BV_MiApp328_Final.pdf

MICHIGAN APPEALS REPORTS

CASES DECIDED

IN THE

MICHIGAN

COURT OF APPEALS

FROM

April 30, 2019 through June 20, 2019

KATHRYN L. LOOMIS

REPORTER OF DECISIONS

VOLUME 328

FIRST EDITION

2021

The paper used in this publication meets the minimum

requirements of American National Standard for Information

Sciences—Permanence of Paper for Printed Library Materi-

als, ANSI Z39.48-1984.

COURT OF APPEALS

ERM

XPIRES

ANUARY

HIEF

UDGE

CHRISTOPHER M. MURRAY .................................................... 2021

HIEF

UDGE

JANE M. BECKERING ............................................................... 2025

UDGES

DAVID SAWYER .......................................................................... 2023

MARK J. CAVANAGH ................................................................. 2021

KATHLEEN JANSEN ................................................................. 2025

JANE E. MARKEY ...................................................................... 2021

PATRICK M. METER .................................................................. 2021

KIRSTEN FRANK KELLY.......................................................... 2025

KAREN FORT HOOD.................................................................. 2021

STEPHEN L. BORRELLO .......................................................... 2025

DEBORAH A. SERVITTO ........................................................... 2025

ELIZABETH L. GLEICHER ....................................................... 2025

CYNTHIA DIANE STEPHENS................................................... 2023

MICHAEL J. KELLY ................................................................... 2021

DOUGLAS B. SHAPIRO ............................................................. 2025

AMY RONAYNE KRAUSE.......................................................... 2021

MARK T. BOONSTRA ................................................................. 2021

MICHAEL J. RIORDAN.............................................................. 2025

MICHAEL F. GADOLA................................................................ 2023

COLLEEN A. O’BRIEN ............................................................... 2023

BROCK A. SWARTZLE................................................................ 2023

THOMAS C. CAMERON ............................................................. 2023

JONATHAN TUKEL.................................................................... 2021

ANICA LETICA............................................................................ 2021

JAMES R. REDFORD.................................................................. 2021

HIEF

LERK

: JEROME W. ZIMMER, J

ESEARCH

IRECTOR

: JULIE ISOLA RUECKE

iii

SUPREME COURT

ERM

XPIRES

ANUARY

HIEF

USTICE

BRIDGET M. McCORMACK ......................................................... 2021

HIEF

USTICE

DAVID F. VIVIANO........................................................................ 2025

USTICES

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

BRIAN K. ZAHRA .......................................................................... 2023

RICHARD H. BERNSTEIN ........................................................... 2023

ELIZABETH T. CLEMENT ........................................................... 2027

MEGAN K. CAVANAGH ................................................................ 2027

OMMISSIONERS

DANIEL C. BRUBAKER, C

HIEF

OMMISSIONER

TIMOTHY J. RAUBINGER ANNE E. ALBERS

SHARI M. OBERG STACI STODDARD

DEBRA A. GUTIERREZ-M

GUIRE MARK E. PLAZA

ANNE-MARIE HYNOUS VOICE MOLLY E. HENNESSEY

MICHAEL S. WELLMAN REGINA T. DELMASTRO

GARY L. ROGERS CHRISTOPHER M.THOMPSON

SAMUEL R. SMITH

CHRISTOPHER M. SMITH

JONATHAN S. LUDWIG

LIZA C. MOORE

TATE

OURT

DMINISTRATOR

MILTON L. MACK, J

LERK

: LARRY S. ROYSTER

EPORTER OF

ECISIONS

: KATHRYN L. LOOMIS

RIER

: JEFFREY A. MILLS

To April 1, 2019.

TABLE OF CASES REPORTED

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

section beginning at page 801.)

AGE

Albrecht, Composto v ......................................... 496

Ali, People v ........................................................ 538

Allstate Ins Co, Richardson v ............................ 468

Arnold, People v (On Remand) .......................... 592

BRK, Inc, Wilson v ............................................. 505

Bensch, People v ................................................. 1

Berdy v Buffa ...................................................... 550

Brown, People v ................................................................... 801

Brown, Powers v ................................................. 617

Buffa, Berdy v ..................................................... 550

Can IV Packard Square, LLC v Packard

Square, LLC .................................................... 656

City of Livonia, Holeton v .................................. 88

Claim for Surplus Funds, In re ......................... 313

Composto v Albrecht .......................................... 496

AGE

Delta Business Center, LLC v Delta

Charter Twp .................................................... 684

Delta Charter Twp, Delta Business

Center, LLC v ................................................. 684

Dep’t of Treasury, Jim’s Body Shop, Inc v ........ 187

Edwards, People v .............................................. 29

Estate of Wanda Jesse v Lakeland Specialty

Hospital at Berrien Center ............................ 142

Everest National Ins Co, Mendelson

Orthopedics PC v ............................................ 450

Everson v Williams ............................................ 383

Farm Bureau General Ins Co of Michigan

v Slocum .......................................................... 626

Farm Bureau General Ins Co of Michigan,

Slocum v .......................................................... 626

Farm Bureau Ins Co v TNT Equip, Inc ........... 667

Guardianship of Lisa Brosamer, In re ............. 267

Haveman, People v ............................................. 480

Hoang, People v .................................................. 45

Holeton v City of Livonia ................................... 88

Home-Owners Ins Co v Perkins ........................ 570

Hurley Medical Center, Registered Nurses,

Registered Pharmacists Union v ................... 528

Hutchinson v Ingham County Health Dep’t .... 108

vi 328 M

ICH

AGE

In re Claim for Surplus Funds .......................... 313

In re Guardianship of Lisa Brosamer ............... 267

In re Monier Khalil Living Trust (On

Reconsideration) ............................................. 151

In re Tchakarova ................................................ 172

Ingham County Health Dep’t, Hutchinson v ... 108

Jim’s Body Shop, Inc v Dep’t of Treasury ........ 187

Johnson v USA Underwriters ........................... 223

Kuhlgert v Michigan State Univ ....................... 357

Lakeland Specialty Hospital at Berrien

Center, Estate of Wanda Jesse v ................... 142

Liang v Liang ..................................................... 302

Livonia (City of), Holeton v ............................... 88

Lueck v Lueck .................................................... 399

Maples v State of Michigan ............................... 209

Mendelson Orthopedics PC v Everest National

Ins Co .............................................................. 450

Mercy Health Hackley Campus, Olin v ............ 337

Michigan State Univ, Kuhlgert v ...................... 357

Michigan State Univ, Ostendorf v ..................... 357

Monier Khalil Living Trust (On

Reconsideration), In re .................................. 151

Morrison, People v .............................................. 647

ABLE OF

ASES

EPORTED

vii

AGE

Olin v Mercy Health Hackley Campus ............. 337

Ostendorf v Michigan State Univ ..................... 357

Packard Square, LLC, Can IV Packard

Square, LLC v ................................................. 656

Parkmallory, People v ........................................ 289

People v Ali ......................................................... 538

People v Arnold (On Remand) ........................... 592

People v Bensch .................................................. 1

People v Brown .................................................................... 801

People v Edwards ............................................... 29

People v Haveman .............................................. 480

People v Hoang ................................................... 45

People v Morrison ............................................... 647

People v Parkmallory ......................................... 289

People v Traver (On Remand) ........................... 418

People v Walker (On Remand) .......................... 429

People v Williams ............................................... 408

Perkins, Home-Owners Ins Co v ....................... 570

Powers v Brown .................................................. 617

Reaume v Twp of Spring Lake .......................... 321

Registered Nurses, Registered Pharmacists

Union v Hurley Medical Center .................... 528

Richardson v Allstate Ins Co ............................. 468

Slocum v Farm Bureau General Ins Co

of Michigan ..................................................... 626

Slocum, Farm Bureau General Ins Co of

Michigan v ...................................................... 626

viii 328 M

ICH

AGE

Smith v Smith .................................................... 279

State of Michigan, Maples v .............................. 209

State of Michigan, Sullivan v ............................ 74

Sullivan v State of Michigan ............................. 74

TNT Equip, Inc, Farm Bureau Ins Co v .......... 667

Tchakarova, In re ............................................... 172

Traver, People v (On Remand) .......................... 418

Treasury (Dep’t of), Jim’s Body Shop, Inc v ..... 187

Twp of Spring Lake, Reaume v ......................... 321

USA Underwriters, Johnson v .......................... 223

Walker, People v (On Remand) ......................... 429

Williams, Everson v ........................................... 383

Williams, People v .............................................. 408

Wilson v BRK, Inc .............................................. 505

ABLE OF

ASES

EPORTED

OURT OF

PPEALS

ASES

PEOPLE v BENSCH

Docket No. 341585. Submitted September 5, 2018, at Detroit. Decided

April 30, 2019, at 9:00 a.m. Leave to appeal denied 505 Mich 859

(2019).

Joseph R. Bensch pleaded guilty to operating a vehicle while

intoxicated, second offense, MCL 257.625(1), in the 2A District

Court. Defendant’s criminal convictions arose out of two separate

drunk-driving incidents over the course of approximately ﬁve

months, each of which resulted in its own district court case. In

both cases, defendant pleaded guilty to operating while intoxi-

cated, second offense, and defendant was sentenced for the

offenses on the same day. The district court, Laura J. Schaedler,

J., sentenced defendant to one year in the county jail in one of the

cases and to two years of probation with numerous conditions in

the other case. Immediately after the district court ruled, defense

counsel objected to the probationary sentence, arguing that

defendant could reject probation in favor of incarceration. The

district court denied the objection, and defendant appealed by

leave granted in the Lenawee Circuit Court. The circuit court,

Margaret M. S. Noe, J., reversed and remanded, holding that the

district court erred by barring defendant from rejecting probation

in favor of incarceration. The prosecution sought leave to appeal

in the Court of Appeals, and the Court of Appeals granted the

application.

The Court of Appeals held:

Under MCL 771.1(1), if a court determines that a convicted

defendant is not likely again to engage in an offensive or criminal

course of conduct and that the public good does not require that

the defendant suffer the penalty imposed by law, the court may

place the defendant on probation under the charge and supervi-

sion of a probation ofﬁcer. The Legislature has long described a

trial court’s decision to grant probation as “a matter of grace,” and

People v Peterson, 62 Mich App 258 (1975), articulated the rule

that a defendant may reject probation. In subsequent cases, the

underlying premise that a defendant consents to probation (and

may choose to reject it) informed the reasoning that warrantless-

search conditions of probation were constitutional because the

defendant—by accepting probation—agreed to waive the consti-

EOPLE V

ENSCH

tutional right to be free from unreasonable searches and seizures.

Accordingly, the rule that a defendant may reject probation was a

longstanding rule of law, and no compelling reason existed to

abandon that rule. Under the doctrine of stare decisis, principles

of law deliberately examined and decided by a court of competent

jurisdiction should not be lightly departed. Factors to consider in

determining whether to overrule a decision include whether the

decision at issue deﬁes practical workability, whether reliance

interests would work an undue hardship, and whether changes in

the law or facts no longer justify the questioned decision. In this

case, the prosecution did not present compelling reasons to depart

from the longstanding interpretation of MCL 771.1 announced in

Peterson: the prosecution did not identify any difﬁculties that

have occurred as a result of defendants being able to refuse

probation, and the prosecution’s argument that Peterson has

become an outdated nullity was not persuasive because while

some out-of-state jurisdictions do not allow a defendant to refuse

probation, numerous other jurisdictions agree that defendants

should have the choice to reject probation. Additionally, there was

no conﬂict between the general rule that probation may be

declined and a rule that even when a defendant “accepts” proba-

tion, he or she may still be granted a right by statute to decline a

speciﬁc provision of that probation. Accordingly, the rule an-

nounced in Peterson that a defendant may decline a sentence of

probation and instead seek a sentence of incarceration was

afﬁrmed.

Afﬁrmed and remanded for resentencing.

UKEL

, P.J., dissenting, would have held that Peterson was

incorrectly decided and that the majority’s justiﬁcations for

adhering to it were inadequate. The underlying rationale for the

Peterson Court’s decision was unclear; Peterson provided no

analysis beyond the one sentence stating that “[p]robation is a

matter of grace and rejectable, we think, at the option of the

probationer,” and that sentence appeared to be a mere supposi-

tion (“we think”) unsupported by any authority. Additionally, no

other cases stating that a defendant may veto probation con-

tained any discussion of the source or rationale of that rule. The

plain language of MCL 771.1 states that the court may place the

defendant on probation; MCL 771.1 contains no language pro-

viding that a defendant must consent to, and therefore may

veto, such a sentence. By ratifying the principle that a defen-

dant may overrule a sentencing court’s determination of what

“the public good” requires in regard to the imposition of proba-

2 328

ICH

1 [Apr

tion, the majority transferred one aspect of sentencing from

courts, where the Legislature has reposed sentencing authority,

to criminal defendants. Moreover, reliance on MCL 771.4, the

statutory provision containing the “matter of grace” language, to

support the validity of the Peterson rule was misplaced. In its

proper context, the “matter of grace” language means that a

defendant has no right to demand whatever is at issue, which in

the case of MCL 771.4 is the continuation of probation, and thus

the decision whether to terminate probation is committed solely

to the discretion of the trial court. A defendant has no involve-

ment in the decision whether to impose probation because (1) a

defendant has no right to such a sentence and therefore cannot

expect it, demand it, or approve or disapprove it, and (2) the

decision to impose a sentence of probation resides solely with the

trial court. The “matter of grace” language is merely another

way of saying that the granting of probation is a purely

discretionary decision by the trial court. Judge T

UKEL

therefore

would have held that the rule announced in Peterson necessarily

impinges on a judge’s range of options and, by affording to a

defendant a say in the decision to impose probation, mandates

that the ultimate decision involves considerations other than

those of the judge, as well as approval by someone other than the

judge, which contravenes the long-settled principle that the

decision whether to impose probation is committed to the trial

court. Moreover, there could not have been any reliance interest

by defendant in committing his second drunk-driving offense

such that he would have had an expectation that he could reject

probation; and even if defendant had had such a reliance

interest, it was one that was illegitimate, given his violation of

the criminal law, and thus should not be further endorsed by the

judiciary. Accordingly, Judge T

UKEL

would have overruled Peter-

son to the extent that it permits a defendant to veto a sentencing

court’s decision to impose a term of probation.

RIMINAL

— S

ENTENCING

— P

ROBATION

— D

EFENDANT

ECLINE

ROBATION AND

NSTEAD

EEK

NCARCERATION

Under MCL 771.1(1), if a court determines that a convicted defen-

dant is not likely again to engage in an offensive or criminal

course of conduct and that the public good does not require that

the defendant suffer the penalty imposed by law, the court may

place the defendant on probation under the charge and supervi-

sion of a probation ofﬁcer; when a court imposes a sentence of

probation, a defendant may decline the sentence of probation and

instead seek a sentence of incarceration.

2019] P

EOPLE V

ENSCH

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, and David Porter, Assis-

tant Attorney General, for the people.

State Appellate Defender (by Michael Dagher-

Margosian) for defendant.

Before: T

UKEL

, P.J., and B

ECKERING

and S

HAPIRO

, JJ.

HAPIRO

, J. The prosecution appeals by leave

granted

the circuit court’s ruling that defendant could

decline probation and instead be sentenced to incar-

ceration. The prosecution requests that we reject the

rule ﬁrst articulated in People v Peterson, 62 Mich App

258, 265; 233 NW2d 250 (1975), that permits criminal

defendants to refuse probation. In the absence of a

compelling reason to do so, we decline to overrule a

longstanding rule of law that has been repeatedly

relied on by this Court. Accordingly, we reafﬁrm

Peterson and afﬁrm the circuit court.

I. BACKGROUND

Defendant’s criminal convictions arose out of two

separate drunk-driving incidents over the course of

approximately ﬁve months, each of which resulted in

its own district court case. In both cases, defendant

reached a plea agreement whereby he pleaded guilty to

operating while intoxicated, second offense, MCL

257.625(1). Defendant was sentenced for the offenses

on the same day. The sentences imposed run concur-

People v Bensch, unpublished order of the Court of Appeals, entered

May 18, 2018 (Docket No. 341585).

We review de novo questions of law. People v Steele, 283 Mich App

472, 482; 769 NW2d 256 (2009).

4 328

ICH

1 [Apr

PINION OF THE

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rently.

In one of the cases, the district court sentenced

defendant to one year in the county jail.

In the other

case, the district court sentenced defendant to two

years of probation with numerous conditions. Immedi-

ately after the district court ruled, defense counsel

objected to the probationary sentence, arguing that “if

Mr. Bensch doesn’t wan[t] [to] be on probation . . . , I

don’t think the Court can put him . . . there.” The

district court denied the objection.

Defendant appealed by leave granted in the circuit

court, arguing that he could reject probation in favor of

incarceration under Peterson, 62 Mich App at 265.

Defendant contended that the district court erred by

forcing him to accept a probationary sentence in the

second case, thereby disregarding Peterson, which was

controlling under the doctrine of stare decisis. The

prosecutor, on the other hand, acknowledged that

Peterson was binding on lower courts but attempted to

factually distinguish it. The prosecutor also offered

several policy arguments for why defendants should

not be permitted to reject probation. After considering

the issue, the circuit court held that the district court

had erred by barring defendant from “waiv[ing] his

privileges to probation . . . .” Thus, the circuit court

reversed and remanded for resentencing.

II. DISCUSSION

If a court determines that a convicted defendant “is

not likely again to engage in an offensive or criminal

In Michigan, “concurrent sentencing is the norm. A consecutive

sentence may be imposed only if speciﬁcally authorized by statute.”

People v Brown, 220 Mich App 680, 682; 560 NW2d 80 (1996) (citation

omitted).

Defendant was to be released, after serving six months, into a

six-month inpatient treatment program.

2019] P

EOPLE V

ENSCH

PINION OF THE

OURT

course of conduct and that the public good does not

require that the defendant suffer the penalty imposed

by law, the court may place the defendant on probation

under the charge and supervision of a probation ofﬁ-

cer.”

MCL 771.1(1). The Legislature has long de-

scribed a trial court’s decision to grant probation as “a

matter of grace.” See People v Sattler, 20 Mich App 665,

669; 174 NW2d 605 (1969).

In Peterson, the defendant challenged the probation

condition requiring her to submit to warrantless

searches, i.e., searches that but for her probationary

status would have been unconstitutional. Peterson, 62

Mich App at 265. This Court acknowledged that the

defendant chose to accept the terms of probation:

“Probation is a matter of grace and rejectable, we

think, at the option of the probationer.” Id. The Court

nevertheless struck down the condition, determining

that despite the ability to reject probation, “the waiver

of protection against unreasonable searches and sei-

zures is so repugnant to the whole spirit of the Bill of

Rights as to make it alien to the essence of our form of

government.” Id. at 266. The Court concluded that a

“blanket search and seizure” provision amounts to a

bill of attainder for the period of probation. Id. at 265.

Judge D

ANHOF

dissented from this holding. His opin-

ion, which was later adopted by this Court, argued that

by accepting a sentence of probation carrying such a

condition, the defendant voluntarily waived her Fourth

Amendment rights. Id. at 270-272 (D

ANHOF

, P.J., concur-

ring in part and dissenting in part). In deﬁning this

approach, Judge D

ANHOF

agreed with the majority that

“probation is ‘rejectable’; that is, optional and essen-

tially voluntary.” Id. at 271. He explained, “A proba-

That statutory section was identical in all relevant respects at the

time Peterson was decided. MCL 771.1, as amended by 1961 PA 185.

6 328

ICH

1 [Apr

PINION OF THE

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tioner or parolee has given his consent in return for

more lenient treatment.” Id. Thus, while the Peterson

majority and dissent disagreed on whether a defendant

could waive the constitutional right to be free from

unreasonable searches, they agreed that a defendant

could decline probation.

If Peterson were the end of the story, we might be

willing to address the question as essentially a matter

of ﬁrst impression.

However, the rule that defendants

may reject probation has been accepted and relied on

in subsequent cases in which a defendant agreed to

probation but objected to a particular condition.

Not long after Peterson, the issue of warrantless

probation searches arose again in People v Richards,

76 Mich App 695, 699; 256 NW2d 793 (1977). Adopting

Judge D

ANHOF

’s analysis, we found that there was no

“constitutional barrier” to a warrantless-search condi-

tion of probation because the defendant had waived

objection to this condition by accepting probation.

We note that we are not bound by any rules of law announced in

Peterson because that case was decided before November 1, 1990. See

MCR 7.215(J)(1). However, while we are not “strictly required to follow

uncontradicted opinions from this Court decided before November 1,

1990,” those opinions are nonetheless “considered to be precedent and

entitled to signiﬁcantly greater deference than are unpublished cases.”

Woodring v Phoenix Ins Co, 325 Mich App 108, 114-115; 923 NW2d 607

(2018) (emphasis omitted). Further, “[a] published opinion of the Court of

Appeals has precedential effect under the rule of stare decisis.” MCR

7.215(C)(2).

The dissent argues that a defendant should not be permitted to

decline probation, a rule it unilaterally characterizes as the “probation

veto doctrine.” While a memorable turn of phrase, this characterization

is incomplete because it suggests that a defendant’s “veto” of probation

leaves him or her unpunished. To the contrary, the very rare defendant

who elects not to accept probation will be incarcerated. Similarly, we

reject as hyperbole the prosecution’s claim that the Peterson rule allows

a defendant to “dictate the terms of his own punishment.” The rule does

not allow a defendant to refuse a sentence of incarceration and select

probation or to choose his or her minimum and maximum terms.

2019] P

EOPLE V

ENSCH

PINION OF THE

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Similarly, in People v Hellenthal, 186 Mich App 484,

486; 465 NW2d 329 (1990),

we rejected a Fourth

Amendment challenge to a warrantless-search proba-

tion condition:

[A] waiver of one’s constitutional protections against unrea-

sonable searches and seizures may properly be made a

condition of a probation order where the waiver is reason-

ably tailored to a defendant’s rehabilitation. As Judge

ANHOF

recognized in his dissent in Peterson, “[a] proba-

tioner or parolee has given his consent in return for more

lenient treatment.” [Citations omitted.]

In other words, we again reasoned that the warrantless-

search condition of probation was constitutional be-

cause the defendant—by accepting probation—agreed

to waive the constitutional right to be free from unrea-

sonable searches and seizures.

Waiver is an intentional

relinquishment of a known right. People v Kammer-

aad, 307 Mich App 98, 117; 858 NW2d 490 (2014).

Thus, the underlying premise to Hellenthal is that a

defendant consents to probation and can choose to

reject it.

We again employed this analysis in People v Oswald,

208 Mich App 444, 446; 528 NW2d 782 (1995), in which

the defendant argued that a ﬁne imposed by the trial

court as a condition of probation was unauthorized. We

held that the ﬁne was authorized, but we also reasoned

that

had defendant found the term of probation to be overly

onerous, he could have declined the grant of probation,

Hellenthal is not binding on us because it was decided in August

1990. MCR 7.215(J)(1).

We note that the United States Supreme Court has since declined to

rule on whether a probationer’s consent to warrantless searches is

dispositive of Fourth Amendment issues. United States v Knights, 534

US 112, 118; 122 S Ct 587; 151 L Ed 2d 497 (2001).

8 328

ICH

1 [Apr

PINION OF THE

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notiﬁed the court that he would not abide by the terms of

probation, and submitted himself for sentencing directly

under the retail fraud statute, with its limitation on the

amount of ﬁne that may be imposed. [Id.]

Unpublished decisions of this Court have also relied on

the fact that a defendant agrees to probation in resolv-

ing challenges to orders of probation.

These decisions

are not binding precedent, MCR 7.215(C)(1), but it is

clear that the rule that a defendant can elect to reject

probation has been used by this Court (and others

) to

dispose of arguments made by defendants challenging

the terms of their probation. Under these circum-

stances, we decline to simply abandon that rule with-

out a compelling reason to do so.

“[U]nder the doctrine of stare decisis, principles of

law deliberately examined and decided by a court of

competent jurisdiction should not be lightly de-

parted.” City of Coldwater v Consumers Energy Co,

500 Mich 158, 172; 895 NW2d 154 (2017) (quotation

People v Loughner, unpublished per curiam opinion of the Court of

Appeals, issued May 20, 1997 (Docket No. 190286); People v Jan,

unpublished memorandum opinion of the Court of Appeals, issued

January 13, 1998 (Docket No. 196492).

See Brennan v Dawson, opinion of the United States District Court

for the Eastern District of Michigan, issued September 7, 2017 (Case No.

16-10119).

The dissent notes the published decisions relying on Peterson but

dismisses them because they “contain no discussion of the source of the

doctrine” other than two cases that relied on Judge D

ANHOF

’s partial

dissent, which, according to the dissent, was “deﬁcient.” Setting aside

the strength of Peterson’s legal analysis, the dissent ignores that this

Court has relied on the case to resolve challenges to conditions of

probation by reasoning that the defendant chose probation and therefore

cannot complain of its conditions. Notably, the dissent fails to address

the viability of these decisions if we eliminate the rationale on which

they rest. Further, we cannot simply reject the Peterson rationale when

a defendant relies on it and accept it when the prosecution relies on it.

2019] P

EOPLE V

ENSCH

PINION OF THE

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marks and citation omitted). “The application of stare

decisis is generally the preferred course, because it

promotes the evenhanded, predictable, and consistent

development of legal principles, fosters reliance on

judicial decisions, and contributes to the actual and

perceived integrity of the judicial process.” People v

Tanner, 496 Mich 199, 250; 853 NW2d 653 (2014)

(quotation marks and citation omitted). Factors to

consider in determining whether to overrule a deci-

sion include “whether the decision at issue deﬁes

‘practical workability,’ whether reliance interests

would work an undue hardship, and whether changes

in the law or facts no longer justify the questioned

decision.” Id. at 250-251 (quotation marks and cita-

tion omitted).

The prosecution does not identify any difﬁculties

that have occurred as a result of defendants being able

to refuse probation. Indeed, as a practical matter, we

think it is safe to say that the overwhelming majority

of criminal defendants gladly welcome probation over

incarceration and that the issue rarely arises. Further,

it is questionable whether a trial court can ﬁnd that a

defendant who does not want to participate in proba-

tion “is not likely again to engage in an offensive or

criminal course of conduct and that the public good

does not require that the defendant suffer the penalty

imposed by law . . . .” MCL 771.1(1). Nevertheless, the

prosecution argues that Peterson “is no longer good

law” because the three possible rationales for that

decision have been repudiated. We disagree.

The prosecution ﬁrst argues that the “probation-as-

contract theory,” in which the court and the proba-

tioner are thought to have arrived at an arm’s-length

bargain, has been rejected. Yet Peterson does not de-

scribe probation in contractual terms, and therefore

10 328 M

ICH

1 [Apr

PINION OF THE

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this purported development in the law does not provide

a basis to depart from that decision. Second, the

prosecution argues that Peterson and its progeny rest

on an outdated view of probation as being an “act of

grace” and that we should reject that view. However,

this argument runs afoul of the plain language of MCL

771.4, which provides that “[i]t is the intent of the

legislature that the granting of probation is a matter of

grace . . . .”

Third, the prosecution argues that proba-

tion is no longer considered a rehabilitative alternative

to incarceration and is instead considered solely as a

criminal punishment with the corresponding goals of

retribution and deterrence. We disagree with this

premise, but even accepting it as true, we fail to see

how this warrants a change in longstanding law. If a

defendant declines probation, the goals of the criminal

justice system can still be accomplished through incar-

ceration.

The prosecution also contends that caselaw from

other jurisdictions supports overruling Peterson. How-

ever, our review of that caselaw shows that states take

a variety of approaches toward this issue. Some states

allow a defendant to refuse probation. See, e.g., People

v Olguin, 45 Cal 4th 375, 379; 198 P3d 1 (2008); State

v Divan, 724 NW2d 865, 872; 2006 SD 105 (2006); State

v McCready, 234 Wis 2d 110, 114; 2000 WI App 68; 608

NW2d 762 (2000). Other states do not. See, e.g., State

v Pawling, 9 Neb App 824, 831; 621 NW2d 821 (2000);

State v Walton, 137 Ohio App 3d 450, 457; 738 NE2d

The prosecution also argues that the United States Supreme Court

rejected the notion that probation is an act of grace in Gagnon v

Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973). We disagree.

Gagnon did not reject the view that probation is a matter of grace; it only

rejected the argument that because probation is an act of grace, the

defendant is not entitled to any due process when the prosecution seeks

probation revocation. Id. at 782 n 4.

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1258 (2000); State v Estep, 854 SW2d 124, 127 (Tenn

Crim App, 1992). At least one jurisdiction expressly

provides by statute that “[a] person may not be put on

probation without his consent,” DC Code 16-710(a),

while other jurisdictions have statutes that expressly

provide that a defendant does not have the right to

reject probation, Ala Code § 15-22-50; Or Rev Stat

137.010(5). Given that overview, we do not agree with

the prosecution that Peterson has become an outdated

nullity. To the contrary, numerous states agree that

defendants should have the choice to participate in

probation. For those reasons, we are not persuaded to

overrule Peterson on the basis of out-of-state authority.

MCL 771.1, the statute allowing a trial court to

impose probation, has remained essentially the same

since Peterson was decided. However, the prosecution

contends that there are two probation programs in the

Code of Criminal Procedure (the Code), MCL 760.1 et

seq., that explicitly require a defendant’s permission.

From this, the prosecution argues that when the Leg-

islature wants to allow a defendant to refuse a sanc-

tion, it knows how to explicitly do so.

The ﬁrst probation program that the prosecution

relies on took effect in 2013 as the “probation swift and

sure sanctions act,” Chapter XIA of the Code. 2012 PA

616. In 2017, the Legislature amended that chapter to

include a subparagraph, which, according to the pros-

ecution, provides that a defendant may decline to

participate in this program. See MCL 771A.4(4)(a), as

added by 2017 PA 17. The prosecution is mistaken. The

statute contains no speciﬁc provision that allows a

defendant to decline the program. Rather, MCL

771A.4(4)(a) merely provides that if the jurisdiction in

which the defendant has been convicted does not have

a swift-and-sure probation program and the court

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wishes to place the defendant in such a program

operating in a different county, then the defendant

must agree to the change of jurisdiction to another

county.

The other probation program to which the prosecu-

tion refers us is the “special alternative incarceration

program,” MCL 771.3b, which was added to the proba-

tion chapter (Chapter XI) of the Code in 1988. 1988 PA

286. Relevant to this appeal, that statutory section

provides that “[a] person shall not be placed in a

program of special alternative incarceration unless the

person consents to the placement.” MCL 771.3b(6).

This provision is also inapposite. Special alternative

incarceration can only be imposed as a condition of

probation, and the statute permits a defendant to

object to that condition even if he otherwise “accepts”

probation. See MCL 771.3b(1) (providing that a special

alternative incarceration program may be imposed

“[i]n addition to any other terms or conditions of

probation provided for under this chapter”). We do not

see a conﬂict between the general rule that probation

may be declined and a rule that even when a defendant

“accepts” probation, he or she may still be granted a

right by statute to decline a speciﬁc provision of that

probation.

In sum, we conclude that the arguments made by

the prosecution are not compelling reasons to depart

from the longstanding interpretation of MCL 771.1

announced in Peterson. We therefore reafﬁrm the rule

that a defendant may decline a sentence of probation

and instead seek a sentence of incarceration.

Afﬁrmed and remanded to the trial court for resen-

tencing consistent with this opinion. We do not retain

jurisdiction.

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ECKERING

, J., concurred with S

HAPIRO

, J.

UKEL

, P.J. (dissenting). Is there any circumstance

under which a criminal defendant may veto a sentence

that the trial judge intends to impose and demand a

sentence more to the defendant’s liking? Reading the

Michigan Constitution and statutes, one would cer-

tainly think not. “[T]he ultimate authority to provide

for penalties for criminal offenses is constitutionally

vested in the Legislature.” People v Hegwood, 465 Mich

432, 436; 636 NW2d 127 (2001), citing Const 1963, art

4, § 45. “The authority to impose sentences and to

administer the sentencing statutes enacted by the

Legislature lies with the judiciary.” Id. at 436-437,

citing MCL 769.1(1). The majority, however, reafﬁrms

the rule ﬁrst enunciated in People v Peterson, 62 Mich

App 258, 265; 233 NW2d 250 (1975), that “[p]robation

is a matter of grace and rejectable, we think, at the

option of the probationer.” Because I believe that

Peterson was incorrectly decided and that the justiﬁ-

cations given by the majority for adhering to it are

inadequate, I respectfully dissent.

I. AUTHORITY TO IMPOSE A SENTENCE OF PROBATION

A. THIS COURT’S DECISION IN PETERSON

The precise question presented here is whether a

defendant who the trial court determines should be

sentenced to probation can “veto” the imposition of

probation and instead opt for a custodial sentence.

There does not seem to be a name for the doctrine at issue. For ease

of reference, this dissent refers to the proposition that a criminal

defendant has the authority to reject a probationary sentence that the

trial court intends to impose as the “probation-veto doctrine” or “veto

doctrine.” The majority’s claim that this terminology is somehow

“incomplete” because it supposedly suggests that a defendant can opt

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Such was the holding in Peterson, but the underlying

rationale for the decision is at best unclear; the Court

provided no analysis beyond the quoted sentence, and

that sentence appeared to be a mere supposition (“we

think”), unsupported by any authority.

out of all punishment is simply not correct, as this dissent’s framing of

the issue makes clear. Instead, this doctrine means what it says: a

defendant can unilaterally veto or decline probation. Neither this

phrase nor this opinion suggests that such a defendant could decline

other forms of punishment, and in fact the entire point of the case is

that it permits a defendant to choose another form of punishment in

lieu of probation.

While a defendant’s choice to elect imprisonment over probation might

seem counterintuitive, the interplay of Michigan law and the facts of a

particular case could make it quite rational from a defendant’s perspec-

tive. In Michigan, as the majority notes, “concurrent sentencing is the

norm,” and “[a] consecutive sentence may be imposed only if speciﬁcally

authorized by statute.” People v Brown, 220 Mich App 680, 682; 560

NW2d 80 (1996). Thus, for example, if a defendant was being sentenced

on two convictions, and if the maximum possible imprisonment for each

was one year, such a defendant may opt for two concurrent terms of

imprisonment, assuming no concurrent-sentencing exception existed,

instead of one term of imprisonment and one lengthier term of proba-

tion. In the concurrent-sentencing scenario, the defendant would be

“done” with his or her punishment at the end of one year at the latest;

in the other scenario, the defendant may have served a year in jail but

still might be subject, for many years afterward, to terms of probation

perceived to be onerous. Thus, the punishment in the latter scenario

would be more severe to that defendant because the normal beneﬁt of

probation, avoiding jail time, would not be realized. Indeed, the statute

at issue here authorizes consecutive sentencing for a second-offense

drunk-driving conviction, as in this case, and in fact requires that at

least some of the imposed sentence be served consecutively. See MCL

257.625(9)(b)(i) (authorizing “[i]mprisonment for not less than 5 days or

more than 1 year,” and “[n]ot less than 48 hours of the term of

imprisonment imposed . . . must be served consecutively”).

The partial dissent in Peterson also said: “As recognized by the

majority, probation is ‘rejectable’; that is, optional and essentially volun-

tary . . . .Aprobationer or parolee has given his consent in return for more

lenient treatment.” Peterson, 62 Mich App at 271 (D

ANHOF

, P.J., concur-

ring in part and dissenting in part). Judge D

ANHOF

provided no further

authority for that view than did the Peterson majority, instead simply

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Despite this lack of authority, the majority states

that “[t]he prosecution does not identify any difﬁculties

that have occurred as a result of defendants being able

to refuse probation. Indeed, as a practical matter, we

think it is safe to say that the overwhelming majority

of criminal defendants gladly welcome probation over

incarceration and that the issue rarely arises.” While it

is in fact likely that most defendants do prefer proba-

tion to a sentence of incarceration, whether the pros-

ecution has identiﬁed problems that have arisen as a

result of the veto doctrine is not relevant to whether it

is a proper interpretation of the law. The correct

resolution turns on legislative intent, which is itself

based on statutory language that expresses the Legis-

lature’s policy determinations, and we do not consider

or weigh those policy pronouncements. See Robinson v

Detroit, 462 Mich 439, 474; 613 NW2d 307 (2000)

ORRIGAN

, J., concurring) (“[A] Court exceeds the limit

of its constitutional authority when it substitutes its

policy choice for that of the Legislature[.]”).

In addition, the other cases from this Court stating

that a defendant may veto probation, which the

majority cites, also contain no discussion of the source

of the doctrine, other than that two of them cited

Judge D

ANHOF

’s partial dissent in Peterson, which

itself was deﬁcient for reasons already stated. See

People v Oswald, 208 Mich App 444, 446; 528 NW2d

782 (1995) (stating in dictum and without citing any

authority, “Indeed, had defendant found the term of

probation to be overly onerous, he could have declined

the grant of probation, notiﬁed the court that he

would not abide by the terms of probation, and

submitted himself for sentencing directly under the

[statute of conviction]”); People v Hellenthal, 186

assuming that a defendant had given consent and that by withholding

consent, a defendant could veto the term of probation.

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Mich App 484, 486; 465 NW2d 329 (1990) (quoting the

partial dissent in Peterson); People v Richards, 76

Mich App 695, 699; 256 NW2d 793 (1977) (adopting

without discussion Judge D

ANHOF

’s view in Peterson).

B. STATUTORY AUTHORITY REGARDING PROBATION

However, the availability of probation as a sentenc-

ing option for a particular offense is purely a legislative

determination. As our Supreme Court has noted,

“[T]he source of the trial court’s probation authority

[is] the Legislature.” People v McLeod, 407 Mich 632,

660; 288 NW2d 909 (1980) (opinion by R

YAN

, J.), citing

People v Davis, 392 Mich 221, 226; 220 NW2d 452

(1974); see also People v Marks, 340 Mich 495, 498; 65

NW2d 698 (1954) (stating that “[t]he authority of the

court” to impose a probationary sentence “must be

found in the statute”). And it has long been clear in

Michigan that the decision to impose a sentence of

probation “rests in the sound discretion of the trial

court.” McLeod, 407 Mich at 660 (opinion by R

YAN

, J.);

see also Marks, 340 Mich at 499. It is, of course, a

familiar tenet of statutory construction that we are to

effectuate the intent of the Legislature as set forth in

the statutory language used. See, e.g., People v Pink-

ney, 501 Mich 259, 268; 912 NW2d 535 (2018). “In

doing so, we examine the statute as a whole, reading

individual words and phrases in the context of the

entire legislative scheme. When a statute’s language is

unambiguous, . . . the statute must be enforced as

In note 12 of its opinion, the majority states that “the dissent ignores

that this Court has relied on the case to resolve challenges to conditions

of probation by reasoning that the defendant chose probation and

therefore cannot complain of its conditions.” However, the majority’s

point is circular—reliance on a defendant’s choice of probation is only

material if a defendant has a right to such a choice. That is the question

presented here, so its correctness cannot simply be assumed.

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written. No further judicial construction is required or

permitted.” Id. (quotation marks and citations omit-

ted).

1. MCL 771.1—VESTING POWER WITH “THE COURT”

The relevant statutory language is provided by MCL

771.1(1) and states:

In all prosecutions for felonies, misdemeanors, or ordi-

nance violations other than murder, treason, criminal

sexual conduct in the ﬁrst or third degree, armed robbery,

or major controlled substance offenses, if the defendant

has been found guilty upon verdict or plea and the court

determines that the defendant is not likely again to

engage in an offensive or criminal course of conduct and

that the public good does not require that the defendant

suffer the penalty imposed by law, the court may place the

defendant on probation under the charge and supervision

of a probation ofﬁcer.

It is thus readily apparent that by its plain terms,

MCL 771.1(1) places the decision of whether to impose

a term of probation on the sentencing court, without

reserving to a defendant any option of vetoing such a

sentence. That section provides that, except in regard

to certain offenses that the Legislature has determined

are ineligible for probation, and so long as other

conditions are met, “the court may place the defendant

on probation[.]” (Emphasis added.)

As MCL 771.1(1) is the basis of a court’s authority to

impose probation, it is noteworthy that the statute

contains no language providing that a defendant must

consent to, and therefore may veto, such a sentence.

Nor do any of the other statutory provisions dealing

with the authority to impose a term of probation

contain such consent or veto provisions. See, e.g., MCL

771.2(5) (“The court shall, by order to be entered in the

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case as the court directs by general rule or in each case,

ﬁx and determine the period and conditions of proba-

tion.”); MCL 771.2a(1) to (3) (providing that “the court”

may impose a term of probation of up to 5 years for

various offenses); MCL 771.3(2) (providing for terms

that “the court may require the probationer to do” as

conditions of probation). That is, of course, in accor-

dance with the normal and expected functioning of the

criminal justice system, under which “[a] judge of a

court having jurisdiction may pronounce judgment

against and pass sentence upon a person convicted of

an offense in that court. The sentence shall not exceed

the sentence prescribed by law.” MCL 769.1(1). By

ratifying the principle that a defendant may overrule a

sentencing court’s determination of what “the public

good” requires in regard to the imposition of probation,

MCL 771.1(1), the majority transfers one aspect of

sentencing from courts, where the Legislature has

reposed sentencing authority, to criminal defendants.

As an abstract principle, it is highly dubious that the

Legislature intended to cede the determination of what

constitutes “the public good” for sentencing purposes to

the defendant who was convicted of a particular of-

fense. That premise is conﬁrmed by the express lan-

guage of the statute, which makes clear that the

Legislature did not do so, given that it enacted lan-

guage providing that if “the court” makes a particular

determination about the public good, then “the court”

may impose a term of probation.

2. MCL 771.4—“MATTER OF GRACE”

The provision on which the majority expressly relies

is MCL 771.4. That section provides, in relevant part:

It is the intent of the legislature that the granting of

probation is a matter of grace conferring no vested right to

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its continuance. If during the probation period the sen-

tencing court determines that the probationer is likely

again to engage in an offensive or criminal course of

conduct or that the public good requires revocation of

probation, the court may revoke probation.

Peterson did not cite MCL 771.4 but referred to proba-

tion being “a matter of grace,” so it may well have had

the section in mind. In any event, reliance on MCL

771.4 to support the validity of the probation-veto

doctrine is misplaced.

To begin with, the majority quotes only a portion of

the statute, citing it for the proposition that “probation

is a matter of grace.” However, a proper reading of the

statute shows that it is MCL 771.1 through MCL 771.3

that commit to “the court” the decision whether to

sentence a defendant to probation. The statute then

goes on to provide the circumstances under which a

court that previously has sentenced a defendant to a

term of probation may cancel or revoke that probation.

MCL 771.4 addresses only that decision to cancel

probation—not to grant it in the ﬁrst instance—and

thus has no applicability regarding whether a defen-

dant may veto a sentencing court’s initial decision to

impose a term of probation.

Rather, MCL 771.4 pro-

vides that “the granting of probation is a matter of

grace conferring no vested right to its continuance,”

such that, if the court determines either that the

probationer is likely to again engage in criminal con-

The structure of the statute supports this reading as well. The ﬁrst

three sections (MCL 771.1 through MCL 771.3) deﬁne the circumstances

and procedure under which a court may impose probation, the ﬁrst step

in a sentencing determination leading to probation. MCL 771.4, the

fourth section, then deﬁnes the circumstances under which a court may

undo its previous actions. Thus, the structure of these sections corre-

sponds chronologically to how a probationary sentence works in prac-

tice.

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duct “or that the public good requires revocation of

probation, the court may revoke probation.” Thus,

although MCL 771.4 does not address the initial deci-

sion to impose probation, in the situation to which it

does apply—revocation—the “matter of grace” lan-

guage actually means the opposite of what the majority

says it means. In its proper context, the “matter of

grace” language means that a defendant has no right

to demand whatever is at issue, which in the case of

MCL 771.4 is the continuation of probation, and thus

the decision of whether to terminate probation is

committed solely to the discretion of the trial court.

But even if the majority is correct that the initial

decision of whether to impose probation is controlled

by the “matter of grace” language of MCL 771.4, it

would simply mean that defendant has no involvement

in the decision of whether to impose probation. That is

because (1) a defendant has no right to such a sentence

and therefore cannot expect it, demand it, or approve

or disapprove it; and (2) the decision to impose a

sentence of probation resides solely with the trial

court. In other words, the “matter of grace” language

merely is another way of saying that the granting of

probation is a purely discretionary decision by the trial

court, albeit in more archaic language owing to its 1947

roots.

The phrase “a matter of grace” was ﬁrst used in a

probation statute in 1947 PA 246, Chapter XI, § 4,

which provided, in relevant part:

It is the intent of the legislature that the granting of

probation to one convicted shall be a matter of grace

conferring no vested right to its continuance, if, during the

period of probation it shall appear to the satisfaction of the

sentencing court that the probationer is likely again to

engage in an offensive or criminal course of conduct, or

that the public good requires revocation or termination of

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probation previously granted. All probation orders, there-

fore, shall be revocable or terminable in any manner

which the court which imposed probation shall deem

applicable, either for any violation, or attempted violation

of any condition of probation, or for any other type of

antisocial conduct or action on the part of the proba-

tioner . . . . [Emphasis added.]

As is the case with the current version of the statute,

the “matter of grace” language related not to the initial

decision to impose probation but rather to its revoca-

tion. But even beyond that, in 1947, when the “matter

of grace” language was adopted, the term was under-

stood generally to mean simply the opposite of being a

matter of right. As noted, our job in construing a

statute is to effectuate the intent of the Legislature as

set forth in the statutory language used. In doing so,

we must use the understanding of a term as it was

known by the Legislature that enacted the statute. See

People v Bolling, 140 Mich App 606, 611-612; 364

NW2d 759 (1985) (construing the word “timber” as it

was understood by the Legislature in 1867, when the

statute at issue was enacted). Moreover, even though

the “matter of grace” language has been reenacted in

subsequent legislation, it is nevertheless the language

of the 1947 act that is controlling because “[t]he

provisions of any law or statute which is re-enacted,

amended or revised, so far as they are the same as

those of prior laws, shall be construed as a continua-

tion of such laws and not as new enactments.” MCL

8.3u.

In 1947, when the “matter of grace” language was

ﬁrst adopted, our courts uniformly interpreted the

phrase to mean that something was not a matter

of right but rather of judicial discretion. See, e.g.,

Worsham v McCall, 259 Mich 630, 632; 244 NW 183

(1932) (“The remedy of speciﬁc performance is a matter

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of grace rather than of right.”); Harmon v Muirhead,

247 Mich 614, 615; 226 NW 713 (1929) (“Speciﬁc

performance is a matter of grace, not of right.”); Stuart

v Gonyea, 246 Mich 109, 112; 224 NW 386 (1929) (“It is

only a matter of grace and not a matter of right.”); see

also Black’s Law Dictionary (3d ed) (deﬁning “grace” as

“commonly used in contradistinction to ‘right’ ”). And

that point accords exactly with what our Supreme

Court has long held—as the majority notes—that the

decision to impose a sentence of probation “rests in the

sound discretion of the trial court.” McLeod, 407 Mich

at 660 (opinion by R

YAN

, J.); see also Marks, 340 Mich

at 499. In other words, as used in the probation

statute, the term “a matter of grace” in 1947 meant the

same thing that “sound discretion of the trial court”

means today.

Thus, the majority’s position that a trial court’s

“discretion” nevertheless is dependent on a defendant’s

approval and therefore is subject to a defendant’s veto

is untenable; none of the cases from our Supreme

Court so much as hints that a trial court’s discretion-

ary authority over the decision to impose probation is

so limited. Indeed, if that were the case, the use of the

term “discretion” to describe the trial court’s authority

would be self-contradictory, because such conditional

discretion would not constitute discretion at all. See

Sparks v Sparks, 440 Mich 141, 149 n 7; 485 NW2d 893

(1992), quoting Langnes v Green, 282 US 531, 541; 51

S Ct 243; 75 L Ed 520 (1931) (“ ‘The term “discretion”

denotes the absence of a hard and fast rule. When

invoked as a guide to judicial action it means a sound

discretion, that is to say, a discretion exercised not

arbitrarily or wilfully, but with regard to what is right

and equitable under the circumstances and the law,

and directed by the reason and conscience of the judge

to a just result.’ ”) (ellipsis omitted; emphasis added).

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The veto doctrine necessarily impinges on a judge’s

range of options and, by affording to a defendant a say

in the decision to impose probation, mandates that the

ultimate decision involves considerations other than

those of the judge, as well as approval by someone

other than the judge. Accordingly, the veto doctrine

transforms a judge’s “discretion” into something that

falls well short of “the reason and conscience of the

judge” leading “to a just result.” Langnes, 282 US at

541. The veto doctrine therefore contravenes the long-

settled principle that the decision whether to impose

probation is committed to the trial court, whether one

uses the modern term “discretion” or the more old-

fashioned phrase “matter of grace” to describe that

authority, because in this context the two terms mean

the same thing.

II. STARE DECISIS

The majority correctly notes that we are not re-

quired to follow Peterson because it was issued before

November 1, 1990. MCR 7.215(J)(1). The majority,

citing Woodring v Phoenix Ins Co, 325 Mich App 108,

114-115; 923 NW2d 607 (2018), notes that such opin-

ions are “nonetheless ‘considered to be precedent and

entitled to signiﬁcantly greater deference than are

unpublished cases.’ ” The majority also cites MCR

On appeal, the prosecution argues three other reasons justifying the

overruling of Peterson: (1) probation as contract theory is no longer

viable, (2) probation as “a matter of grace” is based on an outmoded view,

and (3) probation no longer is viewed as a tool of rehabilitation.

However, in light of the authority to impose probation being purely

legislative, any analysis of the validity of the probation-veto doctrine

properly begins and ends with statutory construction; thus, a court

properly ought not consider these policy concerns the prosecution raises.

Moreover, in determining whether to adhere to the rule of Peterson, it

makes no sense to rely on rationales not provided by Peterson itself.

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7.215(C)(2) in pointing out that “ ‘[a] published opinion

of the Court of Appeals has precedential effect under

the rule of stare decisis.’ ”

Stare decisis is generally “ ‘the preferred course

because it promotes the evenhanded, predictable, and

consistent development of legal principles, fosters reli-

ance on judicial decisions, and contributes to the actual

and perceived integrity of the judicial process.’ ”

Pohutski v City of Allen Park, 465 Mich 675, 693; 641

NW2d 219 (2002) (quotation marks and citation omit-

ted). Before overruling a prior decision, a court must be

convinced “ ‘not merely that the case was wrongly

decided, but also that less injury will result from

overruling than from following it.’ ” Id. (citation omit-

ted).

At the same time, “stare decisis is a principle of

policy, not an inexorable command.” Id. at 694. As

United States Supreme Court Justice Louis Brandeis

put it, “Stare decisis is usually the wise policy, because

in most matters it is more important that the appli-

cable rule of law be settled than that it be settled

right.” Burnet v Coronado Oil & Gas Co, 285 US 393,

406; 52 S Ct 443; 76 L Ed 815 (1932) (Brandeis, J.,

dissenting), majority opinion overruled in part on other

grounds by Helvering v Mountain Producers Corp, 303

US 376, 378 (1938). Nevertheless, “stare decisis is not

to be applied mechanically to forever prevent the Court

from overruling earlier erroneous decisions determin-

ing the meaning of statutes.” Robinson, 462 Mich at

463. In Robinson, our Supreme Court set forth four

factors that courts must consider before overruling a

prior decision: (1) whether the earlier case was wrongly

decided, (2) whether the decision deﬁes “practical

workability,” (3) whether reliance interests would work

an undue hardship, and (4) whether changes in the law

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or facts no longer justify the questioned decision. Id. at

464.

In considering the reliance interest, courts consider

“whether the previous decision has become so embed-

ded, so accepted, so fundamental, to everyone’s expec-

tations that to change it would produce not just read-

justments, but practical real-world dislocations.” Id. at

466. However, our Supreme Court also has noted that

it is well to recall in discussing reliance, when dealing

with an area of the law that is statutory . . . , that it is to

the words of the statute itself that a citizen ﬁrst looks for

guidance in directing his actions. This is the essence of the

rule of law: to know in advance what the rules of society

are. Thus, if the words of the statute are clear, the actor

should be able to expect, that is, rely, that they will be

carried out by all in society, including the courts. In fact,

should a court confound those legitimate citizen expecta-

tions by misreading or misconstruing a statute, it is that

court itself that has disrupted the reliance interest. When

that happens, a subsequent court, rather than holding to

the distorted reading because of the doctrine of stare

decisis, should overrule the earlier court’s misconstruc-

tion. The reason for this is that the court in distorting the

statute was engaged in a form of judicial usurpation that

runs counter to the bedrock principle of American consti-

tutionalism, i.e., that the lawmaking power is reposed in

the people as reﬂected in the work of the Legislature, and,

absent a constitutional violation, the courts have no

legitimacy in overruling or nullifying the people’s repre-

sentatives. Moreover, not only does such a compromising

by a court of the citizen’s ability to rely on a statute have

no constitutional warrant, it can gain no higher pedigree

as later courts repeat the error. [Id. at 467-468; accord

Pohutski, 465 Mich at 694-695.]

In the criminal-law context, reliance interests often

will carry little weight in determining whether to

overrule an incorrectly decided precedent. This is so

because “to have reliance the knowledge must be of the

26 328 M

ICH

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, P.J.

sort that causes a person or entity to attempt to

conform his conduct to a certain norm before the

triggering event.” Robinson, 462 Mich at 467. However,

“[t]he nature of a criminal act deﬁes any argument that

offenders attempt to conform their crimes—which by

deﬁnition violate societal and statutory norms—to a

legal test established by [previous judicial decisions].”

People v Gardner, 482 Mich 41, 62; 753 NW2d 78

(2008). Moreover, to the extent such earlier judicial

decisions “implicate reliance interests, such interests

weigh in favor of overruling them. Michigan citizens

and prosecutors should be able to read the clear words

of the statutes and ‘expect that they will be carried out

by all in society, including the courts.’ ” Id., quoting

Robinson, 462 Mich at 467 (ellipsis omitted).

In sum, “no person could conceivably have relied on

[the veto doctrine as enunciated in Peterson] to his or

her detriment. That is, we cannot conceive that anyone

has committed a [drunk-driving offense] on the basis

that, under [Peterson], he or she could only be” sen-

tenced to probation with his or her consent. People v

Ream, 481 Mich 223, 240-241; 750 NW2d 536 (2008)

(bracketed material added to correspond with the facts

of this case).

In this case, it is clear that Peterson should be

overruled. For the reasons already stated, the doctrine

it enunciated is contrary to the clear statutory direc-

tive under which the Legislature has given the author-

ity to the courts to impose a probationary sentence,

and nowhere has it afforded a defendant the power to

refuse such a sentence. Moreover, for the reasons

stated by our Supreme Court in Gardner and Ream,

there could not have been any reliance interest by

defendant in committing his second drunk-driving

offense, such that he would have had an expectation

2019] P

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, P.J.

that he could reject probation; and even if defendant

had had such a reliance interest, it is one that is

illegitimate given his violation of the criminal law, and

thus it should not be further endorsed by the judiciary.

For these reasons, I would hold that Peterson is

incorrect to the extent that it permits a defendant to

veto a sentencing court’s decision to impose a term of

probation. I would vacate the decision of the circuit

court and remand to the trial court for resentencing.

28 328 M

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PEOPLE v EDWARDS

Docket No. 344541. Submitted February 5, 2019, at Grand Rapids.

Decided May 7, 2019, at 9:00 a.m.

In an interlocutory appeal in this homicide case, defendant Wil-

liam D. Edwards appealed the Berrien Circuit Court’s pretrial

orders denying his motions to (1) admit evidence of the decedent

Novena Mathis’s previous speciﬁc act of violence against him,

(2) admit evidence of Mathis’s speciﬁc acts of violence against

third persons, and (3) exclude evidence of Edwards’s daughter’s

allegation that he sexually assaulted her when she was a child.

Edwards lived with Mathis, a woman with whom Edwards had

two children. Late one night in January 2018, their daughter

and her two children moved into the home Edwards and Mathis

shared, and Edwards became angry, gathered his belongings,

and asked Mathis to give him a ride. Mathis’s body was later

found in her car in a parking lot. Edwards told police detectives

that he and Mathis had stopped in the parking lot and argued

over Mathis’s decision to allow their daughter to move into the

home. Edwards admitted that years earlier his daughter had

accused him of criminal sexual conduct and that he had been

forced to move out at that time because he could not live in the

same house with her. Edwards explained that the argument had

escalated and when Mathis reached for her purse, Edwards

pulled out a gun and shot her. Edwards told the detectives that

he knew that Mathis had a hatchet in her purse, that he thought

she intended to use it on him, and that he killed her in

self-defense. Edwards moved in limine for the admission of

evidence of an argument he and Mathis had in December

2017—Mathis attacked Edwards with a hatchet and severely

injured him, resulting in his hospitalization. Edwards also

moved for the admission of evidence of speciﬁc acts of violence

and aggression by Mathis against third persons about which

Edwards had knowledge. The court, Donna B. Howard, J., ruled

inadmissible Mathis’s speciﬁc acts of violence and aggression

against third parties and against Edwards, holding that only

evidence of Mathis’s reputation for violence was admissible. The

court further ruled that the daughter’s allegation of sexual

assault against Edwards was admissible because it was proba-

EOPLE V

DWARDS

tive of his motive for shooting Mathis and its probative value

was not substantially outweighed by the danger of unfair

prejudice.

The Court of Appeals held:

1. Under MRE 404(a)(2), when self-defense is an issue in a

charge of homicide, evidence of the decedent’s character trait of

aggression may be admissible. A person’s character may be

shown under MRE 405 by reputation or opinion evidence

(Subrule (a)) or by evidence of speciﬁc instances of conduct

(Subrule (b)). Evidence of a decedent’s violent character in the

form of reputation evidence is admissible, even if the decedent’s

reputation was unknown to the defendant, to show the dece-

dent’s probable aggression and act of violence at the time the

decedent was killed. In contrast, reputation evidence may not be

used to prove the defendant’s state of mind (apprehension of

harm) unless the defendant knew about the decedent’s charac-

ter at the time of the decedent’s death. Edwards sought to

introduce evidence of Mathis’s speciﬁc act of violence against

him—the December 2017 assault with a hatchet—to establish

an element of his claim of self-defense. That is, Edwards sought

to show that he had a reasonable apprehension of harm because

he knew that Mathis carried a hatchet in her purse and had

previously injured him with it. The evidence of the December

2017 assault was directly relevant to an ultimate issue in

Edwards’s claim of self-defense in accordance with admission

under MRE 405(b). Therefore, the trial court abused its discre-

tion by excluding the admissible speciﬁc-acts evidence of the

December 2017 hatchet assault.

2. Edwards also sought to introduce evidence of seven sepa-

rate assaults that Mathis reportedly perpetrated on members of

her family and on Edwards’s ex-girlfriend. Mathis’s speciﬁc acts

of violence and aggression against third parties occurred years

before the instant incident, but Edwards was aware of them and

argued that the assaults were admissible at trial to support his

honest and reasonable belief that he was in imminent danger of

being attacked and severely injured by Mathis and that his use

of force was necessary to prevent his own death or serious bodily

injury. The trial court misconstrued Edwards’s argument as

asserting that the assaults were admissible to prove Mathis’s

reputation for violence. Although speciﬁc acts of violence or

aggression are not admissible to establish that a victim was the

aggressor, speciﬁc acts may establish a defendant’s reasonable

apprehension of harm under MRE 405(b). The trial court was

required to examine each speciﬁc act to determine its admissi-

30 328

ICH

29 [May

bility on the basis of how it might have affected Edwards’s state

of mind at the time of the shooting. On remand, the trial court

must engage in a full evidentiary analysis of each of Mathis’s

speciﬁc acts of violence against third persons to determine each

act’s admissibility.

3. MRE 404(b)(1) prohibits the admission of evidence of

other crimes, wrongs, or acts to prove the character of a person

in order to show action in conformity therewith. Other-acts

evidence may be admissible, however, if (1) it is offered for a

proper purpose, i.e., something other than a character-to-

conduct theory; (2) it is relevant under MRE 402, as enforced by

MRE 104(b), to an issue or fact of consequence at trial; and (3)

the probative value of the evidence is not substantially out-

weighed by its potential for undue or unfair prejudice under

MRE 403. The prosecution argued that the daughter’s alleged

sexual assault had nothing to do with Edwards’s propensity to

commit the charged offenses, but admission of the evidence of

the assault would establish that Edwards had a motive for

killing Mathis. The prosecution offered the evidence for a proper

purpose—to show motive—and explained the relevance of the

evidence. Speciﬁcally, the prosecution explained, and the record

supported, that (1) on the day of the incident, the daughter

moved into the home shared by Edwards and Mathis; (2)

Edwards became angry at Mathis for allowing the daughter to

move into the home because the daughter had made the previ-

ous allegation of sexual assault, and Edwards could not live in

the same house with her; and (3) Edwards directed his anger at

Mathis and killed her out of his anger over the situation. The

trial court then properly applied the test in MRE 403, ruling

that the probative value of the evidence was not substantially

outweighed by the danger of unfair prejudice given that the

evidence was highly probative of the circumstances that led to

the offenses. Accordingly, the trial court did not abuse its

discretion by determining that the evidence was admissible.

Afﬁrmed in part, reversed in part, vacated in part, and

remanded.

Judge S

AWYER

concurred in the result only.

VIDENCE

— S

ELF

-D

EFENSE

— W

HEN

HARACTER

S AN

LEMENT OF THE

EFENSE

— A

DMISSION OF

PECIFIC

CTS

In a homicide case involving a claim of self-defense, when character

is an element of the defense, speciﬁc acts of violence or aggression

by the decedent are admissible under MRE 405(b) to establish the

defendant’s reasonable apprehension of harm.

2019] P

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Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, Michael J. Sepic, Pros-

ecuting Attorney, and Patricia T. Ceresa, Assistant

Prosecuting Attorney, for the people.

Berrien County Public Defender (by Christopher

Renna) for defendant.

Before: M

ETER

, P.J., and S

AWYER

and C

AMERON

, JJ.

AMERON

, J. In this interlocutory appeal in this

homicide case, defendant challenges the trial court’s

pretrial orders denying his motions to admit evidence

of the decedent’s speciﬁc acts of violence against

defendant and against third persons and to exclude

evidence of defendant’s daughter’s allegation of crimi-

nal sexual conduct by defendant. We reverse the trial

court’s ruling regarding evidence of the decedent’s

speciﬁc acts of violence against defendant, vacate the

trial court’s ruling regarding evidence of the dece-

dent’s speciﬁc acts of violence against third persons,

and afﬁrm the trial court’s other evidentiary ruling

involving the allegation of criminal sexual conduct.

Defendant lived with the decedent, Novena Mathis,

a woman with whom defendant had two children in

common. On January 7, 2018, just after midnight,

their daughter and her two children moved into the

decedent’s home. When the daughter arrived, defen-

dant became angry, gathered his belongings, and

asked the decedent to give him a ride. The decedent

told the daughter that she would be back shortly, but

that was the last time the daughter saw the decedent

alive.

Family members reported the decedent missing, and

the police later found her body in her car in a parking

lot. Her purse, which held a small hatchet, was re-

32 328 M

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trieved from the car. Detectives investigated and inter-

viewed defendant. Defendant told the detectives that

he and the decedent stopped the car in a parking lot

and argued over the decedent’s decision to allow their

daughter to move into the home. Defendant admitted

to the detectives that his daughter had accused him of

criminal sexual conduct years earlier and that he had

been forced to move out because he could not live in the

same house with her. Defendant admitted that his

daughter’s move into the home made him angry and

caused him to get into the argument with the decedent.

He also explained that their argument escalated and

that when the decedent reached for her purse, defen-

dant pulled out a gun and shot her. Defendant told the

detectives that he knew that the decedent had a

hatchet in her purse and that he thought she intended

to use it on him.

Defendant claims that he killed the decedent in

self-defense. Defendant moved in limine for the admis-

sion of evidence of an incident that occurred during an

argument that defendant had with the decedent on

December 7, 2017, in which the decedent attacked him

with a hatchet and severely injured him, resulting in his

hospitalization. Defendant also moved for admission of

speciﬁc acts of violence and aggression by the decedent

against third persons about which he had knowledge.

The trial court ruled inadmissible the speciﬁc acts of

violence and aggression by the decedent. Instead, the

trial court held that only evidence of the decedent’s

reputation for violence was admissible—a much more

restrictive ruling.

Defendant argues that the trial court erred by

denying the admission of all speciﬁc-acts evidence

because such evidence had relevance to defendant’s

claim of self-defense. We partly agree.

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We review for an abuse of discretion a trial court’s

decision to admit or exclude evidence. People v Dobek,

274 Mich App 58, 93; 732 NW2d 546 (2007). We review

de novo a trial court’s interpretation of the Michigan

Rules of Evidence. Id. A trial court has abused its

discretion if its decision falls outside the range of

reasonable and principled outcomes. People v Babcock,

469 Mich 247, 269; 666 NW2d 231 (2003).

The admissibility of character evidence is governed

by MRE 404 and MRE 405. MRE 404 provides in

relevant part:

(a) Character evidence generally. Evidence of a person’s

character or a trait of character is not admissible for the

purpose of proving action in conformity therewith on a

particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of

character offered by an accused, or by the prosecution to

rebut the same; or if evidence of a trait of character of the

alleged victim of the crime is offered by the accused and

admitted under subdivision (a)(2) . . . ;

(2) Character of alleged victim of homicide. When

self-defense is an issue in a charge of homicide, evidence of

a trait of character for aggression of the alleged victim of

the crime offered by an accused . . . .

MRE 405 provides the methods of proving character:

(a) Reputation or opinion. In all cases in which evidence

of character or a trait of character of a person is admis-

sible, proof may be made by testimony as to reputation or

by testimony in the form of an opinion. On cross-

examination, inquiry is allowable into reports of relevant

speciﬁc instances of conduct.

(b) Speciﬁc instances of conduct. In cases in which

character or a trait of character of a person is an essential

element of a charge, claim, or defense, proof may also be

made of speciﬁc instances of that person’s conduct.

34 328

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In People v Harris, 458 Mich 310, 314-317; 583

NW2d 680 (1998), a homicide case, the Michigan

Supreme Court held that evidence of the violent char-

acter of the decedent in the form of reputation evidence

is admissible, even if unknown to the defendant, to

show the decedent’s probable aggression and act of

violence at the time the decedent was killed. Our

Supreme Court explained, however, that reputation

evidence could not be used to prove the defendant’s

state of mind unless the defendant knew about the

decedent’s character at the time:

[W]here a defendant charged with murder asserts that he

killed in self-defense, his state of mind at the time of the

act is material because it is an important element in

determining his justiﬁcation for his belief in an impending

attack by the deceased. The reputation of the deceased for

a violent or turbulent disposition is a circumstance that

would cause such a belief. However, unlike evidence

tending to show that the victim was the aggressor, the

deceased’s violent reputation must be known to the defen-

dant if he is to use it to show that he acted in self-defense.

Reputation in the neighborhood where both live is sufﬁ-

cient with nothing more. The strength of the deceased as

well as his habitual carrying of weapons or his possession

of them at the time of the affray, if known to the defen-

dant, should be considered as properly affecting his appre-

hensions. The purpose of this evidence is to show the

defendant’s state of mind; therefore, it is obvious that the

victim’s character, as affecting the defendant’s apprehen-

sions, must have become known to him, otherwise it is

irrelevant. [Id. at 316-317 (quotation marks and citations

omitted).]

Our Supreme Court also distinguished character

evidence used in relation to an ultimate issue in a

case from character evidence used as circumstantial

evidence of an act. Id. at 317. The Supreme Court

explained that in cases “[w]here character is ‘in issue,’

2019] P

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the character of a person may be an element of the . . .

defense.” Id. at 318. In such cases, “[MRE] 405 allows

speciﬁc instances of violence to be admitted . . . .” Id. at

319. The Harris Court cited this Court’s decision in

People v Cooper, 73 Mich App 660; 252 NW2d 564

(1977), for the well-settled law that speciﬁc acts of

aggression by the decedent are admissible to establish a

defendant’s reasonable apprehension of harm.

In cases where the decedent’s character was not an

essential element and “in issue,” our Supreme Court

clariﬁed that the general rule applied, and the dece-

dent’s character “may not be shown by speciﬁc in-

stances of conduct . . . .” Harris, 458 Mich at 319. Our

Supreme Court explained:

As a general rule, the character of the victim may not

be shown by speciﬁc instances of conduct unless those

instances are independently admissible to show some

matter apart from character as circumstantial evidence of

the conduct of the victim on a particular occasion.

“[W]hen character is not an essential element, it

may be shown only by reputation or opinion evi-

dence. . . . Hence, construed literally, Rule 405 does

not permit a defendant to use speciﬁc instances to

show that the victim was the aggressor since the

aggressive character of the victim is not an essential

element of the defense of self-defense since the

aggressive character of the victim is introduced as

circumstantial evidence to show that the victim

committed the ﬁrst or primary act of aggression

against the defendant, which is to say that the

defense of self-defense in this situation makes an act

of the victim, rather than a trait of the victim’s

character, the material issue.” [Id. (citation omitted;

alteration in original).]

Therefore, the rule enunciated in Harris is twofold.

First, evidence of a victim’s aggressive character is

36 328 M

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admissible in the form of reputation evidence, even if

the defendant does not have knowledge of the decedent’s

character, to show that the decedent was the probable

aggressor. With that said, evidence of the decedent’s

reputation that is not known to the defendant is inad-

missible to prove an essential element of self-defense,

e.g., a reasonable apprehension of harm. Second, evi-

dence of the decedent’s speciﬁc acts of violence is admis-

sible only to prove an essential element of self-defense,

such as a reasonable apprehension of harm.

In this case, defendant sought the admission of

evidence that fell within the category of speciﬁc-acts

evidence discussed and distinguished in Harris, i.e.,

speciﬁc-acts evidence used to show an essential ele-

ment of self-defense. Application of the analysis articu-

lated in Harris to the facts of this case establishes that

the trial court erred because it failed to differentiate

between the evidentiary nuances set forth in Harris.

Defendant sought the admission of evidence of the

decedent’s speciﬁc act of violence committed against

him personally: the decedent’s alleged December 2017

assault with the hatchet that resulted in defendant’s

hospitalization. Defendant sought admission of this

speciﬁc-acts evidence to establish an element of his

claim of self-defense—that he had a reasonable appre-

hension of harm from the decedent because he knew she

carried a hatchet in her purse and had recently injured

him with it. Defendant claimed that the decedent’s

recent attack caused him to fear imminent harm when

the decedent reached for her purse just before he shot

her.

To prove that he acted in self-defense, defendant had

to present evidence that he had a reasonable belief that

he had to use deadly force to prevent his own death or to

prevent great bodily harm to himself. Cooper, 73 Mich

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App at 663-664. As explained in Harris, under MRE

405(b), the speciﬁc-acts evidence of the decedent’s vio-

lent assault placed the decedent’s character in issue.

This evidence, if admitted, would directly affect defen-

dant’s ability to prove that he acted in self-defense on

the basis of his reasonable apprehension of imminent

bodily injury or death. Unlike the defendant in Harris,

who did not have direct knowledge of speciﬁc acts of

aggression and who sought the admission of evidence of

the decedent’s general reputation to establish that the

decedent probably acted aggressively at the time he was

killed, defendant’s evidence in this case is directly

relevant to an ultimate issue in his defense.Accordingly,

the trial court abused its discretion by excluding this

admissible speciﬁc-acts evidence.

Defendant also sought the admission of evidence of

speciﬁc acts of violence and aggression by the decedent

against third persons years before the incident. He

ﬁled a motion in limine to admit seven separate

assaults that the decedent reportedly perpetrated on

members of her family and on defendant’s ex-

girlfriend. The alleged prior assaults ranged from

relatively minor harassment that resulted in the issu-

ance of a PPO

18 years ago to more recent physical

assaults. During the motion hearing, defense counsel

asserted that defendant was personally aware of these

prior assaults and further argued that these assaults

were admissible at trial to support defendant’s claim

that he honestly and reasonably believed that he was

in imminent danger of being attacked and severely

injured by the decedent. Depending on the nature and

timing of the prior assaults, defendant may very well

have presented a recognized basis to admit speciﬁc-

acts evidence under MRE 405(b).

Personal protection order.

38 328

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However, the trial court misconstrued defendant’s

legal argument and denied defendant’s motion to ad-

mit the evidence without any individualized analysis.

In summarily denying defendant’s motion to admit the

evidence, the trial court seems to have concluded that

defendant believed that he was entitled to introduce

speciﬁc acts of conduct to prove the decedent’s reputa-

tion for violence. If that were the case, the trial court’s

exclusion of speciﬁc-acts evidence would be on solid

legal ground. MRE 405(a). But, as previously stated,

defendant’s theory of admission was to support his

assertion that he honestly and reasonably believed

that his use of force was necessary to prevent his own

death or bodily injury. Therefore, the trial court was

required to examine each allegation and then deter-

mine its admissibility. The trial court did not engage in

any such examination. Instead, as the following ex-

cerpt from the motion hearing reveals, the trial court

was uncertain about our Supreme Court’s decision in

Harris, and as a result, the trial court never speciﬁ-

cally addressed the admissibility of each speciﬁc act on

the merits:

[Defense Counsel]: I think the caselaw is that, speciﬁc

acts of aggression are admissible to the extent that [de-

fendant] is aware of them at the time that the shooting

happens, because those speak to his honest—his reason-

ableness of—the reasonableness of his belief that the

other person would act violently.

The Court: You think that’s what People v Harris says?

[Defense Counsel]: That’s exactly what I think People v

Harris says.

The Court: Really? Where—Where is that? Where do

they say that?

After additional discussion about the holding of Harris,

the trial court issued its ruling: “So, I am granting

2019] P

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[defendant’s] motion in part, as to the reputation

evidence only, denied as to the evidence of speciﬁc acts,

or evidence of violence, based on the holding in People

v Harris.” Thus, the trial court, by misconstruing

defendant’s argument, concluded that under Harris, a

defendant cannot introduce speciﬁc acts of violence as

reputation evidence. While this is certainly true under

Harris, defendant was not in this instance requesting

the use of reputation evidence. Defendant sought the

admission of speciﬁc acts of violence by the decedent

that he knew about at the time of the shooting to show

his reasonable apprehension of harm. See Harris, 458

Mich at 319 (relying on People v Farrell, 137 Mich 127;

100 NW 264 (1904), for the proposition “that speciﬁc

acts may not be shown to establish that the victim was

the aggressor,” but speciﬁc acts “may be shown to

establish reasonable apprehension of harm”).

We order the trial court on remand to engage in a

full evidentiary analysis as to each of the decedent’s

speciﬁc acts of violence against third persons to deter-

mine its admissibility. Importantly, while the evidence

defendant seeks to admit may be admissible under

MRE 404(a) and MRE 405(b), the trial court never

reached the question of relevancy and undue prejudice.

Under MRE 401, relevant evidence is “evidence having

any tendency to make the existence of any fact that is

of consequence to the determination of the action more

probable or less probable than it would be without the

evidence.” On remand, the trial court should ﬁrst

determine whether any of the decedent’s violent acts

against third persons are relevant to the self-defense

claim. The trial court should then determine whether

the evidence is admissible under MRE 403. Under

MRE 403, relevant evidence may be excluded if the

danger of unfair prejudice substantially outweighs its

probative value. In determining unfair prejudice,

40 328 M

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courts may consider a number of factors as enunciated

in People v Watkins, 491 Mich 450, 487-488; 818 NW2d

296 (2012), such as whether the speciﬁc-acts evidence

is temporally remote and has a causal connection.

Defendant also argues that the trial court erred by

not excluding evidence of his alleged criminal sexual

conduct against his daughter as inadmissible other-

acts evidence under MRE 404(b). We disagree.

Other-acts evidence is governed by MRE 404(b)(1),

which provides:

Evidence of other crimes, wrongs, or acts is not admis-

sible to prove the character of a person in order to show

action in conformity therewith. It may, however, be admis-

sible for other purposes, such as proof of motive, opportu-

nity, 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.

In Dobek, 274 Mich App at 85-86, this Court consid-

ered the admissibility of other-acts evidence and

stated:

Evidence of other acts may be admitted under MRE

404(b)(1) if (1) the evidence is offered for a proper purpose,

i.e., “something other than a character to conduct theory,”

(2) the evidence is relevant under MRE 402, as enforced by

[MRE] 104(b), “to an issue or fact of consequence at trial,”

and (3) the probative value of the evidence is not substan-

tially outweighed by its potential for undue or unfair

prejudice under MRE 403. People v VanderVliet, 444 Mich

52, 74-75; 508 NW2d 114 (1993), amended 445 Mich 1205

(1994), citing and quoting Huddleston v United States, 485

US 681, 687, 691-692; 108 S Ct 1496; 99 L Ed 2d 771

(1988). With respect to the ﬁrst two VanderVliet require-

ments, our Supreme Court in People v Knox, 469 Mich 502,

509-510; 674 NW2d 366 (2004), reviewing the law regard-

ing MRE 404(b), stated:

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DWARDS

PINION OF THE

OURT

In People v Crawford, 458 Mich 376, 385, 582 NW2d

785 (1998), this Court explained that the prosecu-

tion bears the initial burden of establishing the

relevance of the evidence to prove a fact within one

of the exceptions to the general exclusionary rule of

MRE 404(b). “Relevance is a relationship between

the evidence and a material fact at issue that must

be demonstrated by reasonable inferences that

make a material fact at issue more probable or less

probable than it would be without the evidence.”

Crawford, supra at 387. Where the only relevance of

the proposed evidence is to show the defendant’s

character or the defendant’s propensity to commit

the crime, the evidence must be excluded.

This Court explained that the proponent of the other-

acts evidence must recite one of the purposes stated in

MRE 404(b) and articulate how the evidence relates to

the recited purpose. Dobek, 274 Mich App at 85.

In this case, the prosecution gave the trial court a

reason to allow the admission of the evidence of defen-

dant’s sexual assault of his daughter when she was ﬁve

years old. The prosecution explained to the trial court

that the alleged sexual-assault evidence had nothing to

do with defendant’s propensity to commit the charged

offenses but that the evidence’s admission would es-

tablish that defendant had a motive for killing the

decedent. The prosecution explained that: (1) on the

day of the incident, the daughter moved into the

decedent’s home where defendant resided; (2) defen-

dant became angry at the decedent for allowing the

daughter to move into the home because the daughter

previously alleged that defendant had sexually as-

saulted her and because he could not live in the same

home with the daughter because of her previous alle-

gations against him; and (3) defendant directed his

anger at the decedent and killed her out of anger over

the situation.

42 328 M

ICH

29 [May

PINION OF THE

OURT

The record establishes that the prosecution recited

one of the proper purposes stated under MRE 404(b)

and explained how the evidence related to the recited

purpose. The record supports the prosecution’s expla-

nation for admission. A detective testiﬁed at defen-

dant’s preliminary examination that defendant told

him that his argument with the decedent centered on

the daughter’s moving into the house in light of the

sexual-assault allegations she had made against de-

fendant. Defendant told the detective that his argu-

ment with the decedent escalated to the point where

defendant pulled out a gun and shot the decedent.

Therefore, the prosecution proposed admission of this

evidence to prove defendant’s motive for the homicide,

which is an acceptable purpose.

Relevant 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 . . . .” MRE 403. Under MRE 403, the trial

court had to consider whether, although relevant,

unfair prejudice substantially outweighed this evi-

dence’s probative value. The record reﬂects that the

trial court applied the MRE 403 test and concluded

that the evidence went to the issue of motive and could

establish the fact that defendant became angry and

that his anger was highly probative regarding the

circumstances that led to the offense. The trial court

further concluded that the anticipated testimony had

signiﬁcant probative value and stated that defendant

could counter the evidence to balance any prejudicial

effect. The admission of the evidence, like all inculpa-

tory evidence, likely would be prejudicial to defendant,

but the evidence’s probative value respecting his mo-

tive for the shooting—an issue about which defendant

and the prosecution disagreed vehemently—is not sub-

stantially outweighed by the danger of unfair preju-

2019] P

EOPLE V

DWARDS

PINION OF THE

OURT

dice. Accordingly, the trial court did not abuse its

discretion by ruling that evidence of the sexual assault

would be admissible at trial.

Reversed in part, vacated in part, afﬁrmed in part,

and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.

ETER

, P.J., concurred with C

AMERON

, J.

AWYER

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

44 328 M

ICH

29 [May

PINION BY

AWYER

, J.

PEOPLE v HOANG

Docket No. 336746. Submitted April 2, 2019, at Lansing. Decided May 7,

2019, at 9:05 a.m. Leave to appeal denied 504 Mich 1000 (2019).

Hieu Van Hoang was convicted following a jury trial in the Chip-

pewa Circuit Court of assault with intent to commit murder, MCL

750.83; attempted murder, MCL 750.91; and ﬁrst-degree arson,

MCL 750.72. According to defendant’s then wife, Anh Thi-Ngoc

Nguyen, defendant poured gasoline on their bed, threatened to

stab her if she tried to leave the room, and pushed her back

toward the bed while lighting either a match or a lighter. Nguyen,

whose clothes were soaked with gasoline, opened the window and

jumped out of the second-story apartment to the sidewalk below.

Defendant, who spoke Vietnamese, declined the offer of an

interpreter when the police initially interviewed him, but after

defendant was charged, the court, James P. Lambros, J., ap-

pointed defendant a Vietnamese interpreter who was physically

present at all hearings and the trial. Before the plea hearing,

defendant sent numerous letters to the court requesting an

interpreter for his pretrial and plea-offer discussions with his

attorney because of the language barrier and requesting that the

telephone conversations he had with Nguyen from jail be retrans-

lated. Although an interpreter was then present by speakerphone

during those pretrial and plea-offer negotiations, defendant in-

formed the trial court by letter that he needed the interpreter to

be physically present during those meetings to avoid any confu-

sion. The interpreter was physically present at the plea hearing

when defendant rejected the offer and was again present via

speakerphone for all attorney-client discussions at the jail before

trial. At the plea hearing, neither defendant nor trial counsel

raised the issue of needing the interpreter to be physically

present for trial-preparation discussions at the jail, but defendant

later wrote letters to the court making that request. Defendant

appealed his convictions and moved to remand for an evidentiary

hearing to develop the record regarding his claims of ineffective

assistance of counsel related to trial counsel’s alleged failure to

impeach Nguyen’s testimony, failure to introduce an allegedly

exculpatory letter written by Nguyen, and failure to introduce the

jail calls between defendant and Nguyen that were allegedly

2019] P

EOPLE V

OANG

improperly translated and proved defendant’s innocence; the

Court of Appeals granted the remand motion and retained juris-

diction. On remand, the trial court denied defendant’s request for

an evidentiary hearing, concluding that there was insufﬁcient

evidence to support defendant’s claim that Nguyen wrote an

exculpatory letter and that the retranslated letters were substan-

tially similar to the old ones.

The Court of Appeals held:

1. MCL 775.19a provides that a trial court must appoint a

qualiﬁed person to act as an interpreter if an accused person is

about to be examined or tried and it appears to the judge that the

person is incapable of adequately understanding the charge or

presenting a defense to the charge because of a lack of ability to

understand or speak the English language. MCR 1.111(B)(1) in

turn provides that a court must appoint a foreign-language

interpreter for a person who is a party if the person requests such

an interpreter and the court determines those services are

necessary for the person to meaningfully participate in the case or

court proceeding, or on the court’s own determination that those

services are necessary for a person to meaningfully participate in

the case or court proceeding; the phrase “meaningfully partici-

pate” fundamentally extends to the ability to engage in pretrial

preparation with trial counsel. Because MCR 1.111(A) deﬁnes the

phrase “case or court proceeding” to mean any hearing, trial, or

other appearance before any court in Michigan in an action,

appeal, or other proceeding, including any matter conducted by a

judge, magistrate, referee, or other hearing ofﬁcer, MCR

1.111(B)(1) mandates that a defendant receive foreign-language

interpretation services during pretrial preparations when neces-

sary for the defendant to meaningfully participate in the case or

court proceeding; the requirements of MCL 775.19a and MCR

1.111 are not violated by a defendant receiving telephonic inter-

pretation services during pretrial preparations if the services

allow the defendant to meaningfully participate in the case and

court proceedings. In this case, although trial counsel did not

detect a communication breakdown, he ensured defendant had

access to an interpreter after receiving letters from defendant

about the asserted communication problem. To that end, a Viet-

namese interpreter was physically present at all the hearings as

well as at the trial and was also present via speakerphone for all

pretrial preparations; defendant did not assert any issue regard-

ing the telephonic interpretation services at the plea hearing.

Under those facts, even though the interpreter was not physically

present for pretrial preparations, there was no evidence that

46 328

ICH

45 [May

defendant was unable to meaningfully participate in the case or

court proceedings with the interpreter participating telephoni-

cally during pretrial preparations. Therefore, defendant received

the foreign-language interpretation services required by MCR

1.111(B)(1) and MCL 775.19a, and the trial court did not err

under those authorities by failing to require the interpreter’s

physical presence during defendant’s pretrial meetings with trial

counsel.

2. The Sixth Amendment of the United States Constitution

and Article 1, § 20 of Michigan’s 1963 Constitution guarantee a

criminal defendant the right to counsel, which includes the right

to consult with counsel and prepare a defense. The right to

counsel does not attach until after adversarial legal proceedings

are initiated; the right extends to every critical stage of the

proceedings, including the pretrial period because it encompasses

counsel’s constitutionally imposed duty to investigate the case.

For that reason, when a defendant is unable to communicate with

his or her attorney during pretrial preparations because the

person did not receive the interpretation services required under

MCL 775.19a and MCR 1.111, the Sixth Amendment is implicated

because the attorney is unable to fulﬁll his or her duty to

investigate and prepare possible defenses. It is not necessary to

show prejudice when trial counsel is either totally absent or

prevented from assisting the defendant during a critical stage of

the proceeding. In this case, defendant had a constitutional right

to an interpreter during the pretrial preparations with his trial

counsel, which he received when the interpreter participated

telephonically during the attorney-client meetings. Defendant’s

argument that he was denied his right to counsel because he

could not communicate effectively with trial counsel without the

interpreter being physically present was without merit; trial

counsel’s actions—arranging for an interpreter by speakerphone

for each meeting once defendant notiﬁed him of the communica-

tion issue and indicating in a letter to defendant that trial counsel

was satisﬁed with the results of the arrangement—demonstrated

that he worked closely and diligently with defendant to prepare a

defense. Accordingly, on the facts of the case, defendant was not

constructively deprived of his right to counsel by the interpreter

not being physically present during the pretrial preparations.

3. Defendant was not denied effective assistance by trial

counsel’s failure to request that the interpreter be physically

present at all pretrial meetings; defendant failed to demonstrate

that having the interpreter available by speakerphone consti-

tuted deﬁcient performance. Defendant’s remaining ineffective-

2019] P

EOPLE V

OANG

assistance-of-counsel claims—that is, the failure to impeach

Nguyen, the failure to rebut certain evidence, the failure to obtain

forensic DNA evidence, the failure to introduce an alleged letter

from Nguyen to defendant, and the failure to introduce telephone

calls between defendant and Nguyen when defendant was in

jail—were also without merit.

Afﬁrmed.

1. C

RIMINAL

— I

NTERPRETERS

— D

UTY TO

PPOINT

— P

RETRIAL

REPARA-

TIONS

— T

ELEPHONIC

NTERPRETATION

ERVICES

URING

RETRIAL

REPA-

RATIONS

MCL 775.19a provides that a trial court must appoint a qualiﬁed

person to act as an interpreter if an accused person is about to be

examined or tried and it appears to the judge that the person is

incapable of adequately understanding the charge or presenting a

defense to the charge because of a lack of ability to understand or

speak the English language; under MCR 1.111(B)(1), a court must

appoint a foreign-language interpreter for a person who is a party

if the person requests such an interpreter and the court deter-

mines those services are necessary for the person to meaningfully

participate in the case or court proceeding, or on the court’s own

determination that those services are necessary for a person to

meaningfully participate in the case or court proceeding; a

defendant must receive foreign-language interpretation services

during pretrial preparations when necessary for the defendant to

meaningfully participate in the case or court proceedings; the

requirements of MCL 775.19a and MCR 1.111 are not violated by

telephonic interpretation services during pretrial preparations if

the services allow the defendant to meaningfully participate in

the case and court proceedings.

2. C

ONSTITUTIONAL

— C

RIMINAL

— R

IGHT TO

OUNSEL

— I

NTERPRET-

ERS

— D

UTY TO

PPOINT

— P

RETRIAL

REPARATIONS

The Sixth Amendment of the United States Constitution and

Article 1, § 20 of Michigan’s 1963 Constitution guarantee a

criminal defendant the right to counsel, which includes the right

to consult with counsel and prepare a defense; the right extends

to every critical stage of the proceedings, including the pretrial

period because it encompasses counsel’s constitutionally imposed

duty to investigate the case; a defendant’s constitutional right to

counsel is implicated when a defendant is unable to communicate

with his or her attorney during pretrial preparations because of a

language barrier.

48 328

ICH

45 [May

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, Robert Stratton, Pros-

ecuting Attorney, and David H. Goodkin, Assistant

Prosecuting Attorney, for the people.

Hieu Van Hoang, in propria persona, and Laurel

Kelly Young for defendant.

Before: S

WARTZLE

, P.J., and C

AVANAGH

and C

AMERON

JJ.

AMERON

, J. Defendant, Hieu Van Hoang, appeals

his jury-trial convictions of assault with intent to

commit murder, MCL 750.83, attempted murder, MCL

750.91, and ﬁrst-degree arson, MCL 750.72. The trial

court sentenced Hoang as a second-offense habitual

offender, MCL 769.10, to life imprisonment for each

offense. On appeal, Hoang argues that he was denied

his Sixth Amendment right to counsel because his

court-ordered Vietnamese interpreter was not physi-

cally present during his pretrial meetings with his

attorney. He also raises numerous errors that he con-

tends denied him the effective assistance of counsel.

We afﬁrm.

I. BACKGROUND

Hoang and his then wife, Anh Thi-Ngoc Nguyen,

lived in an apartment above a nail salon that they

owned and operated in Sault Ste. Marie. Nguyen

testiﬁed that on June 16, 2015, she and Hoang had

been arguing before she went to bed alone. Later that

night, Hoang woke Nguyen by throwing a phone at her.

Hoang was shouting at her as he poured gasoline on

the bed. Hoang threatened to stab Nguyen if she tried

to leave the room, and he pushed his wife back toward

2019] P

EOPLE V

OANG

the bed and lit either a match or a lighter.

Because her

clothing was soaked in gasoline, Nguyen opened the

window to escape, causing the unsecured air-

conditioning unit to fall out of the window opening, and

she jumped out the second-story window to the side-

walk below. Nguyen suffered severe injuries from the

fall requiring hospitalization.

A neighbor testiﬁed that she saw an air-conditioning

unit fall out of Nguyen’s apartment window and then

saw Nguyen jump down immediately after. The neigh-

bor called 911 and then went to assist Nguyen. An

on-duty United States Border Patrol agent saw the

neighbor with Nguyen, who was sitting on the side-

walk crying. The agent looked up and, seeing smoke

billowing from the apartment window, called central

dispatch. Fireﬁghters, paramedics, and police ofﬁcers

responded to the scene, and the ﬁre was quickly

contained. The paramedics treated Nguyen, who

smelled strongly of gasoline, and they took her to the

hospital in an ambulance. In the apartment, ﬁreﬁght-

ers found a gas can in the bedroom, a broken back

window, and a broken back door; they alerted the police

to these suspicious circumstances. The ﬁre depart-

ment’s investigator recovered a green cigarette lighter

from outside the building near the blood on the side-

walk where Nguyen had landed and placed it into

evidence. A police investigator concluded that the ﬁre

was the result of arson because of the irregular burn

pattern on the mattress, the presence of gasoline in the

bedroom, and the presence of gasoline in samples

collected from the mattress, the bedding, and the

clothing worn by Nguyen and Hoang.

Nguyen was not clear at trial whether Hoang used matches or a

lighter to start the ﬁre.

50 328

ICH

45 [May

A police ofﬁcer transported Hoang from the hospital

to the police station where a police detective inter-

viewed Hoang. According to the detective, while Hoang

appeared intoxicated and at times spoke in broken

English, the two were able to communicate without an

interpreter. In fact, Hoang denied an offer for an

interpreter and gave a statement to the police about

the circumstances of the ﬁre, claiming that he was

asleep when the ﬁre started. Hoang was then arrested

on the charge of assault with intent to commit murder.

At the outset of the proceedings, the trial court

appointed Hoang a Vietnamese interpreter who was

physically present and provided interpretation ser-

vices for all hearings and the trial. In March 2016,

Hoang sent the ﬁrst of many letters from jail to the

trial court insisting that he needed an interpreter for

his pretrial discussions with his attorney. Other in-

mates, who were apparently ﬂuent in both Vietnamese

and English, transcribed the letters for Hoang. The

ﬁrst letter, sent in March 2016, asserted that Hoang

needed an interpreter “because of the language bar-

rier” between him and his attorney. Hoang also as-

serted that the translation of the jail calls between him

and Nguyen was not accurate, and he asked the trial

court to have the recordings retranslated. Six days

later, Hoang wrote another letter, requesting “to have

his court appointed interpreter present to go over plea

offers and evidence because of his language barrier,”

and he again asked that the jail calls be retranslated.

Hoang then wrote another letter in March, expressing

his desire “to go over all evidence and plea offers with

his interpreter so there are no misunderstandings

before court proceedings continue.” In April 2016,

before his plea hearing, Hoang wrote another letter to

the trial court in which he acknowledged that an

interpreter was available via speakerphone when he

2019] P

EOPLE V

OANG

met with his attorney. According to Hoang, however, he

needed to have the interpreter physically present at

the meeting to go over evidence “so there is no confu-

sion.” Hoang expressed his need to personally meet

with the interpreter on the day of his upcoming hear-

ing in order to understand the evidence.

On April 19, 2016, the trial court held a plea hear-

ing. The interpreter was physically present at the

hearing, and Hoang explained to the trial court that he

wanted the jail calls between him and his wife retrans-

lated because the transcripts of the calls were inaccu-

rate and incomplete because they included only a

portion of their conversations. The trial court denied

Hoang’s request, explaining that the evidence of the

jail calls was an issue for trial. Thereafter, Hoang

conﬁrmed that he wanted his case to proceed to trial.

During the hearing, neither Hoang nor his attorney

raised the issue that an interpreter needed to be

physically present during attorney-client discussions

at the jail.

After the plea hearing, however, Hoang wrote an-

other letter to the trial court, stating again that

although the interpreter had participated in his recent

discussion with his attorney via speakerphone, she

was not physically present. Hoang challenged the trial

court in his letter: “How [am I] suppos[ed] to review all

the evidence and pleas with someone over a phone that

does not have the same paperwork [I have]?” According

to Hoang, he could not accept a plea offer “when he

does not understand the evidence or the evidence is

incomplete.” In three more letters sent to the trial

court before trial, Hoang continued to express his need

for an interpreter to be physically present when meet-

ing with his attorney to review the paperwork and

evidence in his case. Hoang explained that “[t]he

52 328 M

ICH

45 [May

interpreter has only appeared via speakerphone,

which [he] has found to be fruitless.” Hoang also

reiterated that he had not received the complete tran-

scripts of the jail calls with his wife.

The trial began on September 19, 2016. Hoang

testiﬁed at trial that on the night of the ﬁre he drank

one or two beers, as he did every night before bed, and

fell asleep before Nguyen went to bed. He stated that

he was asleep when the ﬁre started but that his wife

was still awake. When Hoang awoke, he saw a ﬁre on

his side of the bed. He claimed that he was able to jump

out of bed and avoid injury from the ﬁre but that in

doing so he kicked the gas can, which had been moved

to the bedroom earlier that day because their dogs had

knocked it over where it was usually stored.

The jury found Hoang guilty of assault with intent to

commit murder, attempted murder, and ﬁrst-degree

arson. The trial court sentenced Hoang to life imprison-

ment for each offense. On appeal, Hoang ﬁled an appel-

late brief, claiming a denial of his Sixth Amendment

right to counsel because his court-appointed interpreter

was not physically present to help Hoang review discov-

ery and facilitate communications with trial counsel.

Additionally, Hoang ﬁled a Standard 4 brief, along with

a motion to remand in this Court, requesting an eviden-

tiary hearing to develop the record regarding his claims

that trial counsel (1) failed to impeach Nguyen’s testi-

mony; (2) failed to introduce a letter Nguyen allegedly

wrote to Hoang stating that she lied to the police about

him starting the ﬁre; and (3) failed to introduce evidence

of the jail calls between Nguyen and Hoang, which were

improperly translated and proved his innocence.

This Court remanded the case to allow Hoang the

opportunity to submit the letter from Nguyen, for the

appointment of a new translator, and to have the trial

2019] P

EOPLE V

OANG

court determine whether an evidentiary hearing was

required.

On remand, the trial court inquired into the

letter that Nguyen allegedly wrote and had a different

translator retranslate two of the jail calls between

Nguyen and Hoang. After reviewing an afﬁdavit from

trial counsel, a letter from Nguyen stating that no such

letter to Hoang existed, and the new translations of the

jail calls, the trial court determined that an eviden-

tiary hearing was not warranted. The trial court en-

tered an order following remand, concluding that there

was insufﬁcient evidence to corroborate Hoang’s claim

that Nguyen wrote an exculpatory letter and that the

new translations were substantially similar to the old

ones. Therefore, the trial court denied an evidentiary

hearing, completing all actions in compliance with our

Court’s remand. Having retained jurisdiction, this

Court now addresses Hoang’s claims on appeal.

II. THE USE OF AN INTERPRETER DURING PRETRIAL

PREPARATIONS

In his appellate brief, Hoang argues that he was

denied his Sixth Amendment right to counsel at critical

stages of the proceedings—trial preparation and plea

discussions—because his court-appointed interpreter

was not physically present during his attorney-client

discussions, including when reviewing the evidence,

developing a trial strategy, and determining whether

defendant should accept a plea offer. We disagree.

A. STANDARD OF REVIEW

Generally, whether a defendant’s right to counsel was

violated is a constitutional issue that this Court reviews

People v Hoang, unpublished order of the Court of Appeals, entered

November 20, 2017 (Docket No. 336746).

54 328

ICH

45 [May

de novo. People v Hickman, 470 Mich 602, 605; 684

NW2d 267 (2004). Additionally, we review de novo the

proper interpretation of statutes and court rules. People

v Skinner, 502 Mich 89, 99; 917 NW2d 292 (2018);

People v Traver, 502 Mich 23, 31; 917 NW2d 260 (2018).

B. ANALYSIS

Both the United States and Michigan Constitutions

guarantee a criminal defendant the right to counsel. US

Const, Am VI; Const 1963, art 1, § 20. The Sixth

Amendment states, in relevant part, “In all criminal

prosecutions, the accused shall enjoy . . . the Assistance

of Counsel for his defence.” US Const, Am VI. The

Michigan Constitution states, “In every criminal pros-

ecution, the accused shall have the right . . . to have the

assistance of counsel for his or her defense[.]” Const

1963, art 1, § 20. “The right to counsel guaranteed by

the Michigan Constitution is generally the same as that

guaranteed by the Sixth Amendment; absent a compel-

ling reason to afford greater protection under the Michi-

gan Constitution, the right to counsel provisions will be

construed to afford the same protections.” People v

Marsack, 231 Mich App 364, 373; 586 NW2d 234 (1998).

One’s right to counsel does not attach until “after

adversarial legal proceedings have been initiated

against a defendant by way of indictment, information,

formal charge, preliminary hearing, or arraignment,”

id. at 376-377, and the right extends to every critical

stage of the proceedings, People v Anderson (After Re-

mand), 446 Mich 392, 402; 521 NW2d 538 (1994). “The

pre-trial period constitutes a ‘critical period’ because it

encompasses counsel’s constitutionally imposed duty to

investigate the case,” and “ ‘[c]ounsel’s actions are usu-

ally based, quite properly, on informed strategic choices

made by the defendant and on information supplied by

2019] P

EOPLE V

OANG

the defendant.’ ” Mitchell v Mason, 325 F3d 732, 743

(CA 6, 2003) (reviewing our Supreme Court’s decision

after the defendant ﬁled a petition for habeas relief and

concluding that the defendant was denied his Sixth

Amendment right to counsel when his attorney was

suspended for 30 days during the pretrial period and

was unable to communicate with the defendant and

form a trial strategy), quoting Strickland v Washington,

466 US 668, 691; 104 S Ct 2052; 80 L Ed 2d 657 (1984).

Hoang argues that he was denied his Sixth Amend-

ment right to counsel because his interpreter was not

physically present during trial preparation and plea

discussions with his attorney, making it difﬁcult to

review the paperwork and the evidence in the case.

Thus, without an interpreter physically present at the

meetings between himself and his attorney, Hoang

claims that he and his attorney were unable to prop-

erly prepare for trial and that Hoang could not fully

understand any offered pleas, which effectively denied

him his right to counsel during a critical stage of the

proceedings. This argument is without merit.

Hoang’s argument implicates both statutory and

constitutional considerations, neither of which have

been directly addressed by this Court. Signiﬁcantly,

our courts have yet to determine whether the absence

of an in-person interpreter during the pretrial stage of

the proceedings implicates a defendant’s constitutional

right to counsel. However, on the record in this case, we

do not detect a statutory or constitutional error with

regard to the trial court’s appointment of an inter-

preter or trial counsel’s utilization of that interpreter.

1. RIGHT TO AN INTERPRETER UNDER MCL 775.19a AND MCR 1.111

MCL 775.19a provides the standard upon which

trial courts must appoint an interpreter:

56 328 M

ICH

45 [May

If an accused person is about to be examined or tried

and it appears to the judge that the person is incapable of

adequately understanding the charge or presenting a

defense to the charge because of a lack of ability to

understand or speak the English language, the inability to

adequately communicate by reason of being mute, or

because the person suffers from a speech defect or other

physical defect which impairs the person in maintaining

his or her rights in the case, the judge shall appoint a

qualiﬁed person to act as an interpreter.

In 2013, our Supreme Court adopted MCR 1.111, which

governs the use of foreign-language interpreters. Un-

der MCR 1.111(B)(1),

[i]f a person requests a foreign language interpreter and

the court determines such services are necessary for the

person to meaningfully participate in the case or court

proceeding, or on the court’s own determination that

foreign language interpreter services are necessary for a

person to meaningfully participate in the case or court

proceeding, the court shall appoint a foreign language

interpreter for that person if the person . . . is a party.

While not raised by Hoang, we ﬁrst consider the

statute and court rule governing interpretation ser-

vices. The record shows that the trial court complied

with the requirements provided under both MCL

775.19a and MCR 1.111(B)(1). At the outset of the case,

the trial court appointed Hoang a Vietnamese inter-

preter, and the interpreter was physically present and

provided interpretation services during all hearings

and at trial. Thereafter, the trial court had an ongoing

obligation under MCR 1.111(B)(1) to ensure that Ho-

ang received such interpretation services as were nec-

essary to “meaningfully participate in the case or court

proceeding . . . .” For example, under MCR 1.111(F)(3),

the trial court is allowed to appoint more than one

interpreter after considering the nature and duration

2019] P

EOPLE V

OANG

of the proceeding, the number of parties in interest and

witnesses requiring interpretation services, the lan-

guages of those people, and the quality of remote

technology used to ensure effective communication.

Importantly, our court rules deﬁne “case or court

proceeding” as “any hearing, trial, or other appearance

before any court in this state in an action, appeal, or

other proceeding, including any matter conducted by a

judge, magistrate, referee, or other hearing ofﬁcer.”

MCR 1.111(A). Therefore, a party shall receive inter-

pretation services as necessary for the person “to

meaningfully participate” in any hearing, trial, etc.

Fundamental to meaningful participation in prelimi-

nary examinations, plea hearings, and trial is the

ability to engage in pretrial preparation with trial

counsel. Therefore, we conclude that the broad stan-

dard set forth under MCR 1.111(B)(1) mandates inter-

pretation services during pretrial preparations when

necessary for a defendant to meaningfully participate

in the case or court proceeding.

In this case, Hoang was entitled under the court rule

to interpretation services during pretrial preparations

with his attorney. We further conclude, however, that

Hoang received such services and, therefore, cannot

show a violation under MCL 775.19a and MCR 1.111.

As will be discussed in more detail later, Hoang’s trial

counsel did not detect a communication breakdown.

However, after receiving letters from his client, trial

counsel ensured that Hoang had access to an inter-

preter. Hoang’s interpreter participated telephonically

during pretrial preparations between Hoang and his

attorney, and Hoang did not raise any issue regarding

interpretation services at the plea hearing. Hoang has

not shown that he could not meaningfully participate

in the case or court proceedings. Accordingly, we do not

58 328 M

ICH

45 [May

detect any violation of the court rule or the relevant

statute, and the trial court did not err under those

authorities by failing to ensure the interpreter’s physi-

cal presence during pretrial meetings with trial coun-

sel.

2. SIXTH AMENDMENT RIGHT TO COUNSEL

A defendant also has a constitutional right to con-

sult with counsel and prepare a defense. As stated in

Mitchell, “[b]ecause the Supreme Court [of the United

States] has repeatedly made clear that there is a duty

incumbent on trial counsel to conduct pre-trial inves-

tigation, it necessarily follows that trial counsel cannot

discharge this duty if he or she fails to consult with his

or her client.” Mitchell, 325 F3d at 744.

We conclude

there are both state and federal constitutional

implications—based on a defendant’s right to counsel

during critical stages of the proceedings—when a de-

fendant who is entitled to an interpreter is prevented

from communicating with his attorney because he has

been denied an interpreter.

This Court has held that without a valid waiver

from a defendant, the failure to use when necessary an

interpreter for simultaneous translation during a de-

fendant’s trial implicates both state and federal consti-

tutional protections. In People v Gonzalez-Raymundo,

308 Mich App 175, 181-182; 862 NW2d 657 (2014), the

trial court appointed a Spanish interpreter, but at the

The court in Mitchell explained that “[i]t cannot seriously be argued

that defense counsel’s obligation to consult with his client at least once

is a new or novel obligation being imposed on the government or that the

Supreme Court’s cases in Powell[ v Alabama, 287 US 45; 53 S Ct 55; 77

L Ed 158 (1932)], Strickland, and [United States v] Cronic, [466 US 648;

104 S Ct 2039; 80 L Ed 2d 657 (1984),] do not compel this result.”

Mitchell, 325 F 3d at 744 n 5.

2019] P

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OANG

start of trial, the trial court granted defense counsel’s

request to waive the interpreter’s services because of

the possible prejudice that defense counsel speculated

such services might have on the jury; defense counsel

indicated that the interpreter would then “ ‘explain

things to the defendant on break.’ ” The Gonzalez-

Raymundo Court concluded that this was not a valid

waiver because the defendant did not personally waive

his right and because “[t]he lack of simultaneous

translation implicated defendant’s rights to due pro-

cess of law guaranteed by the United States and

Michigan Constitutions.” Id. at 188. Moreover, this

Court held that “a defendant’s lack of understanding of

the proceedings against him renders him effectively

absent,” and the “lack of simultaneous translation

impairs a defendant’s right to confront witnesses

against him and participate in his own defense.” Id.

This Court held that “[t]he right at issue is thus not

merely statutory as codiﬁed by MCL 775.19a, but

constitutional, and thus subject to every reasonable

presumption against its loss.” Id.

Depriving a defendant of the ability to communicate

with his or her attorney during pretrial

preparations—a critical stage of the proceedings—

prevents the attorney from fulﬁlling the attorney’s

duty to investigate and prepare possible defenses. See

Powell v Alabama, 287 US 45, 59; 53 S Ct 55; 77 L Ed

158 (1932) (“[A] defendant, charged with a serious

crime, must not be stripped of his right to have

sufﬁcient time to advise with counsel and prepare his

defense.”). In Powell, the trial court had appointed “all

the members of the bar” to represent seven African-

American men during their arraignment on charges of

raping two white women. Id. at 49, 56. However, the

one-day trials for each of the men commenced six days

from their arraignment, and the trial court did not

60 328 M

ICH

45 [May

identify the defendants’ trial attorneys until the day

trial began. Id. at 56. In the words of the Supreme

Court, the trial court’s appointment of counsel was

“little more than an expansive gesture, imposing no

substantial or deﬁnite obligation upon any one[.]” Id.

According to the Powell Court, “during perhaps the

most critical period of the proceedings against these

defendants, that is to say, from the time of their

arraignment until the beginning of their trial, when

consultation, thoroughgoing investigation and prepa-

ration were vitally important, the defendants did not

have the aid of counsel in any real sense, although they

were as much entitled to such aid during that period as

at the trial itself.” Id. at 57. Thus, the Powell Court

held that the effective deprivation of counsel was a

violation of the defendants’ constitutional rights. See

United States v Cronic, 466 US 648, 661; 104 S Ct

2039; 80 L Ed 2d 657 (1984) (“Powell was thus a case in

which the surrounding circumstances made it so un-

likely that any lawyer could provide effective assis-

tance that ineffectiveness was properly presumed

without inquiry into actual performance at trial.”).

The United States Court of Appeals for the Sixth

Circuit, relying on cases like Powell and Cronic, has

addressed the deprivation of a defendant’s right to

counsel even though the trial court had appointed a trial

attorney. In Mitchell, the court explained that “[w]hen

counsel is appointed but never consults with his client

and is suspended from practicing law for the month

preceding trial, and the court acquiesces in this con-

structive denial of counsel by ignoring the defendant’s

repeated requests for assistance,” there is a violation of

the defendant’s constitutional right to counsel as gov-

erned by the Supreme Court of the United States’

decision in Cronic. Mitchell, 325 F3d at 744. In Cronic,

the Supreme Court of the United States stated that it

2019] P

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OANG

“has uniformly found constitutional error without any

showing of prejudice when counsel was either totally

absent, or prevented from assisting the accused during

a critical stage of the proceeding.” Cronic, 466 US at 659

n 25.

While we conclude that Hoang had a constitutional

right to use an interpreter during attorney-client

pretrial preparations, under the facts of this case,

there was no Sixth Amendment violation. Hoang

acknowledges that he was granted the appointment of

an interpreter. He further admits that an interpreter

participated via speakerphone while Hoang and his

attorney prepared the case and discussed the prosecu-

tion’s plea offer. Hoang contends, however, that be-

cause the interpreter was not physically present

while Hoang met with his attorney, he was prevented

from fully understanding his attorney, from preparing

his case, and from understanding any plea offers from

the prosecution. Consequently, Hoang’s contention is

not that he was denied his right to counsel because

the trial court failed to provide an interpreter, but

that he was denied his right to counsel because he

could not effectively communicate with his trial coun-

sel through the interpreter. Hoang’s argument is

without merit. Before trial, trial counsel wrote a

letter to Hoang and explained that they had commu-

nicated effectively in writing and in person on several

occasions while preparing the case. In fact, trial

counsel told Hoang, “The day I told you what the plea

offer was you then told me that you did not speak

English, or read or write English.” At that point, trial

counsel took steps to ensure that the interpreter was

available via speakerphone. Trial counsel’s letter also

shows that trial counsel was satisﬁed with using the

interpreter via speakerphone. Thus, unlike the cir-

cumstances in Powell and Mitchell, trial counsel’s

62 328 M

ICH

45 [May

actions showed that he worked closely and diligently

with Hoang to prepare a defense.

We cannot conclude

that the failure to have an interpreter physically

present during Hoang’s pretrial meetings with his

attorney amounted to the constructive deprivation of

counsel. Therefore, we conclude that there was no

violation of Hoang’s constitutional right to counsel.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

In his Standard 4 brief, Hoang argues that trial

counsel was ineffective because (1) he should have

requested that the interpreter be physically present

during pretrial preparations, (2) he failed to impeach

Nguyen at trial, (3) he failed to provide rebuttal evi-

dence, (4) he failed to obtain forensic evidence, (5) he

failed to introduce a letter from Nguyen, and (6) he

failed to introduce the complete and accurately trans-

lated transcripts of jail calls defendant made to Nguyen.

We disagree.

A. STANDARD OF REVIEW

Generally, an ineffective-assistance-of-counsel claim

presents a “mixed question of fact and constitutional

law.” People v Matuszak, 263 Mich App 42, 48; 687

NW2d 342 (2004). Constitutional questions are re-

viewed de novo, while ﬁndings of fact are reviewed for

clear error. People v LeBlanc, 465 Mich 575, 579; 640

NW2d 246 (2002). This Court reviews an unpreserved

ineffective-assistance-of-counsel claim for errors appar-

ent on the record. People v Heft, 299 Mich App 69, 80;

829 NW2d 266 (2012).

We note that the trial court—located in the Upper Peninsula—also

ensured that an interpreter from the southern region of the Lower

Peninsula was physically present for all hearings and the trial.

2019] P

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OANG

B. ANALYSIS

To demonstrate ineffective assistance of counsel, a

“defendant must show that his counsel’s performance

was deﬁcient, and that there is a reasonable probabil-

ity that but for that deﬁcient performance, the result of

the trial would have been different.” Matuszak, 263

Mich App at 57-58. “A reasonable probability is a

probability sufﬁcient to undermine conﬁdence in the

outcome.” People v Carbin, 463 Mich 590, 600; 623

NW2d 884 (2001) (quotation marks and citation omit-

ted). A defendant must establish a factual basis for an

ineffective-assistance-of-counsel claim. People v Hoag,

460 Mich 1, 6; 594 NW2d 57 (1999). Matters of strategy

that were not successful, in hindsight, do not consti-

tute deﬁcient performance. People v Unger, 278 Mich

App 210, 242-243; 749 NW2d 272 (2008). When review-

ing an ineffective-assistance-of-counsel claim, “the in-

quiry is not whether a defendant’s case might conceiv-

ably have been advanced by alternate means.”

LeBlanc, 465 Mich at 582.

1. REQUEST FOR AN INTERPRETER DURING PRETRIAL

PREPARATIONS

“[I]t has long been recognized that the right to

counsel is the right to the effective assistance of

counsel.” Cronic, 466 US at 654 (quotation marks and

citation omitted). “Cases on the continuum range from

actual to constructive denial of counsel to instances

where the performance of counsel is so deﬁcient that

there has been a functional denial of counsel guaran-

teed by the Sixth Amendment.” People v Mitchell, 454

Mich 145, 153; 560 NW2d 600 (1997), vacated on other

grounds in Mason v Mitchell, 536 US 901 (2002). While

Hoang argues in his appellate brief that there was an

actual denial of his right to counsel, he argues in his

64 328 M

ICH

45 [May

Standard 4 brief that he was denied the effective

assistance of counsel when his requests for an inter-

preter to be present at attorney-client meetings went

unanswered. Hoang’s argument fails.

First, Hoang has not shown that his trial counsel’s

action—i.e., having an interpreter available via

speakerphone—constituted deﬁcient performance. In

fact, trial counsel responded to Hoang’s requests in a

July 2016 letter and explained that he had not detected

any communication issues between the two of them but

that, after Hoang expressed his concerns, trial counsel

had ensured that an interpreter was made available to

Hoang during pretrial preparations. We cannot con-

clude that trial counsel’s use of the interpreter via

speakerphone constitutes deﬁcient performance sufﬁ-

cient to prove an ineffective-assistance-of-counsel claim.

Finally, even if trial counsel should have requested

that the interpreter be physically present for trial

preparation to ensure that Hoang understood the pro-

ceedings, any deﬁcient performance in this regard was

not prejudicial. Hoang’s contention is that without an

interpreter to help him review the ﬁle, he could not fully

understand the evidence against him or the terms of the

plea offer. However, Hoang had every opportunity to

discuss his ﬁle—including the plea offer—at his meet-

ings with the interpreter. Additionally, Hoang never

raised any concern regarding the terms of the plea offer

to the trial court at the plea hearing. Instead, he

continually maintained his innocence and focused only

on the fact that he wanted the accurate and complete

transcripts of his jail calls with his wife—which he

believed would exonerate him. For that reason, Hoang

has not shown that he would have taken the plea had

the interpreter been physically present during trial

preparation; therefore, we do not detect prejudice.

2019] P

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OANG

2. FAILURE TO IMPEACH WITNESS

In his Standard 4 brief, Hoang challenges several

strategic decisions made by trial counsel, including

arguing that the failure to impeach Nguyen’s testimony

constituted deﬁcient performance. Hoang ﬁrst argues

that trial counsel failed to impeach Nguyen’s testimony

with her own contradictory testimony. This argument is

unavailing because trial counsel did, in fact, impeach

Nguyen’s testimony in an attempt to create a reason-

able doubt about Hoang’s guilt. Trial counsel high-

lighted Nguyen’s inconsistent statements during trial,

noting that she ﬁrst claimed Hoang had used a match to

light the ﬁre but later said that he had used a lighter.

Trial counsel then highlighted Nguyen’s inconsistent

testimony from the preliminary examination, wherein

she had stated that she saw Hoang with only a lighter,

not matches. After being confronted with her conﬂicting

testimony, Nguyen insisted that she meant a lighter and

explained that the inconsistency was the result of the

translation. Hoang argues that trial counsel should

have asked the interpreter to clarify Nguyen’s conﬂict-

ing testimony, especially because she alleged that the

difference in her testimony was due to translation

errors. Hoang is essentially asserting that trial counsel

should have called the interpreter to testify about the

translation of the words for match and lighter. However,

trial counsel adequately brought the issue to the jury’s

attention. Therefore, trial counsel’s performance was

not deﬁcient.

Hoang also argues that trial counsel should have

impeached Nguyen’s trial testimony that she and Ho-

ang did not normally keep a gas can in the apartment

given that she had testiﬁed at the preliminary hearing

that they normally kept a gas can in the bathroom.

Hoang’s argument fails because trial counsel asked

66 328 M

ICH

45 [May

Nguyen about the gas can at trial and elicited confus-

ing and inconsistent testimony from her about whether

and where they had kept the gas can in the apartment.

Hoang makes several other claims challenging spe-

ciﬁc areas of trial counsel’s cross-examination. Hoang

contends that Nguyen contacted him in jail and sent

him money in jail, evidenced by the purportedly incor-

rect translations of the jail calls. Hoang argues that

trial counsel failed to question Nguyen about this

contact with Hoang despite a no-contact order. How-

ever, trial counsel questioned Nguyen about her com-

munications with Hoang after he was arrested, and

Nguyen admitted that she sent him money after he

called her and asked for it. Accordingly, trial counsel

did ask Nguyen about her contact with Hoang, and

trial counsel’s decision not to persist in questioning

Nguyen about this contact was entirely reasonable.

Hoang also contends that his consoling of Nguyen

after she jumped out of the window and at the hospital

were inconsistent with guilt and that trial counsel

should have highlighted Nguyen’s reaction to Hoang

immediately after her injuries. Hoang fails to explain

the relevance of this testimony, and regardless, any

decision on the part of trial counsel to refrain from

eliciting testimony on the subject constitutes trial strat-

egy. Considering the evidence as a whole, trial counsel

could very well have avoided the subject because a jury

might reasonably infer that Hoang manipulated the

situation to look like he was playing the part of a

worried husband to avoid suspicion but was really using

it as an opportunity to talk to Nguyen alone and to

coach her about what to say to the authorities about the

ﬁre.

Lastly, Hoang contends that Nguyen’s testimony

was inconsistent as to when gasoline was poured on

2019] P

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OANG

her clothing relative to when the ﬁre started. Hoang

also argues that the police did not recover the phone

in the apartment that Hoang allegedly threw at

Nguyen to wake her, that the police found his and

Nguyen’s phones in Nguyen’s car, and that Hoang was

not given copies of the police reports by counsel.

Hoang has provided this Court with no factual sup-

port for these claims, and he has not made a docu-

mented request for the police records. Therefore,

these claims have no merit. Hoang is correct that trial

counsel did not ask Nguyen about every aspect of her

testimony, but again, he has failed to defeat the

presumption that counsel’s failure to inquire into

these matters was a strategic decision designed to

highlight only the most inconsistent evidence without

bogging the jury down with insigniﬁcant details.

Cross-examining a victim in an attempted murder

case about every potentially inconsistent detail in the

victim’s testimony can be counterproductive and draw

attention to details that support an inference of guilt.

For example, our Supreme Court has approved of a

defense attorney’s decision not to call an expert wit-

ness to rebut the prosecution’s expert witness when

trial counsel explained that creating a battle of the

experts tended to bolster the importance of the testi-

mony of the expert witnesses, particularly the pros-

ecution’s expert witness. LeBlanc, 465 Mich at 580-

583. In sum, Hoang has not demonstrated that trial

counsel’s handling of the defense was anything but

reasonably strategic. Witness credibility is a matter

for the jury to decide. People v Lemmon, 456 Mich 625,

637; 576 NW2d 129 (1998). Accordingly, having heard

both Nguyen’s and Hoang’s testimony, the jury rea-

sonably chose to credit Nguyen’s testimony, in addi-

tion to the corroborating evidence, to ﬁnd Hoang

guilty.

68 328 M

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45 [May

3. FAILURE TO REBUT EVIDENCE

Hoang argues that trial counsel should have rebut-

ted Nguyen’s testimony regarding a jewelry box that

fell off the air-conditioning unit when she opened the

window. When Nguyen testiﬁed about opening the

window to jump out of the apartment to avoid the ﬁre,

she stated that she had stacked things, including a

jewelry box, on top of the air-conditioning unit. Accord-

ing to Hoang, trial counsel failed to demonstrate that it

was impossible for a jewelry box to sit on top of the air-

conditioning unit and that it therefore could not have

fallen to the ground when his wife opened the window.

Hoang claims that the available space on top of the air-

conditioning unit was too small. Trial counsel asked

some of the police ofﬁcers who testiﬁed at trial about

the jewelry box and about the photographs taken of the

bedroom, which showed the jewelry box lying on the

ground, but the ofﬁcers were not able to provide any

details about the size or contents of the jewelry box or

where it was located during the ﬁre.

Hoang appears to be suggesting that Nguyen set the

ﬁre to kill him and take the jewelry with her, or some

variation on this theme, but the string of inferences

necessary to arrive at this conclusion is speculative

and does not warrant reversal on this record. Further,

on cross-examination, trial counsel did ask Nguyen

whether she was upset that Hoang may have been

having an affair and conﬁrmed that Nguyen would

become the sole owner of the nail salon if they divorced.

After this line of questioning, trial counsel ended

cross-examination, having attempted to leave the jury

with the impression that Nguyen had a motive for

lying about Hoang starting the ﬁre. Trial counsel’s

performance was not deﬁcient for failing to rebut the

evidence presented.

2019] P

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OANG

4. FAILURE TO OBTAIN FORENSIC EVIDENCE

Hoang raises other challenges to his trial counsel’s

strategy, speciﬁcally challenging his counsel’s failure

to obtain forensic evidence. Hoang cites trial counsel’s

closing argument about the lighter to argue that trial

counsel should have had the lighter tested for DNA or

ﬁngerprints because that evidence would have shown

that Nguyen, not Hoang, actually started the ﬁre. In

his closing argument, trial counsel argued that the

lighter was the only piece of evidence the police failed

to test for DNA or ﬁngerprints. Trial counsel made this

argument after attacking Nguyen’s credibility, arguing

that she was jealous about an affair Hoang was having

and stating that she should not have received the

entire business because they were only married for one

year before divorcing. Read in context, trial counsel’s

point in raising the police’s failure to test the lighter

was to plant a seed of doubt in the jurors’ minds to

argue for an acquittal. Hoang’s argument on appeal is

ﬂawed because it presupposes that testing the lighter

would return exonerating evidence. But Hoang has

presented no factual basis to support this presupposi-

tion and to show that counsel was ineffective for not

having the lighter tested, especially because counsel

highlighted the police’s failure to test the lighter as a

point in Hoang’s favor.

Hoang also argues that trial counsel was ineffective

for failing to clarify whether gasoline found on Hoang’s

shoes was on the top of the shoes, consistent with

splashing, or on the bottom of the shoes, consistent

with stepping in gasoline. A forensic scientist testiﬁed

that there was gasoline on the shoes without specifying

where on the shoes. Hoang does not adequately explain

why this detail matters or how it would show that

Hoang did not start the ﬁre, particularly in light of

70 328 M

ICH

45 [May

witness testimony that the apartment, Hoang, and

Nguyen all smelled of gasoline. Therefore, this argu-

ment is without merit.

5. FAILURE TO INTRODUCE LETTER

In his Standard 4 brief, Hoang also argues that trial

counsel failed to introduce into evidence a letter that

Nguyen allegedly wrote to Hoang, and failed to ques-

tion Nguyen about the letter, in which Nguyen pur-

portedly explained that the police had threatened to

charge her with conspiracy to commit arson if she did

not tell them that Hoang had started the ﬁre and in

which she apologized to Hoang for lying to the police.

Hoang preserved this issue by pursuing a remand for

an evidentiary hearing. On remand, trial counsel pro-

duced an afﬁdavit stating that Hoang had given him no

such letter, and Nguyen wrote a letter stating that she

had no further contact with Hoang after they spoke

when he was in jail and she sent him money. During

the jail calls, Nguyen told Hoang that the police told

her not to deny knowing what happened and asked her

whether she and her husband were plotting some-

thing. Nguyen’s description of what the police said to

her does not support Hoang’s claim that the police

directed Nguyen to say that Hoang started the ﬁre, nor

does this conversation between Nguyen and Hoang

substantiate the existence of a letter to Hoang in which

Nguyen stated that she lied to the police. In addition,

the police had other evidence and other witnesses

showing that Hoang started the ﬁre and attempted to

kill Nguyen, and the jury chose to credit that evidence.

Hoang has not shown that it was unreasonable for the

jury to credit the other witnesses’ testimony over his

version of events.

2019] P

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OANG

6. FAILURE TO INTRODUCE JAIL CALLS

Hoang argues that trial counsel failed to introduce

complete and accurate transcripts of the jail calls,

which Hoang continues to maintain were translated

erroneously. Hoang raised this issue when he sought a

remand for an evidentiary hearing, and the trial court

had the recordings of the jail calls retranslated by a

different translator. First, the transcripts of the calls

show that Hoang initiated the calls and that he told

Nguyen to say that nothing happened when she testi-

ﬁed at the preliminary examination. Hoang also told

Nguyen the story he told the police. When Hoang

raised the issue of the transcripts at the sentencing

hearing, trial counsel stated that he did not introduce

the transcripts of the calls into evidence because

they tended to show Hoang’s guilt. We have reviewed

the transcripts and agree with trial counsel. Further,

Hoang has described no attempt to have a third party

interpret the recordings, and he has provided no de-

tails about what part of the recordings were incorrectly

translated. Hoang has not supported this claim with a

factual basis that warrants remand.

In an afﬁdavit attached to the Standard 4 brief,

Hoang stated that the interpreter did not interpret

everything that the witnesses said at trial, that the

interpreter and trial counsel refused to respond to

Hoang’s concerns, and that the interpreter refused to

ask the trial court and trial counsel for clariﬁcation of

witness testimony on his behalf, including his belief

about the location of the gas can. Hoang also claims

that he did not understand when trial counsel tried to

explain the plea offer to him and that trial counsel got

frustrated with Hoang when he refused to plead guilty.

Hoang did not raise this issue in the remand motion or

in his arguments on appeal. Nonetheless, even accept-

72 328 M

ICH

45 [May

ing these statements as properly presented arguments,

they are inconsistent with the speciﬁcity of Hoang’s

claims that trial counsel failed to impeach Nguyen’s

testimony properly, failed to introduce an exculpatory

letter that Nguyen allegedly wrote to Hoang, and failed

to introduce transcripts of calls between Nguyen and

Hoang. Accordingly, these claims have no merit and do

not warrant a new trial.

In sum, Hoang raises challenges to various aspects

of the trial court proceedings, but the speciﬁcity of his

ineffective-assistance-of-counsel claims, particularly

those presented in the Standard 4 brief, belie his

overall claim that he did not understand what was

happening throughout the proceedings. Further,

Hoang has not demonstrated a factual basis support-

ing his claims. Neither a remand for an evidentiary

hearing nor a new trial is warranted.

Afﬁrmed.

WARTZLE

, P.J., and C

AVANAGH

, J., concurred with

AMERON

, J.

2019] P

EOPLE V

OANG

SULLIVAN v STATE OF MICHIGAN

Docket No. 343018. Submitted April 2, 2019, at Lansing. Decided May 7,

2019, at 9:10 a.m.

Donald Sullivan, Jr., brought an action in the Court of Claims

seeking compensation under the Wrongful Imprisonment Com-

pensation Act (WICA), MCL 691.1751 et seq., for the years he

spent in prison before his felony-murder conviction was vacated

and the charges against him were dismissed. Following a jury

trial in the Recorder’s Court in Detroit, Sullivan was convicted of

ﬁrst-degree felony murder for his role in the 1974 robbery of a

jewelry store and the death of its owner, and in 1975, Sullivan

was sentenced to life imprisonment. Lawrence Patton, a codefen-

dant, had entered into a plea agreement with the prosecution,

and Patton’s testimony was the primary evidence in support of

Sullivan’s conviction. In 1981, Patton recanted, and he executed

two afﬁdavits in which he admitted that he had lied about

Sullivan’s involvement in the robbery and murder. Sullivan

moved for a new trial on the basis of Patton’s recantation, and

Patton testiﬁed at an evidentiary hearing, authenticating his

afﬁdavits and reiterating that his original trial testimony was

false. Patton was given a polygraph examination regarding the

truthfulness of his recantation, and the examiner’s opinion was

that Patton was not deceptive in his exoneration of Sullivan. The

trial court granted Sullivan’s request for a new trial, and the

prosecution prepared to retry Sullivan for the robbery and mur-

der. However, after the trial court denied the prosecution’s motion

to use Patton’s trial testimony from the ﬁrst trial as evidence at

Sullivan’s retrial, the prosecution conceded that without the

testimony, it could not proceed with the retrial. Accordingly, in

1982, the trial court dismissed the charges against Sullivan, and

he was released from custody. In September 2017, Sullivan ﬁled

his complaint for compensation under the WICA. The Court of

Claims, M

ICHAEL

J. T

ALBOT

, J., granted the state of Michigan’s

motion for summary disposition and denied Sullivan’s cross-

motion for summary disposition. The Court of Claims concluded

that Sullivan failed to prove by clear and convincing evidence

that there existed new evidence that ultimately resulted in the

dismissal of the charges against him. Sullivan appealed.

74 328

ICH

74 [May

The Court of Appeals held:

1. To prevail on a claim under the WICA, MCL 691.1755(1)

requires a plaintiff to prove by clear and convincing evidence all of

the following: (1) the plaintiff was convicted of a crime under

Michigan law, was sentenced to a term of imprisonment in a state

correctional facility, and served at least part of the sentence; (2) the

plaintiff’s judgment of conviction was reversed or vacated and

either the charges were dismissed or the plaintiff was determined

to be not guilty on retrial; and (3) new evidence demonstrated that

the plaintiff did not perpetrate the crime and was not an accom-

plice or an accessory to the crime, the new evidence resulted in the

reversal or vacation of the charges in the judgment of conviction or

a gubernatorial pardon, and the new evidence ultimately resulted

in either the dismissal of all the charges or a ﬁnding of not guilty

of all the charges on retrial. Under MCL 691.1752(b), “new evi-

dence” is any evidence that was not presented in the proceedings

leading to the plaintiff’s conviction but does not include a recanta-

tion unless there is “other evidence” to support the recantation or

the prosecuting attorney or attorney general that prosecuted the

case agrees that the recantation constitutes new evidence, even

without other evidence to support it. Sullivan argued that Patton’s

recantation was new evidence because Patton’s afﬁdavits, his

testimony at the evidentiary hearing, and his answers to the

questions in the polygraph examination were separate and distinct

pieces of “other evidence” that supported the recantation. “Other”

means “not the same” or “different.” Therefore, Patton’s recanta-

tion must have been supported by evidence that was “not the same”

as his recantation or that was “different” from his recantation. But

each piece of proposed “other evidence” was essentially the same

recantation in three different forms. In addition, the language the

Legislature used in MCL 691.1752(b) requires that the “other

evidence” must “support the recantation.” “Support” means to

“provide with substantiation,” “corroborate,” “assist,” or “help.”

Therefore, the recantation must be substantiated or corroborated

by evidence that is different from the recantation itself. But the

afﬁdavits, new-trial hearing testimony, and assertions made dur-

ing the polygraph test were merely different iterations of the same

recantation. Therefore, the trial court properly granted the state of

Michigan’s motion for summary disposition of Sullivan’s WICA

claim and denied Sullivan’s motion for summary disposition.

2. With one narrow exception, results of a polygraph examina-

tion are not admissible at trial in criminal or civil cases; polygraph

results may be considered, within the trial judge’s discretion, to

enable a decision to be reached at a postconviction hearing for a

2019] S

ULLIVAN V

ICHIGAN

new trial. The procedures at trial and at a postconviction hearing

for a new trial are signiﬁcantly different because the purposes of

each procedure are signiﬁcantly different. The purpose of a trial is

to determine guilt or innocence; it is a ﬁnal procedure. The purpose

of a postconviction hearing for a new trial is to determine whether

there should be a new trial; it is a preliminary procedure. Sulli-

van’s WICA claim was not like a motion for a new trial. It was a

civil action, and his claim had to have been proved during his

case-in-chief; polygraph results are not admissible during a case-

in-chief. Accordingly, the Court of Claims did not err by granting

the state of Michigan’s motion for summary disposition and dis-

missing Sullivan’s WICA claim because polygraph results are not

admissible and thus do not satisfy the deﬁnition of “new evidence”

under MCL 691.1752(b) and do not qualify as the “other evidence”

required to support a recantation’s status as “new evidence.”

3. Even if the polygraph results had been admissible and had

constituted “new evidence,” Sullivan still could not have prevailed.

MCL 691.1755(1)(c) requires that the new evidence result in the

reversal or vacation of the judgment of conviction and that the new

evidence ultimately result in either the dismissal of all the charges

or a ﬁnding of not guilty of all the charges on retrial. The polygraph

results did result in the reversal or vacation of Sullivan’s

conviction—because the trial court concluded that the recantation

testimony was reliable, the court vacated Sullivan’s conviction and

granted him a new trial. Critically, however, the case was not

dismissed because of the polygraph results. After the trial court

granted Sullivan a new trial, the prosecution expressed its intent

to retry Sullivan when it moved to use Patton’s testimony from

Sullivan’s initial trial. The trial court denied the motion, and the

prosecution explained that it could not proceed to trial without

Patton’s testimony. The dismissal of the charges was a result of the

prosecution’s inability to use Patton’s prior trial testimony; the

charges were not dismissed because of the polygraph results.

Afﬁrmed.

1. W

RONGFUL

MPRISONMENT

OMPENSATION

— N

VIDENCE

— R

ECAN-

TATIONS

— O

THER

VIDENCE IN

UPPORT OF

ECANTATIONS

To prevail on a claim under the Wrongful Imprisonment Compen-

sation Act, MCL 691.1751 et seq., a plaintiff must, among other

things, produce new evidence demonstrating that he or she did

not perpetrate the crime; the new evidence must result in the

reversal or vacation of the charges in the judgment of conviction,

and the new evidence must ultimately result in either the

76 328

ICH

74 [May

dismissal of all the charges against the plaintiff or a ﬁnding of

not guilty of all the charges on retrial; a recantation is not new

evidence unless there exists other evidence to support the

recantation or the prosecution agrees that the recantation

constitutes new evidence; iterations of the same recantation in

different forms, e.g., afﬁdavits, testimony at an evidentiary

hearing, and answers to polygraph-test questions, do not con-

stitute other evidence in support of the recantation.

2. P

OLYGRAPH

-E

XAMINATION

ESULTS

— A

DMISSIBILITY

— W

RONGFUL

MPRIS-

ONMENT

OMPENSATION

LAIMS

The results of a polygraph examination are not admissible to prove

a claim under the Wrongful Imprisonment Compensation Act,

MCL 691.1751 et seq.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, and Garett L. Koger,

Assistant Attorney General, for the state of Michigan.

Martin S. Baum, PC (by Martin S. Baum) for

Donald Sullivan, Jr.

Before: S

WARTZLE

, P.J., and C

AVANAGH

and C

AMERON

JJ.

AMERON

, J. Plaintiff, Donald Sullivan, Jr., ﬁled this

lawsuit for compensation based on the Wrongful Impris-

onment Compensation Act (WICA), MCL 691.1751 et

seq., after his murder conviction was vacated and the

charges against him were dismissed. Sullivan appeals

the order of the Court of Claims granting summary

disposition in favor of defendant, the state of Michigan,

and dismissing Sullivan’s case. On appeal, Sullivan

challenges the Court of Claims’ determination that he

was not entitled to compensation under the WICA

because he failed to show “new evidence” that satisﬁed

the requirements of MCL 691.1755(1)(c). Finding no

error, we afﬁrm.

2019] S

ULLIVAN V

ICHIGAN

I. FACTS AND PROCEDURAL HISTORY

In 1975, Sullivan was sentenced to life in prison

after a jury convicted him of ﬁrst-degree felony murder

for his role in the robbery of a jewelry store and the

death of its owner. A codefendant, Lawrence Patton,

entered into a plea agreement with the prosecution

and provided trial testimony that was the primary

evidence used to support Sullivan’s conviction.

Several years later, Patton recanted his trial testi-

mony. He executed two afﬁdavits in 1981, admitting in

both that he lied about Sullivan’s involvement in the

robbery and murder of the jewelry store owner. In

December 1981, Sullivan moved for a new trial on the

basis of Patton’s recantation. In support of his motion,

Sullivan provided Patton’s two afﬁdavits. The trial

court granted an evidentiary hearing at which Patton

testiﬁed, authenticated his afﬁdavits, and reiterated

that the trial testimony he offered against Sullivan

was false. The prosecution questioned Patton’s verac-

ity and succeeded in having Patton be given a poly-

graph examination administered by the Michigan

State Police regarding the truthfulness of his recanta-

tion. During the polygraph examination, Patton reaf-

ﬁrmed that Sullivan was not involved in the crimes. In

the opinion of the examiner, the test results indicated

that Patton was not deceptive in his exoneration of

Sullivan.

Thereafter, the trial court granted Sullivan’s

motion for a new trial.

The prosecution, apparently unpersuaded of Sulli-

van’s innocence, took steps to prosecute Sullivan again

The polygraph examiner concluded his report with this statement:

“It is the opinion of the undersigned examiner, based on the analysis of

[Patton’s] polygraph examination that in the area of [Sullivan’s] being

actively involved in the robbery/homicide, there is no deception.”

78 328

ICH

74 [May

for the robbery and murder. However, after the trial

court denied the prosecution’s motion to use Patton’s

prior trial testimony as evidence against Sullivan at

his retrial, the prosecution conceded that “[w]ithout

the use of [Patton’s] previous testimony from the

previous trial, we cannot proceed at this time in this

case.” Accordingly, the trial court dismissed the

charges against Sullivan, and he was released from

custody.

In September 2017, Sullivan ﬁled a WICA complaint

seeking compensation for the approximately seven

years that he was imprisoned. The Court of Claims

granted the state of Michigan’s motion for summary

disposition and, in turn, denied Sullivan’s cross-motion

for summary disposition. In doing so, the Court of

Claims concluded that Sullivan failed to prove by clear

and convincing evidence that there existed “new evi-

dence” that demonstrated that he did not perpetrate

the crime, that resulted in the reversal or vacation of

his convictions, and that ultimately resulted in dis-

missal of the charges. MCL 691.1755(1)(c).

II. ANALYSIS

On appeal, Sullivan argues that the Court of Claims

erred when it granted the state of Michigan’s motion

for summary disposition and denied Sullivan’s cross-

motion for summary disposition. We disagree.

We initially note that the state of Michigan ﬁled its

motion for summary disposition under MCR

2.116(C)(7), and Sullivan claimed that he was entitled

to summary disposition under MCR 2.116(I)(2). The

Court of Claims, however, speciﬁed in its order that

summary disposition was granted under MCR

2.116(C)(8) and (C)(10). Importantly, a tort action

against a governmental entity generally raises two

2019] S

ULLIVAN V

ICHIGAN

issues: (1) whether the plaintiff has pleaded in avoid-

ance of governmental immunity, and (2) whether the

plaintiff can establish the elements of his or her claim.

Glancy v Roseville, 457 Mich 580, 588; 577 NW2d 897

(1998). We do not construe the state of Michigan’s

motion as one brought under MCR 2.116(C)(7) because

Sullivan’s claim concerns whether he can establish the

elements under the WICA. “A trial court is not neces-

sarily constrained by the subrule under which a party

moves for summary disposition.” Computer Network,

Inc v AM Gen Corp, 265 Mich App 309, 312; 696 NW2d

49 (2005). Furthermore, because the Court of Claims

ruled on the motions for summary disposition before

the commencement of discovery, we believe it is appro-

priate to analyze the motions on the basis of the

pleadings alone and review them under MCR

2.116(C)(8). See id.

A trial court’s decision regarding a motion for sum-

mary disposition is reviewed de novo. Old Kent Bank v

Kal Kustom Enterprises, 255 Mich App 524, 528; 660

NW2d 384 (2003). “A motion brought under [MCR

2.116(C)(8)] tests the legal sufﬁciency of the complaint

solely on the basis of the pleadings.” Dalley v Dykema

Gossett PLLC, 287 Mich App 296, 304; 788 NW2d 679

(2010). “When deciding a motion under (C)(8), this

Court accepts all well-pleaded factual allegations as

true and construes them in the light most favorable to

the nonmoving party.” Id. at 304-305.

We also review de novo issues of statutory interpre-

tation. In re Mich Cable Telecom Ass’n Complaint, 239

Mich App 686, 690; 609 NW2d 854 (2000). When

interpreting a statute, our goal “is to ascertain and

give effect to the intent of the Legislature.” Portelli v I

R Constr Prod Co, Inc, 218 Mich App 591, 606; 554

NW2d 591 (1996). “Undeﬁned statutory terms must be

80 328 M

ICH

74 [May

given their plain and ordinary meanings, and it is

proper to consult a dictionary for deﬁnitions.” Halloran

v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004). This

Court must avoid interpreting a statute in a way that

would make any part of it meaningless or nugatory.

Sweatt v Dep’t of Corrections, 468 Mich 172, 183; 661

NW2d 201 (2003).

To prevail on a claim under the WICA, a plaintiff

must prove by clear and convincing evidence all of the

following:

(a) The plaintiff was convicted of 1 or more crimes

under the law of this state, was sentenced to a term of

imprisonment in a state correctional facility for the crime

or crimes, and served at least part of the sentence.

(b) The plaintiff’s judgment of conviction was reversed

or vacated and either the charges were dismissed or the

plaintiff was determined on retrial to be not guilty. How-

ever, the plaintiff is not entitled to compensation under

this act if the plaintiff was convicted of another criminal

offense arising from the same transaction and either that

offense was not dismissed or the plaintiff was convicted of

that offense on retrial.

perpetrate the crime and was not an accomplice or acces-

sory to the acts that were the basis of the conviction, results

in the reversal or vacation of the charges in the judgment of

conviction or a gubernatorial pardon, and results in either

dismissal of all of the charges or a ﬁnding of not guilty on

all of the charges on retrial. [MCL 691.1755(1) (emphasis

added).]

The WICA deﬁnes “new evidence” as “any evidence

that was not presented in the proceedings leading to

plaintiff’s conviction, including new testimony, expert

interpretation, the results of DNA testing, or other

test results relating to evidence that was presented in

the proceedings leading to plaintiff’s conviction.”

2019] S

ULLIVAN V

ICHIGAN

MCL 691.1752(b). However, when the proposed new

evidence depends on the reliability of a recantation,

the WICA provides an additional requirement:

New evidence does not include a recantation by a witness

unless there is other evidence to support the recantation or

unless the prosecuting attorney for the county in which

the plaintiff was convicted or, if the department of attor-

ney general prosecuted the case, the attorney general

agrees that the recantation constitutes new evidence

without other evidence to support the recantation. [MCL

691.1752(b) (emphasis added).]

A. PATTON’S RECANTATION EVIDENCE

Sullivan ﬁrst argues that Patton’s recantation con-

stituted “new evidence” sufﬁcient to meet the stan-

dards enumerated in MCL 691.1755(1)(c). We disagree.

Sullivan claims that he is entitled to compensation

under the WICA because Patton’s recantation consti-

tutes “new evidence.” MCL 691.1752 precludes the use

of a recantation as new evidence unless it is supported

by “other evidence.” In this case, Sullivan claims that

Patton’s afﬁdavits, his testimony at the evidentiary

hearing, and his answers to questions in the polygraph

report are separate and distinct pieces of “other evi-

dence” that support Patton’s recantation. Essentially,

Sullivan argues that repeating the same recantation in

different forms meets the deﬁnition of “other evidence”

because each form is separate and distinct from the

others. This argument is without merit.

The WICA does not deﬁne “other evidence.”

Merriam-Webster’s Collegiate Dictionary (11th ed) de-

ﬁnes “other” as “not the same” or “different.” There-

fore, Patton’s recantation must be supported by evi-

dence that is “not the same” as his recantation or that

is “different” from his recantation. With respect to

82 328 M

ICH

74 [May

Patton’s afﬁdavits, his testimony, and his oral state-

ments made during the polygraph examination, the

substance of each piece of proposed evidence is essen-

tially the same—Sullivan simply provided the same

recantation in three different forms. None of these

recantations meets the plain meaning of “other evi-

dence” under the statute because the latter recanta-

tions are not materially “different” from the initial

recantation. Thus, we conclude that the recantation

evidence Sullivan provided in different forms was not

“other evidence” under MCL 691.1752(b).

Moreover, the Legislature requires that the “other

evidence” “support the recantation . . . .” MCL

691.1752(b). Dictionary deﬁnitions of “support” include

“to provide with substantiation,” “corroborate,” “as-

sist,” or “help.” Merriam-Webster’s Collegiate Diction-

ary (11th ed). Therefore, a recantation must be sub-

stantiated or corroborated by evidence that is different

from the recantation itself. To allow Sullivan to use the

recantation afﬁdavits and similar evidence to support

Patton’s recantation would render meaningless the

statute’s requirement that there be “other evidence to

support the recantation”; a recantation cannot support

itself. Otherwise, there would be no need for the

Legislature to use the verb “support” in the statute. We

do not interpret “other evidence” as Sullivan suggests

because it would render the text of the WICA statute

meaningless or nugatory. See Sweatt, 468 Mich at 183.

We conclude that the afﬁdavits, new-trial hearing

testimony, and assertions made at the polygraph test

were merely different iterations of the same recanta-

tion; none of the iterations satisﬁed the requirement in

MCL 691.1752(b) that a recantation be supported by

“other evidence.”

2019] S

ULLIVAN V

ICHIGAN

B. PATTON’S POLYGRAPH RESULTS

Sullivan also argues that the Court of Claims erred

by concluding that the polygraph results alone did not

qualify (1) as “new evidence” sufﬁcient to satisfy the

statute, or (2) as “other evidence” that supported

Patton’s recantation. We disagree.

Results of a polygraph examination are not admis-

sible at trial in criminal or civil cases. People v Jones,

468 Mich 345, 355; 662 NW2d 376 (2003); see also

Stone v Earp, 331 Mich 606, 610-611; 50 NW2d 172

(1951); Mich State Employees Ass’n v Civil Serv Comm,

126 Mich App 797, 805; 338 NW2d 220 (1983). Poly-

graph results are inadmissible because “there is simply

no consensus that polygraph evidence is reliable.”

United States v Scheffer, 523 US 303, 309; 118 S Ct

1261; 140 L Ed 2d 413 (1998) (plurality opinion).

However, the Michigan Supreme Court has carved out

one narrow exception for when the results of a poly-

graph examination may be considered: “[P]olygraph

results may be considered, within the discretion of the

judge, to enable a decision to be reached at a post-

conviction hearing for a new trial.” People v Barbara,

400 Mich 352, 415; 255 NW2d 171 (1977). Our Su-

preme Court created this narrow exception for the

admission of polygraph results at postconviction hear-

ings, but the Court has consistently declined to admit

evidence of the results of a polygraph examination in a

party’s case-in-chief. See id. at 416; Stone, 331 Mich at

610-611.

Sullivan argues that because a civil proceeding

under the WICA is more like a postconviction hearing

on a motion for a new trial than it is like an actual civil

trial, the polygraph results should be admissible evi-

dence in his civil lawsuit under the narrow exception

established in Barbara. However, the rationale for the

84 328 M

ICH

74 [May

exception does not support its expansion in this case.

The Barbara Court explained that polygraph results

could be considered when deciding a postconviction

motion for a new trial but not as evidence at a criminal

trial because

the procedure at trial and at a post-conviction hearing for

new trial is different and signiﬁcantly so. The procedures

are signiﬁcantly different because their purposes are

signiﬁcantly different. The purpose of a trial is to deter-

mine the guilt or innocence of the defendant. The purpose

of a post-conviction hearing for a new trial is, as its name

suggests, an action to determine whether there should be

such a trial. It is a preliminary, not a ﬁnal procedure.

[Barbara, 400 Mich at 411.]

Although the Court in Barbara considered the ad-

missibility of polygraph results in a criminal case, the

same logic applies to Sullivan’s WICA claim. As in

Barbara, Sullivan’s underlying criminal case involved

a motion for a new trial. Indeed, the trial court consid-

ered the polygraph evidence in deciding to grant Sul-

livan’s motion for a new trial. If the case proceeds to a

civil trial involving Sullivan’s WICA claim, the poly-

graph results would not be admissible to prove Sulli-

van’s case-in-chief because, as explained in Barbara, a

postconviction motion is categorically different from a

trial on the merits, whether deciding guilt in a criminal

trial or liability in a civil trial. Therefore, we decline

Sullivan’s invitation to treat his WICA claim like a

motion for a new trial. Sullivan’s claim is a civil action

and must be proved during his case-in-chief, and

polygraph results are not admissible during the case-

in-chief. Accordingly, we hold that the Court of Claims

did not err by granting the state of Michigan’s motion

for summary disposition and dismissing Sullivan’s

WICA claim because the polygraph results are not

admissible and thus do not satisfy the deﬁnition of

2019] S

ULLIVAN V

ICHIGAN

“new evidence” under MCL 691.1752(b) and do not

qualify as the “other evidence” required to support a

recantation’s status as new evidence under MCL

691.1752(b).

