

an order modifying or amending a previous judgment or

order, or issue a new order, that changes the child’s

538 306 M

ICH

525 [Aug

placement that existed on the date the parent was called to

active military duty, except the court may enter a tempo-

rary custody order if there is clear and convincing evidence

that it is in the best interest of the child.

When interpreting a statute, we must discern and give

effect to the Legislature’s intent. We accomplish this

task by giving the words selected by the Legislature

their plain and ordinary meanings, and by enforcing the

statute as written. In re Petition of Attorney General for

Investigative Subpoenas, 282 Mich App 585, 591; 766

NW2d 675 (2009).

The circuit court declared that “[d]ue to [Holly’s]

active military duty this Court cannot consider a

change of custody.” Contrary to this conclusion, the

limitation on custodial changes stated in MCL

722.27(1)(c) applies only “[i]f a motion for change of

custody is filed during the time a parent is in active

military duty....”(Emphasis added.) Dale brought his

change of custody motion in November 2012, approxi-

mately two months before Holly enlisted in the Army.

Because Dale sought to change the child’s custody prior

to Holly’s enlistment, the statute did not foreclose a

custodial change. Thus, the circuit court incorrectly

concluded that Holly’s intervening deployment de-

prived it of authority to change DLS’s custody. Conse-

quently, the circuit court need not have disguised its

order by characterizing it as “modifying parenting

time,” when in reality the order changed the child’s

custody. Given the timing of Dale’s motion, the text of

MCL 722.27(1)(c) erected no barrier to this result.

Despite inaccurately styling its order as merely af-

fecting parenting time, the circuit court employed the

analysis required for a custodial change. As prescribed

in Vodvarka v Grasmeyer, 259 Mich App 499, 508-509;

675 NW2d 847 (2003), the court first considered

2014] K

UBICKI V

HARPE

539

whether Dale had established a change of circum-

stances or proper cause for a custodial change under

MCL 722.27(1)(c). The court determined that Kubicki’s

enhanced role in the child’s life fulfilled this standard,

and Holly has not challenged this finding. The circuit

court’s consideration of the Vodvarka threshold sig-

naled its awareness that custody rather than parenting

time was at stake.

The next step in a court’s custody analysis requires a

determination of the appropriate burden of proof. The

child’s established custodial environment governs this

decision. A court may not modify or amend a previous

judgment or issue a new custody order that changes a

child’s established custodial environment “unless there

is presented clear and convincing evidence that it is in

the best interest of the child.” MCL 722.27(1)(c). A

custodial environment “is established if over an appre-

ciable time the child naturally looks to the custodian in

that environment for guidance, discipline, the necessi-

ties of life, and parental comfort.” Id. Whether an

established custodial environment exists is a question

of fact to which the great weight of the evidence

standard applies. Foskett v Foskett, 247 Mich App 1, 8;

634 NW2d 363 (2001). In evaluating this issue, the

focus is on the care of the child during the period

preceding the custody trial. Hayes v Hayes, 209 Mich

App 385, 388; 532 NW2d 190 (1995).

The circuit court failed to articulate any findings

specifically identifying DLS’s established custodial en-

The statutory requirement for a threshold finding of proper cause or

a change of circumstances does not necessarily control a case involving

modification of parenting time “absent a conclusion that a change in

parenting time will result in a change in an established custodial

environment.” Shade v Wright, 291 Mich App 17, 25-27; 805 NW2d 1

(2010). Here, the court failed to clearly elucidate a finding regarding the

child’s established custodial environment.

540 306 M

ICH

525 [Aug

vironment. Nevertheless, the court required Dale to

prove the child’s best interests “by clear and convincing

evidence.” Thus, the court implicitly found that the

child’s established custodial environment lay either

with Holly or with both parents. Because the court held

Dale to the highest standard of proof applicable to

custody proceedings, the omission qualifies as harmless

error. On remand, we instruct the court to explicitly

state its established custodial environment finding and

to support it with reference to pertinent facts.

After finding grounds for a custodial evaluation, the

circuit court made findings and rendered conclusions

regarding the 12 best-interest factors set forth in MCL

722.23. By proceeding in this fashion, the court ana-

lyzed the evidence in the manner applicable to custody

challenges. We discuss the court’s best-interest analysis

later in this opinion. For now, it suffices that we discern

no statutory basis arising from Holly’s deployment to

disturb the court’s finding that a temporary change in

custody would serve DLS’s best interests.

Holly next contends that several of the circuit court’s

best-interest findings contravened the great weight of

the evidence. Except with regard to Factors (f) and (i),

we find the court’s factual findings well supported by

the evidence.

We begin by reviewing the context of the court’s

best-interest analysis. After deciding that MCL

722.27(1)(c) precluded it from entertaining Dale’s mo-

The circuit court’s “temporary” custodial order may have precipi-

tated a change in the child’s established custodial environment. The

determination remains intrinsically factual. The existence of the order,

standing alone, does not establish a custodial environment. See Baker v

Baker, 411 Mich 567; 309 NW2d 532 (1981).

2014] K

UBICKI V

HARPE

541

tion to change DLS’s custody, the circuit court consid-

ered Holly’s request for a change of domicile. The

court’s formulation of the relevant domicile inquiry for

the most part comported with the procedure set forth in

Rains v Rains, 301 Mich App 313, 325; 836 NW2d 709

(2013):

A motion for a change of domicile essentially requires a

four-step approach. First, a trial court must determine

whether the moving party has established by a preponder-

ance of the evidence that the factors enumerated in MCL

722.31(4)... support a motion for a change of domicile.

Second, if the factors support a change in domicile, then

the trial court must then determine whether an established

custodial environment exists. Third, if an established cus-

todial environment exists, the trial court must then deter-

mine whether the change of domicile would modify or alter

that established custodial environment. Finally, if, and only

if, the trial court finds that a change of domicile would

modify or alter the child’s established custodial environ-

ment must the trial court determine whether the change in

domicile would be in the child’s best interests by consider-

ing whether the best-interest factors in MCL 722.23 have

been established by clear and convincing evidence.

The best-interest analysis called for in motions to

change domicile is identical to that required for motions

to change a child’s custody. In both circumstances, the

touchstone is the child’s best interest. In reviewing

Holly’s best-interest arguments, we remain mindful

that “a trial court’s findings on each factor should be

affirmed unless the evidence ‘ “clearly preponderates in

the opposite direction.” ’ ” Fletcher, 447 Mich at 879,

quoting Murchie v Standard Oil Co, 355 Mich 550, 558;

94 NW2d 799 (1959), quoting FinchvWRRoach, Co,

299 Mich 703, 713; 1 NW2d 46 (1941).

Holly first insists that the circuit court erred by

finding that Factor (d), concerning “[t]he length of time

the child has lived in a stable, satisfactory environment,

542 306 M

ICH

525 [Aug

and the desirability of maintaining continuity,” slightly

favored Dale. The circuit court premised its decision on

the facts that “[t]he child has lived his entire life in this

area, has attended the same school, has extended family

in the area and has thrived here.” Holly argues that the

court would have found differently had it acknowledged

that the child’s current stable living environment in-

cluded her two other children. The circuit court’s

measurement of this factor as weighing only slightly in

Dale’s favor suggests a close call and that DLS’s rela-

tionship with his stepbrother and his half brother

played a part in the court’s evaluation. The court’s

findings of fact specifically mention the other two

children. “[T]he trial court’s failure to address the

myriad facts pertaining to a factor does not suggest that

the relevant among them were overlooked.” Fletcher,

447 Mich at 883-884. Accordingly, we find no reason to

disturb the circuit court’s conclusion.

Holly next contends that the circuit court’s findings

concerning Factor (e), which addresses “[t]he perma-

nence, as a family unit, of the existing or proposed

custodial home or homes.” Factor (e) requires a court to

“weigh all the facts” bearing on which parent likely can

“best provide” the child “the benefits of a custodial

home that is marked by permanence, as a family unit.”

Ireland v Smith, 451 Mich 457, 466; 547 NW2d 686

(1996). The circuit court found that this factor favored

both parties equally, stating that DLS “has lived most of

his life with [Holly] and firs[t,] her extended family, and

then with her husband and their [two] children.

[Dale]’s family has also been a stable family unit.” Holly

asserts that the court should have given greater weight

to the fact that in Dale’s custody, DLS would no longer

live with the other two children. We find no error. The

stability of DLS’s living arrangement is at the core of

Factors (d) and (e). While DLS would be separated from

2014] K

UBICKI V

HARPE

543

his brothers if Dale was granted custody, moving to

Kansas would result in a similar environmental disrup-

tion. The great weight of the evidence supports the

neutrality of Factor (e).

Holly also criticizes the circuit court’s finding that

Factor (f), which addresses the moral fitness of the

parties, favored Dale. The court’s brief explanation for

this finding provided: “The main concern to the Court

in this factor is [Kubicki’s] mental health issues and his

felony conviction arising out of a dispute with [Holly].”

Holly correctly points out that this factor concerns the

parties’ “moral fitness.” Further, it focuses on moral

“fitness as a parent.” Fletcher, 447 Mich at 887. In

Fletcher, the Supreme Court instructed that when

evaluating this factor,

courts must look to the parent-child relationship and the

effect that the conduct at issue will have on that relation-

ship. Thus, the question under factor f is not “who is the

morally superior adult”; the question concerns the parties’

relative fitness to provide for their child, given the moral

disposition of each party as demonstrated by individual

conduct. [Id.]

Kubicki’s conduct and mental health may be considered

under other best interest factors. On remand, the court

must confine itself to an evaluation of the moral fitness

of Holly and Dale as parents.

We discern a second error that mandates remand for

a new best-interest hearing. The circuit court legally

and harmfully erred by failing to consider the child’s

wishes when it made its best-interest determination. In

regard to Factor (i), the court stated, “The parties did

not want the Court to interview the child. Therefore,

his preference has not been considered by the Court.”

Regardless whether the parties wished for an interview,

the court was affirmatively required to consider the

544 306 M

ICH

525 [Aug

child’s preference. “One of the...factors a trial judge

must consider in a custody dispute is the reasonable

preference of the child, if the court deems the child to be

of sufficient age to express preference.” Bowers v Bow-

ers, 190 Mich App 51, 55; 475 NW2d 394 (1991) (quo-

tation marks and citation omitted). “Children of six,

and definitely of nine, years of age are old enough to

have their preferences given some weight in a custody

dispute, especially where there was a prior custody

arrangement.” Id. at 55-56. At the time of the eviden-

tiary hearing, the child was 10 years old, and as such,

was “definitely...oldenough to have [his] preference[]

given some weight....”Id. “The trial court’s failure to

interview the child[] was error requiring reversal.” Id.

at 56. Because the circuit court did not consider DLS’s

preference, we must vacate the circuit court’s order and

remand for a new custody hearing. On remand, the

court may continue the child’s placement with his

father if the court again concludes that clear and

convincing evidence of the child’s best interest supports

that placement. In making this determination, the

court must reevaluate the child’s established custodial

environment and must also reanalyze the best-interest

factors. In resolving both issues, the court should con-

sider all up-to-date information brought to its atten-

tion.

We vacate the circuit court’s opinion and order and

remand for a new custody hearing. We do not retain

jurisdiction.

LEICHER

,P.J., and S

ERVITTO

and R

ONAYNE

RAUSE

JJ., concurred.

2014] K

UBICKI V

HARPE

545

GARDNER v DEPARTMENT OF TREASURY

NGO v DEPARTMENT OF TREASURY

MASELLI v DEPARTMENT OF TREASURY

Docket Nos. 315531, 315684, and 317171. Submitted June 4, 2014, at

Lansing. Decided September 9, 2014, at 9:00 a.m. Leave to appeal

sought.

After selling their homes, James and Susan Gardner, Liem and

Alecia Ngo, and John and Jennifer Maselli sought refunds from

the Department of Treasury of the transfer tax they had paid on

the sales. The department denied the refund requests. Petitioners

appealed in the Tax Tribunal, which reversed the department’s

decision in all three cases, holding that petitioners were entitled to

refunds. The department appealed, and the appeals were consoli-

dated by the Court of Appeals.

The Court of Appeals held:

Under MCL 207.523(1), the State Real Estate Transfer Tax Act

(SRETTA) generally imposes a tax on written instruments when

the instrument is recorded. However, a written instrument is

exempt from the tax, under MCL 207.526(u), when (1) a principal

residence exemption was claimed regarding the property under

MCL 211.7cc, and (2) at the time the property was conveyed, the

state equalized value (SEV) was less than or equal to the SEV on

the date the property was acquired. But MCL 207.526(u) also

contains a penalty clause, which states that after an exemption is

claimed under Subsection (u), if the sale or transfer of property is

found by the Treasurer to have been at a value other than true

cash value, then a penalty equal to 20% of the tax shall be assessed

in addition to the tax due under the act to the seller or transferor.

The penalty clause requires a comparison of “value” to “true cash

value.” SRETTA, in MCL 207.522(g), defines the word “value” as

the current or fair market worth in terms of legal monetary

exchange at the time of transfer. Accordingly, when considering

whether petitioners were entitled to a refund of the transfer taxes

they paid, the Treasurer was required to consider how much

petitioners were paid for their properties. The statute then re-

quired the Treasurer to compare that value to the true cash value

546 306 M

ICH

546 [Sept

of each property. Although SRETTA does not define the term “true

cash value,” the General Property Tax Act (GPTA), in MCL

211.27(1), defines it as the usual selling price at the place where

the property is at the time of assessment, being the price that

could be obtained for the property at a private sale. SRETTA and

the GPTA must be read in pari materia because they relate to the

same subject and share a common purpose—taxation. Under the

GPTA, the SEV represents 50% of the true cash value of a property

for taxation purposes. MCL 207.526(u) plainly states that if the

property was conveyed for a value different than its true cash

value, the conveyance was not exempt from the transfer tax and

the penalty clause applies. The Gardners sold their property for

$875,000, although its true cash value was $749,600 (the SEV of

$374,800 multiplied by two). The Ngos sold their property for

$464,000, although its true cash value was $439,720 (the SEV of

$219,860 multiplied by two). The Masellis sold their property for

$470,000, although its true cash value was $397,060 (the SEV of

$198,530 multiplied by two). Because none of the petitioners sold

their property for its true cash value, the petitioners were not

entitled to the exemption, and the Tax Tribunal erred when it

ordered that the transfer taxes paid by petitioners be refunded.

Reversed.

WENS

, J., dissenting, would have affirmed the judgment of the

Tax Tribunal. The purpose of the exemption is to provide relief for

a homeowner in a declining market when the property’s SEV has

decreased from the time of purchase to the time of sale. The

majority’s interpretation of the penalty clause renders the statute

effectively nugatory because a property will almost never sell for

exactly twice the SEV. The term “true cash value” is synonymous

with fair market value and refers to the probable price that a

willing buyer and a willing seller would arrive at through arm’s-

length negotiation. In this case, petitioners were entitled to the

exemption because the properties were the principal residences of

the sellers, the properties had SEVs at the time of conveyance that

were less than or equal to the SEVs those properties had at the

time they were acquired, and the properties were sold at prices

resulting from arm’s-length negotiations.

AXATION —

ROPERTY —

RANSFER

AXES —

XEMPTION —

RUE

ASH

ALUE

Under MCL 207.526(u), a written instrument is exempt from the

transfer tax imposed under the State Real Estate Transfer Tax Act

when (1) a principal residence exemption was claimed regarding

the property under MCL 211.7cc, (2) at the time the property was

conveyed, the state equalized value (SEV) was less than or equal to

2014] G

ARDNER V

REAS

’

547

the SEV on the date the property was acquired, and (3) the

property was conveyed for its true cash value; the SEV represents

50% of the true cash value of a property for taxation purposes; if

the sale or transfer of property is found by the Treasurer to have

been at a value other than true cash value, then a penalty equal to

20% of the tax shall be assessed in addition to the tax due under

the act to the seller or transferor.

1-800-LAW-FIRM, PLLC (by Joshua T. Shillair), for

James and Susan Gardner, Liem and Alecia Ngo, and

John and Jennifer Maselli.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Matthew Schneider, Chief Legal

Counsel, B. Eric Restuccia, Deputy Solicitor General,

and Matthew B. Hodges, Assistant Attorney General,

for the Department of Treasury.

Before: C

AVANAGH

,P.J., and O

WENS

and S

TEPHENS

,JJ.

AVANAGH

,P.J. In these consolidated appeals, the

Department of Treasury (respondent) appeals as of

right judgments of the Michigan Tax Tribunal (Tax

Tribunal) awarding refunds of the transfer tax that

each petitioner paid pursuant to the State Real Estate

Transfer Tax Act (SRETTA) when they sold their

homes, on the ground that the conveyances were ex-

empt under MCL 207.526(u). We reverse.

The facts are not disputed. All of the petitioners were

entitled to the principal residence exemption under

MCL 211.7cc. And at the time each petitioner sold their

home, the state equalized value (SEV) was less than the

SEV at the time of their purchase. In particular, peti-

tioners James and Susan Gardner purchased their

home in 2008 when the SEV was $464,300, but sold it

for $875,000 when the SEV was $374,800. Petitioners

Liem and Alecia Ngo purchased their home in 2007

when the SEV was $321,180, but sold it for $464,000

548 306 M

ICH

546 [Sept

PINION OF THE

OURT

when the SEV was $219,860. Petitioners John and

Jennifer Maselli purchased their home in 2004 when

the SEV was $303,370, but sold it for $470,000 when

the SEV was $198,530.

Upon the sale of their homes, each petitioner paid the

transfer tax under SRETTA, MCL 207.523, and then

requested a refund from respondent under MCL

207.526(u), which provides that certain written instru-

ments and transfers of property are exempt from the

transfer tax, including:

A written instrument conveying an interest in property

for which an exemption is claimed under section 7cc of the

general property tax act, 1893 PA 206, MCL 211.7cc, if the

state equalized valuation of that property is equal to or

lesser than the state equalized valuation on the date of

purchase or on the date of acquisition by the seller or

transferor for that same interest in property. If after an

exemption is claimed under this subsection, the sale or

transfer of property is found by the treasurer to be at a

value other than the true cash value, then a penalty equal

to 20% of the tax shall be assessed in addition to the tax due

under this act to the seller or transferor. [MCL 207.526(u).]

Respondent denied each petitioner’s request for a re-

fund of the transfer tax, concluding that they were not

entitled to the exemption because each property sold for

more than its “true cash value.” Respondent inter-

preted the penalty clause phrase “true cash value” as

meaning two times the SEV, consistent with the annual

property tax assessment process. Thereafter, each peti-

tioner appealed in the Tax Tribunal.

In each appeal, the Tax Tribunal held that the first

sentence of MCL 207.526(u) is unambiguous and sets

forth two elements that must be met to qualify for the

transfer tax exemption: (1) a principal residence exemp-

tion was claimed regarding the subject property under

MCL 211.7cc, and (2) at the time the subject property

2014] G

ARDNER V

REAS

’

549

PINION OF THE

OURT

was conveyed, the SEV was less than or equal to the SEV

on the date the property was acquired. However, the Tax

Tribunal opined, when the first sentence of the statute is

read in conjunction with the second sentence—the pen-

alty clause—the statute becomes ambiguous because the

penalty clause would only allow an exemption when the

value or sale price of the property is the same as its true

cash value, which constituted an absurdity that was

unintended by the Legislature. In reaching this conclu-

sion, the Tax Tribunal rejected respondent’s argument

that true cash value means two times the SEV, noting that

MCL 211.27(1) defines “true cash value” as “the usual

selling price” and “the price that could be obtained for

the property at private sale....” Further, the Tax

Tribunal held that respondent failed to carry its burden

of proving that the penalty provision applied and,

therefore, each petitioner was entitled to a refund of the

transfer tax. Respondent appealed in each case, and the

appeals were consolidated. Gardner v Dep’t of Treasury,

unpublished order of the Court of Appeals, entered

December 10, 2013 (Docket Nos. 315531, 315684, and

317171).

Respondent argues that the Tax Tribunal erred when

it determined that each conveyance was exempt from

transfer tax because, according to respondent, petition-

ers sold their properties for more than the true cash

value of each property. We agree.

When the facts are not in dispute and there is no

claim of fraud, decisions of the Tax Tribunal are re-

viewed to determine whether the tribunal made an

error of law or adopted a wrong legal principle. Mich

Props, LLC v Meridian Twp, 491 Mich 518, 527-528;

817 NW2d 548 (2012). We review de novo issues of

statutory interpretation. McAuley v Gen Motors Corp,

457 Mich 513, 518; 578 NW2d 282 (1998).

550 306 M

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Generally, SRETTA imposes a tax upon written in-

struments when the instrument is recorded. MCL

207.523(1). However, MCL 207.526 sets forth several

exemptions and provides, in relevant part:

The following written instruments and transfers of

property are exempt from the tax imposed by this act:

***

(u) A written instrument conveying an interest in

property for which an exemption is claimed under section

7cc of the general property tax act, 1893 PA 206, MCL

211.7cc, if the state equalized valuation of that property is

equal to or lesser than the state equalized valuation on the

date of purchase or on the date of acquisition by the seller

or transferor for that same interest in property. If after an

exemption is claimed under this subsection, the sale or

transfer of property is found by the treasurer to be at a

value other than the true cash value, then a penalty equal

to 20% of the tax shall be assessed in addition to the tax due

under this act to the seller or transferor.

The foremost rule of statutory interpretation “is to

discern and give effect to the intent of the Legislature.”

Whitman v City of Burton, 493 Mich 303, 311; 831

NW2d 223 (2013). Each word or phrase of a statute is

given its commonly accepted meaning, unless a word or

phrase is expressly defined, and then courts must apply

it in accordance with that definition. McAuley, 457 Mich

at 518. Unambiguous language is given the intent

clearly expressed and the statute is enforced as written.

Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596

NW2d 119 (1999). Judicial construction of unambigu-

ous language is not permitted. Id. Interpretation strives

to give effect to every phrase, clause, and word in a

statute. Id. at 237. “To discern the true intent of the

Legislature, the statutes must be read together, and no

2014] G

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one section should be taken in isolation.” Apsey v Mem

Hosp, 477 Mich 120, 132 n 8; 730 NW2d 695 (2007).

The parties agree with the Tax Tribunal that the first

sentence of MCL 207.526(u) imposes two requirements

for the exemption to apply: (1) a principal residence

exemption was claimed regarding the subject property

under MCL 211.7cc, and (2) at the time the subject

property was conveyed, the SEV was less than or equal

to the SEV on the date the property was acquired. The

dispute regards the statute’s second sentence, the pen-

alty clause.

Respondent argues that the Tax Tribunal failed to

accord the proper and distinct meanings to the word

“value” and the phrase “true cash value” used in the

penalty clause. The word “value” is defined in SRETTA

as “the current or fair market worth in terms of legal

monetary exchange at the time of the transfer.” MCL

207.522(g). However, respondent argues, “[T]rue cash

value as used in MCL 207.526(u) means the true cash

value assigned by the assessor in that year. And, be-

cause property is assessed at 50% of the true cash value,

subject to county equalization, true cash value will

always be two times the state equalized value.” Respon-

dent further argues that the statute’s use of the phrase

“other than” means “greater than” with respect to the

true cash value because that construction allows for a

transfer tax exemption in a declining market.

To the contrary, petitioners argue, the General Prop-

erty Tax Act (GPTA) defines “true cash value” as the

usual selling price or price that could be expected at a

private sale of the property. MCL 211.27(1). And “true

cash value,” according to petitioners, is synonymous

with “fair market value.” See CAF Investment Co v

State Tax Comm, 392 Mich 442, 450; 221 NW2d 588

(1974). Further, SRETTA and the GPTA must be read

552 306 M

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546 [Sept

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in pari materia because they both relate to the same

subject, taxation, and SRETTA specifically refers to the

GPTA and its terms. Accordingly, petitioners argue, to

establish that the penalty clause was applicable here,

respondent was required to prove that petitioners’

properties were sold for a value other than fair market

value, i.e., the price that a willing buyer and a willing

seller would arrive at through arm’s-length negotiation.

Because respondent failed to provide any such evidence,

the Tax Tribunal properly found that the penalty clause

did not apply and petitioners were entitled to a refund

of the transfer tax they paid.

There is some merit to both parties’ arguments on

appeal. We agree with respondent that the Tax Tribunal

erred as a matter of law by concluding that MCL

207.526(u) is ambiguous when its two sentences are

considered together. Although the Tax Tribunal’s inter-

pretation of a state statute is entitled to respectful

consideration, the tribunal’s interpretation is not con-

trolling and cannot overcome a statute’s plain meaning.

See In re Rovas Complaint, 482 Mich 90, 117-118; 754

NW2d 259 (2008). The statute at issue here is not

ambiguous; the word “value” and the phrase “true cash

value” have clear meanings.

SRETTA defines the word “value”; thus, that defini-

tion controls. See McAuley, 457 Mich at 518. Specifi-

cally, MCL 207.522(g) defines “value” as “the current or

fair market worth in terms of legal monetary exchange

at the time of the transfer. The tax shall be based on the

value of the real property transferred....” See also

MCL 207.525. A well-established rule of statutory con-

struction is that statutory language must be read

within its particular context. G C Timmis & Co v

Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710

(2003). The statutory provision at issue here requires a

2014] G

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comparison of “value” to “true cash value” for purposes

of property taxation. Thus, “value” refers to the worth,

in monetary terms, of what was exchanged for the real

property in which the exemption was claimed. This

definition is consistent with the definition provided by

Black’s Law Dictionary (7th ed), which defines “value”

as “[t]he monetary worth or price of something; the

amount of goods, services, or money that something will

command in an exchange.” And, similarly, as this Court

noted in Wolfe-Haddad Estate v Oakland Co, 272 Mich

App 323, 326; 725 NW2d 80 (2006), the definition of

“value” in Random House Webster’s College Dictionary

(1997) is: “ ‘monetary or material worth, as in com-

merce,” and “the worth of something in terms of some

medium of exchange....’”Accordingly, in these cases,

when considering whether petitioners were entitled to a

refund of the transfer taxes they paid, the Treasurer

was required to consider how much petitioners were

paid for their properties.

The statute then requires the Treasurer to compare

that “value” to the “true cash value” of the subject

property. Although SRETTA does not define “true cash

value,” the GPTA specifically defines “true cash value”

for purposes of taxation as “the usual selling price at

the place where the property to which the term is

applied is at the time of assessment, being the price that

could be obtained for the property at private sale, and

not at auction sale... or at forced sale.” MCL

211.27(1). In accordance with well-established prin-

ciples of statutory construction, statutory provisions of

SRETTA and the GPTA are in pari materia because

they relate to the same subject and share a common

purpose—taxation. See State Treasurer v Schuster, 456

Mich 408, 417; 572 NW2d 628 (1998), quoting Detroit v

Mich Bell Tel Co, 374 Mich 543, 558; 132 NW2d 660

(1965), overruled on other grounds by City of Taylor v

554 306 M

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Detroit Edison Co, 475 Mich 109, 119 (2006). Thus, we

consider the definition of “true cash value” set forth in

GPTA applicable for purposes of SRETTA.

Essentially, then, MCL 207.526(u) requires consider-

ation of how much claimants of the transfer tax exemp-

tion were paid for their properties compared to how

much their properties were worth for taxation pur-

poses. In Michigan, the true cash value, or worth, of a

property is used to assess property taxes. That is,

property must be assessed at 50% of its “true cash

value.” MCL 211.27a(1), citing Const 1963, art 9, § 3.

The manner in which the assessment occurs is pre-

scribed by law. See, for example, MCL 211.27. Gener-

ally, after the local tax assessor assesses each property

at 50% of its true cash value, the assessment rolls are

then subjected to an equalization process at both the

county level, MCL 211.34(2), and state level, MCL

209.4(1), to ensure that taxing units “have equally and

uniformly assessed property at fifty percent of its true

cash value.” Fairplains Twp v Montcalm Co Bd of

Comm’rs, 214 Mich App 365, 369; 542 NW2d 897

(1995), citing Emmet Co v State Tax Comm, 397 Mich

550, 560; 244 NW2d 909 (1976) (W

ILLIAMS

, J., dissent-

ing). See also WPW Acquisition Co v City of Troy, 250

Mich App 287, 300-301; 646 NW2d 487 (2002). Thus, as

respondent argued, the SEV represents 50% of the true

cash value of a property for taxation purposes.

And, pursuant to MCL 211.31, upon completion and

endorsement of the assessment roll, “the same shall be

conclusively presumed by all courts and tribunals to be

valid, and shall not be set aside except for causes

MCL 205.737(2) also directs the Tax Tribunal that, when determining

SEV in an assessment dispute: “The property’s state equalized valuation

shall not exceed 50% of the true cash value of the property on the

assessment date.”

2014] G

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hereinafter mentioned.” See also MCL 205.735(2) (“For

an assessment dispute as to the valuation of property or

if an exemption is claimed, the assessment must be

protested before the board of review before the tribunal

acquires jurisdiction of the dispute....”). In this case,

none of the petitioners protested their assessments or

filed an assessment appeal; therefore, petitioners’ as-

sessments are conclusively presumed to be valid with

regard to their properties. See Alhi Dev Co v Orion Twp,

110 Mich App 764, 767-768; 314 NW2d 479 (1981)

(“[T]he conclusive presumption of validity as to an

individual assessment arises only after an appeal is

decided or the time for appeal has expired with respect

to such parcel.”). Accordingly, to determine whether

each petitioner was entitled to the transfer tax exemp-

tion, the Treasurer had to compare how much was paid

for each property to the value of the SEV multiplied by

two, the property’s undisputed true cash value.

However, when considering whether a claim for exemp-

tion has merit, the Treasurer must also determine

whether the sale or transfer of property was “at a value

other than the true cash value....” MCL 207.526(u)

(emphasis added). Respondent argues that the phrase

“other than” should be construed to mean “greater than,”

consistent with an opinion by the Attorney General,

which concluded that an exemption may be claimed pro-

vided that the property is sold for “not more than” its true

cash value. OAG, 2007-2008, No. 7214, p 125 (April 3,

2008). That is, according to the Attorney General, this

penalty clause applies only if the sale price was in excess of

the true cash value of the property. Id. at p 128. However,

opinions of the Attorney General are not binding on

Michigan courts. Frey v Dep’t of Mgt & Budget, 429 Mich

315, 338; 414 NW2d 873 (1987). And we disagree with the

constructions of the phrase “other than” offered by re-

spondent and the Attorney General.

556 306 M

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546 [Sept

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Simply stated, “other than” does not mean “greater

than”; rather, it plainly means “different.” See MCL

8.3a. Thus, if the property was conveyed for a value

different than its true cash value, the conveyance is not

exempt from the transfer tax and the penalty clause

applies. Tax exemption statutes “are to be strictly

construed in favor of the taxing unit.” Ladies Literary

Club v Grand Rapids, 409 Mich 748, 753; 298 NW2d

422 (1980) (citation and quotation marks omitted).

Accordingly, if the subject property was conveyed for a

value less than or greater than its true cash value, the

conveyance is not exempt from the transfer tax and the

penalty clause applies if a claim for exemption or a

claim for a refund of the transfer tax is made. By way of

explanation, we offer the following examples: (A) if the

true cash value of the subject property is $100,000 and

it was sold for $50,000, the conveyance is not exempt

from the transfer tax; (B) if the true cash value of the

subject property is $100,000 and it was sold for

$150,000, the conveyance is not exempt from the trans-

fer tax. In the first hypothetical, the seller sold the

property for less than its fair market value; a reason-

ably prudent seller would not typically sell below fair

market value

and may have structured the sale to avoid

paying the transfer tax or may not have consummated

the sale through an arm’s-length transaction. In any

case, the conveyance is not exempt from the transfer

tax. The second hypothetical is clear; the seller sold the

property for more than its true cash value and the

conveyance is not exempt from the transfer tax.

The concepts of “true cash value” and “fair market value” are

synonymous for purposes of ad valorem taxation of property. CAF

Investment Co, 392 Mich at 450. Further, as this Court noted in Mackey

v Dep’t of Human Servs, 289 Mich App 688, 699; 808 NW2d 484 (2010),

Black’s Law Dictionary (7th ed) defines “fair market value” as “[t]he

price that a seller is willing to accept and a buyer is willing to pay on the

open market and in an arm’s-length transaction....”

2014] G

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This strict construction in favor of the taxing unit

may seem harsh but, as noted by our Supreme Court,

tax exemptions represent the “antithesis of tax equal-

ity” because they result in “the unequal removal of the

burden generally placed on all landowners to share in

the support of local government.” Mich Baptist Homes

& Dev Co v Ann Arbor, 396 Mich 660, 669-670; 242

NW2d 749 (1976). This interpretation is also consistent

with the principles set forth by our Supreme Court in

Detroit v Detroit Commercial College, 322 Mich 142,

148-149; 33 NW2d 737 (1948), regarding the construc-

tion of tax exemptions:

“[I]t is a well-settled principle that, when a specific privi-

lege 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....Moreover, if an exemption is

found to exist, it must not be enlarged by construction,

since the reasonable presumption is that the State has

granted in express terms all it intended to grant at all, and

that unless the privilege is limited to the very terms of the

statute the favor would be extended beyond what was

meant.” [Quoting 2 Cooley, Taxation (4th ed), § 672, p

1403.]

In this case, if petitioners sold their properties for

more than or less than the true cash value of their

properties, i.e., the value of the SEV doubled, the

transfer tax was properly paid and they were not

entitled to a refund. Again, the burden of proving

entitlement to an exemption is on the party claiming

the right to the exemption, Elias Bros Restaurants, Inc

v Treasury Dep’t, 452 Mich 144, 150; 549 NW2d 837

558 306 M

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(1996), and that party must prove entitlement by a

preponderance of the evidence, ProMed Healthcare v

Kalamazoo, 249 Mich App 490, 494-495; 644 NW2d 47

(2002). Petitioners Gardner sold their property for

$875,000, although its true cash value was $749,600

(the SEV of $374,800 multiplied by two). Therefore,

petitioners Gardner were not entitled to a refund of the

transfer tax they paid and the Tax Tribunal’s decision is

reversed. Petitioners Ngo sold their property for

$464,000, although its true cash value was $439,720

(the SEV of $219,860 multiplied by two). Therefore,

petitioners Ngo were not entitled to a refund of the

transfer tax they paid and the Tax Tribunal’s decision is

reversed. Petitioners Maselli sold their property for

$470,000, although its true cash value was $397,060

(the SEV of $198,530 multiplied by two). Therefore,

petitioners Maselli were not entitled to a refund of the

transfer tax they paid and the Tax Tribunal’s decision is

reversed. Accordingly, we reverse the decisions of the

Tax Tribunal in each case. Petitioners were not entitled

to a refund of the transfer tax paid with regard to each

conveyance.

Reversed.

TEPHENS

, J., concurred with C

AVANAGH

,P.J.

WENS

,J.(dissenting). I respectfully dissent from the

majority opinion and, for the reasons set forth in this

opinion, would affirm the judgments of the Tax Tribu-

nal.

MCL 207.526(u) provides a seller or transferor an

exemption from the state real estate transfer tax if (1)

the seller or transferor claimed a principal residence

exemption for the subject property under MCL 211.7cc,

and (2) the state equalized value (SEV) at the time the

2014] G

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,J.

property was conveyed was equal to or lesser than the

SEV on the date the property was acquired. The pur-

pose of this exemption is to provide relief for homeown-

ers in a declining market when the property’s SEV

decreased from the time of purchase to the time of sale.

The second sentence of subsection (u), which is in

dispute, states:

If after an exemption is claimed under this subsection, the

sale or transfer of property is found by the treasurer to be

at a value other than the true cash value, then a penalty

equal to 20% of the tax shall be assessed in addition to the

tax due under this act to the seller or transferor.

The majority’s interpretation of this clause, known

as the “penalty clause,” renders the statute effectively

nugatory. From the plain language of the statute, it is

clear that the Legislature intended for a penalty to be

assessed when a seller or transferor claimed the exemp-

tion and the sale was “at a value other than the true

cash value....”Inother words, the Legislature did not

intend for the exemption to apply to situations in which

a seller or transferor sold their house at a value other

than the true cash value.

The majority defines “true cash value” to mean the

SEV of the property multiplied by two. According to the

majority, the exemption would only apply if a property

sold for exactly twice the SEV. The problem with

employing this definition is that the exemption would

become virtually nonexistent because a property will

almost never sell for exactly twice its SEV. Although an

assessor does his or her best, twice the SEV can only

ever be an estimate of the true cash value, and that is

why, unless the assessor is particularly lucky, sales are

almost never exactly twice the SEV. This cannot be

what the Legislature intended when it enacted an

560 306 M

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,J.

exemption designed to protect homeowners in a declin-

ing market.

Rather, it is an arm’s-length sale that, by definition,

gives us the true cash value. “True cash value is

synonymous with fair market value, and refers to the

probable price that a willing buyer and a willing seller

would arrive at through arm’s length negotiation.”

Detroit Lions, Inc v Dearborn, 302 Mich App 676, 696;

840 NW2d 168 (2013) (citations and quotation marks

omitted). By this definition, then, the exemption would

not apply only when a seller or transferor sold the

property at a value other than the price that a willing

buyer and a willing seller would arrive at through

arm’s-length negotiation. Id. Therefore, to claim the

transfer-tax exemption, the property must be the prin-

cipal residence of the seller or transferor, must have an

SEV at the time of conveyance that is lesser than or

equal to the SEV at the time it was acquired, and must

be sold or transferred at a price resulting from an

arm’s-length sale. Employing this definition best effec-

tuates the legislative intent, which is the foremost rule

of statutory construction. Whitman v City of Burton,

493 Mich 303, 311; 831 NW2d 223 (2013).

Applying this construction to the present cases, I

would affirm the judgments of the Tax Tribunal. Peti-

tioners were selling their principal residences, the SEV

of each property at the time of conveyance was lesser

than the SEV at the time it was acquired, and the sales

were conducted through arm’s-length negotiations. Be-

cause the requirements of MCL 207.526(u) were met in

all three cases, petitioners were entitled to the exemp-

tion, and therefore, the Tax Tribunal did not err by

awarding refunds of the transfer tax that they each

paid.

2014] G

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,J.

PEOPLE v DUNBAR

Docket No. 314877. Submitted April 1, 2014, at Grand Rapids. Decided

September 9, 2014, at 9:05 a.m. Leave to appeal sought.

Charles Almando-Maurice Dunbar was charged in the Muskegon

Circuit Court with various controlled substance and weapons

crimes in connection with items seized from his pickup during a

traffic stop. Defendant had a trailer towing ball attached to the

rear bumper, and the police officers were unable to read one of the

seven characters on the pickup’s license plate. They stopped

defendant after concluding that he was violating MCL 257.225(2),

which provides that a vehicle’s license plate must be maintained

free of foreign materials that obscure or partially obscure the

registration information and in a clearly legible condition. Defen-

dant moved to suppress the evidence of the contraband discovered

on the grounds that the traffic stop violated his rights under the

Fourth Amendment and Const 1963, art 1, § 11. The court,

Timothy G. Hicks, J., denied the motion, and defendant appealed

by leave granted.

In separate opinions, the Court of Appeals held:

Defendant did not violate MCL 257.225(2), and the trial court

erred by denying his motion to suppress the contraband.

HAPIRO

, J., stated in the lead opinion that when the officers

initiated the traffic stop, they had no basis to believe that

defendant was engaged in any criminal conduct. They testified

that defendant was driving safely, that they did not see him

violate any traffic laws governing vehicle operation, and that he

did not engage in any suspicious behavior. The sole basis for the

stop was their conclusion that defendant was violating MCL

257.225(2), but the circumstances observed by the officers did

not constitute a violation of that statute. The mere presence of

a towing ball was not a violation of MCL 257.225(2), which

requires that the license plate be maintained free from foreign

materials and kept in a legible condition. The statute does not

refer to trailer hitches, towing balls, or other commonly used

towing equipment that might partially obscure the view of an

otherwise legible plate. There was no evidence that the plate on

defendant’s truck was not maintained free of foreign materials.

562 306 M

ICH

562 [Sept

There was no evidence that defendant’s plate was dirty, rusted,

defaced, scratched, snow-covered, or otherwise not maintained

in legible condition, and the officers agreed that it was legible.

Because the officers did not have grounds to believe that

defendant was violating MCL 257.225(2), the search was con-

ducted in violation of the Fourth Amendment.

O’C

ONNELL

, J., concurred with the lead opinion’s result but

stated that MCL 257.225(2) is ambiguous, and to avoid a construc-

tion that would render the statute unconstitutionally void for

vagueness, it must be interpreted as requiring only that the license

plate itself be maintained free from materials that obscure the

registration information and that the plate itself be in a clearly

legible condition. The subject matter of MCL 257.225 is the

physical location and condition of license plates, and it does not

address trailer hitches or other types of car equipment. Given the

limited subject matter of the statute, it was necessary to interpret

MCL 257.225(2) as prohibiting physical obstructions affixed to

license plates. Because there was no evidence of any obstruction

affixed to defendant’s license plate, there was no evidence that he

was in violation of MCL 257.225(2).

Reversed.

ETER

,P.J., dissented and stated that the trial court did not

clearly err by concluding that a trailer hitch obstructed defen-

dant’s license plate. The deputies could not see the entire

license plate number because it was obstructed, and the trial

court correctly determined that the obstruction of the number

provided a lawful basis for the traffic stop. Therefore, it was not

necessary to suppress the drugs and handgun seized during the

traffic stop. The lead and concurring opinions incorrectly con-

cluded that MCL 257.225(2) concerns only items that touch the

plate itself. The statute, however, refers to keeping the plate

free from obstructing materials. A license plate that is in

otherwise perfect condition but cannot be read because of

obstructing materials is not being kept in a clearly legible

condition. Judge M

ETER

would have affirmed.

OTOR

EHICLES —

ICENSE

LATES —

RAILER

ITCHES —

BSCURED

LATE

The mere presence of a towing ball that partially obscures the

license plate on a vehicle by itself is not a violation of MCL

257.225(2), which provides that a vehicle’s license plate must be

maintained free of foreign materials that obscure or partially

obscure the registration information and in a clearly legible

condition.

2014] P

EOPLE V

UNBAR

563

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, D. J. Hilson, Prosecuting Attorney,

and Charles F. Justian, Chief Appellate Attorney, for

the people.

Michael L. Oakes for defendant.

Before: M

ETER

,P.J., and O’C

ONNELL

and S

HAPIRO

,JJ.

HAPIRO

, J. This case arises out of an October 12, 2012

traffic stop during which police officers discovered contra-

band in defendant’s pickup truck. Defendant moved to

suppress the evidence of the discovered contraband on the

grounds that the traffic stop violated his rights under the

Fourth Amendment of the United States Constitution and

Article 1, § 11 of the Michigan Constitution. The trial

court denied the motion, and we granted defendant’s

application for leave to appeal. Because no traffic violation

had occurred or was occurring, we reverse.

The Fourth Amendment guarantees “[t]he right of

the people... against unreasonable searches and sei-

zures....”USConst, Am IV. “An automobile stop is...

subject to the constitutional imperative that it not be

‘unreasonable’ under the circumstances....[T]he de-

cision to stop an automobile is reasonable where the

police have probable cause to believe that a traffic

violation has occurred.” Whren v United States, 517 US

806, 810; 116 S Ct 1769; 135 L Ed 2d 89 (1996); see also

People v Kazmierczak, 461 Mich 411, 420 n 8; 605 NW2d

667 (2000); People v Davis, 250 Mich App 357, 363-364;

649 NW2d 94 (2002).

The prosecution concedes that when the officers

initiated the traffic stop they had no basis to believe

We review de novo a trial court’s ruling on a motion to suppress.

People v Davis, 250 Mich App 357, 362; 649 NW2d 94 (2002).

564 306 M

ICH

562 [Sept

PINION BY

HAPIRO

,J.

that defendant was engaged in any criminal conduct. In

addition, the officers testified that defendant was driv-

ing safely, they did not see him violate any traffic laws

governing vehicle operation, and he did not engage in

any suspicious behavior. They testified that the sole

basis for the stop was their conclusion that defendant

was violating a traffic law, MCL 257.225(2), which

provides in pertinent part that “[a vehicle’s license]

plate shall be maintained free from foreign materials

that obscure or partially obscure the registration infor-

mation and in a clearly legible condition.”

We conclude

that the circumstances observed by the officers did not

constitute a violation of this statute.

As noted, the officers testified that defendant was

driving safely and lawfully when they stopped him.

They explained that when they have no other matters

to attend to on patrol, as a matter of course they

randomly enter the license plate numbers of cars they

are following, a practice that sometimes reveals that the

driver is subject to an outstanding warrant. According

to the officers’ testimony, they had difficulty reading

one of the seven characters on the pickup’s license plate

due to the presence of a trailer towing ball attached to

the rear bumper. One of the officers testified that he

was able to determine, while driving behind defendant,

that the license plate number was either CHS 6818 or

CHS 5818. It was, in fact, CHS 6818.

Common experience reveals that thousands of ve-

hicles in Michigan are equipped with trailer hitches and

towing balls. The prosecution argues, however, that the

presence of that equipment behind a license plate is a

violation of MCL 257.225(2) and, therefore, the officers

As amended by 2014 PA 26. MCL 257.225(a) as amended by 1995 PA

129 was the version in effect at the time of the traffic stop, but it had only

slight grammatical differences that do not affect the analysis.