Furthermore, even if the polygraph results were

admissible and constituted “new evidence” under MCL

691.1755, Sullivan still cannot prevail. Sullivan must

satisfy four requirements under MCL 691.1755(1)(c)

before he is entitled to compensation under the WICA:

(1) the proffered evidence must meet the deﬁnition of

“new evidence” under MCL 691.1752(b), (2) the new

evidence must demonstrate that Sullivan did not per-

petrate the crime and was not an accomplice or acces-

sory to the acts that were the basis for the conviction,

(3) the new evidence must result in the reversal or

vacation of the charges in the judgment of conviction,

and (4) the new evidence must result in dismissal of all

the charges or a ﬁnding on retrial of not guilty on all

the charges.

Sullivan must, therefore, show that the polygraph

examination resulted in the reversal or vacation of the

charges in the judgment of conviction as well as the

dismissal of those charges. We agree that the results of

the polygraph examination resulted in the reversal or

vacation of Sullivan’s robbery and murder convictions.

On the basis of the polygraph results, the trial court

concluded that the recantation testimony was reliable,

and the court therefore vacated the convictions and

granted Sullivan a new trial. However, the case was

not dismissed as a result of the polygraph results. After

the trial court granted the motion for a new trial, the

prosecution expressed its intent to pursue a new trial

and moved for permission to use Patton’s testimony

from Sullivan’s initial trial. The trial court, however,

denied the prosecution’s request to use Patton’s testi-

86 328 M

ICH

74 [May

mony as evidence against Sullivan. Following the

denial, the prosecution explained that it could not

proceed to trial without Patton’s testimony, and for

that reason, the trial court dismissed the charges.

Thus, the dismissal of the charges was a result of the

prosecution’s inability to use Patton’s prior trial

testimony—the charges were not dismissed because

Patton “passed” a polygraph examination.

Afﬁrmed.

WARTZLE

, P.J., and C

AVANAGH

, J., concurred with

AMERON

, J.

2019] S

ULLIVAN V

ICHIGAN

HOLETON v CITY OF LIVONIA

Docket Nos. 341624 and 341847. Submitted April 9, 2019, at Detroit.

Decided May 7, 2019, at 9:15 a.m.

John Holeton and Pauline Holeton brought an action in the Wayne

Circuit Court in 2014 against the city of Livonia and the members

of the Livonia City Council, individually and in their ofﬁcial

capacities, alleging that defendants had violated the Open Meet-

ings Act (OMA), MCL 15.261 et seq., by, among other things,

engaging in conduct designed to discourage or limit their partici-

pation in public city council meetings concerning the installation

of advanced metering infrastructure, commonly known as “smart

meters.” The allegations were based, in part, on an incident in

which defendant Maureen Brosnan, who was chairing a 2012

meeting of the city council’s infrastructure committee, had Pau-

line Holeton removed from the meeting by a Livonia police ofﬁcer

for violating a rule requiring that her comments be addressed to

the chair and not to the audience. The trial court, Robert L.

Ziolkowski, J., granted summary disposition to defendants on the

ground that plaintiffs’ claims were time-barred under MCL

15.273, and it also denied plaintiffs’ motion to ﬁle an amended

complaint to include claims against the unnamed police ofﬁcer

who had removed Pauline Holeton from the committee meeting.

Plaintiffs appealed. The Court of Appeals, H

OEKSTRA

, P.J., and

ANSEN

and M

ETER

, JJ., in an unpublished per curiam opinion

issued July 21, 2015 (Docket No. 321501), afﬁrmed the trial

court’s decision to grant summary disposition to defendants on

the alternative ground that plaintiffs’ claims were barred by the

doctrine of laches but reversed in part the court’s denial of

plaintiffs’ motion for leave to amend the complaint, and it

remanded the case to the trial court. After their motion for

reconsideration was denied, plaintiffs sought leave to appeal in

the Supreme Court, which vacated the portion of the Court of

Appeals judgment holding that plaintiffs’ claims were barred by

the doctrine of laches and ordered the Court of Appeals ﬁrst to

remand the case to the trial court to determine whether defen-

dants had been prejudiced by plaintiffs’ delay in bringing their

action and then to reconsider its decision that plaintiffs’ claims

were barred by laches. 499 Mich 898 (2016). On remand, the trial

88 328

ICH

88 [May

court determined that defendants had not been prejudiced by

plaintiffs’ delay, and the same Court of Appeals panel afﬁrmed in

an unpublished per curiam opinion issued August 2, 2016 (Docket

No. 321501), holding this time that laches did not bar plaintiffs’

action and remanding the case for further proceedings. Plaintiffs

then ﬁled an amended complaint that alleged various claims

against the unnamed police ofﬁcer and a claim under 42 USC

1983 that the ofﬁcer and Brosnan had violated plaintiffs’ consti-

tutional rights. The court, Daniel A. Hathaway, J., denied defen-

dants’ motion for summary disposition of plaintiffs’ claim for

declaratory relief and the motion for summary disposition of the

claims under 42 USC 1983, but granted the motion with respect

to the remaining claims and dismissed them with prejudice.

Brosnan appealed this order in Docket No. 341624, the city

council appealed in Docket No. 341847, and the Court of Appeals

consolidated the cases.

The Court of Appeals held:

1. The trial court erred when it denied Brosnan’s motion to

dismiss plaintiffs’ claims under 42 USC 1983. To establish a claim

under 42 USC 1983, a plaintiff must plead and be able to prove

that the defendant deprived him or her of a right secured by the

United States Constitution or the laws of the United States and

that the defendant was acting under color of state law when he or

she deprived the plaintiff of the right. Plaintiffs argued that the

address-the-chair rule was selectively applied and that Pauline

Holeton’s expulsion violated her right to petition the committee.

They also suggested that acts by the committee members at past

meetings, such as interrupting plaintiffs and making dismissive

remarks, showed that Brosnan and the other council members

were motivated by a desire to violate plaintiffs’ speech and

petition rights. However, while the First Amendment prevents

governments from interfering with the speech of private individu-

als on the basis of the message expressed, it does not prevent

governments from enacting content-neutral restrictions that im-

pose incidental limitations on speech. For a limited public forum,

such as the committee meeting at issue, the state may impose

reasonable regulations on speech so as to reserve the forum for its

intended purposes, as long as the regulation does not suppress

expression on the basis of the speaker’s view. Plaintiffs did not

allege or present any evidence that Brosnan implemented an

address-the-chair rule in order to curtail anyone’s speech on the

basis of the content or viewpoint expressed. They also did not

allege or present evidence that the rule was unreasonable for the

forum. They did not allege or present any evidence that they had

2019] H

OLETON V

IVONIA

actually been prevented from speaking at a previous meeting or

that the implementation of the rule denied them the right to

petition the committee at the meeting in March 2012. In fact, it

was undisputed that plaintiffs had been able to speak on this

subject at previous meetings. Plaintiffs failed to allege or present

evidence that Brosnan or the council members engaged in a

pattern or plan of harassment and intimidation that prevented

them from exercising their First Amendment rights premised on

the content of their speech or their viewpoint. Although removing

Pauline Holeton for a violation of the rule absent a breach of the

peace might have amounted to a violation of Michigan’s OMA

under MCL 15.263(6), a violation of the OMA does not itself

establish that Brosnan’s actions also deprived Holeton of her

rights under the First and Fourteenth Amendments. It is also not

a violation of the Equal Protection Clause of the Fourteenth

Amendment for a municipality to favor commentary by its own

citizens over noncitizens, as long as the rule does not discriminate

on the basis of the speaker’s view. On this record, no reasonable

jury could ﬁnd that Brosnan implemented the address-the-chair

rule to retaliate against plaintiffs or that she otherwise deprived

them of their rights by enforcing the rule.

2. The trial court erred when it refused to grant Brosnan’s

motion for summary disposition on the basis of qualiﬁed immu-

nity. An ofﬁcial has qualiﬁed immunity from suits under 42 USC

1983 when the ofﬁcial’s conduct does not violate clearly estab-

lished statutory or constitutional rights of which a reasonable

person would have known. Before allowing a claim to proceed, a

court must ﬁrst decide whether the facts that a plaintiff has

alleged or shown make out a violation of a constitutional right. If

the plaintiff has satisﬁed this step, the court must then decide

whether the right at issue was clearly established at the time of

defendant’s alleged misconduct. In order to survive summary

disposition of the claim alleged in this case, plaintiffs had to show

that it was clearly established that the First Amendment or

Fourteenth Amendment prevented a committee chair from en-

forcing an otherwise reasonable and viewpoint-neutral proce-

dural rule—the address-the-chair rule—by expelling a person

who does not comply with the rule under similar facts. To do so,

plaintiffs relied solely on the fact that the OMA prohibited

expulsion absent a breach of the peace at the meeting. However,

the requirements of the OMA do not establish the parameters of

the rights protected under the First and Fourteenth Amend-

ments, and under the state of the law applicable to limited public

fora, a reasonable chairperson might conclude that, consistent

with the First and Fourteenth Amendments, he or she could

90 328

ICH

88 [May

properly enforce an otherwise reasonable and viewpoint-neutral

rule by expelling a member of the audience who repeatedly

violated the rule and was thereby disrupting the orderly progress

of the meeting. No reasonable jury could ﬁnd that a reasonable

chairperson in Brosnan’s shoes would have understood that she

was violating Pauline Holeton’s First Amendment rights by

implementing and enforcing the address-the-chair rule under

those circumstances. With respect to plaintiffs’ claims that they

were deprived of liberty without due process, they did not identify

the speciﬁc right violated and did not show that a reasonable

chairperson in Brosnan’s position would have known that her

acts or omissions violated a clearly established right under the

Fourteenth Amendment. It was undisputed that Pauline Holeton

had notice of the address-the-chair rule, was admonished to

follow the rule, and failed to do so. She had notice and an

opportunity to comply before being expelled. There was also no

evidence that anyone physically handled Holeton or otherwise

inhibited her freedom of movement. Accordingly, the trial court

should also have dismissed plaintiffs’ claim under 42 USC 1983 to

the extent that it relied on a deprivation of a right other than the

rights guaranteed under the First Amendment.

3. The trial court erred when it denied the city council’s

motion for summary disposition of plaintiffs’ claim under 42 USC

1983. A municipality can be sued under 42 USC 1983 for a

deprivation of rights protected by the Constitution of the United

States or a federal statute. However, its liability cannot be

predicated on a respondeat superior theory. Rather, the plaintiff

must plead and be able to prove that the municipality’s policy or

custom directly led to the deprivation of the federal constitutional

or statutory right at issue. Plaintiffs failed to show that Brosnan’s

actions deprived them of a right protected under the First or

Fourteenth Amendment. Brosnan’s address-the-chair rule was

reasonable and viewpoint neutral, as permitted for limited public

fora. Moreover, Brosnan could ensure the orderly progress of the

meeting by enforcing the rule, and expulsion was not a constitu-

tionally suspect remedy. Further, plaintiffs could not rely on a

violation of the OMA to establish a violation of a right protected

by the First or Fourteenth Amendments, and the trial court

record showed that Brosnan’s actions were permissible under

those amendments. Because plaintiffs failed to establish a ques-

tion of fact for the jury as to whether Brosnan’s implementation

and enforcement of the address-the-chair rule violated their

constitutional rights, even if Brosnan acted pursuant to a policy

or procedure implemented by Livonia, a reasonable jury could not

ﬁnd that the policy caused a deprivation of rights. For these

2019] H

OLETON V

IVONIA

reasons, the trial court should have dismissed plaintiffs’ claim

under 42 USC 1983 as to all defendants.

Reversed and remanded for further proceedings.

1. C

ONSTITUTIONAL

— F

REEDOM OF

PEECH

— L

IMITED

UBLIC

ORA

—

ONTENT

-N

EUTRAL

PEECH

ESTRICTIONS

The First Amendment of the United States Constitution prevents

the government from interfering with the speech of private

individuals on the basis of the message expressed; however, it

does not prevent governments from enacting content-neutral

restrictions that impose incidental limitations on speech; in a

limited public forum, the state may impose reasonable regula-

tions on speech so as to reserve the forum for its intended

purposes, as long as the regulation does not suppress expression

on the basis of the speaker’s view.

2. C

ONSTITUTIONAL

— F

REEDOM OF

PEECH

— D

ROCESS

— O

PEN

EETINGS

— V

IOLATIONS

The Open Meetings Act, MCL 15.261 et seq., provides that a person

shall not be excluded from a meeting otherwise open to the public

except for a breach of the peace actually committed at the

meeting; removing a speaker from a meeting in violation of this

provision does not itself establish a violation of the speaker’s

rights under the First or Fourteenth Amendments of the United

States Constitution (MCL 15.263(6)).

John Holeton and Pauline Holeton in propriis per-

sonis.

Paul A. Bernier and Eric S. Goldstein for defen-

dants.

Before: M

URRAY

, C.J., and S

AWYER

and R

EDFORD

, JJ.

URIAM

. These consolidated appeals originated

in a claim that defendants violated the Open Meetings

Act (OMA), MCL 15.261 et seq., or otherwise wrong-

fully interfered with the rights of plaintiffs, John and

Pauline Holeton, to participate in meetings held by

Livonia’s city council. In Docket No. 341624, defendant

Maureen Miller Brosnan appeals by right the trial

92 328 M

ICH

88 [May

court’s order denying her motion for summary disposi-

tion of the Holetons’ claim under 42 USC 1983, pre-

mised in part on her assertion of governmental immu-

nity. In Docket No. 341847, defendants—City of

Livonia, City of Livonia City Council, City of Livonia

City Council’s Infrastructure Community Transit

Committee (the Infrastructure Committee), Laura M.

Toy, Maureen Miller Brosnan, John R. Pastor, Brandon

M. Kritzman, James C. McCann, Joe Laura, Thomas A.

Robinson, and an unknown police ofﬁcer—appeal by

leave granted the trial court’s order denying in part

their motion for summary disposition of the same

claim. For the reasons more fully explained below, we

reverse the trial court’s decision to deny defendants’

motions to dismiss the Holetons’ claim under 42 USC

1983.

I. BASIC FACTS

The individual defendants, other than the unknown

police ofﬁcer, were, or are, members of Livonia City

Council. The Holetons are self-styled “community ac-

tivists” who want to raise public awareness about the

harms they believe are associated with DTE Energy’s

advanced metering infrastructure—otherwise known

as “smart meters”—and do so in part by attending local

governmental meetings, such as those held by the City

Council. The Holetons sued defendants in January

2014 for violating the OMA. The case reached this

Court, then our Supreme Court, and was eventually

remanded for further proceedings. See Holeton v Livo-

nia (On Remand), unpublished per curiam opinion of

the Court of Appeals, issued August 2, 2016 (Docket

No. 321501).

In August 2017, the Holetons ﬁled an amended

complaint that stated additional claims, including a

2019] H

OLETON V

IVONIA

claim that Brosnan violated their rights guaranteed by

the First and Fourteenth Amendments of the United

States Constitution when she expelled Pauline from a

meeting of the Infrastructure Committee held in

March 2012. Brosnan ostensibly ordered Pauline to

leave for violating an address-the-chair rule. Defen-

dants each moved for summary disposition of the

Holetons’ claims in September 2017. Although the trial

court dismissed many of the Holetons’ claims, it al-

lowed the Holetons’ claims under 42 USC 1983 to

proceed against Brosnan and the City Council.

These appeals followed.

II. BROSNAN’S APPEAL IN DOCKET NO. 341624

In her appeal, Brosnan argues that the trial court

erred when it denied her motion to dismiss the Hole-

tons’ claims under 42 USC 1983. Speciﬁcally, she

argues that the trial court should have granted her

motion because the Holetons failed to identify a federal

constitutional or statutory right that she violated. In

the alternative, she maintains that the Holetons failed

to overcome her qualiﬁed immunity.

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

a motion for summary disposition. Barnard Mfg Co,

Inc v Gates Performance Engineering, Inc, 285 Mich

App 362, 369; 775 NW2d 618 (2009). This Court also

reviews de novo whether Brosnan had qualiﬁed immu-

nity for her actions. See Morden v Grand Traverse Co,

275 Mich App 325, 340; 738 NW2d 278 (2007).

Congress provided a cause of action for persons who

have been deprived of their rights by persons acting

under color of state law:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

94 328

ICH

88 [May

Territory or the District of Columbia, subjects, or causes to

be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of

any rights, privileges, or immunities secured by the Con-

stitution and laws, shall be liable to the party injured in

an action at law, suit in equity, or other proper proceeding

for redress . . . . [42 USC 1983.]

In order to establish a claim under 42 USC 1983, the

plaintiff must plead and be able to prove that the

defendant deprived him or her of a right secured by the

United States Constitution or the laws of the United

States and that the defendant was acting under color

of state law when he or she deprived the plaintiff of the

right. See Morden, 275 Mich App at 332.

In this case, the Holetons alleged that their partici-

pation in the public meetings implicated their rights

under the First Amendment—their right to petition

the government and their right to freely speak their

views. They further alleged that Brosnan intentionally

or with callous disregard for their rights caused Pau-

line to be removed from a meeting, which violated their

rights to free speech and to petition the government.

They claimed that Brosnan’s actions deprived Pauline

of her rights under the Fourteenth Amendment as

well, and they suggested that she was deprived of

liberty. They indicated that there was no probable

cause to remove Pauline from the meeting held on

March 19, 2012.

It is apparent that the Holetons’ claim under 42

USC 1983—as alleged—arose solely from Brosnan’s

conduct at the meeting of the Infrastructure Commit-

tee held in March 2012. More speciﬁcally, they alleged

that Brosnan’s decision to order Pauline to leave the

meeting amounted to a deprivation of her federal

constitutional rights.

2019] H

OLETON V

IVONIA

In her motion for summary disposition, Brosnan

properly noted that she was entitled to summary dispo-

sition on the ground that the Holetons failed to show

that Brosnan unlawfully deprived Pauline of her rights

under the First Amendment or the Fourteenth Amend-

ment. She also identiﬁed grounds for concluding that

she had qualiﬁed immunity and that the Holetons could

not establish grounds for avoiding her qualiﬁed immu-

nity. Because she ﬁled a properly supported motion for

summary disposition on those grounds, the Holetons

had to respond and establish that there was, at the very

least, a question of fact as to whether Brosnan violated

an identiﬁable right and that the right was so clearly

established that no reasonable chairperson would have

acted in the way that Brosnan did. See Barnard Mfg,

285 Mich App at 374-375.

In response, the Holetons argued that the address-

the-chair rule was selectively applied and favored

Livonia’s citizens. They then argued that Pauline’s

expulsion violated her right to petition the committee.

However, they did not discuss the relevant law,

whether the evidence showed that Pauline actually

violated the address-the-chair rule, the reasonableness

of the rule, or the reasonableness of Brosnan’s decision

to ask Pauline to leave in response to Pauline’s pur-

ported failure to comply with the rule and her behavior

at the podium. Rather, the Holetons appeared to argue

that expelling a member of the public for violating a

rule was per se a violation of that person’s First

Amendment rights to speak and petition because ex-

pulsion can only be done under the OMA when some-

one disturbs the peace. They similarly argued that the

requirements of the OMA were clear and, therefore,

Brosnan did not have qualiﬁed immunity. They also

suggested that acts by the committee members at past

meetings, such as interrupting the Holetons and mak-

96 328 M

ICH

88 [May

ing dismissive remarks, showed that Brosnan and the

other council members were motivated by a desire to

violate Pauline’s speech and petition rights.

It is well settled that the First Amendment prevents

government from interfering with the speech of private

individuals on the basis of the message expressed. See

Turner Broadcasting Sys, Inc v Fed Communications

Comm, 512 US 622, 641; 114 S Ct 2445; 129 L Ed 2d 497

(1994). The amendment does not, however, prevent

governments from enacting content-neutral restrictions

that impose incidental limitations on speech. Id. at 662.

That is so because the First Amendment does not

protect the right to publicize one’s views whenever,

however, and wherever one pleases. See Wood v Moss,

572 US 744, 757; 134 S Ct 2056; 188 L Ed 2d 1039

(2014). Additionally, as Brosnan correctly notes on ap-

peal, the committee meeting at issue was a limited

public forum. See Perry Ed Ass’n v Perry Local Educa-

tors’ Ass’n, 460 US 37, 45-47; 103 S Ct 948; 74 L Ed 2d

794 (1983); Reza v Pearce, 806 F3d 497, 502-503 (CA 9,

2015) (stating that city council meetings are dedicated

solely to the discussion of certain topics and, therefore,

are a limited public forum); Rowe v City of Cocoa, 358

F3d 800, 803 (CA 11, 2004) (“As a limited public forum,

a city council meeting is not open for endless public

commentary speech but instead is simply a limited

platform to discuss the topic at hand.”). For a limited

public forum, the state may impose reasonable regula-

tions on speech so as to reserve the forum for its

intended purposes, as long as the regulation does not

suppress expression on the basis of the speaker’s

view. Perry Ed Ass’n, 460 US at 45-46. The First

Amendment also prohibits government ofﬁcials from

punishing individuals for engaging in protected speech,

see Lozman v Riviera Beach, 585 US ___, ___; 138 S Ct

1945, 1949; 201 L Ed 2d 342 (2018), and secures the

2019] H

OLETON V

IVONIA

right to petition the government for redress of griev-

ances, see BE & K Constr v Nat’l Labor Relations Bd,

536 US 516, 524; 122 S Ct 2390; 153 L Ed 2d 499 (2002).

These protections apply to the states through the Four-

teenth Amendment. See Mills v Alabama, 384 US 214,

218; 86 S Ct 1434; 16 L Ed 2d 484 (1966).

In this case, the Holetons did not allege or present

any evidence that Brosnan implemented an address-

the-chair rule in order to curtail anyone’s speech on the

basis of the content or viewpoint expressed. They also

did not allege or present evidence that the rule was

unreasonable for the forum. See Perry Ed Ass’n, 460

US at 45-46. They did not allege or present any

evidence that they had actually been prevented from

speaking at a previous meeting or that the implemen-

tation of the rule denied them the right to petition the

committee at the meeting in March 2012.

It is undisputed that the Holetons had been able to

speak at previous meetings. Similarly, the evidence

showed that Pauline was invited to express her views

at the committee’s meeting in March 2012 and was

given the opportunity to express her views at that

meeting. The Holetons failed to allege or present

evidence that Brosnan or the council members engaged

in a pattern or plan of harassment and intimidation

that prevented them from exercising their First

Amendment rights premised on the content of their

speech or their viewpoint. See Lozman, 585 US at ___;

138 S Ct at 1954-1955. Instead, the Holetons premised

their claim under 42 USC 1983 on the fact that

Brosnan took steps to end Pauline’s speech and peti-

tion activities for failing to comply with an address-

the-chair rule; they suggest that Brosnan could not do

so absent a breach of the peace by Pauline. Stated

another way, the Holetons did not allege or argue that

98 328 M

ICH

88 [May

Brosnan or the council had formulated a plan to

retaliate against the Holetons on the basis of their

previously expressed viewpoints. See id. They relied

solely on Brosnan’s decision to implement an address-

the-chair rule and enforce that rule.

The evidence showed that the City Council sched-

uled the meeting to address citizen concerns about

smart meters, which previous meetings of the City

Council had shown to be a contentious issue. By

requiring commentary to be directed to the chair,

Brosnan ensured that commentators would not be

inciting other attendees to heckle or debate the com-

mentator or otherwise disrupt the orderly progress of

the commentary. The City Council had a signiﬁcant

governmental interest in conducting orderly and efﬁ-

cient meetings. See Rowe, 358 F3d at 802-803. The rule

was on its face reasonably calculated to ensure the

orderly participation of the community members who

wished to express their views without targeting the

content or their viewpoint. Accordingly, the rule was

reasonable and consistent with the requirements of the

First Amendment for limited public fora. See Perry Ed

Ass’n, 460 US at 45-46.

As noted, the address-the-chair rule did not by itself

target the speaker’s viewpoint and did not prevent

anyone from petitioning the Infrastructure Commit-

tee. Brosnan also provided reasonable notice of the rule

by explaining the nature of the rule before the meeting

of the Infrastructure Committee. The mere existence of

the rule—without regard to the propriety of its

promulgation—did not violate the Holetons’ First

Amendment rights or their right to due process under

the Fourteenth Amendment. Additionally, although

removing Pauline for a violation of the rule might have

amounted to a violation of Michigan’s OMA, see MCL

2019] H

OLETON V

IVONIA

15.263(6), a violation of the OMA does not itself estab-

lish that Brosnan’s actions also deprived Pauline of her

rights under the First and Fourteenth Amendments.

See, e.g., Davis v Scherer, 468 US 183, 194-196; 104 S

Ct 3012; 82 L Ed 2d 139 (1984) (rejecting the conten-

tion that a violation of a related state statute or

regulation necessarily renders the state actor’s actions

unreasonable for purposes of determining qualiﬁed

immunity). Indeed, because a council meeting is a

limited public forum, the council can promulgate rules

limiting the content and extent of the commentary and

can provide for the expulsion of persons who disrupt

the orderly progress of the meeting. See Eichenlaub v

Indiana Twp, 385 F3d 274, 281 (CA 3, 2004) (upholding

removal of a member of the public where the evidence

showed that the speaker was repetitive and truculent

and explaining that restricting such behavior pre-

vented the speaker from hijacking the proceedings,

which would infringe the First Amendment rights of

other would-be participants); see also White v Norwalk,

900 F2d 1421, 1425-1426 (CA 9, 1990) (holding that an

ordinance was not facially invalid under the First

Amendment because it allowed the moderator of a city

council’s meeting to eject an audience member for

disruptions short of a breach of the peace). It is also not

a violation of the Equal Protection Clause of the

Fourteenth Amendment for a municipality to favor

commentary by its own citizens over noncitizens, as

long as the rule does not discriminate on the basis of

the speaker’s view. See Rowe, 358 F3d at 803 (“It is

reasonable for a city to restrict the individuals who

may speak at meetings to those individuals who have a

direct stake in the business of the city—e.g., citizens of

the city or those who receive a utility service from the

city—so long as that restriction is not based on the

speaker’s viewpoint.”).

100 328 M

ICH

88 [May

In this case, the evidence showed that Brosnan gave

Pauline a reasonable opportunity to address the com-

mittee at the meeting. It is true that Brosnan immedi-

ately admonished Pauline to address the chair and

referred to previous encounters, but the video evidence

showed that Brosnan’s remarks were occasioned by the

fact that Pauline immediately began to address the

audience rather than the chair. And Pauline did so after

another commentator had resorted to personal attacks

on the DTE representatives and a general increase in

the tensions at the meeting. Nevertheless, there was no

evidence that Brosnan selectively applied the address-

the-chair rule on the basis of the speaker’s viewpoint, or

enforced it without warning or in a capricious or arbi-

trary manner. Indeed, the evidence showed that she

applied the rule to several previous speakers from both

Livonia and outside communities. The evidence also

demonstrated that Brosnan twice admonished Pauline

to comply with the rule but still provided her with an

opportunity to start over. The evidence showed that

Brosnan allowed John Holeton to speak without inter-

ruption for several minutes after Pauline left the meet-

ing, which belies the notion that Brosnan used the rule

as a pretext to discriminate against the Holetons on the

basis of their previously expressed views. The video also

showed that Pauline was dismissive and demeaning

toward Brosnan and the representative from DTE En-

ergy. Brosnan’s efforts to moderate the meeting were

reasonable given the limited forum. See Perry Ed Ass’n,

460 US at 45-46. The Holetons failed to establish that

Brosnan violated Pauline’s constitutional rights by ad-

monishing her to follow the rule and then asking her to

leave when she was unwilling to comply with the rule.

On this record, no reasonable jury could ﬁnd that

Brosnan implemented the address-the-chair rule to re-

taliate against the Holetons or that she otherwise de-

2019] H

OLETON V

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101

prived them of their rights by enforcing the rule. See

MCR 2.116(C)(10); Quinto v Cross & Peters Co, 451

Mich 358, 367, 547 NW2d 314 (1996) (recognizing that

the nonmoving party must present evidence sufﬁcient

“to permit a reasonable jury” to ﬁnd in favor of the

nonmoving party).

The trial court also erred when it refused to grant

Brosnan’s motion on the basis of qualiﬁed immunity.

An ofﬁcial has qualiﬁed immunity from suits under 42

USC 1983 when the ofﬁcial’s conduct “does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known.” Kisela

v Hughes, 584 US ___, ___; 138 S Ct 1148, 1152; 200 L

Ed 2d 449 (2018) (quotation marks and citation omit-

ted). “The doctrine of qualiﬁed immunity protects gov-

ernment ofﬁcials from liability for civil damages inso-

far as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable

person would have known.” Pearson v Callahan, 555

US 223, 231; 129 S Ct 808; 172 L Ed 2d 565 (2009)

(quotation marks and citation omitted). Before allow-

ing a claim to proceed, courts must determine that the

plaintiff has established two elements that defeat

qualiﬁed immunity:

First, a court must decide whether the facts that a

plaintiff has alleged or shown make out a violation of a

constitutional right. Second, if the plaintiff has satisﬁed

this ﬁrst step, the court must decide whether the right at

issue was “clearly established” at the time of defendant’s

alleged misconduct. [Id. at 232 (quotation marks and

citations omitted).]

The focus of the inquiry is on whether the ofﬁcial

had “fair notice that her conduct was unlawful,” and,

for that reason, the reasonableness of the act must be

judged against the backdrop of the law at the time of

102 328 M

ICH

88 [May

the conduct. Kisela, 584 US at ___; 138 S Ct at 1152

(quotation marks and citations omitted). The allega-

tions and facts must show that it would have been

clear to a reasonable ofﬁcial in the defendant’s position

that his or her conduct was unlawful under the situa-

tion that he or she confronted. Wood, 572 US at 758.

The Supreme Court of the United States has also

repeatedly admonished lower courts “not to deﬁne

clearly established law at a high level of generality.”

Kisela, 584 US at ___; 138 S Ct at 1152 (quotation

marks and citation omitted). Although there need not

be a case directly on point for a right to be clearly

established, “existing precedent must have placed

the . . . constitutional question beyond debate.” Id. It

was, therefore, not sufﬁcient for the Holetons to assert

that it was clearly established that the First Amend-

ment protects speech and the right to petition govern-

ment, or that the Fourteenth Amendment ensures the

right to due process. In order to survive summary

disposition of the claim alleged in this case, the Hole-

tons had to show that it was clearly established that

the First Amendment or Fourteenth Amendment pre-

vented a committee chair from enforcing an otherwise

reasonable and viewpoint-neutral procedural rule—

the address-the-chair rule—by expelling a person who

does not comply with the rule under similar facts. This

they did not do.

The Holetons relied solely on the fact that the OMA

prohibited expulsion absent a breach of the peace at

the meeting. The requirements of the OMA do not

establish the parameters of the rights protected under

the First and Fourteenth Amendments. See Davis, 468

US at 194-196. And it has been held that an ordinance

that allows expulsion short of a breach of the peace is

constitutional. See White, 900 F2d at 1425-1426. Un-

der the state of the law applicable to limited public

2019] H

OLETON V

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103

fora, a reasonable chairperson might conclude that,

consistently with the First and Fourteenth Amend-

ments, he or she could properly enforce an otherwise

reasonable and viewpoint-neutral rule by expelling a

member of the audience who repeatedly violated the

rule and was thereby disrupting the orderly progress of

the meeting. This is especially true when—as in this

case—the chairperson warned the speaker and gave

the speaker the opportunity to comply with the rule.

No reasonable jury could ﬁnd that a reasonable chair-

person in Brosnan’s shoes would have understood that

she was violating Pauline’s First Amendment rights by

implementing and enforcing the address-the-chair rule

under those circumstances. See Kisela, 584 US at ___;

138 S Ct at 1153-1154. The Holetons failed to establish

that Brosnan was not entitled to qualiﬁed immunity

for resorting to expulsion rather than some other less

drastic remedy for the rule violation.

As Brosnan correctly notes on appeal, it was unclear

from the amended complaint and arguments made

before the trial court how Brosnan purportedly vio-

lated the Holetons’ rights under the Fourteenth

Amendment. The First Amendment applies to state

actors through the Fourteenth Amendment. Accord-

ingly, the Holetons’ claim under 42 USC 1983 could be

viewed as a First Amendment claim. However, the

Holetons failed to establish a violation of their First

Amendment rights. They also asserted that Brosnan

and the unnamed ofﬁcer deprived Pauline of liberty

without due process of law. But they did not clarify the

nature of the claim in response to Brosnan’s motion for

summary disposition. They did not identify the speciﬁc

right violated and did not show that a reasonable

chairperson in Brosnan’s position would have known

that her acts or omissions violated a clearly estab-

104 328 M

ICH

88 [May

lished right under the Fourteenth Amendment. See

Kisela, 584 US at ___; 138 S Ct at 1153-1154.

Once Brosnan made a properly supported motion for

summary disposition of the Holetons’ claim under the

Fourteenth Amendment, the Holetons were obligated

to demonstrate the nature of the right at issue and that

qualiﬁed immunity did not apply. It was not enough

that a state actor’s actions might have had some

conceivable effect on life, liberty, or property. See Moore

v Detroit, 128 Mich App 491, 501-502; 340 NW2d 640

(1983). It was undisputed that Pauline had notice of

the rule, was admonished to follow the rule, and failed

to do so. She had notice and an opportunity to comply

before being expelled. That process may have been

sufﬁcient under the circumstances. See Hinky Dinky

Supermarket, Inc v Dep’t of Community Health, 261

Mich App 604, 606; 683 NW2d 759 (2004). There was

also no evidence that anyone physically handled Pau-

line or otherwise inhibited her freedom of movement.

On this record, the Holetons failed to identify an

independent violation of a right guaranteed under the

Fourteenth Amendment, which could have supported a

claim under 42 USC 1983. Accordingly, the trial court

should also have dismissed the Holetons’ claim under

42 USC 1983 to the extent that it relied on a depriva-

tion of a right other than the rights guaranteed under

the First Amendment.

III. THE CITY COUNCIL’S APPEAL IN DOCKET NO. 341847

The City Council also argues on appeal that the trial

court erred when it denied its motion for summary

disposition of the Holetons’ claim under 42 USC 1983.

The City Council argues that the trial court erred to

the extent that it denied its motion because the City

Council could be held liable for Brosnan’s acts under a

2019] H

OLETON V

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105

theory of respondeat superior and erred because the

City Council is not an entity that is capable of being

sued.

It is well settled that a municipality is a person that

can be sued under 42 USC 1983 for a deprivation of

rights protected by the United States Constitution or a

federal statute. See Johnson v VanderKooi, 502 Mich

751, 762; 918 NW2d 785 (2018). However, it is equally

clear that a plaintiff cannot predicate liability on a

respondeat superior theory. Id. at 763. Rather, the

plaintiff must plead and be able to prove that the

municipality’s policy or custom directly led to the

deprivation of the federal constitutional or statutory

right at issue. Id. at 762. “A constitutional violation is

attributable to a municipality if ‘the action that is

alleged to be unconstitutional implements or executes

a policy statement, ordinance, regulation, or decision

ofﬁcially adopted and promulgated by that body’s ofﬁ-

cers.’ ” Id. at 762, quoting Monell v Dep’t of Social Servs

of the City of New York, 436 US 658, 690; 98 S Ct 2018;

56 L Ed 2d 611 (1978).

As discussed in Brosnan’s appeal, the Holetons

failed to show that Brosnan’s actions deprived them of

a right protected under the First or Fourteenth

Amendment. Brosnan’s address-the-chair rule was

reasonable and viewpoint neutral, as permitted for

limited public fora. See Perry Ed Ass’n, 460 US at

45-46. Moreover, Brosnan could ensure the orderly

progress of the meeting by enforcing the rule, see

Rowe, 358 F3d at 803, and expulsion was not a consti-

tutionally suspect remedy, see White, 900 F2d at 1425-

1426. The Holetons further could not rely on a violation

of the OMA to establish a violation of a right protected

by the First or Fourteenth Amendments. See Davis,

468 US at 194-196. On the record before the trial court,

106 328 M

ICH

88 [May

Brosnan’s actions were permissible under the First

and Fourteenth Amendments. The Holetons failed to

establish a question of fact for the jury as to whether

Brosnan’s implementation and enforcement of the

address-the-chair rule violated their constitutional

rights. Therefore, even if Brosnan acted pursuant to a

policy or procedure implemented by Livonia, a reason-

able jury could not ﬁnd that the policy caused a

deprivation of rights. See Johnson, 502 Mich at 762.

For these reasons, the trial court should have dis-

missed the Holetons’ claim under 42 USC 1983 as to all

defendants. See Barnard Mfg, 285 Mich App at 374-

375.

IV. CONCLUSION

Because the Holetons failed to identify a deprivation

of their rights under the First and Fourteenth Amend-

ments of the United States Constitution, the trial court

should have dismissed their claims under 42 USC 1983

as to all defendants. For that reason, we reverse the

trial court’s decision to deny the motions for summary

disposition of the Holetons’ claims under 42 USC 1983

in both dockets, and we remand this case for entry of

an order dismissing the claims.

Reversed and remanded for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion. Because this appeal involved issues of importance

to the general public, we order that none of the parties

may tax their costs. See MCR 7.219(A).

URRAY

, C.J., and S

AWYER

and R

EDFORD

, JJ., con-

curred.

2019] H

OLETON V

IVONIA

107

HUTCHINSON v INGHAM COUNTY HEALTH DEPARTMENT

Docket No. 341249. Submitted May 2, 2019, at Lansing. Decided May 9,

2019, at 9:00 a.m. Leave to appeal denied 505 Mich 982 (2020).

Zanetta Hutchinson ﬁled a medical malpractice action in the

Ingham Circuit Court against the Ingham County Health Depart-

ment, Carol Salisbury, N.P., and Peter Gulick, D.O., in connection

with Salisbury’s and Gulick’s treatment of plaintiff for a lump in

her left breast. Salisbury ordered a mammogram for plaintiff in

late summer 2013 after plaintiff reported the lump, which was

not painful or tender to the touch. The radiologist who read the

images concluded that plaintiff had a benign-appearing calciﬁca-

tion in her left breast; Gulick reviewed and electronically signed

the mammogram report. The lump continued to grow, but at a

follow-up appointment in November 2013, Salisbury informed

plaintiff that her breast tissue was dense, that the lump was

benign, and that the lump was a calciﬁcation. Plaintiff had three

additional appointments with Salisbury between November 2013

and June 2014 before plaintiff moved to Arkansas later that year;

plaintiff reported at each appointment that the lump had grown

in size, and, according to plaintiff, Salisbury continued to assure

her that the lump was a calciﬁcation. Plaintiff did not consult

with other doctors about the issue or do independent research

regarding the issue because Salisbury had explained that the

lump was a calciﬁcation, but she still did daily breast self-

examinations because she was concerned with the size of the

lump. On May 1, 2015, plaintiff reported the lump to her new

physician in Arkansas, who ordered a mammogram. Plaintiff had

the mammogram on June 1, 2015; the Arkansas radiologist

recommended a biopsy of the lump because of her concern that it

could be cancerous; the lump was biopsied on June 9, 2015; and

plaintiff received the results and a cancer diagnosis on June 15,

2015. Plaintiff mailed her notice of intent to defendants on

December 4, 2015, and later ﬁled her complaint. Gulick moved to

dismiss, arguing that plaintiff’s claim was barred under MCL

600.5838a(2) because the claim was ﬁled more than six months

after plaintiff discovered or should have discovered the existence

of her claim. The court, James S. Jamo, J., granted Gulick’s

motion as to all defendants, reasoning that plaintiff should have

108 328

ICH

108 [May

discovered her possible cause of action in 2013 or 2014 or, at the

latest, on June 1, 2015, when the radiologist informed her that a

biopsy was necessary because the lump could be cancerous.

Plaintiff appealed by delayed leave granted.

The Court of Appeals held:

MCL 600.5838a(2) provides that an action involving a medical

malpractice claim may be commenced within the applicable

period prescribed in MCL 600.5805 or MCL 600.5851 to MCL

600.5856 or within six months after the plaintiff discovers or

should have discovered the existence of the claim, whichever is

later; a medical malpractice action is barred if it is not com-

menced within that time frame or any other time frame pre-

scribed by that subsection. The burden of proving that the

plaintiff, as a result of physical discomfort, appearance, condition,

or otherwise, neither discovered nor should have discovered the

existence of the claim at least six months before the expiration of

the period otherwise applicable to the claim is on the plaintiff.

When there are no disputed facts, the question whether a

plaintiff’s cause of action is barred by the statute of limitations is

a question of law to be determined by the trial court. With regard

to the possible-cause-of-action theory, an objective standard must

be used when determining when a plaintiff should have discov-

ered his or her injury; in other words, the question is whether a

reasonable person, not a reasonable physician, would or should

have discovered his or her injury. While a plaintiff does not have

to be aware of the full extent of his or her injury before the statute

of limitations begins to run, the plaintiff must possess at least

some minimum level of information that, when viewed in totality,

suggests a nexus between the injury and the negligent act; thus,

the possible-cause-of-action standard is not an anything-is-

possible standard. When applying this ﬂexible approach, courts

should consider the totality of information available to the

plaintiff, including the plaintiff’s own observations of physical

discomfort and appearance, the plaintiff’s familiarity with the

condition through past experience or otherwise, and the physi-

cian’s explanations of possible causes or diagnoses of the condi-

tion. The possible-cause-of-action standard must be applied with

a substantial degree of ﬂexibility when the cause of a plaintiff’s

injury is difﬁcult to determine because of a delay in diagnosis.

Signiﬁcantly, the Legislature chose the phrase “should have”

rather than “could have” in the statutory text. Therefore, the

inquiry is whether it was probable, not possible, for a reasonable

lay person to have discovered the existence of the claim. An

individual does not have to conduct an extensive investigation,

2019] H

UTCHINSON V

NGHAM

EALTH

’

109

such as performing independent research or seeking out medical

records to attain more information than he or she has been given

by a medical professional. The facts concerning plaintiff’s course

of treatment were undisputed in this case; thus, the only dispute

was when plaintiff discovered or should have discovered her

possible cause of action. Therefore, the question when plaintiff

discovered or should have discovered her potential claim was not

one for the jury to decide, and the trial court correctly considered

the issue in a summary-disposition motion. The facts of this case

were distinguishable from those in Solowy v Oakwood Hosp Corp,

454 Mich 214 (1997), and Solowy therefore did not control the

outcome. In 2013 and 2014, Salisbury informed plaintiff at

multiple appointments that the lump in plaintiff’s left breast,

which continued to grow in size, was a calciﬁcation. While

plaintiff had subjective concerns as a layperson regarding the

lump, the record did not contain objective facts that would have

led her to conclude that the lump was cancerous. Plaintiff

reasonably relied on Salisbury’s assurance that the growing lump

was a benign calciﬁcation, and while plaintiff knew the lump was

growing, she had no past experience with breast cancer that

would have informed her the diagnosis may have been wrong.

Therefore, the record did not support the view that plaintiff

should have known of the existence of her possible cause of action

in 2013 or 2014. Similarly, although the Arkansas radiologist

informed her after the June 1, 2015 mammogram that a biopsy of

the lump was necessary because of a general concern that it was

cancer, it was not reasonable to conclude that plaintiff should

have discovered her possible cause of action on that date because

plaintiff did not know that she had cancer when speaking with

the radiologist, had not been diagnosed with cancer previously,

and did not have prior experience with cancer that would have

made her familiar with a cancer diagnosis. Thus, plaintiff did not

discover and should not have discovered her possible cause of

action against defendants until she was informed on June 15,

2015, that the lump was cancerous. Plaintiff’s notice was timely

ﬁled for purposes of MCL 600.5838a(2) because she mailed the

notice of intent on December 4, 2015, less than six months after

she knew or should have known about her possible cause of

action. For that reason, the trial court erred by granting Gulick’s

motion for summary disposition in favor of all defendants.

Reversed.

McKeen & Associates, PC (by Brian J. McKeen and

John LaParl, Jr.) for Zanetta Hutchinson.

110 328 M

ICH

108 [May

Cohl, Stoker & Toskey, PC (by Bonnie G. Toskey and

Gordon J. Love) for the Ingham County Health Depart-

ment and Carol Salisbury.

Hall Matson, PLC (by Marcy R. Matson and Sandra

J. Lake) for Peter Gulick.

Before: B

OONSTRA

, P.J., and M

ETER

and F

ORT

OOD

JJ.

ORT

OOD

, J. In this medical malpractice case,

plaintiff, Zanetta Hutchinson, appeals by delayed

leave granted

the trial court’s order granting sum-

mary disposition in favor of defendants, Ingham

County Health Department; Carol Salisbury, N.P.; and

Peter Gulick, D.O., pursuant to MCR 2.116(C)(7). For

the reasons set forth in this opinion, we reverse and

remand to the trial court for proceedings consistent

with this opinion.

I. FACTS AND PROCEDURAL HISTORY

In her ﬁrst amended complaint, plaintiff alleged

that she was a patient of the Ingham County Health

Department and was treated by Salisbury, a nurse

practitioner, and Gulick, a physician specializing in

internal medicine.

Plaintiff further alleged that when

she informed Salisbury that she had a lump in her left

breast in the late summer of 2013, Salisbury, super-

vised by Gulick, ordered a mammogram for plaintiff,

and a mammogram was performed on September 4,

2013. Plaintiff’s ﬁrst amended complaint alleged that

Hutchinson v Ingham Co Health Dep’t, unpublished order of the

Court of Appeals, entered June 26, 2018 (Docket No. 341249).

Gulick, according to the record, is also a board-certiﬁed infectious-

disease physician.

2019] H

UTCHINSON V

NGHAM

EALTH

’

111

she underwent a “ ‘MAMMO SCREEN DIGITAL W

CAD PANEL BILAT’ ” at Sparrow Health System, and

that the radiologist, Alfredo P. La Fe, M.D., stated with

regard to the results:

“The tissue of both breasts is heterogeneously dense. This

may lower the sensitivity of mammography . . . . There is

a benign appearing calciﬁcation in the right breast. There

are also benign appearing calciﬁcations in the left breast.

No signiﬁcant masses, calciﬁcations, or other ﬁnding [sic]

are seen in either breast.”

According to the ﬁrst amended complaint, Gulick

reviewed and “electronically signed” the mammogram

results on September 5, 2013. Plaintiff alleged that

Gulick was negligent in not providing appropriate care

and treatment to plaintiff by not monitoring and man-

aging her treatment properly when she complained of

a lump in her breast and by not ordering a diagnostic

mammogram for plaintiff as opposed to a screening

mammogram. Speciﬁcally, plaintiff alleged, among

other things, that Gulick should have ordered a biopsy

performed on plaintiff once her mammogram showed

“suspicious calciﬁcations in her left breast” and that

Gulick was negligent in his supervision of Salisbury.

Plaintiff made similar claims against Salisbury, alleg-

ing that Salisbury failed to ensure that “[plaintiff’s]

physician [was] properly informed of [her] breast com-

plaints and mammogram results.”

After plaintiff

moved to Arkansas in 2014, she sought medical care at

the University of Arkansas for Medical Sciences. On

June 1, 2015, a mammogram of plaintiff’s left breast

was performed, and following a June 9, 2015 biopsy,

plaintiff was diagnosed with breast cancer on June 15,

Plaintiff’s three-count ﬁrst amended complaint alleged medical

negligence against Gulick, Salisbury, and the Ingham County Health

Department.

112 328

ICH

108 [May

2015. The parties do not dispute that plaintiff mailed

her notice of intent in this case on December 4, 2015.

See MCL 600.2912b(1) and (2).

In her deposition in this case, plaintiff recalled that in

August 2013, she attended an appointment with Salis-

bury and that Salisbury ordered a mammogram for her

after feeling a knot in her left breast. According to

plaintiff, the knot she described “was never tender or it

never hurt; it was just growing.” While plaintiff would

do her own monthly breast exams, it was her partner at

the time who discovered the knot in her left breast. In

plaintiff’s words, her partner observed “a small-like pea

shaped knot in [her] breast.” Plaintiff stated that during

her initial visit with Salisbury

concerning the lump in

her left breast, “[Salisbury] had me lay back, and she

did the breast exam and she felt the lump.” After

Salisbury felt the lump, plaintiff recalled that “[Salis-

bury] said that we would do a mammogram.” Plaintiff

denied that she felt any pain or tenderness when

Salisbury was examining the lump. Plaintiff further

described the ensuing events as follows:

So I went to [Sparrow Hospital] and I did the mammo-

gram as scheduled and waited on the results to come back.

So at my next checkup appointment, [Salisbury] told me

that it was calciﬁcations from me delivering my son late at

40. And they don’t prescribe dry up breast milk pills

anymore, so that’s what she told me at 40. So I took her

word as what it was. I know no different. I’m not a doctor.

According to plaintiff, she had her mammogram on

September 4, 2013. At the time that she had her

mammogram, plaintiff was not experiencing pain, ten-

derness, or discharge from her left breast. Plaintiff did

not discuss her mammogram results with Gulick be-

While plaintiff could not recall the exact date of the appointment, it

appears from the record that it took place on August 28, 2013.

2019] H

UTCHINSON V

NGHAM

EALTH

’

113

cause he was not “the doctor that actually [was as-

signed] to be administrator; [Salisbury] was.” According

to the records of the Ingham County Health Depart-

ment, plaintiff did not return to see Salisbury after her

mammogram until November 2013, but plaintiff could

not independently recall the date of her follow-up ap-

pointment with Salisbury. However, plaintiff was ada-

mant during her deposition testimony that Salisbury

informed her that the lump in her breast “was just

calciﬁcations.” Plaintiff testiﬁed that she was eager to

follow up with Salisbury following her mammogram

because “I wanted to know what the results were for the

lump because the lump was still in my breast growing;

it was getting bigger, and I wanted to know what it

was.”

Following her September 4, 2013 mammogram,

plaintiff continued to conduct her own self-

examinations of her left breast, and the following

colloquy took place between plaintiff and defense coun-

sel on this subject:

Q. And you continued to do monthly self-exams?

A. Right. I continued to feel the knot every day.

Q. So at this point, you weren’t doing it monthly, you’re

doing it daily?

A. Yeah. I am, like, touching that spot every day.

Q. And it was actually getting bigger?

A. Yeah.

Q. So between September, when you had the mammo-

gram, and November, which would’ve been the next time

that you actually saw NP Salisbury, every day you noticed

this lump and you noticed it was actually getting bigger?

* * *

114 328

ICH

108 [May

A. Well, right. When I did see [Salisbury] again, the

knot had gotten bigger. And she felt it, and she did an

exam; I pointed it out to her. And she felt it, and she said,

“Yes. But it does seem to be bigger, but it’s still—I just

think it’s calciﬁcations because you had a baby at 40, and

they don’t give breastmilk pills anymore.” So you know?

What can I say? I’m not a doctor. I had to take her word for

it.

While plaintiff could not recall the exact speciﬁcs

of her conversation with Salisbury during the appoint-

ment in which they discussed the results of her

September 4, 2013 mammogram, she was very clear

that Salisbury told her that the lump in her left breast

was “calciﬁcations.” Plaintiff also recalled that Salis-

bury told her that her breast tissue was dense, that the

lump was benign, and that made it difﬁcult for “them

to actually view what exactly [the lump] was.” Plaintiff

did not have any follow-up treatment with regard to

the lump. Plaintiff denied that Salisbury informed her

that she should return for a repeat mammogram in a

year. In plaintiff’s words, “[t]hey ruled it as calciﬁca-

tions, and they left it at that. And the lump continued

to grow, and I continued to show her. They never did

nothing else other than what they had did [sic].”

Plaintiff saw Salisbury three more times before she

moved to Arkansas on an unspeciﬁed date in 2014.

Each time, plaintiff told Salisbury that the lump was

getting bigger, and Salisbury would feel the lump but

“[Salisbury] did nothing.” According to plaintiff, Salis-

bury acknowledged during their appointments that the

lump did appear to be growing. Plaintiff did not do any

independent research on the subject of calciﬁcations,

she did not talk to anyone else about the lump in her

breast, and she did not consult with any other doctors

about the issue. While the lump continued to grow,

plaintiff did not experience any tenderness, pain, or

2019] H

UTCHINSON V

NGHAM

EALTH

’

115

discharge. Plaintiff saw Gulick on February 14, 2014,

for a reason unrelated to the lump in her breast, but

they did not discuss the lump in her breast or her

mammogram results.

After plaintiff moved to Little Rock, Arkansas, she

began to treat with Dr. Moses;

during her ﬁrst ap-

pointment on May 1, 2015, plaintiff told Moses about

the lump in her breast and Moses ordered a mammo-

gram. Plaintiff described the ﬁrst appointment with

Moses as follows:

Well, [Moses] did the breast exam, and she noticed the

mass; that is what she called it. And she said that she was

unsure and got a little worried about that. And it was

pretty big, and she wanted to get it checked out. So she

referred me for a mammogram, and they took it from

there.

According to the record, plaintiff’s last appointment

with Salisbury was in June 2014, and she did not

consult with any other doctors before seeing Moses on

May 1, 2015. Defense counsel continued to question

plaintiff as follows regarding her initial visit with

Moses in Little Rock:

Q. And did [Moses] tell you what she was worried

about?

A. Not exactly. Just that the mass was—how big the

mass was. She wanted to see what it was because it was

kind of huge for my little breast. It was a pretty big tumor

in there.

Q. Okay. Did she say to you that she was concerned it

might be breast cancer?

A. No, she didn’t say that. She just said she was

concerned and she wanted to see what it was.

During her deposition, plaintiff indicated that she thought Moses’s

ﬁrst name was “Tricia.”

116 328

ICH

108 [May

Q. Were you concerned that it might be breast cancer?

A. I was concerned that it could’ve been anything; you

know?

Q. Was cancer one of the things you were concerned

about?

A. Well, yeah. It don’t [sic] run in my family in the girls,

but yeah; you know?

Q. Just living in our society that is something you’re

aware of?

A. Yeah.

Between her last appointment with Salisbury and

her ﬁrst appointment with Moses, plaintiff continued

to feel the lump in her left breast on a daily basis and

observed that it continued to grow. When defense

counsel asked plaintiff if she was concerned that it was

breast cancer, plaintiff answered in the following man-

ner:

Actually, I didn’t know what to think it was. I just

assumed it was what they said it was, but I knew it was

getting bigger. And I don’t—I’m not a doctor, but I didn’t

think calciﬁcation pockets grow like that. So, I mean,

common sense, you would think it was something else. You

would be alarmed, so yeah. I was scared it could’ve been

something serious as it was, and it was.

However, later in her deposition, during questioning

by her own counsel, plaintiff stated that because she

was informed by Salisbury that the lump was a calci-

ﬁcation, she had not been particularly worried about

the lump. Plaintiff had her mammogram on June 1,

2015. According to plaintiff, after more images were

ordered, she was informed on an unspeciﬁed date

In their brief on appeal, the Ingham County Health Department and

Salisbury “concede that the exact date on which Plaintiff was informed

of the mammogram result is unknown.”

2019] H

UTCHINSON V

NGHAM

EALTH

’

117

Dr. Frost,

a radiologist, that she would need a biopsy.

Plaintiff testiﬁed that Frost told her that a biopsy was

necessary “[b]ecause of the mass, the size of the mass,

and they wanted to be sure of what it was because it

was actually . . . formed in my milk ducts in my breast.”

Plaintiff testiﬁed further regarding the substance of

her communications with Frost:

Q. Did they say to you that they were concerned [the

lump] could be cancerous?

A. Yes, she did.

Q. And because there was a concern that it could be

cancerous, she wanted you to actually have a biopsy to

ﬁnd out what it exactly is?

A. Exactly.

Plaintiff’s deposition testimony continued, in pertinent

part:

Q. And it looks like you had the biopsy on June 9?

A. That sounds about right.

Q. So it was pretty quickly after you had the mammo-

gram that you talked to Dr. Frost?

A. Right.

Q. And she said, “This could be cancer. We need to do a

biopsy. We need to ﬁnd out what’s going on?”

A. Right.

Plaintiff received her biopsy results on June 15,

2015, and was diagnosed with breast cancer. Speciﬁ-

cally, plaintiff was diagnosed with “[i]nvasive ductal

carcinoma,” and “[l]ymphvascular invasion [was] iden-

tiﬁed.” Plaintiff was informed she would need chemo-

therapy and radiation and that her left breast would

need to be removed because the tumor was 10 cm in

Frost’s ﬁrst name could not be discerned from the record.

118 328

ICH

108 [May

diameter and “had wrecked a lot of [her] breast tissue.”

Plaintiff opted to have a double mastectomy for pre-

ventative reasons. Plaintiff also testiﬁed that she has

Medicaid for her medical coverage and that once she

arrived in Arkansas, there was a 45-day waiting period

for coverage to begin. At the time of her deposition,

plaintiff’s cancer was in remission. Plaintiff testiﬁed

that she did not discuss the lump in her breast with an

obstetrician-gynecologist at the Ingham County

Health Department during an appointment after the

September 4, 2013 mammogram for the following

reasons:

I believed in what [Salisbury] was telling me it was

what it was. I—you know, I had no reason to question

their capabilities. I’m not a doctor. I don’t know. So I

believed what they were telling me until . . . [the lump]

kept growing.

Plaintiff mailed her notice of intent to sue to defen-

dants on December 4, 2015.

Relevant to this appeal, Gulick moved for summary

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

plaintiff’s claims were barred by the six-month discov-

ery rule. Speciﬁcally, Gulick contended that, consider-

ing precedent from the Michigan Supreme Court, So-

lowy v Oakwood Hosp Corp, 454 Mich 214; 561 NW2d

843 (1997), plaintiff was aware of her possible cause of

action—and the limitations period began to run—no

later than June 1, 2015. In support of his motion,

Gulick noted that plaintiff testiﬁed at her deposition

that during the period spanning 2013 to 2014, she

continually performed daily self-exams of her left

breast, she noticed that the lump was growing in size,

and she was concerned that the lump could be some-

thing more serious than a calciﬁcation. According to

Gulick: “Plaintiff had sufﬁcient suspicions in 2013 and

2019] H

UTCHINSON V

NGHAM

EALTH

’

119

2014 that perhaps she needed additional testing to rule

out cancer. These suspicions were sufﬁcient to trigger

the discovery rule.” Gulick also noted that plaintiff

testiﬁed that following a June 1, 2015 mammogram,

she was informed by Frost that she would require a

follow-up biopsy “because of the likelihood that the

lump was cancer.” Speciﬁcally, Gulick claimed that

because plaintiff was informed on June 1, 2015, that

the lump in her breast might be cancerous, she discov-

ered the existence of her possible claim as of June 1,

2015, and that therefore, pursuant to MCL

600.5838a(2), the six-month limitations period expired

on November 30, 2015. Gulick asserted that the claim

was time-barred because plaintiff’s notice of intent was

not ﬁled until December 4, 2015.

In her response to Gulick’s motion, plaintiff denied

that she could have discovered her possible cause of

action in 2013 or 2014 because Salisbury had informed

her that the lump in her left breast was benign, even

after she had told Salisbury that the lump was con-

tinuing to grow. Instead, plaintiff argued that the

six-month discovery period began on June 9, 2015,

when she received the biopsy results and was diag-

nosed with breast cancer. Notably, plaintiff disagreed

with Gulick’s assertion that she should have been

aware of her possible cause of action on June 1, 2015,

when she was informed that her mammogram was

“suspicious for cancer.” Speciﬁcally, plaintiff claimed

that the present case was factually distinguishable

from Solowy because the plaintiff in Solowy had al-

ready been diagnosed with cancer and was familiar

with its symptoms when it reoccurred. Plaintiff also

claimed that even though she was diagnosed with

The record reﬂects that plaintiff received her biopsy results and was

informed she had breast cancer on June 15, 2015.

120 328

ICH

108 [May

breast cancer on June 9, 2015, she was not aware of a

possible connection between the alleged malpractice of

Salisbury, Gulick, and the Ingham County Health

Department until June 15, 2015, “when [plaintiff] was

informed [by her medical providers in Arkansas] that

the 2013 mammogram should have prompted follow up

screening.” Reiterating that her claim was ﬁled in a

timely manner given that the six-month discovery

period did not begin to run until June 9, 2015, plaintiff

requested that the trial court deny Gulick’s motion for

summary disposition.

Plaintiff also ﬁled a supplemental response to Gu-

lick’s motion in which she attached her September 27,

2017 afﬁdavit. In her afﬁdavit, plaintiff averred as

follows:

1. After my mammogram in September 2013, I repeat-

edly informed Carol Salisbury, N.P., that the lump in my

left breast was continuing to grow. Each time I spoke to

Ms. Salisbury regarding the lump, she assured me that

the lump was just a benign calciﬁcation.

2. After I stopped treating with Ms. Salisbury, I con-

tinued to rely on her assurances that, despite the fact the

lump was growing, it was a benign calciﬁcation.

3. I have no medical training or specialized medical

knowledge, and trusted that Ms. Salisbury had been

correct when she had repeatedly assured me that the

lump was a benign calciﬁcation.

4. I had a mammogram performed on June 1, 2015,

after which I was told the scan was suspicious for cancer

in my left breast, and that I would need to have a biopsy

performed to determine whether I actually had breast

cancer.

5. I only became aware that I did in fact have breast

cancer after the biopsy was performed on June 9, 2015.

6. I learned that I had a possible malpractice claim on

approximately June 15, 2015, after I was informed by my

2019] H

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EALTH

’

121

treating physicians that the ﬁndings on the 2013 mammo-

gram should have prompted additional scans and a biopsy.

In reply, Gulick argued that MCL 600.5838a(2)

required plaintiff to initiate her lawsuit within six

months after she discovered or should have discovered

the existence of her claim, whichever occurred later,

and that the statute did not require that plaintiff have

“actual” knowledge of her claim, including injury and

causation. Gulick also asserted that even though plain-

tiff was not a medical doctor, given that she testiﬁed in

her deposition that the lump in her breast continued to

grow and that she was concerned it was cancer, she

had a duty to follow up on her suspicions that the lump

could be cancerous. Accordingly, Gulick reiterated his

argument that plaintiff should have discovered her

possible cause of action as early as 2013 or 2014 or at

the latest, on June 1, 2015, when she was informed

that the lump was being tested for cancer.

Following a hearing on Gulick’s motion, the trial

court, ruling from the bench, concluded that plaintiff

should have discovered her possible cause of action in

2013 or 2014 or, at the latest, when she was informed

by Frost that a biopsy was necessary because the lump

could be cancerous. The trial court concluded that

plaintiff’s cause of action was time-barred with regard

to all defendants as a result. Plaintiff now appeals by

delayed leave granted.

II. STANDARD OF REVIEW

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

a motion brought pursuant to MCR 2.116(C)(7) deter-

mining that an action is barred by the applicable

statute of limitations. Fraser Twp v Haney, 327 Mich

App 1, 4; 932 NW2d 239 (2018).

122 328 M

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In reviewing a trial court’s ruling that a claim is

barred by the applicable statute of limitations, the

following legal principles are of guidance:

“[T]his Court must accept all well-pleaded factual allega-

tions as true and construe them in favor of the plaintiff,

unless other evidence contradicts them. If any afﬁdavits,

depositions, admissions, or other documentary evidence

are submitted, the court must consider them to determine

whether there is a genuine issue of material fact. If no

facts are in dispute, and if reasonable minds could not

differ regarding the legal effect of those facts, the question

whether the claim is barred is an issue of law for the court.

However, if a question of fact exists to the extent that

factual development could provide a basis for recovery,

dismissal is inappropriate.” [Id. at 5, quoting Dextrom v

Wexford Co, 287 Mich App 406, 428-429; 789 NW2d 211

(2010).]

III. ANALYSIS

The thrust of plaintiff’s argument on appeal is that

the trial court erred by granting summary disposition

in favor of defendants on the basis of its conclusion

that plaintiff should have discovered her possible

cause of action against defendants in 2013 or 2014, or,

at the latest, when she was informed by Frost, follow-

ing her June 1, 2015 mammogram, that the lump in

her breast could be cancerous. We agree.

A. GOVERNING LAW

The parties acknowledge that plaintiff did not ﬁle

her claim within the two-year limitations period for

medical malpractice actions set forth in MCL

600.5805(6).

Accordingly, this appeal turns on

At the time plaintiff ﬁled her complaint, the applicable limitations

period was set forth in MCL 600.5805(6). See 2012 PA 582. The statute

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whether plaintiff timely initiated her claim within the

six-month discovery period set forth in MCL

600.5838a(2) which provides, in pertinent part:

Except as otherwise provided in this subsection, an

action involving a claim based on medical malpractice

may be commenced at any time within the applicable

period prescribed in [MCL 600.5805] or [MCL 500.5851 to

MCL 600.5856], or within 6 months after the plaintiff

discovers or should have discovered the existence of the

claim, whichever is later . . . . The burden of proving that

the plaintiff, as a result of physical discomfort, appear-

ance, condition, or otherwise, neither discovered nor

should have discovered the existence of the claim at least 6

months before the expiration of the period otherwise appli-

cable to the claim is on the plaintiff. A medical malpractice

action that is not commenced within the time prescribed

by this subsection is barred. [Emphasis added.]

The leading case from the Michigan Supreme Court

regarding what is also known as the six-month discov-

ery rule is Solowy, 454 Mich 214. In Solowy, the Court

was asked to determine whether the six-month discov-

ery period began to run when the plaintiff learned of

two potential causes for a lesion on her ear—one of

which was “potentially actionable” against medical

providers and the other not—or whether the six-month

discovery period commenced only when her physician

actually conﬁrmed “the potentially actionable diagno-

sis.” Id. at 215-216.

However, before delving into the substance of the

parties’ arguments with respect to when plaintiff dis-

covered, or should have discovered, a possible cause of

action against defendants, MCL 600.5838a(2); Solowy,

454 Mich at 221, 223, it is ﬁrst necessary to address

plaintiff’s argument that “[t]he determination of when

was amended effective June 12, 2018, by 2018 PA 183, and the

applicable limitations period is now set forth in MCL 600.5805(8).

124 328

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a plaintiff discovered or should have discovered the

alleged malpractice is a question of fact for the jury

where the relevant facts are in dispute.” (Emphasis

omitted.) As defendants correctly observe in their

briefs on appeal, plaintiff did not raise this speciﬁc

issue before the trial court in her response to Gulick’s

motion for summary disposition or during oral argu-

ment in the trial court, and she also did not argue it in

her delayed application seeking leave to appeal in this

Court. Notably, this Court’s order granting plaintiff’s

delayed application for leave to appeal speciﬁcally

states that this appeal “is limited to the issues raised

in the application and supporting brief. MCR

7.205(E)(4).” Hutchinson, unpub order at 1.

In any event, plaintiff’s argument is clearly without

merit because in Solowy, 454 Mich at 230, the Michi-

gan Supreme Court, quoting its earlier decision in Moll

v Abbott Laboratories, 444 Mich 1; 506 NW2d 816

(1993), reiterated that “ ‘in the absence of disputed

facts, the question whether a plaintiff’s cause of action

is barred by the statute of limitations is a question of

law to be determined by the trial judge.’ ” Moreover,

contrary to plaintiff’s assertions in her brief on appeal,

the facts in this case concerning plaintiff’s course of

treatment for the lump in her breast are not disputed.

Rather, what is disputed is when plaintiff discovered or

should have discovered her possible cause of action

against defendants. For example, the parties do not

dispute that plaintiff had a mammogram performed on

September 4, 2013, at Sparrow Hospital and that in a

follow-up visit to Salisbury, plaintiff was informed that

the lump in her left breast was a benign calciﬁcation.

Moreover, there is no dispute that plaintiff recognized

that the lump was growing in the months following her

September 4, 2013 mammogram, reported the growth

to Salisbury, and was assured that the growth was a

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benign calciﬁcation. The parties also do not disagree

concerning the course of treatment plaintiff received in

Arkansas, although there is some confusion

among

the parties with regard to the speciﬁc dates of plain-

tiff’s treatment. For example, Gulick contends that

plaintiff spoke to the radiologist, Frost, about a pos-

sible breast cancer diagnosis on June 1, 2015. How-

ever, a review of plaintiff’s deposition testimony re-

ﬂects that the date that plaintiff spoke with Frost is

unclear, and the Ingham County Health Department

and Salisbury concede this fact. Again, what the par-

ties disagree on is when, given the facts in the record

presented to the trial court and to this Court, plaintiff

discovered or should have discovered her possible

cause of action. Because the trial court’s ruling in favor

of defendants involved a legal determination on the

basis of undisputed facts, plaintiff’s argument that the

question when she discovered or should have discov-

ered her claim should be presented to the jury is

unpersuasive. Solowy, 454 Mich at 216, 230, 232.

In Solowy, the Michigan Supreme Court held that

the six-month discovery period for the plaintiff’s medi-

cal malpractice claim began to run when the plaintiff

“learned that one of two possible diagnoses for her

lesion [on her ear] was potentially actionable because

it was at this point that she should have discovered a

possible cause of action.” Id. at 216. The plaintiff had

originally been treated for a cancerous lesion on her

left ear in 1986, and she alleged that one of the

The confusion among the parties with regard to the date of

plaintiff’s conversation with Frost following her mammogram in Arkan-

sas is not material to the disposition of this appeal given our conclusion,

following the analysis of applicable Michigan precedent, that pursuant

to the speciﬁc circumstances of this case, plaintiff did not and should not

have discovered her possible cause of action until she received her

diagnosis of breast cancer on June 15, 2015.

126 328

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physicians treating her had informed her during her

earlier treatment that the cancer was “gone” with no

chance of it reoccurring. Id. at 216-217. The plaintiff

also claimed that she was not informed that she should

return to see her physicians for additional follow-up

treatment. Id. at 217. “In January 1992, about ﬁve

years after her last treatment” with the defendant

physicians, the plaintiff found a similar lesion on her

left ear in approximately the same location. Id. Nota-

bly, her symptoms were “nearly identical” to those she

had experienced ﬁve years earlier, and she testiﬁed

in her deposition that she felt the experience had

“ ‘started all over again.’ ” Id. When she consulted with

a dermatologist on March 27, 1992, the plaintiff was

informed that there were two possible diagnoses for

the new lesion, one of which was cancerous, and one of

which was not. Id. Following a biopsy, the plaintiff was

informed on April 9, 1992, that the lesion on her ear

was once again cancer. The plaintiff underwent exten-

sive surgery, removing the top portion of her left ear to

remove the cancer. Id. The plaintiff ﬁled her medical

malpractice lawsuit on October 5, 1992, and the defen-

dant physicians moved for summary disposition,

claiming that the plaintiff’s action was time-barred by

the statute of limitations. Id. at 217-218. The trial

court agreed with the defendant physicians, this Court

afﬁrmed the trial court’s ruling, and the plaintiff ﬁled

an application for leave to appeal in the Michigan

Supreme Court. Id. at 218-219.

On appeal in the Michigan Supreme Court, the

plaintiff contended that the “possible cause of action”

standard that the trial court and the Court of Appeals

had relied on, ﬁrst articulated in Moll and applied in

Gebhardt v O’Rourke, 444 Mich 535; 510 NW2d 900

(1994), should not apply in the context of medical

malpractice actions. The Michigan Supreme Court

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disagreed and afﬁrmed the use of the “possible cause of

action” standard in discerning when the six-month

discovery period begins to run. Id. at 221, 223. As the

Solowy Court explained, “[o]nce a plaintiff is aware of

an injury and its possible cause, the plaintiff is

equipped with the necessary knowledge to preserve

and diligently pursue his claim.” Id. at 223. In applying

the “possible cause of action” standard to the plaintiff’s

medical malpractice claim in Solowy, the Court ob-

served that an objective standard must be used when

determining when a plaintiff should have discovered

his or her injury and that a plaintiff “need not be able

to prove each element of the cause of action before the

statute of limitations begins to run.” Id. at 223-224.

The Michigan Supreme Court ultimately held that the

record conﬁrmed that the plaintiff was aware of her

possible cause of action on March 27, 1992, when she

ﬁrst consulted with a dermatologist and was informed

that the lesion on her left ear could potentially be

cancerous. Id. at 224. Notably, the Solowy Court em-

phasized that the plaintiff was aware that her symp-

toms “were identical to those she had experienced ﬁve

years earlier.” Id.

Additionally, given that the plaintiff alleged in her

complaint that she was not informed by the defendant

physicians that her cancer could recur and that she

should proceed with follow-up treatment, the Solowy

Court determined that as of March 27, 1992, the

plaintiff knew of her injury—the progression of a

potentially cancerous lesion on her ear—and the pos-

sible cause: the alleged failure of the defendant physi-

cians in 1986 to advise her that her cancer could return

and that she needed follow-up treatment. Id. Observ-

ing that the “possible cause of action” standard did not

require that the plaintiff “be aware of the full extent of

her injury before the clock begins to run,” the Solowy

128 328 M

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108 [May

Court held that as of March 27, 1992, the plaintiff “was

armed with the requisite knowledge to diligently pur-

sue her claim.” Id. at 224-225.

In Solowy, the Court went on to elaborate that a

“delay in diagnosis may delay the running of the

six-month discovery period in some cases” because

under some circumstances, an illness or a diagnosis

may not be possible until a test, or a series of such

tests, are performed. Id. at 226.

In such a case, it would be unfair to deem the plaintiff

aware of a possible cause of action before he could reason-

ably suspect a causal connection to the negligent act or

omission. While according to Moll, the “possible cause of

action” standard requires less knowledge than a “likely

cause of action standard,” it still requires that the plaintiff

possess at least some minimum level of information that,

when viewed in its totality, suggests a nexus between the

injury and the negligent act. In other words, the “possible

cause of action” standard is not an “anything is possible”

standard. [Id.]

Thus, the Solowy Court cautioned that a ﬂexible ap-

proach must be employed in applying the “possible

cause of action” standard and that when invoking such

a ﬂexible approach, courts should weigh the following:

In applying this ﬂexible approach, courts should con-

sider the totality of information available to the plaintiff,

including his own observations of physical discomfort and

appearance, his familiarity with the condition through

past experience or otherwise, and his physician’s explana-

tions of possible causes or diagnoses of his condition. [Id.

at 227.]

Again, the Solowy Court emphasized that the plain-

tiff, even before her 1992 cancer diagnosis, was aware

that her symptoms were the very same as what she

had experienced ﬁve years earlier and that “her obser-

vations of the discomfort and of the appearance and

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condition of her ear should have aroused suspicion in

her mind that the lesion might be cancer.” Id. at

227-228. Under the speciﬁc facts of that case, the

plaintiff’s personal observations of her condition and

symptoms, together with her dermatologist explaining

that her cancer could have returned, “supplied [the

plaintiff] with enough information to satisfy the stan-

dard.” Id. at 228. The Solowy Court summarized its

reasoning with respect to cases that involve a delayed

diagnosis in the following manner:

In summary, we caution that when the cause of a

plaintiff’s injury is difﬁcult to determine because of a

delay in diagnosis, the “possible cause of action” standard

should be applied with a substantial degree of ﬂexibility.

In such a case, courts should be guided by the doctrine of

reasonableness and the standard of due diligence and

must consider the totality of information available to the

plaintiff concerning the injury and its possible causes.

While the standard should be applied with ﬂexibility, it

should nevertheless be maintained so that the legitimate

legislative purposes behind the rather stringent medical

malpractice limitation provisions are honored. [Id. at 230.]

More recently, in Jendrusina v Mishra, 316 Mich

App 621, 624; 892 NW2d 423 (2016), the plaintiff ﬁled

a medical malpractice action against his primary care

providers, and after the defendants moved for sum-

mary disposition, claiming that the plaintiff had not

ﬁled his action in a timely manner, the trial court

granted the defendants’ motion, concluding that the

plaintiff had not ﬁled his claim in compliance with the

six-month discovery period set forth in MCL

600.5838a(2). The plaintiff was diagnosed with kidney

failure in January 2011, and he claimed that he did not

become aware of his medical malpractice claim until

September 20, 2012, when he consulted with a neph-

rologist, who informed him that he ought to have been

130 328 M

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108 [May

referred earlier to a nephrologist for treatment. Jen-

drusina, 316 Mich App at 625. The next day the

plaintiff contacted his attorney, and this Court, dis-

agreeing with the trial court, concluded that after

calculating the six-month discovery period from

September 20, 2012, the plaintiff had ﬁled his case in a

timely manner. Id. at 626-627.

Noting the importance of being “strictly guided” by

the plain language of MCL 600.5838a(2), this Court

observed that the Legislature used the language

“should have” rather than “could have” in the text of

MCL 600.5838a(2) when referring to the discovery of a

plaintiff’s claim. Jendrusina, 316 Mich App at 626.

Referring to the dictionary deﬁnitions of “could” and

“should,” this Court observed that the difference be-

tween the two is that the word “could” is employed to

reﬂect a possibility, while the word “should” denotes a

probability. Id. at 626. This Court also clariﬁed, in

pertinent part:

Therefore, the inquiry is not whether it was possible for a

reasonable lay person to have discovered the existence of

the claim; rather, the inquiry is whether it was probable

that a reasonable lay person would have discovered the

existence of the claim. [Id.]

In Jendrusina, the plaintiff’s medical chart, which

the defendant physician maintained, indicated that

the plaintiff was experiencing abnormal and worsen-

ing levels of two blood measures indicative of poor

kidney function. Id. at 627. This Court emphasized

that the existence of those records was not relevant to

the determination of when the plaintiff should have

discovered his claim unless the record reﬂected that

the plaintiff was made aware of the results. Id. at

627-628. Contrasting the plaintiff’s case with Solowy,

this Court noted that the plaintiff in Solowy, who had

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been diagnosed with cancer in the past, “knew that her

doctor might have committed malpractice as soon as

the tumor” returned, but she waited to determine

whether “she was in fact injured as a result of [her

doctor’s] actions.” Id. at 630. Additionally, the Jen-

drusina Court noted that the record did not indicate

that the plaintiff in Jendrusina should have been

aware of a possible cause of action, particularly given

that the plaintiff did not have a history of kidney

disease and he was not aware of any blood-test results

indicating the progression of his condition. Id. at 630.

Speciﬁcally, this Court stated, in pertinent part:

[A]fter diagnosis in January 2011, plaintiff knew he was

sick, but he lacked the relevant data about his worsening

lab reports and the medical knowledge to know that his

doctor might have committed malpractice. The critical

difference between plaintiff in this case and the plaintiff

in Solowy is that the plaintiff in Solowy neither required

nor lacked special knowledge about the nature of the

disease, its treatment, or its natural history. She knew

exactly what her relevant medical history was at all times.

She simply delayed pursuing her claim in order to wait for

ﬁnal conﬁrmation of what she already knew was very

likely true. Moreover, the Solowy plaintiff had visible

symptoms that were clearly recognizable as a likely recur-

rence of her skin cancer long before the ultimate diagno-

sis. In this case, however, plaintiff’s ﬁrst recognizable

symptom, i.e., urine retention, did not occur until January

2011 when it precipitated his hospitalization. [Id. at

630-631.]

This Court also offered additional guidance with re-

spect to the Supreme Court’s admonition that discern-

ing when a plaintiff knew of their “possible cause of

action” is to be done with reference to the “objective

facts,” id. at 631, stating:

An objective standard, however, turns on what a reason-

able, ordinary person would know, not what a reasonable

132 328

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108 [May

physician (or medical malpractice attorney) would know.

Therefore, the question is whether a reasonable person,

not a reasonable physician, would or should have under-

stood that the onset of kidney failure meant that the

person’s general practitioner had likely committed medi-

cal malpractice by not diagnosing kidney disease. [Id.]

Moreover, although the defendant physician in Jen-

drusina had ordered a kidney ultrasound performed

after the plaintiff experienced edema and “a slightly

elevated lab report in 2008” with the results of the

ultrasound being normal, this Court rejected the de-

fendants’ suggestion that the plaintiff should have

realized that he had kidney disease in 2008. Id. at

632-633. Speciﬁcally, this Court stated that “[t]he mere

performance of a noninvasive, commonly administered

kidney-imaging study that yielded a normal result” did

not amount to an “ ‘objective fact’ ” that would lead the

plaintiff to conclude that he had a possible cause of

action when he was subsequently diagnosed with kid-

ney disease. Id. at 633. While recognizing that it was

possible for the plaintiff in Jendrusina to have discov-

ered his claim after being diagnosed with kidney

failure, the Court noted that to have done so, the

plaintiff would have had to independently “undertaken

an extensive investigation to discover more informa-

tion than he had.” Id. Observing that the plaintiff

would have had to study the myriad causes of kidney

disease and the way it progressed, as well as indepen-

dently review his earlier blood-test results to deter-

mine if they yielded indications of the progression of

kidney disease, this Court stated that “there is no basis

in statute, common law or common sense to impute

such a duty to people who become ill.” Id. at 634.

Perhaps most relevant to the present case is the

Jendrusina Court’s response to the defendants’ sugges-

tion that “the diagnosis of any serious illness in and of

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itself sufﬁces to place on a reasonable person the

burden of discovering a potential claim against a

primary care physician if at any time in the past the

physician tested an organ involved in a later diagnosis

and reported normal results.” Id. The Court stated:

Certainly any new diagnosis or worsened diagnosis or

worsened prognosis is an “objective fact,” but it is a

substantial leap to conclude that this fact alone should

lead any reasonable person to know of a possible cause of

action. We agree that anytime someone receives a new

diagnosis, worsened diagnosis, or worsened prognosis,

that individual could consider whether the disease could

or should have been discovered earlier. Moreover, diligent

medical research and a review of the doctor’s notes might

reveal that an earlier diagnosis should have been made.

That, however, is not the standard. We must determine

what the plaintiff “should have discovered” on the basis of

what he knew or was told, not on the basis of what his

doctors knew or what can be found in specialized medical

literature. [Id. (some emphasis added).]

Accordingly, under such circumstances, the Jen-

drusina Court concluded that the plaintiff’s elevated

levels of creatinine in his blood tests in prior years

“[was] of no moment,” particularly given that the

plaintiff was not aware of the blood-test results and the

record did not suggest he understood what creatinine

levels were or the causes, treatment, and progression

of kidney disease. Id. at 634-635. Put simply, this Court

clearly rejected the defendants’ intimation that a diag-

nosis of an illness places the onus on a reasonable

person to discover a potential claim of medical mal-

practice against a medical provider if, in the past, the

medical provider had tested the organ involved in the

diagnosis and the earlier test yielded normal results:

To hold as defendants suggest would not merely be incon-

sistent with the text of the statute, but it would also be

134 328

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108 [May

highly disruptive to the doctor-patient relationship for

courts to advise patients that they “should” consider every

new diagnosis as evidence of possible malpractice until

proven otherwise. Had the Legislature intended such a

result, it would have used the phrase “could have discov-

ered,” not “should have discovered.” [Id. at 635.]

B. APPLICATION

On appeal, plaintiff claims that the six-month dis-

covery period started to run when she ﬁrst became

aware that she was diagnosed with breast cancer.

According to plaintiff, while she was certainly aware of

the lump in her breast throughout 2013 and 2014, she

had no reason to know of a possible cause of action

until June 15, 2015, when she received her biopsy

results demonstrating that the lump was malignant.

In plaintiff’s view, until she received her biopsy results,

she had every right to trust that defendants had

provided her with a correct diagnosis concerning the

lump in her breast. Plaintiff also asserts that she

cannot be held to the standard of a medical profes-

sional and that a reasonable, ordinary person would

not have been aware of a possible cause of action under

the circumstances of this case until plaintiff was made

aware of her biopsy results.

Conversely, defendants argue that the six-month

discovery period started to run in 2013 and 2014, or at

the latest, when plaintiff was informed by Frost that

she would need a biopsy following her June 1, 2015

mammogram in Arkansas. In support of their argu-

ment that the six-month discovery period started to

run in late 2013 or 2014, defendants repeatedly draw

attention to the fact that plaintiff testiﬁed during her

deposition that following her September 4, 2013 mam-

mogram, she continued to examine her left breast and

noted that the lump in her breast was continuing to

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grow. Defendants also state that because plaintiff

testiﬁed that she was subjectively concerned that the

lump could possibly be cancer, the trial court correctly

determined that plaintiff should have discovered her

possible cause of action in 2013 and 2014. In making

this argument, defendants cite the statutory language

of MCL 600.5838a(2), observing that because plaintiff

was noting the appearance of the lump in her breast,

she should have discovered her possible cause of action

at that time. Defendants also compare plaintiff to the

plaintiff in Solowy, arguing that because plaintiff was

aware of the changing size of the lump in her breast

and had suspicions that it could be cancer, she was

aware of her injury and its possible cause. Moreover,

defendants contend that at the very latest, the six-

month discovery period began to run when plaintiff

was informed by Frost that a biopsy was necessary to

determine whether the lump in her breast was cancer-

ous.

During her deposition, plaintiff testiﬁed that while

she was being treated by Salisbury following her

September 4, 2013 mammogram until June 2014, she

repeatedly raised with Salisbury the fact that the lump

was growing. Plaintiff further testiﬁed that Salisbury

acknowledged the growth of the lump, but did not take

any further action, and that Salisbury continued to

inform her that the lump was a calciﬁcation. According

to plaintiff, she “took [Salisbury’s] word for it.” By her

own admission, plaintiff did not undertake any addi-

tional independent research or speak to another doctor

about the lump in her breast. While plaintiff, in

response to pointed questioning by defense counsel

during her deposition, voiced her subjective concerns

As noted, the speciﬁc date of this conversation is unclear from the

record.

136 328

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108 [May

that the lump could have been something more serious,

such as cancer, in Solowy the Court, citing Moll, stated

that “the discovery rule period begins to run when, on

the basis of objective facts, the plaintiff should have

known of a possible cause of action.” Solowy, 454 Mich

at 222, 232 (emphasis added). The Solowy Court fur-

ther recognized that “[o]nce a claimant is aware of an

injury and its possible cause, the plaintiff is aware of a

possible cause of action.” Id., quoting Moll, 444 Mich at

24. While the record reﬂects that in 2013 and 2014

plaintiff was aware that she had a calciﬁed lump in her

breast, aside from her subjective concerns as a layper-

son, the record does not yield objective facts that would

have led plaintiff to conclude that the lump was in fact

cancer. This is particularly so given that the record

demonstrates that her medical provider, Salisbury,

continued to tell plaintiff that the calciﬁed lump was

benign, and plaintiff, who is not a medical professional,

reasonably relied on the repeated assurances of her

medical professional. The factual scenario in this case

is therefore decidedly different from that in Solowy

because the plaintiff in that case had already under-

gone a bout of cancer in her ear, she was well familiar

with the symptoms, and by her own admission in her

deposition testimony, the symptoms she was experi-

encing in March and April of 1992 were so similar that

she stated, “ ‘[I]t started all over again.’ ” Solowy, 454

Mich at 216-217, 227-228.

Further, in Solowy, 454 Mich at 226, the Michigan

Supreme Court took care to caution lower courts “that

a delay in diagnosis may delay the running of the

six-month discovery period . . . .” In particular, the

Solowy Court expressed its concern that it would be

unfair to “deem [a] plaintiff aware of a possible cause of

action before he could reasonably suspect a causal

connection to the negligent act or omission.” Id. Put

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simply, the “possible cause of action” standard none-

theless requires that a plaintiff possess at least “some

minimum level of information, that, when viewed in its

totality, suggests a nexus between the injury and the

negligent act.” Id. In an unequivocal manner, the

Solowy Court renounced any suggestion that the “pos-

sible cause of action” standard may be considered an

“anything is possible standard.” Id. Therefore, employ-

ing the “ﬂexible approach” that the Solowy Court

articulated and considering the totality of information

available to plaintiff in 2013 and 2014, while plaintiff

was no doubt aware that the lump in her breast was

growing, she did not have any familiarity with breast

cancer “through past experience or otherwise.” Id.

Moreover, according to plaintiff’s deposition testimony,

Salisbury repeatedly assured her that the lump, even

while growing, was a calciﬁed mass as demonstrated

through the September 4, 2013 mammogram. Under

these circumstances, we disagree with the trial court’s

conclusion that plaintiff, who exercised due diligence

by consulting with medical professionals and trusted

and relied on the advice given and the observations

made by Salisbury, should have discovered her possible

cause of action in 2013 or 2014. Id. at 230, 232.

We reach this conclusion because the record con-

ﬁrms that plaintiff had sought medical treatment and

relied on Salisbury’s assurance that the lump in her

breast was benign; plaintiff had no reason to know

otherwise until the biopsy established that the lump

was malignant. Therefore, “it would be unfair to deem

. . . plaintiff aware of a possible cause of action before

[she] could reasonably suspect a causal connection to

the alleged negligent act or omission.” Id. at 226.

Plaintiff had no reason to suspect that her medical

providers were negligent because she reasonably relied

on what she was told—i.e., that her lump was a benign

138 328 M

ICH

108 [May

calciﬁcation. While plaintiff undoubtedly was aware of

the growth of the lump and admitted that it was

causing her subjective fear and concern, she notably

did not have a history of breast cancer herself or in her

family, and she was justiﬁably relying on her medical

provider’s explanation of the cause of the lump. Id. at

227; MCL 600.5838a(2).

Importantly, this Court in Jendrusina emphasized

that the objective standard requires an evaluation of

what “a reasonable, ordinary person would know”

about their injury and its cause, not what a reasonable

physician or medical malpractice attorney would know.

Jendrusina, 316 Mich App at 631-632. This Court also

explained that requiring an individual to undertake

“an extensive investigation,” such as performing inde-

pendent research or seeking out medical records to

glean more information than he or she has been given

by their medical professional, is a requirement that is

not consistent with Michigan common law, statutory

authority, or “common sense.” Id. at 633-634. There-

fore, applying the doctrine of reasonableness, weighing

plaintiff’s conduct against the standard of due dili-

gence, and considering all of the information that

plaintiff had in 2013 and 2014 regarding her injury

and its possible causes, the record does not support a

conclusion that plaintiff should have discovered her

possible cause of action in 2013 or 2014. See Solowy,

454 Mich at 230.

Similarly, although the record reﬂects that plaintiff

was informed by Frost at some point following her

June 1, 2015 mammogram that a biopsy was necessary

because of a general concern that the lump in her

breast could be cancer, the situation that plaintiff was

presented with is also factually distinguishable from

Solowy. Notably, unlike the plaintiff in Solowy, plain-

2019] H

UTCHINSON V

NGHAM

EALTH

’

139

tiff had not had a prior cancer diagnosis and had not

experienced similar symptoms in her breast in the

past. Solowy, 454 Mich at 224. Moreover, unlike the

plaintiff in Solowy, plaintiff was not informed that she

could be faced with a recurrence of cancer, and aside

from her dealings with Salisbury in 2013 and 2014,

when she was assured that the lump in her breast was

benign, plaintiff had no prior interactions with a medi-

cal professional concerning the possibility of cancer. Id.

In contrast to the plaintiff in Solowy, plaintiff was not

waiting “for ﬁnal conﬁrmation of what she already

knew was very likely true” before pursuing her claim.

Jendrusina, 316 Mich App at 631. Therefore, on the

basis of the record, it is not reasonable to conclude that

plaintiff should have discovered her possible cause of

action when she was informed of the necessity of a

biopsy. Moreover, the Jendrusina Court made it abun-

dantly clear that the diagnosis of a serious illness will

not place a burden on a reasonable person to discover

a potential claim against his or her medical providers

“if at any time in the past the physician tested an

organ involved in [the] later diagnosis and reported

normal results.” Id. at 634 (emphasis omitted). To hold

otherwise is not only incongruent with the plain lan-

guage of MCL 600.5838a(2), but it would be “highly

disruptive to the doctor-patient relationship . . . .”

Jendrusina, 316 Mich App at 635. Accordingly, we

disagree with the trial court’s legal conclusion that

plaintiff was aware of an injury in the form of breast

cancer, and any possible causation relating to the

alleged medical malpractice of defendants, before her

deﬁnitive diagnosis of breast cancer. Solowy, 454 Mich

at 222, 224. Considering the information that was

available to plaintiff at the time of her conversation

with Frost, plaintiff did not know whether the lump

was cancerous or not, and unlike the plaintiff in

140 328 M

ICH

108 [May

Solowy, she had not undergone a prior experience with

cancer that would have informed her experience or

made her familiar with a cancer diagnosis. Id. at 227.

It was not until June 15, 2015, when plaintiff received

a deﬁnitive diagnosis of cancer, that plaintiff discov-

ered or should have discovered her possible cause of

action—that is, the time when she became aware that

she had breast cancer and could have surmised

that Salisbury and Gulick were negligent in their

treatment of the lump in her breast when she had

consulted with them at the Ingham County Health

Department. Given that her notice of intent was

mailed on December 4, 2015, her cause of action was

timely ﬁled.

IV. CONCLUSION

We reverse the trial court’s order granting summary

disposition in favor of defendants and remand for

proceedings consistent with this opinion. We do not

retain jurisdiction. Plaintiff, as the prevailing party,

may tax costs pursuant to MCR 7.219.

OONSTRA

, P.J., and M

ETER

, J., concurred with F

ORT

OOD

, J.

2019] H

UTCHINSON V

NGHAM

EALTH

’

141

ESTATE OF WANDA JESSE v LAKELAND SPECIALTY HOSPITAL

AT BERRIEN CENTER

Docket No. 341805. Submitted May 1, 2019, at Lansing. Decided

May 14, 2019, at 9:00 a.m. Leave to appeal denied 505 Mich 882

(2019).

Beverly J. Gray, as personal representative of the estate of Wanda

Jesse, ﬁled a complaint in the Berrien Circuit Court against

Lakeland Specialty Hospital at Berrien Center for medical mal-

practice. Jesse died on September 15, 2013, allegedly due to

Lakeland’s malpractice. Pursuant to MCL 600.5805(8), the period

of limitations for the medical malpractice claim would have

expired on September 15, 2015, absent application of the saving

provision in MCL 600.5852. The saving provision in MCL

600.5852(2) generally provides a personal representative with

two years from the date letters of authority are issued to bring a

claim on behalf of the estate although the statute of limitations

has otherwise lapsed. Gray brought the action on September 22,

2017, and claimed that it was timely because it was ﬁled within

two years of September 25, 2017, the date on which the letters of

authority were mailed. Lakeland moved for summary disposition

under MCR 2.116(C)(7), arguing that the letters of authority were

“issued” at the time they were signed—September 9, 2015—and

that the period of limitations had expired two years from that

date. The court, Dennis M. Wiley, J., agreed with Lakeland that

the letters of authority “issued” on the date the letters were

signed, not on the date they were mailed. Accordingly, the court

ruled that the period of limitations expired on September 9, 2017,

and the court granted Lakeland’s motion for summary disposi-

tion. Gray appealed.

The Court of Appeals held:

Under MCL 600.5852, if a person dies during the period of

limitations or within 30 days after the period of limitations has

expired and a medical malpractice action survives by law, the

action may be commenced by the personal representative of the

decedent at any time within two years after letters of authority

are issued to the ﬁrst personal representative even though the

period of limitations has expired. The question whether the word

“issued” refers to the signature date or some later date was

142 328

ICH

142 [May

answered in Lentini v Urbancic, 262 Mich App 552 (2004), which

was vacated and remanded on other grounds in 472 Mich 885

(2005). In Lentini, the Court of Appeals held that letters of

authority are “issued” on the date they are signed by the trial

court and not on the date they are certiﬁed or on the date they are

mailed. Although the Lentini opinion was vacated and therefore

not binding, it correctly interpreted the word “issued” as it is used

in MCL 600.5852. For the purpose of a statute of limitations

saving provision, there must be a date certain, objectively veriﬁ-

able, from which interested parties can calculate the various

tolling and limitations periods. The date on which letters of

authority are signed is an objectively veriﬁable, certain, and

unchanging date that serves the purpose of the statute by

providing an easily ascertainable date from which to calculate the

running of the limitations saving provision. Therefore, letters of

authority are issued on the date that they are signed by the

because it was ﬁled more than two years after the letters of

authority were signed.

Afﬁrmed.

TATUTES OF

IMITATIONS

— M

EDICAL

ALPRACTICE

LAIMS

— E

STATES

—

AVING

ROVISIONS

Under MCL 600.5852, if a person dies during the period of limita-

tions or within 30 days after the period of limitations has expired

and a medical malpractice action survives by law, the action may

be commenced by the personal representative of the decedent at

any time within two years after letters of authority are issued to

the ﬁrst personal representative even though the period of

limitations has expired; for purposes of MCL 600.5852(2), letters

of authority are issued on the date they are signed by the register

or probate judge and not on the date they are certiﬁed or the date

they are mailed to the personal representative.

Stempien Law, PLLC (by Eric Stempien) for the

Estate of Wanda Jesse.

Henn Lesperance PLC (by William L. Henn and

Andrea S. Nester) for Lakeland Specialty Hospital at

Berrien Center.

Before: M

ETER

, P.J., and F

ORT

OOD

and B

ORRELLO

, JJ.

2019] J

ESSE

STATE V

AKELAND

OSP

143

ETER

, P.J. Under the saving provision in MCL

600.5852(2), when the statute of limitations for a medi-

cal malpractice claim has otherwise lapsed, the personal

representative of an estate is generally given two years

“from the date letters of authority are issued” to bring a

claim on behalf of the estate. In this case, we are called

on to determine when letters of authority are “issued.”

Reviving the precedent temporarily set by Lentini v

Urbancic, 262 Mich App 552, 555-559; 686 NW2d 510

(2004) (Lentini I), vacated and remanded on other

grounds 472 Mich 885 (2005) (Lentini II), we conclude

that letters of authority are “issued” on the date they

are signed by the register or the probate judge. Because

plaintiff did not ﬁle the action within two years of the

date the probate register signed the letters of authority,

we afﬁrm the trial court’s dismissal of the action as

untimely. MCR 2.116(C)(7).

I. BACKGROUND

The facts underlying this dispute are not contested.

Plaintiff’s decedent, Wanda Jesse, died on

September 15, 2013, allegedly due to defendant’s

malpractice. Under MCL 600.5805(8), the statute of

limitations for decedent’s medical malpractice claim

expired on September 15, 2015, absent application of

the saving provision set forth in MCL 600.5852. The

probate register signed the letters of authority estab-

lishing decedent’s estate on September 9, 2015,

but the letters were not mailed to the personal repre-

sentative of the estate, Beverly June Gray, until

September 25, 2015. Plaintiff ﬁled the instant com-

plaint for medical malpractice on September 22, 2017.

Defendant moved for summary disposition under

MCR 2.116(C)(7), arguing that under MCL

600.5852(2), the statutory period of limitations had

144 328 M

ICH

142 [May

ended on September 9, 2017—two years from the date

the probate register signed the letters of authority.

Plaintiff disagreed, arguing that the statutory period

did not end until September 25, 2017—two years from

the date the probate court mailed the letters of author-

ity. The trial court agreed with defendant that the

statutory period ended on September 9, 2017, and

granted defendant’s motion for summary disposition.

This appeal followed.

II. ANALYSIS

The only issue presented to us in this appeal is a

legal one: Does the statutory period set forth in the

saving provision in MCL 600.5852(2) begin to run on

the date letters of authority are signed or on the date

they are mailed or otherwise distributed to the per-

sonal representative? MCR 2.116(C)(7) directs the trial

court to grant summary disposition to a party when

appropriate because of the statute of limitations. “This

Court reviews de novo the grant or denial of summary

disposition.” Hoffner v Lanctoe, 492 Mich 450, 459; 821

NW2d 88 (2012). MCL 600.5852 provides, in pertinent

part:

(1) If a person dies before the period of limitations has

run or within 30 days after the period of limitations has

run, an action that survives by law may be commenced by

the personal representative of the deceased person at any

time within 2 years after letters of authority are issued

although the period of limitations has run.

(2) If the action that survives by law is an action

alleging medical malpractice, the 2-year period under

subsection (1) runs from the date letters of authority are

issued to the ﬁrst personal representative of an estate.

Except as provided in subsection (3), the issuance of

subsequent letters of authority does not enlarge the time

within which the action may be commenced.

2019] J

ESSE

STATE V

AKELAND

OSP

145

(3) If a personal representative dies or is adjudged by a

court to be legally incapacitated within 2 years after his or

her letters are issued, the successor personal representa-

tive may commence an action alleging medical malprac-

tice that survives by law within 1 year after the personal

representative died or was adjudged by a court to be

legally incapacitated.

There is no binding caselaw interpreting the term

“issued” in the context of MCL 600.5852. Yet, this is not

the ﬁrst time that this question has been presented to

this Court. Rather, we answered the question whether

“issued” denotes the signature date or some later date

in Lentini I, 262 Mich App at 555-559. The Lentini I

panel concluded that letters of authority are “issued”

on the date the probate judge

signs them, reasoning as

follows:

The primary goal of judicial interpretation of statutes is

to ascertain and give effect to the intent of the Legislature.

Gladych v New Family Homes, Inc, 468 Mich 594, 597; 664

NW2d 705 (2003). If reasonable minds can differ regarding

the meaning of a statute, judicial construction is appropri-

ate. Adrian School Dist v Michigan Pub School Employees

Retirement Sys, 458 Mich 326, 332; 582 NW2d 767 (1998).

The court must consider the object of the statute and the

harm it is designed to remedy, and apply a reasonable

construction that best accomplishes the statute’s purpose.

Marquis v Hartford Accident & Indemnity (After Remand),

444 Mich 638, 644; 513 NW2d 799 (1994).

We hold that the trial court correctly decided that the

letters of authority are “issued” on the date they are signed

by the probate judge and not on the date they are certiﬁed

or the date they are mailed to the ﬁduciary. For the purpose

of a statute of limitations savings provision to be served,

there must be a date certain, objectively veriﬁable, from

Although Lentini I referred to the date the probate judge signs the

letters of authority, we note that the court register may also appoint the

personal representative. MCL 700.3103.

146 328

ICH

142 [May

which interested parties can calculate the various tolling

and limitations periods. The merit of defendants’ position

and the trial court’s ruling is that the date the letters of

authority are signed by the trial court is an objectively

veriﬁable, certain, and unchanging date. The signature

date is the date by which deadlines for the expiration of the

letters of authority and the due dates for the estate’s

inventory and annual account are set. Moreover, the pro-

bate court’s “Case Summary” of a decedent’s estate, which

exists to provide a list of all the signiﬁcant activity on a

particular ﬁle, lists the signature date as the date that the

personal representative of the estate was appointed on the

basis of the letters of authority. And it is the date the

ﬁduciary receives his authority to act on behalf of the

estate. MCL 700.3103 states, “The issuance of letters com-

mences an estate’s administration.” The signature date is

also indicated on each and every certiﬁed copy and on the

original letters of authority.

By holding that the signature date is the issuance date

of the letters of authority, the trial court interpreted MCL

600.5852 in a way that served the purpose of the statute in

that it provided an objectively veriﬁable, easily ascertain-

able date from which to calculate the running of limita-

tions and limitations savings provisions. This interpreta-

tion also advances one of the purposes of the Estates and

Protected Individuals Code, MCL 700.1101 et seq., “To

promote a speedy and efﬁcient system for liquidating a

decedent’s estate . . . .” MCL 700.1201(c).

Furthermore, we believe this interpretation is sup-

ported by our Supreme Court’s recent decision in

[Eggleston v Bio-Medical Applications of Detroit, Inc, 468

Mich 29, 33; 658 NW2d 139 (2003)], which held that MCL

600.5852 allows any personal representative, not just the

initial personal representative, to commence an action

within two years after letters of authority are issued.

Because a personal representative may not commence an

action until he has authority to do so and he receives this

authority on the date the probate judge signs letters of

authority, it follows that the statutory period of limita-

2019] J

ESSE

STATE V

AKELAND

OSP

147

tions and any saving provisions should begin to run from

the date the personal representative has authority to

commence an action.

We ﬁnd defendant Urbancic’s reference to MCR 2.602

and his comparison of the certiﬁed copy of the letters of

authority to a true copy of an order of the circuit court to

be apt. MCR 2.602(A)(2) provides that the date of the

signing of an order or judgment is the date of entry of that

order or judgment. By analogy, the date the letters of

authority are signed is the date that they are issued. And

it is the date that a circuit court order is signed that is

used to refer to the order. The date that a true copy of an

order is obtained by an interested party is not legally or

procedurally signiﬁcant. So it should be with the letters of

authority.

The date letters of authority are certiﬁed is unworkable

as the date of issuance because the certiﬁcation date

simply reﬂects the date that an interested party requests

and obtains certiﬁed copies of the letters of authority. One

could get a certiﬁed copy every day of the month, providing

no date certain from which to calculate the statute of

limitations and other deadlines. Further, the certiﬁcation

date is not veriﬁable absent the actual certiﬁed copy of the

letters of authority. Unlike the date of the judge’s signa-

ture, which is recorded in the court ﬁle and which remains

on the original letters of authority contained in the court

ﬁle, there is no record of the date that copies of the letters

of authority are certiﬁed. Therefore, if the recipient of a

certiﬁed copy of the letters of authority were to misplace

his copy, there would be no means to determine the date of

the certiﬁcation and no way to calculate, with certainty,

the date the statutory period of limitations expires.

Clearly, the goal of ease and speed of application of statute

of limitations provisions requires that the date of issuance

of letters of authority be the date that they are signed by

the court. For this reason, plaintiff’s assertion that the

issuance date should be determined by considering the

factual circumstances of each case is also unworkable.

[Lentini I, 262 Mich App at 555-558.]

148 328

ICH

142 [May

Lentini I was subsequently vacated by our Supreme

Court on other grounds. Lentini II, 472 Mich 885. On

remand, we left open the issue of when the letters of

authority were “issued.” See Lentini v Urbancic (On

Remand), 267 Mich App 579; 705 NW2d 701 (2005).

Thus, Lentini I has no precedential value.

Nonetheless, we believe that Lentini I was rightly

decided, and in lieu of restating what was so thought-

fully written by the prior panel, we adopt Lentini I’s

interpretation of the term “issued” in MCL 600.5852.

Accordingly, we conclude that the statutory period

concluded on September 9, 2017, meaning that plain-

tiff’s September 22, 2017 complaint was untimely.

Plaintiff does not disagree with Lentini I. In fact,

plaintiff argues that Lentini I “makes sense.” Nonethe-

less, plaintiff points out that Lentini I interpreted

Subsection (1) of MCL 600.5852, whereas the relevant

statutory section for plaintiff’s complaint is MCL

600.5852(2). We believe that this distinction is irrel-

evant. “It is reasonable to conclude that words used in

one place in a statute have the same meaning in every

other place in the statute.” Little Caesar Enterprises,

Inc v Dep’t of Treasury, 226 Mich App 624, 630; 575

NW2d 562 (1997). Indeed, in this statute, there is clear

evidence that the Legislature intended the term “is-

sued” to have a consistent meaning. Subsection (2)

We disagree with defendant that Lentini I remains good law. “A

Court of Appeals opinion that has been vacated by the majority of the

Supreme Court without an expression of approval or disapproval of this

Court’s reasoning is not precedentially binding.” People v Akins, 259

Mich App 545, 550 n 8; 675 NW2d 863 (2003), citing Fulton v William

Beaumont Hosp, 253 Mich App 70, 79; 655 NW2d 569 (2002). Our

Supreme Court’s order in Lentini II vacated Lentini I in its entirety,

without expressing any opinion on this Court’s interpretation of the

term “issued.” Lentini II, 472 Mich 885. Therefore, Lentini I has no

relevant precedential value.

2019] J

ESSE

STATE V

AKELAND

OSP

149

does not set forth a statutory period independent from

Subsection (1). Rather, Subsection (2) states that “the

2-year period under subsection (1) runs from the date

letters of authority are issued to the ﬁrst personal

representative of an estate.” MCL 600.5852(2) (empha-

sis added). When Subsection (2) directly refers to

Subsection (1) and its use of the term “issued,” it would

be illogical for this Court to interpret the term differ-

ently for each subsection.

III. CONCLUSION

Although there is no binding precedent interpreting

use of the term “issued” in MCL 600.5852, this case

does not pose an issue of ﬁrst impression in the literal

sense. Reviving Lentini I’s interpretation of the term,

we conclude that letters of authority establishing an

estate are “issued” on the date they are signed by the

ﬁle the complaint within two years of the date the

properly dismissed the action as untimely. MCL

600.5852(2). Accordingly, we afﬁrm the trial court’s

grant of summary disposition to defendant under MCR

2.116(C)(7).

ORT

OOD

and B

ORRELLO

, JJ., concurred with

ETER

, P.J.

150 328 M

ICH

142 [May

In re MONIER KHALIL LIVING TRUST (ON RECONSIDERATION)

Docket No. 341142. Submitted February 12, 2019, at Detroit. Decided

March 12, 2019, at 9:00 a.m. Submitted April 30, 2019, on the

reconsideration docket. Reconsideration granted and opinion va-

cated by Court of Appeals order entered May 14, 2019, and new

opinion issued May 14, 2019, at 9:05 a.m.

Thomas Khalil and Sandra Khalil Benavides (petitioners) brought an

action in the Wayne Probate Court against Evelyn Khalil, Melanie

Khalil Zagar, and Mikhail Khalil (respondents), arguing that

Mikhail unduly inﬂuenced Evelyn to allot him a disproportionate

share of assets from the Monier Khalil Living Trust (the trust).

Monier Khalil, who was the husband of Evelyn and father of

Thomas, Sandra, Melanie, and Mikhail, created the trust in 1992.

Following his death in 1994, Monier’s assets ﬂowed into two

subtrusts, both of which were intended to provide for Evelyn for

the remainder of her life. In 2007, Evelyn distributed certain trust

properties to her children. In 2016, petitioners brought suit by

ﬁling a petition for accounting, arguing that Evelyn and Melanie,

who were cotrustees, breached their duty of loyalty by giving

Mikhail an unequal share of property from the trust and by

depleting the trust for purposes other than Evelyn’s care. Petition-

ers further contended that Mikhail had unduly inﬂuenced Evelyn

into giving him control over the trust, which he used as his

personal piggy bank. Petitioners later ﬁled an amended petition.

The probate court conducted virtually all of the proceedings that

followed off the record. The court’s notes indicate that at an

in-chambers conference, the court verbally directed the parties to

ﬁle “briefs in support” by May 19, 2017. Petitioners asserted that

they had sought to take the deposition of Evelyn, but petitioners

did not indicate on what date these pleas were made, and the court

failed to conduct any phase of this proceeding in the courtroom or

on the record; everything was discussed in chambers. During

another in-chambers, off-the-record “hearing,” the court ordered

respondents to present an accounting within 30 days. The court

scheduled a hearing on the “petition to allow account(s)” for

September 13, 2017. However, respondents never ﬁled a petition or

motion to allow the accounts, and no hearing was ever held. The

court adjourned the hearing to October 17 and then to October 31.

2019] In re K

HALIL

RUST

ECON

) 151

Petitioners were not satisﬁed with the proffered accounting, and

following a telephone conference with the attorneys, the court

ordered a forensic review and accounting of the trust by an

independent accountant, which was completed and ﬁled on

October 26, 2017. Following the presentation of the forensic

accounting, and before the October 31 date of the rescheduled

hearing, the probate court, Freddie G. Burton, Jr., J., “denied”

petitioners’ ﬁrst amended veriﬁed petition. The court noted that it

had held “various hearings” and ultimately “took the matter under

advisement.” None of those “hearings” were conducted on the

record, and therefore no transcripts could be ordered. The court

also rejected petitioners’ claim of undue inﬂuence, holding that

petitioners failed to establish a ﬁduciary relationship. Accordingly,

the probate court dismissed petitioners’ claims in their entirety.

Petitioners appealed, and on March 12, 2019, the Court of Appeals,

LEICHER

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

ELLY

and L

ETICA

, JJ., issued an opinion

vacating the probate court’s opinion in part and remanding the

case to the probate court. Evelyn moved for reconsideration,

alleging that the March 12, 2019 Court of Appeals opinion con-

tained factual inaccuracies. The Court of Appeals granted the

motion for reconsideration and vacated the March 12, 2019 opin-

ion.

On reconsideration, the Court of Appeals held:

1. The probate court prematurely dismissed petitioners’ claims

without a motion ﬁled by respondents. Contrary to the lower-court

docket sheet, respondents did not ﬁle a motion to allow the

accounting. The hearing scheduled for October 31, 2017, was

actually on petitioners’ motion to remove the trustees and return

property to the trust. Accordingly, the probate court acted without

allowing the parties to argue at that hearing. Petitioners presented

evidence to create a genuine issue of material fact that should have

been addressed at the hearing, speciﬁcally that certain transfers

identiﬁed in the accounting were not accurate and might have been

fraudulent. The probate court ignored evidence regarding poten-

tially fraudulent transfers despite having ordered the forensic

accounting that revealed that evidence. Instead, the court pointed

to trust language allowing Evelyn to dispose of trust property

without mentioning that the accounting did not match Evelyn’s

version of events. Ultimately, the court sua sponte approved the

accounting and dismissed petitioners’ bids to remove the trustees

and return property to the trust without a hearing. The probate

court failed to consider the evidentiary contest before it and

improperly dismissed the petition.

2. A presumption of undue inﬂuence arises when there is

evidence of (1) a conﬁdential or ﬁduciary relationship between the

152 328

ICH

151 [May

grantor and a ﬁduciary, (2) the ﬁduciary or an interest he or she

represents beneﬁts from a transaction, and (3) the ﬁduciary had

an opportunity to inﬂuence the grantor’s decision in that trans-

action. The probate court stated that petitioners failed to estab-

lish the existence of a ﬁduciary relationship. However, although

petitioners’ briefs and pleadings were not artfully drafted, peti-

tioners did allege that Mikhail was Evelyn’s ﬁduciary and pre-

sented evidence tending to establish a ﬁduciary relationship.

Petitioners presented evidence that Evelyn had placed her trust

in Mikhail to manage the trust and its assets for her. Mikhail

created the trust account’s ledger, Evelyn instructed the bank to

include Mikhail as a designated signor on the trust’s account, and

Mikhail signed checks from the trust. Petitioners presented a

property listing for certain trust property and alleged facts

tending to show that Mikhail was tasked with the property’s sale.

If these facts are proven, they tend to establish that Mikhail acted

as Evelyn’s agent. Petitioners also presented evidence that

Mikhail had beneﬁted from the trust transactions he managed,

including that Mikhail had fraudulently used monies to repair

buildings owned by his separate companies. There was enough

evidence to challenge a premature summary disposition entered

with no hearing. Further, petitioners contended that on the two

occasions that Evelyn and Mikhail had appeared together in

court, Evelyn expected Mikhail to answer any questions posed to

her. However, these occasions were not captured in the record.

Accordingly, the probate court’s summary dismissal of petitioners’

undue-inﬂuence claim was vacated and the case was remanded to

the probate court to conduct the remainder of the proceedings on

the record.

3. MCR 5.131 provides that the general discovery rules apply

in probate proceedings. Under MCR 2.306(A)(1), a party may take

the testimony of a person by deposition after an action is

commenced. In this case, petitioners did not pursue discovery by

written notiﬁcation or by requesting a subpoena in writing.

However, under MCR 2.119(A)(1), a party may make any motion

orally at a court hearing. Petitioners asserted that they made an

oral motion to depose Evelyn at more than one off-the-record,

in-chambers “hearing” in the probate court. Because the court

made no record of these proceedings, the accuracy of this state-

ment could not be veriﬁed. Because the summary dismissal of

petitioners’ undue-inﬂuence claim was vacated, petitioners could

seek to depose Evelyn on remand.

Vacated in part and remanded for further proceedings con-

ducted on the record.

2019] In re K

HALIL

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) 153

Dadich & Associates, PLLC (by Joseph J. Dadich)

for Thomas Khalil and Sandra Khalil Benavides.

Barris, Sott, Denn & Driker, PLLC (by Matthew J.

Bredeweg) for Evelyn Khalil.

ON RECONSIDERATION

Before: G

LEICHER

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

ELLY

and L

ETICA

, JJ.

URIAM

. In this trust action, two of the trustee’s

children contended that a sibling unduly inﬂuenced

their mother to allot him a disproportionate share of

the trust’s assets. The probate court dismissed the

action without a hearing and despite that none of the

parties ﬁled a dispositive motion. The court inexplica-

bly discounted the evidence presented by petitioners

and failed to create an adequate record for this Court’s

review. We vacate the probate court’s order summarily

dismissing petitioners’ undue-inﬂuence claim and re-

mand for further proceedings, which must be con-

ducted on the record.

I. BACKGROUND

This case involves a trust created by Monier Khalil

in 1992. Monier died in 1994, leaving behind his wife,

Evelyn, and their four children: Mikhail, Thomas,

Sandra, and Melanie. After his death, Monier’s assets

(mostly Corktown real estate) ﬂowed into two sub-

trusts: the marital trust and the residuary trust. Both

were intended to provide for Evelyn for the remainder

of her life. Evelyn and Melanie were designated as

cotrustees for the subtrusts. When Evelyn passes

away, any remaining assets will ﬂow into the children’s

trust to be divided equally between Monier’s children.

154 328 M

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151 [May

The marital and residuary trusts grant Evelyn pro-

digious power and authority to use and disburse trust

assets. Evelyn may request distributions without limi-

tation and for any reason and may exhaust the trust

principals to provide for her needs. Evelyn may dis-

burse trust assets during her lifetime, favoring one

child over another in doing so. The trust also shelters

Evelyn from “accountab[ility] or liab[ility] to” any of

her children “for the manner in which [s]he, in good

faith, exercises [her] powers and discretions; [her]

judgment with respect to all matters shall be binding

and conclusive upon all” her children.

Evelyn, Melanie, and Mikhail (respondents) contend

that in 2007, Evelyn distributed certain trust proper-

ties to her children. Melanie, Thomas, and Mikhail

received properties in Corktown, but Evelyn purchased

a home for Sandra. Evelyn claims that the trust

continues to make the mortgage, insurance, and tax

payments for the home. Respondents further allege

that Thomas sold his properties to Mikhail, but now

regrets his decision.

In 2016, Sandra and Thomas (petitioners) launched

this probate case by ﬁling a “veriﬁed petition for

accounting, surcharge of the trustee; the return of

property to Hotch Potch; transferred as a result of

undue inﬂuence and removal of trustees.”

They later

ﬁled an amended petition. In these pleadings, petition-

“Hotch Potch” is an antiquated probate term of art, more commonly

referred to as “hotch pot.” The Supreme Court has indirectly adopted the

following deﬁnition: “Hotchpot is the bringing into the estate of an

intestate an estimate of the value of advancements made by the

intestate to his or her children, in order that the whole may be divided

in accordance with the statute of descents.” In re Howlett’s Estate, 275

Mich 596, 600; 267 NW 743 (1936) (quotation marks and citation

omitted). See also Sprague v Moore, 130 Mich 92, 102; 89 NW 712

(1902).

2019] In re K

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) 155

ers sought an accounting, claiming that respondents

had denied previous requests for information. Petition-

ers asserted that Evelyn and Melanie breached their

duty of loyalty by giving Mikhail an unequal share of

property from the trust and by depleting the trust for

purposes other than Evelyn’s care. Petitioners further

contended that Mikhail had unduly inﬂuenced Evelyn

into giving him control over the trust, which he used as

his personal piggy bank. They alleged that Mikhail

had “usurped” the role of trustee by listing himself on

the trust’s bank accounts. Petitioners presented evi-

dence that Mikhail managed the daily business of the

trust properties and used trust funds to manage his

separately owned properties. Petitioners raised three

counts: “breach of duty of loyalty by the trustee[’s]

depletion of the trust assets,”

undue inﬂuence, and for

an accounting, surcharge, and return of improperly

transferred properties to the trust.

Respondents retorted that the language of the trust

gave Evelyn great discretion to disburse property as

she saw ﬁt and even to designate Mikhail as a business

representative. Respondents further contended that

the property distributions challenged by petitioners

were made in 2007 with petitioners’ full knowledge

and consent.

The probate court conducted virtually all of the

proceedings that followed off the record, hampering

our review. The court’s notes indicate that at an

in-chambers conference, the court verbally directed the

parties to ﬁle “briefs in support” by May 19, 2017.

Petitioners’ brief contended that over a 10-year period,

the trust transferred to Mikhail and his companies 11

of the trust properties. These transfers were a breach

Capitalization altered.

156 328

ICH

151 [May

of Evelyn’s ﬁduciary duty and her duty of loyalty to the

trust beneﬁciaries and were accomplished as a result of

Mikhail’s undue inﬂuence, petitioners asserted. Peti-

tioners also believed that Mikhail beneﬁted from im-

proper cash transfers that were not accounted for in

the public record, and petitioners denied that they ever

consented to them. In addition, petitioners contested

respondents’ assertion that the trust gave Evelyn

broad power to make whatever transfers she wished;

such unfettered authority, petitioners argued, would

defeat the purpose of the trust, i.e., to ensure that

Evelyn was ﬁnancially provided for.

Petitioners further asserted that they “ha[d] twice

addressed this Court and pleaded to take the deposition

of Evelyn . . . to show to the Court that she is, in fact,

under undue inﬂuence of Mikhail . . . .” Petitioners did

not indicate on what date these pleas were made, and

the court failed to conduct any phase of this proceeding

in the courtroom or on the record; everything was

discussed in chambers. Petitioners again asked to de-

pose their mother “to establish whether such acts are of

her own free will or as they appear to be the unvar-

nished undue inﬂuence of Mikhail . . . .” And petitioners

asserted that they established a presumption of undue

inﬂuence as Evelyn appeared on case-related matters

only in the company of Mikhail, she shared joint repre-

sentation with Mikhail, and Evelyn directed her other

children to talk to Mikhail whenever they asked trust-

or property-related questions.

Respondents ﬁled their brief on May 19, asserting

that the transfers made by Evelyn were authorized by

the trust itself and by applicable law. Although any

remainder will ﬂow into the children’s trust, “while

Evelyn is living, none of the children[] has any right to

distributions of trust assets or any right to an account-

2019] In re K

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) 157

ing of such assets.” Evelyn’s decisions in this regard

were “binding and conclusive,” precluding any liability

to her children. Respondents contended that the peti-

tion was “a half-baked attempt to gain leverage in a

sibling rivalry.” Speciﬁcally, respondents insisted that

petitioners wanted “to undo certain transfers of prop-

erty from their mother’s trust that were made ten years

ago, with Petitioners’ full consent and knowledge, and

to their beneﬁt, because they believe they can proﬁt

from it.”

During another in-chambers, off-the-record “hear-

ing,” the court ordered respondents to present an

accounting within 30 days, including the trust’s assets

as of January 1, 2007, all property and cash disburse-

ments made to Evelyn’s children since 2007, and a

list of income generated by the trust since 2007 along

with “a yearly disclosure of those monies paid to

Evelyn . . . from said income . . . .” Petitioners were

given two weeks to respond. The court scheduled a

hearing on the “petition to allow account(s)” for Sep-

tember 13, 2017. However, respondents never ﬁled a

petition or motion to allow the accounts. Moreover, no

hearing was ever held. The court adjourned the hear-

ing to October 17, and then to October 31. As will be

discussed later, the court rendered its ﬁnal decision

before the hearing was conducted.

Petitioners were not satisﬁed with the proffered

accounting, contending that respondents engaged in

creative accounting by claiming money was paid to

children when it was not, and citing a number of cash

transfers with no stated purpose. After a telephone

conference with the attorneys, the court ordered a

forensic review and accounting of the trust by an

independent accountant, which was completed and

ﬁled on October 26, 2017. In the meantime, respon-

158 328 M

ICH

151 [May

dents ﬁled supplemental remarks to the initial ac-

counting. Respondents noted that petitioners had re-

cently presented additional information, including a

“Quick Book Ledger for a certain bank account[.]”

Those checks improperly identiﬁed Mikhail as a

trustee. After reviewing several check copies, petition-

ers accused Mikhail of writing checks funded by the

trust to make repairs on his personal properties and

for services on Sandra’s house that were actually

funded by an insurance payout.

Following the presentation of the forensic account-

ing, and before the October 31 date of the rescheduled

hearing, the probate court “denied” petitioners’ ﬁrst

amended veriﬁed petition. The court noted that it had

held “various hearings” and ultimately “took the mat-

ter under advisement . . . .” None of those “hearings”

were conducted on the record, and therefore no tran-

scripts could be ordered.

The court found that the trust “was created for the

beneﬁt of” Evelyn and afforded her great discretion

and authority to do what she liked with the trust

property. The court rejected that Evelyn violated the

terms of the trust by transferring properties to

Mikhail:

Nothing in the trust prevents [Evelyn] as co-trustee from

disposing [of] the trust assets as she deemed appropriate.

In fact, the trust speciﬁcally authorized her to sell, convey,

and dispose of any property as she deemed advisable.

Moreover, the trust explicitly states that the settlor “in-

tend[ed] to give the trustee the broadest, fullest and most

complete power and authority.” As co-trustee, [Evelyn] is

granted the authority to exercise her powers as she deter-

mines to be advisable without being accountable or liable to

any interested person as long as she acted in good faith.

Petitioners do not assert that [Evelyn]’s actions were not

taken in good faith. Under the trust, [Evelyn] was granted

2019] In re K

HALIL

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ECON

) 159

broad authority in the management and distribution of

trust assets as surviving spouse and co-trustee with Mela-

nie. Thus, petitioners failed to establish that [Evelyn]

breached her duty of loyalty, and their claim must fail.

The court also rejected petitioners’ claim of undue

inﬂuence. The court determined that petitioners

“wholly fail[ed] to allege, address, or establish the

existence of a ﬁduciary or conﬁdential relationship. . . .

[T]he existence of a family relationship does not, by

itself, establish a ﬁduciary relationship.” The court

found that petitioners “fail[ed] to allege or demonstrate

that there was a reposing of conﬁdence on one side and

inﬂuence on the other” or that “Mikhail overcame the

decedent’s volition, destroyed her free agency, and

impelled her to act against her free will.” The court

recited that Evelyn “afﬁrmatively asserts that she has

not been unduly inﬂuenced.” Accordingly, the court

dismissed petitioners’ claims in their entirety.

II. TIMING OF DISMISSAL

Petitioners ﬁrst challenge the probate court’s sum-

mary dismissal of their claims as premature, noting

that respondents had not ﬁled a summary-disposition

motion and that petitioners were not offered a rebuttal

opportunity. We note that the probate court granted

petitioners’ request for an accounting, and no further

relief can be granted on that claim. Moreover, petition-

ers have not challenged the probate court’s dismissal of

their breach-of-loyalty claim. The only issue before this

Court is whether the probate court properly resolved

petitioners’ claim that Mikhail unduly inﬂuenced Ev-

elyn to deplete the trust’s assets.

We review for an abuse of discretion a probate

court’s decisions whether to remove or surcharge a

trustee. In re Baldwin Trust, 274 Mich App 387,

160 328 M

ICH

151 [May

396-397; 733 NW2d 419 (2007). We review for clear

error any underlying factual ﬁndings made by the

court. Id. at 396. The probate court’s denial of petition-

ers’ petition to remove and surcharge the trustees and

for return of property to the trust was essentially a

summary dismissal of the action pursuant to MCR

2.116(C)(10), which we review de novo. Id.

A motion under MCR 2.116(C)(10) tests the factual

support of a plaintiff’s claim. Summary disposition is

appropriate under MCR 2.116(C)(10) if there is no genuine

issue regarding any material fact and the moving party is

entitled to judgment as a matter of law. In reviewing a

motion under MCR 2.116(C)(10), this Court considers the

pleadings, admissions, afﬁdavits, and other relevant docu-

mentary evidence of record in the light most favorable to

the nonmoving party to determine whether any genuine

issue of material fact exists to warrant a trial. A genuine

issue of material fact exists when the record, giving the

beneﬁt of reasonable doubt to the opposing party, leaves

open an issue upon which reasonable minds might differ.

[Zaher v Miotke, 300 Mich App 132, 139-140; 832 NW2d

266 (2013) (quotation marks and citations omitted).]

Petitioners rest their procedural challenge on the

unpublished opinion in In re Clemence Trust, unpub-

lished per curiam opinion of the Court of Appeals,

issued October 31, 2017 (Docket No. 332099). Rebecca

Clemence had four children. After her husband’s 2005

death, Rebecca lived alone with her daughter Kather-

ine. While they resided together, Rebecca updated her

trust and will to leave the majority of her property to

Katherine. Rebecca’s other three children did not learn

of the change until after their mother’s death in 2013.

The petitioners asserted that Rebecca exhibited signs

of dementia and memory loss even before her hus-

band’s death and therefore lacked capacity to know-

ingly change her estate plan in 2005. They further

contended that Katherine used their mother’s faltering

2019] In re K

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) 161

health to her advantage and unduly inﬂuenced their

mother to change her trust and will. Id. at 1-2.

The petitioners sought to remove Katherine as

trustee, accusing Katherine of breaching her ﬁduciary

duty and challenging the validity of the trust at the

time of its inception based on Rebecca’s incapacity. As

the proceedings moved forward, the petitioners ac-

cused Katherine of withholding information about Re-

becca’s health and assets. Id. at 2. The petitioners ﬁled

a motion to compel Katherine to produce additional

information regarding Rebecca’s health, and the court

ordered the petitioners to subpoena each of Rebecca’s

known doctors. Unfortunately, none of the doctors

maintained records back to 2005. Id. at 3. The petition-

ers provided afﬁdavits, however, describing their per-

sonal observations of their mother’s mental and physi-

cal health since 2005. Id. at 3-4.

“[T]he probate court determined to take out of order

Katherine’s petition to disburse the remainder of the

trust assets, essentially closing the case.” Id. at 4. We

noted that “[t]he court set out [on] this course despite

that Katherine had not ﬁled a motion to dispose of the

claims petitioners raised in their petition.” Id. The

probate court described that the petitioners’ discovery

attempts had been unfruitful, no additional informa-

tion could be had, and it was “ ‘time to close it down.’ ”

Id. At a hearing conducted on the record, the petition-

ers complained that the probate court was summarily

dismissing their claims while ignoring the evidence

presented by the witnesses’ afﬁdavits, but the court

ruled:

“We’ve been over and over, nothing has been presented. I

think it’s too little, too late. I know you look confused, but

you understand the process of appeal and you have that

right.

162 328

ICH

151 [May

I ﬁnd no merit, in your clients’ position at all. I’ve given

them every opportunity to present anything, that at the

time the changes were made, there was any medical

documentation to support severe enough impairment, to

preclude her from having the capacity to make the

changes that she made.” [Id.]

We vacated the probate court’s order and remanded

for further proceedings, holding that the petitioners’

afﬁdavits regarding their ﬁrst-hand knowledge of Re-

becca’s capacity “created a question of fact to be re-

solved before the trust assets were disbursed and the

case closed.” Id. at 6. We continued:

The court took no notice of this contest, refusing to look

beyond petitioners’ inability to secure medical documen-

tation.

The probate court also took no consideration of peti-

tioners’ contention that Katherine unduly inﬂuenced her

mother into changing her estate division while she was

vulnerable due to the recent loss of her husband. The court

noted on the record that it found Katherine’s repeated

claims of ignorance to be incredible. Katherine lived with

her mother continually from her father’s June 2005 death

until her mother’s October 2013 passing. Katherine obsti-

nately denied being her mother’s primary caregiver de-

spite this arrangement, and despite that all documenta-

tion regarding the initiation of her home healthcare

services and the management of Rebecca’s aides was

signed by Katherine. And at some point, Katherine was

named Rebecca’s power of attorney, giving her some level

of ﬁnancial control.

This record evidence created a rebuttable presumption

of undue inﬂuence. See Bill & Dena Brown Trust [v Garcia],

312 MichApp [684, 701; 880 NW2d 269 (2015)]. Speciﬁcally,

Katherine served as a ﬁduciary for [her] mother, or at least

was in a position of trust. She beneﬁted from the amended

trust by being granted her mother’s house and 70% of all

remaining property. Katherine had the opportunity to in-

ﬂuence her mother’s decisions from June through August

2019] In re K

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) 163

2005, as the two women lived alone together. The probate

court was required to address this issue on some level

before ordering the winding down of the trust.

Regardless of the state of the evidence, the probate

court did not follow proper procedure, dismissing this

matter out of hand and without motion from Katherine.

Katherine was represented by counsel knowledgeable on

the law. Yet Katherine never ﬁled a motion to summarily

dismiss petitioners’ challenge for lack of evidentiary

support. The only remaining conclusion is that the court

dismissed the case as some sort of penalty against

petitioners. The petitioners never violated a discovery

order, however. . . . The court never ordered petitioners

to do anything more. Petitioners deposed Katherine in a

vain attempt to create a more complete picture of Rebec-

ca’s medical and ﬁnancial conditions. Petitioners may

have dragged their feet along the way, but not so much as

to warrant dismissal without warning. [Id. at 6-7 (em-

phasis added).]

Respondents, on the other hand, rely on Baldwin,

274 Mich App 387, for their contention that the court

properly dismissed petitioners’ claims without a hear-

ing and without a motion. In Baldwin, Thomas Shoaff

alleged that Thomas Woods failed to protect creditors

in his role as personal representative of an estate and

trustee of a trust created by Duane Baldwin and

therefore sought to remove Woods from those roles.

Id. at 389.

Shoaff had been a business partner of Duane and

Mark Baldwin. Duane did not reimburse Shoaff under

a contractual indemnity agreement after Shoaff was

forced to cover their failed business’s loans. Id. at

390-391. Following Duane’s death, Shoaff success-

fully petitioned the probate court to appoint a neutral

trustee and personal representative for Duane’s es-

tate and trust. Id. at 392. Shoaff then secured an

approximately $700,000 consent judgment in circuit

164 328 M

ICH

151 [May

court against the estate and trust based on the

indemniﬁcation agreement. Id. at 392-293. A bench

trial followed on certain equitable claims; Shoaff

prevailed, and the court set aside various property

transfers made by the Baldwins to defraud their

creditors. The court also awarded Shoaff more than

$1.3 million. Id. at 393. This Court afﬁrmed based on

overwhelming evidence that Duane had created sham

corporations and made fraudulent transfers to avoid

personal liability on his debts. Id. at 395. Through

these actions, Duane left himself insolvent. Id.

In the meantime, Shoaff sought to have Woods

removed as trustee and personal representative be-

cause Woods failed to act in the best interests of

Duane’s creditors, speciﬁcally Shoaff. Id. at 393. The

probate court denied the request but ordered Woods

not to disburse any amount over $2,500 without court

approval. Id. at 394. Shoaff renewed his petition to

remove Woods when Woods took inadequate action to

recover the fraudulently transferred properties and to

pierce the corporate veils of Duane’s sham companies.

Id. At a pretrial conference, the probate court “sua

sponte” denied Shoaff’s petitions, concluding “that

there was no genuine issue regarding any material fact

that would justify removing Woods, sanctioning

Woods, or awarding Shoaff any more money from the

estate.” Id. at 396.

In a brief analysis, this Court rejected Shoaff’s

challenge to the probate court’s sua sponte grant of

summary disposition in Woods’s favor:

Under MCR 2.401(C)(1)(l), during a pretrial confer-

ence, the court may consider any matters that may aid in

the disposition of the action. Further, at any time after an

action has commenced, if the pleadings show that a party

is entitled to judgment as a matter of law, the court must

render judgment without delay. MCR 2.116(I)(1). In that

2019] In re K

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) 165

regard, if no factual dispute exists, a trial court is required

to dismiss an action when a party is entitled to judgment

as a matter of law, and a motion for summary disposition

is unnecessary. Sobiecki v Dep’t of Corrections, 271 Mich

App 139, 141; 721 NW2d 229 (2006).

Regarding Shoaff’s reliance on Judge (now Justice)

ORRIGAN

’s concurrence in Haji v Prevention Ins Agency,

Inc, 196 Mich App 84; 492 NW2d 460 (1992), this case is

clearly distinguishable because the probate court’s sua

sponte grant of summary disposition was not based on a

novel, substantive legal theory not raised by the parties,

see id. at 86, but was based on the substantive legal

theories pursued by Shoaff. We ﬁnd that, procedurally, the

probate court did not err in dismissing the petitions and

that Shoaff was afforded due process because he had had

ample opportunity to respond to the probate court’s sua

sponte raising of the issue. [Baldwin, 274 Mich App at

398-399.]

This case is more akin to Clemence than Baldwin. As

in Clemence, the probate court jumped the gun and

prematurely dismissed petitioners’ claims without a

motion ﬁled by respondents. Contrary to the lower-

court docket sheet, respondents did not ﬁle a motion

to allow the accounting. The hearing scheduled for

October 31, 2017, was actually on petitioners’ motion

to remove the trustees and return property to the

trust. The probate court acted without allowing the

parties to argue at that hearing.

Petitioners presented evidence to create a genuine

issue of material fact that should have been addressed

at the hearing, speciﬁcally that certain transfers iden-

tiﬁed in the accounting were not accurate and might

have been fraudulent. For example, respondents con-

tended that the trust purchased a house for Sandra and

that it was of equivalent value to the Corktown proper-

ties transferred to her siblings. In actuality, the house

was originally titled in Evelyn’s name and later in the

166 328 M

ICH

151 [May

name of Evelyn and Sandra’s two children; Sandra

never held a proprietary interest. But the forensic

accounting appears to count $59,000 in repairs made to

the house as cash transfers to Sandra. Sandra also

presented an afﬁdavit claiming that certain checks

written to J. L. Hengy were not used to pay off loans

owed by Thomas as the accounting asserted, but rather

went toward repairs made to the home in which she

lived. Moreover, Sandra claimed that she assigned more

than $60,000 in insurance proceeds to Evelyn to cover

these repairs. That $60,000 was never deposited into

the trust and therefore no repairs should have been paid

from the trust, Sandra contended. The probate court

ignored this evidence despite having ordered the foren-

sic accounting that revealed it. Instead, the court

pointed to trust language allowing Evelyn to dispose of

trust property without mentioning that the accounting

did not match Evelyn’s version of events.

Petitioners also presented evidence that Mikhail

was managing the trust’s business, not Evelyn or

Melanie. Sandra attested that “the handwritten Check

ing” was in Mikhail’s handwriting. If Mikhail was

actually running the businesses and properties held by

the trust, this could create a ﬁduciary relationship, a

fact relevant to petitioners’ undue-inﬂuence claim.

Ultimately, the probate court sua sponte approved

the accounting and dismissed petitioners’ bids to re-

move the trustees and return property to the trust

without a hearing. Petitioners had no “opportunity to

respond to the probate court’s sua sponte raising of the

issue,” making Baldwin, 274 Mich App at 399, inappo-

site. The court failed to consider the evidentiary con-

test before it and improperly dismissed the petition.

2019] In re K

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) 167

III. UNDUE INFLUENCE

Not only did the probate court prematurely dismiss

petitioners’ undue-inﬂuence claim without a motion

and without a hearing, but the court also improperly

dismissed the case in the face of conﬂicting evidence

that created a genuine issue of material fact. Had the

court conducted these proceedings in the courtroom so

that a record could have been created, this error might

have been apparent earlier.

A presumption of undue inﬂuence arises when there

is evidence of (1) a conﬁdential or ﬁduciary relation-

ship between the grantor and a ﬁduciary, (2) the

ﬁduciary or an interest he or she represents beneﬁts

from a transaction, and (3) the ﬁduciary had an oppor-

tunity to inﬂuence the grantor’s decision in that trans-

action. Kar v Hogan, 399 Mich 529, 537; 251 NW2d 77

(1976), overruled on other grounds by In re Karmey

Estate, 468 Mich 68 (2003). When the presumption is

established, the party seeking to enforce the trust

must offer other evidence to rebut the presumption.

Kar, 399 Mich at 542.

The probate court stated, “[P]etitioners wholly fail to

allege, address, or establish the existence of a ﬁduciary

or conﬁdential relationship.” Although petitioners’

briefs and pleadings were not artfully drafted, petition-

ers did allege that Mikhail was Evelyn’s ﬁduciary and

presented evidence tending to establish a ﬁduciary

relationship. “[A] ﬁduciary relationship arises from the

reposing of faith, conﬁdence, and trust and the reliance

of one upon the judgment and advice of another.”

Vicencio v Jaime Ramirez, MD, PC, 211 Mich App 501,

508; 536 NW2d 280 (1995). Petitioners presented evi-

dence that Evelyn had placed her trust in Mikhail to

manage the trust and its assets for her. Mikhail

created the trust account’s ledger, Evelyn instructed

168 328 M

ICH

151 [May

the bank to include Mikhail as a designated signor on

the trust’s account, and Mikhail signed checks from

the trust. Petitioners presented a property listing for

certain trust property and alleged facts tending to

show that Mikhail was tasked with the property’s sale.

If these facts are proven, they tend to establish that

Mikhail acts as Evelyn’s agent, “a person having ex-

press or implied authority to represent or act on behalf

of another person . . . .” Law Ofﬁces of Jeffrey Sherbow,

PC v Fieger & Fieger, PC, 326 Mich App 684, 699; 930

NW2d 416 (2019) (quotation marks and citation omit-

ted). An agency is a ﬁduciary relationship. Id. Contrary

to the probate court’s opinion, petitioners did not rely

solely on the “mother-son relationship.”

Petitioners also presented evidence that Mikhail

had beneﬁted from trust transactions he managed.

Respondents and the court look only at the 2007

transfer of properties from the trust to Evelyn’s chil-

dren when disputing this element. However, petition-

ers alleged that several checks signed by Mikhail and

described as “owners draws” were actually monies

used to repair buildings owned by Mikhail’s separate

companies, although they presented no proof in this

regard. Petitioners did present evidence of other poten-

tial fraud in the accounting. If Mikhail was in charge,

he would have committed those frauds. Although the

evidence is slimmer on this element, there was enough

to challenge a premature summary disposition entered

with no hearing.

Petitioners further supported that Mikhail had the

opportunity to inﬂuence Evelyn. It is unclear why

Evelyn chose to live with Mikhail and his wife (or at

least in an apartment attached to Mikhail’s house).

Petitioners claim that Evelyn is dependent on Mikhail

for transportation and that he holds her captive, that

2019] In re K

HALIL

RUST

ECON

) 169

Mikhail controls the ﬂow of funds to Evelyn, and that

Evelyn has complained to them that she does not have

any spending money. Petitioners were unable to depose

Evelyn to ﬂesh out these charges. As the court prema-

turely dismissed this case, the inadequacy of evidence

in this regard could also potentially be remedied.

Petitioners contend that on the two occasions that

Evelyn and Mikhail had appeared together in court,

Evelyn expected Mikhail to answer any questions

posed to her. This was further evidence of Mikhail’s

sway over Evelyn, petitioners contend. Unfortunately,

these occasions were not captured in the record. We

have no way to know what questions were asked or

whether Evelyn made any response. As this Court once

noted in a case involving a child protective proceeding,

a court’s decision to consider interviews in camera

“result[s] in an inadequate record for meaningful judi-

cial review at the appellate level.” In re HRC, 286 Mich

App 444, 457; 781 NW2d 105 (2009). The same is true

here.

We vacate the probate court’s summary dismissal of

petitioners’ undue-inﬂuence claim and on remand or-

der the probate court to conduct the remainder of the

proceedings on the record.

IV. DENIAL OF DISCOVERY

Finally, petitioners contend that the probate court

improperly denied their request to depose Evelyn so

that they could investigate whether Mikhail unduly

inﬂuenced her property transfers. We review for an

The attorneys also deserve a share of the blame for our inability to

properly review this case. It is incumbent on counsel to insist on a record

of critically important proceedings, even in the face of judicial disap-

proval or disagreement. A written motion to create a record might have

avoided the need for this appeal.

170 328

ICH

151 [May

abuse of discretion a lower court’s decision whether to

allow discovery. Reed Dairy Farm v Consumers Power

Co, 227 Mich App 614, 616; 576 NW2d 709 (1998).

“The general discovery rules apply in probate pro-

ceedings” and “[d]iscovery for civil actions in probate

court is governed by subchapter [MCR] 2.300.” MCR

5.131. Pursuant to MCR 2.306(A)(1), one party “may

take the testimony of a person, including a party, by

deposition” after an action is commenced. Petitioners

did not pursue discovery by written notiﬁcation or by

requesting a subpoena in writing. See MCR 2.305;

MCR 2.306(B). However, a party may make any motion

orally at a court hearing. See MCR 2.119(A)(1).

Petitioners assert that they made an oral motion to

depose Evelyn at more than one off-the-record, in-

chambers “hearing” before the probate court. As the

court made no record of these proceedings, we cannot

verify the accuracy of this statement, let alone review

the court’s decision. As we are vacating the summary

dismissal of petitioners’ undue-inﬂuence claim and

remanding for further proceedings to be conducted on

the record, petitioners may again seek to depose Ev-

elyn.

We vacate in part and remand for further proceed-

ings, conducted on the record, consistent with this

opinion. We do not retain jurisdiction.

LEICHER

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

ELLY

and L

ETICA

, JJ.,

concurred.

2019] In re K

HALIL

RUST

ECON

) 171

In re TCHAKAROVA

Docket No. 345739. Submitted May 8, 2019, at Lansing. Decided

May 14, 2019, at 9:10 a.m.

On September 6, 2018, a social worker at an Ann Arbor hospital

petitioned the Washtenaw County Trial Court to order mental

health treatment for respondent. At a hearing on September 12,

2018, the court, Julia B. Owdziej, J., determined that clear and

convincing evidence had established that respondent had a men-

tal illness and was a person requiring treatment under MCL

330.1401(1)(a) and (c). Washtenaw County Community Mental

Health (CMH) recommended that respondent be hospitalized for

up to 60 days and that hospitalization be followed by “alternative

treatment.” The court entered a 60/90-day order, which allowed

for a maximum treatment period of 90 days, with up to 60 days of

hospitalization. The court also ordered that respondent take

medications as prescribed, that she follow treatment recommen-

dations, and that the hospital and CMH be permitted to speak

with respondent’s husband and other treatment providers. Re-

spondent appealed.

The Court of Appeals held:

1. A matter is moot if a court’s ruling cannot for any reason

have a practical legal effect on the existing controversy. In this

case, even if the Court of Appeals were to determine that the trial

court’s order was improperly entered, its ruling could not alter

the fact that by the time the matter went before a panel of the

Court of Appeals, respondent may have already undergone 90

days of mental health treatment, including up to 60 days of

hospitalization. However, whether the trial court order was

properly entered was not a moot issue because collateral legal

consequences remained as a result of the 60/90-day order, even

though the order itself had expired. For example, because of

respondent’s involuntary commitment, she was ineligible to pos-

sess a ﬁrearm under the federal Gun Control Act, 18 USC

922(g)(4). Accordingly, even though the trial court’s 60/90-day

order had expired, collateral legal consequences remained in the

form of restrictions on ﬁrearm possession so the issue was not

moot, and appellate review was proper. Moreover, even when a

172 328

ICH

172 [May

court’s ruling cannot affect the existing controversy—that is, even

when an issue is moot—the court may consider the issue if it is of

public signiﬁcance and likely to recur yet evade judicial review.

Involuntary mental health treatment curtails a person’s liberty,

and the public has a signiﬁcant interest in ensuring that orders

curtailing a person’s liberty are properly entered. In this case, the

court-ordered hospitalization signiﬁcantly limited respondent’s

freedom of movement, she was ordered to take medications as

prescribed, and injections were recommended. Further, the issue

was likely to recur, and it was likely to evade judicial review. A

60/90-day order is not uncommon, and the time frames governing

the trial court order in this case all but guaranteed that no

meaningful judicial review of the 60/90-day order could ever be

conducted before the order expired because of the time speciﬁed

by the court rules for ﬁling the claim of appeal, the appellant’s

brief, the appellee’s brief, and the reply brief. Accordingly, even if

there were no lingering collateral consequences stemming from

the trial court order, application of the mootness doctrine was not

appropriate.

2. MCL 330.1465 requires clear and convincing evidence to

establish that an individual has a mental illness and is a “person

requiring treatment” under MCL 330.1401(1). The trial court did

not err by ﬁnding that clear and convincing evidence established

under MCL 330.1401(1)(a) that respondent was mentally ill and

could reasonably be expected within the near future to intention-

ally or unintentionally seriously physically injure herself or an-

other individual. Respondent asserted that her receipt of a

reckless-driving ticket and a speeding ticket did not constitute

clear and convincing evidence that she was a person requiring

treatment who had engaged in an act or acts that were substan-

tially supportive of the expectation of injury to herself or another

individual. However, the trafﬁc tickets constituted evidence of a

reasonable expectation of physical harm to herself or someone else

because the tickets were not isolated incidents; rather, the trafﬁc

tickets were part of an ongoing pattern of behavior dating back to

1993 when respondent suffered a traumatic brain injury in one of

the multiple car accidents in her past. Testimony also made it plain

that respondent’s trafﬁc tickets were linked to her ongoing mental

illness. Respondent, whose delusions were related to her conduct in

stalking professors on college campuses that once resulted in her

arrest for criminal trespass, argued that the testimony against her

was inadequate because it was not clear whether a testifying

doctor was using the technical or colloquial deﬁnition of “stalking.”

Both the technical deﬁnition and the colloquial sense of the word

contemplate actions, like those in this case, that are directed

2019] In re T

CHAKAROVA

173

against another person that could unintentionally result in physi-

cal harm. And both stalking and trespass involve unwanted

contact directed against another person. Nor did the trial court err

by ﬁnding that clear and convincing evidence also established that

respondent had engaged in an act or acts or made signiﬁcant

threats that substantially supported the expectation of harm to

herself or someone else—respondent’s reckless driving, speeding,

and trespassing were the “acts” required by MCL 330.1401(1)(a).

And the trial court did not err by ruling that clear and convincing

evidence established that respondent was a person requiring

treatment under MCL 330.1401(1)(c). There was testimony that

respondent’s judgment was so impaired by her mental illness that

she was unable to understand the need for treatment—she had

previously left the county and the country to avoid treatment—and

that her impaired judgment presented a signiﬁcant risk of physical

harm to herself and others in the near future.Accordingly, the trial

court did not err by ruling that respondent was a person requiring

treatment and did not abuse its discretion by entering a 60/90-day

order for involuntary mental health treatment.

Afﬁrmed.

PPEAL

— M

OOT

SSUES

— I

NVOLUNTARY

RDERS OF

OMMITMENT

— E

XPIRA-

TION

A matter is not moot when it may have collateral legal conse-

quences for an individual; an order involuntarily committing an

individual to a mental institution has collateral legal conse-

quences even after the order has expired.

Brian L. Mackie, Prosecuting Attorney, and Fawn

Montgomery, Assistant Prosecuting Attorney, for peti-

tioner.

Susan A. Longsworth for respondent.

Before: S

WARTZLE

, P.J., and M. J. K

ELLY

and T

UKEL

, JJ.

M. J. K

ELLY

, J. Respondent, ST, appeals by right the

probate court order granting the petition for involun-

tary mental health treatment and ordering respondent

to undergo mental health treatment for up to 90 days,

with up to 60 days of hospitalization. See MCL

174 328 M

ICH

172 [May

330.1472a(1).

For the reasons stated in this opinion,

we afﬁrm.

I. BASIC FACTS

On September 6, 2018, petitioner, a social worker

at an Ann Arbor hospital, ﬁled a petition seeking

mental health treatment for respondent. The petition

alleged that, as a result of mental illness, (1) respon-

dent “can reasonably be expected within the near

future to intentionally or unintentionally seriously

physically injure [herself] or others, and has engaged

in an act or acts or made signiﬁcant threats that are

substantially supportive of this expectation”; (2) re-

spondent “is unable to attend to those basic physical

needs that must be attended to in order to avoid

serious harm in the near future, and has demon-

strated that inability by failing to attend to those

basic physical needs”; and (3) respondent’s “judgment

is so impaired by that mental illness that [she] is

unable to understand [her] need for treatment, and

whose impaired judgment, on the basis of competent

clinical opinion, presents a substantial risk of signiﬁ-

cant physical or mental harm to [herself] or presents

a substantial risk of physical harm to others in the

near future.” In support of the allegations, petitioner

attached clinical certiﬁcates from a physician and a

psychiatrist who observed respondent at the hospital.

Both doctors diagnosed respondent with bipolar dis-

2018 PA 593 amended MCL 330.1472a, effective March 28, 2019.

The statute now provides for an initial order of combined hospitalization

and assisted outpatient treatment for up to 180 days, with hospitaliza-

tion for up to 60 days of the 180 days. MCL 330.1472a(1)(c). The statute

also allows for an initial order of hospitalization alone for up to 60 days

and assisted outpatient treatment alone for up to 180 days. MCL

330.1472a(1)(a) and (b). Alternative treatment is addressed in MCL

330.1469a.

2019] In re T

CHAKAROVA

175

order and determined that she displayed a likelihood

of injuring herself and that she did not understand

the need for treatment. One of the doctors recom-

mended a course of treatment consisting of up to 60

days of hospitalization and a maximum of 90 days of

treatment with permission to use injectable medica-

tion and communicate with respondent’s family and

other treatment providers.

The probate court ordered Washtenaw County Com-

munity Mental Health (CMH) to assess alternatives to

hospitalization. Following its evaluation, CMH recom-

mended respondent be hospitalized for up to 60 days,

followed by “alternative treatment.”

A hearing on the petition was held on September 12,

2018. Dr. Scott Mariouw, a psychiatrist, testiﬁed that he

and a psychiatric resident met with respondent on

September 6, 2018, the day after she was admitted to

the hospital. Dr. Mariouw met with her every day since

then for follow-up. Dr. Mariouw diagnosed respondent

with schizoaffective disorder, bipolar type, which is a

substantial disorder of both thought and mood. He

explained that respondent exhibited delusions and dis-

organized thoughts and behaviors that impaired her

ability to function in society. Respondent’s husband had

provided Dr. Mariouw with documentation of respon-

dent’s original diagnosis of bipolar disorder in 1991 and

with photographs of numerous car crashes respondent

was involved in because of her illness. Respondent had

suffered a traumatic brain injury (TBI) in a car accident

in 1993, and the TBI likely made respondent’s prior

symptoms worse and more difﬁcult to treat.

Dr. Mariouw noted that respondent had been

ticketed for reckless driving and speeding on

September 1, 2018, and had been arrested on

176 328 M

ICH

172 [May

September 4, 2018, for trespassing as a result of her

delusions related to stalking professors on college

campuses, which showed impairment of judgment.

Dr. Mariouw believed that respondent could inten-

tionally or unintentionally seriously injure herself or

someone else in the near future because the reckless

driving and the stalking showed that she might

provoke or hurt someone else. Dr. Mariouw

opined that respondent’s judgment was so impaired

that she did not understand that she needed treat-

ment and did not believe she had a mental illness. He

also stated that respondent had left the county or the

country in the past to avoid court-ordered treatment.

Dr. Mariouw did not believe that respondent

had made progress since her hospitalization on

September 5, 2018. And he conﬁrmed that respondent

was not taking medication at the time of the hearing.

Respondent also testiﬁed, stating that she had a

mental illness “[a]s much as somebody can prove it.”

She did not believe she needed to be in the hospital,

explaining that “for twenty-eight years, I have been

detailed [sic] in mental hospital.” She elaborated that

the doctors rob her husband, “don’t give my injection,”

and allowed her husband to “pay my expenses to

escape the country.” Respondent explained that

“[d]octors prove doctors wrong and judges wrong and

don’t give me a shot and allow me to escape the

country.” She stated that “[t]he system is not so good,”

and the doctors were obligated by the system to “claim

[she was] insane.” Then, as her lawyer was summa-

rizing his closing argument, respondent added that

her medications do not stop her violence, and she

indicated that her medications, in fact, caused her to

be violent, and she stated, in vague terms, that she

2019] In re T

CHAKAROVA

177

“hit the government ofﬁcial, which is [a] felony,” but

was excused because of her “mental sickness.”

Following the hearing, the trial court found by clear

and convincing evidence that respondent was a “person

requiring treatment” under MCL 330.1401(1)(a) and (c).

II. MOOTNESS

A. STANDARD OF REVIEW

Petitioner argued that if this appeal was not decided

on or before February 12, 2019, respondent’s appeal of

the September 12, 2018 involuntary commitment order

would be moot and the case should be dismissed

without reaching its merits. Whether an issue is moot

is a question of law that this Court reviews de novo.

Thomas M Cooley Law Sch v Doe 1, 300 Mich App 245,

254; 833 NW2d 331 (2013).

B. ANALYSIS

The question of mootness is a threshold issue that a

court must address before it reaches the substantive

issues of a case. In re MCI Telecom Complaint, 460 Mich

396, 434-435 n 13; 596 NW2d 164 (1999). This is

because “Michigan courts exist to decide actual cases

and controversies . . . .” Cooley, 300 Mich App at 254. “A

matter is moot if this Court’s ruling ‘cannot for any

reason have a practical legal effect on the existing

controversy.’ ” Id., quoting Gen Motors Corp v Dep’t of

Treasury, 290 Mich App 355, 386; 803 NW2d 698 (2010).

In this case, petitioner cursorily suggests that the

matter is moot because the probate court order expired

before the resolution of respondent’s appeal.

Petitioner

In support of its argument, petitioner directs this Court to the recent

decision in In re Horvath, unpublished per curiam opinion of the Court

178 328

ICH

172 [May

appears to contend that because the order has expired,

our decision would not have any practical legal effect

on the existing controversy even if this Court were to

determine that the order was improperly entered. At

ﬁrst glance, this argument seems logical because if

respondent has already received 90 days of mental

health treatment, including hospitalization for up to

60 days, nothing this Court says will alter that fact.

Nevertheless, there are collateral legal consequences

ﬂowing from that order. For instance, because of her

involuntary commitment, respondent is ineligible to

possess a ﬁrearm. The Gun Control Act prohibits

numerous categories of people from gun ownership. 18

USC 922(g). Relevant to this appeal, § 922(g)(4) pro-

hibits anyone “who has been adjudicated as a mental

defective or who has been committed to a mental

institution” from possessing a ﬁrearm. Federal regula-

tions make clear that “committed to a mental institu-

tion” only applies to persons who are involuntarily

committed by an appropriate lawful authority follow-

ing due process safeguards. See 27 CFR 478.11 (deﬁn-

ing the phrase “committed to a mental institution”).

And the phrase “adjudicated as a mental defective”

requires a determination by a lawful authority that a

person, as a result of mental illness, among other

conditions, (1) is a danger to himself or herself or (2)

“[l]acks the mental capacity to contract or manage his

or her own affairs.” 27 CFR 478.11. Accordingly, even

though the order in this case has expired, collateral

legal consequences remain in the form of restrictions

on the right to possess a ﬁrearm, so the issue is not

moot. See Mead v Batchlor, 435 Mich 480, 486; 460

NW2d 493 (1990) (noting that an issue is not moot if it

of Appeals, issued January 8, 2019 (Docket No. 344243). Unpublished

opinions of this Court, however, are not binding precedent. MCR

7.215(C)(1).

2019] In re T

CHAKAROVA

179

“may have collateral legal consequences” for an indi-

vidual), abrogated on other grounds Turner v Rogers,

564 US 431; 131 S Ct 2507; 180 L Ed 2d 452 (2011). See

also TM v MZ, 501 Mich 312, 319-320; 916 NW2d 473

(2018) (holding that the mere expiration of a personal

protection order (PPO) did not render a challenge to

the propriety of the order moot when there remained a

legal consequence stemming from the entry of the

PPO).

Moreover, even if a claim is moot, as a practical

matter “this Court may consider a legal issue that is one

of public signiﬁcance that is likely to recur, yet evade

judicial review.” Cooley, 300 Mich App at 254 (quotation

marks and citation omitted). Here, the nature of the

probate order all but guaranteed that no meaningful

judicial review of the order could ever be conducted

before the order expired. An issue is likely to evade

judicial review if the time frames of the case make it

unlikely that appellate review can be obtained before

the case reaches a ﬁnal resolution. See Socialist Workers

Party v Secretary of State, 412 Mich 571, 582 n 11; 317

NW2d 1 (1982); In re Midland Publishing Co, Inc, 420

Mich 148, 152 n 2; 362 NW2d 580 (1984). The order was

for a maximum treatment period of 90 days, with up to

60 days in the hospital. Given this short time frame, the

issue is likely to recur, yet evade judicial review.

More-

Under the Michigan Court Rules, respondent was entitled to an

appeal of right from a ﬁnal order affecting her rights under the Mental

Health Code. See MCR 5.801(A)(4). Under MCR 7.204(A)(1)(a), an

appellant has 21 days following the entry of the adverse order to ﬁle a

claim of appeal. Thereafter, the appellant has 28 days after the

occurrence of an event listed in MCR 7.204(A)(1)(a)(i) to ﬁle a brief in

support of the claim of appeal, but the court rules provide that more

time may be provided under certain circumstances. MCR

7.212(A)(1)(a)(i). The court rules further provide that after being

served with an appellant’s brief, the appellee has 21 days to ﬁle a

responsive brief, although, again, that time may be extended. MCR

180 328

ICH

172 [May

over, during the 90-day period that the order was in

effect, respondent was ordered to “take medications as

prescribed.” Here, injections were being recommended.

Further, the court order provided that the hospital

“may speak/consult with [respondent’s] husband” and

“other treatment providers.” Thus, respondent’s medi-

cal information was made available to individuals

without her express consent. Finally, given that hospi-

talization was authorized for up to 60 days, there was

also a signiﬁcant limit on her freedom of movement.

Under these circumstances, we conclude that the issue

is one of public signiﬁcance. It is axiomatic that an

individual subjected to involuntary mental health

treatment will be signiﬁcantly affected by the order

because treatment decisions will be made for the

individual and, if inpatient treatment is ordered, his or

her freedom of movement will be limited. We conclude

that the public has a signiﬁcant interest in ensuring

that such orders curtailing a person’s liberty are prop-

erly entered. Accordingly, even if there were no linger-

ing legal consequences stemming from the probate

court order, application of the mootness doctrine would

not be appropriate in this case.

The issue is not moot.

7.212(2)(a)(i). Finally, the appellant may ﬁle a reply brief within 21

days of being served with the appellee’s brief. MCR 7.212(G).

The case is not necessarily heard immediately after the briefs have

been ﬁled. Instead, MCR 7.213(B) provides that after the briefs have

been ﬁled or the time for doing so has expired, the clerk must “notify

the parties that the case will be submitted as a ‘calendar case’ at the

next available session of the court.” And although priority is given to

cases involving mental health treatment under the Mental Health

Code, MCR 7.213(C)(2), resolution of the matter before the expiration

of a 90-day order is unlikely because of the time already set aside for

ﬁling the claim of appeal, the appellant’s brief, the appellee’s brief, and

the reply brief.

2019] In re T

CHAKAROVA

181

III. PERSON REQUIRING TREATMENT

A. STANDARD OF REVIEW

Respondent argues that petitioner did not introduce

clear and convincing evidence that she was a person

requiring treatment as deﬁned in MCL 330.1401(1)(a)

and (c). This Court reviews de novo a matter of

statutory interpretation. In re Bibi Guardianship, 315

Mich App 323, 328; 890 NW2d 387 (2016). In addition,

this Court

reviews for an abuse of discretion a probate court’s dispo-

sitional rulings and reviews for clear error the factual

ﬁndings underlying a probate court’s decision. A probate

court abuses its discretion when it chooses an outcome

outside the range of reasonable and principled outcomes.

A probate court’s ﬁnding is clearly erroneous when a

reviewing court is left with a deﬁnite and ﬁrm conviction

that a mistake has been made, even if there is evidence to

support the ﬁnding. [Id. at 328-329 (quotation marks and

citations omitted).]

B. ANALYSIS

MCL 330.1401(1) provides, in relevant part, that the

phrase “person requiring treatment” means:

(a) An individual who has mental illness, and who as a

result of that mental illness can reasonably be expected

within the near future to intentionally or unintentionally

seriously physically injure himself, herself, or another

individual, and who has engaged in an act or acts or made

signiﬁcant threats that are substantially supportive of the

expectation.

* * *

ment is so impaired by that mental illness that he or she

is unable to understand his or her need for treatment, and

182 328

ICH

172 [May

whose impaired judgment, on the basis of competent

clinical opinion, presents a substantial risk of signiﬁcant

physical or mental harm to the individual in the near

future or presents a substantial risk of physical harm to

others in the near future.

“ ‘Mental illness’ means a substantial disorder of

thought or mood that signiﬁcantly impairs judgment,

behavior, capacity to recognize reality, or ability to cope

with the ordinary demands of life.” MCL 330.1400(g).

“A judge or jury shall not ﬁnd that an individual is a

person requiring treatment unless that fact has been

established by clear and convincing evidence.” MCL

330.1465. Respondent does not contest Dr. Mariouw’s

testimony that she has a mental illness. She only

argues that Dr. Mariouw’s testimony did not establish

by clear and convincing evidence a reasonable expec-

tation or substantial risk of harm to respondent or

others.

Respondent asserts that she was not a person re-

quiring treatment as deﬁned in MCL 330.1401(1)(a)

because a reckless-driving ticket and a speeding ticket

did not constitute clear and convincing evidence that

she could be expected to physically harm herself or

someone else, intentionally or unintentionally. Reck-

less driving is deﬁned as driving “in willful or wanton

disregard for the safety of persons or property . . . .”

MCL 257.626(2). MCL 330.1401(1)(a) does not require

the potential harm to be intentional. Respondent’s

tickets for reckless driving and speeding were evidence

of a reasonable expectation of physical harm to respon-

dent or someone else because they were not isolated

incidents. Rather, they were part of an ongoing pattern

of behavior dating back to 1993 when respondent

suffered a TBI in a car accident. Respondent has been

in multiple car accidents, which inherently carried a

risk of harm to the individuals involved, including

2019] In re T

CHAKAROVA

183

respondent. Respondent’s recent tickets for reckless

driving and speeding, combined with her history of car

accidents, one of which resulted in harm to respondent,

gave rise to a reasonable expectation of intentional or

unintentional serious physical injury to respondent or

another individual in the near future. In addition, Dr.

Mariouw’s testimony made it plain that respondent’s

recent reckless-driving and speeding tickets were

linked to her ongoing mental health issues.

Respondent next contends that Dr. Mariouw’s testi-

mony was inadequate because it was not clear whether

he used the word “stalking” in the technical sense or

the colloquial sense, and she asserts that stalking

includes behavior that does not involve a risk of

physical harm. No matter which deﬁnition of stalking

Dr. Mariouw was using, either deﬁnition contemplates

actions directed against another person that could

unintentionally result in physical harm. The Michigan

Penal Code, MCL 750.1 et seq., deﬁnes “stalking” as “a

willful course of conduct involving repeated or continu-

ing harassment of another individual that would cause

a reasonable person to feel terrorized, frightened, in-

timidated, threatened, harassed, or molested and that

actually causes the victim to feel terrorized, fright-

ened, intimidated, threatened, harassed, or molested.”

MCL 750.411i(1)(e). And, colloquially, the most perti-

nent common deﬁnition of “to stalk” is “to pursue

obsessively and to the point of harassment.” Merriam-

Webster’s Collegiate Dictionary (11th ed). In addition,

criminal trespass occurs when a person, without lawful

authority, enters or remains on another’s land or

premises when that person has been forbidden to

enter, has been asked to leave, or with regard to posted

or fenced farm property, has not received the owner’s

consent to enter or remain. MCL 750.552(1)(a), (b), and

(c). Both stalking and trespass involve unwanted con-

184 328 M

ICH

172 [May

tact directed at another person. Again, MCL

330.1401(1)(a) contemplates the possibility of uninten-

tional harm. Although Dr. Mariouw did not elaborate

on the circumstances of the arrest for trespassing, that

arrest, combined with respondent’s delusions related

to stalking professors on college campuses, was also

consistent with a reasonable expectation of intentional

or unintentional serious physical injury to respondent

or another individual in the near future.

Respondent argues that there was no testimony that

she engaged in acts or made threats to substantially

support an expectation of harm. Reckless driving,

speeding, and trespassing are “acts” as required by

MCL 330.1401(1)(a). Because those acts, in light of

respondent’s history, substantially support the expec-

tation of intentional or unintentional serious physical

injury to respondent or to another within the near

future, they meet the deﬁnition in Subdivision (a) of a

person requiring treatment.

Next, respondent argues that she was not a person

requiring treatment as deﬁned in MCL 330.1401(1)(c),

because although Dr. Mariouw testiﬁed that respon-

dent’s judgment was so impaired that she was unable

to understand the need for treatment, there was no

evidence that respondent’s impaired judgment pre-

sented a substantial risk of harm to herself or others.

Dr. Mariouw testiﬁed that respondent’s delusions re-

lated to stalking professors on college campuses led to

her arrest for trespassing, and those delusions im-

paired her judgment. Dr. Mariouw also testiﬁed that

respondent had previously been ordered to receive

treatment for her mental illness and had left the

county or the country to avoid treatment. Accordingly,

Dr. Mariouw testiﬁed that respondent’s judgment was

impaired both in relation to her inability to acknowl-

2019] In re T

CHAKAROVA

185

edge the need for treatment and the risk of physical

harm to others. For this reason, Dr. Mariouw’s testi-

mony established both elements of Subdivision (c). In

sum, the trial court did not err by ﬁnding that respon-

dent was a person requiring treatment and did not

abuse its discretion by ordering that respondent re-

ceive treatment for her mental illness.

Afﬁrmed.

WARTZLE

, P.J. and T

UKEL

, J., concurred with M. J.

ELLY

, J.

186 328 M

ICH

172 [May

JIM’S BODY SHOP, INC v DEPARTMENT OF TREASURY

Docket No. 343459. Submitted May 8, 2019, at Lansing. Decided

May 14, 2019, at 9:15 a.m.

Jim’s Body Shop, Inc., brought an action in the Court of Claims

against the Department of Treasury (the Department), asserting

that it was entitled to cancellation of a tax assessment. In July

2015, the Department informed plaintiff that it would be per-

forming a use-tax audit of plaintiff’s returns for the taxable period

between August 1, 2011 and December 31, 2014. The Depart-

ment’s auditors determined that plaintiff had not maintained

adequate tax records. Plaintiff had not remitted any use tax for

the periods at issue, and while plaintiff had remitted some sales

tax, it had not reported that sales tax on its annual returns.

Consequently, the Department was unable to determine from

plaintiff’s purchase invoices whether use or sales tax had been

remitted on these purchases because they could not be related

back to plaintiff’s annual return. The Department requested

documents, but plaintiff could not provide the necessary informa-

tion. Ultimately, the Department employed an indirect audit

methodology to determine the use tax due on the two types of

purchases plaintiff had made during the audit period: capital

assets and expenses related to mechanical and body-shop repair

work. To determine the goods that plaintiff consumed—and that

were thus subject to use tax—the Department, using the infor-

mation it had available, applied a “one-year block” methodology

for the 2014 tax year. To determine the purchases plaintiff itself

used, the Department subtracted the total amount of retail sales,

adjusted to the cost of goods before markup, from the total

purchases. This adjustment to retail sales (hereinafter “retail

sales at cost”) was necessary to ensure that plaintiff’s purchases

for self-consumption were calculated correctly. Notably, because

plaintiff initially provided only a single invoice from 2014 reﬂect-

ing a retail sale, for which the markup was 43%, the Department

adjusted all of plaintiff’s retail sales for each tax year using this

43% markup. Ultimately, the Department issued a ﬁnal assess-

ment for $111,024, including a negligence penalty and interest.

Plaintiff then brought the instant action, asserting that it was not

subject to use tax, that the Department ignored “various” tax

2019] J

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exemptions for which plaintiff was eligible, and that the Depart-

ment erred in calculating a 43% markup to determine plaintiff’s

purchases for personal use. Plaintiff further claimed that certain

expenses and capital assets were improperly included because

they were exempt under the industrial-processing exemption and

that the remaining capital assets were not subject to taxation for

various reasons. In support of its position, plaintiff provided

additional documentation that it had not provided during the

audit. The Department consequently adjusted the markup down-

ward to 35%, thereby reducing plaintiff’s tax liability for ex-

penses. Both parties ﬁled cross-motions for summary disposition,

and the Court of Claims, M

ICHAEL

J. T

ALBOT

, J., ruled in the

Department’s favor. Plaintiff appealed.

The Court of Appeals held:

1. Under MCL 205.104a(1) of the Use Tax Act (UTA), MCL

205.91 et seq., a taxpayer in the business of selling tangible

personal property has a duty to maintain, for a period of four

years, an accurate and complete beginning and annual inventory

and purchase records of additions to inventory, complete daily

sales records, receipts, invoices, bills of lading, and all pertinent

documents in a form the department requires. In the event the

taxpayer fails to comply with this requirement, MCL 205.104a(4)

authorizes the Department to determine the taxpayer’s tax

liability using sources beyond the taxpayer’s formal declarations.

MCL 205.104a(4) creates a presumption that the resulting as-

sessment is correct and mandates that the audit shall be con-

ducted in accordance with certain standards. In this case, plain-

tiff failed to remit any use tax, failed to report sales or use taxes

on its annual returns, and failed to maintain the required

documentation to establish its use-tax liability. Consequently, the

Department acted within its authority to apply an indirect audit

methodology under MCL 205.104a(4) to determine plaintiff’s

use-tax liability for the tax years at issue.

2. MCL 205.104a(4) provides that an assessment derived

from an indirect method is considered prima facie correct, and

MCL 205.104a(4) speciﬁcally allocates the burden of proof of

refuting the assessment upon the taxpayer. The last sentence of

MCL 205.104a(4) requires that an “indirect audit” contain the

elements listed in Subdivisions (a) through (d). Contrary to

plaintiff’s interpretation, Subdivisions (a) through (d) do not

inform—or otherwise act as a prerequisite to—the Department’s

entitlement to the presumption of correctness under MCL

205.104a(4). Subdivisions (a) through (d) are mandatory proce-

dural requirements in the performance of an indirect audit, but

the statutory language never indicates that the failure to follow

188 328

ICH

187 [May

these procedural requirements renders the assessment invalid or

otherwise prohibits application of the presumption. Had the

Legislature intended the procedural requirements of Subdivi-

sions (a) through (d) to be requisites to the presumption of

correctness, it would have stated so plainly. When the statute is

read as a whole, it is plain that the burden rests on taxpayers to

show that an assessment derived from an indirect method is

actually incorrect. In this case, plaintiff did not assert that the

assessment was incorrect; rather, based on its ﬂawed interpreta-

tion of the statute, plaintiff claimed that the assessment meth-

odology was unreasonable because the Department did not abide

by its manual and because a more reasonable method would have

resulted in a more accurate assessment. However, under the

plain terms of the statute, assertions that an audit procedure was

unreasonable, absent a showing that the assessment is incorrect,

do not support a conclusion that the assessment is actually

incorrect. On this basis alone, plaintiff failed to meet its burden.

Even assuming that an unreasonable audit method by itself could

function to rebut the presumption of correctness, plaintiff failed

to show that the method the Department employed was unrea-

sonable or to otherwise demonstrate in any way that the assess-

ment was not correct. Accordingly, plaintiff failed to rebut the

presumption that the assessment was prima facie correct, so the

Court of Claims did not err by granting summary disposition on

this basis.

3. MCL 205.94o(1)(a) provides, in pertinent part, that prop-

erty sold to an “industrial processor” that is used or consumed in

“industrial processing” is exempt from taxation under the UTA.

MCL 205.94o(7)(b) deﬁnes “industrial processor” as a person who

performs the activity of converting or conditioning tangible per-

sonal property for ultimate sale at retail or use in the manufac-

turing of a product to be ultimately sold at retail or afﬁxed to and

made a structural part of real estate located in another state.

MCL 205.94o(7)(a) deﬁnes “industrial processing” as the activity

of converting or conditioning tangible personal property by

changing the form, composition, quality, combination, or charac-

ter of the property for ultimate sale at retail or for use in the

manufacturing of a product to be ultimately sold at retail or

afﬁxed to and made a structural part of real estate located in

another state. Industrial processing begins when tangible per-

sonal property begins movement from raw materials storage to

begin industrial processing and ends when ﬁnished goods ﬁrst

come to rest in ﬁnished goods inventory storage. In this case,

plaintiff was not an industrial processor engaged in industrial

processing because, by deﬁnition, an industrial processor and

2019] J

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industrial processing require an “ultimate sale at retail.” MCL

205.51(1)(b) deﬁnes “sale at retail” as a sale, lease, or rental of

tangible personal property for any purpose other than for resale,

sublease, or subrent. It is signiﬁcant that the Legislature quali-

ﬁed the necessary activity with the phrase “for ultimate sale at

retail” because it excludes from the industrial-processing exemp-

tion persons involved in the sale of services. Plaintiff’s auto-body

work involved both the sale of tangible personal property, i.e.,

new paint on a new or preexisting auto-body part, and the sale of

a service, i.e., the repair of auto-body parts. For purposes of the

exemption, whether a “sale at retail” has occurred when a mixed

transaction is at issue depends on whether the transfer of

tangible personal property is merely incidental to the service

provided, in which case the transaction is for services and not a

“sale at retail.” To determine whether a “sale at retail” has

occurred, courts applying the General Sales Tax Act have used

the “incidental-to-service test” and have objectively examined the

totality of the transaction. In this case, the sale of tangible

personal property, i.e., new paint on a new or preexisting auto-

body part, was incidental to the sale of a service, i.e., the repair of

auto-body parts. Because plaintiff made no sales at retail, given

that its transactions were for the sale of a service, it was not an

“industrial processor” engaged in “industrial processing” and it

was not eligible for the industrial-processing exemption.

4. Regarding motions for summary disposition under MCR

2.116(C)(10), once the moving party meets its burden of support-

ing the motion with documentary evidence, the burden shifts to

the nonmoving party to set forth speciﬁc facts showing that a

genuine issue of disputed fact exists. In this case, plaintiff failed

to produce the required documentary evidence necessary to

establish a genuine issue of material fact to avoid summary

disposition. Plaintiff’s owner and president testiﬁed regarding

purchases but did not present any invoices or documentary proof.

Accordingly, the Court of Claims did not err by recognizing that

plaintiff had failed to meet its burden of proof.

5. MCL 205.23(3) requires the imposition of a 10% penalty in

the event that a tax deﬁciency is due to the taxpayer’s negligence.

Mich Admin Code, R 205.1012 deﬁnes negligence, for purposes of

imposing this penalty, as the lack of due care in failing to do what

a reasonable and ordinarily prudent person would have done

under the particular circumstances. Whether a taxpayer was

negligent is determined on a case-by-case basis, but the standard

for determining negligence is whether the taxpayer exercised

ordinary care and prudence in preparing and ﬁling a return and

190 328

ICH

187 [May

paying the applicable tax in accordance with the statute. MCL

205.23(3) provides, in pertinent part, that if the taxpayer demon-

strates to the satisfaction of the Department that the deﬁciency

was due to reasonable cause, the Department shall waive the

penalty. In this case, plaintiff did not remit any use taxes during

the period and left the portion of its returns relating to sales and

use taxes blank. Plaintiff’s owner and president testiﬁed that he

was not aware of plaintiff’s tax-reporting procedures and did not

know whether plaintiff had ﬁled sales- or use-tax returns for the

years in question. Further, plaintiff’s claim that it believed it was

entitled to the industrial-processing exemption was belied by the

fact that it did not raise this exemption until litigation and, in any

case, ordinary care would have compelled plaintiff to ﬁle returns

despite such a belief. These circumstances showed that plaintiff

failed to exercise ordinary care. The Court of Claims did not err by

upholding the negligence penalty.

Afﬁrmed.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, and Emily C. Zillgitt,

Assistant Attorney General, for the Department of

Treasury.

Braun Kendrick Finkbeiner PLC (by Jamie Hecht

Nisidis) for Jim’s Body Shop, Inc.

Before: S

WARTZLE

, P.J., and M. J. K

ELLY

and T

UKEL

JJ.

URIAM

. In this case involving a use-tax deﬁ-

ciency, plaintiff, Jim’s Body Shop, Inc., appeals by right

the Court of Claims’ order granting summary disposi-

tion under MCR 2.116(C)(10) in favor of defendant, the

Michigan Department of Treasury. Because there are

no errors warranting reversal, we afﬁrm.

I. BASIC FACTS

Plaintiff is an auto-body repair shop located in

Clare, Michigan, that is primarily engaged in the

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business of ﬁxing vehicles that have been involved in

collisions for insurance companies. This collision work

may require both body and mechanical work, including

part repair or replacement as well as exterior painting

and reﬁnishing. A smaller component of plaintiff’s

business involves routine noninsurance-related me-

chanical repairs, for example, replacing batteries,

changing oil, or installing tires.

In July 2015, the Department informed plaintiff

that it would be performing a use-tax audit of plain-

tiff’s returns for the taxable period between August 1,

2011 and December 31, 2014. Upon initial review of

plaintiff’s tax records, the Department’s auditors de-

termined that plaintiff had not maintained adequate

tax records. Plaintiff had not remitted any use tax for

the periods at issue, and while plaintiff had remitted

some sales tax, it had not reported that sales tax on its

annual returns. Rather, plaintiff’s annual returns only

reported withholding taxes; the portion of the returns

relating to sales tax, gross sales, deductions from gross

sales, and use tax was left blank. Consequently, while

plaintiff had maintained trial-balance sheets,

the De-

partment was unable to determine from plaintiff’s

purchase invoices whether use or sales tax had been

remitted on these purchases because they could not be

related back to plaintiff’s annual return. The Depart-

ment requested documents to ascertain which pur-

chases plaintiff personally consumed (as opposed to

purchases it sold and collected sales tax on), but

plaintiff could not provide that information.

A “trial balance” sheet is “a bookkeeping or accounting report that

lists the balances in each of an organization’s general ledger accounts.”

See Harold Averkamp, AccountingCoach, What Is a Trial Balance?

<https://www.accountingcoach.com/blog/what-is-a-trial-balance> (ac-

cessed April 26, 2019) [https://perma.cc/JF7V-NB94].

192 328

ICH

187 [May

Ultimately, the Department employed an indirect

audit methodology to determine the use tax due on the

two types of purchases plaintiff had made during the

audit period: capital assets

and expenses related to

mechanical and body-shop repair work. With regard to

capital assets, the Department reviewed plaintiff’s

federal depreciation schedule for the subject tax years

and assessed tax for those purchases on the schedule

for which no tax had been paid. With respect to

plaintiff’s use-tax liability for expenses, or property

plaintiff purchased to perform its mechanical and

body-shop repair work, the Department reviewed

plaintiff’s trial-balance sheets and identiﬁed 11 ac-

counts as relevant to the use-tax audit. Yet, the trial-

balance sheets did not identify whether plaintiff’s

purchases were for personal consumption or for its

retail customers, although they did show that plain-

tiff’s purchases were substantially greater than its

retail sales, indicating that certain goods were pur-

chased for plaintiff’s consumption.

To determine the goods that plaintiff consumed—

and that were thus subject to use tax—the Depart-

ment, using the information it had available, applied a

“one-year block” methodology for the 2014 tax year.

Mainly from the 2014 trial-balance sheet and the

amount of sales tax remitted in 2014, the Department

was able to compare the purchases plaintiff made, i.e.,

the total cost of goods it paid for, to plaintiff’s total

retail sales, i.e., the price (cost of the good plus

markup) charged to the consumer. To determine the

purchases plaintiff itself used, the Department sub-

tracted the total amount of retail sales, adjusted to the

“Capital assets” are “long-term asset[s] used in the operation of a

business or used to produce goods or services, such as equipment, land,

or an industrial plant.” Black’s Law Dictionary (10th ed), p 140.

2019] J

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cost of goods before markup, from the total purchases.

This adjustment to retail sales (hereinafter “retail

sales at cost”) was necessary to ensure that plaintiff’s

purchases for self-consumption were calculated cor-

rectly. Notably, because plaintiff initially provided only

a single invoice from 2014 reﬂecting a retail sale, for

which the markup was 43%, the Department adjusted

all of plaintiff’s retail sales for each tax year using this

43% markup. Ultimately, the Department issued a

ﬁnal assessment for $111,024, including a negligence

penalty and interest.

Shortly after the Department issued its ﬁnal audit

determination, plaintiff ﬁled a complaint in the Court

of Claims, asserting that it was entitled to cancella-

tion of the assessment because of the Department’s

“errors.” Plaintiff asserted that it was not subject to

use tax and that the Department ignored “various”

tax exemptions for which plaintiff is eligible. Plaintiff

clariﬁed its position in its discovery responses, alleg-

ing that the Department erred in calculating a 43%

markup to determine plaintiff’s purchases for per-

sonal use because the Department relied on a single

purchase invoice, the sample size of which was too

small and not representative of plaintiff’s sales so as

to be extrapolated over the four-year period. Plaintiff

further claimed that certain expenses and capital

assets were improperly included because they were

exempt under the industrial-processing exemption,

including, as to expenses, paint supplies, sandblaster

sand and supplies, and paintless dents equipment

and supplies, and as to capital assets, the Cooltech

R143A refrigerant recycler, Saylor-Beall air compres-

sor, pressure washer, and carpet extractor. Plaintiff

also asserted that the remaining capital assets were

not subject to taxation for various reasons, including

tools and a foam sprayer that were allegedly part of

194 328 M

ICH

187 [May

the realty, a 2008 Pontiac Grand Prix that plaintiff

allegedly never purchased, and a 2003 International

4300 that was purchased for resale.

In support of its position, plaintiff provided addi-

tional documentation that it had not provided during

the audit and, consequently, the Department reduced

plaintiff’s tax liability. Plaintiff, for example, provided

documents showing that sales tax had been paid on

some tire sales and some inventory vehicles and, thus,

the Department removed those items from the taxable

balance. Plaintiff also produced invoices from 3 of the

11 expense accounts of interest, including 63 tire

invoices, 36 parts invoices, and 2 mechanical invoices.

Given this additional information, the Department

recalculated the markup by averaging the invoices

separately in each of the three accounts and then

averaging the average. As a result, the Department

adjusted the markup downward to 35%, thereby reduc-

ing plaintiff’s tax liability for expenses.

Eventually the parties ﬁled cross-motions for sum-

mary disposition under MCR 2.116(C)(10). The Court

of Claims ruled in the Department’s favor.

This appeal follows.

II. SUMMARY DISPOSITION

A. STANDARD OF REVIEW

Plaintiff argues that the trial court erred by grant-

ing summary disposition in favor of defendant. This

Court reviews de novo a decision of the Court of Claims

granting summary disposition. GMAC LLC v Dep’t of

Treasury, 286 Mich App 365, 372; 781 NW2d 310

(2009). “A motion under MCR 2.116(C)(10) tests the

factual sufﬁciency of the complaint.” Maiden v

Rozwood, 461 Mich 109, 120; 597 NW2d 817 (1999).

The Court must view all the evidence submitted by the

2019] J

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parties in a light most favorable to the nonmoving

party. Id. If no genuine issue of material fact exists and

judgment is proper as a matter of law, then the motion

was properly granted. Id. Questions of statutory inter-

pretation are questions of law that are also reviewed de

novo. GMAC LLC, 286 Mich App at 372.

B. ANALYSIS

1. PRESUMPTION OF CORRECTNESS

Under MCL 205.104a(1) of the Use Tax Act (UTA),

MCL 205.91 et seq., a taxpayer in the business of

selling tangible personal property has a duty to main-

tain, for a period of four years, “an accurate and

complete beginning and annual inventory and pur-

chase records of additions to inventory, complete daily

sales records, receipts, invoices, bills of lading, and all

pertinent documents in a form the department re-

quires.” In the event the taxpayer fails to comply with

this requirement, MCL 205.104a(4) authorizes the

Department to determine the taxpayer’s tax liability

using sources beyond the taxpayer’s formal declara-

tions. MCL 205.104a(4) creates a presumption that the

resulting assessment is correct and mandates that the

audit shall be conducted in accordance with certain

standards.

Here, plaintiff failed to remit any use tax, failed to

report sales or use taxes on its annual returns, and

failed to maintain the required documentation to es-

tablish its use-tax liability. Consequently, the Depart-

ment acted within its authority to apply an indirect

audit methodology under MCL 205.104a(4) to deter-

mine plaintiff’s use-tax liability for the tax years at

issue.

196 328 M

ICH

187 [May

On appeal, plaintiff does not dispute that an indirect

methodology was permissible but instead claims that

the resultant assessment was not reasonable under the

statute and that the Department, therefore, was not

entitled to the presumption that the assessment was

correct. Plaintiff’s contends that under MCL

205.104a(4) the Department is not entitled to the

presumption of correctness absent a showing of reason-

ableness. In support, plaintiff points to Subdivisions

(a) through (d), claiming that because these are man-

datory requirements, the Department’s failure to com-

ply with them either makes the Department ineligible

for the presumption or rebuts the presumption. Plain-

tiff, however, misconstrues the statute.

When construing statutory language, this Court’s

goal is to ascertain the Legislature’s intent. Cook v

Dep’t of Treasury, 229 Mich App 653, 658-659; 583

NW2d 696 (1998). The best indicator of that intent is

the plain language used. Ferguson v City of Lincoln

Park, 264 Mich App 93, 95-96; 694 NW2d 61 (2004). If

the language is clear and unambiguous, it must be

applied as written. Id. “Further, tax statutes are not to

be extended by implication and are to be construed

against the taxing authority if an ambiguity exists.”

Garﬁeld Mart, Inc v Dep’t of Treasury, 320 Mich App

628, 643; 907 NW2d 880 (2017).

MCL 205.104a(4) provides:

If a taxpayer fails to ﬁle a return or to maintain or

preserve sufﬁcient records as prescribed in this section, or

the department has reason to believe that any records

maintained or returns ﬁled are inaccurate or incomplete

and that additional taxes are due, the department may

assess the amount of the tax due from the taxpayer based

on an indirect audit procedure or any other information

that is available or that may become available to the

department. That assessment is considered prima facie

2019] J

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correct for the purpose of this act and the burden of proof of

refuting the assessment is upon the taxpayer. An indirect

audit of a taxpayer under this subsection shall be con-

ducted in accordance with 1941 PA 122, MCL 205.1 to

205.31, and the standards published by the department

under section 21 of 1941 PA 122, MCL 205.21, and shall

include all of the following elements:

(a) A review of the taxpayer’s books and records. The

department may use an indirect method to test the accu-

racy of the taxpayer’s books and records.

(b) Both the credibility of the evidence and the reason-

ableness of the conclusion shall be evaluated before any

determination of tax liability is made.

income, deductions, or expenses that is reasonable under

the circumstances. The department may use third-party

records in the reconstruction.

(d) The department shall investigate all reasonable

evidence presented by the taxpayer refuting the computa-

tion. [Emphasis added.]

Subsection (4) requires that an assessment derived

from an indirect method “is considered prima facie

correct” and speciﬁcally allocates the “burden of proof

of refuting the assessment . . . upon the taxpayer.”

MCL 205.104a(4). Because the burden of proof refers

back to the presumption of correctness, MCL

205.104a(4), by its plain terms, means that the tax-

payer has the burden of rebutting the presumption of

correctness by showing that the assessment was

incorrect. See By Lo Oil Co v Dep’t of Treasury, 267

Mich App 19, 43; 703 NW2d 822 (2005).

The last

In By Lo Oil Co, 267 Mich App at 43, this Court explained that

“[a]lthough plaintiff proffered opinion testimony that the audit method

used by the department was not the most reliable and should have been

veriﬁed with test samples chosen from throughout the period audited,

plaintiff failed to offer any evidence that the error rate determined by

198 328

ICH

187 [May

sentence of Subsection (4) requires that an “indirect

audit” contain the elements listed in Subdivisions (a)

through (d). See MCL 205.104a(4)(a) through (d).

Contrary to plaintiff’s interpretation, Subdivisions

(a) through (d) do not inform—or otherwise act as a

prerequisite to—the Department’s entitlement to the

presumption of correctness under Subsection (4). Sub-

divisions (a) through (d) are mandatory procedural

requirements in the performance of an indirect audit,

but the statutory language never indicates that the

failure to follow these procedural requirements ren-

ders the assessment invalid or otherwise prohibits

application of the presumption. Had the Legislature

intended the procedural requirements of Subdivisions

(a) through (d) to be requisites to the presumption of

correctness, it would have stated so plainly.

When the statute is read as a whole, it is plain that

the burden rests on taxpayers to show that an assess-

ment derived from an indirect method is actually

incorrect. Subdivisions (a) through (d) are only rel-

evant to a taxpayer’s burden if the taxpayer can show

that as a result of the Department’s failure to abide by

those procedural requirements, the assessment was

not correct: for example, by showing that the Depart-

ment made a mathematical error or failed to include

pertinent information. In this case, plaintiff does not

assert that the assessment is incorrect; rather, based

on its ﬂawed interpretation of the statute, it claims

the ‘block sampling’ method was actually inaccurate.” In other words,

challenging the audit method without also proffering evidence showing

that the audit is actually incorrect is insufﬁcient to establish “as a

factual matter that any unfairness or injustice occurred.” Id.

We note that plaintiff’s understanding of the statute, which requires

a showing of reasonableness before the presumption attaches, effec-

tively eviscerates the presumption of validity by shifting the burden

onto the Department to show that the assessment is reasonable.

2019] J

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that the assessment methodology was unreasonable

because the Department did not abide by its manual

and because a more reasonable method would have

resulted in a more accurate assessment. As explained

earlier, under the plain terms of the statute, asser-

tions that an audit procedure was unreasonable,

absent a showing that the assessment is incorrect, do

not support a conclusion that the assessment is actu-

ally incorrect. On this basis alone, plaintiff has failed

to meet its burden.

Even assuming that an unreasonable audit method

by itself could function to rebut the presumption of

correctness, plaintiff has failed to show that the

method the Department employed was unreasonable

or otherwise demonstrate in any way that the assess-

ment was not correct. Regarding the Department’s

alleged failure to follow the manual’s guidance when

using a sampling method, plaintiff points out that

small sample sizes are disfavored, as are those that

are not representative of the entire population. Yet,

the Department did not rely on a sampling method-

ology whereby a “sample” of invoices would be used to

determine the markup theoretically applied to all

goods sold. Instead, the Department used a block-

sampling methodology and used the only information

plaintiff had made available to it, which renders the

manual’s guidance on sampling methodology immate-

rial. Moreover, even assuming that the sampling

methodology had some relevance, plaintiff cites no

authority for the proposition that the Department’s

alleged failure to follow its own guidance renders the

assessment incorrect or constitutes error requiring

reversal. In any event, the manual is not binding law,

but merely guidance. See Danse Corp v Madison Hts,

466 Mich 175, 181; 644 NW2d 721 (2002) (indicating

that agency manuals not promulgated through formal

200 328 M

ICH

187 [May

rulemaking are merely guidance). Further, to hold

that a taxpayer may rebut the presumption of correct-

ness by merely showing that the Department did not

follow its manual would prohibit, or constrain, the

Department from making assessments on available

information in situations in which taxpayers do not

maintain proper records and would greatly erode the

state’s power to tax. See Vomvolakis v Dep’t of Trea-

sury, 145 Mich App 238, 245; 377 NW2d 309 (1985).

Relatedly, plaintiff claims that it was unreasonable

for the Department to project the cost of goods plain-

tiff sold at retail by determining an overall markup

based on the average of three separately averaged

accounts. When it is necessary for the Department to

use an indirect methodology, it has wide discretion in

the selection of the method and the taxpayer has no

right to choose the method ultimately applied. By Lo

Oil Co, 267 Mich App at 42. Nevertheless, plaintiff

asserts that giving equal weight to the parts-

mechanical account (average markup of 66% based on

two invoices) disproportionately affects the markup

averages of the other two accounts, both of which had

much larger sample sizes. According to plaintiff, the

Department should have averaged all the invoices

together for a total markup of 13%, as opposed to

averaging the averages of the accounts. Plaintiff

ignores, however, that each of the 11 accounts make

up different percentages of plaintiff’s business; the

signiﬁcance of this is that by simply averaging all the

invoices together, undue weight would be given to the

tire account (because plaintiff submitted the most

invoices for that account), which only makes up 4% of

plaintiff’s business. By averaging the averages, defen-

dant gave equal weight to each of the accounts for

which invoices were submitted. While defendant’s

method does not account for the proportion of busi-

2019] J

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ness activity in each account (primarily because

plaintiff did not produce invoices for each account),

plaintiff’s proposed method is not any more reliable

than the method applied, given that a taxpayer could

manipulate the markup by producing a greater num-

ber of invoices favorable to it. In any case, that an

audit method other than the one employed may have

been more reasonable or reliable than the one actu-

ally used is insufﬁcient to rebut the presumption of

correctness without a showing that the assessment is

actually incorrect. Id. at 42-43.

In sum, plaintiff failed to rebut the presumption

that the assessment is prima facie correct, so the Court

of Claims did not err by granting summary disposition

on this basis.

2. INDUSTRIAL-PROCESSING EXEMPTION

Plaintiff argues that the industrial-processing ex-

emption, MCL 205.54t, should be applied in this case.

Property sold to an “industrial processor” that is used

or consumed in “industrial processing” is exempt from

taxation under the UTA. MCL 205.94o(1)(a). The act

deﬁnes “industrial processor” as

a person who performs the activity of converting or condi-

tioning tangible personal property for ultimate sale at

retail or use in the manufacturing of a product to be

ultimately sold at retail or afﬁxed to and made a struc-

tural part of real estate located in another state. [MCL

205.94o(7)(b).]

The act further deﬁnes “industrial processing” as

the activity of converting or conditioning tangible personal

property by changing the form, composition, quality, com-

bination, or character of the property for ultimate sale at

retail or for use in the manufacturing of a product to be

ultimately sold at retail or afﬁxed to and made a struc-

202 328

ICH

187 [May

tural part of real estate located in another state. Indus-

trial processing begins when tangible personal property

begins movement from raw materials storage to begin

industrial processing and ends when ﬁnished goods ﬁrst

come to rest in ﬁnished goods inventory storage. [MCL

205.94o(7)(a).]

Plaintiff prepares damaged or new auto-body parts

by sandblasting and ﬁxing dents as necessary and by

preparing and applying a primer. After the primer is

baked, plaintiff mixes a combination of powdered tints

and other liquid chemicals and applies the resultant

paint color to the auto-body part using an air gun. After

the paint has baked, plaintiff ﬁnishes the process by

mixing more chemicals to create a clear coat, which is

again applied to the auto part using an air gun. Plainly,

plaintiff’s auto-body collision-repair work is an activity

that alters tangible personal property (the paint tints

and other chemicals) by changing its form and charac-

ter. See MCL 205.94o(7)(a).

Notwithstanding plaintiff’s activities, plaintiff is not

an industrial processor engaged in industrial process-

ing. This is because, by deﬁnition, an industrial pro-

cessor and industrial processing require an “ultimate

sale at retail.” The General Sales Tax Act, MCL 205.51

et seq., deﬁnes “sale at retail” as “a sale, lease, or rental

of tangible personal property for any purpose other

than for resale, sublease, or subrent.” MCL

205.51(1)(b) (emphasis added). It is signiﬁcant that the

Legislature qualiﬁed the necessary activity with the

phrase “for ultimate sale at retail” because it excludes

from the industrial-processing exemption persons in-

volved in the sale of services. See MidAmerican Energy

Co v Dep’t of Treasury, 308 Mich App 362, 364-365; 863

NW2d 387 (2014) (recognizing that under the General

Sales Tax Act’s analogous industrial-processing ex-

emption, the exemption is not available to persons

2019] J

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selling something other than tangible personal prop-

erty).

Plaintiff’s auto-body work involves both the sale of

tangible personal property, i.e., new paint on a new or

preexisting auto-body part, and the sale of a service,

i.e., the repair of auto-body parts. For purposes of the

exemption, whether a “sale at retail” has occurred

when a mixed transaction is at issue depends on

whether the transfer of tangible personal property is

merely incidental to the service provided, in which case

the transaction is for services and not a “sale at retail.”

To determine whether a “sale at retail” has occurred,

courts applying the General Sales Tax Act have used

the “incidental-to-service test” and have objectively

examined the totality of the transaction, considering

what the buyer sought as the object of the transaction,

what the seller or service provider is in the business of

doing, whether the goods were provided as a retail enter-

prise with a proﬁt-making motive, whether the tangible

goods were available for sale without the service, the

extent to which intangible services have contributed to the

value of the physical item that is transferred, and any

other factors relevant to the particular transaction. [Cat-

alina Marketing Sales Corp v Dep’t of Treasury, 470 Mich

13, 26; 678 NW2d 619 (2004).]

[6]

Notably, prior to the amendment of the act that added MCL 205.94o

in 1999, 1999 PA 117, effective July 14, 1999, the Legislature had

recognized that the exemption could apply to those involved in the sale

of services, so long as those services changed or altered the character of

tangible personal property to place it in a different form, see Beckman

Prod Servs, Inc v Dep’t of Treasury, 202 Mich App 342, 344-345; 508

NW2d 178 (1993). The 1999 amendment, which added the language

requiring that industrial processors effect a change in tangible personal

property for ultimate sale at retail, reﬂects a conscious decision to

narrow the applicability of the exemption.

Although the Michigan Supreme Court articulated this test in a case

involving the GSTA, this Court has previously applied the incidental-

204 328

ICH

187 [May

Plaintiff is primarily engaged in the business of

providing auto-body repairs to vehicles that have been

in a collision. With respect to this aspect of plaintiff’s

business, customers sought the auto-body repairs of

their damaged vehicles as the object of the transaction.

The paint and supplies that plaintiff used to make

these repairs were not made available for sale without

the service. And this tangible personal property—the

unmixed paint, the other chemicals, and the supplies

used to prepare and ﬁnish the repair—would have

virtually no value to the customer without the service

of applying those components to the vehicle so that the

auto-body parts look like new. Consequently, the sale of

tangible personal property, i.e., new paint on a new or

preexisting auto-body part, is incidental to the sale of a

service, i.e., the repair of auto-body parts. Because

plaintiff makes no sales at retail, given that its trans-

actions are for the sale of a service, it is not an

“industrial processor” engaged in “industrial process-

ing” and it is not eligible for the industrial-processing

exemption.

Plaintiff disagrees with this conclusion, claiming

that the Court of Claims erred by focusing its analysis

solely on the fact that the paints were not sold sepa-

rately at retail, but in doing so, plaintiff takes the

Court of Claims’ statement in isolation. The court’s

analysis, however, focused on the totality of the trans-

action under the incidental-to-service test. Moreover,

the evidence provided by plaintiff does not support a

ﬁnding that plaintiff sold paints alone. Instead, it is

clear that the paints were sold in conjunction with the

repair service. Plaintiff does not otherwise explain how

it is engaged in retail sales, as opposed to the sale of

to-service test in the context of the UTA. Auto-Owners Ins Co v Dep’t of

Treasury, 313 Mich App 56, 79 n 4; 880 NW2d 337 (2015).

2019] J

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repair service, other than relying on an unpublished

case, which is not binding on this Court, and which we

do not ﬁnd persuasive.

See MCR 7.215(C)(1).

3. CAPITAL ASSETS

Plaintiff argues that the Court of Claims misapplied

the standard for reviewing a summary-disposition mo-

tion under MCR 2.116(C)(10) with regard to certain

capital assets. Plaintiff claims that the court failed to

view the evidence in the light most favorable to plain-

tiff and wrongly ignored James Paetschow’s

testimony

that the assets were not subject to tax. Once the

moving party meets its burden of supporting its motion

under MCR 2.116(C)(10) with documentary evidence,

the burden shifts to the nonmoving party to set forth

speciﬁc facts showing that a genuine issue of disputed

fact exists. Smith v Globe Life Ins Co, 460 Mich 446,

455; 597 NW2d 28 (1999). In this regard, “the nonmov-

ing party may not rely on mere allegations or denials in

pleadings, but must go beyond the pleadings [and

present documentary evidence] to set forth speciﬁc

facts showing that a genuine issue of material fact

exists.” Quinto v Cross & Peters Co, 451 Mich 358,

362-363; 547 NW2d 314 (1996).

Plaintiff’s federal depreciation schedule listed the

capital assets in dispute; because plaintiff was unable

to produce an invoice showing that sales tax had been

paid on these items, the Department included those

items in the assessment. Contrary to plaintiff’s argu-

ment on appeal, plaintiff failed to produce the required

The decision plaintiff relies on is Central Mich Cementing Servs,

LLC v Dep’t of Treasury, unpublished per curiam opinion of the Court of

Appeals, issued December 8, 2015 (Docket No. 323405).

Paetschow is plaintiff’s owner and president.

206 328

ICH

187 [May

documentary evidence necessary to establish a genu-

ine issue of material fact to avoid summary disposition.

Paetschow testiﬁed that the tools and the foam sprayer

were attached to the realty, but plaintiff did not pres-

ent any invoices or documentary proof. He also testifed

that plaintiff purchased a Grand Prix but could not

produce an invoice; he later attested contradictorily

that plaintiff did not purchase the Grand Prix. And

despite claiming the International 4300 on the depre-

ciation schedule, Paetschow testiﬁed that it was pur-

chased for resale and kept as inventory, but he did not

provide any documentary evidence to support this

assertion. Having reviewed the record, it is plain that

all of Paetschow’s assertions are nothing more than

unsubstantiated assertions insufﬁcient to create a

question of fact for trial. See Quinto, 451 Mich at

362-363. The Court of Claims did not err by recogniz-

ing that plaintiff had failed to meet its burden of proof.

4. NEGLIGENCE PENALTY

Finally, plaintiff argues that the negligence penalty

should be waived, given that plaintiff was arguably

eligible for the industrial-processing exemption. MCL

205.23(3) requires the imposition of a 10% penalty in

the event that a tax deﬁciency is due to the taxpayer’s

negligence. Negligence, for purposes of imposing such

a penalty, “is the lack of due care in failing to do what

a reasonable and ordinarily prudent person would

have done under the particular circumstances.” Mich

Admin Code, R 205.1012. Whether a taxpayer was

negligent is determined on a case-by-case basis, but

the “standard for determining negligence is whether

the taxpayer exercised ordinary care and prudence in

preparing and ﬁling a return and paying the applicable

tax in accordance with the statute.” Id. Thus, if the

2019] J

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taxpayer “demonstrates to the satisfaction of the de-

partment that the deﬁciency . . . was due to reasonable

cause, the department shall waive the penalty.” MCL

205.23(3).

Plaintiff did not remit any use taxes during the

period and left the portion of its returns relating to

sales and use taxes blank. Paetschow testiﬁed that he

was not aware of plaintiff’s tax-reporting procedures

and did not know whether plaintiff had ﬁled sales- or

use-tax returns for the years in question. Further,

plaintiff’s claim that it believed it was entitled to the

industrial-processing exemption is belied by the fact

that it did not raise this exemption until litigation and,

in any case, ordinary care would have compelled plain-

tiff to ﬁle returns despite such a belief. These circum-

stances show that plaintiff failed to exercise ordinary

care. The Court of Claims did not err by upholding the

negligence penalty.

Afﬁrmed.

WARTZLE

, P.J., and M. J. K

ELLY

and T

UKEL

, JJ.,

concurred.

208 328 M

ICH

187 [May

MAPLES v STATE OF MICHIGAN

Docket No. 343394. Submitted April 3, 2019, at Lansing. Decided

May 14, 2019, at 9:20 a.m.

David A. Maples ﬁled an action in the Court of Claims against the

state of Michigan, seeking to recover damages under the Wrong-

ful Imprisonment Compensation Act (the WICA), MCL 691.1751

et seq. In August 1993, Maples and Lawrence Roberts met James

Murphy at a bar; Murphy sold cocaine to an undercover police

ofﬁcer while they were at the bar. Maples, Roberts, and Murphy

were all charged with delivery of cocaine and conspiracy to

deliver cocaine, but the charges against Roberts were eventually

dismissed. In a letter to the trial court shortly after his arrest,

Murphy stated that Maples and Roberts had nothing to do with

the sale of the cocaine. Murphy moved to dismiss the charges in

February 1994, claiming that he had been entrapped and

reiterating that Maples was not involved in the drug transac-

tion; Maples joined in the motion. During that motion hearing,

Murphy testiﬁed that Maples was neither involved in nor aware

of the cocaine sale. In 1995, Maples moved to dismiss the

charges on the basis that he had been denied his right to a

speedy trial; the trial court denied that motion. Maples intended

to call Murphy and Roberts as defense witnesses at his trial.

After learning that Murphy had agreed not to testify on Ma-

ples’s behalf in exchange for a reduced sentence and that

Roberts could not be located to testify on Maples’s behalf,

Maples pleaded guilty of delivering cocaine with an assurance

from his trial counsel that he could still appeal the speedy-trial

issue. After Maples was sentenced, Murphy executed afﬁdavits

in 1997 and 2007, attesting that Maples had not been involved

in the alleged crimes. Maples appealed; the Court of Appeals

concluded that Maples had waived review of his claims when he

pleaded guilty, and the Michigan Supreme Court denied his

application for leave to appeal. Maples petitioned the United

States District Court for the Eastern District of Michigan for a

writ of habeas corpus, claiming ineffective assistance of counsel

and denial of his right to a speedy trial; the federal district court

denied the petition. Maples appealed, and the United States

Court of Appeals for the Sixth Circuit concluded that the

2019] M

APLES V

ICHIGAN

209

performance of Maples’s trial counsel was constitutionally deﬁ-

cient and, on that basis, remanded to the district court to

analyze Maples’s likelihood of success on his speedy-trial claim

to determine whether he was prejudiced such that he could

prevail on his ineffective-assistance-of-counsel claim. The fed-

eral district court concluded that Maples’s speedy-trial claim

lacked merit and that he therefore could not prevail on his

ineffective-assistance-of-counsel claim. On appeal, the Sixth

Circuit directed the federal district court to issue the writ,

concluding that Maples had been prejudiced by the delay

because both Roberts and Murphy were unavailable to testify by

the time of the criminal trial and that as a result, because

Maples’s speedy-trial violation claim had merit, he had been

denied effective assistance when trial counsel had erroneously

informed him that the claim would not be waived by pleading

guilty. Maples v Stegall, 427 F3d 1020 (CA 6, 2005). In 2006, the

Macomb Circuit Court dismissed the criminal charges against

Maples and vacated his conviction. Maples ﬁled this action in

2017, claiming that new evidence—that is, Roberts’s proposed

testimony and Murphy’s testimony, afﬁdavits, and letter—

demonstrated Maples’s innocence and had resulted in his con-

viction being vacated and the charges dismissed. The state

moved for summary disposition. The Court of Claims, M

ICHAEL

ALBOT

, J., granted the motion and dismissed Maples’s claim,

reasoning that Maples had failed to support his WICA claim

with new evidence, a requirement under MCL 691.1755(1)(c) to

recover compensation under the act. Maples appealed.

The Court of Appeals held:

1. In relevant part, MCL 691.1755(1) provides that to re-

cover on a WICA claim, a plaintiff must prove by clear and

convincing evidence that (1) the plaintiff was convicted of one or

more crimes under Michigan law, was sentenced to a term of

imprisonment in a state correctional facility for the crime or

crimes, and served at least part of the sentence; (2) the plain-

tiff’s judgment of conviction was reversed or vacated and either

the charges were dismissed or the plaintiff was determined on

retrial to be not guilty; and (3) new evidence demonstrates that

the plaintiff did not perpetrate the crime and was not an

accomplice or accessory to the acts that were the basis of the

conviction, results in the reversal or vacation of the charges in

the judgment of conviction or a gubernatorial pardon, and

results in either dismissal of all of the charges of a ﬁnding of not

guilty on all of the charges on retrial. Thus, MCL 691.1755(1)(c)

requires that a plaintiff demonstrate that (1) the proffered

210 328

ICH

209 [May

evidence meets the MCL 691.1752(b) deﬁnition of “new evi-

dence,” (2) the new evidence must demonstrate that the plaintiff

did not perpetrate the crime and was not an accomplice or

accessory to the acts that were the basis for the conviction, (3)

the new evidence must result in the reversal or vacation of the

charges in the judgment of conviction, and (4) the new evidence

must result in all the charges being dismissed or a ﬁnding of not

guilty on all the charges on retrial. If a plaintiff cannot establish

that the proffered evidence constitutes “new evidence,” the

plaintiff cannot recover under the WICA. Under MCL

691.1752(b), the phrase “new evidence” is deﬁned as any evi-

dence that was not presented in the proceedings leading to the

plaintiff’s conviction, including new testimony, expert interpre-

tation, the results of DNA testing, or other test results relating

to evidence that was presented in the proceedings leading to the

plaintiff’s conviction. Given the dictionary deﬁnitions of “pro-

ceeding,” “criminal proceeding,” and “leading,” in order for

proposed evidence to be considered “new evidence” under MCL

691.1752(b), the evidence must not have been presented during

the regular and orderly progression of the criminal case that

brought about the conviction; the phrase “proceeding leading to

plaintiff’s conviction” is broad in that it is not limited to only

those proceedings in which guilt is determined.

2. In this case, Maples’s two asserted categories of exculpa-

tory material—(1) Murphy’s testimony at the entrapment hear-

ing, his two afﬁdavits, and his letter to the trial court and (2)

Roberts’s proposed exculpatory testimony—did not qualify as new

evidence for purposes of MCL 691.1752(b). Murphy’s testimony at

the entrapment hearing was not new evidence because Maples

was present at that hearing and joined in the motion and the

hearing was a proceeding that occurred during the progress of the

criminal case that brought about the conviction given that Ma-

ples’s entrapment defense would have resulted in the charges

being dismissed if the trial court had granted the motion. Mur-

phy’s testimony, as well as the afﬁdavits and letter reiterating

that testimony, thus was not new evidence under the WICA

because the evidence had been presented during a proceeding

leading to his conviction. Roberts’s supposed testimony did not

constitute new evidence because Maples provided neither the

substance of the purported exculpatory testimony nor established

whether Roberts could even be located to provide testimony.

Accordingly, because Maples failed to meet the “new evidence”

requirement under MCL 691.1752(b), the trial court did not err

by granting the state’s motion for summary disposition.

Afﬁrmed.

2019] M

APLES V

ICHIGAN

211

1. W

RONGFUL

MPRISONMENT

OMPENSATION

— R

ECOVERY

NDER

—

LEMENTS

In order for a plaintiff to recover on a claim brought under the

Wrongful Imprisonment Compensation Act (the WICA), MCL

691.1751 et seq., the plaintiff must prove by clear and convincing

evidence that (1) the plaintiff was convicted of one or more

crimes under Michigan law, was sentenced to a term of impris-

onment in a state correctional facility for the crime or crimes,

and served at least part of the sentence; (2) the plaintiff’s

judgment of conviction was reversed or vacated and either the

charges were dismissed or the plaintiff was determined on

retrial to be not guilty; and (3) new evidence demonstrates that

the plaintiff did not perpetrate the crime and was not an

accomplice or accessory to the acts that were the basis of the

conviction, results in the reversal or vacation of the charges in

the judgment of conviction or a gubernatorial pardon, and

results in either dismissal of all of the charges of a ﬁnding of not

guilty on all of the charges on retrial; that is, under MCL

691.1755(1)(c) a plaintiff demonstrate that (1) the proffered

evidence meets the MCL 691.1752(b) deﬁnition of “new evi-

dence,” (2) the new evidence must demonstrate that the plaintiff

did not perpetrate the crime and was not an accomplice or

accessory to the acts that were the basis for the conviction, (3)

the new evidence must result in the reversal or vacation of the

charges in the judgment of conviction, and (4) the new evidence

must result in all the charges being dismissed or a ﬁnding of not

guilty on all the charges on retrial; if a plaintiff cannot establish

that the proffered evidence constitutes “new evidence,” the

plaintiff cannot recover under the WICA.

2. W

RONGFUL

MPRISONMENT

OMPENSATION

— W

ORDS AND

HRASES

—

“N

VIDENCE

.”

For purposes of the Wrongful Imprisonment Compensation Act,

MCL 691.1751 et seq., the phrase “new evidence” is deﬁned as

any evidence that was not presented in the proceedings leading

to plaintiff’s conviction, including new testimony, expert inter-

pretation, the results of DNA testing, or other test results

relating to evidence that was presented in the proceedings

leading to plaintiff’s conviction; in order for proposed evidence to

be considered “new evidence” under MCL 691.1752(b), the

evidence must not have been presented during the regular and

orderly progression of the criminal case that brought about the

conviction; the phrase “proceeding leading to plaintiff’s convic-

tion” is broad in that it is not limited to only those proceedings

in which guilt is determined.

212 328

ICH

209 [May

Bendure & Thomas, PLC (by Mark R. Bendure) and

We Fight The Law, PLLC (by Racine M. Miller) for

David A. Maples.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, and Kathryn M. Dalzell,

Assistant Solicitor General, for the state of Michigan.

Before: S

WARTZLE

, P.J., and C

AVANAGH

and C

AMERON

JJ.

AMERON

, J. Plaintiff, David A. Maples, ﬁled this

lawsuit for compensation under the Wrongful Impris-

onment Compensation Act (the WICA), MCL 691.1751

et seq., after his plea-based conviction of delivery of

cocaine was reversed on appeal and the trial court

dismissed the criminal charges. Maples now appeals

the Court of Claims’ order granting summary disposi-

tion

in favor of defendant, the state of Michigan,

because Maples failed to show “new evidence” that

satisﬁed the WICA recovery requirements under MCL

691.1755(1)(c). Finding no error in the Court of Claims’

decision, we afﬁrm.

I. FACTS AND PROCEDURAL BACKGROUND

In August 1993, Maples, Lawrence Roberts, and

James Murphy were arrested and charged with deliv-

ery of cocaine and conspiracy to deliver cocaine. The

charges arose from a drug transaction that occurred

when Maples and Roberts met Murphy at a bar. While

at the bar, apparently unbeknownst to Maples and

Roberts, Murphy sold cocaine to an undercover police

MCR 2.116(C)(10) (no genuine issue of material fact).

2019] M

APLES V

ICHIGAN

213

ofﬁcer. When Maples and Roberts left the bar to-

gether, they were pulled over and arrested. The

charges against Roberts were eventually dismissed.

Shortly after his arrest, Murphy wrote a letter to

the trial court, explaining that Maples and Roberts

had nothing to do with the cocaine sale. Murphy

reiterated Maples’s innocence during a February

1994 hearing on Murphy’s entrapment motion;

Maples joined the motion. During the hearing, Mur-

phy testiﬁed that Maples was neither involved in nor

aware of the cocaine sale.

Maples was not scheduled for trial until September

1995. After being unsuccessful in his attempt to have

his case dismissed for entrapment and later to have

the case dismissed for a speedy-trial violation, Maples

expressed his intent to call Murphy as a defense

witness in Maples’s trial. However, on the eve of trial,

Maples learned that Murphy had accepted a plea offer

from the prosecution that awarded him a reduced

sentence in exchange for agreeing not to testify on

Maples’s behalf. Further, Maples’s only other witness,

Roberts, could not be located for trial. Maples then

pleaded guilty to delivery of cocaine because he did

not have any exculpatory witnesses available and his

attorney assured him that he could still appeal the

speedy-trial issue. After Maples was sentenced to 10

to 20 years’ imprisonment, Murphy executed afﬁda-

vits in 1997 and 2007 in which he attested that

Maples was never involved in the crimes alleged.

Murphy’s afﬁdavits were consistent with his testi-

mony from the February 1994 entrapment hearing.

Thereafter, Maples appealed the denial of his motion

to dismiss for a speedy-trial violation. A panel of this

Court concluded that Maples had waived review of that

214 328 M

ICH

209 [May

claim and others when he pleaded guilty.

The Michi-

gan Supreme Court denied leave to appeal. People v

Maples, 459 Mich 867 (1998).

Maples then ﬁled a petition for a writ of habeas

corpus in the United States District Court for the

Eastern District of Michigan, raising issues of ineffec-

tive assistance of counsel and the denial of his right to

a speedy trial. The district court denied his petition,

but it did not explicitly rule on Maples’s ineffective-

assistance-of-counsel claim. Maples v Stegall (Maples

I), 340 F3d 433, 436 (CA 6, 2003) (discussing the

federal district court’s holding). On appeal, the United

States Court of Appeals for the Sixth Circuit held that

trial counsel’s performance was constitutionally deﬁ-

cient because counsel’s advice to Maples—that he

could pursue a speedy-trial claim at the appellate level

despite the unconditional guilty plea—was “patently

erroneous.” Id. at 439. However, the Sixth Circuit

remanded the case back to the federal district court to

analyze Maples’s likelihood of success on his speedy-

trial violation claim in order to determine if there was

the requisite prejudice to substantiate an ineffective-

assistance-of-counsel claim. Id. at 440-441.

On remand, the federal district court concluded that

Maples’s speedy-trial claim had no merit and, thus,

that he could not succeed on his ineffective-assistance-

of-counsel claim. See Maples v Stegall (Maples II), 427

F3d 1020, 1023 (CA 6, 2005) (discussing the federal

district court’s holding). However, the Sixth Circuit

concluded, inter alia, that although evidence that Rob-

erts would have provided beneﬁcial testimony was

weak, evidence to the contrary was weaker, and that

People v Maples, unpublished per curiam opinion of the Court of

Appeals, issued November 4, 1997 (Docket No. 196975), p 1.

Maples v Stegall, 175 F Supp 2d 918 (ED Mich, 2001).

2019] M

APLES V

ICHIGAN

215

had Roberts been available for trial, he would have

testiﬁed on Maples’s behalf. Id. at 1032-1033. Thus,

because Roberts could no longer be located by the time

of trial, Maples was prejudiced by the delay. Id. at

1033. The Sixth Circuit also determined that Murphy’s

unavailability to testify because of his plea agreement

prejudiced Maples. Id. at 1034. The Sixth Circuit noted

that Murphy had given testimony that favored Maples

at the entrapment hearing in February 1994. Id.

Because both Roberts and Murphy would have testiﬁed

favorably for Maples, but both were unavailable by the

time of trial, the Maples II court concluded that Maples

had suffered actual prejudice from the delay. Id. Given

that conclusion, the Sixth Circuit held that Maples’s

speedy-trial violation claim had merit, which meant

that he had suffered a violation of his right to the

effective assistance of counsel. Id. Accordingly, the

Maples II court reversed the federal district court’s

decision and remanded the case with directions to

issue a writ of habeas corpus. Id.

After the federal district court issued the writ of

habeas corpus, the state criminal court dismissed

Maples’s criminal charges and vacated his conviction

in 2006. Approximately 11 years later, Maples ﬁled his

WICA complaint in the Court of Claims.

Maples maintained that he met the WICA require-

ments for compensation. Speciﬁcally, he claimed that

new evidence, in the form of Murphy’s testimony,

afﬁdavits, and letter, as well as Roberts’s proposed

testimony, demonstrated Maples’s innocence and had

resulted in the reversal of his conviction and dismissal

of the charges against him. The Court of Claims noted

that the WICA deﬁned “new evidence” to include

evidence that was not presented at “the proceedings

leading to plaintiff’s conviction,” MCL 691.1752(b),

216 328 M

ICH

209 [May

that Maples had joined in Murphy’s entrapment mo-

tion, and that Murphy had testiﬁed at the entrapment

hearing that Maples had no knowledge of the cocaine

sale and did not participate in it. Concluding that the

entrapment hearing was a pretrial hearing that led to

Maples’s conviction and that Murphy’s testimony at

the entrapment hearing was the same evidence that

Maples was now attempting to use to support his

WICA claim, the Court of Claims determined that by

deﬁnition, it was not “new evidence” under the WICA.

Further, the court concluded that counsel’s constitu-

tionally deﬁcient performance and Maples’s speedy-

trial claim resulted in his release, not the evidence of

Maples’s innocence. This appeal followed.

II. ANALYSIS

Maples argues that the Court of Claims erred by

granting the state of Michigan’s motion for summary

disposition because he met the requirements for com-

pensation under the WICA. We disagree.

“A trial court’s decision regarding a motion for

summary disposition is reviewed de novo.” Old Kent

Bank v Kal Kustom Enterprises, 255 Mich App 524,

528; 660 NW2d 384 (2003). A motion for summary

disposition pursuant to MCR 2.116(C)(10) tests

whether there is factual support for a claim and is

appropriate when there is no genuine issue concerning

any material fact. Universal Underwriter’s Group v

Allstate Ins Co, 246 Mich App 713, 720; 635 NW2d 52

(2001). When deciding a motion for summary disposi-

tion pursuant to MCR 2.116(C)(10), we must consider

all pleadings, afﬁdavits, depositions, and other docu-

mentary evidence in the light most favorable to the

nonmoving party. Cowles v Bank West, 476 Mich 1, 32;

719 NW2d 94 (2006).

2019] M

APLES V

ICHIGAN

217

We also review de novo issues of statutory interpre-

tation. In re Mich Cable Telecom Ass’n Complaint, 239

Mich App 686, 690; 609 NW2d 854 (2000). When

interpreting a statute, our goal “is to ascertain and

give effect to the intent of the Legislature.” Portelli v

I R Constr Prod Co, Inc, 218 Mich App 591, 606; 554

NW2d 591 (1996). Undeﬁned terms in a statute “must

be given their plain and ordinary meanings, and it is

proper to consult a dictionary for deﬁnitions.” Halloran

v Bhan, 470 Mich 572, 578; 683 NW2d 129 (2004). This

Court must avoid interpreting a statute in a way that

would make any part of it meaningless or nugatory.

Sweatt v Dep’t of Corrections, 468 Mich 172, 183; 661

NW2d 201 (2003).

To prevail on a WICA claim, the plaintiff must prove

by clear and convincing evidence all of the following:

(a) The plaintiff was convicted of 1 or more crimes

under the law of this state, was sentenced to a term of

imprisonment in a state correctional facility for the crime

or crimes, and served at least part of the sentence.

(b) The plaintiff’s judgment of conviction was reversed

or vacated and either the charges were dismissed or the

plaintiff was determined on retrial to be not guilty. How-

ever, the plaintiff is not entitled to compensation under

this act if the plaintiff was convicted of another criminal

offense arising from the same transaction and either that

offense was not dismissed or the plaintiff was convicted of

that offense on retrial.

perpetrate the crime and was not an accomplice or acces-

sory to the acts that were the basis of the conviction, results

in the reversal or vacation of the charges in the judgment of

conviction or a gubernatorial pardon, and results in either

dismissal of all of the charges or a ﬁnding of not guilty on

all of the charges on retrial. [MCL 691.1755(1) (emphasis

added).]

218 328

ICH

209 [May

The WICA deﬁnes “new evidence” as “any evidence

that was not presented in the proceedings leading to

plaintiff’s conviction, including new testimony, expert

interpretation, the results of DNA testing, or other test

results relating to evidence that was presented in the

proceedings leading to plaintiff’s conviction.” MCL

691.1752(b).

In sum, there are four requirements under MCL

691.1755(1)(c) that Maples must satisfy before he is

entitled to compensation under the WICA: (1) the

proffered evidence must meet the deﬁnition of “new

evidence” as deﬁned under MCL 691.1752(b), (2) the

new evidence must demonstrate that Maples did not

perpetrate the crime and was not an accomplice or

accessory to the acts that were the basis for the

conviction, (3) the new evidence must result in the

reversal or vacation of the charges in the judgment of

conviction, and (4) the new evidence must result in

dismissal of all the charges or a ﬁnding of not guilty on

all the charges on retrial. Therefore, we must ﬁrst

determine whether the evidence presented is “new

evidence” under MCL 691.1752(b). If Maples satisﬁes

this deﬁnition, we must then determine whether he

has met the remaining three elements of MCL

691.1755(1)(c).

Maples argues that he has proffered two major

categories of exculpatory material that constitute “new

evidence”: (1) Murphy’s testimony at the entrapment

hearing, his two afﬁdavits, and his letter to the trial

court and (2) Robert’s proposed exculpatory testimony.

We conclude that this evidence does not meet the

deﬁnition of “new evidence” under MCL 691.1752(b).

We turn ﬁrst to Murphy’s testimony at the entrap-

ment hearing, his afﬁdavits, and his letter to the trial

court. The substance of this evidence was presented to

2019] M

APLES V

ICHIGAN

219

the trial court at a proceeding before Maples’s guilty

plea—the entrapment hearing. Under MCL

691.1752(b) “new evidence” cannot have been “pre-

sented in the proceedings leading to plaintiff’s convic-

tion.” Accordingly, if an entrapment hearing is a

“proceeding leading to plaintiff’s conviction,” Maples

cannot use the material disclosed at that hearing as

“new evidence” of his innocence. The WICA does not

deﬁne “proceedings.” The plain meaning of “proceed-

ing” is “[t]he regular and orderly progression of a

lawsuit, including all acts and events between the

time of commencement and the entry of judgment.”

Black’s Law Dictionary (10th ed). In particular, a

“criminal proceeding” is further deﬁned as “[a] judi-

cial hearing, session, or prosecution in which a court

adjudicates whether a person has committed a crime

or, having already ﬁxed guilt, decides on the offend-

er’s punishment; a criminal hearing or trial.” Id.

Additionally, “leading” is not deﬁned by the WICA.

Merriam-Webster’s Collegiate Dictionary relevantly

deﬁnes “leading” as “to bring to some conclusion . . . .”

Merriam-Webster’s Collegiate Dictionary (11th ed),

p 706 (deﬁning the verb “lead”). Thus, in order for the

proposed evidence to be considered “new evidence,” it

must not have been presented during the regular and

orderly progression of the criminal case that brought

about the conviction.

The exculpatory material made part of the entrap-

ment hearing cannot now be considered “new evi-

dence.” Murphy and Maples were both present at the

entrapment hearing, and Murphy testiﬁed that Maples

was not involved in the drug deal. This is the same

testimony that Maples now seeks to admit as “new

evidence.” There is no serious dispute that the entrap-

ment hearing was a proceeding that occurred during

the criminal case against Maples. The question, how-

220 328 M

ICH

209 [May

ever, turns on whether the entrapment hearing was a

proceeding that brought about the conviction. We con-

clude that it was. Maples asserted an entrapment

defense that, if granted, would have resulted in the

dismissal of all charges. The trial court denied the

motion and allowed the case to proceed to trial. Thus,

the trial court’s denial of Maples’s entrapment defense

certainly was part of the criminal case that brought

about his ultimate conviction, and therefore, the pre-

trial entrapment hearing was a “proceeding leading to

plaintiff’s conviction.” MCL 691.1752(b). Because

Maples seeks to admit the same testimony that was

presented during a proceeding leading to his convic-

tion, we hold that Murphy’s testimony, including the

afﬁdavits and the letter reiterating the substance of

the testimony at the entrapment hearing, is not “new

evidence” under the WICA.

Maples, however, urges this Court to adopt a much

narrower reading of the phrase “proceedings leading to

plaintiff’s conviction.” MCL 691.1752(b). According to

Maples, the phrase should be “best understood as

looking at whether the evidence was presented in that

part of the case in which guilt was determined . . . .”

Ultimately, Maples’s reading of the statute would con-

strain “new evidence” to that which was presented at

trial or, as in this case, a plea hearing where guilt was

determined. We decline to adopt such a narrow inter-

pretation because if the Legislature wanted to narrow

the deﬁnition of “new evidence” to that which was not

presented at a trial or plea hearing, it could have

simply used such language. Instead, the Legislature

opted for a much broader phrasing—“the proceedings

leading to plaintiff’s conviction.” Therefore, Maples’s

argument is without merit.

Next, we turn to Roberts’s purported exculpatory

testimony. Maples has neither provided the substance

2019] M

APLES V

ICHIGAN

221

of that testimony nor indicated whether Roberts could

even be located to provide any testimony. Maples has

not submitted a letter or afﬁdavit from Roberts like he

did with Murphy. Maples argues that he did in fact

supply evidence of Roberts’s testimony in the form of

the Sixth Circuit’s opinion in Maples II. But even

considering that opinion, the Sixth Circuit similarly

did not give any indication of the actual substance of

Roberts’s testimony. The Sixth Circuit explained that

Maples represented that Roberts told him that he

would testify on Maples’s behalf. Maples II, 427 F3d at

1032. It also referred to the letter that Murphy wrote

in which Murphy indicated that Roberts was at the

scene and had nothing to do with the cocaine sale. Id.

Roberts himself has provided no documentation ex-

pressing what his testimony would entail. The only

“evidence” that Maples provided was the Sixth Cir-

cuit’s conclusion that Roberts could have provided

beneﬁcial testimony. We conclude that Roberts’s sup-

posed testimony was not “new evidence.” Because

Maples has not met the “new evidence” requirement

under MCL 691.1752(b), we need not address the

remaining elements. Accordingly, we hold that the

Court of Claims did not err by granting the state of

Michigan’s motion for summary disposition.

Afﬁrmed.

WARTZLE

, P.J., and C

AVANAGH

, J. concurred with

AMERON

, J.

222 328 M

ICH

209 [May

JOHNSON v USA UNDERWRITERS

Docket No. 340323. Submitted October 9, 2018, at Lansing. Decided

May 14, 2019, at 9:25 a.m.

Plaintiff, Niles Johnson, ﬁled a complaint in the Washtenaw Circuit

Court against several defendants for injuries he sustained in

September 2015 when he was struck by an automobile while

riding his bicycle. Defendant Courtney Eisemann was driving the

vehicle that struck Johnson, and defendant Steven Vandeinse

owned the vehicle. Vandeinse had purchased the automobile in

June 2015 and had been required to obtain insurance before the

dealer would ﬁnalize the purchase. Vandeinse bought insurance

from L.A. Insurance, an agency that sold insurance issued by

defendant/cross-defendant USA Underwriters (USAU). The in-

surance Vandeinse purchased was not the no-fault insurance

mandated by Michigan’s no-fault act, MCL 500.3101 et seq.

Instead, the insurance policy Vandeinse purchased was for com-

prehensive and collision coverages, two types of optional insur-

ance coverages that could be added to a driver’s no-fault policy,

but did not alone satisfy the no-fault requirements. Johnson’s

complaint also named as a defendant the Michigan Automobile

Insurance Placement Facility (MAIPF). Johnson ﬁled a claim

with the MAIPF, and it ultimately assigned Johnson’s claim to

Citizens Insurance Company of America. The parties stipulated

to the addition of USAU to Johnson’s ﬁrst amended complaint,

the substitution of defendant/cross-plaintiff Citizens for the

MAIPF, and the dismissal of the MAIPF from the lawsuit.

Citizens moved for summary disposition under MCR 2.116(C)(10)

on the ground that Vandeinse had a no-fault policy through

USAU and that Johnson was therefore ineligible for any beneﬁts

from Citizens. USAU moved for summary disposition under MCR

2.116(C)(8) on the ground that the insurance policy it issued to

Vandeinse did not include no-fault coverage. Citizens ﬁled a

cross-claim against USAU seeking reformation of Vandeinse’s

insurance contract with USAU to include mandatory no-fault

coverages as a matter of law and of public policy. USAU an-

swered, and Johnson ﬁled a second amended complaint seeking

the reformation introduced by Citizens. The court held that

USAU’s practice of selling automobile insurance without manda-

2019] J

OHNSON V

USA U

NDERWRITERS

223

tory no-fault coverages, but with the issuance of certiﬁcates of

insurance closely resembling the certiﬁcates used to register

vehicles at the Secretary of State’s ofﬁce, amounted to an intent

to defraud. USAU argued that reformation was not an acceptable

remedy because there had been no mistake or fraud by either

party. Additionally, USAU contended that the no-fault act did not

prevent insurers from providing insurance policies containing

only collision and comprehensive coverages. The court, Carol A.

Kuhnke, J., denied USAU’s motion for summary disposition and

granted Citizens’ motion for summary disposition on its cross-

claim against USAU, concluding that USAU’s insurance policy

was issued with an intent to deceive the consumer and the

Secretary of State and that the insurance policy violated the

no-fault act. The court also granted Citizens’ motions for entry of

judgment and for attorney fees. USAU appealed.

The Court of Appeals held:

1. Reformation of an insurance contract may be appropriate

when a plaintiff proves by clear and convincing evidence a mutual

mistake of fact or mistake on one side and fraud on the other.

Reformation is not warranted when there is only a mistake in

law, that is, when one of the parties is mistaken as to the legal

effect of an agreement. A contract may be reformed when one

party to the contract makes a mistake and the other party knows

about the mistake but remains silent about it. Citizens claimed

that USAU’s practices were fraudulent in that they were in-

tended to deceive purchasers of USAU’s insurance. USAU argued

that its practices were not deceptive and that Vandeinse was not

mistaken about the insurance coverages he purchased. Vandeinse

asserted that he believed that the “full coverage” he requested

included the no-fault insurance required under the Michigan

no-fault act, even though evidence established that on multiple

occasions—verbally and in writing—Vandeinse was alerted to the

fact that the USAU insurance policy he purchased through L.A.

Insurance did not satisfy Michigan’s no-fault insurance require-

ments. But Vandeinse’s purported misunderstanding was merely

a mistake in law—a mistake about the legal effect of an agree-

ment; therefore, he was not entitled to reformation of the insur-

ance contract. Citizens also claimed that Vandeinse made a

mistake of fact because he believed he had the coverage necessary

to ﬁnance and register the car. Vandeinse, however, accomplished

exactly what he intended to accomplish by purchasing the insur-

ance policy—he ﬁnanced his car and registered it with the

Secretary of State; therefore, there was no mistake of fact at all.

Because there was no mistake of fact sufﬁcient to support the

224 328

ICH

223 [May

reform of the contract, it was not necessary to determine whether

USAU committed fraud. Therefore, the trial court erred when it

granted summary disposition to Citizens and reformed the USAU

policy to include personal protection insurance (PIP), property

protection insurance (PPI), and residual-liability insurance cov-

erages.

2. Reformation may be the appropriate remedy when an

insurance contract violates the no-fault law or public policy, or

when it contravenes the legislative intent of the no-fault act. A

contract is against public policy when its purpose is to create a

situation that tends to operate to the detriment of the public

interest, without regard to whether the purpose of the agreement

is effectuated. MCL 500.3101(1) requires the owner of a motor

vehicle to register the vehicle in the state and maintain security

for payment of beneﬁts under PIP, PPI, and residual-liability

insurance during the period that the motor vehicle is driven or

moved on a highway. The insurer of a vehicle not driven or moved

on a highway may allow the insured owner or registrant of the

vehicle to delete a portion of the coverages on his or her insurance

policy and maintain comprehensive coverage without no-fault

coverage. Vandeinse’s policy from USAU did not provide the

mandatory no-fault coverages. In fact, USAU did not offer to

customers any insurance policies with the mandatory no-fault

coverages. USAU offered only collision and comprehensive insur-

ance policies. However, the no-fault act does not prohibit the

practice of selling only optional insurance coverages without the

mandatory no-fault coverages. Nowhere does the no-fault act

address that circumstance. The no-fault act recognizes that

automobile insurance sold in Michigan can provide any of the

coverages listed in MCL 500.2101(2)(a) through (d), the statute

deﬁning automobile insurance for purposes of the no-fault act.

The no-fault act does not state that every insurer must provide

mandatory no-fault coverages. Instead, MCL 500.3101(1) re-

quires that any insured who intends to drive on a highway must

have the mandatory no-fault coverages. Therefore, the trial court

erred when it concluded that USAU’s insurance policy should

have included mandatory no-fault coverages and that the policy

was issued with an intent to deceive Vandeinse. Reformation of

the contract to include the no-fault coverages mandated by law

was not appropriate.

3. An insurer does not violate the no-fault act or public policy

when it sells optional coverages without the mandatory no-fault

coverages—PIP, PPI, and residual-liability insurance. The ﬁnan-

cial responsibility act, MCL 257.501 et seq., like the no-fault act,

2019] J

OHNSON V

USA U

NDERWRITERS

225

does not speciﬁcally address whether an insurer may offer op-

tional coverages only, but the ﬁnancial responsibility act does

expressly provide in MCL 257.520(j) that the requirements of

liability-insurance coverage may be fulﬁlled by the policies of one

or more insurance carriers, those policies together meeting the

requirements of the no-fault act. The ﬁnancial responsibility act

cannot justify an insurance policy that is repugnant to the clear

directive of the no-fault act, but in this case, the ﬁnancial

responsibility act simply addresses a gap that the no-fault act left

open—the question whether insurers can sell policies that in-

clude only optional coverages, and it answers the question in the

afﬁrmative. MCL 257.520(j) allows insureds to meet the require-

ments for motor vehicle liability coverage through more than one

insurance carrier. Bobtail policies, which insure tractors being

operated without trailers, are an example of policies that do not

provide full coverage and may be sold separately from policies

having all the mandatory no-fault coverages. USAU was not

precluded from selling optional coverages in order to satisfy

customers who chose to purchase insurance policies from mul-

tiple carriers as allowed under MCL 257.520(j). Therefore, the

trial court erred by ruling that USAU’s practice of selling optional

insurance coverages violated Michigan’s no-fault law.

4. An insurance contract violates public policy if its purpose is

to create a situation that tends to operate to the detriment of the

public interest. Citizens argued that if USAU was permitted to

continue providing optional coverages as standalone policies,

more cases would arise in which the MAIPF and the assigned

insurers would become ﬁnancially liable for costs related to

insureds who, like Vandeinse, did not have mandatory no-fault

coverages on their vehicles. But the Legislature has not expressly

barred insurance companies from offering optional coverages as

standalone policies. The insured, not the insurer, is obligated to

obtain the coverages necessary to meet the requirements of the

no-fault act. The insurance contract documents in this case

explicitly stated in multiple places that the policy covered physi-

cal damage only and did not meet the requirements of the no-fault

act. Vandeinse initialed contract provisions indicating that he

understood the scope of the coverage he was purchasing. The

insurance agent testiﬁed that she explained to Vandeinse what

each type of coverage entailed. There was no misrepresentation.

Therefore, the trial court erred when it concluded that the

optional coverages USAU sold Vandeinse violated public policy

and subsequently reformed USAU’s insurance policy to include

mandatory no-fault coverages.

226 328

ICH

223 [May

5. The American rule governs the award of attorney fees in

Michigan. It states that attorney fees are generally not allowed,

as either costs or damages, unless recovery of attorney fees is

expressly authorized by statute, court rule, or a recognized

exception to the general rule. One of the exceptions permits a

plaintiff to recover as damages from a third party the attorney

fees the plaintiff expended in a prior lawsuit the plaintiff was

forced to defend or prosecute because of the wrongful acts of the

third party. Because USAU did not engage in any wrongdoing,

attorney fees were not permissible. Moreover, it is a fundamental

principle that attorney fees and costs are only awarded to the

prevailing party, and after reversal of the trial court’s rulings,

Citizens was no longer a prevailing party.

Reversed and remanded.

ECKERING

, P.J., dissenting, would have afﬁrmed the ruling of

the trial court because the policies of USAU did not comply with

the no-fault act. The no-fault act does not allow an insurance

company providing automobile insurance in Michigan to circum-

vent the no-fault act by selling nonmandatory insurance but not

providing any of the coverages that are mandatory under the

no-fault law. The no-fault law permits an insured or an insurer to

forgo mandatory no-fault coverage on an automobile on one

condition; that is, only when an automobile is not going to be

driven or moved on a highway may an insurance company issue

an insurance policy that has deleted the mandatory minimum

coverages under the no-fault law. To delete a mandatory coverage

from an insurance policy, the mandatory coverage must initially

have been included in the policy. Thus, the starting point in

Michigan is an automobile insurance policy that contains the

statutorily required minimum coverages unless the vehicle will

not be driven or moved on a highway. MCL 500.3101 and MCL

500.3009(3) implicitly require every automobile insurance policy

in Michigan to contain the requisite minimum no-fault coverage

at the outset, after which optional coverage may be added.

Because USAU sold an insurance policy to Vandeinse in violation

of Michigan’s no-fault law and its clearly stated public policy, the

trial court did not err by reforming the contract between USAU

and Vandeinse to include the required minimum coverages—PPI,

PIP, and residual liability. To the extent that the majority cites

the ﬁnancial responsibility act, MCL 257.501 et seq., in support of

its contention that insurance companies may limit themselves to

selling optional coverages only, the ﬁnancial responsibility act

should not be construed to contradict the no-fault act. The

no-fault act is the most recent expression of Michigan’s public

2019] J

OHNSON V

USA U

NDERWRITERS

227

policy concerning motor vehicle liability insurance. That an

insured may satisfy the insurance obligations created by the

no-fault act by obtaining various policies from more than one

insurance company, MCL 257.520(i) and (j), is not the equivalent

of authorizing insurance companies in Michigan to sell automo-

bile insurance policies that do not include the mandatory mini-

mum liability-insurance coverages outlined in the no-fault act.

1. I

NSURANCE

— N

-F

AULT

— C

ONTRACTS

— R

EFORMATION

— M

ISTAKES OF

— R

EFORMATION

ERMISSIBLE

Reformation of a contract is permissible on evidence of a mistake of

fact, but not on evidence of a mistake of law; a mistake of law

occurs when a party is mistaken regarding the legal effect of an

agreement; a party’s mistaken belief that the “full coverage”

insurance policy on his or her new automobile included the

mandatory no-fault insurance coverages is a mistake of law, not a

mistake of fact; a party in this situation is not entitled to

reformation of the insurance contract.

2. M

OTOR

EHICLES

— N

-F

AULT

NSURANCE

— M

ANDATORY AND

PTIONAL

NSURANCE

OVERAGES

— C

OMPANY

FFER

PTIONAL

OVERAGES

ITHOUT

FFERING

ANDATORY

-F

AULT

OVERAGES

In Michigan, the owner or registrant of a motor vehicle driven or

moved on a highway must maintain personal protection injury

insurance, property protection insurance, and residual-liability

insurance; an insurer is permitted to sell motor vehicle insurance

policies that do not include the no-fault coverages required by

Michigan no-fault law, because nothing in the no-fault law

requires an insurer that offers optional insurance coverage—

comprehensive and collision insurance coverage, for example—to

also offer the no-fault insurance coverages mandated by the

no-fault law (MCL 500.3101).

3. M

OTOR

EHICLES

— F

INANCIAL

ESPONSIBILITY

— R

EQUIREMENTS OF

-F

AULT

OVERAGES

ATISFIED

OLICIES

ROM

ULTIPLE

NSURERS

An owner or registrant of a motor vehicle driven or moved on a

highway may satisfy the statutory requirements of the minimum

no-fault insurance coverages with policies from one or more

insurance carriers if the combined policies provide the required

no-fault insurance coverage (MCL 257.520(j)).

Varnum LLP (by Bradley S. Defoe) for USA Under-

writers.

228 328 M

ICH

223 [May

Conlin, McKenney & Philbrick, PC (by Erik Duenas

and Joy M. Glovick) for Citizens Insurance Company of

America.

Before: B

ECKERING

, P.J., and R

IORDAN

and C

AMERON

JJ.

AMERON

, J. Defendant/cross-defendant, USA Un-

derwriters, appeals the trial court’s orders (1) denying

USA’s motion for summary disposition, (2) granting

the motion for summary disposition ﬁled by

defendant/cross-plaintiff, Citizens Insurance Company

of America, on its cross-claim against USA, (3) grant-

ing Citizens’ motion for entry of judgment, and (4)

granting Citizens’ motion for attorney fees. We reverse

the trial court’s orders and remand this case for

proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2015, defendant Steven Vandeinse pur-

chased a 2011 Chevy Impala from a used-car dealer-

ship in Ypsilanti. Before the dealership would ﬁnalize

the sale, Vandeinse was required to obtain automobile

insurance. Vandeinse went to a nearby L.A. Insurance

agency and asked the insurance agent, Jennifer Es-

sak, for a policy to cover the Impala. According to

Vandeinse, he asked her for a “full coverage policy.”

Vandeinse left the agency with a USA insurance

policy that provided collision and comprehensive in-

surance coverages only. The insurance agent, how-

ever, stated in an afﬁdavit she provided during dis-

Some of the no-fault statutes have been amended since the events in

this case took place. The versions of the statutes quoted or cited in this

case are identiﬁed by their effective dates and the public act numbers

when appropriate.

2019] J

OHNSON V

USA U

NDERWRITERS

229

PINION OF THE

OURT

covery that she had “explained to [Vandeinse] the

difference between no-fault coverage and collision and

comprehensive coverage and offered to assist him

with obtaining both.” Sometimes, “it was less expen-

sive for the customer to obtain no-fault coverage from

one carrier and then collision and comprehensive

coverage through [USA].” She further asserted that

Vandeinse “declined my offer to assist him with

obtaining no-fault coverage, and asked only for colli-

sion and comprehensive coverage through [USA].”

The application for automobile insurance that Van-

deinse completed was entitled “Application for Physi-

cal Damage Insurance Economy Program” through

USA. The declarations section of the application

stated: “This application is for Auto Physical Damage

Insurance only. It does not provide bodily injury,

property damage or any other Michigan statutory

No-Fault coverages.” Additionally, Vandeinse ini-

tialed a provision in the application that stated:

“PHYSICAL DAMAGE ONLY. This insurance is

physical damage only coverage and does not meet the

requirements of the Michigan No-fault Act, Chapter

31 of the Michigan Insurance Code.” After obtaining

the collision and comprehensive insurance policy,

Vandeinse purchased the Impala from the dealership

using a certiﬁcate of insurance that USA provided.

Like the insurance application, the certiﬁcate of in-

surance

stated, “This insurance is physical damage

only, coverage does not meet the requirements of the

Michigan No-fault Act, Chapter 31 of the Michigan

“Certiﬁcate of insurance” is deﬁned as “a document, regardless of

how [it is] titled or described, that is prepared by an insurer or insurance

producer that is a statement or summary of an insured’s property or

casualty insurance coverage. Certiﬁcate of insurance does not include a

policy of insurance, insurance binder, or policy endorsement.” MCL

500.2270(a).

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Insurance Code.” At the hearing on Citizens’ motion for

summary disposition, an attorney for plaintiff Niles

Johnson asserted that the certiﬁcate “looks like a

regular no-fault certiﬁcate . . . that you would take to

the Secretary of State to get your tabs renewed.” The

Michigan Secretary of State apparently accepted this

certiﬁcate and registered the Impala with the state of

Michigan.

On September 8, 2015, defendant Courtney Eise-

mann drove the Impala. As Eisemann exited a parking

lot, she struck Johnson, who was riding his bicycle on

the sidewalk. Johnson sustained injuries and was

transported to the hospital. On February 29, 2016,

Johnson ﬁled a complaint against Eisemann, Van-

deinse, and the Michigan Automobile Insurance Place-

ment Facility (the Facility). The parties eventually

stipulated to adding USA as a defendant to the ﬁrst

amended complaint, to substitute Citizens for the

Facility as a defendant, and to dismiss the Facility.

Citizens moved for summary disposition under MCR

2.116(C)(10), seeking dismissal from the lawsuit be-

cause Vandeinse had a no-fault policy through USA,

and therefore, Johnson was ineligible for any beneﬁts

through the Facility. USA moved for summary dispo-

sition under MCR 2.116(C)(8), claiming that USA’s

insurance policy did not include mandatory no-fault

coverage. The trial court ultimately held that USA’s

practice of selling automobile insurance with certiﬁ-

cates of insurance but without mandatory no-fault

coverages amounted to “an intent to defraud,” and it

denied USA’s motion for summary disposition. The

trial court signaled to the parties that it would wait to

rule on any claims to reform the policy until the issue

“ripen[ed].”

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Citizens ﬁled a cross-claim against USA seeking

reformation of Vandeinse’s insurance contract with

USA to include mandatory no-fault coverages as a

matter of law and public policy. USA answered. Citi-

zens then moved for summary disposition against USA

under MCR 2.116(C)(10). According to Citizens, issu-

ing an insurance policy with only optional coverages

was a violation of MCL 500.3101(1) and against the

public policy of the state to ensure that all drivers have

mandatory no-fault coverage. Moreover, Citizens ar-

gued that USA and the insurance agent misrepre-

sented the type of insurance Vandeinse obtained,

therefore, necessitating reformation. In response, USA

argued that Citizens had not shown that reformation

was an acceptable remedy because there was no mis-

take or fraud by either party to the insurance contract,

especially in light of the insurance agent’s afﬁdavit.

Additionally, USA argued that the no-fault act did not

prevent insurers from providing insurance policies

containing only collision and comprehensive coverages.

The trial court granted Citizens’ motion for summary

disposition, concluding that USA’s policy was issued

“with an intent to deceive the consumer and the

Secretary of State, [and] that the policy violates the

Michigan No-Fault Act.” Therefore, the trial court

reformed USA’s insurance policy “to include no

fault/PIP coverage, liability coverage, and property

damage.”

On appeal, USA argues that the trial court erred

when it reformed the insurance policy to include man-

datory no-fault coverages because (1) there was no

mistake or fraud by either party, (2) issuing insurance

policies limited to collision and comprehensive cover-

ages did not contravene the no-fault act, and (3) public

policy did not allow for reformation under these cir-

cumstances. We agree.

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II. REFORMATION OF USA’S POLICY

A. STANDARD OF REVIEW

This Court reviews de novo motions for summary

disposition under MCR 2.116(C)(10). Johnson v Recca,

492 Mich 169, 173; 821 NW2d 520 (2012). MCR

2.116(C)(10) provides that a trial court may grant

judgment on all or part of a claim where “[e]xcept as to

the amount of damages, there is no genuine issue as to

any material fact, and the moving party is entitled to

judgment or partial judgment as a matter of law.” The

moving party must support its motion with afﬁdavits,

depositions, admissions, or other documentary evi-

dence. Bronson Methodist Hosp v Auto-Owners Ins Co,

295 Mich App 431, 440; 814 NW2d 670 (2012). If the

moving party properly supports its motion, the oppos-

ing party then has the burden of demonstrating with

“evidentiary materials that a genuine issue of disputed

material fact exists.” Id. at 440-441. “A genuine issue of

material fact exists when the record, giving the beneﬁt

of reasonable doubt to the opposing party, leaves open

an issue upon which reasonable minds might differ.”

West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d

468 (2003). This Court, reviewing the record in the

same manner as the trial court, “must consider the

pleadings, afﬁdavits, depositions, admissions, and any

other evidence in favor of the party opposing the

motion, and grant the beneﬁt of any reasonable doubt

to the opposing party.” Radtke v Everett, 442 Mich 368,

374; 501 NW2d 155 (1993).

Insofar as the motion for summary disposition in-

volves questions regarding the proper interpretation of

a contract, this Court’s review is de novo. Rory v

Continental Ins Co, 473 Mich 457, 464; 703 NW2d 23

(2005). Additionally, “[t]his Court reviews de novo the

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trial court’s decision to grant or deny equitable relief.”

Olsen v Porter, 213 Mich App 25, 28; 539 NW2d 523

(1995). When considering whether a trial court prop-

erly ordered reformation, this Court must be “mindful

that courts are required to proceed with the utmost

caution in exercising jurisdiction to reform written

instruments.” Id. To reform a contract, “the facts

necessary for the allowance of the remedy shall be

proved by clear and convincing evidence and not by a

mere preponderance.” Woolner v Layne, 384 Mich 316,

319; 181 NW2d 907 (1970) (quotation marks and

citation omitted). “Evidence is clear and convincing

when it produce[s] in the mind of the trier of fact a ﬁrm

belief or conviction as to the truth of the allegations

sought to be established . . . .” In re Martin, 450 Mich

204, 227; 538 NW2d 399 (1995) (quotation marks and

citation omitted; alteration in original).

B. REFORMATION BASED ON MISTAKE AND FRAUD

USA ﬁrst argues that there was insufﬁcient evi-

dence to support reformation of USA’s insurance policy

on the basis of fraud. Therefore, USA asserts that the

trial court erred when it granted summary disposition

in favor of Citizens and reformed the policy to include

no-fault, liability, and property-damage coverages on

the basis of USA’s fraudulent conduct. We agree.

Courts of equity have the power to reform an insur-

ance contract so that it conforms to the agreement

actually made. See Casey v Auto-Owners Ins Co, 273

Mich App 388, 398; 729 NW2d 277 (2006). Reformation

may be appropriate when a plaintiff proves “a mutual

mistake of fact, or mistake on one side and fraud on the

other, by clear and convincing evidence.” Id. Impor-

tantly, reformation is not warranted when there is only

a mistake in law, i.e., a mistake by one of the parties

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about the legal effect of an agreement. Id.; see also

Olsen, 213 Mich App at 29 (“[R]eformation will gener-

ally not be granted for a mistake of law.”).

There are two types of fraud: actionable fraud and

silent fraud. Actionable fraud has the following re-

quirements:

(1) the defendant made a material representation; (2)

the representation was false; (3) when the defendant

made the representation, the defendant knew that it was

false, or made it recklessly, without knowledge of its truth

as a positive assertion; (4) the defendant made the repre-

sentation with the intention that the plaintiff would act

upon it; (5) the plaintiff acted in reliance upon it; and (6)

the plaintiff suffered damage. [M&D, Inc v McConkey, 231

Mich App 22, 27; 585 NW2d 33 (1998) (quotation marks

and citation omitted).]

On the other hand, “[s]ilent fraud, also known as

fraudulent concealment, acknowledges that ‘suppres-

sion of a material fact, which a party in good faith is

duty-bound to disclose, is equivalent to a false repre-

sentation and will support an action in fraud.’ ” Maurer

v Fremont Ins Co, 325 Mich App 685, 695; 926 NW2d

848 (2018), quoting M&D, Inc, 231 Mich App at 28-29

(quotation marks and citation omitted). Furthermore,

“the party having a legal or equitable duty to disclose

must have concealed the material fact with an intent to

defraud.” Maurer, 325 Mich App at 695.

“However, fraud is not a necessary element of every

action to reform an agreement on the basis of a

unilateral mistake.” Johnson Family Ltd Partnership v

White Pine Wireless, LLC, 281 Mich App 364, 380; 761

NW2d 353 (2008). Our Supreme Court has also held:

[I]f one party at the time of the execution of a written

instrument knows not only that the writing does not

accurately express the intention of the other party as to

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the terms to be embodied therein, but knows what that

intention is, the latter can have the writing reformed so

that it will express that intention. [Woolner, 384 Mich at

318-319 (quotation marks and citation omitted).]

Stated differently, a contract may be reformed when

one party to a contract made a mistake and the other

party knows about the mistake but remains silent

about it, i.e., there was inequitable conduct. Johnson

Family, 281 Mich App at 380-381.

Citizens has never claimed mutual mistake. Instead,

Citizens claims that USA’s practices were intended to

deceive purchasers of its insurance, which constituted

fraud. The trial court accepted this argument, conclud-

ing that USA’s practice reﬂected an “intent to defraud.”

Conversely, USA argues on appeal that its policy and

practices were not deceptive and that Vandeinse was

not mistaken about what coverages he was purchasing.

Moreover, even if he was mistaken about the insurance

coverages he purchased, a mistake of law is not a basis

to reform a contract. Under these circumstances, we

agree that the trial court erred when it reformed the

insurance policy on grounds of fraud.

As a preliminary matter, we ﬁrst differentiate be-

tween a mistake of fact and a mistake of law. Reforma-

tion is permissible on evidence of a mistake of fact, not

a mistake of law. A mistake of law is “a mistake by one

side or the other regarding the legal effect of an

agreement . . . .” Casey, 273 Mich App at 398. In this

case, USA correctly asserts that the only mistake

alleged by Vandeinse was his belief concerning his

insurance coverage. Vandeinse stated after the acci-

dent that he believed he had “full coverage,” because

that is what he requested from his insurance agent.

However, Vandeinse’s mistaken belief that he had “full

coverage” was simply a mistake about the legal effect

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of his insurance policy, which is a mistake of law—not

fact. Therefore, Vandeinse is not entitled to reforma-

tion of the insurance policy.

Additionally, Citizens claims that Vandeinse made a

mistake of fact because he mistakenly believed that his

policy provided full coverage that could then be used to

ﬁnance his car and register it with the Michigan

Secretary of State. Even if, as Citizens argues, Van-

deinse should not have been able to legally ﬁnance and

fact remains that he did indeed ﬁnance his new car and

accomplished exactly what he intended to do when he

purchased his insurance policy; thus, there was no

mistake of fact at all. Because there was no mistake of

fact sufﬁcient to support the reform of the contract,

this Court need not determine whether USA commit-

ted fraud. Therefore, reformation on this basis was

error.

Even if fraud was attributable to Vandeinse’s insur-

ance agent, there was insufﬁcient evidence to ﬁnd USA

liable for purposes of reformation. “An insurance policy

constitutes a contractual agreement between the in-

surer and the insured,” and “[w]hen such an agree-

ment is facilitated by an independent insurance agent

or broker, the independent insurance agent or broker is

considered an agent of the insured rather than an

agent of the insurer.” West American Ins Co v Meridian

Mut Ins Co, 230 Mich App 305, 310; 583 NW2d 548

(1998). “[A]n agent’s job is to merely present the

product of his principal and take such orders as can be

secured from those who want to purchase the coverage

offered.” Harts v Farmers Ins Exch, 461 Mich 1, 8; 597

NW2d 47 (1999). In this case, the insurance agent’s

actions are not attributable to USA because she was

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independent and considered an agent of Vandeinse.

She did not represent USA; rather, she presented

USA’s product to Vandeinse, who then purchased it

knowing that it did not meet the requirements of the

no-fault act. Therefore, reformation is not a cognizable

remedy.

C. REFORMATION FOR A VIOLATION OF LAW AND PUBLIC POLICY

USA also argues that the trial court erred when it

reformed the insurance contract on the basis of a

violation of the no-fault act and public policy. We agree.

“It is a ‘bedrock principle of American contract law

that parties are free to contract as they see ﬁt, and the

courts are to enforce the agreement as written ab-

sent . . . a contract in violation of law or public policy.’ ”

Corwin v DaimlerChrysler Ins Co, 296 Mich App 242,

256; 819 NW2d 68 (2012) (citation omitted). “[W]hen

reasonably possible, this Court is obligated to construe

insurance contracts that conﬂict with the no-fault act

and, thus, violate public policy, in a manner that

renders them ‘compatible with the existing public

policy as reﬂected in the no-fault act.’ ” Id. at 257

(citation omitted). Therefore, reformation is the appro-

priate remedy when such a contract violates law or

public policy. Id. Whether a contract is against public

policy

depends upon its purpose and tendency, and not upon the

fact that no harm results from it. In other words, all

agreements the purpose of which is to create a situation

which tends to operate to the detriment of the public

interest are against public policy and void, whether in the

particular case the purpose of the agreement is or is not

effectuated. For a particular undertaking to be against

public policy actual injury need not be shown; it is enough

if the potentialities for harm are present. [Mahoney v

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Lincoln Brick Co, 304 Mich 694, 705; 8 NW2d 883 (1943)

(quotation marks and citation omitted).]

The question here is whether an insurer violates the

Michigan no-fault act or public policy when it sells

optional coverages without mandatory no-fault cover-

ages, such as personal protection insurance, property

protection insurance, and residual-liability insurance.

We conclude that it does not.

1. MICHIGAN NO-FAULT LAW

MCL 500.3101(1) provides:

The owner or registrant of a motor vehicle required to

be registered in this state shall maintain security for

payment of beneﬁts under personal protection insurance,

property protection insurance, and residual liability insur-

ance. Security is only required to be in effect during the

period the motor vehicle is driven or moved on a highway.

Notwithstanding any other provision in this act, an in-

surer that has issued an automobile insurance policy on a

motor vehicle that is not driven or moved on a highway

may allow the insured owner or registrant of the motor

vehicle to delete a portion of the coverages under the

policy and maintain the comprehensive coverage portion

of the policy in effect.

[3]

“A policy of insurance represented or sold as providing

security is considered to provide insurance for the

payment of the beneﬁts.” MCL 500.3101(3).

The no-fault act is clear that an owner must register

his or her vehicle in the state and “maintain security for

payment of beneﬁts under personal protection insur-

ance, property protection insurance, and residual liabil-

ity insurance” “during the period the motor vehicle is

driven or moved on a highway.” MCL 500.3101(1). With

As amended by 2014 PA 492, effective January 13, 2015.

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this in mind, “an insurer that has issued an automobile

insurance policy on a motor vehicle that is not driven or

moved on a highway may allow the insured owner or

registrant of the motor vehicle to delete a portion of the

coverages under the policy . . . .” Id. (emphasis added).

Section 3101(1) is clear that an insurer providing

mandatory no-fault coverages has the discretion to

“allow the insured owner or registrant of the motor

vehicle to delete a portion of the coverages under the

policy and maintain the comprehensive coverage por-

tion” so long as the “motor vehicle . . . is not driven or

moved on a highway . . . .” MCL 500.3101(1). The no-

fault act, however, does not address, let alone bar, an

insurer’s ability to sell optional insurance coverages

only. In this case, the USA policy did not provide the

mandatory no-fault coverages to Vandeinse. Indeed,

USA does not offer mandatory coverages to any cus-

tomers; it only sells collision and comprehensive poli-

cies, which, according to Vandeinse’s insurance agent,

are sometimes bundled with other insurance policies

for a reduced cost. Because the no-fault act does not

bar this practice, it does not violate Michigan law, and

we cannot read into the statute something that is not

there.

The no-fault act’s deﬁnition of “automobile insur-

ance policy” supports our conclusion that insurers may

sell insurance policies that do not include mandatory

no-fault coverages. The Legislature broadly deﬁnes

automobile insurance:

“Automobile insurance” means insurance for private

passenger nonﬂeet automobiles which provides any of the

following:

(a) Security required pursuant to section 3101.

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(b) Personal protection, property protection, and re-

sidual liability insurance for amounts in excess of the

amounts required under chapter 31.

hensive and collision.

(d) Other insurance coverages for a private passenger

nonﬂeet automobile as prescribed by rule promulgated by

the commissioner pursuant to Act No. 306 of the Public

Acts of 1969, as amended, being sections 24.201 to 24.315

of the Michigan Compiled Laws. A rule proposed for

promulgation by the commissioner pursuant to this sec-

tion shall be transmitted in advance to each member of the

standing committee in the house and in the senate which

has jurisdiction over insurance. [MCL 500.2102(2) (em-

phasis added)].

The no-fault act does not limit the deﬁnition of auto-

mobile insurance to only those policies that include the

mandatory coverages. Instead, the no-fault act recog-

nizes that automobile insurance sold in the state of

Michigan can provide “any” of the listed coverages,

including “[i]nsurance coverages customarily known as

comprehensive and collision.” MCL 500.2102(2)(c).

This is precisely the policy USA sold to Vandeinse in

this case. Without any provision under the no-fault act

preventing insurers from issuing collision and compre-

hensive policies separately, we cannot conclude that

USA’s practice is against Michigan law.

The dissent concludes that the no-fault act “implic-

itly” requires that every insurer provide policies that

include the mandatory coverages, and then—and only

then—can an insurer “delete” coverages after veriﬁca-

In the same vein, Citizens has not shown that USA “represented or

sold” its policy as mandatory no-fault coverage. See MCL 500.3101(3), as

amended by 2014 PA 492, effective January 13, 2015. Instead, USA

notiﬁed Vandeinse in each of its insurance documents that the policy did

not include mandatory no-fault coverages.

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tion that the insured will not operate the vehicle on a

roadway. However, the no-fault act does not state that

every insurer must provide mandatory coverages. In-

stead, MCL 500.3101(1) requires that any insured who

intends to drive on a highway must have the manda-

tory coverages. The no-fault act also allows insurers to

delete coverages from policies that have already been

issued. The dissent has not identiﬁed any statutory

provision that requires insurers to provide mandatory

coverages when issuing policies to insureds. If that was

the Legislature’s intent, it would have included such a

provision in the no-fault act.

2. FINANCIAL RESPONSIBILITY ACT

The ﬁnancial responsibility act, MCL 257.501 et

seq., lends further support to our analysis. The ﬁnan-

cial responsibility act determines the “scope of cover-

age regarding an automobile accident” and addresses

optional insurance coverage. Integral Ins Co v Maersk

Container Serv Co, Inc, 206 Mich App 325, 330; 520

NW2d 656 (1994). Under the ﬁnancial responsibility

act, “[a]ny policy which grants the coverage required

for a motor vehicle liability policy may also grant

[optional coverage].” MCL 257.520(g). “ ‘Optional’ cov-

erage, for purposes of the ﬁnancial responsibility

act, . . . consists of ‘any lawful coverage in excess of or

in addition to the [mandatory minimum] coverage

speciﬁed for a motor vehicle liability policy.’ ” Lake

States Ins Co v Wilson, 231 Mich App 327, 332 n 2; 586

NW2d 113 (1998), quoting MCL 257.520(g) (alteration

in original). The Legislature has made it clear that

when an insurer provides mandatory no-fault cover-

ages, it may also offer optional coverages. MCL

257.520(g). Like the no-fault act, the ﬁnancial respon-

sibility act does not address whether an insurer may

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offer optional coverages only. With that said, MCL

257.520(j) states that “[t]he requirements for a motor

vehicle liability policy may be fulﬁlled by the policies of

1 or more insurance carriers which policies together

meet such requirements.” Thus, MCL 257.520(j) ex-

pressly permits insureds to fulﬁll their insurance

needs by way of multiple policies through more than

one carrier. In this case, USA was permitted to sell an

insurance policy that included only collision and com-

prehensive coverages with the understanding that the

insured had to procure the mandatory no-fault cover-

ages elsewhere before the vehicle could be driven or

moved on a highway.

The dissent is unpersuaded that the ﬁnancial re-

sponsibility act provides any guidance to this issue.

Instead, the dissent concludes that because USA’s

policy violates the no-fault act’s “implicit” requirement

that all insurers provide mandatory coverages, the

no-fault act—not the ﬁnancial responsibility act—

controls. The dissent’s argument, however, relies on

the faulty premise that the no-fault act requires insur-

ers to always provide mandatory coverages in their

policies. This is simply not the case. The no-fault act is

silent regarding the practice of selling policies that

only provide optional coverages, and the ﬁnancial

responsibility act permits it. The dissent has construed

a legislative requirement not supported by the text of

the no-fault act.

Nevertheless, after ﬁnding an irreconcilable conﬂict

between USA’s coverages and the requirements of the

no-fault act, the dissent relies on Citizens Ins Co of

America v Federated Mut Ins Co, 448 Mich 225; 531

NW2d 138 (1995), to underscore its point that the

authorizing language found in the ﬁnancial responsi-

bility act cannot validate a policy that violates the

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no-fault act. We agree with the dissent that an insur-

ance policy contravening the no-fault act cannot be

justiﬁed by the ﬁnancial responsibility act. See id. at

232 (“An insurance policy that is repugnant to the clear

directive of the no-fault act otherwise cannot be justi-

ﬁed by the ﬁnancial responsibility act.”). However, in

this case, the ﬁnancial responsibility act simply ad-

dresses a gap that the no-fault act left open—whether

insurers can sell policies that include only optional

coverages. The ﬁnancial responsibility act clearly al-

lows insurers to combine multiple automobile policies

in order to fulﬁll the requirements of the no-fault act.

See MCL 257.520(j). Therefore, unlike in Citizens, in

which a residual-liability policy clearly violated the

express terms of the no-fault act,

there was no such

violation here, and the ﬁnancial responsibility act

provided proper guidance for our analysis. See

Citizens, 448 Mich at 232 (stating that “the ﬁnancial

responsibility act continues to present legitimate

methods by which vehicle owners may satisfy the

insurance obligations created by the no-fault act” and

that MCL 257.520(j) provides “a method by which an

owner may allocate insurance costs among various

policies that he may have purchased for a particular

vehicle”).

A similar question related to bobtail insurance was

previously addressed by this Court in Integral, 206 Mich

The Citizens Court made clear that when an owner or registrant

obtains residual-liability insurance, the policy “must afford coverage for

enumerated types of loss caused by or arising from the ‘use of a motor

vehicle.’ ” Citizens, 448 Mich at 229, citing MCL 500.3131; MCL

500.3135. The Court concluded that the policy at issue in that case,

which denied residual-liability coverage for all persons—except those

who were uninsured or underinsured—was a clear violation of the

residual-liability requirements under MCL 500.3009. Id. at 231. There-

fore, the policy contravened the no-fault act, and no provision in the

ﬁnancial responsibility act could save the policy.

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App at 331: Bobtail insurance policies, which do not

provide “full coverage,” may nonetheless be sold sepa-

rately from mandatory no-fault policies. In Integral, this

Court stated that “[a]dmittedly, the [bobtail] policy itself

does not provide full coverage.” Id. However, because

MCL 257.520(j) allows insureds to meet the require-

ments for motor vehicle liability coverage through more

than one insurance carrier, and because the truck driver

was covered by both a bobtail policy and a policy

providing no-fault beneﬁts through another carrier, the

practice of selling only bobtail insurance was not

against the law. Integral, 206 Mich App at 331-332. We

reach the same conclusion in this case.

While Van-

deinse did not procure a no-fault policy with the

mandatory coverages, USA was not precluded from

selling optional insurance coverages in order to satisfy

customers who chose to purchase insurance policies

from multiple carriers as allowed under MCL

257.520(j). Thus, USA’s practice of selling optional

insurance coverages does not violate Michigan law.

3. PUBLIC POLICY

An insurance contract violates public policy when its

purpose “is to create a situation which tends to operate

to the detriment of the public interest.” Mahoney, 304

Mich at 705 (quotation marks and citation omitted).

Citizens argues that if USA is permitted to continue

providing optional coverages only, more cases like this

will arise—cases in which the Facility and the as-

The dissent highlights the fact that in Integral the bobtail policy and

the no-fault policy both provided mandatory coverages—applicable at

different times depending on how the truck was being used. While this

is certainly true, it nonetheless supports our conclusion that the

ﬁnancial responsibility act allows more than one insurance policy to

fulﬁll the requirements of the no-fault act, when separately, the insur-

ance policies would not meet the requirements of the no-fault act.

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signed insurers are left footing the bill. Citizens claims

that insureds will continue to mistakenly believe that

they purchased full-coverage insurance and are law-

fully driving on Michigan roads.

While we agree that Citizens raises real concerns,

the fact remains that the Michigan Legislature has not

expressly barred insurance companies from offering

optional coverages as standalone policies. The parties

readily acknowledge that there are circumstances

when a person may want to purchase limited coverages

that do not meet the requirements of the no-fault act.

For instance, limited coverage is entirely appropriate

when the vehicle will not be operated on public roads or

if, as asserted by Vandeinse’s insurance agent, the

insured can obtain less expensive mandatory and op-

tional coverages from multiple carriers. MCL

500.3101(1) puts the onus on the insured to obtain the

coverages necessary to meet the requirements of the

no-fault act. The Legislature has not imposed the same

duty on insurers. To do so would require insurers to

verify that every insured who has purchased policies

from more than one carrier has procured all the

insurance needed to satisfy the no-fault act. It is the

role of the Legislature to balance these types of policy

considerations, not the role of this Court. USA’s policy

is crystal clear that it included coverage for physical

damage only and did not meet the requirements of the

no-fault act. Vandeinse initialed these contract provi-

sions, indicating that he understood the scope of the

coverage he purchased. Vandeinse’s insurance agent

even testiﬁed that she explained to Vandeinse what

each type of coverage entailed. There was no misrep-

resentation. While it is true Vandeinse was able to

purchase and register his vehicle using USA’s policy,

this was not because USA failed to alert Vandeinse or

anybody else that the policy did not conform to the

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no-fault act. The insurance application, the insurance

policy itself, and the certiﬁcate of insurance all pro-

vided notice that the USA policy did not satisfy the

requirements of the no-fault act. The obligation is on

the owner or registrant to procure the proper no-fault

coverages. MCL 500.3101(1). Therefore, the trial court

erred when it reformed USA’s policy after concluding

that it violated public policy.

III. ATTORNEY FEES

USA also appeals the trial court’s award of attorney

fees to Citizens. Because we conclude that the trial

court erred when it reformed the insurance policy,

Citizens is no longer a prevailing party, and attorney

fees are not warranted.

“A trial court’s decision to grant or deny a motion for

attorney fees presents a mixed question of fact and law.”

Brown v Home-Owners Ins Co, 298 Mich App 678, 689;

828 NW2d 400 (2012). The trial court’s ﬁndings of fact

are reviewed for clear error, and questions of law are

reviewed de novo. Id. at 690. With that said, we review

a trial court’s ultimate decision to award attorney fees

for an abuse of discretion. Id. “An abuse of discretion

occurs when the trial court’s decision is outside the

range of reasonable and principled outcomes.” Smith v

Khouri, 481 Mich 519, 526; 751 NW2d 472 (2008).

The trial court did not cite a statute or court rule that

would permit the award of attorney fees, and no such

authority is advanced on appeal. Instead, the trial court

concluded that courts have long permitted the award of

attorney fees when there is fraud or unlawful conduct.

“In Michigan, it is well-settled that the recovery of

attorney fees is governed by the ‘American rule.’ ” Burn-

side v State Farm Fire & Cas Co, 208 MichApp 422, 426;

528 NW2d 749 (1995). “Under the American rule, attor-

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ney fees are generally not allowed, as either costs or

damages, unless recovery is expressly authorized by

statute, court rule, or a recognized exception.” Id. at

426-427. “An exception to this rule permits a plaintiff to

recover as damages from a third party the attorney fees

the plaintiff expended in a prior lawsuit the plaintiff

was forced to defend or prosecute because of the wrong-

ful acts of the third party.” Bonner v Chicago Title Ins

Co, 194 Mich App 462, 468; 487 NW2d 807 (1992), citing

Warren v McLouth Steel Corp, 111 Mich App 496, 508;

314 NW2d 666 (1981). However, “[w]here there is no

evidence to support a claim that a third party’s wrong-

doing caused the prior litigation, recovery of attorney

fees under this exception is improper.” Bonner, 194 Mich

App at 469. Because we have concluded that USA

engaged in no wrongdoing, attorney fees are not permis-

sible. Moreover, it is a fundamental principle that attor-

ney fees and costs may only be awarded to the prevail-

ing party. See, e.g., MCL 600.2591(1); MCR 2.625(A)(1).

Therefore, the trial court erred when it awarded attor-

ney fees and costs to Citizens. We reverse the trial

court’s orders granting Citizens’ motion for summary

disposition and its motion for attorney fees, and we

remand the matter to the trial court for further proceed-

ings consistent with this opinion.

Reversed and remanded. We do not retain jurisdic-

tion.

IORDAN

, J., concurred with C

AMERON

, J.

ECKERING

, P.J. (dissenting). When it comes to car

insurance, Michigan is a no-fault state.

Every owner of

a car required to be registered in Michigan must have

Michigan’s no-fault insurance act, MCL 500.3101 et seq., became law

on October 1, 1973. While it has been a target of certain legislators for

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certain basic coverages in order to drive that car on a

highway. MCL 500.3101(1). Those coverages are per-

sonal protection insurance (PIP), property protection

insurance (PPI), and residual-liability insurance. Id.

Under Michigan law, only if a car is not going to be

driven or moved on a highway may an insurance

company issue an insurance policy that deletes the

above-identiﬁed mandatory minimum coverages and

maintains the nonmandatory comprehensive portion of

the policy in effect. MCL 500.3101(2). Our Supreme

Court has expressly stated, with clarity, this mandate

on owners and insurers: “[U]nder the no-fault automo-

bile insurance act, MCL 500.3101 et seq., insurance

companies are required to provide ﬁrst-party insur-

ance beneﬁts, referred to as personal protection insur-

ance (PIP) beneﬁts, for certain expenses and losses.

MCL 500.3107; MCL 500.3108.” Johnson v Recca, 492

Mich 169, 173; 821 NW2d 520 (2012) (emphasis

added); see also Citizens Ins Co of America v Federated

Mut Ins Co, 448 Mich 225, 230; 531 NW2d 138 (1995)

(“[W]hile subject to certain exceptions not at issue

here, the no-fault act unambiguously requires that a

policy of automobile insurance, sold to a vehicle owner

pursuant to the act, must provide coverage for residual

liability arising from use of the vehicle so insured.”)

(emphasis added); and Continental Cas Co v Mich

Catastrophic Claims Ass’n, 874 F Supp 2d 678, 680

(ED Mich, 2012) (“The Michigan No-Fault Insurance

Act is unique among no-fault regimes; it provides for

unlimited lifetime PIP beneﬁts to accident victims.

§ 500.3101, et seq. The unlimited PIP coverage is

mandatory for all registered owners of motor vehicles

in the state. Id. Therefore, insurance companies writ-

years and is currently the subject of much debate and legislative

wrangling, our no-fault auto insurance system remains in place.

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ing automobile insurance in Michigan must provide

unlimited PIP coverage to policyholders.”) (emphasis

added).

At its core, this case is about whether an

insurance company can sell the nonmandatory por-

tions of a car insurance policy in Michigan and yet not

provide any of the mandatory coverages required by

Michigan’s no-fault law.

Defendant USA Underwriters

(USAU) claims that it can, and the majority agrees. I

respectfully dissent.

I. BASIC FACTS AND PROCEDURAL HISTORY

According to his testimony and the documents pro-

duced at defendant Steven Vandeinse’s deposition,

Vandeinse purchased a 2011 Chevrolet Impala from

Ypsilanti Import Auto Sales for about $11,000 on

June 19, 2015. Before he could take possession of the

car, Vandeinse had to get insurance, so he went to L.A.

Insurance. Vandeinse testiﬁed that he told the person

working there he wanted “full coverage on the ve-

hicle.”

He was charged $445.03 up front and agreed to

Although the decisions of the lower federal courts are not binding,

we may ﬁnd their analyses and conclusions to be persuasive. Abela v

Gen Motors Corp, 469 Mich 603, 607; 677 NW2d 325 (2004).

Defendant USA Underwriters admitted at oral argument that none

of the car insurance policies it sells in Michigan provides any of the basic

coverages required by Michigan law pursuant to MCL 500.3101(1).

Consequently, if you buy car insurance from USA Underwriters alone,

you still can’t legally drive your car on Michigan roads.

Although not yet a party at the time, USAU was notiﬁed of

Vandeinse’s deposition but did not attend.

As noted by the majority, the person who worked with Vandeinse at

L.A. Insurance wrote an afﬁdavit for purposes of this litigation indicat-

ing that the insurance policy Vandeinse actually bought is exactly what

he asked for and that he chose to forgo buying insurance compliant with

the no-fault law. USAU also produced a typewritten application, pur-

portedly initialed by Vandeinse, identifying what he was actually

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ongoing monthly payments to USAU of approximately

$145. Vandeinse was given a “Certiﬁcate of Insurance”

issued by USAU, which looked like the veriﬁcation

document drivers are required to present to the Secre-

tary of State’s ofﬁce in order to prove they have

no-fault coverage so they can register their car:

While the certiﬁcate states in small print that the

insurance “is physical damage only, coverage does not

meet the requirements of the Michigan No-fault Act,

Chapter 31 of the Michigan Insurance Code,” it also

immediately thereafter states in bold type: “Involved

in an Accident? Call (855) 230-1656.” Vandeinse was

also handed a one-page document titled “Loss Payable

Endorsement” issued by USAU. The document indi-

cated that he was being charged for “Comprehensive”

and “Collision” insurance; it does not mention that the

coverage failed to meet the requirements of Michigan’s

no-fault law. Vandeinse’s policy was effective for six

months at a premium rate of $792; that equals $1,584

getting in terms of coverage. Whether Vandeinse or the agent is telling

the truth about how the transaction was actually handled remains a

matter of dispute. But it is not material to the legal issue of whether

USAU can sell a car insurance policy for a car that is going to be driven

or moved on a highway in Michigan that does not comply with MCL

500.3101(1), but instead provides only comprehensive and collision

coverages. Importantly, USAU was made well aware of the fact that the

car would be driven or moved on the highway because it sold Vandeinse

collision insurance.

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per year for only collision and comprehensive insur-

ance on a 2011 Chevy Impala.

On the basis of other documents produced in this

litigation, it appears that L.A. Insurance

sold Vande-

inse a comprehensive-and-collision-only policy issued

by USAU, as described above, and an Automobile

Service Contract, issued by NSD (Nation Safe Drivers),

covering roadside assistance for $300. In other words,

Vandeinse walked away with just about everything but

mandatory no-fault coverage. None of what he was sold

allowed him to operate or move his car on a Michigan

highway.

Vandeinse returned to Ypsilanti Import Auto Sales

with his documents, where Vandeinse and a dealership

representative completed, and Vandeinse signed, an

“Application for Michigan Title & Registration, State-

ment of Vehicle Sale,” which documented that Vande-

inse had obtained insurance through USAU, Policy No.

USAUW-00002968-00. Vandeinse received a tempo-

rary registration number.

On July 7, 2015, the state of Michigan issued a

Certiﬁcate of Title recognizing Vandeinse as the law-

fully registered owner of the Impala. Vandeinse testiﬁed

that he dutifully paid USAU $145 per month for the

insurance.

On September 8, 2015, Vandeinse’s girlfriend,

Courtney Eisemann, was driving the Impala with

According to testimony provided by Hani Kassab, Jr., president and

part-owner of USAU and a franchisee of L.A. Insurance, Anthony Yousif

owns and is the president and CEO of L.A. Insurance. According to

documents submitted by USAU to the Department of Insurance and

Financial Services, Yousif was also the primary shareholder in USAU. At

the time of Kassab’s 2017 deposition, USAU had been operating for

approximately four years, having purchased Southern Michigan Insur-

ance Company.

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permission when she accidentally struck and injured a

bicyclist, plaintiff Niles Johnson. After the accident,

the responding police ofﬁcer documented that the Im-

pala was insured through USAU.

Johnson initially ﬁled a claim with, and later a

lawsuit against, the Michigan Automobile Insurance

Placement Facility. Defendant/cross-plaintiff-appellee

Citizens Insurance Company of America received the

claim by assignment. But after the depositions of

Vandeinse and Eisemann, Johnson added USAU to the

instant lawsuit. Ultimately, the trial court concluded

that USAU had issued a policy in violation of Michigan

law because it failed to provide the requisite no-fault

insurance coverage required by MCL 500.3101. And

apparently on the basis of USAU’s issuance of a

“Certiﬁcate of Insurance,” which looked just like that

commonly used to register a vehicle with the Secretary

of State’s ofﬁce (and which did, in fact, fool both the

Secretary of State’s ofﬁce and a police ofﬁcer), the court

concluded that USAU acted with an intent to deceive

the consumer and the Secretary of State. Therefore,

the court ordered reformation of the contract to provide

PIP, PPI, and residual-liability insurance, as required

by the no-fault act. USAU appeals by right.

II. STANDARD OF REVIEW

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

a motion for summary disposition, MEEMIC Ins Co v

Mich Millers Mut Ins, 313 Mich App 94, 99; 880 NW2d

327 (2015), the proper interpretation of a statute,

McCormick v Carrier, 487 Mich 180, 188; 795 NW2d

517 (2010), and a trial court’s decision to grant equi-

table relief, Corwin v DaimlerChrysler Ins Co, 296

Mich App 242, 253; 819 NW2d 68 (2012).

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III. MANDATORY MICHIGAN NO-FAULT INSURANCE

On appeal, USAU contends that the trial court erred

by reforming Vandeinse’s automobile insurance policy

because the plain language of the insurance applica-

tion and disclosures purportedly signed by Vandeinse

indicated that the policy did not include no-fault cov-

erage. I would hold that the trial court properly con-

cluded that USAU issued an automobile insurance

policy in violation of the mandatory coverage require-

ments of the no-fault act. An automobile insurance

policy in Michigan must be interpreted to include the

statutorily required minimum coverage in order to

comply with Michigan law.

“An insurer who elects to provide automobile insur-

ance is liable to pay no-fault beneﬁts subject to the

provisions of the [no-fault] act.” Dobbelaere v Auto-

Owners Ins Co, 275 Mich App 527, 530; 740 NW2d 503

(2007), citing MCL 500.3105(1). “When construing the

no-fault act, this Court must be careful to interpret the

words used in the statute in light of their ordinary

meaning and their context within the statute and must

read the various provisions harmoniously to give effect

to the statute as a whole.” MEEMIC Ins Co, 313 Mich

App at 102 (quotation marks and citation omitted). It

has long been held that the no-fault insurance act is

remedial in nature and must be liberally construed in

favor of persons it is intended to beneﬁt. In re Geror,

286 Mich App 132, 134-135; 779 NW2d 316 (2009)

(quotation marks and citation omitted).

MCL 500.3101(1)

of the no-fault act addresses mo-

tor vehicle security agreements and provides:

The owner or registrant of a motor vehicle required to

be registered in this state shall maintain security for

As amended by 2014 PA 492, effective January 13, 2015.

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payment of beneﬁts under personal protection insurance,

property protection insurance, and residual liability insur-

ance. Security is only required to be in effect during the

period the motor vehicle is driven or moved on a highway.

Notwithstanding any other provision in this act, an in-

surer that has issued an automobile insurance policy on a

motor vehicle that is not driven or moved on a highway

may allow the insured owner or registrant of the motor

vehicle to delete a portion of the coverages under the policy

and maintain the comprehensive coverage portion of the

policy in effect. [Emphasis added.]

MCL 500.3101(2)(a) deﬁnes “automobile insurance”

as meaning “that term as deﬁned in [MCL 500.]2102.”

MCL 500.2102 broadly deﬁnes “automobile insur-

ance” to include “[i]nsurance coverages customarily

known as comprehensive and collision.” MCL

500.2102(2)(c). Thus, a comprehensive and collision

insurance policy is an “automobile insurance policy”

as described in MCL 500.3101(1).

Under the plain

language in the third sentence of MCL 500.3101(1), an

insurer may only allow an insured to delete the statu-

torily mandated coverage from an automobile insur-

ance policy and maintain the comprehensive coverage

portion under one condition. In other words, an auto-

mobile insurance policy starts with the mandatory

coverages, because the word “delete” necessarily

means initial inclusion. An insurer may allow the

insured to delete those mandatory coverages if the

motor vehicle is not driven or moved on a highway. I

interpret MCL 500.3101(1) of the no-fault act to mean

that an insurer may not sell an automobile insurance

Similarly, MCL 500.3206, which pertains to cancellation of automo-

bile liability policies, deﬁnes “policy of automobile insurance” as used in

that chapter to mean “a policy insuring private passenger automo-

biles . . . or that portion of a combination policy which insures private

passenger automobiles.” Put simply, an “automobile liability policy” and

a policy insuring private passenger automobiles are one and the same.

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policy in Michigan—including the policy in question—

without the statutorily required minimum coverages,

absent circumstances not present here (i.e., for a car

that is not going to be driven or moved on a highway).

My interpretation of MCL 500.3101(1) is further

bolstered by MCL 500.3009,

regarding casualty in-

surance contracts for automobiles:

An automobile liability or motor vehicle liability policy

insuring against loss resulting from liability imposed by

law for property damage, bodily injury, or death suffered

by any person arising out of the ownership, maintenance,

or use of a motor vehicle shall not be delivered or issued

for delivery in this state with respect to any motor vehicle

registered or principally garaged in this state unless the

liability coverage is subject to a limit, exclusive of interest

and costs, of not less than $20,000.00 because of bodily

injury to or death of 1 person in any 1 accident, and

subject to that limit for 1 person, to a limit of not less than

$40,000.00 because of bodily injury to or death of 2 or more

persons in any 1 accident, and to a limit of not less than

$10,000.00 because of injury to or destruction of property

of others in any accident.

* * *

(3) If an insurer deletes coverages from an automobile

insurance policy pursuant to [MCL 500.]3101, the insurer

shall send documentary evidence of the deletion to the

insured. [Emphasis added.]

MCL 500.3101(1) and MCL 500.3009(3)

both broadly

address “automobile insurance policies” and under

As noted earlier, it cannot be disputed that USAU knew the Impala

Vandeinse was seeking to insure would be operated on the highway

because USAU sold him collision insurance.

As amended by 1988 PA 43, effective March 30, 1989.

MCL 500.3009(3) had since been renumbered as MCL 500.3009(4).

See 2016 PA 346, effective March 21, 2017.

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what circumstances an insurer may delete the requi-

site statutory minimum coverages from an automobile

insurance policy. MCL 500.3101 and MCL 500.3009(3)

implicitly require every automobile insurance policy in

Michigan to contain the requisite minimum no-fault

coverage at the outset, whereafter optional, or non-

mandatory, coverage may be added to that policy, “the

rights and limitations of [which] are purely contractual

and are construed without reference to the no-fault

act.” Rory v Continental Ins Co, 473 Mich 457, 465-466;

703 NW2d 23 (2005).

See also Krohn v Home-Owners

Ins Co, 490 Mich 145, 155 n 17; 802 NW2d 281 (2011)

(“[A]ll owners or registrants of automobiles in Michi-

gan are free to purchase insurance contracts that

provide greater coverage than the minimum required

under the no-fault act.”) (emphasis added).

More explicitly, MCL 500.3131, pertaining to re-

sidual-liability insurance, provides that “[t]his section

shall apply to all insurance contracts in force as of

October 1, 1973, or entered into after that date.” MCL

500.3131(2) (emphasis added). Thus, the no-fault laws

make clear that automobile insurance policies in

Michigan must include at least the minimum no-fault

coverages identiﬁed in MCL 500.3101(1), with those

coverages being deletable only if the “motor vehicle is

not driven or moved on a highway,” and that additional

nonmandatory coverages can be added to the policy as

agreed upon by the parties. Further exemplifying this

Optional coverages the parties may agree to add to the automobile

insurance policy include collision insurance, comprehensive insurance,

residual-liability coverage in excess of the statutory minimum, unin-

sured and underinsured coverage, and mini-tort coverage. However, the

fundamental and unavoidable starting point for insurers offering auto-

mobile insurance policies to owners and registrants of automobiles in

the Michigan marketplace is a policy that provides the statutorily

required minimum coverages under our no-fault law.

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statutory scheme, optional collision coverage is ad-

dressed in MCL 500.3037,

which provides, in perti-

nent part:

(1) At the time a new applicant for the insurance

required by [MCL 500.3101] for a private passenger non-

ﬂeet automobile makes an initial written application to

the insurer, an insurer shall offer both of the following

collision coverages to the applicant:

(a) Limited collision coverage which shall pay for colli-

sion damage to the insured vehicle without a deductible

amount when the operator of the vehicle is not substan-

tially at fault in the accident from which the damage

arose.

(b) Broad form collision coverage which shall pay for

collision damage to the insured vehicle regardless of fault,

with deductibles in such amounts as may be approved by

the commissioner, which deductibles shall be waived if the

operator of the vehicle is not substantially at fault in the

accident from which the damage arose.

(2) In addition to the coverages offered pursuant to

subsection (1), standard and limited collision coverage

may be offered with deductibles as approved by the

commissioner.

* * *

(6)

[14]

At least annually in conjunction with the renewal

of a private passenger nonﬂeet automobile insurance

policy, or at the time of an addition, deletion, or substitu-

tion of a vehicle under an existing policy, other than a

group policy, an insurer shall inform the policyholder, on a

form approved by the commissioner, of all of the following:

(a) The current status of collision coverage, if any, for

the vehicle or vehicles affected by the renewal or change

As amended by 1980 PA 461, effective January 15, 1981.

MCL 500.3037(6) was renumbered as MCL 500.3037(7) by 2016 PA

346, effective March 21, 2017.

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and the rights of the insured in the event of damages to

the insured vehicle under the current coverage.

(b) The collision coverages available under the policy

and the rights of the insured in the event of damage to the

insured vehicle under each collision option.

wishes to change the current collision coverage. [Empha-

sis added.]

As manifested by MCL 500.3037, the starting point in

Michigan is an automobile insurance policy that in-

cludes the mandatory minimum insurance required by

MCL 500.3101. The new applicant can then decide

whether to add collision coverage to the policy at that

time or a later time in the life of the policy. Nowhere in

the no-fault act does it say that insurance companies

can sell to Michigan automobile owners automobile

insurance policies that do not provide the mandatory

minimum no-fault coverage. To do so would be a

violation of the clear purpose of the no-fault act and a

consequent violation of public policy. USAU—which

bills itself as carrying “Affordable Car Insurance” and

offering “terriﬁc rates on quality coverage from top-

rated insurance carriers” to “drivers” allowing them

“affordable ways to stay on the road and within the

law,” according to usaunderwriters.com

—sold an au-

tomobile policy to Vandeinse that would not even allow

him to legally drive his car off the lot.

USAU has conceded that none of the automobile

insurance policies it sells in Michigan provides the

statutorily mandated minimum coverages for PIP, PPI,

and residual liability. Therefore, instead of starting

with an automobile policy that meets the requirements

of Michigan’s no-fault act and deleting or adding cov-

USA Underwriters, Home Page <http://www.usaunderwriters.com>

(accessed March 13, 2019) [https://www.perma.cc/62XV-SF6D].

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erages as permitted by law, USAU bypasses the no-

fault act by underwriting optional insurance only. An

insurer who sells automobile insurance in the Michi-

gan marketplace must abide by the no-fault act. See

Citizens, 448 Mich at 232. On the basis of the foregoing

interpretation of the applicable statutes and caselaw, I

would hold that USAU sold an automobile insurance

policy to Vandeinse in violation of Michigan’s no-fault

law and its clearly stated public policy. Accordingly, the

trial court did not err by reforming the contract to

include the statutorily required minimum no-fault

coverage required by MCL 500.3101. See Citizens, 448

Mich at 234.

My colleagues in the majority note that the ﬁnancial

responsibility act, MCL 257.501 et seq., “permits in-

sureds to fulﬁll their insurance needs by way of mul-

tiple policies through more than one carrier.” However,

as our Supreme Court indicated in Citizens, the ﬁnan-

cial responsibility act should not be construed to con-

tradict the no-fault act. Citizens, 448 Mich at 232.

At issue in Citizens was “the validity of a vehicle

owner’s policy of liability insurance that denies cover-

age to any permissive user who is otherwise insured for

an amount equal to that speciﬁed by the no-fault act.”

Id. at 227. In Citizens, Federated Insurance Company’s

policy provided the mandated residual-liability cover-

ages to permissive drivers of the insured car only if the

drivers were uninsured or underinsured, while deny-

ing such coverages under all other circumstances. Id.

at 231. The Supreme Court held that an insurer may

not lawfully deny residual-liability coverages for losses

arising from use of a covered vehicle “because the

no-fault act clearly directs that a policy sold pursuant

to the act must provide residual liability coverage for

use of the vehicle insured.” Id. Of signiﬁcance to the

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case at bar, the Supreme Court addressed and dis-

missed an argument similar to that made in the

instant case by USAU:

Notwithstanding the no-fault act, Federated urges us

to focus on the ﬁnancial responsibility act and contends

that the exclusion of coverage contained in its policy is

“authorized and contemplated by the ﬁnancial responsi-

bility act.” In particular, Federated relies on subsections

(i) and (j) of the ﬁnancial responsibility act, MCL 257.520,

which provide:

(i) Any motor vehicle liability policy may provide

for the prorating of the insurance thereunder with

other valid and collectible insurance.

(j) The requirements for a motor vehicle liability

policy may be fulﬁlled by the policies of 1 or more

insurance carriers which policies together meet such

requirements.

According to Federated, because in each of these cases the

driver’s insurance policy, when taken together with Fed-

erated’s insurance policy, will afford beneﬁts of an amount

speciﬁed by law, its insurance policy complies with public

policy evidenced by the ﬁnancial responsibility act. We

question the premise of Federated’s argument because it

suggests that the ﬁnancial responsibility act manifests the

controlling public policy of this state concerning automo-

bile insurance.

The no-fault act, as opposed to the ﬁnancial responsi-

bility act, is the most recent expression of this state’s public

policy concerning motor vehicle liability insurance. There-

fore, while Federated’s insurance policy might well be

reconciled with the ﬁnancial responsibility act, its failure

to comply with the no-fault act nevertheless renders it

violative of public policy. An insurance policy that is

repugnant to the clear directive of the no-fault act other-

wise cannot be justiﬁed by the ﬁnancial responsibility act.

[Id. at 231-232 (emphasis added; citation omitted).]

The ﬁnancial responsibility act, particularly MCL

257.520(i) and (j), does “provide a method by which an

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owner may allocate insurance costs among various

policies” or by which “vehicle owners may satisfy the

insurance obligations created by the no-fault act.” Id.

at 232.

However, neither subsection (i) nor subsection (j) of the

ﬁnancial responsibility act permits an insurer . . . to cir-

cumscribe the coverage directed by the no-fault act; to

reach that conclusion would not accord proper deference to

the policy judgment implicit in the Legislature’s decision

to require owners and registrants of motor vehicles to

obtain insurance for the residual liability arising from the

use of their vehicles. See MCL 500.3101[.] [Id. at 232-233

(emphasis added).]