2014] P

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PINION BY

HAPIRO

,J.

had proper grounds to conclude that a traffic law was

being violated. However, the mere presence of a towing

ball is not a violation of MCL 257.225(2). The statute

provides that “[t]he plate shall be maintained free from

foreign materials that obscure or partially obscure the

registration information and in a clearly legible condi-

tion.” (Emphasis added.) The statute makes no refer-

ence to trailer hitches, towing balls, or other commonly

used towing equipment that might partially obscure the

view of an otherwise legible plate. There is no evidence

that the plate on defendant’s truck was not maintained

free of foreign materials. There is similarly no evidence

that defendant’s plate was dirty, rusted, defaced,

scratched, snow-covered, or otherwise not “main-

tained” in legible condition. The plate was well lit and

in essentially pristine condition. Moreover, the officers

agreed that the plate was legible, a fact confirmed by

the photos taken at the scene.

In this case, the officers did not have grounds to

believe that defendant was in violation of MCL

257.225(2) and they, as well as the prosecution, agree

there was no other basis for the stop. Accordingly, we

reverse the trial court’s denial of defendant’s motion to

suppress the contraband seized during an automobile

search conducted in violation of the Fourth Amend-

ment. Whren, 517 US at 809-810.

Reversed. We do not retain jurisdiction.

O’C

ONNELL

,J.(concurring). I concur with the result

reached by the lead opinion. I write separately to state

that MCL 257.225(2) is ambiguous. In fact, the statute

casts a net so wide that it could be construed to make

ordinary car equipment illegal, including equipment

like bicycle carriers, trailers, and trailer hitches. This

broad construction would render the statute unconsti-

566 306 M

ICH

562 [Sept

ONCURRING

PINION BY

O’C

ONNELL

,J.

tutionally vague for failure to provide fair notice of the

conduct the statute purports to proscribe. See People v

Hrlic, 277 Mich App 260, 263; 744 NW2d 221 (2007).

However, this Court must construe statutes as consti-

tutional if possible and must examine statutes in light

of the particular facts at issue. People v Harris, 495

Mich 120, 134; 845 NW2d 477 (2014). Accordingly, I

would interpret MCL 257.225(2) to require only that

the license plate itself be maintained free from materials

that obscure the registration information and that the

plate itself be in a clearly legible condition.

This interpretation is consistent with the fair and

natural import of the provisions in MCL 257.225(2) in

view of the statute’s subject matter. See People v

McGraw, 484 Mich 120, 124; 771 NW2d 655 (2009)

(stating that provisions should be construed by consid-

ering the subject matter of the statute). The subject

matter of MCL 257.225 is the physical location and

condition of license plates: Subsection (1) addresses the

license plate’s location on a vehicle, Subsection (3)

addresses the colors used on license plates and expira-

tion tabs, and Subsections (4) and (5) address name

plates, insignias, and advertising devices that could

obscure the registration information on license plates.

MCL 257.225(1), (3), (4), and (5).

The statute does not

address trailer hitches or other types of car equipment.

Given the limited subject matter of the statute, this

Court should interpret Subsection (2) of the statute to

prohibit physical obstructions affixed to license plates.

After defendant’s arrest in this case, the Legislature amended MCL

257.225 to add a subsection addressing license plates on historic military

vehicles. MCL 257.225(6), as amended by 2014 PA 26. The amendment

also made minor punctuation and grammatical changes in Subsection (2).

MCL 257.225(2), as amended by 2014 PA 26.The changes are not relevant

to the analysis in this case.

2014] P

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ONCURRING

PINION BY

O’C

ONNELL

,J.

See People v Gaytan, 2013 Ill App 120217, ¶¶ 38-40; 372

Ill Dec 478; 992 NE2d 17 (2013), lv granted 996 NE2d

18 (Ill, 2013).

In this case, there is no evidence of any obstruction

affixed to defendant’s license plate. Consequently, there

is no evidence that defendant was in violation of MCL

257.225(2), and the circuit court decision must be

reversed.

ETER

,P.J. (dissenting). For the reasons set forth

below, I respectfully dissent. I would affirm the denial of

defendant’s motion to suppress the evidence.

This case arises out of a traffic stop of defendant’s

vehicle. On October 12, 2012, at approximately 1:00 a.m.,

deputies of the Muskegon County Sherriff’s Department

stopped defendant’s truck on the basis of an obstructed

license plate. After stopping defendant’s vehicle, deputies

found cocaine, marijuana, and a handgun.

Defendant argues that the deputies did not have a

lawful basis for stopping his truck and that his motion

to suppress should have been granted. “A trial court’s

ruling on a motion to suppress evidence is reviewed for

clear error, but its conclusions of law are reviewed de

novo.” People v Unger, 278 Mich App 210, 243; 749

NW2d 272 (2008). “A finding is clearly erroneous when,

although there is evidence to support it, the reviewing

court is left with a definite and firm conviction that a

mistake has been made.” People v Malone, 287 Mich

App 648, 663; 792 NW2d 7 (2010) (citation and quota-

tion marks omitted). If the trial court was in a superior

position to assess the evidence, we will give deference to

the trial court’s resolution of factual issues, especially

when it involved the credibility of witnesses. MCR

2.613(C); People v Farrow, 461 Mich 202, 209; 600

NW2d 634 (1999).

568 306 M

ICH

562 [Sept

ISSENTING

PINION BY

ETER

,P.J.

The lawfulness of a search or seizure depends upon

its reasonableness. See Virginia v Moore, 553 US 164,

171; 128 S Ct 1598; 170 L Ed 2d 559 (2008). “In order

to effectuate a valid traffic stop, a police officer must

have an articulable and reasonable suspicion that a

vehicle or one of its occupants is subject to seizure for a

violation of law.” People v Hyde, 285 Mich App 428, 436;

775 NW2d 833 (2009) (citation and quotation marks

omitted). MCL 257.225(2) provides that a license plate

“shall be maintained free from foreign materials that

obscure or partially obscure the registration informa-

tion and in a clearly legible condition.”

A violation of

MCL 257.225(2) constitutes a civil infraction. MCL

257.225(7). “A police officer who witnesses a civil infrac-

tion may stop and temporarily detain the offender....”

People v Chapo, 283 Mich App 360, 366; 770 NW2d 68

(2009).

The record shows that the trial court did not clearly

err by concluding that defendant’s license plate was

obstructed by a trailer hitch. At the hearing, the depu-

ties testified that they could not see the entire license

plate number because it was obstructed by a trailer

hitch. The trial court determined that the deputies were

credible, which is a determination that we will not

disturb. See MCR 2.613(C) and Farrow, 461 Mich at

209. Additionally, the trial court’s finding is supported

by pictures taken at the scene, which show that defen-

dant’s license plate was obstructed.

Further, because police officers may stop and detain

an individual who commits a civil infraction, Chapo,

283 Mich App 366, the trial court correctly determined

that the obstruction of defendant’s license plate num-

MCL 257.225 was amended by 2014 PA 26 after the incident in this

case, but the changes to the pertinent subsections are immaterial for

purposes of this appeal.

2014] P

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569

ISSENTING

PINION BY

ETER

,P.J.

ber provided a lawful basis for the traffic stop pursuant

to MCL 257.225(2) and that suppression of the drugs

and handgun seized during the traffic stop was not

required.

It is simply unreasonable to expect police officers to

essentially “weave” within a lane in order to view the

entire license plate of a vehicle.

Moreover, the lead and

concurring opinions appear to indicate that the perti-

nent phrase from MCL 257.225(2)—“[t]he plate shall be

maintained free from foreign materials... and in a

clearly legible condition”—concerns only items that

touch the plate itself. This is not a reasonable reading of

the statute. What if, for example, a person attached a

sort of shield that entirely covered his or her license

plate but did not touch the plate itself? Clearly the

statute refers to keeping the plate free from obstructing

materials. Random House Webster’s College Dictionary

(1997) defines “maintain,” in part, as “to keep in a

specified state, position, etc.” A license plate that is in

otherwise perfect condition but cannot be read because

of obstructing materials is not being “kept” in “a clearly

legible condition.”

I would affirm.

Nor should officers be required to enter multiple possible numbers

into their computers to try to ascertain the correct license plate number

for a vehicle.

Because it is not in issue here, I do not reach the question regarding

whether a properly licensed, attached trailer that obscures a vehicle’s

license plate would be grounds for a traffic stop. As noted in the

concurring opinion, this Court must find a statute constitutional unless

its unconstitutionality is clearly apparent and, as long as First Amend-

ment concerns are not present in conjunction with a vagueness issue, this

Court must examine a statute in light of the particular facts at issue.

People v Harris, 495 Mich 120, 134; 845 NW2d 477 (2014); People v

Williams, 142 Mich App 611, 613; 370 NW2d 7 (1985). I conclude that

MCL 257.225(2) is constitutional as applied to the present facts and also

conclude that it provided a valid basis for the traffic stop.

570 306 M

ICH

562 [Sept

ISSENTING

PINION BY

ETER

,P.J.

In re CONTEMPT OF DORSEY

Docket No. 309269. Submitted February 8, 2013, at Lansing. Decided

September 9, 2014, at 9:10 a.m. Leave to appeal sought.

A delinquency petition was filed in the Livingston Circuit Court, Family

Division, charging Tyler Dorsey, a minor, with carrying a dangerous

weapon with unlawful intent, receiving and concealing stolen prop-

erty, possession of a controlled substance, and possession of alcohol by

a minor. The weapon and alcohol charges were dismissed and Tyler

pleaded guilty to the remaining charges. Tyler was placed on proba-

tion and ordered to complete a number of terms and conditions,

including submitting to random drug screens. Tyler thereafter tested

positive for a controlled substance. In addition, petitions were filed

against Tyler charging him with domestic violence, first-degree home

invasion, and possession of alcohol by a minor. Tyler was placed in a

residential facility. During a placement review hearing, Tyler’s pro-

bation officer informed the court that an abuse and neglect petition

had been filed by Tyler’s guardian ad litem, naming Kelly M. Dorsey,

Tyler’s mother, and another as respondents. The probation officer

recommended continuation of Tyler’s placement in the facility and

that the court order Kelly and her daughter, Destiny Dorsey, to

submit to random drug tests. The court, David J. Reader, J., entered

an order dated January 14, 2011, requiring Kelly and Destiny to

submit to random drug tests. The court also ordered that Kelly’s

home remain drug and alcohol free and subject to random searches.

Tyler pleaded guilty to a misdemeanor charge of larceny in a vacant

building and the charges of home invasion and possession of alcohol

by a minor were dismissed. Tyler was released from the residential

facility and into Kelly’s custody following another placement review

hearing. Tyler thereafter tested positive for K2, a synthetic form of

cannabis. His probation officer sought to have the court hold him in

criminal contempt and requested that Kelly begin biweekly drug

screenings. After Kelly failed to take drug screenings requested by

the probation officer, the probation officer filed motions for show-

cause hearings and the court granted the motions and ordered Kelly

to appear and show cause why she should not be found in criminal

contempt for failing to submit to the requested drug tests. Kelly

appeared and stated that, although she had been aware of an order in

the abuse and neglect case that required her to submit to random

2014] In re C

ONTEMPT OF

ORSEY

571

drug tests, she was not aware that the court had entered an order in

the delinquency proceedings requiring her to submit to such tests.

The court, David J. Reader, J., found Kelly in contempt of court for

failing to comply with the court’s order to submit to blood testing and

entered a written order of contempt. A second order of contempt was

entered four days later. The court thereafter denied Kelly’s motion

for a judgment of acquittal or a new trial as well as her motion to

correct the sentence. Kelly appealed.

The Court of Appeals held:

1. The family court in the delinquency proceeding was entitled,

under MCL 712A.6, to render orders affecting adults that were

necessary for the physical, mental, or moral well-being of Tyler.

Kelly’s contention that the court lacked subject-matter jurisdic-

tion is without merit.

2. An order entered by a court must be obeyed until it is

judicially vacated. Generally, all persons who interfere with the

proper exercise of a court’s judicial function are punishable for

contempt. Kelly could be punished for contempt because the court

concluded that she interfered with the court’s function.

3. The court’s order in the delinquency proceeding requiring

Kelly to submit to random drug testing was unconstitutional

under US Const, Am IV and Const 1963, art 1, § 11. However, the

unconstitutionality of the order was not a defense to the criminal

contempt allegations. The order was entered by a court with

proper jurisdiction and Kelly was required to follow it.

4. Kelly waived any objection to the order in the delinquency

proceeding that required her to submit to random drug testing.

5. The court properly made its findings of contempt under the

“beyond a reasonable doubt” standard not the “preponderance of

the evidence” standard.

6. There is no merit to Kelly’s argument that there was

insufficient evidence that she willfully disregarded or disobeyed

the court’s order to submit to drug testing because she was

confused about the order and intended to consult an attorney

before submitting to testing. There was competent evidence to

support the finding that the elements of criminal contempt were

proven beyond a reasonable doubt.

Affirmed.

1. C

IRCUIT

OURTS —

AMILY

IVISION —

URISDICTION —

RDERS

FFECTING

DULTS

The family division of the circuit court has jurisdiction to make

orders affecting adults when, in the opinion of the court, such

572 306 M

ICH

571 [Sept

orders are necessary for the physical, mental, or moral well-being

of a particular juvenile or juveniles under its jurisdiction; such

orders are incidental to the jurisdiction of the court over the

juvenile or juveniles (MCL 712A.6).

2. M

OTION AND

RDERS —

PPEAL

An order entered by a court with proper jurisdiction must be obeyed,

even if the order is clearly incorrect, until it is judicially vacated.

3. C

ONTEMPT —

ARTIES —

ONPARTIES

Generally, all persons who interfere with the proper exercise of a

court’s judicial function, whether parties or strangers, are punish-

able for contempt.

William J. Vailliencourt, Jr., Prosecuting Attorney,

and William M. Worden, Assistant Prosecuting Attor-

ney, for the Livingston County Prosecuting Attorney.

The Law Office of Kurt T. Koehler (by Kurt T.

Koehler) for Kelly M. Dorsey.

Before: K. F. K

ELLY

,P.J., and M

ARKEY

and F

ORT

OOD

JJ.

URIAM

. Appellant, Kelly Michelle Dorsey, ap-

peals by right the contempt order entered by the

Livingston Circuit Court, Family Division (the family

court). As part of her son’s juvenile adjudication, the

family court entered an order requiring appellant to

submit to random drug screens at the request of the

probation department. The court found appellant in

criminal contempt after she refused to comply with the

order, and she was sentenced to 93 days in jail and

ordered to pay $200 in costs, $120 in attorney’s fees,

and $500 in fines. We affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

The criminal contempt proceeding against appellant

originated from juvenile delinquency proceedings con-

2014] In re C

ONTEMPT OF

ORSEY

573

cerning appellant’s son, Tyler Dorsey. Tyler first came

to the attention of the family court in April 2008, when

he was charged with three counts of breaking and

entering a vehicle, MCL 750.356a(2)(a). Tyler was

placed on the consent calendar/informal docket, which

he successfully completed on July 3, 2009.

A second delinquency petition was filed in December

2009, when Tyler was charged with carrying a danger-

ous weapon with unlawful intent, MCL 750.226, receiv-

ing and concealing stolen property, MCL 750.535, pos-

session of a controlled substance (hydrocodone), MCL

333.7403(2)(b)(ii), and possession of alcohol by a minor,

MCL 436.1703(1)(a). The weapon and alcohol charges

were dismissed, and Tyler pleaded guilty to the remain-

ing charges. A dispositional hearing/sentencing was

scheduled for March 25, 2010, but, it was adjourned

after Tyler’s father died.

After the father’s death, Kimberly Ognian, the fa-

ther’s longtime girlfriend, was named Tyler’s guardian.

A dispositional hearing was scheduled for April 16,

2010. Before the hearing, Tyler’s probation officer,

Susan Grohman, submitted a report and recommenda-

tion to the family court. Grohman reported that Ognian

was Tyler’s primary caregiver and that appellant had

not been involved in Tyler’s life for the past year.

Grohman further reported that appellant had

“alcohol/drug problems and a criminal record.” Tyler

was referred for a biopsychosocial assessment. In his

assessment, Tyler reported “little contact with his

mother [appellant] recently and that he feels that this

might be due to his mother’s substance abuse.”

On April 16, 2010, Tyler was placed on probation and

ordered to complete a number of terms and conditions,

including random drug screens. On August 2, 2010,

Tyler tested positive for benzodiazepines. Shortly

574 306 M

ICH

571 [Sept

thereafter, a petition charging Tyler with domestic

violence was filed, MCL 750.81(2). The victim was

Meagan Ognian, Kimberly Ognian’s daughter, with

whom Tyler was living and in a relationship. Tyler was

removed from Kimberly Ognian’s care and went to live

with appellant.

On August 20, 2010, another petition was filed,

charging Tyler with first-degree home invasion, MCL

750.110a(2), and possession of alcohol by a minor, MCL

436.1703(1)(a). Grohman reported that Tyler’s biggest

problem was a lack of supervision. Tyler was allowed to

come and go as he pleased and was seen walking around

downtown Howell at all hours of the night. Because of

his chronic delinquency and the inability of appellant

and his guardian to control him, Tyler was placed in a

residential facility.

Appellant and her daughter, Destiny Dorsey, visited

Tyler at the facility and participated in family counsel-

ing sessions. According to the counselor’s report, appel-

lant and Destiny both denied that they used drugs and

further reported that they did not keep alcohol in the

house. Appellant did report, however, that “she had a

serious drug problem several years ago when she got

divorced.... [Appellant] acknowledged that the only

way she knew how to cope with her feelings was to

escape by smoking crack cocaine.” Appellant repre-

sented to the family counselor that she had changed and

could be a positive parent for Tyler.

Tyler’s behavior began to improve at the facility, and a

placement review hearing was conducted on January 13,

2011. Grohman reported that Tyler was doing well and

had been granted a day pass for Christmas to see his

grandparents. Grohman further stated:

Transportation became an issue due to the fact that the

grandparents had to cook and entertain. Tyler’s sister and

2014] In re C

ONTEMPT OF

ORSEY

575

[appellant] became the next logical choice for a transport. A

drug test was requested prior to allowing Tyler to be

released to the care and custody of [appellant]. Due to the

fact that his sister would be driving, she agreed to submit

to a test as well. From the date the test [was] requested [to]

the date [appellant] and Destiny appeared for a test, three

days had lapsed. The test would not return prior to

Christmas so a decision was made to allow the visit to take

place in an effort not to punish Tyler. Unfortunately, both

tests returned diluted. A retest was requested. To date,

Destiny has failed to appear and [appellant] did report

(again not on the day requested). [Appellant’s] test re-

turned negative for all substances.

***

In the meantime Tyler’s [guardian ad litem] filed an

abuse and neglect petition naming both [appellant] and

Kim Ognian as respondents. Since the time of this hearing,

Kim’s guardianship has been terminated.

Grohman recommended that Tyler’s facility place-

ment continue and that the family court order appel-

lant and Destiny to submit to random drug tests.

Following the hearing, the family court issued an

order dated January 14, 2011, requiring appellant

and Destiny to “submit to random drug testing as

requested by Maurice Spear Campus or the probation

department.” The family court further ordered that

appellant’s home remain drug and alcohol free and

subject to random searches.

On August 26, 2011, the family court conducted

another placement review hearing.

Grohman reported

that Tyler and appellant responded extremely well to

services at the residential facility. Further, Grohman

stated that the Department of Human Services (DHS)

Tyler previously pleaded guilty to a misdemeanor charge of larceny in

a vacant building, MCL 750.359, and the prosecutor dismissed the home

invasion and minor in possession of alcohol charges.

576 306 M

ICH

571 [Sept

reported full compliance by appellant in her abuse and

neglect case. Following the hearing, the family court

entered an order releasing Tyler into appellant’s cus-

tody.

On December 19 and December 27, 2011, Tyler

tested positive for K2, a synthetic form of cannabis.

January 9, 2012, Grohman filed a motion requesting

that the family court issue an order directing Tyler to

appear and show cause why he should not be found in

criminal contempt. Also on January 9, 2012, Grohman

requested that appellant begin biweekly drug screen-

ings at Second Chance.

Appellant reported to Second Chance on January 9 and

10, 2012, but she refused to test both days. After appel-

lant’s second refusal, Grohman filed two show-cause mo-

tions. Both motions referred to the January 14, 2011 order

requiring appellant to submit to random drug tests. The

family court granted both motions and ordered appellant

to appear and show cause why she should not be found in

criminal contempt.

Counsel was appointed for appellant, and a show-

cause hearing was conducted on February 2, 2012.

During the hearing, Grohman referred to the juvenile

proceedings and the abuse and neglect proceeding,

noting that appellant’s abuse and neglect case had been

closed by the DHS. Grohman stated that appellant was

required to drug test in the abuse and neglect case and

was compliant with testing in that case.

Grohman

stated that she asked appellant to test in the delin-

Tyler had not been tested for K2 before.

Grohman’s report shows the DHS began testing appellant in the

abuse and neglect case on March 7, 2011. Two testing dates are listed for

appellant’s abuse and neglect case, March 7, 2011, and September 29,

2011. Appellant tested positive for alcohol on March 7, 2011, and negative

for all substances on September 29, 2011.

2014] In re C

ONTEMPT OF

ORSEY

577

quency case on January 9, 10, 11, 12, 13, and 17, 2012,

and appellant had refused each time. Grohman did not

show appellant the January 14, 2011 order requiring

appellant to submit to random drug testing, but Gro-

hman spoke with appellant, and appellant was aware of

the order. Megan Alcala, a Community Reintegration

Program facilitator, corroborated Grohman’s testimony.

Alcala stated that she was present when Grohman

spoke with appellant and requested appellant to take a

drug test. Alcala stated that Grohman explained to

appellant that there was a court order and that appel-

lant appeared to understand.

Appellant testified that she was confused between

the delinquency case and the abuse and neglect case.

Appellant stated that she was aware of an order requir-

ing her to test in the abuse and neglect case, but she was

unaware that there was a similar order in the delin-

quency case. Appellant stated that the abuse and ne-

glect case was closed in November 2011. Therefore,

appellant was confused when Grohman asked her to

test on January 9, 2012. Appellant stated that Grohman

did not explain that there was an order requiring her to

test in the delinquency case. Appellant acknowledged,

however, that Grohman had told appellant that “she

wanted [appellant] to test for the [delinquency] case.”

Appellant further stated that she received a piece of paper

that stated “it is requested by Sue Grohman, juvenile

probation, and Second Chance that you drug test though

Second Chance twice a week until April 16th for drugs,

alcohol, and K2.” Appellant stated: “I didn’t refuse right

then but I refused later on that day until I could talk to my

attorney.” Appellant further stated: “I didn’t know if it

was legal... because my [abuse and neglect] case was

closed and I hadn’t—there wasn’t—in my opinion there

was no reason why I would have to do a drug test.”

578 306 M

ICH

571 [Sept

At the conclusion of the hearing, the family court

found appellant in contempt of court for failing to

comply with the court’s order. On February 6, 2012, the

family court entered a written order of contempt. The

order appears to be a standard court document and

includes boxes labeled “preponderance of the evidence”

and “beyond a reasonable doubt.” The “preponderance

of the evidence” box was checked on the order. The

order did not indicate whether appellant was found

guilty of civil or criminal contempt.

The family court adjourned sentencing to allow ap-

pellant to report to Second Chance for a drug test. On

February 9, 2012, the family court sentenced appellant

to 93 days in jail. The court further ordered appellant to

pay costs in the amount of $200, attorney’s fees in the

amount of $120, and “a total of $500 to the court within

30 days of her release from jail.” The family court

indicated that appellant did take a drug test on Febru-

ary 2, 2012, but the court did not disclose the results. A

second order of contempt was entered February 10,

2012. The “preponderance of the evidence” box was

checked and the order did not indicate whether appel-

lant was found guilty of criminal or civil contempt.

Following sentencing, appellant filed three motions:

a motion for a judgment of acquittal or a new trial, a

motion to correct the sentence, and a motion to stay

execution of the sentence. In the motions, appellant

argued that the family court’s order requiring appellant

to submit to drug testing was beyond its jurisdiction

and authority. Additionally, appellant argued that the

order violated her right to be free from unreasonable

searches and seizures. Finally, appellant argued that

there was insufficient evidence to convict her of crimi-

nal contempt. Specifically, appellant noted that the

family court checked the “preponderance of evidence”

2014] In re C

ONTEMPT OF

ORSEY

579

box on the order of contempt. Appellant argued that a

preponderance of evidence was insufficient to sustain

her conviction for criminal contempt.

A hearing on all three motions was conducted. After

hearing arguments, the family court denied appellant’s

motion for a judgment of acquittal or a new trial, as well

as her motion to correct the sentence. The family court

clarified that appellant was found guilty of criminal

contempt and that its findings were beyond a reason-

able doubt. The court indicated that there was a clerical

error on the contempt order. Additionally, the court

rejected appellant’s argument that its order requiring

appellant to drug test was beyond its jurisdiction or

authority, stating that “the jurisdiction of the parent is

in essence obtained, in the opinion of the Court, by way

of jurisdiction over the juvenile.” The court granted

appellant’s motion to stay the sentence pending appeal

to this Court.

II. JURISDICTION

As an initial matter we note that appellant contends

that the family court did not have subject-matter juris-

diction. We disagree.

The interpretation and application of a statute pre-

sents a question of law that the appellate court reviews

de novo. Whitman v City of Burton, 493 Mich 303, 311;

831 NW2d 223 (2013). The judiciary’s objective when

interpreting a statute is to discern and give effect to the

intent of the Legislature. Id. This Court’s review of

jurisdictional issues is de novo. Pontiac Food Ctr v Dep’t

of Community Health, 282 Mich App 331, 335; 766

NW2d 42 (2009). Issues involving the interpretation of

court rules are also reviewed de novo as questions of

law. Id. “The term jurisdiction refers to the power of a

court to act and the authority a court has to hear and

580 306 M

ICH

571 [Sept

determine a case.” Wayne Co Chief Executive v Gover-

nor, 230 Mich App 258, 269; 583 NW2d 512 (1998).

“The ‘power to review’ thus granted is the power to

hear and determine. It is language of jurisdiction.”

Peplinski v Employment Security Comm, 359 Mich 665,

668; 103 NW2d 454 (1960). Questions surrounding

subject-matter jurisdiction present questions of law and

are reviewed de novo. In re Lager Estate, 286 Mich App

158, 162; 779 NW2d 310 (2009). Generally, subject-

matter jurisdiction is defined as a court’s power to hear

and determine a cause or matter. Id. More specifically,

subject-matter jurisdiction is the deciding body’s au-

thority to try a case of the kind or character pending

before it, regardless of the particular facts of the case.

Travelers Ins Co v Detroit Edison Co, 465 Mich 185,

204; 631 NW2d 733 (2001). Subject-matter jurisdiction

cannot be waived and can be raised at any time by any

party or the court. MJC/Lotus Group v Brownstown

Twp, 293 Mich App 1, 7-8; 809 NW2d 605 (2011), rev’d

in part on other grounds Mich Props, LLC v Meridian

Twp, 491 Mich 518 (2012). The plaintiff bears the

burden of demonstrating subject-matter jurisdiction.

Phinney v Perlmutter, 222 Mich App 513, 521; 564

NW2d 532 (1997). A trial court must dismiss an action

when there is a lack of subject-matter jurisdiction, and

a party cannot be estopped from raising the issue. In re

Acquisition of Land for the Central Indus Park Project,

177 Mich App 11, 17; 441 NW2d 27 (1989).

“Before a court may obligate a party to comply with

its orders, the court must have in personam jurisdiction

over the party.” Oberlies v Searchmont Resort, Inc, 246

Mich App 424, 427; 633 NW2d 408 (2001). General

personal jurisdiction over individuals may be estab-

lished by domicile in this state or consent, MCL

600.701, and limited personal jurisdiction may be estab-

lished by maintaining domicile in this state while sub-

2014] In re C

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581

ject to a family relationship that is the basis of a claim

for divorce, alimony, separate maintenance, property

settlement, child support, or child custody, MCL

600.705(7). The defense of lack of personal jurisdiction

may be waived. Dundee v Puerto Rico Marine Mgt, Inc,

147 Mich App 254, 257; 383 NW2d 176 (1985).

“Const 1963, art 6, § 15 grants probate courts ‘origi-

nal jurisdiction in all cases of juvenile delinquents and

dependents, except as otherwise provided by law.’ ” In

re AMB, 248 Mich App 144, 167; 640 NW2d 262 (2001).

The family division of the circuit court (family court)

now exercises this jurisdiction. People v Thenghkam,

240 Mich App 29, 36; 610 NW2d 571 (2000), reasoning

and analysis repudiated in part on other grounds in

People v Petty, 469 Mich 108 (2003).

“In construing

jurisdictional statutes, retention of jurisdiction is pre-

sumed, and any intent to divest a court of jurisdiction

must be clearly and unambiguously stated.” In re Waite,

188 Mich App 189, 202; 468 NW2d 912 (1991).

Under MCL 712A.2, the family division of the circuit

court obtained authority over juveniles. The family

court also acquires jurisdiction over adults pursuant to

MCL 712A.6, which provides as follows:

The court has jurisdiction over adults as provided in this

chapter and as provided in chapter 10A of the revised

judicature act of 1961, 1961 PA 236, MCL 600.1060 to

600.1082, and may make orders affecting adults as in the

opinion of the court are necessary for the physical, mental,

or moral well-being of a particular juvenile or juveniles

under its jurisdiction. However, those orders shall be

incidental to the jurisdiction of the court over the juvenile

or juveniles.

See also MCL 600.1009, which provides: “A reference to the former

juvenile division of probate court in any statute of this state shall be

construed to be a reference to the family division of circuit court.”

582 306 M

ICH

571 [Sept

Appellant’s contention that the family court lacked

subject-matter jurisdiction is without merit. The sub-

ject matter of the proceeding involved the appellant’s

son’s juvenile proceeding. Accordingly, the family court

was entitled to render orders affecting adults that were

necessary for the physical, mental, or moral well-being

of appellant’s son. We reject appellant’s challenge to the

subject-matter jurisdiction of the court.

Furthermore, individuals who violate court orders

are subject to contempt proceedings. See ARA Chuck-

wagon of Detroit, Inc v Lobert, 69 Mich App 151, 159;

244 NW2d 393 (1976). An order entered by a court must

be obeyed until it is judicially vacated. Id. at 161. The

validity of an order is determined by the courts, not the

parties. Id. “Generally, all persons who interfere with

the proper exercise of a court’s judicial function,

whether parties or strangers, are punishable for con-

tempt.” 8 Michigan Law & Practice (2d ed), Contempt,

§ 2, p 3. Because the family court concluded that

appellant interfered with the court’s function, appellant

could be punished for contempt. Id.

III. SEARCH AND SEIZURE AND RANDOM DRUG SCREENS

Appellant next contends that the family court order

for random drug screens constituted an illegal search

and seizure. The family court’s order requiring appel-

lant to submit to random drug testing was unconstitu-

tional under the Fourth Amendment and Const 1963,

art 1, § 11. However, the unconstitutionality of the

order is not a defense to criminal contempt allegations.

The order was entered by a court with proper jurisdic-

tion. Therefore, appellant was required to follow it.

The application of constitutional standards to uncon-

tested facts is a question of law subject to review de

novo. People v Stevens (After Remand), 460 Mich 626,

2014] In re C

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631; 597 NW2d 53 (1999). “This Court review[s] de

novo whether the Fourth Amendment was vio-

lated....”People v Mungo (On Second Remand), 295

Mich App 537, 545; 813 NW2d 796 (2012) (quotation

marks and citation omitted).

“It is well settled that both the United States Con-

stitution and the Michigan Constitution guarantee the

right of persons to be secure against unreasonable

searches and seizures.” People v Hyde, 285 Mich App

428, 438; 775 NW2d 833 (2009) (quotation marks and

citations omitted); see also US Const, Am IV; Const

1963, art 1, § 11. The Michigan Constitution in this

regard is generally construed to provide the same

protection as the Fourth Amendment of the United

States Constitution. People v Slaughter, 489 Mich 302,

311; 803 NW2d 171 (2011). The touchstone of the

Fourth Amendment is reasonableness. Brigham City,

Utah v Stuart, 547 US 398, 403; 126 S Ct 1943; 164 L Ed

2d 650 (2006). Whether a particular search and seizure

is reasonable “is judged by balancing its intrusion on

the individual’s Fourth Amendment interests against

its promotion of legitimate governmental interests.”

Skinner v Railway Labor Executives’ Ass’n, 489 US 602,

619; 109 S Ct 1402; 103 L Ed 2d 639 (1989) (quotation

marks and citation omitted). In most criminal cases,

this balance is struck “in favor of the procedures

described by the Warrant Clause of the Fourth Amend-

ment. Except in certain well-defined circumstances, a

search or seizure in such a case is not reasonable unless

it is accomplished pursuant to a judicial warrant issued

upon probable cause.” Id. (citation omitted); see also

People v Borchard-Ruhland, 460 Mich 278, 293-294;

597 NW2d 1 (1999).

An order requiring a student to submit to drug

testing is an intrusion on bodily privacy and is, there-

584 306 M

ICH

571 [Sept

fore, a search under the Fourth Amendment. Vernonia

Sch Dist 47J v Acton, 515 US 646, 652; 115 S Ct 2386;

132 L Ed 2d 564 (1995) (“[S]tate-compelled collection

and testing of urine...constitutes a ‘search’ subject to

the demands of the Fourth Amendment.”). See also

Skinner, 489 US at 617. Such a search, however, “will

survive constitutional scrutiny, in the absence of a

warrant or individualized suspicion, if the ‘important

governmental interest furthered by the intrusion’ out-

weighs the ‘privacy interests implicated by the

search....’”Middlebrooks v Wayne Co, 446 Mich 151,

159; 521 NW2d 774 (1994), quoting Skinner, 489 US at

624. Although the state has an important governmental

interest in protecting and rehabilitating juvenile of-

fenders, such interest does not outweigh appellant’s

right to privacy in this case.

Michigan has not previously addressed the specific

issue presented in this case. Other jurisdictions,

however, have. In State v Doe, 149 Idaho 353; 233 P3d

1275 (2010), the Does’ minor daughter was placed on

formal probation under Idaho’s Juvenile Corrections

Act (JCA). Id. at 355. A social investigation revealed

that the Does had a history of drug abuse. Accord-

ingly, the magistrate judge ordered the Does “to

undergo random drug urinalyses as a term of their

daughter’s probation.” Id. The Supreme Court of

Idaho concluded that the probation order violated the

Fourth Amendment. Id. at 357-360. The court began

its analysis concluding that the Does retained an

undiminished expectation to privacy: “Although the

Does’ daughter is on probation, it does not necessar-

ily follow that they themselves are subject to a

diminished expectation of privacy in their bodily

fluids.” Id. at 358. The court acknowledged the

state’s legitimate interest in protecting and rehabili-

tating children but held that “even where a substan-

2014] In re C

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585

tial State interest exists, this Court will not uphold a

search ‘whose primary purpose is ultimately indistin-

guishable from the general interest in crime control.’

” Id. at 359 quoting City of Indianapolis v Edmond,

531 US 32, 44; 121 S Ct 447; 148 L Ed 2d 333 (2000).

The Doe court took guidance from Ferguson v City

of Charleston, 532 US 67; 121 S Ct 1281; 149 L Ed 2d

205 (2001). In Ferguson, the Supreme Court analyzed

the constitutionality of a state hospital’s policy of

performing nonconsensual drug testing on pregnant

women suspected of cocaine abuse. Id. at 69-70. The

policy provided for a referral to substance-abuse

treatment for women who tested positive and added

the threat of law enforcement intervention. Id.at72.

The Supreme Court found the policy violative of the

Fourth Amendment because “the central and indis-

pensable feature of the policy from its inception was

the use of law enforcement to coerce the patients into

substance abuse treatment.” Id. at 80. The Supreme

Court observed that the “ultimate goal” of the pro-

gram, i.e., substance-abuse treatment, may have been

salutary, but “the immediate objective of the searches

was to generate evidence for law enforcement purposes

in order to reach that goal.” Id. at 82-83. Although

the hospital intended that the threat of prosecution

would curtail drug use, the “direct and primary

purpose” of the scheme was to assist the police. Id.at

84. The Supreme Court found the distinction critical,

explaining:

Because law enforcement involvement always serves some

broader social purpose or objective, under respondents’

view, virtually any nonconsensual suspicionless search

could be immunized under the special needs doctrine by

defining the search solely in terms of its ultimate, rather

than immediate, purpose. [Id.]

586 306 M

ICH

571 [Sept

Relying on Ferguson, the Doe court concluded that

the urinalysis requirement violated the Fourth Amend-

ment:

Just like the testing program in Ferguson, testing in this

case is characterized by a general interest in law enforce-

ment. The magistrate imposed the urinalysis requirement

during juvenile delinquency proceedings under the JCA,

which are quasi-criminal in nature. The magistrate’s order

requires the Does to report to their daughter’s probation

officer, who is an officer of the county required by law to

“enforce probation conditions.” Nothing prevented the

probation officer from conveying the Does’ test results to

law enforcement. Their failure to comply could result in

contempt sanctions, which would be brought and pursued

by the prosecuting attorney. Indeed, the juvenile probation

officer in this case reported the parents’ positive urinalysis

results to the prosecutor. It also appears that such evidence

could be used to obtain search warrants against the Does

and would be admissible against the Does in further

criminal proceedings for encouraging their daughter’s de-

linquency.

. . . Just as the urine-test requirement in Ferguson was

intended to protect the health of unborn fetuses by detect-

ing prenatal cocaine use, the drug testing here is intended

to ensure the Does’ daughter’s rehabilitation by detecting

drug use at home. The immediate method for attaining the

goals in both cases is to report the drug use for criminal

sanctions. [Doe, 149 Idaho at 359-360 (citations omitted).]

A similar conclusion was reached by the Utah Su-

preme Court in State v Moreno, 2009 Utah 15; 203 P3d

1000 (2009). In Moreno, the defendant’s juvenile daugh-

ter was adjudicated “delinquent for possession of mari-

juana and attempted possession of methamphetamine.”

Id. at ¶ 1. As part of his daughter’s probation, the

juvenile court ordered the defendant to undergo drug

testing. Id. The Utah Supreme Court concluded that

the order violated the Fourth Amendment. Id.at¶42.

2014] In re C

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587

Like the Doe court, the Moreno court concluded that the

defendant enjoyed an undiminished expectation of pri-

vacy: “A parent does not surrender his expectation of

privacy merely because he acquires the status of a

parent of a minor who has been adjudicated delin-

quent.” Id. at ¶ 29. The Moreno court also recognized

the government’s interest of ensuring “that the parent

is drug free and therefore is not providing an inappro-

priate example to the minor or directly contributing to

the minor’s drug use.” Id. at ¶ 32. However, the court

held that this interest was of secondary importance:

The focus of the juvenile court system...isonmodifying

the behavior of the juvenile. Because the focus is on the

behavior of the juvenile, the behavior of parents of juve-

niles involved in the system is of secondary importance.

Attempting to ensure that parents of delinquent juve-

niles are drug free also should not be confused with the goal

of protecting children where there is a concern for their

welfare. In the presence of a welfare concern related to the

parent’s drug use, the government’s interest is decidedly

increased, as are the possible consequences of waiting until

there is probable cause for a search. By contrast, where the

concern of the proceeding is the child’s delinquent behav-

ior, there is less necessity to obtain information about the

parent’s behavior. There is time to obtain information that

will provide probable cause for a search of the parent. [Id.

at ¶¶ 33-34.]

Though Doe, 149 Idaho 353, and Moreno, 2009 Utah

15, are not binding on this Court, their reasoning is

persuasive. There is no dispute that the state has an

interest in protecting and rehabilitating children who

have been adjudicated delinquent. However, appellant

did not enjoy a diminished expectation to privacy

merely by virtue of the fact that her son had been

adjudicated delinquent. Doe, 149 Idaho at 358; Moreno,

2009 Utah at ¶ 29. Appellant enjoyed the full measure of

588 306 M

ICH

571 [Sept

Fourth Amendment protections. The ultimate goal of

drug testing appellant may have been salutary, but the

primary purpose was “ultimately indistinguishable

from the general interest in crime control.” Edmond,

531 US at 44. The order was imposed as part of a

juvenile adjudication, which is quasi-criminal in nature.

People v Williams, 147 Mich App 1, 6; 382 NW2d 191

(1985). Appellant was ordered to test at the direction of

her son’s probation officer, and nothing prevented the

probation officer from turning over appellant’s test

results to law enforcement personnel. Additionally, ap-

pellant’s failure to comply with the order could, and did,

result in criminal contempt sanctions, which were pur-

sued by the prosecutor. Therefore, the family court’s

order was unconstitutional under the Fourth Amend-

ment and Const 1963, art 1, § 11.

The constitutionality of the order, however, is not the

issue directly before this Court. Rather, the issue is

whether appellant was required to follow the order. It is

well settled that “[a] party must obey an order entered

by a court with proper jurisdiction, even 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.” Kirby v Mich

High Sch Athletic Ass’n, 459 Mich 23, 40; 585 NW2d

290 (1998); see also In re Contempt of Henry, 282 Mich

App 656, 680; 765 NW2d 44 (2009). The family court

had jurisdiction over appellant under MCL 712A.6.

Appellant argues that MCL 712A.6 must be inter-

preted in a constitutional manner, and “MCL 712A.6

cannot be interpreted to grant the [family court] subject

matter jurisdiction to issue unconstitutional orders.”

However, the longstanding policy is that “a contempt

proceeding does not open to reconsideration the legal or

factual basis of the order alleged to have been disobeyed

2014] In re C

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589

and thus become a retrial of the original controversy.”

United States v Rylander, 460 US 752, 756; 103 S Ct

1548; 75 L Ed 2d 521 (1983) (quotation marks and

citation omitted). Rather, the underlying challenge to

the original order cannot be raised for the first time in

a contempt proceeding. Id. Further, appellant waived

the challenge to the order underlying the contempt.

Forfeiture is the failure to timely assert a right. People

v Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999).

Waiver is the “intentional relinquishment or abandon-

ment of a known right.” Id. (quotations marks and

citation omitted). The failure to object deprives the

“court of the opportunity to correct the error at the

time it occurs.” People v Vaughn, 491 Mich 642, 674;

821 NW2d 288 (2012). “[U]nequivocal indications” that

one approved of a course of action taken in the trial

court constitute waiver. People v Kowalski, 489 Mich

488, 505; 803 NW2d 200 (2011). “To hold otherwise

would allow counsel to harbor error at trial and then

use that error as an appellate parachute[.]” Id. (quota-

tion marks and citation omitted). A person can waive

his or her constitutional rights, including the right to a

public trial, Vaughn, 491 Mich at 664, as well as

statutory rights, In re Receivership of 11910 South

Francis Rd, 492 Mich 208, 228; 821 NW2d 503 (2012).

Here, the family court issued an order dated Jan-

uary 14, 2011, requiring appellant to “submit to ran-

dom drug testing as requested by Maurice Spear Cam-

pus or the probation department.” The family court

further ordered that appellant’s home remain drug and

alcohol free and subject to random searches. Appellant

did not contest the authority of the family court to enter

this order in the juvenile proceeding as opposed to the

then concurrently pending abuse and neglect petition.

Indeed, compliance with the drugs screens was a require-

ment to reunite appellant with her son. Further, the

590 306 M

ICH

571 [Sept

DHS reported that appellant was in compliance. Nearly

a year after the entry of the order, appellant objected to

the case from which the order originated only after a

show-cause order was entered. However, the order was

in place for a year before appellant contested its origin.

Therefore, appellant waived this challenge.

IV. SUFFICIENCY OF THE EVIDENCE OF CONTEMPT

Appellant raises two issues under this question.

First, appellant argues that there was insufficient evi-

dence to convict her of criminal contempt because the

family court made its findings by a preponderance of

the evidence. The family court entered two contempt

orders in this case. Both included boxes labeled “pre-

ponderance of the evidence” and “beyond a reasonable

doubt.” The “preponderance of the evidence” box was

checked on both orders. Appellant argues that she was

found guilty under the preponderance of the evidence

standard; therefore, there was insufficient evidence to

convict. The family court, however, clarified that there

was a clerical mistake and that its findings were under

the beyond a reasonable doubt standard. Appellant

takes issue with the trial court’s action, stating that the

burden of proof is a matter of substance. This argument

is unpersuasive. The clerical mistake the trial court was

referring to was the checking of the “preponderance of

evidence box,” not the applicable burden of proof.

Appellant next argues that the prosecutor presented

insufficient evidence to convict her of criminal con-

tempt. “To support a conviction for criminal contempt,

two elements must be proven beyond a reasonable

doubt. Those two elements are: (1) that the individual

engage in a wilful disregard or disobedience of the order

of the court, and (2) that the contempt must be clearly

and unequivocally shown.” In re Contempt of O’Neil,

2014] In re C

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591

154 Mich App 245, 247; 397 NW2d 191 (1986) (citations

omitted); see also DeGeorge v Warheit, 276 Mich App

587, 592; 741 NW2d 384 (2007). The defendant must

have acted culpably. People v Little, 115 Mich App 662,

665; 321 NW2d 763 (1982).