Thus, while it is incumbent upon owners and regis-

trants to obtain the statutorily mandated insurance,

insurers cannot “circumscribe the coverage required by

the no-fault act . . . .” Id. at 233. The Supreme Court

held that the vehicle owner’s policy was invalid be-

cause it denied coverage for liability arising from the

use of an insured vehicle, in contravention of the

no-fault act, and it deemed the policy to provide pri-

mary coverage in an amount equal to that required by

the no-fault act. Id. at 227. Citizens stands for the

proposition that the ﬁnancial responsibility act neither

articulates Michigan’s public policy with regard to

motor vehicle insurance nor absolves insurers of the

mandate to conform to the requirements of the no-fault

act.

As further support for their conclusion that selling

automobile insurance policies in Michigan that do not

provide the mandatory minimum coverages set forth in

MCL 500.3101 does not violate the no-fault act, my

colleagues in the majority rely on this Court’s decision

in Integral Ins Co v Maersk Container Serv Co, Inc, 206

Mich App 325; 520 NW2d 656 (1994). Integral, how-

ever, does not support the majority’s position.

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Integral involved a priority dispute between insur-

ers to determine which insurer was liable to pay PIP

beneﬁts for injuries suffered by Ralph Scott when the

Michigan-registered tractor truck Scott was driving,

and the semitrailer the tractor was pulling, overturned

in Pennsylvania. Scott owned the tractor, but he had

leased it to Maersk for 90 days. Id. at 328. Maersk had

agreed to obtain and maintain liability insurance cov-

ering bodily injury and property damage for the trac-

tor. And Scott, who drove the tractor for Maersk, had

agreed to obtain “bobtail” insurance

and workers’

compensation insurance. Accordingly, Maersk obtained

from Insurance Company of North America (INA) a

policy “covering personal injury protection for automo-

biles subject to no-fault” that also covered the tractor,

and Scott obtained a bobtail policy from Integral In-

surance Company. The bobtail policy “expressly ex-

cluded coverage (1) while the tractor was being used to

carry property for business and (2) while the tractor

was being used for the business of anyone who leased

the tractor.” Id. at 328.

Scott was hauling a trailer loaded with cargo for

Maersk at the time of the accident. Consequently, one of

the issues in the trial court was whether INA under the

policy sold to Maersk or Integral under the bobtail

policy sold to Scott was ﬁrst in priority for payment of

PIP beneﬁts. Scott also ﬁled a workers’ compensation

claim, and the hearing referee ruled that Scott was an

employee of Maersk. Id. at 330. On the basis of this

ruling, the trial court concluded that Maersk’s insurer,

INA, was ﬁrst in priority for PIP beneﬁts under MCL

500.3114(3) and entered a corresponding order. Id. Sub-

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

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

206 Mich App at 331.

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sequently, however, the Worker’s Compensation Appel-

late Commission reversed the hearing referee’s deter-

mination. Id. Thus, by the time the appeals and cross-

appeals from the trial court’s order had reached this

Court, the basis of the court’s decision no longer existed.

Nevertheless, this Court afﬁrmed the trial court’s order,

but on different grounds. Id. at 332. The Court afﬁrmed

that INA was ﬁrst in priority on the grounds that Scott

had been hauling a trailer with cargo for Maersk at the

time of the accident and the bobtail policy validly

excluded coverage under such circumstances. Id.

The majority ﬁnds Integral’s relevance to the instant

case in the Court’s discussion of the validity of the

bobtail policy’s exclusions. The trial court ruled that

the exclusions were void as against public policy, but

this Court disagreed, observing that

Integral’s policy provided coverage only when Scott was

not hauling cargo for a business or when Scott was not

hauling cargo for a business to whom the tractor was

rented. Admittedly, the policy itself does not provide full

coverage. However, the tractor was fully covered under

no-fault by the addition of INA’s policy that provided

coverage when Scott was hauling cargo on behalf of

Maersk. [Id. at 331.]

The Court supported its reasoning by noting that MCL

257.520(j) of the ﬁnancial responsibility act provides

that “[t]he requirements for a motor vehicle liability

policy may be fulﬁlled by the policies of 1 or more

insurance carriers which policies together meet such

requirements.” Integral, 206 Mich App at 331. The

Court then determined that “[t]aken together, the

policy issued by INA and the bobtail policy issued by

Integral provided continuous insurance coverage to the

tractor as required by the motor vehicle ﬁnancial

responsibility act.” Id. at 331-332.

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The majority interprets the Court’s observation that

the bobtail policy did not provide “full coverage” but

that the tractor was “fully covered under no-fault by

the addition of INA’s policy,” id. at 331, as indicating

that the bobtail policy did not provide for the PIP

beneﬁts mandated under MCL 500.3101(1). This inter-

pretation is incorrect. That the bobtail policy provided

PIP beneﬁts is evident from this Court’s characteriza-

tion of Integral as “a dispute between no-fault insur-

ers” and from the fact that “Integral and INA each

agreed to contribute ﬁfty percent of Scott’s personal

protection insurance (PIP) beneﬁts during their dis-

pute regarding priority.” Integral, 206 Mich App at 328.

Note that the dispute between the insurers was about

priority, not liability. Accordingly, the Court’s observa-

tion that the bobtail policy plus Maersk’s policy from

INA provided “full coverage” was not an observation

about what each policy covered, but about when the

policies were in force. Both policies provided PIP ben-

eﬁts, but at different times. The bobtail policy excluded

coverage when the tractor was hauling a load or was

rented for business, and INA’s policy provided cover-

age during the period of Maersk’s rental; together, the

two policies provided “continuous insurance coverage

to the tractor . . . .” Id. at 331 (emphasis added). Thus,

Integral is not about obtaining “full coverage” by com-

bining policies that do not cover PIP beneﬁts with

those that do; rather, Integral is about combining

policies—each of which provides the statutorily man-

dated PIP coverages—to achieve temporally “continu-

ous insurance coverage” as required by the ﬁnancial

responsibility act.

In sum, the caselaw relied on by the majority does

not support its conclusion that the no-fault act allows

an insurance company providing automobile insurance

in Michigan to circumvent the no-fault act and sell only

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optional insurance coverages. The statutory scheme is

clear: the starting point for achieving the goals of the

no-fault act is an automobile insurance policy that

provides the statutorily mandated coverages under

MCL 500.3101(1), to which parties may add elective

coverages as agreed on and delete the mandatory

coverages and maintain comprehensive coverage only

if the car is not going to be driven or moved on a

highway. Automobile policies underwritten by USAU

do not comply with the no-fault act. Accordingly, I

would afﬁrm the ruling of the trial court.

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In re GUARDIANSHIP OF LISA BROSAMER

Docket No. 346394. Submitted May 8, 2019, at Detroit. Decided May 16,

2019, at 9:00 a.m.

As guardian of a protected individual, Lisa Brosamer, Patricia

Brosamer petitioned the Lenawee County Probate Court for an ex

parte order, seeking to enjoin the Lenawee Community Mental

Health Authority under MCL 330.1536(1) from moving Lisa from

one community residential placement to another on the basis that

the transfer would be detrimental to her. Lisa was cared for at

home by her mother from 1961 through 2006, after which Lisa

was transitioned to a residential treatment facility; Lisa lived in

two other facilities before being transferred to College Avenue in

2009. In 2018, petitioner objected under MCL 330.1536(2) when

respondent sought to transfer Lisa to Westhaven, a different

community placement. At the hearing on the petition after the

court, Gregg P. Iddings, J., had issued the petition ex parte,

respondent provided three afﬁdavits from its employees indicat-

ing that the transfer would not be detrimental to Lisa, and

petitioner presented four witnesses directly familiar with Lisa,

all of whom testiﬁed that the planned move would be detrimental

to her. Relying on the testimony of petitioner’s witnesses, who

were most familiar with Lisa’s needs, the probate court continued

the injunction, concluding that under MCL 330.1536(1), the

transfer could not occur because it would be detrimental to Lisa.

Respondent appealed.

The Court of Appeals held:

Under MCL 330.1536(1), a resident in a facility may be trans-

ferred to any other facility, or to a hospital operated by the

Department of Community Health, if the transfer would not be

detrimental to the resident and the responsible community mental

health services program approves the transfer. MCL 330.1536(2) in

turn provides that the resident and his or her nearest relative or

guardian must be notiﬁed at least 7 days before any transfer,

except that a transfer may be effected earlier if necessitated by an

emergency; the department must provide an opportunity to appeal

the transfer if the resident, his or her nearest relative, or guardian

objects to the transfer. MCL 330.1536 balances the needs of

2019] In re B

ROSAMER

267

consumers with the limited resources of the department, but the

statute clearly does not allow a consumer to be transferred if it

would be detrimental to that consumer. MCL 330.1536 does not

grant guardians the right to veto the decisions of mental health

authorities; instead, the focus is on whether, under the presented

facts, the transfer would be detrimental to the resident’s well-

being. In that regard, although third parties and the public have

an interest in the department’s ability to transfer consumers and

balance its resources for the beneﬁt of the community, the interests

of those third parties are not relevant to whether a transfer is

permissible for a particular consumer. In this case, all four wit-

nesses, who had longstanding histories with Lisa, testiﬁed that the

transfer would be detrimental to her. In contrast, respondent’s

afﬁants did not have a history with Lisa comparable to petitioner’s

witnesses. Under the facts of the case, the probate court did not

clearly err when it found that the proposed transfer would be

detrimental to Lisa under MCL 330.1536(1). The probate court also

did not abuse its discretion by permanently enjoining respondent

from moving Lisa from her current residential placement without

court approval because (1) the interest to be protected was Lisa’s

well-being, (2) there was substantial testimony that the transfer

would be detrimental to Lisa’s well-being because she was well-

adjusted and thriving at College Avenue, (3) in light of the fact that

respondent continued to argue, contrary to the evidence, that the

transfer would not be detrimental, a permanent injunction was the

most adequate means of ensuring that respondent did not transfer

Lisa, and (4) the injunction would not be impractical to enforce and

respondent could seek to have the injunction lifted if a transfer

arose that would not be detrimental to Lisa’s well-being.

Afﬁrmed.

ENTAL

EALTH

— T

RANSFERS OF

ESIDENTS

— A

PPEAL OF

RANSFERS

—

RANSFER

ETRIMENTAL TO

ESIDENT

MCL 330.1536 provides that (1) a resident in a facility may be

transferred to any other facility, or to a hospital operated by the

Department of Community Health, if the transfer would not be

detrimental to the resident and the responsible community men-

tal health services program approves the transfer, (2) the resident

and his or her nearest relative or guardian must be notiﬁed at

least 7 days before any transfer, except that a transfer may be

effected earlier if necessitated by an emergency, and (3) the

department must provide an opportunity to appeal the transfer if

the resident, his or her nearest relative, or guardian objects to the

transfer; MCL 330.1536 balances the needs of consumers with the

limited resources of the department; the statute does not grant

268 328

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guardians the right to veto the decisions of mental health

authorities; instead, the focus is on whether, under the presented

facts, the transfer would be detrimental to the resident’s well-

being; although third parties and the public have an interest in

the department’s ability to transfer consumers and balance its

resources for the beneﬁt of the community, the interests of those

third parties are not relevant to whether a transfer is permissible

for a particular consumer.

Thomas L. Stringer for petitioner.

Abbott Nicholson, PC (by John R. McGlinchey and

Kristen L. Baiardi) for respondent.

Before: R

EDFORD

, P.J.,and M

ARKEY

andK. F. K

ELLY

, JJ.

URIAM

. In this guardianship case, respondent,

the Lenawee Community Mental Health Authority,

appeals as of right the probate court’s order enjoining

respondent from transferring a protected individual,

Lisa Brosamer (Lisa), from one community residential

placement (College Avenue, where Lisa has resided

since 2009) to another residential placement (West-

haven). Respondent contends on appeal that (1) the

probate court erroneously applied MCL 330.1536 and

effectively rewrote the statute and (2) the probate

court abused its discretion by granting permanent

injunctive relief. We disagree and afﬁrm.

I. BASIC FACTS

Lisa is severely intellectually disabled and unable to

care for herself or manage her estate. Her mother was

Lisa’s predecessor guardian and cared for Lisa in her

home from Lisa’s birth on February 22, 1961, through

October 3, 2006, when, because of her mother’s declin-

ing health, Lisa transitioned to a residential treatment

facility at 3376 Marvin Drive in Adrian. On March 7,

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2008, Lisa was transferred to a different facility at 451

South Main Street in Adrian. Finally, on March 1, 2009,

Lisa was transferred to her current residence at College

Avenue. Petitioner, Patricia Brosamer, was appointed

successor plenary guardian of Lisa on December 2,

2009.

On September 26, 2018, petitioner ﬁled the petition

that led to this appeal. Petitioner contended that

respondent was planning to transfer Lisa from College

Avenue to another community placement at West-

haven and sought an ex parte order denying the

transfer on the ground that it would be detrimental to

Lisa pursuant to MCL 330.1536. The probate court

granted ex parte relief and later held a full hearing. In

lieu of testimony, respondent presented three afﬁda-

vits from its employees indicating that the transfer

would not be detrimental to Lisa and that respondent

was, therefore, statutorily entitled to move forward

with the transfer. Petitioner presented four witnesses

familiar with Lisa’s situation who all testiﬁed that the

planned move would be detrimental to Lisa. Lisa’s

lawyer-guardian ad litem indicated that, in his opin-

ion, the probate court should favor the testimony of

petitioner because of petitioner’s heavy involvement in

the welfare of Lisa and because petitioner’s history

with Lisa made petitioner the most capable of predict-

ing the outcome of a transfer. The probate court sum-

marized the afﬁdavits provided by respondent and the

testimony from the evidentiary hearing and concluded

that the “move certainly does appear to be something

that would be detrimental to Lisa.”

II. APPLICATION OF MCL 330.1536

On appeal, respondent argues that the probate court

clearly erred by determining that transferring Lisa

270 328 M

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from College Avenue would be detrimental to her

well-being. It argues that the probate court judicially

revised MCL 330.1536 and created a right for plenary

guardians to veto the decisions of mental health au-

thorities when the Legislature did not intend for such

a veto to exist. We disagree. Although respondent

frames its argument on appeal as one regarding statu-

tory interpretation, respondent’s argument actually

concerns the probate court’s factual ﬁndings.

The probate court’s factual ﬁndings are reviewed for

clear error and its dispositional rulings for an abuse of

discretion. In re Lundy Estate, 291 Mich App 347, 352;

804 NW2d 773 (2011). A ﬁnding is clearly erroneous

when, even though there is evidence to support it, “a

reviewing court is left with a deﬁnite and ﬁrm convic-

tion that a mistake has been made[.]” In re Vansach

Estate, 324 Mich App 371, 385; 922 NW2d 136 (2018)

(quotation marks and citation omitted). “An abuse of

discretion occurs when the court’s decision falls outside

the range of reasonable and principled outcomes” or

when the court fails “to operate within the correct legal

framework.” Id. at 385 (quotation marks and citation

omitted). Further, “[t]he reviewing court will defer to

the probate court on matters of credibility, and will give

broad deference to ﬁndings made by the probate court

because of its unique vantage point regarding wit-

nesses, their testimony, and other inﬂuencing factors

not readily available to the reviewing court.” In re

Erickson Estate, 202 Mich App 329, 331; 508 NW2d 181

(1993).

MCL 330.1536 provides:

(1) A resident in a center may be transferred to any

other center, or to a hospital operated by the department,

if the transfer would not be detrimental to the resident

2019] In re B

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and the responsible community mental health services

program approves the transfer.

(2) The resident and his or her nearest relative or

guardian shall be notiﬁed at least 7 days prior to any

transfer, except that a transfer may be effected earlier if

necessitated by an emergency. In addition, the resident

may designate 2 other persons to receive the notice. If the

resident, his or her nearest relative, or guardian objects to

the transfer, the department shall provide an opportunity

to appeal the transfer.

(3) If a transfer is effected due to an emergency, the

required notices shall be given as soon as possible, but not

later than 24 hours after the transfer.

[1]

The evidence in this case primarily came from seven

people: three afﬁants and four testifying witnesses. Of

those seven people, only four of them provided evidence

that they had either a history with Lisa or daily

interaction with Lisa such that they might reasonably

be capable of opining as to how the proposed transfer

might affect Lisa’s well-being. All four of the witnesses

demonstrated a personal history with Lisa, and all of

them concluded that transferring Lisa to Westhaven

would be detrimental.

Petitioner testiﬁed that Lisa had thrived at College

Avenue largely because of the relationships she had

formed with residents and staff, including forming a

close bond with a resident who had resided at College

Avenue even longer than Lisa. Petitioner was able to

testify that in light of her history with and personal

knowledge of Lisa, starting anew at Westhaven would

be detrimental to Lisa and would cause her to regress.

MCL 330.1536 has been amended and, effective March 28, 2019, the

word “center” in Subsection (1) changed to “facility,” and the phrase

‘‘prior to’’ in Subsection (2) changed to “before.” MCL 330.1536, as

amended by 2018 PA 596. All references in this opinion to the statute are

to the version in effect when the trial court issued its order.

272 328

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267 [May

Notably, Lisa’s lawyer-guardian ad litem, who has

been involved in the case since at least 2011, reported

that because of petitioner’s “extensive involvement

with [Lisa] over the years,” petitioner was in a superior

position to any of the other witnesses or afﬁants “to

know what [would] be detrimental to Lisa.”

Lisa’s doctor of 14 years testiﬁed that Lisa relies on

familiarity with those around her to comfort and calm

her and that given Lisa’s age and disability, Lisa would

“not be able to adjust” and did not have the “coping

mechanism” to handle a transfer from College Avenue.

A direct-care staff member at College Avenue, who had

known Lisa for 16 years and worked directly with Lisa

on a regular basis for one year, testiﬁed that Lisa relied

on familiarity with staff and peers, that Lisa would not

respond well to signiﬁcant changes, and that transfer-

ring Lisa would be to Lisa’s detriment. Finally, a

former manager at Westhaven testiﬁed that she had

known Lisa for 20 years, that Westhaven was not as

well suited for Lisa as College Avenue, and that there

was a particularly high risk of Lisa having altercations

with an aggressive individual at Westhaven if Lisa

were to be transferred.

None of the afﬁdavits provided by respondent sug-

gested that the afﬁants had a history with Lisa com-

parable to petitioner’s witnesses. Respondent’s execu-

tive director reported that she was responsible for over

1,850 consumers of mental health services and that the

determination that Lisa was prepared to transfer to

Westhaven was not personally made by the executive

director, but by unnamed “expert” staff. In another

afﬁdavit, respondent’s supervisor of developmentally

disabled consumers did not speak to her level of

personal knowledge of Lisa and instead spoke primar-

ily to the fact that the supervisor had communicated

2019] In re B

ROSAMER

273

with petitioner on several occasions about the proposed

transfer. Finally, Lisa’s case manager testiﬁed that she

had only been assigned to Lisa’s case since June 18,

2018, which, coincidentally, was the same month that

respondent determined that another consumer needed

a bed at College Avenue and the same month that

respondent determined Lisa could be transferred. Pe-

titioner testiﬁed that the case manager was assigned

to the case after Lisa’s former case manager of 10 years

retired. Petitioner also testiﬁed that she asked respon-

dent’s executive director to replace the new case man-

ager because petitioner could not understand how the

case manager could conclude that a transfer was

appropriate while being so new and unfamiliar with

Lisa.

That the case manager was not as familiar with Lisa

as petitioner’s witnesses is evidenced by comparing the

case manager’s afﬁdavit with the testimony of peti-

tioner, the former Westhaven manager, and the direct-

care staff member at College Avenue. As the only

evidence that one of Lisa’s visits to Westhaven had

gone well, Lisa’s case manager stated that “Lisa came

into the home and gave everyone hugs.” However, the

former Westhaven manager described Lisa as a “hug-

ger,” and the College Avenue direct-care staff member

indicated that Lisa giving “a couple of the staff mem-

bers that worked for Westhaven a hug” was not indica-

tive of Lisa being interactive or otherwise having a

productive visit at Westhaven. Additionally, petitioner

characterized the case manager’s statement as an

exaggeration, noting that Lisa hugged the manager

at Westhaven—the same manager who testiﬁed at

trial—because Lisa recognized her.

Overall, witnesses deeply familiar with Lisa testi-

ﬁed that transferring Lisa from College Avenue would

274 328 M

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267 [May

be detrimental to her well-being. Far from judicially

revising MCL 330.1536 or creating a “veto right,” the

probate court narrowly tailored its role in the case to

the only issue it was statutorily authorized to deter-

mine: whether respondent’s proposed transfer of Lisa

would be detrimental to Lisa’s well-being. We are not

left with a deﬁnite and ﬁrm conviction that a mistake

was made. To the contrary, the probate court’s ﬁnding

with respect to detriment was well supported by the

evidence.

III. PERMANENT INJUNCTION

Respondent argues that the probate court abused its

discretion by granting a permanent injunction and

that the injunction went too far because it enjoined

respondent not just from transferring Lisa to West-

haven, but from transferring Lisa anywhere else in the

future. We disagree.

As a preliminary matter, we note that the parties

disagree about whether the probate court’s order

serves as a permanent injunction. For purposes of this

appeal, we assume that the order serves as a perma-

nent injunction from transferring Lisa to any facility at

any time without court approval.

“A trial court’s decision to grant or deny injunctive

relief is reviewed for an abuse of discretion.” Janet

Travis, Inc v Preka Holdings, LLC, 306 Mich App 266,

274; 856 NW2d 206 (2014). The court abuses its

discretion when it chooses an outcome outside the

range of reasonable and principled outcomes. Vansach,

324 Mich App at 385. “The Court of Appeals has

succinctly stated that injunctive relief is an extraordi-

nary remedy that issues only when justice requires,

there is no adequate remedy at law, and there exists a

real and imminent danger of irreparable injury.”

2019] In re B

ROSAMER

275

Pontiac Fire Fighters Union Local 376 v Pontiac, 482

Mich 1, 8; 753 NW2d 595 (2008) (quotation marks and

citations omitted). In determining whether a perma-

nent injunction was properly issued, this Court consid-

ers:

“(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

defendant 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 of judgment.” [Janet Travis, 306 Mich App at 274,

quoting Wayne Co Employees Retirement Sys v Wayne Co,

301 Mich App 1, 28; 836 NW2d 279 (2013), aff’d in part

and vacated in part 497 Mich 36 (2014).]

“Additionally, ‘[c]ourts balance the beneﬁt of an injunc-

tion to a requesting plaintiff against the damage and

inconvenience to the defendant, and will grant an

injunction if doing so is most consistent with justice

and equality.’ ” Dep’t of Environmental Quality v

Gomez, 318 Mich App 1, 34-35; 896 NW2d 39 (2016)

(alteration in original), quoting Janet Travis, 306 Mich

App at 274-275.

The probate court did not abuse its discretion by

granting permanent injunctive relief. With respect to

the nature of the interest the injunction serves to

protect, it was Lisa’s overall well-being. There was a

substantial amount of testimony that Lisa’s transfer to

Westhaven would be detrimental to her well-being, not

simply because Westhaven was less suited to Lisa’s

needs than College Avenue, but because Lisa was

well-adjusted, familiar, and thriving at College Av-

enue, and for that reason, Lisa’s transfer to any other

facility would be detrimental. With respect to the

276 328 M

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267 [May

relative adequacy of the permanent injunction versus

other potential remedies, respondent continues to ar-

gue, in contradiction to the evidence, that Lisa’s trans-

fer from College Avenue would not be detrimental, and

thus, the injunctive relief would seem the most ad-

equate means of ensuring that respondent does not

transfer Lisa to the detriment of her well-being. There

is no evidence that petitioner made any unreasonable

delays in ﬁling her petition for an injunction, nor is

there evidence that petitioner engaged in any form of

misconduct.

Being sensitive to the fact that respondent must walk

the tightrope of balancing the needs of consumers—

sometimes against one another—with the limited re-

sources that it has, MCL 330.1536 is clear that respon-

dent cannot transfer a consumer if the transfer would be

detrimental to that consumer. Thus, the relative hard-

ship on respondent that the injunction imposes is no

greater than the hardship imposed by MCL 330.1536

itself. Contrarily, the hardship Lisa may endure if she

were to be transferred to the detriment of her well-being

is signiﬁcant. Additionally, although third parties and

the public have an interest in respondent’s ability to

transfer consumers and balance its resources for the

beneﬁt of the community, Lisa has the right to be free of

detrimental transfers, and with respect to MCL

330.1536, the interests of third parties in transfers that

might be detrimental to Lisa are not relevant to

whether the transfer is permissible. We note that noth-

ing bars respondent from seeking to have the injunction

lifted if a transfer that would not be detrimental to

Lisa’s well-being arises. Finally, the injunction will not

be impractical to enforce.

In light of these factors, and considering there was

no adequate remedy at law to ensure that respondent

2019] In re B

ROSAMER

277

would not be transferred, the probate court’s injunc-

tion was not outside the range of reasonable and

principled outcomes.

Afﬁrmed.

EDFORD

, P.J., and M

ARKEY

and K. F. K

ELLY

, JJ.,

concurred.

278 328 M

ICH

267 [May

SMITH v SMITH

Docket No. 342200. Submitted May 8, 2019, at Detroit. Decided May 16,

2019, at 9:05 a.m.

Plaintiff, Allen Smith, and defendant, Robin Smith, entered into a

consent judgment of divorce in the Oakland Circuit Court, Family

Division, in April 2016. In November 2017, plaintiff moved to

modify the amount of spousal support, asserting that he had

retired from his job and that the decrease in his wages constituted

a change of circumstances that warranted a modiﬁcation of

spousal support. The divorce judgment provided that a change in

plaintiff’s “base wages . . . may represent a change in circum-

stance warranting modiﬁcation of Spousal Support.” The divorce

judgment further provided that it incorporated a Uniform Spou-

sal Support Order (USSO); the language of the USSO provided

that the order would continue until the death of plaintiff or his

remarriage, but it did not provide any other language or allude to

a change in circumstances as a basis to revisit or discontinue the

spousal-support award. The USSO was subsequently amended to

reﬂect a revised effective date, but like the ﬁrst USSO, the

amended USSO failed to include any language indicating that a

change in circumstances could serve as a basis to modify or

discontinue spousal support. The trial court, Victoria A. Valen-

tine, J., denied plaintiff’s motion to modify spousal support, citing

two reasons. First, the court determined that the spousal support

provisions in the divorce judgment and the USSO conﬂicted with

each other with respect to whether a change in circumstances

could support a modiﬁcation of spousal support; therefore, accord-

ing to the court, the USSO controlled under MCR 3.211 and

support could not be modiﬁed or terminated until defendant’s

death or remarriage. Second, the trial court concluded that there

had been no change in circumstances because plaintiff’s retire-

ment had been contemplated when he settled the case, yet the

divorce judgment did not mention that “retirement” constituted a

change in circumstances. Plaintiff sought leave to appeal, which

the Court of Appeals granted.

The Court of Appeals held:

2019] S

MITH V

MITH

279

1. MCL 552.28 generally authorizes a court to modify an

award of spousal support, and it provides a statutory right to

litigants to seek modiﬁcation of spousal support. The parties are

free, however, to forgo their statutory rights by clearly expressing

in a settlement their intent to render a spousal-support award

ﬁnal, binding, and nonmodiﬁable. In this case, the record con-

tained no afﬁrmative expression of an intent by the parties to

prohibit a modiﬁcation of spousal support based on a change in

circumstances.

2. MCR 3.211(D)(1) provides that a USSO shall govern if the

terms of the divorce judgment or order conﬂict with the USSO.

However, in this case, the USSO did not conﬂict with the divorce

judgment; rather, the USSO was a partial or incomplete expres-

sion of the parties’ intent and agreement, which was plainly and

unambiguously set forth in the divorce judgment: the judgment

expressly allowed either party to seek modiﬁcation of spousal

support on a showing of a change in circumstances. Moreover, the

divorce judgment provided that it “incorporates” the USSO,

which effectively made the USSO part of the divorce judgment.

The divorce judgment evinced the parties’ intent to allow consid-

eration of a change in spousal support when there is a change in

circumstances; accordingly, the terms of the divorce judgment

had to be enforced. The trial court erred by determining that a

change in circumstances could not be considered for purposes of

modifying spousal support.

3. Generally speaking, retirement may constitute a change in

circumstances for purposes of modifying an order of spousal

support. In this case, the divorce judgment provided that a change

in plaintiff’s “base wages . . . may represent a change in circum-

stances warranting modiﬁcation of Spousal Support.” Contrary to

the trial court’s view, this provision plainly and unambiguously

could encompass plaintiff’s retirement depending on how his

retirement affected his base wages. Even though the parties did

not include the term “retirement” in their consent judgment, the

concept that retirement would terminate one’s “base wages” would

be generally understood. Moreover, even absent the base-wages

provision, an ex-spouse’s ensuing retirement may qualify as a

change in circumstances. Parties who reach an agreement on

spousal support and allow for future modiﬁcation of support based

on a change in circumstances cannot reasonably be expected to list

in the agreement all the possible events that could constitute a

change in circumstances. Because the divorce judgment provided

that a change in plaintiff’s base wages “may” represent a change in

circumstances warranting modiﬁcation of spousal support, how-

280 328

ICH

279 [May

ever, that change in base wages does not necessarily amount to a

change in circumstances justifying a modiﬁcation of spousal sup-

port. Accordingly, while the trial court clearly erred by denying

plaintiff’s motion on the basis that the divorce judgment did not

speciﬁcally refer to “retirement” as constituting a change in cir-

cumstances, a remand was appropriate to allow the trial court to

consider the issue anew.

Reversed and remanded for further proceedings.

Brooke L. Archie for Allen Smith.

Robin Smith in propria persona.

Before: R

EDFORD

, P.J., and M

ARKEY

and K. F. K

ELLY

JJ.

ARKEY

, J. In this postjudgment litigation, plaintiff

appeals by leave granted the trial court’s order denying

his motion to modify spousal support that had been

awarded to defendant pursuant to a consent judgment

of divorce. We reverse and remand for further proceed-

ings.

In April 2016, a consent judgment of divorce was

entered, and the judgment provided, in relevant part,

as follows:

The Plaintiff is not awarded spousal support and his

claim for spousal support is forever barred. The Defendant

is awarded spousal support for $2,500.00 per month. This

amount shall terminate upon death, remarriage or a

showing of a change in circumstances. . . .

This Judgment incorporates the Uniform Spousal Sup-

port Order [USSO] which was entered at trial, by consent

of the parties, on March 31, 2016 and is as described in

this Judgment.

* * *

It is agreed, that Defendant may not use an increase in

Plaintiff’s overtime wages as a basis for modiﬁcation. It is

2019] S

MITH V

MITH

281

further agreed, that should Plaintiff have a change in his

base wages it may represent a change in circumstance

warranting modiﬁcation of Spousal Support. [Emphasis

added.]

The parties and the parties’ attorneys signed the

consent divorce judgment.

The USSO described in the judgment of divorce,

which was also executed by the parties and their

attorneys, indicated that it would “continue[] until the

death of the payee or until the earliest of the following

events: . . . Remarriage of the payee.”

No other lan-

guage is set forth, and no other boxes are checked in

the USSO; it does not allude to a “change in circum-

stances” as a basis to revisit or discontinue the

spousal-support award. The USSO had an effective

date of April 1, 2016. Subsequently, on plaintiff’s mo-

tion, the trial court entered an order stating that the

effective date of the spousal-support award must be

changed to June 1, 2016, and it directed plaintiff’s

counsel to prepare an amended USSO. An amended

USSO with the revised effective date was entered, but

like the ﬁrst USSO, it failed to include any language

indicating that a change in circumstances could serve

as a basis to discontinue or modify spousal support.

In November 2017, plaintiff moved to modify the

spousal support, asserting that he was now 65 years

old and had retired from his job, which resulted in a

“substantial decrease in wages . . . .” Plaintiff argued

that the decrease in wages constituted a change of

circumstances warranting a modiﬁcation of spousal

support. Plaintiff noted that the divorce judgment

speciﬁcally contemplated “a change in his base wages”

The “remarriage” provision is reﬂected in a checked box on a

standard State Court Administrative Ofﬁce form. Boxes for “Death of

the payer” and “Other” are not checked or marked.

282 328

ICH

279 [May

as being a potential basis to modify the amount of

spousal support. The trial court denied the motion for

two reasons. First, the court determined that the

spousal support provisions in the consent divorce judg-

ment and the USSO conﬂicted with each other with

respect to whether a change in circumstances could

support a modiﬁcation of spousal support. Therefore,

according to the court, the USSO controlled under

MCR 3.211 and support could not be modiﬁed or

terminated until defendant’s death or remarriage. Sec-

ond, the trial court concluded that there had been no

change in circumstances because plaintiff’s retirement

had been contemplated when he settled the case, yet

there was no provision in the judgment indicating that

“retirement” could constitute a change in circum-

stances. An order was subsequently entered denying

plaintiff’s motion for the reasons stated on the record

at the hearing. Plaintiff appeals by leave granted.

Smith v Smith, unpublished order of the Court of

Appeals, entered June 8, 2018 (Docket No. 342200).

We review de novo the interpretation of the court

rules, Hyslop v Wojjusik, 252 Mich App 500, 505; 652

NW2d 517 (2002), as well as the construction and

application of contractual clauses, Rory v Continental

Ins Co, 473 Mich 457, 464; 703 NW2d 23 (2005).

Plaintiff ﬁrst contends that the trial court erred by

effectively concluding that the spousal-support award

was nonmodiﬁable. MCL 552.28 generally authorizes a

court to modify an award of spousal support, and it

provides a statutory right to litigants to seek modiﬁ-

cation of spousal support. Allard v Allard (On Re-

mand), 318 Mich App 583, 599; 899 NW2d 420 (2017);

Staple v Staple, 241 Mich App 562, 568; 616 NW2d 219

(2000). The parties are free, however, to forgo their

statutory rights by clearly expressing in a settlement

2019] S

MITH V

MITH

283

their intent to render a spousal-support award ﬁnal,

binding, and nonmodiﬁable. Allard, 318 Mich App at

599; Staple, 241 Mich App at 568. In this case, the

consent judgment reﬂects just the contrary, and even

the USSO does not contain such express language. The

record contains no afﬁrmative expression of an intent

by the parties to prohibit a modiﬁcation of spousal

support based on a change in circumstances.

MCR 3.211(D)(1) does provide that a “Uniform Sup-

port Order shall govern if the terms of the judgment or

order conﬂict with the Uniform Support Order.” (Em-

phasis added.) If the USSO in this case speciﬁcally

provided that spousal support were nonmodiﬁable or

that a change in circumstances would not justify modi-

ﬁcation of spousal support, we would certainly agree

that a “conﬂict” would exist with the judgment of

divorce. But the USSO is more accurately character-

ized as simply being a partial or incomplete expression

of the parties’ intent and agreement, which was plainly

and unambiguously set forth in the divorce judgment:

the judgment expressly allows either party to seek

modiﬁcation of spousal support on a showing of a

change in circumstances. Moreover, we take note of the

fact that the judgment of divorce provides that it

“incorporates” the USSO, thereby effectively making it

part of the divorce judgment. Under these circum-

stances, it is difﬁcult to logically conclude that the

judgment of divorce conﬂicts with the USSO. More-

over, the divorce judgment’s language that the amount

of spousal support terminates upon defendant’s death

or remarriage is consistent with the USSO’s language

that the support order continues until defendant’s

death or remarriage.

In sum, the consent divorce judgment so clearly

evinces the parties’ intent to allow consideration of a

284 328 M

ICH

279 [May

change in spousal support when there is a change in

circumstances that we are compelled to hold that the

terms of the judgment of divorce must be enforced. See

Lafﬁn v Lafﬁn, 280 Mich App 513, 517; 760 NW2d 738

(2008) (“A consent judgment is in the nature of a

contract, and . . . [i]f no reasonable person could dis-

pute the meaning of ordinary and plain contract lan-

guage, the Court must accept and enforce contractual

language as written . . . .”). Accordingly, the trial court

erred by determining that a change in circumstances

could not be considered for purposes of modifying

spousal support.

We next address the trial court’s ruling that, regard-

less of MCR 3.211, there was no change in circum-

stances because plaintiff had contemplated retirement

when the settlement was negotiated. Yet, the judgment

makes no reference to retirement in connection with a

change in circumstances. We ﬁrst note that plaintiff’s

appellate brief provides little analysis of this issue;

plaintiff only mentions it in passing in a two-sentence

footnote.

Plaintiff states:

Although it was not the primary basis of the trial

court’s holding, the court did state that it believed that

anticipating or contemplating retirement during the par-

ties’ judgment negotiations necessarily meant that retire-

ment could not constitute a change of circumstance. To the

contrary, the Staple [C]ourt underscores the importance of

anticipating circumstances that may change for either

party.

Given our ruling, we ﬁnd it unnecessary to reach plaintiff’s addi-

tional argument that the trial court’s application of MCR 3.211(D)(1)

violated and undermined public policy.

“When an appellant fails to dispute the basis of a lower court’s

ruling, we need not even consider granting the relief being sought by the

appellant.” Denhof v Challa, 311 Mich App 499, 521; 876 NW2d 266

(2015).

2019] S

MITH V

MITH

285

In reviewing plaintiff’s brief, it appears that it is

almost entirely devoted to challenging the trial court’s

ruling under MCR 3.211. Although some of plaintiff’s

arguments may have been intended to address both

components of the court’s ruling, plaintiff’s brief is

unclear in parts. We will, however, give plaintiff the

beneﬁt of the doubt and address the trial court’s ruling

that there was no change in circumstances.

This Court reviews “the trial court’s factual ﬁndings

relating to the award or modiﬁcation of [spousal sup-

port] for clear error.” Moore v Moore, 242 Mich App 652,

654; 619 NW2d 723 (2000). “A ﬁnding is clearly erro-

neous if the appellate court is left with a deﬁnite and

ﬁrm conviction that a mistake has been made.” Id. at

654-655. When a trial court’s ﬁndings are not clearly

erroneous, we must then decide whether the disposi-

tional ruling was fair and equitable in light of the facts.

Id. at 655. The Moore panel observed:

The main objective of alimony is to balance the incomes

and needs of the parties in a way that will not impoverish

either party. Alimony is to be based on what is just and

reasonable under the circumstances of the case. An ali-

mony award can be modiﬁed upon a showing of changed

circumstances. The modiﬁcation of an alimony award

must be based on new facts or changed circumstances

arising since the judgment of divorce. [Id. at 654 (citations

omitted).]

Although it is somewhat unclear, the trial court

apparently found that the circumstances had not

changed because plaintiff had contemplated retire-

ment at the time of the settlement negotiations. Yet the

divorce judgment contains no language expressly indi-

cating that retirement could or would constitute a

change in circumstances. Generally speaking, we note

that retirement may constitute a change in circum-

stances for purposes of modifying an order of spousal

286 328 M

ICH

279 [May

support. See McCallister v McCallister, 205 Mich App

84, 86; 517 NW2d 268 (1994) (“We agree with plaintiff

that his retirement constitutes changed circum-

stances.”).

In the instant case, the judgment of divorce provided

that a change in plaintiff’s “base wages . . . may repre-

sent a change in circumstances . . . .” (Emphasis

added.) This provision, contrary to the trial court’s

view, plainly and unambiguously could encompass

plaintiff’s retirement depending on how his retirement

affected his base wages. Retirement from employment

essentially means—and is understood to mean—an

end to one’s employment wages. Even though the

parties did not include the term “retirement” in their

consent judgment, we have to conclude that this con-

cept most certainly would be generally understood, i.e.,

that retirement would terminate one’s “base wages.”

Moreover, even absent the base-wages provision, an

ex-spouse’s ensuing retirement may qualify as a

change in circumstances. McCallister, 205 Mich App at

86. Parties who reach an agreement on spousal sup-

port and allow for future modiﬁcation of support based

on a change in circumstances cannot reasonably be

expected to list in the agreement all the possible events

that could constitute a change in circumstances.

The parties’ agreement also clearly provided that a

change in plaintiff’s base wages “may” represent a

change in circumstances warranting modiﬁcation of

spousal support. Use of the term “may” reﬂected an

agreement by the parties that a change in plaintiff’s

base wages would not necessarily amount to a change

in circumstances justifying a modiﬁcation of spousal

support. Accordingly, while the trial court clearly erred

by denying plaintiff’s motion on the basis that the

divorce judgment did not speciﬁcally refer to “retire-

2019] S

MITH V

MITH

287

ment” as constituting a change in circumstances, we

conclude that a remand is appropriate to allow the trial

court to consider the issue anew. In examining whether

plaintiff’s retirement and the concomitant decrease in

his income qualify as a change in circumstances war-

ranting a modiﬁcation in spousal support, the trial

court should consider the principles recited earlier

regarding spousal support, i.e., support must be just

and reasonable under the circumstances and should

balance the incomes and needs of the parties in a way

that will not impoverish either party. Moore, 242 Mich

App at 654.

We reverse and remand for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion. As the prevailing party, plaintiff may tax costs

pursuant to MCR 7.219.

EDFORD

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

ELLY

, J., concurred with

ARKEY

, J.

288 328 M

ICH

279 [May

PEOPLE v PARKMALLORY

Docket No. 342546. Submitted May 8, 2019, at Lansing. Decided

May 16, 2019, at 9:10 a.m. Court of Appeals judgment vacated

and case remanded to the Saginaw Circuit Court for an eviden-

tiary hearing 505 Mich 866 (2019).

Michael R. Parkmallory was convicted following a jury trial in the

Saginaw Circuit Court, Darnell Jackson, J., of being a felon in

possession of a ﬁrearm (felon-in-possession), MCL 750.224f(1),

and possession of a ﬁrearm during the commission of a felony,

second offense (felony-ﬁrearm), MCL 750.227b(1), following an

incident on New Year’s Eve, December 31, 2016, in which defen-

dant and his girlfriend took turns ﬁring a gun into the air. Before

the trial began, defendant’s lawyer stipulated that defendant was

ineligible to possess the ﬁrearm because defendant had a prior

conviction of receiving and concealing a stolen motor vehicle in

June 2009. At trial, defendant’s lawyer argued that defendant

never possessed the gun because he only touched it brieﬂy when

his girlfriend tossed it to him in a panic. The jury convicted

defendant as charged. Defendant appealed, arguing that his

convictions should be reversed because his lawyer provided

constitutionally ineffective assistance by stipulating that he was

ineligible to possess the gun.

The Court of Appeals held:

1. MCR 7.216(A)(4) provides that the Court of Appeals may, at

any time, in addition to its general powers, in its discretion, and

on terms it deems just, permit amendments, corrections, or

additions to the transcript or record. In this case, defendant failed

to support his claims with documentary evidence that was in the

record. However, the documents defendant provided were copies

of court orders signed by the judge presiding over the 2009 case,

which are the type of documents that a court may take judicial

notice of under MRE 201(b). Accordingly, under the present

circumstances, the record was expanded to include the copies of

court orders.

2. To establish that a lawyer provided ineffective assistance,

a defendant must establish (1) that the lawyer’s performance

fell below an objective standard of reasonableness and (2) that

2019] P

EOPLE V

ARKMALLORY

289

the defendant was prejudiced by the lawyer’s deﬁcient perfor-

mance, i.e., that there is a reasonable probability that but for

the lawyer’s unprofessional errors, the result of the proceeding

would have been different. Under MCL 750.224f(1), a person

convicted of a felony shall not possess, use, transport, sell,

purchase, carry, ship, receive, or distribute a ﬁrearm in this

state until the expiration of three years after all of the following

circumstances exist: (a) the person has paid all ﬁnes imposed for

the violation, (b) the person has served all terms of imprison-

ment imposed for the violation, and (c) the person has success-

fully completed all conditions of probation or parole imposed for

the violation. Under MCL 750.224f(1), the right to possess a

ﬁrearm is automatically restored when the statutory conditions

are satisﬁed. The defendant bears the burden of producing

evidence that his right to possess a ﬁrearm has been restored. In

this case, rather than attempting to satisfy that burden, defen-

dant’s lawyer stipulated that defendant was, essentially, ineli-

gible to possess a gun because he committed a felony. As a result,

the prosecution was not required to prove the lack of restoration

of ﬁrearm rights beyond a reasonable doubt, as it would have

been obligated to do had the defense satisﬁed its burden of

production. Accordingly, defendant’s lawyer provided constitu-

tionally ineffective assistance when he failed to present existing

evidence supporting a ﬁnding that defendant’s right to possess a

ﬁrearm had been automatically restored under MCL

750.224f(1). The order of conviction and sentence entered on

September 21, 2011, made three things apparent: (1) no attor-

ney fees, court costs, restitution, crime-victim fees, supervision

fees, or state minimum costs were imposed, (2) defendant was

sentenced to 110 days in jail with credit for 110 days served, and

(3) defendant’s probation was “closed w/o Improvement.” There-

fore, because all three requirements under MCL 750.224f(1)

were satisﬁed by the September 21, 2011 order, and because

more than three years elapsed between September 21, 2011 and

December 31, 2016, the order was sufﬁcient to establish that

when defendant committed the instant offense he was, in fact,

eligible to possess a ﬁrearm because his right to do so was

automatically restored under MCL 750.224f(1). Defendant was

unconditionally discharged, free from supervision, and had no

lingering probation requirements to complete. Although the

court order provided that defendant’s probation was “closed w/o

Improvement,” that notation had no bearing on whether he

successfully completed all conditions of probation. Even to the

extent that defendant did not perfectly complete all conditions of

his probation—as evidenced by multiple probation-violation

290 328

ICH

289 [May

hearings—that failure had no bearing on whether he was

nevertheless successful in completing all conditions of probation

by virtue of the fact that after the discharge was entered by the

trial court, no conditions of probation remained for him to

complete. Justice K

ELLY

’s reasoning on this point in a dissenting

statement in People v Sessions, 747 Mich 1120 (2006), was

persuasive and was adopted in this case: a felon successfully

completes all conditions of probation for purposes of MCL

750.224f(1)(c) when the court discharges the felon from proba-

tion. In this case, defendant successfully completed all condi-

tions of probation and was unconditionally discharged. Accord-

ingly, he was eligible to possess a ﬁrearm. Defendant therefore

established that his lawyer’s performance was deﬁcient when

his lawyer stipulated that defendant was ineligible to possess a

ﬁrearm. Moreover, but for his lawyer’s deﬁcient performance,

there was a reasonable probability that the outcome of the

trial would have been different. Had his lawyer presented the

September 21, 2011 order and conviction, the prosecution would

have had to prove beyond a reasonable doubt that defendant’s

right to possess a ﬁrearm had not been automatically restored

under MCL 750.224f(1), and there was no evidence in the record

showing that the prosecution would have been capable of

satisfying that burden, which would negate a necessary element

for felon-in-possession and a necessary element for felony-

ﬁrearm. Defendant satisﬁed his burden of establishing that his

lawyer provided ineffective assistance during the trial court

proceedings.

Reversed.

RIMINAL

— F

IREARMS

— E

LIGIBILITY TO

OSSESS A

IREARM AFTER

OMPLETION OF

ROBATION

Under MCL 750.224f(1), a person convicted of a felony shall not

possess, use, transport, sell, purchase, carry, ship, receive, or

distribute a ﬁrearm in this state until the expiration of three

years after all of the following circumstances exist: (a) the person

has paid all ﬁnes imposed for the violation, (b) the person has

served all terms of imprisonment imposed for the violation, and

tion or parole imposed for the violation; a felon successfully

completes all condition of probation for purposes of MCL

750.224f(1)(c) when the court discharges the felon from probation

and there exists no lingering probation requirement for the felon

to complete.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, John A. McColgan, Jr.,

2019] P

EOPLE V

ARKMALLORY

291

Prosecuting Attorney, and Joseph M. Albosta, Chief

Appellate Attorney, for the people.

State Appellate Defender (by Michael R. Waldo and

Christine A. Pagac) for defendant.

Before: S

WARTZLE

, P.J., and M. J. K

ELLY

and T

UKEL

, JJ.

M. J. K

ELLY

, J. Defendant, Michael Parkmallory,

appeals as of right his jury-trial convictions of being a

felon in possession of a ﬁrearm (felon-in-possession),

MCL 750.224f(1), and possession of a ﬁrearm during

the commission of a felony, second offense (felony-

ﬁrearm), MCL 750.227b(1). For the reasons stated in

this opinion, we reverse.

I. BASIC FACTS

Parkmallory was charged with felon-in-possession

and second-offense felony-ﬁrearm following an incident

on New Year’s Eve, December 31, 2016, in which Park-

mallory and his girlfriend took turns ﬁring a gun into

the air. Before the trial began, Parkmallory’s lawyer

stipulated that Parkmallory had a prior conviction of

receiving and concealing a stolen motor vehicle, which

rendered Parkmallory “ineligible to possess the ﬁre-

arm.” At trial, Parkmallory’s lawyer argued that Park-

mallory never possessed the gun because he only

touched it brieﬂy when his girlfriend tossed it to him “in

a panic.” The jury convicted Parkmallory as charged.

II. INEFFECTIVE ASSISTANCE

A. STANDARD OF REVIEW

Parkmallory argues that his convictions should be

reversed because his lawyer provided constitutionally

292 328 M

ICH

289 [May

ineffective assistance by stipulating that he was ineli-

gible to possess a gun given his June 2009 conviction of

receiving and concealing a stolen motor vehicle. He did

not, however, preserve the issue by ﬁling a motion for a

new trial or for an evidentiary hearing. See People v

Johnson, 144 Mich App 125, 129; 373 NW2d 263 (1985).

Because no evidentiary hearing was conducted, “our

review of [his] claim of ineffective assistance of counsel

is limited to mistakes that are apparent on the record.”

People v Mack, 265 Mich App 122, 125; 695 NW2d 342

(2005).

Although our review is limited to mistakes apparent

on the record, Parkmallory has only supported his

claim with documentary evidence that is not in the

record. Therefore, the ﬁrst question we must answer is

whether the documents appended to Parkmallory’s

appeal may be considered by this Court. As a general

rule, “[a]ppeals to the Court of Appeals are heard on

the original record,” MCR 7.210(A), and the parties

may not expand the record on appeal, People v Nix, 301

Mich App 195, 203; 836 NW2d 224 (2013). However,

MCR 7.216(A)(4) provides a mechanism for this Court

to permit additions to the record. That court rule

explains:

(A) Relief Obtainable. The Court of Appeals may, at any

time, in addition to its general powers, in its discretion,

and on the terms it deems just:

* * *

(4) permit amendments, corrections, or additions to the

transcript or record[.] [MCR 7.216(A)(4).]

Here, we discern no reason to deny the expansion of

the record. The records provided by Parkmallory are

copies of court orders signed by the judge presiding

over the 2009 case. On appeal, the prosecution argues

2019] P

EOPLE V

ARKMALLORY

293

that the records were not included in the proceedings

before the trial court in this case but does not other-

wise challenge their accuracy or completeness. More-

over, we note that the documents appended to Park-

mallory’s appeal contain the type of facts that a court

may, generally speaking, take judicial notice of. See

MRE 201(b) (“A judicially noticed fact must be one not

subject to reasonable dispute in that it is . . . capable of

accurate and ready determination by resort to sources

whose accuracy cannot reasonably be questioned.”).

Accordingly, under the present circumstances we deem

it just to allow the expansion of the record to include

the following records: (1) the May 20, 2011 motion and

bench warrant, (2) the August 2, 2011 order of convic-

tion and sentence, (3) the September 7, 2011 motion

and bench warrant, and (4) the September 21, 2011

order of conviction and sentence.

B. ANALYSIS

In order to establish that his lawyer provided inef-

fective assistance, Parkmallory must establish (1) that

his lawyer provided deﬁcient assistance, i.e., that his

performance “fell below an objective standard of rea-

sonableness,” and (2) that he was prejudiced by his

lawyer’s deﬁcient performance, i.e., “that there is a

reasonable probability that, but for counsel’s unprofes-

sional errors, the result of the proceeding would have

been different.” People v Gioglio (On Remand), 296

Mich App 12, 22; 815 NW2d 589 (2012), vacated in part

and remanded for resentencing 493 Mich 864 (2012)

(quotation marks and citation omitted). “Because there

are countless ways to provide effective assistance in

any given case, in reviewing a claim that counsel was

ineffective courts must indulge a strong presumption

that counsel’s conduct falls within the wide range of

294 328 M

ICH

289 [May

reasonable professional assistance.” Gioglio, 296 Mich

App at 22 (quotation marks and citation omitted).

Parkmallory argues that his lawyer’s performance

was deﬁcient because instead of presenting evidence

showing that Parkmallory’s right to possess a ﬁrearm

had been restored, his lawyer stipulated that he was

ineligible to possess a ﬁrearm. He argues that without

his lawyer’s stipulation, the prosecution would not

have been able to convict him of either felon-in-

possession or felony-ﬁrearm because necessary ele-

ments of both charges would have been unsupported by

the evidence.

A person can be convicted of felon-in-possession

under Subsection (1) or Subsection (2) of MCL

750.224f. In both cases, the prosecution must prove

beyond a reasonable doubt that the defendant pos-

sessed a ﬁrearm. See MCL 750.224f(1) and (2). Under

Subsection (2), the defendant must have been con-

victed of a “speciﬁed felony,” and in order to have his or

her right to possess a ﬁrearm restored, the defendant

must petition the circuit court for a restoration of his or

her right to possess a ﬁrearm. See MCL 750.224f(2)(b);

MCL 28.424(1). However, under MCL 750.224f(1)—the

subsection under which Parkmallory was convicted—

the right to possess a ﬁrearm is automatically restored

when the statutory conditions are satisﬁed. In full,

MCL 750.224f(1) provides:

(1) Except as provided in subsection (2), a person

convicted of a felony shall not possess, use, transport, sell,

purchase, carry, ship, receive, or distribute a ﬁrearm in

this state until the expiration of 3 years after all of the

following circumstances exist:

(a) The person has paid all ﬁnes imposed for the

violation.

2019] P

EOPLE V

ARKMALLORY

295

(b) The person has served all terms of imprisonment

imposed for the violation.

of probation or parole imposed for the violation.

As explained by our Supreme Court in People v Perkins,

473 Mich 626, 640; 703 NW2d 448 (2005), the defendant

bears the burden of producing evidence that his or her

right to possess a ﬁrearm has been restored. See also

MCL 776.20; People v Henderson, 391 Mich 612, 616;

218 NW2d 2 (1974). In this case, rather than attempting

to satisfy that burden, Parkmallory’s lawyer stipulated

that Parkmallory was, essentially, ineligible to possess a

gun because he committed a “felony.” As a result, the

prosecution was not required to prove “the lack of

restoration of ﬁrearm rights beyond a reasonable

doubt,” as it would have been obligated to do had the

defense satisﬁed its burden of production. Perkins, 473

Mich at 640.

Parkmallory’s lawyer provided constitutionally inef-

fective assistance when he failed to present existing

evidence supporting a ﬁnding that Parkmallory’s right

to possess a ﬁrearm had been automatically restored

under MCL 750.224f(1). An order of conviction and

sentence was entered on September 21, 2011. Based on

our review of the order, three things are apparent: (1) no

attorney fees, court costs, restitution, crime-victim fees,

supervision fees, or state minimum costs were imposed,

(2) Parkmallory was sentenced to 110 days in jail

with credit for 110 days served, and (3) Parkmallory’s

probation was “closed [without] Improvement.” In

other words, the order constitutes proof that as of

September 21, 2011, Parkmallory did not have

any outstanding ﬁnes as a result of his June 2009

conviction of receiving and concealing a stolen motor

vehicle, thereby satisfying the requirement in MCL

750.224f(1)(a) (all ﬁnes imposed paid). It also estab-

296 328 M

ICH

289 [May

lishes that all terms of imprisonment imposed for the

June 2009 conviction were served, which satisﬁes the

requirement in MCL 750.224f(1)(b) (all terms of impris-

onment imposed served). Finally, the order also sug-

gests that the requirement in MCL 750.224f(1)(c) was

satisﬁed, i.e., that Parkmallory “has successfully com-

pleted all conditions of probation or parole imposed for

the violation” because after September 21, 2011, no

conditions of probation or parole remained for him to

complete. Furthermore, because all three conditions

appear to have been satisﬁed by the September 21, 2011

order, and because more than three years elapsed be-

tween September 21, 2011 and December 31, 2016, the

order is sufﬁcient to establish that when Parkmallory

committed the instant offense he was, in fact, eligible to

possess a ﬁrearm because his right to do so was auto-

matically restored under MCL 750.224f(1).

Yet, the prosecution argues that the September 21,

2011 order is insufﬁcient to establish the requirement in

MCL 750.224f(1)(c) because Parkmallory was essen-

tially discharged from probation without improvement.

The prosecution argues that, as a result, Parkmallory

did not “successfully complete[] all conditions of proba-

tion or parole imposed for the violation.” See MCL

750.224f(1)(c). We disagree.

Although this issue has not been addressed by this

Court or by our Supreme Court in binding precedent,

we ﬁnd persuasive Justice K

ELLY

’s dissent from our

Supreme Court’s order in People v Sessions, 474 Mich

1120 (2006). Justice K

ELLY

reasoned:

The parties dispute the meaning of “successfully” in

this statute. A Webster’s dictionary deﬁnes the root word

“success” as “the favorable or prosperous termination of

attempts or endeavors.” Random House Webster’s College

Dictionary (2001). Applying that deﬁnition, in order to be

2019] P

EOPLE V

ARKMALLORY

297

“successful,” a defendant must achieve a favorable termi-

nation of all conditions of probation. This is the only

means of satisfying MCL 750.224f(1)(c).

In this case, defendant did achieve a favorable termi-

nation. His probation conditions favorably terminated

when the court unconditionally discharged him from pro-

bation. The judge left no lingering probation requirement

for defendant to complete. He was free from court super-

vision without the obligation to report to a probation

ofﬁcer. Therefore, he successfully completed all conditions

of probation.

* * *

“All” conditions means “the whole number of” or

“every one” of the conditions. Random House Webster’s

College Dictionary (2001). Hence, a probationer must

complete every one of the conditions of probation before

the three-year waiting period for the restoration of the

right to possess a ﬁrearm can begin to run. MCL

750.224f(1).

By using this phrasing, the Legislature indicated that

substantial completion of probation is insufﬁcient to start

the clock running toward restoration. For instance, if the

court released a probationer from all the conditions of

probation except one, that probationer would not have

satisﬁed the requirements of MCL 750.224f(1)(c). The

probationer would satisfy that subsection only by fulﬁlling

the ﬁnal condition of probation. Then, as required by the

Legislature, the probationer would have completed “all

conditions of probation.”

* * *

A felon successfully completes all conditions of proba-

tion for purposes of MCL 750.224f(1)(c) when the court

discharges the felon from probation. . . . As a conse-

quence, there exists no judicial determination that a

judge is authorized to include in an order discharging a

298 328

ICH

289 [May

probationer that the probation was unsuccessfully com-

pleted. It is a concept beyond the ken of MCL

750.224f(1)(c). [Sessions, 474 Mich at 1121-1123 (K

ELLY

J., dissenting).]

Although not binding, we ﬁnd Justice K

ELLY

’s reason-

ing in Sessions to be persuasive and we adopt it as our

own.

Here, like the defendant in Sessions, Parkmallory

achieved a favorable termination of his probation; he

was unconditionally discharged, free from supervision,

and had no lingering probation requirements to com-

plete. Accordingly, although the court order provides

that Parkmallory’s probation was “closed w/o Improve-

ment,” that notation has no bearing on whether he

successfully completed all conditions of probation.

Furthermore, as recognized by Justice K

ELLY

, “the

Legislature chose to use ‘successfully,’ not ‘perfectly.’ ”

Sessions, 474 Mich at 1122 (K

ELLY

, J., dissenting).

The root word of perfectly, “perfect,” can be deﬁned as

“conforming absolutely to the description or deﬁnition of an

ideal type . . . .” Random House Webster’s College Diction-

ary (2001). The Court of Appeals would require a person on

probation, in order to again be entitled to possess a ﬁrearm,

to conform in absolute terms to the conditions of probation.

In Sessions, the majority reversed and vacated the opinion of the

Court of Appeals on alternate grounds not raised by the parties.

Sessions, 474 Mich at 1120; Sessions, 474 Mich at 1120 (M

ARKMAN

, J.,

concurring) (noting that the resolution was on alternate grounds than

those raised by the parties). Further, in his concurring statement,

Justice M

ARKMAN

aptly noted:

I do not necessarily disagree with Justice K

ELLY

’s substantive

analysis and this Court doubtlessly will have the opportunity to

consider it in a future case. In the meantime, the Court of

Appeals opinion to which Justice K

ELLY

takes such objection has

been vacated. As such, it has no precedential value and thus will

serve as no barrier to the adoption of Justice K

ELLY

’s analysis in

the proper case. [Sessions, 474 Mich at 1120 (M

ARKMAN

, J.,

concurring).]

2019] P

EOPLE V

ARKMALLORY

299

But the Legislature chose to use “successfully,” not

“perfectly.” Without good cause to conclude otherwise, we

must assume that it chose the word purposely and inten-

tionally. Detroit v Redford Twp, 253 Mich 453, 456[; 235

NW 217] (1931). There is no reason to believe that the

Legislature inadvertently used “successfully,” intending

another word. Therefore, “successfully” should not be read

as “perfectly.” [Sessions, 474 Mich at 1122 (K

ELLY

, J.,

dissenting).]

Therefore, even to the extent that Parkmallory did not

perfectly complete all conditions of his probation—as

evidenced by multiple probation-violation hearings—

that failure has no bearing on whether he was never-

theless successful in completing all conditions of pro-

bation by virtue of the fact that after the discharge was

entered by the trial court, no conditions of probation

remained for him to complete.

For the foregoing reasons, we conclude that Park-

mallory has established that his lawyer’s performance

was deﬁcient when he stipulated that Parkmallory was

ineligible to possess a ﬁrearm because of his 2009

conviction for receiving and concealing a stolen motor

vehicle.

Moreover, we conclude that but for his law-

yer’s deﬁcient performance, there is a reasonable prob-

ability that the outcome of the trial would have been

different. See Gioglio, 296 Mich App at 22. If his lawyer

had presented the September 21, 2011 order and con-

viction, the prosecution would have had to prove be-

yond a reasonable doubt that Parkmallory’s right to

possess a ﬁrearm had not been automatically restored

under MCL 750.224f(1). See Perkins, 473 Mich at 640.

To the extent that Parkmallory’s lawyer was unaware that Parkmal-

lory’s right to possess a ﬁrearm was automatically restored, we note that

the failure to adequately investigate can constitute ineffective assis-

tance “if it undermines conﬁdence in the trial’s outcome.” People v

Grant, 470 Mich 477, 493; 684 NW2d 686 (2004).

300 328

ICH

289 [May

On the record presently before us, there is no evidence

that the prosecution would have been capable of satis-

fying that burden, which negates a necessary element

for felon-in-possession. See id. (requiring the prosecu-

tion to prove that the defendant’s right to possess a

ﬁrearm has not been restored if the defendant pro-

duces evidence showing that his or her right has, in

fact, been restored). And it also negates a necessary

element for felony-ﬁrearm, which is reliant on the

conviction for felon-in-possession as a predicate felony

before a defendant can be convicted of felony-ﬁrearm.

See MCL 750.227b(1) (requiring a defendant to carry

or possess a ﬁrearm when he commits or attempts to

commit a felony).

Stated differently, but for Parkmal-

lory’s lawyer’s deﬁcient performance, there is a reason-

able probability that Parkmallory would have been

acquitted of both charges. Accordingly, he has satisﬁed

his burden of establishing that his lawyer provided

ineffective assistance during the trial court proceed-

ings.

Reversed.

WARTZLE

, P.J., and T

UKEL

, J., concurred with M. J.

ELLY

, J.

Nothing in our opinion should be construed as prohibiting the

prosecution from coming forward with evidence during a new trial

showing that, for reasons not apparent on this record, Parkmallory was

ineligible to possess a ﬁrearm on January 1, 2016. Our holding is limited

to ﬁnding that the September 21, 2011 order of conviction and sentence

is sufﬁcient to establish—on a prima facie basis—that the statutory

requirements for restoration of Parkmallory’s right to possess a ﬁrearm

under MCL 750.224f(1) were met.

2019] P

EOPLE V

ARKMALLORY

301

LIANG v LIANG

Docket No. 341010. Submitted April 10, 2019, at Detroit. Decided

May 16, 2019, at 9:15 a.m.

McCarty Ji Liang, by his next friend, Mei Shaw, brought an action

in the Wayne Circuit Court against Guang Hui Liang, who is

plaintiff’s father, and G. Liang, Inc., doing business as Chan’s

Chinese Restaurant, Inc. (Chan’s), following an injury plaintiff

suffered at Chan’s. Plaintiff was ﬁve years old when he arrived at

Chan’s after business hours with his mother to surprise Liang for

Father’s Day. While Liang was preparing for closing and plain-

tiff’s mother was at the take-out window to inform a customer

that Chan’s had closed for the night, plaintiff wandered out of the

dining area and into a room that housed the restaurant’s meat

grinder. Plaintiff attempted to operate the meat grinder, but he

caught and injured his hand in the machine. Plaintiff brought the

instant suit against defendants, alleging common-law negligence,

negligent inﬂiction of emotional distress, and premises liability.

Defendants moved for summary disposition pursuant to MCR

2.116(C)(7) and (8), asserting parental immunity. Plaintiff re-

sponded by arguing that parental immunity could not shield

Chan’s, a corporate entity, from liability and that his complaint

did not allege negligent supervision because Liang was acting in

a business capacity at the time of the injuries. Further, plaintiff

asserted that parental immunity did not apply to his premises-

liability claim because property owners owe a heightened duty of

care to licensees. The court, Edward Ewell, Jr., J., denied defen-

dants’ motion, holding that parental immunity could not shield

defendants from liability because Liang was acting as a business

owner when plaintiff’s injuries occurred and had a duty to

plaintiff as an invitee on the property. Defendants appealed.

The Court of Appeals held:

1. A child can maintain a lawsuit against his or her parent for

injuries suffered as a result of the alleged ordinary negligence of

the parent, except (1) when the alleged negligent act involves an

exercise of reasonable parental authority over the child and (2)

when the alleged negligent act involves an exercise of reasonable

parental discretion with respect to the provision of food, clothing,

302 328

ICH

302 [May

housing, medical and dental services, and other care. A claim for

negligent parental supervision of a child falls within the ﬁrst

exception, meaning that a parent is granted immunity and a child

may not sue a parent for negligent supervision. In this case,

despite plaintiff’s efforts to plead in avoidance of parental immu-

nity, the gravamen of his complaint consisted of claims grounded

in negligent supervision. Speciﬁcally, plaintiff alleged in his

complaint that Liang failed to secure the meat grinder, protect

him from the foreseeable risk of harm posed by the dangerous

meat grinder, and warn him of the danger. These allegations

focus exclusively on Liang’s alleged failure to properly supervise

plaintiff by preventing him from roaming, unsupervised, into a

separate room that led to his injuries or to instruct plaintiff

regarding apparent dangers on the premises. These actions (or

inactions) fell squarely within the ﬁrst exception. That the injury

occurred at Chan’s did not alter the conclusion because a business

exception to the applicability of parental immunity does not exist.

Because plaintiff’s allegations against Liang were grounded in

negligent supervision, they fell under the ﬁrst exception no

matter where the alleged negligent supervision occurred. Accord-

ingly, Liang was entitled to parental immunity, and the trial court

erred when it denied summary disposition of plaintiff’s claims

against Liang.

2. Although plaintiff alleged both ordinary negligence and

premises liability against Chan’s, the allegations were analyzed

under the premises-liability framework only, given that plaintiff’s

injuries arose from an allegedly dangerous condition on the land,

i.e., the meat grinder, and Chan’s liability arose solely from its

duty as owner, possessor, or occupier of the land. Property owners

generally owe no duty to supervise minor children of guests on

their property. However, this rule applies only to claims of

ordinary negligence. In the context of premises liability, the law

imposes on landowners the duty to take reasonable or ordinary

care to prevent injury to child licensees from dangerous condi-

tions on the land. Because defendants did not dispute that

plaintiff was a licensee of Chan’s on the night of his injuries, and

because the rule that property owners owe no duty to supervise

minor children applies only to claims of ordinary negligence, the

denial of summary disposition of plaintiff’s premises-liability

claim under MCR 2.116(C)(8) was appropriate.

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

proceedings.

2019] L

IANG V

IANG

303

Ross Law Ofﬁce, PLLC (by Sherrie C. Ross) for

plaintiff.

Harvey Kruse, PC (by James E. Sukkar and Gregory

P. LaVoy) for defendants.

Before: M

URRAY

, C.J., and S

AWYER

and R

EDFORD

, JJ.

URRAY

, C.J. We granted the application for leave to

appeal ﬁled by defendants, Guang Hui Liang (Liang)

and G. Liang, Inc., doing business as Chan’s Chinese

Restaurant, Inc. (Chan’s),

to consider whether Liang

is entitled to parental immunity from the claims

brought against him by his son, plaintiff McCarty Ji

Liang, for an injury plaintiff suffered at Liang’s busi-

ness. For the reasons that follow, we hold that parental

immunity bars the negligence-based claims against

Liang but that the immunity doctrine has no bearing

on the premises-liability claim against the corporate

entity. Accordingly, we afﬁrm in part, reverse in part,

and remand for further proceedings consistent with

this opinion.

I. BACKGROUND

This case arises from the injuries suffered by plain-

tiff at Chan’s, his father Liang’s restaurant.

Plaintiff,

who was ﬁve years old at the time, arrived at Chan’s

between 9:30 p.m. and 10:00 p.m. with his mother, Guo

Ying Cao, to surprise Liang for Father’s Day. Although

Chan’s operated only as a take-out restaurant, it had a

full dining room in the front where plaintiff and Cao

Liang v Liang, unpublished order of the Court of Appeals, entered

April 17, 2018 (Docket No. 341010).

Liang was the sole owner, operator, and employee of Chan’s, a

take-out restaurant generally open between 11:00 a.m. and 11:00 p.m.

304 328

ICH

302 [May

waited while Liang prepared for closing by cleaning

and prepping food for the next day. When Cao walked

away to inform a customer at the take-out window that

Chan’s had closed for the night, plaintiff wandered out

of the dining area and into a room that housed the

restaurant’s industrial meat grinder. The room, sepa-

rated from the kitchen, was near the bathroom, and

the meat grinder was plugged in on the ﬂoor. Plaintiff

attempted to operate the meat grinder, but caught and

injured his hand in the machine, ultimately requiring

amputation of his hand.

In his suit against defendants, plaintiff alleged

common-law negligence, negligent inﬂiction of emo-

tional distress (NIED), and premises liability. In lieu of

an answer, defendants moved for summary disposition

of the complaint pursuant to MCR 2.116(C)(7) and (8),

asserting entitlement to parental immunity from

plaintiff’s claims. Plaintiff responded by arguing that

parental immunity could not shield Chan’s, a corporate

entity, from liability and that his complaint did not

allege negligent supervision as Liang was acting in a

business capacity at the time of the injuries. Further,

plaintiff asserted that parental immunity did not apply

to his premises-liability claim because property owners

owe a heightened duty of care to licensees. Ultimately,

the trial court denied defendants’ motion, holding that

parental immunity could not shield defendants from

liability because Liang was acting as a business owner

when plaintiff’s injuries occurred and had a duty to

plaintiff as an invitee on the property.

II. ANALYSIS

We ﬁrst address defendants’ argument that the trial

court erred when it concluded that parental immunity

did not bar plaintiff’s claims against Liang. We agree

2019] L

IANG V

IANG

305

and hold that, notwithstanding the fact that plaintiff’s

injuries occurred at Chan’s, Liang’s business, Liang

was entitled to parental immunity.

“This Court reviews de novo a trial court’s decision to

deny a motion for summary disposition.” Rowland v

Washtenaw Co Rd Comm, 477 Mich 197, 202; 731 NW2d

41 (2007). “Under MCR 2.116(C)(7), summary disposi-

tion is proper when a claim is barred by immunity

granted by law.” Fane v Detroit Library Comm, 465

Mich 68, 74; 631 NW2d 678 (2001). When deciding the

motion, “a court must consider the pleadings, afﬁdavits,

depositions, admissions, and other documentary evi-

dence submitted in a light most favorable to the non-

moving party.” Fields v Suburban Mobility Auth for

Regional Transp, 311 Mich App 231, 234; 874 NW2d 715

(2015). “If there is no factual dispute, whether a plain-

tiff’s claim is barred under a principle set forth in MCR

2.116(C)(7) is a question of law for the court to decide.”

Id. (quotation marks and citation omitted).

A. PARENTAL IMMUNITY

Michigan courts had for many decades recognized the

doctrine of parental immunity, which prohibited a mi-

nor from suing her parent in tort. See Elias v Collins,

237 Mich 175, 177; 211 NW 88 (1926), overruled by

Plumley v Klein, 388 Mich 1, 8; 199 NW2d 169 (1972).

The Elias Court stated that the doctrine was created at

common law to serve “the interest of the peace of the

family and of society, and is supported by sound public

policy.” Elias, 237 Mich at 177. In 1972, however, the

doctrine was redeﬁned and limited; it was expressed as

permitting “[a] child [to] maintain a lawsuit against his

parent for injuries suffered as a result of the alleged

ordinary negligence of the parent,” except “(1) where the

alleged negligent act involves an exercise of reasonable

306 328 M

ICH

302 [May

parental authority over the child; and (2) where the

alleged negligent act involves an exercise of reasonable

parental discretion with respect to the provision of food,

clothing, housing, medical and dental services, and

other care.” Plumley, 388 Mich at 8.

In Goodwin v Northwest Mich Fair Ass’n, 325 Mich

App 129, 143-144; 923 NW2d 894 (2018), our Court

recently set out the current standards governing the

application of the parental-immunity doctrine:

Although parents undoubtedly have a duty to supervise

their children, the law generally does not allow children to

recover damages from their parents for a breach of this

duty. In particular, “[a]t common law, a minor could not

sue his or her parents in tort.” The Michigan Supreme

Court generally abolished intra-family tort immunity in

Plumley, holding that a child could maintain a lawsuit

against his or her parents for an injury resulting from a

parent’s negligence. However, the Plumley Court retained

two exceptions to this rule, concluding that parental

immunity remained:

(1) where the alleged negligent act involves an

exercise of reasonable parental authority over the

child; and (2) where the alleged negligent act in-

volves an exercise of reasonable parental discretion

with respect to the provision of food, clothing, hous-

ing, medical and dental services, and other care.

A claim for negligent parental supervision of a child falls

within the ﬁrst Plumley exception, meaning that a parent

is granted immunity and a child may not sue a parent for

negligent supervision. [Citations omitted.]

See also Vandonkelaar v Kid’s Kourt, LLC, 290 Mich

App 187, 211; 800 NW2d 760 (2010) (M

URRAY

, J.,

dissenting) (“Although parents traditionally enjoyed

immunity from suit by their minor child should they

breach the duties owed to the child, the modern rule is

that a child may sue his parents for negligence.

2019] L

IANG V

IANG

307

Plumley, 388 Mich at 8. An exception to this rule in

Michigan, however, extends immunity to parents

‘where the alleged negligent act involves an exercise

of reasonable parental discretion with respect to the

provision of food, clothing, housing, medical and den-

tal services, and other care.’ ” Id.). The pivotal ques-

tion for resolution here is whether the allegations

against Liang fall within the ﬁrst Plumley exception.

“In determining whether a defendant was exercis-

ing reasonable parental authority, the question is not

whether the defendant acted negligently, but whether

the alleged act reasonably fell within one of the

Plumley exceptions,” Phillips v Deihm, 213 Mich App

389, 395; 541 NW2d 566 (1995), and this Court has

repeatedly held that a claim for negligent parental

supervision falls under the ﬁrst exception, Paige v

Bing Constr Co, 61 Mich App 480, 484; 233 NW2d 46

(1975) (“A parent’s exercise of authority over his or

her child involves more than discipline. It includes

the providing of instruction and education so that a

child may be aware of dangers to his or her well

being.”); McCallister v Sun Valley Pools, Inc, 100 Mich

App 131, 139; 298 NW2d 687 (1980); Goodwin, 325

Mich App at 144.

Consequently, this Court has applied the parental-

immunity doctrine where a child died from injuries

sustained after falling into a man-made hole on a

construction site, Paige, 61 Mich App at 481, a 15-year-

old boy injured himself diving into his family’s swim-

ming pool, McCallister, 100 Mich App at 133, a seven-

year-old girl shot herself with a loaded gun while on a

ﬁshing trip with her father, Wright v Wright, 134 Mich

App 800, 803; 351 NW2d 868 (1984), and a child

injured himself on a dirt bike given to him by his

308 328 M

ICH

302 [May

father, Haddrill v Damon, 149 Mich App 702, 703-704;

386 NW2d 643 (1986).

We see no meaningful distinction between the cases

cited above and the circumstances and claims at issue

here. Despite plaintiff’s efforts to plead in avoidance of

parental immunity, the gravamen of his complaint

consists of claims grounded in negligent supervision.

See McCallister, 100 Mich App at 139 (“The gravamen

of plaintiff’s pleadings can only be construed as an

action for negligent parental supervision.”). Speciﬁ-

cally, plaintiff alleged in his complaint that Liang

failed to secure the meat grinder, protect him from the

foreseeable risk of harm posed by the dangerous meat

grinder, and warn him of the danger. These allegations

focus exclusively on Liang’s alleged failure to properly

supervise plaintiff by preventing him from roaming,

unsupervised, into a separate room that led to his

injuries or to instruct plaintiff regarding apparent

dangers on the premises. These actions (or inactions)

fall squarely within the ﬁrst Plumley exception.

That the injury occurred at Liang’s business does not

alter our conclusion. Neither this Court nor the Su-

preme Court has recognized a business exception to the

applicability of parental immunity. What is dispositive

under Plumley and its progeny is that plaintiff is suing

his father for injuries that occurred as a result of his

alleged failure to supervise. Since plaintiff’s allegations

against Liang are grounded in negligent supervision,

they fall under the ﬁrst Plumley exception no matter

where the alleged negligent supervision occurred. Ac-

cordingly, Liang was entitled to parental immunity,

Chan’s, of course, is not entitled to parental immunity. See Wayne-

Oakland Bank v Adam’s Rib, 48 Mich App 144, 146-147; 210 NW2d 121

(1973), where this Court held that parental immunity could not shield a

partnership from liability for the negligence of a partner.

2019] L

IANG V

IANG

309

and the trial court erred when it denied summary

disposition of plaintiff’s claims against Liang.

B. PREMISES LIABILITY

On the other hand, the trial court properly denied

summary disposition of plaintiff’s premises-liability

claim against Chan’s. Although plaintiff alleged both

ordinary negligence and premises liability against

Chan’s, we analyze the allegations under the premises-

liability framework only, because “plaintiff’s injur[ies]

arose from an allegedly dangerous condition on the

land,” Buhalis v Trinity Continuing Care Servs, 296

Mich App 685, 692; 822 NW2d 254 (2012), i.e., the meat

grinder, and Chan’s liability arose solely from its “duty

as owner, possessor, or occupier of [the] land,” id.

Defendants argue that plaintiff’s claims against

Chan’s are barred as a matter of law because Chan’s

did not have a duty to supervise plaintiff while he was

under Cao’s supervision. “A motion under MCR

2.116(C)(8) tests the legal sufﬁciency of the complaint.

All well-pleaded factual allegations are accepted as

true and construed in a light most favorable to the

nonmovant.” Maiden v Rozwood, 461 Mich 109, 119;

597 NW2d 817 (1999). When deciding a motion

brought under MCR 2.116(C)(8), a court considers only

the pleadings. MCR 2.116(G)(5); Maiden, 461 Mich at

119-120. The motion “may be granted only where the

claims alleged are ‘so clearly unenforceable as a matter

of law that no factual development could possibly

The existence of liability insurance does not alter our conclusion. As

stated in McCallister, 100 Mich App at 142, “it must be concluded that

the presence of liability insurance alone is insufﬁcient to justify the

abrogation of parental immunity where the exercise of reasonable

parental authority over the child is involved.”

310 328

ICH

302 [May

justify recovery.’ ” Maiden, 461 Mich at 119, quoting

Wade v Dep’t of Corrections, 439 Mich 158, 163; 483

NW2d 26 (1992).

As defendants assert, “property owners generally

owe no duty to supervise minor children of guests on

their property.” Wheeler v Central Mich Inns, Inc, 292

Mich App 300, 305; 807 NW2d 909 (2011); see also

Stopczynski v Woodcox, 258 Mich App 226, 236-237;

671 NW2d 119 (2003); Bradford v Feeback, 149 Mich

App 67, 71-72; 385 NW2d 729 (1986). However, this

rule applies only to claims of ordinary negligence.

Wheeler, 292 Mich App at 304-305. Bradford, like this

case, involved both failure-to-supervise ordinary-

negligence and premises-liability claims, and the

Court applied the rule to the ordinary-negligence claim

only. Bradford, 149 Mich App at 70-72.

In the context of premises liability, the law imposes

on landowners the duty to take “reasonable or ordinary

care to prevent injury” to child licensees from danger-

ous conditions on the land. Bragan v Symanzik, 263

Mich App 324, 329; 687 NW2d 881 (2004) (quotation

marks and citation omitted). Because defendants do

not dispute that plaintiff was a licensee

of Chan’s on

“A ‘licensee’ is a person who is privileged to enter the land of another

by virtue of the possessor’s consent,” and the category generally includes

social guests. Stitt v Holland Abundant Life Fellowship, 462 Mich 591,

596; 614 NW2d 88 (2000). “An ‘invitee’ is a person who enters upon the

land of another upon an invitation which carried with it an implied

representation, assurance, or understanding that reasonable care has

been used to prepare the premises, and make [it] safe for [the invitee’s]

reception,” and the term generally applies to those entering a property

for business purposes. Id. at 596-597 (quotation marks and citation

omitted; alterations in original). Because plaintiff entered Chan’s as a

social guest of Liang’s, he would be considered a licensee for premises-

liability purposes, something defendants do not argue against. Regard-

less, premises owners owe a heightened duty of care to child invitees as

well. Bragan, 263 Mich App at 333.

2019] L

IANG V

IANG

311

the night of his injuries, thus imposing on them a duty

to take reasonable care to prevent his injury, and

because the rule that property owners owe no duty to

supervise minor children applies only to claims of

ordinary negligence, we hold that the denial of sum-

mary disposition of plaintiff’s premises-liability claim

under MCR 2.116(C)(8) was appropriate. The claim is

not “so clearly unenforceable as a matter of law that no

factual development could possibly justify recovery.”

Maiden, 461 Mich at 119 (quotation marks and citation

omitted).

Afﬁrmed in part, reversed in part, and remanded for

further proceedings consistent with this opinion. We do

not retain jurisdiction.

AWYER

and R

EDFORD

, JJ., concurred with M

URRAY

C.J.

Defendants do not raise any argument with regard to plaintiff’s

NIED claim against Chan’s.

312 328

ICH

302 [May

In re CLAIM FOR SURPLUS FUNDS

Docket No. 344016. Submitted May 1, 2019, at Grand Rapids. Decided

May 21, 2019, at 9:00 a.m.

BAERE, Co., ﬁled a petition in the Kent Circuit Court seeking to

recover funds from the mortgage foreclosure sale of petitioner’s

property. Petitioner purchased the property at issue by quitclaim

deed subject to a mortgage that had been assigned to respondent,

Specialized Loan Servicing LLC. Petitioner defaulted on the

mortgage, and respondent foreclosed by advertisement for the

amount owed under the mortgage—$51,915.75. At the foreclosure

sale, respondent bid $20,300 on the property, but a third party

ultimately bid on and purchased the property for $50,000. Re-

spondent received $20,300 after the sheriff’s sale, and both

parties requested the remaining funds from the court ofﬁcer who

conducted the sale. After petitioner ﬁled this action, both parties

moved to recover the remaining $29,700. The court, Mark A.

Trusock, J., awarded the remaining funds to respondent, conclud-

ing that under MCL 600.3252, petitioner was not entitled to the

funds because the sale amount was less than the amount peti-

tioner owed on the mortgage held by respondent. Petitioner

appealed.

The Court of Appeals held:

The purpose of a mortgage foreclosure is to ensure that the

mortgagor’s debt, secured by a mortgage to a mortgagee, is

satisﬁed. MCL 600.3252 provides that when any real estate is

sold, if there remains in the hands of the ofﬁcer or other person

making the sale, any surplus money after satisfying the mortgage

on which the real estate was sold and payment of the costs and

expenses of the foreclosure and sale, the surplus must be paid to

the mortgagor unless at the time of the sale or before the surplus

is paid over, a subsequent mortgagee or lienholder ﬁles a written

claim with the person who made the sale, who in turn must notify

the circuit court of the claim. Given the dictionary deﬁnitions of

“satisfy” and “surplus” as read in context with caselaw, the phrase

“satisfying the mortgage on which the real estate was sold” in

MCL 600.3252 refers to paying off the entirety of the debt secured

by the mortgage; thus, satisfying a mortgage and extinguishing

2019] In re C

LAIM FOR

URPLUS

UNDS

313

the mortgage are not synonymous. In other words, for purposes of

a foreclosure sale, while extinguishment of the debt extinguishes

the mortgage, extinguishment of the mortgage does not extin-

guish the debt unless the total amount due under the mortgage is

paid at the sale. Moreover, a mortgagee is not legally required to

bid the full amount of the outstanding debt at a foreclosure sale.

Accordingly, a mortgagee is entitled to any remaining funds after

a foreclosure sale—up to the full amount of the outstanding debt

under the mortgage—if the amount paid for the property was less

than the total amount due under the mortgage. In this case,

respondent’s mortgage was not “satisﬁed” for purposes of MCL

600.3252 because the purchase price at the foreclosure sale was

less than the amount owed under the mortgage; for that reason,

there were no surplus funds for petitioner to seek. Respondent

was not required to bid the full amount owed at the foreclosure

sale, and respondent’s original bid sheet did not constitute a

contract or admission that the mortgage would be satisﬁed or

discharged for $20,300. Accordingly, the trial court correctly

denied the petition and granted respondent’s motion for the

remaining funds.

Afﬁrmed.

1. M

ORTGAGES

— F

ORECLOSURE OF

ORTGAGE BY

DVERTISEMENT

— W

ORDS AND

HRASES —

“S

ATISFYING THE

ORTGAGE ON

HICH THE

EAL

STATE WAS

OLD

.”

MCL 600.3252 provides that when any real estate is sold, if there

remains in the hands of the ofﬁcer or other person making the

sale any surplus money after satisfying the mortgage on which

the real estate was sold and payment of the costs and expenses of

the foreclosure and sale, the surplus must be paid to the mort-

gagor unless, at the time of the sale or before the surplus is paid

over, a subsequent mortgagee or lienholder ﬁles a written claim

with the person who made the sale, who in turn must notify the

circuit court of the claim; the phrase “satisfying the mortgage on

which the real estate was sold” in MCL 600.3252 refers to paying

off the entirety of the debt secured by the mortgage; satisfying a

mortgage and extinguishing the mortgage are not synonymous;

for purposes of a foreclosure sale, while extinguishment of the

debt extinguishes the mortgage, extinguishment of the mortgage

does not extinguish the debt unless the total amount due under

the mortgage is paid at the sale; a mortgagee is entitled to any

remaining funds after a foreclosure sale—up to the full amount of

the outstanding debt under the mortgage—if the amount paid for

the property was less than the total amount due under the

mortgage.

314 328

ICH

313 [May

2. M

ORTGAGES

— F

ORECLOSURE OF

ORTGAGE BY

DVERTISEMENT

— B

IDS BY

ORTGAGEE

A mortgagee is not legally required to bid the full amount of the

outstanding debt at a foreclosure sale.

Bernard Schaefer for petitioner.

Randall S. Miller & Associates, PC (by Raymond H.

K. Scodeller) for respondent.

Before: G

LEICHER

, P.J., and R

ONAYNE

RAUSE

and

O’B

RIEN

, JJ.

URIAM

. Petitioner, BAERE, Co., appeals as of

right the trial court’s order granting summary dispo-

sition in favor of respondent, Specialized Loan Servic-

ing LLC. We afﬁrm.

I. BACKGROUND

This case arises out of the foreclosure sale of prop-

erty located in Grand Rapids, Michigan (the property).

The original property owner took out a mortgage on the

property, and he died approximately eleven years later.

The mortgage was assigned to respondent, and in the

meantime, petitioner purchased the property via quit-

claim deed from the original property owner’s son. The

mortgage eventually fell into default, whereupon re-

spondent initiated a foreclosure by advertisement. As

of the day of the foreclosure sale, the amount of the

indebtedness on the mortgage was $51,915.75. Respon-

dent made an initial bid of $20,300. The successful

bidder, nonparty RDG New Homes, LLC, bid $50,000.

Respondent received $20,300 after the sale, and the

sheriff held the remaining proceeds. The parties both

sought the remaining $29,700 of “surplus” funds. After

holding a hearing and considering the parties’ argu-

ments, the trial court determined that petitioner was

2019] In re C

LAIM FOR

URPLUS

UNDS

315

not entitled to any funds from the foreclosure sale

because the mortgage held by respondent was not

satisﬁed by the proceeds of the sale. Accordingly, the

trial court granted respondent’s motion seeking the

remaining $29,700 from the sale. Petitioner appeals,

arguing that the trial court misinterpreted MCL

600.3252.

II. STANDARD OF REVIEW

We review de novo a trial court’s ruling on a motion

for summary disposition. Auto Club Group Ins Co v

Burchell, 249 Mich App 468, 479; 642 NW2d 406

(2002). “A summary disposition motion under MCR

2.116(C)(10) tests the factual support for a claim and

should be granted if there is no genuine issue as to any

material fact and the moving party is entitled to

judgment as a matter of law.” Weingartz Supply Co v

Salsco Inc, 310 Mich App 226, 232; 871 NW2d 375

(2015) (quotation marks and citation omitted). A genu-

ine issue of material fact exists when the record,

“giving the beneﬁt of reasonable doubt to the opposing

party, would leave open an issue upon which reason-

able minds might differ.” Shallal v Catholic Social

Servs of Wayne Co, 455 Mich 604, 609; 566 NW2d 571

(1997) (quotation marks and citation omitted). We also

review de novo questions of statutory interpretation,

with the goal of ascertaining and applying the intent of

the Legislature as expressed by the language of the

statute. In re $55,336.17 Surplus Funds, 319 Mich App

501, 506-507; 902 NW2d 422 (2017).

III. ANALYSIS

As noted, petitioner argues that the trial court

misinterpreted MCL 600.3252 and erroneously re-

316 328 M

ICH

313 [May

jected petitioner’s claim that it was the only party

entitled to the remaining $29,700. We disagree.

MCL 600.3252 provides, in its entirety:

If after any sale of real estate, made as herein pre-

scribed, there shall remain in the hands of the ofﬁcer or

other person making the sale, any surplus money after

satisfying the mortgage on which the real estate was sold,

and payment of the costs and expenses of the foreclosure

and sale, the surplus shall be paid over by the ofﬁcer or

other person on demand, to the mortgagor, his legal repre-

sentatives or assigns, unless at the time of the sale, or

before the surplus shall be so paid over, some claimant or

claimants, shall ﬁle with the person so making the sale, a

claim or claims, in writing, duly veriﬁed by the oath of the

claimant, his agent, or attorney, that the claimant has a

subsequent mortgage or lien encumbering the real estate,

or some part thereof, and stating the amount thereof

unpaid, setting forth the facts and nature of the same, in

which case the person so making the sale, shall forthwith

upon receiving the claim, pay the surplus to, and ﬁle the

written claim with the clerk of the circuit court of the

county in which the sale is so made; and thereupon any

person or persons interested in the surplus, may apply to

the court for an order to take proofs of the facts and

circumstances contained in the claim or claims so ﬁled.

Thereafter, the court shall summon the claimant or claim-

ants, party, or parties interested in the surplus, to appear

before him at a time and place to be by him named, and

attend the taking of the proof, and the claimant or claim-

ants or party interested who shall appear may examine

witnesses and produce such proof as they or either of them

may see ﬁt, and the court shall thereupon make an order in

the premises directing the disposition of the surplus mon-

eys or payment thereof in accordance with the rights of the

claimant or claimants or persons interested. [Emphasis

added.]

A mortgage is “[a] conveyance of an interest in real

estate to secure the performance of an obligation, typi-

2019] In re C

LAIM FOR

URPLUS

UNDS

317

cally a debt. The very purpose of mortgage foreclosure is

to ensure that the mortgagor’s debt, secured by a

mortgage to a mortgagee, is satisﬁed.” In re $55,336.17

Surplus Funds, 319 Mich App at 508 (quotation marks

and citation omitted; alteration in original).

Petitioner argues that respondent’s mortgage was

satisﬁed once it received the $20,300 payment from

the foreclosure sale. Petitioner asserts, correctly, that

a foreclosure sale extinguishes the mortgage. Mtg

& Contract Co v First Mortgage Bond Co, 256 Mich

451, 452; 240 NW 39 (1932). Petitioner argues that

respondent’s bid of $20,300 represented the amount

necessary to satisfy the mortgage. Quoting MCL

600.3252, petitioner argues that, therefore, any

amount exceeding this bid constituted “surplus funds”

under the statute because the funds remained “in the

hands of the ofﬁcer or other person making the sale[.]”

Petitioner asserts that in this case, MCL 600.3252 only

permits the mortgagor, or in this case petitioner as the

mortgagor’s assignee, to obtain the remaining $29,700.

Petitioner’s argument depends on the meaning of the

statutory phrase “satisfying the mortgage on which the

real estate was sold[.]” Id. We must ﬁrst decide whether

the mortgage was satisﬁed before we can determine if a

surplus existed. The terms “satisfy” and “surplus” are

not deﬁned in the statute. As a result, we will consult

the dictionary to determine the common and ordinary

meanings of the words. See Krohn v Home-Owners Ins

Co, 490 Mich 145, 156; 802 NW2d 281 (2011). The word

“satisfy” is deﬁned, in relevant part, as “to carry out the

terms of (as a contract):

DISCHARGE

,” and “to meet a

ﬁnancial obligation to[.]” Merriam-Webster’s Collegiate

Dictionary (11th ed). Merriam-Webster’s Collegiate Dic-

tionary (11th ed) deﬁnes “surplus,” in pertinent part, as

“the amount that remains when use or need is satis-

ﬁed[.]”

318 328 M

ICH

313 [May

We further observe that a mortgage is fundamen-

tally a security for a debt or liability and that extin-

guishment of the debt therefore extinguishes the

mortgage. Ginsberg v Capitol City Wrecking Co, 300

Mich 712, 717; 2 NW2d 892 (1942). However, the

inverse is not true: extinguishment of the mortgage

does not necessarily extinguish the debt unless the

total amount due under the terms of the mortgage is

paid at the foreclosure sale. Dunitz v Woodford Apart-

ments Co, 236 Mich 45, 49; 209 NW 809 (1929); Bank of

Three Oaks v Lakefront Props, 178 Mich App 551, 555;

444 NW2d 217 (1989). Because the amount due on the

mortgage was $51,915.75 at the time of the sale and

the successful bid was $50,000, the debt was not

extinguished. Furthermore, respondent was paid only

$20,300, leaving $31,615.75 remaining due under the

mortgage. Consequently, respondent could pursue a

deﬁciency judgment against the debtor, the original

property owner’s estate. See Bank of America NA v

First American Title Ins Co, 499 Mich 74, 88; 878

NW2d 816 (2016). Finally, we note that the purpose of

MCL 600.3252 is to protect the rights of others after

the mortgagee has recovered its debt. In re $55,336.17

Surplus Funds, 319 Mich App at 510-511.

We conclude that when the deﬁnitions of “satisfy” and

“surplus” are read in context with the caselaw, it is

unambiguous that “satisfying the mortgage on which

the real estate was sold” refers to paying off the entirety

of the debt secured by the mortgage. In other words,

satisfying a mortgage and extinguishing the mortgage

are not synonymous. It is therefore beyond dispute that

respondent’s mortgage was not “satisﬁed” and that

there were no “surplus funds” for petitioner to seek.

In the alternative, petitioner argues that that the

mortgage was satisﬁed once respondent received the

2019] In re C

LAIM FOR

URPLUS

UNDS

319

$20,300 payment from the foreclosure sale because

respondent expressly agreed to that amount in its “bid

sheet.” In other words, petitioner argues that respon-

dent agreed that the lesser amount would satisfy the

mortgage. Petitioner concludes that respondent there-

fore agreed that its mortgage would be satisﬁed and

discharged in exchange for the $20,300 and that any

further amount of money must necessarily constitute a

surplus. Respondent contends that “[t]he bid sheet is

not [a] signed document, it is not a contract, it is not an

agreement and it is not a waiver of any deﬁciency.” We

agree with respondent that the “bid sheet” does not

appear to be a contract or a binding admission estab-

lishing the amount of the debt. We are aware of no law

requiring mortgagees to bid the full amount owed

during a foreclosure sale, and we decline to create any

such law.

IV. CONCLUSION

We conclude that the phrase “satisfying the mort-

gage on which the real estate was sold” in MCL

600.3252 refers to paying the entirety of the debt

secured by the mortgage. We are aware of no legal

requirement for mortgagees to bid the full amount of

any outstanding debt at a foreclosure sale, and the “bid

sheet” in this matter did not constitute a contract or

admission. The trial court therefore correctly denied

the petition and granted respondent’s motion for the

funds.

Afﬁrmed. Respondent, being the prevailing party,

may tax costs. MCR 7.219(A).

LEICHER

, P.J., and R

ONAYNE

RAUSE

and O’B

RIEN

JJ., concurred.

320 328 M

ICH

313 [May

REAUME v TOWNSHIP OF SPRING LAKE

Docket No. 341654. Submitted May 1, 2019, at Grand Rapids. Decided

May 21, 2019, at 9:05 a.m. Leave to appeal sought.

Susan Reaume ﬁled an action in Ottawa Circuit Court against

Spring Lake Township, seeking to compel the township’s zoning

board of appeals (the ZBA) to grant her application for a short-

term rental license. In 2003, plaintiff purchased a home in the

township that was located in the “R-1 Low Density Residential”

zoning district; she lived at the property full-time until 2014. In

2015, plaintiff retained a property-management company to

determine whether she could rent the property as a short-term

rental. According to the management company’s manager, Bar-

bara Hass, Connie Meiste from the township’s ofﬁce informed her

that the township had no restrictions on short-term or long-term

rentals. According to plaintiff, the township’s zoning administra-

tor, Lukas Hill, not only approved plaintiff’s rental listing agree-

ment, stating that it complied with the speciﬁc prohibition

against multifamily dwellings in the R-1 zoning district, but also

expressly stated that plaintiff had the lawful right to use the

property as a short-term rental. On the basis of that information,

plaintiff made improvements to the property, and in 2015 and

2016, she rented it out seasonally as a short-term vacation rental;

plaintiff’s neighbors ﬁled complaints with the township about the

rentals. In December 2016, the township amended the Spring

Lake Township Code of Ordinances by adding Article 5 to Chapter

6 of the code. In that regard, Ordinance No. 255 prohibited

short-term rentals in districts zoned R-1, allowed long-term

rentals of more than 28 days in those districts, and required all

short-term rentals to be registered and licensed with the town-

ship’s community development director before a property could be

rented. In 2017, the township adopted Ordinance No. 257; the

ordinance allowed limited short-term rentals—that is, the rental

of any dwelling for any one or two rental periods of up to 14 days,

not to exceed 14 days total in a calendar year—in districts zoned

R-1. The township rejected plaintiff’s application for a short-term

rental license, and the ZBA denied her appeal of that decision.

2019] R

EAUME V

PRING

AKE

321

The trial court, Jon A. Van Allsburg, J., afﬁrmed the ZBA’s

decision to deny the short-term rental license request. Plaintiff

appealed by leave granted.

The Court of Appeals held:

1. A municipality can be equitably estopped from enforcing a

zoning ordinance if a party reasonably relies to its prejudice on a

representation made by the municipality. Standing alone, a

municipality’s historical failure to enforce a particular zoning

ordinance is insufﬁcient to preclude enforcement of that ordi-

nance in the present. However, a municipality may, in some cases,

be estopped from enforcing a zoning ordinance when the positive

acts of municipal ofﬁcials induce a plaintiff to act in a certain

manner and the plaintiff incurs a change of position or makes

expenditures in reliance on the ofﬁcials’ action. A municipality

will generally not be estopped from enforcing zoning ordinances

absent exceptional circumstances; the circumstances must be

viewed as a whole with no single factor being decisive, and a

township ofﬁcial’s casual private advice does not constitute ex-

ceptional circumstances. In this case, without additional evi-

dence, Meiste’s purported statement to Hass regarding short-

term rentals did not constitute a statement that any kind of

rental was explicitly authorized in the township. Moreover, there

was no evidence that Meiste had the authority to bind the

township. Hill’s approval of plaintiff’s revised rental listing—

speciﬁcally, that it complied with the speciﬁc prohibition against

multifamily dwellings in the R-1 zoning district—was not proof

that the rental did not violate other restrictions. The documents

plaintiff relied on to support her action did not constitute a formal

determination that plaintiff’s use of the property was lawful. And

as with Meiste, there was no record evidence that Hill had

individual authority to bind the township to a zoning determina-

tion. Accordingly, the township was not equitably estopped from

enforcing its zoning and regulatory ordinances to preclude plain-

tiff from using the property for short-term rentals.

2. MCL 125.3208(1) provides that if the use of a dwelling,

building, or structure or of the land is lawful at the time of

enactment of a zoning ordinance or an amendment to a zoning

ordinance, then that use may be continued although the use does

not conform to the zoning ordinance or amendment. A prior

nonconforming use is a vested right in the use of a particular

property that does not conform to zoning restrictions; such a use

is protected because it lawfully existed before the zoning regula-

tion’s effective date. Before Ordinance No. 255 expressly prohib-

ited short-term rentals in the R-1 zoning district, the deﬁnition of

322 328

ICH

321 [May

“Dwelling, Single Family” in the Spring Lake Township Zoning

Ordinance unambiguously excluded transient or temporary

rental occupation. Therefore, plaintiff’s short-term rental of the

property was never lawful, and she was not entitled to continue

renting the property as a nonconforming use after the township

adopted Ordinance No. 255. Moreover, the township’s prior fail-

ure to enforce its ordinances did not grant plaintiff the right to

continue violating the zoning ordinance. Accordingly, the trial

court correctly afﬁrmed the ZBA’s denial of plaintiff’s request for

a short-term rental license.

Afﬁrmed.

1. Z

ONING

— E

NFORCEMENT

— D

EFENSES

— E

QUITABLE

STOPPEL

A municipality can be equitably estopped from enforcing a zoning

ordinance if a party reasonably relies to its prejudice on a

representation made by the municipality; standing alone, a

municipality’s historical failure to enforce a particular zoning

ordinance is insufﬁcient to preclude enforcement of that ordi-

nance in the present; a municipality may, in some cases, be

estopped from enforcing a zoning ordinance when the positive

acts of municipal ofﬁcials induce a plaintiff to act in a certain

manner and the plaintiff incurs a change of position or makes

expenditures in reliance on the ofﬁcials’ action; a municipality

will generally not be estopped from enforcing zoning ordinances

absent exceptional circumstances; the circumstances must be

viewed as a whole with no single factor being decisive, and a

township ofﬁcial’s casual private advice does not constitute ex-

ceptional circumstances.

2. Z

ONING

— E

NFORCEMENT

— N

ONCONFORMING

SES

MCL 125.3208(1) provides that if the use of a dwelling, building, or

structure or of the land is lawful at the time of enactment of a

zoning ordinance or an amendment to a zoning ordinance, then

that use may be continued although the use does not conform to

the zoning ordinance or amendment; a prior nonconforming use is

a vested right in the use of a particular property that does not

conform to zoning restrictions; such a use is protected because it

lawfully existed before the zoning regulation’s effective date.

Mill Point Legal Services (by Edward A. Grafton and

Jennifer L. Lynn) for plaintiff.

McGraw Morris PC (by Craig R. Noland and

Amanda M. Zdarsky) for defendant.

2019] R

EAUME V

PRING

AKE

323

Before: G

LEICHER

, P.J., and R

ONAYNE

RAUSE

and

O’B

RIEN

, JJ.

ONAYNE

RAUSE

, J. Plaintiff, Susan Reaume, ap-

peals by leave granted

the trial court’s order afﬁrming

the denial by defendant, the township of Spring Lake

(the Township), of plaintiff’s application for a short-

term rental license. We afﬁrm.

I. BACKGROUND

In 2003, plaintiff purchased a home (the property)

located in the Township. The property has at all

relevant times been located within the “R-1 Low Den-

sity Residential” zoning district. Plaintiff used the

property as her full-time residence until 2014. In 2015,

plaintiff retained a property-management company,

and an agent of that company made a telephone

inquiry to the Township regarding restrictions on

short-term rentals for the property. According to the

agent (manager Barbara Hass), Township employee

Connie Meiste “said that Spring Lake Township had no

restrictions on short term or long term rentals.” Plain-

tiff made substantial improvements to the property,

and in 2015 and 2016, she rented it out seasonally as a

short-term vacation rental. As will be discussed fur-

ther, Hass averred and plaintiff contends that Lukas

Hill, the Township’s zoning administrator,

“expressly

afﬁrmed [plaintiff’s] right to lawfully use [the prop-

erty] as a short-term rental.” Plaintiff’s neighbors,

however, objected to the use of the property for short-

term rentals and lodged complaints with the Township.

Reaume v Spring Lake Twp, unpublished order of the Court of

Appeals, entered June 4, 2018 (Docket No. 341654).

Apparently, the Township uses the terms “zoning administrator” and

“community development director” interchangeably.

324 328

ICH

321 [May

In December 2016, the Township amended the

Spring Lake Township Code of Ordinances by adopting

Ordinance No. 255; the amendment prohibited short-

term rentals in the R-1 zoning district. However, the

ordinance allowed long-term rentals of more than 28

days. The ordinance provided that all short-term rent-

als had to be registered and licensed with the commu-

nity development director before rental activity could

occur. In 2017, the Township also adopted Ordinance

No. 257, amending the Spring Lake Township Zoning

Ordinance to allow “short-term rentals” and “limited

short-term rentals,” which had independent deﬁni-

tions, in certain zoning districts. Ordinance No. 257

permitted “limited short-term rentals,” but not “short-

term rentals,” in R-1 zones. The amendment deﬁned

“limited short-term rentals” as “[t]he rental of any

Dwelling for any one or two rental periods of up to 14

days, not to exceed 14 days total in a calendar year.”

Plaintiff applied for a short-term rental license; the

Township denied the application. She appealed that

decision to the Township’s Zoning Board of Appeals

(the ZBA), which denied her appeal. Plaintiff then

appealed that decision in the trial court. Following a

hearing, the trial court afﬁrmed the Township’s deci-

sion in a written opinion and order. We granted plain-

tiff’s application for leave to appeal.

II. STANDARDS OF REVIEW

We review the interpretation of ordinances de novo.

Soupal v Shady View, Inc, 469 Mich 458, 462; 672

NW2d 171 (2003). Ordinances are interpreted in the

same manner as statutes: we must apply clear and

unambiguous language as written, and any rules of

construction are applied “in order to give effect to the

legislative body’s intent.” Brandon Charter Twp v

2019] R

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Tippett, 241 Mich App 417, 422; 616 NW2d 243 (2000).

We also review de novo the application of legal and

equitable doctrines. Estes v Titus, 481 Mich 573, 578-

579; 751 NW2d 493 (2008); Sylvan Twp v City of

Chelsea, 313 Mich App 305, 315-316; 882 NW2d 545

(2015). It is well established that courts will consider

the substance of pleadings and look beyond the names

or labels applied by the parties. Hartford v Holmes, 3

Mich 460, 463 (1855); Norris v Lincoln Park Police

Ofﬁcers, 292 Mich App 574, 582; 808 NW2d 578 (2011).

“In general, we review de novo a circuit court’s

decision in an appeal from a ZBA decision.” Hughes v

Almena Twp, 284 Mich App 50, 60; 771 NW2d 453

(2009). However, there is no single standard of review

applicable to the appeal itself because zoning cases

typically entail questions of both fact and law. Macenas

v Michiana, 433 Mich 380, 394-395; 446 NW2d 102

(1989). Courts must defer to a ZBA’s factual ﬁndings to

the extent they are “supported by competent, material,

and substantial evidence on the record[.]” Id. at 395.

We, in turn, review the circuit court’s factual ﬁndings

for clear error to determine whether the circuit court

properly applied the substantial-evidence test.

Hughes, 284 Mich App at 60. The ZBA’s decisions on

the basis of its factual ﬁndings are also given deference

“provided they are procedurally proper . . . and are

a reasonable exercise of the board’s discretion[.]”

Macenas, 433 Mich at 395. The ZBA’s determinations

of law are afforded no deference. Id. at 395-396.

III. ESTOPPEL

We observe, initially, that much of plaintiff’s argu-

ment is, in substance and effect, an equitable-estoppel

argument. Equitable estoppel may preclude the en-

forcement of a zoning ordinance if a party reasonably

326 328 M

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321 [May

relies to its prejudice on a representation made by the

municipality. Lyon Charter Twp v Petty, 317 Mich App

482, 490; 896 NW2d 477 (2016), vacated in part on

other grounds 500 Mich 1010 (2017). Generally, plain-

tiff contends that before the Township’s adoption of

Ordinance Nos. 255 and 257, it had formally deter-

mined and communicated to plaintiff that her use of

the property for short-term rentals was lawful. Plain-

tiff therefore concludes that her use of the property is

necessarily “grandfathered” and that the Township

may not deny her permission to continue using the

property for short-term rentals. Plaintiff argues that

she expended considerable sums of money on renova-

tions and modiﬁcations to the property in reliance on

the Township’s alleged assurances that short-term

rentals were lawful in the R-1 zoning district. How-

ever, plaintiff’s argument turns on making untenable

extrapolations from statements made by individuals

who had no authority to bind the Township.

“[A] historical failure to enforce a particular zoning

ordinance, standing alone, is insufﬁcient to preclude

enforcement in the present.” Lyon, 317 Mich App at 489.

A municipality may, in some cases, be estopped from

enforcing zoning ordinances “because of the positive

acts of municipal ofﬁcials which induced plaintiff to act

in a certain manner, and where plaintiff relied upon the

ofﬁcial’s actions by incurring a change of position or

making expenditures in reliance upon the ofﬁcials’ ac-

tions.” Parker v West Bloomﬁeld Twp, 60 Mich App 583,

591; 231 NW2d 424 (1975); see also Lyon, 317 Mich App

at 490. The general rule is against estopping munici-

palities from enforcing zoning ordinances in the absence

of “exceptional circumstances,” which must be viewed as

a whole, and “no factor is in itself decisive.” Pittsﬁeld

Twp v Malcolm, 375 Mich 135, 147-148; 134 NW2d 166

(1965). However, a municipality cannot be estopped

2019] R

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from enforcing zoning ordinances by the unauthorized

or illegal conduct of its ofﬁcers. Parker, 60 Mich App at

594-595; see also Blackman Twp v Koller, 357 Mich 186,

189; 98 NW2d 538 (1959). “Casual private advice offered

by township ofﬁcials does not constitute exceptional

circumstances.” Howard Twp Bd of Trustees v Waldo,

168 Mich App 565, 576; 425 NW2d 180 (1988), citing

White Lake Twp v Amos, 371 Mich 693, 698-699; 124

NW2d 803 (1963).

Plaintiff’s only argument of serious concern pertains

to the conversation that Barbara Hass, the manager of

the property-management company, had “with Connie

Meiste at the Spring Lake Township ofﬁces via tele-

phone[.]” According to Hass’s afﬁdavit, she was told

“that Spring Lake Township had no restrictions on

short term or long term rentals.” It is reasonable to

expect municipal employees to provide accurate infor-

mation upon request. However, this record does not

disclose enough detail about the conversation to draw

any conclusions. For example, at the time of Hass’s

inquiry, it appears that the Township did not, in fact,

have any formal regulations that speciﬁcally ad-

dressed the rental of property. Nevertheless, that is not

necessarily equivalent to a statement that any kind of

rental was explicitly authorized. We also do not know

precisely what questions Hass asked. It is unclear

whether Hass’s afﬁdavit repeats a direct quotation

from Meiste’s answer or whether the afﬁdavit sets

forth Hass’s understanding of the gravamen of

Meiste’s answer. Importantly, the record provides no

support for the proposition that Meiste had any au-

thority to bind the Township. Because plaintiff has the

burden of proof, we are unimpressed with plaintiff’s

protestations to the effect that the Township has not

disproved Meiste’s authority or anything about the

nature of her statement to Hass.

328 328 M

ICH

321 [May

Plaintiff argues that the Township’s zoning admin-

istrator, Lukas Hill, explicitly approved plaintiff’s re-

vised rental listing after obtaining clariﬁcation that

the property was not being improperly held out as a

multifamily dwelling. Again, there is nothing in the

record to show that Hill had individual authority to

bind the Township to a zoning determination.

Fur-

thermore, the record indicates that the Township’s

enforcement protocol has historically been to address

violations as they are reported in the forms of com-

plaints, rather than to afﬁrmatively look for violations.

The record does not reﬂect whether the Township had

received any complaints at the time of the original

rental listing alleging a violation of the R-1 zoning

requirements. Plaintiff extrapolates too much from

Hill’s satisfaction that plaintiff’s revised rental listing

complied with the speciﬁc prohibition against multi-

family dwellings in the R-1 zoning district. The fact

that the revised listing did not contravene one restric-

tion is not proof that it did not contravene any restric-

tions. In any event, as noted, failure to enforce a zoning

ordinance does not constitute approval of an otherwise

illegal use.

Plaintiff cites Gordon Sel-Way, Inc v Spence Bros, Inc, 177 Mich App

116, 124; 440 NW2d 907 (1989), rev’d in part on other grounds 438 Mich

488 (1991), for the proposition that Hill’s “interpretation” should be

imputed to the Township. Hill does not appear to have rendered an

“interpretation.” More importantly, the pertinent holding in Gordon

Sel-Way was that knowledge possessed by a corporation’s managerial

employees may be imputed to the corporation, such that the corporation

may not willfully ignore any duties that might arise as a consequence of

that knowledge. Id. In this case, the Township does not claim ignorance

of any of the statements made by its employees and ofﬁcers but, rather,

properly challenges their meaning and signiﬁcance. Gordon Sel-Way did

not purport to contravene the caselaw we have discussed that limits the

circumstances under which a municipality’s employees or ofﬁcers may

bind the municipality.

2019] R

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Plaintiff also argues that Hill had “determined un-

equivocally that short-term rentals were lawful under

the Spring Lake Township Zoning Ordinance . . . .” We

have carefully reviewed the documents plaintiff pro-

vided in support. One document is a printout of an

e-mailed complaint from one of plaintiff’s neighbors

regarding plaintiff’s rentals on which an unidentiﬁed

person handwrote, “Lukas says nothing we can do

about it as yet.” No explanation has been provided as to

why Hill might have made the statement, and we

decline to speculate. Another document, this one from

Township Supervisor John Nash, conveyed advice to

neighbors about actions they could take; it contains no

hint of a determination that plaintiff’s use of the

property was actually lawful. Neither document con-

stitutes a formal determination by the Township that

plaintiff’s use of the property for short-term rentals

was actually lawful, and neither document is binding

on the township. Indeed, neither document appears

even to constitute a private opinion that plaintiff’s use

of the property was lawful. Plaintiff also relies on the

fact that the Township had not cited any other short-

term rentals, which, again, is not an expression of

approval.

In summary, plaintiff mostly relies on seriously

mischaracterizing statements made by individuals. We

conclude that the statements do not provide a basis for

estopping, formally or substantively, the Township

from enforcing its zoning or regulatory ordinances to

preclude plaintiff from using the property for short-

term rentals.

IV. LAWFUL NONCONFORMING USE

MCL 125.3208(1) provides that “[i]f the use of a

dwelling, building, or structure or of the land is lawful

330 328 M

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321 [May

at the time of enactment of a zoning ordinance or an

amendment to a zoning ordinance, then that use may

be continued although the use does not conform to the

zoning ordinance or amendment.” This is often re-

ferred to colloquially as “grandfathering.” A similar

provision was included in § 335 of the Spring Lake

Township Zoning Ordinance, which provides:

Purpose and Intent. Nonconforming Buildings, Struc-

tures, Lots, and uses which do not conform to one (1) or

more of the provisions or requirements of this Ordinance

or any subsequent amendments thereto, but which were

lawfully established prior to the adoption of this Ordi-

nance or subsequent amendment, may be continued. How-

ever, no such Building, Structure or use shall be enlarged

or extended, and no nonconforming Lot created or made

more nonconforming, except as provided herein. It is the

intent of this Section to reduce or remove the number of

nonconforming occurrences in the Township.

“A prior nonconforming use is a vested right in the use

of particular property that does not conform to zoning

restrictions, but is protected because it lawfully existed

before the zoning regulation’s effective date.” Heath

Twp v Sall, 442 Mich 434, 439; 502 NW2d 627 (1993).

On appeal, plaintiff does not challenge whether

Ordinance Nos. 255 and 257 were properly adopted or

whether the ordinances prohibit short-term rentals in

properties zoned R-1. As discussed, there is no merit to

plaintiff’s contention that the Township had itself

determined plaintiff’s use of her property for short-

term rentals to be lawful. Nevertheless, if that use of

the property actually was lawful before the adoption of

Ordinance Nos. 255 and 257, then plaintiff has a right

to continue using her property for short-term rentals.

We conclude, however, that the use was not lawful

before the adoption of Ordinance Nos. 255 and 257.

2019] R

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Plaintiff argues that her use of the property as a

short-term rental was lawful under the deﬁnition of

the term “dwelling” in the Spring Lake Township

Zoning Ordinance. We disagree. Section 205 of the

Spring Lake Township Zoning Ordinance deﬁnes

“dwelling” as follows:

Any Building or portion thereof which is occupied in whole

or in part as a home, residence, or sleeping place, either

permanently or temporarily, by one (1) or more Families,

but not including Motels or tourist rooms. Subject to

compliance with the requirements of Section 322, a Mobile

Home shall be considered to be a Dwelling.

(1) Dwelling, Single-Family: A Building designed for

use and occupancy by one (1) Family only.

(2) Dwelling, Two-Family: A Building designed for use

and occupancy by two (2) Families only and having sepa-

rate living, cooking and eating facilities for each Family.

(3) Dwelling, Multi-Family: A Building designed for use

and occupancy by three (3) or more Families and having

separate living, cooking and eating facilities for each

Family.

The Spring Lake Township Zoning Ordinance does not

deﬁne the term “tourist room,” but it deﬁnes “motel”

under § 214 as follows:

A Building or group of Buildings on the same Lot, whether

Detached or in connected rows, containing sleeping or

Dwelling Units which may or may not be independently

accessible from the outside with garage or Parking Space

located on the Lot and designed for, or occupied by

transient residents. The term shall include any Building

or Building groups designated as a Hotel, motor lodge,

transient cabins, cabanas, or by any other title intended to

identify them as providing lodging, with or without meals,

for compensation on a transient basis.

Finally, the term “family” is deﬁned under § 207 as:

332 328 M

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321 [May

A single individual or individuals, domiciled together

whose relationship is of a continuing, non-transient, do-

mestic character and who are cooking and living together

as a single, nonproﬁt housekeeping unit, but not including

any society, club, fraternity, sorority, association, lodge,

coterie, organization, or group of students, or other indi-

viduals whose relationship is of a transitory or seasonal

nature, or for anticipated limited duration of school terms,

or other similar determinable period of time.

We note that the R-1, R-2, R-3, and R-4 zoning districts

all permit “Dwelling, Single-Family” use, but only in

the R-4 zoning district are “Dwelling, Two-Family” and

“Dwelling, Multi-Family” uses permitted. The stated

“intent” of R-4 zoning is that such zoning “is dispersed

throughout the Township to avoid pockets of rental or

transient housing.”

Read as a whole, the deﬁnition of “Dwelling, Single-

Family” unambiguously excludes transient or tempo-

rary rental occupation. Plaintiff focuses on the word

“temporarily” in the overview deﬁnition of “Dwelling.”

Plaintiff fails to note that although some types of

dwellings permit temporary occupancy, single-family

dwellings do not. The deﬁnition of single-family dwell-

ing emphasizes use by one family only, and “family”

expressly excludes “transitory or seasonal” or other-

wise temporary relationships. Notwithstanding the

possibility of some temporary occupancy, any kind of

“dwelling” excludes a “motel.” “Motels” expressly pro-

vide transient lodging, or “tourist rooms,” which are

undeﬁned but reasonably understood as also referring

to transient lodging. Plaintiff’s use of her property for

short-term rentals seemingly ﬁts the deﬁnition of a

“motel.” Finally, it is notable to contrast the descrip-

tions of the R-1 through R-3 zoning districts with the

description of the R-4 zoning district, which suggests

that some form of temporary occupancy might be

2019] R

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permitted in two-family or multi-family dwellings. The

Spring Lake Township Zoning Ordinance clearly for-

bids short-term rental uses of property in the R-1

zoning district, irrespective of whether the ordinance

does so in those exact words.

As plaintiff notes, there was never any serious

dispute that she actually was using the property for

short-term rental purposes. However, doing so was not

permitted in the R-1 district at any time. Therefore,

plaintiff is not entitled to continue doing so as a prior

nonconforming use, notwithstanding the Township’s

prior failure to enforce its zoning requirements.

V. PUBLICATION

Unpublished opinions of this Court have no preceden-

tial effect under either stare decisis, MCR 7.215(C)(1),

or the “ﬁrst-out rule,” MCR 7.215(J)(1). Our court rules

set forth a list of standards for publication in MCR

7.215(B). We note that Subrule (B) does not state that

an opinion may not be published for other reasons, only

that it “must be published if” any of the enumerated

conditions are present. Under MCR 7.215(D), a party

may request publication after an opinion has been

issued. However, we remind the bar that if they believe

any basis for publication exists, it is enormously more

helpful—to us and to them—if they bring that basis to

our attention before the case is submitted. Advocating

for publication, or at least the possibility of publication,

from the outset guarantees that we can properly con-

sider any such basis at the most appropriate and opti-

mal time, and doing so also avoids the taint of self-

interested opportunism after issuance. We would likely

look more favorably upon a publication request when we

have already had the opportunity to holistically analyze

334 328 M

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321 [May

the potential merits of publication in context, i.e., while

analyzing the rest of the case.

In this matter, plaintiff has brought to our attention

the unpublished case of Concerned Prop Owners of

Garﬁeld Twp, Inc v Garﬁeld Charter Twp, unpublished

per curiam opinion of the Court of Appeals, issued

October 25, 2018 (Docket No. 342831). This case is

unpublished, and we have not relied on it in our

substantive analysis. However, the existence of this

case supports that the issues presented in the current

matter are of increasing importance and commonness

in Michigan and that the bench and bar would beneﬁt

from the certainty that a published opinion would

bring. We conclude that publication of this matter is

warranted under MCR 7.215(B)(5).

VI. CONCLUSION

Plaintiff’s use of the property for short-term rentals

was never permitted under the Township’s R-1 zoning.

This is consistent with caselaw establishing that com-

mercial or business uses of property—that is, uses

intended to generate a proﬁt—are generally inconsis-

tent with residential uses of property. See Terrien v

Zwit, 467 Mich 56, 61-65; 648 NW2d 602 (2002).

Plaintiff’s use of the property for short-term rental was

not a prior nonconforming use because it was never

lawful under the Spring Lake Township Zoning Ordi-

nance. The Township’s prior failure to enforce the

ordinance does not confer upon plaintiff a right to

continue violating the ordinance. Neither does a state-

ment made by any individual without the power to

bind the Township confer that right upon plaintiff,

especially when none of the statements clearly or

afﬁrmatively expressed an opinion that short-term

rentals in the R-1 zoning district were lawful. Accord-

2019] R

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335

ingly, the trial court properly afﬁrmed the ZBA’s denial

of plaintiff’s application for a short-term rental license.

Afﬁrmed. Defendant, being the prevailing party,

may tax costs. MCR 7.219(A).

LEICHER

, P.J., and O’B

RIEN

, J., concurred with

ONAYNE

RAUSE

, J.

336 328 M

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321 [May

OLIN v MERCY HEALTH HACKLEY CAMPUS

Docket Nos. 341523 and 342937. Submitted April 10, 2019, at Grand

Rapids. Decided May 21, 2019, at 9:10 a.m.

In Docket No. 341523, Jaxon Olin, by his next friend, Nicole Curtis,

brought an action in the Muskegon Circuit Court against Mercy

Health Hackley Campus; Lakeshore Anesthesia Services PC; Ed-

ward Winiecke, M.D.; Elizabeth Pitt, M.D.; Shoreline E.N.T., PLC;

and Paul E. Lomeo, D.O., alleging medical malpractice following a

surgery plaintiff underwent on September 22, 2014, when he was

10 years old. On September 20, 2016, two days before the two-year

period of limitations would have otherwise expired under MCL

600.5805(8), plaintiff’s attorney served on defendants a notice of

intent (NOI) to ﬁle a medical malpractice claim, which tolled the

statutory limitations period for 182 days. On March 22, 2017,

plaintiff ﬁled his complaint, with Curtis, who was plaintiff’s

mother, operating as his next friend pending formal appointment

by the trial court. The parties agreed that the statutory limitations

period would have expired on March 23, 2017, and that plaintiff

ﬁled the complaint within the statutory limitations period. Defen-

dants had ﬁled their answers and the parties were engaged in

discovery when plaintiff’s counsel realized that the trial court had

not yet formally appointed Curtis as plaintiff’s next friend. On

September 8, 2017, plaintiff’s counsel ﬁled a petition seeking

Curtis’s appointment and noting that, pursuant to MCR 2.201(E),

the court was required to appoint a next friend because plaintiff

did not have a conservator. Five days later, on September 13, 2017,

the trial court entered an order appointing Curtis as plaintiff’s next

friend. On that same day, Lomeo and Shoreline E.N.T. moved for

summary disposition pursuant to MCR 2.116(C)(5) (legal capacity

to sue), (7) (statute of limitations), and (8) (failure to state a claim).

The motion asserted that because Curtis had not been appointed

as plaintiff’s next friend when the action was ﬁled, she did not have

standing to ﬁle it. Defendants further argued that neither plaintiff

nor Curtis had standing to pursue the action on March 22, 2017, or

at any time before the expiration of the limitations period on

March 23, 2017, according to Cotter v Britt, unpublished per

curiam opinion of the Court of Appeals, issued May 31, 2007

(Docket No. 274776). The other defendants joined the motion. The

2019] O

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337

trial court, William C. Marietti, J., concluded that Cotter was

persuasive and relied on its reasoning to grant defendants’ motion

for summary disposition and dismiss plaintiff’s case with preju-

dice. In Docket No. 342937, plaintiff ﬁled a lawsuit that was

identical to Docket No. 341523 after receiving the trial court’s

written opinion with respect to the issue raised in Docket No.

341523. The trial court also dismissed that lawsuit. Plaintiff

appealed, and the Court of Appeals consolidated the cases.

The Court of Appeals held:

1. A real party in interest is one who is vested with the right of

action on a given claim, although the beneﬁcial interest may be in

another. Michigan courts have held that when a plaintiff acts on

behalf of a minor in a representative capacity, the cause of action

still belongs to the minor. In this case, the trial court and defen-

dants relied on Cotter’s assertion that a next friend is the real party

in interest—even though the beneﬁcial interest rests with the

minor—to argue that Curtis was the real party in interest while

plaintiff held the beneﬁcial interest. However, the distinction

between the real party in interest and the one with the beneﬁcial

interest typically arises in circumstances involving statutory

standing and assignment of claims, in cases in which plaintiffs

appear not to have an economic interest in the outcome of litiga-

tion, or when contracts are involved; no statute or published

authority existed that made this distinction when a next friend

acts on behalf of a minor to pursue the minor’s personal-injury

claim. A minor may sue and be sued as provided by MCR 2.201(E),

which lays out the rules of representation and the procedure for

appointing representatives for minors in court proceedings, includ-

ing for minor plaintiffs. Nothing in the plain language of MCR

2.201(E) requires the ﬁling of a petition for appointment or the

completion of a next-friend appointment before suit or simultane-

ously with the ﬁling of a complaint on behalf of a minor, nor do

defendants point to any current statute or court rule containing

such a requirement. In fact, the court rule repeatedly refers to

what “the court” must do, clearly implying that it is the court

assigned to the minor’s lawsuit that handles the next-friend

appointment process. In other words, the court rule implicitly

assumes that the complaint has already been ﬁled, and properly

so, even though no next friend has yet been appointed. The

language in MCR 2.201(E) expressly addressing circumstances

under which the court is required to make such an appointment

after a complaint is ﬁled further belies the notion that a next friend

must be appointed prior to or along with the ﬁling of a complaint.

The court rules operate in a manner that supports plaintiff’s

338 328

ICH

337 [May

position that the absence of a precomplaint appointment or a

petition simultaneously ﬁled with the complaint does not render

defective a timely ﬁled complaint on behalf of a minor plaintiff. In

sum, the governing court rules and caselaw clearly indicate that a

minor is the real party in interest in a claim for damages arising

from alleged medical malpractice and that the appointment of a

next friend prior to or simultaneously with the ﬁling of the

complaint on behalf of the minor is not expressly required.

2. MCL 600.5856(a) provides that the statutes of limitations or

repose are tolled at the time the complaint is ﬁled if a copy of the

summons and complaint are served on the defendant within the

time set forth in the supreme court rules. In this case, MCL

600.5856(a) applied to toll the applicable period of limitations

pending proper service. Defendants argued that because the trial

court did not formally appoint Curtis before the expiration of the

applicable limitations period, she was never a “real party in

interest” and that plaintiff, as a minor, did not have a right to

commence suit in the ﬁrst instance. However, the defense that a

plaintiff is not the real party in interest is not the same as the

legal-capacity-to-sue defense. Defendants in this case conﬂated the

requirements of establishing capacity to sue and standing/real

party in interest. There was no principled reason under the court

rules or in Michigan’s decisional law to require that the next-friend

appointments occur before commencing suit or before the expira-

tion of the statutory limitations period, even after a complaint has

been ﬁled. Even if a minor brings a suit to judgment without the

appointment of a next friend, if represented by an attorney, the

Legislature has provided that the judgment is valid. Accordingly,

the formal appointment of a next friend is not a meaningful date

for statute-of-limitations purposes.

Reversed and remanded for further proceedings.

NFANTS

— M

EDICAL

ALPRACTICE

CTIONS

— P

ROCEDURE FOR

PPOINTING

EPRESENTATIVES FOR

INORS IN

OURT

ROCEEDINGS

— T

IMING

A minor may sue and be sued as provided by MCR 2.201(E), which

lays out the rules of representation and the procedure for appoint-

ing representatives for minors in court proceedings, including for

minor plaintiffs; a minor is the real party in interest in a claim for

damages arising from alleged medical malpractice, and the ap-

pointment of a next friend prior to or simultaneous with the ﬁling

of the complaint on behalf of the minor is not expressly required.

Bendure & Thomas, PLC (by Mark R. Bendure) and

McKeen & Associates, PC (by Brian J. McKeen and

John LaParl, Jr.) for plaintiff.

2019] O

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339

Hackney Grover (by Loretta B. Subhi and Randy J.

Hackney) for Paul E. Lomeo, D.O., and Shoreline

E.N.T., PLC.

Rutledge, Manion, Rabaut, Terry & Thomas, PC (by

Dale A. Robinson) for Edward Winiecke, M.D., and

Lakeshore Anesthesia Services, PC.

Johnson & Wyngaarden, PC (by David R. Johnson

and Michael L. Van Erp) for Mercy Health Hackley

Campus.

Sullivan, Ward, Asher & Patton, PC (by Keith P.

Felty) for Elizabeth Pitt, M.D.

Before: B

ECKERING

, P.J., and S

ERVITTO

and S

TEPHENS

JJ.

URIAM

. In Docket No. 341523, plaintiff, Jaxon

Olin, a minor, through his next friend, Nicole Curtis,

appeals by right the trial court’s order granting defen-

dants’ motion for summary disposition and dismissing

with prejudice his medical malpractice lawsuit. The

crux of the issue on appeal is whether a lawsuit, timely

ﬁled by or on behalf of a minor plaintiff, is defective and

invalid until the trial court formally appoints a next

friend for the minor. The trial court granted defendants’

motion based on the expiration of the applicable limita-

tions period before entry of an order formally appointing

plaintiff’s mother, Curtis, as plaintiff’s next friend.

For

In Docket No. 342937, plaintiff appeals by right the trial court’s

dismissal of a second, identical lawsuit he ﬁled as a back-up plan after

receiving the trial court’s written opinion with respect to the issue

raised in Docket No. 341523. Because we are reversing the trial court’s

ruling in Docket No. 341523, we need not review the trial court’s order

of dismissal in Docket No. 342937, given that the issue raised is

effectively moot.

340 328

ICH

337 [May

the reasons set forth in this opinion, we reverse and

remand to the trial court for further proceedings.

I. BASIC FACTS AND PROCEDURAL HISTORY

On September 22, 2014, plaintiff, who was 10 years

old at the time, underwent an adenoidectomy, a direct

laryngoscopy, and a lingual tonsillectomy. It is plain-

tiff’s contention that defendants negligently performed

the surgery, resulting in extensive tracheal tearing,

total collapse of his lungs, severe and extensive subcu-

taneous emphysema, a pneumomediastinum, vocal-

cord paralysis, and other injuries. On September 20,

2016, two days before the two-year period of limita-

tions would have otherwise expired, MCL 600.5805(8),

plaintiff’s attorney served on defendants a notice of

intent (NOI) to ﬁle a medical malpractice claim. This

served to toll the statutory limitations period for 182

days. See MCL 600.2912b. On March 22, 2017, plaintiff

ﬁled his complaint, with Curtis operating as his next

friend pending formal appointment by the trial court.

The parties agree that the statutory limitations period

would have expired on March 23, 2017, and that

plaintiff ﬁled the complaint within the statutory limi-

tations period.

Defendants had ﬁled their answers and the parties

were engaged in discovery when plaintiff’s counsel

realized that the trial court had not yet formally

appointed Curtis as plaintiff’s next friend. Promptly

after this discovery, plaintiff’s counsel ﬁled a petition

seeking Curtis’s appointment and noting that, pursu-

ant to MCR 2.201(E), the court was required to appoint

a next friend because plaintiff did not have a conser-

vator. Plaintiff attached to the petition Curtis’s written

consent to be appointed and her veriﬁcation that she

was willing to become responsible for the costs of the

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action. See MCR 2.201(E)(2)(a)(ii). Five days later, on

September 13, 2017, the trial court entered an order

appointing Curtis as plaintiff’s next friend.

On the same day the trial court appointed Curtis as

next friend, defendants Paul E. Lomeo, D.O., and Shore-

line E.N.T., PLC, moved for summary disposition pur-

suant to MCR 2.116(C)(5) (legal capacity to sue), (7)

(statute of limitations), and (8) (failure to state a claim).

The motion asserted that defendants had become aware

two days earlier that the trial court had not appointed

Curtis as plaintiff’s next friend and that because she

was not the appointed next friend when the action was

ﬁled, she did not have standing to ﬁle it. Defendants

further argued that, according to this Court’s decision in

Cotter v Britt, unpublished per curiam opinion of the

Court of Appeals, issued May 31, 2007 (Docket No.

274776),

neither plaintiff nor Curtis had standing to

pursue this action on March 22, 2017, or at any time

before the expiration of the period of limitations on

March 23, 2017. Thus, defendants claimed that plain-

tiff’s case should be dismissed as time-barred. All the

other defendants joined in the motion.

At the October 16, 2017 hearing on defendants’ mo-

tion, defendants repeated the argument they had set

forth in their summary-disposition motion and support-

ing brief. In opposition to the motion, plaintiff argued

that nothing in the language of MCR 2.201(E) required

appointment of the next friend before ﬁling the com-

plaint and that the language of the court rule actually

contemplates the opposite because it refers to the nomi-

Unpublished opinions are not precedentially binding under the rule

of stare decisis. MCR 7.215(C)(1). In some instances, they may be

persuasive. Paris Meadows, LLC v City of Kentwood, 287 Mich App 136,

145 n 3; 783 NW2d 133 (2010). As will become clear in our discussion of

the issues on appeal, we do not ﬁnd Cotter to be persuasive.

342 328

ICH

337 [May

nation for appointment of a next friend “after service of

process.” MCR 2.201(E)(2)(a)(iii). Plaintiff also argued

that the delay in formally appointing Curtis was, at

most, a harmless oversight without prejudice. The

trial court took the matter under advisement, and on

November 15, 2017, it issued a written opinion in which

it concluded that Cotter was directly on point and

persuasive. Relying on the reasoning in Cotter, the trial

court entered a corresponding order on December 4,

2017, granting defendants’ motion for summary dispo-

sition and dismissing plaintiff’s case with prejudice.

II. STANDARDS OF REVIEW

We “review de novo a trial court’s decision regarding

a motion for summary disposition to determine if the

moving party is entitled to judgment as a matter of law.”

Bernardoni v Saginaw, 499 Mich 470, 472; 886 NW2d

109 (2016). Defendants moved for summary disposition

pursuant to MCR 2.116(C)(5), (7), and (8). Although the

trial court did not identify the court rule under which it

granted defendants’ motion, it granted summary dispo-

sition for the reasons stated in Cotter. In Cotter, this

Court relied on MCR 2.116(C)(8) to support summary

disposition on the ground that the minor child “could

not ﬁle suit on her own behalf, and suit was not ﬁled by

a properly appointed next friend.” Cotter, unpub op at

3-4. A motion under MCR 2.116(8) tests the legal sufﬁ-

ciency of a complaint, and summary disposition is

proper if “the claims alleged are so clearly unenforceable

as a matter of law that no factual development could

possibly justify recovery.” Maiden v Rozwood, 461 Mich

109, 119; 597 NW2d 817 (1999) (quotation marks and

citation omitted). “When deciding a motion brought

under this section, a court considers only the pleadings.”

Id. at 119-120, citing MCR 2.116(G)(5).

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This dispute primarily involves the interpretation

and application of MCR 2.201.

Interpretation of a court rule is a question of law that this

Court reviews de novo. CAM Constr v Lake Edgewood

Condo Ass’n, 465 Mich 549, 553; 640 NW2d 256 (2002).

When interpreting a court rule, we apply the same rules

as when we engage in statutory interpretation. Id. at 553.

The overriding goal of judicial interpretation of a court

rule is to give effect to the intent of the authors. See

Bio-Magnetic Resonance, Inc v Dep’t of Pub Health, 234

Mich App 225, 229; 593 NW2d 641 (1999). The starting

point of this endeavor is the language of the court rule. Id.

If the language of the court rule is clear and unambiguous,

then no further interpretation is required or allowed.

CAM Constr, [465 Mich at 554]. However, when reason-

able minds can differ on the meaning of the language of

the rule, then judicial construction is appropriate. Bene-

dict v Dep’t of Treasury, 236 Mich App 559, 563; 601 NW2d

151 (1999). [Wilcoxon v Wayne Co Neighborhood Legal

Servs, 252 Mich App 549, 553; 652 NW2d 851 (2002).]

III. ANALYSIS

A. NEXT-FRIEND APPOINTMENT

Plaintiff ﬁrst contends that the trial court erred by

granting defendants’ motion for summary disposition

on the ground that Curtis was not the “real party in

interest” at the time the complaint was ﬁled because

she had not yet been appointed plaintiff’s next friend.

We agree.

“ ‘An action must be prosecuted in the name of the

real party in interest . . . .’ ” Maki Estate v Coen, 318

Mich App 532, 539; 899 NW2d 111 (2017), quoting

MCR 2.201(B). “ ‘A real party in interest is one who is

vested with the right of action on a given claim,

although the beneﬁcial interest may be in another.’ ” In

re Beatrice Rottenberg Living Trust, 300 Mich App 339,

344 328 M

ICH

337 [May

356; 833 NW2d 384 (2013), quoting Hofmann v Auto

Club Ins Ass’n, 211 Mich App 55, 95; 535 NW2d 529

(1995). The real-party-in-interest rule “recognizes that

litigation should be begun only by a party having an

interest that will [ensure] sincere and vigorous advo-

cacy.” Kalamazoo v Richland Twp, 221 Mich App 531,

534; 562 NW2d 237 (1997). The rule also protects the

defendant by “requir[ing] that the claim be prosecuted

by the party who by the substantive law in question

owns the claim asserted” against the defendant. Bea-

trice Rottenberg Living Trust, 300 Mich App at 356

(quotation marks and citation omitted).

There can be no serious dispute that plaintiff owns

the medical malpractice claim arising from injuries

allegedly resulting from his surgery. Michigan courts

have held that when a plaintiff acts on behalf of a

minor in a representative capacity, the cause of action

still belongs to the minor. See, e.g., Gumienny v Hess,

285 Mich 411, 414; 280 NW 809 (1938) (recognizing

that when a minor is injured, the minor accrues a

cause of action); Walter v Flint, 40 Mich App 613, 615;

199 NW2d 264 (1972) (“In Michigan, an infant’s cause

of action for damages and the parents’ cause of action

to recover their expenses and loss of services, though

arising from the same set of circumstances, are sepa-

rate and independent causes of action.”); Broitman v

Kohn, 16 Mich App 400, 402; 168 NW2d 311 (1969)

(recognizing that when a father pursues a claim for his

daughter’s injuries, his claim is “in reality her cause of

action”).

See also Nielsen v Henry H Stevens, Inc, 359 Mich 130, 134; 101

NW2d 284 (1960). In Nielsen, a truck owned by the defendant struck a

minor while he was riding his bicycle. Id. at 131. The minor’s father

brought claims seeking recovery for the boy’s injuries “and in his own

right to recover for hospital and doctor bills.” Id. In a concurring opinion,

Justice B

LACK

explained:

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As demonstrated by Gumienny, Walter, and

Broitman, Michigan’s substantive law supports the

conclusion that when a minor is negligently injured

by another and sues through his or her next friend,

the claim still belongs to the minor, and it is the minor

who is the real party in interest. The trial court and

defendants rely on Cotter’s assertion that “[a] next

friend is the real party in interest, even though the

beneﬁcial interest rests with the minor,” to argue that

Curtis is the real party in interest while the beneﬁcial

interest rests with plaintiff. Cotter, unpub op at 3.

However, the distinction between the real party in

interest from the one with the beneﬁcial interest

typically arises in circumstances involving statutory

standing

and assignment of claims,

in cases in which

plaintiffs appear not to have an economic interest in

Before us are 2 separate rights of action. They arise together

from the same factual circumstances, yet differ markedly by

force of rules governing sustenance in court of each right. The

ﬁrst of such rights belongs to a little boy; not his parent,

guardian, or next friend. He is the legal plaintiff in his case and

is the real party in interest. [Id. at 134 (B

LACK

, J., concurring)

(emphasis added).]

See, e.g., Rohde v Ann Arbor Pub Sch, 265 Mich App 702, 707-709;

698 NW2d 402 (2005) (holding that taxpayer plaintiffs were real parties

in interest because they had statutory standing to bring an action on

behalf and for the beneﬁt of the treasurer of the Ann Arbor Public

Schools); Blue Cross & Blue Shield of Mich v Eaton Rapids Comm Hosp,

221 Mich App 301, 311-312; 561 NW2d 488 (1997) (holding that the

plaintiff that administered the General Motors health plan and had

contractual and statutory standing was a real party in interest for

purposes of a recovery action).

See, e.g., Cannon Twp v Rockford Pub Sch, 311 Mich App 403, 412;

875 NW2d 242 (2015) (holding that the township, as an assignee of

homeowners whose home suffered damage due to an event caused by the

school system’s water-ﬁltration system, had standing to sue the school

district); In re Beatrice Rottenberg Living Trust, 300 Mich App at

354-356 (holding that the plaintiff was not the proper party to pursue

346 328

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337 [May

the outcome of litigation,

or when contracts are in-

volved.

Defendants have not cited any statute or

published authority—nor have we found either—that

makes this distinction when a next friend acts on

behalf of a minor to pursue the minor’s personal-injury

claim. In fact, Gumienny, Broitman, and Nielsen sup-

port the conclusion that when a personal-injury claim

belongs to a minor and a court-appointed next friend

serves merely to bring the minor’s claim and pay the

costs of litigation, there is no distinction between the

real party in interest (the child) and the party with the

beneﬁcial interest (also the child).

claims concerning the ownership of the right to demand repayment of

loans to the decedent; that right belonged exclusively to the trustee of

the decedent’s trust).

See, e.g., Hofmann, 211 Mich App at 96 (holding that even though

the plaintiffs were test litigants and the litigation was ﬁnanced by the

Michigan Chiropractic Legal Action Commission, the individual chiro-

practors were real parties in interest because they had provided the

products and services for which the suit sought reimbursement);

Weston v Dowty, 163 Mich App 238, 242-243; 414 NW2d 165 (1987)

(holding that the homeowner plaintiffs were real parties in interest

even though they had agreed to give any proceeds obtained in their

legal malpractice lawsuit to the slip-and-fall victim who had obtained

a judgment against them because of the defendants’ legal malpractice);

Rite-Way Refuse Disposal, Inc v VanderPloeg, 161 Mich App 274,

278-279; 409 NW2d 804 (1987) (holding that when the plaintiff

corporation had sold its vending-machine business to a third party but

retained a security interest in the business’s physical assets, the

retention was sufﬁcient to establish the plaintiff as a real party in

interest).

See Pontiac Police & Fire Retiree Prefunded Group Health & Ins

Trust Bd of Trustees v City of Pontiac No 2, 309 Mich App 611, 623-624;

873 NW2d 783 (2015) (holding that the plaintiff was not a real party in

interest in a lawsuit alleging that the city improperly reduced beneﬁts

through executive orders because the plaintiff was not a party to the

collective-bargaining agreement (CBA) at issue and was not an as-

signee of a party to the CBA or a third-party beneﬁciary of the CBA).

Defendants rely on Woodman v Kera LLC, 486 Mich 228; 785 NW2d

1 (2010), and Smith v YMCA of Benton Harbor/St Joseph, 216 Mich

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In addition, contrary to defendants’ position, the

court rule governing a trial court’s appointment of a

next friend does not require such appointment prior to

or simultaneous with the ﬁling of a complaint on behalf

of the minor. A minor may sue and be sued as provided

by MCR 2.201(E), which lays out the rules of represen-

tation and the procedure for appointing representa-

tives for minors in court proceedings, including for

minor plaintiffs. MCR 2.201(E)(1)(a) provides, in rel-

evant part, that if a minor has a conservator, the

conservator may bring actions on behalf of the minor. If

a minor plaintiff does not have a conservator, “the

court shall appoint a competent and responsible person

to appear as next friend on his or her behalf, and the

next friend is responsible for the costs of the action.”

MCR 2.201(E)(1)(b).

The appointment of representatives for minors is

dictated by MCR 2.201(E)(2), which states, in relevant

part:

(a) Appointment of a next friend or guardian ad litem

shall be made by the court as follows:

* * *

(ii) if the party is a minor under 14 years of age or an

incompetent person, on the nomination of the party’s next

of kin or of another relative or friend the court deems

App 552; 550 NW2d 262 (1996), to support their argument that Curtis,

as plaintiff’s mother, has no authority to act on plaintiff’s behalf.

Defendants’ reliance is misplaced. Woodman and Smith conﬁrmed that

parents have no authority to waive, release, or compromise their

child’s claim. Woodman, 486 Mich at 242-245 (opinion by Y

OUNG

, J.);

Smith, 216 Mich App at 554. Curtis is doing none of these things.

Rather, as plaintiff’s court-appointed next friend, she is acting on

behalf of plaintiff to pursue his medical malpractice claim against

defendants. Woodman and Smith have no applicability to the facts in

the case at bar.

348 328

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337 [May

suitable, accompanied by a written consent of the person

to be appointed; or

(iii) if a nomination is not made or approved within 21

days after service of process, on motion of the court or of a

party.

(b) The court may refuse to appoint a representative it

deems unsuitable.

Nothing in the plain language of MCR 2.201(E)

requires the ﬁling of a petition for appointment or the

completion of a next-friend appointment before suit or

simultaneously with the ﬁling of a complaint on behalf

of a minor, nor do defendants point to any current

statute or court rule containing such a requirement. In

fact, the court rule repeatedly refers to what “the

court” must do, clearly implying that it is the court

assigned to the minor’s lawsuit that handles the next-

friend appointment process. In other words, the court

rule implicitly assumes the complaint has already been

ﬁled, and properly so, even though no next friend has

yet been appointed.

The Judicature Act of 1915 contained language explicitly requiring

the circuit court to appoint a next friend before a complaint was ﬁled or

process was issued in the name of a minor who would be the sole

plaintiff. See 1915 CL 12379; 1948 CL 612.28 (“Whenever an infant . . .

shall have a right of action, he shall be entitled to maintain a suit

thereon, but before the declaration or bill of complaint is ﬁled or any

process issued in the name of such person who is [the] sole plaintiff, the

circuit judge or circuit court commissioner of the same county shall

appoint a competent and responsible person to appear as next friend for

such plaintiff . . . .”). The Legislature expressly repealed this require-

ment when it enacted the Revised Judicature Act of 1961. See MCL

600.9901. “[A] change in statutory language is presumed to reﬂect either

a legislative change in the meaning of the statute itself or a desire to

clarify the correct interpretation of the original statute.” Bush v Sha-

bahang, 484 Mich 156, 167; 772 NW2d 272 (2009), citing Lawrence

Baking Co v Unemployment Compensation Comm, 308 Mich 198, 205;

13 NW2d 260 (1944). Because this Court “cannot assume that the

change means nothing at all,” this Court cannot assume that the

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The language in MCR 2.201(E) expressly address-

ing circumstances under which the court is required

to make such an appointment after a complaint is

ﬁled further belies the notion that a next friend must

be appointed prior to or along with the ﬁling of a

complaint. Pursuant to MCR 2.201(E)(2)(a)(ii), when

the minor is under 14 years old, “[a]ppointment of a

next friend . . . shall be made by the court . . . on the

nomination of the [minor’s] next of kin or of another

relative or friend the court deems suitable . . . .” In

addition, “if a nomination is not made or approved

within 21 days after service of process, on motion of

the court or of a party” the court shall appoint a next

friend.