Appellant argues that there was insufficient evidence

that she willfully disregarded or disobeyed the family

court’s order. Specifically, appellant argues that she did

not act willfully because she was confused about the

order and intended to consult with counsel before

testing. Appellant cites this Court’s opinion in In re

Contempt of Rapanos, 143 Mich App 483, 495; 372

NW2d 598 (1985), for the proposition that a person does

not willfully violate an order when they act in good faith

reliance on an attorney’s advice. Appellant argues that

“[i]f good faith reliance on an attorney’s advice pre-

vents willfulness then a good faith intent to seek legal

advice... must also prevent the refusal from being

willful.” This argument is unpersuasive.

As stated above, appellant cites Rapanos, 143 Mich

App 483, for the proposition that a person does not

willfully violate an order when they act in good faith

reliance on an attorney’s advice. Rapanos, however,

provides no such support. In Rapanos, this Court

stated: “The federal courts have ruled that when an

individual in good faith relies upon his attorney’s advice

or interpretation of a court order, he cannot be found

guilty of criminal contempt since the element of an

intentional violation of the court’s order has not been

established.” Id. at 495. Though the Rapanos Court

referred to the federal rule, there is no indication that it

adopted it. Further, precedent from our Supreme Court

holds that it is no defense that the contemnor violated

a court order on the advice of counsel. Brown v Brown,

335 Mich 511, 518-519; 56 NW2d 367 (1953); Chapel v

592 306 M

ICH

571 [Sept

Hull, 60 Mich 167, 175; 26 NW 874 (1886). Moreover,

even if the federal rule was applicable, appellant has not

cited any authority to support an extension of the rule

to situations where an individual refuses because he or

she intends to seek the advice of counsel. Accordingly,

appellant’s argument is without merit.

The evidence supports the family court’s finding.

There is no dispute that an order was entered on

January 14, 2011, requiring appellant to submit to

random drug testing at the request of the probation

department. The probation department then made such

a request, and appellant refused. Grohman testified

that she did not show appellant a copy of the order;

however, Grohman stated that she spoke with appellant

and that appellant was aware of the order. Alcala was

present when Grohman spoke with appellant and re-

quested appellant take a drug test. Alcala stated that

Grohman explained to appellant that there was a court

order and that appellant appeared to understand. Thus,

there was competent evidence to support the family

court’s finding that the elements of criminal contempt

were proved beyond a reasonable doubt.

Affirmed.

K. F. K

ELLY

,P.J., and M

ARKEY

and F

ORT

OOD

,JJ.,

concurred.

2014] In re C

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593

MOVIE MANIA METRO, INC v GZ DVD’S INC

Docket No. 311723. Submitted December 4, 2013, at Detroit. Decided

September 9, 2014, at 9:15 a.m.

Movie Mania Metro, Inc., brought an action in the Macomb Circuit

Court against GZ DVD’s Inc., Hazim Jarbo, and Sandra A. Zielke,

alleging (1) trademark infringement under the common law; the

Michigan trademark act, MCL 429.31 et seq.; and the Lanham Act,

15 USC 1051 et seq., and (2) trademark dilution under the Lanham

Act. Plaintiff operated a video-rental business in the Detroit area

and used the trademark “Movie Mania” in connection with its

stores. Thereafter, plaintiff engaged in naked licensing of the

“Movie Mania” mark, which is the practice of allowing others to

use a mark without exercising reasonable control over the nature

and quality of the goods, services, or business on which the

licensees use the mark. While plaintiff had originally registered

the mark with the state, the registration expired in 2006. By 2007,

six stores bearing the mark operated in the Detroit area, but

plaintiff owned only two of them. In 2010, an unaffiliated licensee

closed a Movie Mania location and sold his business assets to

defendants. Defendants contacted plaintiff for permission to con-

tinue the use of the “Movie Mania” mark, but plaintiff demanded

a fee and a licensing agreement. Defendants instead opened a

video-rental store bearing the “Movie Mania” mark near the

closed store. In January 2011, plaintiff demanded that defendants

cease using the mark, after which plaintiff registered the mark

again in April 2011. Following discovery in the lawsuit, defendants

moved for summary disposition, asserting that plaintiff had aban-

doned the “Movie Mania” mark by (1) failing to renew the mark in

2006, (2) allowing other parties to use the mark without supervi-

sion, fees, or standards, and (3) generally failing to protect the

mark as a source identifier. The court, Richard L. Caretti, J.,

granted the motion, concluding that plaintiff’s trademark-

infringement arguments were precluded because it had engaged in

naked licensing from 1999 to 2005 and therefore had abandoned

the mark before defendants used it. The court also rejected

plaintiff’s argument that defendants’ activities constituted trade-

mark dilution under the Lanham Act because the “Movie Mania”

mark was not a famous mark. Plaintiff appealed.

594 306 M

ICH

594 [Sept

The Court of Appeals held:

The Lanham Act provides that naked licensing constitutes

abandonment of a trademark. Therefore, trademark holders that

engage in naked licensing relinquish all rights to the mark. The

Michigan trademark act does not provide that naked licensing

constitutes abandonment of a trademark and instead defines

abandonment as being the nonuse or implied nonuse of a trade-

mark. Accordingly, a mark holder that engages in naked licensing

of its trademark abandons the trademark under the Lanham Act

but not under the Michigan act. Nevertheless, a mark holder that

engages in naked licensing cannot sustain a trademark-

infringement claim under the Michigan act or at common law

because the naked licensing of a mark renders it not valid as a

trademark.

1. A party alleging a trademark violation under the Lanham

Act may litigate the action in state court. Plaintiff, however,

abandoned its argument on appeal that the trial court erred by

granting summary disposition to defendants on the federal claims

when it discussed only naked licensing and the concept of trade-

mark abandonment under Michigan law in its brief and failed to

discuss the relevant legal standards necessary to establish trade-

mark infringement and trademark dilution under federal law.

Regardless, plaintiff’s federal claims lacked merit.

2. Plaintiff’s claim of trademark dilution was frivolous. Under

15 USC 1125(c)(1), only owners of a famous mark can prevail on a

dilution claim. According to 15 USC 1125(c)(2)(A), a mark is

famous if it is widely recognized by the general consuming public

of the United States as a designation of the source of the goods or

services of the mark’s owner, which plaintiff’s mark was not.

3. The trial court also correctly granted defendants summary

disposition on plaintiff’s claim of trademark infringement under

the Lanham Act because plaintiff abandoned the “Movie Mania”

mark under 15 USC 1127 when it engaged in naked licensing.

When other businesses use the mark that is the subject of naked

licensing, consumers are unable to use the mark to distinguish

goods and services bearing the mark as originating exclusively

from the mark holder. Because naked licensing destroys a mark’s

ability to serve as a source identifier for consumers, state courts

held at common law that plaintiffs that engaged in naked licensing

could not prevail in trademark-infringement actions because the

mark was not distinctive and accordingly not a valid trademark

protectable under trademark law. 15 USC 1127, on the other hand,

deems naked licensing to be abandonment of a trademark, which

is effectively the same as rendering the mark not valid. To avoid

2014] M

OVIE

ANIA V

GZ DVD’

595

abandonment, a trademark holder that licenses its mark to third

parties must retain control of the mark, which could include

supervision of the licensee’s operations, store layout, advertising,

sales and merchandising, or other incidences of business. The

“Movie Mania” mark could not have served to consumers as an

indication of consistent and predictable quality because several

businesses used the “Movie Mania” name and had no uniform

standard of control or quality between them.

4. The trial court incorrectly held that naked licensing of a

mark constitutes abandonment of that mark under the Michigan

trademark act. MCL 429.31(i) states that a mark is abandoned

when its use has been discontinued with intent not to resume the

use. During the time relevant to this litigation, plaintiff continu-

ously operated a video-rental business bearing the “Movie Mania”

mark. Accordingly, plaintiff never abandoned the mark under the

Michigan trademark act because plaintiff never discontinued the

mark’s use. Engaging in naked licensing is irrelevant for purposes

of abandonment under the trademark act because the act does not

recognize that naked licensing constitutes abandonment.

5. The trial court, however, ultimately reached the correct

result under the Michigan trademark act (that defendants were

not liable for trademark infringement), because naked licensing of

a mark destroys the mark’s validity and therefore renders the

mark not protectable as a trademark under Michigan law. Plain-

tiff’s underlying claim was for trademark infringement. A plaintiff

that claims infringement under MCL 429.42 must show (1) that

the mark the plaintiff claims to hold is valid, that is, it actually

functions as a trademark, (2) that the plaintiff holds priority in the

mark, that is, the plaintiff used the mark before the defendant, (3)

that consumers are likely to confuse the defendant’s mark with

the plaintiff’s mark, and (4) that the defendant used the allegedly

infringing mark. Under the Michigan trademark act and at

common law, trademarks are valid when they are (1) used in

connection with the sale and advertising of products or services

and (2) distinctive in that consumers understand the mark to

designate goods or services as the product of a particular manu-

facturer or trader. Therefore, to be distinctive and consequently a

valid trademark, the trademark must serve as a source identifier

to consumers. Plaintiff’s naked licensing of the “Movie Mania”

mark to other video-rental business operators destroyed whatever

distinctiveness “Movie Mania” possessed. The mark was therefore

not valid and not entitled to protection under the trademark act.

Affirmed.

596 306 M

ICH

594 [Sept

1. I

NTELLECTUAL

ROPERTY —

RADEMARKS —

NFRINGEMENT

ITIGATION —

EDERAL

ANHAM

CT —

URISDICTION —

TATE

OURTS

A party alleging a trademark violation under the Lanham Act, 15

USC 1051 et seq., may litigate the action in a state court.

2. I

NTELLECTUAL

ROPERTY —

RADEMARKS —

NFRINGEMENT

ITIGATION —

AKED

ICENSING —

EDERAL

ANHAM

CT —

ICHIGAN

RADEMARK

CT —

BAN-

DONMENT OF

RADEMARKS —

NVALID

RADEMARKS

Naked licensing of a trademark is the practice of allowing others to

use the mark without exercising reasonable control over the

nature and quality of the goods, services, or business on which the

licensees use the mark; under 15 USC 1127, part of the Lanham

Act, 15 USC 1051 et seq., naked licensing constitutes abandonment

of a trademark and trademark holders that engage in naked

licensing relinquish all rights to the mark, precluding a

trademark-infringement under that act; engaging in naked licens-

ing does not constitute abandonment of the mark under the

Michigan trademark act, MCL 429.31 et seq., but naked licensing

precludes a trademark-infringement claim under that act or at

common law because the naked licensing of a mark destroys its

distinctiveness and renders it not valid as a trademark.

Aubrey H. Tobin, Attorney at Law, PC (by Aubrey H.

Tobin), for plaintiff.

Kim Corbin, PLLC (by Kim Corbin), for defendants.

Before: M

ETER

,P.J., and C

AVANAGH

and S

AAD

,JJ.

AAD

, J. Plaintiff appeals the trial court’s order that

granted summary disposition to defendants. For the

reasons stated below, we affirm.

I. NATURE OF THE CASE

This case is a claim for trademark infringement. As

our Court recently explained in Janet Travis, Inc v

Preka Holdings, LLC, Michigan law has offered protec-

tion of trademark rights for the benefit of

business owners, and the consuming public. Business own-

ers, who invest significant amounts of money and effort to

2014] M

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597

convince consumers to identify their marks with their

products and services, needed a remedy against competi-

tors who sought to free ride on this accumulated goodwill

by copying or pirating already established marks. Consum-

ers, who associated and expected a certain level of service

and quality with certain marks, needed protection from

imposters who copied or pirated already established marks

to “pass off” their goods and services as those of the

business associated with the marks. [Janet Travis, Inc v

Preka Holdings, LLC, 306 Mich App 266, 267-268; 856

NW2d 206 (2014) (citation omitted).]

Trademark law, therefore, involves “the advancement

of two distinct but related interests: the private right of

the trademark holder to prevent others from using its

mark to pass off the others’ goods or services as the

trademark holders, and the public right to protection

from this deceptive practice.” Travis, 306 Mich App at

268.

Because the right of a trademark holder to its trade-

mark is a by-product of these two interests, trademark

rights are a special kind of intellectual property in that

the mark holder’s right to exclusive use of its mark is

tempered by and dependent on the perceptions of the

consuming public. For a mark to serve as a trademark

and be entitled to legal protection, the consuming

public must be able to use the mark to “distinguish a

good as originating from a particular source.”

If the

consuming public is unable to use the mark to distin-

guish a good as originating from a particular source, the

mark does not function as a trademark and is thus not

entitled to legal protection. Trademark rights are thus

inherently mutable because they are dependent on

whether the consuming public is able to use the mark to

distinguish a good or service as originating from a

particular source.

Travis, 306 Mich App at 281, citing MCL 429.32(e).

598 306 M

ICH

594 [Sept

Consumer perception of a mark can be shaped by

many factors, including the actions of the mark holder.

Normally, as in Travis, the mark holder realizes the

valuable nature of its trademark and will thus make

every effort to ensure that, in the minds of consumers,

the mark remains associated with the mark holder’s

products and services, and the mark holder’s products

and services alone. But on occasion, as here, a mark

holder, through its own actions or omissions, destroys

the value of the trademark by severing the link in the

mind of the consumer between the mark holder’s mark

and the particular product or service. In other words, a

mark holder’s actions can cause its mark to no longer

function as a trademark, and thus not be entitled to

legal protection.

One common way that a mark holder may engage in

this mark-destroying process is “naked licensing,” or the

practice of “allowing others to use [its] mark without

exercising ‘reasonable control over the nature and quality

of the goods, services, or business on which the [mark] is

used by the licensee’.”

If other businesses are using the

mark holder’s mark, and operate independently and with

little to no oversight from the mark holder, consumers will

be unable to use the mark to distinguish goods and

services bearing the mark as originating exclusively from

the mark holder. In other words, a mark that is the subject

of naked licensing can no longer function as a trademark

and is accordingly not the proper subject of legal protec-

tion. In the parlance of trademark law, naked licensing

destroys a mark’s “distinctiveness” and renders it “not

valid”

as a trademark.

Eva’s Bridal Ltd v Halanick Enterprises, Inc, 639 F3d 788, 789 (CA 7,

2011) (Easterbrook, C.J.) (citation omitted) (second alteration in original).

“Not valid” is a term of art in trademark law that refers to a

trademark’s lack of “validity.” A “valid” trademark is one that is properly

2014] M

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599

Because this practice prevents consumers from being

able to use the mark to identify goods and services as

the products of a specific business, courts have refused

to protect marks that are subject to naked licensing at

common law, under Michigan law, and under federal

law. Initially, both state and federal courts did so by

holding that nakedly licensed marks were not valid

trademarks and thus not properly protectable under

trademark law. After revisions to the federal Lanham

Act

in 1988, however, most federal decisions now hold

that nakedly licensed trademarks have been “aban-

doned,” while state courts continue to hold, under

statutory and common law, that nakedly licensed trade-

marks are not valid.

This case requires us to make this doctrinal distinc-

tion between state and federal law. The Lanham Act

explicitly states that naked licensing constitutes “aban-

donment” of a trademark, in that trademark holders

who engage in naked licensing relinquish all rights to

their mark.

The Michigan trademark and service mark

act (Trademark Act)

does not state that naked licens-

ing constitutes abandonment of a trademark and in-

stead defines abandonment to mean mere nonuse, or

implied nonuse, of the trademark.

Accordingly, a mark

holder that engages in naked licensing of its trademark

“abandons” the trademark under the Lanham Act, but

does not “abandon” the trademark under the Trade-

the subject of trademark law—i.e., is protectable under trademark law.

See Abercrombie & Fitch Co v Hunting World, Inc, 537 F2d 4, 9 (CA 2,

1976) (Friendly, J.). In this opinion, we use the terms “not valid” and

“invalid” interchangeably to refer to a mark’s lack of validity.

15 USC 1051 et seq.

15 USC 1127.

MCL 429.31 et seq.

MCL 429.31(i) states that “a mark is ‘abandoned’ when its use has

been discontinued with intent not to resume.”

600 306 M

ICH

594 [Sept

mark Act. Nevertheless, a mark holder that engages in

naked licensing is not able to sustain a trademark-

infringement claim under the Trademark Act or at

common law because the naked licensing of a mark

renders that mark not valid as a trademark.

Plaintiff is a mark holder that engaged in naked

licensing of its mark, “Movie Mania,” for more than five

years with multiple parties. It nonetheless sued defen-

dants, who used the “Movie Mania” mark a decade after

the first instance of plaintiff’s naked licensing, for

trademark infringement, under both the Lanham Act

and the Trademark Act. The trial court granted defen-

dants’ request for summary disposition on the theory

that plaintiff’s naked licensing constituted abandon-

ment of the “Movie Mania” mark under both the

Lanham Act and the Trademark Act.

We affirm this decision, but the trial court reached

the right result for the wrong reasons. Naked licensing

constitutes abandonment under the Lanham Act, but it

does not constitute abandonment under the Trademark

Act’s more narrow definition of that term. Even so,

plaintiff’s action for infringement fails because its na-

ked licensing of “Movie Mania” has made the mark not

valid, and defendants’ use of the mark does not make it

liable for trademark infringement under the Trade-

mark Act.

We therefore reject plaintiff’s arguments on appeal

and affirm the order of the trial court.

II. FACTS AND PROCEDURAL HISTORY

Plaintiff operated a video-rental business in metro

Detroit, and began using the name “Movie Mania” in

commerce in 1989. It subsequently registered the

“Movie Mania” mark with the appropriate Michigan

department in 1996. Thereafter, plaintiff acted as a

2014] M

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601

promiscuous licensor and allowed various unaffiliated

parties in the Detroit area to use the “Movie Mania”

mark in conjunction with those parties’ video-rental

businesses.

This lawsuit is the product of a series of such

licensing transactions, which began in 1999. In that

year, plaintiff sold one of its Movie Mania locations to

another company, CLD, Inc, which sought to continue

the store’s video-rental business. Plaintiff allowed CLD

to continue to use the “Movie Mania” mark for $1 in

annual royalties. Yet the licensing agreement placed

almost no restrictions on the use of the mark, nor did it

contain standards on advertising or store operations, or

include any requirements related to the rental or sale of

merchandise at the CLD-owned Movie Mania.

CLD sold its Movie Mania store to Adnan Samona in

2005. Samona contacted plaintiff and asked permission

to continue use of the “Movie Mania” mark, which

plaintiff granted. Plaintiff did not require Samona to

sign a licensing agreement or pay any royalty fee in

return for use of the mark. Nor did plaintiff object or

contact Samona as he expanded his business in 2006

and 2007, purchasing another, unaffiliated video-rental

store and changing its name to “Movie Mania.”

Again,

as in its dealings with CLD, plaintiff provided Samona

with almost no restrictions on the use of the mark, nor

did it set standards on advertising or store operations or

outline requirements related to the rental or sale of

merchandise at the Samona-owned Movie Mania.

Plaintiff’s lack of proprietary regard for the mark extended to its

registration, which expired in 2006. See MCL 429.38(a) (providing that

registered marks that are more than 10 years old and not renewed are

canceled from the register). Nonetheless, the licensed (and unlicensed)

use of the “Movie Mania” mark continued unabated: by the end of

Samona’s expansion in 2007, six stores bearing the mark operated in

metro Detroit. Plaintiff owned only two of the locations.

602 306 M

ICH

594 [Sept

In 2010, Samona closed his St. Clair Shores Movie

Mania location and sold its business assets to defendants.

As Samona had done in 2005 when he purchased CLD’s

Movie Mania store, defendant Sandra A. Zielke contacted

plaintiff to ask permission to continue use of the “Movie

Mania” mark. One of plaintiff’s officers told Zielke that

defendants could not use the mark unless they paid a fee

and signed a licensing agreement. Defendants did not

acquiesce to plaintiff’s request and opened a video-rental

store bearing the “Movie Mania” mark one block away

from Samona’s original location. In January 2011, plain-

tiff told defendants that “Movie Mania” was a registered

Michigan service mark (actually, it was not—as noted, its

registration expired in 2006 because plaintiff failed to

renew the registration) and demanded that defendants

cease and desist use of the mark. Plaintiff did not rereg-

ister the “Movie Mania” mark until an even later date,

April 18, 2011, which further demonstrates that it places

little value in its mark.

Plaintiff then initiated this action against defendants

in the Macomb Circuit Court and alleged, among other

things, (1) trademark infringement under the common

law, the Trademark Act, and the Lanham Act and (2)

trademark dilution under the Lanham Act. After dis-

covery, defendants moved for summary disposition un-

der MCR 2.116(C)(10) because plaintiff had abandoned

the “Movie Mania” mark when it (1) failed to renew the

mark in 2006, (2) allowed other parties to use the mark

without supervision, fees, or standards, and (3) gener-

ally failed to protect the mark as a source identifier.

The trial court granted defendants’ motion for sum-

mary disposition of plaintiff’s claims. In a written

opinion, it found that plaintiff’s trademark-

infringement arguments (under the common law,

Trademark Act, and the Lanham Act) were precluded

2014] M

OVIE

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GZ DVD’

603

because plaintiff engaged in naked licensing from 1999

to 2005 and thus abandoned the mark before defen-

dants used it. The trial court also rejected plaintiff’s

argument that defendants’ activities constituted trade-

mark dilution under the Lanham Act because the

“Movie Mania” mark was not a “famous” mark and

thus not entitled to a trademark-dilution remedy.

Plaintiff makes three claims on appeal, two are under

the Lanham Act (trademark infringement and trade-

mark dilution) and one under the Trademark Act

(trademark infringement). Defendants ask that we up-

hold the trial court’s grant of summary disposition with

respect to these claims.

III. STANDARD OF REVIEW AND JURISDICTION

A trial court’s decision on a motion for summary

disposition is reviewed de novo. Smith v Globe Life Ins Co,

460 Mich 446, 454; 597 NW2d 28 (1999). When our Court

reviews a motion for summary disposition brought under

MCR 2.116(C)(10), it considers “affidavits, pleadings,

depositions, admissions, and documentary evidence filed

in the action or submitted by the parties in a light most

favorable to the party opposing the motion.” Id. (citations

and quotation marks omitted).

“Although the federal courts have jurisdiction over

trademark claims brought under the Lanham Act, that

jurisdiction is not exclusive. . . . A party alleging a

trademark violation under the statute may litigate in

state court if it so chooses.” Bd of Regents of the Univ of

Wisconsin Sys v Phoenix Int’l Software, Inc, 653 F3d

448, 465 (CA 7, 2011).

The trial court did not specifically identify the appropriate summary

disposition subrule, but it is apparent that it is MCR 2.116(C)(10), as the

trial court’s consideration went beyond the parties’ pleadings. Healing

Place v Allstate Ins Co, 277 Mich App 51, 55; 744 NW2d 174 (2007).

604 306 M

ICH

594 [Sept

Statutory interpretation is a question of law that is

reviewed de novo. Fradco, Inc v Dep’t of Treasury, 495

Mich 104, 112; 845 NW2d 81 (2014). When interpreting

a statute, a court must “ascertain the legislative intent

that may reasonably be inferred from the words ex-

pressed in the statute. This requires courts to consider

the plain meaning of the critical word or phrase as well

as its placement and purpose in the statutory scheme.”

Id. (citations and quotation marks omitted). “The

Trademark Act is based on the common law, and it is

therefore appropriate, when interpreting the statute, to

consider federal and state cases that apply the common

law of trademark. It is also ‘appropriate to look to

federal case law when interpreting a state statute which

parallels its federal counterpart,’ as it appears the

Michigan Trademark Act does the federal Lanham

Act.” Travis, 306 Mich App at 275 (citations omitted).

IV. ANALYSIS

A. FEDERAL CLAIMS UNDER THE LANHAM ACT

We note at the outset that plaintiff merely asserts

trademark infringement and trademark dilution under

the Lanham Act. It devotes almost the entirety of its

brief to naked licensing and abandonment under Michi-

gan law—only one claim among the three it brings—

and fails to discuss the relevant legal standards neces-

sary to establish trademark infringement and

trademark dilution under federal law.

“An appellant

may not merely announce his position and leave it to

this Court to discover and rationalize the basis for his

“In Michigan, there are three sources of trademark law: common law,

the state Trademark Act, and the federal Lanham Act. A plaintiff may

bring separate trademark-related claims under each body of law.” Travis,

306 Mich App at 276.

2014] M

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605

claims, nor may he give issues cursory treatment with

little or no citation of supporting authority.” Houghton

v Keller, 256 Mich App 336, 339; 662 NW2d 854 (2003)

(citations omitted). Accordingly, plaintiff has aban-

doned its argument that the trial court erred when it

granted summary disposition to defendants on these

federal claims.

1. TRADEMARK DILUTION

In any event, plaintiff’s federal claims, such as they

are, lack merit. Its assertion of trademark dilution is

particularly frivolous. 15 USC 1125(c)(1) states:

[T]he owner of a famous mark that is distinctive, inher-

ently or through acquired distinctiveness, shall be entitled

to an injunction against another person who, at any time

after the owner’s mark has become famous, commences use

of a mark or trade name in commerce that is likely to cause

dilution by blurring or dilution by tarnishment of the

famous mark, regardless of the presence or absence of

actual or likely confusion, of competition, or of actual

economic injury.

Therefore, only owners of a “famous mark” will

prevail on a dilution claim. “[A] mark is famous if it is

widely recognized by the general consuming public of

the United States as a designation of source of the goods

or services of the mark’s owner.” 15 USC 1125(c)(2)(A).

In addition, “[f]ame for likelihood of confusion

[claims]

[11]

and fame for dilution [claims] are distinct

“Likelihood of confusion” refers to an element plaintiffs must show

to demonstrate trademark infringement (not trademark dilution, which

is a wholly separate claim) under the Lanham Act, the Trademark Act, or

the common law. See Travis, 306 Mich App at 275-276. Consumer

perception and recognition of a mark are a necessary component of the

likelihood-of-confusion analysis. The statement in Coach makes clear

that the standard of consumer mark recognition required for a

trademark-dilution claim is much more stringent—meaning truly na-

606 306 M

ICH

594 [Sept

concepts, and dilution fame requires a more stringent

showing.” Coach Servs, Inc v Triumph Learning LLC,

668 F3d 1356, 1373 (CA Fed, 2012), citing 4 McCarthy,

Trademarks & Unfair Competition (4th ed) § 24:104, p

24-325 (March 20, 2014) (“The standard for the kind of

‘fame’ needed to trigger anti-dilution protection is more

rigorous and demanding than the ‘fame’ which is suffi-

cient for the classic likelihood of confusion test.”).

Needless to say, the “Movie Mania” mark is not

“famous” under 15 USC 1125(c)(1) and (2)(A)—it is not

“widely recognized by the general consuming public of

the United States.” Accordingly, the trial court correctly

granted defendants summary disposition on plaintiff’s

trademark-dilution claim.

2. TRADEMARK INFRINGEMENT

Plaintiff’s claim of trademark infringement under

the Lanham Act is equally unavailing, because it aban-

doned the “Movie Mania” mark under 15 USC 1127

when it engaged in naked licensing.

a. NAKED LICENSING

As noted, naked licensing is the practice of “allowing

others to use [a] mark without exercising ‘reasonable

control over the nature and quality of the goods, ser-

vices, or business on which the [mark] is used by the

licensee’.”

When other businesses use the mark that is

the subject of naked licensing, consumers are unable to

use the mark to distinguish goods and services bearing

the mark as originating exclusively from the mark

tional, widespread recognition—than that required for a likelihood-of-

confusion analysis in a trademark-infringement claim.

Eva’s Bridal, 639 F3d at 789 (citation omitted) (second alteration in

original).

2014] M

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holder. Because naked licensing of a mark destroys the

mark’s ability to serve as a source identifier for

consumers—in other words, destroys the mark’s ability

to function as a trademark—state courts held at com-

mon law that plaintiffs who engaged in naked licensing

could not prevail in trademark-infringement actions

against defendants who used the mark that the plaintiff

nakedly licensed.

In trademark-law terms, a mark

that is the subject of naked licensing is not “distinctive”

and therefore not a valid trademark that is properly

protectable under trademark law.

After the passage of the Lanham Act opened the

federal judiciary to trademark-law disputes in 1946,

federal courts also recognized that naked licensing

rendered marks not valid and made them unworthy of

protection under the Lanham Act:

If the licensor is not compelled to take some reasonable

steps to prevent misuses of his trademark in the hands of

others the public will be deprived of its most effective

See, for example, Detroit Creamery Co v Velvet Brand Ice Cream Co,

187 Mich 312, 316; 153 NW 664 (1915) (“It has been universally held that

a trade-mark, as such cannot be assigned separately and distinct from the

property to which it has been attached, and likewise the rule has been

laid down that a naked license to use a trade-mark is of no more validity

than an assignment thereof.”); Broeg v Duchaine, 319 Mass 711, 713; 67

NE2d 466 (1946) (holding under common law of trademark that “[o]ne

who has developed a trade mark as a guaranty of the quality of his

merchandise should not be permitted to license its use apart from his

business to those who may sell an inferior product”); 3 McCarthy,

Trademarks & Unfair Competition (4th ed), § 18:48.

See, for example, 88¢ Stores, Inc v Martinez, 227 Or 147, 160; 361

P2d 809 (1961) (“In the absence of [licensor control over licensees], the

goods or services are not treated as emanating from a common source, an

essential element of a common law trademark or trade name.”); Alex-

ander Ave Kosher Restaurant Corp v Dragoon, 306 AD2d 298, 300; 762

NYS2d 101 (2003) (“[A] licensor must have some quality control of the

goods produced by the licensee.”); 3 McCarthy, Trademarks & Unfair

Competition (4th ed), § 18:48.

608 306 M

ICH

594 [Sept

protection against misleading uses of a trademark. The

public is hardly in a position to uncover deceptive uses of a

trademark before they occur and will be at best slow to

detect them after they happen. Thus, unless the licensor

exercises supervision and control over the operations of its

licensees the risk that the public will be unwittingly

deceived will be increased and this is precisely what the Act

is in part designed to prevent. See Sen. Report No. 1333,

79th Cong., 2d Sess. (1946). Clearly the only effective way

to protect the public where a trademark is used by licensees

is to place on the licensor the affirmative duty of policing in

a reasonable manner the activities of his licensees. [Dawn

Donut Co, Inc v Hart’s Food Stores, Inc, 267 F2d 358, 367

(CA 2, 1959).]

This mode of analysis shifted in 1988, when Congress

revised 15 USC 1127 and codified the concept of naked

licensing in a specific context: abandonment. Under the

Lanham Act’s revised definition of “abandoned,” a

trademark holder who engages in “acts of omission as

well as commission” that cause the trademark to “lose

its significance as a mark”—i.e., naked licensing—

abandons the mark and relinquishes all rights to it. 15

USC 1127.

Accordingly, most federal cases now analyze naked

licensing through the framework of abandonment: i.e.,

a plaintiff engaged in naked licensing and has thus

abandoned its mark under 15 USC 1127.

However,

this new analysis of naked licensing does not contradict

the precodification approach, which analyzes naked

licensing under the framework of the mark’s validity. In

fact, labeling naked licensing as “abandonment” of a

mark is simply another way of saying that naked

licensing renders a trademark not valid. In each classi-

See, for example, Eva’s Bridal, 639 F3d at 789; Exxon Corp v Oxxford

Clothes, Inc, 109 F3d 1070, 1075 (CA 5, 1997); Doeblers’ Pennsylvania

Hybrids, Inc v Doebler, 442 F3d 812, 823 (CA 3, 2006); FreecycleSunny-

vale v Freecycle Network, 626 F3d 509, 515-516 (CA 9, 2010).

2014] M

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fication, the trademark holder’s conduct—uncontrolled

licensing—causes the mark to lose its ability to function

as a source identifier to consumers. See 3 McCarthy,

Trademarks & Unfair Competition (4th ed), § 18:48.

Stated another way, naked licensing causes the trade-

mark to lose all significance as a trademark. Calling the

mark “abandoned,” as 15 USC 1127 does, or focusing on

the mark’s validity, as the earlier cases did, are thus two

ways of describing the same concept, and both mandate

the same result: a trademark holder that engages in

naked licensing cannot prevail in a trademark-

infringement suit against an alleged infringer using the

mark that was nakedly licensed.

Plaintiffs who engage in naked licensing thus lose

their rights to their mark in two ways. First, at common

law, and under the Trademark Act

and the Lanham

Act, a mark that is nakedly licensed loses its ability to

function as a source identifier for consumers and thus is

no longer a valid trademark. Second, under the defini-

tion of “abandoned” in 15 USC 1127, a trademark

holder that engages in naked licensing abandons its

trademark and loses all rights to the use of the mark.

To analyze plaintiff’s federal claim of trademark

infringement under the Lanham Act, then, we turn to

15 USC 1127 and its definition of “abandoned.”

As noted, “The Trademark Act is based on the common law, and it is

therefore appropriate, when interpreting the statute, to consider federal

and state cases that apply the common law of trademark.” Travis, 306

Mich App at 275, citing MCL 429.44. Furthermore, “[i]t is also ‘appro-

priate to look to federal case law when interpreting a state statute which

parallels its federal counterpart,’ as it appears the Michigan Trademark

Act does the federal Lanham Act.” Travis, 306 Mich App at 275 (citations

omitted). Accordingly, a mark holder that engages in naked licensing of

the mark renders it not valid under the Trademark Act—just as the same

conduct would render the mark not valid under the common law and the

Lanham Act.

610 306 M

ICH

594 [Sept

b. PLAINTIFF’S TRADEMARK INFRINGEMENT CLAIM

15 USC 1125(a)(1) allows mark holders to bring a

civil action against “any person” that, among other

things, confuses consumers or misrepresents the ori-

gins of the goods and services on offer. 15 USC 1127 also

provides that marks can be abandoned by mark holders,

and thus cease to be a mark for purposes of the Lanham

Act:

A mark shall be deemed to be “abandoned” if either of

the following occurs:

(1) When its use has been discontinued with intent not

to resume such use. Intent not to resume may be inferred

from circumstances. Nonuse for 3 consecutive years shall

be prima facie evidence of abandonment. “Use” of a mark

means the bona fide use of such mark made in the ordinary

course of trade, and not made merely to reserve a right in

a mark.

(2) When any course of conduct of the owner, including

acts of omission as well as commission, causes the mark to

become the generic name for the goods or services on or in

connection with which it is used or otherwise to lose its

significance as a mark. Purchaser motivation shall not be a

test for determining abandonment under this paragraph.

To avoid abandonment, then, the trademark holder

that licenses its mark to third parties must retain

control of the mark—which might include supervision

of the licensee’s operations, store layout, advertising,

sales and merchandising, or other incidences of busi-

ness. See Eva’s Bridal, 639 F3d at 790. This control is

essential because “[t]rademarks [are]...indications of

consistent and predictable quality assured through the

trademark owner’s control over the use of the designa-

tion.” Restatement Unfair Competition, 3d, § 33, com-

ment a, p 338. By retaining control over the licensee

that uses its mark, the original trademark holder will

2014] M

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611

ensure that the trademark remains able “to tell shop-

pers what to expect—and whom to blame if a given

outlet falls short,” and thus retain its function as a

source identifier for consumers. Eva’s Bridal, 639 F3d

at 790.

Conversely, when a trademark holder relinquishes

control over its mark and allows others to use the mark

with little to no supervision, the trademark holder

engages in naked licensing and the mark becomes

abandoned under 15 USC 1127. Exxon Corp v Oxxford

Clothes, Inc, 109 F3d 1070, 1075 (CA 5, 1997). Naked

licensing “is an ‘[u]ncontrolled licensing of a mark

whereby the licensee can place the mark on any quality

or type of goods or services,’ raising ‘a grave danger that

the public will be deceived by such a usage.’ ” Doeblers’

Pennsylvania Hybrids, Inc v Doebler, 442 F3d 812, 823

(CA 3, 2006), quoting an earlier version of McCarthy,

Trademarks & Unfair Competition (alteration in the

original). Stated another way, naked licensing also

involves “allowing others to use the mark without

exercising ‘reasonable control over the nature and

quality of the goods, services, or business on which the

[mark] is used by the licensee’.” Eva’s Bridal, 639 F3d

at 789 (citation omitted) (alteration in original).

A mark holder that engages in naked licensing thus

destroys its mark—it is no longer able to serve as a

meaningful source identifier to consumers and accord-

ingly loses its significance as a mark—and the protec-

tions afforded to actual marks under the Lanham Act.

FreecycleSunnyvale v Freecycle Network, 626 F3d 509,

516 (CA 9, 2010) (holding that “naked licensing is

inherently deceptive and constitutes abandonment of

any rights to the trademark by the licensor”) (citation

and quotation marks omitted); see also 3 McCarthy,

Trademarks & Unfair Competition (4th ed), § 18:48.

612 306 M

ICH

594 [Sept

Plaintiff’s activity in this case is a textbook example

of naked licensing. Its cavalier attitude toward use of

the “Movie Mania” mark is reflected in its uncontrolled

licensing of the mark to two business owners over a

period of six years. In 1999, plaintiff entered into a

licensing agreement with CLD and allowed CLD to use

the “Movie Mania” mark in conjunction with its video-

rental store. Yet plaintiff provided no standards for use

of the mark, advertising, store operations, or any re-

quirements related to the rental or sale of merchandise

at the CLD-owned Movie Mania.

In 2005, plaintiff repeated these actions on a more

audacious scale. After Adnan Samona purchased CLD,

plaintiff allowed him use of the “Movie Mania” mark—

and did not require him to sign a license agreement for

that use, even as he expanded his business and used the

“Movie Mania” mark at those new locations. And again,

plaintiff placed almost no restrictions on Samona’s use

of the mark, nor did it set standards for his business on

advertising or store operations or outline requirements

related to the rental or sale of merchandise at the

Samona-owned Movie Mania. To repeat: by 2007 there

were six Movie Mania stores operating in metro Detroit,

and only two were owned by plaintiff. It is not possible

that the “Movie Mania” mark served as an “indication[]

of consistent and predictable quality” to consumers at

this point—multiple businesses used the “Movie Ma-

nia” name, and had no uniform standard of control or

quality among them. Restatement Unfair Competition,

3d, § 33, comment a, p 338; see also Eva’s Bridal, 639

F3d at 789.

Plaintiff’s lax attitude toward its mark underwent a

radical shift in 2010 when defendants expressed an

interest in using “Movie Mania.” But plaintiff’s sudden

discovery of responsible-trademark-holder religion

2014] M

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613

seems more like a conversion of convenience than a

profession of genuine faith. And, in any event, plain-

tiff’s actions by 2010—namely, its failure to control the

activities and standards of the other businesses to

which it had licensed the “Movie Mania” mark—had

already destroyed any function of source identification

that the mark possessed. The mark is thus abandoned

under 15 USC 1127, and plaintiff has lost its “trade-

mark rights against the world.” Exxon, 109 F3d at 1075.

The trial court therefore correctly granted defen-

dants summary disposition on plaintiff’s claim of fed-

eral trademark infringement.

B. MICHIGAN TRADEMARK ACT

Plaintiff also appeals the trial court’s determination

under Michigan’s Trademark Act that it “abandoned”

the “Movie Mania” mark when it engaged in naked

licensing. We agree that the trial court wrongly held

that naked licensing of a mark constitutes abandon-

ment of the mark under the Trademark Act. But the

trial court’s ultimate ruling—that defendants are not

liable for trademark infringement—is correct because,

as noted, naked licensing of a mark destroys the mark’s

validity and thus renders the mark not protectable as a

trademark under Michigan law. We address each issue

in turn.

1. ABANDONMENT

MCL 429.31(i) states that a mark is

“abandoned” when its use has been discontinued with

intent not to resume. Intent not to resume may be inferred

from circumstances. Nonuse for 2 consecutive years shall

be prima facie abandonment.

614 306 M

ICH

594 [Sept

At the time period relevant to this litigation, plaintiff

continuously operated a video-rental business bearing

the “Movie Mania” mark. It is therefore not possible

that plaintiff “abandoned” the mark under the Trade-

mark Act’s definition of that term because plaintiff

never “discontinued” the mark’s use. For the purposes

of abandonment under the Trademark Act, it is irrel-

evant that plaintiff engaged in naked licensing because

the Trademark Act does not recognize that naked

licensing constitutes abandonment. Accordingly, the

trial court improperly held that naked licensing of a

mark constitutes abandonment of the mark under the

Trademark Act.

2. TRADEMARK INFRINGEMENT

Plaintiff’s underlying Trademark Act claim, however,

is trademark infringement. A plaintiff that claims

trademark infringement under MCL 429.42 must show

that

(1) the mark the plaintiff claims to hold is valid, in that it

actually functions as a trademark, (2) the plaintiff holds

priority in the mark, i.e., the plaintiff used the mark before

the defendant, (3) consumers are likely to confuse the

defendant’s mark with the plaintiff’s mark and (4) the

defendant used the allegedly infringing mark. [Travis, 306

Mich App at 277-278 (citations omitted).]

If the plaintiff’s mark is registered with the state, “the

registration is prima facie evidence that the plaintiff’s

mark is valid, and the burden of production shifts to the

defendant to demonstrate that the mark is not valid.”

Id. at 278. Under the Trademark Act and at common

law, trademarks are valid when they are “(1) used in

connection with the sale and advertising of products or

services, and (2) distinctive, in that consumers under-

stand the mark to designate goods or services as the

2014] M

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615

‘product of a particular manufacturer or trader.’ ” Id.at

279, quoting Shakespeare Co v Lippman’s Tool Shop

Sporting Goods Co, 334 Mich 109, 113; 54 NW2d 268

(1952). Stated another way, to be “distinctive” and thus

be a valid trademark, the trademark must serve as a

“source identifier to consumers.” Travis, 306 Mich App

at 279, citing Wal-Mart Stores, Inc v Samara Bros, Inc,

529 US 205, 212; 120 S Ct 1339; 146 L Ed 2d 182 (2000).

There is no dispute that plaintiff “used” the mark “in

connection with the sale and advertising” aspects of a

video-rental business. However, defendants have of-

fered convincing evidence—plaintiff’s naked licensing

of the “Movie Mania” mark—that “Movie Mania” is not

“distinctive” and thus not valid.

Normally, the inquiry into whether a mark is distinc-

tive focuses on the “now-classic test”

developed by

Judge Friendly in Abercrombie & Fitch Co v Hunting

World, Inc

that sorts marks into four categories—

generic, descriptive, suggestive, and arbitrary or

fanciful—to determine whether they distinguish a good

as coming from a particular source. Travis, 306 Mich

App at 280. But here, plaintiff’s conduct makes this

analysis unnecessary, because its naked licensing of the

“Movie Mania” mark to other video-rental business

operators has destroyed whatever distinctiveness

“Movie Mania” possessed. The mark is thus not valid

and is not entitled to protection under the Trademark

Act. As noted in Part IV(A)(2)(a) of this opinion, plain-

tiffs who engage in naked licensing have never prevailed

in a trademark-infringement suit under the common

law or the Trademark Act against a defendant who uses

the nakedly licensed mark for precisely this reason.

Wal-Mart, 529 US at 210.

Abercrombie & Fitch, 537 F2d at 9.

616 306 M

ICH

594 [Sept

Again, when plaintiff licensed the “Movie Mania”

mark to CLD in 1999 and Samona in 2005, it placed

almost no restrictions on the use of the mark, nor did it

make provisions for advertising, store operations, or

specify any requirements related to the rental or sale of

merchandise at the CLD-owned and Samona-owned

Movie Manias. Because plaintiff’s licensing arrange-

ments placed little to no control or restrictions on the

business operations of its licensees, it was impossible

for consumers to use the “Movie Mania” mark to

distinguish the videos and other merchandise on offer

as coming from a particular source. Travis, 306 Mich

App at 280; Eva’s Bridal, 639 F3d at 790. Videos rented

at Samona’s locations might have been of a completely

different quality or type than those on hand at plain-

tiff’s locations, and consumers had no ability, on the

basis of the “Movie Mania” mark alone, to tell that the

videos came from two separate providers. Accordingly,

“Movie Mania” cannot be a valid mark because it is not

distinctive, and therefore does not function as a trade-

mark: the mark does not “tell shoppers what to expect—

and whom to blame if a given outlet falls short.” Eva’s

Bridal, 639 F3d at 790.

Plaintiff unskillfully, and wrongly, suggests that

our adoption of defendants’ argument against naked

licensing applies to all trademark holders who choose

to license their trademarks to other parties. This

confuses the general practice of licensing (which

preserves the validity of a trademark) with plaintiff’s

particular conduct (which destroys the validity of a

trademark).

Trademark owners are of course permitted to license

their trademarks and retain their trademark rights

against infringers—but only if they are careful to en-

sure that their marks remain a source identifier to

2014] M

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617

consumers.

This is because, as noted, a trademark, to

be valid, must, in the mind of the consuming public,

designate goods or services as the product of a “particu-

lar manufacturer or trader.” Shakespeare Co, 334 Mich

at 113. To ensure that a mark retains its source-

identifying capacity, trademark holders that license

their trademarks place strict restrictions on licensees—

ranging from the physical appearance and layout of the

licensees’ businesses, to what kind of merchandise a

store can carry, to frequent inspections of the licensees’

physical premises and merchandise by the trademark

holder.