MCR 2.201(E)(2)(a)(iii) (emphasis added). The

latter provision signiﬁes that the lack of a precom-

plaint next-friend appointment—or a simultaneously

ﬁled nomination with the complaint and immediate

next-friend appointment (the timing of which is in the

requirement of appointing a next friend before a complaint is ﬁled still

pertains. See Bush, 484 Mich at 170.

Moreover, even while the Judicature Act of 1915—and its mandatory

precomplaint appointment process—was in force, courts regularly over-

looked technical deﬁciencies in the next-friend appointment process.

Our Supreme Court held that strict compliance with the requirement of

a formal precomplaint appointment process was not necessary, instead

concluding that

[i]t is not an absolute prerequisite to jurisdiction of an action by

an infant that he should sue by guardian ad litem or next friend;

but a failure to appoint a guardian ad litem or next friend for an

infant plaintiff merely affects the regularity of the proceedings,

and the defect is one which before verdict is amendable, and

after verdict and judgment is cured. [Graham v Nippress, 222

Mich 386, 388; 192 NW 683 (1923) (quotation marks and

citation omitted).]

Defendants argue that MCR 2.201(E)(2)(a)(iii) must be referring

only to next-friend appointments for minor defendants, but the plain

language of the court rule does not require this restrictive interpreta-

tion.

350 328

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337 [May

court’s control)

—is not fatal to the minor’s case.

Because a plaintiff serves a complaint only subsequent

MCR 2.201(E)(2)(b) provides that “[t]he court may refuse to appoint

a representative it deems unsuitable.” Under defendants’ proposed sce-

nario, even if a petition for appointment of a next friend is ﬁled with the

complaint, the timing of a next-friend appointment is ultimately within

the court’s control and therefore will dictate whether there is any sand

left in the statute-of-limitations hourglass in order to save the minor

plaintiff’s case from being dismissed with prejudice despite being timely

ﬁled.

There are ample factual recitations that demonstrate that the

failure to appoint a next friend prior to commencement of a suit is not

fatal to the suit. See, e.g., Markham v Markham, 4 Mich 305, 307 (1856)

(explaining that no statute, court rule, or other substantive law required

dismissal of the complaint based on the absence of a formally appointed

next friend before commencement of the suit); Sick v Mich Aid Ass’n, 49

Mich 50, 52-53; 12 NW 905 (1882) (concluding that when the plaintiff

failed to designate herself as next friend, she was “really and manifestly

proceeding as such,” “appointment in such a case would be a mere

formality,” and “the court should have directed an amendment instead of

sending the infants out of court for a defect so easily remedied”); Kees v

Maxim, 99 Mich 493, 497; 58 NW 473 (1894) (acknowledging that “[t]he

usual and proper course is to entitle a cause in the name of the infant by

his next friend,” but ordering amendment of a judgment because it was

“plainly apparent from the face of the summons that [plaintiff] was

prosecuting in the capacity and character of next friend” of the injured

party); McDonald v Weir, 76 Mich 243, 246-247; 42 NW 1114 (1889)

(rejecting the argument “that the plaintiffs must be nonsuited because

no next friend had been appointed for [the minor] before commencement

of suit” when the minor’s status “must have been fully understood by

defendant”); Dillon v Howe, 98 Mich 168, 170; 57 NW 102 (1893)

(holding that the trial court’s appointment of a next friend after

issuance of process was valid); Kamieniecki v Garden City Hosp,

Osteopathic, 375 Mich 257, 260; 134 NW2d 219 (1965) (holding that

there was no error when a next friend was not appointed until the eve

of trial). Defendants argue that all these cases are distinguishable from

the issue at bar because they do not address the effect of the expiration

of a period of limitations prior to appointment of the next friend. They

assume from the silence that trial courts appointed next friends prior to

expiration of the limitations period. However, it is equally likely that

ﬁling a complaint prior to expiration of the relevant limitations period

tolled the period, as is true today under MCL 600.5856(a). Moreover,

these cases perfectly illustrate that a court is not required to dismiss a

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to its ﬁling, MCR 2.105, these rules presuppose that it

makes no practical difference whether a minor party

obtains an appointment of a next friend before or after

the ﬁling of a complaint. In sum, our court rules

operate in a manner that supports plaintiff’s position

that the absence of a precomplaint appointment or a

petition simultaneously ﬁled with the complaint does

not render defective a timely ﬁled complaint on behalf

of a minor plaintiff. In the case at bar, these absences

merely delayed the formal appointment as next friend

of plaintiff’s “natural guardian” and the person who “is

really and manifestly proceeding as [plaintiff’s next

friend].” Sick v Mich Aid Ass’n, 49 Mich 50, 52; 12 NW

905 (1882).

To summarize, the governing court rules and case-

law clearly indicate that a minor is the real party in

interest in a claim for damages arising from alleged

medical malpractice and that the appointment of a

next friend prior to or simultaneous with the ﬁling of

the complaint on behalf of the minor is not expressly

required. However, even if we were to assume for the

sake of argument that, despite having ﬁled a timely

complaint, plaintiff was nevertheless required to en-

sure that the trial court appointed a next friend by the

very next day, March 23, 2017,

before the statute of

limitations was set to expire, MCL 600.2301 operates

in favor of reinstating plaintiff’s case. MCL 600.2301

provides:

minor’s suit simply because the person clearly acting as his or her next

friend has yet to be formally appointed.

It is worth noting that plaintiff was not permitted to ﬁle his lawsuit

until the NOI waiting period set forth in MCL 600.2912b expired. Tyra

v Organ Procurement Agency of Mich, 498 Mich 68, 78, 94; 869 NW2d

213 (2015). It is not entirely clear how plaintiff could have obtained a

next-friend appointment before the lawsuit commenced.

352 328

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337 [May

The court in which any action or proceeding is pending,

has power to amend any process, pleading or proceeding in

such action or proceeding, either in form or substance, for

the furtherance of justice, on such terms as are just, at any

time before judgment rendered therein. The court at every

stage of the action or proceeding shall disregard any error

or defect in the proceedings which do not affect the sub-

stantial rights of the parties.

“The language in MCL 600.2301 requiring a court to

disregard ‘any’ errors or defects if no substantial rights

are affected plainly and unambiguously reaches both

content and noncontent errors or defects, as the term

‘any’ is all-inclusive.” Furr v McLeod, 304 Mich App 677,

702-703; 848 NW2d 465 (2014), reversed in part sub

nom Tyra v Organ Procurement Agency of Mich, 498

Mich 68 (2015). Defendants cannot claim any surprise

or resulting prejudice on these facts. Plaintiff, not Cur-

tis, is the real party in interest in this case, so no new

parties are being added with her appointment as next

friend. Curtis, plaintiff’s mother and the person who

would be seeking to be appointed next friend, was

named in the case caption of the complaint. Defendants,

who had full access to the registry of actions, were able

to see that the trial court had not yet formally appointed

Curtis as next friend. MCR 2.201(E)(2)(c). Yet they

proceeded to conduct discovery and raised no concern

until the time plaintiff ﬁled the September 8, 2017

petition for appointment of a next friend. Id. The trial

court, apparently without any hesitation, granted plain-

tiff’s petition and appointed Curtis as next friend for her

son as originally intended and as unambiguously stated

on the complaint. Defendants argue that reinstating the

case will deprive them of the substantial statute-of-

limitations defense. However, as will be explained later,

defendants have failed to show that, under the circum-

stances of this case, they were entitled to a statute-of-

limitations defense.

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B. STATUTE OF LIMITATIONS

Plaintiff argues that his complaint was timely ﬁled

and that process was properly served; therefore, the

trial court obtained jurisdiction over defendants. Ac-

cordingly, the ﬁling of the complaint tolled the period of

limitations, and the trial court ought to have corrected

any technical error relating to the next-friend appoint-

ment process and allowed plaintiff’s case to proceed in

the normal course. Defendants, meanwhile, argue that

the statute of limitations was not tolled until a next

friend was appointed. We agree with plaintiff. “Whether

a period of limitations applies in particular circum-

stances constitutes a legal question that this Court also

considers de novo.” Carmichael v Henry Ford Hosp, 276

Mich App 622, 624; 742 NW2d 387 (2007).

MCL 600.5856 provides the substantive rule for

tolling statutory periods of limitations or repose:

The statutes of limitations or repose are tolled in any of

the following circumstances:

(a) At the time the complaint is ﬁled, if a copy of the

summons and complaint are served on the defendant

within the time set forth in the supreme court rules.

(b) At the time jurisdiction over the defendant is

otherwise acquired.

applicable notice period under section 2912b, if during

that period a claim would be barred by the statute of

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

not longer than the number of days equal to the number of

days remaining in the applicable notice period after the

date notice is given.

MCL 600.5856(a) applies in this case to toll the

applicable period of limitations pending proper service.

Defendants do not contend that plaintiff failed to timely

ﬁle the complaint or complete the service of process as

354 328 M

ICH

337 [May

permitted by our court rules. Instead, defendants con-

tinue to argue that the trial court did not formally

appoint Curtis before the expiration of the applicable

limitations period, so she was never a “real party in

interest” and that plaintiff, as a minor, did not have a

right to commence suit in the ﬁrst instance. Defendants

conﬂate the requirements of establishing capacity to sue

and standing/real party in interest. “Our Supreme

Court has held that the defense that a plaintiff is not the

real party in interest ‘is not the same as the legal-

capacity-to-sue defense.’ ” Pontiac Police & Fire Retiree

Prefunded Group Health & Ins Trust Bd of Trustees v

Pontiac No 2, 309 Mich App 611, 620; 873 NW2d 783

(2015), quoting Leite v Dow Chem Co, 439 Mich 920, 920

(1992). As we have already explained, an action must be

prosecuted by the real party in interest, plaintiff is the

real party in interest in the case at bar, and he is

prosecuting the case through his next friend.

Further, it is blackletter law that “[a] civil action is

commenced by ﬁling a complaint with the court.” MCL

600.1901. It is the date of ﬁling that is signiﬁcant for

statute-of-limitations defenses. See Dunlap v Shefﬁeld,

193 Mich App 313, 315-316; 483 NW2d 464 (1992). “In

general, . . . a statute of limitations requires only that

a complaint be ﬁled within the limitation period.”

Scarsella v Pollak, 461 Mich 547, 552 n 3; 607 NW2d

711 (2000).

It is simply not the case, as defendants suggest, that

permitting this case to proceed will result in a limitless

statutory limitations period. Rather, commencement of

suit must always occur within the period of limitations

(as tolled where applicable). Subsequently, pursuant to

the mandatory requirements of MCR 2.201(E), the trial

court must then make certain that a representative for

the minor (whether a conservator or a next friend) is in

place to carry the suit forward if appropriate.

2019] O

LIN V

ERCY

EALTH

ACKLEY

355

There is no principled reason under the court rules

or in Michigan’s decisional law to require that the

next-friend appointments occur before commencing

suit or before the expiration of the statutory limita-

tions period, even after a complaint has been ﬁled.

Even if a minor brings a suit to judgment without the

appointment of a next friend, if represented by an

attorney, our Legislature has provided that the judg-

ment is valid. See MCL 600.2315(5).

Similarly, our

Supreme Court has held that “[t]he validity of the

proceedings and jurisdiction of the court in the prem-

ises is not defeated by the fact that a next friend had

not been appointed at an earlier stage in the proceed-

ings.” Kamieniecki v Garden City Hosp, Osteopathic,

375 Mich 257, 260; 134 NW2d 219 (1965). Therefore, it

makes no sense to conclude that the formal appoint-

ment of a next friend is a meaningful date for statute-

of-limitations purposes.

Reversed and remanded for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion.

ECKERING

, P.J., and S

ERVITTO

and S

TEPHENS

, JJ.,

concurred.

MCL 600.2315 provides, in pertinent part:

When a verdict has been rendered in a cause, the judgment

thereon shall not be stayed, nor shall any judgment upon confes-

sion, or default, be reversed, impaired, or in any way affected, by

reason of the following imperfections, omissions, defects, matters

or things, or any of them, in the pleadings, process, record or

proceedings, namely:

* * *

(5) For a party under 18 years of age, having appeared by

attorney, if the verdict or judgment be for him.

356 328

ICH

337 [May

KUHLGERT v MICHIGAN STATE UNIVERSITY

OSTENDORF v MICHIGAN STATE UNIVERSITY

Docket Nos. 332442, 338363, and 344533. Submitted April 3, 2019, at

Lansing. Decided May 21, 2019, at 9:15 a.m. Leave to appeal

sought.

Plaintiff Elisabeth Ostendorf sustained serious injuries when she

was hit by a truck as she was walking from her place of

employment on the Michigan State University (MSU) campus to

the lot where her car was parked, also on the MSU campus.

Ostendorf was a German national who was in the United States

on a J-1 visa as a participant in an Exchange Visitor Program

(EVP) under the Mutual Educational and Cultural Exchange Act

(MECEA), 22 USC 2451 et seq. Ostendorf worked for MSU as a

postdoctoral research associate and lead scientist on a project

funded by the Department of Energy. Ostendorf was hit by an

MSU vehicle that was backing up to a loading dock as she walked

across a driveway about 900 feet from the building where she

worked. In Docket No. 332442, Ostendorf’s conservator, Sebas-

tian Kuhlgert, ﬁled a negligence claim in the Court of Claims

against MSU and its Board of Trustees. Kuhlgert did not ﬁle a

claim for workers’ compensation beneﬁts, and MSU did not report

any injury to the workers’ compensation bureau. MSU’s no-fault

insurer was State Farm Mutual Automobile Insurance Company,

and MSU’s excess-liability insurer was United Educators

(United). United would not provide coverage for any obligation if

MSU could be held liable under the workers’ compensation law.

Nearly one year after the complaint was ﬁled, United moved to

intervene in the action because it believed that MSU had failed to

pursue the argument that Ostendorf’s claim was subject to the

exclusive-remedy provision in the Worker’s Disability Compensa-

tion Act (WDCA), MCL 418.101 et seq. The Court of Claims,

YNTHIA

D. S

TEPHENS

, J., ruled that United’s motion was untimely

and that MSU had adequately represented United’s interests by

raising the exclusive-remedy provision in its afﬁrmative defenses.

The Court of Appeals denied United’s application for leave to

appeal the Court of Claims’ ruling, and United ﬁled for leave to

appeal in the Supreme Court. While the application for leave was

pending in the Supreme Court, United and State Farm ﬁled

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petitions in a separate proceeding before the Workers’ Compen-

sation Board of Magistrates. The issues raised in the separate

proceeding were (1) whether Ostendorf was an employee under

the WDCA and (2) whether Ostendorf was injured in the course of

her employment. The Court of Claims case was ultimately re-

manded back to the Court of Appeals for consideration as on leave

granted with instructions to determine whether Ostendorf’s

claim was barred by the exclusive-remedy provision of the WDCA

and, if not, whether the Court of Claims erred by denying

United’s motion to intervene. 500 Mich 890 (2016). The Court of

Appeals agreed to hold the appeal in abeyance pending the

workers’ compensation magistrate’s decision. The magistrate

issued her decision in February 2017, concluding that Ostendorf

was exempt from the deﬁnition of employee in MCL 418.161(1)(b),

and United ﬁled a claim for review with the Michigan Compen-

sation Appellate Commission (MCAC). In Docket No. 338363,

United ﬁled an emergency delayed application for leave to appeal

after the Court of Claims denied its second motion to intervene.

The Court of Claims had held a trial at which United was not

present and after which the Court of Claims ruled that workers’

compensation did not apply. The Court of Appeals initially denied

leave to appeal, but following an order of the Supreme Court, 501

Mich 950 (2018), the Court granted leave to appeal limited to

whether Ostendorf was an MSU employee for purposes of the

WDCA and whether United had the right to intervene. The

appeals in Docket Nos. 332442 and 338363 were held in abeyance

pending a decision of the MCAC. Abeyance was concluded the day

after the MCAC issued its opinion in June 2018. In Docket No.

344533, United ﬁled for leave to appeal the MCAC decision that

adopted in full the magistrate’s legal conclusion that Ostendorf

was not an MSU employee for purposes of the WDCA. The Court

of Appeals granted United’s application for leave to appeal.

Docket Nos. 332442, 338363, and 344533 were ultimately consoli-

dated to resolve the question whether plaintiff’s tort claim is

barred by the exclusive-remedy provision of the WDCA and, if

not, whether the Court of Claims erred by denying United’s

motions to intervene.

The Court of Appeals held:

1. Foreign nationals employed under the MECEA are exempt

under MCL 418.161(7)(b) from the deﬁnition of “employee” in the

WDCA, and therefore, Ostendorf’s employment status—a Ger-

man national in the United States with a J-1 visa employed under

the MECEA—removed her from coverage under the WDCA. If

Ostendorf had qualiﬁed as an MSU employee for purposes of the

358 328

ICH

357 [May

WDCA, the exclusive-remedy provision in the WDCA would have

precluded her from recovering for damages resulting from negli-

gence or other nonintentional torts. United argued that Ostendorf

was an “employee” for purposes of the WDCA because MSU, not

the Department of State, paid her salary. The MECEA, 22 USC

2452(a)(1), authorizes the Director of the United States Informa-

tion Agency to provide international educational exchanges by

ﬁnancing studies, research, instructions, and other educational

activities in American schools and institutions of learning for

citizens and nationals of foreign countries. 22 USC 2452(a)(1) is

not limited to those educational exchange employees paid directly

by the State Department, however. The State Department admin-

isters the exchange programs with the assistance of various

third-party sponsors. By its plain language, the statute also

applies to those employees who are indirectly ﬁnanced by the

State Department through an EVP. The language of 22 USC

2452(a)(1) is sufﬁciently broad to permit the speciﬁed authority to

allow or encourage another entity or EVP sponsor, such as a

university, to pay, on behalf of the State Department, the ex-

penses of the participant, including wages and beneﬁts. Because

Ostendorf is a foreign national who is employed by MSU under

the MECEA, she is not an employee for purposes of the WDCA,

and the MCAC correctly concluded that Ostendorf’s employment

with MSU was exempted from WDCA coverage.

2. Even if Ostendorf could have been considered an employee

for WDCA purposes, the exclusive-remedy provision of the WDCA

did not apply because the injury did not arise out of and in the

course of her employment. Except as it concerns intentional torts,

the right to recover beneﬁts under the WDCA is an employee’s

exclusive remedy against the employer for a personal injury

arising out of and in the course of employment. The Bureau of

Worker’s Compensation has exclusive jurisdiction to decide

whether an injury occurred in the course of employment. Conse-

quently, a party’s assertion of the exclusive-remedy provision as a

defense—as United asserts in this case—necessarily constitutes a

challenge to the trial court’s subject-matter jurisdiction over the

claim. Under MCL 418.301(3), an employee’s injury is presumed

to occur in the course of his or her employment when the

employee is injured going to or from work, while on the premises

where the employee’s work is to be performed, and within a

reasonable time before and after his or her working hours.

Notwithstanding that presumption, an injury is not covered

under the WDCA if it is incurred while the employee is in pursuit

of an activity the major purpose of which is social or recreational.

In this case, Ostendorf was 900 feet away from the premises of

2019] K

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where her work was performed even though she was still on the

MSU campus. The large and contiguous nature of the MSU

campus weighs against looking at the premises generally and

instead favors distinguishing between locations in the vicinity of

the actual place of employment and those locations that are far

removed from the actual place of employment. Because Ostendorf

was not injured in the course of her employment on the premises

of the Plant Biology Laboratories Building, the exclusive-remedy

provision of the WDCA would not have barred her negligence

claim against MSU and its Board of Trustees. The Court of

Claims correctly concluded that Ostendorf had ﬁnished her work,

had walked 900 feet from her worksite toward her parked car,

was off her employer’s premises, and was thus outside the

inclusive presumption of MCL 418.301(3).

3. Both intervention by right and permissive intervention are

conditioned on timely application. Under MCR 2.209(A)(3), a

party may intervene by right when the party asserts an interest

in the subject of the action and is so situated that the disposition

of the action may as a practical matter impair or impede the

party’s ability to protect that interest, unless that interest is

adequately represented by existing parties. In deciding whether a

party merits permissive intervention under MCR 2.209(B), a trial

court must consider whether the intervention will unduly delay

or prejudice the adjudication of the rights of the original parties.

United’s motion to intervene was not timely, but it challenged the

Court of Claims’ subject-matter jurisdiction—an issue that can be

raised at any time during a proceeding. United acknowledged

that MSU pleaded the WDCA among its afﬁrmative defenses but

claimed that MSU did not inform United until much later that

MSU was not pursuing the exclusive-remedy defense. No bad

faith on MSU’s part is asserted, and thus, good faith is presumed.

Because United knew of the litigation from its inception and

knew that it had a contractual right to participate in any

attendant defense, United was—at the very least—on notice

concerning the WDCA defense at the time the complaint was

ﬁled. United could have timely ﬁled its motion to intervene, and

the Court of Claims did not abuse its discretion by denying the

motion. Notably, the only interest United has put forward for the

purposes of intervention is its obligation to indemnify MSU to the

extent that MSU may be obligated to cover tort damages in excess

of MSU’s other sources of coverage. But a potential duty to

indemnify a claimant for beneﬁts is separate and distinct from

the underlying claim for beneﬁts, which does not itself justify the

potential indemnitor’s intervention in litigation regarding that

claim. United does not assert subrogation rights or any other

360 328

ICH

357 [May

contractual rights in connection with MSU beyond MSU’s duty of

cooperation. Therefore, United’s interest in the case relates

directly to MSU’s cooperation, not to the possible competing

theories of recovery or remedy. In the end, if MSU ﬁles a claim

against United for excess coverage for tort liability, and United

remains persuaded that MSU did not conscientiously defend

itself or otherwise cooperate with United, United may defend

against MSU’s claim on a contractual basis.

Afﬁrmed.

ORKER

’

ISABILITY

OMPENSATION

— E

XEMPTIONS FROM

EFINITION OF

MPLOYEE

— F

OREIGN

ATIONALS

Foreign nationals employed under the Mutual Educational and

Cultural Exchange Act (MECEA), 22 USC 2451 et seq., and

present in the United States through the Exchange Visitor

Program, are speciﬁcally excluded from the deﬁnition of “em-

ployee” as that term is used in the Worker’s Disability Compen-

sation Act (WDCA) even when the Department of State does not

directly pay their wages; because the MECEA authorizes the

State Department to ﬁnance through a third party a foreign

national’s employment in the United States, a foreign national

whose wages are paid by the educational institution where the

foreign national is employed is not an “employee” under the

WDCA and, therefore, the exclusive-remedy provision of the

WDCA does not apply to the foreign national (MCL

418.161(1)(b)).

Docket No. 332442:

Collins Einhorn Farrell PC (by Michael J. Cook,

Deborah A. Hebert, and Richard A. Joslin) for United

Educators.

Fraser Trebilcock Davis & Dunlap, PC (by Graham

K. Crabtree), Kitch Drutchas Wagner Valitutti &

Sherbrook (by Christina A. Ginter), and Dawda Mann

Mulcahy & Sadler PLC (by Adam Kutinsky) for Michi-

gan State University and the Board of Trustees of

Michigan State University.

Sinas, Dramis, Larkin, Graves & Waldman, PC (by

George T. Sinas, Michael E. Larkin, and Joel T.

Finnell) for Elisabeth Ostendorf.

2019] K

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Docket No. 338363:

Collins Einhorn Farrell PC (by Michael J. Cook,

Deborah A. Hebert, and Richard A. Joslin) and Bursch

Law PLLC (by John J. Bursch) for United Educators.

Fraser Trebilcock Davis & Dunlap, PC (by Graham

K. Crabtree) for Michigan State University and the

Board of Trustees of Michigan State University.

Sinas, Dramis, Larkin, Graves & Waldman, PC (by

George T. Sinas, Michael E. Larkin, and Joel T.

Finnell) for Elisabeth Ostendorf.

Docket No. 344533:

Collins Einhorn Farrell PC (by Deborah A. Hebert

and Richard A. Joslin) and Bursch Law PLLC (by John

J. Bursch) for United Educators.

Fraser Trebilcock Davis & Dunlap, PC (by Anita G.

Fox) for Michigan State University.

Sinas, Dramis, Larkin, Graves & Waldman, PC (by

George T. Sinas, Michael E. Larkin, and Joel T.

Finnell) for Elisabeth Ostendorf.

Before: S

WARTZLE

, P.J., and C

AVANAGH

and C

AMERON

JJ.

AMERON

, J. Elisabeth Ostendorf, a German na-

tional, suffered injuries when a truck owned by Michi-

gan State University (MSU) struck her as she was

walking on campus; these consolidated appeals all

concern whether the injuries triggered the exclusive-

remedy provision of the Worker’s Disability Compen-

sation Act (WDCA), MCL 418.101 et seq. See MCL

418.131(1) (except when an intentional tort is in-

362 328 M

ICH

357 [May

volved, beneﬁts provided by the WDCA constitute an

employee’s “exclusive remedy against the employer

for a personal injury”). If not, then MSU’s no-fault

insurer, State Farm Mutual Automobile Insurance

Company, and its excess-liability insurer, United

Educators (UE), are responsible for providing insur-

ance coverage for her injuries. We afﬁrm.

I. FACTS

Ostendorf was a postdoctoral research associate at

MSU and lead scientist on a project funded through a

grant from the Advanced Research Projects Agency for

the Department of Energy. She was in the United

States on a J-1 visa as a participant in an exchange

visitor program authorized under the Mutual Educa-

tional and Cultural Exchange Act (MECEA), 22 USC

2451 et seq. The goal of Ostendorf’s project was to

screen plants for increased photosynthetic capacity.

She began her work in 2012 for a one-year term, with

the anticipation that the project could be renewed

annually and last for three or more years. She was

injured during her third term.

In October 2014, Ostendorf left the Plant Biology

Laboratories Building where she worked and walked

toward her vehicle, which was parked in a lot located

elsewhere on the MSU campus. She had walked ap-

proximately 900 feet when, while completing a text

message, she emerged from a sidewalk abutting a

driveway at the same time as Cole Gibson was backing

up his truck—an MSU vehicle—toward a loading dock.

The truck struck Ostendorf, and she suffered severe

injuries.

II. PROCEDURAL BACKGROUND

This case involves a lengthy, complicated procedural

history. In March 2015, Ostendorf’s conservator,

2019] K

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Sebastian Kuhlgert (plaintiff), commenced a negligence

action in the Court of Claims against MSU and its

Board of Trustees. Plaintiff did not ﬁle a claim for

workers’ compensation beneﬁts, and MSU did not re-

port an injury to the workers’ compensation bureau.

MSU had an excess-liability insurance policy through

UE that did not provide coverage for any obligation for

which MSU may have been held liable under any

workers’ compensation law. Nearly a year after the

complaint was ﬁled, UE ﬁled a motion to intervene in

the action because it believed that MSU had failed to

pursue the argument that plaintiff’s claims were barred

by the exclusive-remedy provision in the WDCA. The

Court of Claims held that the motion to intervene was

untimely and that MSU had adequately represented

UE’s interests by raising the exclusive-remedy provi-

sion in its afﬁrmative defenses. The court further noted

that the exclusive-remedy provision would not apply if,

at the time of the impact, Ostendorf was not on the

premises where her work was performed. We denied

UE’s application for leave to appeal (Docket No.

332442), and UE ﬁled an application for leave to appeal

in the Michigan Supreme Court.

While the application for leave was pending in our

Supreme Court, UE and State Farm each ﬁled an

Application for Mediation or Hearing-Petition to Inter-

vene in a separate proceeding with the Workers’ Com-

pensation Board of Magistrates. At issue in the sepa-

rate proceeding was not the extent to which Ostendorf

was engaged in her employment with MSU at the

moment of impact, but rather whether she was pre-

cluded from workers’ compensation coverage because

of an exemption from the deﬁnition of “employee” set

forth in MCL 418.161(1)(b) for “[n]ationals of foreign

364 328 M

ICH

357 [May

countries employed pursuant to section 102(a)(1)

[1]

the mutual educational and cultural exchange act of

1961 . . . .”

In November 2016, our Supreme Court remanded

the Court of Claims case to this Court for consideration

as on leave granted with instructions to address the

exclusive-remedy provision of the WDCA and whether

UE could intervene:

The Court of Appeals shall consider: (1) whether the

plaintiff’s claims are barred by the exclusive remedy

provision of the [WDCA], see MCL 418.131(1); Sewell v

Clearing Machine Corp, 419 Mich 56, 62 (1984); and if not,

(2) whether the Court of Claims erred by denying [UE’s]

motion to intervene. [Kuhlgert v Michigan State Univ, 500

Mich 890, 890 (2016).]

In February 2017, UE moved this Court to stay the

appeal pending the outcome of the workers’ compensa-

tion proceedings. We granted UE’s request and agreed

to hold the appeal in abeyance until the workers’

compensation magistrate issued a decision.

In the Workers’ Compensation Board of Magistrates

proceeding, the magistrate examined the text and

history of the pertinent legislation, along with the

documents relating to Ostendorf’s status as a foreign

national in the United States. However, before the

magistrate issued their opinion, plaintiff sought relief

from the Court of Claims, asking the Court of Claims to

consider the issue that was currently before the

magistrate—whether Ostendorf’s employment status

itself exempted her from the deﬁnition of “employee”

for purposes of the WDCA. UE requested that the

Court of Claims decline to address the issue in defer-

ence to the workers’ compensation proceedings and

22 USC 2452(a)(1).

2019] K

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again sought to intervene so that it could challenge

Ostendorf’s status as being exempt from coverage

under the WDCA should the court elect to decide that

issue.

Before the Court of Claims could render a decision,

the WDCA magistrate issued an opinion in which the

magistrate concluded that Ostendorf “was a research

scholar employed by MSU pursuant to . . . the MECEA

and therefore considered not to be an employee pursu-

ant to MCL 418.161(1)(b).” In March 2017, UE ﬁled a

claim for review with the Michigan Compensation

Appellate Commission (MCAC). In April 2017, the

Court of Claims again denied UE’s motion to intervene.

UE then ﬁled an application for leave to appeal that

decision in May 2017 (Docket No. 338363). After the

appeal was ﬁled, the Court of Claims issued another

opinion and order holding that “[t]he errand that took

Dr. Ostendorf to the accident site was purely personal

and in no way related to her employment at MSU” and

that Ostendorf “was employed by MSU under the

United States J-1 Visa program and as such was not

eligible for workers [sic] compensation.” We granted

leave to appeal, consolidated the appeals in Docket

Nos. 332442 and 338363, and ultimately stayed the

proceedings pending the outcome of the proceedings

before the MCAC.

The MCAC issued its opinion and order on June 6,

2018, noting the lack of factual disputes in the case and

adopting in full the magistrate’s legal conclusion that

This Court initially denied leave to appeal the Court of Claims’

decision, but our Supreme Court, in lieu of granting leave, vacated that

order and remanded the case with instructions to hold the consolidated

appeals (Docket Nos. 332442 and 338363) in abeyance pending the

outcome of the proceedings before the MCAC. Kuhlgert v Mich State

Univ, 501 Mich 950 (2018).

366 328

ICH

357 [May

“Ostendorf shall not be considered (an) employee [of

Michigan State University] under the Worker’s Dis-

ability Compensation Act” because of her employment

status under the MECEA. UE ﬁled its application for

leave to appeal in this Court on July 5, 2018 (Docket

No. 344533). This Court granted leave and consoli-

dated the appeal with those in Docket Nos. 332442 and

338363. Ostendorf v Mich State Univ, unpublished

order of the Court of Appeals, entered September 6,

2018 (Docket No. 344533).

Our Supreme Court has directed this Court to

determine whether plaintiff’s claims are barred by the

exclusive-remedy provision of the WDCA and, if not,

whether the Court of Claims erred by denying UE’s

motion to intervene.

III. EXCLUSIVE REMEDY UNDER MCL 418.131(1)

UE argues that the Court of Claims erred in two

ways when it concluded that compensation under the

WDCA was not Ostendorf’s exclusive remedy for her

injuries. First, UE argues that Ostendorf is not ex-

empted as a foreign national under MCL 418.161(1)(b)

of the WDCA. Second, UE argues that Ostendorf’s

injuries occurred while in the course of her employ-

ment, and that therefore, workers’ compensation is her

exclusive remedy.

A. FOREIGN-NATIONALS EXEMPTION UNDER MCL 418.161(1)(b)

UE ﬁrst argues that the Court of Claims and the

MCAC erred when they concluded that Ostendorf’s

employment status removed her from coverage under

the WDCA by way of MCL 418.161(1)(b), which ex-

empts “foreign nationals” from the deﬁnition of “em-

ployee.” We disagree.

2019] K

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This Court reviews a trial court’s ﬁndings of fact for

clear error. MCR 2.613(C). The MCAC reviews a deci-

sion of the Workers’ Compensation Board of Magis-

trates to determine whether the decision is supported

by competent, material, and substantial evidence on

the whole record; absent fraud, the MCAC’s factual

conclusions are conclusive on appeal if supported by

any competent record evidence. Omian v Chrysler

Group LLC, 309 Mich App 297, 306; 869 NW2d 625

(2015). “A decision of the [MCAC] is subject to reversal

if it is based on erroneous legal reasoning or the wrong

legal framework.” Id. (quotation marks and citation

omitted). “Although judicial review of a decision by the

MCAC is limited, questions of law in a workers’ com-

pensation case, including the proper interpretation of a

statute, are reviewed de novo.” Arbuckle v Gen Motors

LLC, 499 Mich 521, 531; 885 NW2d 232 (2016).

It is undisputed that MSU, as an employer, generally

comes under the protections and requirements of the

WDCA. The exclusive-remedy provision under the

WDCA requires that “[a]n employee” receive compensa-

tion as provided under the act. See MCL 418.301(1)

(emphasis added). The WDCA deﬁnes “employee”

broadly, see MCL 418.161, but in doing so sets forth the

following exemption: “Nationals of foreign countries

employed pursuant to section 102(a)(1) of the [MECEA]

shall not be considered employees under this act.” MCL

418.161(1)(b).

It is also undisputed that, as the WDCA magistrate

found, “the Exchange Visitor Program (EVP) is an

international exchange program administered by the

Department of State to implement the MECEA by

means of educational and cultural programs,” that

“[t]he EVP program is commonly known as the ‘J visa

program’ as participants in the program are issued a ‘J’

368 328 M

ICH

357 [May

non-immigrant visa for entry into the United States,”

and that “[Ostendorf] was in the United States pursu-

ant to a J-1 visa . . . .” However, UE maintains that

Ostendorf was an employee because MSU, not the

State Department, paid her salary.

The WDCA magistrate acknowledged that the

MECEA was “subsequently codiﬁed in 22 USC Section

2451, et seq. . . .” That section, now designated as 22

USC 2452, was incorporated by reference in MCL

418.161(1)(b) and sets forth the activities authorized

under the MECEA. 22 USC 2452(a) authorizes the

Director of the United States Information Agency, in

the interest of “strengthen[ing] international coopera-

tive relations, to provide, by grant, contract, or other-

wise,” for the following:

(1) educational exchanges, (i) by ﬁnancing studies,

research, instruction, and other educational activities—

(A) of or for American citizens and nationals in foreign

countries, and

(B) of or for citizens and nationals of foreign countries

in American schools and institutions of learning located in

or outside the United States;

and (ii) by ﬁnancing visits and interchanges between the

United States and other countries of students, trainees,

teachers, instructors, and professors . . . . [Emphasis

added.]

The tribunals below thoroughly analyzed the perti-

nent statutory and legislative history and concluded

that Ostendorf’s employment excluded her from

WDCA beneﬁts under MCL 418.161(1)(b). We agree

that 22 USC 2452(a)(1) is not limited to those educa-

tional exchange employees paid directly by the State

Department. Instead, by its plain language, the stat-

ute also applies to those employees who are indirectly

ﬁnanced by that entity through its EVPs.

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UE now argues that “Ostendorf’s position was ﬁ-

nanced by MSU, not the Department of State” and so

the MECEA does not apply and her exclusive remedy

for recovery is under the WDCA. In doing so, UE

characterizes 22 USC 2452(a)(1) as authorizing the

State Department “to directly ﬁnance exchange pro-

grams.” Thus, UE attempts to bolster its position by

inserting the word “directly” before “ﬁnance,” though

the legislation actually refers more generally to mere

“ﬁnancing.” In its second brief, UE refrains from

speaking of “direct” ﬁnancing, but nonetheless frames

its argument as if the “ﬁnancing” of an EVP partici-

pant necessarily requires that the State Department,

not an EVP, pay a participant’s compensation for

attendant employment. In neither brief does UE ac-

knowledge that the State Department might ﬁnance

its EVP, including in connection with Ostendorf, by

means other than directly paying salaries or stipends.

We agree with the MCAC that the language of 22 USC

2452(a)(1) is sufﬁciently broad to permit the speciﬁed

authority to allow or encourage another entity or EVP

sponsor, “such as a university, to pay, on behalf of the

State Department, expenses of the participant, includ-

ing wages and beneﬁts,” and “does not bar the State

Department from providing ﬁnancing through a spon-

sor or some other benefactor.” The MCAC further noted

that, in this case, “the sponsor is, by contract with a

federal government grant recipient, entitled to seek

reimbursement from federal grant funds for compen-

sation and expenses it pays the foreign national.”

UE musters legislative history in support of the

proposition that 22 USC 2452(a)(1) applies to Ful-

bright scholars, which is a program “ﬁnanced by the

Department of State.” However, UE fails to appreciate

that identifying Fulbright scholars as being employed

pursuant to 22 USC 2452(a)(1) does not mean that

370 328 M

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EVP participants less directly supported by the State

Department can not also be employed pursuant to 22

USC 2452(a)(1). The regulations implementing the

EVP include that “(a)n exchange visitor may receive

compensation from the sponsor or the sponsor’s appro-

priate designee, such as the host organization, when

employment activities are part of the exchange visi-

tor’s program,” 22 CFR 62.16(a), thus indicating that

attendant salaries need not be funded directly by the

State Department but may in fact be provided by other

entities participating in the program.

Also instructive is ASSE Int’l, Inc v Kerry, 803 F3d

1059 (CA 9, 2015). In that case, the Ninth Circuit

recognized that entities other than the State Depart-

ment are eligible to act as sponsors of the EVP. See id.

at 1064 (“The Department of State administers the

EVP, with the assistance of various third-party pro-

gram sponsors.”).

For these reasons, we hold that the Court of Claims

and the MCAC correctly concluded that Ostendorf’s

employment with MSU was exempted from WDCA

coverage under MCL 418.161(1)(b).

B. COURSE OF EMPLOYMENT

UE also argues that the Court of Claims erred when

it concluded that Ostendorf’s injuries did not arise out

of the course of her employment. We disagree.

This Court reviews a trial court’s ﬁndings of fact for

clear error. MCR 2.613(C). Questions of law, including

statutory interpretation, are reviewed de novo.

Thompson v Thompson, 261 Mich App 353, 358; 683

NW2d 250 (2004). The question whether a tribunal has

subject-matter jurisdiction is also reviewed de novo.

Adams v Adams (On Reconsideration), 276 Mich App

704, 708-709; 742 NW2d 399 (2007).

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Even assuming that Ostendorf’s status as a foreign

national did not exempt her from being an employee,

the exclusive-remedy provision of the WDCA still does

not bar her negligence claim because she was not

injured while in the course of her employment. Not in

dispute is that, for present purposes, MSU is an

employer subject to the provisions of the WDCA. Under

MCL 418.131(1), except as concerns intentional torts,

“[t]he right to the recovery of beneﬁts as provided in

[the WDCA] shall be the employee’s exclusive remedy

against the employer for a personal injury or occupa-

tional disease.” Necessarily then, an employee who

falls under the exclusive-remedy provision of the

WDCA may not recover from his or her employer in

tort by way of the employer’s excess-liability insurer.

MCL 418.301(1) speciﬁes that compensation under the

WDCA is available to an employee “who receives a

personal injury arising out of and in the course of

employment by an employer who is subject to this act

at the time of the injury . . . .”

The WDCA substitutes statutory compensation for

common-law tort liability founded upon an employer’s

negligence in failing to maintain a safe working environ-

ment. Under the WDCA, employers provide compensation

to employees for injuries suffered in the course of employ-

ment, regardless of fault. In return for this almost auto-

matic liability, employees are limited in the amount of

compensation they may collect from their employer, and,

except in limited circumstances, may not bring a tort

action against the employer. [Herbolsheimer v SMS Hold-

ing Co, Inc, 239 Mich App 236, 240; 608 NW2d 487 (2000)

(quotation marks and citations omitted).]

“Because the Bureau of Worker’s Compensation is

granted exclusive jurisdiction over the only remedy

available as a result of the exclusive remedy provi-

sion, . . . a party’s assertion of the exclusive remedy

372 328 M

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provision as a defense to a claim necessarily consti-

tutes a challenge to the trial court’s subject-matter

jurisdiction over the claim.” Harris v Vernier, 242 Mich

App 306, 312-313; 617 NW2d 764 (2000). A court must

respect the limits of its jurisdiction. See Straus v

Governor, 230 Mich App 222, 225, 227; 583 NW2d 520

(1998), aff’d 459 Mich 526 (1999).

Whether the Court of Claims erred when it did not

defer to the administrative WDCA proceedings de-

pends on whether Ostendorf’s injury occurred while in

the course of her employment with MSU.

[A]s a general rule the question whether an injury arose

out of and in the course of employment is a question to be

resolved in the ﬁrst instance by the bureau. However,

there is an exception where it is obvious that the cause of

action is not based on the employer/employee relationship.

The question whether plaintiff’s injury arose out of and in

the course of his employment may be a question of law or

one primarily of fact, or a mixed question of law and fact.

Thus, where the facts are undisputed, the question is one

of law for the courts to decide. [Zarka v Burger King, 206

Mich App 409, 411; 522 NW2d 650 (1994) (quotation

marks and citations omitted).]

MCL 418.301(3) speciﬁcally addresses the question

of course of employment in connection with a person

injured while approaching, or departing from, the

workplace. In pertinent part, the statute provides:

An employee going to or from his or her work, while on

the premises where the employee’s work is to be performed,

and within a reasonable time before and after his or her

working hours, is presumed to be in the course of his or

her employment. Notwithstanding this presumption, an

injury incurred in the pursuit of an activity the major

purpose of which is social or recreational is not covered

under this act. [Emphasis added.]

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As earlier noted, the Supreme Court’s remand order

directed us to consider Sewell, 419 Mich at 62, in which

the Court stated that the Bureau of Worker’s Compen-

sation “has exclusive jurisdiction to decide whether

injuries suffered by an employee were in the course of

employment,” but that “[t]he courts . . . retain the

power to decide the more fundamental issue whether

the plaintiff is an employee (or fellow employee) of the

defendant.” In Sewell, the Court noted that “the bu-

reau’s exclusive jurisdiction is inapplicable ‘where it is

obvious that the cause of action is not based on the

employer-employee relationship.’ ” Id. at 62 n 5. We

conclude that, just as the question whether an

employer-employee relationship exists is a more fun-

damental issue than whether an injury took place in

the course of employment, id., so too is the question

whether the injury took place “on the premises where

the employee’s work is to be performed” more funda-

mental.

In this case, the Court of Claims recited the follow-

ing facts as not being in dispute:

[Ostendorf] left her place of work, which was the Plant

and Biology Laboratories Building and she traversed the

campus. She was walking toward a University operated

parking lot where she did in fact park her vehicle on a

regular basis; that is uncontested. It’s also uncontested

that she wasn’t required to use this lot. She was in the

process of traversing the campus when she was struck.

In the course of explaining that it was not obliged to

defer to workers’ compensation proceedings, the court

elaborated as follows:

First, the Court would indicate that we have jurisdic-

tion over the case as pled. Additionally, while we are

deprived of subject matter jurisdiction, over Worker’s

374 328 M

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Disability Compensation, this Court ﬁnds that . . . we do

have jurisdiction to decide a question of law where there

are uncontested facts.

* * *

[T]here is no question, but that [Ostendorf] was an em-

ployee of the defendant.

* * *

[Ostendorf], while it may have taken her ﬁve or ten

minutes, was at least 900 feet or three football ﬁelds away

from the Plant Biology Laboratory where she actually

worked. While the phrase “and for reasonable time after

she leaves her work hours” might bring her within the Act,

she is clearly not on the premises where the employee’s

work is performed. Any assertion that she was in pursuit

of a recreational activity is irrelevant to this case.

At issue, then, is whether the Court of Claims erred by

concluding that, in light of those facts, the evidence

could not be interpreted to indicate that Ostendorf was

still on her employer’s premises when injured.

UE points out that even though Ostendorf parked

some distance from her actual work station, “there was

no opportunity for Ostendorf to leave MSU’s property on

her way to her car,” thus recommending a broad view of

what constitutes the employer’s premises. The large

and contiguous nature of MSU’s main campus weighs

against looking at MSU’s premises generally, and in-

stead favors focusing more speciﬁcally on Ostendorf’s

actual workplace within the premises of the Plant

Biology Laboratories Building. See Hills v Blair, 182

Mich 20, 27; 148 NW 243 (1914) (noting that a worker

injured on “a railway stretching endless miles across the

country . . . might be on the premises of his employer

and yet far removed from where his contract of labor

called him”).

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In Hills, the Supreme Court concluded that an

employee was not operating in the course of his em-

ployment when he was injured on his employer’s

premises but was 950 feet from where he had dis-

charged his employment duties, he had ﬁnished his

work day, and he was leaving the workplace by way of

a route he had chosen for himself. Id. at 29-30. Al-

though Hills predates the effective date of MCL

418.301(3), the latter’s speciﬁcation of not just the

employer’s premises, but rather of “the premises where

the employee’s work is to be performed,” comports with

Hills by distinguishing between locations on the em-

ployer’s premises in the vicinity of the actual place of

employment and those locations that are far removed

from the actual place of employment.

For these reasons, the Court of Claims correctly

concluded that Ostendorf, having ﬁnished her work

and having walked approximately 900 feet from her

worksite to where she had chosen to park, was off her

employer’s premises and thus outside the inclusive

presumption of MCL 418.301(3).

The Court of Claims correctly recognized that be-

cause Ostendorf was off premises at the time of impact,

there was no need to consider whether she intended to

go straight home, as opposed to some social or recre-

ational activity, and thus that it was not necessary to

address UE’s theory that Ostendorf’s immediate plan

was to walk a friend’s dog.

The exception for social or

recreational activity within MCL 418.301(3) concerns

not what an employee departing the workplace prem-

ises intends to do next, but rather, the exception

recognizes that employees sometimes choose to use

Although the Court of Claims did not make any such factual ﬁnding,

the parties appear prepared to agree that, as plaintiff put it, “Ostendorf

left work early so that she could ‘babysit’ a friend’s dog.”

376 328

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357 [May

their workplaces outside of working hours for their

own social or recreational purposes. Therefore, the

purpose of the exception is to distinguish such purely

personal activity from activity in the service of the

employer. See Buitendorp v Swiss Valley, Inc, 485 Mich

879, 879-880 (2009) (determining whether the statu-

tory “social or recreational bar applies” does not re-

quire determining whether the injured person’s “over-

all activities were work-related” but rather whether

“the major purpose of the [injured person’s] activity at

the time of injury” was work-related).

For these reasons, the Court of Claims did not err in

its conclusion that Ostendorf was removed from her

employer’s premises at the time she was injured.

IV. MOTION TO INTERVENE

Finally, UE argues that the Court of Claims erred

when it denied UE’s motions to intervene. We disagree.

Regarding the issues addressed previously, we note

that UE’s intervention claim is moot as it concerns the

exclusive-remedy issues because UE has had the op-

portunity to litigate those issues on appeal. However,

our Supreme Court’s remand order directed this Court,

if we were to conclude that the Court of Claims action

was not barred by the exclusive-remedy provision of

the WDCA, to consider whether the Court of Claims

erred by denying UE’s motion to intervene. Therefore,

we will follow our Supreme Court’s directive, recogniz-

ing that UE may wish to advocate other issues if the

litigation in the Court of Claims continues.

“This Court reviews a trial court’s decision on a

motion to intervene for abuse of discretion.” Auto-

Owners Ins Co v Keizer-Morris, Inc, 284 Mich App 610,

612; 773 NW2d 267 (2009). “An abuse of discretion

occurs when the decision is outside the range of prin-

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cipled outcomes.” Hardrick v Auto Club Ins Ass’n, 294

Mich App 651, 659-660; 819 NW2d 28 (2011).

Intervention is governed by MCR 2.209. MCR

2.209(A) provides:

Intervention of Right. On timely application a person

has a right to intervene in an action:

(1) when a Michigan statute or court rule confers an

unconditional right to intervene;

(2) by stipulation of all the parties; or

(3) when the applicant claims an interest relating to

the property or transaction which is the subject of the

action and is so situated that the disposition of the action

may as a practical matter impair or impede the applicant’s

ability to protect that interest, unless the applicant’s

interest is adequately represented by existing parties.

As for permissive intervention, MCR 2.209(B) states:

Permissive Intervention. On timely application a per-

son may intervene in an action

(1) when a Michigan statute or court rule confers a

conditional right to intervene; or

(2) when an applicant’s claim or defense and the main

action have a question of law or fact in common.

In exercising its discretion, the court shall consider

whether the intervention will unduly delay or prejudice

the adjudication of the rights of the original parties.

Thus, under Subrule (A)(3), a person may intervene by

right in an action on timely application when that

person asserts an interest in the subject of the action

“and is so situated that the disposition of the action

may as a practical matter impair or impede the appli-

cant’s ability to protect that interest, unless the appli-

cant’s interest is adequately represented by existing

parties.” Importantly, under Subrule (B), a court decid-

ing a request for permissive intervention must “con-

378 328 M

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357 [May

sider whether the intervention will unduly delay or

prejudice the adjudication of the rights of the original

parties.” Hill v L F Transp, Inc, 277 Mich App 500, 508;

746 NW2d 118 (2008).

In this case, the Court of Claims found that although

UE had knowledge of the complaint from the outset of

the proceedings, UE waited approximately a year to

request to intervene. Not only did the court conclude

that UE’s motion to intervene was untimely, but be-

cause there was nothing to suggest that MSU had

exercised bad faith or had failed to adequately represent

UE’s interests and to assert all afﬁrmative defenses, the

court concluded that UE had not shown that interven-

tion was necessary to ensure that its interests were

adequately represented or that intervention would not

delay or prejudice the adjudication of the rights of the

original parties. UE does not take issue with the Court

of Claims’ concern that granting UE’s motion to inter-

vene would cause substantial delay in the case, but in

trying to make its case, UE argues that its imperatives

for intervention justify the delay. We disagree.

A. UNTIMELINESS

MCR 2.209(A)(3) and (B) both condition intervention

on timely application. At oral argument below, UE’s

attorney admitted that “we’re coming in late into the

lawsuit,” but suggested that this should not weigh

against intervention because “we’re raising a subject

matter jurisdiction issue and you’re never too late to

raise . . . subject matter jurisdiction.” Similarly, in this

Court, UE admits that it brought its motion nearly one

year after the complaint was ﬁled but argues that the

position it wished to advocate below was one challeng-

ing the jurisdiction of the Court of Claims to hear the

case. In so doing, UE relies on the familiar rule that

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challenges to subject-matter jurisdiction may be raised

at any time. See Adams, 276 Mich App at 708-709. UE

claims that it is not alleging an alternative theory of

causation but rather is “seeking to intervene to imple-

ment a procedure that must occur in this tort ac-

tion . . . .” However, UE cites no authority for its propo-

sition that the criteria for determining whether a party

or entity may intervene in civil litigation are viewed

more favorably when the prospective intervenor chal-

lenges jurisdiction. Although parties have no time con-

straints when challenging subject-matter jurisdiction,

procedurally a nonparty wishing to do so must ﬁrst be a

party to the action in the action’s normal course.

UE also acknowledges that MSU pleaded the WDCA

among its afﬁrmative defenses but asserts that “MSU

didn’t inform UE until much later that it wasn’t

pursuing the exclusive-remedy defense . . . .” UE in-

sists that MSU lacked an incentive in the matter

because while MSU would have to fund any remedy

under the WDCA, it could pass remedial costs on to its

insurers in the event of liability in tort. However, in

light of UE’s admission that it knew of the litigation

from its inception, and UE’s contractual right to par-

ticipate in any attendant defense, UE was, at the very

least, on notice concerning the WDCA defense from the

time the complaint was ﬁled. Therefore, UE could have

timely ﬁled its motion to intervene.

B. REPRESENTATION OF INTERVENOR’S INTERESTS

MCR 2.209(A)(3) allows intervention by right when

an applicant’s interests are not adequately repre-

sented by an existing party. In arguing that there was

“clearly not” another party advancing UE’s interests,

counsel for UE argued that

380 328 M

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357 [May

the irony . . . is that you have plaintiffs saying this is

MSU’s issue. MSU will stand up for this issue and take a

position; and then you have MSU saying we’re not taking

a position. . . . MSU is standing on the sidelines. Plaintiff

clearly is opposed to our position. We are the only party

speaking on behalf of this being a Worker’s Comp claim.

MSU raised the workers’ compensation exclusive-

remedy provision in its afﬁrmative defenses, but it did

not pursue the defense beyond the pleading stage.

Signiﬁcantly, despite UE’s protestations over MSU’s

incentives in the matter, UE has stopped short of

challenging as clearly erroneous the Court of Claims’

ﬁnding that “[n]o one is asserting that Michigan State

University has exercised bad faith . . . .”

In light of

this restraint on UE’s part, we presume good faith on

MSU’s part and will not speculate as to why it aban-

doned the WDCA defense. Moreover, in light of our

holding on the exclusive-remedy issue, an issue in

which UE has participated fully, we conclude that UE’s

intervention argument is meritless.

The only interest that UE has put forward for the

purposes of intervention, by right or with permission,

is its obligation to indemnify MSU to the extent that

the latter ends up obliged to cover tort damages in

excess of its other sources of coverage. But a potential

duty to indemnify a claimant for beneﬁts is “separate

and distinct” from the underlying claim for beneﬁts,

which does not itself justify the potential indemnitor’s

intervention in litigation regarding that claim. See

Black v Dep’t of Social Servs, 212 Mich App 203,

We note that ultimately MSU may not have pursued the afﬁrmative

defense under the WDCA because it believed that the defense would not

be successful, even though a workers’ compensation award would have

eliminated the possibility of tort liability. Of course, it is also possible

that MSU did not pursue the defense because MSU was self-insured

through State Farm and UE.

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205-206; 537 NW2d 456 (1995). UE does not assert

subrogation rights in the matter, or any other contrac-

tual rights in connection with MSU beyond MSU’s

admitted duty of cooperation. Therefore, UE’s interest

in this case relates directly to MSU’s cooperation, not

to the possible competing theories of recovery or rem-

edy. In the end, if MSU ﬁles a claim against its policy

with UE for excess coverage for tort liability, and UE

remains persuaded that MSU did not conscientiously

defend itself or otherwise cooperate with UE in the

matter, then UE may defend the claim on such con-

tractual bases.

For these reasons, UE fails to show, with its argu-

ments relating to jurisdiction and the extent to which

MSU represented UE’s interests in the litigation be-

low, that the Court of Claims erred by denying as

untimely its motion for intervention, either by right or

with permission.

Afﬁrmed.

WARTZLE

, P.J., and C

AVANAGH

, J., concurred with

AMERON

, J.

382 328 M

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357 [May

EVERSON v WILLIAMS

Docket No. 340521. SubmittedApril 12, 2019, at Detroit. Decided May 21,

2019, at 9:20 a.m.

Marsheri D. D. Everson brought an action in the Wayne Circuit

Court to quiet title to a property that her grandparents had

conveyed to her when she was a minor, with a provision that the

grandparents would have the right to occupy the property for the

rest of their lives. In 1997, when plaintiff was 11 years old, her

grandfather died, and after a proceeding in the Wayne County

Probate Court, Freddie G. Burton Jr., J., a quitclaim deed was

executed that purported to convey plaintiff’s interest to her grand-

mother. Her grandmother then sold the property to Rondalyn

Everson. Rondalyn Everson later defaulted on the mortgage, and

in 2004, the mortgage company quitclaimed the property to WM

Specialty Mortgage, LLC. WM Specialty then sold the property in

2005 to a man who ultimately quitclaimed the property to defen-

dant, Delores J. Williams, in 2010. Plaintiff’s grandmother died in

2014. After plaintiff brought this action, defendant moved for

summary disposition, arguing that plaintiff’s claim was barred by

the statute of limitations and precluded by the doctrine of res

judicata, in light of the fact that the probate court had granted the

petition of plaintiff’s grandmother to sell the property in 1997. In

response, plaintiff argued that her claim was not time-barred

because it did not accrue until her grandmother’s death in 2014

and that her grandmother did not have legal authority to convey

plaintiff’s interest in the property. After a hearing, the trial court,

Megan Maher Brennan, J., granted summary disposition in favor

of defendant and entered an order extinguishing plaintiff’s interest

in the property and vesting title in defendant. Plaintiff appealed.

The Court of Appeals held:

1. The trial court erred by ruling that plaintiff’s claim was

barred by the statute of limitations. Under MCL 600.5801(4), the

general limitations period for bringing an action for the recovery or

possession of any lands is 15 years. However, MCL 500.5829(3)

provides that when a party is claiming the land by force of a

remainder or reversion, the claim accrues when the precedent

estate would have expired by its own limitation. Plaintiff’s interest

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in the subject property was best characterized as a remainder

under MCL 554.11, because her right to possess the property was

postponed until the precedent estate expired upon the deaths of

her grandparents. Accordingly, under MCL 554.32, plaintiff’s ex-

pectant estate could not have been defeated by her grandmother’s

sale of the property, because her grandmother was precluded from

conveying any greater interest in the land than she herself

possessed, which was a life estate. Because plaintiff’s claim to the

property did not accrue until her grandmother’s death in 2014,

plaintiff pursued this action within the 15-year limitations period

in MCL 600.5801(4).

2. The trial court erred by concluding that plaintiff’s claim

was barred by res judicata. For res judicata to preclude a claim,

the prior action must have been decided on the merits, both

actions must have involved the same parties or their privies, and

the matter in the second case must have been capable of being

resolved in the ﬁrst case. In the 1997 probate court proceedings,

plaintiff’s grandmother ﬁled a petition for appointment of a

conservator or for a protective order concerning plaintiff’s estate,

explaining that she and her husband had conveyed an interest in

their property to plaintiff in an effort to provide for her ﬁnancially

if they passed away and that she sought to sell the property and

buy a new residence that would be held in trust for plaintiff. The

probate court granted the petition and stated that the proceeds of

any sale of the original property were to be placed into escrow on

plaintiff’s behalf until a trust was established. Two years later,

plaintiff’s grandmother, acting as the court-appointed represen-

tative for plaintiff’s estate, conveyed the property to Rondalyn

Everson. The Revised Probate Code, MCL 700.1 et seq., which was

the law in effect at the time, set forth speciﬁc circumstances

under which the real estate of a ward could be sold by a ﬁduciary.

Speciﬁcally, MCL 700.636(1) provided that, subject to conﬁrma-

tion by the court, the real estate interest of a ward could be sold

by a ﬁduciary, among other circumstances, when the income of

the ward’s estate was insufﬁcient to maintain or educate the

minor ward, and when it appeared that it would be for the beneﬁt

of the ward that the ward’s real estate or any part of it be sold and

the proceeds thereof reinvested. Further, MCL 700.634 provided

that a ﬁduciary could sell real estate if the ﬁduciary had the

authority to sell it under MCL 700.634 to MCL 700.638, if the

ﬁduciary reported the sale in writing to the court for conﬁrmation

and had a hearing thereon, if the ﬁduciary gave notice of the

hearing on the report of sale to all parties in interest, if the

ﬁduciary ﬁled and had approved the bond required by the court as

a condition of the sale, and if the ﬁduciary obtained an order from

384 328

ICH

383 [May

the court conﬁrming the sale and directing the giving of a deed or

other conveyance pursuant to the sale. In this case, there was no

indication in the record that the probate court was given the

opportunity to conﬁrm the actual sale, the sale price of the

property, or that the proceeds of the sale would indeed be held in

trust for plaintiff when the property was conveyed to Rondalyn

Everson in 1999, and it did not appear from the record that the

proceeds of the sale were placed in trust for plaintiff. Accordingly,

while the probate court authorized plaintiff’s grandmother gen-

erally to proceed with the sale of the property, it was not clear

whether the probate court authorized the actual sale of the

property in 1999. Under these circumstances, the trial court’s

granting of summary disposition on the basis of res judicata

pursuant to MCR 2.116(C)(7) was not appropriate.

3. The trial court erred by granting summary disposition

pursuant to MCR 2.116(C)(10) and quieting title to the property in

favor of defendant because the record yielded genuine issues of

material fact with respect to plaintiff’s remainder interest in the

subject property.

Reversed and remanded for further proceedings.

1. R

EAL

ROPERTY

— F

UTURE

STATES

— R

EMAINDERS

— A

CTIONS TO

UIET

ITLE

— S

TATUTE OF

IMITATIONS

— A

CCRUAL OF

LAIMS

Under MCL 600.5801(4), the general limitations period for bringing

an action for the recovery or possession of land is 15 years; when

a party brings an action to claim land by force of a remainder or

reversion, under MCL 500.5829(3), the claim accrues when the

precedent estate would have expired by its own limitation.

2. R

EAL

ROPERTY

— R

EMAINDERS

— A

LIENATION OF

RECEDENT

STATE

A conveyance of property by the holder of a life estate does not

defeat the remainder interest of another (MCL 554.32).

John J. Cooper for plaintiff.

The Darren Findling Law Firm, PLC (by Darren

Findling and Andrew J. Black) for defendant.

Before: M

ARKEY

, P.J., and F

ORT

OOD

and G

ADOLA

, JJ.

ORT

OOD

, J. Plaintiff Marsheri D. D. Everson

appeals as of right the trial court’s order granting

2019] E

VERSON V

ILLIAMS

385

summary disposition and quieting title to 20280 Kent-

ﬁeld, Detroit, Michigan (the Kentﬁeld property) in

favor of defendant Delores J. Williams. We reverse and

remand for proceedings consistent with this opinion.

I. BACKGROUND AND PROCEDURAL HISTORY

A. THE KENTFIELD PROPERTY

This action involves the Kentﬁeld property, which

originally belonged to plaintiff’s grandparents, Cedric

D. Everson and Elizabeth A. Everson. While plaintiff

was still a minor,

her grandparents conveyed their

interest in the Kentﬁeld property to plaintiff, while

retaining life estates in the property. The conveyance

provided, in pertinent part, as follows:

With the ﬁling of this Quit Claim Deed it is hereby noted

that the Grantors Cedric and Elizabeth Everson Becomes

[sic] Tenants of the subject property[.] [I]t is therefore a

conditio[n] of this Conveyance that Cedric D. Everson and

Elizabeth A. Everson enjoy Peaceful and Continual Occu-

pan[c]y of said property for the remainder of their natural

lives.

Cedric died on January 17, 1997. On April 2, 1997,

plaintiff, 11 years old at the time, purportedly conveyed

her interest in the Kentﬁeld property to Elizabeth by

way of a quitclaim deed. Following proceedings in the

Wayne Probate Court that will be discussed in detail

subsequently in this opinion, on August 26, 1999, Eliza-

beth executed a warranty deed for the Kentﬁeld prop-

erty to Rondalyn Everson for the sum of $70,000.

Rondalyn subsequently defaulted on her mortgage

against the property, and a sheriff’s deed on mortgage

sale was entered on February 26, 2004. On March 12,

Plaintiff was born on November 13, 1985.

386 328

ICH

383 [May

2004, Ameriquest Mortgage Company quitclaimed the

property to WM Specialty Mortgage, LLC. WM Spe-

cialty Mortgage executed a covenant deed to Charles

Smith for the Kentﬁeld property on January 25, 2005.

Finally, on February 24, 2010, Smith quitclaimed the

Kentﬁeld property to defendant. Elizabeth died on

July 18, 2014.

B. THE PRESENT ACTION

On August 19, 2016, plaintiff ﬁled the instant action

seeking to quiet title to the Kentﬁeld property. As

pertinent to this appeal, defendant moved for sum-

mary disposition under MCR 2.116(C)(7) and (C)(10),

claiming that plaintiff’s action was (1) barred by the

applicable statute of limitations and (2) precluded by

the application of the doctrine of res judicata, and

asserting that title to the Kentﬁeld property should be

quieted in favor of defendant. Plaintiff responded,

arguing that (1) her claim was not time-barred because

it did not accrue until Elizabeth’s death in July 2014

and (2) Elizabeth did not have legal authority to convey

plaintiff’s interest in the Kentﬁeld property. Plaintiff

also pointed out that she did not receive any proceeds

from the sale of the Kentﬁeld property or an interest in

the property that Elizabeth purchased using the pro-

ceeds from the sale of the Kentﬁeld property. Following

a hearing on defendant’s motion, the trial court

granted summary disposition in favor of defendant and

entered a concomitant order stating that plaintiff’s

interest in the Kentﬁeld property was extinguished.

Plaintiff now appeals as of right.

II. STANDARDS OF REVIEW

We review de novo the trial court’s ruling in re-

sponse to defendant’s motion for summary disposition.

2019] E

VERSON V

ILLIAMS

387

Beach v Lima Twp, 489 Mich 99, 105; 802 NW2d 1

(2011). The trial court’s written order reﬂects that

summary disposition was granted pursuant to MCR

2.116(C)(7) and (C)(10). A motion for summary dispo-

sition brought pursuant to MCR 2.116(C)(10)

tests the factual support of a plaintiff’s claim. In reviewing

a motion under MCR 2.116(C)(10), this Court considers

the pleadings, admissions, afﬁdavits, and other relevant

documentary evidence of record in the light most favorable

to the nonmoving party to determine whether any genuine

issue of material fact exists to warrant a trial. [Walsh v

Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004)

(citation omitted).]

Defendant also moved for summary disposition pursu-

ant to MCR 2.116(C)(7), claiming that plaintiff’s claim

was barred by the applicable statute of limitations as

well as the doctrine of res judicata. “In reviewing a

motion for summary disposition under MCR

2.116(C)(7), a court considers the afﬁdavits, pleadings,

and other documentary evidence presented by the

parties and accepts the plaintiff’s well-pleaded allega-

tions as true, except those contradicted by documen-

tary evidence.” McLean v Dearborn, 302 Mich App 68,

72-73; 836 NW2d 916 (2013). Similarly, this Court

reviews de novo the trial court’s determination regard-

ing whether the doctrine of res judicata is applicable to

plaintiff’s claim. Washington v Sinai Hosp of Greater

Detroit, 478 Mich 412, 417; 733 NW2d 755 (2007).

III. ANALYSIS

As an initial matter, plaintiff argues that this action

seeking to quiet title to the Kentﬁeld property is not

barred by the applicable 15-year statute of limitations

because her claim did not accrue until 2014, when

388 328 M

ICH

383 [May

Elizabeth died and Elizabeth’s life estate in the Kent-

ﬁeld property was terminated. We agree.

MCL 600.5801 provides, in pertinent part:

No person may bring or maintain any action for the

recovery or possession of any lands or make any entry

upon any lands unless, after the claim or right to make the

entry ﬁrst accrued to himself or to someone through whom

he claims, he commences the action or makes the entry

within the periods of time prescribed by this section.

* * *

(4) In all other cases under this section, the period of

limitation is 15 years.

Similarly, MCL 600.5829 offers guidance with re-

spect to when a claim to recover land accrues. It

provides:

The right to make an entry on, and the claim to recover

land accrue:

(1) Whenever any person is disseised, his right of entry

on and claim to recover land accrue at the time of his

disseisin;

(2) When he claims as heir or devisee of one who died

seised, his claim accrues at the time of the death, unless

there is another estate intervening after the death of the

ancestor or devisor in which case his claim accrues when

the intermediate estate expires or would have expired by

its own limitation;

(3) When there is an intermediate estate, and in all other

cases where the party claims by force of any remainder or

reversion, his claim accrues when the intermediate or prec-

edent estate would have expired by its own limitation,

notwithstanding any forfeiture of the intermediate or prec-

edent estate for which he might have entered at an earlier

time.

(4) The provision of (3), does not prevent any person

from entering when he is entitled to do so by any forfeiture

2019] E

VERSON V

ILLIAMS

389

or breach of condition, but if he claims under either of them

his claim accrues when the forfeiture is incurred or the

condition broken.

(5) In all cases not otherwise provided for, the claim

accrues when the claimant or the person under whom he

claims ﬁrst becomes entitled to the possession of the

premises under the title upon which the entry or action is

founded. [Emphasis added.]

Plaintiff contends that her interest in the property

did not accrue until the death of Elizabeth and the

termination of her life estate on July 18, 2014. There-

fore, plaintiff argues, her complaint seeking to quiet

title, ﬁled on August 19, 2016, was timely. Speciﬁcally,

plaintiff argues that her cause of action did not accrue

until Elizabeth died in 2014, because plaintiff held a

remainder in the Kentﬁeld property subject to the life

estates of Elizabeth and Cedric. Plaintiff is correct in

her assertion, and it is supported by the applicable

caselaw.

MCL 554.7 provides that “[e]states, as respects the

time of their enjoyment, are divided into estates in

possession, and estates in expectancy.” An estate in

possession is one in which the owner of the estate “has

an immediate right to the possession of the land,” and

an estate in expectancy is one in which “the right to the

possession is postponed to a future period.” MCL 554.8.

When an estate is to commence on a future day, it is a

future estate. MCL 554.9. “A future estate is an estate

limited to commence in possession at a future day,

either without the intervention of a precedent estate,

or on the determination, by lapse of time or otherwise,

of a precedent estate, created at the same time.” MCL

554.10. If dependent on “a precedent estate,” a future

estate is classiﬁed as a “remainder,” MCL 554.11, and

the person who holds it is called a “remainderman,”

Black’s Law Dictionary (11th ed). In Wengel v Wengel,

390 328 M

ICH

383 [May

270 Mich App 86, 101; 714 NW2d 371 (2006), this

Court observed, in the context of considering whether

adverse possession may extinguish the right of a re-

mainderman to real property, that “[i]n relation to

their time of enjoyment, estates are divided into es-

tates in possession and estates in expectancy, and

estates in expectancy, denominated as future estates

and reversions, exist where the right to possession is

postponed until a future date.”

“A future estate is an estate limited to commence in

possession at a future day, either without the intervention

of a precedent estate, or on the determination, by lapse of

time or otherwise, of a precedent estate, created at the

same time.” MCL 554.10. A remainder is created when a

future estate is dependent upon the precedent estate.

MCL 554.11. Future estates are contingent “whilst the

person to whom, or the event upon which they are limited

to take effect remains uncertain.” MCL 554.13. . . . “When

a remainder on an estate for life . . . shall not be limited on

a contingency, defeating or avoiding such precedent es-

tate, it shall be construed as intended to take effect only

on the death of the ﬁrst taker[.]” MCL 554.29. “Expectant

estates are descendible, devisable and alienable, in the

same manner as estates in possession.” MCL 554.35.

[Wengel, 270 Mich App at 101-102.]

Plaintiff’s interest in the subject property is best

characterized as a remainder estate, because her right

to possession of the Kentﬁeld property was postponed

until the occurrence of a speciﬁc event, that being the

deaths of Elizabeth and Cedric. “A remainder is created

when a future estate is dependent upon the precedent

estate.” Id. at 101, citing MCL 554.11. Importantly, the

Wengel Court recognized that “[c]ontingent remainders

are not possessory estates” and that a remainderman’s

right of entry and possession of the subject property will

not accrue until the life tenant passes away. Wengel, 270

Mich App at 102-103; see also Lowry v Lyle, 226 Mich

2019] E

VERSON V

ILLIAMS

391

676, 682; 198 NW 245 (1924) (observing that “[a]dverse

possession as to the rights of the remaindermen did not

commence to run until their right of entry and posses-

sion accrued at the death of the life tenant”). The Wengel

Court observed, in the factual context of a claim involv-

ing adverse possession, that a contingent remainder-

man does not have a present right of possession that

would give rise to a cause of action against an individual

adversely possessing property. Wengel, 270 Mich App at

104. Instead, a remainderman cannot take action until

the preceding estate expires, which in this case was

when the holders of the life estate, Cedric and Eliza-

beth, passed away. See id.; Lowry, 226 Mich at 682.

For example, in Wengel, concluding that the contin-

gent remainder interest of a remainderman could not

be “destroyed by adverse possession,” this Court rea-

soned as follows, in pertinent part:

The statutes and the case law make clear that the

contingent remainder interest held by defendant in the

case at bar could not be destroyed by adverse possession

because a claim to recover possession of the property on the

basis of said interest, or defendant’s status as a remainder-

man, would not accrue, if at all and at a minimum, until the

occurrence of the contingency, which is plaintiff’s death, or,

in other words, the expiration of the precedent estate. . . .

The 15-year statutory period would not commence running

against defendant until a cause of action accrued in which

defendant sought to enforce his rights as the holder of the

contingent remainder, which interest, at the time of plain-

tiff’s death, would vest and leave defendant with a fee

simple. [Wengel, 270 Mich App at 104 (emphasis added).]

Although Wengel addressed contingent remainders

rather than the vested remainder at issue here, statu-

tory authority makes clear that “[n]o expectant estate

can be defeated or barred by any alienation or other act

of the owner of the intermediate or precedent estate, nor

392 328 M

ICH

383 [May

by any destruction of such precedent estate by disseizin,

forfeiture, surrender, merger or otherwise.” MCL

554.32. Moreover, in Lowry (citing Jeffers v Sydnam,

129 Mich 440; 89 NW 42 (1902), and the predecessor

statute to MCL 554.32), the Michigan Supreme Court

recognized that the holder of a life estate is precluded

from conveying “any greater interest in the land than

possessed by him,” and a grantee of such an interest will

hold only a life estate. Lowry, 226 Mich at 684. See also

Rendle v Wiemeyer, 374 Mich 30, 40-41; 131 NW2d 45

(1964) (observing that because the testator devised

vested remainders to his grandchildren, any partition of

the property by the holders of a life-estate interest in the

property were void against the remaindermen). Put

simply, any conveyance by the holder of the life estate is

not able to defeat the remainder interest of another.

Lowry, 226 Mich at 684. Therefore, plaintiff’s claim to

the Kentﬁeld property did not accrue until the death of

Elizabeth in July of 2014 when the occurrence of the

event that allowed plaintiff to take possession of the

property, the death of Elizabeth, took place and plaintiff

ﬁrst was able to assert her rights of possession of the

Kentﬁeld property.

Before that point, plaintiff simply

had no “right of entry or of possession during the

existence of [Elizabeth’s] life estate.” Lowry, 226 Mich

at 683. Plaintiff pursued this action within the 15-year

limitation period; accordingly, this action is not barred

by MCL 600.5801(4). The trial court erred by holding

otherwise.

The Wengel Court recognized that the statute governing the accrual

of a claim for a remainderman is MCL 600.5829(3). Wengel, 270 Mich

App at 103.

While defendant relies on the deed that plaintiff signed as an

11-year-old child on April 2, 1997, asserting that she conveyed her

remainderman interest at that time and that any cause of action she

possessed accrued then, this argument is dubious, given that it is well

2019] E

VERSON V

ILLIAMS

393

Plaintiff also argues that the trial court erred in

concluding that her claim is barred by res judicata. We

agree.

This Court has explained:

“ ‘The doctrine of res judicata is intended to relieve parties

of the cost and vexation of multiple lawsuits, conserve

judicial resources, and encourage reliance on adjudication,

that is, to foster the ﬁnality of litigation.’ ” For res judicata

to preclude a claim, three elements must be satisﬁed: “(1)

the prior action was decided on the merits, (2) both actions

involve the same parties or their privies, and (3) the

matter in the second case was, or could have been,

resolved in the ﬁrst.” “[T]he burden of proving the appli-

cability of the doctrine of res judicata is on the party

asserting it.” [Garrett v Washington, 314 Mich App 436,

441; 886 NW2d 762 (2016) (citations omitted).]

Pivotal to our determination regarding whether res

judicata applies to bar plaintiff’s claim are the proceed-

ings that transpired in the probate court in 1997. On

June 19, 1997, Elizabeth ﬁled a petition for appoint-

ment of a conservator or for a protective order concern-

ing plaintiff’s estate. In the petition, Elizabeth outlined

how she and Cedric had conveyed an interest in the

Kentﬁeld property to plaintiff in an effort to provide for

her ﬁnancially if they passed away. According to the

petition, Elizabeth sought to sell the Kentﬁeld property

with the intention “to provide a similar beneﬁt for

[plaintiff] but to do so by taking title in [a] new residence

in the name of herself as trustee, and providing in her

trust agreement that said real estate shall be held for

distribution to [plaintiff] upon Elizabeth A. Everson’s

settled in Michigan that “a minor lacks the capacity to contract.”

Woodman v Kera LLC, 486 Mich 228, 236; 785 NW2d 1 (2010) (opinion

by Y

OUNG

, J.). Accordingly, the April 2, 1997 deed can only be asserted

against plaintiff if she conﬁrmed it after she reached the age of majority

because it does not have a binding effect unless it is ratiﬁed. Id. at

236-237 (opinion by Y

OUNG

, J.).

394 328 M

ICH

383 [May

death, and upon [plaintiff] attaining age 21.”

August 11, 1997, the probate court granted Elizabeth’s

June 19, 1997 petition, stating that the proceeds of any

sale of the Kentﬁeld property were to be “placed into

escrow on behalf of [plaintiff] until a trust est[ate] is

established—order [to be] presented.” As noted earlier

in this opinion, two years later, on August 26, 1999,

Elizabeth, as the “court appointed representative for

the estate of [plaintiff],” who was a 13-year-old minor

at the time, conveyed the Kentﬁeld property to Ron-

dalyn Everson. Notably, all of these events predated

the enactment of the Estates and Protected Individu-

als Code (EPIC), MCL 700.1101 et seq., effective

April 1, 2000. See 1998 PA 386. Therefore, the law in

effect at the time was the Revised Probate Code, MCL

700.1 et seq.

MCL 700.636 set forth speciﬁc circumstances under

which the real estate of a “ward”

could be sold by a

ﬁduciary:

(1) Subject to conﬁrmation by the court, the real estate,

an interest therein, or easement of a ward may be sold by

the ﬁduciary in any of the following instances:

* * *

Waivers and consents for Elizabeth’s petition for a protective order

were signed by plaintiff’s parents, Aaron Moore and Madeline H.

Everson, giving their agreement for entry of the protective order

“permitting Elizabeth A Everson to deed property commonly known as

20280 Kentﬁeld, Detroit, Michigan, and thereby extinguishing any

interest in said property of Marsheri Dominique Depree Everson.”

However, the Michigan Supreme Court has made it clear that “a parent

is without authority to bind his child by contract” and that a parent

lacks the authority to “waive the rights of the child.” Woodman, 486

Mich at 240, 242 (opinion by Y

OUNG

, J.).

MCL 700.12(2) deﬁned “[w]ard” as “a minor or a legally incapaci-

tated person for whom a guardian is appointed pursuant to article 4 or

a protected person for whom a conservator is appointed pursuant to

article 4.”

2019] E

VERSON V

ILLIAMS

395

cient to maintain the ward and his family or is insufﬁcient

to educate a minor ward or the children of a ward.

(d) When it appears that it would be for the beneﬁt of

the ward that his real estate or any part thereof be sold

and the proceeds thereof reinvested.

Moreover, MCL 700.634 set forth certain requirements

that the ﬁduciary of an estate had to comply with

before selling real property:

A ﬁduciary may sell real estate, an interest therein or

easement at private or public sale if all the following

occur:

(a) He has the authority to sell under [MCL 700.634 to

MCL 700.638].

(b) He reported the sale in writing to the court for

conﬁrmation and had a hearing thereon.

all parties in interest as provided by supreme court rule.

(d) He ﬁled and had approved the bond required by the

court as a condition of the sale.

(e) He obtained an order from the court conﬁrming the

sale and directing the giving of a deed or other conveyance

pursuant to the sale.

While the record reﬂects that Elizabeth, as ﬁduciary

of plaintiff’s estate, sought permission from the probate

court to sell the Kentﬁeld property, and the court

approved the sale of the Kentﬁeld property as a general

matter, directing that the proceeds of the sale be held in

trust for plaintiff, there is no indication in the record

that the probate court was given the opportunity to

conﬁrm the actual sale, the sale price of the property, or

that the proceeds of the sale would indeed be held in

trust for plaintiff when the property was actually con-

veyed to Rondalyn Everson in 1999. MCL 700.634(e);

MCL 700.636(d). In any event, it does not appear from

396 328 M

ICH

383 [May

the record that Elizabeth complied with the terms of the

probate court’s order to place the proceeds of the sale in

trust for plaintiff. Accordingly, while the probate court

authorized Elizabeth generally to proceed with the sale

of the Kentﬁeld property, the record is unclear with

respect to whether the probate court authorized the

actual sale of the Kentﬁeld property in 1999 when it was

conveyed to Rondalyn Everson.

Under such circum-

stances, given the serious questions that remain out-

standing regarding whether (1) plaintiff’s remainder-

man interest in the Kentﬁeld property was protected

while she was a minor and (2) the applicable law, and

the probate court’s orders, were complied with before

the Kentﬁeld property was conveyed to Rondalyn Ever-

son in 1999, we disagree with the trial court’s assess-

ment that res judicata operates to bar plaintiff’s

claims. Speciﬁcally, we are not persuaded that the

issue of whether plaintiff’s remainderman interest in

the Kentﬁeld property could be lawfully conveyed was

raised, addressed, or resolved in the probate court

action or that it could have been.

Garrett, 314 Mich

Notably, MCL 600.2928(1) provides:

The circuit court may order the sale, lease, exchange, convey-

ance, and if necessary or desirable, the platting, of all or any part

of any lands, tenements, and hereditaments held by an infant or

other incompetent person, by way of mortgage, in trust only for

others, in fee, life tenancy, tenant for years, or in any other way

when it appears that the sale, lease, exchange or conveyance is

necessary and proper for the support, maintenance and education

of the infant or other incompetent or that the interest of such

person or the person for whom the property is held will be

substantially promoted by the sale, lease, exchange, conveyance

or platting. This power shall be exercised in accordance with the

rules of court and in the manner and with the restrictions as the

court deems expedient.

Our review of the probate court’s July 11, 2016 written opinion

conﬁrms our conclusion.

2019] E

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ILLIAMS

397

App at 441. Notably, plaintiff herself, an 11-year-old

child at the time, was not able to do so, and the record

reﬂects that the adults in her family did not take steps

to protect plaintiff’s interest in the Kentﬁeld property

or the proceeds from its sale. Therefore, the trial

court’s granting of summary disposition on the basis of

res judicata pursuant to MCR 2.116(C)(7) was not

appropriate. Moreover, because the record yields genu-

ine issues of material fact with respect to plaintiff’s

remainderman interest in the Kentﬁeld property, the

trial court erred by granting summary disposition

pursuant to MCR 2.116(C)(10) and quieting title to the

Kentﬁeld property in favor of defendant.

IV. CONCLUSION

We reverse and remand for proceedings consistent

with this opinion. We do not retain jurisdiction. Plain-

tiff, as the prevailing party, may tax costs.

ARKEY

, P.J., and G

ADOLA

, J., concurred with F

ORT

OOD

, J.

398 328 M

ICH

383 [May

LUECK v LUECK

Docket No. 341018. Submitted May 8, 2019, at Detroit. Decided May 21,

2019, at 9:25 a.m. Leave to appeal denied 504 Mich 999 (2019).

Karen S. Lueck and James F. Lueck were divorced in September

2014 after 29 years of marriage. A consent judgment of divorce was

entered, and it incorporated the terms of the parties’ settlement

agreement, which essentially split the parties’ sizable estate and

marital assets. The consent judgment awarded Karen spousal

support of $10,000 a month for 10 years or until Karen’s death or

remarriage, whichever happened ﬁrst. Karen started dating Mat-

thew Bassett about a year after the divorce. Karen and Matthew

exchanged wedding vows at a private commitment ceremony in

December 2015. The two did not obtain a marriage license, and the

ceremony was never legally recognized as a marriage. James ﬁled

a complaint in the Oakland Circuit Court, Family Division, seek-

ing the termination of his obligation to pay spousal support to

Karen. Karen asserted that spousal support should continue

because she had not remarried. The court, Lisa O. Gorcyca, J.,

terminated Karen’s spousal support after ﬁnding that the ceremo-

nial exchange of vows and Karen’s holding herself out as Mat-

thew’s wife qualiﬁed as “remarriage” as the term was contem-

plated by the consent judgment of divorce. Karen appealed.

The Court of Appeals held:

Under MCL 551.2, a valid marriage by law is a civil contract

between two parties capable of contracting and of consenting to the

marriage contract. MCL 551.101 requires all parties intending to

be legally married to obtain a marriage license to be given to the

ofﬁciant before the marriage can be performed. The trial court

abused its discretion when it terminated James’s obligation to pay

Karen $10,000 a month in spousal support. The consent judgment

of divorce contained deﬁnite terms regarding the duration of

spousal support and lacked any reference to future adjustments or

modiﬁcations. The agreement plainly contemplated that James

was obligated to pay the spousal support for 10 years or until

Karen died or remarried, whichever event occurred ﬁrst. “Remar-

ried” is unambiguous. A person is not married in Michigan simply

by participating in a commitment ceremony even if it contains

2019] L

UECK V

UECK

399

certain embellishments found in many traditional marriage cer-

emonies. Michigan law requires the execution of a marriage license

and solemnization of the union. In this case, Karen and Matthew

did not get a marriage license and so did not trigger the provision

in the consent judgment that would have terminated Karen’s right

to spousal support. The trial court erred by ﬁnding that the

commitment ceremony and Karen’s conducting herself as though

she were married to Matthew triggered the termination provision.

Reversed and remanded.

IVORCE

— C

ONSENT

UDGMENTS

— P

AYMENT OF

POUSAL

UPPORT

— W

HEN

BLIGATION TO

ERMINATES

PON

AYEE

’

EMARRIAGE

The term “remarries” is unambiguous; a remarriage is a legal

marriage recognized under Michigan law, which is the union of

two parties accompanied by a solemnization and a marriage

license; a provision in a consent judgment of divorce providing

that one party may stop paying spousal support to the other party

when the other party remarries is not triggered when the party

receiving spousal support participates in a commitment cer-

emony with another person but has not obtained and executed a

marriage license (MCL 551.2; MCL 551.101).

Gentry Nalley, PLLC (by Kevin S. Gentry) for Karen

S. Lueck.

Clark Hill PLC (by Cynthia M. Filipovich and Randi

P. Glanz) for James F. Lueck.

Before: R

EDFORD

, P.J., and M

ARKEY

and K. F. K

ELLY

JJ.

URIAM

. Plaintiff appeals by leave granted the

July 20, 2017 order that terminated defendant’s obli-

gation to provide spousal support under the parties’

divorce settlement and consent judgment of divorce.

We reverse.

I. BACKGROUND

Plaintiff and defendant married in 1985. On

September 5, 2014, after 29 years of marriage, they

400 328 M

ICH

399 [May

entered into a divorce settlement agreement, and on

September 8, 2014, they signed a consent judgment of

divorce, which merged and incorporated the terms of

their settlement. At the time of their divorce, plaintiff

and defendant had two grown children and a sizable

estate. The parties’ settlement essentially split their

marital assets.

The parties’ consent judgment of divorce provided

the following regarding spousal support:

A. No Spousal Support/Section 71 payments to Defen-

dant by Plaintiff are awarded and same shall be forever

waived and barred. This is non-modiﬁable.

B. Commencing September 1, 2014 Defendant shall

pay to Plaintiff each month, through a direct deposit into

an account that Wife will establish, alimony/spousal

support in the amount of $10,000, for a period of 10 years

(120 months), until Wife’s death, or until Wife remarries,

which ever event was to occur ﬁrst. All such payments of

alimony/spousal support shall be deductible to Husband

for income tax purposes pursuant to IRC §215 and includ-

able by Wife’s [sic] in her gross income for income tax

purposes pursuant to IRC § 71, and neither party shall ﬁle

any income tax return inconsistent therewith. The forego-

ing alimony/spousal support payments to Wife by Hus-

band shall not be modiﬁable as to amount or duration.

[Emphasis added.]

[1]

Approximately one year after her divorce, in Septem-

ber 2015, plaintiff met and dated Matthew Bassett. Not

long after, plaintiff considered marrying Bassett but she

decided against it, and instead, on December 24, 2015,

they participated in a “commitment ceremony” per-

formed at plaintiff’s church. Plaintiff considered herself

a “spiritual person,” did not want to “live in sin,” and

Defendant wished to include a cohabitation clause in the spousal-

support provision of the Consent Judgment, but plaintiff refused, so one

was not included.

2019] L

UECK V

UECK

401

“wanted to be right with God,” and therefore, she

decided to have a “private prayer ceremony” without

guests or witnesses. Plaintiff discussed with her close

friend the possibility of losing spousal support. Plaintiff

told her friend that she had done her “homework” and

was only having a spiritual ceremony with Bassett

because the ceremony was not considered legal without

a marriage license; accordingly, she could continue to

receive spousal support from defendant.

Plaintiff and defendant’s mutual friend, Kimberly

Kleinfelter, testiﬁed that plaintiff told her that plain-

tiff couldn’t be married legally under the terms of the

divorce but that she desired the blessing of God on her

union with Bassett. Plaintiff told Kleinfelter that she

did not intend to marry under state law so that she

could keep her spousal support, which was important

to her.

The lead pastor of the First Congregational Church

of Traverse City, Chad Oyer, met plaintiff because she

attended the church and had been a “very active”

member of his congregation. Oyer testiﬁed that plain-

tiff desired to live in a recognized Christian union

where “they put God at the center,” so she asked Oyer

for “a ceremony of Christian commitment for one

another.” Oyer testiﬁed that plaintiff told him that “a

legal civil marriage would compromise” her rights and

that her spousal support would be terminated. Oyer

obliged her request because he believed that he could

perform a “Christian marriage” without it resulting in

a legal marriage. Oyer performed “a ceremony of

Christian marriage, and all traditional vows were

exchanged within the context and understanding that

this was a Christian marriage, not a legal or civil

marriage.” Plaintiff and Bassett exchanged the “tradi-

402 328 M

ICH

399 [May

tional Christian vows,” represented each other as “hus-

band and wife,” and exchanged rings. Oyer performed

the ceremony without witnesses present or the signing

of a marriage license.

Defendant learned from one of his friends of the

private ceremony between plaintiff and Bassett. De-

fendant contacted plaintiff’s counsel believing that

plaintiff’s spousal support should cease under the

language of the consent judgment of divorce because

she had remarried. Plaintiff’s counsel told him that

plaintiff did not have a “legal” marriage and that it did

not affect his obligation to pay spousal support. Defen-

dant, however, understood that the spousal-support

provision would terminate upon “marriage,” and he did

not understand the terms of the parties’ settlement

and consent judgment to mean that spousal support

would cease only upon a “legal marriage.” Defendant

moved for an order dismissing his spousal-support

obligation and requested reimbursement, sanctions,

and attorney fees.

The trial court held an evidentiary hearing on

May 15, 2017. Following the hearing, the parties each

submitted proposed ﬁndings of fact and conclusions of

law. On July 20, 2017, the trial court issued its opinion

and order. The trial court found that plaintiff had

participated in a private religious ceremony performed

by her pastor and afterward held herself out as mar-

ried in a manner that convinced others that she had

remarried. The trial court concluded that plaintiff had

not signed a marriage license in an effort to prevent

the termination of her spousal support. The trial court

further found that plaintiff lacked credibility and con-

cluded that her actions were taken to defraud the court

and circumvent the parties’ consent judgment of di-

vorce. The trial court stated that divorce actions are

2019] L

UECK V

UECK

403

equitable proceedings, and a court of equity molds its

relief according to the character of the case. The trial

court ruled that equity required the termination of

plaintiff’s spousal support, and therefore, it granted

defendant’s motion in part and terminated his obliga-

tion to pay plaintiff spousal support. This appeal

followed.

II. STANDARDS OF REVIEW

“A consent judgment is in the nature of a contract,

and is to be construed and applied as such.” Lafﬁn v

Lafﬁn, 280 Mich App 513, 517; 760 NW2d 738 (2008).

“[T]he interpretation of a contract is a question of law

reviewed de novo on appeal . . . .” Reed v Reed, 265

Mich App 131, 141; 693 NW2d 825 (2005). “An unam-

biguous contract must be enforced according to its

terms.” Id. We review for clear error a trial court’s

factual ﬁndings relating to the award of spousal sup-

port, and we review for an abuse of discretion a trial

court’s decision regarding spousal support. Woodington

v Shokoohi, 288 Mich App 352, 355; 792 NW2d 63

(2010). A ﬁnding is clearly erroneous if, after a review

of the record, we are left with a deﬁnite and ﬁrm

conviction that the trial court made a mistake. Drag-

goo v Draggoo, 223 Mich App 415, 429; 566 NW2d 642

(1997). We are not limited to review for clear error

when a trial court’s ﬁnding is “derived from an errone-

ous application of law to facts . . . .” Beason v Beason,

435 Mich 791, 804-805; 460 NW2d 207 (1990). We

review de novo a trial court’s ruling on a matter of

statutory construction. Fisher v Fisher, 276 Mich App

424, 427; 741 NW2d 68 (2007). “A divorce judgment

entered upon the settlement of the parties represents a

contract, which, if unambiguous, is to be interpreted as

a question of law.” Holmes v Holmes, 281 Mich App

404 328 M

ICH

399 [May

575, 587; 760 NW2d 300 (2008) (quotation marks,

citation, and ellipsis omitted).

III. ANALYSIS

A trial court may modify spousal support on the

basis of new facts or different circumstances arising

after entry of the divorce judgment. Ackerman v Ack-

erman, 197 Mich App 300, 301; 495 NW2d 173 (1992).

The burden is on the party seeking modiﬁcation to

establish that the new facts or changed circumstances

warrant modiﬁcation. Id.

Plaintiff argues that the trial court erred by ruling

that her conduct triggered the consent judgment’s

provision terminating spousal support. We agree.

In Michigan, a marriage license is required to rec-

ognize a “legal marriage” and to obtain certain legal

rights and obligations that come with marriage. Michi-

gan law does not recognize common-law marriage.

MCL 551.2 provides:

So far as its validity in law is concerned, marriage is a

civil contract between a man and a woman, to which the

consent of parties capable in law of contracting is essen-

tial. Consent alone is not enough to effectuate a legal

marriage on and after January 1, 1957. Consent shall be

followed by obtaining a license as required by [MCL]

551.101 . . . , or as provided for by [MCL] 551.201 . . . , and

solemnization as authorized by [MCL 551.7 to MCL

551.18].

Michigan law requires persons to obtain and execute a

marriage license to have their union recognized as a

“legal marriage” under MCL 551.101, which states in

relevant part:

It shall be necessary for all parties intending to be

married to obtain a marriage license from the county clerk

of the county in which either the man or woman resides,

2019] L

UECK V

UECK

405

and to deliver the said license to the clergyman or magis-

trate who is to ofﬁciate, before the marriage can be

performed.

The consent judgment of divorce in this case con-

tains deﬁnite terms regarding the duration of spousal

support and lacks any reference to future adjustments

or modiﬁcations. By its terms, the agreement plainly

contemplated that defendant had the obligation to pay

such support “for a period of 10 years (120 months),

until Wife’s death, or until Wife remarries, which ever

event was to occur ﬁrst.” The term “remarries” lacks

ambiguity and means only a legal marriage recognized

under Michigan law. The record reﬂects that plaintiff

did not marry under Michigan law. Although she went

through a commitment ceremony that contained cer-

tain embellishments found in many traditional mar-

riage ceremonies, the marriage license and solemniza-

tion required by MCL 551.7 to MCL 551.18 were

absent. Therefore, plaintiff’s conduct did not constitute

a marriage or trigger the spousal-support-termination

provision of the parties’ consent judgment of divorce.

The trial court erred by ﬁnding that plaintiff’s conduct-

ing herself as though she was married to Bassett could

trigger the spousal-support-termination provisions of

the parties’ settlement and consent judgment of di-

vorce. The unambiguous terms of the consent judg-

ment of divorce govern when defendant’s spousal-

support obligation terminates, and those terms were

not met by plaintiff’s conduct. Therefore, the trial court

erred by ﬁnding that although no marriage license was

signed, plaintiff’s actions required the termination of

defendant’s spousal-support obligation.

The trial court’s factual ﬁndings were clearly erro-

neous, and it erroneously applied the law to the facts of

this case. Defendant failed to meet his burden to

406 328 M

ICH

399 [May

establish that the facts warranted modiﬁcation of his

spousal-support obligation. Consequently, the trial

court abused its discretion when it terminated plain-

tiff’s spousal support.

We reverse and remand this case to the trial court to

enter an order reinstating plaintiff’s spousal support

as provided under the terms of the consent judgment of

divorce. We do not retain jurisdiction.

EDFORD

, P.J., and M

ARKEY

and K. F. K

ELLY

, JJ.,

concurred.

2019] L

UECK V

UECK

407

PEOPLE v WILLIAMS

Docket No. 341703. Submitted May 8, 2019, at Detroit. Decided May 23,

2019, at 9:00 a.m.

In 1993, Donald W. Williams was convicted following a jury trial in

the Macomb Circuit Court of ﬁrst-degree felony murder, MCL

750.316(1)(b); defendant was 16 years old when he committed the

offense. The court, George E. Montgomery, J., sentenced defen-

dant as an adult to life imprisonment without parole. In June

2012, the United States Supreme Court decided Miller v Ala-

bama, 567 US 460 (2012), which held that the Eight Amend-

ment’s prohibition of cruel and unusual punishment prohibits a

sentencing scheme that mandates life in prison without parole for

juvenile offenders. In response, the Michigan Legislature enacted

MCL 769.25a, which would provide a procedural framework for

resentencing certain juvenile offenders in the event that the

United States Supreme Court determined that Miller applied

retroactively. Thereafter, in Montgomery v Louisiana, 577 US ___

(2016), the Court held that the Miller rule applied retroactively.

In 2016, the prosecution ﬁled a motion under MCL 769.25a(4)(b),

requesting that defendant again be sentenced to life imprison-

ment without parole. Defendant opposed the motion and moved

for the approval of public funds in the amount of $42,650 to hire

experts to analyze the Miller factors—that is, to hire mitigation

experts—including those with specialized knowledge in adoles-

cent development. The court, James M. Biernat, Jr., J., granted in

part and denied in part defendant’s motion, concluding that while

defendant was entitled to ﬁnancial assistance to pay for the

experts, the requested amount was excessive. The trial court

awarded defendant $2,500 to retain experts for his resentencing

without explaining its reasoning for the amount; pro bono counsel

advanced fees of $75,000 for the four mitigation experts who

testiﬁed at defendant’s resentencing hearing. At the resentencing

hearing, the trial court denied the prosecution’s request for life

imprisonment without parole and sentenced defendant to 30 to 60

years in prison. Defendant appealed by delayed leave granted the

reduced amount the trial court awarded for the experts’ fees.

The Court of Appeals held:

408 328

ICH

408 [May

When a prosecutor seeks a life-without-parole sentence for a

juvenile offender, the defendant must be afforded the opportunity

and the ﬁnancial resources to present evidence of mitigating

factors relevant to the offender and the offense. The due-process

analysis set forth in Ake v Oklahoma, 470 US 68 (1985), governs

the appointment or funding of an expert at government expense

in that circumstance. Courts must apply the reasonable-

probability standard set forth in People v Kennedy, 502 Mich 206

(2018), as articulated in Moore v Kemp, 809 F2d 702 (CA 11,

1987), when determining whether an indigent juvenile criminal

defendant has made a sufﬁcient showing to be entitled to expert

assistance at government expense under Ake’s due-process analy-

sis. In particular, a defendant must show the trial court that there

exists a reasonable probability both that an expert would be of

assistance to the defense during the sentencing phase and that

denial of expert assistance would result in a fundamentally

unfair sentence. Therefore, to satisfy constitutional require-

ments, a trial court must consider the principles set forth in

Kennedy when determining the amount of funds to reimburse a

juvenile defendant for mitigation experts, and the court must

support that decision with facts on the record. In this case, the

trial court correctly concluded that defendant was entitled to

funding for mitigation experts. However, the trial court abused its

discretion by failing to articulate why it believed the requested

amount was excessive and by failing to explain how it arrived at

the sum of $2,500 as the appropriate amount for experts’ fees.

Order vacated and case remanded.

RIMINAL

— I

NDIGENT

EFENDANTS

— J

UVENILE

EFENDANTS

— L

IFE

ITHOUT

-P

AROLE

ENTENCES

— A

PPOINTMENT OF

XPERT

ITNESSES AT

OVERNMENT

XPENSE

Courts must apply the reasonable-probability standard set forth in

People v Kennedy, 502 Mich 206 (2018), when determining

whether an indigent juvenile criminal defendant has made a

sufﬁcient showing to be entitled to expert assistance at govern-

ment expense; in particular, a defendant must show the trial

court that there exists a reasonable probability both that an

expert would be of assistance to the defense during the sentenc-

ing phase and that denial of expert assistance would result in a

fundamentally unfair sentence; to satisfy constitutional require-

ments, a trial court must consider the principles set forth in

Kennedy when determining the amount of funds to reimburse a

juvenile defendant for mitigation experts, and the court must

support that decision on the record.

2019] P

EOPLE V

ILLIAMS

409

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, Eric J. Smith, Prosecut-

ing Attorney, Joshua D. Abbott, Chief Appellate Attor-

ney, and Emil Semaan, Assistant Prosecuting Attor-

ney, for the people.

Law Ofﬁces of Deborah LaBelle (by Anlyn Addis)

and Latham & Watkins LLP (by Dean W. Baxtresser

and Lauren K. Sharkey) for defendant.

Amicus Curiae:

Jonathan Sacks, Michael Mittlestat, Tina N. Olson,

and Erin Van Campen for the State Appellate Defender

Ofﬁce.

Before: R

EDFORD

, P.J., and M

ARKEY

and K. F. K

ELLY

JJ.

ARKEY

, J. Defendant, a juvenile lifer, appeals by

delayed leave granted

the trial court’s order granting

in part and denying in part his motion for approval of

public funds to hire “mitigation” experts for his resen-

tencing hearing. Defendant had requested expert-

witness funding in the amount of $42,650. The trial

court awarded him $2,500, but it did not articulate how

it had arrived at that ﬁgure. We vacate the order and

remand for further proceedings.

The prosecutor sought to have defendant resen-

tenced to life imprisonment without parole (LWOP) for

his 1993 jury-trial conviction of ﬁrst-degree felony

murder, MCL 750.316(1)(b), which he committed as an

aider and abettor in 1993 at the age of 16. See People v

Williams, unpublished per curiam opinion of the Court

People v Williams, unpublished order of the Court of Appeals,

entered June 4, 2018 (Docket No. 341703).

410 328

ICH

408 [May

of Appeals, issued February 14, 1997 (Docket No.

176570), p 1. Defendant was sentenced as an adult in

1994 to mandatory LWOP for the ﬁrst-degree murder

conviction. Id.

In People v Hayes, 323 Mich App 470, 473-474; 917

NW2d 748 (2018), this Court explained the recent

evolution in the law regarding the treatment of juve-

niles who committed murder and face or received

sentences of LWOP:

In Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L

Ed 2d 407 (2012), the United States Supreme Court held

that mandatory punishment of life in prison absent the

possibility of parole for a defendant who was under the age

of 18 at the time of the sentencing offense violates the

Eighth Amendment’s prohibition against cruel and un-

usual punishments. The Miller Court did not indicate

whether its decision was to be retroactively applied to

closed cases involving juvenile offenders. In light of Miller,

the Michigan Legislature enacted MCL 769.25, which

provides a procedural framework for sentencing juvenile

offenders who have committed offenses punishable by life

imprisonment without the possibility of parole; this pro-

vision applied to pending and future cases. Anticipating

the possibility of Miller’s retroactive application for closed

cases, the Legislature also enacted MCL 769.25a, which

would be triggered if our Supreme Court or the United

States Supreme Court were to hold that Miller applied

retroactively. And subsequently, in Montgomery v Louisi-

ana, 577 US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016), the

United States Supreme Court held that the rule an-

nounced in Miller, which was a new substantive constitu-

tional rule, was retroactive on state collateral review.

Accordingly, MCL 769.25a took effect.

Under MCL 769.25a(4)(b), prosecutors are directed to

“ﬁle motions for resentencing in all cases in which the

prosecuting attorney will be requesting the court to

impose a sentence of imprisonment for life without the

2019] P

EOPLE V

ILLIAMS

411

possibility of parole.” MCL 769.25a(4)(b) further states

that a hearing on the motion must be conducted as

provided in MCL 769.25. And MCL 769.25 provides, in

pertinent part:

(6) If the prosecuting attorney ﬁles a motion . . . , the

court shall conduct a hearing on the motion as part of the

sentencing process. At the hearing, the trial court shall

consider the factors listed in Miller . . . , and may consider

any other criteria relevant to its decision, including the

individual’s record while incarcerated.

(7) At the hearing under subsection (6), the court shall

specify on the record the aggravating and mitigating

circumstances considered by the court and the court’s

reasons supporting the sentence imposed. The court may

consider evidence presented at trial together with any

evidence presented at the sentencing hearing.

Here, on July 6, 2016, the prosecutor ﬁled a motion

pursuant to MCL 769.25a(4)(b), requesting that defen-

dant be again sentenced to LWOP. Defendant opposed

the prosecutor’s motion and sought dismissal of the

motion on various grounds that are not relevant to this

appeal. Defendant also moved for the approval of

public funds to hire experts. Defendant argued that he

needed experts to analyze the Miller factors, including

experts with specialized knowledge in adolescent de-

velopment.

Defendant refers to these experts at times

The Miller factors include: (1) the defendant’s “chronological age and

its hallmark features,” including any “immaturity, impetuosity, and

failure to appreciate risks and consequences”; (2) the defendant’s

“family and home environment,” including any brutality or dysfunction-

ality as well as the possibility that the defendant is unable to leave that

environment; (3) the circumstances of the crime, including the extent of

the defendant’s participation and the effect of any familial or peer

pressures; (4) the possibility that the defendant may have been con-

victed of a lesser offense but for any youthful “incompetencies” such as

an inability to deal with the police, the prosecutor, or attorneys; and (5)

the possibility of rehabilitation. Miller, 567 US at 477-478.

412 328

ICH

408 [May

as “mitigation specialists.” The trial court granted in

part and denied in part defendant’s motion. The court

stated that defendant was entitled to ﬁnancial assis-

tance to pay for the experts but found that defendant’s

request for $42,650 was “highly excess[ive].” The trial

court ruled that $2,500 would be made available to

defendant to retain experts in connection with his

resentencing; the court did not explain how it arrived

at that sum.

On appeal, defendant argues that the trial court

erred by limiting expert funding to $2,500. The pros-

ecution agrees, acknowledging that the trial court’s

decision was “arbitrary” and that the court’s action in

“foreclosing any potential increase to the fee was an

abuse of discretion.” There is no dispute between the

parties that defendant is constitutionally entitled to

some level of funding for mitigation experts. Indeed, in

People v Carp, 496 Mich 440, 473; 852 NW2d 801

(2014), our Supreme Court speciﬁcally stated that

when a prosecutor seeks a LWOP sentence for a

juvenile offender, the defendant “must be afforded the

opportunity and the ﬁnancial resources to present

evidence of mitigating factors relevant to the offender

and the offense[.]” (Emphasis added.)

See also Better-

At oral argument and in a letter submitted to this Court, defendant

indicated that a resentencing hearing was conducted in December 2018,

that the trial court denied the prosecutor’s request for LWOP and

sentenced defendant to 30 to 60 years’ imprisonment, and that the

Michigan Department of Corrections Parole Board subsequently

granted parole to defendant. He is scheduled to be released on May 29,

2019. Furthermore, defendant indicated he hired four mitigation ex-

perts who testiﬁed at the hearing at a total cost of $75,000. These fees

were advanced by pro bono counsel. Defendant continues to seek

reimbursement.

Carp was vacated on other grounds and remanded sub nom Carp v

Michigan, 577 US ___; 136 S Ct 1355; 194 L Ed 2d 339 (2016), and sub

2019] P

EOPLE V

ILLIAMS

413

man v Montana, 578 US ___; 136 S Ct 1609, 1617; 194

L Ed 2d 723 (2016) (“After conviction, a defendant’s

due process right to liberty, while diminished, is still

present. He retains an interest in a sentencing pro-

ceeding that is fundamentally fair.”).

Recently, in People v Kennedy, 502 Mich 206, 210;

917 NW2d 355 (2018), our Supreme Court determined

that contrary to earlier caselaw, MCL 775.15

does not

apply in the context of a criminal defendant’s request

for the appointment or funding of an expert. Instead,

the Kennedy Court held that the United States Su-

preme Court’s decision in Ake v Oklahoma, 470 US 68;

105 S Ct 1087; 84 L Ed 2d 53 (1985), is the controlling

law on the matter. Kennedy, 502 Mich at 210. And to

assist a trial court in determining whether a defendant

has made a sufﬁcient showing to be entitled to assis-

tance of an expert under Ake, the Court in Kennedy

nom Davis v Michigan, 577 US ___; 136 S Ct 1356; 194 L Ed 2d 339

(2016).

MCL 775.15 provides:

If any person accused of any crime or misdemeanor, and about

to be tried therefor in any court of record in this state, shall make

it appear to the satisfaction of the judge presiding over the court

wherein such trial is to be had, by his own oath, or otherwise, that

there is a material witness in his favor within the jurisdiction of

the court, without whose testimony he cannot safely proceed to a

trial, giving the name and place of residence of such witness, and

that such accused person is poor and has not and cannot obtain

the means to procure the attendance of such witness at the place

of trial, the judge in his discretion may, at a time when the

prosecuting ofﬁcer of the county is present, make an order that a

subpoena be issued from such court for such witness in his favor,

and that it be served by the proper ofﬁcer of the court. And it shall

be the duty of such ofﬁcer to serve such subpoena, and of the

witness or witnesses named therein to attend the trial, and the

ofﬁcer serving such subpoena shall be paid therefor, and the

witness therein named shall be paid for attending such trial, in

the same manner as if such witness or witnesses had been

subpoenaed in behalf of the people.

414 328

ICH

408 [May

adopted the “reasonable probability” standard from

Moore v Kemp, 809 F2d 702 (CA 11, 1987). Kennedy,

502 Mich at 210.

We direct the trial court on remand to take into

consideration the principles set forth in Kennedy in

determining the amount of funds to reimburse defen-

dant for his mitigation experts so as to satisfy consti-

tutional requirements. Special attention should be

given to the Kennedy Court’s adoption of the “reason-

able probability” standard articulated by the United

States Court of Appeals for the Eleventh Circuit in

Moore, 809 F2d at 712. See Kennedy, 502 Mich at

226-228. In particular, the Moore “reasonable probabil-

ity” standard provides:

“[A] defendant must demonstrate something more than a

mere possibility of assistance from a requested expert; due

process does not require the government automatically to

provide indigent defendants with expert assistance upon

demand. Rather . . . a defendant must show the trial court

that there exists a reasonable probability both that an

expert would be of assistance to the defense and that

denial of expert assistance would result in a fundamen-

tally unfair trial. Thus, if a defendant wants an expert to

assist his attorney in confronting the prosecution’s

proof—by preparing counsel to cross-examine the prosecu-

tion’s experts or by providing rebuttal testimony—he

must inform the court of the nature of the prosecution’s

case and how the requested expert would be useful. At the

very least, he must inform the trial court about the nature

of the crime and the evidence linking him to the crime. By

the same token, if the defendant desires the appointment

of an expert so that he can present an afﬁrmative defense,

such as insanity, he must demonstrate a substantial basis

for the defense, as the defendant did in Ake. In each

instance, the defendant’s showing must also include a

speciﬁc description of the expert or experts desired; with-

out this basic information, the court would be unable to

grant the defendant’s motion, because the court would not

2019] P

EOPLE V

ILLIAMS

415

know what type of expert was needed. In addition, the

defendant should inform the court why the particular

expert is necessary. We recognize that defense counsel

may be unfamiliar with the speciﬁc scientiﬁc theories

implicated in a case and therefore cannot be expected to

provide the court with a detailed analysis of the assistance

an appointed expert might provide. We do believe, how-

ever, that defense counsel is obligated to inform himself

about the speciﬁc scientiﬁc area in question and to provide

the court with as much information as possible concerning

the usefulness of the requested expert to the defense’s

case.” [Kennedy, 502 Mich at 227, quoting Moore, 809 F2d

at 712 (alteration in original).]

We recognize that this passage is not focused on

sentencing and pertains more to whether any funding

for an expert, irrespective of the amount, should be

authorized. But a court may employ and be guided by

those same principles in determining how much fund-

ing is necessary to protect a defendant’s rights during

the sentencing phase.

In the instant case, defendant asked for the appoint-

ment of experts at public expense to assist in analyzing

the Miller factors for the purpose of the resentencing

hearing. In its opinion and order granting in part and

denying in part defendant’s request for expert costs,

the trial court acknowledged that defendant was en-

titled to ﬁnancial assistance to pay for experts in

connection with his resentencing. The trial court’s

determination on this point was consistent with our

Supreme Court’s recognition that ﬁnancial assistance

to present evidence regarding mitigating factors must

be provided to a defendant in this situation. See Carp,

496 Mich at 473.

Although the trial court recognized that defendant

was entitled to funding for experts for his resentenc-

ing, the court stated that defendant’s request for

416 328 M

ICH

408 [May

$42,650 was “highly excess[ive]” and that the court

would instead provide $2,500 to defendant to retain

those experts. The trial court provided no substantive

analysis to explain why it believed that defendant’s

requested sum was excessive, nor did the court explain

how it arrived at the sum of $2,500. Therefore, on the

present record and as conceded by the prosecution, we

conclude that the trial court’s limitation of expert

funding to $2,500 lacks support and must be vacated.

On remand, the trial court must apply the Kennedy

principles and any other relevant authorities in setting

the amount of funding for the mitigation experts de-

fendant employed.

We vacate the trial court’s order and remand the

case for further proceedings consistent with this opin-

ion. We do not retain jurisdiction.

EDFORD

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

ELLY

, J., concurred with

and M

ARKEY

, J.

2019] P

EOPLE V

ILLIAMS

417

PEOPLE v TRAVER (ON REMAND)

Docket No. 325883. Submitted July 11, 2018, at Lansing. Decided May 23,

2019, at 9:05 a.m. Leave to appeal denied 505 Mich 975 (2020).

Gary M. Traver was convicted following a jury trial in the Mackinac

Circuit Court of assault with a dangerous weapon (felonious

assault), MCL 750.82, and possession of a ﬁrearm during the

commission of a felony (felony-ﬁrearm), MCL 750.227b. Defen-

dant and his neighbor were involved in a property dispute that

culminated in a physical altercation between the two men and

resulted in defendant initially being charged with felonious

assault, interfering with electronic communications, and carrying

a concealed weapon. Defendant entered into a plea agreement

that allowed him to avoid incarceration, but defendant later

withdrew that plea. After the plea withdrawal, the prosecution

charged defendant with the additional crime of felony-ﬁrearm,

which requires a mandatory two-year prison term. The trial

court, William W. Carmody, J., provided the jury with written

instructions regarding the elements of the charged offenses but

did not read them aloud. Additionally, the written instructions

omitted the actual elements of felony-ﬁrearm. Defendant was

convicted of felonious assault and felony-ﬁrearm but acquitted

of interfering with electronic communications and carrying a

concealed weapon. Defendant appealed. The Court of Appeals,

LEICHER

, P.J., and M. J. K

ELLY

, J. (S

AWYER

, J., dissenting),

concluded that the trial court erred by providing the jury with

only written instructions on the elements of the offenses without

also reading the instructions to the jury and that the written

instructions were “hopelessly incorrect” with respect to the

felony-ﬁrearm charge. 316 Mich App 588 (2016). The Court of

Appeals directed the trial court to hold a Ginther hearing

and to

consider defendant’s claim that trial counsel was ineffective by

failing to advise defendant of the potential consequences of

withdrawing his plea. Judge S

AWYER

dissented, concluding that

defendant waived any claimed error in the instructions by ex-

pressing satisfaction with the instructions. Judge S

AWYER

also

People v Ginther, 390 Mich 436 (1973).

418 328

ICH

418 [May

rejected defendant’s claim of ineffective assistance of counsel.

Defendant sought leave to appeal in the Supreme Court, and the

Supreme Court, in lieu of granting leave, agreed with the dissent

that defendant had waived any issue of instructional error and

remanded the matter to the Court of Appeals to consider the

previously unaddressed arguments related to defendant’s claims

of ineffective assistance of counsel. 502 Mich 23 (2018). In an

unpublished order, the Court of Appeals, G

LEICHER

, P.J., and

AWYER

and M. J. K

ELLY

, JJ., remanded the case to the trial court

to consider the previously unaddressed arguments related to

defendant’s claims of ineffective assistance of counsel. On re-

mand, the trial court, William W. Carmody, J., concluded that

defendant was well aware of the potential consequences of

withdrawing his plea. Defendant appealed.

On remand, the Court of Appeals held:

A defendant seeking relief based on a claim of ineffective

assistance of counsel must show (1) that trial counsel’s perfor-

mance was objectively deﬁcient and (2) that the deﬁciencies

prejudiced the defendant. Effective assistance of counsel is pre-

sumed, and a defendant bears a heavy burden to prove otherwise.

In examining whether defense counsel’s performance fell below

an objective standard of reasonableness, a defendant must over-

come the strong presumption that counsel’s performance was

born from a sound trial strategy. With regard to defendant’s

arguments that defense counsel was constitutionally ineffective

to the extent that defendant’s claims of instructional error were

waived, defendant’s claim was rejected and Judge S

AWYER

’s dis-

senting opinion as it related to this issue was adopted; defendant

waived any claimed error in the instructions by expressing

satisfaction with the instructions. With regard to the issue of plea

withdrawal, the trial court held a hearing and concluded that

defendant was adequately advised on the potential consequences

of withdrawing his plea. The trial court found credible the

testimony of the attorneys that defendant was fully aware that

the prosecution would add a charge of felony-ﬁrearm carrying a

two-year minimum sentence, and that credibility determination

merited deference. Furthermore, because defendant was in-

formed of the likely consequence of withdrawing his plea, defen-

dant’s claim that counsel was ineffective for failing to inform him

of that very consequence necessarily failed. With regard to

defendant’s claim that trial counsel was ineffective for failing to

obtain a ruling on the motion to quash, consideration of this issue

was improper because the scope of the Supreme Court’s remand

order was for review of defendant’s previously unaddressed argu-

2019] P

EOPLE V

RAVER

EMAND

) 419

ments relating to ineffective assistance of counsel and defendant

had not raised this issue in his original brief on appeal. Therefore,

the issue was not addressed on appeal. Finally, with regard to

defendant’s remaining issues regarding effective assistance of

counsel, defendant did raise those issues in his original brief;

however, the trial court had not been directed to consider those

issues or hold a hearing on remand regarding those issues. The

remand order speciﬁcally limited the scope of remand to the

plea-withdrawal issue. Accordingly, to the extent that the trial

court considered or even took testimony on any claim of ineffec-

tive assistance of counsel other than the plea-withdrawal issue,

the trial court exceeded the scope of remand. Consideration of

those remaining issues was therefore limited to the record as it

existed at the time of the original opinion. In his original brief on

appeal, defendant argued that counsel was ineffective by failing

to investigate and present character witnesses and an expert

medical witness; however, these alleged mistakes were not ap-

parent on the record, and in any event, defense counsel’s decision

not to pursue those unnamed witnesses was a trial strategy that

did not deprive defendant of a substantial defense.

Afﬁrmed.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, and Jessica E. LePine

and Scott R. Shimkus, Assistant Attorneys General, for

the people.

K and Q Law, PC (by Cecilia Quirindongo Baunsoe)

for defendant.

ON REMAND

Before: G

LEICHER

, P.J., and S

AWYER

and M. J. K

ELLY

JJ.

URIAM

. This matter is once again before us,

following a remand by the Supreme Court. People v

Traver, 502 Mich 23; 917 NW2d 260 (2018) (Traver II).

In the original appeal, this Court reversed defendant’s

convictions for assault with a dangerous weapon, MCL

750.82, and possession of a ﬁrearm during the commis-

420 328 M

ICH

418 [May

sion of a felony (felony-ﬁrearm), MCL 750.227b. People

v Traver, 316 Mich App 588, 592; 894 NW2d 89 (2016)

(Traver I). The majority concluded that the trial court

erred by providing the jury with only written instruc-

tions on the elements of the offenses without also

reading the instructions to the jury and that the

written instructions were “hopelessly incorrect” with

respect to the felony-ﬁrearm charge. Id. at 591-592.

Judge S

AWYER

dissented, concluding that defendant

waived any claimed error in the instructions by ex-

pressing satisfaction with the instructions. Id. at 603

AWYER

, J., dissenting). Judge S

AWYER

also rejected

defendant’s claim of ineffective assistance of counsel.

Id. at 611.

The Supreme Court, in lieu of granting leave, agreed

with the dissent that defendant had waived any issue

of instructional error and remanded the matter to this

Court to consider the previously unaddressed argu-

ments related to defendant’s claims of ineffective as-

sistance of counsel. Traver II, 502 Mich at 43. In our

prior opinion, we directed the trial court to hold a

Ginther hearing

and to consider defendant’s claim

that trial counsel was ineffective by failing to advise

defendant of the potential consequences of withdraw-

ing his plea. Traver I, 316 Mich App at 602-603.

Because the Supreme Court did not disturb this por-

tion of our opinion, we remanded this matter to the

trial court for that purpose. People v Traver, unpub-

lished order of the Court of Appeals, entered July 20,

2018 (Docket No. 325883).

On remand, the trial court concluded that defendant

was well aware of the potential consequences of with-

drawing his plea. Following that remand, we now must

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

2019] P

EOPLE V

RAVER

EMAND

) 421

address the resolution of that issue as well as the

claims previously raised by defendant that trial coun-

sel was ineffective for (1) failing to call character

witnesses, (2) failing to call a tow-truck driver to

testify, and (3) failing to retain an expert witness.

Defendant also now raises a new claim that counsel

was ineffective for failing to move to quash the infor-

mation. After further considering these claims, we now

afﬁrm defendant’s convictions and sentences.

A claim of ineffective assistance of counsel presents

a mixed question of fact and constitutional law. People

v Swain, 288 Mich App 609, 643; 794 NW2d 92 (2010).

The trial court’s factual ﬁndings are reviewed for clear

error, while the ultimate constitutional issue is re-

viewed de novo. Id.

A defendant seeking relief based on a claim of

ineffective assistance must show “(1) that trial coun-

sel’s performance was objectively deﬁcient, and (2) that

the deﬁciencies prejudiced the defendant.” People v

Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018).

“Effective assistance of counsel is presumed, and a

defendant bears a heavy burden to prove otherwise.”

Swain, 288 Mich App at 643. The measure of an

attorney’s performance under the ﬁrst prong of the

analysis is “simply reasonableness under prevailing

professional norms.” Padilla v Kentucky, 559 US 356,

366; 130 S Ct 1473; 176 L Ed 2d 284 (2010) (quotation

marks and citation omitted). “In examining whether

defense counsel’s performance fell below an objective

standard of reasonableness, a defendant must over-

come the strong presumption that counsel’s perfor-

mance was born from a sound trial strategy.” People v

Trakhtenberg, 493 Mich 38, 52; 826 NW2d 136 (2012).

“This Court does not second-guess counsel on matters

of trial strategy, nor does it assess counsel’s compe-

422 328 M

ICH

418 [May

tence with the beneﬁt of hindsight.” People v Russell,

297 Mich App 707, 716; 825 NW2d 623 (2012).

We turn ﬁrst to the issue speciﬁcally mentioned by

the Supreme Court in its opinion remanding the mat-

ter to this Court. The Supreme Court brieﬂy addressed

the issue in a footnote as follows:

The majority further erred by holding that it need not

“resort to ineffective assistance of counsel principles to

circumvent potential waiver issues . . . .” Traver, 316 Mich

App at 601. In this case, defendant must establish a valid

claim of ineffective assistance of counsel in order for him

to be entitled to relief on his waived claims of instructional

error. Defendant raised the claims of ineffective assistance

in the Court of Appeals, but they were not addressed by

the majority. We decline to address them in the ﬁrst

instance and instead remand to the Court of Appeals for

consideration of defendant’s arguments that defense coun-

sel was constitutionally ineffective to the extent that

defendant’s claims of instructional error were waived.

[Traver II, 502 Mich at 43 n 10.]

While the issue was not addressed in the majority

opinion in the original appeal, Judge S

AWYER

thor-

oughly discussed—and rejected—the claim of ineffec-

tive assistance of counsel as it relates to the claims of

instructional error in his dissenting opinion. Traver I,

316 Mich App at 603-609 (S

AWYER

, J., dissenting).

Moreover, defendant did not provide further argument

on this issue in his supplemental brief following re-

mand. Accordingly, we now adopt Judge S

AWYER

’s dis-

senting opinion as it relates to this issue and reject

defendant’s claim.

Turning next to the issue of the plea withdrawal, the

trial court held the hearing on remand and concluded

that defendant was adequately advised on the poten-

tial consequences of withdrawing his plea. The trial

court concluded as follows:

2019] P

EOPLE V

RAVER

EMAND

) 423

The principle [sic] argument by the Defendant in sup-

port of his ineffective assistance of counsel position was

that he was never advised of the consequences of a

conviction under the Weapons-Felony charge, if convicted.

Attorney Hartman was adamant in his testimony at the

Ginther Hearing, that he advised the Defendant of the

“risk-reward” circumstances if he were to proceed to trial

with an added count of Felony Firearm, and the conse-

quences of a conviction being a mandatory two years in

prison. The Court can, and does, conﬁrm that the People

advised the Defendant on the record that if the matter

proceeded to trial, the Felony Firearm charge would be

added to the Information. Despite Defendant’s testimony

to the contrary, the Court is satisﬁed that this fact was

known by the Defendant, as his testimony noted below

demonstrates. As further testiﬁed by Attorney Hartman,

it was “inconceivable” that this was not explained to the

Defendant on more than one occasion. Attorney Hartman

further testiﬁed at the Ginther Hearing that the Defen-

dant led him to believe he was more interested than

anything else in harvesting a large marijuana crop that

would result in large payout. The Defendant denied this

reasoning.

* * *

The Defendant’s ﬁrst trial on the four-count informa-

tion ended in a mistrial. For the Defendant to argue he

didn’t understand the consequences of the Felony Firearm

charge, given the facts, stretches credulity. Attorney Hick-

man, who conducted the trial which resulted in acquittal

on two of the four counts, Carrying a Concealed Weapon

(CCW) and Interfering with an Electronic Device, echoed

the same sentiments of Attorney Hartman. Attorney Hick-

man was adamant that he advised the Defendant of the

inherent risks in taking the matter to trial, but regardless

of those efforts, the Defendant was adamant about having

of [sic] his day in court. Further, the Defendant at the

Ginther Hearing, acknowledged that he understood the

beneﬁt of the original plea bargain when he testiﬁed that,

424 328

ICH

418 [May

why would he risk prison or jail given the bargain he was

offered. The Defendant testiﬁed as follows:

As far as good goes, it was—as Mr. Hartman

explained it, a no-brainer. He says, if you got 80

percent chance of—this is how they explained it to

me. You got 20 percent chance to lose. This is all you

got to do. Call in probation and this, this, this. Is

that worth a 20 percent chance, he says to me, to go

to prison or to go to jail for whatever amount of time?

This statement alone indicates that Attorney Hartman

advised the Defendant of the consequences of taking the

matter to trial long before Attorney Hickman became

involved, and despite the fact that the Defendant stated

he didn’t understand it could be a mandatory two years if

convicted.

The Defendant’s testimony, the Court ﬁnds, given the

complete record of the Ginther Hearing, when compared to

the facts and testimony of the two attorneys and the

Court’s recollection of the facts, failed to support any

argument of ineffectiveness of counsel. The Court ﬁnds a

lack of credibility demonstrated by the Defendant, given

the record before the Court. All the witnesses had difﬁ-

culty in remembering certain aspects of the case, but this

Court cannot ﬁnd the lack of recall by counsel for the

Defendant determinative of any ineffectiveness. In every

trial, reasons may exist as to why things were done or not,

and nothing in the record before the Court depicts what, in

this Court’s view, constitutes proof of ineffectiveness.

Defendant now contends that this Court should

ignore the trial court’s factual ﬁndings and conclude

that defendant was not, in fact, aware that he would be

charged with one count of felony-ﬁrearm, carrying a

mandatory sentence of two years’ imprisonment, when

he withdrew his plea. The testimony of the attorneys

was clear: defendant was fully aware that the prosecu-

tor would add a charge of felony-ﬁrearm, carrying a

2019] P

EOPLE V

RAVER

EMAND

) 425

two-year minimum sentence, if defendant withdrew

his plea. The trial court found this testimony credible;

it found that defendant’s contradictory testimony was

not believable. This Court should defer to the trial

court’s credibility determinations. People v Dendel, 481

Mich 114, 130; 748 NW2d 859 (2008), amended 481

Mich 1201 (2008). Because defendant was, in fact,

informed of the likely consequence of withdrawing his

plea, his claim that counsel was ineffective for failing

to inform him of that very consequence necessarily

fails. Indeed, we agree with the trial court’s concluding

sentence in its opinion: “The ineffectiveness, the Court

further ﬁnds, was in the Defendant’s ability to listen,

his erroneous belief that he understood more than his

several counsel about the law, and in the end got

exactly what he bargained for, a trial and the subse-

quent results.”

We next turn to defendant’s claim that trial counsel

was ineffective for failing to obtain a ruling on the

motion to quash. This issue, however, is not properly

before us. The scope of the Supreme Court’s remand to

this Court was “for review of defendant’s previously

unaddressed arguments relating to ineffective assis-

tance of counsel.” Traver II, 502 Mich at 43 (emphasis

added). Defendant did not raise this issue in his

original brief on appeal; he ﬁrst raised it in his supple-

mental brief following remand. Therefore, it does not

constitute one of his “previously unaddressed argu-

ments.” As we noted in Russell, 297 Mich App at 714,

when “an appellate court remands a case with speciﬁc

instructions, it is improper for a lower court to exceed

the scope of the order.” Because the Supreme Court did

not direct us to consider any new issues raised by

defendant, it would be improper for us to now consider

this issue and we decline to do so.

426 328 M

ICH

418 [May

A similar problem exists with defendant’s remaining

issues regarding ineffective assistance of counsel. De-

fendant did raise those issues in his original brief;

therefore, those issues are properly before us. But we

did not direct the trial court to consider those issues or

hold a hearing on remand on those issues. Indeed, we

speciﬁcally limited the scope of remand to the plea-

withdrawal issue:

Pursuant to Part IV of this Court’s opinion in People v

Traver, 316 Mich App 588, 602-603; 894 NW2d 89 (2016),

aff’d in part, rev’d in part, lv den in part [502] Mich [23]

(2018) (Docket No. 154494), the Court orders that the

matter is remanded so that defendant-appellant may, if he

so chooses, move for an evidentiary hearing in support of

his claim that his trial counsel did not adequately apprise

him of the potential consequences of withdrawing his plea.

If such a hearing is requested, an evidentiary hearing

must be held, and the trial court shall determine whether

counsel was ineffective after conducting the evidentiary

hearing. Id. “If the court determines that counsel per-

formed ineffectively by failing to advise [defendant] that

the prosecutor intended to ﬁle a felony-ﬁrearm charge

carrying a mandatory two-year imprisonment penalty,

and that [defendant] would have declined to withdraw his

plea had he been aware of this risk, the court must then

order the prosecutor to reoffer the original plea agree-

ment.” Id. at 603. Proceedings on remand are limited to the

plea-withdrawal issue. [Traver, unpub order at 1 (empha-

sis added).]

Accordingly, to the extent that the trial court con-

sidered or even took testimony on any claim of ineffec-

tive assistance of counsel other than the plea-

withdrawal issue, the trial court exceeded the scope of

remand. Therefore, we have not considered any such

testimony or arguments based upon the testimony

given at the hearing on remand as it relates to any

claim other than the plea-withdrawal issue. Rather, we

2019] P

EOPLE V

RAVER

EMAND

) 427

have limited our consideration to the record as it

existed at the time of our original opinion.

In his original brief on appeal, defendant contended

that he received ineffective assistance of counsel when

counsel failed to investigate and present character

witnesses and an expert medical witness. “Trial coun-

sel’s failure to a call [sic] a witness is only considered

ineffective assistance if it deprived the defendant of a

substantial defense. A substantial defense is one that

could have affected the outcome of the trial.” People v

Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015)

(citation omitted).

Defendant claims that defense counsel failed to

contact “multiple witnesses who all attested in writing

that I was not a bully and that I had never been in a

ﬁght for as long as they had known me.” These alleged

mistakes are not apparent on the record. In any event,

defense counsel’s decision not to pursue these un-

named witnesses was a trial strategy that we will not

second-guess. People v Dunigan, 299 Mich App 579,

590; 831 NW2d 243 (2013).

Moreover, these purported character witnesses

would not have provided an outcome-determinative

defense given that there is no evidence that they would

have directly refuted the two eyewitnesses who testi-

ﬁed to seeing defendant physically assault the victim

with a gun in his hand. Similarly, defense counsel’s

decision not to pursue an expert to testify as to defen-

dant’s physical capacity cannot be considered outcome-

determinative in light of the eyewitness testimony.

Afﬁrmed.

LEICHER

, P.J., and S

AWYER

and M. J. K

ELLY

, JJ.,

concurred.

428 328 M

ICH

418 [May

PEOPLE v WALKER (ON REMAND)

Docket No. 332491. Submitted December 14, 2018, at Lansing. Decided

May 23, 2019, at 9:10 a.m. Leave to appeal denied 505 Mich 1057

(2020).

After a jury trial in the Wayne Circuit Court in 2001, Juan T.

Walker was convicted of ﬁrst-degree premeditated murder, MCL

750.316(1)(a), and possession of a ﬁrearm during the commission

of a felony (felony-ﬁrearm), MCL 750.227b(1). The court, Thomas

E. Jackson, J., originally sentenced defendant to life imprison-

ment without the possibility of parole for the murder conviction to

be served consecutively to two years’ imprisonment for the

felony-ﬁrearm conviction. The Court of Appeals, M

URPHY

, P.J., and

OOPER

, J. (L

EVIN

, J., dissenting), afﬁrmed defendant’s convictions

and sentences on direct review. People v Walker, unpublished per

curiam opinion of the Court of Appeals, issued March 1, 2005

(Docket No. 239711). In 2011, defendant moved in the trial court

for relief from the judgment, arguing that his trial counsel was

ineffective for not informing him of the prosecutor’s pretrial

offer—that defendant could plead guilty to second-degree murder

and felony-ﬁrearm and receive a two-year sentence for felony-

ﬁrearm and a consecutive sentence of 25 to 50 years’ imprison-

ment for second-degree murder. The trial court denied the motion

for relief from the judgment. Defendant ﬁled a delayed applica-

tion for leave to appeal, which was also denied; defendant then

sought leave to appeal in the Michigan Supreme Court. The

Michigan Supreme Court remanded defendant’s case to the trial

court for a hearing under People v Ginther, 390 Mich 436 (1973),

with instructions to determine whether defendant was deprived

of his right to the effective assistance of counsel. The Court

ordered that if defendant were to establish that his counsel was

ineffective in failing to convey the plea offer, defendant should be

given the opportunity to establish entitlement to relief from the

judgment and that if he could do so, the trial court would then

need to determine whether the remedy articulated in Laﬂer v

Cooper, 566 US 156 (2012)—ordering the prosecution to reoffer

the plea—should be applied retroactively. 497 Mich 894 (2014).

On remand, the trial court determined that defendant was denied

the effective assistance of counsel when his trial attorney failed to

inform him of the plea offer. As the Michigan Supreme Court had

2019] P

EOPLE V

ALKER

EMAND

) 429

instructed, defendant then moved in the trial court for relief from

the judgment. The trial court granted the motion and ordered the

prosecution to reoffer defendant the plea deal. Defendant pleaded

guilty and was sentenced to 25 to 50 years’ imprisonment for the

second-degree murder conviction and to two years’ imprisonment

for the felony-ﬁrearm conviction. The prosecution ﬁled a delayed

application for leave to appeal. The Court of Appeals, S

AAD

, P.J.,

and C

AVANAGH

and C

AMERON

, JJ., reversed the trial court and

remanded the case for the reinstatement of defendant’s original

sentences. People v Walker, unpublished per curiam opinion of the

Court of Appeals, issued October 12, 2017 (Docket No. 332491).

Defendant sought leave to appeal, and the Michigan Supreme

Court reversed, in part, the Court of Appeals’ judgment, stating

that the record supported the trial court’s unequivocal ﬁnding

that there existed a reasonable probability that defendant would

have accepted the plea offer had it been presented to him. The

Michigan Supreme Court remanded the case to the Court of

Appeals to determine whether Laﬂer should be applied retroac-

tively. 503 Mich 908 (2018).

The Court of Appeals held:

1. Ordinarily, judicial decisions are to be given complete

retroactive effect, but judicial decisions that express new rules do

not normally apply to cases already closed. New rules break new

ground or impose a new obligation on the states or the federal

government—that is, a case announces a new rule if the result

was not dictated by precedent existing at the time the defendant’s

conviction became ﬁnal. A result is dictated by precedent when it

would have been apparent to all reasonable jurists. A case does

not announce a new rule if the case is merely applying to a

different set of facts a principle that governed a prior decision.

Accordingly, garden-variety applications of the ineffective-

assistance-of-counsel test in Strickland v Washington, 466 US

668 (1984), do not produce new rules.

2. In Laﬂer, the Supreme Court decided how to apply

Strickland’s prejudice test when ineffective assistance of counsel

resulted in the rejection of a plea offer and the defendant was

convicted at the ensuing trial. Successful application of the

Strickland test after a defendant rejects a plea agreement and is

convicted following a fair trial requires that a defendant show

that but for the ineffective assistance of counsel there was a

reasonable probability that the plea offer would have been

presented to the court, the court would have accepted its terms,

and the conviction or sentence, or both, under the offer’s terms

would have been less severe than the judgment and sentence that

430 328

ICH

429 [May

were in fact imposed. The majority of courts that have examined

the question whether Laﬂer created a new rule of constitutional

law have concluded that it did not. Rather, Laﬂer merely deter-

mined how Strickland applied in the context of plea bargaining.

There was no threshold question concerning whether the Strick-

land test applied. Although Laﬂer was the ﬁrst case in which the

United States Supreme Court applied Strickland in the speciﬁc

factual context presented in Laﬂer, i.e., when a defendant had

rejected a plea offer because of ineffective assistance of counsel

and then had received a fair trial, the same rule—the one

announced in Strickland—was simply applied to a new factual

context in Laﬂer, and no new rule of constitutional law was

created. Because Laﬂer did not express a new rule, the decision

applied retroactively, and the trial court correctly ordered the

prosecution to reoffer the plea deal to defendant.

Afﬁrmed.

RIMINAL

— T

IGHT TO

OUNSEL

— I

NEFFECTIVE

SSISTANCE

—

AILURE TO

OMMUNICATE

A P

LEA

FFER TO THE

EFENDANT

— R

EMEDY

When counsel was ineffective for failing to inform the defendant of

a plea offer and the defendant establishes entitlement to relief

from the judgment, the remedy articulated in Laﬂer v Cooper, 566

US 156 (2012)—ordering the prosecution to reoffer the plea—may

be applied retroactively.

Dana Nessel, Attorney General, Fadwa Hammoud,

Solicitor General, Kym L. Worthy, Prosecuting Attor-

ney, Jason W. Williams, Chief of Research, Training,

and Appeals, and Thomas M. Chambers, Assistant

Prosecuting Attorney, for the people.

Daniel J. Rust for defendant.

ON REMAND

Before: C

AVANAGH

, P.J., and B

ORRELLO

and C

AMERON

JJ.

AMERON

, J. Our Supreme Court has directed this

Court to consider whether the decision in Laﬂer v

Cooper, 566 US 156; 132 S Ct 1376; 182 L Ed 2d 398

2019] P

EOPLE V

ALKER

EMAND

) 431

(2012), should be applied retroactively to allow defen-

dant to successfully assert that his trial counsel pro-

vided ineffective assistance of counsel in the plea-

bargaining context by failing to notify defendant of a

plea offer before trial. We hold that Laﬂer applies

retroactively because the case does not announce a new

rule. Therefore, applying the Laﬂer decision here, we

afﬁrm the trial court’s order granting relief to defen-

dant.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2001, a jury convicted defendant of ﬁrst-degree

premeditated murder, MCL 750.316(1)(a), and posses-

sion of a ﬁrearm during the commission of a felony

(felony-ﬁrearm), MCL 750.227b(1). Defendant was

originally sentenced to life imprisonment without pa-

role for the ﬁrst-degree premeditated-murder convic-

tion to be served consecutively to two years’ imprison-

ment for the felony-ﬁrearm conviction. This Court

afﬁrmed defendant’s convictions and sentences on di-

rect review. People v Walker, unpublished per curiam

opinion of the Court of Appeals, issued March 1, 2005

(Docket No. 239711) (Walker I).

In 2011, defendant moved in the trial court for relief

from judgment on the ground that his trial counsel was

ineffective for not informing him of the prosecutor’s

pretrial offer that he plead guilty to second-degree

murder and felony-ﬁrearm with a sentence agreement

of 25 to 50 years’ imprisonment for second-degree

murder and two years’ imprisonment for felony-

ﬁrearm. The trial court denied defendant’s motion for

relief from judgment. Defendant ﬁled a delayed appli-

cation for leave to appeal, which this Court denied “for

failure to meet the burden of establishing entitlement

to relief under MCR 6.508(D).” People v Walker, unpub-

432 328 M

ICH

429 [May

lished order of the Court of Appeals, entered May 21,

2012 (Docket No. 307480). Defendant sought leave to

appeal this Court’s order in the Michigan Supreme

Court, which held defendant’s application in abeyance

pending the decision in Burt v Titlow, 571 US 12; 134

S Ct 10; 187 L Ed 2d 348 (2013). People v Walker, 829

NW2d 217 (Mich, 2013). After Burt was decided, our

Supreme Court remanded the instant case to the trial

court for a Ginther

hearing with these instructions:

[W]e remand this case to the Wayne Circuit Court for an

evidentiary hearing, pursuant to People v Ginther, 390

Mich 436 (1973), as to the defendant’s contention that his

trial counsel was ineffective for failing to inform him of the

prosecutor’s September 26, 2001 offer of a plea bargain to

second-degree murder and a sentence agreement of 25 to 50

years. See Missouri v Frye, 566 US [134]; 132 S Ct 1399;

182 L Ed 2d 379 (2012). To prevail on a claim of ineffective

assistance of counsel, a defendant must show: (1) that his

attorney’s performance was objectively unreasonable in

light of prevailing professional norms; and (2) that he was

prejudiced by the deﬁcient performance. People v Carbin,

463 Mich 590, 599-600 (2001). In order to establish the

prejudice prong of the inquiry under these circumstances,

the defendant must show that: (1) he would have accepted

the plea offer; (2) the prosecution would not have with-

drawn the plea offer in light of intervening circumstances;

(3) the trial court would have accepted the defendant’s plea

under the terms of the bargain; and (4) the defendant’s

conviction or sentence under the terms of the plea would

have been less severe than the conviction or sentence that

was actually imposed. Laﬂer v Cooper, 566 US [156, 164];

132 S Ct 1376; 182 L Ed 2d 398 (2012).

If the defendant establishes that his trial counsel was

ineffective in failing to convey the plea bargain as outlined

above, the defendant shall be given the opportunity to

establish his entitlement to relief pursuant to MCR

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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6.508(D). If the defendant successfully establishes his en-

titlement to relief pursuant to MCR 6.508(D), the trial

court must determine whether the remedy articulated in

Laﬂer v Cooper should be applied retroactively to this case,

in which the defendant’s conviction became ﬁnal in October

2005. [People v Walker, 497 Mich 894, 894-895 (2014).]

On remand, the trial court held a Ginther hearing,

after which the trial court entered an order holding

that defendant was denied the effective assistance of

counsel when his trial attorney failed to inform him of

the plea offer.

Defendant then ﬁled another motion for relief from judg-

ment in the trial court, as required by our Supreme

Court’s remand order, and the trial court granted that

motion and ordered the prosecution to reoffer defendant

the plea deal. Defendant then pleaded guilty and was

resentenced to 25 to 50 years’ imprisonment for second-

degree murder and two years’ imprisonment for felony-

ﬁrearm. [People v Walker, unpublished per curiam opinion

of the Court of Appeals, issued October 12, 2017 (Docket

No. 332491) (Walker II), rev’d in part and remanded 503

Mich 908 (2018) (Walker III).]

In September 2016, this Court granted the prosecu-

tion’s delayed application for leave to appeal, which

challenged the trial court’s order granting defendant’s

motion for relief from judgment. People v Walker,

unpublished order of the Court of Appeals, entered

September 9, 2016 (Docket No. 332491). In October

2017, this panel issued an opinion reversing the trial

court’s order and remanding the case for the reinstate-

ment of defendant’s original convictions and sentences.

Walker II, unpub op at 1, 9. This Court agreed with the

prosecutor’s argument “that defendant was afforded

the effective assistance of counsel because he was not

prejudiced, i.e., he did not demonstrate that there was

a reasonable probability that he would have accepted

434 328 M

ICH

429 [May

the plea offer had it been made known to him.” Id. at

With respect to the prejudice requirement, this

Court was “left with a deﬁnite and ﬁrm conviction that

the trial [court] made a mistake in its ﬁndings, failed to

engage in a proper analysis under Laﬂer, and thereby

abused its discretion when it granted defendant’s mo-

tion for relief from judgment.” Id. at 7. That is, “the

trial court clearly erred in ﬁnding a reasonable prob-

ability defendant would have accepted the plea offer.

Therefore, defendant did not satisfy his burden in

proving ineffective assistance of counsel, and the trial

court abused its discretion when it granted defendant’s

motion for relief from judgment.” Id. at 9.

Our Supreme Court entered an order reversing in

part this Court’s decision and remanding the case to

this Court for consideration of whether Laﬂer applies

retroactively to this case; in particular, our Supreme

Court’s order stated as follows:

Pursuant to MCR 7.305(H)(1), in lieu of granting leave

to appeal, we reverse that part of the judgment of the

Court of Appeals holding that the trial court clearly erred

in ﬁnding a reasonable probability that the defendant

would have accepted the plea offer, and we remand this

case to that court for consideration of whether Laﬂer v

Cooper, 566 US 156 (2012), should be applied retroactively

to this case, in which the defendant’s convictions became

ﬁnal in 2005.

The Court of Appeals found clear error in the trial

court’s memorandum opinion and in its statements during

The prosecutor made only a cursory argument regarding the ﬁrst

prong of defendant’s ineffective-assistance claim, i.e., whether defense

counsel’s performance was deﬁcient. This panel found no clear error in

the trial court’s ﬁnding that defense counsel had failed to inform

defendant of the plea offer, and therefore, the trial court’s determination

that the deﬁcient-performance prong was satisﬁed was left undisturbed.

Walker II, unpub op at 4 n 4.

2019] P

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oral argument at a subsequent hearing. However, in its

review of the record, the Court of Appeals failed to

recognize that, at the end of that hearing, the trial court

quoted the applicable standard from Laﬂer and unequivo-

cally found that there was a reasonable probability that

the defendant would have accepted the plea offer. This

ﬁnding—made by the trial judge who presided over the

trial and the evidentiary hearing—is supported by the

record, and we are not “left with a deﬁnite and ﬁrm

conviction that the trial court made a mistake.” People v

Armstrong, 490 Mich 281, 289 (2011). [Walker III, 503

Mich 908.]

On remand, we must determine whether Laﬂer should

apply retroactively to this case. If it does, then we must

afﬁrm the trial court’s order ruling that defendant was

denied the effective assistance of counsel when his trial

attorney failed to inform defendant of the plea offer.

II. ANALYSIS

“The issue whether a United States Supreme Court

decision applies retroactively presents a question of

law that we review de novo. We review for an abuse of

discretion the trial court’s ultimate ruling on a motion

for relief from a judgment.” People v Gomez, 295 Mich

App 411, 414; 820 NW2d 217 (2012) (citation omitted).

Our Supreme Court has recently explained:

Ordinarily, judicial decisions are to be given complete

retroactive effect. But judicial decisions which express

new rules normally are not applied retroactively to other

cases that have become ﬁnal. New legal principles, even

when applied retroactively, do not apply to cases already

closed, because at some point, the rights of the parties

should be considered frozen and a conviction ﬁnal. Thus,

as to those cases that have become ﬁnal, the general rule

allows only prospective application. [People v Barnes, 502

Mich 265, 268; 917 NW2d 577 (2018) (quotation marks,

ellipsis, and citations omitted).]

436 328

ICH

429 [May

In Barnes, 502 Mich at 269, our Supreme Court quoted

from Montgomery v Louisiana, 577 US ___, ___; 136 S

Ct 718, 728; 193 L Ed 2d 599 (2016), for the most recent

explanation of the federal standard for retroactivity:

Justice O’Connor’s plurality opinion in Teague v. Lane,

489 U.S. 288[; 109 S Ct 1060; 103 L Ed 2d 334] (1989), set

forth a framework for retroactivity in cases on federal

collateral review. Under Teague, a new constitutional rule

of criminal procedure does not apply, as a general matter,

to convictions that were ﬁnal when the new rule was

announced. Teague recognized, however, two categories of

rules that are not subject to its general retroactivity bar.

First, courts must give retroactive effect to new substan-

tive rules of constitutional law. Substantive rules include

rules forbidding criminal punishment of certain primary

conduct, as well as rules prohibiting a certain category of

punishment for a class of defendants because of their

status or offense. Second, courts must give retroactive

effect to new watershed rules of criminal procedure impli-

cating the fundamental fairness and accuracy of the

criminal proceeding. [Brackets in original; quotation

marks, ellipsis, and citations omitted.]

In short, “Teague makes the retroactivity of [the

United States Supreme Court’s] criminal procedure

decisions turn on whether they are novel.” Chaidez v

United States, 568 US 342, 347; 133 S Ct 1103; 185 L

Ed 2d 149 (2013). Absent one of the two exceptions

noted above, a new rule announced by the United

States Supreme Court may not collaterally beneﬁt a

person whose conviction is already ﬁnal. Id. “Only

when [the United States Supreme Court] appl[ies] a

settled rule may a person avail herself of the decision

on collateral review.” Id.

Therefore, the ﬁrst question under Teague is

whether a judicial decision establishes a new rule.

Barnes, 502 Mich at 269, citing People v Maxson, 482

Mich 385, 388; 759 NW2d 817 (2008). A judicial deci-

2019] P

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sion’s rule is considered to be new if “it breaks new

ground or imposes a new obligation on the States or the

Federal Government.” Maxson, 482 Mich at 388 (quo-

tation marks and citation omitted); see also Chaidez,

568 US at 347. In other words, “a case announces a

new rule if the result was not dictated by precedent

existing at the time the defendant’s conviction became

ﬁnal.” Chaidez, 568 US at 347 (quotation marks and

citation omitted). “And a holding is not so dictated . . .

unless it would have been apparent to all reasonable

jurists.” Id. (quotation marks and citation omitted).

But a case does not announce a new rule if the case

is merely applying a “principle that governed a prior

decision to a different set of facts.” Id. at 347-348

(quotation marks and citations omitted). “[W]hen all

[the United States Supreme Court does] is apply a

general standard to the kind of factual circumstances

it was meant to address, [the Court] will rarely state a

new rule for Teague purposes.” Id. at 348. Therefore,

“garden-variety applications of the test in [Strickland]

for assessing claims of ineffective assistance of counsel

do not produce new rules.” Strickland v Washington,

466 US 668 (1984). The Strickland standard “provides

sufﬁcient guidance for resolving virtually all claims of

ineffective assistance, even though their particular

circumstances will differ.” Id. (quotation marks and

citation omitted). The United States Supreme Court

has therefore “granted relief under Strickland in di-

verse contexts without ever suggesting that doing so

required a new rule.” Id.

In Chaidez, 568 US at 344, the United States

Supreme Court considered the retroactivity of its deci-

sion in Padilla v Kentucky, 559 US 356; 130 S Ct 1473;

176 L Ed 2d 284 (2010), in which the Supreme Court

“held that the Sixth Amendment requires an attorney

438 328 M

ICH

429 [May

for a criminal defendant to provide advice about the

risk of deportation arising from a guilty plea.” The

Supreme Court concluded in Chaidez that Padilla

announced a new rule because the holding in Padilla

was not “apparent to all reasonable jurists” before

Padilla was decided. Chaidez, 568 US at 354 (quota-

tion marks and citation omitted). Indeed, there had

been no United States Supreme Court precedent before

Padilla that dictated the rule that the Strickland test

applied to a defense counsel’s failure to advise a

defendant about noncriminal consequences of sentenc-

ings, like the possibility of deportation. Id. at 353. The

Supreme Court stated in Chaidez that “Padilla would

not have created a new rule had it only applied

Strickland’s general standard to yet another factual

situation—that is, had Padilla merely made clear that

a lawyer who neglects to inform a client about the risk

of deportation is professionally incompetent.” Id. at

348-349. Padilla did more than this, however; it con-

sidered a “threshold question” about whether deporta-

tion advice fell within the scope of the Sixth Amend-

ment right to counsel. Id. at 349. “In other words, prior

to asking how the Strickland test applied (‘Did this

attorney act unreasonably?’), Padilla asked whether

the Strickland test applied (‘Should we even evaluate if

this attorney acted unreasonably?’).” Id. The Supreme

Court’s determination in Padilla that the Strickland

test applied thus constituted a new rule. Id. at 349,

358. Therefore, under Teague, defendants whose con-

victions became ﬁnal before Padilla was issued could

not beneﬁt from the holding in Padilla. Id. at 358.

Our Supreme Court has directed this Court to

consider whether Laﬂer’s holding applies retroactively.

In doing so, this Court must consider, under the federal

retroactivity jurisprudence summarized earlier,

whether Laﬂer created a new rule of constitutional law.

2019] P

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) 439

In Laﬂer, the defendant rejected a plea offer on the

advice of his attorney. Laﬂer, 566 US at 160. After the

plea offer was rejected, the defendant had a full and fair

jury trial that resulted in a guilty verdict, and the

defendant received a harsher sentence than what was

offered in the rejected plea bargain. Id. The parties

agreed in Laﬂer that the defense counsel’s performance

was deﬁcient when he advised the defendant to reject

the plea offer. Id. at 163. The Supreme Court noted in

Laﬂer that the Court had held in Hill v Lockhart, 474

US 52; 106 S Ct 366; 88 L Ed 2d 203 (1985), that the

Strickland test applied “to challenges to guilty pleas

based on ineffective assistance of counsel.” Laﬂer, 566

US at 162-163, quoting Hill, 474 US at 58. The Supreme

Court stated that “[t]he question for this Court is how to

apply Strickland’s prejudice test where ineffective as-

sistance results in a rejection of the plea offer and the

defendant is convicted at the ensuing trial.” Laﬂer, 566

US at 163 (emphasis added). The Supreme Court

quoted from Strickland’s prejudice test and then noted

that, while Hill involved a “claim that ineffective assis-

tance led to the improvident acceptance of a guilty plea,”

in Laﬂer, “the ineffective advice led not to an offer’s

acceptance but to its rejection.” Id. The Supreme Court

then explained how the Strickland prejudice test was to

be applied to the circumstances in Laﬂer:

In these circumstances a defendant must show that but for

the ineffective advice of counsel there is a reasonable

probability that the plea offer would have been presented to

the court (i.e., that the defendant would have accepted the

plea and the prosecution would not have withdrawn it in

light of intervening circumstances), that the court would

have accepted its terms, and that the conviction or sen-

tence, or both, under the offer’s terms would have been less

severe than under the judgment and sentence that in fact

were imposed. Here, the Court of Appeals for the Sixth

Circuit agreed with that test for Strickland prejudice in the

440 328

ICH

429 [May

context of a rejected plea bargain. This is consistent with

the test adopted and applied by other appellate courts

without demonstrated difﬁculties or systemic disruptions.

[Id. at 164.]

The Supreme Court in Laﬂer rejected the argument

that “there can be no ﬁnding of Strickland prejudice

arising from plea bargaining if the defendant is later

convicted at a fair trial.” Id. “The Sixth Amendment

requires effective assistance of counsel at critical

stages of a criminal proceeding,” including pretrial

critical stages of the criminal proceeding. Id. at 165.

Moreover, the Supreme Court stated that it had “not

followed a rigid rule that an otherwise fair trial rem-

edies errors not occurring at the trial itself. It has

inquired instead whether the trial cured the particular

error at issue.” Id. In Laﬂer, the trial did not cure the

error but “caused the injury from the error.” Id. at 166.

“Even if the trial itself is free from constitutional ﬂaw,

the defendant who goes to trial instead of taking a

more favorable plea may be prejudiced from either a

conviction on more serious counts or the imposition of

a more severe sentence.” Id.

The Supreme Court in Laﬂer also rejected an argu-

ment that providing a remedy for the type of error that

occurred in Laﬂer would “open the ﬂoodgates to litiga-

tion by defendants seeking to unsettle their convic-

tions.” Id. at 172. The Supreme Court noted that

“[c]ourts have recognized claims of this sort for over 30

years, and yet there is no indication that the system is

overwhelmed by these types of suits or that defendants

are receiving windfalls as a result of strategically

timed Strickland claims.” Id. (citation omitted).

The Laﬂer Court noted that the defendant had

brought “a federal collateral challenge to a state-court

conviction.” Id. at 172.

2019] P

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Under [the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA)], a federal court may not grant a petition

for a writ of habeas corpus unless the state court’s

adjudication on the merits was “contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d)(1). A decision is contrary to

clearly established law if the state court applies a rule

that contradicts the governing law set forth in Supreme

Court cases. [Laﬂer, 566 US at 172-173 (quotation marks,

brackets, and citation omitted).]

The Supreme Court concluded that AEDPA did not

present a bar to granting relief in Laﬂer because the

state appellate court had failed to apply Strickland

when assessing the defendant’s ineffective-assistance-

of-counsel claim. Id. at 173. “By failing to apply

Strickland to assess the ineffective-assistance-of-

counsel claim [the defendant] raised, the state court’s

adjudication was contrary to clearly established fed-

eral law.” Id. The defendant satisﬁed the Strickland

test, and the parties had conceded the existence of

deﬁcient performance. Id. at 174.

As to prejudice, [the defendant] has shown that but for

counsel’s deﬁcient performance there is a reasonable prob-

ability he and the trial court would have accepted the

guilty plea. In addition, as a result of not accepting the

plea and being convicted at trial, [the defendant] received

a minimum sentence 3

times greater than he would

have received under the plea. The standard for ineffective

assistance under Strickland has thus been satisﬁed. [Id.

(citation omitted).]

As a remedy, the Laﬂer Court ordered the prosecutor to

reoffer the plea agreement to the defendant, and if the

defendant accepted the plea offer, the state trial court

was to “exercise its discretion in determining whether

to vacate the convictions and resentence [the defen-

dant] pursuant to the plea agreement, to vacate only

442 328 M

ICH

429 [May

some of the convictions and resentence [the defendant]

accordingly, or to leave the convictions and sentence

from trial undisturbed.” Id.

Justice Scalia dissented; he opined that “the Court

today opens a whole new ﬁeld of constitutionalized

criminal procedure: plea-bargaining law.” Id. at 175

(Scalia, J., dissenting). Justice Scalia explained:

[The defendant] received a full and fair trial, was found

guilty of all charges by a unanimous jury, and was given

the sentence that the law prescribed. The Court nonethe-

less concludes that [the defendant] is entitled to some sort

of habeas corpus relief (perhaps) because his attorney’s

allegedly incompetent advice regarding a plea offer caused

him to receive a full and fair trial. That conclusion is

foreclosed by our precedents. Even if it were not fore-

closed, the constitutional right to effective plea-bargainers

that it establishes is at least a new rule of law, which does

not undermine the [state appellate court’s] decision and

therefore cannot serve as the basis for habeas relief. And

the remedy the Court announces—namely, whatever the

state trial court in its discretion prescribes, down to and

including no remedy at all—is unheard of and quite

absurd for violation of a constitutional right. I respectfully

dissent. [Id. at 176.]

Justice Scalia found it “apparent from Strickland that

bad plea bargaining has nothing to do with ineffective

assistance of counsel in the constitutional sense.” Id. at

177.

Because the right to effective assistance has as its purpose

the assurance of a fair trial, the right is not infringed

unless counsel’s mistakes call into question the basic

justice of a defendant’s conviction or sentence. That has

been, until today, entirely clear. A defendant must show

that counsel’s errors were so serious as to deprive the

defendant of a fair trial, a trial whose result is reliable.

Impairment of fair trial is how we distinguish between

2019] P

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) 443

unfortunate attorney error and error of constitutional

signiﬁcance. [Id. at 178 (quotation marks and citations

omitted).]

Justice Scalia further opined that AEDPA barred

granting relief given the “[n]ovelty” of the holding in

Laﬂer. Id. at 181. Because the Supreme Court had

never held that Strickland prejudice could be estab-

lished in the circumstances presented in Laﬂer, Justice

Scalia stated that the Supreme Court violated AEDPA

in granting habeas relief. Id. at 183. The portion of

Justice Scalia’s dissent summarized above was joined

by Chief Justice Roberts and by Justice Thomas. See

id. at 175. Justice Alito wrote a separate dissent in

which he expressed agreement, in part, with the analy-

sis of Justice Scalia. See id. at 187 (Alito, J., dissent-

ing).

Neither the United States Supreme Court nor the

Michigan appellate courts have addressed whether

Laﬂer applies retroactively. See People v Hobson, 500

Mich 1005, 1006 (2017) (M

ARKMAN

, C.J., concurring)

(“This Court has not speciﬁcally assessed the retroac-

tivity of Laﬂer . . . .”). In their supplemental briefs on

remand, the parties have brought to this Court’s atten-

tion the opinions of lower federal courts as well as an

opinion from the Utah Supreme Court. “While the

decisions of lower federal courts and other state courts

To be sure, Justice Scalia’s dissent in Laﬂer suggested that the

holding in Laﬂer created a new rule. See Laﬂer, 566 US at 176-178, 183

(Scalia, J., dissenting). But the majority in Laﬂer did not share this view,

given the majority’s analysis and conclusion that AEDPA did not bar

granting relief. Although dissenting opinions may be considered in

assessing whether a case created a new rule, “[d]issents have been

known to exaggerate the novelty of majority opinions; and the mere

existence of a dissent, like the existence of conﬂicting authority in state

or lower federal courts, does not establish that a rule is new.” Chaidez,

568 US at 353 n 11.

444 328

ICH

429 [May

are not binding on this Court, they may be considered

as persuasive authority.” People v Woodard, 321 Mich

App 377, 385 n 2; 909 NW2d 299 (2017).

The lower federal courts have concluded that Laﬂer

did not create a new rule of constitutional law. See In

re Liddell, 722 F3d 737, 738 (CA 6, 2013) (citing cases

in support of the proposition that every federal circuit

to consider the issue has concluded that Laﬂer did not

create a new rule of constitutional law). Of particular

note is the analysis in In re Perez, 682 F3d 930,

932-933 (CA 11, 2012), concluding that Laﬂer and its

companion case, Frye, did not announce new rules. The

Perez court noted that “the Supreme Court’s language

in Laﬂer and Frye conﬁrm[s] that the cases are merely

an application of the Sixth Amendment right to coun-

sel, as deﬁned in Strickland, to a speciﬁc factual

context.” Id. at 932. “The Court has long recognized

that Strickland’s two-part standard applies to ‘ineffec-

tive assistance of counsel claims arising out of the plea

process.’ ” Id., citing Hill, 474 US at 57.

The Court has also said that Strickland itself clearly

establishes Supreme Court precedent for evaluating inef-

fective assistance of counsel claims under AEDPA. Be-

cause we cannot say that either Laﬂer or Frye breaks new

ground or imposes a new obligation on the State or

Federal Government, they did not announce new rules.

Put another way, Laﬂer and Frye are not new rules

because they were dictated by Strickland. [Perez, 682 F3d

at 932-933 (quotation marks and citation omitted).]

Further, the Perez court concluded that

any doubt as to whether Frye and Laﬂer announced new

rules is eliminated because the Court decided these cases

in the post conviction context. Indeed, in Laﬂer, the

Supreme Court held that the state court’s decision was

“contrary to clearly established [federal] law” under

AEDPA. To be “clearly established federal law” within the

2019] P

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meaning of AEDPA, the rule applied in Laﬂer must, by

deﬁnition, have been an old rule within the meaning of

Teague. . . . [T]he [Supreme] Court rarely, if ever, an-

nounces and retroactively applies new rules of constitu-

tional criminal procedure in the postconviction context.

Given the general policy of not announcing or applying

new rules of constitutional law in habeas proceedings

reﬂected in Teague and AEDPA, it stands to reason that

the holdings in Frye and Laﬂer do not constitute new rules

of constitutional law. [Id. at 933-934 (citations omitted).]

Other lower federal-court opinions likewise reason

that Laﬂer did not create a new rule. See, e.g., Gal-

lagher v United States, 711 F3d 315, 315-316 (CA 2,

2013) (“Neither Laﬂer nor Frye announced a new rule

of constitutional law: Both are applications of Strick-

land . . . .”) (quotation marks omitted); Williams v

United States, 705 F3d 293, 294 (CA 8, 2013) (“We . . .

conclude, as have the other circuit courts of appeals

that have addressed the issue, that neither [Laﬂer] nor

Frye announced a new rule of constitutional law.”);

Buenrostro v United States, 697 F3d 1137, 1140 (CA 9,

2012) (“[N]either Frye nor Laﬂer . . . decided a new rule

of constitutional law. The Supreme Court in both cases

merely applied the Sixth Amendment right to effective

assistance of counsel according to the test articulated

in Strickland . . . and established in the plea-

bargaining context in Hill . . . .”); In re King, 697 F3d

1189, 1189 (CA 5, 2012) (“[W]e agree with the Eleventh

Circuit’s determination in In re Perez . . . that [Laﬂer]

and Frye did not announce new rules of constitutional

law because they merely applied the Sixth Amendment

right to counsel to a speciﬁc factual context.”). But see

Berry v United States, 884 F Supp 2d 453, 462 (ED Va,

2012), app dis 490 F Appx 583 (CA 4, 2012) (“Although

Hill and its progeny provided some foundation for the

Court’s decisions in Laﬂer and Frye, it did not dictate

446 328 M

ICH

429 [May

the result in these cases, nor did it foreclose all

possibility of an alternative decision.”).

Contrary to the overwhelming view of the lower

federal courts, the Utah Supreme Court has concluded

that “Laﬂer and Frye announced a new rule . . . .”

Winward v Utah, 355 P3d 1022, 1023; 2015 UT 61

(2015). The Utah Supreme Court acknowledged that

its conclusion was “in tension with the federal circuit

courts’ unanimous determination that Laﬂer and Frye

did not announce a ‘new rule’ . . . .” Id. at 1026 n 3

(citing cases). The Utah Supreme Court explained its

reasoning as follows:

The key holding of Laﬂer and Frye is that a defendant

who has been convicted as the result of a fair trial or

voluntary plea, and sentenced through a constitutionally

immaculate sentencing process, can claim to have been

prejudiced by his counsel’s ineffectiveness during plea

bargaining. And this key holding is simply not to be found

in the Supreme Court’s prior case law—not explicitly, and

not by clear implication. [Id. at 1027.]

In other words, “[t]he holding of Laﬂer—that prejudice

is possible even if a defendant has received a fair

trial—decides an issue neither contemplated nor ad-

dressed by Strickland.” Id. at 1028. Also, before Laﬂer,

the United States Supreme Court’s cases expanding on

the Strickland prejudice test “did not dictate the result

in Laﬂer and Frye.” Id. For example, although the

Supreme Court’s opinion in Hill “established that

prejudice exists where a defendant accepts a plea

bargain because of ineffective assistance, and thus

waives his right to trial,” id., the Hill opinion “did not

establish the converse: that prejudice exists when a

defendant rejects a plea bargain because of ineffective

assistance, thereby exercising his right to trial.” Id. “In

short,” the Utah Supreme Court explained, “we cannot

2019] P

EOPLE V

ALKER

EMAND

) 447

conclude that Laﬂer and Frye merely applied the

principles of old cases to new facts, as the ‘dictated by

precedent’ standard requires.” Id.

We ﬁnd the analyses of the lower federal courts,

such as in Perez, more persuasive than that of the Utah

Supreme Court in Winward. The Laﬂer opinion did not

create a new rule—it merely determined how the

Strickland test applied to the speciﬁc factual context

concerning plea bargaining. Unlike in Padilla, there

was no threshold question in Laﬂer concerning

whether the Strickland test applied. The Supreme

Court’s analysis in Laﬂer indicated that the “rule”

being applied was the test for ineffective assistance of

counsel set forth in Strickland and applied to the plea

process in Hill. Although Laﬂer was the ﬁrst case in

which the Supreme Court applied the Strickland

prejudice test to the speciﬁc factual context presented

in Laﬂer—i.e., when a defendant rejected a plea offer

due to ineffective assistance of counsel and then re-

ceived a fair trial—this does not change the fact that

the same rule set forth in Strickland was being applied

to a new factual context in Laﬂer. The application of

the Strickland test in Laﬂer therefore did not produce

a new rule of constitutional law. See Chaidez, 568 US

at 348.

This conclusion is reinforced by the fact that the

defendant in Laﬂer was seeking federal collateral

review of a state-court conviction. By concluding that

AEDPA did not bar granting relief to the defendant,

the Supreme Court made clear that Strickland was the

“clearly established Federal law,” Laﬂer, 566 US at

172-173, citing 28 USC 2254(d)(1), that was being

applied in Laﬂer. “ ‘[C]learly established’ law is not

‘new’ within the meaning of Teague.” Chaidez, 568 US

at 348 n 4. Therefore, because the Supreme Court in

448 328 M

ICH

429 [May

Laﬂer held that AEDPA did not bar granting relief to

the defendant in that case, Laﬂer, 566 US at 173, it

follows that the Supreme Court was applying “clearly

established Federal law,” i.e., the Sixth Amendment

right to counsel as deﬁned in Strickland, and such

clearly established federal law does not constitute a

new rule of constitutional law, Chaidez, 568 US at 348

n 4; see also Perez, 682 F3d at 933-934.

Accordingly, we conclude that Laﬂer did not create a

new rule and that it therefore applies retroactively to

this case. Thus, we afﬁrm the trial court’s order grant-

ing relief to defendant predicated on Laﬂer.

Afﬁrmed.

AVANAGH

, P.J., and B

ORRELLO

, J., concurred with

AMERON

, J.

In Winward, 355 P3d at 1027 n 5, the Utah Supreme Court stated

that

contrary to Perez, the Laﬂer Court did not hold that the state

court had acted contrary to clearly established law by applying

Strickland in a manner that failed to anticipate the outcome of

Laﬂer and Frye. Instead, the Laﬂer Court concluded that the

state court had failed to apply Strickland at all. It was this

failure, not the failure to anticipate Laﬂer and Frye, that was

contrary to clearly established law and therefore allowed the

Court to grant habeas relief. [Citation omitted.]

The Utah Supreme Court’s analysis on this point is unconvincing. It is

Strickland itself that the state appellate court failed to apply in Laﬂer;

this is what led the United States Supreme Court in Laﬂer to conclude

that the state appellate court had failed to apply “clearly established

federal law.” By concluding that AEDPA did not present a bar to

granting habeas relief, the Court in Laﬂer concluded that the law being

applied was “clearly established,” and thus a new rule was not created.

See Laﬂer, 566 US at 173 (“By failing to apply Strickland to assess the

ineffective-assistance-of-counsel claim [the defendant] raised, the state

court’s adjudication was contrary to clearly established federal law.”).

2019] P

EOPLE V

ALKER

EMAND

) 449

MENDELSON ORTHOPEDICS PC v EVEREST NATIONAL

INSURANCE COMPANY

Docket No. 341013. Submitted May 7, 2019, at Detroit. Decided May 28,

2019, at 9:00 a.m.

Donald Devore and Larry Morgan intervened in an action brought in

the Wayne Circuit Court by Mendelson Orthopedics PC and

Synergy Spine and Orthopedic Center LLC (SSOC) against Ever-

est National Insurance Company, seeking payment for medical

services rendered to Devore and Morgan for injuries they suffered

in a June 2, 2015, automobile accident while in a vehicle owned by

Cracynthia Havlicsek and insured by Everest. Everest paid Mor-

gan’s and Devore’s claims for personal protection insurance (PIP)

beneﬁts from June 2, 2015 until December 31, 2015, when it

terminated their beneﬁts. The court, Annette J. Berry, J., permit-

ted Mendelson and SSOC to amend their complaint to add the

Michigan Assigned Claims Plan (MACP) as a defendant. Morgan

and Devore alleged that they were entitled to PIP beneﬁts that

Everest refused to pay and that the Michigan Automobile Insur-

ance Placement Facility (MAIPF) had the obligation to immedi-

ately assign their beneﬁts claims to an insurer. Everest moved for

summary disposition on the ground that it had rescinded

Havlicsek’s insurance policy because she misrepresented her ad-

dress on the policy application, which Everest argued rendered the

policy void ab initio. Morgan and Devore responded that, because

they were innocent third parties and Everest only raised the fraud

defense after the no-fault act’s one-year limitations period expired,

their ability to seek beneﬁts from the MAIPF would be substan-

tially prejudiced if Everest was not equitably estopped from

asserting rescission as a bar to their claims. The trial court granted

Everest summary disposition, ruling that Everest had the absolute

right to rescind the policy for material misrepresentation, but it

also dismissed Everest without prejudice subject to the case being

reinstated if the Supreme Court reversed Bazzi v Sentinel Ins Co,

315 Mich App 763 (2016), aff’d in part and rev’d in part 502 Mich

390 (2018), which had held that when an insurer rescinds an

insurance policy because the insured committed fraud, it is not

required to pay beneﬁts to a third party who is innocent of the

fraud. The court also granted summary disposition in favor of the

450 328

ICH

450 [May

MAIPF, citing MCL 500.3174, which requires a claimant to notify

the MAIPF of his or her claim within one year of the accident that

caused the injuries. Devore appealed both orders.

The Court of Appeals held:

1. The trial court erred by granting Everest summary dispo-

sition without considering the equities to determine whether

Everest had a right to rely on the rescission of Havlicsek’s policy

to dispose of Devore’s claims for PIP beneﬁts. The Supreme

Court’s decision in Bazzi v Sentinel Ins Co, 502 Mich 390 (2018),

conﬁrmed that the innocent-third-party rule, which precludes

an insurer from rescinding an insurance policy procured

through fraud when there is a claim involving an innocent third

party, did not survive the Supreme Court’s decision in Titan Ins

Co v Hyten, 491 Mich 547 (2012). However, Bazzi held that

although an insurer may raise fraud as a defense, it is not

categorically entitled to rescission as between all parties by

operation of law. Accordingly, the trial court appropriately

recognized Everest’s right to rescind the policy and treat it as

void ab initio as between itself and Havlicsek, but it erred by

failing to consider the equities to determine whether Everest

could rely on the rescission with respect to Devore’s claims.

2. The trial court erred by granting the MAIPF summary

disposition because Devore complied with the notice require-

ments of MCL 500.3174 and MCL 500.3145. MCL 500.3174,

which speciﬁes how PIP beneﬁts claims may be made through the

MACP by notifying the MAIPF, requires a claimant to notify the

MAIPF within the time that the no-fault act permits the claimant

to ﬁle an action for PIP beneﬁts if an insurance policy provided

applicable coverage. Actions for recovery of PIP beneﬁts are

governed by MCL 500.3145(1), which requires a claimant to bring

an action for PIP beneﬁts within one year after the accident

unless the claimant provided written notice of the injury to the

insurer within one year of the accident. In Jesperson v Auto Club

Ins Ass’n, 499 Mich 29 (2016), the Supreme Court held that MCL

500.3145(1) allows an action for no-fault beneﬁts to be ﬁled more

than one year after the date of the accident causing the injury if

the insurer has either received notice of the injury within one

year of the accident or has made a payment of no-fault beneﬁts for

the injury at any time before the action is commenced. Accord-

ingly, if an insurer has made any payment of PIP beneﬁts, the

one-year notice limitation period commences upon the date that

the most recent allowable expense, work loss, or survivor’s loss

was incurred. In this case, the last date on which Everest made a

payment occurred on January 22, 2016, for medical services

2019] M

ENDELSON

RTHO V

VEREST

451

rendered on December 11, 2015. Devore ﬁled his intervening

complaint against the MACP and the MAIPF on September 23,

2016, and the MAIPF conceded in its motion for summary

disposition that it received a copy of Devore’s complaint on

September 19, 2016, which was well within the one-year notice

limitation period extended by the payment exception that applied

in this case. Therefore, Devore’s notice to the MAIPF fell within

the time that would have been allowed for ﬁling an action for PIP

beneﬁts as prescribed by MCL 500.3174.

Reversed and remanded for further proceedings.

1. I

NSURANCE

— N

-F

AULT

— F

RAUD BY

NSURED

— I

NNOCENT

HIRD

ARTIES

—

ESCISSION

— E

QUITY

An insurer may seek rescission of an insurance policy on the basis

of fraud committed by the insured; however, when there is a claim

involving an innocent third party, the insurer is not categorically

entitled to rescission as between all parties by operation of law;

rather, the trial court must balance the equities to determine

whether the insurer may rely on the rescission to defend against

an innocent-third-party claim.

2. I

NSURANCE

— N

-F

AULT

— S

TATUTE OF

IMITATIONS

— E

XCEPTIONS

—

AYMENT OF

ENEFITS

EFORE

CTION

OMMENCED

An action for no-fault beneﬁts may be ﬁled more than one year after

the date of the accident causing the injury if the insurer has

either received notice of the injury within one year of the accident

or has made a payment of no-fault beneﬁts for the injury at any

time before the action is commenced; if an insurer has made any

payment of personal protection insurance beneﬁts, the one-year

notice limitations period commences on the date that the most

recent allowable expense, work loss, or survivor’s loss was in-

curred (MCL 500.3145(1), MCL 500.3174).

Mike Morse Law Firm (by Eric M. Simpson, Joshua

B. Farr, and Stacey L. Heinonen) for Donald Devore.

Anselmi Mierzejewski Ruth & Sowle, PC (by Rita

Arabo) for the Michigan Automobile Insurance Place-

ment Facility.

Zausmer, August & Caldwell, PC (by Amy S. Applin,

James C. Wright, and Michael A. Schwartz) for Everest

National Insurance Company.

452 328 M

ICH

450 [May

Before: R

EDFORD

, P.J., and M

ARKEY

and K. F. K

ELLY

, JJ.

URIAM

. Intervening plaintiff, Donald Devore,

appeals as of right the trial court’s orders granting

summary disposition in favor of defendants Everest

National Insurance Company (Everest) and the Michi-

gan Automobile Insurance Placement Facility

(MAIPF). We reverse both rulings and remand for

further proceedings consistent with this opinion.

I. BACKGROUND

While driving a motor vehicle owned by Cracynthia

Havlicsek in Birmingham, Michigan on June 2, 2015,

intervening plaintiff, Larry Morgan, and Devore, his

passenger, were rear-ended by another driver. Both

Morgan and Devore suffered injuries. Havlicsek had

recently obtained an auto insurance policy issued by

Everest on her vehicle. Everest paid some but not all of

Morgan’s and Devore’s medical bills. Everest covered

Morgan’s and Devore’s claims for personal protection

insurance (PIP) beneﬁts from June 2, 2015 until

December 31, 2015, when it terminated their beneﬁts

on the basis of the results of independent medical

examinations.

Plaintiffs, Mendelson Orthopedics PC (Mendelson)

and Synergy Spine and Orthopedic Center, LLC

(SSOC), sued Everest to recover payments for medical

services rendered to Morgan related to the injuries he

suffered in the June 2, 2015 accident. Pursuant to the

parties’ stipulation, the trial court permitted Mendel-

son and SSOC to amend their complaint to add the

Michigan Assigned Claims Plan (MACP) as a defen-

dant. Morgan and Devore sued Everest in a separate

action in Oakland County, but on September 2, 2016,

2019] M

ENDELSON

RTHO V

VEREST

453

they moved to intervene in this action. The trial court

granted their motion and ordered them to dismiss their

pending lawsuit against Everest without prejudice. In

their intervening complaint, Morgan and Devore al-

leged claims against Everest and the MAIPF. They

alleged that Everest insured the vehicle in which they

were injured and that they were entitled to PIP ben-

eﬁts under the policy, which Everest refused to pay.

They also alleged that the MAIPF had the obligation to

immediately assign their beneﬁts claims to an insurer

to immediately provide them PIP beneﬁts. Everest

defended against Morgan’s and Devore’s claims on the

ground that it had rescinded Havlicsek’s policy be-

cause she misrepresented material facts in her insur-

ance application. The MAIPF denied having any obli-

gations to provide Morgan and Devore PIP beneﬁts.

Among its afﬁrmative defenses, it stated that Morgan

and Devore failed to provide proof of loss as required

under the no-fault act, MCL 500.3101 et seq., and failed

to provide notice of their claims within the time per-

mitted for ﬁling an action for PIP beneﬁts.

Everest moved for summary disposition under MCR

2.116(C)(10) of Morgan’s and Devore’s claims for PIP

beneﬁts on the ground that it had rescinded

Havlicsek’s insurance policy because she misrepre-

sented her address on the policy application. Everest

explained that it learned of Havlicsek’s misrepresen-

tation in August and September 2016, about one year

and three months after the accident, during deposi-

tions of Havlicsek’s mother and Devore. Everest ar-

gued that Michigan law permitted its rescission of

Havlicsek’s policy because misrepresentations in the

application justiﬁed rescission and declaration that the

policy was void ab initio. Everest contended that its

rescission of Havlicsek’s policy precluded all plaintiffs

from seeking coverage under the policy. Everest argued

454 328 M

ICH

450 [May

that, even though Morgan and Devore may have been

innocent of fraud, rescission of Havlicsek’s policy pre-

cluded them from any recovery of beneﬁts from it.

In opposition to Everest’s motion, Morgan and Dev-

ore argued that, because they were innocent third

parties and Everest failed to raise the alleged misrep-

resentation in its reservation-of-rights letters to them,

and only raised the fraud defense after the no-fault

act’s one-year limitation period expired, their ability to

seek beneﬁts from the MAIPF would be substantially

prejudiced if Everest was not equitably estopped from

asserting rescission as a bar to their innocent-third-

party claims. Morgan and Devore asserted that Ever-

est could not raise the fraud defense to deny them PIP

beneﬁts and that Havlicsek’s misrepresentations did

not automatically permit Everest to rescind the policy

as to all parties. They contended that the trial court

should consider whether Everest had a right to the

equitable remedy of rescission under the circum-

stances.

The trial court ruled that Everest had the absolute

right to rescind the policy for material misrepresenta-

tion. The trial court held that no genuine issue of

material fact existed regarding that a material misrep-

resentation had been made by Havlicsek in her appli-

cation for insurance. The trial court, therefore, granted

Everest summary disposition. However, the trial court

dismissed Everest without prejudice subject to the case

being reinstated if our Supreme Court reversed this

Court’s decision in Bazzi v Sentinel Ins Co, 315 Mich

App 763, 770; 891 NW2d 13 (2016), aff’d in part and

rev’d in part 502 Mich 390 (2018).

The MAIPF moved under MCR 2.116(C)(8) and (10)

for summary disposition of Devore’s claims on the

ground that he did not submit an application for

2019] M

ENDELSON

RTHO V

VEREST

455

beneﬁts or notice of a claim until more than one year

after his June 2, 2015 accident, which resulted in his

ineligibility for no-fault beneﬁts under MCL 500.3172

and MCL 500.3174. The MAIPF argued that Devore

lacked eligibility because he failed to provide notice of

his claim within one year after his accident, and ﬁrst

gave it notice of his claim by ﬁling his suit against it on

September 19, 2016, one year and three months after

his accident, which absolutely barred his claims.

Devore opposed the MAIPF’s motion by arguing that

Jesperson v Auto Club Ins Ass’n, 499 Mich 29, 39; 878

NW2d 799 (2016), clariﬁed that the one-year time limit

for submitting a claim is extended under MCL

500.3145(1) when previous payments have been made

to or for the beneﬁt of an injured person by an insurer.

Devore explained that Everest had rescinded

Havlicsek’s policy months after the one-year anniver-

sary of his accident, which triggered his suit against

the MAIPF. He argued that his suit against the

MAIPF, nevertheless, fell within one year after the last

payment made by Everest. He argued that he had

complied with the no-fault act’s notice requirement set

forth in MCL 500.3174 in conjunction with MCL

500.3145(1). The trial court disagreed and granted the

MAIPF’s motion. Devore now appeals both orders.

II. STANDARDS OF REVIEW

We review de novo the trial court’s decisions on

motions for summary disposition under MCR

2.116(C)(10). Latham v Barton Malow Co, 480 Mich

105, 111; 746 NW2d 868 (2008). A motion brought

pursuant to MCR 2.116(C)(10) tests the factual support

of a plaintiff’s claim and is reviewed “by considering

the pleadings, admissions, and other evidence submit-

ted by the parties in the light most favorable to the

456 328 M

ICH

450 [May

nonmoving party. Summary disposition is appropriate

if there is no genuine issue regarding any material fact

and the moving party is entitled to judgment as a

matter of law.” Id. (citation omitted). A genuine issue of

material fact exists “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). We review de novo questions of statutory inter-

pretation and the proper interpretation of a contract.

Titan Ins Co v Hyten, 491 Mich 547, 553; 817 NW2d

562 (2012). We also review de novo motions for sum-

mary disposition under MCR 2.116(C)(8). Bedford v

Witte, 318 Mich App 60, 64; 896 NW2d 69 (2016). A

motion under MCR 2.116(C)(8) tests whether the op-

posing party has failed to state a claim on which relief

can be granted. Id. “When deciding a motion under

(C)(8), this Court accepts all well-pleaded factual alle-

gations as true and construes them in the light most

favorable to the nonmoving party.” Id. (quotation

marks and citation omitted). A trial court may grant

summary disposition under MCR 2.116(C)(8) “only

when the claim is so clearly unenforceable as a matter

of law that no factual development could possibly

justify a right of recovery.” Id. (quotation marks and

citation omitted).

III. ANALYSIS

Devore ﬁrst argues that the trial court erred by

granting Everest summary disposition because it de-

clined to consider the equities to determine whether

Everest had a right to rescind Havlicsek’s policy and

rely on the rescission, based on the fraud-in-the-

application defense, for disposition of Devore’s PIP

beneﬁts claims. We agree.

2019] M

ENDELSON

RTHO V

VEREST

457

In Bazzi v Sentinel Ins Co, 502 Mich 390; 919 NW2d

20 (2018), a case very similar to this case, our Supreme

Court addressed “whether the judicially created

innocent-third-party rule, which precludes an insurer

from rescinding an insurance policy procured through

fraud when there is a claim involving an innocent third

party, survived [the Supreme] Court’s decision in

Titan[, 491 Mich 547,] which abrogated the judicially

created easily-ascertainable-fraud rule.” Id. at 396.

The plaintiff incurred an injury in an auto accident

while driving his mother’s vehicle, which was insured

by the defendant insurer. The plaintiff sued the insurer

for mandatory PIP beneﬁts. The insurer obtained a

default judgment rescinding the insurance policy on

the ground that the plaintiff’s mother had procured the

policy through fraud because the policy had been

issued to the mother’s company for commercial use of

the vehicle, but her son regularly drove the vehicle,

and she never disclosed that he would be a regular

driver of it. Id. at 396-397. The insurer moved for

summary disposition of the plaintiff’s claim on the

ground that rescission made the policy void ab initio,

resulting in the preclusion of recovery of beneﬁts under

the policy. Id. at 397. The trial court applied the

innocent-third-party rule, “which prevents an insurer

from rescinding an insurance policy on the basis of

material misrepresentations in the application for in-

surance as to a claim made by a third party who is

innocent of the fraud” and denied the motion. Id.

This Court denied the insurer’s interlocutory appli-

cation for leave to appeal, and our Supreme Court

remanded the case to this Court for consideration as on

leave granted. On remand, this Court reversed the

trial court and remanded for further proceedings, hold-

ing that Titan abrogated the innocent-third-party rule

and that no statute prohibited an insurer from raising

458 328 M

ICH

450 [May

a fraud defense in relation to PIP beneﬁts claims. Id. at

397-398. The plaintiff again sought leave to appeal in

our Supreme Court, which granted his application. The

Supreme Court afﬁrmed this Court’s holding that

Titan abrogated the innocent-third-party rule but re-

versed this Court’s holding that the insurer was auto-

matically entitled to rescission. Id. at 398.

Our Supreme Court explained that “unless clearly

prohibited by statute, an insurer may continue to avail

itself of any common-law defenses, such as fraud in the

procurement of the policy.” Id. at 400, citing Titan, 491

Mich at 554-555. Therefore, the insurer could raise the

defense and seek rescission of the no-fault insurance

policy, id. at 401, and could “ ‘avoid liability . . . on the

ground of fraud in the application for insurance, even

when the fraud was easily ascertainable and the claim-

ant is a third party,’ ” id. at 403, quoting Titan, 491

Mich at 571. The Supreme Court stated that, in Titan,

it determined that the innocent-third-party rule and

the easily-ascertainable-fraud rule overlapped, and

whether taken together or separately, neither sufﬁced

to preclude rescission. Id.

Our Supreme Court stated that “the no-fault act

neither prohibits an insurer from invoking the

common-law defense of fraud nor limits or narrows the

remedy of rescission.” Id. at 406. Further, “an insurer

has a reasonable right to expect honesty in the appli-

cation for insurance, and there is nothing in the

no-fault act that indicates that the reasonable expec-

tations of an innocent third party surmount the rea-

sonable expectations of the insurer.” Id. at 407 (citation

omitted).

Nevertheless, even though an insurer may raise the

fraud defense, our Supreme Court clariﬁed that insur-

ers are not “categorically entitled to rescission.” Id. at

2019] M

ENDELSON

RTHO V

VEREST

459

408. Because “a claim to rescind a transaction is

equitable in nature, it is not strictly a matter of right

but is granted only in the sound discretion of the

court,” and when a party seeks rescission, “the trial

court must balance the equities” to determine whether

the party is entitled to the relief it seeks. Id. at 409-410

(quotation marks and citations omitted). Trial courts

are not required to grant rescission in all cases. Id. at

410. Our Supreme Court explained:

Moreover, when two equally innocent parties are affected,

the court is “required, in the exercise of [its] equitable

powers, to determine which blameless party should as-

sume the loss . . . .” Lenawee [Co Bd of Health v Messerly],

417 Mich [17], 31[; 331 NW2d 203 (1982)]. “[W]here one of

two innocent parties must suffer by the wrongful act . . . of

another, that one must suffer the loss through whose act

or neglect such third party was enabled to commit the

wrong.” Zucker v Karpeles, 88 Mich 413, 430; 50 NW 373

(1891). “The doctrine is an equitable one, and extends no

further than is necessary to protect the innocent party in

whose favor it is invoked.” Id.

In this instance, rescission does not function by auto-

matic operation of the law. Just as the intervening interest

of an innocent third party does not altogether bar rescis-

sion as an equitable remedy, neither does fraud in the

application for insurance imbue an insurer with an abso-

lute right to rescission of the policy with respect to third

parties. Equitable remedies are adaptive to the circum-

stances of each case, and an absolute approach would

unduly hamper and constrain the proper functioning of

such remedies. This Court has recognized that “[e]quity

jurisprudence molds its decrees to do justice amid all the

vicissitudes and intricacies of life” and that “[e]quity

allows complete justice to be done in a case by adapting

its judgments to the special circumstances of the case.”

Tkachik v Mandeville, 487 Mich 38, 45-46; 790 NW2d 260

(2010) (quotation marks omitted), citing Spoon-Shacket

Co, Inc v Oakland Co, 356 Mich 151, 163; 97 NW2d 25,

and 27A Am Jur 2d, Equity, § 2, pp 520-521; see also

460 328

ICH

450 [May

Lenawee, 417 Mich at 29 (adopting a case-by-case ap-

proach to rescission when a “mistaken belief relates to a

basic assumption of the parties upon which the contract is

made, and which materially affects the agreed perfor-

mances of the parties”), and Am Jur 2d, § 2, pp 548-549.

Accordingly, although the policy between Sentinel and

the insured, Mimo Investment, is void ab initio due to the

fraudulent manner in which it was acquired, the trial

court must now determine whether, in its discretion,

rescission of the insurance policy is available as between

Sentinel and plaintiff. Therefore, we remand this matter

to the trial court to exercise its discretion. Lenawee, 417

Mich at 31. [Id. at 410-412.]

In this case, Devore invoked the doctrines of equi-

table estoppel, laches, and promissory estoppel in an

effort to persuade the trial court to consider the equi-

ties as between the parties because Everest’s conduct

placed Devore in the position of having no recourse to

any further recovery of PIP beneﬁts. Devore argued

that Everest could not assert Havlicsek’s fraud in the

application as an absolute defense against his claims

irrespective of the equities of the parties. The trial

court declined to consider the equities because it be-

lieved that Michigan law compelled it to grant Everest

summary disposition.

Our Supreme Court decided Bazzi on July 12, 2018.

Bazzi conﬁrms that the trial court appropriately rec-

ognized Everest’s right to rescind and treat the policy

as void ab initio as between itself and Havlicsek. The

Supreme Court, however, clariﬁed in Bazzi that the

In the matter at bar, the trial court granted summary disposition on

November 8, 2016, in favor of Everest and against Mendelson, Synergy,

Morgan and Devore. On March 31, 2017, the trial court granted

summary disposition in favor of the MAIPF and against Devore. On

October 20, 2017, the trial court entered an order dismissing Morgan’s

claims against Farmers.

2019] M

ENDELSON

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461

trial court should consider and balance the equities to

determine, as between Everest and Devore, whether

the equities permit Everest the equitable remedy of

rescission as to Devore or precluded it from relying on

the fraud defense to Devore’s claims. De novo review of

the record establishes that the trial court did not

consider or determine the equities as between Everest

and Devore. The trial court speciﬁcally stated on the

record that it would not do so. Under our Supreme

Court’s decision in Bazzi, the trial court should have

exercised its discretion and determined whether Ever-

est could rely on the rescission for its defense of

Devore’s claims because an insurer is not automati-

cally entitled to rescission as between all parties by

operation of law. Because the trial court did not con-

sider or determine the equities as between Everest and

Devore, we reverse its decision and remand this case to

the trial court for further proceedings consistent with

our Supreme Court’s Bazzi decision.

Devore next argues that the trial court failed to

properly interpret the interplay between MCL

500.3174 and MCL 500.3145(1) and incorrectly applied

these statutory provisions because MCL 500.3145(1)

permits a PIP beneﬁts claimant to give notice of a

claim for beneﬁts to the MAIPF one year from the last

payment made by an insurer, which he did when he

learned that Everest terminated his beneﬁts because

of Havlicsek’s fraud in procurement of the policy. We

agree.

This issue primarily presents a question of statutory

interpretation. The primary goal in statutory interpre-

tation is to ascertain and give effect to the Legisla-

ture’s intent. Farmers Ins Exch v AAA of Mich, 256

Mich App 691, 695; 671 NW2d 89 (2003). This Court

recently clariﬁed:

462 328 M

ICH

450 [May

The proper role of the judiciary is to interpret and not

write the law . . . . Accordingly, this Court enforces a

statute as written if the statutory language is unambigu-

ous. While a term must be applied as expressly deﬁned

within a given statute, undeﬁned words are to be given

their plain and ordinary meaning, taking into account the

context in which the words are used[.] We may consult a

dictionary to ascertain common and ordinary meaning[s].

This Court must avoid an interpretation that would ren-

der any part of a statute surplusage or nugatory. [Williams

v Kennedy, 316 Mich App 612, 616; 891 NW2d 907 (2016)

(quotation marks and citations omitted).]

MCL 500.3174 speciﬁes how PIP beneﬁts claims

may be made through the MACP by notifying the

MAIPF. MCL 500.3174 provides:

A person claiming through the assigned claims plan

shall notify the [MAIPF] of his or her claim within the

time that would have been allowed for ﬁling an action for

personal protection insurance beneﬁts if identiﬁable cov-

erage applicable to the claim had been in effect. The

[MAIPF] shall promptly assign the claim in accordance

with the plan and notify the claimant of the identity and

address of the insurer to which the claim is assigned. An

action by the claimant shall not be commenced more than

30 days after receipt of notice of the assignment or the last

date on which the action could have been commenced

against an insurer of identiﬁable coverage applicable to

the claim, whichever is later.

This statutory provision lacks ambiguity. The plain

language of the statute requires a claimant to notify

the MAIPF within the time that the no-fault act

permits the claimant to ﬁle an action for PIP beneﬁts if

an insurance policy provided applicable coverage. Ac-

tions for recovery of PIP beneﬁts under the no-fault act

are governed by MCL 500.3145(1), which provides:

An action for recovery of [PIP] beneﬁts payable under

this chapter for accidental bodily injury may not be

2019] M

ENDELSON

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463

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 previ-

ously made a payment of [PIP] 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 notice of injury required by this subsec-

tion may be given to the insurer or any of its authorized

agents by a person claiming to be entitled to beneﬁts

therefor, or by someone in his behalf. The notice shall give

the name and address of the claimant and indicate in

ordinary language the name of the person injured and the

time, place and nature of his injury.

This statutory provision also lacks ambiguity. The

plain language of the statute requires a claimant to

bring an action for PIP beneﬁts within one year after

the accident unless the claimant provided written

notice of the injury to the insurer within one year of the

accident. The statute provides alternatively that, if an

insurer had previously paid PIP beneﬁts for the injury,

an action may be commenced at any time within one

year after the most recent allowable expense has been

incurred. The statute does not prescribe a formal

manner of giving notice but simply requires the claim-

ant to plainly provide the injured person’s name and

the time, place, and nature of the injury.

The Legislature used the same language in MCL

500.3174 and MCL 500.3145 to specify when an action

may be commenced. Because the Legislature chose to

use the same language in each provision, “the Legisla-

ture intended that the different sections be treated in

the same manner to accomplish the same purpose,”

464 328 M

ICH

450 [May

and these provisions must be consistently interpreted.

Bronson Methodist Hosp v Allstate Ins Co, 286 Mich

App 219, 227; 779 NW2d 304 (2009). Further, because

our Supreme Court interpreted the language of MCL

500.3145(1) as constituting statutes of limitations, use

of the same terms in MCL 500.3174 must be inter-

preted in the same manner. Id.

Therefore, proper interpretation and application of

MCL 500.3174 requires applying MCL 500.3145(1) to

determine when notice of claims to the MAIPF must be

provided to make a claim through the MACP to the

MAIPF for PIP beneﬁts. In Jesperson, 499 Mich at

33-34, our Supreme Court explained that MCL

500.3145(1) provides two exceptions to the one-year

limitation period, the notice exception and the pay-

ment exception. The Supreme Court noted that the

statute speciﬁed that an action for no-fault beneﬁts

could be ﬁled more than a year after an accident if the

insurer previously paid PIP beneﬁts. The Supreme

Court concluded that the Legislature’s use of the

disjunctive term “or” indicated an alternative, requir-

ing treatment of the notice and payment exceptions as

independent alternatives. Id. at 34-35. The Supreme

Court concluded that the payment exception’s use of

the term “previously” meant “something different from

‘within 1 year after the accident.’ ” Id. at 35. The

Supreme Court concluded that the payment exception

“is satisﬁed by any prior payment.” Id. The Supreme

Court explained that giving full effect to the Legisla-

ture’s intent required interpreting the language of the

statute so that it did not render the payment exception

mere surplusage. Id. at 36-37. Accordingly, the pay-

ment exception, when properly understood, extends

the action-ﬁling limitations period beyond one year

from the accident when an insurer had made no-fault

beneﬁts payments. Id. at 37-38. The Supreme Court

2019] M

ENDELSON

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465

concluded “that the payment exception to the one-year

statute of limitations in § 3145(1) applies when the

insurer makes a payment prior to the commencement

of an action for no-fault beneﬁts.” Id. at 38. Therefore,

the Supreme Court held

that the ﬁrst sentence of MCL 500.3145(1) allows for an

action for no-fault beneﬁts to be ﬁled more than one year

after the date of the accident causing the injury if the

insurer has either received notice of the injury within one

year of the accident or has made a payment of no-fault

beneﬁts for the injury at any time before the action is

commenced. [Id. at 39 (emphasis added).]

Our Supreme Court’s explanation of the interplay

between MCL 500.3174 and MCL 500.3145 and its

holding in Jesperson establish that the payment excep-

tion extends the one-year notice limitation period to

beyond one year after the injury accident and does not

elapse until one year after the most recent allowable

expense, work loss, or survivor’s loss has been incurred.

We conclude that, if an insurer has made any payment

of PIP beneﬁts, the payment exception is triggered and

the one-year notice limitation period commences upon

the date that the most recent allowable expense, work

loss, or survivor’s loss was incurred.

In this case, the MAIPF moved for summary dispo-

sition on the ground that Devore did not provide any

notice of his claim to it until September 19, 2016,

more than one year and three months after he suf-

fered injury in his accident, when the MAIPF received

a copy of the complaint in this lawsuit. The MAIPF

asserted that Devore failed to comply with the claim

notice requirements of MCL 500.3174. Devore op-

posed the MAIPF’s motion on the ground that he met

the notice requirement because he brought his action

against the MAIPF within one year of the last pay-

466 328 M

ICH

450 [May

ment of PIP beneﬁts by Everest. Devore supported his

opposition by attaching to his opposition brief a

comprehensive account statement of the payments

made by Everest’s claims management company of

PIP beneﬁts to Mendelson for medical services ren-

dered to Devore in relation to his June 2, 2015

accident. The last date on which Everest made a

payment was January 22, 2016, for medical services

rendered on December 11, 2015. The record, there-

fore, reﬂects that the most recent allowable expense,

work loss, or survivor’s loss incurred by Devore oc-

curred on December 11, 2015. Devore ﬁled his inter-

vening complaint against the MACP and the MAIPF

on September 23, 2016. The MAIPF conceded in its

motion for summary disposition that it received a

copy of Devore’s complaint on September 19, 2016.

The record reﬂects that the MAIPF had notice of

Devore’s claims for PIP beneﬁts well within the

one-year notice limitation period extended by the

payment exception that applied in this case. There-

fore, Devore’s notice to the MAIPF fell within the time

that would have been allowed for ﬁling an action for

PIP beneﬁts as prescribed by MCL 500.3174.

Because Devore complied with the notice require-

ments under MCL 500.3174 and MCL 500.3145, the

trial court erred by granting summary disposition to

the MAIPF. We ﬁnd no merit to the MAIPF’s argu-

ments because they contradict our Supreme Court’s

analysis and holding articulated in Jesperson. Accord-

ingly, we reverse the trial court’s order granting sum-

mary disposition to the MAIPF.

Reversed and remanded for further proceedings con-

sistent with this opinion. We do not retain jurisdiction.

EDFORD

, P.J., and M

ARKEY

and K. F. K

ELLY

, JJ.,

concurred.

2019] M

ENDELSON

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467

RICHARDSON v ALLSTATE INSURANCE COMPANY

Docket No. 341439. Submitted May 2, 2019, at Detroit. Decided May 28,

2019, at 9:05 a.m.

Stephanie L. Richardson brought an action in the Wayne Circuit

Court against Allstate Insurance Company, claiming that she was

entitled to personal protection insurance (PIP) beneﬁts under the

no-fault act, MCL 500.3101 et seq., following a motor vehicle

accident that allegedly injured her. Plaintiff went to the hospital

for neck pain and dizziness. After being released from the

hospital, plaintiff’s attorney’s ofﬁce, Michigan Accident Associ-

ates, PLLC, referred plaintiff to Ortho, PC, for medical treat-

ment. Plaintiff’s claims for PIP beneﬁts were assigned to defen-

dant through the Michigan Assigned Claims Plan, and defendant

denied plaintiff’s claims. Plaintiff brought the instant action, and

defendant moved for summary disposition, alleging that plaintiff

was improperly solicited by an attorney with Michigan Accident

Associates. The motion was based on plaintiff’s deposition testi-

mony that the attorney was at plaintiff’s home on the day that she

was released from the hospital, which was only days after the

accident had occurred. Following a hearing, the court, David J.

Allen, J., granted summary disposition to defendant, holding that

plaintiff was improperly solicited by her attorney and that the

improper solicitation rendered plaintiff’s medical treatment un-

lawful. Plaintiff moved to reinstate the case, and the court denied

plaintiff’s motion. Plaintiff appealed, and defendant moved to

dismiss the appeal for failure to settle the record. The Court of

Appeals, C

AMERON

, P.J., and F

ORD

OOD

and L

ETICA

, JJ., denied the

motion to dismiss and remanded the case, ordering plaintiff to

obtain a settled record of the hearing. The Court of Appeals

retained jurisdiction. The trial court granted plaintiff’s motion to

settle the record and adopted the proposed record submitted by

defendant. Plaintiff then moved to reinstate oral argument, and

the Court of Appeals granted the motion.

The Court of Appeals held:

1. Under MCL 500.3105(1) of the no-fault act, an insurer is

liable to pay beneﬁts for accidental bodily injury arising out of the

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

468 328

ICH

468 [May

motor vehicle. MCL 500.3107(1)(a) provides that PIP beneﬁts are

payable for allowable expenses consisting of all reasonable

charges incurred for reasonably necessary products, services, and

accommodations for an injured person’s care, recovery, or reha-

bilitation. As part of the Michigan Penal Code, MCL 750.1 et seq.,

MCL 750.410b prohibits improper solicitation of motor vehicle

accident victims, and a person in violation of MCL 750.410b is

guilty of a misdemeanor. MCL 750.410 also provides that it is a

criminal misdemeanor to solicit an individual with a personal-

injury claim. The Legislature did not intend for a violation of

MCL 750.410 to be a bar to a no-fault action; had it so intended,

the Legislature could have added it to the list of fraudulent

conduct within MCL 500.3173a and MCL 500.4503 of the no-fault

act. Accordingly, the trial court erred when it granted defendant’s

motion for summary disposition of plaintiff’s claims for no-fault

beneﬁts on the basis of solicitation in violation of the criminal

statutes.

2. MCL 500.3157 allows recovery of PIP beneﬁts for lawfully

rendered treatment. In this case, MCL 500.3157 did not apply to

the actions of plaintiff’s counsel; MCL 500.3157 is expressly

limited to a physician, hospital, clinic, or other person or institu-

tion rendering treatment to an injured person, and attorneys do

not render treatment to injured persons. Furthermore, the con-

nection between the alleged solicitation and the services rendered

to plaintiff by Ortho, PC, was too attenuated to render the

services provided to plaintiff unlawful. Accordingly, the trial court

erred by determining that plaintiff was unlawfully rendered

treatment.

Trial court order granting defendant summary disposition

reversed; trial court order denying plaintiff’s motion for reconsid-

eration vacated; case remanded for further proceedings.

Puzio Law, PC (by Ronald C. Puzio, Jr., and Mishelle

Khan) for plaintiff.

Smith & Brink (by Matthew A. Brooks, Sawyer N.

Thorp, and Jane Kent Mills) for defendant.

Before: M

URRAY

, C.J., and J

ANSEN

and R

IORDAN

, JJ.

URIAM

. Plaintiff appeals as of right the trial

court order granting defendant summary disposition

2019] R

ICHARDSON V

LLSTATE

469

and the trial court order denying plaintiff’s motion to

“reinstate the case” in this no-fault matter. We reverse

the order granting defendant summary disposition,

vacate the order denying plaintiff’s motion to reinstate,

and remand for further proceedings.

I. BACKGROUND

This matter arises from plaintiff’s claims for per-

sonal protection insurance (PIP) beneﬁts pursuant to

the no-fault act, MCL 500.3101 et seq., for injuries she

sustained in a car accident in December 2015. Plaintiff

was driving with two others in the vehicle and stopped

at an intersection. A vehicle two cars behind plaintiff

was unable to stop, and it hit the vehicle directly

behind plaintiff’s car, which caused that vehicle to hit

plaintiff’s car, allegedly resulting in her injuries. Later

that day, plaintiff went to Oakwood Annapolis Hospital

for neck pain and dizziness. After being released from

the hospital, plaintiff was referred for medical treat-

ment at Ortho, PC, by her attorney’s ofﬁce, Michigan

Accident Associates, PLLC. Plaintiff’s claims for PIP

beneﬁts then were assigned to defendant through the

Michigan Assigned Claims Plan (MACP), and defen-

dant denied plaintiff’s claims.

Defendant moved for summary disposition in the

trial court based on improper solicitation of plaintiff by

Thomas Quartz, an attorney with Michigan Accident

Associates. The motion was based on plaintiff’s depo-

sition testimony that Quartz was at her home the day

that she was released from the hospital, only days after

the accident occurred. The trial court granted defen-

dant summary disposition because plaintiff failed to

create a genuine issue of material fact regarding de-

fendant’s assertion that she was improperly solicited

by her attorney. The court further held that the im-

470 328 M

ICH

468 [May

proper solicitation rendered plaintiff’s medical treat-

ment unlawful. Plaintiff moved to reinstate the case,

arguing that she was not solicited by counsel and that

the criminal statutes at issue that prohibit solicitation,

MCL 750.410 and MCL 750.410b, do not apply in this

civil matter. The trial court later denied plaintiff’s

motion to reinstate, which was essentially a motion for

reconsideration.

II. ANALYSIS

This Court reviews a motion for summary disposi-

tion de novo. Gorman v American Honda Motor Co,

Inc, 302 Mich App 113, 115; 839 NW2d 223 (2013). A

motion for summary disposition brought pursuant to

MCR 2.116(C)(10) tests the factual support for a par-

ty’s claim. Maiden v Rozwood, 461 Mich 109, 120; 597

NW2d 817 (1999). When reviewing a motion brought

under this subrule, the court must examine all docu-

mentary evidence presented to it, draw all reasonable

inferences in favor of the nonmoving party, and deter-

mine whether a genuine issue of material fact exists.

Dextrom v Wexford Co, 287 Mich App 406, 430; 789

NW2d 211 (2010). Summary disposition is proper when

the evidence fails to establish a genuine issue of

material fact and the moving party is entitled to

judgment as a matter of law. West v Gen Motors Corp,

469 Mich 177, 183; 665 NW2d 468 (2003). “A genuine

issue of material fact exists when the record, giving the

beneﬁt of reasonable doubt to the opposing party,

leaves open an issue upon which reasonable minds

might differ.” Id.

Under the no-fault act, an insurer “is liable to pay

beneﬁts for accidental bodily injury arising out of the

ownership, operation, maintenance or use of a motor

vehicle as a motor vehicle . . . .” MCL 500.3105(1). PIP

2019] R

ICHARDSON V

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471

beneﬁts are payable for “[a]llowable expenses consist-

ing of all reasonable charges incurred for reasonably

necessary products, services and accommodations for

an injured person’s care, recovery, or rehabilitation.”

MCL 500.3107(1)(a).

As part of the Michigan Penal Code, MCL 750.1 et

seq., MCL 750.410b prohibits improper solicitation of

motor vehicle accident victims:

(1) A person shall not intentionally contact any indi-

vidual that the person knows has sustained a personal

injury as a direct result of a motor vehicle accident, or an

immediate family member of that individual, with a direct

solicitation to provide a service until the expiration of 30

days after the date of that motor vehicle accident. This

subsection does not apply if either of the following circum-

stances exists:

(a) The individual or his or her immediate family

member has requested the contact from that person.

(b) The person is an employee or agent of an insurance

company and the person is contacting the individual or his

or her family member on behalf of that insurance company

to adjust a claim. This subdivision does not apply to a

referral of the individual or his or her immediate family

member to an attorney or to any other person for repre-

sentation by an attorney. [MCL 750.410b(1)(a) and (b).]

“Direct solicitation to provide a service” is statutorily

deﬁned as:

[A] verbal or written solicitation or offer, including by

electronic means, made to the injured individual or a

family member seeking to provide a service for a fee or

other remuneration that is based upon the knowledge or

belief that the individual has sustained a personal injury

as a direct result of a motor vehicle accident and that is

directed toward that individual or a family member. [MCL

750.410b(2)(a).]

472 328

ICH

468 [May

A person in violation of the statute is guilty of a

misdemeanor. MCL 750.410b(3). See also MCL

750.410(1) (a person or ﬁrm who directly or indirectly

solicits a person injured as a result of a motor vehicle

accident for the purpose of representing the victim in

making a claim for damages is guilty of a misde-

meanor).

MCL 750.410 is a criminal statute and provides no

civil remedy or cause of action for its enforcement.

That precludes the use of any public-policy reasoning

underlying the statute as a means to extend the

statute beyond its limits to provide relief in this civil

matter. “ ‘It is well settled that criminal statutes are to

be strictly construed, absent a legislative statement to

the contrary.’ ” People v Robar, 321 Mich App 106, 120;

910 NW2d 328 (2017), quoting People v Boscaglia, 419

Mich 556, 563; 357 NW2d 648 (1984). Statutory lan-

guage is assessed in context and construed according to

its plain and ordinary meaning. Robar, 321 Mich App

at 120. When statutory language is unambiguous, it is

applied as written and further construction by the

Court is not required or permitted. Id. The clear

statutory language of MCL 750.410 and MCL 750.410b

provides that it is a criminal misdemeanor to solicit an

individual with a personal-injury claim. Punishment

for violation of either statute includes imprisonment or

payment of a ﬁne, or both. MCL 750.410(2); MCL

750.410b(3). If the Legislature intended a violation of

MCL 750.410 to be a bar to a no-fault action, it could

have added it to the list of fraudulent conduct within

MCL 500.3173a and MCL 500.4503.

It, however, chose

Defendant does not argue that application of the test set forth in

Gardner v Wood, 429 Mich 290, 301-302; 414 NW2d 706 (1987), would

require judicial imposition of a civil remedy for violation of MCL

750.410. And given the criminal remedies contained in the statute, had

2019] R

ICHARDSON V

LLSTATE

473

not to do so. “This Court will not read into a statute

anything that is not within the manifest intention of

the Legislature as gathered from the act itself.” Kokx v

Bylenga, 241 Mich App 655, 661; 617 NW2d 368 (2000).

Giving defendant the beneﬁt of its misplaced con-

tention, under MCL 750.410, the only prohibited solici-

tation is that which is substantially motivated by

pecuniary gain. Keliin v Petrucelli, 198 Mich App 426,

433; 499 NW2d 360 (1993). “This construction was put

on the criminal statute to avoid a conﬂict with the First

Amendment.” Id. We have deﬁned “solicitation” as “a

situation where the solicitor’s position or relation to a

prospective client is such that his request may force

the recipient into acquiescing to the plea. In deﬁning

solicitation in this manner, the statute could best

prevent those aspects of solicitation that involve fraud,

undue inﬂuence, intimidation, and overreaching.” Woll

v Attorney General (On Remand), 116 Mich App 791,

805-806; 323 NW2d 560 (1982). This is because there is

a greater likelihood of harm to the client as a result of

solicitation of personal-injury claims:

Personal injury claims, in contrast with general civil

litigation and personal injury defense, are almost univer-

sally handled on a contingent fee basis and there is no

ﬁxed dollar value for the claimant’s injuries. The combi-

nation of these factors creates opportunities for taking

defendant made the argument, it likely would have failed. See generally

Lash v Traverse City, 479 Mich 180, 191-193; 735 NW2d 628 (2007), and

speciﬁcally Lane v KinderCare Learning Ctrs, Inc, 231 Mich App 689,

696; 588 NW2d 715 (1998) (holding that “the trial court properly

concluded that plaintiff had no private cause of action based on the

alleged violations of the child care organizations act” because, in part,

the statute contained criminal penalties), and Fisher v W A Foote Mem

Hosp, 261 Mich App 727, 730; 683 NW2d 248 (2004) (concluding that a

provision of the Public Health Code, MCL 333.1101 et seq., did not

provide civil relief because it contained adequate enforcement mea-

sures, including criminal penalties).

474 328

ICH

468 [May

advantage of the client. [Woll v Attorney General, 409 Mich

500, 528; 297 NW2d 578 (1980), clariﬁed 300 NW2d 171

(1980).]

Defendant fails to provide authority for the proposi-

tion that criminal solicitation may bar a plaintiff’s

claims for no-fault beneﬁts. Although this matter was

remanded for a settled record of the hearing on defen-

dant’s motion for summary disposition,

the trial court

failed to provide its reasoning for holding plaintiff to

the standard of the criminal statutes and thereby

dismissing her claims. Despite the trial court’s com-

plete lack of analysis, it is clear that the Legislature

intended the consequence for solicitation to be a crimi-

nal misdemeanor punishable by imprisonment or ﬁne,

or both. MCL 750.410(2); MCL 750.410b(3). Moreover,

the wrongful-conduct rule has no application to these

proceedings because that rule only applies when a

plaintiff engages in wrongful conduct. See Orzel v Scott

Drug Co, 449 Mich 550, 558-559; 537 NW2d 208 (1995);

Hashem v Les Stanford Oldsmobile, Inc, 266 Mich App

61, 89; 697 NW2d 558 (2005). In this case, there is no

suggestion that plaintiff engaged in unlawful solicita-

tion, and to the extent that her initial counsel might

have, he is not a plaintiff. How plaintiff contracted

with her attorney is irrelevant to her claim for no-fault

beneﬁts.

Next, because the trial court erroneously deter-

mined that there was no genuine issue of material fact

regarding defendant’s assertion that plaintiff was im-

properly solicited, it compounded that error by con-

cluding that all treatment rendered to plaintiff was

unlawful. MCL 500.3157 allows recovery of PIP ben-

eﬁts for lawfully rendered treatment:

Richardson v Allstate Ins Co, unpublished order of the Court of

Appeals, entered July 20, 2018 (Docket No. 341439).

2019] R

ICHARDSON V

LLSTATE

475

A physician, hospital, clinic or other person or institu-

tion lawfully rendering treatment to an injured person for

an accidental bodily injury covered by personal protection

insurance, and a person or institution providing rehabili-

tative occupational training following the injury, may

charge a reasonable amount for the products, services and

accommodations rendered. The charge shall not exceed

the amount the person or institution customarily charges

for like products, services and accommodations in cases

not involving insurance.

First, MCL 500.3157 is inapplicable because it is

expressly limited to “[a] physician, hospital, clinic or

other person or institution lawfully rendering treat-

ment to an injured person . . . .” Although attorneys

help people in many different and important ways,

they do not, as part of their profession, render treat-

ment to injured persons. Therefore, MCL 500.3157

simply does not apply to the actions of plaintiff’s

counsel.

Even so, once again giving defendant the beneﬁt of

another misplaced contention, the caselaw defendant

cited on appeal regarding unlawful treatment is wholly

distinguishable from the circumstances of this matter.

Only treatment that is lawfully rendered is subject to

payment as a no-fault beneﬁt. Miller v Allstate Ins Co

(On Remand), 275 Mich App 649, 655; 739 NW2d 675

(2007), aff’d 481 Mich 601 (2008). If treatment is not

lawfully rendered, it is not a no-fault beneﬁt and

therefore not subject to reimbursement. Miller, 275

Mich App at 655. This Court determined that the plain

and unambiguous language of MCL 500.3157 requires

that “the treatment itself” be lawfully rendered because

the statute “places the focus on the act of actually

engaging in the performance of services . . . .” Id. at

656 (quotation marks and citation omitted). In Miller,

the services performed were physical-therapy sessions.

476 328 M

ICH

468 [May

Id. The focus was not on the “underlying corporate

formation issues” of the entity providing the physical

therapy. Id. (quotation marks and citation omitted). “A

clinic or institution is lawfully rendering treatment

when licensed employees are caring for and providing

services and treatment to patients despite the possible

existence of corporate defects irrelevant to treatment.”

Id. (quotation marks and citation omitted). The con-

nection between the service actually rendered and the

manner in which the entity was formed was “ ‘too

attenuated’ ” to render the physical therapy provided

unlawful. Id. (citation omitted). The Miller Court dis-

tinguished the matter from Cherry v State Farm Mut

Auto Ins Co, 195 Mich App 316; 489 NW2d 788 (1992),

in which acupuncture services provided by an unli-

censed physician were not lawfully rendered. Miller,

275 Mich App at 656.

Therefore, the trial court erred by determining that

plaintiff was unlawfully rendered treatment. Based on

Miller, id. at 655-656, the connection between the

alleged solicitation and the services rendered to plain-

tiff by Ortho, PC, is too attenuated to render the

services provided to plaintiff unlawful. There is no

indication that plaintiff received services by unli-

censed physicians at Ortho, PC, or by any other pro-

vider. The Miller decision does not stand for the propo-

sition that any claim submitted by a plaintiff must be

rejected due to the improper act of a third party

unrelated to the provision of the plaintiff’s care.

Rather, the relationship between plaintiff and Quartz

is unrelated to plaintiff’s medical treatment.

The no-fault act provides a list of fraudulent behav-

ior that bars a claim for no-fault beneﬁts to the MACP.

See MCL 500.3173a; MCL 500.4503. Wrongful solici-

tation is not included. Plaintiff relies on Bahri v IDS

2019] R

ICHARDSON V

LLSTATE

477

Prop Cas Ins Co, 308 Mich App 420; 864 NW2d 609

(2014), for the proposition that a single act of fraud in

a claim for PIP beneﬁts can preclude an entire claim.

However, Bahri also is distinguishable from the matter

at hand. In Bahri, the plaintiff claimed replacement

services following a car accident, but surveillance video

during the same time frame depicted plaintiff bending,

lifting, driving, and running errands. Id. at 422. The

no-fault insurance policy at issue had a fraud exclu-

sion; the exclusion provided that there would be no

coverage for any insured person who made fraudulent

statements or engaged in fraudulent conduct in con-

nection with the accident or loss. Id. at 423-424. This

Court afﬁrmed the trial court’s determination that the

fraud exclusion applied and that the evidence contra-

dicted the plaintiff’s representations that she needed

replacement services. Id. at 425-426. There was no

genuine issue regarding the plaintiff’s fraud; therefore,

her PIP claim was precluded, and the intervening

plaintiff medical providers’ claims for PIP beneﬁts

were also barred. Id. at 426.

In this case, there is no insurance contract contain-

ing a fraud-exclusion provision. Plaintiff’s claim was

assigned to defendant through the MACP. As provided

in Miller, 275 Mich App at 656, the alleged solicitation

was too attenuated from the services provided to

render the services unlawful.

III. CONCLUSION

The trial court erred when it granted defendant

summary disposition of plaintiff’s claims for no-fault

beneﬁts on the basis of solicitation in violation of the

criminal statutes.

Our conclusion that the trial court improperly

granted defendant summary disposition effectively re-

478 328 M

ICH

468 [May

solves the remainder of plaintiff’s arguments on appeal

related to summary disposition as well as her argu-

ment that the trial court erred by denying her motion

for reconsideration; therefore, we decline to address

those arguments.

The trial court order granting defendant summary

disposition is reversed, the order denying plaintiff’s

motion for reconsideration is vacated, and this matter

is remanded to the trial court for further proceedings.

We do not retain jurisdiction.

URRAY

, C.J., and J

ANSEN

and R

IORDAN

, JJ., con-

curred.

2019] R

ICHARDSON V

LLSTATE

479

PEOPLE v HAVEMAN

Docket No. 344825. Submitted May 1, 2019, at Grand Rapids. Decided

May 30, 2019, at 9:00 a.m.

Terra L. Haveman was charged in the 56-B District Court with two

counts of leaving a child unattended in a vehicle for a period of

time that posed an unreasonable risk of harm or injury to the

child or under circumstances that posed an unreasonable risk of

harm or injury to the child, MCL 750.135a(1). In July 2017,

defendant walked into a store, leaving her three-year-old child,

her ﬁve-year-old child, and two dogs in a vehicle with one window

open for about one hour. An employee noticed the children in the

car and called the police. Defendant initially told the police

ofﬁcers that she had only been in the store for 10 to 15 minutes

but later stated that because of the medication she had been

taking, she had not realized she had been in the store for a longer

period. Defendant argued in the district court that MCL 750.135a

is a general-intent offense; in the alternative, defendant re-

quested a special jury instruction that her medication rendered

her incapable of forming the requisite intent—that is, an instruc-

tion on the voluntariness defense—if the court ruled that the

statute is a speciﬁc-intent offense. The district court, Michael L.

Schipper, J., denied both requests, reasoning that MCL 750.135a

is a strict-liability offense and that the voluntariness defense

could not be used in Michigan to negate intent. The district court

stayed the proceedings, and defendant ﬁled an interlocutory

application for leave to appeal in the Barry Circuit Court. The

circuit court, Amy L. McDowell, J., afﬁrmed in part the district

court’s order, concluding that MCL 750.135a was a strict-liability

offense, that defendant could present evidence in the district

court that her actions were not voluntary, and that the district

court could then determine whether there was sufﬁcient evidence

to present a voluntariness defense to the jury. Defendant ap-

pealed by leave granted.

The Court of Appeals held:

1. A speciﬁc-intent offense requires a particular criminal intent

beyond the act done, while a general-intent offense requires only

the intent to do the physical act. In other words, a strict-liability

480 328

ICH

480 [May

offense requires only that the prosecution prove beyond a reason-

able doubt that the defendant committed the prohibited act regard-

less of the defendant’s intent and what the defendant knew or did

not know. A strict-liability statute regulates conduct under the

state’s police power to promote social good or public welfare,

including narcotics laws, trafﬁc laws, adulterated food or drug

laws, criminal nuisances, and liquor-control laws. When a criminal

statute is a codiﬁcation of the common law and mens rea was a

necessary element of the crime at common law, courts will inter-

pret the statute as including knowledge as a necessary element

even when the Legislature did not include such language. In

contrast, when the statute does not codify a common-law offense,

courts examine the Legislature’s intent to determine whether it

intended knowledge to be an element of the offense or whether it

intended the offender to be liable regardless of what he or she

knew. To determine whether the Legislature intended to impose

strict liability for an offense, which is disfavored, courts must

consider: (1) whether the statute is a codiﬁcation of common law;

(2) the statute’s legislative history or its title, especially when the

subject offense is a statutory creation that is malum prohibitum

not malum in se; (3) any guidance to interpretation provided by

other statutes; (4) the severity of the punishment provided;

(5) whether the statute deﬁnes a public-welfare defense and the

severity of potential harm to the public; (6) the opportunity of the

defendant to ﬁnd out the true facts; and (7) the difﬁculty encoun-

tered by prosecuting ofﬁcials in proving a mental state.

2. MCL 750.135a(1) provides that a person who is responsible

for the care or welfare of a child shall not leave that child

unattended in a vehicle for a period of time that poses an unrea-

sonable risk of harm or injury to the child or under circumstances

that pose an unreasonable risk of harm or injury to the child. In

this case, the Court had to examine the Legislature’s intent

because the statute did not codify a common-law offense and does

not include language regarding the element of knowledge or intent.

From the language of the statute and its legislative history, it was

not clear or plain whether the Legislature sought to impose

liability regardless of intent. However, while neighboring child-

protective statutes contain speciﬁc-intent language, MCL 750.135a

does not, suggesting that the Legislature intended for it to be a

general-intent crime. Further, the severity of the potential penalty

—that is, up to a 15-year prison term depending on the level of

harm caused to the child—suggested that MCL 750.135a contains

a general-intent element. While the statute does not proscribe a

public-welfare offense, the Legislature may have intended to

protect children who cannot protect themselves from their parents’

2019] P

EOPLE V

AVEMAN

481

intentionally or accidentally leaving them alone in cars. However,

a parent charged with leaving a child unattended in a vehicle has

the opportunity to know the true facts and to avoid leaving the

child unattended in the vehicle by simply looking in the back before

exiting. Finally, it would not be any more difﬁcult for the prosecu-

tion to prove a defendant’s state of mind under MCL 750.135a than

under any other statute. Given these factors, although the statute

does not contain express language regarding intent, general intent

could be inferred because strict-liability offenses are disfavored

and the statute primarily bears the hallmark of an offense requir-

ing some level of intent. Accordingly, a defendant must have a

general intent to do the proscribed physical act to be convicted

under MCL 750.135a of leaving a child unattended in a vehicle and

posing an unreasonable risk of harm. The district court and circuit

court erred by concluding that MCL 750.135a was a strict-liability

offense.

Reversed and remanded to the district court.

RIMINAL

— L

EAVING A

HILD

NATTENDED IN A

EHICLE

— G

ENERAL

NTENT

RIME

MCL 750.135a(1) provides that a person who is responsible for the

care or welfare of a child shall not leave that child unattended in

a vehicle for a period of time that poses an unreasonable risk of

harm or injury to the child or under circumstances that pose an

unreasonable risk of harm or injury to the child; MCL 750.135a is

a general-intent crime, and a defendant must have a general

intent to do the proscribed physical act to be convicted under the

statute.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, Julie A. Nakfoor Pratt,

Prosecuting Attorney, and Joshua Carter, Assistant

Prosecuting Attorney, for the people.

The Maul Law Group, PLLC (by Gabriel S. Sanchez

and Kristen S. Wolfram) for defendant.

Before: G

LEICHER

, P.J., and R

ONAYNE

RAUSE

and

O’B

RIEN

, JJ.

URIAM

. At issue in this case is whether MCL

750.135a(1), which proscribes leaving children “unat-

482 328 M

ICH

480 [May

tended in a vehicle for a period of time that poses an

unreasonable risk of harm or injury to the child or

under circumstances that pose an unreasonable risk of

harm or injury to the child,” is a strict-liability or

general-intent offense. The absence of speciﬁc lan-

guage identifying the intent necessary to violate the

statute does not relegate the offense to the realm of

strict liability. Rather, considering the language of the

statute in context, MCL 750.135a(1) describes a

general-intent offense. We reverse the circuit court’s

order to the contrary and remand to the district court

for further proceedings under the correct legal prin-

ciples.

I. BACKGROUND

On July 31, 2017, defendant allegedly parked her

car in a Walmart parking lot and went inside to shop

for one hour, leaving her three- and ﬁve-year-old chil-

dren and two dogs inside the vehicle with one window

rolled down. An employee noticed the children in the

vehicle and called 911. The children were unharmed.

Defendant told the responding ofﬁcers that she had

been inside the store for only 10 to 15 minutes; she

later claimed that she did not realize that she had

remained inside the store for an hour because of the

effects of medication she had taken.

The Barry County Prosecutor charged defendant

with two misdemeanor counts of leaving a “child unat-

tended in a vehicle for a period of time that poses an

unreasonable risk of harm or injury to the child or

under circumstances that pose an unreasonable risk of

harm or injury to the child.” MCL 750.135a(1) and

(2)(a). Before trial in the district court, defendant

argued that MCL 750.135a is a general-intent offense

and that she should be permitted to defend against the

2019] P

EOPLE V

AVEMAN

483

charges with evidence of lack of criminal intent. In the

event that the court deemed the offense to sound in

strict liability, defendant requested a special jury in-

struction that her medication rendered her incapable

of voluntarily leaving her children in the car for an

extended period—the “voluntariness” defense. The dis-

trict court denied both requests, reasoning that the

statute created a strict-liability offense and that defen-

dant’s voluntariness defense was no different than

diminished capacity, a defense no longer recognized in

Michigan to negate intent. See People v Yost, 278 Mich

App 341, 355; 749 NW2d 753 (2008).

Defendant ﬁled an interlocutory application for leave

to appeal the district court’s order to the circuit court.

Although the circuit court took some procedural twists

and turns, it ultimately afﬁrmed the district court’s

conclusion that MCL 750.135a is a strict-liability stat-

ute. The circuit court ruled that defendant could present

evidence before the district court to support that her

actions were not voluntary and that the district court

could then determine whether there was sufﬁcient evi-

dence to present a voluntariness defense to the jury.

We granted defendant’s interlocutory application for

leave to appeal these rulings. People v Haveman,

unpublished order of the Court of Appeals, entered

December 13, 2018 (Docket No. 344825). Defendant’s

trial has been on hold in the meantime.

II. GUIDING LEGAL PRINCIPLES

“Whether the Legislature intended a statute to im-

pose strict liability or intended it to require proof of

criminal intent is a matter of statutory interpretation,”

which we review de novo. People v Janes, 302 Mich App

34, 41; 836 NW2d 883 (2013). As described in Janes, 302

Mich App at 41:

484 328 M

ICH

480 [May

Under Michigan’s common law, every conviction for an

offense required proof that the defendant committed a

criminal act (actus reus) with criminal intent (mens rea).

Criminal intent can be one of two types: the intent to do

the illegal act alone (general criminal intent) or an act

done with some intent beyond the doing of the act itself

(speciﬁc criminal intent). Thus, when a statute prohibits

the willful doing of an act, the act must be done with the

speciﬁc intent to bring about the particular result the

statute seeks to prohibit. [Cleaned up.]

[1]

Stated differently, “the distinction between speciﬁc

intent and general intent crimes is that the former

involve a particular criminal intent beyond the act

done, while the latter involve merely the intent to do

the physical act.” People v Beaudin, 417 Mich 570,

573-574; 339 NW2d 461 (1983).

In contrast, a strict-liability offense is one in which the

prosecution need only prove beyond a reasonable doubt

that the defendant committed the prohibited act, regard-

less of the defendant’s intent and regardless of what the

defendant actually knew or did not know. . . . [W]hether

the Legislature intended to enact a strict-liability offense

is generally a matter of statutory interpretation. In deter-

mining whether the Legislature intended to dispense with

criminal intent, our Supreme Court has adopted the

analytical framework ﬁrst stated by the United States

Supreme Court in Morissette v United States, 342 US 246;

72 S Ct 240; 96 L Ed 288 (1952). [Janes, 302 Mich App at

41-42 (cleaned up).]

The Michigan Supreme Court adopted the Moris-

sette analysis in People v Quinn, 440 Mich 178; 487

This opinion uses the parenthetical (cleaned up) to improve read-

ability without altering the substance of the quotation. The parentheti-

cal indicates that nonsubstantive clutter such as brackets, alterations,

internal quotation marks, and unimportant citations have been omitted

from the quotation. See Metzler, Cleaning Up Quotations, 18 J App Prac

& Process 143 (2017).

2019] P

EOPLE V

AVEMAN

485

NW2d 194 (1992). Under this framework, “where the

criminal statute is a codiﬁcation of the common law,

and where mens rea was a necessary element of the

crime at common law,” courts will interpret the statute

as including “knowledge as a necessary element,” even

when the Legislature failed to include such language.

Id. at 185-186. On the other hand,

where the offense in question does not codify a common-

law offense and the statute omits the element of knowl-

edge or intent, the United States Supreme Court exam-

ines the intent of the Legislature to determine whether it

intended that knowledge be proven as an element of the

offense, or whether it intended to hold the offender liable

regardless of what he knew or did not know. [Id. at 186.]

Strict liability is a necessary basis for sanction be-

cause “public policy requires that certain acts or omis-

sions to act be punished regardless of the actor’s intent.”

Id. at 186-187. A strict-liability statute “regulates con-

duct under the state’s police power to promote the social

good, a course the Legislature may elect without requir-

ing mens rea.” Id. at 187. Dispensing with mens rea

“also comports with the purpose of public welfare regu-

lation to protect those who are otherwise unable to

protect themselves by placing ‘the burden of acting at

hazard upon a person otherwise innocent but standing

in responsible relation to a public danger.’ ” Id., quoting

United States v Dotterweich, 320 US 277, 281; 64 S Ct

134; 88 L Ed 48 (1943). Ultimately,

the United States Supreme Court, in interpreting legisla-

tive intent regarding the element of fault, has applied an

analytical framework that considers each separate ele-

ment of the statute. Statutes creating strict liability

regarding all their elements are not favored. However,

where a statute requires a criminal mind for some but not

all of its elements, it is not one of strict liability . . . . In

486 328

ICH

480 [May

such a case, the Legislature is not imposing liability

without any fault at all; instead, it has determined that

regarding that element, responsibility for the protection of

the public should be placed on the person who can best

avoid the harm sought to be prevented—the actor himself.

[Quinn, 440 Mich at 187-188 (cleaned up).]

Strict liability for a criminal offense is disfavored,

however, based on the axiom that “wrongdoing must be

conscious to be criminal.” People v Tombs, 472 Mich

446, 454; 697 NW2d 494 (2005) (opinion by K

ELLY

, J.)

(citation and quotation marks omitted). See also

Rambin v Allstate Ins Co, 495 Mich 316, 327; 852

NW2d 34 (2014); Quinn, 440 Mich at 185. That prin-

ciple explains why “courts will infer an element of

criminal intent when an offense is silent regarding

mens rea unless the statute contains an express or

implied indication that the legislative body intended

that strict criminal liability be imposed.” People v

Kowalski, 489 Mich 488, 499 n 12; 803 NW2d 200

(2011).

But “true strict liability crimes are proper under

some circumstances . . . .” Quinn, 440 Mich at 188.

“Examples of strict liability offenses include narcotics

laws, trafﬁc laws, adulterated food or drug laws, crimi-

nal nuisances, and liquor control laws.” People v Pace,

311 Mich App 1, 8; 874 NW2d 164 (2015). MCL

750.165, proscribing failure to ﬁnancially support one’s

child when required by court order, has been declared

a strict-liability offense, People v Likine, 492 Mich 367,

392; 823 NW2d 50 (2012), as has Michigan’s statutory-

rape statute, MCL 750.520d(1)(a), People v Cash, 419

Mich 230, 242; 351 NW2d 822 (1984). The following

considerations are relevant to determining whether

the Legislature intended to impose strict liability for

an offense:

2019] P

EOPLE V

AVEMAN

487

(1) whether the statute is a codiﬁcation of common law; (2)

the statute’s legislative history or its title; (3) guidance to

interpretation provided by other statutes; (4) the severity

of the punishment provided; (5) whether the statute

deﬁnes a public-welfare offense, and the severity of poten-

tial harm to the public; (6) the opportunity to ascertain the

true facts; and (7) the difﬁculty encountered by prosecut-

ing ofﬁcials in proving a mental state. [People v Adams,

262 Mich App 89, 93-94; 683 NW2d 729 (2004).]

III. ANALYSIS

The statute at issue in this case, MCL 750.135a,

provides, in relevant part:

(1) A person who is responsible for the care or welfare of

a child shall not leave that child unattended in a vehicle

for a period of time that poses an unreasonable risk of

harm or injury to the child or under circumstances that

pose an unreasonable risk of harm or injury to the child.

MCL 750.135a was enacted by 2008 PA 519, effective

April 1, 2009. It did not codify a common-law offense. It

does not include language regarding “the element of

knowledge or intent[.]” Quinn, 440 Mich at 186. Ac-

cordingly, we must “examine[] the intent of the Legis-

lature to determine” the intent necessary to be crimi-

nally liable. Id.

“The primary goal of statutory construction is to give

effect to the Legislature’s intent,” and the ﬁrst step in

achieving that goal is to examine the statutory lan-

guage. McCormick v Carrier, 487 Mich 180, 191; 795

NW2d 517 (2010). Looking solely at the language of the

statute, it is not plain and clear that the Legislature

sought to impose liability regardless of intent. Subsec-

tion (1) directs what an individual “shall not” do. “The

word ‘shall’ is generally used to designate a mandatory

provision. Conversely, then, the term ‘shall not’ may be

reasonably construed as a prohibition.” 1031 Lapeer

488 328 M

ICH

480 [May

LLC v Rice, 290 Mich App 225, 231; 810 NW2d 293

(2010) (citation omitted). The mere fact that a certain

act is prohibited, however, does not mean that the

offense is strict liability. As noted, strict liability is

disfavored, and we “will infer an element of criminal

intent” even when the Legislature omits such language

“unless the statute contains an express or implied

indication that the legislative body intended that strict

criminal liability be imposed.” Kowalski, 489 Mich at

499 n 12. See also People v Lardie, 452 Mich 231, 239;

551 NW2d 656 (1996) (“In interpreting a statute in

which the Legislature has not expressly included lan-

guage indicating that fault is a necessary element of a

crime, this Court must focus on whether the Legisla-

ture nevertheless intended to require some fault as a

predicate to ﬁnding guilt.”), overruled in part on other

grounds by People v Schaefer, 473 Mich 418 (2005).

Adams, 262 Mich App at 94, directs that the second

factor to consider is “the statute’s legislative history or

title[.]” “[W]e generally do not rely on legislative his-

tory . . . .” People v Arnold, 502 Mich 438, 453 n 9; 918

NW2d 164 (2018). However, the Supreme Court in

Quinn, 440 Mich at 190, found it proper to examine

legislative history where, as here, the subject offense

“is a statutory creation, not mal[um] in se but, rather,

mal[um] prohibitum.”

MCL 750.135a was enacted by 2008 PA 519, and it

was introduced as 2007 HB 4872. The bill was consid-

ered along with 2007 SB 158, which was ultimately

enacted as 2008 PA 577, amending MCL 750.136b, the

child-abuse statute. The bills were intended to address

situations in which a child is left alone in a vehicle,

especially on a hot day, but avoids injury. Senate

Legislative Analysis, SB 158 & 760, HB 4872 & 4873

(February 13, 2009), p 1; House Legislative Analysis,

2019] P

EOPLE V

AVEMAN

489

HB 4872 & 4873 (February 3, 2009), p 1. The then-

existing child-abuse statute did not “address situations

in which a person knowingly and intentionally places a

child in a situation that is likely to cause physical

harm to a child,” such as by leaving the child alone in

a hot vehicle, but the child is rescued before he or she

is injured. Senate Legislative Analysis, p 1. PA 519 and

PA 577 were designed to address those incidents “in

which an intentionally abandoned child is discovered

before suffering harm . . . .” House Legislative Analy-

sis, p 2. Senate Legislative Analysis, p 4, addressed the

concern that the acts “might be enforced too broadly’’—

for example, against ‘‘a parent or other adult [who]

might leave a child in a warm car on a cold day while

the adult runs into a store for just a couple of

minutes,”—by noting:

To be charged, prosecuted, and convicted, a person

knowingly or intentionally will have to commit an act

that, under the circumstances, poses an unreasonable risk

of harm or injury. In all criminal cases, police, prosecutors,

the judge, and jurors apply their discretion and judgment

throughout the criminal justice process. If any of those

individuals determines that the defendant did not know-

ingly or intentionally commit an act that, under the

circumstances, posed an unreasonable risk of harm or

injury to a child, the person will not be held criminally

liable. It stands to reason that the conditions under which

a child was left in a car . . . and the reasonableness of the

person’s actions will be factors to consider at each stage of

a criminal case.

House Legislative Analysis, p 5, addressed the con-

cern that “busy parents who, when overwhelmed, for-

get that their child is in the car” will be punished

because HB 4872 “doesn’t restrict the application of

the penalties to those cases in which the parent know-

ingly and intentionally” leaves the child. The House

Analysis indicated that the element requiring “the

490 328 M

ICH

480 [May

adult [to] meet a level of posing ‘unreasonable risk of

harm or injury’ . . . should sufﬁce in distinguishing

between unwise actions from those that are harmful or

potentially harmful.” Id. Moreover, the House Analysis

opined, the prosecutor “would have discretion”

whether to levy charges when the adult’s actions were

“truly . . . accidental.” Id. The ﬁscal agencies for the

Michigan Senate and House thereby seemed to dis-

agree regarding the level of intent the Legislature

proposed as necessary to commit this crime.

The third factor, “guidance to interpretation pro-

vided by other statutes,” Adams, 262 Mich App at 94,

leads us to review MCL 750.135a’s parent statute,

MCL 750.135. Subsection (1) of that statute provides:

Except as provided in subsection (3), a father or mother

of a child under the age of 6 years, or another individual,

who exposes the child in any street, ﬁeld, house, or other

place, with intent to injure or wholly to abandon the child,

is guilty of a felony, punishable by imprisonment for not

more than 10 years. [Emphasis added.]

The statutes following MCL 750.135a similarly provide

for the protection of children. MCL 750.136(1) provides

that “[a] person shall not knowingly” mutilate a minor

female’s genitalia. (Emphasis added.) MCL 750.136a(1)

and (2) proscribe “knowingly transport[ing]” a minor

across state lines for a female genital mutilation proce-

dure, or “knowingly facilitat[ing]” such transport. (Em-

phasis added.) MCL 750.136b proscribes child abuse in

general: “A person is guilty of child abuse in the ﬁrst

degree if the person knowingly or intentionally causes

serious physical or serious mental harm to a child.”

MCL 750.136b(2) (emphasis added).

The child protective statutes surrounding MCL

750.135a include descriptive intent elements. They are

speciﬁc-intent offenses. As described in People v Culp,

2019] P

EOPLE V

AVEMAN

491

108 Mich App 452, 455; 310 NW2d 421 (1981), quoting

Roberts v People, 19 Mich 401, 414 (1870): “Speciﬁc

intent is a nebulous concept,” and “ ‘[w]hen a statute

makes an offense to consist of an act combined with a

particular intent, that intent is just as necessary to be

proved as the act itself, and must be found by the jury,

as matter of fact, before a conviction can be had.’ ” This

Court has determined that MCL 750.135 represents a

speciﬁc-intent crime. See People v Schaub, 254 Mich

App 110, 115-116; 656 NW2d 824 (2002) (noting that a

parent must have the speciﬁc intent to abandon his or

her child in order to meet the elements of the offense).

We have also found ﬁrst-degree child abuse as pro-

scribed by MCL 750.136b(2) requires speciﬁc intent. See

People v Maynor, 256 Mich App 238, 241; 662 NW2d 468

(2003).

When compared to its neighboring child protective

statutes, the absence of intent language in MCL

750.135a does not indicate a strict-liability offense,

but, rather, suggests the Legislature’s intent to create

a general-intent crime.

The next consideration is “the severity of the pun-

ishment provided[.]” Adams, 262 Mich App at 94. MCL

750.135a(2) provides for varying levels of punishment

depending on the harm caused to the child:

An examination of the laws of our sister states uncovered 15 other

states that permit charges when a caregiver leaves a child unattended

in a vehicle without fatality: California, Connecticut, Florida, Hawaii,

Illinois, Louisiana, Maryland, Nebraska, Nevada, Oklahoma, Pennsyl-

vania, Tennessee, Texas, Utah, and Washington. Eight of those statutes

include language of intent, and caselaw in a ninth state implies an

intent element. See Conn Gen Stat 53-21a; 720 Ill Comp Stat 5/12C-5;

Neb Rev Stat 28-710; Nev Rev Stat 202.575; Tenn Code Ann 55-10-803;

Tex Penal Code Ann 22.10; Utah Code Ann 76-10-2202; Wash Rev Code

46.61.685. See also Commonwealth v Bryant, 57 A3d 191, 197; 2012 PA

Super 257 (2012).

492 328

ICH

480 [May

(a) Except as otherwise provided in subdivisions (b) to

(d), the person is guilty of a misdemeanor punishable by

imprisonment for not more than 93 days or a ﬁne of not

more than $500.00, or both.

(b) If the violation results in physical harm other than

serious physical harm to the child, the person is guilty of

a misdemeanor punishable by imprisonment for not more

than 1 year or a ﬁne of not more than $1,000.00, or both.

the child, the person is guilty of a felony punishable by

imprisonment for not more than 10 years or a ﬁne of not

more than $5,000.00, or both.

(d) If the violation results in the death of the child, the

person is guilty of a felony punishable by imprisonment

for not more than 15 years or a ﬁne of not more than

$10,000.00, or both.

Although defendant was charged with a 93-day misde-

meanor offense under Subsection (2)(a) as no harm

befell her children, the offense could carry a 15-year

prison term. This also tends to suggest that MCL

750.135a has an element of general intent.

MCL 750.135a does not proscribe a public-welfare

offense. See Adams, 262 Mich App at 94. A public-

welfare offense is one that “punish[es] conduct con-

trary to the interest of public safety . . . .” People v

Trotter, 209 Mich App 244, 247; 530 NW2d 516 (1995).

As described in Morissette, 342 US at 252-255, public-

welfare regulations are intended to control dangers

caused by “the industrial revolution, increased trafﬁc,

the congestion of cities, and the wide distribution of

goods.” Pace, 311 Mich App at 7. Leaving a child

unattended in a car does not ﬁt within the parameters

of a public-welfare offense, leaning in favor of implying

a general-intent requirement.

However, as noted in People v Schumacher, 276

Mich App 165, 169; 740 NW2d 534 (2007), Morissette,

2019] P

EOPLE V

AVEMAN

493

342 US at 251 n 8, “recognized exceptions to this rule

of statutory construction: for example, sex offenses,

such as rape, and offenses of negligence, such as

involuntary manslaughter or criminal negligence and

the whole range of crimes arising from omission of

duty.” (Cleaned up.) Under this exception, statutory

rape is a strict-liability crime in Michigan even though

it is not a public-welfare offense and carries stiff

penalties. Lardie, 452 Mich at 255 n 40. The denial of

a mistake-of-age defense “has been upheld as a matter

of public policy because of the need to protect children

below a speciﬁed age from sexual intercourse on the

presumption that their immaturity and innocence pre-

vents them from appreciating the full magnitude and

consequences of their conduct.” Cash, 419 Mich at 242.

The Legislature may have intended to protect in the

same manner young children who cannot protect them-

selves from their parents’ intentional decisions or

accidental mishaps of leaving them alone in hot cars.

The sixth factor is the defendant’s “opportunity to

ascertain the true facts[.]” Adams, 262 Mich App at 94.

See also Quinn, 440 Mich at 198; Schumacher, 276

Mich App at 174. In this case, defendant could have

easily ascertained “the true facts” and avoided commit-

ting this act. Defendant need only have looked in her

backseat to realize that her children were in the car,

stepped outside to perceive the temperature on that

July day, and looked at her watch to determine how

long she had left her children unattended. The sixth

factor is considered in conjunction with the seventh

and ﬁnal factor—“the difﬁculty encountered by pros-

ecuting ofﬁcials in proving a mental state.” Adams, 262

Mich App at 94. This factor weighs in favor of imposing

an element of general intent. “Proving an actor’s state

of mind is difﬁcult in virtually all criminal prosecu-

tions. Indeed, this recognized difﬁculty has led to the

494 328 M

ICH

480 [May

rule that minimal circumstantial evidence is sufﬁcient

to establish a defendant’s state of mind.” People v

Nasir, 255 Mich App 38, 45; 662 NW2d 29 (2003)

(cleaned up). It would be no more difﬁcult for the

prosecutor to establish a defendant’s state of mind in

violating MCL 750.135a as any other statute. We

discern no special consideration in this regard requir-

ing the imposition of strict liability.

Considering the totality of the factors outlined in

Adams, we believe the Legislature intended to make

MCL 750.135a a general-intent crime. This intent can

be implied despite the absence of language in the

statute because strict-liability offenses are disfavored

and MCL 750.135a primarily bears the hallmarks of an

offense requiring some level of intent. Therefore, in

order to be convicted of leaving a child unattended in a

vehicle and posing an unreasonable risk of harm, a

defendant must have a general intent to do the pro-

scribed physical act. The district and circuit courts

erred by treating the offense as sounding in strict

liability.

We reverse and remand to the district court for

further proceedings consistent with this opinion. We do

not retain jurisdiction.

LEICHER

, P.J., and R

ONAYNE

RAUSE

and O’B

RIEN

JJ., concurred.

Given our resolution of the statutory-interpretation issue, we need

not consider defendant’s second claim—that the lower courts errone-

ously considered the applicability of the voluntariness defense. That

defense applies only to strict-liability offenses. See Likine, 492 Mich at

393-394.

2019] P

EOPLE V

AVEMAN

495

COMPOSTO v ALBRECHT

Docket No. 340485. SubmittedApril 12, 2019, at Detroit. Decided May 30,

2019, at 9:05 a.m. Leave to appeal sought.

Thomas Composto ﬁled a negligence action in the Macomb Circuit

Court against Michalina Albrecht, Piotr Albrecht, and their then

nine-year-old son Philip Albrecht (collectively, defendants), seek-

ing to recover damages for injuries he sustained when Philip ran

into him with his bicycle. In August 2015, defendants rode their

bicycles at the Hike-Bike Trail at Stony Creek Metropark; the

trails were used for hiking, bicycling, running, and in-line skat-

ing. Philip braked when he saw plaintiff walking down a hill

ahead of him, but Philip was unable to avoid running into

plaintiff because of people using the other side of the trail.

Plaintiff ﬁled a motion before trial, seeking to establish that the

applicable standard of care owed was ordinary negligence, not

reckless misconduct. Defendants moved for summary disposition,

arguing that Philip’s actions did not constitute ordinary negli-

gence or reckless misconduct. The court, James M. Maceroni, J.,

granted plaintiff’s motion, concluding that the ordinary-

negligence standard of care applied. The court thereafter denied

defendants’ motion for reconsideration of that determination and

denied their motion for summary disposition without prejudice.

Defendants appealed by leave granted.

The Court of Appeals held:

In a negligence action, a defendant typically owes a plaintiff a

duty to use ordinary care. However, when people engage in a

recreational activity, they subject themselves to certain risks

inherent in that activity. For that reason, coparticipants in a

recreational activity only owe each other a duty not to act reck-

lessly. To determine which standard of care applies, a court must

consider whether the parties were coparticipants in a recreational

activity; if the parties were coparticipants in the activity, the court

must then consider whether the plaintiff’s injuries arose from risks

inherent in that activity. Whether a risk is inherent in a recre-

ational activity depends on whether a reasonable person under the

circumstances would have foreseen the particular risk that led to

the injury, which is a question of fact for a fact-ﬁnder. If a

496 328

ICH

496 [May

reasonable person could have foreseen the particular risk, then the

risk is inherent, and the reckless-misconduct standard applies.

The risk must be deﬁned by the factual circumstances of the

case—it is not enough that the participant could foresee being

injured in general; the participant must have been able to foresee

that the injury could arise through the mechanism it resulted from.

In this case, although plaintiff and Philip were not engaged in

precisely the same recreational act, they were both engaged in

using a shared, multiuse trail and were therefore coparticipants in

the activity of using the trail. Plaintiff voluntarily subjected

himself to the inherent, readily apparent, and foreseeable risks of

using a shared multiuse recreational trail together with other trail

users. Accordingly, the reckless-misconduct standard would apply

if plaintiff’s injuries resulted from an inherent risk in using the

trail. Because the foreseeability of the risk of harm is a factual

question, the case had to be remanded to the trial court for that

court to determine whether there was a genuine issue of material

fact as to whether a participant using the hike-bike trail would,

under the circumstances, have reasonably foreseen the risk of

plaintiff’s injury.

Reversed and remanded.

CTIONS

— P

ERSONAL

NJURY

— W

ORDS AND

HRASES

— “R

ECREATIONAL

CTIVITIES

.”

When people engage in a recreational activity, they subject them-

selves to certain risks inherent in that activity; coparticipants in a

recreational activity owe each other a duty not to act recklessly; the

term “recreational activity” encompasses participants sharing the

use of a multiuse trail that was speciﬁcally designated for those

recreational uses.

Richard E. Shaw and Macomb Law Group, PLC (by

James L. Spagnuolo, Jr., and Zachary Morgan) for

plaintiff.

Cardelli Lanfear, PC (by Anthony F. Caffrey III, R.

Carl Lanfear, Jr., and Paul Kittinger) for defendants.

Before: M

ARKEY

, P.J., and F

ORT

OOD

and G

ADOLA

JJ.

ADOLA

, J. In this interlocutory appeal, defendants

Michalina Albrecht and Piotr Albrecht, individually

2019] C

OMPOSTO V

LBRECHT

497

and as next friend of Philip Albrecht, appeal by leave

granted the trial court’s orders granting a motion in

limine establishing the standard of care applicable in

this negligence suit and denying defendants’ motion

for summary disposition. We reverse and remand to

the trial court for proceedings consistent with this

opinion.

I. FACTS

The facts underlying this case are essentially undis-

puted. On August 2, 2015, plaintiff, Thomas Composto,

was walking on the Hike-Bike Trail at Stony Creek

Metropark. The Hike-Bike Trail, as its name implies, is

used for both walking and bicycling, as well as for

running and in-line skating. On that day, then nine-

year-old Philip was riding his bicycle on the trail with

his parents, Michalina and Piotr. Philip was riding

down a hill and saw plaintiff walking ahead of him.

Philip braked and tried to swerve to avoid striking

plaintiff, but because there were oncoming trail users,

he failed to avoid plaintiff and struck him from behind.

Plaintiff tore his quadriceps and suffered other lacera-

tions and contusions.

Plaintiff initiated this action, alleging that Philip had

caused the collision by riding his bicycle negligently,

resulting in plaintiff’s injuries. Before the trial court,

plaintiff ﬁled a motion in limine, seeking to establish

that the applicable standard of care Philip owed in this

case was that of ordinary negligence. Plaintiff argued

that the reckless-misconduct standard, usually applied

when parties are engaged in recreational activities, did

not apply in this case because plaintiff and Philip were

engaged in different activities at the time of their

collision. Defendants moved for summary disposition

498 328 M

ICH

496 [May

under MCR 2.116(C)(8) and (10), arguing that Philip’s

conduct did not amount to either ordinary negligence or

reckless misconduct.

After a hearing, the trial court granted plaintiff’s

motion in limine, determining that the applicable

standard of care was that of ordinary negligence. The

trial court denied defendants’ motion seeking reconsid-

eration of the determination and, after a further hear-

ing, denied without prejudice defendants’ motion for

summary disposition as premature. This Court there-

after granted defendants’ application for leave to ap-

peal.

II. DISCUSSION

Defendants contend that the trial court erred by

determining that the applicable standard of care in

this case is that of ordinary negligence. The issue of the

applicable standard of care is a question of law that we

review de novo. Sherry v East Suburban Football

League, 292 Mich App 23, 27; 807 NW2d 859 (2011).

Generally, to establish a prima facie case of negli-

gence, a plaintiff must establish (1) a duty owed by the

defendant to the plaintiff, (2) breach of that duty by the

defendant, (3) damages suffered by the plaintiff, and

(4) that the damages were caused by the defendant’s

breach of duty. Finazzo v Fire Equip Co, 323 Mich App

620, 635; 918 NW2d 200 (2018). Duty is the legal

obligation to conform one’s conduct to a particular

standard to avoid subjecting others to an unreasonable

risk of harm. Burnett v Bruner, 247 Mich App 365, 368;

636 NW2d 773 (2001). The duty a defendant typically

owes to a plaintiff often is described as an ordinary-

Co[m]posto v Albrecht, unpublished order of the Court of Appeals,

entered March 15, 2018 (Docket No. 340485).

2019] C

OMPOSTO V

LBRECHT

499

negligence standard of care. See Sherry, 292 Mich App

at 28. Under ordinary-negligence principles, a defen-

dant owes a plaintiff a duty to exercise ordinary care

under the circumstances. See id. at 29-30.

However, “[w]hen people engage in a recreational

activity, they have voluntarily subjected themselves to

certain risks inherent in that activity.” Ritchie-

Gamester v City of Berkley, 461 Mich 73, 87; 597 NW2d

517 (1999). As a result, “coparticipants in a recre-

ational activity owe each other a duty not to act

recklessly.” Id. at 95. This recklessness standard of

care, however, extends only to “injuries that arise from

risks inherent to the activity.” Bertin v Mann, 502 Mich

603, 609; 918 NW2d 707 (2018). Therefore, to deter-

mine the standard of care applicable when an injury

arises involving coparticipants in a recreational activ-

ity, a court must consider whether the injuries arose

from risks inherent in that recreational activity.

To determine the applicable standard of care in this

case, the ﬁrst inquiry is whether plaintiff and Philip

were coparticipants in a recreational activity. Both

plaintiff and Philip were engaging in recreational

activity at the time of the accident: Philip was biking

while plaintiff was walking. In doing so, both were

using a trail speciﬁcally designated for the mixed uses

of walking and biking, among other recreational activi-

ties. We compare the circumstances of this case to

those of Ritchie-Gamester, in which both parties were

ice skating during an “open skate” at a public ice rink

when they collided. In adopting the reckless-

misconduct standard, the Ritchie-Gamester Court rec-

ognized “the everyday reality of participation in recre-

ational activities,” in which “[a] person who engages in

a recreational activity is temporarily adopting a set of

rules that deﬁne that particular pastime or sport.”

500 328 M

ICH

496 [May

Ritchie-Gamester, 461 Mich at 86. Ultimately, the

Court stressed that coparticipants engaging in a rec-

reational activity have “voluntarily subjected them-

selves to certain risks inherent in that activity.” Id. at

87. Applying these principles in the context of ice

skaters participating in an open skate at a public ice

arena, the Court in Ritchie-Gamester explained:

The risks on an ice rink are no less obvious than those

on a golf course. One cannot ice skate without ice, and the

very nature of ice—that it is both hard and slippery—

builds some risk into skating. In addition, an “open skate”

invites those of various ages and abilities onto the ice to

learn, to practice, to exercise, or simply to enjoy skating.

When one combines the nature of ice with the relative

proximity of skaters of various abilities, a degree of risk is

readily apparent: Some skaters will be unable to control

their progress and will either bump into other skaters, or

fall. All skaters thus take the chance that they will fall

themselves, that they will be bumped by another skater,

or that they will trip over a skater who has fallen. [Id. at

89.]

Signiﬁcantly, the Court “stated this standard broadly

as applying to all ‘recreational activities’ ” and further

noted that “the precise scope of this rule is best

established by allowing it to emerge on a case-by-case

basis, so that we might carefully consider the applica-

tion of the recklessness standard in various factual

contexts.” Id. at 89 n 9.

In this case, plaintiff, who was walking, and Philip,

who was biking, were not engaged with each other in

precisely the same recreational act or sport at the time

of their collision. As the trial court observed, walking is

an inherently different activity than biking. However,

both plaintiff and Philip were engaged in using a

shared, multiuse trail, and thus were “coparticipants”

2019] C

OMPOSTO V

LBRECHT

501

in the activity of using the trail.

In this factual

context, by choosing to use the Hike-Bike Trail for

recreational purposes, plaintiff voluntarily subjected

himself to the inherent, readily apparent, and foresee-

able risks, not just of walking, but of using a shared,

multiuse recreational trail together with other trail

users. Mindful of Ritchie-Gamester, we consider “rec-

reational activity” to encompass the parties’ shared

use of the multiuse trail speciﬁcally designated for

recreational purposes, such that the reckless-

misconduct standard of care applies if plaintiff’s inju-

ries resulted from an inherent risk of using the trail.

See Bertin, 502 Mich at 609.

The next inquiry is whether getting hit by a bicycle

is an inherent risk of using a hike-bike trail. In Bertin,

our Supreme Court held that to determine whether a

risk is inherent in a recreational activity, “the analysis

must focus on whether the risk was reasonably fore-

seeable under the circumstances.” Id. at 613. The

Court reasoned that “because the rationale for the

limited duty [of the reckless-misconduct standard] is

that the participants have voluntarily elected to par-

To conclude otherwise would subject the trail users to various

standards of care depending upon with whom they interacted. If a

bicyclist collided with another bicyclist, the defendant bicyclist would be

held to a reckless-misconduct standard of care, but if the bicyclist

collided with an in-line skater, he would be held to a standard of care for

ordinary negligence. What if an in-line skater collided with a skate

boarder, or a runner with a walker? We decline to indulge the ﬁction of

different standards of care created by ever-more ﬁnely drawn distinc-

tions in the precise activity engaged in and instead implement the

reasoning and spirit of Ritchie-Gamester. We ﬁnd the use of the multiuse

trail akin to the “open skate” in Ritchie-Gamester. Just as the ice rink

during open skate accommodates the speed skater and the ice dancer,

the novice and the expert, the multiuse trail accommodates various

modes of conveying oneself down the trail by participants with different

levels of skill and ability, all engaged in the umbrella activity of

“recreational trail use.”

502 328

ICH

496 [May

ticipate knowing that they might be injured, it makes

sense to deﬁne the ‘inherent risks’ in an activity by

what is reasonably foreseeable—by what the partici-

pants did foresee or should have foreseen . . . .” Id.

“[T]he assessment of whether a risk is inherent to an

activity depends on whether a reasonable person under

the circumstances would have foreseen the particular

risk that led to injury. If so, then the risk is inherent

and the reckless-misconduct standard of care applies.”

Id. at 619.

In Michigan, foreseeability depends upon whether a

reasonable person “ ‘could anticipate that a given event

might occur under certain conditions.’ ” Iliades v Dief-

fenbacher North America Inc, 501 Mich 326, 338; 915

NW2d 338 (2018), quoting Samson v Saginaw Prof

Bldg, Inc, 393 Mich 393, 406; 224 NW2d 843 (1975).

Whether a risk was foreseeable is a question of fact; we

resolve the question using an objective test, focusing on

what risks a reasonable participant would have fore-

seen under the circumstances. Bertin, 502 Mich at

619-620. “The risk must be deﬁned by the factual

circumstances of the case—it is not enough that the

participant could foresee being injured in general; the

participant must have been able to foresee that the

injury could arise through the mechanism it resulted

from.” Id. at 620-621 (quotation marks and citation

omitted). Relevant facts include the characteristics of

the participants, including their experience with the

activity and their relationship to each other and to the

activity. Id. at 621.

Because the determination of the foreseeability of

the risk of harm is a factual question, the Court in

Bertin remanded the case to the trial court “to deter-

mine whether there is a genuine issue of material fact

as to whether a participant in the activity in question

2019] C

OMPOSTO V

LBRECHT

503

would, under the circumstances, have reasonably fore-

seen the risk of this particular injury.” Id. at 622. As in

Bertin, we remand to the trial court in this case to

address whether a genuine issue of material fact exists

as to whether a participant in the activity of using a

multiuse trail, under the circumstances, reasonably

would have foreseen the risk of being struck by a

bicyclist. The trial court should focus on “what risks a

reasonable participant, under the circumstances,

would have foreseen.” Id. at 620.

In summary, under the reasoning of Ritchie-

Gamester, plaintiff and Philip were coparticipants in

the recreational activity of using the shared, multiuse

trail for its intended recreational purposes. The trial

court therefore erred by ﬁnding that the reckless-

misconduct standard of care did not apply because the

parties were not engaged in precisely the same recre-

ational activity. However, the reckless-misconduct

standard only applies to injuries that arise from risks

inherent in the activity. Whether a risk is inherent in a

recreational activity for purposes of establishing the

applicable standard of conduct is determined by asking

whether the risk was reasonably foreseeable, which is

a question of fact for the fact-ﬁnder. Consistently with

Bertin, we remand to the trial court to determine the

foreseeability of the risk of harm without prejudice to

defendants thereafter renewing their motion for sum-

mary disposition before the trial court.

Reversed and remanded for proceedings consistent

with this opinion. We do not retain jurisdiction.

ARKEY

, P.J., and F

ORT

OOD

, J., concurred with

ADOLA

, J.

504 328 M

ICH

496 [May

WILSON v BRK, INC

Docket No. 342449. Submitted May 8, 2019, at Detroit. Decided May 30,

2019, at 9:10 a.m. Leave to appeal denied 505 Mich 1015 (2020).

Kristopher W. R. Wilson ﬁled an action in the Wayne Circuit Court

against BRK, Inc., and R & C Land, Inc., in connection with

injuries he suffered when he exited the Diamondback Saloon

owned by defendants. Plaintiff, who has partial quadriplegia and

uses a wheelchair, entered the bar by using the cement ramp that

ran from the bar’s parking lot, up the side of the building, to the

common entrance for both the ramp and the stairway that met

outside the entranceway; there was a 3

/2-inch-tall step that all

patrons had to navigate to enter through the door. A friend

pushed plaintiff’s wheelchair for him as they were leaving the

bar; plaintiff’s wheelchair tipped forward as he went through the

doorway and over the step; plaintiff fell to the ground, resulting in

injuries. Plaintiff asserted that (1) the entranceway step consti-

tuted a barrier in violation of federal, state, and local laws that

protect individuals with disabilities; (2) defendants were negli-

gent and grossly negligent for failing to warn customers of the

defect or hazard, failing to replace the entranceway with a ramp,

and failing to maintain the premises in a reasonably safe condi-

tion; and (3) defendants had created a nuisance by allowing an

inherently dangerous condition to exist. Defendants moved for

summary disposition, arguing, in part, that plaintiff’s complaint

sounded in premises liability, not ordinary negligence or nui-

sance; that the step was open and obvious with no special aspects;

that the open and obvious danger doctrine applied regardless of

any regulatory or code violation; and that the step did not violate

any code or regulation. Plaintiff argued in response (1) that the

entranceway did not comply with the MCL 125.1351 et seq.

barrier-free access requirements for public facilities; (2) that the

open and obvious danger doctrine did not negate liability for

violating a statutory duty, speciﬁcally, those set forth in the

Single State Construction Code Act (the SCCA), MCL 125.1501 et

seq., which incorporated speciﬁc building-code regulations that

required, at the time the bar was built, that at least one

entranceway to a public facility be accessible; and (3) that the

entranceway violated the Persons with Disabilities Civil Rights

2019] W

ILSON V

BRK, I

505

Act (the PDCRA), MCL 37.1101 et seq.; plaintiff also asserted that

some of his claims sounded in ordinary negligence and nuisance

and that the open and obvious danger doctrine did not apply to

those claims. The court, Margaret P. Bamonte, J., granted defen-

dants’ motion, concluding that the case sounded in premises

liability, not ordinary negligence; that the step was open and

obvious with no special aspects to avoid application of the

doctrine; and that any alleged building-code violation would not

negate application of the open and obvious danger doctrine.

Plaintiff appealed.

The Court of Appeals held:

1. If a plaintiff’s injury occurs because of an allegedly danger-

ous condition on the land, the action sounds in premises liability

rather than ordinary negligence. A plaintiff cannot avoid the open

and obvious danger doctrine by asserting ordinary negligence

when the facts only support a premises-liability claim. In this

case, plaintiff’s injuries arose from an allegedly dangerous condi-

tion on the land—that is, the entranceway step that physically

limited patrons had to traverse to enter and exit the bar.

Accordingly, the trial court did not err by concluding that plain-

tiff’s asserted claims of negligence were actually premises-

liability claims.

2. MCL 125.1352(1) provides that a public facility or a facility

used by the public the contract for construction of which or the

ﬁrst contract for construction of a portion of which is made after

July 2, 1974, shall meet the barrier-free design requirements

contained in the SCCA. MCL 125.1352(1) and MCL 125.1351(b)

generally require a barrier-free design to eliminate hindrances

that deter physically limited persons from having access and free

mobility to buildings. The 1975 building-code regulations in turn

required that at least one primary entrance at each grade ﬂoor

level of a building or structure be accessible from the parking lot

or the nearest street by means of a walk uninterrupted by steps

or abrupt changes in grade and have certain width and gradient

requirements.

3. A possessor of land does not owe a duty to protect or warn

an invitee of dangers that are open and obvious. An exception to

the open and obvious danger doctrine exists when special aspects

of a condition make even an open and obvious risk unreasonable.

Special aspects exist when an open and obvious hazard remains

unreasonably dangerous or when it is effectively unavoidable;

exceptions to the doctrine are narrow and designed to permit

liability for such dangers only in limited, extreme situations. To

be effectively unavoidable, a hazard must truly be, for all practi-

506 328

ICH

505 [May

cal purposes, one that a person is required or compelled to

confront under the circumstances. A general interest in using, or

even a contractual right to use, a business’s services does not

equate with a requirement or a compulsion to confront a hazard

and does not rise to the level of a special aspect characterized by

its unreasonable risk of harm. However, the open and obvious

danger doctrine cannot be used to avoid a speciﬁc statutory duty

or obligation that is plainly and directly intended to beneﬁt and

protect the injured plaintiff. Even in cases of code violations, the

relevant inquiry remains whether any special aspects rendered

the otherwise open and obvious condition unreasonably danger-

ous. In that regard, when a defendant has a statutory duty under

MCL 554.139(1)(a) or (b) to maintain the premises, the defendant

cannot use the doctrine to avoid liability; the statutory-duty

exception to the open and obvious danger doctrine is not limited

to duties created under MCL 554.139.

4. In this case, there was no dispute that plaintiff was an

invitee and that the hazard—i.e., the entranceway step—was open

and obvious. However, the entranceway step was avoidable be-

cause plaintiff was not compelled to patronize the bar and confront

the step. Accordingly, the trial court correctly concluded that there

were no special aspects with regard to the entranceway step and

that plaintiff could not avoid application of the open and obvious

danger doctrine on that basis. However, the trial court erred by

concluding that the open and obvious danger doctrine applied

regardless of whether the entranceway violated statutory duties

related to providing accessible, barrier-free entranceways open to

the public; the statutory requirements, which incorporated the

building-code regulations, were plainly and directly intended to

beneﬁt and protect physically limited persons like plaintiff. The

trial court also erred by concluding that defendant must have been

in compliance with the relevant statutory barrier-free require-

ments because the bar had never received violations or citations

relative to the step. In addition, the testimony of the township’s

building inspector created an issue of material fact regarding

whether the entranceway step violated a statutory duty with

respect to access for persons with physical limitations. Because the

issue was not addressed in the trial court, the case had to be

remanded to that court to address whether a remedy or cause of

action for money damages may arise from a violation of the MCL

125.1352(1) barrier-free requirements.

5. The PDCRA provides, in part, that it is unlawful for a person

to deny any individual the full and equal enjoyment of the goods,

services, facilities, privileges, advantages, and accommodations of

2019] W

ILSON V

BRK, I

507

a place of public accommodation or public service because of a

disability. Plaintiff did not have a claim under the PDCRA because

he was not denied equal enjoyment of the bar because of his

disability; speciﬁcally, he enjoyed an evening that included drink-

ing and playing pool at the bar. Instead, his complaint requested

money damages related to a physical injury caused by an allegedly

hazardous step that did not comply with the barrier-free require-

ments set forth in MCL 125.1351 et seq., the SCCA, and the

statutorily incorporated building-code regulations.

Reversed and remanded.

EGLIGENCE

— P

REMISES

IABILITY

— O

PEN AND

BVIOUS

ANGER

OCTRINE

—

TATUTORY

-D

UTY

XCEPTION

In premises-liability cases, the open and obvious danger doctrine

cannot be used to avoid a speciﬁc statutory duty or obligation that

is plainly and directly intended to beneﬁt and protect the injured

plaintiff; the statutory-duty exception to the open and obvious

danger doctrine is not limited to duties created under only certain

statutes.

Sachs Waldman, PC (by Brian A. McKenna) for

plaintiff.

Bredell & Bredell (by John H. Bredell) for defen-

dants.

Before: R

EDFORD

, P.J., and M

ARKEY

and K. F. K

ELLY

JJ.

ARKEY

, J. Plaintiff, Kristopher Wilson, appeals by

right the trial court’s order granting summary dispo-

sition in favor of defendants, BRK, Inc., and R & C

Land, Inc. (both doing business as Diamondback Sa-

loon), under MCR 2.116(C)(10) in this action arising

out of plaintiff’s fall from a wheelchair when exiting

defendants’ bar. We reverse and remand for further

proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendants’ bar has a cement ramp that starts near

handicapped parking spots, runs along the side of the

508 328 M

ICH

505 [May

building, and gradually slopes upward to a doorway,

allowing access for physically limited patrons. The top

of the ramp meets the top of a separate stairwell, both

leading to a single set of doors into the bar. At the

door’s threshold is a 3

-inch-tall, yellow-painted step

that must be navigated by disabled and nondisabled

customers alike. Plaintiff, who has partial quadriple-

gia, uses a wheelchair. After a visit to the bar one

evening, he began to exit the establishment with a

friend, who was pushing the wheelchair. As plaintiff

went through the doorway and over the step, the

wheelchair tipped forward, throwing plaintiff to the

ground and causing injuries. Plaintiff had patronized

the bar on three or four previous occasions, negotiating

the step without incident with the assistance of

friends.

Plaintiff ﬁled suit against defendants. Plaintiff al-

leged that the entranceway step constituted a barrier

in violation of federal, state, and local laws protecting

individuals with disabilities. He further asserted that

defendants were negligent and grossly negligent for

failing to maintain the premises in a reasonably safe

condition, failing to warn customers about the defect or

hazard, and failing to replace the entranceway step

with a ramp. Finally, plaintiff claimed that defendants

had created a nuisance by allowing an inherently

dangerous condition to exist, placing “those on the

premises in a position of peril.” Subsequently, defen-

dants moved for summary disposition, arguing, in

relevant part, that plaintiff’s action sounded in prem-

ises liability, not ordinary negligence or nuisance, that

the entranceway step was open and obvious with no

special aspects, that there was no code or regulatory

violation, and that the open and obvious danger doc-

trine applied regardless of any regulatory or code

violation.

2019] W

ILSON V

BRK, I

509

In his responsive brief, plaintiff argued that the bar’s

entranceway as constructed with the step was not in

compliance with MCL 125.1351 et seq., which provides

for the use of public facilities by the physically limited

and requires barrier-free access. Plaintiff claimed that

the open and obvious danger doctrine does not apply to

a violation of a statutory duty and further maintained

that the Stille-DeRossett-Hale Single State Construc-

tion Code Act (the SCCA), MCL 125.1501 et seq., incor-

porated the Building Ofﬁcials and Code Administrators

International, Inc., Basic Building Code (the BOCA

code) pursuant to MCL 125.1504(2) and that the BOCA

code required, before the bar’s construction in 1977, that

at least one entranceway to a public facility be acces-

sible to individuals with disabilities. Additionally, plain-

tiff claimed that the Persons with Disabilities Civil

Rights Act (the PDCRA), MCL 37.1101 et seq., was

implicated and violated.

Plaintiff also contended that

the step was effectively unavoidable because it was

located at the only entrance/exit point available to a

wheelchair-bound patron. Finally, plaintiff argued that

some of his claims sounded in ordinary negligence and

nuisance, not premises liability, and that the open and

obvious danger doctrine does not apply to ordinary

negligence and nuisance claims.

The trial court heard defendants’ motion for sum-

mary disposition and took the matter under advise-

ment. The court later issued a written opinion and order

granting defendants summary disposition. The trial

court ruled that the case sounded in premises liability,

not ordinary negligence, that the step was open and

Speciﬁcally, plaintiff cited MCL 37.1102(1), which provides that

“[t]he opportunity to obtain . . . full and equal utilization of public

accommodations . . . without discrimination because of a disability is

guaranteed by this act and is a civil right.”

510 328

ICH

505 [May

obvious, that there were no special aspects of the step

that would avoid application of the open and obvious

danger doctrine, and that “[a]ny alleged violation of the

building code . . . does not negate the application of the

open and obvious doctrine.” The court also noted that

there was no evidence that the entranceway step had

ever been found to be in violation of a statute or building

code. Indeed, the trial court explained that defendants

presented undisputed evidence that the building had

been inspected and approved by state and local authori-

ties several times since its construction in 1977 and that

it had never been cited for a violation. Plaintiff appeals

by right.

II. ANALYSIS

A. STANDARD OF REVIEW

“This Court reviews de novo a trial court’s ruling on

a motion for summary disposition.” Loweke v Ann

Arbor Ceiling & Partition Co, LLC, 489 Mich 157, 162;

809 NW2d 553 (2011). We also review de novo issues of

statutory construction. Estes v Titus, 481 Mich 573,

578-579; 751 NW2d 493 (2008).

B. ORDINARY NEGLIGENCE VERSUS PREMISES LIABILITY

Plaintiff maintains that defendants engaged in or-

dinary negligence by directing physically limited invi-

tees to use the entrance where a customer would be

forced to encounter the 3

-inch step or threshold.

Plaintiff states that the ramp, which defendants knew

would be used for access to the business by individuals

with physical limitations, leads directly to the prob-

lematic entranceway.

We note that plaintiff does not present any appellate argument

attempting to resurrect his nuisance claim.

2019] W

ILSON V

BRK, I

511

“It is well settled that the gravamen of an action is

determined by reading the complaint as a whole, and

by looking beyond mere procedural labels to determine

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

Reconsideration), 276 Mich App 704, 710-711; 742

NW2d 399 (2007). “Michigan law distinguishes be-

tween claims arising from ordinary negligence and

claims premised on a condition of the land.” Buhalis v

Trinity Continuing Care Servs, 296 Mich App 685, 692;

822 NW2d 254 (2012). “If the plaintiff’s injury arose

from an allegedly dangerous condition on the land, the

action sounds in premises liability rather than ordi-

nary negligence; this is true even when the plaintiff

alleges that the premises possessor created the condi-

tion giving rise to the plaintiff’s injury.” Id.; see also

Compau v Pioneer Resource Co, LLC, 498 Mich 928

(2015). The open and obvious danger doctrine is inap-

plicable to a claim of ordinary negligence. Laier v

Kitchen, 266 Mich App 482, 484; 702 NW2d 199 (2005).

“A plaintiff cannot avoid the open and obvious danger

doctrine by claiming ordinary negligence, when the

facts only support a premises liability claim[.]” Jahnke

v Allen, 308 Mich App 472, 476; 865 NW2d 49 (2014).

Plaintiff’s lawsuit ultimately concerns an injury aris-

ing from an allegedly dangerous condition on the land,

i.e., a step that must be navigated by physically limited

patrons in order to enter and exit the bar. Plaintiff’s

effort to frame a portion of his complaint as alleging

ordinary negligence is strained. Plaintiff is essentially

arguing that defendants created the dangerous condi-

tion by directing customers with disabilities to use the

step. This characterization, however, does not sufﬁce to

defeat the fact that this is a premises-liability action.

See Buhalis, 296 Mich App at 692. The trial court did

not err by ruling that the portions of the complaint that

512 328 M

ICH

505 [May

plaintiff asserts sound in ordinary negligence actually

sound in premises liability.

C. SPECIAL ASPECTS—‘‘EFFECTIVELY UNAVOIDABLE’’ PRONG

Plaintiff next contends that the entranceway step,

which constituted a barrier to invitees using a wheel-

chair, was effectively unavoidable because the doorway

was the only one that a wheelchair user could use to

exit the establishment.

An exception to the circumscribed duty owed for

open and obvious dangers arises when special aspects

of a condition make even an open and obvious risk

unreasonable. Hoffner v Lanctoe, 492 Mich 450, 461;

821 NW2d 88 (2012).

Special aspects exist when an

open and obvious hazard remains unreasonably dan-

gerous or when it is effectively unavoidable. Id. at

461-463. The Hoffner Court further explained:

[W]hen confronted with an issue concerning an open and

obvious hazard, Michigan courts should hew closely to the

principles previously discussed. It bears repeating that

exceptions to the open and obvious doctrine are narrow

and designed to permit liability for such dangers only in

limited, extreme situations. Thus, an “unreasonably dan-

gerous” hazard must be just that—not just a dangerous

hazard, but one that is unreasonably so. And it must be

Considering whether a danger or defect is open and obvious is an

integral aspect of deﬁning the duty owed by an invitor to an invitee.

Hoffner, 492 Mich at 460. A possessor of land does not owe a duty to

protect or warn an invitee of dangers that are open and obvious. Id. This

is “because such dangers, by their nature, apprise an invitee of the

potential hazard, which the invitee may then take reasonable measures

to avoid.” Id. at 461. “Whether a danger is open and obvious depends on

whether it is reasonable to expect that an average person with ordinary

intelligence would have discovered it upon casual inspection.” Id. The

required analysis involves examination of the objective nature of the

condition of the premises. Id. There is no dispute that plaintiff was an

invitee and that the step was open and obvious.

2019] W

ILSON V

BRK, I

513

more than theoretically or retrospectively dangerous, be-

cause even the most unassuming situation can often be

dangerous under the wrong set of circumstances. An

“effectively unavoidable” hazard must truly be, for all

practical purposes, one that a person is required to con-

front under the circumstances. A general interest in using,

or even a contractual right to use, a business’s services

simply does not equate with a compulsion to confront a

hazard and does not rise to the level of a “special aspect”

characterized by its unreasonable risk of harm. [Id. at

472-473 (citations omitted).]

Plaintiff analogizes his case to the hypothetical

“special aspect” situation given in Lugo v Ameritech

Corp, Inc, 464 Mich 512, 518; 629 NW2d 384 (2001),

wherein the Supreme Court stated:

An illustration of such a situation might involve, for

example, a commercial building with only one exit for the

general public where the ﬂoor is covered with standing

water. While the condition is open and obvious, a customer

wishing to exit the store must leave the store through the

water. In other words, the open and obvious condition is

effectively unavoidable.

Wheelchair users entering and exiting the bar are

forced to encounter the step. This fact necessarily

narrows our focus, leaving only one pertinent question:

was the hazard effectively avoidable because plaintiff

could have chosen not to patronize the bar in the ﬁrst

place? Our Supreme Court in Hoffner, 492 Mich 450,

held that ice on a sidewalk in front of the only entrance

to a ﬁtness center was an avoidable danger even

though the plaintiff had a paid membership to use the

center. The Court concluded that “[a] general interest

in using, or even a contractual right to use, a business’s

services simply does not equate with a compulsion to

confront a hazard and does not rise to the level of a

‘special aspect . . . .’ ” Id. at 472-473. The Hoffner Court

514 328 M

ICH

505 [May

noted that “the standard for ‘effective unavoidability’ is

that a person, for all practical purposes, must be

required or compelled to confront a dangerous hazard.”

Id. at 469. In Hoffner, the Supreme Court expressly

abrogated this Court’s decision in Robertson v Blue

Water Oil Co, 268 Mich App 588, 594; 708 NW2d 749

(2005), in which the panel had held:

Finally, and more signiﬁcantly, plaintiff was a paying

customer who was on defendant’s premises for defendant’s

commercial purposes, and thus he was an invitee of

defendant. As our Supreme Court noted, invitee status

necessarily turns on the existence of an invitation. Defen-

dant’s contention that plaintiff should have gone else-

where is simply inconsistent with defendant’s purpose in

operating its gas station. The logical consequence of de-

fendant’s argument would be the irrational conclusion

that a business owner who invites customers onto its

premises would never have any liability to those custom-

ers for hazardous conditions as long as the customers even

technically had the option of declining the invitation.

[Quotation marks and citations omitted.]

The Court in Hoffner ruled that “we reject the Robertson

majority’s analysis of the ‘effectively unavoidable’ doc-

trine.” Hoffner, 492 Mich at 468 n 31. Robertson would

have supported plaintiff’s position in the instant action,

but that holding is no longer viable given Hoffner.

We conclude that Hoffner dictates that we conclude

that the entranceway step was avoidable because

plaintiff was not compelled to patronize the bar and

confront the step. And with respect to Lugo, we note

that there was no indication in the Court’s hypotheti-

cal that the water in the building had been confronted

by customers when they ﬁrst entered the building.

To view or construe the hypothetical in Lugo to the contrary would

necessarily create tension between Lugo and Hoffner.

2019] W

ILSON V

BRK, I

515

Therefore, Lugo does not support plaintiff’s argument.

In sum, we afﬁrm the trial court’s determination that

as a matter of law, no special aspects existed.

D. STATUTORY VIOLATION

In a third and ﬁnal attempt to avoid application of

the open and obvious danger doctrine, plaintiff argues

that the statutory duty to provide access for physically

limited persons requires constructing at least one

barrier-free entrance/exit and that this statutory duty

takes precedence over common-law defenses such as

the open and obvious danger doctrine. Plaintiff ini-

tially cites MCL 125.1352(1), which provides:

A public facility or facility used by the public the

contract for construction of which or the ﬁrst contract for

construction of a portion of which is made after July 2,

1974, shall meet the barrier free design requirements

contained in the state construction code.

[5]

Thus, with respect to the particular design require-

ments that a facility must meet to qualify as barrier-

free, MCL 125.1352(1) incorporates by reference those

requirements contained in the “state construction

code.” And that code—the SCCA—provides, in part, as

follows:

The code shall consist of the international residential

code, the international building code, the international

mechanical code, the international plumbing code, the

international existing building code, and the international

energy conservation code published by the international

code council and the national electrical code published by

the national ﬁre prevention association, with amend-

MCL 125.1351(b) deﬁnes “barrier free design” as “those architec-

tural designs which eliminate the type of barriers and hindrances that

deter physically limited persons from having access to and free mobility

in and around a building, structure, or improved area.”

516 328

ICH

505 [May

ments, additions, or deletions as the director determines

appropriate. The director may adopt all or any part of

these codes or the standards contained within these codes

by reference. [MCL 125.1504(2).]

Thus, according to plaintiff, the BOCA code is ulti-

mately incorporated into the statutory scheme. In the

trial court, plaintiff submitted part of the 1975 BOCA

code covering portions of Section 316.0, which con-

cerned those with physical disabilities and the aged.

Section 316.3 addressed building entrances, providing

as follows:

At least one (1) primary entrance at each grade ﬂoor

level of a building or structure shall be accessible from the

parking lot or the nearest street by means of a walk

uninterrupted by steps or abrupt changes in grade and

shall have width of not less than ﬁve (5) feet and a

gradient of not more than one (1) foot in twenty (20) feet or

a ramp meeting the requirements of Section 615.0. This

entrance shall comply with requirements of Section 612.0.

“The open and obvious danger doctrine cannot be

used to avoid a speciﬁc statutory duty.” Kennedy v

Great Atlantic & Paciﬁc Tea Co, 274 Mich App 710,

720-721; 737 NW2d 179 (2007); see also Woodbury v

Bruckner, 467 Mich 922 (2002) (remanding the case

because the open and obvious danger doctrine could

not be employed to avoid the application of a duty

established by statute), and Jones v Enertel, Inc, 467

Mich 266, 270; 650 NW2d 334 (2002) (rejecting the

defendant municipality’s argument that the open and

obvious danger doctrine could be employed to avoid its

statutory duty to maintain sidewalks in reasonable

repair

). To the extent that the trial court was of the

We note that the Legislature has since inserted language into the

statute addressing a municipality’s duty to keep sidewalks in reason-

able repair, providing that a municipal corporation may now assert

2019] W

ILSON V

BRK, I

517

view that the statutory-duty exception to the open and

obvious danger doctrine is only implicated in regard to

a lessor’s statutory obligations under MCL 554.139, we

conclude that the court was mistaken. It is true that a

lessor or landlord cannot rely on the open and obvious

danger doctrine if a duty was violated under MCL

554.139. See Allison v AEW Capital Mgt, LLP, 481

Mich 419, 425 n 2; 751 NW2d 8 (2008) (“[A] defendant

cannot use the ‘open and obvious’ danger doctrine to

avoid liability when the defendant has a statutory duty

to maintain the premises in accordance with MCL

554.139(1)(a) or (b).”). There is no indication in the

caselaw, however, that the statutory-duty exception to

the open and obvious danger doctrine is limited to

duties created under MCL 554.139. Indeed, as noted

earlier, the statutory-duty exception was recognized in

Jones, 467 Mich at 270, in relation to a governmental

agency’s duty to maintain sidewalks in reasonable

repair.

In support of its position that the open and obvious

danger doctrine applied regardless of plaintiff’s argu-

ment that a statutory duty existed to provide a barrier-

free entranceway, the trial court relied on Schollen-

berger v Sears, Roebuck & Co, 925 F Supp 1239 (ED

Mich, 1996), and Kennedy, 274 Mich App 710. The trial

court’s reliance on these cases was misplaced.

As a federal district court decision, Schollenberger

has no binding precedential value to this Court. See

Abela v Gen Motors Corp, 469 Mich 603, 607; 677

NW2d 325 (2004) (“Although lower federal court deci-

sions may be persuasive, they are not binding on state

courts.”). Furthermore, Schollenberger predated the

common-law defenses, “including, but not limited to, a defense that [a]

condition was open and obvious.” MCL 691.1402a(5), as amended by

2016 PA 419, effective January 4, 2017.

518 328

ICH

505 [May

development in Michigan law of the principle that the

open and obvious danger doctrine cannot be employed

to avoid a statutory duty or obligation. Jones, 467 Mich

at 270; Woodbury, 467 Mich at 922; Kennedy, 274 Mich

App at 720-721. It appears from our research that this

principle was ﬁrst clearly expressed in Michigan juris-

prudence in 2002 in our Supreme Court’s Jones deci-

sion. In fact, the federal court in Schollenberger did not

even examine the speciﬁc issue of whether a statutory

violation obviates application of the open and obvious

danger doctrine. Accordingly, we do not ﬁnd Schollen-

berger relevant.

In Kennedy, 274 Mich App at 712, the plaintiff was

injured when he slipped on crushed grapes or grape

residue on the ﬂoor of the defendants’ grocery store.

After rejecting the plaintiff’s various arguments that

the hazard was not open and obvious, this Court turned

its attention to his assertion “that the open and obvious

danger doctrine cannot bar recovery because defendants

breached a separate and independent duty created by

the International Property Maintenance Code.” Id. at

719. The Kennedy panel ﬁrst noted:

Neither the record nor the briefs contain any indication

that the International Property Maintenance Code had

been adopted by the municipality where plaintiff’s acci-

dent occurred. Likewise, we ﬁnd no support for plaintiff’s

assertion that a violation of the International Property

Maintenance Code is equivalent to a violation of state

statute. Nonetheless, we will address plaintiff’s code-

based arguments for purposes of this appeal. [Id. at 719

n 1.]

The Court explained that “even in cases of code

violations, the relevant inquiry remains whether any

special aspects rendered the otherwise open and obvi-

ous condition unreasonably dangerous.” Id. at 720. The

Court concluded as a matter of law that the grapes on

2019] W

ILSON V

BRK, I

519

the supermarket ﬂoor did not create an unreasonably

high risk of harm. Id. Reading somewhat between the

lines, the Kennedy panel determined that a code viola-

tion did not preclude application of the open and

obvious danger doctrine. This Court, however, then

addressed the plaintiff’s additional argument that

even if the grapes were open and obvious, the defen-

dants violated a statutory duty to provide a safe

workplace as required by the Michigan Occupational

Safety and Health Act (MIOSHA), MCL 408.1001 et

seq., and administrative regulations promulgated un-

der MIOSHA, rendering the open and obvious danger

doctrine inapplicable. Id. at 720-721. The panel ac-

knowledged that “[t]he open and obvious danger doc-

trine cannot be used to avoid a speciﬁc statutory duty.”

Id. The Court then ruled:

MIOSHA and the regulations enacted under MIOSHA

apply only to the relationship between employers and

employees and therefore do not create duties that run in

favor of third parties. Accordingly, MIOSHA does not

impose a statutory duty in favor of third parties in the

negligence context. Nor do administrative regulations

enacted under MIOSHA impose duties in favor of third

parties in the negligence context. Neither MIOSHA nor

the administrative regulations enacted under it imposed a

duty on defendants running in favor of plaintiff. Plaintiff

may not rely on MIOSHA and the MIOSHA regulations to

escape application of the open and obvious danger doc-

trine in this premises liability case. [Id. at 721 (citations

omitted).]

Contrary to the circumstances presented in

Kennedy, the instant case entails statutory require-

ments to provide accessible, barrier-free entranceways

to facilities open to the public. These requirements are

plainly and directly intended to beneﬁt and protect

physically limited persons such as plaintiff. A barrier-

520 328 M

ICH

505 [May

free design that eliminates hindrances that deter

physically limited persons from having access and free

mobility to buildings is generally required under MCL

125.1352(1) and MCL 125.1351(b).

Accordingly, the

trial court erred by determining that the open and

obvious danger doctrine applied to plaintiff’s allega-

tions that defendants’ entranceway step violated a

statutory duty owed to persons with physical limita-

tions.

With respect to whether there was a statutory

violation, the trial court appeared to accept defendants’

contention that the entranceway step did not consti-

tute a violation, as reﬂected in the fact that despite

numerous inspections over the years by state and

federal authorities, no violations were documented.

Defendants argue that plaintiff presented no evidence

showing a statutory or code violation regarding the

entranceway or step. Moreover, according to defen-

With respect to the PDCRA, plaintiff merely cites the act for the

proposition that it is the public policy of this state to encourage the

fullest participation possible in all areas of life by persons who are

physically handicapped. The PDCRA makes it unlawful for a person to

“[d]eny an individual the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, and accommodations of a place of

public accommodation or public service because of a disability that is

unrelated to the individual’s ability to utilize and beneﬁt from the goods,

services, facilities, privileges, advantages, or accommodations or be-

cause of the use by an individual of adaptive devices or aids.” MCL

37.1302(a). A person who alleges a violation of the PDCRA “may bring a

civil action for . . . damages[.]” MCL 37.1606(1). And the PDCRA “shall

not diminish the right of a person to seek direct and immediate legal or

equitable remedies in the courts of this state.” MCL 37.1607. Here,

plaintiff’s case is not about being denied equal enjoyment of the bar

because of his disability; he enjoyed an evening of drinking and pool at

the bar. Rather, his suit encompasses a request for money damages

related to a physical injury caused by an allegedly hazardous step that

was not in compliance with barrier-free statutory mandates under MCL

125.1351 et seq., the SCCA, and the statutorily incorporated BOCA code.

2019] W

ILSON V

BRK, I

521

dants, construction plans had been reviewed by the

Barrier Free Design Board and the premises had been

inspected over the years, by Van Buren Township and

Wayne County. Defendants were never issued any

violations or citations associated with the entranceway

and provided supporting documentation to that effect

below.

Plaintiff, however, submitted an unsigned and un-

dated “Field Correction Notice” (FCN) pertaining to

the bar with the insignia of Van Buren Township at the

top of the document; the FCN ostensibly indicated a

need for a correction in regard to “B/F STEP FRONT

DR.”

A building inspector for Van Buren Township testi-

ﬁed in her deposition that the bar fell under the

barrier-free requirements of MCL 125.1351 and MCL

125.1352. In reference to the FCN, the inspector ac-

knowledged that it came from the township’s ﬁles, but

she could not tell who authored the notice or when it

was prepared. She additionally testiﬁed:

Q. [W]hat does the ﬁrst line [of the FCN] say?

A. “BF step front door.”

Q. What does that mean to you?

A. I’m going to say barrier-free step front door.

Q. Does the [bar] have a barrier-free step at the front

door?

A. From the pictures you showed me, I’m going to say

no.

Q. And so it didn’t comply with the [FCN]?

A. Correct.

Q. And it didn’t comply with the code that we already

talked about, correct?

A. Correct.

522 328

ICH

505 [May

The inspector could not say whether defendants ever

received the FCN, and other evidence suggests that the

FCN was not sent to defendants and that defendants

never received it.

Although the inspector recalled having inspected

the bar in the past, she did not remember the step. She

indicated that had she noticed the step, she probably

would have made a note of it. In testifying about a

walk-through of the bar in 2014, which was focused

mostly on alterations in the kitchen area, the inspector

stated that no code violations were issued and that the

permits were approved. This had also been the case

earlier in 2014 in regard to a new deck for the bar and

a corresponding inspection. But the inspector also

testiﬁed, “[T]he barrier-free might have got

missed . . . .” With respect to an inspection of the bar in

2003 relative to a liquor license, the township inspector

testiﬁed that no mention was made of any code viola-

tion in connection with the entranceway. Aside from

the FCN, the inspector’s examination of the ﬁles per-

taining to the bar did not reveal any citations or

violations in regard to the entranceway step.