Again, plaintiff does not show that it placed any of

these restrictions on or exerted any sort of control over

the business operations of its multiple licensees, who

operated their Movie Mania stores almost entirely at

their own discretion for more than a decade. It is thus

impossible that the “Movie Mania” mark could have

served to designate goods or services as the product of a

particular manufacturer or trader to consumers in 2010

because, at that time, a series of completely different

“ ‘[Trademark] licensing is permissible provided the licensor retains

some degree of control over the quality of the goods or services market

thereunder.’ ” Vaad L’Hafotzas Sichos, Inc v Kehot Publication Society,

935 F Supp 2d 595, 601 (ED NY, 2013) (citation omitted) (alteration in

original). See also Restatement Unfair Competition, 3d, § 33, comments

b and c, pp 339–342; 3 McCarthy, Trademarks & Unfair Competition (4th

ed), § 18:42.

Kentucky Fried Chicken Corp v Diversified Packaging Corp, 549 F2d

368, 387 (CA 5, 1977) (“Courts have long imposed upon trademark

licensors a duty to oversee the quality of licensees’ products.”); Gen

Motors Corp v Gibson Chem & Oil Corp, 786 F2d 105, 110 (CA 2, 1986)

(“The critical question in determining whether a licensing program is

controlled sufficiently by the licensor to protect his mark is whether the

licensees’ operations are policed adequately to guarantee the quality of

the products sold under the mark.”); Eva’s Bridal, 639 F3d at 790 (“The

sort of supervision required for a trademark license is the sort that

produces consistent quality.”).

618 306 M

ICH

594 [Sept

video-rental stores had long used that mark, each with

its own set of quality standards and separate business

practices. Plaintiff cannot suddenly decide to enforce its

trademark rights against defendants when it has al-

ready destroyed whatever validity its “Movie Mania”

trademark had through its own actions.

Because the “Movie Mania” mark is not distinctive,

in that it does not function as a source identifier to

consumers, it is not a valid trademark. It is therefore

unnecessary to discuss the other elements of trademark

infringement under MCL 429.42. And though the trial

court did not follow the above analysis in its holding on

plaintiff’s Trademark Act claim and incorrectly held

that plaintiff’s naked licensing constituted abandon-

ment under the Trademark Act, it reached the correct

result when it rejected plaintiff’s arguments under the

statute and granted defendants summary disposition.

V. CONCLUSION

Accordingly, we reject plaintiff’s claims under both

the Lanham Act and the Michigan Trademark Act and

affirm the trial court’s grant of summary disposition to

defendants under MCR 2.116(C)(10).

Affirmed.

ETER

,P.J., and C

AVANAGH

, J., concurred with S

AAD

,J.

“A trial court’s ruling may be upheld on appeal where the right result

issued, albeit for the wrong reason.” Travelers Prop Cas Co of America v

Peaker Servs, Inc, 306 Mich App 178, 201; 855 NW2d 523 (2014) (citation

and quotation marks omitted).

2014] M

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619

PEOPLE v STEVENS

Docket No. 312325. Submitted September 3, 2014, at Detroit. Decided

September 11, 2014, at 9:00 a.m. Leave to appeal sought.

Roland H. Stevens was convicted of assault with intent to do great

bodily harm, MCL 750.84, following a jury trial in the Wayne

Circuit Court. The court, Gregory D. Bill, J., sentenced defendant

as a fourth-offense habitual offender to 7 to 20 years in prison.

Defendant appealed.

The Court of Appeals held:

1. Prior record variable (PRV) 5, MCL 777.55, concerns prior

misdemeanor convictions and prior misdemeanor juvenile adjudi-

cations. Under PRV 5, 20 points are to be assessed if the offender

has seven or more prior misdemeanor convictions, 15 points are to

be assessed if the offender has five or six misdemeanor convictions,

10 points are to be assessed if the offender has 3 or 4 prior

misdemeanor convictions, 5 points are to be assessed if the

offender has two prior misdemeanor convictions, and 2 points are

to be assessed if the offender has one prior misdemeanor convic-

tion. However, except as otherwise provided in MCL 777.55(2), a

prior misdemeanor conviction may be counted only if it is an

offense against a person or property, a controlled substance

offense, or a weapon offense. While the term “controlled substance

offense” is not defined in the sentencing guidelines, it is appropri-

ate to apply the definition of “controlled substance” from the

Public Health Code, MCL 333.7104(2), for the purpose of scoring

PRV 5. While drug paraphernalia is not itself a controlled sub-

stance, the definition of “drug paraphernalia” under the Public

Health Code, MCL 333.7451, makes clear that certain acts related

to drug paraphernalia have been criminalized because drug para-

phernalia is inextricably linked to controlled substances. Further,

the Legislature has specifically categorized offenses involving drug

paraphernalia as controlled substance offenses under the Public

Health Code. Therefore, offenses involving drug paraphernalia

qualify as controlled substance offenses and may be counted when

scoring PRV 5. In this case, the trial court properly counted

defendant’s prior misdemeanor convictions for possession of drug

paraphernalia under PRV 5. Counting those offenses and also

620 306 M

ICH

620 [Sept

accepting the prosecution’s concession of error relating to several

of defendant’s other misdemeanor convictions, PRV 5 should have

been scored at 15 points rather than 20 points. The error, however,

did not require resentencing because the change to defendant’s

PRV score did not alter the appropriate guidelines range.

2. The elements of assault with intent to commit great bodily

harm are (1) an attempt or threat with force or violence to do

corporal harm to another, and (2) an intent to do great bodily harm

less than murder. It is a specific intent crime, requiring an intent

to do serious injury of an aggravated nature. In this case, the

evidence—particularly defendant’s instigation of the fight, his use

of a knife, and the serious injury suffered by the victim—was

sufficient to demonstrate that defendant intended to cause a

serious injury of an aggravated nature. Ample evidence also

existed to exclude beyond a reasonable doubt defendant’s claim of

self-defense. Therefore, the evidence presented at trial was suffi-

cient to sustain defendant’s conviction.

Affirmed.

ENTENCES —

ENTENCING

UIDELINES —

RIOR

ECORD

ARIABLES —

RIOR

ISDEMEANOR

ONVICTIONS —

ONTROLLED

UBSTANCE

FFENSES —

OS-

SESSION OF

RUG

ARAPHERNALIA

Prior record variable (PRV) 5, MCL 777.55, concerns prior misde-

meanor convictions and prior misdemeanor juvenile adjudications;

offenses involving drug paraphernalia qualify as “controlled sub-

stance offenses” as that term is used in PRV 5 and may be counted

when scoring PRV 5.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Kym Worthy, Prosecuting Attorney,

Timothy A. Baughman, Chief of Research, Training,

and Appeals, and Jon P. Wojtala, Assistant Prosecuting

Attorney, for the people.

Michael J. McCarthy, PC (by Michael J. McCarthy),

for defendant.

Before: H

OEKSTRA

,P.J., and W

ILDER

and F

ORT

OOD

JJ.

URIAM

. Following a jury trial, defendant appeals

as of right his conviction of assault with intent to do

2014] P

EOPLE V

TEVENS

621

great bodily harm (AWIGBH), MCL 750.84. The trial

court sentenced defendant, as a fourth-offense habitual

offender, MCL 769.12, to 7 to 20 years’ imprisonment.

Because the prosecution presented sufficient evidence

to support defendant’s conviction for AWIGBH and any

error related to the scoring of prior record variable

(PRV) 5 does not entitle defendant to resentencing, we

affirm.

Defendant’s conviction arises from a stabbing that

occurred on March 7, 2012. At the time of the stabbing,

the victim, Luther Allbright, lived with two women,

Maria Castillo and Sandra Williams. The evening before

the stabbing, defendant and Williams went to defen-

dant’s apartment, approximately two blocks from All-

bright’s house. When Williams did not return to All-

bright’s house, Castillo became concerned, and she and

Allbright went to defendant’s apartment. After Castillo

aggressively knocked on the apartment door, defendant

opened the door and punched Castillo, at which time

Allbright departed from the building without entering

defendant’s apartment. Sometime later, Castillo and

Williams also departed; but defendant ran after the

women and stopped them. Defendant frisked Williams,

supposedly looking for possessions he claimed were

missing from his apartment.

The following afternoon, defendant went to All-

bright’s home and a fight ensued. In particular, accord-

ing to Allbright, defendant entered his home uninvited

and asked, “Why did you bring all that drama to my

house?” Defendant then punched Allbright in the face,

after which defendant wrestled him to the ground.

While the two rolled on the ground, defendant stabbed

Allbright twice in the left side of his back, once in the

right side of his back (puncturing Allbright’s lung), and

once in his left arm. He then pinned Allbright to the

622 306 M

ICH

620 [Sept

ground and told him, “I’m King Tut, bitch.” Afterward,

defendant left Allbright’s house, purchased beer at a

party store, and returned to his apartment.

At trial, defendant conceded that he brought a knife

to Allbright’s home and that he stabbed Allbright, but

he claimed that he acted in self-defense. According to

defendant’s version of events, he suffers from several

medical conditions, including congestive heart failure.

Defendant maintained that, during the fight, Allbright

ended up on top of defendant while they were wrestling

on the ground and, because of his medical conditions,

defendant could not breathe, which prompted him to

pull a knife and stab Allbright several times.

The trial court instructed the jury on the theory of

self-defense; however, the jury convicted defendant of

AWIGBH.

The trial court sentenced defendant, as a

fourth-offense habitual offender, MCL 769.12, to 7 to 20

years’ imprisonment. Defendant now appeals as of

right.

On appeal, defendant first argues that the trial court

erred when it assessed 20 points under PRV 5 on the

basis of defendant’s prior misdemeanor convictions.

Defendant failed to preserve his challenge to the scoring

of PRV 5 for appeal, meaning his claim is unpreserved

and reviewed for plain error affecting his substantial

rights. People v Loper, 299 Mich App 451, 456-457; 830

NW2d 836 (2013); MCL 769.34(10).

Relevant to defendant’s claim, under MCL

777.55(1)(a), PRV 5 should be scored at 20 points when

the offender has seven or more prior misdemeanor

convictions. The phrase “prior misdemeanor convic-

tion” refers to “a conviction for a misdemeanor under a

The jury found defendant not guilty of assault with intent to murder,

felonious assault, and first-degree home invasion.

2014] P

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623

law of this state, a political subdivision of this state,

another state, a political subdivision of another state, or

the United States if the conviction was entered before

the sentencing offense was committed.” MCL

777.55(3)(a). However, for purposes of PRV 5, not all

prior misdemeanor convictions may be counted when

determining how many prior misdemeanor convictions

a defendant has. MCL 777.55(2). Specifically, except as

provided in MCL 777.55(2)(b), which does not apply in

this case, a prior misdemeanor conviction may be

counted “only if it is an offense against a person or

property, a controlled substance offense, or a weapon

offense.” MCL 777.55(2)(a).

In this case, defendant has numerous misdemeanor

convictions that the trial court considered when it

assessed defendant 20 points under PRV 5. On appeal,

defendant acknowledges that he has 13 misdemeanor

convictions, including four for possession of drug para-

phernalia, but he asserts that he should have been

assessed only 10 points, the score appropriate when the

offender has 3 or 4 misdemeanor convictions. See MCL

777.55(1)(c). Defendant argues that only four of his

misdemeanor offenses—aggravated assault, resisting

and obstructing a police officer, and two trespassing

convictions—qualify as offenses against a person or

property, a controlled substance offense, or a weapon

offense. He specifically asserts that his four convictions

for possession of drug paraphernalia may not be

counted as controlled substance offenses.

The prosecution concedes error in the scoring of PRV

5, acknowledging that not all of defendant’s misde-

meanor convictions should have been counted. How-

ever, the prosecution identifies what it considers to be

six offenses that could have been properly counted

under PRV 5: aggravated assault, resisting and ob-

624 306 M

ICH

620 [Sept

structing, and four convictions for possession of drug

paraphernalia.

By the prosecution’s count, defendant’s

prior misdemeanors merit a PRV 5 score of 15 points.

See MCL 777.55(1)(b).

If the prosecution is correct, any error in the trial

court’s scoring was harmless as it did not affect defen-

dant’s ultimate PRV score and therefore did not alter

the appropriate guideline range. In contrast, if defen-

dant’s view is correct, a PRV 5 score of 10 points would

necessitate resentencing because it would affect defen-

dant’s ultimate PRV score and thus alter the appropri-

ate guidelines range. See People v Francisco, 474 Mich

82, 89 n 8; 711 NW2d 44 (2006) (“Where a scoring error

does not alter the appropriate guidelines range, resen-

tencing is not required.”). Specifically, with a PRV 5

score of 20 points, defendant’s total PRV score was 55

points, placing him in PRV Level E. MCL 777.65. A

reduction to 15 points, as advanced by the prosecution,

results in a total PRV score of 50 points, which still

places defendant in PRV Level E. In contrast, a 10-point

score for PRV 5, as championed by defendant, reduces

defendant’s total PRV score to 45 points, placing him in

PRV Level D. Id. Because error, if there is error, in the

counting of defendant’s misdemeanor drug parapherna-

lia offenses would necessitate resentencing, we must

decide whether misdemeanor convictions for possession

of drug paraphernalia qualify as controlled substance

offenses for purposes of scoring PRV 5.

We note that, in contrast to the prosecution, defendant includes two

trespassing convictions as misdemeanors that may be scored under PRV

5, presumably on the premise that they constitute crimes against

property. Because, in this case, scoring of these trespassing offenses will

not alter the appropriate guideline range, we find it unnecessary to

consider whether misdemeanor trespassing convictions may be scored

under PRV 5. Cf. People v Crews, 299 Mich App 381, 399 n 10; 829 NW2d

898 (2013).

2014] P

EOPLE V

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625

To make this determination, we must ascertain what

the Legislature intended when it authorized the count-

ing of a prior misdemeanor conviction under PRV 5 that

qualified as a “controlled substance offense.” MCL

777.55(2)(a). The Code of Criminal Procedure and, in

particular, the statutory provisions relating to the scor-

ing of PRV 5 do not include a definition of the phrase

“controlled substance offense.” However, this Court has

previously recognized that the phrase relates to Article

7 of the Public Health Code. See People v Endres, 269

Mich App 414, 418; 711 NW2d 398 (2006), overruled in

part on other grounds by People v Hardy, 494 Mich 430,

438 n 18 (2013). Specifically, Article 7, which is titled

“controlled substances,”

includes a definition for the

term “controlled substance” and it penalizes offenses

involving controlled substances. Because Article 7 gov-

erns controlled substances, in Endres, this Court ruled

“it appropriate to apply the Public Health Code defini-

tion of ‘controlled substance’ for purposes of PRV 5,”

and, because alcohol was not identified as a controlled

substance under the Public Health Code definition, this

Court reasoned that the defendant’s alcohol-related

misdemeanor convictions could not be counted under

PRV 5 as controlled substance offenses. Id. at 418-420.

In keeping with Endres, we again turn to Article 7 of

the Public Health Code to ascertain whether misde-

meanor convictions for possession of drug parapherna-

lia may be counted toward the scoring of PRV 5 as

controlled substance offenses. A definition of drug para-

phernalia is specifically provided in Article 7 at MCL

333.7451, and this definition makes plain that, while

drug paraphernalia is not itself a controlled substance,

certain acts related to drug paraphernalia have been

criminalized because drug paraphernalia is inextricably

Capitalization altered.

626 306 M

ICH

620 [Sept

linked to controlled substances. For this reason, of-

fenses involving drug paraphernalia qualify as con-

trolled substance offenses. Specifically, “drug parapher-

nalia” refers to “any equipment, product, material, or

combination of equipment, products, or materials,

which is specifically designed for use in planting; propa-

gating; cultivating; growing; harvesting; manufactur-

ing; compounding; converting; producing; processing;

preparing; testing; analyzing; packaging; repackaging;

storing; containing; concealing; injecting, ingesting, in-

haling, or otherwise introducing into the human body a

controlled substance ....” MCL 333.7451 (emphasis

added). Acts involving drug paraphernalia are then

criminalized in MCL 333.7453 and MCL 333.7455.

Notably, the statutory definition of drug paraphernalia

and the related provisions criminalizing activities asso-

ciated with drug paraphernalia are found in Part 74 of

Article 7, and Part 74 is specifically titled “offenses and

penalties.”

Thus, offenses involving drug parapherna-

lia have been specifically categorized by the Legislature

as offenses within the controlled substances article of

the Public Health Code. Given this classification, it is

apparent that such offenses may be counted as con-

trolled substance offenses for purposes of PRV 5.

Accordingly, we conclude that, in this case, the trial

court properly counted defendant’s misdemeanor con-

victions for possession of drug paraphernalia under

PRV 5.

Counting these offenses and also accepting the

Capitalization altered; italicization omitted.

Given this result, we see no merit in defendant’s claim that counsel

rendered ineffective assistance by failing to object to the scoring of

defendant’s misdemeanor convictions for possession of drug parapherna-

lia. Because these convictions were properly scored, any objection by

counsel would have been futile, and counsel cannot be considered

ineffective for failing to raise a futile objection. See People v Thomas, 260

Mich App 450, 457; 678 NW2d 631 (2004).

2014] P

EOPLE V

TEVENS

627

prosecution’s concession of error relating to several of

defendant’s other misdemeanor convictions, PRV 5

should have been scored at 15 points rather than 20

points. However, this error does not require resentenc-

ing because the change to defendant’s PRV score does

not alter the appropriate guidelines range. See Fran-

cisco, 474 Mich at 89 n 8.

On appeal, defendant also argues that the evidence

presented at trial was insufficient to sustain his convic-

tion for AWIGBH. Specifically, defendant maintains

that the prosecution failed to establish that he pos-

sessed the requisite intent to cause great bodily harm.

He also asserts that the prosecution failed to disprove

his claim of self-defense.

Challenges to the sufficiency of the evidence are

reviewed de novo, in the light most favorable to the

prosecution, to determine if any rational trier of fact

could have found that the essential elements of the

crime were proven beyond a reasonable doubt. People v

Lockett, 295 Mich App 165, 180; 814 NW2d 295 (2012).

All conflicts in the evidence are resolved in favor of the

prosecution. Id. This Court will not interfere with the

trier of fact’s determinations regarding the weight of

the evidence or the credibility of witnesses. People v

Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).

The elements of AWIGBH are “(1) an attempt or

threat with force or violence to do corporal harm to

another (an assault), and (2) an intent to do great bodily

harm less than murder.” People v Parcha, 227 Mich App

236, 239; 575 NW2d 316 (1997). AWIGBH is a specific

intent crime. Id. The intent to do great bodily harm less

than murder is “an intent to do serious injury of an

aggravated nature.” People v Brown, 267 Mich App 141,

147; 703 NW2d 230 (2005) (quotation marks and cita-

tion omitted). “If a defendant has such intent, the fact

628 306 M

ICH

620 [Sept

that he was provoked or that he acted in the heat of

passion is irrelevant to a conviction.” People v Mitchell,

149 Mich App 36, 39; 385 NW2d 717 (1986). Because of

the difficulty in proving an actor’s intent, only minimal

circumstantial evidence is necessary to show that a defen-

dant had the requisite intent. People v Harverson, 291

Mich App 171, 178; 804 NW2d 757 (2010). Intent to cause

serious harm can be inferred from the defendant’s actions,

including the use of a dangerous weapon or the making of

threats. See Parcha, 227 Mich App at 239; People v

Cunningham, 21 Mich App 381, 384; 175 NW2d 781

(1970). Although actual injury to the victim is not an

element of the crime, People v Harrington, 194 Mich App

424, 430; 487 NW2d 479 (1992), injuries suffered by the

victim may also be indicative of a defendant’s intent, see

Cunningham, 21 Mich App at 384.

In this case, defendant went to Allbright’s home

armed with a knife to confront him over a perceived

wrong from the previous evening. Allbright testified

that defendant entered his home without invitation,

threatened him, instigated a fight, and wrestled him to

the ground. Defendant then took out his knife and

stabbed Allbright four times. Three of the stab wounds

were to Allbright’s back, and one succeeded in punctur-

ing his lung. After stabbing Allbright, defendant pinned

him to the ground and proclaimed that he was “King

Tut, bitch.” Defendant then walked away from the

incident, purchased beer, and went home. On the whole,

this evidence—particularly defendant’s instigation of

the fight, his use of a knife, and the serious injury

suffered by Allbright—was sufficient to demonstrate

that defendant intended to cause a serious injury of an

aggravated nature.

To the extent defendant argues that the prosecution

failed to disprove his claim of self-defense, his claim is

2014] P

EOPLE V

TEVENS

629

equally without merit. Once a defendant raises the

issue of self-defense and “satisfies the initial burden of

producing some evidence from which a jury could con-

clude that the elements necessary to establish a prima

facie defense of self-defense exist,” the prosecution

must “exclude the possibility” of self-defense beyond a

reasonable doubt. People v Dupree, 486 Mich 693,

709-710; 788 NW2d 399 (2010) (quotation marks and

citations omitted). Under MCL 780.972(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...

(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.

In this case, ample evidence existed to discount

defendant’s claim of self-defense. According to All-

bright, defendant entered his home uninvited and at-

tacked him. From this, it appears defendant had no

legal right to be in the home, and that, by attacking

Allbright, defendant engaged in the commission of a

crime. In these circumstances, defendant could not

justifiably claim self-defense. See MCL 780.972(1)(a).

Further, Allbright was never armed with any sort of

weapon, and there is no indication that Allbright used

deadly force against defendant. The only evidence that

defendant had reason to fear for his life came from

defendant’s testimony, in particular defendant’s claim

that Allbright was on top of him during their struggle,

causing him difficulty breathing. But this testimony

was in conflict with Allbright’s description of events,

and the credibility of defendant’s testimony was a

question for the jury. See Kanaan, 278 Mich App at 619.

630 306 M

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620 [Sept

And, indeed, a jury could well disbelieve, even from

defendant’s description, that stabbing Allbright four

times was necessary to prevent defendant’s imminent

death. On the whole, the prosecution provided suffi-

cient evidence to exclude beyond a reasonable doubt

defendant’s claim of self-defense. See MCL

780.972(1)(a).

Affirmed.

OEKSTRA

,P.J., and W

ILDER

and F

ORT

OOD

,JJ.,

concurred.

2014] P

EOPLE V

TEVENS

631

JESPERSON v AUTO CLUB INSURANCE ASSOCIATION

Docket No. 315942. Submitted July 6, 2014, at Detroit. Decided Septem-

ber 16, 2014, at 9:00 a.m. Leave to appeal sought.

Alan Jesperson initially brought an action in the Macomb Circuit

Court against Matthew Badelalla, Mary Basha, and Jet’s Pizza,

seeking damages for injuries he sustained in a motor vehicle

accident on May 12, 2009. While stopped, Jesperson’s motorcycle

was struck from behind by a vehicle owned by Basha and driven by

Badelalla while Badelalla was delivering pizza for Jet’s. On June 2,

2010, Auto Club Insurance Association was notified of Jesperson’s

injuries and that it was the highest-priority no-fault insurer. Auto

Club began making payments to Jesperson on July 23, 2010. On

December 1, 2010, Jesperson filed suit against Badelalla, Basha,

and Jet’s. The court, Mark S. Switalski, J., entered a default

judgment against Badelalla and Basha after they failed to respond.

Jesperson later moved to amend his complaint to add a claim

against Auto Club after Auto Club stopped paying benefits to him.

The court entered an order allowing the amendment and subse-

quently entered an order severing Jesperson’s claims for trial. A

jury returned a verdict of no cause of action with regard to

Jesperson’s claims against Jet’s. Auto Club then moved for sum-

mary disposition, arguing in part that Jesperson’s claim against it

was barred by the statute of limitations provision in MCL

500.3145(1). Jesperson asserted in response that Auto Club had

waived the statute of limitations defense. The court granted

summary disposition in favor of Auto Club, but did not specifically

decide the issue of waiver. The court denied Jesperson’s motion for

reconsideration. Jesperson appealed.

The Court of Appeals held:

1. MCL 500.3145(1) states that an action for recovery of

personal protection insurance benefits may not be commenced

later than one year after the date of the accident causing the injury

unless written notice of injury has been given to the insurer within

1 year after the accident or unless the insurer has previously made

a payment of personal protection insurance benefits for the injury.

If notice has been given or a payment has been made, the action

may be commenced at any time within one year after the most

632 306 M

ICH

632 [Sept

recent allowable expense, work loss, or survivor’s loss has been

incurred. However, the claimant may not recover benefits for any

portion of the loss incurred more than one year before the date on

which the action was commenced. As used in MCL 500.3145(1),

“previously” means previous to one year after the date of the

accident causing the injury. Therefore, for the second exception to

the statute of limitations set forth in MCL 500.3145(1) to apply, a

payment of personal protection insurance benefits must have been

made within one year of the accident. To hold, as Jesperson

contrarily suggested, that a payment only had to be made before

the filing of the claim, would have rendered an absurd result by

allowing even decades-old claims to be asserted in contravention of

the legislative purpose of the no-fault act: to protect against stale

claims and protracted litigation.

2. A party generally must raise an affirmative defense in his or

her first responsive pleading or it is waived, but leave to amend

pleadings should be freely granted to a nonprevailing party at

summary disposition unless amendment would be futile or other-

wise unjustified. In this case, Auto Club cited MCL 500.3145(1) as

an affirmative defense in its first responsive pleading, but specifi-

cally referred to the one-year-back provision contained in that

statute and not the statute of limitations. But had the trial court

found that Auto Club failed to plead the statute of limitations

defense with sufficient clarity, it could have granted Auto Club

leave to amend the pleading, in which case the result would have

been the same: the limitations period of MCL 500.3145(1) barred

Jesperson’s claim. Given the interest of judicial efficiency, there

was no need to remand the case for the trial court to specifically

allow amendment of the pleading, and Auto Club did not waive the

statute of limitations. Because Jesperson filed his claim for first-

party no-fault benefits more than one year after the date of the

accident, neither exception to the one-year period of limitations set

forth in MCL 500.3145(1) was applicable, and the statute of

limitations defense was not waived; Jesperson’s claim was barred.

Affirmed.

ERVITTO

, J., dissenting, would have reversed the trial court’s

grant of summary disposition in favor of Auto Club and remanded for

further proceedings. Under MCR 2.111(F)(3), a party must state the

facts constituting an affirmative defense in its responsive pleading. In

this case, Auto Club failed to plead the statute of limitations provision

contained in MCL 500.3145(1) as an affirmative defense. Given that

there is more than one provision set forth in the applicable statute

and Auto Club specifically referred to only one of those statutory

provisions in its list of affirmative defenses, the statutory reference in

2014] J

ESPERSON V

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’

633

Auto Club’s list of affirmative defenses did not apprise Jesperson that

Auto Club intended to rely on any provision other than the one

specifically referred to. And, as a result, Jesperson was not able to

take a responsive position to those provisions that were not referred

to. Any affirmative defense that was dependent on those other

provisions was therefore waived. While the trial court could have

allowed Auto Club to amend its pleadings, there was no indication in

the record that it did so. Because Auto Club did not assert the statute

of limitations defense set forth in MCL 500.3145(1) in its first

responsive pleading or an amended pleading, Auto Club waived that

defense and the trial court erred by granting summary disposition in

Auto Club’s favor.

NSURANCE —

-F

AULT

NSURANCE —

ERSONAL

ROTECTION

ENEFITS —

FFIR-

MATIVE

EFENSES —

TATUTE OF

IMITATIONS —

XCEPTIONS —

AYMENT

ENEFITS

MCL 500.3145(1) states that an action for recovery of personal

protection insurance benefits may not be commenced later than

one year after the date of the accident causing the injury unless

written notice of injury has been given to the insurer within 1 year

after the accident or unless the insurer has previously made a

payment of personal protection insurance benefits for the injury; if

notice has been given or a payment has been made, the action may

be commenced at any time within one year after the most recent

allowable expense, work loss, or survivor’s loss has been incurred;

however, the claimant may not recover benefits for any portion of

the loss incurred more than one year before the date on which the

action was commenced; for the second exception to the statute of

limitations set forth in MCL 500.3145(1) to apply, a payment of

personal protection insurance benefits must have been made

within one year after the accident.

The Law Offices of Michael J. Morse, PC (by Michael

J. Morse, Eric M. Simpson, Lewis A. Melfi, and

Meaghan B. McKay), for Alan Jesperson.

Secrest Wardle (by Brian E. Fischer and Drew W.

Broaddus) for Auto Club Insurance Association.

Before: B

OONSTRA

,P.J., and M

ETER

and S

ERVITTO

,JJ.

OONSTRA

,P.J. In this action for unpaid first-party

no-fault benefits, plaintiff appeals as of right the Feb-

634 306 M

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632 [Sept

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ruary 19, 2013 order of the trial court granting sum-

mary disposition in favor of defendant pursuant to

MCR 2.116(C)(7). We affirm.

I. PERTINENT FACTS AND PROCEDURAL HISTORY

On May 12, 2009, Matthew Badelalla, an employee of

Jet’s Pizza, was driving a 1993 Toyota Camry owned by

his mother, Mary Basha, while delivering pizzas. Plain-

tiff was operating a motorcycle, and stopped on 18 Mile

Road at an intersection with Mound Road in Sterling

Heights. While stopped, plaintiff’s motorcycle was

struck from behind by Badelalla’s slow-moving vehicle.

The impact caused plaintiff’s motorcycle to fall to

plaintiff’s left side. Plaintiff jumped off of the motor-

cycle and was able to land on his feet without falling to

the ground. His motorcycle suffered $2,000 in damage,

but was still drivable. Plaintiff reported no injuries,

received no medical treatment at the scene, and drove

his motorcycle back to work. Plaintiff had no com-

plaints of injury the day of the accident. However,

plaintiff alleged that he developed back and shoulder

pain as a result of the accident, eventually resulting in

surgeries on his right shoulder, neck, and back. Plain-

tiff’s treating physician indicated that he had restricted

plaintiff from returning to work and that plaintiff

would likely never return to his same position as a

carpenter at the Ford Sterling Axle Plant.

On June 2, 2010, more than one year after the

accident, defendant was provided with notice that

plaintiff had been injured and that defendant was the

highest priority no-fault insurer. An employee of defen-

dant stated during her deposition that defendant had

paid plaintiff $21,714.87 in medical expenses for doctor

visits and physical therapy. Defendant’s first payment

to plaintiff was made on July 23, 2010.

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On December 1, 2010, plaintiff filed suit against

Badelalla, Basha, and Jet’s Pizza, alleging that Badela-

lla’s negligence caused plaintiff’s injury, Basha negli-

gently allowed Badelalla to drive her car, and Jet’s Pizza

was vicariously liable for the actions of Badelalla. After

failing to respond to the summons and complaint, an

order of default was entered against Badelalla and

Basha on January 19, 2011.

At some point after plaintiff filed the complaint,

defendant stopped paying benefits to plaintiff. Plaintiff

then moved the trial court to allow him to amend his

original complaint to add a first-party no-fault claim

against defendant. The trial court entered an order

allowing plaintiff to file an amended complaint to add

defendant to the suit. In response to the trial court’s

order, plaintiff filed his amended complaint alleging

that defendant had violated the no-fault act by refusing

to pay plaintiff’s benefits. Defendant filed an answer

and affirmative defenses. Among the affirmative de-

fenses asserted by defendant was the following:

3. That since notice was given, or payment has been

previously made, Plaintiff may not recover benefits for any

alleged expenses incurred more than one (1) year before

the date on which the action was commenced, pursuant to

MCL 500.3145(1).

While thus referring to MCL 500.3145(1) and the one-

year-back rule that is reflected in that statutory provision,

defendant did not assert an affirmative defense that

specifically referred to the separate statute of limitations

provision that is also reflected in MCL 500.3145(1).

The matter proceeded through discovery relative to

both plaintiff’s first-party and third-party no-fault

claims, but the trial court eventually entered an order

severing the claims for trial, with the trial on plaintiff’s

third-party no-fault claims against Jet’s Pizza to take

636 306 M

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place first and the trial on plaintiff’s first-party no-fault

claims against defendant to take place thereafter. Plain-

tiff’s third-party no-fault claims against Jet’s Pizza pro-

ceeded to trial before a jury. On December 6, 2012, the jury

returned a verdict of no cause of action, explicitly deciding

that plaintiff was injured but that Jet’s Pizza did not

proximately cause plaintiff’s injuries.

Shortly after the disposition of the third-party no-

fault claim, defendant filed two separate motions for

summary disposition against plaintiff on this first-party

no-fault claim. The first motion, filed on January 22,

2013, pursuant to MCR 2.116(C)(7) and (10), asserted

that a motorcycle is not a motor vehicle under the

no-fault act and therefore does not fall under the act’s

protection, and further that the jury verdict on the

third-party no-fault claim conclusively determined that

Badelalla’s vehicle was not “involved” in the accident.

One week later, on January 29, 2013, defendant filed

a second motion for summary disposition under MCR

2.116(C)(7) and (10). In that motion, defendant argued

that plaintiff’s claim was barred by the statute of

limitations provision of MCL 500.3145(1). Specifically,

defendant argued that MCL 500.3145(1) barred a claim

for first-party no-fault benefits filed more than one year

after the date of the accident, absent certain conditions.

According to defendant, because the accident occurred

on May 12, 2009, and the amended complaint asserting

a first-party no-fault claim against defendant was not

filed until May 16, 2011, plaintiff could not survive

summary disposition unless he had provided written

notice or received payment from defendant within one

year of the accident. Notice, however, was not provided

until June 2, 2010, and a payment from defendant was

not received until July 23, 2010, both more than one

year after the accident.

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Plaintiff responded to defendant’s motions on Febru-

ary 12, 2013. Plaintiff argued that defendant had

waived the statute of limitations defense by failing to

assert it in its first responsive pleading as an affirma-

tive defense. Plaintiff also argued that he had not

violated the statute of limitations because defendant’s

July 23, 2010 payment of benefits revived his claim.

According to plaintiff, MCL 500.3145(1) does not re-

quire any payments be made within one year of the

accident; it instead provides an exception to the statute

of limitations when an insurer has at any time made a

payment on a claim.

On February 19, 2013, the trial court heard defen-

dant’s motions for summary disposition. During the

hearing, defendant acknowledged that the caselaw was

sparse on the precise statute of limitations issue before

the court. But, defendant argued on the basis of the

language of the statute, a payment was required to be

made within one year of the accident in order to fulfill

the requirements of the second exception found in MCL

500.3145(1). Defendant also argued that it had not

waived the statute of limitations defense. While defen-

dant had not identified that specific defense in its first

responsive pleading, it had cited the statute containing

the limitations provision, although it had cited it in

asserting the one-year-back rule. Defendant argued

that citation of the statute should have been enough to

provide plaintiff with notice of defendant’s intent to use

the affirmative defense, and that, if it was not, then

defendant requested that it be allowed to amend its

pleading to include the affirmative defense, which the

trial court could permit within its discretion.

The trial court found defendant’s position to be

persuasive. Therefore, because plaintiff had not pro-

vided notice or received a payment within one year of

638 306 M

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632 [Sept

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the accident, the statute of limitations had run and

summary disposition was proper in favor of defendant.

The trial court did not address the waiver issue. On

February 20, 2013, the trial court entered an order

granting defendant’s motion for summary disposition,

on statute of limitations grounds, “for the reasons

stated on the record.”

The trial court did not rule on

defendant’s earlier-filed motion for summary disposi-

tion.

Plaintiff moved for reconsideration. The trial court

denied that motion, stating that its determination

was supported by the plain language of the statute

and this Court’s decision in Velazquez v MEEMIC,

unpublished opinion per curiam of the Court of

Appeals, issued April 6, 2006 (Docket No. 264776).

Specifically, the trial court reasoned:

In light of the plain language of MCL 500.3145(1) and

the Court of Appeals’ decision in Velazquez, supra, the

Court was — and remains — convinced that an insurer

must either (1) be given notice within one year after the

accident, or (2) have paid benefits within one year of the

accident, in order for an insured to be entitled to bring suit

under the No-Fault Act. Accordingly, plaintiff’s motion for

reconsideration is properly denied.

This appeal followed.

II. STANDARD OF REVIEW

We review de novo a trial court’s decision regarding a

motion for summary disposition. Jimkoski v Shupe, 282

Mich App 1, 4; 763 NW2d 1 (2008). “Subrule (C)(7)

permits summary disposition where the claim is barred

Capitalization altered.

Unpublished opinions of this Court are not binding precedent, but

may be persuasive authority. MCR 7.215(C)(1).

2014] J

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by an applicable statute of limitations.” Nuculovic v

Hill, 287 Mich App 58, 61; 783 NW2d 124 (2010). In

considering a motion under MCR 2.116(C)(7), “[w]e

consider all documentary evidence submitted by the

parties, accepting as true the contents of the complaint

unless affidavits or other appropriate documents spe-

cifically contradict them.” Fane v Detroit Library

Comm, 465 Mich 68, 74; 631 NW2d 678 (2001), citing

MCR 2.116(G)(5). For purposes of MCR 2.116(C)(7),

this Court must consider the provided documentary

evidence in a light most favorable to the nonmoving

party. Moraccini v Sterling Heights, 296 Mich App 387,

391; 822 NW2d 799 (2012). Further, “[t]his Court

reviews de novo questions of law involving statutory

interpretation.” Mich Muni Liability & Prop Pool v

Muskegon Co Bd of Co Rd Comm’rs, 235 Mich App 183,

189; 597 NW2d 187 (1999).

III. INTERPRETATION OF MCL 500.3145(1)

Plaintiff argues that the trial court erred by grafting

a temporal limitation onto the portion of MCL

500.3145(1) at issue, and by concluding that plaintiff’s

claim was barred under the limitations period it pre-

scribes. That is, plaintiff maintains that when an in-

surer has made a payment of benefits, the one-year

statute of limitations provision of the statute does not

apply even if the payment was not made within one year

of the accident. We disagree.

Recently, in In re Harper, 302 Mich App 349, 354-355;

839 NW2d 44 (2013), this Court set out the proper

process for interpreting statutory law:

The “primary goal” of statutory interpretation “is to

discern the intent of the Legislature by first examining the

plain language of the statute.” Driver v Naini, 490 Mich

239, 246-247; 802 NW2d 311 (2011). A statutory provision

640 306 M

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632 [Sept

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must be read in the context of the entire act, and “every

word or phrase of a statute should be accorded its plain and

ordinary meaning.” Krohn v Home-Owners Ins Co, 490

Mich 145, 156; 802 NW2d 281 (2011). When the language is

clear and unambiguous, “no further judicial construction is

required or permitted, and the statute must be enforced as

written.” Pohutski v City of Allen Park, 465 Mich 675, 683;

641 NW2d 219 (2002) (quotation marks and citation omit-

ted). Only when the statutory language is ambiguous may

a court consider evidence outside the words of the statute

to determine the Legislature’s intent. Sun Valley Foods Co

v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). How-

ever, “[a]n ambiguity of statutory language does not exist

merely because a reviewing court questions whether the

Legislature intended the consequences of the language

under review. An ambiguity can be found only where the

language of a statute, as used in its particular context, has

more than one common and accepted meaning.” Papas [v

Gaming Control Bd], 257 Mich App [647, 658; 669 NW2d

326 (2003)].

Therefore, the starting point of this Court’s analysis

is the plain language of the statute. MCL 500.3145(1)

states, in pertinent part:

An action for recovery of personal protection insurance

benefits payable under this chapter for accidental bodily

injury may not be commenced later than 1 year after the

date of the accident causing the injury unless written

notice of injury as provided herein has been given to the

insurer within 1 year after the accident or unless the

insurer has previously made a payment of personal protec-

tion insurance benefits for the injury. If the notice has been

given or a payment has been made, the action may be

commenced at any time within 1 year after the most recent

allowable expense, work loss or survivor’s loss has been

incurred. However, the claimant may not recover benefits

for any portion of the loss incurred more than 1 year before

the date on which the action was commenced.

The statute begins by establishing a general rule that

an action for first-party personal protection insurance

2014] J

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benefits “may not be commenced later than 1 year after

the date of the accident causing the injury....”MCL

500.3145(1). However, the statute then provides two

exceptions to the general rule, under which a suit may

be brought more than one year after the date of the

accident. The first exception is when “written notice of

injury as provided herein has been given to the insurer

within 1 year after the accident....” Thesecond ex-

ception is when “the insurer has previously made a

payment of personal protection insurance benefits for

the injury.” Although the first exception explicitly re-

quires that notice have been provided within one year of

the accident, the second exception requires that the

insurer have “previously” made a payment of insurance

benefits.

The question then becomes what the adverb “previ-

ously” means in the context of this statutory language. As

the parties note, no published authority exists that is

precisely on point in deciding this issue, nor has the

Legislature provided a definition of the word “previously,”

as used in this statute. In such situations, words and

phrases in a statute should be read in context and given

their ordinary meanings. Harper, 302 Mich App at 354. A

reviewing Court may consult a dictionary as an aid to

interpretation. Johnson v Pastoriza, 491 Mich 417, 436;

818 NW2d 279 (2012). The word “previously” means

“coming or occurring before something else; prior[.]”

Random House Webster’s College Dictionary (2d ed,

2001), p 1049. The pertinent issue before this Court is

what the “something else” is before which the payment by

After setting forth the general one-year limitations period and the two

exceptions, the statute then states the one-year-back rule, which limits a

claimant from recovering benefits “for any portion of the loss incurred

more than 1 year before the date on which the action was commenced.”

MCL 500.3145(1). Neither the first exception to the general limitations

period nor the one-year-back rule is at issue in this case.

642 306 M

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an insurer must have come or occurred. Plaintiff essen-

tially argues that the “something else” is simply the filing

of a plaintiff’s first-party claim against a defendant;

defendant argues, and the trial court held, that the

“something else” is the expiration of one year following

the accident. We agree with defendant and the trial court.

The two exceptions in MCL 500.3145(1) to its one-

year limitations period are clearly separated by the

word “or.” The word “or” is a disjunctive term indicat-

ing a choice between alternatives. See Paris Meadows,

LLC v Kentwood, 287 Mich App 136, 148; 783 NW2d

133 (2010). In the context of this statute, those alter-

natives are the two exceptions to the one-year limita-

tions period. Since the first exception is inapplicable in

this case, our interpretation of the plain language of the

statute is facilitated by removing the language of the

first exception, such that the relevant statutory lan-

guage becomes:

An action for recovery of personal protection insurance

benefits...maynotbecommenced later than 1 year after

We note that plaintiff’s first-party no-fault claim against defendant

was added by way of an amended complaint in a previously filed action for

third-party no-fault benefits against Badelalla, Basha, and Jet’s Pizza.

The date of filing of plaintiff’s original complaint does not control,

however, because the action at that time was for third-party no-fault

benefits and, thus, was not “[a]n action for recovery of personal protec-

tion insurance benefits....”MCL500.3145(1). See McCormick v Car-

rier, 487 Mich 180, 279-280; 795 NW2d 517 (2010) (M

ARKMAN

,J.,

dissenting) (explaining the difference between first-party and third-party

benefits); Hunt v Citizens Ins Co, 183 Mich App 660, 666; 455 NW2d 384

(1990), citing Taulbee v Mosley, 127 Mich App 45, 47-48; 338 NW2d 547

(1983) (holding that the filing of third-party claims against other parties

does not toll the running of the limitations period under MCL

500.3145(1) with regard to a defendant against whom first-party claims

are asserted when the first-party claims are added to the original suit by

amended complaint). In any event, even plaintiff’s original complaint

seeking third-party no-fault benefits was filed more than “1 year after the

date of the accident causing injury....”MCL500.3145(1).

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the date of the accident causing the injury...unless the

insurer has previously made a payment of personal protec-

tion insurance benefits for the injury. [MCL 500.3145(1).]

We conclude from this plain statutory language that the

Legislature intended that the word “previously” mean

previous to “1 year after the date of the accident causing

the injury....” This interpretation is supported by the

fact that the Legislature juxtaposed “previously” with “1

year after the date of the accident causing injury,” which

language thus appears much closer in proximity to the

word “previously” than does the Legislature’s earlier

reference to the commencement of “[a]n action.” This

interpretation also is supported by two principles of statu-

tory construction: our directive to avoid interpretations

that result in absurd consequences, and our directive to

avoid interpretations that render portions of a statute

nugatory. See Detroit Int’l Bridge Co v Commodities

Export Co, 279 Mich App 662, 674; 760 NW2d 565 (2008);

Robinson v Lansing, 486 Mich 1, 21; 782 NW2d 171

(2010). To hold, as plaintiff suggests, that any payment

made by an insurer would revive a stale claim, no matter

how much time has elapsed, would render an absurd

result by allowing, potentially, even decades-old claims to

be asserted. Further, that interpretation would essentially

eliminate the limitations period of MCL 500.3145(1) in

cases in which an insurer has ever paid anything on a

claim, rather than providing a limited exception that

allows for the filing of suit more than one year after the

accident in certain circumstances. We decline to adopt

plaintiff’s preferred interpretation, which we find would

be in contravention of the “legislative purpose in the

no-fault act in encouraging claimants to bring their claims

to court within a reasonable time and the reciprocal

obligations of insurers to adjust and pay claims season-

ably” and to “protect against stale claims and protracted

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litigations.” Pendergast v American Fidelity Fire Ins Co,

118 Mich App 838, 841-842; 325 NW2d 602 (1982).

In reaching this conclusion, we are mindful of the

fact that in crafting the first exception the Legislature

chose language that expressly required written notice of

injury “within 1 year after the accident,” whereas in

crafting the second exception it chose to use the word

“previously.” However, in the context of this statute, we

conclude that the two phraseologies mean precisely the

same thing. The Legislature was not required to use

identical terminology in crafting the two exceptions,

particularly when doing so in the context of a single

statutory sentence would be repetitive. We conclude in

this circumstance that the Legislature did not intend

different temporal meanings in the two exceptions, but

instead intended that the second exception’s use of the

word “previously” conveyed the same temporal mean-

ing as did the quoted language of the first exception.