Defendants presented documentation showing that

in 1977–1978, the Barrier Free Design Board had

granted certain exceptions based on the submitted

architectural plans for the facility unrelated to the

main entranceway; the Board ultimately approved the

plans. Defendants also submitted a 1978 letter from

the Wayne County Sheriff’s Department to the Liquor

Control Commission. The letter provided, “We toured

the facility at the above address, made the necessary

observations, found the building to conform to all rules,

regulations and qualiﬁcations necessary to complete

the inspection and give approval.” Additionally, defen-

dants presented a plethora of documentation regard-

2019] W

ILSON V

BRK, I

523

ing building inspections that had been conducted over

the years for various reasons, none of which showed

any statutory or code violations arising from the en-

tranceway step. It is unnecessary for us to delve into

the details of those documents.

We cannot accept the trial court’s or defendants’

logic that simply because the bar was never issued any

violations or citations relative to the step, defendants

must have been in compliance with the statutory

barrier-free requirements. In response to defendants’

summary disposition motion under MCR 2.116(C)(10),

which was supported by appropriate documentation,

plaintiff, of course, was obligated to submit evidence

sufﬁcient to create a genuine issue of material fact.

MCR 2.116(G)(4). Even if we reject consideration of the

FCN, as defendants adamantly argue we must because

of its multiple inadequacies, we note that the testi-

mony of the township’s building inspector was sufﬁ-

cient to create a genuine issue of material fact regard-

ing whether the entranceway step violates a statutory

duty with respect to access for persons with physical

limitations. She testiﬁed that as revealed in the pho-

tographs, the entranceway was not barrier-free in light

of the presence of the step.

The next issue that we address, but ultimately do

not resolve, concerns whether a remedy is available for

the alleged statutory violation. Defendants argue that

the statutory provisions relied on by plaintiff do not

provide independent tort remedies for his alleged

physical injuries arising from the fall; therefore, the

action must be dismissed. In Allison, 481 Mich at 426

n 3, our Supreme Court stated:

Although the nature and extent of plaintiff’s remedy

are not at issue in this case, we note that, typically, a

plaintiff’s remedy for breach of contract is limited to

524 328

ICH

505 [May

damages that arise naturally from the breach or those

that were in the contemplation of the parties at the time

the contract was made. The purpose of this remedy is to

place the nonbreaching party in as good a position as if the

contract had been fully performed. [Quotation marks and

citations omitted.]

As mentioned earlier, Allison concerned a lessor’s du-

ties under MCL 554.139, which create implied cov-

enants in leases, thereby explaining the Supreme

Court’s reference to remedies for breach of contract.

On this issue, defendants rely on Spagnuolo v

Rudds #2, Inc, 221 Mich App 358; 561 NW2d 500

(1997), and plaintiff relies on Cebreco v Music Hall Ctr

for the Performing Arts, Inc, 219 Mich App 353; 555

NW2d 862 (1996). We ﬁnd neither case particularly

helpful. Contrary to plaintiff’s suggestion, this Court in

Cebreco did not address a claim for physical injury

under the PDCRA. Rather, the issue of the plaintiff’s

alleged physical injury was examined solely in the

context of a claim against police ofﬁcers and the

question of governmental immunity. Cebreco, 219 Mich

App at 355-356, 361-362.

In Spagnuolo, the plaintiff, a wheelchair user,

brought suit against a restaurant owner, alleging

claims of negligence and violation of the Handicappers’

Civil Rights Act (HCRA), 1976 PA 220, now known as

the PDCRA. She sought damages for the physical

injuries that she suffered while exiting the restaurant

when her wheelchair slipped off a sidewalk and ﬂipped

over as she tried to maneuver around a trash barrel

that was adjacent to the restaurant. Spagnuolo, 221

Mich App at 359-360. The plaintiff asserted that she

was forced to take the route involving the sidewalk

because the door designated for use by physically

limited individuals on the other side of the restaurant

was either locked or stuck, in violation of the HCRA.

2019] W

ILSON V

BRK, I

525

Id. at 362-363. This Court, in afﬁrming summary

disposition of the plaintiff’s lawsuit, held:

In short, plaintiff was fully accommodated during her visit

to defendant’s restaurant. Because the HCRA requires no

more, plaintiff could not state a valid claim based on the

HCRA. Speciﬁcally, no language in the HCRA provides an

independent tort remedy for persons injured at a place of

public accommodation because they are handicapped. Ac-

cordingly, plaintiff’s HCRA claim is so clearly unenforce-

able as a matter of law that no factual development could

provide a basis for recovery, and the trial court properly

granted summary disposition of plaintiff’s HCRA claim for

defendant pursuant to MCR 2.116(C)(8). [Id. at 363 (cita-

tions omitted).]

At most, Spagnuolo might support a determination

that plaintiff does not have a cause of action under the

PDCRA, which we have already alluded to in note 7 of

this opinion; the PDCRA does not ﬁt the contours of

this case that entails a physical injury. The question

becomes whether a violation of the barrier-free re-

quirements of MCL 125.1352(1) allows or provides for

a tort remedy to compensate a party for physical

injuries sustained as a result of the violation. Because

the trial court never reached the issue regarding

whether a remedy is available assuming a statutory

violation, we conclude it appropriate to remand this

case to allow the parties to better develop their argu-

ments and for the trial court to initially address that

additional issue. On remand, we direct the trial court

to consider any relevant statutory provisions and the

Michigan Supreme Court’s decisions in Lash v Tra-

verse City, 479 Mich 180; 735 NW2d 628 (2007),

Gardner v Wood, 429 Mich 290; 414 NW2d 706 (1987),

and Pompey v Gen Motors Corp, 385 Mich 537; 189

NW2d 243 (1971), which address the issue of whether

526 328 M

ICH

505 [May

a remedy or cause of action for money damages arises

from a statutory violation.

We reverse and remand for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion. No party having fully prevailed on the issues

presented in this appeal, we award no taxable costs

under MCR 7.219.

EDFORD

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

ELLY

, J., concurred with

ARKEY

, J.

2019] W

ILSON V

BRK, I

527

REGISTERED NURSES, REGISTERED PHARMACISTS

UNION v HURLEY MEDICAL CENTER

Docket No. 343473. Submitted April 9, 2019, at Detroit. Decided April 18,

2019. Approved for publication June 4, 2019, at 9:00 a.m.

Registered Nurses, Registered Pharmacists Union; Billie Jo Busby;

and LeaAnn Frank (collectively, plaintiffs) ﬁled an action in the

Genesee Circuit Court against Hurley Medical Center, seeking to

compel arbitration of their claims. In May 2017, Busby and

Frank, who were members of the union and employed by defen-

dant, called in sick to work on the same day. In June 2017,

defendant terminated Busby’s and Frank’s employment, assert-

ing that they had abstained from work in support of a job action

similar to a one-day strike in violation of Article 36 of the existing

collective-bargaining agreement (the CBA) between the union

and defendant. The union ﬁled grievances challenging the dis-

charges and requesting arbitration of the grievances under the

terms of the CBA. Defendant denied the grievances and denied

the arbitration request. Plaintiffs ﬁled the instant action and

moved for summary disposition; defendant opposed the motion,

arguing that the trial court lacked subject-matter jurisdiction

because a public employee could only challenge strike-related

discipline under MCL 423.206 of the public employment relations

act (PERA), MCL 423.201 et seq. The court, Judith A. Fullerton,

J., granted plaintiffs’ motion and ordered arbitration of the

dispute. Defendant appealed.

The Court of Appeals held:

1. The trial court had subject-matter jurisdiction over the

claims in this case because the existence of the arbitration

contract and the enforceability of its terms involved issues of law

for the court to decide.

2. Under MCL 423.206(1), a public employee will be consid-

ered to be on strike if the employee willfully absents himself or

herself from his or her position for the purpose of inducing,

inﬂuencing, or coercing a change in employment condition, com-

pensation, or the rights, privileges, or obligations of employment.

MCL 423.206(2), in turn, provides that before a public employer

may discipline or discharge a public employee for engaging in a

528 328

ICH

528 [June

strike, the public employee, upon request, is entitled to a deter-

mination under this section as to whether he or she violated the

act. The Court’s decision in Lamphere Sch v Lamphere Federation

of Teachers, 400 Mich 104 (1977)—holding that the statutorily

permitted discipline or discharge permitted by MCL 423.206 is

the unitary and exclusive remedy available to public employers

when dealing with illegal strikes by public employees who violate

PERA’s prohibition against strikes—applies only to the remedies

available to public employers. Lamphere did not address the

remedies available to employees or unions, and in relation to

public employees, MCL 423.206 clearly provides only that an

employee is entitled to a determination under the section; the

statutory section does not limit the remedies available to employ-

ees or unions. In this case, because MCL 423.206 does not limit

Busby’s and Frank’s remedies, the trial court correctly concluded

that PERA did not prohibit arbitration of the matter. Defendant

abandoned its argument that PERA was the exclusive remedy in

this case because plaintiffs’ claims involved an unfair-labor-

practice charge; plaintiffs’ complaint did not expressly allege an

unfair labor practice, and defendant did not assert in the trial

court or on appeal that plaintiffs had alleged an unfair labor

practice.

3. The trial court did not err by granting summary disposition

in favor of plaintiffs because whether Busby and Frank were

striking or were sick was a matter of fact that had to be resolved

by an arbitrator under the terms of the CBA.

Afﬁrmed.

ABOR

ELATIONS

— P

UBLIC

MPLOYMENT

ELATIONS

— P

UBLIC

MPLOY-

EES

— R

EMEDIES

IMITED BY

MCL 423.206.

The statutorily permitted discipline or discharge under MCL

423.206 are the unitary and exclusive remedies available to

public employers when dealing with illegal strikes by public

employees in violation of the public employment relations act’s

prohibition against strikes, but that statute does not limit the

remedies available to employees or unions (MCL 423.201 et seq.).

Miller Cohen, PLC (by Richard G. Mack, Jr., and

Jeremy F. Fisher) for plaintiffs.

Giarmarco, Mullins & Horton, PC (by John C.

Clark, Geoffrey S. Wagner, and Anthony K. Chubb) for

defendant.

2019] R

EGISTERED

URSES V

URLEY

529

Before: J

ANSEN

, P.J., and M

ETER

and G

LEICHER

, JJ.

URIAM

. Defendant appeals as of right an order

granting summary disposition in favor of plaintiffs in

this action to compel arbitration. We afﬁrm.

I. RELEVANT FACTUAL BACKGROUND

Billie Jo Busby and LeaAnn Frank are members of

the Registered Nurses, Registered Pharmacists Union

(RNRPh) and were employed by defendant. On May 11,

2017, they were both absent from work. In June 2017,

defendant terminated Busby and Frank for allegedly

striking on May 11, 2017, in violation of Article 36 of

the collective-bargaining agreement (the CBA) be-

tween RNRPh and defendant. Thereafter, RNRPh ﬁled

grievances challenging the discharges and requesting

arbitration of the grievances pursuant to the CBA.

Defendant denied the grievances as well as the request

for arbitration. Plaintiffs ﬁled this action, seeking to

compel arbitration of the grievances and alleging

breach of the CBA. The trial court granted summary

disposition in favor of plaintiffs, ordering arbitration of

the dispute. This appeal followed.

II. SUBJECT-MATTER JURISDICTION

Defendant ﬁrst argues that the trial court lacked

subject-matter jurisdiction because a public employee’s

exclusive mechanism to challenge strike-related disci-

pline is to request a hearing under § 6 of the public

employment relations act (PERA), MCL 423.201 et seq.

We disagree.

The issue of subject-matter jurisdiction may be

raised at any point in the proceedings. Glen Lake-

Crystal River Watershed Riparians v Glen Lake Ass’n,

530 328 M

ICH

528 [June

264 Mich App 523, 527-528; 695 NW2d 508 (2004).

Whether the trial court had subject-matter jurisdiction

is a question of law that we review de novo. Id. at 527.

“Jurisdiction of the subject matter is the right of the

court to exercise judicial power over a class of cases,

not the particular case before it; to exercise the ab-

stract power to try a case of the kind or character of the

one pending.” Id. at 528 (quotation marks and citation

omitted). “Jurisdiction always depends on the allega-

tions and never upon the facts.” Workers’ Compensa-

tion Agency Dir v MacDonald’s Indus Prods, Inc (On

Reconsideration), 305 Mich App 460, 478; 853 NW2d

467 (2014) (quotation marks and citation omitted).

In this case, plaintiffs’ complaint sought to compel

arbitration and alleged breach of the CBA. The arbi-

trability of an issue is a question for the court to decide.

As stated by this Court in Burns v Olde Discount Corp,

212 Mich App 576, 580; 538 NW2d 686 (1995):

The existence of an arbitration contract and the en-

forceability of its terms are judicial questions that cannot

be decided by the arbitrator. To ascertain the arbitrability

of an issue, the court must consider whether there is an

arbitration provision in the parties’ contract, whether the

disputed issue is arguably within the arbitration clause,

and whether the dispute is expressly exempt from arbi-

tration by the terms of the contract. [Citation omitted.]

This was precisely the issue addressed by the trial

court in this case.

Similarly, the issue of whether a

party breached a CBA involves the interpretation of a

contract, which is a question of law that is decided by

a court. See Butler v Wayne Co, 289 Mich App 664, 671;

798 NW2d 37 (2010). Accordingly, given the allegations

In its response to plaintiffs’ motion, defendant even acknowledged

that whether an issue is subject to arbitration is an issue of law for the

court.

2019] R

EGISTERED

URSES V

URLEY

531

in plaintiffs’ complaint, the circuit court had subject-

matter jurisdiction over this case.

Given that the trial court had the right to exercise

judicial power over this case, defendant’s claim that

PERA prohibits arbitration in this case is not a

question of subject-matter jurisdiction. Rather, it is a

question of statutory interpretation, which is also a

question of law that could be decided by a trial court

and that we review de novo. McNeil v Charlevoix Co,

275 Mich App 686, 691; 741 NW2d 27 (2007). “When

interpreting a statute, this Court’s goal is to ascertain

and give effect to the intent of the Legislature by

applying the plain language of the statute.” Id.

Section 6 of PERA provides:

(1) Notwithstanding the provisions of any other law, a

public employee who, by concerted action with others and

without the lawful approval of his or her superior, willfully

absents himself or herself from his or her position, or

abstains in whole or in part from the full, faithful and

proper performance of his or her duties for the purpose of

inducing, inﬂuencing or coercing a change in employment

conditions, compensation, or the rights, privileges, or

obligations of employment, or a public employee employed

by a public school employer who engages in an action

described in this subsection for the purpose of protesting

or responding to an act alleged or determined to be an

unfair labor practice committed by the public school

employer, shall be considered to be on strike.

In its response to plaintiffs’ motion for summary disposition, defen-

dant asserted that this case is not subject to arbitration because “it

involves a legal dispute within the exclusive jurisdiction of PERA[.]”

Therefore, defendant’s argument was raised in the trial court; however,

it was not expressly decided by the trial court. Nonetheless, defendant’s

claim that PERA prohibits arbitration in this case is a question of law,

and because the relevant facts are available, we may review this issue.

Vushaj v Farm Bureau Gen Ins Co of Mich, 284 Mich App 513, 519; 773

NW2d 758 (2009).

532 328

ICH

528 [June

(2) Before a public employer may discipline or dis-

charge a public employee for engaging in a strike, the

public employee, upon request, is entitled to a determina-

tion under this section as to whether he or she violated

this act. The request shall be ﬁled in writing, with the

ofﬁcer or body having power to remove or discipline the

employee, within 10 days after regular compensation of

the employee has ceased or other discipline has been

imposed. If a request is ﬁled, the ofﬁcer or body, within 5

days after receipt of the request, shall commence a

proceeding for the determination of whether the public

employee has violated this act. The proceedings shall be

held in accordance with the law and regulations appro-

priate to a proceeding to remove the public employee and

shall be held without unnecessary delay. The decision of

the ofﬁcer or body shall be made within 2 days after the

conclusion of the proceeding. If the employee involved is

found to have violated this act and his or her employment

is terminated or other discipline is imposed, the em-

ployee has the right of review to the circuit court having

jurisdiction of the parties, within 30 days from the date of

the decision, for a determination as to whether the

decision is supported by competent, material, and sub-

stantial evidence on the whole record. A public employer

may consolidate employee hearings under this subsec-

tion unless the employee demonstrates manifest injus-

tice from the consolidation. This subsection does not

apply to a penalty imposed under section 2a. [MCL

423.206 (emphasis added).]

In support of its argument, defendant relies on the

Michigan Supreme Court’s decision in Lamphere Sch

v Lamphere Federation of Teachers, 400 Mich 104,

114; 252 NW2d 818 (1977), in which the Court held

that under § 6, “the statutorily permitted discipline-

discharge should be the unitary and exclusive rem-

edies available to public employers in dealing with

illegal strikes by public employees in violation of the

PERA’s Section 2 strike prohibition.” For that reason,

the Court concluded that the plaintiff school district

2019] R

EGISTERED

URSES V

URLEY

533

was barred from suing the defendant teachers’ union

for damages under traditional common-law tort theo-

ries. Id. at 107.

Contrary to defendant’s claim that Lamphere

stands for the proposition that “a public employee’s

‘exclusive’ mechanism to challenge strike-related dis-

cipline is to request a § 6 hearing under PERA,”

Lamphere addressed and expressly referred to the

exclusive remedy available to public employers. Lam-

phere, 400 Mich at 114. The Court did not discuss the

remedies available to employees or unions, and,

therefore, that decision does not bar plaintiffs’ re-

quest for arbitration in this case. Similarly, the plain

language of § 6 provides only that an employee is

entitled to a determination under that section; it does

not limit the remedies available to employees or

unions. See MCL 423.206(2).

Defendant also relies on Rockwell v Crestwood Sch

Dist Bd of Ed, 393 Mich 616, 628; 227 NW2d 736

(1975), but that case similarly stated that § 6 provides

“a speciﬁc, unitary procedure for the discipline of

public employees . . . .” It did not discuss the remedies

available to public employees . . . . Accordingly, defen-

dant fails to support its claim that PERA prohibits

arbitration of this matter.

Finally, defendant cites Kent Co Deputy Sheriffs’

Ass’n v Kent Co Sheriff, 238 Mich App 310, 325; 605

NW2d 363 (1999), in which this Court stated that

“PERA is the exclusive remedy for any unfair labor

practice charge, and the [Michigan Employment Re-

lations Commission] has exclusive jurisdiction to ad-

judicate such charges. A plaintiff cannot obtain an-

other remedy by framing the unfair labor practice as

a different species of common-law or statutory claim

534 328 M

ICH

528 [June

invoking the jurisdiction of a different tribunal.”

Plaintiffs’ complaint, however, did not expressly allege

an unfair labor practice. Nor has defendant asserted,

either below or on appeal, that plaintiffs have alleged

an unfair labor practice. Because defendant has failed

to provide any support for its suggestion that this case

involves an unfair-labor-practice charge, this argu-

ment is abandoned. See Peterson Novelties, Inc v City

of Berkley, 259 Mich App 1, 14; 672 NW2d 351 (2003).

III. SUMMARY DISPOSITION

Defendant also argues that the trial court erred by

granting plaintiffs’ motion for summary disposition

because plaintiffs failed to state an arbitrable claim

under the CBA and failed to proffer any admissible

evidence in support of their motion. Again, we dis-

agree.

The trial court granted plaintiffs’ motion for sum-

mary disposition under MCR 2.116(C)(7), (8), and (10),

ruling that the matter was required to go to arbitra-

tion. Summary disposition under MCR 2.116(C)(7) is

appropriate when the parties have “entered a valid and

enforceable arbitration agreement.” Galea v FCA US

LLC, 323 Mich App 360, 365; 917 NW2d 694 (2018).

Therefore, MCR 2.116(C)(7) was the correct ground for

granting summary disposition in this case. “We review

de novo a trial court’s decision to grant or deny a

motion for summary disposition under MCR

2.116(C)(7).” Id. at 368. “Whether a dispute is arbi-

trable represents a question of law for the courts that

Although the Supreme Court criticized this Court’s decision in Kent

Co Deputy Sheriffs’ Ass’n, it agreed that the commission has exclusive

jurisdiction over claims of unfair labor practices, and it ultimately

afﬁrmed on other grounds. Kent Co Deputy Sheriffs’ Ass’n v Kent Co

Sheriff, 463 Mich 353; 616 NW2d 677 (2000).

2019] R

EGISTERED

URSES V

URLEY

535

we review de novo.” Madison Dist Pub Sch v Myers,

247 Mich App 583, 594; 637 NW2d 526 (2001).

In Madison Dist Pub Sch, 247 Mich App at 595, this

Court stated:

To ascertain the arbitrability of an issue, the court must

consider whether there is an arbitration provision in the

parties’ contract, whether the disputed issue is arguably

within the arbitration clause, and whether the dispute is

expressly exempt from arbitration by the terms of the

contract. Any doubts regarding the arbitrability of an

issue should be resolved in favor of arbitration. [Citation

omitted.]

See also AFSCME, Council 25, AFL-CIO v Hamtramck

Housing Comm, 290 Mich App 672, 674; 804 NW2d 120

(2010) (“Where an employer and a union have contrac-

tually agreed to arbitration, in the absence of explicit

contractual direction to the contrary, all doubts regard-

ing the proper forum should be resolved in favor of

arbitration[.]”).

In this case, the relevant provision of the CBA is

Article 36(C), titled “No Strike, No Lockout,” which

provides, in relevant part:

The Employer shall have the right to discipline or

discharge any Employee participating in such interfer-

ences, and the Organization agrees not to oppose such

action. It is understood, however, that the Organization

shall have recourse to the grievance procedure as to mat-

ters of fact in the alleged actions of such Employees.

[Emphasis added.]

Defendant argues that there is no disputed matter of

fact for the arbitrator to resolve, while plaintiffs argue

that there is a question of fact regarding whether

Busby and Frank called off work on May 11, 2017, for

an illness or to engage in a strike. Contrary to defen-

dant’s assertion, however, Article 36(C) does not re-

536 328 M

ICH

528 [June

quire a disputed matter of fact; rather, it provides that

the grievance procedure is available regarding “mat-

ters of fact.” Whether Busby and Frank were striking

or were sick, as alleged in plaintiffs’ complaint, is a

matter of fact that must be resolved by the arbitrator

under Article 36(C) of the CBA. Although defendant

may present to the arbitrator undisputed evidence that

plaintiffs were engaged in a strike, the question of fact

is for the arbitrator to decide. Moreover, any doubt

regarding whether this question is arbitrable must be

resolved in favor of arbitration. See AFSCME, 290

Mich App at 674; Madison Dist Pub Sch, 247 Mich App

at 595. Accordingly, the trial court did not err by

granting summary disposition in favor of plaintiffs on

the basis that the CBA required arbitration of the

issue.

Afﬁrmed.

ANSEN

, P.J., and M

ETER

and G

LEICHER

, JJ., con-

curred.

2019] R

EGISTERED

URSES V

URLEY

537

PEOPLE v ALI

Docket No. 341121. Submitted March 13, 2019, at Detroit. Decided

June 4, 2019, at 9:05 a.m.

Shelton Ali was charged in the Wayne Circuit Court with two counts

of ﬁrst-degree criminal sexual conduct (CSC-I), MCL

750.520b(1)(b)(ii), and one count of second-degree criminal sexual

conduct (CSC-II), MCL 750.520c(1)(b)(ii), following allegations

that defendant had sexually assaulted his minor daughter. How-

ever, before defendant was charged with these offenses, proceed-

ings to terminate defendant’s parental rights to the child had

taken place in the juvenile court; the court found that the

Department of Health and Human Services had failed to estab-

lish by clear and convincing evidence that the child had been

sexually assaulted and therefore entered an order denying the

request to terminate defendant’s parental rights and terminating

its jurisdiction over the case. Three months after the ﬁnal order

was entered in the child protective proceeding, the prosecution

charged defendant with the CSC counts. The child was the only

witness at the preliminary examination, and the district court

bound defendant over as charged. In the circuit court, defendant

moved to dismiss all criminal charges on the basis of collateral

estoppel, arguing that the circuit court’s ﬁndings in the previous

child protective proceedings precluded the state from criminally

prosecuting him. The circuit court, Thomas M. J. Hathaway, J.,

entered an order dismissing the criminal charges, holding that

collateral estoppel applied because the same issue was litigated

between the same parties in the child protective proceeding. The

prosecution appealed.

The Court of Appeals held:

Collateral estoppel precludes relitigation of an issue in a

subsequent, different cause of action between the same parties

when the prior proceeding culminated in a valid ﬁnal judgment

and the issue was actually and necessarily determined in the

prior proceeding. Although in most cases parties seek to apply

collateral estoppel in the context of two civil proceedings, the

Michigan Supreme Court has recognized the application of

collateral estoppel in the civil-to-criminal context, which is

538 328

ICH

538 [June

sometimes referred to as “cross-over” collateral estoppel. How-

ever, in People v Gates, 434 Mich 146 (1990), the Supreme Court

strongly discouraged the use of collateral estoppel between child

protective proceedings and criminal proceedings in light of

signiﬁcant public-policy concerns. The purpose and focus of a

child protective proceeding in the juvenile division of the pro-

bate court is the protection of children, whereas the focus of

criminal proceedings is on the guilt or innocence of the accused;

because of these divergent interests, cross-over collateral estop-

pel should not apply between child protective proceedings and

criminal proceedings. Permitting the use of cross-over collateral

estoppel in this context would invite the risk that the proper

function of the two proceedings would be compromised. There-

fore, under the rationale in Gates, it is improper for a court in a

criminal case to give preclusive effect to ﬁndings made in a child

protective proceeding. Courts in other jurisdictions, including

Illinois, Vermont, Washington, and Kentucky, have also come to

the same conclusion. Accordingly, because the circuit court

should not have applied collateral estoppel to the trial court’s

ﬁndings in the child protective proceedings, the circuit court

abused its discretion by granting defendant’s motion to dismiss

the criminal charges.

Reversed and remanded for further proceedings.

RIMINAL

— P

ROBATE

OURT

— C

HILD

ROTECTIVE

ROCEEDINGS

—

OLLATERAL

STOPPEL

A trial court’s speciﬁc ﬁndings of fact in a child protective proceed-

ing conducted under the juvenile code do not have cross-over

collateral estoppel effect in a subsequent criminal proceeding

against an individual who was a party to the child protective

proceeding.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, Kym L. Worthy, Pros-

ecuting Attorney, Jason W. Williams, Chief of Re-

search, Training, and Appeals, and Toni Odette, Assis-

tant Prosecuting Attorney, for the people.

Michael S. Cafferty & Associates, PC (by Michael S.

Cafferty) and Leslie E. Posner for defendant.

Before: M

URRAY

, C.J., and G

ADOLA

and T

UKEL

, JJ.

2019] P

EOPLE V

539

URRAY

, C.J. The dispositive issue in this appeal is

whether a trial court’s speciﬁc ﬁndings of fact in a child

protective proceeding conducted under the juvenile

code have “cross-over” collateral estoppel effect in a

subsequent criminal proceeding against an individual

who was a party to the child protective proceeding.

Although the Supreme Court strongly discouraged the

use of collateral estoppel between these types of pro-

ceedings, it did so in dicta, People v Gates, 434 Mich

146, 157, 161-162; 452 NW2d 627 (1990), and since

then no Michigan court has made a deﬁnitive holding

on the issue. We do so now and hold that factual

ﬁndings made by a court in a child protective proceed-

ing do not have collateral estoppel effect in a subse-

quent criminal proceeding. As a result, we reverse and

remand for further proceedings.

I. BACKGROUND

Defendant’s daughter came to the attention of the

Department of Health and Human Services (DHHS)

after a Child Protective Services (CPA) referral was

made alleging that defendant had sexually assaulted

her in a motel room. Proceedings to terminate defen-

dant’s parental rights to the child subsequently com-

menced in the juvenile court. At the termination hear-

ing, defendant’s attorney argued that the child

“concoct[ed]” the allegations against defendant to

avoid being sent to boot camp for prior misbehavior.

Both the child and her mother testiﬁed at the termi-

nation hearing. Defendant did not testify, but a letter

he had written was admitted as an exhibit.

The trial court found that a preponderance of the

evidence supported its exercise of jurisdiction over the

child because defendant had engaged in conduct that

exceeded the normal bounds of discipline, but the court

540 328 M

ICH

538 [June

found that petitioner failed to establish by clear and

convincing evidence that the child was sexually as-

saulted. Therefore, the court denied the request to

terminate defendant’s parental rights. The court then

entered a dispositional order ﬁnding that the child was

not at risk of harm, releasing the child to the custody of

her mother, and terminating its jurisdiction over the

case.

Approximately three months after the ﬁnal order was

entered in the child protective proceeding, the prosecu-

tion charged defendant with two counts of ﬁrst-

degree criminal sexual conduct (CSC-I), MCL

750.520b(1)(b)(ii), and one count of second-degree crimi-

nal sexual conduct (CSC-II), MCL 750.520c(1)(b)(ii).

The child was the only witness at the preliminary

examination, and the district court bound defendant

over as charged. In the circuit court,

defendant ﬁled a

motion to dismiss all criminal charges based on collat-

eral estoppel, arguing that the circuit court’s ﬁndings

in the previous child protective proceedings precluded

the state from criminally prosecuting him. The circuit

court, properly focusing on Gates, nevertheless held

that collateral estoppel applied because the same issue

was litigated between the same parties in the child

protective proceeding. It therefore entered an order

dismissing the criminal charges.

II. COLLATERAL ESTOPPEL

This Court reviews “a trial court’s decision on a

motion to dismiss charges against a defendant for an

abuse of discretion.” People v Nicholson, 297 Mich App

For clarity’s sake, we refer to the court that handled the child

protective proceeding as the “trial court,” and the court handling the

criminal proceeding as the “circuit court,” even though both are circuit

courts.

2019] P

EOPLE V

541

191, 196; 822 NW2d 284 (2012). We review de novo the

application of the doctrine of collateral estoppel. People

v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).

“Collateral estoppel precludes relitigation of an is-

sue in a subsequent, different cause of action between

the same parties when the prior proceeding culmi-

nated in a valid ﬁnal judgment and the issue was

actually and necessarily determined in the prior pro-

ceeding.” Porter v Royal Oak, 214 Mich App 478, 485;

542 NW2d 905 (1995). “Collateral estoppel is a ﬂexible

rule intended to relieve parties of multiple litigation,

conserve judicial resources, and encourage reliance on

adjudication.” Rental Props Owners Ass’n of Kent Co v

Kent Co Treasurer, 308 Mich App 498, 529; 866 NW2d

817 (2014). Although in most cases parties seek to

apply collateral estoppel in the context of two civil

proceedings, our Supreme Court has recognized “the

application of collateral estoppel in the civil-to-

criminal context.” People v Zitka, 325 Mich App 38,

44-45; 922 NW2d 696 (2018) (quotation marks and

citation omitted). That recognition of what is some-

times referred to as “cross-over” collateral estoppel has

not been much more than that; there has never been

anything close to a ringing endorsement of the concept

by any Michigan court. Instead, the Supreme Court

has cautioned against its use. See id. and the cases

cited therein.

Gates provides the most recent and relevant discus-

sion of the issue by the Supreme Court and supports

the proposition that collateral estoppel should not be

applied in this context in light of signiﬁcant public-

policy concerns.

In Gates, 434 Mich at 150-151, the

This question of public policy falls within the province of the courts

because collateral estoppel is a common-law doctrine. See North Ottawa

Community Hosp v Kieft, 457 Mich 394, 403 n 9; 578 NW2d 267 (1998),

542 328

ICH

538 [June

defendant alleged that collateral estoppel barred a

criminal prosecution for sexual misconduct involving

his three-year-old child, because a child protective

proceeding based on the same conduct resulted in a

general jury verdict of “no jurisdiction.” Thereafter, a

circuit court dismissed criminal charges against the

defendant on grounds that the jury verdict in probate

court determined “ ‘that the prosecution had not

proved a case of sexual abuse by a preponderance of

the evidence.’ ” Id. at 154. The Supreme Court, how-

ever, held that collateral estoppel did not bar the

subsequent criminal prosecution because the verdict of

“no jurisdiction” did not “ ‘necessarily determine[]’ ”

the guilt or innocence of the defendant, id. at 150-151,

158, as there were other possible reasons the jury could

have returned its verdict of no jurisdiction, id. at 160.

Despite its ruling that collateral estoppel was factu-

ally inapplicable, the Gates Court went on to deter-

mine whether as a policy matter cross-over collateral

estoppel should be applied between child protective

proceedings and criminal cases. The Court warned

against it, stating that “the purposes of a child protec-

tive proceeding and a criminal proceeding are so fun-

damentally different that application in this instance

of collateral estoppel would be contrary to sound public

policy.” Gates, 434 Mich at 161. Speciﬁcally, the Court

pointed out that “[t]he purpose and focus of a neglect or

abuse proceeding in the juvenile division of the probate

court is the protection of children,” while “the focus of

a criminal proceeding is on the guilt or innocence of the

accused.” Id. at 161-162. Because of these divergent

interests, the Court concluded that cross-over collat-

and Henry v Dow Chem Co, 473 Mich 63, 83; 701 NW2d 684 (2005). In

other words, we are not supplanting legislative policy judgments with

ours.

2019] P

EOPLE V

543

eral estoppel should not apply between child protective

proceedings and criminal proceedings, as permitting

its use “would invite the risk that the proper functions

of the two proceedings would be compromised.” Id. at

162.

The Gates Court was also concerned with how use of

the doctrine would impact the bringing of criminal

charges:

To avoid the effect of collateral estoppel, if it were to be

made applicable, a prosecutor would be required to de-

velop criminal charges indicated by the petition and bring

them to trial before a determination concerning jurisdic-

tion could be reached in the probate proceeding. However,

the burden of proving criminal charges beyond a reason-

able doubt, added to problems presented by conﬂicting

procedural and scheduling requirements of the two courts,

would make it extremely difﬁcult, and often impossible,

for the criminal charges to be brought to trial in circuit

court in advance of the jurisdiction determination in

probate court.

Thus, the petitioner or the prosecutor would face an

unfortunate choice that is not in the public interest:

whether to proceed on the petition in probate court be-

cause of concern for the child, or to delay the probate

proceeding because of concern that a verdict of nonjuris-

diction would preclude criminal prosecution of the ac-

cused. [Id. at 163.]

As a result, the Court was “persuaded by public policy

considerations that such an election between criminal

and child protective proceedings should not be judi-

cially imposed through the application of collateral

estoppel.” Id. Although the Court had already con-

cluded that as a matter of fact collateral estoppel was

inapplicable to the case, the Gates Court labeled its

discussion about the policy implications as a “conclu-

sion that collateral estoppel should not apply . . . .” Id.

544 328 M

ICH

538 [June

at 163-164 (emphasis added). Perhaps this phraseol-

ogy was an attempt to negate any concern that the

policy discussion was merely dictum, but given its

previous conclusions regarding the inapplicability of

the doctrine under the facts, any additional reasoning

to reject its application seems to have been unneces-

sary. See Pew v Mich State Univ, 307 Mich App 328,

334; 859 NW2d 246 (2014) (“Dictum is a judicial

comment that is not necessary to the decision in the

case.”).

But even if it is dictum, and we think it is, it is

persuasive dictum given that (1) it is from the Supreme

Court, and (2) it is thorough, deﬁnitive, and convinc-

ing. See Mount Pleasant Pub Sch v Mich AFSCME

Council 25, 302 Mich App 600, 610 n 2; 840 NW2d 750

(2013). The concerns outlined in Gates are just as

signiﬁcant and applicable today, and those concerns

counsel against giving factual ﬁndings made by a court

in a child protective proceeding “cross-over” collateral

estoppel effect in a criminal proceeding. Hence, under

the rationale in Gates, it is improper for a court in a

criminal case to give preclusive effect to ﬁndings made

in a child protective proceeding.

Courts from other jurisdictions have come to the

same conclusion, and most of them rely at least in part

on Gates.

For example, in People v Moreno, 319 Ill App

3d 445, 452-453; 744 NE2d 906 (2001), the Illinois

Court of Appeals held, for many of the same sound

policy reasons articulated in Gates, that the trial court

in a criminal proceeding was precluded from giving

Gates, 434 Mich at 163, looked to at least one sister-state jurisdiction

in its public-policy discussion. Given the dearth of Michigan law on the

issue, we think it prudent to consider how other states address the issue

in a similar context. Outdoor Sys Advertising, Inc v Korth, 238 Mich App

664, 669-670; 607 NW2d 729 (1999).

2019] P

EOPLE V

545

collateral estoppel effect to the facts found by the court

in an abuse and neglect proceeding:

In the present case, important public policy reasons

exist to prevent the application of collateral estoppel and

its application would be inappropriate. In the juvenile

proceeding, the ultimate litigated issue was whether the

minor children of defendant were abused due to defen-

dant’s involvement with the injuries of G.M.; in the

subsequent criminal proceeding, the ultimate litigated

issue will be whether the defendant is criminally culpable

for the injuries to G.M. In the juvenile proceeding, the

State’s purpose is protection of defendant’s minor chil-

dren; in the criminal proceeding, the State’s purpose is

discovering if defendant injured G.M. and punishing her if

found guilty. The differences of purpose and goal in the

civil and criminal procedures are “very real.” A criminal

trial is the exclusive forum for determining guilt or

innocence, and of the public’s right to have criminal

culpability assessed at a trial. [Citations omitted.]

These same policy concerns were echoed by the Ver-

mont Supreme Court in State v Nutbrown-Covey, 204

Vt 363, 370-371; 2017 VT 26; 169 A3d 216 (2017),

where the court emphasized the signiﬁcantly different

purposes of the two proceedings:

[T]he kinds of proceedings at issue here—a CHINS [Child

In Need of Care or Supervision] proceeding in the family

division and a criminal case—require the courts to con-

sider and apply different rules of law. See Restatement

(Second) of Judgments § 27 cmt. c (explaining that deter-

mining whether issue was necessary to ﬁrst judgment

requires court to consider whether any new evidence

involves application of different rule of law). A criminal

case is concerned with a defendant’s conduct in some

speciﬁed instance and therefore requires the State to

prove particular elements of a crime at the time and place

alleged, while a CHINS case is concerned with the well-

being of the child in question and therefore considers the

course of the parent-child relationship. Put differently, a

546 328

ICH

538 [June

criminal case seeks to identify any misconduct on the part

of a defendant; a CHINS case seeks to identify how to best

protect the child, regardless of whether or not the child’s

parent has engaged in misconduct. [Citation omitted.]

The resources typically utilized by the state in these

different proceedings have also been recognized as a

reason not to apply collateral estoppel between them.

Because of the disparate issues, the level of proof, the

more adversarial nature of criminal proceedings, tim-

ing issues, and other like concerns, in many states

more resources are devoted to criminal prosecution

than to child protective proceedings. Thus, as the

Washington Court of Appeals concluded in State v

Cleveland, 58 Wash App 634, 643-644; 794 P2d 546

(1990), it makes little sense to bind the prosecution to

factual ﬁndings made in a civil proceeding where, more

likely than not, fewer resources and less time were

devoted to the proofs:

As noted above, we ﬁnd overall considerations of public

policy are determinative of the question before us. Depen-

dency proceedings are often attended with a sense of

urgency, are held as promptly as reasonably possible, and

the entire focus of the proceeding is the welfare of the

child. The focus being more narrow than in a typical felony

trial, the State normally does not need, nor does it

perform, the extensive preparation typically required for

felony trials.

Furthermore, the prosecutor uses many more resources

in developing a felony prosecution than those available

and used in the typical dependency hearing. Dependency

is decided by a judge, while felony trials are usually tried

to a jury. In addition, if the State was faced with applica-

tion of the doctrine of collateral estoppel to ﬁndings in

dependency proceedings, there could well be a reluctance

to conduct dependency proceedings in cases where one or

more of the same issues would arise in subsequent crimi-

nal prosecutions. While the welfare of minor children is

2019] P

EOPLE V

547

undeniably important, we are inﬂuenced by the desirabil-

ity of not impeding enforcement of the criminal law when

no overriding consideration requires it.

See also Gregory v Kentucky, 610 SW2d 598, 600 (Ky,

1980), and Criner v State, 138 So 3d 557, 559 (Fla App,

2014) (“We are persuaded by public policy consider-

ations that such an election between criminal and

child-protective proceedings should not be judicially

imposed through the application of collateral estop-

pel.”).

In concluding that collateral estoppel should not be

applied in these circumstances, we are not ignoring the

undeniable truth that fundamental constitutional

rights are at stake in both proceedings. See Crosby-

Garbotz v Fell, 246 Ariz 54, 58-59; 434 P3d 143 (2019).

Although varying individual constitutional interests

are at stake in both proceedings, it nevertheless re-

mains true that these proceedings are fundamentally

different: one is civil, the other criminal; they both

serve different purposes and implicate different state

interests (enforcement of the criminal laws and the

safety and security of the child); each involves different

burdens of proof

and different procedural require-

ments;

and criminal proceedings tend to be more

adversarial in nature. And, as we have pointed out, it is

Compare MCR 3.977(E)(3), stating that clear and convincing evi-

dence is required to terminate parental rights, with People v Wright, 477

Mich 1121, 1122 (2007), recognizing the constitutionally required

beyond-a-reasonable-doubt standard.

Child protective proceedings involving the termination of parental

rights are not decided by juries, MCR 3.977(A)(3), whereas criminal

cases typically are, see People v Allen, 466 Mich 86, 90; 643 NW2d 227

(2002) (noting the state and federal constitutional rights to a jury trial

in criminal proceedings). Juries are permitted in the adjudicative phase

of child protective proceedings, but there, the burden of proof is a

preponderance of the evidence. See In re AMAC, 269 Mich App 533, 536;

548 328

ICH

538 [June

these same differences and concerns that drove the

Gates Court to express its disagreement with applying

cross-over collateral estoppel between child protective

proceedings and criminal proceedings. Additionally,

Gates recognized that if cross-over collateral estoppel

applied in these circumstances, it would encourage the

prosecution to race to complete the criminal proceed-

ings to avoid being bound by the ﬁndings in a child

protective proceeding. Gates, 434 Mich at 163.

We also recognize that some courts, like the Arizona

Supreme Court in Crosby-Garbotz, have taken a more

ﬂexible approach to deciding whether cross-over collat-

eral estoppel applies in these circumstances. But like

the other state courts we have referenced,

we believe

these policy concerns are overarching, are not fact

dependent, and apply with equal force in these “cross-

over” circumstances between child protective proceed-

ings and criminal proceedings.

Because collateral estoppel should not have been

applied by the circuit court to the ﬁndings made by the

trial court in the child protective proceedings, the

circuit court abused its discretion by granting defen-

dant’s motion to dismiss the criminal charges.

The circuit court’s order is reversed, and this matter

is remanded for further proceedings. We do not retain

jurisdiction.

ADOLA

and T

UKEL

, JJ., concurred with M

URRAY

, C.J.

711 NW2d 426 (2006). Also, unlike criminal trials, in most child

protective proceedings the rules of evidence do not apply. MCR

3.901(A)(3).

And the persuasive dissent in Crosby-Garbotz, which cited Gates.

See Crosby-Garbotz, 246 Ariz at 62 (Timmer, J., dissenting).

2019] P

EOPLE V

549

BERDY v BUFFA

Docket No. 349171. Submitted June 5, 2019, at Detroit. Decided June 6,

2019, at 9:00 a.m. Reversed and Macomb Circuit Court order

granting mandamus reinstated 504 Mich 876 (2019).

Connor Berdy brought an action for mandamus in the Macomb

Circuit Court, alleging that Warren City Clerk Sonya Buffa and

the Warren City Election Commission had a clear legal duty to

strike from the city’s 2019 primary-election ballot the names of

four individuals running for Warren City Council. The Warren

City Charter provided that a person was not eligible to hold the

position of city council, city clerk, or city treasurer for more than

the greater of three complete terms or 12 years in that particular

ofﬁce. The council was composed of seven members, two elected

at-large and ﬁve elected to represent one each of the ﬁve districts

within the city. In 2014, the city’s attorney concluded that

separate term limits applied to those councilmembers elected to

at-large positions versus those elected to represent a single

district and that the charter therefore permitted persons to

exhaust their term limits in one type of city council ofﬁce and then

run for the other type of ofﬁce. In 2015, in a separate case, the

Macomb Circuit Court afﬁrmed the city attorney’s interpretation

regarding the application of term limits to councilmembers; in an

unpublished order, the Court of Appeals denied leave to appeal for

lack of merit in the grounds presented (Docket No. 327779). In

this case, plaintiff asserted that four candidates were ineligible to

run for city council in the 2019 primary election because they had

each already served at least three terms or a total of 12 years on

the council as either at-large or single-district members. The

court, James M. Maceroni, J., granted plaintiff mandamus relief,

concluding that the term limits were not intended to be cumula-

tive with regard to the different councilmember positions, that

plaintiff was entitled under the charter to have the four candi-

dates excluded from the primary ballot, that the election commis-

sion had a clear statutory duty to strike the four candidates’

names from the ballot, that the action was a ministerial act, and

that plaintiff had no other viable remedy at law. Defendants

appealed.

550 328

ICH

550 [June

The Court of Appeals held:

A writ of mandamus is an extraordinary remedy that may be

granted only when the plaintiff shows that (1) the plaintiff has a

clear legal right to performance of the speciﬁc duty sought, (2) the

defendant has a clear legal duty to perform, (3) the act is

ministerial, and (4) no other adequate legal or equitable remedy

exists that might achieve the same result. A clear legal right is

one clearly founded in, or granted by, law; it is a right that is

inferable as a matter of law from uncontroverted facts regardless

of the legal question to be decided. In this case, the city attorney’s

interpretation of the charter’s term-limit provision was not

clearly wrong, and plaintiff failed to establish that he had a clear

legal right to have the four incumbent candidates’ names re-

moved from the primary ballot. Given that the charter did not

grant the election commission or the city clerk the power to decide

whether candidates are eligible or to strike them for being

ineligible, plaintiff also failed to establish that either defendant

had a clear legal duty to strike the names from the ballot as

requested. Plaintiff also failed to establish that the requested

action was purely ministerial; instead, choosing between compet-

ing interpretations of city-charter language regarding term limits

required analysis and discretionary decision-making. Therefore,

the trial court abused its discretion by granting plaintiff’s com-

plaint for mandamus.

Reversed.

UKEL

, J., dissenting, disagreed with the majority’s interpreta-

tion of the term-limit language in the charter and its conclusion

that plaintiff did not have a legal right to have the four candidates’

names removed from the primary ballot. The ruling in the earlier,

unrelated circuit court case and the city attorney’s interpretation

of the term-limit language were not binding precedent. Applying

the rules of grammar to the charter’s term-limit language, the

charter clearly provided for a single class of city councilmembers

subject to the speciﬁc term limits that applied to those members;

there were not two different classes of city councilmembers to

whom the maximum-term provisions applied separately. Plaintiff

had a clear legal right to have the four candidates’ names removed

from the primary ballot because it was undisputed that each

candidate had served or would have served by the time of the

election three complete terms or 12 years as councilmembers.

Under Barrow v Detroit Election Comm, 301 Mich App 404 (2013),

and the language of the charter, defendants had a clear legal duty

to remove the names from the ballot; the act was ministerial

because defendants had no discretion once it became clear that the

2019] B

ERDY V

UFFA

551

candidates were term-limited and ineligible to be on the primary

ballot. Judge T

UKEL

would have afﬁrmed the trial court’s order of

mandamus.

Jim Kelly Law, PC (by James J. Kelly) for Connor

Berdy.

Kirk, Huth, Lange & Badalamenti, PLC (by Robert

S. Huth, Jr., and Raechel M. Badalamenti) for Warren

City Clerk Sonya Buffa and the Warren City Election

Commission.

Before: T

UKEL

, P.J., and C

AVANAGH

and G

LEICHER

, JJ.

LEICHER

, J. Defendants-appellants, Warren City

Clerk Sonya Buffa and the Warren City Election Com-

mission, appeal as of right the circuit court’s opinion

and order granting plaintiff Conner Berdy’s complaint

for mandamus and ordering defendants to strike the

names of four candidates for Warren City Council from

the list of candidates for the upcoming primary elec-

tion. We reverse.

Plaintiff, a candidate for Warren City Council, sued

defendants seeking to bar four other candidates from

appearing on the primary ballot for city council, arguing

that those candidates

were term-limited under

§§ 4.3(d) and 4.4(d) of the Warren City Charter. Plain-

tiff’s argument relied upon an interpretation of

§§ 4.3(d) and 4.4(d) that was inconsistent with a 2014

opinion of the Warren city attorney. In 2014, the city

attorney concluded that separate term limits applied

to city council members elected at-large versus those

Those candidates were incumbent city council members Cecil St.

Pierre, Scott Stevens, Steve Warner, and Robert Boccomino.

552 328

ICH

550 [June

PINION OF THE

OURT

elected to represent a single district. The city attorney

concluded that by approving those charter amend-

ments, the voters created a “bicameral” legislature of

two separate and distinct legislative groups: district

city council members and at-large city council mem-

bers. The city attorney noted that the two groups had

different election rules and responsibilities, such as

different residency requirements and separate cam-

paigning and fundraising rules, and that only an

at-large city council member may serve as mayor pro

tem. The city attorney noted that with regard to term

limits, the language of § 4.4(d) referred to three terms

or 12 years “ ‘in that particular ofﬁce.’ ” Because “At-

Large City Council members and District City Council

members hold separate and distinct ofﬁces,” he con-

cluded that the charter permitted persons to exhaust

their term limits in one type of city council ofﬁce, then

run for the other type of ofﬁce.

The city attorney’s opinion regarding the application

of the term limits was upheld by a 2015 circuit court

decision, Olejniczak v City of Warren Elections Comm,

unpublished order of the Macomb Circuit Court, en-

tered May 11, 2015 (Docket No. 2015-001304-AW). In

Olejniczak, the circuit court upheld the city attorney’s

interpretation of §§ 4.3 and 4.4 of the charter as “an

arguably sound position” and expressed “severe reser-

vations whether defendants can reject the City of

Warren Attorney’s opinion, let alone [had] a clear legal

duty to do so.” The plaintiff in Olejniczak sought leave

to appeal the circuit court’s decision, and this Court

denied leave to appeal for lack of merit in the grounds

presented. Olejniczak v Warren Elections Comm,

unpublished order of the Court of Appeals, entered

June 11, 2015 (Docket No. 327779).

As previously noted, plaintiff argued in this case that

the four candidates at issue were ineligible because they

2019] B

ERDY V

UFFA

553

PINION OF THE

OURT

had each served at least three terms or a total of 12

years on the Warren City Council and so were barred

from running again despite that none had exhausted

the term limits for the particular ofﬁces they seek. The

trial court agreed with plaintiff, ﬁnding “that the term

limits were not intended to be cumulative in the way

Defendants argue” and that “a plain reading of the

charter shows that there is no differentiation between

at-large councilmembers and district councilmembers

in the term-limit deﬁnition[.]” The trial court con-

cluded that plaintiff was entitled to have the four

candidates excluded from the primary ballot on the

basis of the term limitations contained in §§ 4.3 and

4.4 of the city charter, that the election commission had

a clear statutory duty to strike the four candidates’

names from the ballot, that doing so was a ministerial

act, and that plaintiff had no other viable remedy at

law.

Defendants appealed in this Court, arguing that the

trial court erred by simply ignoring the 2015 circuit

court decision, that the trial court erroneously found a

clear legal duty based upon a contested interpretation

of the charter, and that it erred by exercising jurisdic-

tion to determine the candidate’s eligibility under

§§ 4.3 and 4.4 of the charter. We granted defendants’

motion to expedite their appeal and for immediate

consideration. Berdy v Buffa, unpublished order of the

Court of Appeals, entered June 5, 2019 (Docket No.

349171). We now reverse the trial court’s grant of

mandamus relief.

A writ of mandamus is an extraordinary remedy that

may be granted only when the plaintiff shows that “ ‘(1)

the plaintiff has a clear, legal right to performance of the

554 328 M

ICH

550 [June

PINION OF THE

OURT

speciﬁc duty sought, (2) the defendant has a clear legal

duty to perform, (3) the act is ministerial, and (4) no

other adequate legal or equitable remedy exists that

might achieve the same result.’ ” Berry v Garrett, 316

Mich App 37, 41; 890 NW2d 882 (2016), quoting Rental

Props Owners Ass’n of Kent Co v Kent Co Treasurer, 308

Mich App 498, 518; 866 NW2d 817 829 (2014). A trial

court’s decision whether to grant mandamus is re-

viewed for an abuse of discretion. Berry, 316 Mich App

at 41. However, whether the defendants have a clear

legal right to perform a duty and whether the plaintiff

has a clear legal right to the performance of that duty

present questions of law to be reviewed de novo by this

Court. Id.

Plaintiff failed to show that he had a clear legal right

to have the subject candidates disqualiﬁed from run-

ning for city council, failed to show that defendants

had a clear legal duty to strike the names from the

ballot, and failed to show that the action demanded

was purely ministerial. Because plaintiff failed to

make those showings, the trial court abused its discre-

tion by granting plaintiff’s complaint for mandamus.

With regard to seeking mandamus relief, “ ‘a clear,

legal right is one clearly founded in, or granted by, law;

a right which is inferable as a matter of law from

uncontroverted facts regardless of the difﬁculty of the

legal question to be decided.’ ” Id., quoting Rental

Props, 308 Mich App at 519. The rules of statutory

construction apply to the interpretation of city ordi-

nances, including city charters. Gora v Ferndale, 456

Mich 704, 711; 576 NW2d 141 (1998); Barrow v Detroit

Election Comm, 301 Mich App 404, 413; 836 NW2d 498

(2013).

Plaintiff did not show that the four candidates at

issue were term-limited under the plain language of

2019] B

ERDY V

UFFA

555

PINION OF THE

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the charter or that the city government was misinter-

preting or misapplying the relevant charter provisions.

The speciﬁc language of § 4.4(d) states that “[a] person

shall not be eligible to hold the position of city council,

city clerk or city treasurer for more than the greater of

three (3) complete terms or twelve (12) years in that

particular ofﬁce.” (Emphasis added.) While the words

“that particular ofﬁce” in § 4.4 could be interpreted to

distinguish between terms served as city council mem-

ber, clerk, or treasurer, there is room for reasonable

disagreement with regard to whether there should also

be a distinction between council members elected by

district and at-large. While the Warren City Council

may not be a true bicameral legislature with an upper

and lower house like the United States Senate and

House of Representatives, the city charter does distin-

guish between council members elected by district and

at-large with regard to their election, fundraising,

constituencies, and abilities to serve as mayor pro tem.

Contrary to the trial court’s ruling, the city’s interpre-

tation of its term-limit provisions under §§ 4.3 and 4.4

of the city charter was not clearly wrong. Accordingly,

plaintiff has not shown a clear legal right to have the

four incumbents’ names removed from the primary

ballots.

The dissent, which has designated this case for publication, contends

that the “general election laws of the state” must guide us, rather than

the language of the charter. In support of this proposition, the dissent

relies heavily on Barrow, 301 Mich App 404. The dissent misreads

Barrow. That decision ﬂowed directly and solely from the language of

Detroit’s charter, which deﬁned the residency requirements for mayoral

candidates. This Court stressed, “Michigan statutory law provides that

a city’s charter governs qualiﬁcations for persons running for ofﬁce[.]”

Id. at 413. In Barrow, the pertinent language of the charter provided

that a person seeking elective ofﬁce must be a “registered voter of the

City of Detroit for one (1) year at the time of ﬁling for ofﬁce . . . .” Id.

(emphasis omitted). We determined that the relevant section of the

556 328

ICH

550 [June

PINION OF THE

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Nor has plaintiff shown that either defendant has a

clear legal duty to strike the names from the ballot as

requested. Warren City Charter § 13.15(1) through (8)

grants the election commission purely administrative

duties such as arranging and stafﬁng polling places

and supervising the conduct of elections. The charter

does not grant the election commission the power to

decide whether candidates are eligible or to strike

them from the ballot for ineligibility. While MCL

168.323 and MCL 168.719 grant city election commis-

sions the power and duty to prepare and deliver

primary ballots, neither statute gives those commis-

sions the power to assess whether a candidate is

ineligible for a particular ofﬁce on the basis of term

limits. In fact, the language of MCL 168.323 limits a

city election commission’s functions to the purely min-

isterial tasks of preparing and furnishing ballots on

the basis of the results certiﬁed by the board of county

canvassers.

Section 4.2 of the Warren City Charter states that

the city council “shall be the judge of the election and

qualiﬁcations of its members, subject to the general

election laws of the state and review by the courts,

upon appeal.” Neither the election commission nor the

city clerk has the power to apply the terms of the

charter and determine whether candidates are ineli-

charter was clear and unambiguous, prohibiting a candidate from

seeking ofﬁce unless the candidate had been a registered voter for one

year at the time he or she ﬁled a nominating petition. The candidate,

(now Mayor) Michael Duggan, conceded that he was not registered to

vote in Detroit one year before he ﬁled his nominating petitions. Id. at

415.

The language of the Warren City Charter is not so easily parsed and

is legitimately subject to differing interpretations. The Warren city

attorney concluded that the charter permits the four candidates to run

for positions on the city council. This determination may prove incorrect,

but it is not unreasonable. Accordingly, Barrow is inapposite.

2019] B

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gible to run for ofﬁce. The charter gives that power

solely to the city council, subject to state election law

and review by the courts. When a city charter makes

the city council the sole judge of the election and

qualiﬁcations of its own members, the ﬁnal decision on

those issues rests in the city council, and the courts

cannot decide the matter unless and until the council

reaches its ﬁnal decision on the matter. McLeod v State

Bd of Canvassers, 304 Mich 120, 129; 7 NW2d 240

(1942); Grand Rapids v Harper, 32 Mich App 324, 327;

188 NW2d 668 (1971); Houston v McKinlay, 4 Mich

App 94, 98; 143 NW2d 781 (1966). Because only the

city council had the power to determine the candidates’

eligibility, defendants did not have authority to deter-

mine their eligibility under the charter and could not

strike their names from the ballot.

Additionally, plaintiff failed to show that the action

requested was purely ministerial. In Berry, this Court

deﬁned a ministerial act as “ ‘one in which the law

prescribes and deﬁnes the duty to be performed with

such precision and certainty as to leave nothing to the

exercise of discretion or judgment.’ ” Berry, 316 Mich

App at 42, quoting Hillsdale Co Senior Servs, Inc v

Hillsdale Co, 494 Mich 46, 58 n 11; 832 NW2d 728

(2013). While striking the names of clearly ineligible

candidates who have not submitted facially adequate

petitions or who have neglected to comply with other

clear statutory requirements is a ministerial act, Bar-

row, 301 Mich App at 412, choosing between competing

interpretations of city-charter language regarding

term limits is not purely ministerial, but instead

requires analysis and discretionary decision-making.

Because determining the eligibility of candidates un-

der §§ 4.3 and 4.4 is not within the powers of defen-

dants and was not a ministerial act, plaintiff was

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not entitled to mandamus relief to compel defendants

to do those acts.

The trial court’s opinion and order granting declara-

tory and mandamus relief to plaintiff is reversed. No

costs as this appeal concerned an issue of public

importance. MCR 7.219. This opinion shall have im-

mediate effect pursuant to MCR 7.215(F)(2).

AVANAGH

, J., concurred with G

LEICHER

, J.

UKEL

, P.J. (dissenting). I respectfully dissent.

Defendants

argue that mandamus is not an avail-

able remedy in this case. “Although this Court reviews

a trial court’s decision to issue or deny a writ of

mandamus for an abuse of discretion, this Court re-

views de novo as questions of law whether a defendant

has a clear legal duty to perform and whether a

plaintiff has a clear legal right to performance.” Wil-

coxon v Detroit Election Comm, 301 Mich App 619, 630;

838 NW2d 183 (2013) (quotation marks and citations

omitted).

As a general matter, to justify a writ of mandamus,

Contrary to the dissent, MCL 168.323 has not supplanted, arguably

or otherwise, the mandamus principles set forth in McLeod, 304 Mich

120. To the contrary, McLeod’s central teaching remains relevant.

Mandamus is an extraordinary remedy. “Mandamus issues only to

compel the recognition of a clear legal right or the performance of a legal

duty; it does not issue so long as the right or the duty is disputed or

doubtful.” Id. at 125-126. This is the law. The enactment of MCL 168.323

has not changed it. If any of the four candidates win the election, a

challenge to the result is certain. The dissent’s position may then

prevail. But the cause of action here is for mandamus, and that form of

unusual relief is unavailable where, as here, serious and compelling

legal questions about a legal duty abound.

Defendant Macomb County Clerk Fred Miller is not a party to this

appeal; all references in this opinion to “defendants” are to the Warren

City Clerk and the Warren City Election Commission.

2019] B

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[t]he plaintiff must show that (1) the plaintiff has a clear

legal right to the performance of the duty sought to be

compelled, (2) the defendant has a clear legal duty to

perform such act, (3) the act is ministerial in nature such

that it involves no discretion or judgment, and (4) the

plaintiff has no other adequate legal or equitable remedy.

[Barrow v Detroit Election Comm, 301 Mich App 404, 412;

836 NW2d 498 (2013).]

“[T]his Court has held that where the duty of the public

ofﬁcial is certain, the Court cannot in its discretion deny

the writ.” Romulus City Treasurer v Wayne Co Drain

Comm’r, 413 Mich 728, 744; 322 NW2d 152 (1982).

Barrow is controlling in this case with regard to the

potential availability of mandamus. Barrow involved a

claim that a candidate was ineligible for the August

primary ballot; the plaintiff in Barrow argued that

then-candidate Michael Duggan was not eligible for

the ballot because he had not been a resident and a

qualiﬁed and registered voter for the period mandated

by the city charter. Barrow, 301 Mich App at 407. In

this case, similarly, plaintiff, Connor Berdy, alleges

that four candidates are not eligible for the August

primary ballot (for Warren City Council) because they

have served the maximum terms permitted by the

Warren City Charter (the Charter). In Barrow, the

defendants were the Detroit Election Commission and

the Detroit City Clerk. Id. Here, defendants are the

Warren City Election Commission and the Warren City

Clerk. Moreover, although not mentioned by the Bar-

row Court, “[t]he boards of election commissioners

shall correct such errors as may be found in said

ballots, and a copy of such corrected ballots shall be

sent to the secretary of state by the county clerk.” MCL

168.567. That section refers to ofﬁcial primary ballots,

the election at issue here. Thus, the Warren City

Election Commission had a duty to correct any error on

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the ballots, which necessarily required that it not list

an ineligible candidate.

In Barrow, we determined that “mandamus is the

proper method of raising [the plaintiff’s] legal chal-

lenge” to the candidacy. Barrow, 301 Mich App at 412.

In so doing, we relied on various provisions of the

Michigan Election Law, MCL 168.1 et seq. Under the

Michigan Election Law, “[i]t is the duty of the board of

city election commissioners to prepare the primary

ballots to be used by the electors.” MCL 168.323. In

addition, “[t]he election commission of each city and

township shall perform those duties relative to the

preparation, printing, and delivery of ballots as are

required by law of the boards of county election com-

missioners.” MCL 168.719. Thus, the Barrow Court

held that “[i]t is undisputed that defendants have the

statutory duty to submit the names of the eligible

candidates for the primary election, see MCL 168.323

and MCL 168.719.” Barrow, 301 Mich App at 412

(emphasis added). Further, “[u]pon review, if we in

turn likewise determine that Duggan did not meet the

qualiﬁcations to be a candidate for elected ofﬁce under

the charter, plaintiff would have a clear legal right to

have Duggan’s name removed from the list of candi-

dates, the Election Commission would have a clear

legal duty to remove Duggan’s name, the act would be

ministerial because it would not require the exercise of

judgment or discretion, and plaintiff would have no

other legal or equitable remedy.” Id. at 412-413.

I. PLAINTIFF HAS A RIGHT TO THE PERFORMANCE OF THE ACTION

SOUGHT

I disagree with the majority’s view that plaintiff has

failed to show that he had a right to the performance of

the duty sought to be compelled.

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First, the majority’s interpretation of the Charter

is contrary to the Charter’s plain and unambiguous

language. As already noted, we review de novo the

interpretation of a city charter. Trahey v Inkster, 311

Mich App 582, 593; 876 NW2d 582 (2015). Therefore,

we give no deference to any other interpretations,

Buchanan v Flint City Council, 231 Mich App 536,

542 n 3; 586 NW2d 573 (1998), including those of the

city attorney.

When reviewing the provisions of a home rule city charter,

we apply the same rules that we apply to the construction

of statutes. The provisions are to be read in context, with

the plain and ordinary meaning given to every word.

Judicial construction is not permitted when the language

is clear and unambiguous. Courts apply unambiguous

statutes as written. [Barrow, 301 Mich App at 413-414

(citation omitted).]

The Charter provides for seven council members,

two elected at-large and ﬁve elected to represent one

each of the ﬁve districts. Charter, § 5.1(a). There are no

differences in the powers or authorities of council

members; any combination of ﬁve members, irrespec-

tive of whether at-large or elected-district members,

constitutes a quorum and can conduct all business of

the council. Charter, § 5.3(e).

The majority cites the city attorney’s conclusion

that “the two groups had different election rules and

responsibilities, such as different residency require-

ments and separate campaigning and fundraising

rules[.]” But the city attorney’s conclusion is actually

incorrect. Section 5 of the Charter relates to election

matters, which of course are different for an at-large

representation as opposed to an elected-district rep-

resentation. But the provisions draw no distinction

regarding the authority of serving council members to

562 328 M

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assemble a quorum or to conduct business. Impor-

tantly, if there were two different classes of council

members, it would not be a legal irrelevancy under

the Charter which of those ﬁve were present on any

given occasion to constitute a quorum to conduct

business. See Charter, § 5.3(e).

And while the majority soft-pedals the city attor-

ney’s incongruous statement that the council is “bicam-

eral” by stating that it “may not be a true bicameral

legislature,” there is no doubt on this issue. A bicam-

eral legislature literally means “two houses” and there-

fore requires two houses. See Merriam-Webster’s Col-

legiate Dictionary (11th ed) (deﬁning “bicameral” as

“having, consisting of, or based on two legislative

chambers”).

Additionally, if there really were a “bi-

cameral” council, it certainly would be of great signiﬁ-

cance to spell that out given that a quorum in one

house would not constitute a quorum in the other.

Nevertheless, the Charter treats the seven council

members interchangeably for ofﬁcial purposes and

only provides a single mechanism for determining a

quorum. Of course, none of what the city attorney

opined matters at all, given that our review on this

matter, as an issue of law, is de novo; but even under a

more deferential standard of review, the city attorney’s

position would have to be rejected.

Sections 4.3(d) and 4.4(d) of the Charter govern how

many terms or how long a person may serve as an

elected ofﬁcial. Section 4.3 states:

The city attorney and the majority also note that only an at-large

city council member can serve as mayor pro tem. However, that is an

eligibility provision for the position of mayor pro tem, not for city council

members; because it only applies to one of the two at-large members in

any event, it could not create a separate class for the at-large members

as a whole.

2019] B

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A person shall not be eligible to hold the ofﬁce of mayor

for more than the greater of ﬁve (5) complete terms or

twenty (20) years. A person shall not be eligible to hold the

position of city council, city clerk or city treasurer for more

than the greater of three (3) complete terms or twelve (12)

years in that ofﬁce.

And § 4.4(d) provides:

A person shall not be eligible to hold the ofﬁce of mayor

for more than the greater of ﬁve (5) complete terms or

twenty (20) years. A person shall not be eligible to hold the

position of city council, city clerk or city treasurer for more

than the greater of three (3) complete terms or twelve (12)

years in that particular ofﬁce.

The only difference between these two provisions is the

addition of the word “particular” toward the end of

§ 4.4(d).

The only reasonable reading of the Charter provi-

sions providing for three-term or 12-year maximum

periods of service is that they each apply separately to

anyone elected to “the position of city council.” The

Charter’s use of the deﬁnite article “the” and the singu-

lar “position” indicate that there is only one class of city

council members. See Robinson v City of Lansing, 486

Mich 1, 14-15; 782 NW2d 171 (2010) (stating that the

use of the word “the” indicates a “ ‘speciﬁc or particu-

lar’ ” thing). Any reliance on “that particular ofﬁce” to

somehow indicate that it applies to multiple city council

positions is without merit. The clear meaning of the last

sentence in § 4.4(d)—“A person shall not be eligible to

hold the position of city council, city clerk or city

treasurer for more than the greater of three (3) complete

terms or twelve (12) years in that particular ofﬁce”—is

that “particular ofﬁce” refers to the previously men-

tioned positions of city council, city clerk, and city

treasurer. Indeed, it is likely that no one who voted on

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those sections of the Charter, whether for or against,

would have fathomed that what was being voted on

were not provisions for three complete terms or 12-year

maximums, but rather six complete terms and 24-year

maximums. That is so for the reason that there is not a

single word in the Charter stating that there are two

different classes of city council members to whom the

maximum-term provisions would apply separately. See,

e.g., Wayne Co v Hathcock, 471 Mich 445, 468-469; 684

NW2d 765 (2004) (“This Court typically discerns the

common understanding of constitutional text by apply-

ing each term’s plain meaning at the time of ratiﬁca-

tion.”).

Defendants argue in their reply brief that the Char-

ter has received a settled judicial construction which

cannot be lightly abandoned under the rules for stare

decisis. However, as to this issue, no rule set forth by a

lower court was previously “settled.” As noted, this

Court reviews de novo whether plaintiff has a clear legal

right and whether defendants have a clear legal duty.

We owe no deference whatsoever to the previous rulings

by the Macomb Circuit Court, either in the 2015 case

Olejniczak v City of Warren Elections Comm (Case No.

2015-001304-AW) or in this case presently; and the

unpublished order of this Court in Olejniczak

has no

precedential value. See MCR 7.215(C). What would be

a settled rule would be a deﬁnitive construction from

this Court of the meaning of the Charter; as we held in

Barrow, “Upon review, if we in turn likewise determine

that Duggan did not meet the qualiﬁcations to be a

candidate for elected ofﬁce under the charter, plaintiff

would have a clear legal right to have Duggan’s name

removed from the list of candidates, the Election Com-

Olejniczak v Warren Elections Comm, unpublished order of the

Court of Appeals, entered June 11, 2015 (Docket No. 327779).

2019] B

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mission would have a clear legal duty to remove

Duggan’s name, the act would be ministerial because it

would not require the exercise of judgment or discre-

tion, and plaintiff would have no other legal or equi-

table remedy.” Barrow, 301 Mich App at 412-413 (em-

phasis added). Thus, even if defendants had simply

been relying on the city attorney’s interpretation of the

Charter and that interpretation could be considered

“difﬁcult,” “a clear, legal right is one clearly founded in,

or granted by, law; a right which is inferable as a

matter of law from uncontroverted facts regardless of

the difﬁculty of the legal question to be decided.” Berry

v Garrett, 316 Mich App 37, 41; 890 NW2d 882 (2016)

(quotation marks and citation omitted; emphasis

added). And here, the plain language of the Charter

states that a person is limited to serve a total of three

terms or 12 years in the position of city council mem-

ber.

Therefore, I would hold that the trial court did not

err by determining that plaintiff had a clear legal right

to the performance of the duty sought to be compelled,

i.e., the removal of the four individuals on the ballot for

city council. See Barrow, 301 Mich App at 412 (stating

that if the Court determines that a person is not

qualiﬁed to be a candidate, “plaintiff would have a

clear legal right” to have the person’s name removed

from the list of candidates).

II. DEFENDANTS HAD A CLEAR LEGAL DUTY TO REMOVE THE

NAMES FROM THE BALLOT AND THE ACT WAS MINISTERIAL

I also disagree with the majority’s view that defen-

dants did not have a clear legal duty to remove the

names from the ballot. Defendants argue that under

the Charter the duty of determining eligibility for the

ballot is vested in the Warren City Council. The Char-

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ter provides, in relevant part, that “[t]he council shall

be the judge of the election and qualiﬁcations of its

members, subject to the general election laws of the

state and review by the courts, upon appeal.” Charter,

§ 4.2 (emphasis added). The Charter thus does not give

unlimited discretion to the council; rather, it gives

council such discretion as is not limited by the “general

election laws of the state . . . .”

Such “general election

laws of the state” are precisely what we construed in

Barrow and under which “[i]t is undisputed that de-

fendants have the statutory duty to submit the names

of the eligible candidates for the primary election[.]”

Barrow, 301 Mich App at 412 (emphasis added); see

also MCL 168.719 (“The election commission of each

city and township shall perform those duties relative to

the preparation, printing, and delivery of ballots as are

required by law of the boards of county election com-

missioners.”). Consequently, and notwithstanding the

Charter, the courts have a duty to apply the “general

election laws of the state” regarding a candidate’s

eligibility for ofﬁce, even when that eligibility is lim-

ited by a provision of a city charter. See MCL

168.321(1).

Moreover, as we held in Barrow, 301 Mich App at

412, once a court determines that a candidate is legally

ineligible to run for ofﬁce, “the Election Commission

would have a clear legal duty to remove [the candi-

date’s] name[.]” This holding is supported by § 13.15(2)

of the Charter, which provides that one of the duties of

the election commission is “[t]o prepare and print

election ballots . . . for all city ofﬁcers for whom the

electors are entitled to vote . . . .” (Emphasis added.)

Nor could the charter grant unlimited discretion to the council. “No

provision of any city charter shall conﬂict with or contravene the

provisions of any general law of the state.” MCL 117.36.

2019] B

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Contrary to the majority, the Election Commission

makes that determination in the ﬁrst instance, not

after certiﬁcation by the County Board of Canvassers.

Further, “the act would be ministerial because it would

not require the exercise of judgment or discretion”; the

law leaves no discretion once a candidate’s ineligibility

is clear, “and plaintiff would have no other legal or

equitable remedy.” Id. at 412-413; see also Romulus

City Treasurer, 413 Mich at 744 (“[W]here the duty of

the public ofﬁcial is certain, the Court cannot in its

discretion deny the writ.”).

III. CONCLUSION

Accordingly, none of defendants’ arguments is per-

suasive on the question of whether there is more than

one class of council member; rather, there is only a

single class of city council member, as to whom the

Charter provides for a maximum of three terms in

ofﬁce or a total of 12 years. It is undisputed that the

four candidates here are incumbent council members

who have served or will have served those maximum

terms by the time of the 2019 election; they are thus

McLeod v State Bd of Canvassers, 304 Mich 120; 7 NW2d 240 (1942),

and the line of cases the majority cites arguably have been supplanted

by MCL 168.323, which imposed on city election commissioners the duty

to prepare the primary ballots; that provision was enacted by 1954 PA

116 after McLeod had been decided (and was nonsubstantively amended

by 2013 PA 51) and therefore may have superseded the caselaw. See

Associated Builders & Contractors v City of Lansing, 499 Mich 177, 191

n 32; 880 NW2d 765 (2016) (stating that while the Court of Appeals

normally is bound to follow decisions of the Supreme Court, “lower

courts have the power to make decisions without being bound by prior

cases that were decided under the now-repudiated previous positive

law”). We need not decide that issue here, and I express no opinion as to

it because the premise of the majority’s citation of McLeod, that the

Charter makes the council the sole and exclusive judge of the qualiﬁca-

tions of its members, is inapplicable.

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ineligible under the Charter. Therefore, the Warren

City Election Commission was duty-bound to remove

the names of those individuals from the ballot. Because

the trial court correctly ordered mandamus requiring

the Warren City Election Commission to do so, I would

afﬁrm the trial court’s judgment.

2019] B

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HOME-OWNERS INSURANCE COMPANY v PERKINS

Docket No. 344926. Submitted April 9, 2019, at Grand Rapids. Decided

June 11, 2019, at 9:00 a.m.

Home-Owners Insurance Company ﬁled an action in the Cass Circuit

Court against Nancy Perkins, claiming that she had breached the

homeowner’s insurance policy she had with plaintiff by submitting

a claim that was knowingly inaccurate and exaggerated, by failing

to comply with certain terms of the contract, and by concealing

material facts and circumstances. On March 4, 2015, defendant’s

home and personal possessions were destroyed by a ﬁre; defendant

immediately notiﬁed plaintiff of her loss and later submitted a

proof-of-loss form detailing the personal possessions she had lost

and an estimate of their value. On August 28, 2015, plaintiff denied

defendant’s claim, alleging that defendant had committed arson,

had misrepresented facts in her claim of loss, and had failed to

comply with other policy terms. Plaintiff sent the denial letter by

certiﬁed mail to defendant in care of her then attorney. Defendant

averred that she never received the notiﬁcation. On October 5,

2016, plaintiff ﬁled this action against defendant, seeking to

recover the amount it had paid Fifth Third Bank—the mortgagee

of defendant’s house—under the terms of the policy. Defendant

denied the allegations and ﬁled a counterclaim against plaintiff,

alleging that it had breached the insurance policy by denying her

claim and seeking the full beneﬁts due under the policy. Plaintiff

moved for summary disposition, asserting that defendant’s coun-

terclaim was barred by the policy’s limitations period. The policy

provided that plaintiff could not be sued unless there was full

compliance with all the terms of the policy and that suit must be

brought within one year after the loss or damage occurred (the

suit-against-us provision); plaintiff asserted that the counterclaim

was similarly barred by the one-year limitations period in MCL

500.2833(1)(q). Each limitations period contained speciﬁc language

that would toll the one-year period. Plaintiff asserted that defen-

dant’s claim accrued when it formally denied the claim by letter on

August 28, 2015, and that her February 2017 counterclaim should

be dismissed because it was not ﬁled within one year of the denial

notice. Defendant argued that plaintiff’s lawsuit was barred be-

cause the statutory one-year limitations period applied to all

570 328

ICH

570 [June

actions brought under the policy, not just to actions by the insured;

alternatively, defendant asserted that plaintiff had waived the

statute-of-limitations defense by ﬁling its claim after the one-year

period of limitations had expired and that plaintiff should be

estopped from enforcing the one-year limitations period because

plaintiff had purposefully waited until the period had expired to

sue her, which was prejudicial to her. The court, Susan L. Dobrich,

J., dismissed defendant’s counterclaim, reasoning that defendant

had notiﬁed plaintiff of the denial of her claim when it sent the

August 28, 2015 letter to her attorney, that defendant failed to ﬁle

her counterclaim within one year of the denial, and that defen-

dant’s waiver and estoppel arguments lacked merit. In an unpub-

lished order entered April 10, 2018, the Court of Appeals denied

defendant’s delayed application for leave to appeal (Docket No.

340933). In the trial court, defendant moved to submit to the jury

proof of her counterclaim as well as the waiver issue; the court

denied her motion. The trial court then sua sponte dismissed

plaintiff’s complaint, concluding that MCL 500.2833(1)(q) applied

to actions by insurers as well as insureds and that, therefore,

plaintiff had failed to ﬁle its claim within the one-year limitations

period. Defendant appealed, and plaintiff cross-appealed.

The Court of Appeals held:

1. MCL 500.2833(1)(q) provides that (1) an action under a ﬁre

insurance policy may be commenced only after compliance with the

policy requirements, (2) an action must be commenced within one

year after the loss or within the period speciﬁed in the policy,

whichever is longer, and (3) the time for commencing an action is

tolled from the time the insured notiﬁes the insurer of the loss until

the insurer formally denies liability. Given the dictionary deﬁni-

tions of the words “an” and “action,” the phrase “an action” in MCL

500.2833(1)(q) plainly means any civil proceeding under the policy;

the statute does not differentiate between an action brought by

either the insured or the insurer. Accordingly, under the provision,

any civil action under a ﬁre insurance policy may be commenced

only after compliance with the policy’s requirements and the action

must be commenced within one year after the loss (unless the

policy speciﬁes a longer period), taking into consideration any

period for which the action is tolled. Under MCL 500.2860, any

provision of a ﬁre insurance policy that is contrary to Chapter 28 of

the Insurance Code, MCL 500.100 et seq., is void; when an

insurance policy provision is void, the relevant statutorily man-

dated provision takes its place. In this case, the ﬁre insurance

policy speciﬁcally provided that the one-year limitations period

applies only to actions brought by an insured. Because the policy

2019] H

OME

-O

WNERS V

ERKINS

571

conﬂicted with the MCL 500.2833(1)(q) mandate that the limita-

tions period applies to any civil proceeding—not just to those

brought by an insured—the suit-against-us provision in the policy

was void under MCL 500.2860 and the limitations period set forth

in MCL 500.2833(1)(q) applied to plaintiff’s claim and defendant’s

counterclaim. Because both parties ﬁled their claims after the

one-year period of limitations had expired, the trial court correctly

dismissed both claims.

2. A waiver is the intentional and voluntary relinquishment of

a known right. A valid waiver may be shown by express declara-

tions or by declarations that manifest the parties’ intent and

purpose, or be an implied waiver, evidenced by a party’s decisive,

unequivocal conduct reasonably implying the intent to waive. In

this case, plaintiff did not waive its right to enforce the limitations

period against defendant by ﬁling its own complaint outside the

limitations period; the issue of waiver was not a factual question

for the jury because defendant presented no record evidence from

which a jury could reasonably infer an intent by plaintiff to waive

the limitations period. Therefore, the trial court correctly deter-

mined that defendant’s waiver argument lacked merit.

3. Estoppel by laches is the failure to do something which

should be done under the circumstances or the failure to claim or

enforce a right at a proper time; it is an equitable tool used to

provide a remedy for the inconvenience resulting from a plain-

tiff’s delay in asserting a legal right that was practicable to

assert. In this case, plaintiff did not deny defendant an opportu-

nity to discover that it had denied her claim; instead, plaintiff

sent the denial letter to defendant’s attorney. Plaintiff’s failure to

ﬁle its claim against defendant within the one-year limitations

period did not prevent defendant from ﬁling her own action

within that period, and plaintiff’s untimely ﬁling was not evi-

dence of its intent to delay. Accordingly, the trial court correctly

rejected defendant’s estoppel argument.

Afﬁrmed.

NSURANCE

— F

IRE

NSURANCE

OLICIES

— C

LAIMS

— L

IMITATION OF

CTIONS

—

ORDS AND

HRASES

— “A

CTION

.”

MCL 500.2833(1)(q) provides that (1) an action under a ﬁre insur-

ance policy may be commenced only after compliance with the

policy requirements, (2) an action must be commenced within one

year after the loss or within the period speciﬁed in the policy,

whichever is longer, and (3) the time for commencing an action is

tolled from the time the insured notiﬁes the insurer of the loss until

the insurer formally denies liability; the phrase “an action” in

572 328

ICH

570 [June

MCL 500.2833(1)(q) means any civil proceeding under the policy;

the statute does not differentiate between actions brought by the

insured and those brought by the insurer.

Yeager, Davison & Day, PC (by Phillip K. Yeager and

Renee L. Malkowski) for plaintiff.

Robert W. Mysliwiec for defendant.

Before: B

ECKERING

, P.J., and S

ERVITTO

and S

TEPHENS

JJ.

URIAM

. In this insurance dispute, defendant,

Nancy Perkins, appeals by right the trial court’s order

dismissing plaintiff Home-Owners Insurance Compa-

ny’s claim against her and the order dismissing her

counterclaim against plaintiff. Plaintiff cross-appeals

the trial court’s order dismissing its claim against

defendant. At issue in this ﬁre-damage case is the

proper interpretation of MCL 500.2833(1)(q) and its

impact on the viability of each party’s claim. For the

reasons set forth in this opinion, we afﬁrm.

I. RELEVANT FACTS AND PROCEEDINGS

The underlying facts are not in dispute. Plaintiff

issued a homeowner’s insurance policy to defendant for

accidental loss and damage to property located in Niles,

Michigan. The policy term was from December 6, 2014

to December 6, 2015, and included coverage of $129,000

on her dwelling, $90,300 on her personal property,

$32,500 for additional living expenses, and further

coverages for debris removal at the property location.

On March 4, 2015, ﬁre substantially destroyed defen-

dant’s home and personal possessions. She immediately

notiﬁed plaintiff of her loss. Subsequently, she prepared

and submitted an inventory of her personal possessions

based on her best guess of the age and purchase price of

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573

the items she could recall being in her house, and she

submitted a proof-of-loss form based on this inventory.

On August 28, 2015, plaintiff wrote a letter to defendant

formally denying her insurance claim, alleging that she

had committed arson, misrepresented facts in her claim

of loss, and failed to comply with other provisions in the

ﬁre insurance policy. Plaintiff mailed the letter to defen-

dant in care of her attorney at the time, James Jesse.

Plaintiff sent the letter by certiﬁed mail, and Jeannette

Jesse signed for it on September 11, 2015. Defendant

averred in an afﬁdavit submitted to the trial court that

she did not receive plaintiff’s denial letter.

On October 5, 2016, plaintiff ﬁled suit against defen-

dant, alleging that defendant breached the insurance

contract by submitting a claim that was “knowingly

inaccurate and grossly exaggerated,” by failing to com-

ply with certain terms of the contract, and by concealing

material facts and circumstances about her loss “as part

of an effort to fraudulently induce” plaintiff to pay her

claim. Because of these alleged breaches, plaintiff as-

serted, it had been obligated to pay $56,750 to Fifth

Third Bank, the mortgagee of defendant’s house. Plain-

tiff sought a judgment against defendant for $56,750.

On February 6, 2017, defendant ﬁled an answer

denying plaintiff’s allegations. Along with her answer,

she ﬁled a counterclaim alleging that plaintiff had

breached the policy of insurance by wrongfully denying

her claim for coverage under the policy after the ﬁre.

She sought the full beneﬁts due under the policy, as well

as 12% statutory interest under MCL 500.2006.

Plaintiff ﬁled an answer and afﬁrmative defenses to

MCL 500.2006(4) provides, in relevant part:

If beneﬁts are not paid on a timely basis, the beneﬁts paid bear

simple interest from a date 60 days after satisfactory proof of loss

was received by the insurer at the rate of 12% per annum, if the

574 328

ICH

570 [June

the counterclaim, and on April 10, 2017, ﬁled a motion

for summary disposition under MCR 2.116(C)(7) (stat-

ute of limitations). In its supporting brief, plaintiff

argued that the applicable limitations period in the

policy and in MCL 500.2833(1)(q) barred defendant’s

counterclaim.

MCL 500.2833(1) mandates the con-

tents required in every ﬁre insurance policy issued or

delivered in Michigan. Subdivision (q) requires ﬁre

insurance policies to contain a provision declaring:

That an action under the policy may be commenced

only after compliance with the policy requirements. An

action must be commenced within 1 year after the loss or

within the time period speciﬁed in the policy, whichever is

longer. The time for commencing an action is tolled from

the time the insured notiﬁes the insurer of the loss until

the insurer formally denies liability.

In purported compliance with this statutory man-

date, the ﬁre insurance policy plaintiff issued to defen-

dant contains an amendment to its property-protection

section that the parties refer to as the “suit against us”

provision and that states:

We may not be sued unless there is full compliance

with all the terms of this policy. Suit must be brought

within one year after the loss or damage occurs. The time

for commencing a suit is tolled from the time you notify

us of the loss or damage until we formally deny liability

for the claim.

Plaintiff argued that defendant’s claim accrued

when it formally denied her claim in the August 28,

2015 letter. Under the terms of the suit-against-us

claimant is the insured or a person directly entitled to beneﬁts

under the insured’s insurance contract.

Neither party disputes the applicability of MCL 500.2833 with

respect to the insurance policy at issue in this case; rather, they dispute

its proper interpretation.

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575

provision, defendant had until August 28, 2016, to ﬁle

a suit against plaintiff. According to plaintiff, defen-

dant’s February 2017 counterclaim was well outside

this one-year period and, therefore, it was barred by

the suit-against-us provision in the policy and by MCL

500.2833(1)(q).

In her response to plaintiff’s motion to dismiss,

defendant argued that MCL 500.2833(1)(q) referred to

all actions under the policy, not just actions ﬁled by the

insured. Thus, to comply with the statute, the one-year

period in the suit-against-us provision had to be inter-

preted to apply to both plaintiff and defendant, and by

ﬁling its own suit after the limitations period expired,

plaintiff had intentionally waived the statute-of-

limitations defense with respect to defendant’s claim.

Defendant argued in the alternative that even if the

suit-against-us provision were interpreted to apply

only to insureds, the trial court should estop plaintiff

from enforcing the one-year limitations period because

plaintiff purposefully waited until the period had ex-

pired before suing her. This delay was clearly prejudi-

cial to defendant because it deprived her of the knowl-

edge that plaintiff had denied her claim and, thus,

prevented her from ﬁling suit during the one-year

period. Defendant contended that estoppel by laches

applied regardless of whether plaintiff’s delay was

intentional or merely dilatory.

In reply, plaintiff asserted that the language in MCL

500.2833(1)(q), as well as that of the suit-against-us

provision, applied only to the insured. Plaintiff did not

address defendant’s waiver argument but contended

that defendant could not use the doctrine of estoppel to

circumvent the clear and unambiguous language of the

ﬁre insurance policy and that the court certainly could

not use estoppel to reform a statute. Finally, plaintiff

576 328 M

ICH

570 [June

argued that if the court determined that the language

in the statute applied to both the insurer and the

insured, then the remedy was to dismiss both actions.

The parties’ arguments at the June 5, 2017 hearing

on plaintiff’s motion for summary disposition were

consistent with their briefs. Ruling from the bench, the

trial court found that plaintiff had notiﬁed defendant

of the denial of her claim by sending the August 28,

2015 letter to attorney Jesse and that it was Jesse’s

responsibility to deliver the denial letter to defendant.

No evidence indicated that plaintiff had attempted to

lull defendant into thinking it had approved her com-

plaint until the limitations period expired. After deter-

mining that waiver and estoppel did not apply as a

matter of law, the trial court granted plaintiff’s motion

for summary disposition of defendant’s counterclaim.

The court noted that the question remained whether

the one-year period in the suit-against-us provision

also barred plaintiff’s claim but observed that this

issue was not before the court because defendant had

not ﬁled a motion for summary disposition based on

the untimeliness of plaintiff’s complaint. The court

entered a corresponding order on June 16, 2017.

Subsequently, defendant ﬁled two motions for recon-

sideration. The trial court denied both motions.

Defen-

dant also ﬁled motions seeking permission to present

to the jury the evidence supporting her counterclaim

or, alternatively, to adjourn the trial so that she could

pursue appellate review of the trial court’s order grant-

ing plaintiff summary disposition of her counterclaim.

In its order denying defendant’s second motion for reconsideration,

the trial court again noted that plaintiff had ﬁled its complaint after the

one-year period and that whether plaintiff could proceed on its com-

plaint was not before the court because defendant had not ﬁled a motion

for summary disposition.

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577

The trial court granted defendant’s request for alter-

native relief and adjourned the trial, but defendant’s

delayed application for leave to appeal in this Court

was unsuccessful. Home-Owners Ins Co v Perkins,

unpublished order of the Court of Appeals, entered

April 10, 2018 (Docket No. 340933).

After this Court denied her application, defendant

ﬁled a renewed motion to submit to the jury proof of

her counterclaim as well as the waiver issue. At the

end of the hearing on defendant’s motion, the trial

court indicated that it had repeatedly encouraged

defendant to ﬁle a motion for summary disposition to

put the question of whether MCL 500.2833(1)(q) ap-

plied to insurers as well as insureds squarely before

the court, but defendant had not. The trial court denied

defendant’s renewed motion, but it ruled that MCL

500.2833(1)(q) applies to actions by both insurers and

insureds. Because plaintiff had ﬁled its complaint after

the one-year limitations period, the court dismissed

plaintiff’s claim sua sponte.

II. ANALYSIS

A. STANDARDS OF REVIEW

We review de novo questions of statutory interpre-

tation, Allstate Ins Co v State Farm Mut Auto Ins Co,

321 Mich App 543, 550; 909 NW2d 495 (2017), as well

as the interpretation of clear contractual language,

DeFrain v State Farm Mut Auto Ins Co, 491 Mich 359,

366-367; 817 NW2d 504 (2012). “Waiver is a mixed

question of law and fact. The deﬁnition of waiver is a

matter of law, but whether the facts of a particular case

constitute a waiver is a question of fact.” Sweebe v

Sweebe, 474 Mich 151, 154; 712 NW2d 708 (2006)

(citation omitted). “We review for clear error a trial

578 328 M

ICH

570 [June

court’s ﬁndings of fact and review de novo its conclu-

sions of law.” Reed Estate v Reed, 293 Mich App 168,

173; 810 NW2d 284 (2011). “A ﬁnding is clearly erro-

neous when, although there is evidence to support it,

the reviewing court on the entire record is left with the

deﬁnite and ﬁrm conviction that a mistake has been

committed.” Id. at 174-175 (quotation marks and cita-

tion omitted). We also review de novo a trial court’s

decision whether to apply equitable doctrines such as

laches. Knight v Northpointe Bank, 300 Mich App 109,

113; 832 NW2d 439 (2013).

B. LIMITATIONS PERIOD

In their respective appeals, the parties dispute the

proper interpretation of MCL 500.2833(1)(q) and

whether the statute’s period for ﬁling claims applies

only to actions by insureds, as contended by plaintiff,

or whether it applies to all actions under the policy

including those by insurers, as contended by defen-

dant. This issue presents a matter of ﬁrst impression.

Given the plain language of the statute, we conclude

that defendant is correct.

In relevant part, MCL 500.2833(1) provides that

“[e]ach ﬁre insurance policy issued or delivered in this

state shall contain the following provisions:”

That an action under the policy may be commenced only

after compliance with the policy requirements. An action

must be commenced within 1 year after the loss or within

the time period speciﬁed in the policy, whichever is longer.

The time for commencing an action is tolled from the time

the insured notiﬁes the insurer of the loss until the insurer

formally denies liability. [MCL 500.2833(1)(q).]

“The primary goal of statutory interpretation is to give

effect to the intent of the Legislature.” Allstate Ins Co,

321 Mich App at 551 (quotation marks and citation

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579

omitted). The ﬁrst criterion in determining intent is

the speciﬁc language of the statute. US Fidelity

& Guaranty Co v Mich Catastrophic Claims Ass’n (On

Rehearing), 484 Mich 1, 13; 795 NW2d 101 (2009).

Courts presume the Legislature to have intended the

meaning it plainly expressed. Joseph v Auto Club Ins

Ass’n, 491 Mich 200, 206; 815 NW2d 412 (2012). “If the

language of a statute is clear and unambiguous, the

statute must be enforced as written and no further

judicial construction is permitted.” Allstate Ins Co, 321

Mich App at 551 (quotation marks and citation omit-

ted). “A court may go beyond the statutory text to

ascertain legislative intent only if an ambiguity exists

in the language of the statute. But a statutory provi-

sion is ambiguous only if it irreconcilably conﬂicts with

another provision or is equally susceptible to more

than a single meaning.” Id. at 551-552 (citation omit-

ted).

MCL 500.2833(1)(q) provides that “an action under

the policy may be commenced,” that “[a]n action must

be commenced within 1 year after the loss,” and that

“[t]he time for commencing an action is tolled . . . .”

(Emphasis added.) The word “an” is an indeﬁnite

article, which can signify “any,” Meriam-Webster’s Col-

legiate Dictionary (11th ed), pp 1, 43, and the word

“action” refers generally to “any civil or criminal pro-

ceeding,” Black’s Law Dictionary (10th ed), p 35. Ac-

cordingly, with respect to the instant dispute, “an

action” signiﬁes any civil proceeding brought under the

policy. Nothing in the plain language of MCL

500.2833(1)(q) narrows the meaning of “an action” to

only those civil proceedings brought by the insured.

Further, “an action” is not “equally susceptible” to

more than a single meaning, such as “certain actions”

or “the action,” nor does interpreting “an action” as

“any civil proceeding” irreconcilably conﬂict with other

580 328 M

ICH

570 [June

provisions in the statute. Accordingly, no ambiguity

exists in the language of the statute. See Allstate Ins

Co, 321 Mich App at 551-552. Hence, the statute

plainly means that any civil action under a ﬁre insur-

ance policy may be commenced only after compliance

with the policy’s requirements and that the action

must be commenced within one year after the loss

(unless the policy speciﬁes a longer period), with due

consideration taken for any period of tolling. Given its

plain expression, this is presumably the intent of the

Legislature. Joseph, 491 Mich at 206.

Plaintiff contends that we should interpret MCL

500.2833 to mean the same thing as its predecessor

statute, MCL 500.2832.

MCL 500.2832, as amended

by 1987 PA 168, stated, in relevant part, “No suit or

action on this policy for the recovery of any claim shall

be sustainable in any court of law or equity unless all

the requirements of this policy shall have been com-

plied with, and unless commenced within twelve

months next after inception of the loss.” (Emphasis

added.) Plaintiff maintains that only insureds ﬁle

claims and suits or actions for recovery of their claims,

so one should interpret “an action” in MCL 500.2833 as

an action “for recovery of any claim.” We disagree.

“[T]his Court must assume that an express legislative

change denotes either a change in the meaning of the

statute itself or a clariﬁcation of the original legislative

intent of the statute.” Bush v Shabahang, 484 Mich 156,

169-170; 772 NW2d 272 (2009), citing Lawrence Baking

Co v Unemployment Compensation Comm, 308 Mich

198, 205; 13 NW2d 260 (1944). Accordingly, this Court

cannot assume that the change means nothing at

all. Bush, 484 Mich at 170. The Legislature repealed

1990 PA 305 repealed MCL 500.2832 and replaced it with MCL

500.2833. The repeal of § 2832 took effect on January 1, 1992.

2019] H

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MCL 500.2832 and replaced it with MCL 500.2833,

changing the relevant language from “suit or action on

this policy for the recovery of any claim” to “an action

under the policy . . . .” As indicated earlier, applying the

principles of statutory construction to the phrase “an

action under the policy” results in the meaning of “any

civil proceeding under the policy,” a phrase that in-

cludes, but is broader than, the § 2832 language of a

“suit or action . . . for the recovery of any claim . . . .”

Assuming that the change in language from § 2832 to

§ 2833 means something and that the Legislature in-

tends the meaning plainly expressed in § 2833, it cannot

then reasonably be maintained that “an action under

the policy” means the same thing as a “suit or action on

this policy for the recovery of any claim . . . .” See Bush,

484 Mich at 170; Joseph, 491 Mich at 206.

Plaintiff also contends that allowing a party to bring

an action “only after compliance with the policy re-

quirements” is another clue that MCL 500.2833(1)(q)

refers only to insureds because only insureds have

policy requirements with which they must comply

before ﬁling an action. (Emphasis added.) This asser-

tion is belied by the case at bar. Plaintiff asserts in its

complaint that it was “obligated” to pay $56,750 to

Fifth Third Bank, defendant’s mortgagee, and that it is

bringing this action as a subrogee of the bank. These

assertions illustrate that there were policy-based re-

quirements plaintiff had to fulﬁll before it could ﬁle

suit against defendant. Speciﬁcally, according to the

mortgage clause in the ﬁre insurance policy, plaintiff

had to “pay the mortgagee any sum for loss under this

policy . . . .” Only then would plaintiff meet the re-

quirements set forth in the policy that allowed it to sue

defendant as the bank’s subrogee. Therefore, plaintiff

also had policy requirements to comply with before it

could bring this civil proceeding against defendant.

582 328 M

ICH

570 [June

Plaintiff next argues that interpreting the policy and

the statute to apply the limitations period to insurers

would be illogical for two reasons. The ﬁrst reason is

essentially that such interpretation would contradict

the understanding plaintiff has of the statute’s mean-

ing. We have already addressed the proper interpreta-

tion of MCL 500.2833(1)(q). The second reason is that

“there are situations where an insurer’s cause of action

would accrue outside that time.” In light of the tolling

period from the time the insured notiﬁes the insurer of

the loss until the insurer formally denies liability, it is

not clear that plaintiff is correct in this assertion. Even

so, this is not a reason to read into the statute a

restriction contrary to the language of the statute. The

plain language of MCL 500.2833(1)(q) applies to “an

action” without distinguishing between whether the

insured or the insurer ﬁles the action. Where, as here,

“the language of the statute is clear, we presume that

the Legislature intended the meaning it expressed.”

Reynolds v Bureau of State Lottery, 240 MichApp 84, 87;

610 NW2d 597 (2000). Further, that MCL 500.2832

applied the limitations period to suits “for the recovery

of any claim” under the policy signiﬁes that the Legis-

lature knew how to restrict applicability of the limita-

tions period in the current statute to insureds had it

elected to do so. See Inter Coop Council v Dep’t of

Treasury, 257 Mich App 219, 227-228; 668 NW2d 181

(2003) (explaining that the Legislature is presumed to

be aware of the principles of statutory construction and

to know of existing laws on the same subject when it

enacts new laws). It did not, and this Court “may not

rewrite the plain language of the statute and substitute

[its] own policy decisions for those already made by the

Legislature.” McGhee v Helsel, 262 Mich App 221, 226;

686 NW2d 6 (2004).

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In the instant matter, the suit-against-us provision

in the ﬁre insurance policy set forth a one-year limita-

tions period applicable only to actions brought by the

insured. As defendant correctly argues, this is contrary

to the mandate set forth in MCL 500.2833(1)(q). There-

fore, the suit-against-us provision is absolutely void.

MCL 500.2860.

When a provision in a ﬁre insurance

policy is absolutely void, the relevant statutorily man-

dated provision takes its place. Randolph v State Farm

Fire & Cas Co, 229 Mich App 102, 105-107; 580 NW2d

903 (1998); see also Jimenez v Allstate Indemnity Co,

765 F Supp 2d 986, 994-995 (ED Mich, 2011).

Conse-

quently, the one-year period of limitations, with tolling,

provided by MCL 500.2833(1)(q) should be read into

defendant’s ﬁre insurance policy. Id. Because both

parties ﬁled their actions after the applicable period

set forth in MCL 500.2833(1)(q), both of their actions

were subject to dismissal under MCR 2.116(C)(7) un-

less any of defendant’s equitable arguments have

merit, which we will address in turn.

C. WAIVER

Defendant contends that plaintiff’s ﬁling of its com-

plaint beyond the one-year limitations period consti-

tuted an offer to waive enforcement of the limitations

Under MCL 500.2860, “[a]ny provision of a ﬁre insurance policy,

which is contrary to the provisions of this chapter, shall be absolutely

void, and an insurer issuing a ﬁre insurance policy containing any such

provision shall be liable to the insured under the policy in the same

manner and to the same extent as if the provision were not contained in

the policy.”

The decisions of lower federal courts are not binding on this Court,

but they may be persuasive. Abela v Gen Motors Corp, 469 Mich 603,

607; 677 NW2d 325 (2004).

Although plaintiff does not raise it as an issue, given the trial court’s

interpretation of MCL 500.2833(1)(q), we ﬁnd no fault in the court’s

584 328

ICH

570 [June

period and to litigate the insurance policy and that her

ﬁling a counterclaim constituted acceptance of plain-

tiff’s offer. Thus, according to defendant, the parties

mutually modiﬁed the insurance policy to waive the

one-year limitations period. Plaintiff denies having

waived the one-year limitations period and contends

that if MCL 500.2833(1)(q) is interpreted to apply to

both parties, the proper result is dismissal of both

claims.

An insurance policy is “subject to the same contract

construction principles that apply to any other species

of contract.” Rory v Continental Ins Co, 473 Mich 457,

461; 703 NW2d 23 (2005). “[U]nless a contract provi-

sion violates law or one of the traditional defenses to

the enforceability of a contract applies, a court must

construe and apply unambiguous contract provisions

as written.” Id. Traditional defenses include waiver

and estoppel. Id. at 470 n 23.

A waiver is “the intentional and voluntary relin-

quishment of a known right.” Moore v First Security

Cas Co, 224 Mich App 370, 376; 568 NW2d 841 (1997).

“[A] valid waiver may be shown by express declara-

tions or by declarations that manifest the parties’

intent and purpose, or be an implied waiver, evidenced

by a party’s decisive, unequivocal conduct reasonably

inferring the intent to waive.” Patel v Patel, 324 Mich

App 631, 634; 922 NW2d 647 (2018) (quotation marks

and citations omitted). “[M]utuality is the centerpiece

to waiving or modifying a contract,” and “a party

alleging a waiver or modiﬁcation must establish a

mutual intention of the parties to waive or modify the

original contract.” Quality Prod & Concepts Co v Nagel

Precision, Inc, 469 Mich 362, 364, 372; 666 NW2d 251

decision to summarily dismiss plaintiff’s action without a formal motion

being ﬁled by defendant. MCR 2.116(I)(1).

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585

(2003). “This mutuality requirement is satisﬁed where

a waiver or modiﬁcation is established through clear

and convincing evidence of a written agreement, oral

agreement, or afﬁrmative conduct establishing mutual

agreement to modify or waive the particular original

contract.” Id. at 364-365. When a party “relies on a

course of conduct to establish waiver or modiﬁcation,

the law of waiver directs our inquiry and the signiﬁ-

cance of written modiﬁcation and anti-waiver provi-

sions regarding the parties’ intent is increased.” Id. at

365. “Mere knowing silence generally cannot consti-

tute waiver.” Id. “The party asserting the waiver bears

the burden of proof.” Cadle Co v Kentwood, 285 Mich

App 240, 255; 776 NW2d 145 (2009).

Defendant does not contend that the parties ex-

pressly waived the one-year limitations period in the

ﬁre insurance policy. Rather, the gravamen of her

argument is that by ﬁling its complaint beyond the

limitations period, plaintiff signaled its intent to waive

the limitations period and to litigate the ﬁre insurance

policy. As support for this position, defendant relies on

Capital Mtg Corp v Coopers & Lybrand, 142 Mich App

531; 369 NW2d 922 (1985), which entailed a lawsuit

arising out of the defendant accounting ﬁrm’s failure

during a routine audit to detect embezzlement perpe-

trated by employees of the plaintiff mortgage company.

Defendant’s reliance is misplaced.

During the course of the dispute underlying Capital

Mtg Corp, the trial court granted the accounting ﬁrm’s

motion to add the mortgage company’s insurer to the

dispute as a party plaintiff. Id. at 533. After a jury

returned a verdict in favor of the mortgage company,

the accounting ﬁrm moved for summary disposition,

asserting that it was entitled to arbitrate its liability to

the insurer under a decades-old agreement between

586 328 M

ICH

570 [June

the accounting ﬁrm and a company whose obligations

the insurer had assumed in a merger. Id. at 534. The

trial court agreed and ordered the matter to arbitra-

tion. Id. The insurer appealed the trial court’s order,

and this Court reversed the trial court’s order, conclud-

ing that the accounting ﬁrm’s action of moving for

summary disposition constituted an implied waiver of

the arbitration agreement. Id. at 536. The Court stated

that a waiver is implied “when a party actively partici-

pates in litigation or acts in a manner inconsistent

with its right to proceed to arbitration.” Id. at 535. The

Court reasoned that while the stated purpose of the

arbitration agreement between the accounting ﬁrm

and the insurer was to “avoid insurer-accountant law-

suits,” the accounting ﬁrm had disavowed that purpose

by bringing the insurer into its lawsuit with the

mortgage company and by ﬁling a motion for summary

disposition, “indicat[ing] an election to proceed other

than by arbitration.” Id. at 535-536.

Defendant argues that just as the accounting ﬁrm in

Capital Mtg Corp revoked the arbitration agreement

by joining the insurer to the underlying lawsuit, so also

plaintiff revoked the one-year limitations period by

ﬁling its complaint beyond the limitations period.

Defendant’s analogy is inapt because plaintiff did not

act inconsistently with the rights granted it by its

insurance contract with defendant. In Capital Mtg

Corp, by acting contrary to its right under the arbitra-

tion agreement, the accounting ﬁrm impliedly rejected

the agreement and waived the right to arbitrate. In the

case at bar, the suit-against-us provision in the insur-

ance policy did not limit the time in which plaintiff

could sue, although in contravention of MCL

500.2833(1)(q). Thus, when plaintiff ﬁled its complaint

against defendant, it was not disavowing any clause in

the contractual agreement it had with defendant

2019] H

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thereby inviting defendant to do the same. Thus,

Capital Mtg Corp does not compel us to conclude that

by ﬁling a complaint outside the limitations period,

plaintiff revoked its right to enforce the limitations

period against defendant.

Defendant next argues that whether plaintiff in-

tended to waive the limitations period by ﬁling an

untimely complaint should at least be a question of fact

for the jury to resolve. However, apart from the fact

that plaintiff ﬁled its complaint more than a year after

denying defendant’s claim, defendant points to no

record evidence from which a jury could reasonably

infer plaintiff’s intent to waive. See Patel, 324 Mich

App at 634. In fact, copious record evidence clearly

indicates plaintiff’s intent not to waive, not the least of

which is plaintiff’s acknowledgment against its own

interest that if insurers are subject to the one-year

limitations period, then the limitations period bars its

complaint and, for that matter, defendant’s assertion

that plaintiff waited to ﬁle its suit in order to sandbag

her until after her right to sue expired. In sum,

although defendant may be eager to dispense with the

one-year limitations period to save her counterclaim,

she cannot do so unilaterally and she has not met her

burden to establish by clear and convincing evidence a

mutual intent to waive the limitations period. See

Quality Prod & Concepts Co, 469 Mich at 372; Cadle

Co, 285 Mich App at 255.

D. ESTOPPEL

Finally, defendant contends that plaintiff’s delay in

ﬁling suit prejudiced her by depriving her of the

opportunity to learn that plaintiff had denied her

insurance claim and, consequently, of her opportunity

to timely ﬁle a counterclaim. On that basis, defendant

588 328 M

ICH

570 [June

asserts that plaintiff should be estopped from enforc-

ing the one-year limitations period to bar her counter-

claim. We disagree.

“Estoppel by laches is the failure to do something

which should be done under the circumstances or the

failure to claim or enforce a right at a proper time.”

Wells Fargo Bank, NA v Null, 304 Mich App 508, 537;

847 NW2d 657 (2014) (quotation marks and citation

omitted). “To successfully assert laches as an afﬁrma-

tive defense, a defendant must demonstrate prejudice

occasioned by the delay.” Id. at 538 (quotation marks

and citation omitted). Typically, “[l]aches is an equi-

table tool used to provide a remedy for the inconve-

nience resulting from the plaintiff’s delay in asserting

a legal right that was practicable to assert.” Knight,

300 Mich App at 115. A party “guilty of laches” is

“estopped” from asserting a right it could have and

should have asserted earlier. See Presque Isle Co v

Presque Isle Co Savings Bank, 315 Mich 479, 489; 24

NW2d 186 (1946).

As the trial court found, the record establishes that

plaintiff did not deny defendant an opportunity to

learn that her insurance claim had been denied in time

to ﬁle her own suit. Plaintiff sent a denial letter

dated August 28, 2015, to defendant in care of her

then attorney, whose ofﬁce signed for the letter on

September 11, 2015. At that point, the responsibility

fell to defendant’s attorney to pass the letter along to

defendant. That he apparently did not may give defen-

dant cause to raise concerns about her attorney, but it

does not support her laches argument. Even if defen-

dant’s attorney did not pass the denial letter along to

her, defendant was aware that she had heard nothing

from the insurance company and had received no

2019] H

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589

insurance money; nevertheless, she slept on her right

to seek enforcement of the policy for over a year.

Defendant intimates that plaintiff intentionally de-

layed in ﬁling its lawsuit in order to prevent her from

timely ﬁling her own action within the one-year limi-

tations period. However, plaintiff’s failure to ﬁle its

action under the policy in no way prevented defendant

from ﬁling her own action under the policy. In any

event, it is apparent from the suit-against-us clause in

the insurance policy that plaintiff did not deem itself

bound by the limitations period set forth in MCL

500.2833(1)(q). Accordingly, the untimely ﬁling of

plaintiff’s complaint is not evidence of plaintiff’s intent

to delay.

Finally, assuming for the sake of argument that

laches does apply, the remedy would be to estop plain-

tiff from asserting its subrogee claim against defen-

dant, not to ignore enforcement of the limitations

period. See Lothian v Detroit, 414 Mich 160, 175; 324

NW2d 9 (1982) (stating that laches is “a cut-off mea-

sure, interposed as a defense designed to lay to rest

claims which are stale as well as prejudicial to the

defendant”). Defendant cites no authority for the

proposition that when a party sleeps on one right,

estoppel by laches operates to prevent that party from

asserting a different right, one on which the party has

not slept. See MCR 7.212(C)(7); Woods v SLB Prop

Mgt, LLC, 277 Mich App 622, 626; 750 NW2d 228

(2008) (noting that appellants must support their ar-

guments by citation to appropriate authority).

III. CONCLUSION

The suit-against-us provision in the ﬁre insurance

policy does not comply with MCL 500.2833(1)(q) be-

cause it purports to apply only to the insured. The

590 328 M

ICH

570 [June

limitations period regarding the commencement of

actions set forth in MCL 500.2833(1)(q) applies to both

insureds and insurers. Because both parties ﬁled their

claims after the limitations period set forth in MCL

500.2833(1)(q), which must be read into the insurance

policy, neither party’s claim was timely. And because

defendant’s waiver and estoppel arguments lack merit,

the trial court did not err by dismissing both parties’

actions.

Afﬁrmed.

ECKERING

, P.J., and S

ERVITTO

and S

TEPHENS

, JJ.,

concurred.

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591

PEOPLE v ARNOLD (ON REMAND)

Docket No. 325407. Submitted August 21, 2018, at Lansing. Decided

June 11, 2019, at 9:05 a.m. Leave to appeal granted 505 Mich

1001 (2020).

Lonnie J. Arnold was convicted in the Monroe Circuit Court,

Michael A. Weipert, J., of indecent exposure by a sexually

delinquent person in violation of MCL 750.335a(2)(c). Defendant

was sentenced as a fourth-offense habitual offender, MCL

769.12, to 25 to 70 years’ imprisonment. Defendant appealed,

arguing that MCL 750.335a(2)(c) required that the trial court

sentence him to an indeterminate term of one day to life in

prison. In an unpublished per curiam opinion issued on April 12,

2016 (Arnold I), the Court of Appeals, G

LEICHER

, P.J., and

AVANAGH

and F

ORT

OOD

, JJ., held that a court sentencing a

defendant convicted under MCL 750.335a(2)(c) must still abide

by the sentencing guidelines as directed by People v Buehler (On

Remand), 271 Mich App 653 (2006), rev’d in part on other

grounds 477 Mich 18 (2007). The Court of Appeals remanded the

case for further sentencing proceedings because People v Lock-

ridge, 498 Mich 358 (2015), had since rendered the sentencing

guidelines advisory. Defendant moved for reconsideration, and

the Court of Appeals granted the motion because it had issued a

published opinion—People v Campbell, 316 Mich App 279 (2016)

—that controlled the resolution of the issue; Campbell held that

the sentence of one day to life in MCL 750.335a(2)(c) was stated

in mandatory terms and therefore trial courts must sentence a

person convicted of indecent exposure as a sexually delinquent

person consistently with the requirements of MCL

750.335a(2)(c). On reconsideration, in an unpublished per

curiam opinion issued on September 22, 2016 (Arnold II), the

Court of Appeals, G

LEICHER

, P.J., and C

AVANAGH

and F

ORT

OOD

JJ., concluded that Campbell was binding and therefore re-

manded for the imposition of the mandatory sentence provided

in MCL 750.335a(2)(c). The prosecution sought leave to appeal

in the Supreme Court. The Supreme Court granted the applica-

tion and vacated Arnold II, holding that, contrary to Campbell,

the sentence of one day to life in MCL 750.335a(2)(c) was not

required but rather was a nonmodiﬁable sentencing option for a

trial court when sentencing a person convicted of indecent

592 328

ICH

592 [June

exposure as a sexually delinquent person. 502 Mich 438 (2018)

(Arnold III). The Supreme Court then remanded the case to the

Court of Appeals to consider what effect the adoption of the

legislative sentencing guidelines in 1998—and in particular

their classiﬁcation of MCL 750.335a(2)(c) as a Class A felony

under MCL 777.16q—had on a trial court’s options in sentencing

a defendant convicted under MCL 750.335a(2)(c).

On remand, the Court of Appeals held:

1. MCL 750.335a(2)(c) provides that indecent exposure by a

sexually delinquent person is punishable by imprisonment for an

indeterminate term, the minimum of which is one day and the

maximum of which is life. MCL 750.335a(2)(c) is a Class A felony

under MCL 777.16q, with a statutory maximum of life. The

Supreme Court’s holdings in Arnold III serve to deﬁne the sentenc-

ing parameters for individuals convicted of indecent exposure as a

sexually delinquent person. Arnold III held that the sentence of

one day to life is an alternative sentencing option that exists

alongside other options. Furthermore, Arnold III focused on the

efforts of the Legislature to create a different sentencing option for

individuals identiﬁed as sexually delinquent to provide therapeutic

and open-ended alternatives for those offenders viewed as having

a form of mental illness requiring treatment. Accordingly, the

sentence of one day to life comprises a nonmandatory option that a

trial court may draw upon should it choose to exercise its discretion

to do so. MCL 750.335a did not prescribe anything but rather made

an option available. Between the Penal Code and the Code of

Criminal Procedure, the judge is afforded options in sentencing,

premised on the severity of the behavior and the particular

characteristics of the offender, encompassing either a sentence of

one day to life for indecent exposure by a sexually delinquent

person, MCL 750.335a(2)(c), or a sentence premised on a scoring of

the guidelines, MCL 777.16q, which in this case could be enhanced

under the habitual-offender statute, MCL 777.21. Accordingly, the

Penal Code provides judges with certain options, not mandates,

when confronted with an individual convicted of indecent exposure

as a sexual delinquent. Trial courts may consider sentencing

options consistent with the guidelines, particularly when the trial

court determines that factors governed by the Code of Criminal

Procedure, such as an offender’s status as a habitual offender,

supply an appropriate mechanism to enhance the punishment

imposed upon those who have been found guilty of more serious

crimes and who repeatedly engage in criminal acts. This approach

harmonizes the history of sexual-delinquency sentencing with the

more recent recognition that when sentences are imposed they

2019] P

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) 593

should be proportional to the seriousness of the circumstances

surrounding the offense and the offender and that the proper

approach to sentencing is to favor individualized sentencing for

every defendant. Because MCL 750.335a and MCL 777.16q must

be read in pari materia, a trial court has the option to sentence a

defendant to one day to life under MCL 750.335a(2)(c) or to a term

consistent with the advisory sentencing guidelines.

2. The rule of lenity provides that courts should mitigate

punishment when the punishment in a criminal statute is un-

clear. However, the rule of lenity applies only in the circum-

stances of an ambiguity or in the absence of any ﬁrm indication of

legislative intent. A provision of the law is ambiguous only if it

irreconcilably conﬂicts with another provision or is equally sus-

ceptible to more than a single meaning. In this case, the Legis-

lature clearly intended to include indecent exposure by a sexually

delinquent person as an offense within both the Penal Code and

the Code of Criminal Procedure. The intent of the Legislature to

provide alternative sentencing options for individuals convicted

of this offense obviated the existence of any ambiguity, which

rendered the rule of lenity inapplicable.

3. Const 1963, art 4, § 25 provides that no law shall be revised,

altered, or amended by reference to its title only and that any

section of an act that is revised, altered, or amended shall be

reenacted and published at length. In this case, the legislative

sentencing guidelines did not amend or change the language of the

Penal Code, speciﬁcally MCL 750.335a. The statutory provisions at

issue, MCL 750.335a and MCL 777.16q, are independent and

complete and do not necessitate reference to another statute to

ascertain their meaning. Accordingly, the inclusion of MCL

750.335a(2)(c) in MCL 777.16q did not violate Const 1963, art 4,

§ 25.

4. The holdings in People v Frontczak, 286 Mich 51 (1938), and

In re Boulanger, 295 Mich 152 (1940), were not relevant to the

resolution of this matter because those cases addressed requests or

attempts to impose dual punishments for a defendant or a punish-

ment that was not authorized by law. In this case, defendant

received only one of the sentencing options provided by statute;

defendant did not face a series of penalties for his single act. When

defendant committed his offense, MCL 750.335a and MCL 777.16q

provided multiple, but exclusive, sentencing options.

Defendant’s sentence vacated; case remanded for further

proceedings.

594 328

ICH

592 [June

RIMINAL

— S

ENTENCING

— I

NDECENT

XPOSURE BY A

EXUALLY

ELIN-

QUENT

ERSON

MCL 750.335a(2)(c) provides that indecent exposure by a sexually

delinquent person is punishable by imprisonment for an inde-

terminate term, the minimum of which is one day and the

maximum of which is life; MCL 750.335a(2)(c) is a Class A felony

under MCL 777.16q, with a statutory maximum of life; the

sentence of one day to life in MCL 750.335a(2)(c) is a nonman-

datory option that a trial court may draw upon should it choose

to exercise its discretion to do so; when sentencing an individual

convicted of MCL 750.335a(2)(c), a trial court judge is afforded

options in sentencing, premised on the severity of the behavior

and the particular characteristics of the offender, encompassing

either a sentence of one day to life for indecent exposure by a

sexually delinquent person under MCL 750.335a(2)(c) or a

sentence premised on a scoring of the guidelines under MCL

777.16q.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, Michael G. Roehrig,

Prosecuting Attorney, and Jonathan A. Jones, Assis-

tant Prosecuting Attorney, for the people.

State Appellate Defender (by Marilena David-

Martin) for defendant.

ON REMAND

Before: G

LEICHER

, P.J., M

URRAY

, C.J., and C

AVANAGH

, J.

URIAM

. Violation of the statute proscribing

indecent exposure by a sexually delinquent person,

MCL 750.335a(2)(c), “is punishable by imprisonment

for an indeterminate term, the minimum of which is 1

day and the maximum of which is life.” Before the

enactment of the legislative sentencing guidelines,

the “1 day to life” sentence was construed as an

alternate or optional sentence for sexually delinquent

persons. See People v Kelly, 186 Mich App 524; 465

NW2d 569 (1990). With the 1998 enactment of the

2019] P

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RNOLD

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) 595

legislative sentencing guidelines, indecent exposure

by a sexually delinquent person was classiﬁed as a

Class A felony, subject to a range of sentences depen-

dent on an offender’s variable scores. MCL 777.16q.

The Supreme Court has directed us to consider what

effect, if any, the adoption of the guidelines “had on a

trial court’s options in sentencing a defendant con-

victed of indecent exposure by a sexually delinquent

person.” People v Arnold, 502 Mich 438, 483; 918

NW2d 164 (2018) (Arnold III).

We conclude that the sentencing guidelines provide

another option or alternative, in addition to the sexual-

delinquency scheme, when sentencing an individual

convicted of indecent exposure. As the trial court was

not aware of its range of sentencing options, or that the

legislative sentencing guidelines would be rendered

advisory by People v Lockridge, 498 Mich 358; 870

NW2d 502 (2015), we vacate defendant’s sentence and

remand to the trial court for further sentencing proceed-

ings.

A jury convicted defendant of indecent exposure by a

sexually delinquent person in violation of MCL

750.335a(2)(c)

for fondling himself at a public library

in front of an employee. Defendant was characterized

as a sexually delinquent person because he had com-

mitted such acts before and therefore was a “person

whose sexual behavior is characterized by repetitive or

compulsive acts which indicate a disregard of conse-

quences or the recognized rights of others . . . .” MCL

MCL 750.335a was amended after defendant’s trial. See 2014 PA

198. However, the relevant sections of MCL 750.335a(1) and (2) have not

been altered in any substantive way.

596 328

ICH

592 [June

750.10a.

Indecent exposure by a sexually delinquent

person is a Class A felony under MCL 777.16q, with a

statutory maximum of life. Defendant’s offense and

prior record variable scores placed him in cell F-III of

the Class A grid, MCL 777.62, and with consideration

of defendant’s fourth-offense habitual-offender status,

MCL 777.21(3)(c), defendant’s minimum guidelines

range was calculated at 135 to 450 months. Arnold III,

502 Mich at 449-450. The trial court sentenced defen-

dant within the guidelines to 25 to 70 years’ imprison-

ment. People v Arnold, unpublished per curiam opinion

of the Court of Appeals, issued April 12, 2016 (Docket

No. 325407), p 1 (Arnold I).

In Arnold I, defendant challenged his sentence,

asserting that the trial court was required by MCL

750.335a(2)(c) to sentence him to “1 day to life.” Arnold

I, unpub op at 4. We concluded that a court sentencing

a defendant convicted under MCL 750.335a(2)(c) must

still “abide by the sentencing guidelines” as directed by

People v Buehler (On Remand), 271 Mich App 653,

658-659; 723 NW2d 578 (2006), rev’d in part on other

grounds 477 Mich 18 (2007). Arnold I, unpub op at 5.

However, we remanded for further sentencing proceed-

ings as Lockridge, 498 Mich 358, had since rendered

the sentencing guidelines advisory. Arnold I, unpub op

at 5-6.

Defendant sought reconsideration, again urging that

a sentence of “1 day to life” was required. We granted

the motion because in the interim this Court issued a

“MCL 750.10a is a deﬁnitional statute, and does not carry the

possibility of a separate conviction or sentence independent of other

charges in the criminal code.” People v Craig, 488 Mich 861, 861 (2010).

In Arnold I, unpub op at 4, we vacated defendant’s conviction and

sentence for aggravated indecent exposure, MCL 750.335a(2)(b), as

violative of double jeopardy. That ruling has not been challenged.

2019] P

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) 597

published opinion controlling our resolution of this

issue—People v Campbell, 316 Mich App 279; 894

NW2d 72 (2016). Campbell, 316 Mich App at 299-300,

held that although the legislative sentencing guidelines

were now only advisory, “the sentence provided under

MCL 750.335a(2)(c) is stated in mandatory terms. Con-

sequently, after the decision in Lockridge, trial courts

must sentence a defendant convicted of indecent expo-

sure as a sexually delinquent person consistently with

the requirements of MCL 750.335a(2)(c).” In People v

Arnold (On Reconsideration), unpublished per curiam

opinion of the Court of Appeals, issued September 22,

2016 (Docket No. 325407), p 2 (Arnold II), we concluded

that we were “bound by Campbell” to “remand for

imposition of the mandatory sentence set forth in MCL

750.335a(2)(c).”

The Supreme Court granted the prosecution’s appli-

cation for leave to appeal this Court’s decision in

Arnold II, “set aside Campbell,”

and vacated our

opinion based upon it. Arnold III, 502 Mich at 483. The

Supreme Court determined that a “ ‘1 day to life’

sentence has never been required by [MCL

750.335a(2)(c)],” contrary to Campbell. Arnold III, 502

Mich at 444. Rather, “1 day to life” is a nonmodiﬁable

sentencing option for sexual delinquents. Id. at 450-

451, citing Kelly, 186 Mich App at 531.

The Court outlined the development of the sexual-

delinquency sentencing scheme. Arnold III, 502 Mich

at 447-465. The Court described how the ﬁrst sexual-

delinquency acts provided for the indeﬁnite commit-

ment of “sexual psychopaths” until a court determined

that they were no longer “a menace to the public

We note that neither party sought leave to appeal in Campbell.

598 328

ICH

592 [June

safety.” Id. at 456-457 (cleaned up).

Over time, “the

Legislature began chipping away at” the broad appli-

cation of the sexual-delinquency sentencing scheme.

Id. at 464. It is now limited in application to ﬁve

speciﬁc offenses: “(1) sodomy, MCL 750.158, (2) inde-

cent exposure, and (3) gross indecency between (a) two

males, MCL 750.338, (b) two females, MCL 750.338a,

or (c) between a male and a female, MCL 750.338b.”

Arnold III, 502 Mich at 464-465. The Court further

noted that prior to the enactment of 2005 PA 300, MCL

750.335a provided that violation of the statute “ ‘may

be punishable by imprisonment . . . for an indetermi-

nate term, the minimum of which shall be 1 day and

the maximum of which shall be life . . . .’ ” The 2005

amendments substituted “is” for the emphasized

terms. Arnold III, 502 Mich at 451-452.

The Court concluded that the “1 day to life” sentence

comprises an “alternate sentence” in accordance with

MCL 767.61a and that this alternative sentence is

optional, not mandatory. Id. at 465-469. MCL 767.61a

outlines the manner in which an individual charged

with an identiﬁed predicate offense may commensu-

rately be identiﬁed as a sexually delinquent person:

In any prosecution for an offense committed by a

sexually delinquent person for which may be imposed an

alternate sentence to imprisonment for an indeterminate

term, the minimum of which is 1 day and the maximum of

which is life, the indictment shall charge the offense and

may also charge that the defendant was, at the time said

offense was committed, a sexually delinquent person. . . .

This opinion uses the parenthetical “(cleaned up)” to improve read-

ability without altering the substance of the quotation. The parentheti-

cal indicates that nonsubstantive clutter such as brackets, alterations,

internal quotation marks, and unimportant citations has been omitted

from the quotation. See Metzler, Cleaning Up Quotations, 18 J App Prac

& Process 143 (2017).

2019] P

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) 599

Upon a verdict of guilty to the ﬁrst charge or to both

charges or upon a plea of guilty to the ﬁrst charge or to

both charges the court may impose any punishment pro-

vided by law for such offense. [MCL 767.61a (emphasis

added).]

Under this statute, before the enactment of the statu-

tory sentencing guidelines, “a judge faced with an

adjudicated sexual delinquent guilty of indecent expo-

sure could choose any legally available sentencing

option that the judge deemed appropriate,” including a

ﬁne and jail sentence of up to 1 year or alternatively “1

day to life” as provided in MCL 750.335a(2)(a) to (c).

Arnold III, 502 Mich at 468-469. The Supreme Court

“conclude[d] that [Kelly, 186 Mich App 524,] correctly

construed the ‘1 day to life’ alternate sentence as an

option a sentencing judge could draw upon, alongside

and not to the exclusion of other available options,”

based on “the text of [MCL 750.335a(2)], the Legisla-

ture’s usual pattern in clearly identifying mandatory

sentences, the relation this scheme would have had to

the overarching law of sentencing at the time the

scheme was adopted, and the history of the scheme[.]”

Arnold III, 502 Mich at 469.

“Having concluded that Kelly correctly construed ‘1

day to life’ as an option,” the Supreme Court then

considered whether the option of “1 day to life” was

modiﬁable—permitting a sentence within the range

identiﬁed—or nonmodiﬁable—requiring the precise

sentence of “1 day to life.” Id. The Court found the “1

day to life” sentence nonmodiﬁable based on the

Legislature’s use of the mandatory term “shall.” The

Court also found the characterization of “1 day to life”

as an “alternate sentence” in MCL 767.61a to “indi-

cate[] that [the sentence] ought to function in some

distinct way.” Arnold III, 502 Mich at 470. The Court

further relied on the historical purpose of the “sexual-

600 328 M

ICH

592 [June

delinquency scheme, which was clearly intended to be

therapeutic and open-ended.” Id. at 471. The Court

emphasized, “The purpose of the scheme was to create

a different sentencing option, one in which the judge

gave up control over the amount of time the defendant

served to experts who would assess when the defen-

dant was well enough to rejoin society.” Id.

And viewing the “1 day to life” sentencing scheme in

conjunction with MCL 769.9(2), the Supreme Court

“agree[d] with Kelly that the ‘1 day to life’ sentencing

scheme is an exception to the indeterminate sentenc-

ing statute’s ban on so-called ‘life tails.’ ”

Arnold III,

502 Mich at 472. Speciﬁcally, the Court explained:

MCL 769.9(2) applies only to “cases where the maximum

sentence in the discretion of the court may be imprison-

ment for life or any number or term of years.” The

phrasing “life or any term of years” is used verbatim in a

variety of statutes. When MCL 750.335a was adopted, it

spoke of “imprisonment in the state prison for an indeter-

minate term, the minimum of which shall be 1 day and the

maximum of which shall be life,” 1952 PA 73, and MCL

767.61a speaks of “an indeterminate term, the minimum

of which is 1 day and the maximum of which is life.” On its

own, this difference in wording may be enough to remove

sexual-delinquency cases from MCL 769.9(2). Moreover,

we agree with Kelly that because MCL 769.9(2) is a

MCL 769.9(2) bans “life tails” as follows:

In all cases where the maximum sentence in the discretion of

the court may be imprisonment for life or any number or term of

years, the court may impose a sentence for life or may impose a

sentence for any term of years. If the sentence imposed by the

court is for any term of years, the court shall ﬁx both the

minimum and the maximum of that sentence in terms of years or

fraction thereof, and sentences so imposed shall be considered

indeterminate sentences. The court shall not impose a sentence in

which the maximum penalty is life imprisonment with a mini-

mum for a term of years included in the same sentence.

2019] P

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) 601

general indeterminate sentencing statute, while the

sexual-delinquency scheme is a speciﬁc, integrated

scheme, the more speciﬁc statute controls. [Arnold III, 502

Mich at 472 (cleaned up).]

The Court concluded:

[W]e construe the “1 day to life” sentence that the Legis-

lature adopted in 1952 as being an alternative sentencing

option that existed alongside other options, such as a life

sentence or a term of years. Much as the sentence concepts

“life” and “any term of years” are mutually exclusive and

a sentencing judge may (in the appropriate case) opt for

either but not both, so “1 day to life” was a mutually

exclusive concept that a sentencing judge was free to opt

for to the exclusion of a life- or term-of-years sentence. [Id.

at 472-473 (cleaned up).]

Based on this ruling, the Court overruled or abro-

gated various cases to the extent they treated the “1 day

to life” provision as an exclusive sentence. See People v

Butler, 465 Mich 940, 941 (2001); People v Murphy, 203

Mich App 738; 513 NW2d 451 (1994). See also People v

Buehler, 477 Mich 18; 727 NW2d 127 (2007); Buehler

(On Remand), 271 Mich App 653; People v Buehler, 268

Mich App 475; 710 NW2d 55 (2005). The Court also

determined that the reasoning in Campbell “cannot

stand” and must be “set aside” as it did not accord with

the plain language of MCL 750.335a(2)(c) or its legisla-

tive history. Arnold III, 502 Mich at 479-481, 483.

In relation to the legislative sentencing guidelines,

the Court reasoned:

[W]e do not believe that Lockridge has the signiﬁcance

ascribed to it by the Court of Appeals in Campbell. Lock-

ridge concluded that the scoring process for the legislative

sentencing guidelines violated the Sixth Amendment and,

as a remedy for that constitutional violation, directed that

henceforth the guidelines would be only advisory. Neither

identifying that problem nor crafting that remedy illumi-

602 328

ICH

592 [June

nates whether the adoption of the sentencing guidelines

and the classiﬁcation of indecent exposure by a sexually

delinquent person as a Class A felony could make legal a

sentence that would not have been legal before the sentenc-

ing guidelines were adopted. Whether the sentencing

guidelines are mandatory or merely advisory is neither

here nor there; the question is what effect the legislative act

of adopting the guidelines had on the sexual-delinquency

scheme. [Id. at 480-481.]

And in relation to the Buehler line of cases, the

Court continued:

[W]e no longer believe Buehler III[, 477 Mich 18,] fully

understood the nature of the sexual-delinquency scheme.

Its embrace of a vision of dueling mandates between MCL

750.335a and the sentencing guidelines misconstrued the

nature of the “1 day to life” sentencing option provided by

MCL 750.335a and MCL 767.61a. It appears that the Court

of Appeals in the instant case relied on the series of Buehler

decisions, in particular their caveat that the 2005 PA 300

amendment of MCL 750.335a may have been meaningful,

in reaching its decision. By contrast, we have now con-

cluded that the 2005 PA 300 amendment made no mean-

ingful textual adjustment to the statute. [Arnold III, 502

Mich at 481.]

Ultimately, the Supreme Court concluded:

Kelly correctly construed the sexual-delinquency “1 day to

life” scheme as an option a trial court could use its discre-

tion to consider imposing alongside the other statutory

penalties available under the statute (at that time, up to 1

year in jail, which was expanded by 2005 PA 300 to be as

much as 2 years in prison for aggravated indecent expo-

sure). We hold that the switch in 2005 PA 300 from “may be

punishable” to “is punishable,” and “the minimum of which

shall be 1 day” to “the minimum of which is 1 day,” and “the

maximum of which shall be life” to “the maximum of which

is life,” is merely stylistic. We conclude that Lockridge’s

constitutional remedy is not pertinent to the outcome of

this case.And we disavow Buehler as having been premised

2019] P

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) 603

on a misconception of the law of sexual delinquency.

[Arnold III, 502 Mich at 482-483.]

Our directive, “in light of these rulings,” is to deter-

mine “what effect the adoption of the legislative sen-

tencing guidelines in 1998—and in particular, their

classiﬁcation of the instant offense as a Class A felony

—had on a trial court’s options in sentencing a defen-

dant convicted of indecent exposure by a sexually

delinquent person.” Id. at 483.

Resolution of this issue requires us to reconcile the

optional, alternative sentence of “1 day to life” provided

in MCL 750.335a(2) and other statutes with sexual-

delinquency provisions in the Penal Code with the

classiﬁcation of indecent exposure (and other desig-

nated offenses) by a sexually delinquent person as a

Class A felony subject to the sentencing guidelines as

provided in MCL 777.16q of the Code of Criminal

Procedure.

Although Kelly was issued before the enactment of

the legislative sentencing guidelines, our Supreme

Court reafﬁrmed its interpretation of MCL 750.335a in

Arnold III. In Kelly, this Court explained:

Sexual delinquency is not merely a penalty enhancement

provision related to the principal charge; it is an alternate

sentencing provision tied to a larger statutory scheme.

We conclude that the alternate sentence is an indeter-

minate term of one day to life imprisonment. In interpret-

ing a statute, we apply the rule of ordinary usage and

common sense. Applying such a rule, the word “shall”

generally denotes a mandatory duty. Because the statute at

issue provides that the minimum of the indeterminate term

shall be one day and the maximum shall be life, we

conclude that that is the prescribed length of the indeter-

minate term. [Kelly, 186 Mich App at 528-529 (cleaned up).]

604 328

ICH

592 [June

In addition, this Court found that the “indeterminate

sentence of one day to life” was not invalid under the

“indeterminate sentence act, speciﬁcally MCL

769.9(2)[.]” Kelly, 186 Mich App at 529. The Court

distinguished MCL 769.9, which was applicable “only

to cases in which the maximum sentence authorized by

statute is life imprisonment or any term of years,” from

MCL 750.335a, wherein “the only maximum sentence

authorized is life imprisonment. Moreover, the mini-

mum sentence has been set by statute: one day.” Kelly,

186 Mich App at 530. This Court construed “the

sexually delinquent sentencing scheme as a speciﬁc

scheme which controls over the general indeterminate

sentence act. Sexual delinquency is limited to select

criminal provisions and thus is a seldom-used category

of alternate sentencing.” Id. at 531 (cleaned up). This

Court continued, “The sexual delinquency legislation

was enacted to provide an alternate sentence for cer-

tain speciﬁc sexual offenses when evidence appeared to

justify a more ﬂexible form of conﬁnement.” Id. Thus,

“the sexually delinquent sentencing scheme” was de-

termined to function “as an exception to the indeter-

minate sentence provision . . . .” Id.

In 1998, the Legislature enacted the statutory sen-

tencing guidelines, which were intended to apply to

speciﬁed enumerated felonies committed on or after

January 1, 1999. MCL 777.1 et seq.; MCL 769.34(2).

“The evident purposes” of the enactment of the “com-

prehensive sentencing reform” “included reduction of

sentencing disparity, elimination of certain inappropri-

ate sentencing considerations, acceptance of [our Su-

preme] Court’s [People v Tanner, 387 Mich 683, 690;

199 NW2d 202 (1972)] rule, encouragement of the use

of sanctions other than incarceration in the state

prison system, and resolution of a potential conﬂict in

the law.” People v Garza, 469 Mich 431, 434-435; 670

2019] P

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) 605

NW2d 662 (2003) (cleaned up). In enacting the legis-

lative sentencing guidelines, it is presumed that the

Legislature was aware of the existence of the sexual-

delinquency sentencing scheme. People v Rahilly, 247

Mich App 108, 112; 635 NW2d 227 (2001) (“The Legis-

lature is presumed to be aware of and legislate in

harmony with existing laws when enacting new

laws.”). In particular, the tie-barring of the amend-

ments to MCL 750.335a and MCL 777.16q reinforces

that the inclusion and identiﬁcation of offenses involv-

ing sexually delinquent persons as enumerated felo-

nies under the sentencing guidelines was purposeful

and intentional.

Two statutes that relate to the same subject or share a

common purpose are in pari materia and must be read

together. The goal of the in pari materia rule is to give

effect to the legislative purpose found in the harmonious

statutes. When two statutes lend themselves to a con-

struction that avoids conﬂict, that construction should

control. [Rahilly, 247 Mich App at 112-113 (cleaned up).]

Speciﬁcally:

The object of the in pari materia rule is to further

legislative intent by ﬁnding an harmonious construction of

related statutes, so that the statutes work together com-

patibly to realize that legislative purpose. Therefore, if

two statutes lend themselves to a construction that avoids

conﬂict, that construction should control. Two statutes

that form a part of one regulatory scheme should be read

in pari materia. [People v Butler, 315 Mich App 546, 550;

892 NW2d 6 (2016) (cleaned up).]

Further, our Supreme Court “has previously recognized

that although the Penal Code and the Code of Criminal

Procedure ‘were separately enacted and have distinct

purposes,’ the two codes ‘relate generally to the same

thing and must therefore be read in pari materia . . . .’ ”

People v Washington, 501 Mich 342, 354 n 29; 916 NW2d

606 328 M

ICH

592 [June

477 (2018), quoting People v Smith, 423 Mich 427, 442;

378 NW2d 384 (1985) (opinion by W

ILLIAMS

, C.J.).

In Smith, 423 Mich 427, our Supreme Court offered

insight for how to reconcile discrepancies between the

Penal Code and the Code of Criminal Procedure regard-

ing the deﬁnition and distinctions between a misde-

meanor and a felony. The Court prefaced its analysis by

stating, “Statutes which relate to the same persons or

things, or which have a common purpose, are to be read

in pari materia, and a strict construction will not be

given to one statute where doing so would defeat the

main purpose of another on the same subject.” Id. at

441-442 (opinion by W

ILLIAMS

, C.J.). More speciﬁcally,

the Court recognized, citing the preambles to the rel-

evant codes:

While the Penal Code and the Code of Criminal Proce-

dure relate generally to the same thing and must therefore

be read in pari materia, the two codes were separately

enacted and have distinct purposes. As concerns this case,

the purpose of the Penal Code is to deﬁne crimes and

prescribe the penalties therefor. The purpose of the Code of

Criminal Procedure is to codify the laws relating to crimi-

nal procedure.

Included in the Code of Criminal Procedure are provi-

sions for the proper procedures to be followed, for example:

upon arrest, at the preliminary examination, at trial, and

at judgment and sentencing. The Legislature expressly

provided that the Code of Criminal Procedure be deemed

“remedial” and be “liberally construed to effectuate the

intents and purposes” of the act. MCL 760.2. [Smith, 423

Mich at 442 (opinion by W

ILLIAMS

, C.J.) (cleaned up).]

In resolving the distinctions between the deﬁnitions in

the Penal Code and the Code of Criminal Procedure,

the Court opined, “It is obvious that the Penal Code

deﬁnitions apply only to the Penal Code. Similarly, the

deﬁnitions of the Code of Criminal Procedure are

limited in application to that code.” Id. at 444.

2019] P

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) 607

Signiﬁcantly, the Smith Court stated, “We have

previously held that the grade given an offense in the

Penal Code is not the controlling consideration in

determining the procedural rights afforded an accused

outside the Penal Code.” Id. The Court further ex-

plained with regard to the distinction between the

deﬁnitions of a misdemeanor and a felony in the Penal

Code and the Code of Criminal Procedure:

The label placed upon an offense in the Penal Code is

just as irrelevant in determining statutorily mandated

post-conviction procedures in the Code of Criminal Proce-

dure as it is in determining constitutionally mandated

post-conviction procedures. The three post-conviction stat-

utes at issue here, the habitual-offender statute, the

probation statute, and the consecutive sentencing statute,

all have the same general purpose: to enhance the pun-

ishment imposed upon those who have been found guilty

of more serious crimes and who repeatedly engage in

criminal acts. In order to achieve the Legislature’s in-

tended purpose in the Code of Criminal Procedure, we ﬁnd

that the Legislature meant exactly what it said: Offenses

punishable by more than one year of imprisonment are

“felonies” for purposes of the habitual-offender, probation,

and consecutive sentencing statutes. Because misdemean-

ors punishable by two years of imprisonment fall within

the “felony” deﬁnition, they may be considered felonies for

purposes of these statutes. [Id. at 445.]

The Court denied that this analysis or reading of the

statutory provisions rendered language either super-

ﬂuous or redundant, indicating “that the deﬁnitions in

each code have full meaning for all the purposes of that

code, but are not simply transferable to the other code.”

Id. at 446 n 2. This analysis is equally applicable to the

discrepancy or disconnect in sentencing options be-

tween MCL 750.335a of the Penal Code and MCL

777.16q of the Code of Criminal Procedure.

608 328 M

ICH

592 [June

Defendant suggests that sexual delinquency is not

an offense, but rather an alternative sentencing

scheme that only attaches to speciﬁed predicate felony

offenses, noting that sexual delinquency is not a felony

enumerated in the Penal Code for purposes of MCL

777.16q and falls outside the guidelines. This is either

an oversimpliﬁcation or mischaracterization of the law.

Defendant was sentenced for indecent exposure and

also was identiﬁed as a sexual delinquent. The enu-

merated predicate felony, which is included in the

Penal Code, MCL 750.335a, and the Code of Criminal

Procedure, MCL 777.16q, is indecent exposure, with

the sexual-delinquency component being construed “as

a separate, alternate form of sentencing.” Arnold III,

502 Mich at 471 (cleaned up). The difﬁculty is in

reconciling the sentencing options available rather

than disputing that the predicate felonies are included

in both the Penal Code and the Code of Criminal

Procedure. That sexual delinquency does not comprise

a separate or standalone offense in the Code of Crimi-

nal Procedure does not resolve the issue presented.

Given the context, as discussed above, our Supreme

Court’s holdings in Arnold III serve to deﬁne the

sentencing parameters for individuals convicted of

indecent exposure as a sexually delinquent person. In

Arnold III, 502 Mich at 444-477, the Court expended

considerable time and effort tracing the history of

sexual delinquency. Focus was placed on the efforts of

the Legislature to “create a different sentencing op-

tion” for individuals identiﬁed as sexually delinquent

to provide “therapeutic and open-ended” alternatives

for those offenders viewed as having “a form of mental

illness” requiring “treatment.” Id. at 471. Premised on

our Supreme Court’s discussion and ﬁndings, the “1

day to life” sentence is “an alternative sentencing

option that existed alongside other options, such as a

2019] P

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) 609

life sentence or a term of years.” Id. at 472. As

explained, the “ ‘1 day to life’ [sentence] was a mutually

exclusive concept that a sentencing judge was free to

opt for to the exclusion of a life- or term-of-years

sentence.” Id. at 473.

The Court’s favorable adoption of Kelly emphasizes

that the sentence of “1 day to life” comprises “a

nonmandatory option that a trial court could draw

upon should it choose to exercise its discretion to do

so.” Id. Speciﬁcally, in ﬁnding that “Kelly was rightly

decided,” the Court emphasized “that MCL 750.335a

did not prescribe anything; instead, it only made an

option available.” Arnold III, 502 Mich at 477. This

comports with the Court’s earlier decision in Smith,

423 Mich at 445 (opinion by W

ILLIAMS

, C.J.), recogniz-

ing the distinctions between the Penal Code and the

Code of Criminal Procedure while simultaneously ac-

knowledging the purpose of the Code of Criminal

Procedure “to enhance the punishment imposed upon

those who have been found guilty of more serious

crimes and who repeatedly engage in criminal acts.” As

is the circumstance here, where defendant is a fourth-

offense habitual offender, the sentencing guidelines

provide yet another sentencing alternative for indi-

viduals convicted of indecent exposure as a sexual

delinquent. Between the Penal Code and the Code of

Criminal Procedure, the judge in this case would be

afforded options in sentencing, premised on the sever-

ity of the behavior and the particular characteristics of

the offender, encompassing: (a) one day to life for

indecent exposure by a sexually delinquent person,

MCL 750.335a(2)(c), or (b) a sentence premised on a

scoring of the guidelines, MCL 777.16q, which in this

case could be enhanced under the habitual-offender

statute, MCL 777.21. This conforms with the reasoning

610 328 M

ICH

592 [June

of the Court in Arnold III, 502 Mich at 479-480, after

discussing the wording of MCL 750.335a(2)(c) and

recognizing:

MCL 750.335a(2)(c) still says only that the offense is

punishable by a “1 day to life” sentence, and “punishable”

expresses only the possibility of punishment, not its ne-

cessity. Moreover, MCL 767.61a has not been amended,

meaning that it still characterizes “1 day to life” as an

“alternate” sentence, not a mandatory sentence. Indeed,

MCL 767.61a has always phrased the indeterminate sen-

tence option in the same fashion as the postamendment

version of MCL 750.335a: “the minimum of which is 1 day

and the maximum of which is life.” And MCL 767.61a lays

out a procedure common to all ﬁve sexual-delinquency

crimes, yet each of the other four still uses the former

“may be punishable” and “shall be 1 day . . . shall be life”

wording. The sexual-delinquency alternative sentence is

obviously intended to work the same for all ﬁve offenses,

so if it is optional for the others, it must still be optional for

indecent exposure. All signs point to the 2005 amendment

adding only the aggravated indecent-exposure offense [to

MCL 750.335a] and making no substantive changes to the

“1 day to life” alternative sentence.

The most rational construction is that the Penal

Code provides judges with certain options, not man-

dates, when confronted with an individual convicted of

indecent exposure as a sexual delinquent. Trial courts

may consider sentencing options consistent with the

guidelines, particularly when the trial court deter-

mines that factors governed by the Code of Criminal

Procedure, such as an offender’s status as a habitual

offender, supply an appropriate mechanism “to en-

hance the punishment imposed upon those who have

been found guilty of more serious crimes and who

repeatedly engage in criminal acts.” Smith, 423 Mich

at 445 (opinion by W

ILLIAMS

, C.J.). This approach

harmonizes the history of sexual-delinquency sentenc-

2019] P

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) 611

ing with the more recent recognition that when sen-

tences are imposed they should be “proportional to the

seriousness of the circumstances surrounding the of-

fense and the offender,” and that “the proper approach

to sentencing is to favor individualized sentencing for

every defendant.” People v Sabin (On Second Remand),

242 Mich App 656, 661; 620 NW2d 19 (2000). As

recently discussed in People v Odom, 327 Mich App

297, 314; 933 NW2d 719 (2019):

The purpose of the proportionality requirement is to

combat unjustiﬁed disparity in sentencing, thereby ensur-

ing that offenders with similar offense and offender char-

acteristics receive substantially similar sentences. Under

our system of sentencing, this principle of proportionality

is ﬁrst entrusted to the Legislature, which is tasked with

grading the seriousness and harmfulness of a given crime

and given offender within the legislatively authorized

range of punishments. [Cleaned up.]