We therefore hold that MCL 500.3145(1) allows for

suit to be filed more than one year after the date of the

accident causing injury only if the insurer has either

received notice of the injury within one year of the

accident or made a payment of personal protection

insurance benefits for the injury within one year of the

accident.

IV. WAIVER OF AFFIRMATIVE DEFENSE

Plaintiff also argues that, even if the statute of

limitations bars his claim, defendant has waived the

defense by failing to assert it in its first responsive

pleading. We disagree.

A party generally must raise an affirmative defense

in his or her first responsive pleading or it is waived.

Meridian Mut Ins Co v Mason-Dixon Lines, Inc (On

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Remand), 242 Mich App 645, 647; 620 NW2d 310

(2000). MCR 2.111(F)(3) provides:

Affirmative defenses must be stated in a party’s respon-

sive pleading, either as originally filed or as amended in

accordance with MCR 2.118. Under a separate and distinct

heading, a party must state the facts constituting

(a) an affirmative defense, such as contributory negli-

gence; the existence of an agreement to arbitrate; assump-

tion of risk; payment; release; satisfaction; discharge; li-

cense; fraud; duress; estoppel; statute of frauds; statute of

limitations; immunity granted by law; want or failure of

consideration; or that an instrument or transaction is void,

voidable, or cannot be recovered on by reason of statute or

nondelivery;

(b) a defense that by reason of other affirmative matter

seeks to avoid the legal effect of or defeat the claim of the

opposing party, in whole or in part;

would be likely to take the adverse party by surprise.

In this case, defendant cited MCL 500.3145(1) in an

affirmative defense, but only referred to the one-year-back

rule contained in that statute. Specifically, defendant

stated, “That since notice was given, or payment has been

previously made, Plaintiff may not recover benefits for

any alleged expenses incurred more than one (1) year

before the date on which the action was commenced,

pursuant to MCL 500.3145(1).” At the summary-

disposition motion hearing, defendant argued that its

citation of the statute should have been enough to provide

plaintiff with notice of defendant’s intent to rely on the

affirmative defenses of the statute, including the statute

of limitations provision, and that, if it was not, then

defendant requested that it be allowed to amend its

pleading to include the affirmative defense, which the trial

court could permit within its discretion. The trial court

did not specifically rule on the waiver issue, or on the

646 306 M

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alternative request to amend, but granted summary dis-

position in favor of defendant as previously described in

this opinion.

“[T]he primary function of a pleading in Michigan is

to give notice of the nature of the claim or defense

sufficient to permit the opposite party to take a respon-

sive position.” Stanke v State Farm Mut Auto Ins Co,

200 Mich App 307, 317; 503 NW2d 758 (1993). Given

defendant’s citation of MCL 500.3145(1) in its affirma-

tive defenses, plaintiff arguably was made aware of the

limitations period of that statute and not unfairly

surprised by defendant’s assertion of the defense. See

Stanke, 200 Mich App at 317. However, the fact is that

defendant did not refer to the statute of limitations in

any fashion, and instead specifically described its affir-

mative defense as relating to the one-year-back provi-

sion of the statute, thereby arguably suggesting that it

was not citing the statute for any other purpose.

However, leave to amend pleadings should be freely

granted to a nonprevailing party at summary disposition,

unless amendment would be futile or otherwise unjusti-

fied. Lewandowski v Nuclear Mgt Co, LLC, 272 Mich App

120, 126-127; 724 NW2d 718 (2006). Therefore, had the

trial court found that defendant had failed to plead the

statute of limitations defense with sufficient clarity, it

could have, in its discretion, granted defendant leave to

amend its pleading, in which case the result would be the

same—the limitations period of MCL 500.3145(1) would

still bar plaintiff’s claim. Given the trial court’s discretion

to simply allow amendment of the pleading, and in the

interest of judicial efficiency, we see no need to remand the

case for the trial court to do just that. Accordingly, we

conclude that defendant did not waive the affirmative

defense of the statute of limitations.

Affirmed.

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ETER

, J., concurred with B

OONSTRA

,P.J.

ERVITTO

,J.(dissenting). I respectfully dissent.

MCR 2.111(F)(3) requires that affirmative defenses

be stated in a party’s responsive pleading, either as

originally filed or as amended and states that a party

must state the facts constituting:

(a) an affirmative defense...;

(b) a defense that by reason of other affirmative matter

seeks to avoid the legal effect of or defeat the claim of the

opposing party, in whole or in part;

would be likely to take the adverse party by surprise.

Under this rule, it is insufficient for a defendant to

merely list the defense; the defendant must identify the

affirmative defense under a separate heading and must

plead specific facts indicating, when a statute of limita-

tions is at issue, that the statute “is applicable as a

special defense which prevented recovery against this

defendant.” Kincaid v Cardwell, 300 Mich App 513, 536

n 5; 834 NW2d 122 (2013) (citation and quotation

marks omitted).

Under MCR 2.111(F)(2), “[a] party against whom a

cause of action has been asserted by complaint, cross-

claim, counterclaim, or third-party claim must assert in

a responsive pleading the defenses the party has against

the claim. A defense not asserted in the responsive

pleading or by motion as provided by these rules is

waived....”(Emphasis added.) Given the requirement

that specific facts must be stated to support an affirma-

tive defense, it is only logical that a defendant is thus

restricted to the specific defenses and the specific facts

underlying those defenses that he or she has pleaded.

That is, if the defendant has not pleaded a specific

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defense, the defendant has waived it, just as stated in

the court rule. It is undisputed that defendant here did

not plead the statute of limitations provision contained

in MCL 500.3145 as an affirmative defense.

Relevant to the instant matter, our Supreme Court

has explicitly held that MCL 500.3145 “contains two

limitations on the time for filing suit and one limitation

on the period for which benefits may be recovered[.]”

Devillers v Auto Club Ins Ass’n, 473 Mich 562, 574; 702

NW2d 539 (2005). Thus, there are at least two specific

affirmative defenses contained within MCL 500.3145: a

statute of limitations defense and a defense limiting the

amount of damages recoverable. Though they appear in

the same statute, they are two very different affirma-

tive defenses. Therefore, I disagree with the majority’s

conclusion that plaintiff was not unfairly surprised by

defendant’s assertion of the statute of limitations de-

fense in its summary disposition motion, given that

defendant had only referred to the one-year-back pro-

vision of MCL 500.3145.

Statutes of limitations are procedural devices in-

tended to promote judicial economy and protect the

rights of defendants by precluding litigation of stale

claims. Attorney General v Harkins, 257 Mich App 564,

569; 669 NW2d 296 (2003). “A statutory limitations

period represents a legislative determination of that

reasonable period of time that a claimant will be given

in which to file an action.” Lothian v Detroit, 414 Mich

160, 165; 324 NW2d 9 (1982). Statutes of limitations

bar a claimant from filing suit after the statutory period

has expired. See id. at 165-167. The one-year-back

provision, in contrast, is “[s]imply stated,... not [a]

statute[] that limit[s] the period of time in which a

claimant may file an action. Rather, [it] concern[s] the

time period for which compensation may be awarded

2014] J

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once a determination of rights thereto has been made.”

Howard v Gen Motors Corp, 427 Mich 358, 385; 399

NW2d 10 (1986) (opinion by B

RICKLEY

, J.). It does not, as

a statute of limitations does, act as a complete bar to a

claimant’s filing of suit, but instead serves as a limita-

tion on the period for which damages are recoverable in

a properly filed suit.

The principle that an affirmative defense must be

specifically pleaded and supported by specific factual

assertions or it is waived is supported by Tyra v Organ

Procurement Agency of Mich, 302 Mich App 208; 850

NW2d 667 (2013). In that case, a medical malpractice

action, the trial court granted summary disposition in

favor of defendants pursuant to MCR 2.116(C)(7). The

plaintiff had sent notices of intent to defendants pur-

suant to MCL 600.2912b, but filed her complaint 112

days later instead of waiting 182 days or more as

required by MCL 600.2912b(1). One group of defen-

dants presented a list of affirmative defenses that, in

relevant part, stated, “ ‘Plaintiff failed to comply with

the notice provisions of MCL 600.2912b; MSA

27A.2912b and that Plaintiff’s action is thus barred;

Defendant gives notice that it will move for summary

disposition.’ ” Id. at 214. These defendants moved for

summary disposition, contending that because the

plaintiff had failed to comply with the requisite notice

period before filing suit, her complaint was insufficient

to commence the action and, because by then the

statute of limitations had expired, dismissal with preju-

dice was warranted. The trial court agreed. A panel of

this Court, however, agreed with plaintiff’s position

that because defendants’ responsive pleadings asserting

their affirmative defenses had failed to set forth suffi-

cient facts to put plaintiff on notice that she had failed

to comply with the notice period requirement, defen-

dants had waived that affirmative defense under MCR

2.111(F).

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Noting that “MCR 2.111(F)(3) requires that the

party ‘must state the facts constituting’ any affirmative

defense so raised,” the Tyra Court indicated that an

affirmative defense must thus contain facts setting

forth why and how the party asserting it believes the

specific affirmative defense is applicable in order to

apprise the plaintiff of the defense relied upon and take

a responsive position. Id. at 213-214. In Tyra, the

defendants had simply asserted that the plaintiff had

“failed to comply with the notice provisions of MCL

600.2912b,” but, in fact, the defendants were specifi-

cally relying upon the notice period in support of their

motion for summary disposition. Id. at 214.

MCL 600.2912b does set forth the notice period, but

also sets forth statements that must be contained

within the notice including the applicable standard of

care and the manner in which the claimant alleges the

standard has been breached, and a requirement that

the claimant allow the person or facility receiving the

notice access to all medical records relating to the claim

within a specified period. The failure to comply with

any or all of these provisions could have been the basis

of the defendants’ affirmative defense. As the Tyra

Court stated:

MCL 600.2912b(4) specifically addresses “the notice

given to a health professional or health facility.” An ordi-

nary reading of the affirmative defense alongside the

statute could reasonably induce a reader to believe that

plaintiff’s only alleged violation of MCL 600.2912b—

specifically, the “notice provisions” thereof—pertained to

the notice itself, as distinct from the notice period. It is true

that “the primary function of a pleading in Michigan is to

give notice of the nature of the claim or defense sufficient

to permit the opposite party to take a responsive position.”

Therefore, by extension to other filings, the statement of

facts required under MCR 2.111(F) should not need to be

extensive or detailed. However, the statement here is

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merely a conclusion, not even a vague statement of “facts

constituting” an affirmative defense. MCL 2.111(F)(3). The

statement fails to explain why defendants believed plaintiff

“failed to comply with the notice provisions of MCL

600.2912b.” [Tyra, 302 Mich App at 215.]

The Tyra court concluded, “Because defendants failed

to provide any, let alone a comprehensible or adequate,

statement of facts supporting the relevant affirmative

defense, we find the affirmative-defense statement by

the defendants insufficient to raise the affirmative

defense of plaintiff’s failure to comply with the notice-

period requirement of MCL 600.2912b. Under a plain

application of MCR 2.111(F), the affirmative defense

would be waived.” Id. at 216-217.

In this case, in which there is more than one provi-

sion set forth in the applicable statute and defendant

specifically referred to only one of those statutory

provisions in its list of affirmative defenses, the statu-

tory reference in defendant’s list of affirmative defenses

did not apprise plaintiff that defendant intended to rely

on any provision other than the one specifically referred

to. And, as a result, plaintiff was not able to take a

responsive position to those provisions that were not

referred to. Tyra, at 213-214. Any affirmative defense

that was dependent on those other provisions was

therefore waived.

While the trial court could have, in its discretion,

allowed defendant to amend its pleadings to include a

statute of limitations defense, there is no indication

that it did so. Whether it would have granted such a

motion, given that the matter had proceeded for over

years and was essentially on the brink of trial,

would be conjecture. Moreover, MCR 2.111(F)(3) is

clear that an amended pleading must fulfill the require-

ments of MCR 2.118. MCR 2.118(A)(4) states that

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“[a]mendments must be filed in writing, dated, and

numbered consecutively....”Therecord here is devoid

of any written amendment provided by defendant to

include a statute of limitations defense, precluding this

Court from treating such a defense as pleaded.

Again, because defendant did not assert the statute

of limitations defense set forth in MCL 500.3145(1) in

its first responsive pleading or an amended pleading, I

would find that defendant waived that defense, and I

would thus hold that the trial court erred by granting

summary disposition in defendant’s favor. Based on this

ruling, I would not reach the issue of whether, as the

majority held, under MCL 500.3145(1), suit to recover

PIP benefits may be filed more than one year after the

date of an accident causing accidental bodily injury only

if the insurer has either received notice of the injury

within one year of the accident or made a payment of

PIP benefits for the injury within one year of the

accident. This Court does not render advisory opinions

on issues unnecessary to the disposition of the case. See,

e.g., People v Wilcox, 183 Mich App 616, 620; 456 NW2d

421 (1990). Because defendant waived any statute of

limitations defense found in MCL 500.3145(1), inter-

pretation of the statute of limitations provision con-

tained therein is unnecessary.

I would reverse the trial court’s grant of summary

disposition in favor of defendant and remand.

2014] J

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HANTON v HANTZ FINANCIAL SERVICES, INC

Docket No. 314889. Submitted September 4, 2014, at Detroit. Decided

September 23, 2014, at 9:00 a.m. Leave to appeal sought.

Anne M. Hanton, trustee of the Anne M. Hanton trust dated May 18,

2006, brought an action in the Montmorency Circuit Court against

Hantz Financial Services, Inc. (HFS), and others, seeking to

recover investment losses arising from the sale of promissory notes

by HFS. Plaintiff alleged that the issuers of the notes were

engaged in a Ponzi scheme and defendants failed to exercise due

diligence regarding the sale. Plaintiff alleged that she was filing

the action individually and as a class action on behalf of all persons

and entities to whom HFS publically offered, distributed, and sold

the promissory notes, except for defendants, various individuals

related to defendants, and Raymond Bergin. Plaintiff alleged that

Bergin had brought a civil action in the Oakland Circuit Court

against the same defendants based on the sale of the promissory

notes and that the action was still pending. Bergin v Hantz Fin

Servs, Inc (Oakland Circuit Court Docket No. 10-114541-NZ). In

the Bergin action, the defendants filed a notice under MCR

3.501(B)(2), seeking to strike the class action allegations on the

basis of Bergin’s failure to timely move for class certification. The

trial court determined that Bergin had failed to timely move for

class certification and denied Bergin’s motion for an extension of

time. On March 10, 2011, the court in Bergin granted Bergin’s

motion to dismiss, without prejudice, subject to a condition pro-

viding that any rulings or orders in the case shall be deemed final

and binding in any refiled case where Bergin is a named plaintiff

individually or is a class member and the same or substantially

similar claims are made against the defendants named in Bergin.

The Bergin case was ultimately dismissed pursuant to a stipulated

order that was expressly made subject to the terms of a settlement

agreement entered into by the parties. The settlement agreement

provided, in part, that Bergin agreed not to opt out of, or consent

to be excluded from, any refiled case where Bergin would qualify as

a class member and where the same or substantially similar claims

are made against the named defendants in Bergin. The agreement

provided that, in such an event, Bergin will not participate as, or

apply for the status of, lead plaintiff and shall be entitled to his pro

654 306 M

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654 [Sept

rata portion of any benefits or award he would otherwise be

entitled to as a class participant. The agreement also provided that

Bergin acknowledged that any rulings or orders made by the court

in Bergin shall be deemed final and binding in any refiled case.

Shortly before the Bergin case was dismissed, Hanton moved in

the Montmorency Circuit Court for a change of venue to Oakland

County. The court held that venue was proper in Montmorency

County if Hanton pursued the action as an individual and that, if

Hanton wanted to proceed with a class action, venue would be

transferred to Oakland County. Hanton filed a motion for class

certification in the Montmorency Circuit Court and the court

entered a stipulated order transferring venue to the Oakland

Circuit Court, where the case was assigned to the same judge who

dismissed the Bergin case. Hanton then brought a motion for class

certification and defendants responded by alleging that the action

was barred by the March 10, 2011 order in the Bergin case.

Following a hearing, the trial court, Leo Bowman, J., denied

Hanton’s motion for class certification and struck the class action

allegations on the basis that the order in the Bergin case was

binding on Hanton. The Court of Appeals granted Hanton’s

application for leave to appeal in an unpublished order.

The Court of Appeals held:

1. The plain language of MCR 3.501 does not support a holding

that Bergin’s failure to comply with MCR 3.501(B)(1) should apply

to Hanton, who was an unnamed putative class member in the

Bergin case. The language in the court rule states that the time

limit applies to a specific plaintiff. This language cannot be

generalized to apply to unnamed putative class members. As

applied to the Bergin case, MCR 3.501(B) applied to Bergin, the

named plaintiff who commenced the action, not all unnamed

putative class members.

2. Bergin was not acting as a class representative at the time

he commenced his action. After the class action allegations were

stricken, the action was continued by Bergin as an individual, not

as a class representative. Any subsequent orders in the Bergin case

accordingly applied only to Bergin himself.

3. The fact that Hanton retained the same attorney to file her

action as did Bergin is not dispositive.

4. The purpose of MCR 3.501(B) is not rendered meaningless

by allowing more than one complaint containing similar class

action allegations. Every complaint is subject to the 91-day dead-

line provided in the court rule.

2014] H

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655

5. Hanton could not have intervened in the Bergin case pur-

suant to MCR 3.501(A)(4) because there was no class certification

and, thus, Hanton was not a member. The order of the trial court

is reversed and the matter is remanded to the trial court for

further proceedings.

Reversed and remanded.

McGraw Morris PC (by Thomas J. McGraw and

Christopher J. Raiti) and Scarlett, Gucciardo & Hirsch,

PA (by Scott D. Hirsch, Bradford M. Gucciardo, and

Charles E. Scarlett), and Giarmarco Mullins & Horton

PC (by Larry W. Bennett) for plaintiff.

Jaffe Raitt Heuer & Weiss PC (by Peter M. Alter,

Brian G. Shannon, and James W. Rose) for defendants

Allen J. Klein, Edward E. Vettel, Jr., and Stephen R.

Zurawski.

The Miller Law Firm, PC (by E. Powell Miller and

Brian E. Etzel), for defendants Hantz Financial Ser-

vices, Inc., Hantz Group, Inc., John F. Beebe, John F.

MacIntosh, Lisa C. McClain, Duane A. McCollum,

Jamie M. Racine, Michael O. Reid, Jeffrey H. Soper,

Charles F. Tourangeau, Renee A. Yaroch, and John R.

Hantz.

Before: H

OEKSTRA

,P.J., and W

ILDER

and F

ORT

OOD

JJ.

ORT

OOD

, J. Plaintiff appeals by leave granted from

the trial court’s order denying her motion for class

certification, striking class allegations from plaintiff’s

amended complaint, and allowing plaintiff’s action to

proceed only as an individual action. We reverse and

remand for further proceedings.

This class action involves various claims brought by

plaintiff, Anne M. Hanton, as trustee of the Anne M.

Hanton Trust dated May 18, 2006, against defendant

656 306 M

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654 [Sept

Hantz Financial Services, Inc. (HFS), and various other

defendants who allegedly controlled HFS, to recover

investment losses arising from HFS’s sale of promissory

notes issued by Medical Capital Holdings, Inc. (Med

Cap), and its subsidiary Medical Provider Funding

Corporation V (Med Cap V). Plaintiff alleged that Med

Cap and Med Cap V were engaged in a Ponzi scheme

and that defendants failed to exercise due diligence

regarding the matter.

Plaintiff initially filed this action in the Mont-

morency Circuit Court in October 2011. In an amended

complaint filed on October 19, 2011, plaintiff alleged

that another civil action arising out of the same occur-

rence, Bergin v Hantz Fin Servs, Inc (Oakland Circuit

Court Docket No. 10-114541-NZ) (the “Bergin case”),

was previously filed in the Oakland Circuit Court,

where it was still pending. Plaintiff alleged that she was

filing the class action individually and on behalf of all

persons and entities to whom HFS publically offered,

distributed, and sold promissory notes issued by Med

Cap and Med Cap V, except for defendants, various

individuals related to defendants, and Raymond Bergin.

Raymond Bergin was the plaintiff in the Bergin case.

Similar to this case, Bergin filed a complaint against the

defendants and sought class certification to represent

the interests of various individuals who allegedly suf-

fered investment losses involving HFS’s sale of prom-

issory notes issued by Med Cap. Bergin’s complaint was

filed in the Oakland Circuit Court in October 2010, and

was amended in November 2010. The defendants filed a

notice under MCR 3.501(B)(2), seeking to strike the

class action allegations on the basis of Bergin’s failure

to timely move for class certification. At a hearing on

February 9, 2011, the trial court agreed that Bergin had

failed to timely move for class certification and denied

2014] H

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657

Bergin’s motion for an extension of time. On March 10,

2011, the court entered an order granting Bergin’s

motion to dismiss, without prejudice, subject to the

following two conditions:

(1) Any rulings and/or orders made by this Court in the

case of Raymond L. Bergin, on his own behalf and on behalf

of those similarly situated v. Hantz Financial Inc., et al

2010-114541-NZ, shall be deemed final and binding in any

refiled case where Plaintiff Bergin is a named Plaintiff

individually and/or is a class member and the same or

substantially similar claims are made against the named

Defendants herein; (2) Costs and reasonable attorney fees

shall be paid and are awarded to Defendants for defense of

the herein claims Plaintiff now seeks to dismiss.

The Bergin case was ultimately dismissed in November

2011 pursuant to a stipulated order that was expressly

made subject to the terms of a settlement agreement

entered into by Bergin and the defendants and “for the

reasons set forth on the record and stated set [sic] in the

Opinion and Order dated March 10, 2011[.]” The settle-

ment agreement further provided:

5. Refiled Class Action....[N]otwithstanding Defen-

dants’ position that any future attempt to pursue class

claims similar to Bergin’s putative class claims (that were

stricken) is improper, Bergin hereby agrees not to opt out

of, or consent to be excluded from, any refiled case, whether

currently pending or not, where Bergin would qualify as a

class member and where the same or substantially similar

claims are made against the named Defendants herein. In

such an event, Bergin will not participate as, or apply for

the status of, lead plaintiff, and shall be entitled to his pro

rata portion of any benefits or award he would otherwise be

entitled to as a class participant.

6. Bergin acknowledges that, consistent with the

March 10, 2011 Opinion and Order, “Any rulings and/or

orders made by this Court in the case of Raymond L.

Bergin, on his own behalf and on behalf of those simi-

658 306 M

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654 [Sept

larly situated v. Hantz Financial Inc.,... shall be

deemed final and binding in any refiled case.”

Shortly before the Bergin case was dismissed, defen-

dants in this case moved for a change of venue to

Oakland County. In December 2011, the Montmorency

Circuit Court held that venue was proper in Mont-

morency County if plaintiff pursued this action as an

individual. If plaintiff wanted to proceed with a class

action, venue would be transferred to Oakland County.

In January 2012, plaintiff filed a motion for class

certification in the Montmorency Circuit Court, and on

February 13, 2012, the Montmorency Circuit Court

entered a stipulated order transferring venue to the

Oakland Circuit Court, where the case was assigned to

the same judge who dismissed the Bergin case.

In September 2012, defendants filed a joint response

to plaintiff’s motion for class certification in which they

argued, in part, that a class action was barred by the

trial court’s March 10, 2011 order in the Bergin case.

Following a hearing, the trial court denied plaintiff’s

motion for class certification and struck the class action

allegations. The court determined that the March 10,

2011 order in the Bergin case, which denied the request

to extend the time for filing a motion for class certifi-

cation because Bergin did not meet the time require-

ments of MCR 3.501(B), was binding on plaintiff in this

case. The court further held:

Having reviewed Confidential Settlement Agreement and

Mutual Release, this Court finds that the unambiguous

language states that Bergin (1) agreed not to opt out of, or

consent to be excluded from any refiled cases where he

would qualify as a class member and where the same or

substantially similar claims are made against defendants

and (2) acknowledged that any rulings in the Bergin case

are deemed final and binding in any refiled case. When this

2014] H

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659

Court considers plaintiff’s decision to expressly exclude

Plaintiff Bergin in the class allegations, it is left with the

distinct impression that plaintiff was attempting to avoid

the ramifications of the rulings in the Bergin case and

specifically the ruling that plaintiff’s retained counsel

failed to file a timely motion to certify the class action

pursuant to MCR 3.501(B)(1). In the Bergin case, defen-

dants filed a notice pursuant to MCR 3.501(B)(2) to strike

class action allegations and to allow the lawsuit to continue

against the named parties alone. Additionally, this Court

denied plaintiff’s motion to allow filing of class certification

motion beyond ninety-one days pursuant to MCR

3.501(B)(1) based on excusable negligence. Plaintiff failed

to direct this Court’s attention to any statute, court rule, or

case law to support that it could merely file a subsequent

class action with a new named plaintiff when the prior

attempt to certify the class contains both a failure to certify

within 91 days and an order that all rulings are binding on

future cases based on substantially similar claims made

against named defendants. As such, this Court finds that it

is appropriate to strike the class allegations from plaintiff’s

amended complaint and to allow this matter may [sic]

proceed as an individual action only based on the ruling in

the Bergin case.

Plaintiff thereafter sought leave to appeal, which was

granted by this Court.

On appeal, plaintiff argues that

the trial court erred by denying plaintiff’s motion for

class certification and striking the class allegations in

plaintiff’s complaint. Plaintiff asserts that the trial

court erroneously determined that her class action was

barred because Bergin failed to comply with MCR

3.501(B)(1)(a), or because of any order entered in the

Bergin case. We agree.

“Interpreting the meaning of a court order involves

questions of law that we review de novo on appeal.”

Anne M Hanton Trust Dated May 18, 2006 v Hantz Fin Servs Inc,

unpublished order of the Court of Appeals, entered April 26, 2013

(Docket No. 314889).

660 306 M

ICH

654 [Sept

Silberstein v Pro-Golf of America, Inc, 278 Mich App

446, 460; 750 NW2d 615 (2008). We review the proper

interpretation and application of a court rule, including

MCR 3.501, de novo. Henry v Dow Chem Co, 484 Mich

483, 495; 772 NW2d 301 (2009). “The analysis a court

must undertake regarding class certification may in-

volve making both factual findings and discretionary

decisions.” Mich Ass’n of Chiropractors v Blue Cross

Blue Shield of Mich, 300 Mich App 551, 559; 834 NW2d

148 (2013). “We review the trial court’s factual findings

for clear error and the decisions that are within the trial

court’s discretion for an abuse of discretion.” Id. The

burden of establishing that the requirements for a

certifiable class are satisfied is on the party seeking to

maintain the certification. Tinman v Blue Cross & Blue

Shield of Mich, 264 Mich App 546, 562; 692 NW2d 58

(2004); see also Henry, 484 Mich at 509.

The principal issue in this appeal is whether the

March 10, 2011 order in the Bergin case binds plaintiff,

an unnamed putative class member. To decide the issue,

we consider the construction and effect of the time limit

in MCR 3.501(B)(1) as it applies to an unnamed puta-

tive class member.

When construing a court rule, a court applies prin-

ciples of statutory construction to determine the intent

of the rule. Badeen v PAR, Inc, 300 Mich App 430, 439;

834 NW2d 85 (2013), vacated in part and remanded on

other grounds 496 Mich 75 (2014). A court first consid-

The record does not support defendants’ argument that the trial

court denied class certification and struck the class allegations from

plaintiff’s complaint as a sanction for failure to comply with a court order

and therefore its determinations should be reviewed for an abuse of

discretion. See Maldonado v Ford Motor Co, 476 Mich 372, 388; 719

NW2d 809 (2006). The trial court did not impose any sanctions in this

case, but instead determined that plaintiff was bound by the order issued

in the Bergin case.

2014] H

ANTON V

ANTZ

ERVS

661

ers the plain language of the rule in order to determine

its meaning. Henry, 484 Mich at 495. The intent is

determined by examining the rule itself and its place-

ment within the Michigan Court Rules as a whole. Id.

MCR 3.501(B) provides the following relevant proce-

dures for certifying a class action:

(1) Motion.

(a) Within 91 days after the filing of a complaint that

includes class action allegations, the plaintiff must move

for certification that the action may be maintained as a

class action.

(b) The time for filing the motion may be extended by

order on stipulation of the parties or on motion for cause

shown.

(2) Effect of Failure To File Motion.Ifthe plaintiff fails

to file a certification motion within the time allowed by

subrule (B)(1), the defendant may file a notice of the

failure. On the filing of such a notice, the class action

allegations are deemed stricken, and the action continues

by or against the named parties alone. The class action

allegations may be reinstated only if the plaintiff shows

that the failure was due to excusable neglect. [Emphasis

added.]

Although “plaintiff” is not defined in this court rule,

MCR 2.201(A) provides that “[t]he party who com-

mences a civil action is designated as plaintiff....”

Pursuant to MCR 2.101(B), “[a] civil action is com-

menced by filing a complaint with a court.”

We hold that the plain language of MCR 3.501 does

not support a holding that Bergin’s failure to comply

with MCR 3.501(B)(1) should apply to plaintiff, who

was an unnamed putative class member in the Bergin

case. First, the language in the court rule states that the

time limit applies to a specific plaintiff, and this lan-

guage should not and cannot be generalized to apply to

662 306 M

ICH

654 [Sept

unnamed putative class members. The use of the indefi-

nite article “a” before “complaint” in MCR

3.501(B)(1)(a) “indicates that a plaintiff may file more

than one complaint containing class action allega-

tions....”Badeen, 300 Mich App at 440. In juxtaposi-

tion, the definite article “the” before “plaintiff” in MCR

3.501(B)(1) and (2) reflects an intent to refer to a

particular plaintiff. See Robinson v City of Lansing, 486

Mich 1, 14; 782 NW2d 171 (2010) (noting that “the” and

“a” have different meanings and that “the” is a definite

article “with a specifying or particularizing effect,” and

“a” is an indefinite article with a generalizing effect)

(quotation marks and citations omitted); see also Bar-

row v Detroit Election Comm, 301 Mich App 404, 414;

836 NW2d 498 (2013) (noting that the definite article

“the” denotes a particular item instead of a general

item). Similarly, the use of the word “the” before

“named parties” in MCR 3.501(B)(2) indicates an intent

to refer to particular named parties. As applied to the

Bergin case, MCR 3.501(B) applied to Raymond Bergin,

who was the named plaintiff who commenced the civil

action. We do not agree that the plain language of MCR

3.501(B) applies to all unnamed putative class mem-

bers, such as plaintiff.

Second, we also reject any assertion that Raymond

Bergin was acting as a class representative at the time

he commenced the action. “Pursuant to MCR

3.501(A)(1), members of a class may only sue...asa

representative party of all class members if the prereq-

uisites dictated by the court rule are met.” Henry, 484

Mich at 496. “[N]ot until the class is certified does a

class member have any duty to take note of the suit or

to exercise any responsibility with respect to it....”

Cowles v Bank West, 476 Mich 1, 18; 719 NW2d 94

(2006) (quotation marks and citation omitted). In the

Bergin case, the requirements for class certification had

2014] H

ANTON V

ANTZ

ERVS

663

not been established or considered. Therefore, the class

did not exist, and unnamed class members had no duty

or obligation in relation to the suit. In addition, MCR

3.501(B)(2) provides that after the defendant files a

notice of the failure to file a certification motion, “the

action continues by or against the named parties

alone.” In the Bergin case, the defendants had filed a

notice of the failure to file a certification motion.

Pursuant to MCR 3.501(B)(2), the class action allega-

tions were therefore stricken and the action was con-

tinued by the named party only. Thus, the action was

continued by Raymond Bergin as an individual, and not

as a class representative. Accordingly, any subsequent

orders in the case would only apply to Bergin. The fact

that Bergin went on to settle his claims against the

Bergin defendants by entering into a settlement agree-

ment lends further support to our holding that Bergin

continued as an individual in the Bergin case. There is

no indication that the monetary relief provided to

Bergin was shared among all putative class members in

the Bergin case. Moreover, the compromise reached was

never approved by the trial court, and putative class

members were not given notice of the settlement. MCR

3.501(E).

Third, additional provisions in the court rule lend

further support to our interpretation that unnamed

putative class members were not bound by the Bergin

case. MCR 3.501(B)(3)(e) provides that “[i]f certifica-

tion is denied or revoked, the action shall continue by or

against the named parties alone.” MCR 3.501(D)(2)

provides that a “judgment entered before certification

of a class binds only the named parties.” While these

provisions do not directly apply in this case,

they lend

Plaintiff’s reliance on MCR 3.501(B)(3)(e) is incorrect because the

trial court did not deny class certification. In the Bergin case, the trial

664 306 M

ICH

654 [Sept

further support to our interpretation that plaintiff, as

an unnamed putative class member, was not bound by

the orders in the Bergin case.

For these reasons, we conclude that MCR 3.501

affords no support for defendants’ claim that plaintiff’s

class action allegations were barred by the March 10,

2011 order in the Bergin case. However, we further note

as significant the fact that the trial court in the Bergin

case did not rule on the merits of the class certification

in the Bergin case. Prior class actions that have been

uncertified for a reason that was not substantive should

not preclude subsequent actions. See Cowles, 476 Mich

at 30 (holding that the named plaintiff’s claim was

tolled because the “initial class action was decertified

on grounds other than the appropriateness of the

substantive claims for class treatment”). Here, the trial

court in the Bergin case never ruled on the merits of the

class certification and dismissed only for procedural

deficiencies in the Bergin case.

We also agree with plaintiff that the United States

Supreme Court’s decision in Smith v Bayer Corp, 564

US ___; 131 S Ct 2368; 180 L Ed 2d 341 (2011), lends

further support to our ruling. While Michigan courts

are not bound by federal decisions regarding require-

ments for class actions, our Court finds it “reasonable

to conclude that similar purposes, goals, and cautions

are applicable to both” because “Michigan’s require-

ments for class certification are nearly identical to the

federal requirements....”Henry, 484 Mich at 499. In

Smith, the Court addressed the principle that “[a]

court’s judgment binds only the parties to a suit, subject

to a handful of discrete and limited exceptions” in

court denied Bergin’s motion to extend the time to file a motion for class

certification, but did not deny a motion for class certification.

2014] H

ANTON V

ANTZ

ERVS

665

relation to class actions.

Smith, 564 US at ___; 131 S Ct

at 2379; 180 L Ed 2d at 353. The Smith case involved

two West Virginia class action lawsuits with similar

claims and classes, but with different named plaintiffs,

one in federal court and one in state court. Id. at ___;

131 S Ct at 2373; 180 L Ed 2d at 346-347. After the

federal court denied class certification and dismissed

the federal case, the defendants requested that the

federal court enjoin the state court from considering

class certification. Id. at ___; 131 S Ct at 2374; 180 L Ed

2d at 347-349. The federal court granted the request,

and the United States Supreme Court ultimately re-

versed the decision. Id. at ___; 131 S Ct at 2374,

2379-2380; 180 L Ed 2d at 348, 353-354. The Court

rejected the argument that an unnamed class member

may be a party to a class action before certification of

the class or after the denial of class certification. Id.at

___; 131 S Ct at 2379-2380; 180 L Ed 2d at 353-354.

“Neither a proposed class action nor a rejected class

action may bind nonparties.” Id. at ___; 131 S Ct at

2380; 180 L Ed 2d at 354. While we acknowledge that

Smith did not interpret MCR 3.501 or present facts

identical to the current case, we do find that the

discussion supports our holding that plaintiff, as an

unnamed putative class member in the Bergin case, is

not bound by orders and decisions from the Bergin case.

Defendants make several unsuccessful arguments in

support of their position that we now address. First, we

note that defendants rely heavily on the fact that the

same counsel represented Raymond Bergin and plain-

tiff in the two cases. Although the trial court expressed

concern that the same counsel represented both Bergin

In Taylor v Sturgell, 553 US 880, 893-895; 128 S Ct 2161; 171 L Ed 2d

155 (2008), the Supreme Court discussed the types of exceptions that can

bind a nonparty, none of which are applicable here.

666 306 M

ICH

654 [Sept

and plaintiff, the conditions imposed on the dismissal of

the Bergin case are silent with respect to counsel. We

also do not agree that plaintiff’s retaining the same

attorney from the Bergin case to file her class action is

dispositive, especially in light of the fact that plaintiff

was an unnamed putative class member in the Bergin

action.

Defendants also assert that allowing another poten-

tial representative party (such as plaintiff Hanton) to

file a class action suit following Bergin’s failure to

timely move for class certification would render the

time limitations in MCR 3.501(B) meaningless. Defen-

dants rely on this Court’s decision in Hill v City of

Warren, 276 Mich App 299, 306; 740 NW2d 706 (2007),

which explained that the purpose of MCR 3.501(B)(1) is

to “prevent cases from remaining pending for extended

periods without the propriety of a class action being

raised.” (Quotation marks and citation omitted.) We do

not agree with defendants that the purpose of MCR

3.501(B) is rendered meaningless by allowing more

than one complaint containing similar class action

allegations. Every complaint filed is subject to the

91-day deadline. Additionally, this Court has held that

more than one complaint is permitted. Badeen, 300

Mich App at 440. Our holding is further supported by

the reasoning in Smith, where the United States Su-

preme Court rejected a similar argument. In Smith, the

defendant argued that only binding the named plaintiff

to an order denying class certification would result in

“ ‘serial relitigation.’ ” Smith, 564 US at ___; 131 S Ct

at 2381; 180 L Ed 2d at 355. The Court rejected that

argument and held that there were other approaches,

including “stare decisis and comity,” that were more

appropriate to avoid this result other than binding

nonparties to a judgment. Id. Again, we note the

2014] H

ANTON V

ANTZ

ERVS

667

distinctions between the current case and Smith, but

find the reasoning in Smith to be applicable and per-

suasive.

Defendants also suggest that plaintiff could have inter-

vened in the Bergin case under MCR 3.501(A)(4), which

provides that “[c]lass members have the right to intervene

in the action, subject to the authority of the court to

regulate the orderly course of the action” (emphasis

added). Here, plaintiff was not a class member because the

class was not certified. Thus, plaintiff could not have

intervened in the Bergin case pursuant to MCR

3.501(A)(4) because there was no class certification, and,

thus, she was not a class member. Moreover, a class

member does not have any duty to take note of or to

exercise any responsibility with respect to the lawsuit

before the class is certified. Cowles, 476 Mich at 18.

Finally, defendants present caselaw that they believe

supports their claim that unnamed parties can be

bound by orders from prior litigation. Many of these

cases involve the tolling of the statute of limitations,

which the parties agree is not at issue here. Therefore,

we do not address these cases. Defendants also relied on

Robinson v Dep’t of Transp, 120 Mich App 656; 327

NW2d 317 (1981), in support of their claim that plain-

tiff cannot refile a class action to avoid the application

of a court rule. In Robinson, the trial court dismissed

the plaintiffs’ case and request for injunctive relief

because there was a separate case in another county

where the same relief had been requested and denied.

Id. at 657-659. We do not agree that Robinson is

applicable to the instant case. Robinson involved a

request for injunctive relief, as opposed to class certifi-

cation, and a court rule specifically barred injunctive

relief where a previous application on the matter had

been denied. Id. at 661. The additional cases cited by

668 306 M

ICH

654 [Sept

defendants involved situations where there was a deci-

sion regarding class certification on the merits, which

we have already noted was not decided in this case.

Therefore, we do not find those cases persuasive with

regard to the issue.

Plaintiff next argues that, even assuming that the

March 10, 2011 order in the Bergin case bound plaintiff

in the present class action, the plain language of the

order would not apply to plaintiff’s claim. Because we

hold that plaintiff was not bound by the Bergin order as

an unnamed putative class member, we do not address

whether the specific language of the order applied to

this case.

We also reject defendants’ argument that we should

decide the merits of plaintiff’s motion for class certifi-

cation. An appellee may argue alternative grounds for

affirmance without filing a cross-appeal if the appellee

does not seek a more favorable decision. Middlebrooks v

Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774

(1994). However, considering that this Court’s grant of

plaintiff’s application for leave to appeal was “limited to

the issues raised in the application and supporting

brief,” and that plaintiff did not raise an issue concern-

ing the merits of her motion for class certification, we

conclude that this issue is not properly before us. Anne

M Hanton Trust Dated May 18, 2006 v Hantz Fin Servs

Inc, unpublished order of the Court of Appeals, entered

April 26, 2013 (Docket No. 314889). In addition, our

consideration of this issue would be premature because

the trial court has not yet addressed the merits of

plaintiff’s motion for class certification. “The analysis a

court must undertake regarding class certification may

involve making both factual findings and discretionary

decisions.” Mich Ass’n of Chiropractors, 300 Mich App

at 559.

2014] H

ANTON V

ANTZ

ERVS

669

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

Plaintiff, the prevailing party, may tax costs. MCR

7.219.

OEKSTRA

,P.J., and W

ILDER

, J., concurred with F

ORT

OOD

,J.

670 306 M

ICH

654 [Sept

YONO v DEPARTMENT OF TRANSPORTATION (ON REMAND)

Docket No. 308968. Submitted April 21, 2014, at Lansing. Decided

September 23, 2014, at 9:05 a.m. Leave to appeal sought.

Helen Yono brought an action in the Court of Claims against the

Department of Transportation, seeking damages for injuries sus-

tained when she fell while walking near the sidewalk next to her

car that was parked in a paved and striped area of M-22 designated

for parallel parking. The court, Clinton Canady, III, J., denied the

department’s motion for summary disposition, holding that that

the highway exception to governmental immunity from tort liabil-

ity, MCL 691.1402(1), applied. The court determined that the

portion of the highway designated for parallel parking was de-

signed for vehicular travel within the meaning of MCL

691.1402(1). The department appealed. The Court of Appeals,

ECKERING

and M. J. K

ELLY

,JJ.(T

ALBOT

,P.J., dissenting), affirmed.

299 Mich App 102 (2012). The department sought leave to appeal.

The Michigan Supreme Court heard oral argument on the appli-

cation. In lieu of granting leave to appeal, the Supreme Court

remanded the case to the Court of Appeals, directing the Court of

Appeals to consider on remand what standard a court should apply

in determining as a matter of law whether a portion of highway

was designed for vehicular travel and whether Yono had pleaded

sufficient facts to create a genuine issue of material fact under that

standard. 495 Mich 982 (2014).

On remand, the Court of Appeals held:

1. Governmental immunity inheres in governmental agencies as

a characteristic of government and, accordingly, there is a presump-

tion that a governmental agency is immune from suit unless an

exception to governmental immunity applies to the facts of the case.

In order to rebut the presumption of immunity, a party suing a unit

of government must plead in avoidance of governmental immunity by

stating a claim that fits within a statutory exception to immunity or

stating facts that demonstrate the alleged tort occurred during the

exercise or discharge of a nongovernmental or proprietary function.

Under the highway exception to governmental immunity, MCL

691.1402(1), a person who sustains bodily injury or damage to his or

her property by reason of failure of a governmental agency to keep a

2014] Y

ONO V

MDOT (O

EMAND

) 671

highway under its jurisdiction in reasonable repair and in a condition

reasonably safe and fit for travel may recover damages from the

governmental agency. The agency’s duty keep the highway in reason-

able repair extends only to the improved portion of the highway

designed for vehicular travel. In order to plead in avoidance of

governmental immunity under the highway exception, Yono only had

to allege facts sufficient to place the department on notice that she

suffered an injury caused by the department’s failure to maintain the

highway in reasonable repair and that the condition that caused her

injury was located within an area of the improved portion of the

highway that was designed for vehicular travel. In her complaint,

Yono alleged that she was a pedestrian walking on the improved

portion of M-22 when she fell and suffered an injury. She further

alleged that the department had exclusive jurisdiction over that

improved portion of the highway and had failed to properly maintain

it, which proximately caused her fall and injury. Yono specifically

identified the applicable statutory exception to governmental immu-

nity and correctly identified the duty that applied to the department

as the agency with jurisdiction. Considering her complaint as a whole

and in the light most favorable to her, Yono alleged sufficient facts to

place the department on notice that it was her position that the

department had a statutory duty to maintain the improved portion of

the highway at issue under the highway exception to governmental

immunity and she sufficiently identified the location in order to

permit the department to take a responsive position regarding

whether that portion of the highway fell within the exception.

Therefore, Yono’s complaint met the minimum requirements for

pleading in avoidance of governmental immunity.

2. The phrase “designed for vehicular travel” limits the scope of

the agency’s duty to maintain the improved portion of the highway.

The phrase “vehicular travel” means journeying or going from one

place to another in any wheeled carriage, conveyance, or transport,

including human-powered, animal-powered, and motorized vehicles.

In Nawrocki v Macomb Co Rd Comm, 463 Mich 143 (2000), the

Michigan Supreme Court concluded that the only part of a highway

designed for vehicular travel is the traveled portion, paved or un-

paved, of the roadbed actually designed for public vehicular travel.

While the Supreme Court refused to give the term “travel” its

broadest possible definition, it did not limit the duty to maintain the

improved portion of the highway designed for vehicular travel to that

portion of the highway used as a thoroughfare. Rather, the agency

with jurisdiction has a duty to maintain in reasonable repair any part

of the highway that was specifically designed—that is, planned,

purposed, or intended—to support travel by vehicles, even if the lanes

were designed as specialized, dual-purpose, or limited-access travel

672 306 M

ICH

671 [Sept

lanes. Therefore, in order to establish that it was entitled to summary

disposition notwithstanding that Yono pleaded in avoidance of gov-

ernmental immunity, the department had to present evidence that, if

left unrebutted, would establish that the area of the highway at issue

fell outside the improved portion of the highway that was planned,

purposed, or intended to support regular travel by vehicles. The

department relied on an affidavit submitted by Gary Niemi, an

employee of the department, in arguing that the area where Yono fell

was not designed for vehicular travel. But Niemi’s affidavit presumed

that the highway exception to governmental immunity applied only

to the portion of the highway designed to sustain the heaviest regular

travel. Niemi’s presumption in that regard was contrary to the

statutory language, rendering his opinion that the parking lanes were

not designed for vehicular travel irrelevant. The department’s argu-

ments regarding paint markings were also inapposite because one

cannot infer the nature of a highway’s design from the markings

painted on the highway. Vehicles must travel into and out of the

parallel parking lanes in order for those lanes to serve their purpose,

and it was obvious from the photos submitted by the parties that the

designers of M-22 designed the parking lanes, at a minimum, to

support limited, albeit regular, vehicular travel beyond that which

accompanies the use of the lanes for parking. Because the depart-

ment did not present any admissible evidence to rebut Yono’s

allegations that the area of the highway at issue was part of the

improved portion of the highway designed for vehicular travel, the

department failed to establish that it was entitled to summary

disposition under MCR 2.116(C)(7). The trial court did not err when

it denied the department’s motion for summary disposition.

Affirmed.

1. G

OVERNMENTAL

MMUNITY —

IGHWAY

XCEPTION —

LEADING IN

VOIDANCE

OVERNMENTAL

MMUNITY

Under the highway exception to governmental immunity, MCL

691.1402(1), 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 damages

from the governmental agency; the agency’s duty keep the high-

way in reasonable repair extends only to the improved portion of

the highway designed for vehicular travel; in order to plead in

avoidance of governmental immunity under the highway excep-

tion, the plaintiff only has to allege facts sufficient to place the

agency on notice that the plaintiff suffered an injury caused by the

agency’s failure to maintain the highway in reasonable repair and

2014] Y

ONO V

MDOT (O

EMAND

) 673

the condition that caused the plaintiff’s injury was located within

an area of the improved portion of the highway that was designed

for vehicular travel.

2. G

OVERNMENTAL

MMUNITY —

IGHWAY

XCEPTION —

XTENT OF THE

GENCY

’

UTY —

MPROVED

ORTION OF THE

IGHWAY

ESIGNED FOR

EHICU-

LAR

RAVEL

Under the highway exception to governmental immunity, MCL

691.1402(1), 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 damages

from the governmental agency; the agency with jurisdiction has a

duty to maintain in reasonable repair any part of the highway that

was specifically designed—that is, planned, purposed, or

intended—to support travel by vehicles whether those vehicles are

human powered, animal powered, or motorized, even if the lanes

were designed as specialized, dual-purpose, or limited-access travel

lanes; one cannot generally infer the nature of a highway’s design

from the markings painted on the highway.

Smith & Johnson, Attorneys, PC (by L. Page Graves),

for Helen Yono.

Bill Schuette, Attorney General, Aaron D. Lindstrom,

Solicitor General, Matthew Schneider, Chief Legal

Counsel, and Michael J. Dittenber, Assistant Attorney

General, for the Department of Transportation.

Amicus Curiae:

Lacey & Jones LLP (by Carson J. Tucker) for the

Michigan Municipal League and the Michigan Town-

ships Association.

ON REMAND

Before: B

ECKERING

,P.J., and B

ORRELLO

and M. J.

ELLY

,JJ.

M. J. K

ELLY

, J. This case returns to us on remand

from our Supreme Court to consider two issues: “(1)

674 306 M

ICH

671 [Sept

what standard a court should apply in determining as a

matter of law whether a portion of highway was ‘designed

for vehicular travel,’ as used in MCL 691.1402(1); and (2)

whether the plaintiff has pled sufficient facts to create a

genuine issue of material fact under this standard.” Yono

v Dep’t of Transp, 495 Mich 982, 983 (2014). In accor-

dance with these instructions, we explain the procedure

for evaluating a motion under MCR 2.116(C)(7). We also

discuss the minimum requirements for pleading the high-

way exception to governmental immunity and the nature

of the proofs that a governmental entity must establish in

order to show that it is entitled to immunity as a matter of

law even after a plaintiff has adequately pleaded in avoid-

ance of governmental immunity under the highway excep-

tion. After discussing these areas of the law, we examine

whether plaintiff, Helen Yono, pleaded in avoidance of

governmental immunity and whether defendant, the De-

partment of Transportation, established grounds for dis-

missing Yono’s claim under MCR 2.116(C)(7). For the

reasons more fully explained later in this opinion, we

conclude the Department failed to properly support its

motion under MCR 2.116(C)(7) and, therefore, the trial

court did not err when it denied the Department’s motion.

Accordingly, we again affirm.

I. BASIC FACTS

As we discussed in more detail in our prior opinion,

Yono sued the Department after she fell and was injured

while walking to her car, which was parked in that

portion of M-22 where parking is permitted. See Yono v

Dep’t of Transp, 299 Mich App 102, 104; 829 NW2d 249

(2012). The Department responded by moving for sum-

mary disposition under MCR 2.116(C)(7). The Depart-

ment supported its motion with evidence that pur-

ported to show that the area at issue was not in fact

2014] Y

ONO V

MDOT (O

EMAND

) 675

designed for vehicular travel, contrary to Yono’s plead-

ings. It argued that, given this undisputed evidence, it

had no obligation under MCL 691.1402(1) to maintain

the areas where parking was permitted. Yono, 299 Mich

App at 104-105. Because it had no duty to maintain

those areas, it argued, the trial court had to dismiss

Yono’s claim as a matter of law. Id. at 105. The trial

court disagreed and determined that the undisputed

evidence showed that the area where parking was

permitted was designed for vehicular travel and, on that

basis, denied the Department’s motion. Id. at 105-106.

On appeal to this Court, a majority of the panel

hearing this case agreed that the Department failed to

establish that it was entitled to governmental immunity

as a matter of law. Id. at 114. Specifically, after exam-

ining the record evidence, the majority concluded that

the undisputed evidence showed the portion of M-22

where parking is permitted was designed for regular

vehicular travel—even if it was not regularly used as a

thoroughfare. Id. at 110-114. Consequently, the major-

ity affirmed the trial court’s order denying the Depart-

ment’s motion for summary disposition. Id. at 115. The

Department then appealed to our Supreme Court and,

in lieu of granting leave to appeal, the Supreme Court

remanded the case back to this Court for additional

consideration.

We now examine the proper procedure for consider-

ing a motion for summary disposition premised on

governmental immunity under MCR 2.116(C)(7).

II. GOVERNMENTAL IMMUNITY

A. STANDARDS OF REVIEW

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

a motion for summary disposition. Barnard Mfg Co, Inc

676 306 M

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v Gates Performance Engineering, Inc, 285 Mich App

362, 369; 775 NW2d 618 (2009). This Court also reviews

de novo whether the trial court properly interpreted

and applied the applicable statutes and court rules.

Brecht v Hendry, 297 Mich App 732, 736; 825 NW2d 110

(2012).

B. ORDER ON REMAND

Our Supreme Court has ordered us to consider “(1)

what standard a court should apply in determining as a

matter of law whether a portion of highway was ‘de-

signed for vehicular travel,’ as used in MCL

691.1402(1); and (2) whether the plaintiff has pled

sufficient facts to create a genuine issue of material fact

under this standard.” Yono, 495 Mich at 983. Although

a trial court may consider a party’s pleadings when

deciding whether there is a genuine issue of material

fact, see MCR 2.116(G)(5), the nonmoving party cannot

rely on his or her allegations alone when responding to

a properly supported motion arguing there is no genu-

ine issue of material fact. See MCR 2.116(G)(4).

The

nonmoving party simply cannot plead a genuine issue of

material fact into existence. Instead, when a moving

party presents evidence that he or she is entitled to

immunity by law, the nonmoving party cannot rely on

his or her allegations to establish a question of fact; the

nonmoving party must respond by presenting evidence

sufficient to establish, at the very least, that there is a

genuine issue of fact as to the existence of immunity.

Accordingly, it is unclear what our Supreme Court

We are cognizant that MCR 2.116(G)(4) applies to motions brought

under MCR 2.116(C)(10). However, we conclude that the relevant rules

applicable to a motion under MCR 2.116(C)(10) apply equally to a factual

challenge under MCR 2.116(C)(7). See Kincaid v Cardwell, 300 Mich App

513, 537 n 6; 834 NW2d 122 (2013).

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meant when it ordered us to consider whether Yono

“has pled sufficient facts to create a genuine issue of

material fact....”Yono, 495 Mich at 983. It may have

meant for this Court to consider solely what evidence is

necessary to establish whether “the improved portion of

the highway” at issue was “designed for vehicular

travel,” MCL 691.1402(1), or it may have meant that

this Court should examine the standard applicable to

pleading in avoidance of governmental immunity under

MCL 691.1402(1). Therefore, in order to ensure that we

have considered everything that our Supreme Court

has asked of us, we first consider whether Yono properly

pleaded in avoidance of governmental immunity. We

then examine the evidence that is sufficient to establish

that the condition at issue was in the “improved portion

of the highway designed for vehicular travel.” MCL

691.1402(1).

C. MOTIONS UNDER MCR 2.116(C)(7)

A trial court properly dismisses a claim under MCR

2.116(C)(7) when, in relevant part, the claim is barred

by “immunity granted by law....”Theparty moving

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

show that he or she is entitled to immunity granted by

law in two distinct ways. First, the moving party may

show that immunity is apparent on the face of the

plaintiff’s pleadings. See MCR 2.116(G)(2) (stating that

the moving party may, but is not required, to support a

motion under MCR 2.116(C)(7) with affidavits, deposi-

tions, admissions, or other documentary evidence). In

this sense, the motion is similar to one under MCR

2.116(C)(8). See Patterson v Kleiman, 447 Mich 429,

434; 526 NW2d 879 (1994) (noting that the distinction

between a motion under MCR 2.116(C)(7) and one

under MCR 2.116(C)(8) is that the movant under MCR

678 306 M

ICH

671 [Sept

2.116(C)(7) may support his or her motion with docu-

mentary evidence that contradicts the allegations in the

plaintiff’s complaint). In reviewing a motion under

MCR 2.116(C)(7) that challenges whether the movant is

entitled to immunity on the face of the plaintiff’s

pleadings, the trial court must accept all well-pleaded

allegations as true. Maiden v Rozwood, 461 Mich 109,

119; 597 NW2d 817 (1999). Similarly, as with a motion

under MCR 2.116(C)(8), the court must construe the

allegations in the light most favorable to the nonmoving

party. Id. If it is evident on the face of the allegations,

even when considered in the light most favorable to the

nonmoving party and accepting the allegations as true,

that the movant is entitled to immunity as a matter of

law, the trial court should grant the motion to dismiss

under MCR 2.116(C)(7).

In contrast to a motion under MCR 2.116(C)(8), a

party moving for summary disposition under MCR

2.116(C)(7) is not limited to challenging the facial

validity of the pleadings. See MCR 2.116(G)(5) (provid-

ing that, when considering a motion brought under

MCR 2.116(C)(8), the trial court may only consider the

pleadings); Patterson, 447 Mich at 434. Rather, the

movant may establish that, given the undisputed facts

of the case, he or she is entitled to immunity as a matter

of law, notwithstanding the plaintiff’s allegations. See

MCR 2.116(G)(5); MCR 2.116(G)(6). Such a challenge is

similar to one under MCR 2.116(C)(10). See Dextrom v

Wexford Co, 287 Mich App 406, 430-433; 789 NW2d 211

(2010). And, as with a motion under MCR 2.116(C)(10),

the movant bears the initial burden to show that he or

she is entitled to immunity as a matter of law. See

Kincaid v Cardwell, 300 Mich App 513, 522; 834 NW2d

122 (2013). If the movant properly supports the motion

by presenting facts that, if left unrebutted, would show

that there is no genuine issue of material fact that the

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movant has immunity, the burden shifts to the nonmov-

ing party to present evidence that establishes a ques-

tion of fact as to whether the movant is entitled to

immunity as a matter of law. Id. at 537 n 6. If the trial

court determines that there is a question of fact as to

whether the movant has immunity, the court must deny

the motion. Dextrom, 287 Mich App at 431.

D. PLEADING IN AVOIDANCE OF GOVERNMENTAL IMMUNITY

1. PROCEDURAL POSTURE

Before examining the adequacy of Yono’s pleadings,

we note that the Department did not move to dismiss

Yono’s claim on the ground that she failed to plead in

avoidance of governmental immunity. Rather, the De-

partment recognized that Yono was relying on the

highway exception to governmental immunity, MCL

691.1402(1), and had pleaded that the Department

breached its duty under that statute to maintain the

improved portion of the highway at issue in reasonable

repair. In its motion for summary disposition, the

Department focused its argument on the evidence;

We note a potential conflict in the manner by which such a dispute

should be resolved. In Dextrom, the Court held that, when there is a

question of fact on a motion for summary disposition under MCR

2.116(C)(7) involving governmental immunity, the factual dispute must

be resolved by the trial court at a hearing. Dextrom, 287 Mich App at 432.

In contrast, the Court in Kincaid determined that a question of fact

under MCR 2.116(C)(7) involving the application of a statute of limita-

tions must be submitted to the jury. Kincaid, 300 Mich App at 523, citing

Tumey v Detroit, 316 Mich 400, 411; 25 NW2d 571 (1947) (“In the case at

bar it cannot be said as a matter of law that plaintiffs’ rights of recovery

were barred by the statute. Under the proofs the issue was one of fact for

the determination of the jury.”). Because we conclude the Department

failed to establish grounds for relief under MCR 2.116(C)(7), we need not

determine the appropriate method for resolving factual disputes under

MCR 2.116(C)(7) or whether the manner for resolving such disputes

varies depending on the grounds for dismissal asserted in the motion.

680 306 M

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671 [Sept

specifically, it argued that Yono’s claim was barred by

immunity because she fell in an area that was—as a

matter of undisputed fact—not part of the highway

designed for vehicular travel. The Department even

conceded that the area of the highway where parking

was permitted involved vehicular travel, but argued

that the phrase “designed for vehicular travel” should

be construed to mean the lanes used as a thoroughfare,

as opposed to lanes used for more limited vehicular

travel. The Department supported its motion with

photographic evidence of the area of the highway at

issue and proffered an affidavit wherein an expert

opined that the area of the highway where Yono fell was

not designed for vehicular travel.

Even on appeal, the Department did not specifically

address the sufficiency of Yono’s pleadings in its question

presented or main argument; it focused its argument on

whether the phrase “designed for vehicular travel” means

that the only area that it has a duty to maintain in

reasonable repair are those portions of the highway actu-

ally used as a thoroughfare. The Department only raised

the sufficiency of Yono’s pleadings as an afterthought in

the final paragraph of its brief on appeal. It is for that

reason that the majority in our prior opinion limited its

discussion to the evidence presented by the parties in

support and opposition to the motion for summary dispo-

sition. See Yono, 299 Mich App at 114 n 4. Despite the fact

that the Department failed to properly preserve this issue

by contesting the sufficiency of Yono’s allegations in its

motion before the trial court, see Bailey v Schaaf (On

Remand), 304 Mich App 324, 344-346; 852 NW2d 180

(2014), and abandoned the issue on appeal, see Mitcham v

Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959); Yono,

299 Mich App at 114 n 4, we now examine Yono’s

complaint to determine whether she adequately pleaded

in avoidance of governmental immunity.

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2. THE COMPLAINT

Governmental immunity inheres in governmental

agencies as a characteristic of government and, accord-

ingly, there is a presumption that “a governmental

agency is immune” from suit unless an exception to

governmental immunity applies to the facts of the case.

Mack v Detroit, 467 Mich 186, 201; 649 NW2d 47 (2002).

In order to rebut the presumption of immunity, a “party

suing a unit of government must plead in avoidance of

governmental immunity.” Id. at 203. The party suing

the governmental agency must plead facts that—if

true—demonstrate that an exception to governmental

immunity applies: “A plaintiff pleads in avoidance of

governmental immunity by stating a claim that fits

within a statutory exception or by pleading facts that

demonstrate that the alleged tort occurred during the

exercise or discharge of a nongovernmental or propri-

etary function.” Id. at 204.

The present case involves the highway exception to

governmental immunity provided under MCL

691.1402(1). The Legislature determined that a “gov-

ernmental agency having jurisdiction over a highway

shall maintain the highway in reasonable repair so that

it is reasonably safe and convenient for public travel.”

Id. Moreover, a “person who sustains bodily injury or

damage to his or her property by reason of failure of a

governmental agency to keep a highway under its

jurisdiction in reasonable repair and in a condition

reasonably safe and fit for travel may recover the

damages suffered by him or her from the governmental

agency.” Id. The agency’s duty to keep highways in

reasonable repair, however, “extends only to the im-

proved portion of the highway designed for vehicular

travel and does not include sidewalks, trailways, cross-

walks, or any other installation outside of the improved

682 306 M

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671 [Sept

portion of the highway designed for vehicular travel.”

Id. See also Nawrocki v Macomb Co Rd Comm, 463

Mich 143, 171; 615 NW2d 702 (2000) (“[I]f the condi-

tion proximately causing injury or property damage is

located in the improved portion of the highway designed

for vehicular travel, not otherwise expressly excluded,

the state or county road commissioners’ statutory duty

under the highway exception is implicated and a plain-

tiff is capable of pleading in avoidance of governmental

immunity.”).

Under Michigan’s notice-pleading standard, the pri-

mary function of a pleading is to “give notice of the

nature of the claim or defense sufficient to permit the

opposite party to take a responsive position.” Stanke v

State Farm Mut Auto Ins Co, 200 Mich App 307, 317;

503 NW2d 758 (1993). A party asserting a claim does

not have to use any particular formula or special

wording in order to properly state his or her claim.

Rather, the complaint need only contain a “statement of

the facts, without repetition, on which the pleader relies

in stating the cause of action, with the specific allega-

tions necessary reasonably to inform the adverse party

of the nature of the claims the adverse party is called on

to defend[.]” MCR 2.111(B)(1). Consequently, in order

to plead in avoidance of governmental immunity under

the highway exception, as that exception applies to the

Department, Yono only had to allege facts sufficient to

place the department on notice that she suffered an

injury caused by the Department’s failure to maintain

the highway in reasonable repair and the condition that

caused her injury was located within an area of the

improved portion of the highway that was designed for

vehicular travel.

In her complaint, Yono alleged that she was a pedes-

trian walking on the improved portion of M-22 when

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she fell and suffered an injury. She further alleged that

the Department had exclusive jurisdiction over that

improved portion of the highway and had failed to

properly maintain it, which proximately caused her fall

and injury. Although she did not specifically allege that

she fell in the improved portion “designed for vehicular

travel,” she was not required to use any specific “magic

words” in order to plead in avoidance of governmental

immunity. She only needed to allege sufficient facts to

give the Department notice of her theory of recovery,

including notice of the applicable exception to govern-

mental immunity. See Stanke, 200 Mich App at 317.

Yono specifically identified the applicable statutory ex-

ception to governmental immunity and correctly iden-

tified the duty that applied to the Department as the

agency with jurisdiction: “[The Department] owed

[Yono] the statutory duty to repair and maintain the

improved portion of M-22 in a condition reasonabl[y]

safe and convenient for public travel.” Cf. MCL

691.1402(1) (“Each governmental agency having juris-

diction over a highway shall maintain the highway in

reasonable repair so that it is reasonably safe and

convenient for public travel.”). That is, she identified

the defect as being in the “improved portion” of the

Highway that the Department had a duty to maintain

and repair under MCL 691.1402(1), which—when read

in light of that statute—necessarily means the im-

proved portion of the highway designed for vehicular

travel. Considering her complaint as a whole and in the

light most favorable to her, Yono alleged sufficient facts

to place the Department on notice that it was her

position that the Department had a statutory duty to

maintain the improved portion of the highway at issue

under the highway exception to governmental immu-

nity and sufficiently identified the location to permit

the Department to take a responsive position as to

684 306 M

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671 [Sept

whether that portion of the highway fell within the

exception. Therefore, Yono’s complaint met the mini-

mum requirements for pleading in avoidance of govern-

mental immunity. See Mack, 467 Mich at 204.

Even if Yono could only plead in avoidance of govern-

mental immunity by specifically alleging that the defect

at issue was in the improved portion of the highway

“designed for vehicular travel,” as opposed to alleging

that it was part of the improved portion that the

Department had a duty to maintain, under the facts of

this case, that deficiency would not be fatal to her claim.

A plaintiff may generally cure defective pleadings by

amendment before trial, and leave to amend to correct

such deficiencies should be freely granted “when justice

so requires.” MCR 2.118(A)(2). As our Supreme Court

has stated, a trial court’s discretion to permit amend-

ment to cure deficiencies under this rule is not a matter

of grace, but a right of a litigant seeking to amend in the

absence of any apparent or declared reason that would

justify denial—such as undue delay, bad faith, dilatory

motive, repeated failure to cure deficiencies, undue

prejudice, or futility of amendment. Ben P Fyke & Sons

v Gunter Co, 390 Mich 649, 659; 213 NW2d 134 (1973).

For that reason, a trial court abuses its discretion when

it uses its discretion “to obviate a recognized claim or

defense.” Id. Accordingly, even if Michigan courts were

to apply a hypertechnical requirement for pleading in

avoidance of governmental immunity, a plaintiff could

nevertheless survive a motion for summary disposition

under MCR 2.116(C)(7) by demonstrating that he or

she would be entitled to amend the complaint to cure

the deficiency. See Kincaid, 300 Mich App at 531.

Although Yono did not specifically allege that the

defect at issue was in the improved portion of the

highway designed for vehicular travel, she placed the

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Department on notice that it was her position that the

highway exception to governmental immunity applied

under the facts and identified the location of the defect

with sufficient precision to allow the Department to

respond. Indeed, the Department plainly understood

that it was Yono’s position that her claim fell under that

exception and it immediately challenged her ability to

factually support that position. Within the same month

that Yono filed her complaint, the Department moved

for summary disposition on the ground that the defect

at issue was not within the improved portion of the

highway designed for vehicular travel. Moreover, it

supported its position with evidence and an expert’s

affidavit. The trial court then held a hearing on the

motion and determined that the undisputed evidence

established that the defect at issue was within the

improved portion of the highway designed for vehicular

travel. Under these circumstances, even if the Depart-

ment had challenged whether Yono pleaded in avoid-

ance of governmental immunity, it would have been

patently unjust for the trial court to have denied Yono

leave to correct the technical deficiency in her plead-

ings. See Ben P Fyke, 390 Mich at 659. Therefore, that

claim of error would not warrant relief.

Yono properly pleaded in avoidance of the Depart-

ment’s governmental immunity. Even if she did not, she

would have been entitled to amend her complaint to

correct the technical deficiency. The trial court did not

err to the extent that it refused to dismiss Yono’s claim

for failing to plead in avoidance of governmental immu-

nity.

E. CHALLENGING THE FACTUAL BASIS FOR IMMUNITY

Before the trial court, the Department did not chal-

lenge the facial validity of Yono’s claim—it challenged her

686 306 M

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671 [Sept

factual support for the allegation that the condition giving

rise to her injury was within the improved portion of the

highway designed for vehicular travel. See MCL

691.1402(1). As the moving party, the Department had the

initial burden to show that the condition at issue fell

outside the improved portion of the highway designed for

vehicular travel. See Kincaid, 300 Mich App at 522.

The Legislature did not define the phrase “improved

portion of the highway designed for vehicular travel”

and, for that reason, courts would normally construe

the phrase by giving the words their ordinary meaning.

MCL 8.3a. A plain reading of MCL 691.1402(1) shows

that the Legislature intended to limit the application of

the highway exception so that governmental agencies

with jurisdiction over highways would not have the

same scope of liability for dangerous conditions on their

lands as a private premises possessor or landowner

would have. To accomplish that goal, the Legislature

limited the scope of liability to the improved portions of

the highway, as opposed to unimproved portions. Ac-

cordingly, even though the highway may include signifi-

cant portions of unimproved land, the state would have

no duty to maintain those unimproved portions. See,

e.g., Kentwood v Sommerdyke Estate, 458 Mich 642,

665; 581 NW2d 670 (1998) (holding that a highway

established under the highway-by-user statute is dedi-

cated to the “full extent of the four-rod width” even if

the state does not use or improve the highway to the full

width). The Legislature then further limited the duty to

maintain the improved portion of the highway in rea-

sonable repair to a specific subset of the improved

portion: “the improved portion of the highway designed

for vehicular travel.” MCL 691.1402(1).

The phrase “designed for vehicular travel” limits the

scope of the duty to maintain the improved portion and

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the key to that phrase is the word “designed.” Some-

thing is designed for a particular purpose when it is

“[p]lanned, purposed, [or] intended” for that purpose.

The Oxford English Dictionary (2d ed, 1991). Further,

to design something (designed being the past participle

of the verb design) means—at least in the context of

highway improvements—“[t]o purpose or intend (a

thing) to be or do (something); to mean (a thing) to serve

some purpose or fulfil some plan,” or to “have in view,

[to] contemplate” a particular purpose. Id. Thus, the

Legislature limited the state’s duty to maintain and

repair to that portion of the highway that contains

improvements that were planned, purposed, or in-

tended to be used for “vehicular travel”—that is, the

duty to repair and maintain extends only to those

improvements that were intended to serve the purpose

or plan of “vehicular travel.”

The adjective “vehicular” means “[o]f or pertaining

to, associated or connected with, a (wheeled) vehicle,”

and the word “vehicle” means “[a]ny means of carriage,

conveyance, or transport; a receptacle in which any-

thing is placed in order to be moved.” Id. In the context

of a highway, the term “vehicle” will commonly refer to

“[a] means of conveyance provided with wheels or

runners and used for the carriage of persons or goods; a

carriage, cart, wagon, sledge, or similar contrivance.”

Id. The term “travel,” finally, means “[t]o make a

journey; to go from one place to another; to journey.” Id.

Vehicular travel, then, means journeying or going from

one place to another in any wheeled carriage, convey-

ance, or transport.

Placed in its proper context, the statute clearly imposes a duty to

maintain in reasonable repair all improvements within the highway that

were purposed or intended to support vehicular travel, not just the

roadbed.

688 306 M

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It is notable that the Legislature used the rather broad

term “vehicle” in MCL 691.1402(1) and did not limit that

term to motor vehicles or some other subset of vehicles.

Giving this word its ordinary meaning, the Legislature

plainly intended to impose a duty on governmental agen-

cies to maintain the improved portion of the highway

designed for vehicular travel in reasonable repair for all

manner of vehicles, not just motor vehicles. As such, a

governmental agency ordinarily would have a duty to

maintain its highways in reasonable repair so that it is

reasonably safe for cyclists as well as motorists. But see

Gregg v State Hwy Dep’t, 435 Mich 307, 312-317; 458

NW2d 619 (1990) (stating—without examining the com-

mon meaning of the word “vehicle”—that a bicycle is not

a vehicular means of travel because “vehicular travel”

refers to travel by motor vehicles), overruled by Grimes v

Dep’t of Transp, 475 Mich 72, 84; 715 NW2d 275 (2006)

(characterizing the decision in Gregg as flawed because

that Court did not construe the statute according to the

plain meaning of the words used in the statute); Roy v

Dep’t of Transp, 428 Mich 330, 340; 408 NW2d 783 (1987)

(using the definition for “vehicle” found in the Michigan

Vehicle Code to show that the term “vehicle,” as used

in MCL 691.1402(1), does not encompass human-

powered vehicles such as bicycles), impliedly over-

ruled in relevant part by Grimes, 475 Mich at 85-87

(holding that the Court in Gregg, which relied on the

definition provided in Roy, erred when it used a

definition found in the Michigan Vehicle Code to

interpret the completely separate statutory provi-

sions found in the governmental tort liability act).

The ordinary meaning of the word “vehicle,” there-

fore, is not limited to trucks or cars—it is not even

limited to motor vehicles. Rather, the word encom-

passes every type of wheeled vehicle that can be used

to travel from one place to another; it includes

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human-powered vehicles (such as bicycles, tricycles,

and wheelchairs) and animal-powered vehicles (such as

the horse-drawn buggies one finds in Amish country or

the horse-drawn carts one finds on Mackinac Island),

in addition to the motorized vehicles that are more

commonly found along Michigan’s highways.

Considering the meaning of the phrase as a whole

and in context, were we writing on a clean slate, we

would conclude that the phrase “improved portion of

the highway designed for vehicular travel” means that

portion of the highway that has been improved—as

opposed to the unimproved portion—but only to the

extent that the improvements were planned, purposed,

or intended to allow persons to safely journey or go from

place to place by a means of a wheeled carriage, convey-

ance, or transport. We are not, however, writing on a

clean slate.

In Nawrocki, our Supreme Court considered the

nature of the improvements contemplated by the Leg-

islature when it limited the duty to maintain or repair

highways to the “improved portion of the highway

designed for vehicular travel” and concluded that the

only part of a highway designed for vehicular travel was

the “ ‘travelled portion, paved or unpaved, of the

roadbed actually designed for public vehicular travel.’ ”

If “designed for vehicular travel” meant designed for regular travel by

motorized vehicles, we would be forced to hold that there are no highways

on Mackinac Island.

We do not mean to imply that it is legal for any type of vehicle to travel

on any or all highways. The term highway applies to a broad array of

streets and roads, which includes some limited access highways. See MCL

691.1401(c) (defining highway to mean “a public highway, road, or

street”). Nevertheless, the Legislature did not limit the duty at issue to

the improved portion of the highway designed for legal vehicular travel or

even contemplated vehicular travel—it elected to impose a duty premised

on whether the improved portion of the highway was designed for

vehicular travel in general.

690 306 M

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671 [Sept

Nawrocki, 463 Mich at 180, quoting Scheurman v Dep’t

of Transp, 434 Mich 619, 631; 456 NW2d 66 (1990). The

“improved portion of the highway designed for vehicu-

lar travel,” as construed in this way, means only that

part of the highway that was designed to physically

support the vehicle while traveling—the point where

the rubber meets the road, so to speak. The Court

returned to and reiterated this limited understanding of

the phrase in Grimes, 475 Mich 72.

In Grimes, our Supreme Court had to determine

whether the shoulder of the highway at issue in that

case was “designed for vehicular travel” within the

meaning of MCL 691.1402(1). Grimes, 475 Mich at

88-91. The Court conceded that travel refers to a

continuum of activity and that a momentary swerve

onto the shoulder of a highway amounts to travel in a

limited sense, but it rejected this definition as too

broad. Id. at 89. The Court noted that there was a

distinction between design and contemplated use and,

from that, rejected the argument that a shoulder nec-

essarily fell within the definition simply because the

design contemplated that it might be used for travel—

albeit limited and emergent travel. Id. at 90. Instead, it

The Court did not discuss the possibility that a governmental agency

might have designed a particular surface to support regular vehicular

travel even though it did not contemplate that the surface would be

immediately used in that way, such as might be the case with a surface

designed to accommodate vehicular travel in anticipation of a planned

future expansion. Thus, it is unclear how it would address those

situations in which the agency designed a highway improvement to fully

support vehicular travel, but nevertheless marked the area off as a

shoulder for purposes of the immediate future. It also did not address

those highways that have a shoulder that was in fact designed to support

regular vehicular travel other than motor vehicle travel (such as a

shoulder used as a bicycle lane), but which was also designed to serve the

emergent need discussed in Grimes. As the Court aptly noted, one ought

not to conflate purposeful design with contemplated use. Grimes, 475

Mich at 90.

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stated that the term “travel” excludes “the shoulder”

and then went a step further and 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.

As the majority recognized in this Court’s prior

opinion, “while our Supreme Court refused to give the

term ‘travel’ its broadest possible definition, it also did

not narrow it to exclude specialized, dual-purpose, or

limited-access travel lanes.” Yono, 299 Mich App at 110,

citing Grimes, 475 Mich at 89-91. The majority rejected

the Department’s attempt to give the term “travel” its

narrowest possible definition—namely, to limit the

term to “that portion of the highway that is mainly used

for travel.” Id. at 111. Although we are no longer free to

give MCL 691.1402(1) its ordinary meaning, we con-

tinue to believe that our Supreme Court’s construction

of the phrase “improved portion of the highway de-

signed for vehicular travel,” did not limit the State’s

duty to maintain to only that portion of the highway

that is used as the main or primary travel lane—stated

another way, our Supreme Court did not limit the duty

to that portion of the highway used as a thoroughfare.

Rather, the Department continues to have a duty to

maintain in reasonable repair any part of the highway

that was specifically designed—that is, planned, pur-

posed, or intended—to support travel by vehicles (man-

powered, animal-powered, or motorized), even if the

lanes were designed as “specialized, dual-purpose, or

limited-access travel lanes.” Yono, 299 Mich App at 110.

Therefore, in order to establish that it was entitled to

The Court apparently determined on the basis of the design of the

shoulder at issue in Grimes, that no shoulders, without regard to the fact

that the design might vary from one highway to another, are designed for

vehicular travel. See Grimes, 475 Mich at 91.

692 306 M

ICH

671 [Sept

summary disposition notwithstanding that Yono

pleaded in avoidance of governmental immunity, the

Department had to present evidence that, if left unre-

butted, would establish that the area of the highway at

issue fell outside the improved portion of the highway

that was planned, purposed, or intended to support

regular travel by vehicles.

In its brief in support of its motion for summary

disposition, the Department attached photos that iden-

tified the specific defect at issue and also generally

demonstrated the physical characteristics of the high-

way at issue. But it did not rely on those photos as

supporting an inference that the highway must not

have been designed for vehicular travel. Instead, the

Department relied exclusively on an affidavit by Gary

R. Niemi to establish that the section of the highway

where Yono fell was not designed for vehicular travel.

Unfortunately for the Department, Niemi’s averments

did not establish that the area at issue fell outside the

improved portion of the highway designed for vehicular

travel.

Niemi averred that he was and remains a develop-

mental engineer with the Department and that his

duties include “managing designs on highway and

bridge reconstruction projects.” He further averred

that he researched the highway and inspected it. He

then described the highway as having a northbound

lane, a southbound lane, and two parallel parking lanes.

He then asserted that the portion of the highway that

was “designed for through traffic” measures 11 feet on

either side of the center line of the highway. He ex-

plained that 11 feet meets the Department’s standards

as well as federal standards. He then asserted that

everything outside the 22 feet in the center of the

highway was either a buffer zone or a parallel parking

2014] Y

ONO V

MDOT (O

EMAND

) 693

lane and then concluded, without stating how he

reached this conclusion, that parallel parking lanes are

not “designed for vehicular traffic.”

Niemi never averred that he participated in or oth-

erwise had knowledge of the actual design of the par-

ticular section of M-22 at issue in this case and, likely

for that reason, was unable to state whether the surface

of the highway outside the 11 feet on either side of the

center line was actually designed—that is, planned,

purposed, or intended—to support vehicular travel.

Rather, his affidavit assumes, contrary to our construc-

tion of the statute at issue, that the statute applies only

to that portion of the highway designed to sustain the

heaviest regular travel. But as we have been at pains to

explain in this opinion and our prior opinion, the

Legislature did not limit the state’s duty to repair and

maintain highways to the improved portion of the

highway designed as a thoroughfare—it limited the

duty to the “improved portion of the highway designed

for vehicular travel”—any vehicular travel, not just the

heaviest, most continuous, or fastest vehicular travel.

MCL 691.1402(1) (emphasis added). Therefore, Niemi’s

opinion that the statute applies only to the center-most

portion of the highway at issue is irrelevant.

Similarly, while he asserted that parallel parking

lanes are not designed for vehicular travel, Niemi did

not explain the basis for that assertion and it appears to

follow from his erroneous understanding that only the

most heavily trafficked portions of the highway are

“designed for vehicular travel” within the meaning of

It is for that reason that we disregarded the conclusions from both

experts’ affidavits. See Yono, 299 Mich App at 114 n 3 (“When the facts

concerning the physical attributes [of the highway] are not in dispute, it

is for the court to decide whether the improvement at issue was designed

for vehicular travel.”).

694 306 M

ICH

671 [Sept

MCL 691.1402(1). It is, however, abundantly clear that

vehicles must travel into and out of parallel parking

lanes in order for those lanes to serve their purpose and

it also obvious from the photos submitted by the parties

that the designers of M-22, at minimum, must have

designed the parallel parking lanes at issue to support

limited, albeit regular, vehicular travel beyond that

which accompanies the use of the lanes for parking.

Moreover, as we explained in our prior opinion, a

governmental entity can design a highway to include

surface improvements that are outside the center lanes

designed to serve as the primary thoroughfare, but that

are nevertheless unequivocally designed to support

intermittent, but regular, vehicular travel; these in-

clude “left-turn lanes, merge lanes, on- and off- ramps,

right-turn lanes, lanes designed to permit vehicles to

access the opposite side of a divided highway, such as

median U-turn lanes and emergency turn-arounds, or

even the excess width provided on rural highways to

permit drivers to proceed around vehicles that are

waiting to turn left.” Yono, 299 Mich App at 110.

Consequently, Niemi’s affidavit failed to establish that

the area of M-22 at issue fell, contrary to Yono’s

allegations, outside the improved portion of the high-

way designed for vehicular travel.

We also reject the Department’s repeated contention

that the paint markings used on a highway permit an

inference concerning a highway’s actual design. Paint

markings might permit one to infer how the govern-

mental entity with jurisdiction over the highway in-

tended the highway to be used at the point in time when

the paint was applied, but it does not permit one to infer

anything about its actual design. A governmental entity

might have designed a particular highway to support

vehicular travel for its full width, but might have later

decided to limit the traffic to a narrow portion in the

2014] Y

ONO V

MDOT (O

EMAND

) 695

center of the highway for safety reasons or even to

facilitate parking for businesses. In such a case, the

governmental entity’s decision to paint markings on the

highway does not alter the fact that the highway was

actually designed for vehicular travel over its full width.

Indeed, in the case of median U-turn lanes, as any

ordinary driver can attest, the width of the U-turn lane

is frequently limited to a single lane by painted hash

marks, but such lanes evidently include the extra width

to allow very long vehicles (such as semitrailers) to use

the U-turn—that is, the extra width of the lane was

plainly designed for vehicular travel even though the

paint would suggest otherwise. One can imagine an

endless array of similar circumstances when the paint

markings on the highway do not correspond to the

actual design. Accordingly, the Department’s argu-

ments premised on the paint markings are inapposite;

in the absence of specific evidence connecting the design

with the proposed markings, one simply cannot infer

the nature of a highway’s design from the markings

painted on the highway.

Because the Department did not present any admis-

sible evidence to rebut Yono’s allegations that the area

of the highway at issue was part of the improved portion

of the highway designed for vehicular travel, the De-

partment failed to establish that it was entitled to

summary disposition under MCR 2.116(C)(7). Indeed,

as we noted in our prior opinion, the only admissible

evidence submitted by the parties actually supported an

inference that the lanes at issue were, in fact, designed

for vehicular travel. See Yono, 299 Mich App at 114.

Because the Department failed to contradict Yono’s

allegations by presenting evidence sufficient to estab-

lish that the area of M-22 at issue here fell outside the

improved portion of the highway designed for vehicular

696 306 M

ICH

671 [Sept

travel, the trial court did not err when it denied the

Department’s motion for summary disposition under

MCR 2.116(C)(7).

III. CONCLUSION

Yono properly pleaded in avoidance of governmental

immunity. Therefore, the Department was not entitled

to have her complaint dismissed under MCR

2.116(C)(7) for failing to plead in avoidance of govern-

mental immunity. Likewise, because the Department

failed to present any admissible evidence that the area

of M-22 at issue fell outside the improved portion of the

highway designed for vehicular travel, the trial court

did not err when it denied the Department’s motion.

Affirmed. There being an important question of

public policy, we again order that neither party may tax

costs. MCR 7.219(A).

ECKERING

,P.J., and B

ORRELLO

, J., concurred with M. J.

ELLY

,J.

Nothing in this opinion should be understood to preclude the Depart-

ment from making a properly supported motion for summary disposition

at some later point.

2014] Y

ONO V

MDOT (O

EMAND

) 697

In re TK

Docket No. 316944. Submitted June 3, 2014, at Detroit. Decided Septem-

ber 23, 2014, at 9:15 a.m.

The Department of Human Services filed a petition in the

Oakland Circuit Court, Family Division, requesting that the

court exercise jurisdiction over five minor children of Kenneth

Sturm. The petition listed only Sturm as a respondent and

alleged that he had admitted that he had sexually assaulted one

of the children, his daughter TK. The petition sought termina-

tion of Sturm’s parental rights. The court authorized the

petition. Because of Sturm’s incarceration and the lack of

evidence of neglect on the part of the children’s mother, the

children were allowed to remain in the mother’s home. Al-

though the mother thereafter received services from the depart-

ment, a petition was filed by the department seeking the

removal of the children from the care of their mother (hereafter

“respondent”) because one of the children had been acting out

sexually toward a sibling. The court entered an order dated

May 4, 2011, that authorized the petition and the children were

removed and placed under the care and supervision of the

department. Respondent entered a no contest plea to allega-

tions that she failed to properly protect and supervise the

children, thereby providing the court with jurisdiction over the

children. Although the four minor boys were placed in residen-

tial childcare facilities, TK was placed in a licensed foster home.

A permanency planning hearing was conducted in July 2012. At

that time, TK was 14 years old and had been in the depart-

ment’s care for 14 months and in the same foster home for 12

months. At the hearing, two foster-care workers and TK’s

therapist opined that a guardianship would be in TK’s best

interests. A clinician who conducted a psychological evaluation

of respondent stated that respondent had difficulty identifying

and responding to her children’s needs and that it was unlikely

that respondent would make any meaningful progress in the

future. The clinician recommended a long-term permanent

placement that could allow respondent to maintain contact with

the children. At the conclusion of the hearing, the court, Linda

S. Hallmark, J., adopted the department’s recommendations.

698 306 M

ICH

698 [Sept

An order was subsequently entered appointing TK’s foster

mother as TK’s guardian. Respondent, whose parental rights

were not terminated, appealed challenging the imposition of a

guardianship.

The Court of Appeals held:

1. The appointment of a guardian under MCL 712A.19a(7)(c)

is not tantamount to a de facto termination of parental rights.

Therefore, the department was not required to prove statutory

grounds for termination of parental rights by clear and convincing

evidence.

2. Respondent was afforded procedural due process in the child

protective proceedings. The statutory provisions governing guard-

ianships for juveniles do not violate procedural due process prin-

ciples. There was nothing arbitrary about the trial court’s impo-

sition of a guardianship under the facts of this case. There is no

merit to respondent’s challenge on substantive due process

grounds.

3. The trial court did not abuse its discretion when it imposed

a guardianship rather than choosing to continue long-term foster

care or returning TK to respondent’s home.

4. The trial court did not clearly err when it concluded that

reasonable efforts had been made by the department toward

reunification and that contact between TK and respondent was

not reasonable under the circumstances.

Affirmed.

ARENT AND

HILD —

UARDIANSHIPS

The appointment of a guardian for a child under MCL

712A.19a(7)(c) is not tantamount to a de facto termination of

parental rights.

Jessica R. Cooper, Prosecuting Attorney, Thomas R.

Grden, Chief, Appellate Division, and Julie A. Mc-

Murtry, Assistant Prosecuting Attorney, for the Depart-

ment of Human Services.

Nancy A. Plasterer, guardian ad litem for TK.

William Lansat for respondent.

Before: W

ILDER

,P.J., and S

AAD

and K. F. K

ELLY

,JJ.

2014] In re TK

699

ILDER

,P.J. In this child protective proceeding, re-

spondent appeals as of right the trial court’s decision to

place respondent’s teenage daughter, TK, with a foster

mother appointed as her guardian pursuant to MCL

712A.19a(7)(c) after the child had been made a tempo-

rary ward of the court. Respondent’s parental rights

were not terminated. We affirm.

Respondent is the mother of seven children. The five

youngest children (four boys and one girl, TK—the

child at issue in this appeal) have the same biological

father, Kenneth Sturm. In 1998, respondent’s children

were removed from her care following allegations that

Sturm had physically abused respondent’s two oldest

sons from a prior relationship. Respondent was pro-

vided with services and the court’s jurisdiction was

terminated in 2000. In January 2011, Sturm admitted

to the police that he had been sexually abusing TK for

several years. As a result of the abuse, TK suffered from

posttraumatic stress disorder. A petition was filed on

February 4, 2011, requesting that the court exercise

jurisdiction over the children

and terminate Sturm’s

parental rights at the initial dispositional hearing. Only

Sturm was listed as a respondent in this petition. After

a preliminary hearing, the petition was authorized and,

because of Sturm’s incarceration

and no evidence of

neglect on respondent’s part, the five children were

allowed to remain in respondent’s home.