“Although the Legislature’s guidelines are advisory,

they remain a highly relevant consideration in a trial

court’s exercise of its sentencing discretion.” Id. at

314-315 (cleaned up).

Ultimately, the relevant statutory provisions in the

Penal Code and the Code of Criminal Procedure—MCL

750.335a and MCL 777.16q—must be read in pari

materia. Kelly, Smith, and the language of the relevant

statutes counsel that a trial court has the option to

sentence a defendant to “1 day to life” under MCL

750.335a(2)(c) or to a term consistent with the advisory

sentencing guidelines.

III

Defendant urges that the “rule of lenity” requires us

to declare the legislative sentencing guidelines inap-

plicable. “The ‘rule of lenity’ provides that courts

612 328 M

ICH

592 [June

should mitigate punishment when the punishment in a

criminal statute is unclear.” People v Johnson, 302

Mich App 450, 462; 838 NW2d 889 (2013) (cleaned up).

The rule, however, “applies only in the circumstances

of an ambiguity, or in the absence of any ﬁrm indica-

tion of legislative intent.” People v Wakeford, 418 Mich

95, 113-114, 341 NW2d 68 (1983). “A provision is not

ambiguous just because reasonable minds can differ

regarding the meaning of the provision. Rather, a

provision of the law is ambiguous only if it “irreconcil-

ably conﬂict[s]” with another provision, or when it is

equally susceptible to more than a single meaning.”

People v Gardner, 482 Mich 41, 50 n 12; 753 NW2d 78

(2008) (cleaned up).

As noted, the Legislature clearly intended to include

indecent exposure by a sexually delinquent person as

an offense within both the Penal Code and the Code of

Criminal Procedure. The intent of the Legislature to

provide alternative sentencing options for individuals

convicted of this offense obviates the existence of any

ambiguity, rendering the rule of lenity inapplicable.

See People v Perry, 317 Mich App 589, 605-606; 895

NW2d 216 (2016) (“Given the clear indication of legis-

lative intent and the absence of ambiguity, the rule of

lenity does not apply.”).

Defendant further contends, “If this Court ﬁnds that

MCL 750.335a(2)(c) is an enumerated felony subject to

sentencing under the guidelines by its inclusion in

MCL 777.16q, then the sentencing guidelines act [was]

a revision, amendment, or repeal of the inconsistent 1

day to life sentencing provision” and “is unconstitu-

tional.” “No law shall be revised, altered or amended by

reference to its title only. The section or sections of the

2019] P

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) 613

act altered or amended shall be re-enacted and pub-

lished at length.” Const 1963, art 4, § 25. Our Supreme

Court has explained:

Section 25 is worded to prevent the revising, altering or

amending of an act by merely referring to the title of the

act and printing the amendatory language then under

consideration. If such a revision, alteration or amendment

were allowed, the public and the Legislature would not be

given notice and would not be able to observe readily the

extent and effect of such revision, alteration or amend-

ment. [Advisory Opinion re Constitutionality of 1972 PA

294, 389 Mich 441, 470; 208 NW2d 469 (1973).]

“[I]f an act is complete within itself, it does not fall

within the constitutional prohibition.” People v Meeks,

92 Mich App 433, 444; 285 NW2d 318 (1979). Speciﬁ-

cally, § 25 ‘‘is directed at preventing undesirable con-

duct with respect to amendment of a particular act. It

does not seek to correct tangential effects which the

amendment, revision or alteration may have on those

statutes not directly affected.” Advisory Opinion re

Constitutionality of 1972 PA 294, 389 Mich at 475.

“[A]mendment by implication is not the evil sought to

be avoided by [Const 1963, art 4, § 25].” People v

Hughes, 85 Mich App 674, 681; 272 NW2d 567 (1978)

(opinion by B

URNS

, P.J.).

The legislative sentencing guidelines do not amend or

change the language of the Penal Code, speciﬁcally

MCL 750.335a. The statutory provisions at issue, MCL

750.335a and MCL 777.16q, are independent and com-

plete and do not necessitate reference to another statute

to ascertain their meaning.Any inclusion by reference is

not violative of Const 1963, art 4, § 25. Despite what

might have comprised an illegal sentence for indecent

exposure by a sexually delinquent person at the time of

enactment of the legislative sentencing guidelines, the

614 328 M

ICH

592 [June

tie-barred amendments to MCL 777.16q and MCL

750.335a remedied any potential conﬂict.

Our Supreme Court also suggested that the holdings

in People v Frontczak, 286 Mich 51; 281 NW 534

(1938), and In re Boulanger, 295 Mich 152; 294 NW 130

(1940), may be relevant in the resolution of this matter.

Arnold III, 502 Mich at 482 n 20.

In Frontczak, 286 Mich at 53, the defendant was

convicted of gross indecency and sentenced to 30 days to

5 years in prison. The Legislature subsequently enacted

1937 PA 196, which subjected a criminal defendant to

hospitalization before initiation of his criminal sentence

and allowed then-incarcerated defendants to be trans-

ferred to a hospital until the defendant’s purported

deviance was cured. Frontczak, 286 Mich at 55-58. The

state commissioner of pardons and paroles then ﬁled a

petition in the local circuit court, invoking the new

statutory provision and seeking to have the defendant

committed to a state hospital. Id. at 53-54. Our Su-

preme Court determined that this procedure was un-

constitutional under Const 1908, art 2, § 19:

Section 1b, added by the 1937 act, if considered a part

of criminal procedure, is void, as subjecting an accused to

two trials and convictions in different courts for a single

statutory crime, with valid sentence interrupted by

supplementary proceeding in another court, with conﬁne-

ment in a non-penal institution and with possible resump-

tion of imprisonment under the original sentence. If not

for a single offense, then one trial is for a penalized overt

act and the other for having a mental disorder, character-

ized by marked “sexual deviation.” [Frontczak, 286 Mich

at 58.]

“Hospitalization, with curative treatment and mea-

sures may be desirable but, until the law makes a sane

2019] P

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) 615

person amenable to compulsory restraint as a sex

deviator, it falls short of due process in merely provid-

ing procedure.” Id. at 59.

In Boulanger, 259 Mich at 153, the defendant

pleaded guilty to gross indecency, with his sentencing

deferred pending appointment of a sanity commission,

which ultimately did not ﬁnd the defendant insane, but

rather “psychopathic or a sex degenerate or sex pervert

and dangerous to public safety.” The defendant was

sentenced to six months in jail to be followed by

commitment to a state hospital “ ‘until this court shall

adjudge you cease to be a menace to public safety.’ ” Id.

at 154. The defendant ﬁled a petition for habeas corpus

based on his sentencing to dual punishments. Id. at

156. Our Supreme Court, relying in part on Frontczak,

found no authority permitting the Court to commit the

defendant to hospitalization arising from his criminal

conviction. Id.

Neither Frontczak nor Boulanger is relevant to the

issue presented in this remand. There is no request or

attempt to impose dual punishments for defendant or a

punishment that is not authorized by law. Defendant

received only one of the sentencing options provided by

statute. When defendant committed his offense, MCL

750.335a and MCL 777.16q provided multiple, but

exclusive, sentencing options. Unlike the defendants in

Frontczak and Boulanger, the current defendant did

not face a series of penalties for his single act.

We vacate defendant’s sentence and remand for

further sentencing proceedings. We do not retain juris-

diction.

LEICHER

, P.J., M

URRAY

, C.J., and C

AVANAGH

, J., con-

curred.

616 328 M

ICH

592 [June

POWERS v BROWN

Docket No. 343287. Submitted June 5, 2019, at Grand Rapids. Decided

June 18, 2019, at 9:00 a.m.

Mika Powers, doing business as Sweet Rides Auto, brought an

action in the Montcalm Circuit Court against Kelly R. Brown,

seeking to recover the amount owed on a truck Brown had

purchased from and ﬁnanced through plaintiff in 2014. After

defendant allegedly missed a monthly payment on the truck in

2015, plaintiff repossessed the truck, sold it at auction, applied

the proceeds from the sale to the loan, and ﬁled this action to

recover the remainder owed. Defendant ﬁled a counterclaim,

asserting that plaintiff had wrongfully converted his truck. The

court, Ronald J. Schafer, J., concluded that plaintiff had wrong-

fully converted the truck and awarded defendant $10,122; the

court also awarded defendant attorney fees under MCL

600.2919a(1). Defendant ﬁled a motion seeking an attorney fee

award of $30,347.50, the sum of trial counsel’s hourly fee times

the hours billed. The trial court found that defense counsel’s

hourly rate and hours billed were reasonable but that the total

bill was too high in relation to the best case outcome for defendant

at trial. The court awarded $17,659.23 in attorney fees, conclud-

ing that because defense counsel had billed on a contingent basis,

the appropriate award was

/3 of $52,983, the maximum amount

that defendant could have recovered in his counterclaim; the

court subsequently entered a written order awarding defendant

$17,469.54 in attorney fees. Defendant appealed.

The Court of Appeals held:

MCL 600.2919a(1)(a) provides that a person may recover

three times the amount of actual damages sustained, plus costs

and reasonable attorney fees, when the person is damaged by

another person’s stealing or embezzling property or converting

property to the other person’s own use. The operative language

triggering the calculation of attorney fees under the framework

set forth in Smith v Khouri, 481 Mich 519 (2008) (opinion by

ORRIGAN

, J.), and reﬁned in Pirgu v United Servs Auto Ass’n, 499

Mich 269 (2016), is the Legislature’s instruction that an attorney

is entitled to a reasonable fee. MCL 600.2919a(1)(a) plainly

2019] P

OWERS V

ROWN

617

provides that a person damaged by another person’s conversion of

their property may recover reasonable attorney fees. For that

reason, a trial court must apply the following Smith/Pirgu frame-

work in determining a reasonable attorney fee in cases involving

an award of attorney fees under MCL 600.2919a. First, the court

must create a baseline for determining a reasonable fee by

determining the fee customarily charged in the locality for similar

legal services and multiplying that number by the reasonable

number of hours expended in the case. The court must then

decide whether an upward or downward adjustment to the

baseline number is appropriate by evaluating that number in

light of the following factors: (1) the experience, reputation, and

ability of the lawyer or lawyers performing the services; (2) the

difﬁculty of the case, i.e., the novelty and difﬁculty of the

questions involved, and the skill requisite to perform the legal

service properly; (3) the amount in question and the results

obtained; (4) the expenses incurred; (5) the nature and length of

the professional relationship with the client; (6) the likelihood, if

apparent to the client, that acceptance of the particular employ-

ment will preclude other employment by the lawyer; (7) the time

limitations imposed by the client or by the circumstances; and (8)

whether the fee is ﬁxed or contingent. The factors are not

exclusive, and a trial court may consider additional relevant

factors. A trial court errs if it does not brieﬂy discuss its views of

each factor on the record and justify the relevance and use of any

additional factors; a trial court necessarily abuses its discretion

and remand is required if the court primarily relies on only one

factor and fails to brieﬂy discuss its view of the other factors. In

this case, the trial court necessarily abused its discretion when it

awarded defense counsel $17,659.23 because the court only

discussed Factors (3) and (8) in calculating the award and thereby

failed to correctly apply the Smith/Pirgu framework.

Order vacated and case remanded.

TTORNEY

EES

— C

ALCULATION OF

EASONABLE

NDER

MCL

600.2919a(1) — F

ACTORS TO

ONSIDER

MCL 600.2919a(1)(a) provides that a person may recover three

times the amount of actual damages sustained, plus costs and

reasonable attorney fees when the person is damaged by another

person’s stealing or embezzling property or converting property to

the other person’s own use; a trial court must apply the frame-

work set forth in Smith v Khouri, 481 Mich 519 (2008) (opinion by

ORRIGAN

, J.), and reﬁned in Pirgu v United Servs Auto Ass’n, 499

Mich 269 (2016), when calculating a reasonable attorney fee

under MCL 600.2919a(1).

618 328

ICH

617 [June

Westbrook Law PLLC (by Theodore J. Westbrook) for

defendant.

Before: K. F. K

ELLY

, P.J., and F

ORT

OOD

and R

EDFORD

JJ.

URIAM

. Defendant/counterplaintiff, Kelly Ray

Brown, appeals as of right the trial court’s order

awarding him attorney fees in the amount of

$17,469.54 after he successfully prevailed on a

statutory conversion claim against plain-

tiff/counterdefendant, Mika Powers, doing business as

Sweet Rides Auto. We vacate the trial court order

regarding attorney fees and remand for proceedings

consistent with this opinion.

I. BACKGROUND

Brown purchased a pickup truck from Sweet Rides

Auto in 2014. In 2015, after Sweet Rides Auto claimed

that defendant had missed a monthly payment, it

repossessed the truck, sold it at auction, and applied

the sale proceeds to the loan. Sweet Rides Auto ﬁled

suit against Brown in an attempt to recover the re-

maining loan balance from Brown, but Brown counter-

claimed that Sweet Rides Auto had wrongfully con-

verted the truck. At a bench trial, the trial court found

that Sweet Rides Auto had wrongfully converted the

truck and awarded a judgment in favor of Brown in the

amount of $10,122, plus attorney fees and costs.

Brown subsequently ﬁled a motion seeking an attor-

ney fee award of $30,347.50 based on his counsel’s

hourly rate and hours billed. After hearing Brown’s

motion, the trial court found that the hourly rate and

hours billed were reasonable but that the total amount

of fees billed was too high in relation to the “best case”

2019] P

OWERS V

ROWN

619

outcome that had been possible for Brown at trial. The

court concluded that because defense counsel had billed

on a contingent basis, an appropriate award was

the maximum amount that could be recovered

($52,983). By the trial court’s calculation,

of $52,983

was $17,659.23, so the trial court awarded Brown that

amount in attorney fees. The trial court later entered an

order awarding reasonable attorney fees to Brown in

the amount of $17,469.54.

Brown now appeals as of

right.

II. STANDARD OF REVIEW

We review for an abuse of discretion a trial court’s

award of attorney fees. Smith v Khouri, 481 Mich 519,

526; 751 NW2d 472 (2008) (opinion by T

AYLOR

, C.J).

“An abuse of discretion occurs when the trial court’s

decision is outside the range of reasonable and prin-

cipled outcomes.” Pirgu v United Servs Auto Ass’n, 499

Mich 269, 274; 884 NW2d 257 (2016). “A trial court

necessarily abuses its discretion when it makes an

error of law.” Id.

III. ANALYSIS

On appeal, Brown challenges the amount of the

attorney fees awarded and criticizes the trial court for

not adhering to Michigan Supreme Court precedent in

its attorney fee award.

While the attorney fee order entered by the trial court in the amount

of $17,469.54 contained a discrepancy from the trial court’s order from

the bench granting defendant $17,659.23 in attorney fees, a “court

speaks through written judgments and orders rather than oral state-

ments . . . .” People v Jones, 203 Mich App 74, 82; 512 NW2d 26 (1993).

Moreover, the difference in the monetary amount is not relevant to our

analysis of this issue.

620 328

ICH

617 [June

The trial court awarded Brown attorney fees under

MCL 600.2919a(1), which provides, in pertinent part:

A person damaged as a result of either or both of the

following may recover 3 times the amount of actual

damages sustained, plus costs and reasonable attorney

fees:

(a) Another person’s stealing or embezzling property or

converting property to the other person’s own use.

(b) Another person’s buying, receiving, possessing, con-

cealing, or aiding in the concealment of stolen, embezzled,

or converted property when the person buying, receiving,

possessing, concealing, or aiding in the concealment of

stolen, embezzled, or converted property knew that the

property was stolen, embezzled, or converted. [Emphasis

added.]

As an initial matter, we take this opportunity to

clarify for the bench and bar of this state that the

analysis articulated by our Supreme Court in Smith,

more speciﬁcally as set forth in Justice C

ORRIGAN

’s

concurring opinion

and reﬁned in Pirgu, is applicable

to an award of attorney fees under MCL 600.2919a. In

Pirgu, our Supreme Court was asked to decide “the

proper method for calculating a reasonable attorney

fee under MCL 500.3148(1)[.]” Pirgu, 499 Mich at 274.

As the Pirgu Court observed, “[i]n Smith, we reﬁned

Justice C

ORRIGAN

disagreed with the lead opinion that the “results

obtained” and “whether a fee is ﬁxed or contingent” should be excluded

from the Court’s analysis when determining a reasonable attorney fee

under MCR 2.403(O). Smith, 481 Mich at 538, 543 (C

ORRIGAN

, J.,

concurring). The Pirgu Court concluded that these factors should also be

included when determining a reasonable fee under MCL 500.3148(1).

Pirgu, 499 Mich at 280, 283.

MCL 500.3148(1) provides, in pertinent part, that “[a]n attorney is

entitled to a reasonable fee for advising and representing a claimant in

an action for personal or property protection insurance beneﬁts that are

overdue.” (Emphasis added.)

2019] P

OWERS V

ROWN

621

the analysis that applies when a fee-shifting statute or

rule requires a trial court to determine a reasonable

attorney fee.” Id. at 278. Moreover, our Supreme Court

cautioned that whether the Smith/Pirgu framework for

determining a reasonable attorney fee is applicable

will “depend on the plain language of the statute . . . at

issue.” Id. The plain language of MCL 600.2919a(1)(a)

clearly provides that a person damaged by another

person’s conversion of their property may recover “rea-

sonable attorney fees.” As our Supreme Court in-

structed in Pirgu, “[t]he operative language triggering

the Smith analysis is the Legislature’s instruction that

an attorney is entitled to a reasonable fee.” Pirgu, 499

Mich at 279. Moreover, this Court recently applied the

Smith/Pirgu framework when calculating reasonable

attorney fees under MCL 15.364,

a provision of the

Whistleblowers’ Protection Act, MCL 15.361 et seq.

Caldwell v Highland Park, 324 Mich App 642, 656-657;

922 NW2d 639 (2018). Returning to the plain language

of MCL 600.2919a(1)(a), because it clearly speaks to

the ability of a person damaged by another’s “convert-

ing property to the other person’s own use,” to recover

“reasonable attorney fees,” the Smith/Pirgu framework

is applicable in calculating those reasonable attorney

fees.

In Smith, our Supreme Court instructed that the

analysis begins with the trial court “determining the

MCL 15.364 provides:

A court, in rendering a judgment in an action brought pursu-

ant to this act, shall order, as the court considers appropriate,

reinstatement of the employee, the payment of back wages, full

reinstatement of fringe beneﬁts and seniority rights, actual

damages, or any combination of these remedies. A court may also

award the complainant all or a portion of the costs of litigation,

including reasonable attorney fees and witness fees, if the court

determines that the award is appropriate. [Emphasis added.]

622 328

ICH

617 [June

fee customarily charged in the locality for similar legal

services[.]” Smith, 481 Mich at 530 (opinion by T

AYLOR

C.J.) (quotation marks omitted).

Next, “[t]his number

should be multiplied by the reasonable number of

hours expended in the case . . . .” Id. at 531. “The

number produced by this calculation should serve as

the starting point for calculating a reasonable attorney

fee.” Id. Then, the trial court should consider a number

of factors to determine whether an upward or down-

ward adjustment is appropriate. Id. In the context of

an attorney fee award under MCL 500.3148(1), our

Supreme Court more recently distilled the factors that

a trial court is to consider:

(1) the experience, reputation, and ability of the lawyer

or lawyers performing the services,

(2) the difﬁculty of the case, i.e., the novelty and

difﬁculty of the questions involved, and the skill requisite

to perform the legal service properly,

(3) the amount in question and the results obtained,

(4) the expenses incurred,

(5) the nature and length of the professional relation-

ship with the client,

(6) the likelihood, if apparent to the client, that accep-

tance of the particular employment will preclude other

employment by the lawyer,

(7) the time limitations imposed by the client or by the

circumstances, and

(8) whether the fee is ﬁxed or contingent. [Pirgu, 499

Mich at 282.]

“These factors are not exclusive, and the trial court

may consider any additional relevant factors.” Id.

Further, to aid “appellate review, the trial court should

Smith involved attorney fees awarded under MCR 2.403(O)(6).

Smith, 481 Mich at 527-528 (opinion by T

AYLOR

, C.J.).

2019] P

OWERS V

ROWN

623

brieﬂy discuss its view of each of the factors above on

the record and justify the relevance and use of any

additional factors.” Id. When a trial court fails to follow

this method, it errs. Id. Finally, if a trial court “primar-

ily rel[ies] on only one factor—the amount sought and

results achieved—and fail[s] to brieﬂy discuss its view

of the other factors,” the trial court “necessarily”

abuses its discretion and remand is required. Id. at

282-283.

In this case, the trial court did not comprehensively

apply the Smith/Pirgu framework. While the trial

court stated that it found the requested hourly rates

and total hours billed to be “reasonable and fair,” it

adjusted the award downward, apparently on the basis

of the anticipated projected value of the case to Brown,

without considering the other factors set forth in

Michigan Supreme Court precedent. Thus, the trial

court awarded Brown

of the maximum amount

recoverable and failed to consider the additional fac-

tors outlined in Pirgu. Id. at 282. While we understand

the trial court’s concern regarding two of the applicable

factors—“the amount in question and the results

achieved” and “whether the fee is ﬁxed or contingent,”

id. at 280—these are only two of the factors that the

trial court should have weighed in its analysis. Id. at

281-282. Because the trial court did not comprehen-

sively review and state its ﬁndings with respect to all

the factors in the Smith/Pirgu framework, but rather

focused on “the amount in question and the results

obtained” as well as on the fact that the fees at issue

were contingency fees, it abused its discretion in its

award of attorney fees and remand is necessary. See id.

at 282-283 (recognizing that although the trial court

“acknowledged” some of the relevant factors, it abused

its discretion by relying mostly on one factor, the

amount sought and the results achieved, and by “fail-

624 328 M

ICH

617 [June

ing to brieﬂy discuss its view of the other factors.”). On

remand, the trial court is instructed to reconsider its

attorney fee award as recently instructed by the Michi-

gan Supreme Court in Pirgu:

[W]hen determining the reasonableness of attorney fees

awarded . . . , a trial court must begin its analysis by

determining the reasonable hourly rate customarily

charged in the locality for similar services. The trial court

must then multiply that rate by the reasonable number of

hours expended in the case to arrive at a baseline ﬁgure.

[Id. at 281 (citation omitted).]

The trial court is then directed to consider the

factors enumerated by the Supreme Court in Pirgu. Id.

at 281-282. Speciﬁcally, the trial court shall brieﬂy

discuss its view of each of the factors on the record and

justify the relevance and use of any additional factors.

Id. at 282.

IV. CONCLUSION

The trial court order awarding attorney fees to

Brown in the amount of $17,469.54 is vacated. We

remand to the trial court to allow it to reconsider its

award of attorney fees to Brown in conformity with

Michigan Supreme Court precedent. We do not retain

jurisdiction. Brown, as the prevailing party, may tax

costs.

K. F. K

ELLY

, P.J., and F

ORT

OOD

and R

EDFORD

, JJ.,

concurred.

2019] P

OWERS V

ROWN

625

SLOCUM v FARM BUREAU GENERAL INSURANCE

COMPANY OF MICHIGAN

FARM BUREAU GENERAL INSURANCE COMPANY

OF MICHIGAN v SLOCUM

Docket Nos. 343333 and 343409. Submitted June 4, 2019, at Lansing.

Decided June 18, 2019, at 9:05 a.m.

On August 4, 2016, Robert Slocum was killed while riding his

motorcycle. At the time of his death, Robert was married to

Rachel Slocum, had adopted Rachel’s biological child (Noah),

and had two children from his previous marriage to Amber Floyd

(Drayke and Dayja); all three children lived with Robert and

Rachel, and Rachel and the children depended on Robert for

ﬁnancial support and the medical and dental insurance beneﬁts

Robert received through his employer. On August 18, 2016,

Rachel submitted a claim to Farm Bureau General Insurance

Company of Michigan (Farm Bureau) and United States Auto-

mobile Association (USAA)—the companies that insured ve-

hicles involved in the fatal crash—seeking to recover no-fault

and survivor’s loss beneﬁts under the no-fault act, MCL

500.3101 et seq., for her and the three children. Speciﬁcally,

Rachel sought payment to her for Robert’s monthly after-tax

income and for lost fringe beneﬁts, including medical and dental

insurance, for herself and all the children; the insurers did not

immediately pay Rachel any beneﬁts. Caroline Slocum, Robert’s

mother, petitioned the Eaton County Probate Court for and

received temporary guardianship of Drayke and Dayja; the

probate court awarded Floyd sole legal and physical custody of

Drayke and Dayja on October 21, 2016, more than 30 days after

Rachel had submitted her ﬁrst request for beneﬁts. Although the

probate court granted Floyd custody of the children, Floyd did

not enter an appearance in the case, and in July 2017, the

probate court appointed Caroline as Drayke’s and Dayja’s con-

servator. Farm Bureau ﬁled an action for declaratory relief in

the Eaton Circuit Court against Rachel, individually and as next

friend of Noah, and against Caroline as next friend and conser-

vator of Drayke and Dayja, seeking a determination of the

proper payees of the survivor’s loss beneﬁts and requesting

direction regarding how to distribute the beneﬁts among

626 328

ICH

626 [June

Robert’s dependents; Farm Bureau admitted that it was respon-

sible for paying survivor’s loss beneﬁts under MCL 500.3108 but

asserted that Rachel had not provided all the documentation

necessary to determine the amounts payable. Rachel ﬁled a

separate action in the Eaton Circuit Court against Farm Bureau

and USAA, seeking to recover the survivor’s loss beneﬁts the

insurers had allegedly refused to pay Robert’s dependents and

requesting penalty interest and attorney fees related to that

refusal under MCL 500.3142 and MCL 500.3148; the circuit

court consolidated the two actions. Subsequently, after the

insurers asserted that they were still unsure how to apportion

and calculate the survivor’s loss beneﬁts, Rachel and Caroline

moved for partial summary disposition. In December 2017, the

circuit court, John Douglas Maurer, J., apportioned among

Rachel and the children the replacement-services beneﬁts and

lost after-tax wages that were not disputed. In January 2018,

the circuit court limited the award of penalty interest to the

survivor’s loss beneﬁts that Rachel had ﬁrst requested in August

2016, reasoning that while the child custody dispute related to

Drayke and Daja complicated how the beneﬁts should be appor-

tioned and to whom the payments should be paid, the dispute

had not arisen until after Rachel’s original claim had been ﬁled;

the court also ordered Farm Bureau to pay Rachel for the

reasonable attorney fees she had incurred in connection with the

initial delayed payment. With regard to the medical and dental

beneﬁts Rachel and the children had been provided by Robert’s

employer before his death, the court concluded that under MCL

500.3108(1), the insurers were liable to each dependent for the

replacement cost or expense of substantially similar medical

and dental beneﬁts to those they had received before Robert’s

death. In Docket No. 343333, Rachel appealed and the insurers

cross-appealed the circuit court’s orders. In Docket No. 343409,

Rachel and Caroline appealed and Farm Bureau cross-appealed

the circuit court’s orders. The Court of Appeals consolidated the

cases.

The Court of Appeals held:

1. MCL 500.3112(b) provides that personal protection insur-

ance beneﬁts (PIP beneﬁts) are payable to or for the beneﬁt of an

injured person or, in the case of his or her death, to or for the

beneﬁt of his or her dependents; in the absence of a court order

directing otherwise, the insurer may pay to the surviving spouse

the PIP beneﬁts due any dependent children living with the

spouse. The no-fault act does not require the recipient of such

beneﬁts to be the children’s biological parent; rather, the beneﬁt

2019] S

LOCUM V

ARM

UREAU

627

is payable to the surviving spouse of the deceased’s spouse if the

deceased’s dependents are living with the spouse. In turn, MCL

500.3108(1), the so-called survivor’s loss provision, provides that

survivor’s loss beneﬁts payable to a deceased insured’s depen-

dents include contributions of tangible things of economic value,

not including services, that dependents of the deceased at the

time of deceased’s death would have received for support from

the deceased during their dependency if the deceased had not

suffered the accidental bodily injury causing death and include

expenses, not exceeding $20 a day, reasonably incurred by the

dependents during their dependency. Accordingly, survivor’s loss

beneﬁts include (1) economic loss, which is the loss of contribu-

tions of tangible things of economic value, not including ser-

vices, and (2) replacement-services costs, which are the ex-

penses, not exceeding $20 a day, reasonably incurred in

replacing ordinary and necessary expenses. For purposes of

MCL 500.3108(1), the phrase “tangible things of economic

value” refers to something that is capable of being valued or

having its worth ascertained. The dollar value of beneﬁts

derived from other and different sources beyond wages and

salary—for example, employer-provided health insurance cover-

age, pensions, and disability beneﬁts—must be taken into

account; medical and dental insurance and after-tax wages

constitute “tangible things of economic value” under the statu-

tory provision. The goal of MCL 500.3108(1) is to maintain the

level of support the survivor received from the deceased, not to

maintain the ﬁnances sustaining that support; when an in-

sured’s death splits custody for dependents previously covered

under a single medical or dental insurance policy, the depen-

dents are entitled to the cost of replacing the coverage they

enjoyed before the deceased’s death, not merely the monetary

value of the prior premiums. In this case, the tangible thing of

economic value was the dependents’ medical and dental insur-

ance, not the premiums paid for the insurance by Robert’s

employer for all the dependents. Therefore, because the mon-

etary value of the precrash premium would have been insufﬁ-

cient to maintain the dependents’ level of support after Robert’s

death, the circuit court correctly concluded that the insurers

were liable for the cost of coverage substantially similar to what

Robert’s dependents received before Robert’s death.

2. Under MCL 500.3142, PIP beneﬁts are payable as loss

accrues; the beneﬁts are overdue if not paid within 30 days after

an insurer receives reasonable proof of the fact and of the amount

of loss sustained. If reasonable proof is not supplied as to the

entire claim, the amount supported by reasonable proof is over-

628 328

ICH

626 [June

due if not paid within 30 days after the proof is received by the

insurer; any part of the remainder of the claim that is later

supported by reasonable proof is overdue if not paid within 30

days after the proof is received by the insurer. Penalty interest

must be assessed against a no-fault insurer if the insurer refused

to pay beneﬁts and is later determined to be liable, regardless of

whether the insurer acted in good faith when not promptly paying

the beneﬁts. Relatedly, MCL 500.3148(1) provides that an attor-

ney is entitled to a reasonable fee for advising and representing a

claimant in an action for PIP beneﬁts that are overdue; the

attorney’s fee is a charge against the insurer in addition to the

beneﬁts recovered if the court ﬁnds that the insurer unreasonably

refused to pay the claim or unreasonably delayed in making a

proper payment. In other words, attorney fees are not warranted

when the beneﬁts were reasonably in dispute or the beneﬁts were

not yet overdue. A delay is not unreasonable if it is based on a

legitimate question of statutory construction, constitutional law,

or factual uncertainty. In this case, Farm Bureau’s explanation

for denying Rachel’s initial claim—that it could not reasonably

determine to whom to pay the beneﬁt because the children were

too close in age to all be Rachel’s biological children—was not a

sufﬁcient reason, on its own, to deny her payment of the beneﬁt;

instead, the question was whether the children were living with

Rachel during the period relevant to the request. Because the

custody dispute did not arise until more than 30 days after Rachel

submitted her ﬁrst request for beneﬁts on August 18, 2016, and

there was no dispute that all the children were living with her

during the relevant period, Rachel was entitled to statutory

interest for Farm Bureau’s failure to timely pay that beneﬁt and

to attorney fees in relation to that ﬁrst refusal. Rachel was not

entitled to statutory interest or attorney fees related to the

remainder of the beneﬁts owed because the insurers did not

receive reasonable proof of the proper payees, the amount owed to

each dependent, and sufﬁcient information to reasonably deter-

mine how to apportion the wage-loss beneﬁt between Rachel and

the three children. Accordingly, the circuit court correctly

awarded statutory interest and attorney fees for the initial

delayed payment and correctly denied such interest and attorney

fees for the remainder of the requested payments.

Afﬁrmed.

NSURANCE

— N

-F

AULT

— S

URVIVOR

’

OSS

ENEFITS

— “T

ANGIBLE

HINGS OF

CONOMIC

ALUE

” — M

EDICAL AND

ENTAL

NSURANCE

MCL 500.3108(1) provides that survivor’s loss beneﬁts payable to a

deceased insured’s dependents include contributions of tangible

2019] S

LOCUM V

ARM

UREAU

629

things of economic value, not including services, that dependents

of the deceased at the time of deceased’s death would have

received for support during their dependency from the deceased if

the deceased had not suffered the accidental bodily injury causing

death, and expenses, not exceeding $20 a day, reasonably in-

curred by the dependents during their dependency; the phrase

“tangible things of economic value” refers to something that is

capable of being valued or having its worth ascertained; medical

and dental insurance and after-tax wages constitute “tangible

things of economic value” under the statutory provision; when an

insured’s death splits custody for dependents previously covered

under a single medical or dental insurance policy, the dependents

are entitled to the cost of replacing the coverage they enjoyed

before the deceased’s death, not merely the monetary value of the

prior premiums.

Sinas, Dramis, Larkin, Graves & Waldman, PC (by

George T. Sinas, Joel T. Finnell, and Catherine E.

Tucker) for Rachel Slocum and Caroline Slocum.

Willingham & Coté PC (by Kimberlee A. Hillock) for

Farm Bureau General Insurance Company of Michi-

gan.

Garan Lucow Miller, PC (by Caryn A. Ford) for

United Services Automobile Association.

Before: M

ETER

, P.J., and J

ANSEN

and M. J. K

ELLY

, JJ.

ETER

, P.J. In these consolidated cases, the parties

challenge the circuit court’s orders requiring the insur-

ers to pay certain survivor’s loss beneﬁts under the

no-fault act, MCL 500.3101 et seq., as well as penalty

interest and attorney fees. In pertinent part, we are

called upon to decide whether a deceased’s dependents

are entitled to the replacement cost of obtaining medi-

cal and dental beneﬁts similar to those provided by the

deceased’s former employer or to the monetary value of

the premiums paid by the former employer. Recogniz-

ing that the survivor’s loss provisions of the no-fault

630 328 M

ICH

626 [June

act are designed to maintain the deceased’s support of

his dependents following his death, we conclude that

the dependents are entitled to the cost of obtaining

substantially similar policies to those provided them

by the deceased’s former employer. Finding no errors,

we afﬁrm the circuit court’s orders.

I. BACKGROUND

Robert Slocum was killed in a motorcycle crash on

August 4, 2016. At the time of the crash, Robert

was

married to Rachel Slocum. Rachel is the biological

mother of one minor child, Noah, whom Robert had

adopted. Robert also had two minor children—Drayke

and Dayja—from his previous marriage to Amber

Floyd. At the time of the crash, all three of Robert’s

children lived with him and Rachel. Rachel and the

children depended on Robert for ﬁnancial support and

medical and dental insurance—among other support—

which Robert received through his employer. Caroline

Slocum is Robert’s mother and the children’s paternal

grandmother; David Slocum is the children’s paternal

grandfather. Farm Bureau General Insurance Com-

pany and United States Automobile Association

(USAA) insured vehicles involved in the fatal crash.

One week after the crash, Caroline petitioned for

guardianship over Drayke and Dayja. On August 18,

2016, Rachel submitted a claim to Farm Bureau and

USAA for no-fault and survivor’s loss beneﬁts for her

and all three children. Rachel requested that the

insurers pay all beneﬁts to her, indicating that all

three children were living with her at the time and

submitting documentation supporting her request for

Given that many parties in this case share a common surname, we

will use ﬁrst names in this opinion where helpful to avoid any confusion.

2019] S

LOCUM V

ARM

UREAU

631

immediate payment of Robert’s monthly after-tax in-

come, $2,097.33. Rachel also claimed entitlement to

lost fringe beneﬁts, including medical and dental in-

surance. Farm Bureau requested that Rachel autho-

rize the release of Robert’s medical records, which she

completed in late August. The insurers did not imme-

diately pay Rachel any beneﬁt.

On October 5, 2016, Rachel sent Farm Bureau a

follow-up letter with additional documentation of Rob-

ert’s wages and the medical and dental insurance

previously provided by Robert’s employer. Rachel also

included some information regarding the cost of replac-

ing this insurance for her and each child. The letter

indicated that Rachel was not the biological mother of

Drayke and Dayja, whose paternal grandparents had

recently been appointed temporary guardians over

them. On October 21, 2016, however, the probate court

granted Floyd sole legal and physical custody of

Drayke and Dayja and awarded Caroline and David

grandparenting time with the children.

Farm Bureau requested additional information re-

garding each dependent’s Social Security beneﬁts. In a

November 16, 2016 letter, Rachel informed Farm Bu-

reau that she was receiving Noah’s $467 Social Secu-

rity beneﬁt, that she was not personally receiving any

Social Security beneﬁts, and that Floyd was receiving

Drayke and Dayja’s beneﬁts. Rachel did not provide

information regarding the amount of Drayke and

Dayja’s Social Security beneﬁts.

In January 2017, Rachel’s counsel e-mailed Farm

Bureau additional documentation pertaining to

Rachel’s appointment as personal representative of

The same judge presided over the custody dispute and the instant

insurance dispute.

632 328

ICH

626 [June

Robert’s estate. The e-mails indicate that Drayke and

Dayja were currently in Caroline and David’s custody.

Approximately three weeks later, on February 13, 2017,

Farm Bureau ﬁled a complaint for declaratory relief,

asking the circuit court for a determination of the

proper payees of the survivor’s loss beneﬁts and how to

distribute the beneﬁts among Robert’s dependents. The

complaint identiﬁed Floyd as Drayke and Dayja’s next

friend.

Farm Bureau acknowledged that it was responsible

for paying survivor’s loss beneﬁts under MCL 500.3108

and agreed that Rachel provided sufﬁcient proof to

determine after-tax income and replacement-services

beneﬁts. Farm Bureau alleged, however, that Rachel

did not provide proof of Robert’s employer’s contribution

to the medical and dental insurance policies covering

Robert and his four dependents or adequate proof of the

amount of Social Security beneﬁts Robert’s dependents’

received. Rachel later ﬁled a complaint against Farm

Bureau and USAA. Rachel alleged that Farm Bureau

and USAA failed to pay each dependent the survivor’s

loss beneﬁts and requested penalty interest and reason-

able attorney fees connected to the refusal. The two

actions were consolidated by the parties’ agreement.

In June 2017, Floyd’s attorney contacted counsel for

Farm Bureau, indicating that Floyd had been granted

custody of Drayke and Dayja that month. Floyd was

encouraged to enter her appearance and participate in

the case, but did not do so. In July 2017, the probate

court appointed Caroline as Drayke’s and Dayja’s con-

servator. Eventually, a default judgment was entered

against Floyd, and Caroline was appointed next friend

for Drayke and Dayja in October 2017. That same

month, by Farm Bureau and USAA’s stipulation, the

circuit court ordered that each insurer was in equal

2019] S

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633

priority to pay any survivor’s loss beneﬁts owed to

Robert’s four dependents.

As of late October 2017, however, the insurers

claimed that they still did not know how to apportion

the survivor’s loss beneﬁts or who to pay the beneﬁt to

because Caroline had not yet ﬁled her appearance. The

insurers asked the circuit court to allow them to pay

the total amounts owed to the trial court until the

proper payees and apportionment could be deter-

mined. In early November, Rachel’s counsel entered

his appearance as Caroline’s attorney and ﬁled a

response proposing an apportionment of the wage-loss

beneﬁts between the four dependents and asking the

trial court to order the insurers to pay the amount

necessary for the dependents to obtain equivalent

policies. The insurers disagreed, arguing that they

were required to pay only the amount Robert’s previ-

ous employer contributed to the medical and dental

insurance policies, not the cost to replace the policies.

The circuit court ordered the insurers to pay the

amounts that were not disputed to the court pending

ﬁnal resolution of the dispute.

Subsequently, Rachel and Caroline moved for par-

tial summary disposition, arguing that they were en-

titled to statutory penalty interest and attorney fees on

the overdue wage-loss beneﬁts. Farm Bureau re-

sponded that while it did not dispute its liability for

survivor’s loss beneﬁts, it should not be liable for

statutory interest or attorney fees because it did not

know what beneﬁts to pay to which parties, a question

that remained unanswered to date. For its part, USAA

argued that it should not be liable for statutory inter-

est or attorney fees because Farm Bureau was the lead

insurer and because questions still existed regarding

what beneﬁts to pay which parties.

634 328 M

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626 [June

In December 2017, the circuit court apportioned the

money the insurers had previously paid to the trial

court pursuant to its November 2017 order, with

$4,000 in replacement-services beneﬁts and $7,345.38

in lost after-tax wages going to Rachel and $793.38 of

lost after-tax wages going to each of the three children.

In January 2018, the circuit court addressed the par-

ties’ arguments regarding medical and dental insur-

ance, penalty interest, and attorney fees.

The circuit court determined that the custody issue,

which arose after Rachel submitted the initial claim for

beneﬁts, raised a question about who should have been

paid beneﬁts on behalf of Drayke and Dayja, so the trial

court limited the award of penalty interest to the ﬁrst

undisputed payment owed in the amount of $2,097.33.

The circuit court agreed with the insurers that “the

custody matter complicated this case greatly” but com-

mented that the custody issue did not arise until after

the original claim was made. The circuit court con-

cluded that Farm Bureau was liable for reasonable

attorney fees incurred by Rachel in connection with the

initial delayed payment only.

Regarding medical and dental beneﬁts, the circuit

court noted that the custody dispute and the procure-

ment of separate policies were the result of the de-

ceased’s death and that only one medical and one dental

policy would have been necessary had the crash not

occurred. The circuit court concluded that the “contri-

butions of tangible things of economic value” that each

dependent received from Robert were the actual medi-

cal and dental beneﬁts, not the premiums paid for those

beneﬁts. (Emphasis omitted.) Accordingly, the circuit

court found that the insurers were liable to each depen-

dent for the “replacement cost or expense” of “substan-

tially similar” medical and dental beneﬁts to those they

received from Robert.

2019] S

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635

Farm Bureau, Rachel, and Caroline moved for re-

consideration of the circuit court’s orders. This appeal

followed the circuit court’s denial of those motions.

II. ANALYSIS

“The goal of the no-fault insurance system [is] to

provide victims of motor vehicle accidents assured,

adequate, and prompt reparation for certain economic

losses.” Shavers v Attorney General, 402 Mich 554,

578-579; 267 NW2d 72 (1978). The no-fault act desig-

nates the beneﬁciaries of personal protection insurance:

Personal protection insurance beneﬁts are payable to

or for the beneﬁt of an injured person or, in case of his

death, to or for the beneﬁt of his dependents. Payment by

an insurer in good faith of personal protection insurance

beneﬁts, to or for the beneﬁt of a person who it believes is

entitled to the beneﬁts, discharges the insurer’s liability to

the extent of the payments unless the insurer has been

notiﬁed in writing of the claim of some other person. If

there is doubt about the proper person to receive the

beneﬁts or the proper apportionment among the persons

entitled thereto, the insurer, the claimant or any other

interested person may apply to the circuit court for an

appropriate order. The court may designate the payees

and make an equitable apportionment, taking into ac-

count the relationship of the payees to the injured person

and other factors as the court considers appropriate. In

the absence of a court order directing otherwise the

insurer may pay:

* * *

(b) To the surviving spouse, the personal protection

insurance beneﬁts due any dependent children living with

the spouse. [MCL 500.3112.]

[3]

The Legislature amended many provisions of the no-fault act

through the adoption of 2019 PA 21, effective June 11, 2019. See MCL

636 328

ICH

626 [June

Survivor’s loss beneﬁts payable to a deceased insured’s

dependents include

contributions of tangible things of economic value, not

including services, that dependents of the deceased at the

time of the deceased’s death would have received for

support during their dependency from the deceased if the

deceased had not suffered the accidental bodily injury

causing death and expenses, not exceeding $20.00 per day,

reasonably incurred by these dependents during their

dependency and after the date on which the deceased died

in obtaining ordinary and necessary services in lieu of

those that the deceased would have performed for their

beneﬁt if the deceased had not suffered the injury causing

death. [MCL 500.3108(1).]

Accordingly, survivor’s loss beneﬁts have two compo-

nents: “(1) economic loss . . . , which is the loss of

contributions of tangible things of economic value, not

including services, and (2) replacement services

costs . . . , which are the expenses, not exceeding $20 a

day, reasonably incurred in replacing ordinary and

necessary services.” Wood v Auto-Owners Ins Co, 469

Mich 401; 404; 668 NW2d 353 (2003). “[T]he phrase

‘tangible things of economic value’ refers to something

that is capable of being valued or having its worth

ascertained.” Scugoza v Metro Direct Prop & Cas Ins

Co, 316 Mich App 218, 224; 891 NW2d 274 (2016).

In this case, the parties agree that Robert’s medical

and dental insurance and after-tax wages constitute

“tangible things of economic value” within the meaning

of MCL 500.3108(1). The parties dispute, however, how

the insurers were to compensate Robert’s dependents

for their loss of his medical and dental beneﬁts and

whether the insurers unjustiﬁably delayed in compen-

500.3112, MCL 500.3142, and MCL 500.3148. Because the changes to

the provisions discussed in this opinion do not affect our analysis, the

statutory language quoted is that in effect before the 2019 changes.

2019] S

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637

sating the dependents for Robert’s lost wages. We

address each argument in turn.

A. MEDICAL AND DENTAL BENEFITS

The insurers in this case do not dispute that Robert’s

dependents were entitled to compensation for lost

medical and dental beneﬁts provided by Robert’s for-

mer employer. The insurers argue, however, that the

trial court erred by awarding the dependents the cost

of procuring similar medical and dental policies, i.e.,

the replacement cost of those policies. According to the

insurers, MCL 500.3108 entitled the dependents only

to the amount Robert’s employer actually contributed

to the medical and dental policies, i.e., the prior ﬁnan-

cial outlay for those beneﬁts.

“The primary rule of statutory construction is to

effectuate the intent of the Legislature, and where the

statutory language is clear and unambiguous, it is

generally applied as written.” Proudfoot v State Farm

Mut Ins Co, 469 Mich 476, 482; 673 NW2d 739 (2003).

“Given the remedial nature of the no-fault act, courts

must liberally construe its provisions in favor of the

persons who are its intended beneﬁciaries.” Frierson v

West American Ins Co, 261 Mich App 732, 734; 683

NW2d 695 (2004) (quotation marks and citations omit-

ted).

As already noted, survivor’s loss beneﬁts payable to

a deceased insured’s dependents include “contribu-

tions of tangible things of economic value, not includ-

ing services, that dependents of the deceased at the

time of the deceased’s death would have received for

support during their dependency from the deceased if

the deceased had not suffered the accidental bodily

injury causing death . . . .” MCL 500.3108(1). The in-

surers argue that our Supreme Court’s opinion in

638 328 M

ICH

626 [June

Miller v State Farm Mut Auto Ins Co, 410 Mich 538;

302 NW2d 537 (1981), entitles dependents only to the

monetary cost of the insurance policies, in the amount

paid by the deceased’s former employer. In the context

of deciding whether a survivor’s loss beneﬁt included

the deceased’s gross or after-tax wages, the Miller

court explained that “the ‘tangible things of economic

value’ which many persons contribute to the support of

their dependents include hospital and medical insur-

ance beneﬁts, disability coverage, pensions, invest-

ment income, annuity income and other beneﬁts.” Id.

at 557. Our Supreme Court noted that by using the

broader phrasing of “contributions of tangible things of

economic value,” the Legislature intended to include

“beneﬁts derived for family support from other and

different sources” beyond wages and salary. Id. In

other words, “[t]he dollar value of such items as

employer-provided health insurance coverage, pen-

sions, disability beneﬁts, and other tangible things of

economic value that are lost to the surviving depen-

dents by reasons of the insured’s death must be taken

into account” when determining the survivor’s loss

beneﬁt. Id. at 561.

The parties also discuss this Court’s ruling in

Gauntlett v Auto-Owners Ins Co, 242 Mich App 172;

617 NW2d 735 (2000). The Gauntlett plaintiff was a

minor whose mother had died after a car crash. Id. at

174. While living, the plaintiff’s mother derived her

income solely as the beneﬁciary of a trust, and the

plaintiff became the sole beneﬁciary of that trust after

his mother died. Id. The insurer refused to pay the

plaintiff a survivor’s loss beneﬁt, arguing that the

plaintiff did not demonstrate a loss when he continued

to receive payments from the trust. Id. The plaintiff

argued that he suffered a loss in investment income

when “the trust corpus was decreased because of estate

2019] S

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639

and inheritance taxes, funeral expenses, and be-

quests[.]” Id. The trial court ruled that “the measure of

loss was the decrease in the income-producing assets

and not the actual trust disbursements.” Id. at 176.

This Court disagreed because the “plaintiff would not

have received these funds if his mother had lived

because the trust would have continued in her name.”

Id. at 185. This Court ruled that the difference be-

tween the amount of “support” the plaintiff had re-

ceived from the trust before and after his mother’s

death was the proper measure of the plaintiff’s loss,

not the change to the trust corpus. Id. at 186.

These cases do not directly address the issue at

hand. While Miller establishes that MCL 500.3108

entitles survivors to fringe beneﬁts, including the

value of medical and dental beneﬁts, it does not ad-

dress how to determine the monetary value of these

beneﬁts. Rather, in Miller, the plaintiffs submitted no

evidence beyond documentation of the deceased’s

wages, so our Supreme Court concluded that the trial

court did not err by limiting the calculated beneﬁt to

wages. Miller, 410 Mich at 560-562. For its part, the

factual situation in Gauntlett is unique; the difﬁculty

in comparing a trust corpus to employer-provided

insurance is facially apparent.

Yet although these cases do not directly address the

issue here, they are helpful to the extent that they

clarify that the central question in any MCL 500.3108

analysis is what the dependents would have received if

the deceased had not died. The goal of the survivor’s loss

provision is to maintain the level of support the survivor

received from the deceased, not to maintain the ﬁnances

sustaining that support. It is noteworthy that the Leg-

islature chose to provide compensation for “contribu-

tions of tangible things of economic value . . . that de-

pendents . . . would have received for support during

640 328 M

ICH

626 [June

their dependency . . . .” MCL 500.3108(1) (emphasis

added). Had the Legislature intended to continue only

the previous ﬁnancial outlays through the survivor’s

loss beneﬁt, rather than the resulting things those

outlays contribute to the dependent’s support, it would

have stated as much.

In this case, the tangible thing of economic value was

the dependents’ medical and dental insurance, not the

premiums paid for the insurance by Robert’s employer.

If Robert had lived and continued working, his depen-

dents would have continued to receive medical and

dental insurance coverage through Robert’s employer. It

is particularly noteworthy that the increased cost of

insurance was a result of Robert’s death; had Robert not

been involved in the crash, the children would have

remained in his care and would have been supported by

the same insurance policies. Because the monetary

value of the precrash premium would have been insuf-

ﬁcient to maintain Robert’s dependents’ level of support

after his death, the circuit court properly concluded that

the insurers were liable for the cost of coverage substan-

tially similar to what Robert’s dependents received

before Robert died.

B. PENALTY INTEREST AND ATTORNEY FEES

The parties do not dispute that Robert’s dependents

were entitled to compensation for lost after-tax income.

Rather, they dispute whether and when Farm Bureau

That the maintenance of support is the central object of MCL

500.3108 is also made evident by the fact that the survivor’s beneﬁt is

offset by the contribution made to the dependent’s support by Social

Security programs. See Wood, 469 Mich at 404-406. While the total

amount of support remains the same, it is maintained by a conglomerate

of contributors following the deceased’s death.

The insurers argue that this resolution doubly compensates Robert’s

dependents because Robert’s contribution to their insurance coverage

2019] S

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641

received reasonable proof of the fact and the amount of

the loss sustained. The dependents argue that they are

entitled to statutory interest and attorney fees on the

entirety of the refused payments; Farm Bureau avers

that no award of statutory interest or attorney fees was

warranted.

We agree with the circuit court that Ra-

chel was entitled to statutory interest and attorney

fees in relation to the ﬁrst requested payment but that

the dependents were not entitled to statutory interest

and attorney fees in relation to the remainder of the

unpaid beneﬁts.

The no-fault act provides for interest on overdue

beneﬁts as follows:

(1) Personal protection insurance beneﬁts are payable

as loss accrues.

(2) Personal protection insurance beneﬁts are overdue

if not paid within 30 days after an insurer receives

reasonable proof of the fact and of the amount of loss

sustained. If reasonable proof is not supplied as to the

entire claim, the amount supported by reasonable proof is

overdue if not paid within 30 days after the proof is

received by the insurer. Any part of the remainder of the

claim that is later supported by reasonable proof is over-

due if not paid within 30 days after the proof is received by

the insurer. . . .

(3) An overdue payment bears simple interest at the

rate of 12% per annum. [MCL 500.3142.]

The penalty-interest provision “is intended to penalize

an insurer that is dilatory in paying a claim.” Williams

when he was alive came out of his wages, for which his dependents are

also receiving compensation. Robert’s earnings statements show, how-

ever, that his contribution to insurance came out of his pretax income.

Because the wage-loss provided by the insurers only compensates

Robert’s dependents for the loss of Robert’s after-tax wages, there is no

double compensation.

USAA did not address this issue in its appellate brief.

642 328

ICH

626 [June

v AAA Mich, 250 Mich App 249, 265; 646 NW2d 476

(2002). “Penalty interest must be assessed against a

no-fault insurer if the insurer refused to pay beneﬁts

and is later determined to be liable, irrespective of the

insurer’s good faith in not promptly paying the ben-

eﬁts.” Id. In addition to penalty interest, the no-fault

act provides for payment of attorney fees for an unjus-

tiﬁed refusal:

An attorney is entitled to a reasonable fee for advising

and representing a claimant in an action for personal or

property protection insurance beneﬁts which are overdue.

The attorney’s fee shall be a charge against the insurer in

addition to the beneﬁts recovered, if the court ﬁnds that

the insurer unreasonably refused to pay the claim or

unreasonably delayed in making proper payment. [MCL

500.3148(1).]

Attorney fees are not warranted when the beneﬁts

“were reasonably in dispute, or, stated slightly differ-

ently, beneﬁts [were] not yet overdue.” Moore v Secura

Ins, 482 Mich 507, 519; 759 NW2d 833 (2008). “[A]

delay is not unreasonable if it is based on a legitimate

question of statutory construction, constitutional law,

or factual uncertainty. When an insurer refuses to

make or delays in making payment, a rebuttable

presumption arises that places the burden on the

insurer to justify the refusal or delay.” Attard v Citi-

zens Ins Co of America, 237 Mich App 311, 317; 602

NW2d 633 (1999) (citation omitted). The determinative

question “is not whether the insurer ultimately is held

responsible for beneﬁts, but whether its initial refusal

to pay was unreasonable.” Ross v Auto Club Group, 481

Mich 1, 11; 748 NW2d 552 (2008).

The dependents argue that they are entitled to

statutory interest and attorney fees on the entirety of

the delayed payments. We disagree. In her initial

2019] S

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643

application for lost after-tax income, Rachel provided

proof of the amount of lost wages, $2,097.33, and

supported this amount with Robert’s last two earnings

statements and his tax returns. Rachel also indicated

that all three children were living with her at the time.

Farm Bureau does not argue that Rachel failed to

provide adequate proof of the amount of loss; rather,

Farm Bureau argues that it could not reasonably

determine to whom it was to pay the beneﬁt because,

as indicated on the application, the children were too

close in age to be Rachel’s biological children. The

no-fault act, however, does not require the recipient of

insurance disbursements to be the children’s biological

parent. As noted previously, “[p]ersonal protection in-

surance beneﬁts are payable to or for the beneﬁt of an

injured person or, in case of his death, to or for the

beneﬁt of his dependents.” MCL 500.3112 (emphasis

added). The beneﬁt is payable to the surviving spouse

of the deceased provided only that the deceased’s

“dependent children [are] living with the spouse.” MCL

500.3112(b).

Accordingly, the fact that a question existed regard-

ing which children were Rachel’s biological children

was not sufﬁcient, on its own, to deny her payment of

the beneﬁt. The relevant question, rather, was whether

the children were living with Rachel during the period

relevant to the request. Regarding the ﬁrst application

for beneﬁts, Farm Bureau has not cited any facts that

would create a question whether the children were

living with Rachel at that time. Indeed, the parties do

not dispute that the children were actually living with

Rachel on September 17, 2016, at which time the

30-day investigatory deadline expired and the ﬁrst

beneﬁt became due. As recognized by the circuit court,

the custody dispute did not arise until after the ﬁrst

beneﬁt was due. Accordingly, we agree with the circuit

644 328 M

ICH

626 [June

court that Rachel was entitled to statutory interest for

Farm Bureau’s failure to timely pay the ﬁrst requested

beneﬁt and to attorney fees in relation to this ﬁrst

refusal.

As for the remainder of the beneﬁt, however, we

agree with Farm Bureau that the insurers did not

receive reasonable proof of the proper payees and the

amount owed to each dependent. Beginning with Ra-

chel’s October 5, 2016 acknowledgment that Drayke

and Dayja were not her children and were not living

with her and continuing throughout the custody dis-

pute and the initiation of this case, substantial ques-

tions surrounded Drayke and Dayja’s legal guardian

and living arrangements. Indeed, the insurers were

not informed that they should pay Drayke and Dayja’s

beneﬁts to Caroline until after the commencement of

this suit.

Moreover, the economic-loss component of survivor’s

loss beneﬁts must be offset by Social Security beneﬁts.

Wood, 469 Mich at 404-406. Despite requesting beneﬁt

information for all three children, the insurers did not

receive information regarding Drayke and Dayja’s So-

cial Security disbursements until discovery in this

case. Therefore, the insurers could not reasonably

determine how to apportion the wage-loss beneﬁt be-

tween Rachel and the three children before the com-

mencement of this suit.

Accordingly, because questions existed regarding

who were the children’s proper payees and how to

apportion beneﬁts between the dependents, we agree

with the circuit court that the insurers were not

required to pay penalty interest on the remaining

requested payments. Additionally, because the insur-

ers did not unjustiﬁably refuse the remaining re-

quested payments, we conclude that the circuit court

2019] S

LOCUM V

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645

did not err by limiting recovery of attorney fees to those

expended by counsel in relation to payment of the ﬁrst

requested wage-loss beneﬁt.

III. CONCLUSION

The survivor’s loss provisions of the no-fault act are

designed to maintain the support an insured’s depen-

dents received before a fatal crash. When an insured’s

death splits custody for dependents previously covered

under a single medical or dental insurance policy, the

dependents are entitled to the cost of replacing the

coverage they enjoyed before the deceased’s death, not

merely the monetary value of the prior premiums. For

the reasons stated in this opinion, we afﬁrm the circuit

court’s orders awarding Robert’s dependents the cost of

obtaining substantially similar medical and dental

beneﬁts to those that they had received from Robert’s

employer and awarding Rachel statutory interest and

attorney fees in connection with the insurers’ delay in

paying the ﬁrst requested wage-loss beneﬁt.

ANSEN

and M. J. K

ELLY

, JJ., concurred with M

ETER

P.J.

We disagree with Rachel that she is entitled to attorney fees on the

entire case because separating fees would be “a logistical nightmare.”

Attorneys are required to keep regular, itemized records of the hours

expended on a case. Rachel has not shown that it is impracticable to

distinguish between services rendered to recover the ﬁrst requested

payment and those provided for other purposes or to apportion payment

for services rendered for multiple purposes. We note that the initial

unjustiﬁed delay makes up the minority of the delayed payments in this

case and that granting Rachel attorney fees on the entire case would

effectively give her a “windfall” when the majority of delays were not

unjustiﬁed.

646 328

ICH

626 [June

PEOPLE v MORRISON

Docket No. 344531. Submitted June 4, 2019, at Lansing. Decided June 18,

2019, at 9:10 a.m.

Stanton W. Morrison was charged in the Jackson Circuit Court with

possession of methamphetamine, MCL 333.7403(2)(b)(i), and

possession of methamphetamine analogues, MCL

333.7403(2)(b)(ii). Defendant had overdosed on drugs in his

mother’s home, and his mother called the police. Police later

executed a search warrant for defendant’s bedroom and found

0.44 grams of MDMA (commonly known as ecstasy), 3.53 grams of

a synthetic opioid called U-47700, and 369 pills of Xanax. Defen-

dant was charged with possession of methamphetamine and

methamphetamine analogues, but he was not charged with

possession of U-47700 because it is not a controlled substance in

Michigan. Defendant moved to dismiss the charges on the basis of

the Good Samaritan law, MCL 333.7403(3)(a). The prosecution

argued that MCL 333.7403(3)(a) did not apply because the

amount of Xanax found in defendant’s room far exceeded an

amount “sufﬁcient only for personal use.” The trial court, Thomas

D. Wilson, J., held a hearing on defendant’s motion and entered

an order dismissing the charges, reasoning that MCL

333.7403(3)(a) applied because it was sound public policy.

The Court of Appeals held:

When interpreting statutory language, a court may not look to

the statute’s purpose or its public-policy objectives unless the

statutory language is ambiguous. MCL 333.7403(1) provides, in

relevant part, that a person shall not knowingly or intentionally

possess controlled substances or their analogues. However, under

MCL 333.7403(3)(a), an individual is not in violation of MCL

333.7403(1) when that individual seeks medical assistance for

himself or herself or requires medical assistance and is presented

for assistance by another individual if he or she is incapacitated

because of a drug overdose or other perceived medical emergency

arising from the use of a controlled substance or a controlled

substance analogue that he or she possesses or possessed in an

amount sufﬁcient only for personal use and the evidence of his or

her violation is obtained as a result of the individual’s seeking or

2019] P

EOPLE V

ORRISON

647

being presented for medical assistance. In this case, the trial court

failed to engage in any statutory interpretation; the sole basis for

the trial court’s decision was the public policy behind the Good

Samaritan law, namely, the priority of saving lives over the

criminal prosecution of illegal drug users. Accordingly, the trial

court erred when it dismissed the charges against defendant

without ﬁnding that the amount of Xanax he possessed was an

amount sufﬁcient only for his personal use. To determine whether

defendant possessed Xanax in an “amount sufﬁcient only for

personal use” required a factual determination of what amount a

speciﬁc person regularly takes. However, based on the trial court

record at the time the motion was heard, the evidence was

insufﬁcient to make that determination. At that time, the record

consisted only of the prosecution’s opinion that defendant had

more Xanax than was sufﬁcient for personal use; the prosecution

did not put forth any evidence about what “personal use” typically

looks like for a Xanax user, and defendant did not put forth any

evidence about his drug habits or his personal Xanax use. There-

fore, even if the trial court had applied the statute properly, there

was no evidence on which it could base its ﬁndings.

Reversed and remanded.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, Jerard M. Jarzynka,

Prosecuting Attorney, and Jerrold Schrotenboer, Chief

Appellate Attorney, for the people.

The Zalewski Law Firm (by Paul J. Zalewski) for

defendant.

Before: M

ETER

, P.J., and J

ANSEN

and M. J. K

ELLY

, JJ.

URIAM

. The prosecution appeals as of right the

trial court’s order granting defendant’s motion to dis-

miss charges of possession of methamphetamine, MCL

333.7403(2)(b)(i), and possession of methamphetamine

analogues, MCL 333.7403(2)(b)(ii). We reverse and

remand.

The prosecution argues that the trial court erred

when it granted defendant’s motion to dismiss the

648 328 M

ICH

647 [June

charges pursuant to the “Good Samaritan law,” MCL

333.7403(3)(a), because the court relied on public

policy supporting the law, rather than statutory inter-

pretation or ﬁndings of fact, and the amount of drugs

that defendant possessed was in excess of an amount

“sufﬁcient only for personal use.” Because the trial

court failed to consider the statutory language, we

agree that the trial court erred by dismissing the

charges.

In January 2017, defendant’s mother called the

police because defendant overdosed on drugs. When

law enforcement and emergency medical services ar-

rived, defendant was unconscious and unresponsive.

Defendant was transported to the hospital and tested

positive for amphetamines, benzodiazepines, cannabi-

noids, and opiates. He had acute respiratory failure,

and he required intubation and mechanical ventila-

tion. He was discharged from the hospital four days

later. When the police executed a search warrant for

defendant’s bedroom, they found 0.44 grams of MDMA

(commonly known as ecstasy), 3.53 grams of a syn-

thetic opioid called U-47700, and 369 pills of Xanax.

Defendant was charged with possession of metham-

phetamine (MDMA) and methamphetamine analogues

(Xanax) in January 2018. He was not charged with

possession of U-47700 because it is not a controlled

substance in Michigan. Defendant was arrested in

February 2018.

In June 2018, defendant moved to dismiss the

charges on the basis of the Good Samaritan law, MCL

333.7403(3)(a). The prosecution conceded the factual

allegations underlying defendant’s arrest but argued

that the Good Samaritan law did not apply because the

amount of Xanax found in defendant’s room far ex-

ceeded an amount “sufﬁcient only for personal use.”

2019] P

EOPLE V

ORRISON

649

The prosecution did not support its response to defen-

dant’s motion with afﬁdavits or other documentary

evidence. The court held a hearing on defendant’s

motion and merely provided on the record:

And if [defendant’s] mother hadn’t called then we’d

have mom in here on charges. And, we do want to

encourage people to call.

The trial court granted defendant’s motion and entered

an order dismissing the charges.

This Court reviews a trial court’s decision on a

motion to dismiss charges against a criminal defen-

dant for an abuse of discretion. People v Nicholson, 297

Mich App 191, 196; 822 NW2d 284 (2012). An abuse of

discretion occurs when the trial court’s decision “falls

outside the range of principled outcomes.” Id.

“Whether a defendant’s conduct falls within the scope

of a penal statute is a question of statutory interpre-

tation that is reviewed de novo.” People v Rea, 500

Mich 422, 427; 902 NW2d 362 (2017).

A person shall not knowingly or intentionally pos-

sess controlled substances or their analogues. MCL

333.7403(1). However, in certain circumstances, if an

individual overdoses on a controlled substance, that

individual may not be in violation of the statute. As

provided in the Good Samaritan law:

An individual who seeks medical assistance for himself

or herself or who requires medical assistance and is

presented for assistance by another individual if he or she

is incapacitated because of a drug overdose or other

perceived medical emergency arising from the use of a

controlled substance or a controlled substance analogue

that he or she possesses or possessed in an amount

sufﬁcient only for personal use and the evidence of his or

her violation of this section is obtained as a result of the

650 328

ICH

647 [June

individual’s seeking or being presented for medical assis-

tance. [MCL 333.7403(3)(a) (emphasis added).]

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

effect to the Legislature’s intent by ﬁrst looking to the

plain language of the statute. People v Lowe, 484 Mich

718, 721-722; 733 NW2d 1 (2009). If the statutory

language is unambiguous, the court must apply the

language as written, and further analysis is neither

required nor permitted. People v Borchard-Ruhland,

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

presume that each word has some meaning and should

avoid constructions that render a part of the statute

“surplusage or nugatory.” Id. at 285. A court may not

look to the statute’s purpose or its public-policy objec-

tives unless the statutory language is ambiguous or

unclear. People v Pinkney, 501 Mich 259, 272; 912

NW2d 535 (2018). When a court looks to public policy

without ﬁrst analyzing the plain language, the court

“ ‘runs counter to the rule of statutory construction

directing us to discern legislative intent from plain

statutory language.’ ” Id., quoting Perkovic v Zurich

American Ins Co, 500 Mich 44, 53; 893 NW2d 322

(2017).

There is no caselaw interpreting or applying the

Good Samaritan law. Defendant relies on People v

Baham, 321 Mich App 228; 909 NW2d 836 (2017), a

case in which this Court interpreted a similar

personal-use exception regarding the manufacture of

methamphetamine. This Court considered a similar

question in 1987, but in the context of an individual

who was growing marijuana. People v Pearson, 157

Mich App 68, 72; 403 NW2d 498 (1987).

In both cases,

Although not binding authority, decisions of this Court before

November 1, 1990, may be persuasive. MCR 7.215(J)(1); People v

Vandenberg, 307 Mich App 57, 67 n 2; 859 NW2d 229 (2014).

2019] P

EOPLE V

ORRISON

651

the Court held that a personal-use exception applies

only to the preparation and compounding of a con-

trolled substance already in existence, not the growth

or manufacture of new controlled substances. Baham,

321 Mich App at 242-243; Pearson, 157 Mich App at 72.

The Court did not engage in a discussion of what an

“amount sufﬁcient only for personal use” might be in

either case. Therefore, neither case is directly appli-

cable to the question at hand.

To determine whether defendant possessed Xanax in

an “amount sufﬁcient only for personal use” pursuant

to MCL 333.7403(3)(a), the court must ﬁrst look at the

plain language of the statute. Black’s Law Dictionary

(10th ed) deﬁnes “personal” as “1. Of or affecting a

person . . . . 2. Of or constituting personal property.”

The relevant Black’s Law Dictionary deﬁnitions of

“use” are “6. To take (an amount of something) from a

supply . . . . 9. To regularly take; to partake of (drugs,

tobacco, etc.).” Id.

Considering these deﬁnitions, an “amount sufﬁcient

only for personal use” requires a factual determination

of what amount a speciﬁc person regularly takes. This

requires a case-by-case application of the language

based on each individual defendant’s personal-use

habits. If a defendant possesses an amount of a con-

trolled substance that he or she would regularly take,

the Good Samaritan law offers the defendant protec-

tion from prosecution. However, if a defendant pos-

sesses an amount of a controlled substance larger than

an amount he or she would regularly consume, the

Good Samaritan law offers the defendant no protec-

tion. This is consistent with this Court’s holding that a

defendant’s intent to deliver drugs may be inferred

from the quantity of drugs in his or her possession and

the way the drugs are packaged. People v McGhee, 268

652 328 M

ICH

647 [June

Mich App 600, 611; 709 NW2d 595 (2005). See also

People v Wolfe, 440 Mich 508, 524; 489 NW2d 748

(1992) (holding that intent to deliver may be inferred

from the quantity of the narcotics, packaging, and

other circumstantial evidence).

The burden is on defendant to establish as an

afﬁrmative defense that the exemption to a criminal

statute provided in the Good Samaritan law applies by

presenting prima facie evidence of the elements of the

defense. People v Crawford, 232 Mich App 608, 619;

591 NW2d 669 (1998); People v Lemons, 454 Mich 234,

248; 562 NW2d 447 (1997). Whether a defendant

establishes an afﬁrmative defense is typically a ques-

tion for the jury. People v Waltonen, 272 Mich App 678,

690 n 5; 728 NW2d 881 (2006). However, if the defen-

dant fails to establish an element of the defense, the

trial court cannot present the defense to the jury for

consideration and it becomes a question of law for the

court. See Crawford, 232 Mich App at 619 (“A defen-

dant asserting an afﬁrmative defense must produce

some evidence on all elements of the defense before the

trial court is required to instruct the jury regarding the

afﬁrmative defense.”).

In this case, the trial court did not refer to the

relevant statute or engage in any statutory interpre-

tation. The trial court did not refer to the language of

the Good Samaritan law, nor did it make any ﬁndings

of fact regarding whether defendant was in possession

of an amount of Xanax “sufﬁcient only for personal

use.” MCL 333.7403(3)(a). Admittedly, there was very

little evidence before the trial court; however, the trial

court failed to refer to any of the evidence before it.

Rather, the trial court relied on the public policy

behind the Good Samaritan law, namely, the priority of

saving lives over the criminal prosecution of illegal

2019] P

EOPLE V

ORRISON

653

drug users. This was the sole basis for the trial court’s

decision. The court stated that it did not want to deter

people from seeking medical assistance, as defendant’s

mother did. The court’s actions are prohibited by

Pinkney because the court allowed public policy, rather

than plain statutory language, to guide its decision-

making. Pinkney, 501 Mich at 272. Therefore, the trial

court erred when it dismissed the charges against

defendant without ﬁnding that the amount of Xanax

he possessed was an amount sufﬁcient only for his

personal use. Id. It follows that on remand, the ques-

tion whether defendant possessed an amount of Xanax

“sufﬁcient only for personal use” should be posed to the

jury as a subjective question of fact if defendant

presents a prima facie case of the afﬁrmative defense.

Crawford, 232 Mich App at 619. If defendant fails to

meet this burden, the issue is a question of law for the

court to decide.

Additionally, based on the record before the trial

court at the time the motion was heard, the evidence

was insufﬁcient to determine whether defendant pos-

sessed an amount of Xanax “sufﬁcient only for personal

use.” MCL 333.7403(3)(a). At that time, the record

consisted only of the prosecution’s opinion that defen-

dant had more Xanax than was sufﬁcient for personal

use. The prosecution did not put forth any evidence

about what “personal use” typically looks like for a

Xanax user, and defendant did not put forth any

evidence about his drug habits or his personal Xanax

use. There was no record evidence available to deter-

mine whether the amount of Xanax recovered from

defendant’s bedroom was an amount of Xanax that

defendant would use personally. Therefore, even if the

trial court had applied the statute properly, there was

no evidence on which it could base its ﬁndings.

654 328 M

ICH

647 [June

The parties attached a number of exhibits and

afﬁdavits regarding this issue to pleadings before this

Court. However, to consider evidence presented on

appeal that the parties failed to present to the trial

court would be an impermissible expansion of the

lower-court record. See MCR 7.210(A) (“Appeals to the

Court of Appeals are heard on the original record.”);

People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d

499 (1999) (“[I]t is impermissible to expand the record

on appeal.”). On remand, the trial court must deter-

mine whether defendant established the afﬁrmative

defense for the issue to go to the jury or whether the

evidence establishes that no reasonable juror could

conclude that 369 pills of Xanax were “sufﬁcient only

for personal use,” in which case the issue is a question

of law for the court. The court should allow the parties

to present evidence on this issue to develop the record.

Additionally, the court may consider on remand other

evidence, direct and circumstantial, that indicates pos-

session with intent to deliver, McGhee, 268 Mich App

at 611; Wolfe, 440 Mich at 524, such as the quantity of

drugs, plastic bags, or other packaging; large amounts

of money; multiple cellular telephones; a scale, etc.

Reversed and remanded for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion.

ETER

, P.J., and J

ANSEN

and M. J. K

ELLY

, JJ., con-

curred.

2019] P

EOPLE V

ORRISON

655

CAN IV PACKARD SQUARE, LLC v PACKARD SQUARE, LLC

Docket No. 346218. Submitted June 5, 2019, at Lansing. Decided June 18,

2019, at 9:20 a.m. Leave to appeal denied 505 Mich 1001 (2020).

Can IV Packard Square, LLC (Can IV) brought an action in the

Washtenaw Circuit Court against Packard Square, LLC (Packard

Square), alleging that Packard Square was in default on a loan

agreement it had with Can IV and seeking a judicial foreclosure on

a mortgage securing the loan. The trial court appointed a receiver

for the property. Can IV moved for summary disposition. The trial

court, Archie C. Brown, J., granted the motion and entered a

judgment of foreclosure authorizing the sale of the property at a

sheriff’s sale. The foreclosure sale was scheduled for November 15,

2018. Packard Square moved for reconsideration and moved to

stay the foreclosure sale and the enforcement of the foreclosure

judgment. The court denied both motions. Packard Square ap-

pealed. On November 14, 2018—one day before the property was to

be sold at the sheriff’s sale—Packard Square moved in the Court of

Appeals to stay the judicial foreclosure sale. Packard Square did

not move for immediate consideration, and the Court of Appeals,

ECKERING

, P.J., and M

ARKEY

and B

OONSTRA

, JJ., denied the motion

for a stay in an unpublished order entered on November 30, 2018.

On December 18, 2018, Packard Square moved to stay the effect of

MCL 600.3410 during the pendency of its appeal or, alternatively,

to expedite its appeal. Packard Square also moved for immediate

consideration. However, because Packard Square failed to cure

defects with its December 18, 2018 motion, the Court of Appeals

entered an unpublished order striking the motion on January 8,

2019. Packard Square then moved to expedite its appeal, and the

Court of Appeals granted the motion. On May 10, 2019, Packard

Square moved to stay transfer of the property. The Court of

Appeals once again entered an unpublished order striking the

motion because Packard Square failed to cure defects with it.

The Court of Appeals held:

MCL 600.3140(1), which sets forth a statutory redemption

period for a mortgagor who has lost his or her property during a

judicial foreclosure, provides, in pertinent part, that a mortgagor

may redeem the entire premises sold as ordered under

656 328

ICH

656 [June

MCL 600.3115 by paying, within six months after the sale, the

amount that was bid with interest from the date of the sale at the

interest rate provided for by the mortgage. MCL 600.3130(1),

which is also relevant to judicial foreclosures, provides that if the

property is not redeemed during the redemption period, the deed

shall become operative as to all parcels not redeemed and shall

vest in the grantee named in the deed, his heirs, or assigns all the

right, title, and interest which the mortgagor had at the time of the

execution of the mortgage or at any time thereafter. With regard to

foreclosures by advertisement, Bryan v JPMorgan Chase Bank,

304 Mich App 708 (2014), held that a mortgagor’s failure to avail

itself of the right of redemption provided in MCL 600.3236 extin-

guishes all the mortgagor’s rights in and to the property. Both MCL

600.3130(1) and MCL 600.3236 provide that a mortgagor has a set

period of time to redeem the property and that the failure to do so

would result in the extinguishment of the mortgagor’s rights in

and to the property. Because identical language used in various

provisions of the same act should be construed identically, the

Bryan Court’s holding applied in this case; the distinction between

judicial foreclosures and foreclosures by advertisement was irrel-

evant. Accordingly, under MCL 600.3130(1) and MCL 600.3140(1),

if a mortgagor fails to avail itself of the right of redemption, all the

mortgagor’s rights in and to the property are extinguished. In this

case, because Packard Square did not redeem the property in the

six-month redemption period set forth in MCL 600.3140(1), pursu-

ant to MCL 600.3130(1), the deed Can IV received at the sheriff’s

sale became operative and all Packard Square’s rights in and to the

property were extinguished.Accordingly, Packard Square could not

be granted any relief on appeal.

Dismissed as moot.

ROPERTY

— M

ORTGAGES

— J

UDICIAL

ORECLOSURE

— F

AILURE

EDEEM

ROPERTY

MCL 600.3140(1) sets forth a statutory redemption period for a

mortgagor who has lost property because of a judicial foreclosure;

MCL 600.3130(1) addresses the consequences of a mortgagor’s

failure to redeem the property within the MCL 600.3140(1) re-

demption period; a mortgagor’s failure to redeem a property within

the time limit provided by MCL 600.3140(1) results in the extin-

guishment of all the mortgagor’s rights in and to the foreclosed

property.

Dickinson Wright PLLC (by J. Benjamin Dolan,

Phillip J. DeRosier, and Ariana D. Pellegrino) for Can

IV Packard Square, LLC.

2019] C

IV v P

ACKARD

QUARE

657

Mark Granzotto, PC (by Mark Granzotto) for Pack-

ard Square, LLC.

Before: M

ETER

, P.J., and J

ANSEN

and M. J. K

ELLY

, JJ.

URIAM

. Defendant-appellant, Packard Square,

LLC (Packard Square), appeals as of right a judgment

of foreclosure in this action ﬁled by plaintiff, Can IV

Packard Square, LLC (Can IV), to foreclose a mort-

gage on a mixed-use commercial development con-

struction project with respect to which Packard

Square was the borrower and Can IV was the lender.

Although Packard Square challenges the merits of the

trial court’s decision, we are constrained to dismiss

this appeal as moot because Packard Square failed to

redeem the property as provided in MCL 600.3140.

I. PROCEDURAL HISTORY

In October 2016, Can IV ﬁled suit against Packard

Square, alleging that Packard Square was in default

of a loan agreement it had with Can IV and seeking a

judicial foreclosure on a mortgage securing the loan.

Shortly after Can IV ﬁled its claim, on a motion from

Can IV, the trial court appointed a receiver for the

property.

The case proceeded with discovery, and Can

IV eventually moved for summary disposition, which

the trial court granted on September 20, 2018. The

court entered a judgment of foreclosure authorizing

the sale of the property at a sheriff’s sale.

The foreclosure sale was scheduled for November 15,

2018. On October 15, 2018, Packard Square ﬁled a

In a prior appeal, Packard Square challenged the trial court order

appointing a receiver for the property. This Court afﬁrmed the trial

court’s decision. See Can IV Packard Square, LLC v Packard Square,

LLC, unpublished per curiam opinion of the Court of Appeals, issued

January 23, 2018 (Docket No. 335512), p 11.

658 328

ICH

656 [June

motion to stay the foreclosure sale and the enforcement

of the foreclosure judgment entered against it. Packard

Square asserted that there was good cause to grant a

stay because the trial court erred by granting summary

disposition in Can IV’s favor and entering a judgment of

foreclosure. Packard Square also contended that a stay

was warranted because the trial court failed to make

any speciﬁc ruling on Packard Square’s afﬁrmative

defenses and its counterclaims. Finally, Packard Square

asserted that the failure to stay the proceedings “pend-

ing reconsideration and appeal” would result in “irrepa-

rable harm which will be caused should the project be

sold at a Sheriff’s Sale prior [to] a ﬁnal ruling . . . .” The

trial court denied the motion on October 16, 2018.

Thereafter, on November 1, 2018, Packard Square

ﬁled a claim of appeal in this Court, raising challenges

to the trial court’s decision. On November 14, 2018—

one day before the property was to be sold at the

sheriff’s sale—Packard Square ﬁled a motion in this

Court to stay the judicial foreclosure sale. Packard

Square, however, did not ﬁle a motion for immediate

consideration,

and the motion for a stay was denied on

November 30, 2018.

MCR 7.211(C)(6) provides:

A party may ﬁle a motion for immediate consideration to

expedite hearing on another motion. The motion must state facts

showing why immediate consideration is required. If a copy of the

motion for immediate consideration and a copy of the motion of

which immediate consideration is sought are personally served

under MCR 2.107(C)(1) or (2), the motions may be submitted to the

court immediately on ﬁling. If mail service is used, motions may

not be submitted until the ﬁrst Tuesday 7 days after the date of

service, unless the party served acknowledges receipt. The trial

court or tribunal record need not be requested unless it is required

as to the motion of which immediate consideration is sought.

Can IV Packard Square, LLC v Packard Square, LLC, unpublished

order of the Court of Appeals, entered November 30, 2018 (Docket No.

346218).

2019] C

IV v P

ACKARD

QUARE

659

On December 18, 2018, Packard Square ﬁled a

motion in this Court to stay the effect of MCL

600.3140

during the pendency of its appeal or, alter-

natively, to expedite its appeal. Packard Square

also ﬁled a motion for immediate consideration. Pack-

ard Square, however, failed to cure defects with its

December 18, 2018 motion, so this Court entered an

order striking the motion.

On January 15, 2019, Packard Square ﬁled a motion

to expedite its appeal, arguing that if a decision by this

Court was not issued before May 15, 2019, the issues it

was raising on appeal would “in essence, become

moot.” On January 22, 2019, this Court granted Pack-

ard Square’s motion to expedite its appeal.

On May 10, 2019, Packard Square ﬁled a motion to

stay transfer of the property. Packard Square noted that

the statutory redemption period provided by MCL

600.3140(1) was set to expire on May 15, 2019, and it

argued that after the redemption period expired Can IV

would be free to transfer title of the property to any

third party, which would result in material prejudice to

Packard Square. The motion, however, was struck by

this Court because Packard Square failed to cure defects

with it.

As will be discussed later in this opinion, MCL 600.3140(1) permits

a mortgagor to redeem the property by paying the amount bid plus

interest within six months of a foreclosure sale.

Can IV Packard Square, LLC v Packard Square, LLC, unpublished

order of the Court of Appeals, entered January 8, 2019 (Docket No.

346218).

Can IV Packard Square, LLC v Packard Square, LLC, unpublished

order of the Court of Appeals, entered January 22, 2019 (Docket No.

346218).

Can IV Packard Square, LLC v Packard Square, LLC, unpublished

order of the Court of Appeals, entered May 29, 2019 (Docket No.

346218).

660 328

ICH

656 [June

II. EXPIRATION OF REDEMPTION PERIOD

A. STANDARD OF REVIEW

In a supplemental brief, Can IV argues that the

issues raised by Packard Square on appeal are moot

because the six-month redemption period in MCL

600.3140(1) expired on May 15, 2019. In response,

Packard Square contends that it has standing to chal-

lenge the foreclosure proceedings. “The applicability of

a legal doctrine, such as mootness, is a question of law

which this Court reviews de novo.” TM v MZ, 501 Mich

312, 315; 916 NW2d 473 (2018) (quotation marks,

alterations, and citation omitted). And because “Michi-

gan courts exist to decide actual cases and controver-

sies,” “[t]he question of mootness is a threshold issue

that a court must address before it reaches the sub-

stantive issues of a case.” In re Tchakarova, 328 Mich

App 172, 178; 936 NW2d 863 (2019) (quotation marks

and citation omitted). As a general rule, “[t]his Court

does not decide moot issues.” Garrett v Washington,

314 Mich App 436, 449; 886 NW2d 762 (2016).

“Whether a party has standing is a question of law

subject to review de novo.” Groves v Dep’t of Correc-

tions, 295 Mich App 1, 4; 811 NW2d 563 (2011). Issues

of statutory interpretation are also reviewed de novo.

W A Foote Mem Hosp v Mich Assigned Claims Plan,

321 Mich App 159, 168; 909 NW2d 38 (2017).

B. ANALYSIS

MCL 600.3140(1) sets forth a statutory redemption

period for a mortgagor who has lost his or her property

during a judicial foreclosure. It provides, in relevant

part:

The mortgagor . . . may redeem the entire premises

sold as ordered under section 3115 by paying, within 6

2019] C

IV v P

ACKARD

QUARE

661

months after the sale, to the purchaser or the purchaser’s

personal representative or assigns, or to the register of

deeds in whose ofﬁce the deed of sale is deposited as

provided in the court rules, for the beneﬁt of the pur-

chaser, the amount that was bid with interest from the

date of the sale at the interest rate provided for by the

mortgage. [MCL 600.3140(1).]

Also relevant to judicial foreclosures, MCL 600.3130(1)

provides that if the property is not redeemed during

the redemption period, “the deed shall become opera-

tive as to all parcels not redeemed, and shall vest in the

grantee named in the deed, his heirs, or assigns all the

right, title, and interest which the mortgagor had at

the time of the execution of the mortgage or at any time

thereafter.” This Court has not had occasion to deter-

mine whether a mortgagor’s failure to redeem a prop-

erty within the time limit provided by MCL

600.3140(1) results in the extinguishment of all the

mortgagor’s rights in and to the foreclosed property.

However, in Bryan v JPMorgan Chase Bank, 304

Mich App 708, 713; 848 NW2d 482 (2014), this Court

held that with regard to a foreclosure by advertise-

ment, a mortgagor’s failure to avail itself of the right of

redemption provided in MCL 600.3236 extinguishes all

the mortgagor’s rights in and to the property. In Bryan,

the defendant argued that the plaintiff lacked standing

to bring an action challenging a foreclosure by adver-

tisement because the redemption period in MCL

600.3240 had expired without plaintiff attempting to

redeem the property. Id. This Court agreed, reasoning:

Pursuant to MCL 600.3240, after a sheriff’s sale is

completed, a mortgagor may redeem the property by

paying the requisite amount within the prescribed time

limit, which here was six months. “Unless the premises

described in such deed shall be redeemed within the time

limited for such redemption as hereinafter provided, such

662 328

ICH

656 [June

deed shall thereupon become operative, and shall vest in

the grantee therein named, his heirs or assigns, all the

right, title, and interest which the mortgagor had at the

time of the execution of the mortgage, or at any time

thereafter . . . .” MCL 600.3236. If a mortgagor fails to

avail him or herself of the right of redemption, all the

mortgagor’s rights in and to the property are extin-

guished. Piotrowski v State Land Ofﬁce Bd, 302 Mich 179,

187; 4 NW2d 514 (1942).

We have reached this conclusion in a number of unpub-

lished cases and, while unpublished cases are not prec-

edentially binding, MCR 7.215(C)(1), we ﬁnd the analysis

and reasoning in each of the following cases to be compel-

ling. Accordingly, we adopt their reasoning as our own. See

Overton v Mtg Electronic Registration Sys, unpublished

opinion per curiam of the Court of Appeals, issued May 28,

2009 (Docket No. 284950), p 2 (“The law in Michigan does

not allow an equitable extension of the period to redeem

from a statutory foreclosure sale in connection with a

mortgage foreclosed by advertisement and posting of no-

tice in the absence of a clear showing of fraud, or irregu-

larity. Once the redemption period expired, all of plaintiff’s

rights in and title to the property were extinguished.”)

(citation and quotation marks omitted); Hardwick v

HSBC Bank USA, unpublished opinion per curiam of the

Court of Appeals, issued July 23, 2013 (Docket No.

310191), p 2 (“Plaintiffs lost all interest in the subject

property when the redemption period expired . . . . More-

over, it does not matter that plaintiffs actually ﬁled this

action one week before the redemption period ended. The

ﬁling of this action was insufﬁcient to toll the redemption

period. . . . Once the redemption period expired, all plain-

tiffs’ rights in the subject property were extinguished.”);

BAC Home Loans Servicing, LP v Lundin, unpublished

opinion per curiam of the Court of Appeals, issued May 23,

2013 (Docket No. 309048), p 4 (“[O]nce the redemption

period expired, [plaintiff’s] rights in and to the property

were extinguished. . . . Because [plaintiff] had no interest

in the subject matter of the controversy [by virtue of MCL

600.3236], he lacked standing to assert his claims chal-

2019] C

IV v P

ACKARD

QUARE

663

lenging the foreclosure sale.”); Awad v Gen Motors Accep-

tance Corp, unpublished opinion per curiam of the Court

of Appeals, issued April 24, 2012 (Docket No. 302692),

pp 5-6 (“Although she ﬁled suit before expiration of the

redemption period, [plaintiff] made no attempt to stay or

otherwise challenge the foreclosure and redemption sale.

Upon the expiration of the redemption period, all of

[plaintiff’s] rights in and title to the property were extin-

guished, and she no longer had a legal cause of action to

establish standing.”). We hold that by failing to redeem

the property within the applicable time, plaintiff lost

standing to bring her claim. [Id. at 713-715.]

On appeal, Packard Square asserts that, although

Bryan expressly states that a mortgagor’s failure to

redeem the property within the redemption period

results in the extinguishment of all the mortgagor’s

rights in and to the property, Bryan only addresses

foreclosures by advertisement, whereas the foreclosure

in this case is a judicial foreclosure. The distinction,

however, is irrelevant under the circumstances. MCL

600.3240 sets forth the redemption period available to

a mortgagor when a foreclosure by advertisement is

conducted. MCL 600.3140(1) sets forth the redemption

period available to a mortgagor when a judicial fore-

closure is conducted. Signiﬁcantly, both statutes allow

a mortgagor to “redeem” the property by paying a

requisite amount within the prescribed time limit.

MCL 600.3240; MCL 600.3140(1). Furthermore, both

statutes expressly address the consequences of a mort-

gagor’s failure to redeem within the redemption pe-

riod. With regard to foreclosures by advertisement,

MCL 600.3236 provides, in relevant part, that “[u]n-

less the premises described in such deed shall be

redeemed within the time limited for such redemption

as hereinafter provided, such deed shall thereupon

become operative, and shall vest in the grantee therein

named, his heirs or assigns, all the right, title, and

664 328 M

ICH

656 [June

interest which the mortgagor had at the time of the

execution of the mortgage, or at any time thereaf-

ter . . . .” And with regard to a judicial foreclosure,

MCL 600.3130(1) provides, in relevant part, that “[u]n-

less the premises or any parcel of them are redeemed

within the time limited for redemption the deed shall

become operative as to all parcels not redeemed, and

shall vest in the grantee named in the deed, his heirs,

or assigns all the right, title, and interest which the

mortgagor had at the time of the execution of the

mortgage or at any time thereafter.” Comparing the

statutory language in MCL 600.3130(1) with the lan-

guage in MCL 600.3236, it is plain that the Legislature

intended that, in both circumstances, a mortgagor

would have a set period of time to redeem the property

and that the failure to do so would result in the

extinguishment of the mortgagor’s rights in and to the

property. See Cadle Co v Kentwood, 285 Mich App 240,

249; 776 NW2d 145 (2009) (stating that identical

language used in various provisions of the same act

should be construed identically). Accordingly, we con-

clude that under MCL 600.3130(1), if a mortgagor fails

to avail itself of the right of redemption, all the

mortgagor’s rights in and to the property are extin-

guished. See Bryan, 304 Mich App at 713; Piotrowski,

302 Mich at 187.

Packard Square suggests that, because it held an

interest in the property for over a decade, it clearly

retains standing to challenge the foreclosure proceed-

ings in this case. In support, it directs this Court to our

Supreme Court’s decision in Lansing Sch Ed Ass’n v

Lansing Bd of Ed, 487 Mich 349; 792 NW2d 686 (2010).

We need not address, however, whether Packard

Square has standing to challenge the trial court’s

foreclosure decision. Although the Bryan Court deter-

mined that the plaintiff lacked standing to pursue her

2019] C

IV v P

ACKARD

QUARE

665

claim because the statutory expiration period had

expired before she ﬁled her claim, see Bryan, 304 Mich

App at 710-711, 715, it is undisputed that at the time

that the action was initiated in this case, Packard

Square had an interest in the property and standing to

challenge the trial court’s decision to enter a judgment

of foreclosure. On appeal, Can IV does not argue that

Packard Square does not have standing. It instead

argues that because Packard Square did not redeem

the property in the six-month redemption period set

forth in MCL 600.3140(1), pursuant to MCL

600.3130(1), the deed Can IV received at the sheriff’s

sale “[became] operative as to all parcels not redeemed,

and . . . vest[ed] in the grantee named in the deed, his

heirs, or assigns all the right, title, and interest which

the mortgagor had at the time of the execution of the

mortgage or at any time thereafter.” In other words,

Can IV argues that even if this Court were to conclude

that Packard Square was entitled to relief, because all

right, title, and interest Packard Square once held in

the property has now vested in Can IV, there is no

relief that this Court can grant Packard Square. We

agree. Under MCL 600.3140(1) and MCL 600.3130(1),

Packard Square’s failure to redeem the property

within the redemption period resulted in the extin-

guishment of all Packard Square’s rights in and to the

property. There remains no relief that this Court can

grant it on appeal, so this appeal is moot. See Tenneco

Inc v Amerisure Mut Ins Co, 281 Mich App 429, 472;

761 NW2d 846 (2008) (stating that an issue becomes

moot when an event occurs that renders it impossible

for the reviewing court to grant relief).

Dismissed as moot. As the prevailing party, Can IV

may tax costs under MCR 7.219(A).

ETER

, P.J., and J

ANSEN

and M. J. K

ELLY

, JJ., con-

curred.

666 328 M

ICH

656 [June

FARM BUREAU INSURANCE COMPANY v TNT EQUIPMENT, INC

Docket No. 343307. Submitted March 12, 2019, at Detroit. Decided

June 20, 2019, at 9:00 a.m. Leave to appeal denied 505 Mich 1015

(2020).

Farm Bureau Insurance Company, Pioneer Mutual Insurance Com-

pany, and Hastings Mutual Insurance Company (collectively,

plaintiffs) brought an action in the Sanilac Circuit Court against

TNT Equipment, Inc. (TNT) and Employers Mutual Casualty

Company (Employers) following a ﬁre that occurred at a storage

facility owned by TNT. At the time of the ﬁre, Employers had

issued an insurance policy to TNT. Plaintiffs’ insureds owned

farm equipment that was stored at the TNT facility at the time of

the ﬁre, and plaintiffs paid claims to their insureds for the

damaged property. Plaintiffs sought reimbursement from Em-

ployers for the amounts they had paid to their insureds, contend-

ing that plaintiffs’ insureds were entitled to coverage under

Employers’ policy with TNT and that plaintiffs, as subrogees,

were therefore entitled to payment from Employers. Employers

declined to pay plaintiffs, explaining that TNT had exercised an

option under the policy directing Employers “to pay for [TNT’s]

customer’s deductibles and veriﬁable uninsured losses only.”

Employers determined that because TNT had opted out of any

other coverage, it was not obligated to pay any other amounts for

damages to the farm equipment belonging to plaintiffs’ insureds.

Plaintiffs brought the instant lawsuit, alleging counts against

TNT for breach of bailment contracts, breach of implied warranty,

negligence, gross negligence, and warehouse liability. Plaintiffs

also asserted claims against Employers, seeking ﬁrst-party insur-

ance beneﬁts under Employers’ policy with TNT and, alterna-

tively, seeking beneﬁts under the policy as third-party beneﬁcia-

ries. The parties ﬁled cross-motions for summary disposition

regarding whether plaintiffs had a right to enforce the policy and

claim beneﬁts from Employers directly under the insurance

policy. The trial court, Gerald M. Prill, J., granted plaintiffs

summary disposition and denied Employers summary disposi-

tion, concluding that plaintiffs’ insureds were entitled to the

status of “additional insureds” under the policy and therefore

were entitled to enforce the policy against Employers. The court

thereafter denied Employers’ motion for reconsideration. The

2019] F

ARM

UREAU V

TNT E

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667

court also entered an order dismissing TNT from the case without

prejudice. Employers appealed the trial court’s ﬁnal order dis-

missing TNT, challenging the earlier trial court orders granting

plaintiffs summary disposition and denying Employers’ motions

for summary disposition and for reconsideration.

The Court of Appeals held:

1. An insurance policy is a contractual agreement between

the insured and the insurer. Payment of beneﬁts from one’s own

insurer generally is referred to as payment of ﬁrst-party beneﬁts.

A ﬁrst-party insured is the insured under a policy or an individual

or entity directly entitled to beneﬁts under the insured’s insur-

ance policy. In this case, TNT purchased a policy of commercial

inland marine insurance from Employers. The parties did not

dispute that plaintiffs’ insureds were not parties to the policy

between TNT and Employers or that plaintiffs’ insureds were not

named insureds under that policy. There was also no dispute that

the policy did not expressly grant anyone other than the named

insured enforcement rights. Accordingly, plaintiffs’ insureds had

no express contractual rights under the policy and were not

entitled to ﬁrst-party beneﬁts.

2. An “additional insured” is generally deﬁned as someone who

is covered by an insurance policy but who is not the primary

insured. An additional insured may or may not be speciﬁcally

named in the policy. In this case, plaintiffs did not contend that the

policy designated plaintiffs’ insureds as “additional insureds,” and

plaintiffs pointed to no published Michigan authority supporting

their position that they qualify as additional insureds. Accordingly,

the trial court erred by ﬁnding plaintiffs, as subrogees of their

insureds, to be additional insureds under the policy in question.

3. In Michigan, a person who is a nonparty to a contract may be

entitled to sue to enforce the contract as a third-party beneﬁciary.

A person is a third-party beneﬁciary of a contract only if the

contract establishes that a promisor has undertaken a promise

directly to or for that person. Only intended beneﬁciaries, not

merely incidental beneﬁciaries, may sue for breach of a contract. In

this case, the focus of the inquiry was whether Employers, by

virtue of its agreement to insure TNT, undertook to give or to do, or

to refrain from doing, something directly to or for plaintiffs’

insureds within the meaning of the third-party beneﬁciary statute,

MCL 600.1405. Although under the policy Employers promised to

pay for direct physical loss of or damage to property of others, this

promise was directed to TNT, not to plaintiffs’ insureds. Accord-

ingly, the policy contained no promise to directly beneﬁt plaintiffs’

insureds within the meaning of MCL 600.1405. Because the policy

668 328

ICH

667 [June

did not directly promise to do or not do something for plaintiffs’

insureds, plaintiffs’ insureds did not rise to the status of third-

party beneﬁciaries under the policy and therefore had no right to

seek to enforce the policy between TNT and Employers.

Reversed and remanded.

Stertz & Weaver, PC (by H. William Stertz, Jr.) for

plaintiffs.

Merry, Farnen & Ryan, PC (by John J. Schutza and

Michael T. Ryan) for Employers Mutual Casualty Com-

pany.

Before: M

URRAY

, C.J., and G

ADOLA

and T

UKEL

, JJ.

ADOLA

, J. Defendant-appellant, Employers Mutual

Casualty Company (Employers), appeals as of right the

trial court order dismissing without prejudice defen-

dant, TNT Equipment, Inc. (TNT), and challenges the

earlier trial court orders granting plaintiffs’ motion for

summary disposition and denying Employers’ motions

for summary disposition and for reconsideration. We

reverse the trial court order granting plaintiffs sum-

mary disposition and remand to the trial court for

entry of summary disposition in favor of Employers.

I. FACTS

This case arises from a ﬁre that occurred at a

storage facility owned by TNT in Sandusky, Michigan,

on April 5, 2016. Plaintiffs are insurance companies.

The parties do not dispute that plaintiffs’ insureds

owned farm equipment that was stored at the TNT

facility at the time of the ﬁre and that plaintiffs,

having paid claims to their insureds for the damaged

farm equipment, are now subrogees of the rights of

their insureds.

2019] F

ARM

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669

At the time of the ﬁre, Employers had issued to TNT

a “Commercial Inland Marine” policy of insurance that

was then in effect. Plaintiffs sought reimbursement

from Employers for the amounts they had paid to their

insureds for the damaged farm equipment, contending

that plaintiffs’ insureds were entitled to coverage un-

der Employers’ policy with TNT and that plaintiffs

were therefore entitled, as subrogees, to payment from

Employers. Employers declined to pay plaintiffs. Em-

ployers explained that TNT had exercised an option

under the policy directing Employers “to pay for their

[TNT’s] customer’s deductibles and veriﬁable unin-

sured losses only.” Employers determined that because

TNT had opted out of any other coverage, it was not

obligated to pay any other amounts for damages to the

farm equipment belonging to plaintiffs’ insureds.

Plaintiffs, as subrogees of their insureds, initiated

this lawsuit, alleging counts against TNT for breach of

bailment contracts, breach of implied warranty, negli-

gence, gross negligence, and warehouse liability. Plain-

tiffs also asserted claims against Employers, seeking

ﬁrst-party insurance beneﬁts under Employers’ policy

with TNT and, alternatively, seeking beneﬁts under

the policy as third-party beneﬁciaries. The parties ﬁled

cross-motions for summary disposition under MCR

2.116(C)(8), (9), and (10) regarding whether plaintiffs

had a right to enforce the policy and claim beneﬁts

from Employers directly under the insurance policy.

The trial court concluded that plaintiffs’ insureds were

entitled to the status of “additional insureds” under the

policy and therefore were entitled to enforce the policy

against Employers. The trial court then granted plain-

tiffs summary disposition under MCR 2.116(C)(10)

while denying Employers summary disposition. The

trial court thereafter denied Employers’ motion for

reconsideration.

670 328 M

ICH

667 [June

The trial court also entered an order dismissing

TNT from the case without prejudice.

Employers now

appeals in this Court the trial court’s ﬁnal order

dismissing TNT, challenging the earlier trial court

orders granting plaintiffs summary disposition and

denying Employers’ motions for summary disposition

and for reconsideration.

II. DISCUSSION

A. STANDARD OF REVIEW

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

grant or deny summary disposition. Johnson v

Vanderkooi, 502 Mich 751, 761; 918 NW2d 785 (2018).

When reviewing an order granting summary disposi-

tion under MCR 2.116(C)(10), we consider all documen-

tary evidence submitted by the parties in the light

most favorable to the nonmoving party. Dawoud v

State Farm Mut Auto Ins Co, 317 Mich App 517, 520;

895 NW2d 188 (2016). Summary disposition under

MCR 2.116(C)(10) is warranted when there is no genu-

ine issue as to any material fact and the moving party

is entitled to judgment as a matter of law. Id. We also

review de novo issues involving the proper interpreta-

Pursuant to the parties’ stipulation, the trial court entered an order

on July 13, 2017, dismissing TNT but providing that the suit against

TNT would be reinstated under certain conditions. Employers appealed

that order in this Court, and this Court dismissed the claim of appeal on

the basis that the trial court’s order was not a ﬁnal order. Farm Bureau

Ins Co v TNT Equip Inc, unpublished order of the Court of Appeals,

entered August 9, 2017 (Docket No. 339457). Thereafter, the trial court

vacated the July 13, 2017 order and entered a new order dismissing

TNT without prejudice. Plaintiffs offer arguments relating to the

propriety of the trial court’s actions in vacating and entering these

orders, but plaintiffs did not ﬁle a cross-appeal raising these challenges.

See Kosmyna v Botsford Community Hosp, 238 Mich App 694, 696; 607

NW2d 134 (1999).

2019] F

ARM

UREAU V

TNT E

QUIP

671

tion of statutes and contracts. Titan Ins Co v Hyten,

491 Mich 547, 553; 817 NW2d 562 (2012). This Court

reviews a trial court’s decision to grant or deny a

motion for reconsideration for an abuse of discretion.

Sanders v McLaren-Macomb, 323 Mich App 254, 264;

916 NW2d 305 (2018). A trial court abuses its discre-

tion if it chooses an outcome outside the range of

principled outcomes. Id.

B. FIRST-PARTY INSURED

Employers contends that the trial court erred by

granting plaintiffs summary disposition because plain-

tiffs are not entitled to enforce the insurance policy

between Employers and TNT. Employers ﬁrst argues

that plaintiffs’ insureds were not insureds under the

policy issued to TNT by Employers—and therefore

lacked standing to pursue ﬁrst-party beneﬁts under

the policy—and that plaintiffs, as subrogees of their

insureds, likewise lack standing to seek ﬁrst-party

beneﬁts under the policy. We agree.

An insurance policy, like other contracts, is an

agreement between parties; a court’s task is to deter-

mine what the agreement is and then give effect to the

intent of the parties. Waldan Gen Contractors, Inc v

Mich Mut Ins Co, 227 Mich App 683, 686; 577 NW2d

139 (1998). In doing so, we consider the contract as a

whole and give meaning to all terms of the contract.

Auto-Owners Ins Co v Churchman, 440 Mich 560, 566;

489 NW2d 431 (1992). We give the policy language its

ordinary and plain meaning, and when policy language

is clear, we are bound by the language of the policy.

Waldan, 227 Mich App at 686.

An insurance policy is a contractual agreement

between the insured and the insurer. West American

Ins Co v Meridian Mut Ins Co, 230 Mich App 305, 310;

672 328 M

ICH

667 [June

583 NW2d 548 (1998). Payment of beneﬁts from one’s

own insurer generally is referred to as payment of

ﬁrst-party beneﬁts. See Nickola v MIC Gen Ins Co, 500

Mich 115, 127; 894 NW2d 552 (2017) (“The insured by

deﬁnition is a party to the insurance contract, not a

third party.”). This Court has suggested that a “ﬁrst-

party” insured is the insured under a policy, or an

individual or entity directly entitled to beneﬁts under

the insured’s insurance policy. See Griswold Props,

LLC v Lexington Ins Co, 276 Mich App 551, 565; 741

NW2d 549 (2007).

In this case, TNT purchased from Employers a

policy of commercial inland marine insurance.

The

parties do not dispute that plaintiffs’ insureds were not

parties to the policy between TNT and Employers or

that plaintiffs’ insureds are not named insureds under

that policy. There is also no dispute that the policy does

not expressly grant anyone other than the named

insured enforcement rights. Plaintiffs’ insureds, there-

fore, had no express contractual rights under the policy

and are not entitled to “ﬁrst-party” beneﬁts. The ques-

tion, then, is whether plaintiffs’ insureds, though not

named insureds under the policy, are nonetheless

entitled to seek to enforce the policy.

C. ADDITIONAL INSURED

Plaintiffs argue, and the trial court found, that plain-

tiffs’ insureds were entitled to enforce the contract as

“additional insureds” under TNT’s policy with Employ-

ers. An “additional insured” is deﬁned generally as

“[s]omeone who is covered by an insurance policy but

who is not the primary insured. An additional insured

An inland marine insurance policy commonly is used to insure

against damage to property caused during transport of the property. See

Waldan, 227 Mich App at 686.

2019] F

ARM

UREAU V

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QUIP

673

may, or may not, be speciﬁcally named in the policy.”

Black’s Law Dictionary (11th ed), p 962. Plaintiffs in

this case do not contend that the policy here designated

plaintiffs’ insureds as “additional insureds,” and plain-

tiffs point to no published Michigan authority

support-

ing their position that they qualify as additional in-

sureds absent a provision in the policy designating

them as such. We therefore conclude that the trial

court erred by ﬁnding plaintiffs, as subrogees of their

insureds, to be additional insureds under the policy in

question.

D. THIRD-PARTY BENEFICIARY

Michigan law does recognize, however, the rights of a

third-party beneﬁciary to seek enforcement of an insur-

ance policy. In Michigan, a person who is a nonparty to

a contract may be entitled to sue to enforce the contract

as a third-party beneﬁciary. MCL 600.1405; Shay v

Aldrich, 487 Mich 648, 666; 790 NW2d 629 (2010). A

person is a third-party beneﬁciary of a contract only if

the contract establishes that a promisor has undertaken

a promise directly to or for that person. Koenig v South

Haven, 460 Mich 667, 677; 597 NW2d 99 (1999) (opinion

by T

AYLOR

, J.). A third-party beneﬁciary of a contract

may enforce a contract against the promisor because the

In urging this designation for plaintiffs’ insureds in this case,

plaintiffs point to an unpublished opinion of this Court in which the

plaintiff was found to be an “additional insured” in light of certain

documents between the parties that designated the plaintiff as “Loss

Payee and Additional Insured” under the speciﬁc policy in that case.

Mich Heritage Bank v Fed Ins Co, unpublished per curiam opinion of the

Court of Appeals, issued August 12, 2004 (Docket No. 245832), pp 5-6.

We note that this case is factually distinct from the unpublished case

and, further, that although unpublished opinions of this Court may be

viewed as instructive, they are not precedentially binding. MCR

7.215(C)(1); Cox v Hartman, 322 Mich App 292, 307; 911 NW2d 219

(2017).

674 328

ICH

667 [June

third-party beneﬁciary “stands in the shoes” of the

promisee. White v Taylor Distrib Co, Inc, 289 Mich App

731, 734; 798 NW2d 354 (2010) (quotation marks and

citation omitted). In that regard, the third-party beneﬁ-

ciary statute provides, in relevant part:

Any person for whose beneﬁt a promise is made by way

of contract, as hereinafter deﬁned, has the same right to

enforce said promise that he would have had if the said

promise had been made directly to him as the promisee.

(1) A promise shall be construed to have been made for

the beneﬁt of a person whenever the promisor of said

promise had undertaken to give or to do or refrain from

doing something directly to or for said person. [MCL

600.1405.]

To create a third-party beneﬁciary, a contract must

“expressly contain a promise to act to beneﬁt the third

party.” White, 289 Mich App at 734. “[T]he plain

language of this statute reﬂects that not every person

incidentally beneﬁtted by a contractual promise has a

right to sue for breach of that promise . . . .” Brunsell v

Zeeland, 467 Mich 293, 296; 651 NW2d 388 (2002).

Rather, only intended beneﬁciaries, not merely inci-

dental beneﬁciaries, may sue for breach of a contract.

Schmalfeldt v North Pointe Ins Co, 469 Mich 422, 427;

670 NW2d 651 (2003). We use an objective standard to

determine from the language of the contract itself

whether the promisor undertook to give or to do, or to

refrain from doing, something directly to or for the

person asserting status as a third-party beneﬁciary.

Brunsell, 467 Mich at 298. In doing so, we do not focus

on the subjective intent of the contracting parties but

instead focus on the intent of the contracting parties as

determined solely from the “form and meaning” of the

contract. Shay, 487 Mich at 665.

Thus, the focus of the inquiry in this case is whether

Employers, by virtue of its agreement to insure TNT,

2019] F

ARM

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TNT E

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675

undertook to give or to do, or to refrain from doing,

something directly to or for plaintiffs’ insureds within

the meaning of the third-party beneﬁciary statute, MCL

600.1405. Plaintiffs argue that the coverage provisions

of Employers’ policy with TNT demonstrate that Em-

ployers undertook to provide plaintiffs’ insureds with

coverage, thereby making them intended beneﬁciaries:

A. Coverage

1. Covered Property, as used in this Coverage Form,

means the type of property described in this Section

A.1. . . .

* * *

a. Coverage A — Stock, Furniture, Fixtures,

Equipment and Tenants Improvements and Better-

ments — Business Personal Property Includes:

(1) Stock: We will pay for direct physical loss of or

damage to stock of merchandise, including the value of

your labor, materials or services furnished or arranged by

you on personal property of others, consisting principally

of agricultural, construction and materials handling

equipment, and appliances, parts, accessories thereof, and

other merchandise usual or incidental to your business of

agricultural, construction and materials handling equip-

ment dealers . . . .

(2) Furniture, Fixtures, Equipment and Tenant’s “Im-

provements and Betterments”:

We will pay for loss or damage to:

(a) Furniture, ﬁxtures and equipment used in your

business and similar property held by you and belonging

in whole or in part to others for not more than the amount

for which you are liable . . . .

* * *

676 328

ICH

667 [June

b. Coverage B — Property of Others

We will pay for direct physical loss of or damage to

property of others, which is similar to that described in

Coverage A above, while such property is in your care,

custody or control . . . .

* * *

M. Payment of Losses

Loss, if any, under this Coverage Form is payable to you

for the account of all interests. You agree to make proper

distribution of funds so received to other parties in inter-

est and to hold us harmless from any and all claims for

damages which may be made against us by other interests

as a result of and to the extent of such payments.

The separate loss-payable endorsement deﬁnes “you”

and “your” as referring to the named insured, and then

states, “Any loss shall be adjusted with ‘you’ and shall

be payable to ‘you’ and the loss payee described on the

‘declarations’ as ‘your’ and their interests appear.”

Although under the policy Employers promises to pay

for direct physical loss of or damage to property of

others, this promise is directed to TNT, not to plain-

tiffs’ insureds. We also observe that Employers makes

no promise to plaintiffs’ insureds under the payment-

of-loss provisions of the policy in this case, which

include the following provisions, in pertinent part:

LOSS CONDITIONS

* * *

E. Loss Payment

* * *

3. We may adjust losses with the owners of lost or

damaged property if other than you. If we pay the owners,

2019] F

ARM

UREAU V

TNT E

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677

such payments will satisfy your claim against us for the

owners’ property. We will not pay the owners more than

their ﬁnancial interest in the Covered Property.

* * *

6. We will not be liable for any part of a loss that has

been paid or made good by others.

F. Other Insurance

1. You may have other insurance subject to the same

plan, terms, conditions and provisions as the insurance

under this Coverage Part. If you do, we will pay our share

of the covered loss or damage. Our share is the proportion

that the applicable Limit of Insurance under this Cover-

age Part bears to the Limits of Insurance of all insurance

covering on the same basis.

2. If there is other insurance covering the same loss or

damage, other than that described in 1. above, we will pay

only for the amount of covered loss or damage in excess of

the amount due from that other insurance, whether you

can collect on it or not. But we will not pay more than the

applicable Limit of Insurance.

Plaintiffs argue that their insureds’ damaged prop-

erty falls under the provisions covering the property of

others and that therefore their insureds are beneﬁcia-

ries entitled to enforce the contract. But the coverage

provisions do not articulate a promise to pay plaintiffs’

insureds; rather, the provisions articulate a promise to

TNT to pay TNT, or others on behalf of TNT, for

damage to property owned by others that is in the care,

custody, or control of TNT. Although the owners of

damaged property may, in certain circumstances, real-

ize a beneﬁt from TNT having coverage for that dam-

age, the policy contains no promise to directly beneﬁt

plaintiffs’ insureds within the meaning of MCL

600.1405. “Only intended beneﬁciaries, not incidental

beneﬁciaries, may enforce a contract under [MCL

678 328 M

ICH

667 [June

600.]1405.” Schmalfeldt, 469 Mich at 429. Because the

policy does not directly promise to do or not do some-

thing for plaintiffs’ insureds, plaintiffs’ insureds do not

rise to the status of third-party beneﬁciaries under the

policy and therefore have no right to seek to enforce the

policy between TNT and Employers.

In analyzing this question, a review of our Supreme

Court’s decision in Schmalfeldt, 469 Mich 422, is in-

structive. In that case, the plaintiff was injured in a bar

ﬁght and incurred extensive dental expenses. He sought

payment for his dental expenses from the bar owner,

who refused. The plaintiff then sought payment directly

from the bar owner’s insurer, which had issued a com-

mercial liability insurance policy to the bar owner. The

policy included a provision in which the insurer agreed

to pay up to $5,000 for medical expenses for bodily

injury incurred in the bar, regardless of fault. The bar

owner, however, told the insurer that the bar did not

want to invoke the medical-coverage provision of the

policy in that case, and the insurer consequently denied

the plaintiff’s request for beneﬁts.

The plaintiff then sued the insurer directly,

claim-

ing to be a third-party beneﬁciary under the insurance

policy by virtue of the medical-beneﬁts provision of the

In fact, the Loss Payment and Other Insurance provisions of the

policy strongly suggest that Employers would not be liable to cover

plaintiffs’ losses in any event. The Loss Payment provision states that

Employers will not be liable for any loss that has been made good by

others, which has already occurred, while the Other Insurance provision

states that Employers will only pay for the amount of loss or damage in

excess of the amount due from that other insurance, whether TNT can

collect on that insurance or not.

In this case, as in Schmalfeldt, the insured party (here, TNT) chose

not to invoke coverage under the policy for the damages sought by

plaintiffs.

The plaintiff in Schmalfeldt did not sue the bar owner, apparently

conceding that the bar owner was not liable for any breach of duty.

2019] F

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679

policy, which the plaintiff argued enabled him to sue

the insurer to enforce the terms of the contract. The

trial court denied the plaintiff’s motion for summary

disposition, determining that the plaintiff was not a

third-party beneﬁciary under the policy. On appeal in

the civil division of that court, the trial court held, to

the contrary, that the plaintiff was directly beneﬁted

under the policy and therefore was a third-party ben-

eﬁciary empowered to seek to enforce the contract.

This Court reversed, determining that the plaintiff

was an incidental beneﬁciary only and thus not en-

titled to enforce the contract between the insurer and

the bar owner. Schmalfeldt v North Pointe Ins Co, 252

Mich App 556; 652 NW2d 683 (2002), aff’d 469 Mich

422 (2003). Our Supreme Court afﬁrmed, agreeing

that the plaintiff was not a third-party beneﬁciary:

A person is a third-party beneﬁciary of a contract only

when that contract establishes that a promisor has under-

taken a promise “directly” to or for that person. MCL

600.1405; Koenig v South Haven, 460 Mich 667, 677; 597

NW2d 99 (1999). By using the modiﬁer “directly,” the

Legislature intended “to assure that contracting parties

are clearly aware that the scope of their contractual

undertakings encompasses a third party, directly referred

to in the contract, before the third party is able to enforce

the contract.” Id. An objective standard is to be used to

determine, “from the form and meaning of the contract

itself,” Kammer Asphalt v East China Twp, 443 Mich 176,

189; 504 NW2d 635 (1993) (citation omitted), whether the

promisor undertook “to give or to do or to refrain from

doing something directly to or for” the person claiming

third-party beneﬁciary status, Brunsell, [467 Mich] at

298. [Schmalfeldt, 469 Mich at 428.]

Schmalfeldt, 469 Mich at 424 n 1. Likewise, in this case, plaintiffs

initially stipulated to the dismissal without prejudice of TNT from the

lawsuit, apparently declining, for the time being at least, to attempt to

establish liability on the part of TNT.

680 328

ICH

667 [June

Concluding that the plaintiff in that case was not

entitled to claim third-party-beneﬁciary status, our

Supreme Court further explained:

Only intended beneﬁciaries, not incidental beneﬁcia-

ries, may enforce a contract under § 1405. Koenig, [460

Mich] at 680. Here, the contract primarily beneﬁts the

contracting parties because it deﬁnes and limits the

circumstances under which the policy will cover medical

expenses without a determination of fault. This agree-

ment is between the contracting parties, and [the plain-

tiff] is only an incidental beneﬁciary without a right to

sue for contract beneﬁts. [Schmalfeldt, 469 Mich at 429.]

In this case, focusing on the form and meaning of the

policy, we similarly conclude that the policy issued by

Employers to TNT contains no promise by Employers

to directly beneﬁt plaintiffs’ insureds within the mean-

ing of MCL 600.1405. Plaintiffs’ insureds, therefore,

were not third-party beneﬁciaries under the policy.

Because plaintiffs’ insureds were neither insureds nor

third-party beneﬁciaries under the policy, they had no

right to seek to enforce the policy between TNT and

Employers.

In so concluding, we emphasize that the inquiry

here is not whether there was coverage under the

policy for the damage to the property of plaintiffs’

insureds; the question of coverage is a separate inquiry

that a court need not reach unless it is determined that

a claimant, in fact, has a right to seek enforcement of

the policy. See Shay, 487 Mich at 665-667. Rather, the

inquiry here is whether plaintiffs’ insureds are mem-

bers of a class (being either insureds or third-party

beneﬁciaries) that empowers them to seek to enforce

the policy. In this case, the clear and unambiguous

language of the policy does not evidence an intent of

2019] F

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681

the parties to directly beneﬁt plaintiffs’ insureds.

observe that “it is impossible to hold an insurance

company liable for a risk it did not assume,” Hunt v

Drielick, 496 Mich 366, 373; 852 NW2d 562 (2014)

(quotation marks, citation, and brackets omitted), and

that the primary goal when interpreting an insurance

policy is to honor the intent of the parties to that policy,

Tenneco, Inc v Amerisure Mut Ins Co, 281 Mich App

429, 444; 761 NW2d 846 (2008).

In this case, TNT and Employers entered into a

contract for the purpose of insuring TNT, should TNT

be found liable for payment of damages to the property

of others that was under its care, custody, or control.

The question whether coverage under the policy would

be triggered if TNT were found liable for damage to the

property of plaintiffs’ insureds is not before us. Rather,

plaintiffs seek to enforce the policy and trigger cover-

age under the policy between TNT and Employers

regardless of whether TNT is liable and regardless of

whether TNT wants the coverage. The issue thus

before us is whether plaintiffs, by virtue of the subro-

gated rights of their insureds, have a right to enforce

the contract between TNT and Employers.

We conclude that the policy in question does not

establish plaintiffs’ insureds as insureds under the

policy, nor were plaintiffs’ insureds third-party beneﬁ-

ciaries under the policy. As in Schmalfeldt, plaintiffs’

insureds were, at best, members of a broad class whom

the policy recognized as, in certain circumstances,

potential recipients of incidental beneﬁts from the

policy. Accordingly, plaintiffs’ insureds were incidental

beneﬁciaries only, not qualifying for third-party status

under MCL 600.1405. See Schmalfeldt, 469 Mich at

In fact, the Loss Payment and Other Insurance provisions of the

policy suggest an intent not to directly beneﬁt plaintiffs’ insureds.

682 328

ICH

667 [June

429. Plaintiffs therefore have no right to seek to

enforce the policy between TNT and Employers.

Reversed and remanded for further proceedings

consistent with this opinion. We do not retain jurisdic-

tion.

URRAY

, C.J.,andT

UKEL

, J.,concurredwithG

ADOLA

, J.

2019] F

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DELTA BUSINESS CENTER, LLC v DELTA CHARTER TOWNSHIP

Docket No. 343386. Submitted June 5, 2019, at Detroit. Decided June 20,

2019, at 9:05 a.m.

Delta Business Center, LLC (Delta Business Center) ﬁled an action

in the Oakland Circuit Court, seeking review of the State Tax

Commission’s denial of it application for an industrial facilities

exemption certiﬁcate (IFEC) under the plant rehabilitation and

industrial development districts act, MCL 207.551 et seq. Delta

Business Center owned an industrial park in Delta Charter

Township (the township) that it rented to tenants. The township

agreed to approve Delta Business Center’s request for an IFEC in

exchange for Delta Business Center’s agreement to invest money

to improve the property. In accordance with MCL 207.557(1), the

commission reviewed Delta Business Center’s IFEC application.

The commission ultimately denied the application, concluding that

Delta Business Center did not qualify for the IFEC because

although its tenants were engaged in one of the activities listed

under the MCL 207.552(7) deﬁnition of “industrial property”—a

necessary requirement, according to the commission, to be eligible

for an IFEC—Delta Business Center was not engaged in those

activities. Delta Business Center appealed the commission’s deci-

sion, ﬁling the Oakland Circuit Court action. The Department of

Treasury intervened in the action, arguing that the commission’s

decision should be afﬁrmed. The court, Denise Karen Langford-

Morris, J., afﬁrmed the commission’s denial on different grounds,

reasoning that for leased property to be considered industrial

property for purposes of MCL 205.552(7), the lessee had to be liable

for payment of the property taxes and furnish proof of that liability

and concluding that because Delta Business Center provided no

proof of its lessees’ liability for property taxes, the commission

correctly denied the application. Delta Business Center appealed.

The Court of Appeals held:

1. MCL 207.554(1) provides that local governmental units may

establish plant rehabilitation districts and industrial development

districts. After such districts are established, MCL 207.555(1)

provides that the owner or lessee of a facility may ﬁle an applica-

tion for an IFEC with the clerk of the local governmental unit that

684 328

ICH

684 [June

established the plant rehabilitation district or industrial develop-

ment district. Under MCL 207.557(1), the commission reviews a

local governmental unit’s grant of an IFEC; if the commission

grants the application, the applicant receives a tax advantage. To

qualify as a replacement facility under the act—a necessary

requirement to qualify for an IFEC—an applicant’s facility must,

among other things, be used as an industrial property after it is

renovated; thus, the commission must deny an IFEC application if

an applicant’s building does not constitute “industrial property”

under the act. Under MCL 207.552(7), the deﬁnition of “industrial

property” includes and lists numerous types of qualifying proper-

ties as well as the types that do not constitute industrial property;

the deﬁnitional provision does not suggest that for property to be

considered “industrial property” the applicant must engage in one

of the listed activities. While industrial property may be owned or

leased, the provision provides that in the case of leased property,

the lessee must be liable for the payment of ad valorem property

taxes and furnish proof of that liability for the leased property to be

considered industrial property. As supported by the Legislature’s

purposeful amendment of the deﬁnition of “industrial property” to

include language related to leased properties, the broad language

of the provision indicates that the Legislature intended that in all

cases in which an IFEC applicant seeks to have leased property

classiﬁed as industrial property, the lessee must always be liable

for the taxes. If the lessee must be liable for the property tax, then

only the lessee may receive the exemption under the act; in other

words, an individual or entity may claim the exemption under the

act only if it is liable for the property tax. In this case, the

commission correctly denied Delta Business Center’s IFEC appli-

cation because Delta was the lessor of the property—not the

lessee—and it did not pay the ad valorem taxes on the property;

accordingly, the property did not qualify as “industrial property”

under the act and Delta Business Center was not eligible for the

property-tax exemption.

2. Although MCL 207.555(1) allows Delta Business Center to

ﬁle an IFEC application, the provision did not resolve whether it

was entitled to the exemption; for that reason, MCL 207.555(1)

was not dispositive of the case.

Afﬁrmed.

1. T

AXATION

— P

LANT

EHABILITATION AND

NDUSTRIAL

EVELOPMENT

ISTRICTS

— I

NDUSTRIAL

ACILITIES

XEMPTION

ERTIFICATES

— “I

NDUSTRIAL

ROPERTY

” — L

ESSEES OF

ROPERTY

MCL 207.555(1) provides that the owner or lessee of a facility may

ﬁle an application for an industrial facilities exemption certiﬁcate

2019] D

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685

(IFEC); to qualify as a replacement facility under the act—a

necessary requirement to qualify for an IFEC—an applicant’s

facility must, among other things, be used as an industrial

property after it is renovated; under MCL 207.552(7), while the

deﬁnition of “industrial property” provides that property may be

owned or leased, in the case of leased property, the lessee must be

liable for the payment of ad valorem property taxes and furnish

proof of that liability for the leased property to be considered

industrial property and for the lessee to be eligible for the

exemption; only the lessee, not the lessor, is eligible for the IFEC

when the lessee pays the property taxes (MCL 207.551 et seq.).

2. T

AXATION

— P

LANT

EHABILITATION AND

NDUSTRIAL

EVELOPMENT

ISTRICTS

— W

ORDS AND

HRASES

— “I

NDUSTRIAL

ROPERTY

.”

Under the plant rehabilitation and industrial development districts

act, MCL 207.551 et seq., the deﬁnition of “industrial property”

includes and lists numerous types of qualifying properties as well

as the types that do not constitute industrial property; the

deﬁnitional provision does not suggest that for property to be

considered “industrial property” the applicant must engage in one

of the listed activities (MCL 207.552(7)).

Foley & Lardner LLP (by Jason Conti) and Law

Ofﬁces of Aaron M. Fales, PC (by Aaron M. Fales) for

Delta Business Center, LLC.

Dana Nessel, Attorney General, Fadwa A.

Hammoud, Solicitor General, and Matthew B. Hodges,

Assistant Attorney General, for the Department of

Treasury.

Before: S

AWYER

, P.J., and O’B

RIEN

and L

ETICA

, JJ.

URIAM

. Petitioner, Delta Business Center, LLC

(Delta), appeals as of right the trial court’s opinion and

order afﬁrming a decision of the State Tax Commission

(STC) denying Delta’s application for a tax exemption

under the plant rehabilitation and industrial develop-

ment districts act (the PRIDDA), MCL 207.551 et seq.

On appeal, we are asked to decide under what circum-

stances leased property can qualify as “industrial prop-

686 328 M

ICH

684 [June

erty” under the PRIDDA. We conclude that for leased

property to qualify as “industrial property” under the

PRIDDA, a lessee must be liable for property taxes and

must furnish proof of that liability. We further conclude

that this means that a lessor cannot receive a tax

exemption under the PRIDDA when the leased property

must qualify as “industrial property.” Because Delta is

strictly a lessor of the property at issue and because that

property must qualify as “industrial property” for Delta

to receive its requested tax exemption, the STC cor-

rectly denied Delta’s application. We afﬁrm.

I. BACKGROUND

Under the PRIDDA, local governmental units may

establish “plant rehabilitation districts” and “industrial

development districts.” MCL 207.554(1). After such a

district is established, “the owner or lessee of a facility

may ﬁle an application for an industrial facilities ex-

emption certiﬁcate [IFEC] with the clerk of the local

governmental unit that established the plant rehabili-

tation district or industrial development district.” MCL

207.555(1). If the application is approved by the local

governmental unit, the application is sent to the STC for

review. MCL 207.557(1). If the STC grants the IFEC

application, the applicant receives a tax advantage: in

place of ad valorem taxes, an industrial facility tax is

levied on the exempt property. MCL 207.561. If the STC

had granted Delta’s IFEC application, Delta’s industrial

facility tax for up to the next 12 years would have been

calculated using the taxable value of the at-issue prop-

erty in the year before the effective date of the IFEC,

essentially freezing the taxable value of the property.

MCL 207.564(1); MCL 207.566.

Delta is the owner of a 93,000-square-foot industrial

park that it leases to tenants. The building on Delta’s

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property was originally intended for printing newspa-

pers, but, by 2017, that use was no longer economically

feasible. So in an agreement between respondent, Delta

Charter Township (the Township), and Delta, the Town-

ship agreed to grant Delta a 10-year IFEC; in return,

Delta agreed to invest $3,900,000 in the property.

After being approved by the Township, Delta’s IFEC

application was sent to the STC for review. For Delta to

receive the IFEC that it requested, it had to establish,

among other things, that its property would constitute

“industrial property” under MCL 207.552(7) after it

was renovated; the statutory provision provides a

detailed explanation of all the activities that can be

performed on a property for it to qualify as “industrial

property.” The STC interpreted MCL 207.552(7) as

requiring that the IFEC applicant engage in one of the

activities listed in that statute for the applicant to

qualify for the exemption. Though Delta’s tenants were

allegedly engaging in listed activities, Delta itself was

using the property for an unlisted activity—real estate

development. The STC thus denied Delta’s IFEC ap-

plication, concluding that Delta “does not qualify for

the exemption because it does not engage in any of the

activities listed within the deﬁnition of industrial prop-

erty as outlined in MCL 207.552.”

Delta appealed in the circuit court.

The circuit court

afﬁrmed the STC’s decision but on other grounds.

The

Under MCL 207.570, any party “aggrieved by the issuance or refusal

to issue” an IFEC “may appeal from the ﬁnding and order of the” STC in

accordance with the Administrative Procedures Act (APA), MCL 24.201

et seq. In cases like this, the APA allows an aggrieved party to appeal an

agency’s ﬁnal decision in the circuit court. MCL 24.301.

The Department of Treasury moved to intervene; the parties stipu-

lated that the motion should be granted. The Township declined to ﬁle

a brief in the circuit court and has likewise declined to ﬁle a brief on

appeal.

688 328

ICH

684 [June

trial court reasoned that for leased property to be

considered “industrial property” under MCL

207.552(7), “the lessee must be liable for the payment

of property taxes and must furnish proof of that

liability.”

The court concluded that because Delta

“offered no proof of [its] lessees’ liability for payment of

property taxes,” the STC was authorized by law to

deny Delta’s application.

Delta now appeals by right.

II. STANDARDS OF REVIEW

Delta appealed the STC’s decision in accordance

with the Administrative Procedures Act, MCL 24.201

et seq. Under that act, the circuit court was required to

set aside the STC’s decision if, among other reasons, it

was in violation of a statute or was affected by a

substantial and material error of law. MCL 24.306.

This Court reviews a circuit court’s decision “to

determine whether the circuit court applied correct

legal principles and whether it misapprehended or

grossly misapplied the substantial evidence test to the

agency’s ﬁndings.” Sterling Hts v Chrysler Group, LLC,

309 Mich App 676, 681; 873 NW2d 342 (2015) (quota-

tion marks and citation omitted). “This Court reviews

de novo questions of statutory interpretation.” Id.

III. ANALYSIS

On appeal, Delta argues that the STC’s denial of

Delta’s IFEC application was a material error of law or

otherwise violated the PRIDDA. We disagree.

MCL 207.552(7) states, in relevant part, “Industrial property may be

owned or leased. However, in the case of leased property, the lessee is

liable for payment of ad valorem property taxes and shall furnish proof

of that liability.”

2019] D

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“A court’s primary task when interpreting a statute

is to discern and give effect to the intent of the

Legislature.” Tomra of North America, Inc v Dep’t of

Treasury, 325 Mich App 289, 299; 926 NW2d 259

(2018). This Court must “ﬁrst consider the statutory

language itself; if the language is unambiguous, we

conclude that the Legislature must have intended the

clearly expressed meaning and we enforce the statute

as written.” Id. Tax exemptions are disfavored, and

they are, therefore, strictly construed against the tax-

payer and in favor of the taxing unit. Id. at 296.

It is undisputed that for Delta to receive an IFEC,

its building had to qualify as a “replacement facility”

under the PRIDDA. A “replacement facility” must,

among other things, be used as “industrial property”

after it is renovated. See MCL 207.552(4)(a) and (b);

see also Orion Twp v State Tax Comm, 195 Mich App

13, 16; 489 NW2d 120 (1992). Under MCL

207.559(2)(d), the STC “shall not grant” an IFEC

application unless it relates to a “replacement facility

within the meaning of this act,” with exceptions not

applicable here. Thus, the STC had to deny Delta’s

IFEC application if Delta’s building would not consti-

tute industrial property after it was renovated.

The STC concluded that Delta’s building would not

constitute industrial property—and therefore denied

Delta’s application—because Delta did “not engage in

any of the activities listed within the deﬁnition of

industrial property as outlined in MCL 207.552.” The

circuit court afﬁrmed the STC’s decision that Delta’s

building would not constitute “industrial property” but

on other grounds. The circuit court believed that for

leased property to qualify as industrial property, MCL

207.552(7) required that the lessee (1) be liable for the

property tax and (2) furnish proof of that liability. And

690 328 M

ICH

684 [June

because Delta had not provided proof that its lessees

would be liable for the payment of property taxes, the

circuit court concluded that Delta’s leased property

could not qualify as industrial property.

We will address the STC’s and the circuit court’s

differing reasons for denying Delta’s application, but

we ﬁrst address Delta’s argument that MCL 207.555(1)

dictates the outcome of this case. That statute pro-

vides, in relevant part, that “the owner or lessee of a

facility may ﬁle an application for an [IFEC] . . . .” This

statute establishes that as an owner of property, Delta

was entitled to ﬁle an application requesting the IFEC.

But the fact that Delta could ﬁle an IFEC application

does not resolve whether Delta is entitled to an IFEC.

MCL 207.555(1) is, therefore, not dispositive of the

outcome of this case.

Turning to the STC’s decision, MCL 207.552(7) de-

ﬁnes “industrial property” as follows:

“Industrial property” means land improvements,

buildings, structures, and other real property, and ma-

chinery, equipment, furniture, and ﬁxtures or any part or

accessory whether completed or in the process of con-

struction comprising an integrated whole, the primary

purpose and use of which is the engaging in a high-

technology activity, operation of a strategic response

center, operation of a motorsports entertainment com-

plex, operation of a logistical optimization center, opera-

tion of qualiﬁed commercial activity, operation of a major

distribution and logistics facility, the manufacture of

goods or materials, creation or synthesis of biodiesel fuel,

or the processing of goods and materials by physical or

chemical change; property acquired, constructed, al-

tered, or installed due to the passage of proposal A in

1976; the operation of a hydro-electric dam by a private

company other than a public utility; or agricultural

processing facilities. Industrial property includes facili-

ties related to a manufacturing operation under the same

2019] D

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691

ownership, including, but not limited to, ofﬁce, engineer-

ing, research and development, warehousing, or parts

distribution facilities. Industrial property also includes

research and development laboratories of companies

other than those companies that manufacture the prod-

ucts developed from their research activities and re-

search development laboratories of a manufacturing

company that are unrelated to the products of the com-

pany. For applications approved by the legislative body of

a local governmental unit between June 30, 1999 and

December 31, 2007, industrial property also includes an

electric generating plant that is not owned by a local unit

of government, including, but not limited to, an electric

generating plant fueled by biomass. For an industrial

development district created before July 1, 2010, indus-

trial property also includes an electric generating plant

that is fueled by biomass that is not owned by a unit of

local government if the electric generating plant involves

the reuse of a federal superfund site remediated by the

United States environmental protection agency and an

independent study has concluded that the electric gener-

ating plant would not have an adverse effect on wood

supply of the area from which the wood supply of the

electric generating plant would be derived. An electric

generating plant described in the preceding sentence is

presumed not to have an adverse impact on the wood

supply of the area from which the wood supply of the

electric generating plant would be derived if the company

has a study funded by the United States department of

energy and managed by the department of energy, labor,

and economic growth that concludes that the electric

generating plant will consume not more than 7.5% of the

annual wood growth within a 60-mile radius of the

electric generating plant. Industrial property also in-

cludes convention and trade centers in which construc-

tion begins not later than December 31, 2010 and is over

250,000 square feet in size or, if located in a county with

a population of more than 750,000 and less than

1,100,000, is over 100,000 square feet in size or, if located

in a county with a population of more than 26,000 and

less than 28,000, is over 30,000 square feet in size.

692 328

ICH

684 [June

Industrial property also includes a federal reserve bank

operating under 12 USC 341, located in a city with a

population of 600,000 or more. Industrial property may

be owned or leased. However, in the case of leased

property, the lessee is liable for payment of ad valorem

property taxes and shall furnish proof of that liability.

For purposes of a local governmental unit that is a next

Michigan development corporation, industrial property

includes only property used in the operation of an eligible

next Michigan business, as that term is deﬁned in section

3 of the Michigan economic growth authority act, 1995

PA 24, MCL 207.803. Industrial property does not in-

clude any of the following:

(a) Land.

(b) Property of a public utility other than an electric

generating plant that is not owned by a local unit of

government as provided in this subsection.

Nowhere does this lengthy deﬁnition suggest that for

property to be considered “industrial property,” the

IFEC applicant must engage in one of the activities

listed. Thus, the STC’s interpretation of MCL

207.552(7) improperly read a requirement into the stat-

ute that does not exist. See Book-Gilbert v Greenleaf,

302 Mich App 538, 542; 840 NW2d 743 (2013) (explain-

ing that it is inappropriate to “read into [a] statute a

requirement that the Legislature has seen ﬁt to omit”).

But this does not necessarily entitle Delta to relief.

The trial court upheld the STC’s decision because it

believed that MCL 207.552(7) places conditions on

when leased property can be “industrial property” and

that Delta’s leased property did not satisfy those

conditions.

In reaching its conclusion, the trial court relied on

language in MCL 207.552(7) that states: “Industrial

property may be owned or leased. However, in the case

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of leased property, the lessee is liable for payment of ad

valorem property taxes and shall furnish proof of that

liability.” Clearly, leased property can be industrial

property. But the statute’s unambiguous language

places conditions on when leased property can be

industrial property: for leased property to be consid-

ered “industrial property” under the PRIDDA, the

lessee must be liable for the payment of ad valorem

property taxes and must furnish proof of that liability.

Id.

Delta contends that the requirements placed on

lessees by MCL 207.552(7) are not relevant here be-

cause Delta, not its tenants, is seeking the exemption.

Delta is correct that MCL 207.552(7) only imposes

responsibilities on the lessee of industrial property.

But this, in our opinion, is because the Legislature

intended that only lessees receive an IFEC when the

at-issue leased property must qualify as industrial

property for the applicant to receive the exemption.

MCL 207.552(7) uses the phrase “in the case of leased

property.” This language in no way restricts what

follows. The Legislature’s use of this broad language

shows it intended that in all cases in which an IFEC

applicant seeks to have leased property classiﬁed as

“industrial property,” the lessee must always be liable

for property taxes. If a lessee must be liable for

property tax, then only the lessee is able to receive the

exemption under the PRIDDA;

the PRIDDA grants a

property-tax exemption that an individual or entity

can claim only if it is liable for property tax. See

We recognize that there is no clear reason why the Legislature

decided to allow only lessees of industrial property, not the lessor, to

receive an IFEC. But whatever the reason, it is not this Court’s role to

question the Legislature’s policy decision. See O’Donnell v State Farm

Mut Auto Ins Co, 404 Mich 524, 542; 273 NW2d 829 (1979) (“The

responsibility for drawing lines in a society as complex as ours—of

694 328

ICH

684 [June

Herman Brodsky Enterprises, Inc v State Tax Comm,

204 Mich App 376, 384; 522 NW2d 126 (1994) (holding

that the owner of property “was not entitled to an

exemption” under the PRIDDA because it had “placed

responsibility for paying the ad valorem property taxes

upon its tenants”).

As Delta would have us read the phrase “in the case

of leased property,” the requirements that follow—that

the lessee be liable for the property tax and furnish

proof of that liability—are only applicable when the

lessee seeks the exemption. In other words, Delta

would have us read the phrase “in the case of leased

property” to mean “in the case of leased property when

the lessee seeks the IFEC” or something similar. If the

Legislature had intended this latter result, it would

have used language to make that intent clear. See Kar

v Nanda, 291 Mich App 284, 291; 805 NW2d 609 (2011)

(explaining that “it is well-settled that the Legislature

is presumed to mean what it says in a statute”).

Our interpretation of MCL 207.552(7) ﬁnds further

support in the statute’s history. When the PRIDDA was

ﬁrst enacted by 1974 PA 198, the deﬁnition of “indus-

trial property” was found in MCL 207.552(6). The

original deﬁnition was as follows:

“Industrial property” means land improvements, build-

ings, structures, and other real property, whether leased

or owned, and owned machinery, equipment, furniture,

and ﬁxtures or any part or accessory thereof whether

completed or in the process of construction comprising an

integrated whole, the primary purpose and use of which is

the manufacture of goods or materials or the processing

thereof by physical or chemical change. Industrial prop-

erty shall not include any of the following:

identifying priorities, weighing the relevant considerations and choos-

ing between competing alternatives—is the Legislature’s, not the judi-

ciary’s.”).

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(a) Land.

(b) Property of a public utility.

198.]

This deﬁnition has undergone several changes

throughout the years. Among other things, 1975 PA

302 removed the phrase “whether leased or owned”

from the main paragraph. Thereafter, 1976 PA 224

added the following language in the last paragraph of

the subsection:

Industrial property may be owned or leased provided

that, in the case of leased property, the lessee is liable for

payment of ad valorem property taxes, and furnishes proof

of that liability . . . . [MCL 207.552(6), as amended by 1976

PA 224.]

In 1981 PA 212, our Legislature deleted language

from the provision that is not relevant to this appeal

and slightly altered the relevant language to read as

follows:

Industrial property may be owned or leased if, in the

case of leased property, the lessee is liable for payment of

ad valorem property taxes and furnishes proof of that

liability. [MCL 207.552(6), as amended by 1981 PA 212.]

With the exception of 1982 PA 417, in which the

Legislature added a single comma after the word “if,”

the deﬁnition of “industrial property” was not altered

again until 1999 PA 140, when the Legislature changed

the language about leased property to its current form:

Industrial property may be owned or leased. However, in

the case of leased property, the lessee is liable for payment

of ad valorem property taxes and shall furnish proof of

that liability. [MCL 207.552(6), as amended by 1999 PA

140.]

696 328 M

ICH

684 [June

Although the subsection under which “industrial prop-

erty” is deﬁned changes to MCL 207.552(7) with 2010

PA 273, these two sentences have remained unaltered

in every subsequent amendment of the statute.

Reviewing this history, the deﬁnition of “industrial

property” as originally enacted did not differentiate

between owned or leased property; industrial property

was certain types of property that could be owned or

leased. MCL 207.552(6), as enacted by 1974 PA 198.

This changed one year later when the Legislature

added requirements for when leased property could be

deemed “industrial property”: “Industrial property

may be leased or owned provided that, in the case of

leased property, the lessee is liable for payment of ad

valorem property taxes, and furnishes proof of that

liability . . . .” MCL 207.552(6), as amended by 1976 PA

224. It is presumed that these additions reﬂect a

conscious decision by the Legislature to change the

deﬁnition of “industrial property” when the at-issue

property is leased. See Bush v Shabahang, 484 Mich

156, 167; 772 NW2d 272 (2009) (“[A] change in statu-

tory language is presumed to reﬂect either a legislative

change in the meaning of the statute itself or a desire

to clarify the correct interpretation of the original

statute.”). That is, the Legislature purposefully

changed the deﬁnition of “industrial property” to re-

quire that when a property is leased, the lessee must

be liable for ad valorem property taxes and prove that

liability to qualify for an IFEC. While the statute has

undergone numerous amendments through the years,

the requirements placed on leased property have been

retained in every version of the statute since 1981. The

See 2000 PA 247; 2002 PA 280; 2003 PA 5; 2004 PA 5; 2005 PA 118;

2005 PA 267; 2007 PA 12; 2007 PA 146; 2008 PA 170; 2008 PA 457; 2008

PA 581; 2009 PA 209; 2010 PA 273; 2011 PA 154.

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Legislature’s actions—changing the deﬁnition of “in-

dustrial property” and then retaining those changes—

show that it intended leased property to qualify as

“industrial property” only under certain circum-

stances: when the lessee is liable for ad valorem taxes

and furnishes proof of that liability. And as explained,

if the lessee must be liable for property taxes for leased

property to qualify as “industrial property,” then only

the lessee of that property may receive an IFEC.

See

Herman Brodsky Enterprises, 204 Mich App at 384.

In sum, we conclude that the Legislature intended for

“industrial property” as used in the PRIDDA to include

leased property only when “the lessee is liable for

payment of ad valorem property taxes” and “furnish[es]

proof of that liability.” MCL 207.552(7). We further

conclude that because the lessee must be liable for

property taxes in order for the leased property to qualify

as “industrial property,” only the lessee of that property

can receive the exemption under the PRIDDA.

Because

(1) Delta’s property must qualify as “industrial prop-

erty” for Delta to receive the exemption, (2) Delta’s

Delta could argue that under MCL 207.555(1), it is still entitled to

seek the exemption. Again, that statute provides the general proposition

that an “owner or lessee of a facility may ﬁle an application” for an

IFEC. MCL 207.555(1). That statute, however, says nothing about

leased property, and we believe that our understanding of MCL

207.552(7) is entirely consistent with MCL 207.555(1). When property is

not leased, the owner may seek the exemption. When property is leased,

the lessee may seek the exemption. Thus, as MCL 207.555(1) contem-

plates, either an owner or lessee may apply for the exemption. But

whether the exemption may be sought by an owner or a lessee in a

particular case depends on whether the property is leased.

It could be possible for an owner to lease part of its property and use

the other part as “industrial property” under MCL 207.552(7). In such a

situation, this opinion should not be construed as necessarily denying

the owner—who is a lessor—the ability to receive an IFEC for the

unleased portion of the property.

698 328

ICH

684 [June

property is leased, and (3) Delta is strictly a lessor of

its property, the STC properly denied Delta’s IFEC

application.

Afﬁrmed.

AWYER

, P.J., and O’B

RIEN

and L

ETICA

, JJ., concurred.

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PECIAL

RDERS

SPECIAL ORDERS

In this section are orders of the Court of general

interest to the bench and bar of the state.

Order Entered June 18, 2019:

EOPLE V

ROWN

, Docket No. 339318. The Court orders that the

published opinion issued in this matter on October 23, 2018 is hereby

amended. The Court having found that defendant’s counsel failed to

send a copy of the opinion to defendant, as required by MCR 7.215(E)(2),

the opinion is amended to indicate that the date of issuance of the

opinion is June 18, 2019.

In all other respects, the opinion remains unchanged.

The clerk is directed to provide a copy of this order to the Supreme

Court Reporter of Decisions for publication in the Michigan Appeals

Reports.

PECIAL

RDERS

801