By this time, respondent’s two oldest children were adults and,

therefore, not subject to any of the relevant petitions.

Sturm was convicted of four counts of first-degree criminal sexual

conduct, MCL 750.520b(1)(a). On August 10, 2011, he was sentenced to

25 to 60 years’ imprisonment for each conviction. His parental rights

were eventually terminated by an order entered on November 16, 2011.

700 306 M

ICH

698 [Sept

After the filing of the initial petition, respondent and

the children were offered wide-ranging services.

De-

spite the provision of these services, a separate petition

was filed on May 2, 2011, seeking removal of the

children from respondent’s care because one of respon-

dent’s male children had been acting out sexually

toward a sibling. By an order dated May 4, 2011, the

petition was authorized and the children were removed

and placed under the care and supervision of the

Department of Human Services. Respondent entered a

no contest plea to allegations that she failed to properly

protect and supervise her children, thereby providing

the court with jurisdiction over the children. A parent-

agency treatment plan was initiated and dispositional

review hearings were regularly conducted.

Each of respondent’s five children in petitioner’s care

had varying needs that necessitated different place-

ments. Generally, however, the four boys were placed in

residential childcare facilities and respondent thereaf-

ter had difficulty during parenting time with them.

During certain periods, some of the boys were briefly

returned to respondent’s care. By contrast, TK was

placed in a licensed foster home in July 2011, where she

remained throughout these proceedings. By all ac-

counts, TK flourished in the foster home, did well in

school, and participated in extracurricular activities.

By the time of the July 30, 2012 permanency plan-

ning hearing, TK was 14 years old and had been in

petitioner’s care for 14 months and in the same foster

home continuously for 12 months. Two foster-care

workers and TK’s therapist opined that a guardianship

would be in the child’s best interests. The therapist

Services the family received during the lower court proceedings

included individual counseling, a psychological assessment, family

therapy, a parent coordinator, and employment and financial assistance.

2014] In re TK 701

explained that TK required “certainty.” TK was fear-

ful and anxious about contact with respondent as a

result of respondent’s failure to protect TK from her

father and inappropriate comments respondent made

during supervised visitation. TK requested that there

be no visitation or, alternatively, extremely close

supervision by the foster-care workers. According to a

foster-care worker, if a guardian was appointed, the

guardian would dictate whether visitation occurred.

The therapist opined that TK’s participation in fam-

ily therapy with her mother would not be appropriate

at that time.

A foster-care worker explained that the progress

made in this case was not what one would have expected

in the time it had been opened; despite the services

received by the family, it appeared as if they were at

“day one” in the case. A clinician who conducted

respondent’s psychological evaluation opined that re-

spondent had difficulty identifying her children’s needs

and responding to them and that it was unlikely that

respondent would make any meaningful progress in the

future. The clinician recommended a long-term perma-

nent placement that could allow respondent to main-

tain contact with her children.

At the conclusion of the July 30, 2012 permanency

planning hearing, the trial court, adopting petitioner’s

recommendations, changed TK’s permanency plan

from one seeking reunification to one that sought

appointment of the child’s foster mother as guardian.

Respondent was opposed to the guardianship and re-

quested additional time to work toward reunification

with her daughter. Respondent ultimately spent several

additional months participating in her treatment plan

because a guardianship was not formally established by

order until April 29, 2013. On June 27, 2013, respon-

702 306 M

ICH

698 [Sept

dent filed her claim of appeal, challenging the lower

court’s imposition of a guardianship.

For her first claim of error, respondent argues that

the guardianship imposed under MCL 712A.19a vio-

lates her due process rights because the guardianship

constitutes a de facto termination of her parental rights

without establishing, by clear and convincing evidence,

a statutory ground for termination. We disagree. In

general, issues that are raised, addressed, and decided

by the trial court are preserved for appeal. Hines v

Volkswagen of America, Inc, 265 Mich App 432, 443-

444; 695 NW2d 84 (2005). While respondent objected to

the appointment of a guardian, she did not object on

constitutional grounds. Therefore, this issue has not

been preserved. Generally, whether child protective

proceedings complied with a respondent’s substantive

and procedural due process rights is a question of law

that this Court reviews de novo. In re Rood, 483 Mich

73, 91; 763 NW2d 587 (2009) (opinion by C

ORRIGAN

, J.).

However, because the issue presented is an unpreserved

claim of constitutional error, this Court will review for

plain error affecting substantial rights. People v Car-

ines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); In

re Utrera, 281 Mich App 1, 8; 761 NW2d 253 (2008).

At the outset we note that, for purposes of this issue,

respondent does not claim that the trial court failed to

comply with the applicable statutes and court rules

governing guardianships for juveniles. Instead, respon-

dent claims that the statutory provisions regarding

guardianships for juveniles are constitutionally infirm.

Thus, the analysis of this issue begins with the provi-

sions of MCL 712A.19a.

2014] In re TK

703

MCL 712A.19a(1) mandates that if a child remains in

foster care and parental rights to the child have not

been terminated, the court shall conduct a permanency

planning hearing within 12 months after the child was

removed from his or her home. If the parental rights to

the child have not been terminated and the court

determines at a permanency planning hearing that the

return of the child to the child’s parent would not cause

a substantial risk of harm, the court shall order the

child returned to his or her parent. MCL 712A.19a(5).

However, if the court determines at a permanency

planning hearing that a child should not be returned to

his or her parent, the court may order the agency to

initiate proceedings to terminate parental rights. MCL

712A.19a(6). Further, and most relevant to this case,

MCL 712A.19a(7) provides yet additional alternatives:

(7) If the agency demonstrates under subsection (6) that

initiating the termination of parental rights to the child is

clearly not in the child’s best interests, or the court does

not order the agency to initiate termination of parental

rights to the child under subsection (6), then the court shall

order 1 or more of the following alternative placement

plans:

(a) If the court determines that other permanent place-

ment is not possible, the child’s placement in foster care

shall continue for a limited period to be stated by the court.

(b) If the court determines that it is in the child’s best

interests based upon compelling reasons, the child’s place-

ment in foster care may continue on a long-term basis.

it is in the child’s best interests, appoint a guardian for the

child, which guardianship may continue until the child is

emancipated. [Emphasis added.]

Contrary to respondent’s assertions, the appoint-

ment of a guardian is not tantamount to a de facto

termination of parental rights. As petitioner argues, the

704 306 M

ICH

698 [Sept

guardianship for a juvenile contemplated by MCL

712A.19a(7)(c) does not permanently separate a parent

and child. It allows the child to keep a relationship with

the parent when placement with the parent is not pos-

sible. Indeed, the appointment of a guardian is done in an

effort to avoid termination of parental rights. See In re

Mason, 486 Mich 142, 168-169; 782 NW2d 747 (2010).

Unlike termination of parental rights, the appointment of

a guardian for a juvenile is not necessarily permanent.

The court is required to review the guardianship annually

and may conduct additional reviews, if necessary. MCL

712A.19a(11). Under MCL 712A.19a(13), the court may,

on its own motion or upon petition from the Department

of Human Services or the child’s lawyer guardian ad

litem, hold a hearing to determine whether a guardian-

ship shall be revoked. Under MCL 712A.19a(14), a guard-

ian may petition the court for permission to terminate the

guardianship. Even the parent has the ability to seek

termination of the guardianship. MCR 3.979(F)(1)(b) pro-

vides that “[a] juvenile guardian or other interested person

may petition the court for permission to terminate the

guardianship.” (Emphasis added.) Further, while the

guardian assumes the legal duties of a parent pursuant to

MCL 712A.19a(8) and MCL 700.5215, the parent is still

under many circumstances permitted to maintain a rela-

tionship with the child.

We agree that, if the appointment of a guardian for a

juvenile were the equivalent of a termination of paren-

tal rights, petitioner, to comply with due process, would

have been required to prove parental unfitness, i.e.,

statutory grounds for termination by clear and convinc-

ing evidence. InreB&J, 279 Mich App 12, 23; 756

NW2d 234 (2008). However, the appointment of a

guardian for a juvenile is not tantamount to a de facto

termination of parental rights. Petitioner was not re-

2014] In re TK

705

quired to prove statutory grounds for termination of

parental rights by clear and convincing evidence.

Respondent has also failed to establish a violation of

her right to due process before the appointment of the

guardian for TK. It is axiomatic that a parent has a

fundamental liberty interest in the care, custody, and

management of his or her child, which is constitution-

ally protected. In re Rood, 483 Mich at 91 (opinion by

ORRIGAN

, J.). “Both the Michigan Constitution and the

United States Constitution preclude the government

from depriving a person of life, liberty, or property

without due process of law.” Reed v Reed, 265 Mich App

131, 159; 693 NW2d 825 (2005).

There are two types of due process: procedural and

substantive. Procedural due process requires notice and

a meaningful opportunity to be heard before an impar-

tial decision-maker. In re Rood, 483 Mich at 92 (opinion

by C

ORRIGAN

, J.). The essence of a substantive due

process claim is the arbitrary deprivation of liberty or

property interests. AFT Mich v Michigan, 297 Mich

App 597, 622; 825 NW2d 595 (2012). Ultimately, due

process requires fundamental fairness. In re Rood, 483

Mich at 92 (opinion by C

ORRIGAN

, J.).

Generally, three factors should be considered to de-

termine what is required by procedural due process:

“First, the private interest that will be affected by the

official action; second, the risk of an erroneous deprivation

of such interest through the procedures used, and the

probable value, if any, of additional or substitute proce-

dural safeguards; and finally, the Government’s interest,

including the function involved and the fiscal and admin-

istrative burdens that the additional or substitute proce-

dural requirement would entail.” [In re Brock, 442 Mich

706 306 M

ICH

698 [Sept

101, 111; 499 NW2d 752 (1993), quoting Mathews v Eld-

ridge, 424 US 319, 332, 335; 96 S Ct 893; 47 L Ed 2d 18

(1976).]

Applying the foregoing factors, we conclude that re-

spondent was afforded procedural due process in this

child protective proceeding.

First, the private interest involved is a parent’s

fundamental liberty interest in the care, custody, and

management of her child. Second, a review of the

applicable statutes and corresponding court rules indi-

cates that the procedures employed in the appointment

of a guardian for a juvenile ensure that there will not be

an erroneous deprivation of these interests. The statute

authorizing the guardianship contemplates the ap-

pointment of a guardian only after the permanency

planning hearing. MCL 712A.19a; MCR 3.976. Under

MCL 712A.19a(4) and MCR 3.976(C), a parent must be

given written notice of the hearing no less than 14 days

before it is held. The notice must advise the parent that

“the hearing may result in further proceedings to

terminate parental rights.” Id. Of particular note, MCL

712A.19a(12) requires that the court consider “any

written or oral information concerning the child from

the child’s parent, guardian, custodian, foster parent,

child caring institution, relative with whom the child is

placed, or guardian ad litem in addition to any other

evidence, including the appropriateness of parenting

time, offered at the hearing.” Further, the appointment

of a guardian is only appropriate after the court has

made a finding that the child cannot be safely returned

to the home, yet initiating termination of parental

rights is clearly not in the child’s best interests. MCL

712A.19a(7). Then, the court must find that it is in the

child’s best interests to appoint a guardian. MCL

712A.19a(7)(c) and MCR 3.979(A).

2014] In re TK

707

Turning to the third factor, we must consider the

government’s interest. In this case, there would clearly

be a burden on the system to maintain the court

wardship or to implement additional procedures. How-

ever, the primary governmental interest is the welfare

of the minor child. In this case, reunification was not a

viable option and TK had been flourishing in the

appointed guardian’s foster home for 21 months. As

petitioner argues, the guardianship also fostered the

continued relationship between TK and her siblings.

This factor weighs in favor of a finding that the guard-

ianship provisions pertaining to juveniles withstand

constitutional scrutiny.

A parent is given notice and an opportunity to be

heard before the appointment of a guardian. The statu-

tory scheme employs multiple safeguards to ensure that

there is not an erroneous deprivation of a parent’s

liberty interest in caring for his or her child. Thus, we

find no merit to respondent’s argument that the statu-

tory provisions governing guardianships for juveniles

violate procedural due process principles.

There is also no merit to a challenge on substantive

due process grounds. As indicated, the arbitrary depri-

vation of a liberty or property interest is the essence of

a substantive due process claim. The person claiming a

deprivation of substantive due process must show that

the action was so arbitrary as to shock the conscience.

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

200; 761 NW2d 293 (2008). A thorough review of the

record demonstrates nothing arbitrary about the trial

court’s imposition of a guardianship under the facts in

this case. TK’s father sexually abused her and she

suffered from posttraumatic stress disorder, requiring

708 306 M

ICH

698 [Sept

therapy. In therapy, TK addressed anger issues related

to respondent’s failure to protect her from her father’s

abuse. While respondent had difficulty responding to

TK’s needs and had poor prospects for progress, TK’s

foster home allowed her to flourish and provided “cer-

tainty” and stability. Based upon these facts, there was

nothing arbitrary about the trial court’s decision to

appoint a guardian.

While respondent had a due process liberty interest

in caring for her daughter, she has failed to demonstrate

plain error in her claim that the appointment of a

guardian amounted to a de facto termination of paren-

tal rights without due process of law.

III

Next, respondent argues that rather than impose a

guardianship, the trial court should have considered as

the permanency plan continuing TK in long-term foster

care or, alternatively, returning her to respondent’s

home. We disagree. A trial court’s factual findings are

reviewed for clear error and its decision to appoint a

guardian is reviewed for an abuse of discretion. See In

re COH, 495 Mich 184; 848 NW2d 107 (2014).

At the time of the July 2012 permanency planning

hearing, TK was 14 years old and thriving in the foster

home. Three experts opined that a guardianship would

be in the child’s best interests. At that time, TK had

requested not to have contact with respondent and a

guardian could decide if visitation would be appropriate

in the future.

In the nine months between the July 2012 decision to

change the permanency plan to one that sought a

guardianship and the April 2013 order for a guardian-

ship, little changed. TK continued to do very well in the

foster home, but she still reported that she did not

2014] In re TK

709

want to see respondent, even in a therapeutic setting,

because she was not “ready.”

The trial court also had the benefit of the opinion of

the clinician who performed a psychological evaluation

on respondent on July 18, 2012. The clinician noted

that respondent lacked the ability to identify her chil-

dren’s needs and lacked the stability that her children

required. More importantly, the clinician noted that

given the myriad services provided in the past, it was

unlikely that respondent would make significant gains

in the future. On the basis of this assessment, the

clinician concluded that in light of the existing bond, a

long-term permanent placement that could allow re-

spondent to maintain contact with her children would

be beneficial.

In light of TK’s wishes and the clinician’s assessment

that respondent was unlikely to make significant gains,

it was not clear error to conclude that returning TK to

respondent’s care or adopting long-term foster care

were not dispositions in TK’s best interests. Moreover,

the appointment of a guardian would allow TK the

“certainty” that the therapist indicated was necessary

for the child’s well-being, but still leave open the

possibility for respondent to have contact with her

daughter. This Court gives deference to a trial court’s

special opportunity to judge the weight of the evidence

and the credibility of the witnesses who appear before

it. In re Miller, 433 Mich 331, 337; 445 NW2d 161

(1989). The trial court did not abuse its discretion by

appointing a guardian for TK.

Respondent also argues that the trial court clearly

erred when it concluded that reasonable efforts had

been made toward reunification. We disagree. In gen-

710 306 M

ICH

698 [Sept

eral, petitioner must make reasonable efforts to rectify

conditions and reunify families. In re LE, 278 Mich App

1, 18; 747 NW2d 883 (2008).

The record establishes that respondent was provided

with a multitude of intensive services. Although respon-

dent had cooperated, she had made little progress. She

lacked insight into the needs of her children and had

not internalized what she had been taught. Not only

must respondent cooperate and participate in the ser-

vices, she must benefit from them. In re Frey, 297 Mich

App 242, 248; 824 NW2d 569 (2012).

Contrary to respondent’s claim, the fact that she was

denied contact with TK in an unsupervised setting did

not prove a failure to make reasonable efforts. Respon-

dent was originally granted supervised parenting time

with TK, but respondent’s actions during visitation

made the child uncomfortable and the trial court was

told that respondent impeded the therapeutic process.

The foster-care worker and TK’s therapist agreed that

visitation was not recommended. Although respondent

may have desired to have unsupervised contact with

TK, the evidence establishes that it would not have

been beneficial to TK’s recovery.

Respondent also claims that TK should have been

treated the same as her siblings, who were periodically

returned to respondent’s home and allowed visitation.

But the record demonstrates that respondent never

progressed to the point where she could safely parent

more than one child at a time. In any event, TK and her

brothers were not similarly situated. The trial court

was obligated to consider each child individually and

assess the best interests of the children separately. In re

Olive/Metts Minors, 297 Mich App 35, 42; 823 NW2d

144 (2012).

2014] In re TK

711

We conclude that the trial court did not clearly err

when it found that reasonable efforts had been made

toward reunification. Contact with respondent was not

reasonable under the circumstances.

Finally, respondent attempts to raise an issue appar-

ently related to the statutory authority granted to

guardians of juveniles. Respondent has devoted ap-

proximately one page to this argument. In her discus-

sion, she simply cites several of the statutory provisions

that govern the rights and duties of a juvenile’s guard-

ian and abruptly concludes that nothing in the law

specifically addresses a pretermination juvenile guard-

ianship. Respondent has failed to coherently present

and discuss any perceived error. “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

[her] claims, or unravel and elaborate for [her her]

argument, and then search for authority either to

sustain or reject [her] position.” Mitchell v Mitchell, 296

Mich App 513, 524; 823 NW2d 153 (2012) (quotation

marks and citation omitted). We, therefore, decline to

address this issue.

Affirmed.

AAD

and K. F. K

ELLY

, JJ., concurred with W

ILDER

,P.J.

712 306 M

ICH

698 [Sept

In re LAFRANCE MINORS

Docket Nos. 319219 and 319222. Submitted June 3, 2014, at Grand

Rapids. Decided September 23, 2014, at 9:20 a.m.

The Department of Human Services petitioned the Mecosta Circuit

Court, Family Division, to terminate the parental rights of the

mother and father of four minor children after the youngest child,

an infant, was hospitalized for dehydration that resulted in severe

but temporary kidney damage. Evidence indicated that the infant

had gone without liquid for approximately 16 hours while in her

father’s care. The mother, who had tested positive for illegal drugs

while pregnant, had agreed with Child Protective Services shortly

after the child was born to see the infant only with supervision.

The petition did not allege any abuse or neglect in connection with

the older three children. The court, Marco S. Menezes, J., termi-

nated the parental rights of both parents with respect to all four

children, ruling that grounds for doing so had been established

under MCL 712A.19b(3)(b)(ii) (child or sibling suffered physical

injury or abuse that the parent could have prevented), (c)(i)

(conditions that led to adjudication continue to exist), (g) (failure

to provide proper care or custody), and (j) (reasonable likelihood

child will be harmed if returned to the parent). In Docket No.

319219, the mother appealed this decision; the father appealed

separately in Docket No. 319222; and the Court of Appeals

consolidated the cases.

The Court of Appeals held:

1. The court erred as a matter of law by concluding that the

medical neglect involved in this case constituted failure to prevent

physical harm for purposes of MCL 712A.19b(3)(b)(ii). Reading

MCL 712A.19b(3)(b)(ii) in the context of MCL 712A.19b(3)(b)(i)

and (iii) under the doctrine of noscitur a sociis indicated that, for

a physical injury to fall within MCL 712A.19b(3), it must have

been caused by the act of a parent or nonparent adult and not

merely contributed to by an unintentional omission.

2. The trial court did not err by concluding that termination of

respondents’ parental rights was warranted with respect to the

youngest child under MCL 712A.19b(3)(c)(i), (3)(g), and (3)(j);

2014] In re L

RANCE

INORS

713

however, it erred by extending its reasoning to the three older

children on a theory of anticipatory neglect.

3. It was not necessary to review the court’s best-interest

determinations with regard to the three older children because

none of the statutory bases for termination were proved with

regard to them. However, because the decision was expected to

result in the return of the three oldest children to respondents,

which would significantly change the family dynamics from those

the trial court envisioned when making its original decision, the

case was remanded to the trial court to determine anew whether

termination of respondents’ parental rights to the youngest child

was in the child’s best interests.

Affirmed in part, reversed in part, and remanded for further

proceedings.

ERMINATION OF

ARENTAL

IGHTS —

ROUNDS FOR

ERMINATION —

HYSICAL

NJURY OR

BUSE —

NINTENTIONAL

CTS OR

MISSIONS

MCL 712A.19b(3)(b)(ii) authorizes termination of a person’s paren-

tal rights if a child or a sibling of the child suffered physical injury

or physical abuse or sexual abuse if the parent who had the

opportunity to prevent the physical injury or physical or sexual

abuse failed to do so and there was a reasonable likelihood that the

child would suffer injury or abuse in the foreseeable future if

placed in the parent’s home; for a physical injury to fall within

MCL 712A.19b(3)(b)(ii), it must have been caused by the act of a

parent or nonparent adult and not merely contributed to by an

unintentional omission.

Margaret C. Van Black for appellant in Docket No.

319219.

Susan Haut for appellant in Docket No. 319222.

Samuels Law Office (by Erin Barnhart) for the

minors in Docket Nos. 319219 and 319222.

Before: M

URPHY

, C.J., and S

HAPIRO

and R

IORDAN

,JJ.

HAPIRO

, J. In these consolidated cases, respondents,

parents of four minor children, appeal as of right the

order of the family division of the circuit court termi-

nating their parental rights. We reverse as regards the

714 306 M

ICH

713 [Sept

three older children and remand this case to the trial

court for redetermination of the youngest child’s best

interests in light of our decision.

I. FACTS

The children involved in this case are the issue of a

10-year relationship between respondents, who never

married. The petition asking the court to take jurisdic-

tion arose from allegations that respondent-father neg-

ligently failed to recognize that the youngest child, then

only several weeks old and ill with a virus, was becom-

ing dangerously dehydrated, and as a result suffered

severe, albeit temporary, kidney damage, and had to be

admitted to the hospital for intensive treatment. The

petition did not allege any abuse or neglect in connec-

tion with the older three children, then aged three, five,

and ten years, nor has any abuse or neglect of the three

older children ever been alleged anywhere in the course

of these proceedings.

While pregnant with the youngest child, respondent-

mother tested positive for methadone and THC, and

admitted using opiates for years. At birth, in late July

2011, the child tested positive for THC. In light of

respondent-mother’s drug use, along with some obser-

vations of questionable behavior while in the hospital,

social workers at the hospital were concerned for her

ability to care for the newborn and so contacted Child

Protective Services (CPS). Three days after the child’s

birth, CPS initiated a child protection case. That case

did not result in any court action, and so that file is not

available to us. However, the parties indicate that

respondent-mother agreed to move out of the family

We are deciding this case without the benefit of any briefing from

petitioner, although the children’s lawyer-guardian ad litem (L-GAL)

submitted briefs in support of petitioner’s position.

2014] In re L

RANCE

INORS

715

home for some time and to see the infant only with

supervision. The record before us does not suggest that

the agreement between respondent-mother and CPS

limited her access to the three older children.

As noted earlier, several weeks later while in the care

of respondent-father, the infant became severely dehy-

drated and required emergency hospitalization. Accord-

ing to the medical records contained in the court file

and subsequently provided testimony, the child had

been ill for some time with a virus

and was listless

when she awoke on the morning in question. Respon-

dent father failed to recognize the severity and speed of

the infant’s deterioration and regarded her as having

gone back to sleep when she may in fact have been

losing consciousness. He stated that he attempted to

give her a bottle, but that she drank nothing from it. He

left for work in the early afternoon, upon which his

mother took over as babysitter. After an hour or two,

the grandmother became concerned that she was un-

able to rouse the child, and so called 911. Emergency

responders stabilized the child and took her to the

hospital, where she was diagnosed as suffering from

severe dehydration with resulting acute kidney failure,

and placed in intensive care. It was estimated that she

had gone without liquid intake for approximately 16

hours. Fortunately the child was successfully rehy-

drated and over several days recovered completely.

Upon admission of the child to the hospital, the case

was flagged by the medical staff as possibly involving

medical neglect or even physical abuse. The latter was

initially a concern because imaging studies revealed

that the child had chronic subdural hematomas. Fur-

The medical records show that respondent-father brought the child to

the emergency room with viral symptoms three weeks earlier.

716 306 M

ICH

713 [Sept

ther medical examination ruled out that the hemato-

mas were caused by external trauma, but that fact was

not immediately known.

Given the suspicious circumstances, and the infant’s

critical medical condition, the Department of Human

Services immediately sought and obtained emergency

removal of all four children from respondents’ care the

following day, November 17, 2011. The petition con-

tained allegations concerning respondent-mother’s pre-

natal drug use as well as the events concerning the

infant’s emergency hospitalization. Though the other

three children were not mentioned in any factual alle-

gations, petitioner requested their emergency removal

as well, stating, “the Department feels that the children

are at imminent risk of further harm if they are to

return to the home of their mother or their father.”

On November 30, 2011, petitioner filed an amended

petition adding allegations concerning the infant’s kid-

ney damage and the discovery of subdural hematomas,

which, as noted, raised concerns about physical abuse

until further investigation ruled that out. At the pre-

liminary hearing, which was held the next day, the court

noted that the other three children “have been raised

by the two parents and they seem to be fine right now.”

The CPS worker agreed that there was no history of

medical neglect by the father before the November 2011

incident, and that there was “no allegation regarding

the three older children that any of those children were

neglected in any way[.]” She also agreed that “all [three

older] children appear to be happy and healthy and

In a December 15, 2011 letter to CPS, the hospital’s child-abuse

pediatrician opined that the records of the infant’s neonatal care follow-

ing premature birth indicated a very small head circumference, and that

a “diagnosis of diffuse atrophy is more likely as opposed to trauma.”

Subsequently, the child was diagnosed with mild cerebral palsy, but that

condition was neither a cause nor an effect of the dehydration incident.

2014] In re L

RANCE

INORS

717

they’ve been described as polite and well-behaved,” that

they “are all very bonded to their parents,” and that

they “are adamant that they want to see their par-

ents[.]” The children’s lawyer-guardian ad litem stated

that she had met with “the three older children and...

all they ask about is when they can see mom, when can

they see dad. They’re clearly very bonded to both of

their parents.... [A]ll three of the older children are

very well-mannered, very appropriate for their ages;

very smart kids, very lovely children.” She recom-

mended that the parents be allowed to see the children

as often as possible.

The court issued an order finding probable cause to

believe that the “conditions of custody in the home and

with the individual with whom the children reside are

not adequate to safeguard the children from the risk of

harm to the children’s life, physical health and mental

well-being.”

A pretrial hearing was held on January 19, 2012, two

months after the children’s removal. The foster care

worker testified that the placement of the three older

children was appropriate, and that, although she had no

objection to increased supervised visitation, it might be

difficult to achieve because of the limited availability of

supervision. She recommended that the children re-

main in their placements.

The foster care worker further testified that she was

unaware of “any reason to believe whatsoever that any of

the three older children have ever been abused or ne-

glected by [respondent-father],” adding that respondent-

father had been completely compliant with services and

that his drug screens were all negative. She also testified

that the medical concerns regarding the infant were the

only reasons for removal, and agreed that the three older

children had “been well-parented up to this time.” Even

718 306 M

ICH

713 [Sept

so, the foster care worker opined that respondents would

benefit from parenting classes, and stated that she op-

posed any return of the children to their home until the

parents demonstrated additional compliance with the

initial service plan. She continued that she would “con-

sider” unsupervised visitation for the older children if the

drug screens stayed negative, but expressed the concern

that especially respondent-mother might be continuing

her problematic drug usage.

After this testimony, counsel for respondent-father

addressed the court:

I feel that the three older children should be returned to

Mr. LaFrance’s custody, if not now, then in the very near

future....

. . . There is not [an] allegation, no evidence, no claim

whatsoever that the... older children were abused or

neglected in any way.... [They] are bonded with their

father. They enjoy being with their father and it’s in their

interest as well as Mr. LaFrance’s interest for them to be

reunited with their father.

Respondent-mother’s counsel similarly stated that

this was a case of “a very special needs child and the

others have been well-cared for.” The L-GAL opposed

the request, noting that respondent-mother had moved

back in with the respondent-father, and that, unlike

respondent-father, she continued to test positive for

drugs and had not complied with services.

The trial court stated that, although it could not

order compliance with services until the court acquired

jurisdiction through an adjudication, the more the

parents complied with, and benefited from, services,

“the sooner they’ll be reunified with their children,”

and that absent such progress it was “unlikely that

they’ll be returned... until and unless there is a

finding that the Court does not have jurisdiction.” The

2014] In re L

RANCE

INORS

719

court left placement and parenting time to the discre-

tion of petitioner, but stated, “[t]hat’s not to say that

the parent/child relationship shouldn’t be maintained

and strengthened... to the extent that’s possible by

providing...liberal parenting time and I would recom-

mend that to the Department[.]”

The case was adjudicated on February 17, 2012, when

the prosecuting authority advised the court that

respondent-father would plead to the allegations that

he failed to get his infant daughter timely medical

attention on November 17, 2011. Respondent-father did

so, and the court took jurisdiction over all four children

on the sole statutory ground that there had been a

“failure to provide, when able to do so, support, educa-

tion, medical, surgical, or other necessary care for

health or morals.” There was no separate adjudication

in connection with respondent-mother,

but both were

ordered to participate in services, and were allowed only

supervised visitation at petitioner’s discretion.

Through the course of the case, respondents were

compliant with some, but not all, services, with

respondent-mother being less compliant than

respondent-father. The primary area of noncompliance

concerned the drug testing and the goal of ending

respondents’ respective drug dependencies.

A second-

Respondent-mother complains in general terms about the trial

court’s having imposed services on her when her parental fitness was

never adjudicated, even as she concedes that she had already consented to

adhere to petitioner’s requirements during her pregnancy. In any event,

because she did not argue in her brief on appeal that the lack of a

separate adjudication in connection with her was itself grounds for relief,

and has not sought to supplement her brief in order to urge retroactive

application of our Supreme Court’s recent overruling of the one-parent

doctrine in In re Sanders, 495 Mich 394; 852 NW2d 524 (2014), we do not

address those issues.

During much, but not all, of the relevant time period, respondents

tested positive variously for THC and opiates—particularly hydrocodone,

720 306 M

ICH

713 [Sept

ary area of concern arose from the youngest child’s mild

cerebral palsy,

which was diagnosed while she was in

foster care. Specifically, respondents failed to take ad-

vantage of services offered to help them learn to address

that child’s resulting special needs. Despite being en-

couraged to attend the child’s many medical appoint-

ments, respondents missed the great majority of them.

At the same time, the evidence consistently indicated

that when respondents had parenting time with the

children it went very well, that respondents behaved

appropriately and showed no signs of drug-induced im-

pairment, and that it was apparent that strong bonds

existed between respondents and the three older children,

who ardently wished to be reunited with their parents.

Petitioner sought termination of respondents’ paren-

tal rights on May 22, 2013, alleging four statutory

grounds. The court conducted a two-day evidentiary

hearing on the petition, then concluded that each of the

four statutory grounds had been demonstrated by clear

and convincing evidence and that termination was in

the children’s best interests. Accordingly, the court

entered an order terminating the parental rights of

both respondents.

II. LEGAL ANALYSIS

The trial court concluded that termination of re-

spondents’ parental rights was warranted under

a derivative of codeine. It appears that for at least some of the period, at

least respondent-father had a prescription for hydrocodone and was

testing for that substance within therapeutic levels. However, in time, he

continued to use the drug without a prescription. Respondent-mother

refused to participate in a detoxification program or an inpatient

substance-abuse program and regularly tested positive for opiates. While

respondent-father participated in both programs, he does not appear to

have successfully conquered his dependency.

As noted, this condition was not a result of the dehydration incident.

2014] In re L

RANCE

INORS

721

MCL 712A.19b(3)(b)(ii), (c)(i), (g), and (j). Those provi-

sions authorize termination under the following cir-

cumstances:

(b) The child or a sibling of the child has suffered

physical injury or physical or sexual abuse under 1 or more

of the following circumstances:

***

(ii) The parent who had the opportunity to prevent the

physical injury or physical or sexual abuse failed to do so

and the court finds that there is a reasonable likelihood

that the child will suffer injury or abuse in the foreseeable

future if placed in the parent’s home.

under this chapter, 182 or more days have elapsed since the

issuance of an initial dispositional order, and the court, by

clear and convincing evidence, finds...thefollowing:

(i) The conditions that led to the adjudication continue

to exist and there is no reasonable likelihood that the

conditions will be rectified within a reasonable time con-

sidering the child’s age.

***

(g) The parent, without regard to intent, fails to provide

proper care or custody for the child and there is no

reasonable expectation that the parent will be able to

provide proper care and custody within a reasonable time

considering the child’s age.

***

(j) There is a reasonable likelihood, based on the conduct

or capacity of the child’s parent, that the child will be

harmed if he or she is returned to the home of the parent.

“If the court finds that there are grounds for termina-

tion of parental rights and that termination of parental

722 306 M

ICH

713 [Sept

rights is in the child’s best interests, the court shall

order termination of parental rights and order that

additional efforts for reunification of the child with the

parent not be made.” MCL 712A.19b(5).

An appellate court “review[s] for clear error both the

court’s decision that a ground for termination has been

proven by clear and convincing evidence and... the

court’s decision regarding the child’s best interest.” In

re Trejo Minors, 462 Mich 341, 356-357; 612 NW2d 407

(2000). A finding is clearly erroneous if the reviewing

court is left with a definite and firm conviction that a

mistake has been made. In re Miller, 433 Mich 331, 337;

445 NW2d 161 (1989). A reviewing court must defer to

the special ability of the trial court to judge the cred-

ibility of witnesses. Id. Statutory interpretation, how-

ever, is a question of law calling for review de novo.

Thompson v Thompson, 261 Mich App 353, 358; 683

NW2d 250 (2004).

Parents have a fundamental liberty interest in the

“companionship, care, custody, and management of

their children.” In re Brock, 442 Mich 101, 109; 499

NW2d 752 (1993). See also Troxel v Granville, 530 US

57, 65; 120 S Ct 2054; 147 L Ed 2d 49 (2000) (stating

that “the interest of parents in the care, custody, and

control of their children” is “perhaps the oldest of the

fundamental liberty interests recognized by this

Court”) (O’Connor, J., joined by Rehnquist, C.J., and

Ginsburg and Breyer, JJ.); see also id. at 77 (Souter, J.,

concurring), 80 (Thomas, J., concurring in the result),

86-87 (Stevens, J., dissenting on other grounds), and 95

(Kennedy, J., dissenting on other grounds); 147 L Ed 2d

49 (2000). That dire interest “ ‘does not evaporate

simply because they have not been model parents or

have lost temporary custody of their child[ren] to the

state.’ ” In re Trejo, 462 Mich at 373-374, quoting

2014] In re L

RANCE

INORS

723

Santosky v Kramer, 455 US 745, 753; 102 S Ct 1388; 71

L Ed 2d 599 (1982). Accordingly, that custody with

natural parents serves a child’s best interests “ ‘re-

mains a presumption of the strongest order and it must

be seriously considered and heavily weighted in favor of

the parent.’ ” Heltzel v Heltzel, 248 Mich App 1, 25; 638

NW2d 123 (2001), quoting Deel v Deel, 113 Mich App

556, 561; 317 NW2d 685 (1982) (emphasis omitted).

A. TERMINATION UNDER MCL 712A.19b(3)(b)(ii)

The only injury alleged to have occurred in connec-

tion with this case is the dehydration of the youngest

child, and the kidney failure and other complications

that resulted.

MCL 712A.19b(3)(b) authorizes termination of pa-

rental rights where the child, or the sibling of the child

suffers physical injury or physical abuse or sexual abuse

under any of the following conditions:

(i) The parent’s act caused the physical injury or physi-

cal or sexual abuse and...there is a reasonable likelihood

that the child will suffer from injury or abuse in the

foreseeable future if placed in the parent’s home.

(ii) The parent who had the opportunity to prevent the

physical injury or physical or sexual abuse failed to do so

and...there is a reasonable likelihood that the child will

suffer injury or abuse in the foreseeable future if placed in

the parent’s home.

(iii) A nonparent adult’s act caused the physical injury

or physical or sexual abuse and...there is a reasonable

likelihood that the child will suffer from injury or abuse by

the nonparent adult in the foreseeable future if placed in

the parent’s home.

Petitioner has not alleged grounds under subpara-

graph (i) or alleged that respondent-father’s act

“caused the physical injury.” Rather, it relies on only

724 306 M

ICH

713 [Sept

subparagraph (ii) and argues that respondent-father

“had the opportunity” to prevent the harm caused by

the dehydration.

“Contextual understanding of statutes is generally

grounded in the doctrine of noscitur a sociis: ‘[i]t is

known from its associates’....This doctrine stands for

the principle that a word or phrase is given meaning by

its context or setting.” Koontz v Ameritech Servs, Inc,

466 Mich 304, 318; 645 NW2d 34 (2002) (quotation

marks and citations omitted).

Applying this principle, we conclude that subpara-

graph (b)(ii) must be interpreted in the context of its

sister subparagraphs, (b)(i) and (b)(iii). It is clear under

these provisions that for physical injury to fall within

MCL 712A.19b(3), it must be caused by a “parent’s act”

or a “nonparent adult’s act” and not merely contributed

to by an unintentional omission. Accordingly, subpara-

graph (ii) is intended to address the parent who, while

not the abuser, failed to protect the child from the other

parent or nonparent adult who is an abuser. We reject

the suggestion that subparagraph (ii) was intended to

be broader than subparagraphs (i) and (iii) in that it

could apply merely to a negligent failure to respond to

an accidental injury or naturally occurring medical

condition not caused by an “act” of a parent or other

adult.

Indeed, the caselaw applying this subparagraph has

invariably involved abusive contact with the child. See

In re Sours Minors, 459 Mich 624, 635-636; 593 NW2d

520 (1999) (several assaultive acts, including domestic

violence); In re Ellis, 294 Mich App 30, 31-33; 817

NW2d 111 (2011) (severe physical injuries resulting

from physical abuse); In re HRC, 286 Mich App 444,

449-461; 781 NW2d 105 (2009) (sexual abuse); In re

2014] In re L

RANCE

INORS

725

Archer, 277 Mich App 71, 73-75; 744 NW2d 1 (2007)

(excessive corporal punishment).

For these reasons, we conclude that MCL

712A.19b(3)(b)(ii) did not apply to this case. As we will

now discuss, however, medical neglect may constitute

statutory grounds for termination under the three

other provisions of MCL 712A.19b(3) on which the trial

court relied.

B. TERMINATION UNDER MCL 712A.19b(3)(c)(i), (3)(g), AND (3)(j)

The trial court concluded that termination of respon-

dents’ parental rights was warranted under MCL

712A.19b(3)(c)(i) (conditions of adjudication continue

to exist), (3)(g) (failure to provide proper care and

custody), and (3)(j) (children will likely be harmed if

returned). We agree with the trial court regarding the

youngest child, but hold that the court erred by extend-

ing its reasoning to the three older children.

1. THE YOUNGEST CHILD

In the course of pleading to the court’s exercise of

jurisdiction over the children, respondent-father agreed

that respondents’ youngest child was in his care and

custody when she went approximately 16 hours without

consuming food or fluid, that he should have known

that the child needed medical care but failed to obtain

it, and that as a result medical professionals found the

child to be severely dehydrated and profoundly ill.

A pediatric nephrologist testified that she was con-

sulted to evaluate the child’s acute kidney injury and

found her “still in the process of being re-hydrated,” but

“[t]he rest of it was pretty normal.” The expert advised

that children become dehydrated more easily than

adults and so the condition can arise “very quickly,” and

726 306 M

ICH

713 [Sept

elaborated that a three-month-old child “should be

feeding every two to three hours,” and that doing

without for 16 hours “would cause the child to be

severely dehydrated.” The nephrologist stated that, of

the various signs of infant dehydration, she would

expect a parent in respondent-father’s position to notice

decreased urination and saliva production.

The nephrologist described the child’s kidney failure

as an acute condition, meaning an “isolated event,” not

something that had been ongoing for her entire three

months. She further reported that the child was now off

her medications and “doing well,” with kidney size and

electrolytes normal.

The expert testified that although the infant was

born after only 33 weeks of gestation, at the time of the

dehydration incident she was “pretty much term as far

as...gestational age” and thus required no handling

different from what would be appropriate for a normal

newborn; she further agreed that nothing about the

child’s premature birth predisposed her to becoming

dehydrated more easily than other infants of her gesta-

tional age. According to the witness, “while she was

premature, she had a pretty uneventful course” with no

“infections or anything...that could have injured her

kidneys at that time,” and so “didn’t have any increased

susceptibility other than being a baby[.]”

Respondents’ family pediatrician testified on respon-

dents’ behalf, stating that he started caring for respon-

dents’ oldest child when that child was a toddler and

thereafter saw all the children regularly for both ill-

nesses and routine examinations and that he had never

detected any signs of neglect or abuse. He further stated

that “they were pretty normal kids and I didn’t have

specific concerns about their care,” and that they were

all well fed and generally healthy. Asked if consumption

2014] In re L

RANCE

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727

of the controlled substances associated with

respondent-mother during pregnancy could contribute

to a premature birth, the doctor answered that it

“might,” but elaborated, “on the other hand, there are

babies... whose mothers have used the substances

[who] were born on time,” and that “there are lots of

things that can trigger a premature birth.” Similarly,

the nephrologist stated that substance abuse, including

tobacco smoking, can cause premature birth, but de-

clined to testify that there was a causal link in this case.

a. RESPONDENT-FATHER

Respondent-father’s responsibility for neglecting to

notice something amiss with, or otherwise attend to, his

youngest child as she went several hours without taking

nourishment or fluid before rapidly slipping into a

life-threatening condition is a matter admitted by him,

and well emphasized by the trial court. Also of concern,

as the trial court noted, is that the child’s cerebral palsy

presents serious and enduring parenting challenges.

Although there was no evidence that respondent-father

was intoxicated at the time of the dehydration incident,

the trial court did not clearly err by regarding

respondent-father’s persistent substance-abuse prob-

lem as heightening concerns that such neglect could

recur. Nor did the court err by attaching significance to

respondent-father’s failure to participate in, or benefit

from, services relating to caring for a child with cerebral

palsy, or to attend most of that child’s medical appoint-

ments. The seriousness of the incident of medical

neglect, considered along with the child’s special needs,

respondent-father’s failure to demonstrate a willing-

ness to undertake the special efforts that those special

needs demanded, and his failure to get his substance-

abuse problem under control, supported the trial

728 306 M

ICH

713 [Sept

court’s conclusions for purposes of MCL

712A.19b(3)(c)(i) and (3)(g) that respondent-father

might well again fail to respond properly to a serious

medical condition that might arise with the child, and

for purposes of (3)(j) that the child faced a reasonable

likelihood of harm if returned to respondent-father’s

care.

b. RESPONDENT-MOTHER

Respondent-mother was not present for any part of

the dehydration incident and thus cannot be deemed

negligent in that regard. Her admitted drug use during

pregnancy raises serious concerns, however, even

though there was no medical testimony linking that

drug use to the child’s prematurity, her bout with

dehydration, or her mild cerebral palsy.

Significantly, the drug use does not stand alone.

Evidence was introduced of several behaviors of

respondent-mother immediately after giving birth that

raised concerns among the medical staff about her

ability to care for a newborn. More significantly, even

after the infant’s cerebral palsy diagnosis, respondent-

mother failed to attend virtually all of the dozens of

medical appointments for the baby, failed to attend

programs intended to educate her about that condition,

and refused to sign paperwork to facilitate the child’s

receiving physical therapy.

A lack of cooperation with reunification services, or

other court-ordered conditions, can bear on a termina-

tion decision, if that lack of cooperation relates to issues

of abuse or neglect. See In re Trejo Minors, 462 Mich at

346 n 3. Such a failure “should not be over-emphasized

and...isnotdeterminative of the outcome of a termi-

nation hearing.” In re Bedwell, 160 Mich App 168, 176;

408 NW2d 65 (1987). However, the failure to participate

2014] In re L

RANCE

INORS

729

in services directly linked to the ability to care for a

special needs, or medically fragile, child bears directly

on issues of neglect.

For these reasons, the trial court did not clear err by

concluding that termination was warranted under MCL

712A.19b(3)(c)(i), (3)(g), and (3)(j).

2. ANTICIPATORY NEGLECT

The trial court terminated respondents’ parental

rights to their three older children by emphasizing

respondents’ respective failures to gain control over

their substance-abuse habits and heavily relied on the

doctrine of anticipatory neglect, according to which

“[h]ow a parent treats one child is certainly probative of

how that parent may treat other children.” In the

Matter of LaFlure, 48 Mich App 377, 392; 210 NW2d

482 (1973); see also In re AH, 245 Mich App 77, 84; 627

NW2d 33 (2001). However, the trial court nowhere

suggested, and no evidence was offered to prove, that

either respondent had ever abused or neglected any of

their three older children.

Moreover, the ages and medical conditions of the three

older children stand in sharp contrast to that of the

youngest child. Unlike the latter, who requires special

medical care for which respondents seemed to under-

appreciate the need, no such special care was required for

the older children. Moreover, respondents had cared for

those children from birth without incident, including any

allegation, let alone proof, that they had abused or ne-

glected the three older children at any time. While antici-

patory neglect can militate in favor of termination, under

the unusual circumstances of this case, the doctrine has

little bearing. Again, no allegations of abuse or neglect

have ever arisen in connection with the three oldest

children, and the only allegations of negligence underlying

730 306 M

ICH

713 [Sept

this case concern respondent-mother’s continued sub-

stance abuse during her pregnancy with the youngest

child, and respondent-father’s failure to act promptly in

response to that infant’s rapid medical deterioration. The

three older children ranged in age from five to twelve

years at the time of termination, and, thus, did not share

their infant sister’s medical vulnerabilities or inability to

articulate personal needs or discomforts. Moreover, con-

cerns over the youngest child’s cerebral palsy hardly

militated in favor of terminating parental rights to the

older children, who suffered from no such special need.

See In re Newman, 189 Mich App 61, 71; 472 NW2d 38

(1991) (“We do not consider it appropriate to destroy a

family’s relationship with five children if the major prob-

lem appears to be the parents’ inability to cope with one of

them....”).

The trial court’s concern for both respondents’ dem-

onstrated failure to get their substance-abuse problems

under control was certainly justified. However, drug use

alone, in the absence of any connection to abuse or

neglect, cannot justify termination solely through op-

eration of the doctrine of anticipatory neglect.

Cases that come before this Court often dramatically

illustrate that substance abuse can cause, or exacer-

bate, serious parenting deficiencies, but the instant case

is a poor example. We do not mean to imply any

approval of the protracted, and sometimes illegal, use of

prescription medications so much in evidence in this

case, even as we refrain from repeating the trial court’s

apparent mistake of simply assuming that overuse, or

illegal acquisition, of such medications is itself ground

for concluding child neglect or abuse will ever result

from it.

Indeed, an early signal that consumption of prescription medication

would be overvalued in this case was when, at the initial dispositional

2014] In re L

RANCE

INORS

731

Termination of parental rights requires “both a fail-

ure and an inability to provide proper care and cus-

tody,” which in turn requires more than “speculative

opinions... regarding what might happen in the fu-

ture.” In re Hulbert, 186 Mich App 600, 605; 465 NW2d

36 (1990). In the case of the youngest child, we credit

the trial court’s concern that respondents’ continued

substance-abuse issues, considered along with their

failure to attend medical appointments or benefit from

services offered to provide guidance in dealing with

cerebral palsy, heightens the risk that respondents

might again fail to appreciate the special needs and

vulnerabilities of their infant daughter. But because no

such special needs or vulnerabilities exist in relation to

the three older children, we conclude that the trial

court erred by invoking anticipatory neglect to extend

those concerns to them as well.

For these reasons, we conclude that the trial court

clearly erred by finding that termination of respondents’

parental rights to the three older children was warranted

under MCL 712A.19b(3)(c)(i), (3)(g), or (3)(j).

C. BEST INTERESTS

Once a statutory basis for termination has been

hearing, the caseworker expressed her understanding that both respondents

had prescriptions for hydrocodone, and that tests revealed concentrations of

that drug well within therapeutic levels, but nonetheless insisted that

respondents terminate what the witness understood to be respondents’

respective physician-directed courses of treatment in deference to her own

general concerns about the hazards of that pharmaceutical.

Although petitioner raised other concerns regarding respondents’

parenting prospects, including housing and emotional stability, there is

no suggestion that any such problems on respondents’ parts have ever

resulted in any abuse or neglect of the children, and nothing in evidence

suggests that that would suddenly change after ten years of parenting.

Accordingly, those concerns do not themselves, separately or collectively,

justify termination of parental rights.

732 306 M

ICH

713 [Sept

shown by clear and convincing evidence, the court must

determine whether termination is in the child’s best

interests. MCL 712A.19b(5). Best interests are deter-

mined on the basis of the preponderance of the evi-

dence. In re Moss, 301 Mich App 76, 83; 836 NW2d 182

(2013).

Because we conclude that the trial court erred by

concluding that any of the statutory bases for termina-

tion were proved in connection with the three older

children, we need not review the court’s best-interest

determinations as applied to them. However, because

our decision should result in the return of the three

oldest children to respondents, and thus significantly

change the family dynamics from what the trial court

envisioned when originally deciding this case, we re-

mand this case to the trial court to determine anew

whether termination of respondents’ parental rights to

the youngest child is in the latter’s best interests. The

court should consider all facts and circumstances that

have occurred up to the date of its new decision.

III. CONCLUSION

The court erred as a matter of law by concluding the

medical neglect involved in this case constituted failure

to prevent physical harm for purposes of MCL

712A.19b(3)(b)(ii).

The trial court did not clearly err by concluding that

termination of respondents’ parental rights to their

youngest child was warranted under MCL

712A.19b(3)(c)(i), (3)(g), and (3)(j). However, the court

clearly erred by extending that result to the older three

children on the basis of anticipatory neglect.

We affirm the decision below as it concerns the trial

court’s findings of three statutory bases for termination

2014] In re L

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INORS

733

in connection with respondents’ youngest child, and

remand for redetermination of that child’s best inter-

ests. We reverse in all other respects.

Affirmed in part, reversed in part, and remanded. We

do not retain jurisdiction.

URPHY

, C.J., and R

IORDAN

, J., concurred with S

HAPIRO

734 306 M

ICH

713 [Sept

RATAJ v CITY OF ROMULUS

Docket No. 315669. Submitted September 10, 2014, at Detroit. Decided

September 23, 2014, at 9:25 a.m.

Michael A. Rataj filed an action in the Wayne Circuit Court against

the city of Romulus and the Romulus Police Department (RPD).

The action arose under the Freedom of Information Act (FOIA),

MCL 15.231 et seq., and was related to a police officer’s alleged

assault of an unnamed individual who had been arrested and

handcuffed. Plaintiff sought the disclosure of all records pertain-

ing to the assault, including an unredacted copy of the official

incident report, any other internal reports, and any videorecord-

ings. The RPD had originally granted plaintiff’s FOIA request in

part and denied it in part, providing a copy of the incident report

with the names, addresses, dates of birth, and telephone numbers

of all persons redacted. The RPD further confirmed that a video of

the incident existed, but stated that it was not being released at

the request of the arrestee because of safety concerns. In the FOIA

action, defendants moved for summary disposition, arguing that

the records plaintiff sought were exempt from disclosure as a

matter of law because they (1) contained information of a personal

nature and disclosure would constitute a clearly unwarranted

invasion of privacy under MCL 15.243(1)(a), (2) were law enforce-

ment investigation records and disclosure would constitute an

unwarranted invasion of privacy under MCL 15.243(1)(b)(iii), (3)

related to law enforcement departmental discipline and personnel

matters under MCL 15.243(1)(s)(ix). Alternatively, defendants

argued that the court should hold an evidentiary hearing or review

the requested records in camera before ordering any disclosure.

Plaintiff requested that the court enter a judgment in his favor

pursuant to MCR 2.116(I)(2). The court, Robert J. Colombo, Jr., J.,

ruled that the requested information was exempt from disclosure

pursuant to MCL 15.243(1)(a). The court also concluded that the

interest in disclosure was outweighed by the interest in protecting

the individual’s privacy and rejected the argument that disclosure

of the information would serve the public interest by shedding

light on the operations of the RPD. Accordingly, the court granted

summary disposition in favor of defendants with regard to plain-

tiff’s request for the arrestee’s identity, the unredacted incident

2014] R

ATAJ V

ITY OF

OMULUS

735

report, and the videorecording. Regarding plaintiff’s request for

any RPD reports concerning internal investigations or the disci-

pline of the officer, the court ruled that plaintiff had not suffi-

ciently described those records within the meaning of MCL

15.233(1) and that even if the records existed and plaintiff had

described them sufficiently, the records would be exempt from

disclosure under MCL 15.243(1)(s)(ix). Accordingly, the court also

granted summary disposition for defendants with respect to plain-

tiff’s request for those records. The court further concluded that it

was unnecessary to conduct an in camera review of the requested

information. Plaintiff appealed.

The Court of Appeals held:

1. FOIA reflects the state’s policy favoring public access to

governmental information, recognizing the need of citizens to be

informed as they participate in democratic governance and the

need for public officials to be held accountable for the manner in

which they perform their duties. FOIA is a prodisclosure statute,

and its disclosure provisions must be interpreted broadly to ensure

public access. While FOIA contains several exemptions from the

duty to disclose in MCL 15.243, they must be construed narrowly,

and the burden of proof rests with the party asserting an exemp-

tion. Under FOIA, a public body must disclose all public records

that are not specifically exempt under the act.

2. The videorecording was subject to disclosure under FOIA,

and the circuit court erred by concluding otherwise. MCL

15.232(e) defines a public record as a writing that is prepared,

owned, used, in the possession of, or retained by a public body in

the performance of an official function, from the time it is created.

A videorecording is a writing as defined under MCL 15.232(h), and

the video in question was in the RPD’s possession. MCL

15.243(1)(a) provides that a public body may exempt from disclo-

sure information of a personal nature if public disclosure of the

information would constitute a clearly unwarranted invasion of an

individual’s privacy. This exemption requires a two-pronged analy-

sis. Under the first prong, information is of a personal nature if it

is intimate, embarrassing, private, or confidential. It was alleged

by the parties that the videorecording showed the arrestee spitting

on the officer and using a racial slur. This information could be

considered embarrassing and therefore of a personal nature. For

the second prong, the question is whether public disclosure of the

information contained in the videorecording would constitute a

clearly unwarranted invasion of an individual’s privacy. Answering

this question requires the court to balance the public interest in

disclosure against the interest the Legislature intended the ex-

736 306 M

ICH

735 [Sept

emption to protect. The only relevant public interest in disclosure

to be weighed in this balance is the extent to which disclosure

would serve the core purpose of the FOIA, which is contributing

significantly to public understanding of the operations or activities

of the government. Accordingly, it was necessary to ask whether

the requested information would shed light on the governmental

agency’s conduct or further the core purposes of FOIA. In all but

a limited number of circumstances, the public’s interest in gov-

ernmental accountability prevails over an individual’s expectation

of privacy. Notwithstanding the personal and embarrassing infor-

mation that was depicted on the videorecording, the video would

shed light on the operations of the RPD and, in particular, its

treatment of those arrested and detained by its officers. While the

circuit court was concerned about plaintiff’s motives for seeking

disclosure of the videorecording, initial and future uses of infor-

mation requested under FOIA are irrelevant when determining

whether the information falls within an exemption, as is the

identity of the person seeking the information. Moreover, because

the videorecording was plainly subject to disclosure, it would have

been unnecessary for the circuit court to review the video in

camera.

3. The circuit court erred by granting defendants summary

disposition with respect to redaction of the names of the arrestee

and the officer because they were also subject to disclosure under

FOIA. Absent special circumstances not present in this case, an

individual’s name is not information of a personal nature within

the meaning of MCL 15.243(1)(a), and there was no need to

consider the second prong of the privacy-exemption analysis.

4. The other personal information in the incident report per-

taining to the arrestee and the officer (home addresses, dates of

birth, and telephone numbers) was exempt from disclosure under

FOIA. For purposes of the second prong of the privacy-exemption

analysis, the information would have revealed little or nothing

about a governmental agency’s conduct, nor would it have fur-

thered the stated public policy underlying FOIA. Because the

other personal information was exempt from disclosure under

MCL 15.243(1)(a), it was properly redacted from the incident

report.

5. Any RPD internal investigation reports and personnel

records pertaining to the assault incident were also exempt from

disclosure under FOIA. Under MCL 15.243(1)(s)(ix), internal

investigation reports and personnel files of a law enforcement

agency are exempt from disclosure unless the public interest in

disclosure outweighs the public interest in nondisclosure in the

2014] R

ATAJ V

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OMULUS

737

particular instance. While the circuit court erred by relying on an

unsigned, unnotarized affidavit to conclude that the interest in

nondisclosure outweighed the public interest in disclosure of any

internal investigation reports and personnel files, its ultimate

conclusion was nonetheless correct.

6. Because defendants wrongfully denied plaintiff’s FOIA re-

quest insofar as it sought disclosure of the videorecording and the

names of the arrestee and the officer involved in the assault,

plaintiff’s FOIA action and appeal were necessary to compel

disclosure of the information requested. Having prevailed in part

in his action, plaintiff was entitled under MCL 15.240(6) to an

appropriate portion of his attorney fees, costs, and disbursements,

and the circuit court was directed on remand to determine the

fees, costs, and disbursements incurred by plaintiff, including

attorney fees and costs necessitated by the appeal, and award him

an appropriate portion of them. The circuit court was also directed

to determine whether plaintiff was entitled to punitive damages

pursuant to MCL 15.240(7).

Affirmed in part, reversed in part, and remanded.

1. P

UBLIC

ECORDS —

REEDOM OF

NFORMATION

CT —

IDEORECORDINGS

A videorecording is a public record subject to disclosure under the

Freedom of Information Act, MCL 15.231 et seq.

2. P

UBLIC

ECORDS —

REEDOM OF

NFORMATION

CT —

XEMPTIONS

ROM

ISCLOSURE —

NWARRANTED

NVASIONS OF

RIVACY —

OTIVES FOR

EEKING

ISCLOSURE

MCL 15.243(1)(a) provides that a public body may exempt from

disclosure under the Freedom of Information Act (FOIA), MCL

15.231 et seq., information of a personal nature if public disclosure

of the information would constitute a clearly unwarranted inva-

sion of an individual’s privacy; the exemption requires a two-

pronged analysis; under the first prong, information is of a

personal nature if it is intimate, embarrassing, private, or confi-

dential; for the second prong, the question is whether public

disclosure of the information contained in the videorecording

would constitute a clearly unwarranted invasion of an individual’s

privacy; answering this question requires the court to balance the

public interest in disclosure against the interest the Legislature

intended the exemption to protect; the only relevant public inter-

est in disclosure to be weighed in this balance is the extent to

which disclosure would serve the core purpose of the FOIA, which

is contributing significantly to public understanding of the opera-

tions or activities of the government by shedding light on them; in

738 306 M

ICH

735 [Sept

all but a limited number of circumstances, the public’s interest in

governmental accountability prevails over an individual’s expec-

tation of privacy; a plaintiff’s motives for seeking disclosure of the

information requested under FOIA, including the initial and any

future uses of the information, are irrelevant when determining

whether the information falls within an exemption, as is the

identity of the person seeking the information.

3. P

UBLIC

ECORDS —

REEDOM OF

NFORMATION

CT —

XEMPTIONS

ROM

ISCLOSURE —

NWARRANTED

NVASIONS OF

RIVACY —

ERSONAL

NFOR-

MATION —

AMES

DDRESSES

IRTHDATES

AND

HONE

UMBERS

Absent special circumstances, an individual’s name is not informa-

tion of a personal nature within the meaning of MCL 15.243(1)(a)

for purposes of disclosure under the Freedom of Information Act,

MCL 15.231 et seq.; other information such as home addresses,

dates of birth, and telephone numbers are exempt from disclosure

under MCL 15.243(1)(a) if the information would reveal little or

nothing about a governmental agency’s conduct and would not

further the public policy underlying the act.

4. A

TTORNEY

EES —

REEDOM OF

NFORMATION

CT —

OMPELLING

ISCLOSURE —

PPEALS

If an appeal is necessary to compel the disclosure of information

requested under the Freedom of Information Act, MCL 15.231 et

seq., a plaintiff who prevailed in whole or in part in the action is

entitled under MCL 15.240(6) to an appropriate portion of his or

her attorney fees, costs, and disbursements necessitated by the

appeal; the plaintiff may also be entitled to punitive damages

under MCL 15.240(7).

Joel B. Sklar for plaintiff.

Plunkett Cooney (by Mary Massaron Ross, Hilary A.

Ballentine, and Audrey J. Forbush) for defendants.

Before: O

WENS

,P.J., and J

ANSEN

and O’C

ONNELL

,JJ.

ANSEN

, J. In this action brought pursuant to Michi-

gan’s Freedom of Information Act (FOIA), MCL 15.231

et seq., plaintiff appeals by right the circuit court’s grant

of summary disposition in favor of defendants. We

2014] R

ATAJ V

ITY OF

OMULUS

739

affirm in part, reverse in part, and remand for further

proceedings consistent with this opinion.

Plaintiff Michael A. Rataj (plaintiff), a Detroit-area

attorney, learned that Romulus Police Officer Warren

Jones (Jones) had assaulted an unnamed citizen at the

Romulus Police Department (RPD) in the early morn-

ing hours of August 1, 2012. Although it is unclear how

plaintiff initially discovered this information, RPD em-

ployee Kevin Ladach (Ladach) has confirmed that the

assault took place and was captured on video.

Accord-

ing to plaintiff, Jones physically assaulted the citizen

while the citizen’s hands were handcuffed behind his

back. Although the record does not disclose the specific

reasons for the citizen’s arrest, it appears that the

citizen later provoked Jones while in custody by spitting

on Jones and using an unidentified racial epithet.

On September 21, 2012, plaintiff sent a FOIA request

to the RPD. Plaintiff sought the disclosure of all records

pertaining to the assault, including an unredacted copy

of the official incident report, any other internal re-

ports, and any videorecordings. RPD Captain Derran E.

Shelby (Shelby) responded on October 4, 2012, stating

that plaintiff’s FOIA request had been “granted in part

and denied in part.” Shelby provided a copy of the

incident report pertaining to the events of August 1,

2012, with the names, addresses, dates of birth, and

telephone numbers of all persons redacted. Shelby

See Ladach v City of Romulus, unpublished opinion of the United

States District Court for the Eastern District of Michigan, issued Febru-

ary 10, 2014 (Docket No. 13-CV-010771). At the time of the incident at

issue in this case, Ladach was a detective sergeant at the RPD and was in

charge of supervising the property and evidence room. Ladach has since

been demoted and relieved of his duties in the detective bureau.

740 306 M

ICH

735 [Sept

informed plaintiff that Lieutenant James Cox was the

shift commander on duty at that time and that Sergeant

Damian Hull was also on duty. Shelby confirmed that

the RPD possessed video of the lobby area, booking

area, and lock-up area recorded in the early morning

hours of August 1, 2012. However, he stated that “at the

request of the prisoner for his/her safety concerns, the

video is not being released.” In addition, Shelby wrote

that “[t]he name of the arrestee has been redacted from

the incident report at his/her request.” Shelby notified

plaintiff that he could appeal the decision in writing to

Barry Seifman (Seifman), an attorney designated by the

city of Romulus to handle FOIA appeals.

Plaintiff sent a written appeal to Seifman on Novem-

ber 14, 2012. Seifman responded on November 19, 2012,

suggesting that the records sought by plaintiff were

exempt from disclosure under FOIA because they (1)

“would constitute a clearly unwarranted invasion of an

individual’s

[2]

privacy,” (2) were related to “departmen-

tal discipline,” and (3) consisted of “police personnel

records.” Seifman did send plaintiff a copy of a type-

written letter, allegedly signed by the citizen who was

assaulted, which provided:

September 28, 2012

To the City of Romulus,

[Redacted] requesting that any police reports, patrol car

audio/video, police station audio/video, etc., obtained by the

city as a result of my arrest on August 1, 2012, that the city

of Romulus may have in their [sic] possession surrounding

an incident where an officer struck me for spitting on him

and using racial slurs, NOT be released to anyone. It is my

belief that by releasing any of these items to anyone from

It is unclear whether Seifman was referring to Jones (the individual

who allegedly committed the assault), the unnamed citizen (the indi-

vidual who was assaulted), or both.

2014] R

ATAJ V

ITY OF

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741

the public will not only impact my current employment

status, but also my personal safety as well.

Sincerely,

[Redacted]

Seifman informed plaintiff that although the citizen’s

name had been redacted, the letter “may help you

understand the concerns of the person involved in the

incident.” Seifman did not explain why the letter was

dated September 28, 2012, nearly two months after the

incident had taken place.

On January 11, 2013, plaintiff commenced the in-

stant FOIA action against defendants in the Wayne

Circuit Court, seeking disclosure of the records identi-

fied in his earlier FOIA request, including an unre-

dacted copy of the incident report and the videorecord-

ing of the assault. Plaintiff also requested costs and

reasonable attorney fees pursuant to MCL 15.240(6).

In lieu of filing an answer, defendants moved for

summary disposition pursuant to MCR 2.116(C)(8) and

(10), arguing that the records sought by plaintiff were

exempt from disclosure as a matter of law because they

(1) contained information of a personal nature and

disclosure would constitute a clearly unwarranted inva-

sion of privacy under MCL 15.243(1)(a); (2) were law

enforcement investigation records and disclosure would

constitute an unwarranted invasion of privacy under

MCL 15.243(1)(b)(iii); and (3) related to law enforce-

ment departmental discipline and personnel matters

under MCL 15.243(1)(s)(ix). Alternatively, defendants

argued that the circuit court should hold an evidentiary

hearing or review the requested records in camera

before ordering any disclosure.

Plaintiff responded to defendants’ motion for summary

disposition and requested that the circuit court enter

judgment in his favor pursuant to MCR 2.116(I)(2). Plain-

742 306 M

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735 [Sept

tiff maintained that the requested records, including the

videorecording, were all subject to disclosure under FOIA.

Plaintiff argued that the privacy exemption of MCL

15.243(1)(a), the law enforcement investigation exemp-

tion of MCL 15.243(1)(b)(iii), the law enforcement person-

nel records exemption of MCL 15.243(1)(s)(ix), and the

public safety exemption of MCL 15.243(1)(y) were all

inapplicable on the facts of this case. Attached to his

response, plaintiff submitted documentary evidence

related to an ongoing investigation of the RPD by the

Federal Bureau of Investigation, Michigan State Po-

lice, and Wayne County Prosecuting Attorney’s Of-

fice. Plaintiff pointed out that several RPD officers

had been charged with corruption and criminal mis-

conduct in office. He suggested that the RPD had a

history of covering up police misconduct and that

disclosure of the requested videorecording would

serve the public interest by shedding light on the

internal operations of the RPD.

Plaintiff also attached a copy of the complaint filed in

Ladach v City of Romulus,

a Whistleblowers’ Protec-

tion Act lawsuit filed by Ladach in the United States

District Court for the Eastern District of Michigan. In

the complaint, Ladach explained that he had been a

detective sergeant at the RPD, in charge of supervising

the property and evidence room. This position had

required him to gather and compile materials for cer-

tain FOIA requests. Ladach alleged that he had learned

of an assault against a citizen during the midnight shift

of August 1, 2012, which was captured on video. Upon

learning of the assault, Ladach located the videorecord-

ing and made a copy of it on his departmental computer.

Ladach v City of Romulus, United States District Court for the

Eastern District of Michigan, Docket No. 13-CV-010771.

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When Ladach later received a FOIA request on Septem-

ber 24, 2012 (presumably the same request submitted

by plaintiff on September 21, 2012), he compiled the

requested information, including the videorecording,

and presented the materials to RPD Chief Robert

Dickerson (Dickerson) for his review and approval.

According to Ladach, Dickerson and Shelby questioned

him regarding the video, stating that they thought it

had been destroyed. Dickerson instructed Ladach to

destroy the video and delete it from his computer.

Ladach subsequently contacted the Attorney General’s

office concerning the incident and the videorecording.

He was later relieved of his duties in the detective

bureau and evidence room and demoted to road patrol.

The circuit court held oral argument on March 22,

2013. The court repeatedly questioned counsel concern-

ing plaintiff’s motivations for seeking disclosure of the

citizen’s identity and videorecording. The court re-

marked that plaintiff’s attorney was also involved in the

Ladach case and suggested that the instant FOIA

action was “really about you getting discovery to sup-

port your Ladach lawsuit.” In response, plaintiff’s at-

torney noted that the Ladach lawsuit had not been filed

until after plaintiff’s FOIA request was sent to the

RPD. The circuit court then asked whether plaintiff was

seeking disclosure of the citizen’s identity and videore-

cording in order “to go out and solicit this citizen to file

a 1983

[4]

action or an assault and battery claim.” Plain-

tiff’s attorney responded that this was not plaintiff’s

intention; he argued that the requested information

was not exempt from disclosure under FOIA and that

disclosure would be in the public interest.

The circuit court observed that the citizen involved

in the incident did not want the incident report or

42 USC 1983.

744 306 M

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735 [Sept

videorecording disclosed. According to the court, “[I]t

would not be surprising that a citizen would not want to

disclose that [he] had been... arrested, charged, or

convicted.” The court further admonished plaintiff’s

counsel, “I don’t think you’re pursuing the public

interest at all. I think you’re pursuing discovery in your

federal case.” Defense counsel argued that the videore-

cording and any police reports concerning the incident

of August 1, 2012, were exempt from disclosure under

FOIA because disclosure would invade the citizen’s

right to privacy.

The circuit court ruled that the requested informa-

tion was exempt from disclosure pursuant to MCL

15.243(1)(a). With respect to the first prong of the

analysis under MCL 15.243(1)(a), the court concluded

that

[t]he information sought regarding the identity of the

citizen in the police report as well as the video information

is of a personal nature. The fact that the citizen was

involved in an incident [for] which the police may have

arrested and even charged is [an] intimate, embarrassing,

private and confidential detail[] regarding the citizen’s life.

Relying on Mich Federation of Teachers & School

Related Personnel v Univ of Mich, 481 Mich 657, 680;

753 NW2d 28 (2008), the court held that the requested

information remained private and personal, notwith-

standing that the citizen’s identity ultimately would

have been discovered if he had been charged and tried

in open court. With respect to the second prong of the

analysis under MCL 15.243(1)(a), the circuit court

concluded that the interest in disclosure was out-

weighed by the interest in protecting the citizen’s

privacy. The court “reject[ed]” plaintiff’s argument that

disclosure of the information would serve the public

interest by shedding light on the operations of the RPD.

2014] R

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The court remarked that it would grant summary

disposition for defendants under MCR 2.116(C)(8) with

regard to plaintiff’s request for the citizen’s identity,

unredacted incident report, and videorecording.

Regarding plaintiff’s request for any RPD reports

concerning internal investigations or the discipline of

Jones, the circuit court ruled that plaintiff had not

“sufficiently” described those records within the mean-

ing of MCL 15.233(1). The court also ruled that, even if

the records existed and had been sufficiently described

by plaintiff, the records would be exempt from disclo-

sure under MCL 15.243(1)(s)(ix) and Kent Co Deputy

Sheriffs Ass’n v Kent Co Sheriff, 463 Mich 353, 365-367;

616 NW2d 677 (2000). The court explained that it

would grant summary disposition for defendants under

MCR 2.116(C)(10) with respect to plaintiff’s request for

any internal investigation reports and personnel

records. Observing that there was “absolutely no evi-

dence to support any of the assertions made in the

complaint and in the brief,” the circuit court concluded

that it was unnecessary to conduct an in camera review

of the requested information.

On March 28, 2013, the circuit court entered an order

denying plaintiff’s request for summary disposition

under MCR 2.116(I)(2) and granting summary disposi-

tion in favor of defendants for the reasons stated on the

record.

We review de novo the circuit court’s ruling on a

motion for summary disposition. Spiek v Dep’t of Trans-

portation, 456 Mich 331, 337; 572 NW2d 201 (1998). A

motion brought under MCR 2.116(C)(8) “tests the legal

sufficiency of the claim on the pleadings alone to

determine whether the plaintiff has stated a claim on

746 306 M

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735 [Sept

which relief may be granted.” Spiek, 456 Mich at 337.

“The motion must be granted if no factual development

could justify the plaintiff’s claim for relief.” Id.A

motion brought under MCR 2.116(C)(10) “tests the

factual support of a plaintiff’s claim. The court consid-

ers the affidavits, pleadings, depositions, admissions,

and other documentary evidence submitted or filed in

the action to determine whether a genuine issue of any

material fact exists to warrant a trial.” Spiek, 456 Mich

at 337. “Summary disposition is proper under MCR

2.116(C)(10) if the affidavits and other documentary

evidence show that there is no genuine issue concerning

any material fact and that the moving party is entitled

to judgment as a matter of law.” Kennedy v Great

Atlantic & Pacific Tea Co, 274 Mich App 710, 712; 737

NW2d 179 (2007). On the other hand, summary dispo-

sition is proper under MCR 2.116(I)(2) “if the court

determines that the opposing party, rather than the

moving party, is entitled to judgment as a matter of

law.” Washburn v Michailoff, 240 Mich App 669, 672;

613 NW2d 405 (2000).

As with all statutes, the proper interpretation and

application of FOIA is a question of law that we review

de novo. Herald Co, Inc v Eastern Mich Univ Bd of

Regents, 475 Mich 463, 470; 719 NW2d 19 (2006);

Breighner v Mich High School Athletic Ass’n, Inc, 255

Mich App 567, 570; 662 NW2d 413 (2003). This includes

the question whether a particular document or record-

ing constitutes a “public record” within the meaning of

FOIA. See Patterson v Allegan Co Sheriff, 199 Mich App

638, 639-640; 502 NW2d 368 (1993). In general,

whether a public record is exempt from disclosure

under FOIA is a mixed question of fact and law. Detroit

Free Press, Inc v City of Warren, 250 Mich App 164, 166;

645 NW2d 71 (2002). However, when the facts are

undisputed and reasonable minds could not differ,

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whether a public record is exempt under FOIA is a pure

question of law for the court. See Larry S Baker, PC v

Westland, 245 Mich App 90, 93; 627 NW2d 27 (2001);

see also Marcelle v Taubman, 224 Mich App 215, 217;

568 NW2d 393 (1997) (noting that “[w]here facts are

undisputed, applying a statute to the facts is an issue of

law for the court”).

III

In enacting FOIA, the Michigan Legislature de-

clared:

It is the public policy of this state that all persons,

except those persons incarcerated in state or local correc-

tional facilities, are entitled to full and complete informa-

tion regarding the affairs of government and the official

acts of those who represent them as public officials and

public employees, consistent with this act. The people shall

be informed so that they may fully participate in the

democratic process. [MCL 15.231(2).]

“FOIA is a manifestation of this state’s public policy

favoring public access to government information, rec-

ognizing the need that citizens be informed as they

participate in democratic governance, and the need that

public officials be held accountable for the manner in

which they perform their duties.” Manning v East

Tawas, 234 Mich App 244, 248; 593 NW2d 649 (1999).

Our Supreme Court has repeatedly described FOIA as a

“prodisclosure statute,” Herald Co v Bay City, 463 Mich

111, 119; 614 NW2d 873 (2000); Swickard v Wayne Co

Med Examiner, 438 Mich 536, 544; 475 NW2d 304

(1991), and this Court has held that FOIA’s disclosure

provisions must be interpreted broadly to ensure public

access, Practical Political Consulting, Inc v Secretary of

State, 287 Mich App 434, 465; 789 NW2d 178 (2010).

While it is true that FOIA contains several exceptions to

748 306 M

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735 [Sept

the duty to disclose, MCL 15.243, “these exemptions must

be construed narrowly, and the burden of proof rests with

the party asserting an exemption,” Manning, 234 Mich

App at 248; see also Bradley v Saranac Community

Schools Bd of Ed, 455 Mich 285, 293; 565 NW2d 650

(1997). “Under FOIA, a public body must disclose all

public records that are not specifically exempt under the

act.” Hopkins v Duncan Twp, 294 Mich App 401, 409; 812

NW2d 27 (2011); see also MCL 15.233(1).

We first conclude that the videorecording of the

assault of August 1, 2012, is a public record subject to

disclosure under FOIA.

As a preliminary matter, it is beyond dispute that a

videorecording of the assault of August 1, 2012, does in

fact exist.

Therefore, the threshold inquiry is whether

the videorecording constitutes a “public record” within

the meaning of FOIA. MCL 15.232(e) defines “[p]ublic

record” as “a writing prepared, owned, used, in the

possession of, or retained by a public body in the

performance of an official function, from the time it is

created.” In turn, MCL 15.232(h) defines “[w]riting” as

“handwriting, typewriting, printing, photostating, pho-

tographing, photocopying, and every other means of

recording, and includes letters, words, pictures, sounds,

or symbols, or combinations thereof, and papers, maps,

magnetic or paper tapes, photographic films or prints,

microfilm, microfiche, magnetic or punched cards,

discs, drums, or other means of recording or retaining

meaningful content.” Without question, a videorecord-

ing is a “writing” under MCL 15.232(h).

It is true that the citizen who was assaulted was never charged or

prosecuted for any crime. But this is not relevant to our analysis.

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Although it is not clear whether the videorecording was

made in an interrogation room, the booking area, the

lock-up area, or the lobby, we are satisfied that the video

was “prepared...inthepossession of, or retained by [the

RPD] in the performance of an official function” within

the meaning of MCL 15.232(e). This Court has previously

held that booking photographs constitute public records

under MCL 15.232(e). Patterson, 199 Mich App at 639;

Detroit Free Press, Inc v Oakland Co Sheriff, 164 Mich

App 656, 660-666; 418 NW2d 124 (1987). There are

several obvious similarities between booking photographs

and the videorecording at issue in this case. Moreover, in

Prins v Mich State Police, 291 Mich App 586, 588; 805

NW2d 619 (2011), this Court essentially assumed, without

deciding, that a police video of a traffic stop was a public

record under FOIA. We conclude that the videorecording

at issue in the present case is a “public record” within the

meaning of MCL 15.232(e).

We also conclude that the videorecording is subject to

disclosure. The circuit court determined that the videore-

cording was exempt from disclosure under the privacy

exemption of MCL 15.243(1)(a), which provides that a

public body may exempt from disclosure “[i]nformation of

a personal nature if public disclosure of the information

would constitute a clearly unwarranted invasion of an

individual’s privacy.” This exemption has two prongs. See

Mich Federation of Teachers, 481 Mich at 672.

Under the first prong of the privacy exemption,

information is “of a personal nature” if it is “intimate,”

“embarrassing,” “private,” or “confidential.” Id. at 676.

It has been alleged by the parties that the videorecord-

ing shows the citizen spitting on the officer and using a

racial slur. This information could well be considered

embarrassing and therefore of a personal nature. Id.

750 306 M

ICH

735 [Sept

Under the second prong, then, the question is

whether public disclosure of the information contained

in the videorecording “would constitute a clearly un-

warranted invasion of an individual’s privacy.” MCL

15.243(1)(a). To answer this question, the court must

“balance the public interest in disclosure against the inter-

est [the Legislature] intended the exemption to pro-

tect[.]...[T]he only relevant public interest in disclosure

to be weighed in this balance is the extent to which

disclosure would serve the core purpose of the FOIA, which

is contributing significantly to public understanding of the

operations or activities of the government.” [Practical

Political Consulting, 287 Mich App at 462, quoting Mich

Federation of Teachers, 481 Mich at 673 (alterations in

original).]

Under this prong of the analysis, it is necessary to ask

whether the requested information would shed light on

the governmental agency’s conduct or further the core

purposes of FOIA. Mich Federation of Teachers, 481

Mich at 681-682. “In all but a limited number of

circumstances, the public’s interest in governmental

accountability prevails over an individual’s, or a group

of individuals’, expectation of privacy.” Practical Politi-

cal Consulting, 287 Mich App at 464.

Notwithstanding the personal and embarrassing in-

formation that is apparently depicted on the videore-

cording, we conclude that the video would shed light on

the operations of the RPD and, in particular, its treat-

ment of those arrested and detained by its officers.

These are matters of legitimate public concern. See

Henry v Detroit, 234 Mich App 405, 413 n 1; 594 NW2d

107 (1999). “[W]e cannot hold our [police] officials

accountable if we do not have the information upon

which to evaluate their actions.” Practical Political

Consulting, 287 Mich App at 464.

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Furthermore, this Court has previously assumed

that a police video depicting an arrestee is a public

record subject to disclosure under FOIA. In Prins, 291

Mich App 587-588, the plaintiff was driving a vehicle in

Ionia County when she was pulled over by a state

trooper; the plaintiff’s passenger was issued a ticket for

failing to wear a seat belt. The plaintiff subsequently

filed a FOIA request seeking disclosure of the video of

the traffic stop, which had been recorded by a camera

inside the police car. Id. at 588. The state police denied

the plaintiff’s request, however, explaining that any

video made no longer existed. Id. Several months later,

when the plaintiff’s passenger appeared in district court

to contest his seat-belt citation, the prosecutor pro-

duced the video of the traffic stop. Id. The Prins Court

essentially assumed for purposes of its analysis that the

state police had violated FOIA by failing to disclose the

video in response to the plaintiff’s FOIA request.

We acknowledge that the circuit court was concerned

about plaintiff’s motives for seeking disclosure of the

videorecording. As explained previously, the court asked

plaintiff’s counsel whether his client was using the

FOIA request as a means of obtaining discovery for the

Ladach lawsuit and whether plaintiff was seeking dis-

closure of the citizen’s identity and videorecording in

order “to go out and solicit this citizen to file a [42 USC]

1983 action or an assault and battery claim.” But as this

Court has made clear, “initial as well as future uses of

information requested under FOIA are irrelevant in

determining whether the information falls within ex-

emption, as is the identity of the person seeking the

information.” Taylor v Lansing Bd of Water & Light,

272 Mich App 200, 205; 725 NW2d 84 (2006). It is

simply irrelevant whether plaintiff was seeking disclo-

sure of the video for purposes of discovery in a different

lawsuit. Id.; see also Central Mich Univ Supervisory-

752 306 M

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735 [Sept

Tech Ass’n v Central Mich Univ Bd of Trustees, 223

Mich App 727, 730; 567 NW2d 696 (1997).

Given that FOIA’s privacy exemption must be nar-

rowly construed, Bradley, 455 Mich at 293, and that

disclosure of the videorecording would serve the core

purposes of FOIA, see MCL 15.231(2); Mager v Dep’t of

State Police, 460 Mich 134, 145; 595 NW2d 142 (1999),

we conclude that the videorecording is not exempt from

disclosure under MCL 15.243(1)(a). The videorecording

was plainly subject to disclosure, and it was therefore

unnecessary for the circuit court to perform an in

camera review of the video. We reverse the circuit

court’s erroneous determination that the videorecord-

ing was not subject to disclosure under FOIA.

Plaintiff also requested a copy of the unredacted

incident report pertaining to the assault of August 1,

2012, presumably seeking disclosure of the identity of

the citizen and officer involved in the assault. We

conclude that the names of the citizen and officer, which

were redacted from the incident report, were subject to

disclosure under FOIA.

Like the videorecording itself, the names of the citizen

and officer involved in the assault were withheld under

the privacy exemption of MCL 15.243(1)(a). In the ab-

sence of special circumstances that are not present here,

an individual’s name is not “[i]nformation of a personal

nature” within the meaning of MCL 15.243(1)(a). See,

e.g., Tobin v Civil Serv Comm, 416 Mich 661, 671; 331

NW2d 184 (1982); Practical Political Consulting, 287

Mich App at 455; Detroit Free Press, Inc v Southfield, 269

Mich App 275, 282; 713 NW2d 28 (2005). Because the

names of the citizen and officer are not information of a

personal nature, the names are subject to disclosure and

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there is no need to consider the second prong of the

privacy exemption. See Detroit Free Press, 250 Mich App

at 167-168 (stating that “[i]nformation not of a personal

nature is subject to disclosure without considering the

second prong of the privacy exemption”). We reverse the

circuit court insofar as it declined to order disclosure of

the names of the citizen and officer.

In contrast, we conclude that the other personal

information redacted from the incident report (e.g.,

home addresses, dates of birth, and telephone numbers)

was exempt from disclosure under FOIA. Home ad-

dresses, dates of birth, and telephone numbers typically

constitute information of a personal nature within the

meaning of the privacy exemption. See Mich Federation

of Teachers, 481 Mich at 680. And for purposes of the

second prong of the privacy exemption, our Supreme

Court has held that the disclosure of such information

“would reveal ‘ “little or nothing” ’ about a governmen-

tal agency’s conduct, nor would it further the stated

public policy undergirding the Michigan FOIA.” Id.at

682 (citations omitted). This other personal informa-

tion pertaining to the citizen and officer was exempt

from disclosure under MCL 15.243(1)(a) and was there-

fore properly redacted from the incident report.

VII

We similarly conclude that any RPD internal inves-

tigation reports

and personnel records pertaining to

As with the videorecording, plaintiff’s motives for seeking disclosure

of the names of the citizen and officer involved in the assault were

irrelevant. Taylor, 272 Mich App at 205.

We disagree with the circuit court’s determination that plaintiff’s

request for internal investigation reports lacked sufficient specificity to

754 306 M

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735 [Sept

the incident of August 1, 2012, were exempt from

disclosure under FOIA.

Internal investigation reports and personnel files of a

law enforcement agency are exempt from disclosure

“[u]nless the public interest in disclosure outweighs the

public interest in nondisclosure in the particular in-

stance....” MCL 15.243(1)(s)(ix); see also Kent Co

Deputy Sheriffs, 463 Mich at 365-367.

The circuit court relied on the unsigned, unnotarized

“affidavit” of Dickerson to conclude that the public

interest in disclosure of any internal investigation re-

ports and personnel files was outweighed by the inter-

est in nondisclosure. Specifically, the circuit court de-

termined that it was essential to keep any internal

investigation reports confidential in order to foster

“frank and open discussion without fear of reprisal or

retaliation.” The court observed that if such reports

were disclosed under FOIA, the RPD’s ability to con-

duct internal investigations with the cooperation of its

officers “would be chilled” or “destroyed.” Although the

circuit court technically erred to the extent that it relied

on an unsigned, unnotarized “affidavit,”

we fully agree

with its ultimate conclusion. Indeed, our Supreme

Court adopted nearly identical reasoning in Kent Co

Deputy Sheriffs, 463 Mich at 365-367, relying on the

affidavit of the Kent County Undersheriff and conclud-

ing that the public interest in disclosure of various

internal investigation records was outweighed by the

comply with MCL 15.233(1). Plaintiff’s request described the requested

records sufficiently to allow the RPD to identify and locate them. See

Coblentz v Novi, 475 Mich 558, 572-573; 719 NW2d 73 (2006); Thomas v

New Baltimore, 254 Mich App 196, 203-204; 657 NW2d 530 (2002).

“[A]n unsworn, unsigned affidavit may not be considered by the trial

court on a motion for summary disposition.” Gorman v American Honda

Motor Co, Inc, 302 Mich App 113, 120; 839 NW2d 223 (2013). Indeed, an

unsigned, unnotarized “affidavit” is no affidavit at all. Holmes v Mich

Capital Med Ctr, 242 Mich App 703, 711-712; 620 NW2d 319 (2000).

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public interest in keeping the records confidential. We

conclude that any RPD internal investigation records

pertaining to the incident of August 1, 2012, were

exempt from disclosure under MCL 15.243(1)(s)(ix).

Kent Co Deputy Sheriffs, 463 Mich at 365-367. Likewise,

we conclude that the public interest in disclosure of the

officer’s personnel file did not outweigh the public

interest in nondisclosure. The circuit court properly

determined that the requested internal investigation

reports and personnel records were exempt from disclo-

sure under MCL 15.243(1)(s)(ix).

VIII

As we have explained, defendants wrongfully denied

plaintiff’s FOIA request insofar as it sought disclosure of

the videorecording and names of the citizen and officer

involved in the assault of August 1, 2012. The present

action—and particularly this appeal—was necessary to

compel disclosure of this requested information. See

Scharret v City of Berkley, 249 Mich App 405, 414; 642

NW2d 685 (2002). We conclude that plaintiff, having

prevailed in part in this action, is entitled to an appropri-

ate portion of his attorney fees, costs, and disbursements

pursuant to MCL 15.240(6). On remand, the circuit court

shall determine the reasonable attorney fees, costs, and

disbursements incurred by plaintiff in this case, including

those attorney fees and costs necessitated by this appeal,

and shall award plaintiff an appropriate portion thereof in

accordance with MCL 15.240(6). The circuit court shall

also determine whether plaintiff is entitled to punitive

damages pursuant to MCL 15.240(7).

We reverse the circuit court’s grant of summary

disposition in favor of defendants to the extent that the

756 306 M

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735 [Sept

court declined to order disclosure of the videorecording

and unredacted names of the citizen and officer. The

circuit court erred as a matter of law by ruling that

these specific items were exempt from disclosure under

FOIA.

We remand for entry of partial judgment in favor of

plaintiff with respect to the requested videorecording

and names, as well as for other proceedings. On re-

mand, the circuit court shall (1) order disclosure of the

videorecording and unredacted names of the citizen and

officer involved in the assault, (2) award plaintiff an

appropriate portion of his attorney fees, costs, and

disbursements under MCL 15.240(6), and (3) determine

whether plaintiff is entitled to punitive damages under

MCL 15.240(7).

In all other respects, we affirm the circuit court’s

order granting summary disposition in favor of defen-

dants and denying plaintiff’s request for summary

disposition under MCR 2.116(I)(2).

Affirmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. We do

not retain jurisdiction. No taxable costs pursuant to

MCR 7.219, no party having prevailed in full.

WENS

,P.J., and O’C

ONNELL

, J., concurred with J

ANSEN

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